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'' 


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■IHBH 


INQUIRY 


INTO 


THE  LAW  AND  PRACTICE 


IN 


SCOTTISH   PEERAGES, 

BEFORE,  AND  AFTER  THE  UNION ; 

nrVOLTINO  THE  QUBSnOMB  OF 

JURISDICTION,  AND  FORFEITURE: 

TOOBTHSB, 

WITH  AN  EXPOSITION  OF  OUR  GENUINE,  ORIGINAL 

CONSISTORIAL  LAW. 


BY 

JOHN  RIDDELL,  Eso.  Advocate. 


"  'TiS  AK  UNWIISED  GaRDIK.' 


VOL.   II. 


EDINBURGH: 
THOMAS  CLARK,  LAW  BOOKSELLER, 

36   OEORGE   STREET. 
MDCCCXLtl. 


EDINBURGH  : 
Jaumb  BuftitaT,  Fzinter,  East  Thiatl*  Strtet  La&«. 


INQUIRY 

INTO 

THE    LAW    AND    PRACTICE    IN 

SCOTTISH  PEERAGES,  &c. 


CHAPTER  VII. 


COIfTlNUATION  OF  THE  LAW  AND  PRACTICE  IN  OUR 
PEERAGES,  AFTER  THE  UNION. 

The  Scottish  Peerage  that  has  been  more  directly  the 
subject  of  Consistorial  Law  in  modern  times,  b  that  of  Strath- 
more,  as  will  be  evident  in  the  sequel ;  and  to  ascend  higher, 
the  question  of  the  legitimacy  of  the  Stewarts,  under  its  vari- 
ous phases,  has  afforded  due  scope  to  the  talents,  and  inge* 
naity  of  lawyers^ — especially  in  the  Latin  Dissertation  by  John 
Gordon,  advocate,  in  1749,  incorporated  in  Goodall's  For- 
dun.     I  need  hardly  add,  that  by  the  English  law,  where  i^^capi^uktion 

i...«  m  ^•••iiji«  uto  the   ease 

legitimation  per  subsequens  matnmomum  is  allowed  m  nooftheStewarti. 
event — even  independently  of  the  aggravated  tnc^^^tiot^  bar — 
whether  cured  by  '^  ignorance^  "  or  not, — a  circumstance  that 
has  not  been  at  all  weighed — though  truly  here,  the  sole  anti- 
dote— the  Stewarts  would  irretrievably  be  illegitimate.^ 

There  was  a  curious  Consistorial  question  affecting  the  Case  of  tupposi- 
succession  of  the  noble  family  of  Kinnaird,  before  the  Com.J?^^*^;"„"^*^^^^^ 
missary  Court  in  1747-8,  through  an  attempt  of  Charles  Lord  family  of  Kin- 
Kinnaird  and  his  lady,  who  had  no  genuine  issue,  to  ingraft  two  lui^-^T 
supposititious  sons,  Patrick,  and  Charles  upon  that  stem ;  but 
after  an  action  by  Charles  Kinnaird,  (subsequently  Lord  Kin- 
naird,) as  next  collateral  heir,  to  the  honours  and  estates,  in  de- 
fence of  his  own  right,  and  to  expose  the  contrivance^  the  alleg- 
ed cbQdren  could  not  be  produced,  and  it  at  least  died  in  the 

*  Sec  here  also  Pref.  p.  xvi. 


556  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Singular  case  birth.^     The  imposition  had  the  same  fate  with  the  parallel 

France^^in  the  ^°®  ^^  ^^  Duchess  of  Kohan  in  France,  which,  however,  no 

17th  century,    effort  could  induce  her  to  confess;  and  even  Louis  XIV.  good 

naturedly,  allowed  this  lady,  a  daughter  of  the  great  Sully,  to 

bury  her  cherished  supposititious  Tancred — the  visionary  Duke 

of  Rohan — ^in  quality  of  their  offspring,  in  the  grave  of  the 

deceased  Duke,  her  husband, — under  a  suitable  inscription, 

which  was  removed  at  her  death.^ — Upon  the  noted  Douglas 

Lord  Haiies*8    causc, — cvcr  the  most  curious,  and  engrossing  of  the  kind, — 

fhe^^DouriM^  Lord  Hailes,  long  ago,  strikingly,  and  questionably  (f)  pre- 

cause.  dicated  "  quicquid  sub  terra  est,  in  apricum  prqferet  cetas"^ 

To  revert  to  the  main  topic, — after  this  rather  detached 
*'  episode,"  though  bearing  likewise  upon  honours, — the  next 
Peerage  case  to  be  noticed,  following  Stair  in  1748,^  is  the 
Cassilis  claim,  discussed  and  decided  in  1760,  and  1762. 
Caae  of  the        The  Constitution  of  the  Earldom  of  Cassilis,  like  those  of 
Cassilis  in  1760,  many  of  our  old  dignities,  is  not  extant.    The  first  indubitable 
and  1762.        legol  notice  of  its  existence,  in  the  person  of  the  original 
holder,  we  derive  from  a  royal  charter,  dated  February  5, 
161 1,  in  favour  of  ^'  David  ( Kennedy ),Earl  of  Cassilis,  Mar- 
garet Boyd,  bis  wife,"  &c.  and  '<  heredifms  suist*  of  the  Fief  of 
Cassilis  and  other  lauds.^    It  was  thus  taken  to  heirs-gene* 
ral ;  and  it  is  besides  important,  that  numerous  grants  of  land 
to  the  same  disponee,  at  different  times,  both  before,  as  well 
as  after  the  above  date,  comprbing  a  great  estate,  are  uni- 

^  Act  and  Decree  Bc^ster  of  Commissary  Court  of  Edinburgh. 

■  Les  Plaidoycrs  de  Gualtier,  4to.  Paris  1663,  p.  291,  &c.  Plaidoyers 
&c.  de  Patin,  Paris  1681,  &c.  &o. 

"  Among  his  MSS.  Remarks  upon  some  of  our  noble  families,  Ad,  Lib, 

•  See  pp.  386-7-8. 

'  Great  Seal  Register.  Among  the  alleged  productions  of  the  Nobi- 
lity of  Scotland  previous  to  the  decree  of  ranking  iu  1606,  upon  the 
credit  of  MSS.  excerpts  by  Sir  James  Balfour  and  Lord  Pitmedden,  in 
the  Advocates'  Library,  from  the  Record  that  does  not  now  exist,  the 
above  charter,  under  the  head  of  Cassilis,  is  also  given.  There  follows 
a  notice  of  *^  David  Kennedy,  £Iarl  of  Cassilis,"  from  an  asserted  Boll 
BaUivorum  ad  extra^  6th  of  August  1510 ;  but  the  mere  reference,  thus 
unauthenticated,  cannot  fully  suffice,  and  we  may  mainly  rely  in  hoc 
statu,  upon  the  former.  Certainly,  at  least  before  the  last  date,  the 
family,  as  yet  known,  had  only  the  dignity  of  Lord  Kennedy. 


IK  SCOTTISH  PEERAGES,  &C.  557 

formly  limited  in  the  same  way.^  When  it  is  therefore  in- 
structed that  he  was  the  first  acquirer  of  the  dignity  that  was 
never  in  John  his  father,  who  continued  Lord  Kennedy  (the 
older  family  title)  until  the  day  of  his  death,^  an  unavoidable 
presumption  arises,  at  least  in  the  minds  of  all  properly  im- 
bued with  our  institutions  and  laws,  that  the  Earldom  stood  to 
the  heirs  who  were  hence  preferred  on  every  other  occa- 
sion, and  necessarily  to  heirs-general.  In  those  days,  what 
would  a  nobleman  have  been  without  lands  ? — an  anomaly,  a 
mere  nonentity.  The  irremediable  want  would  in  fact  have 
led,  as  could  be  illustrated,  to  the  suppression  of  his  dignity;  and 
yet  such  would  be  the  consequence,  if  we  admitted  the  crot- 
chet of  Lord  Mansfield,  that  honours  with  us  after  1214  ceas- 
ed to  be  territorial,  or  to  be  identified  with  the  fief,  and  in  the 
absence  of  their  constitution  went  only  to  heirs-male  of  the 
body.  Besides,  his  Lordship,  even  contradictorily,  asserts  in 
his  speech  in  the  Cassilis  case,  that  if,  at  the  time  of  the  ori- 
ginal creation,  ^'  the  lands  were  limited  to  heirs  male,  the  title 
of  honour  cannot  be  supposed  to  descend  in  a  different  chan- 
nel." '  He  here  makes  the  descent  of  the  lands  a  relevant  test ; 
and,  by  every  law  of  justice  and  consistency,  the  presump- 
tion must  relatively  obtain,  if  they  were  limited  to  heirs- 

'  This  is  proved  by  royal  confirmations  in  the  Great  Seal  Register, 
dated  July  9, 1489— penult  of  March,  and  January  28, 1^06,  &c. 

'  In  support  of  this  I  may  refer  to  a  civil  process  in  1583,  at  the  in- 
stance of  **  Mergret  Bayd^^  Countess  of  Cassilis,  (who  has  been  instruct- 
ed the  wife  of  David,  first  Earl  of  Cassilis),  against  '^  Elizabeth  Ken- 
nedy, spouse  to  William  Power,  allegiand  hir  relict  of  umquhile  John 
Lord  Kennedy,  fadir  to  umquhile  David  erle  of  Cassilis,  epouse  to  ye 
said  Mergret^  to  preif  yer  wes  contractis  and  bandis  maid  betwix  ye 
said  umquhile  Johne  Lord  Kennedy,  David  erle  of  Cassilis,  and  ye  said 
EHzabethe^**  when  she  took  certain  lands  *'  in  oontentatioune  of  hir  gret 
terce."  (Acts  and  Decrees  of  Council  and  Session.)  Earl  David  fell  at 
Floudon,  in  1613.  This  Power  match  is  unknown  to  ^'  Peerage  writers." 

*  See  the  late  publication  of  the  Speech,  by  James  Maidment,  Esq. 
advocate,  (p.  48),  containing  also  those  of  the  other  Lords  who  deliver- 
ed themselves  on  the  occasion,  from  the  authentic  copy  in  the  AiLsa  or 
Cassilis  Charter-chest,  and  concurrent  unexceptionable  authorities. 
They  shall  in  the  sequel  be  there  referred  to  under  the  title  of  Mr. 
Maidment*B  publication,  which  has  likewise  the  printed  cases  of  the 
parties. 


558  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

general^  as  in  the  present  instance.  The  Earldom  of  Cassilis, 
which,  upon  this  principle — from  the  solution  afforded  by  the 
relative  landed  grants — must  have  originally  stood  to  tliero, 
descended,  in  regular  course,  to  John  eighth  Earl  of  Cassilis, 
both  the  direct  heir-male,  and  heir-general.  He  died  without 
issue  in  1759,  when  two  claimants  started  for  the  dignity, 
namely,  William  Douglas,  Earl  of  Ruglen  and  March,  the 
lineal  heir  through  a  female,  and  Sir  Thomas  Kennedy 
of  Culzean,  Baronet,  the  heir-male,  by  reason  of  his  descent 
from  Sir  Thomas  Kennedy,  younger  son  of  Gilbert,  the  third 
Earl.  Their  respective  claims  came  before  the  House  of 
Peers,  through  petitions  to  the  Crown,  in  1760  and  1761,^  and 
they  involved  the  consideration  of  two  royal  charters,  in  the 
17th  century,  which  fall  first  to  be  disposed  of.  The  earliest. 
The  two  Caui-  dated  September  29,  1642,  and  proceeding  upon  the  resigna- 

1642*  andTen  ^^^^  ®*  ^^^^  ^^^  ^^^^  ^^  Cassilis,  conveys  the  "  Comitatum 
inept  u  to  the  et  Dominium  de  Cassilis,"  comprehending  the  lands,  &c.  '<  se- 
onoun.  cundum  praecedentiam,  et  prioritatem  loci  iUis  per  eorum  jura 

legesque  et  praxin  dicti  regni  nostri  Scotie,"  to  the  disponee, 
and  the  heirs-male  of  his  l)ody,  whom  frdling,  to  certain  heirs- 
female.'  The  honours,  though  the  description  is  not  so  di- 
rect or  explicit  as  should  be,  are  yet  in  effect  comprised  under 
the  words  "  precedence,  and  priority  of  place,"  that  obviously 
of  the  family  in  right  of  their  peerage.  This  especially  follows, 
backed  as  they  are  by  *^  Comitatum,"  &c.  however  cUone  in- 
sufficient for  the  purpose  at  the  period.  But  it  so  happens 
that  the  charter  is  only  dated  << at  Edinburgh"  and  was  in- 
structed not  to  be  warranted  by  the  Sovereign.  The  convey- 
ance therefore,  so  far  as  regards  the  honours,  was  inept ;  nor 
could  things  be  mended  by  a  parliamentary  ratification  under 
the  circumstances,  which,  it  is  now  agreed,  cannot  cure  or  ho- 
mologate such  original  defect.  The  other  charter  contem- 
plated, is  dated  April  24,  1671,  and  carries  by  way  of  Novo- 
damtis  in  like  manner,  ''  Comitatum,  et  Dominium^  de  Cas- 
silis— secundum  precedentiam,  et  prioritatem  loci  ipsis  (the 
disponee  and  his  heirs)  debitam,"  &c.  with  the  addition  of 

'  Lords*  Journals 
'  Great  Seal  Register. 
'  Jjordship,  or  syperiority. 


IN  SCOTTISH  PEERAGES,  &C.  559 

**  title  and  dignity  '*  ^  in  the  queqwdem^  in  alleged  conformity 
to  the  charter  16429  ii^  favour  of  John  seventh  Earl  of  Cas- 
silis  and  the  heirs-male  of  his  body,  whom  failing,  to  the  eldest 
heir-female  of  the  marriage  between  him  and  his  wife,  Lady 
Susan  Hamilton.'     Under  this  last  denomination,    William 
Earl  of  Ruglen  and  March,  the  female  claimant,  was  the  heir 
in  1759.     But  then  the  grant  again,  though  dated  at  White- 
ball,  and  under  the  sign-manual,  also  laboured  under  objections. 
First,  it  may  be  contended,  that  it  merely  transmitted,  by  way 
of  repetition,  in  regard  to  the  landed  rights — as  follows  by  its 
own  reference  and  import — what  is  mentioned  in  the  charter 
1642,  which  was  ineffectual  as  to  the  peerage,  and  has,  besides, 
no  notice  of  ^^  title  *'  or  <'  dignity^''  thus  inducing  suspicion  and 
distrust.     And  secondly,  what  is  still  more  important  in  peer- 
age law,  in  the  docquet  of  the  signature,^  intended  for  the  ex- 
press eye  and  sanction  of  the  Sovereign,  the  sole  fountain  of 
honour,  and  as  a  guard  against  interpolation,  there  is  as 
little  specification  of  them, — which  there  should  have  been, 
with  a  view  to  a  just  conveyance,  fully  and  unequivocally. 
The  title  and  dignity,  therefore,  must  be  presumed  to  have 
been  unduly,  and  surreptitiously  inserted  afterwards — figur- 
ing, as  they  do,  but  in  Scotland^ — as  in  certain  noted  instances. 
Neither  were  they  resigned  in  1671  ;  and  I  need  not  add, 
that  more  precise  and  solemn  forms  were  then  required,  on 
such  occasions,  than  formerly,  which  gives  conclusive  force  to 
the  objections.     There  followed  a  parliamentary  ratification 
of  the  charter  in  question,  in  1672,  which  matter  has  been 
already  spoken  to ;  while  it  was  moreover  qualified  by  an 
act,  aalvo  jure  cujueUbet^  that  reserved  entire  the  rights  of 
third  parties.^ 

'  The  singular  and  amnsiDg  import  Lord  Hardwicke  was  inclined  to 
give  to  what  is  thus  specified,  by  words  plain  enough,  will  be  shewn 
in  the  sequeL 

'  Great  Seal  Register. 

'  In  her  Majesty's  State  Paper  Office. 

*  In  the  quequideniy  and  clause  besides  obliging  the  heirs-female  to 
take  the  dignity  of  Cassilis.  The  latter  loose  practice  and  fcMrm,  is  also 
diaooTerable  in  other  invalid  grants ;  but  honours  can  nev«r  be  afiected 
in  such  an  indirect  and  oounterband  manner. 

•  Acts  of  Parliament,  last  Edit.  vol.  VIII.  pp.  116—207. 


560  INQUIRY  INTO  THE  LAW  AND  PEACTICE 

Descent  of  the      Hetice  the  two  charters  referred  to,  cannot  legally  be  con- 
bonoura  must    gidered  to  convev  the  honours ;  and  there  is  nothing  subse- 

be  otberwise  »  '  o 

determined,  quently  to  affect  them.  In  1511, — for  we  must  necessarily 
retrogade, — that  is,  at  the  period  of  the  constitution  of  the 
Earldom,  the  fief  of  Cassilis,  as  was  remarked,  stood  to  heirs- 
general  ;  in  whose  favour,  likewise,  there  were  grants  of  lands 
before  and  after,  although,  as  in  the  instance  of  Lovat,  ^ 
there  past  eventually  a  charter  of  the  fief,  in  1540,  to  heirs- 
male.^  In  these  circumstances,  the  landed  charters  in  1642 
and  1671,  or  rather  the  latter  only,  as  having  exclusively  the 
warrant  of  the  sign-manual,  being  too  modern  for  the  pur- 
pose,— if  we  adopt  the  principle  of  the  Lovat  decision  in 
1730,^  however  narrowly  countenanced, — the  honours  in 
question  might  descend  to  heirs-male,  according  to  the  last 
relevant  conveyance  of  the  fief;  but  if  we  adopt  the  strong 
presumable  bias  of  our  law,  to  heirs-general.  This  last  con- 
clusion is  especially  corroborated  by  the  striking  precedent  of 
the  Earldom  of  Athol,  in  the  17th  century,  where  the  right  of 
the  heir-female  was  admitted  by  the  Crown  on  August  6, 
1628,  though  even  the  investitures  of  the  <'  Comitatus,"  by  a 
charter  in  1480,  and  progressively,  in  the  16th  century,  stood 
to  heirs-male,  ^ — as  well  as  by  high  legal  authority  even  last 
centurv  * 
Ratio  of  deci-  Lord  Mausfield,  in  his  decision  of  the  Cassilis  case,  (for  he 
Mansfieid^iS'i^e  °^*y  ^®  mainly  accounted  to  have  decided  it,)  in  favour  of  the 
Cassilis  case,  heir-male,  on  January  22,  1762,  adopted,  as  the  relevant  ra-- 
tio,  what  he  conceived  to  be  the  original,  unbiassed  construc- 
tion and  descent  of  our  dignities,  as  founding  the  legal  pre- 
sumption in  the  alternative.  This,  no  doubt,  in  a  great  mea- 
sure, was  a  fair  criterion,  in  absence  of  the  constitution  of  the 

*  See  p.  371.  '  Great  Seal  Register. 

*  See  again  p.  371. 

*  Proved  by  the  relative  charters  and  grants,  in  the  Great  Seal  Re- 
gister ;  and  see  also  pp.  177-8.  • 

'  Such  as  that  of  President  Craigie,  in  reference  to  the  Ross  claim. 
(See  pp.  192-3.)  The  Barony  of  Ross,  it  is  to  be  observed,  in  virtue  of 
investitures  of  the  fief  to  heirs-male,  twice  passed  the  heir-female  ;  so 
his  opinion  there,  in  favour  of  such  heirs,  is  the  stronger.  It  was  not, 
too,  until  the  17th  century,  that  the  ultimate  settlement  of  the  same 
to  heirs-female  passed.    See  also  p.  374. 


IN  SCOTTISH  PEERAGES,  &C.  561 

Peerage,  if  properly  and  truly  followed ;  but  he  erred  most 
lamentably,  and  stumbled,  as  I  have  remarked,  in  the  at- 
tempt.    Blindly  assuming  that  we  adopted  of  old  the  pure 
Longobardic  feudal  law,  and  that  hence,  even  at  no  very  re- 
mote era,  with  us.  Earldoms,  offices,  and  lands,  went  exclu- 
sively to  heirs-male,  he  arbitrarily  and  irrelevantly  concluded 
that  such  also  must  be  the  rule  of  descent  in  respect  to  ho- 
nours, the  constitutions  of  which  are  not  preserved,  even  com- 
paratively at  a  modem  juncture ;  ^  and  that  therefore,  while 
he  most  consistently  held  the  Earldom  of  Cassilis  to  be  but  a 
personal  dignity, '  and  the  territorial  principle  to  have  long 
antecedently  ceased,  ^  it  could  only  descend  to  heirs-male. 
It  is  almost  superfluous  to  notice  the  glaring  fallacy,  as  must 
be  now  obvious  to  every  Scottish  legal  antiquary,  of  the  pre- 
mises here,  which  has  been  so  fully  and  victoriously  refuted 
by  Lord  Hailes  in  the  Sutherland  case.     So  far  from  the 
above,  that  able  legal  authority  has  fully  proved  to  demonstra-  Quite  adverse 
tion,  from  the  earliest  period  that  can  now  be  traced,  and  the  other  way. 
downwards,  that  female  succession,  with  us,  in  dignities,  of- 
fices,— ^however  high  and  masculine  in  their  nature  and  cha- 
racteristics,— and  in  lands,  and  every  real  subject,  universally 
obtained.    Nay  more,  that  at  least  ten  ^  out  of  our  thirteen 
original  Earldoms,  (whose  constitutions  are  unknown,)  coeval 
with  the  12th  and  13th  centuries,  and  comprising  the  entire 
number, — besides  other  such  dignities,  and  lesser  ones  of  a 
subsequent  date, — repeatedly,  as  in  the  simple  case  of  lands, 
devolved  to  heirs-female.  *      Neither  do  the  three  remaining 
Earldoms  of  March  or  Dunbar,  Orkney  and  Caithness,  and 
Strathem,  oppose  the  doctrine,  or  form  an  exception  ;  for  the 
first,  until  the  noted  forfeiture  by  James  I.,  went  always 
to  heirs-general,  though  they  happened  to  be  heirs-male ;  and 
the  two  last,  as  to  which  Lord  Hailes  could  not  decisively 
or  satisfactorily  pronounce,  for  want  of  due  information,  may 

*  See  Mr.  Jdaidment's  Publication,  ut  sup,  pp.  44-5,  et  seq, 

*  md,  pp.  52-3.  •  Ibid.  p.  45. 

*  Bachan,  Athole,  Angus,  Menteith,  Carrick,  Fife,  Ross,  Marr,  Len- 
nox, Sutherland.    (See  Sutherland  case,  Chap.  V.  Introd.  p.  3,  et  seq,) 

*  The  title  of  course,  like  the  principal  messuage  and  superiority, 
goiog  (o  the  eldest  oo-parsener. 

2n 


562  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

be  now  likewise  held,  in  virtue  of  the  additional  evidence  I 
submit,  to  have  repeatedly  descended  to  female  heirs. '  The 
allegation  in  the  formal  attestation  I  have  appealed  to,  by 

.  ^  By  a  formal  and  solemn  Latin  attestation  of  Thomas,  Bishop  of 
Orkney,  at  request  of  William  Sinclair,  Earl  of  Orkney  and  Caithness, 
about  the  middle  of  the  15th  century,  (though  there  be  a  clerical  error 
in  the  date)  given  in  Wallace's  account  of  Orkney,  (p.  121,  e/  9eq,)  and 
in  Orkneyinga  Saga,  (p.  646,  et  seq,)  it  is  instructed  that  Magnus,  Eari 
of  Caithness  and  Orkney,  who  addressed  the  letter  to  the  Pope  in  1320, 
(see  Anderson's  Dip.  Scot.  cart,  li.),  was  succeeded  in  these  Earldoms 
by  "  Malisius  Comes  de  Strathem — linealiter^'ure  hereditario**  through 
Vkfenude  ; — that  Earl  Malise,  by  }x&  first  wife,  a  daughter  of  the  Earl  of 
Menteith,  had  Matilda,  an  only  child,  who,  by  Weylandus  de  Arde, 
had  Alexander  de  Arde,  which  last  again,  **  ratione  sue  matrii—jure 
Begr^i  Scotie,  et  conmetudine  hereditario,^  (these  are  remarkable  and 
conclusive  words),  succeeded  Earl  Malise  in  the  principal  messuage  of 
the  Earldom  of  Caithness,  including  the  dignity,  ^^  appellatione  Comitis" 
together  with  lands  in  Orkney ; — that  the  said  Alexander  sold  to  Ro- 
bert II.  "  comitatum  de  Cathncs— et  omnia  alia  jura — ratione  matris 
ejus — tanquam  ad  antiquiorem  sororem  jure,  et  consuctudine  regnorum 
Scotie,"  &c, — thus  shewing  we  did  not  admit  abbeyancc ; — and  finally, 
that  Alexander  dying  childless,  the  lineal  representation,  and  rights 
devolved  to  the  heirs  of  Sir  'William  Sinclair  by  his  wife,  a  daughter 
and  coheiress  of  the  above  Malise,  Earl  of  Strathem,  by  his  second  mar- 
riage with  a  daughter  of  Hugh  Earl  of  Ross,  of  whom  came  Henry 
Sinclair,  and  the  subsequent  Earls  of  Orkney  and  Caithness.  By  ge- 
nuine charters  also,  given  by  Torfasus  in  his  History  of  the  Orkneys, 
in  ms?  and  1376,  (pp.  173-4),  it  is  proved  that  "  Malise  Earl  of  Ork- 
ney "  had  a  lawful  heir  to  that  Earldom, — identically  as  instructed. 
"  Alexander  de  Ard — nobilis  vir,"  Sec.  who  was  confirmed  in  Orkney, 
as  its  captain  and  administrator,  by  Hacquin,  king  of  Norway  and 
Sweden  ;  and  that  Hacquin,  in  1370,  made  Henry  Sinclair  Earl  of 
Orkney,  (Ibid.  p.  174.)  Having  made  this  statement,  we  shall  next 
see  how  it  is  supported  by  authentic  evidence  with  us.  There  is  a 
confirmation  by  Robert  I.,  who  reigned  from  130G  to  1329,  of  a  grant 
by  "  Malisius  comes  de  Strathern — Johanne  filie  quondam  Joannis  de 
Menteith  spouse  sue.'*  (Rob.  Ind.  p.  18.)  The  latter  was  son  of  an 
Earl  of  Menteith,  so  the  discrepancy  here,  in  part,  from  the  relative 
notice  above,  is  not  great.  There  is  a  grant  by  Edw^ard  II.  in  1318,  to 
Matilda,  daughter  of  Malisius  Earl  of  Strathern,  and  Robert  Tonny, 
her  husband,  of  certain  manors  in  England.  (Cal.  Rot.  P.it.  p.  83.) 
Robert  must  have  been  her  first  spouse ;  and  there  is  a  confirmation 
by  Robert  I.  to  "  Matilda,  the  wife  of  Robert  Ardesh  (Aifde),  Robert 
instead  of  "  Weylandus,"  as  above,  being  apparently  his  Christian 
name.     (Rob.  Ind.  pp.  26.)    There  is  a  reference  in  a  Chamberlain 


IN  SCOTTISH  PRERAQES,  &C.  563 

Thomas  Bishop  of  Orkney,  about  the  middle  of  the  15th  cen« 
tury,  that  the  direct  representation  of  M alise  Earl  of  Stra- 
them,  including  all  successions,  and  that  to  the  Earldom  of 

Roll  for  1390  and  1331,  to  **  dudiim  Comes  de  Strathem**  and  the  rents 
''  quarte  partis  Cathanie"  to  which  he  had  been  entitled,  it  being  cor- 
roborated by  an  authority  to  bo  shortly  quoted — independently  of  the 
possession  of  Caithness,  by  other  evidence — that  "  Malhe  Earl  of 
Strathern  **  was  "  Earl  of  Caithness  and  Orkney,^'*  Earl  Malise,  as  eldest 
parcener,  had  the  first  principal  (lortion,  and  there  were,  as  can  be  also 
instructed,  younger  Caithness  co>heirs.  There  is  a  confirmation  by 
Robert  II.  in  1374,  to  David  Stewart,  his  son,  "  et  heredibus  suis"  of 
the  **  Comitatus'*  of  Strathern,  upon  the  resignation,  and  quitclaim 
"  Alexandri  de  Arde^'  i)ie  former  possessor,  to  be  held  in  the  same  way, 
as  by  Aim,  and  his  **  antecessores,"  (Regist.  Rob.  II.  p.  138.)  And 
David  obtained  another,  from  the  King  in  tliat  year,  of  the  castle  of 
Brathwell,  and  all  Lordships  and  rights  '*  tarn  in  camitatu  Cathanie 
quam  alibi— que ^erun<  Alexandri  de  le  Arde,  quacunque  successione 
hereditaria  ipsum  contingentes,  vel  contingentia,  ratione  Matilde  de 
Stratheme  matris  sue*^  {Ibid,  p.  159.)  The  regrant  is  upon  the  re- 
signation of  Alexander,  solely  the  heir-female,  David,  in  virtue  of  this 
title,  from  standing  in  his  shoes,^  and  from  mere  grants  of  the  fiefs,  or 
"  comitatusy* — thus,  as  ever,  in  refutation  of  Lord  Mansfield — became 
"  Earl  of  Strathern,  and  Caithness,"  and  is  so  accordingly  described  in 
a  charter  in  1379.  {Ibid,  p.  142.)  There  was  likewise  a  confirmation 
by  David  II.  who  succeeded  in  1329,  of  an  antecedent  *^  contract,  and 
marriage  betwixt  Malisius  Earl  of  Stratheme,  Caithnes,  and  Orkney^ 
and  William  Earl  of  Ross,"  (Rob.  Ind.  p.  51.-)  And  lastly,  there  is  a 
charter,  April  23, 1391,  (confirmed  by  Robert  III.)  by  "  Ilenricus  de 
Sancto  ClarOy  Comes  Oreadie"  &c.  (who  is  proved  by  a  deed  in  1396,  in 
the  Perth  Charter-chest,  to  have  had  lands  in  Norway),  to  David,  his 
brother,  of  certain  heritable  Scottish  property,  in  lieu  of  any  claim  or 
interest  *'  in  partibus  Oroadie,  et  Schetlandie  "  competent  to  him,  "  ra- 
tione Isabelle  de  Sancto  claro  matris  sue."  (Reg.  Rob.  III.  p.  106.) 
The  line  thereafter  of  the  Sinclairs,  Earls  of  Orkney  and  Caithness,  is 
ascertained  by  records  and  deeds  in  private  Charter- chests. 

It  strikes  me,  that  the  statement  at  the  outset,  not  supported  either 
by  the  most  inferior  testimony,  whatever  want  of  explicitness  there 
may  be  in  some  particulars,  is  thus  borne  out — ^remarkably  in  re  tarn 
antiqua — in  essentials,  by  strict  Authorities,  from  whence  it  results  that 
the  right  to  the  Earldoms  of  Strathern  and  Caithness  descended,  at 
common  law,  to  Alexander  de  Ard,  through  &  female,  Matilda  de  Stra- 
theme, his  mother  ; — while,  further,  upon  the  whole,  we  have  fair  and 
relevant  demonstration  that  Caithness  had  previously  vested,  in  the 
same  way,  in  Malise  Earl  of  Strathern,  her  ancestor ;  for  his  male 
descent  can  be  instructed  to  have  been  different  from  that  of  Magnus 


562  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

be  now  likewise  held,  in  virtue  of  the  additional  evidence  I 
submit,  to  have  repeatedly  descended  to  female  heirs. '  The 
allegation  in  the  formal  attestation  I  have  appealed  to,  by 

.  ^  By  a  formal  and  solemn  Latin  attestation  of  Thomas,  Bishop  of 
Orkney,  at  request  of  William  Sinclair,  Earl  of  Orkney  and  Caithness, 
about  the  middle  of  the  15th  century,  (though  there  be  a  clerical  error 
in  the  date)  given  in  Wallace's  account  of  Orkney,  (p.  121,  e/  seq,)  and 
in  Orkney inga  Saga,  (p.  545,  et  seq,)  it  is  instructed  that  Magnus,  Earl 
of  Caithness  and  Orkney,  who  addressed  the  letter  to  the  Pope  in  1320, 
(see  Anderson's  Dip.  Scot,  cart,  li.),  was  succeeded  in  these  Earldoms 
by  "  Malisius  Comes  de  Strathem — Hnealiter-^urehereditariOy'  through 
&  female  ; — that  Earl  Malise,  by  hxa  first  wife,  a  daughter  of  the  Earl  of 
Menteith,  had  Matilda^  an  only  child,  who,  by  Weylandus  do  Arde, 
had  Alexander  de  Arde,  which  last  again,  **  ratione  sue  matrit—jure 
Regi^i  Scotie,  et  consuetudine  hereditarioy'  (these  are  remarkable  and 
conclusive  words),  succeeded  Earl  Malise  in  the  principal  messuage  of 
the  Earldom  of  Caithness,  including  the  dignity,  '*  appellatione  Camitis^'* 
together  with  lands  in  Orkney ; — that  the  said  Alexander  sold  to  Ro- 
bert II.  **  comitatum  de  Cathncs— €t  omnia  alia  jura — ratione  matris 
ejus — ^tanquam  ad  antiquiorem  sororem  jure,  et  consuetudine  regnorum 
Scotie,"  &c. — ^tlius  shewing  we  did  not  admit  abbejTince ; — and  finally, 
that  Alexander  dying  childless,  the  lineal  representation,  and  rights 
devolved  to  the  heirs  of  Sir  William  Sinclair  by  his  wife,  a  daughter 
and  coheiress  of  the  above  Malise,  Earl  of  Strathem,  by  his  second  mar- 
riage with  a  daughter  of  Hugh  Earl  of  Koss,  of  whom  came  Henry 
Sinclair,  and  the  subsequent  Earls  of  Orkney  and  Caithness.  By  ge- 
nuine charters  also,  given  by  Torfajus  in  his  History  of  the  Orkneys, 
in  1,%7  and  1375,  (pp.  173-4),  it  is  proved  that  "  Malise  Earl  of  Ork- 
ney "  had  a  lawful  heir  to  that  Earldom, — identically  as  instructed. 
"  Alexander  de  Ard — nobilis  vir,"  &c.  who  was  confirmed  in  Orkney, 
as  its  captain  and  administrator,  by  Hacquin,  king  of  Norway  and 
Sweden ;  and  that  Hacquin,  in  1370,  made  Henry  Sinclair  Earl  of 
Orkney.  (Ibid,  p.  174.)  Having  made  this  statement,  we  shall  next 
see  how  it  is  supported  by  authentic  evidence  with  us.  There  is  a 
confirmation  by  Robert  I.,  who  reigned  from  1306  to  1329,  of  a  grant 
by  "  Malisius  comes  de  Strathem — Johanne  filie  quondam  Joannis  de 
Menteith  spouse  sue."  (Rob.  Ind.  p.  18.)  The  latter  was  son  of  an 
Earl  of  Menteith,  so  the  discrepancy  here,  in  part,  from  the  relative 
notice  above,  is  not  great.  There  is  a  grant  by  Edward  II.  in  1318,  to 
Matilda,  daughter  of  Malisius  Earl  of  Strathern,  and  Robert  Tonny, 
her  husband,  of  certain  manors  in  England.  (Cal.  Rot.  Pat.  p.  83.) 
Robert  must  have  been  her  first  spouse ;  and  there  is  a  confirmation 
by  Robert  I.  to  "  Matilda,  the  wife  of  Robert  Ardcsh  (AmJe),  Robert 
instead  of  "  Weylandus,"  as  above,  being  apparently  his  Christian 
name.     (Rob.  Ind.  pp.  26.)    There  is  a  reference  in  a  Chamberlain 


IN  SCOTTISH  PEERAGES,  &C.  563 

Thomas  Bishop  of  Urkney,  about  the  middle  of  the  15th  cen« 
tury,  that  the  direct  representation  of  Malise  Earl  of  Stra- 
thern,  including  all  successions,  and  that  to  the  Earldom  of 

Roll  for  1330  and  1331,  to  **  dudum  Comes  de  Strathem/'  and  the  rents 
*'  quarte  partis  Cathanie,"  to  which  he  had  been  entitled,  it  being  cor- 
roborated by  an  authority  to  be  shortly  quoted — independently  of  the 
possession  of  Caithness,  by  other  evidence — that  "  Malise  Earl  of 
Strathem  "  was  "  Earl  of  Caithness  and  Orkney**  Earl  Malise,  as  eldest 
parcener,  had  the  first  principal  portion,  and  there  were,  as  can  be  also 
instructed,  younger  Caithness  co-heirs.  There  is  a  confirmation  by 
Robert  II.  in  1374,  to  David  Stewart,  his  son,  "  et  heredihus  suis"  of 
the  ^*  Comitatus'*  of  Strathem^  upon  the  resignation,  and  quitclaim 
"  Alexandri  de  Arde**  i\ie  farmer  possessor,  to  be  held  in  the  same  way, 
as  by  Wm,  and  his  " anteeessores'*  (Regist.  Rob.  II.  p.  138.)  And 
David  obtained  another,  from  the  King  in  that  year,  of  the  castle  of 
Brathwell,  and  all  Lordships  and  rights  **  tarn  in  comitatu  Cathanie 
quam  alibi— que yuerun/  Alexandri  de  le  Arde^  quacunque  successione 
hereditaria  ipsum  contingentes,  vel  contlngentia,  ratione  MatOde  de 
Stratheme matris sue"  {Ibid,  p.  159.)  The  regrant  is  upon  the  re- 
signation of  Alexander,  solely  the  heir-female,  David,  in  virtue  of  this 
title,  from  standing  in  his  shoes,^  and  from  mere  grants  of  the  fiefs,  or 
**  comitatus,** — thus,  as  ever,  in  refutation  of  Lord  Mansfield — ^became 
'*  Earl  of  Strathem,  and  Caithness,"  and  is  so  accordingly  described  in 
a  charter  in  1379.  (Ibid,  p.  142.)  There  was  likewise  a  confirmation 
by  David  II.  who  succeeded  in  1329,  of  an  antecedent  **  contract,  and 
marriage  betwixt  Malisius  Earl  of  Stratheme,  Caithnes,  and  Orkney^ 
and  William  Earl  of  Ross,**  (Rob.  Ind.  p.  51.)  And  lastly,  there  is  a 
charter,  April  23, 1391,  (confirmed  by  Robert  III.)  by  "  Ilenricus  de 
Sancto  ClarOy  Comes  Orcadie,"  &c.  (who  is  proved  by  a  deed  in  1396,  in 
the  Perth  Charter-chest,  to  have  had  lands  in  Norway  J,  to  David,  his 
brother,  of  certain  heritable  Scottish  property,  in  lieu  of  any  claim  or 
interest  **  in  partibus  Orcadie,  et  Schetlandie  "  competent  to  him,  '*  ra- 
tione Isabelle  de  Sancto  claro  matris  sue."  (Reg.  Rob.  III.  p.  196.) 
The  line  thereafter  of  the  Sinclairs,  Earls  of  Orkney  and  Caithness,  is 
ascertained  by  records  and  deeds  in  private  Chartor-chests. 

It  strikes  me,  that  the  statement  at  the  outset,  not  supported  either 
by  the  most  inferior  testimony,  whatever  want  of  explicitness  there 
may  be  in  some  particulars,  is  thus  borne  out— remarkably  in  re  tarn 
antiqua — ^in  essentials,  by  strict  authorities,  from  whence  it  results  that 
the  right  to  the  Earldoms  of  Strathem  and  Caithness  descended,  at 
common  law,  to  Alexander  de  Ard,  through  &  female,  Matilda  de  Stra- 
theme, his  mother  ; — while,  further,  upon  the  whole,  we  have  fair  and 
relevant  demonstration  that  Caithness  had  previously  vested,  in  the 
same  way,  in  Malise  Earl  of  Strathem,  her  ancestor ;  for  his  male 
descent  can  be  instructed  to  have  been  different  from  that  of  Magnus 


562  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

be  now  likewise  held,  in  virtue  of  the  additional  evidence  I 
submit,  to  have  repeatedly  descended  to  female  heirs.  ^  The 
allegation  in  the  formal  attestation  I  have  appealed  to,  by 

.  ^  By  a  formal  and  solemn  Latin  attestation  of  Thomas,  Bishop  of 
Orkney,  at  request  of  William  Sinclair,  Earl  of  Orkney  and  Caithness, 
about  the  middle  of  the  I5th  century,  (though  there  be  a  clerical  error 
in  the  date)  given  in  Wallace's  account  of  Orkney,  (p.  121,  et  seq.)  and 
in  Orkney inga  Saga,  (p.  545,  et  seq,)  it  is  instructed  that  Magnus,  Earl 
of  Caithness  and  Orkney,  who  addressed  the  letter  to  the  Pope  in  1320, 
(see  Anderson's  Dtp.  Scot,  cart,  u.),  was  succeeded  in  these  Earldoms 
by  "  Malisius  Comes  de  Strathem — linealiter—jure  hereditariOy"  through 
&  female  ; — that  Earl  Malise,  by  his^r«^  wife,  a  daughter  of  the  Earl  of 
Menteith,  had  Matilda^  an  only  child,  who,  by  Weylandus  de  Arde, 
had  Alexander  de  Arde,  which  last  again,  **  ratione  sue  matrii—jure 
Regret  Scotie,  et  consuetudine  hereditaria,^'  (these  are  remarkable  and 
conclusive  words),  succeeded  Earl  Malise  in  the  principal  messuage  of 
the  Earldom  of  Caithness,  including  the  dignity, "  appellatione  Comitis,** 
together  with  lands  in  Orkney  ; — that  the  said  Alexander  sold  to  Ro- 
bert II.  "  comitatum  de  Cathnos— et  omnia  alia  jura — ratione  matrix 
ejus — tanquam  ad  antiquiorem  sororem  Jure,  et  consuetudine  regnorum 
Scotie,"  &c. — ^thus  shewing  we  did  not  admit  abbeyance ; — and  finally, 
that  Alexander  dying  childless,  the  lineal  representation,  and  rights 
devolved  to  the  heirs  of  Sir  William  Sinclair  by  his  wife,  a  daughter 
and  coheiress  of  the  above  Malise,  Earl  of  Strathem,  by  his  second  mar- 
riage w^ith  a  daughter  of  Hugh  Earl  of  Koss^  of  whom  came  Henry 
Sinclair,  and  the  subsequent  Earls  of  Orkney  and  Caithness.  By  ge- 
nuine charters  also,  given  by  Torfajus  in  his  History  of  the  Orkneys, 
in  L157  and  1375,  (pp.  173-4),  it  is  proved  that  "  Malise  Earl  of  Ork- 
ney "  had  a  lawful  heir  to  that  Earldom, — identically  as  instructed. 
"  Alexander  de  Ard — nobilis  vir,"  &c.  who  was  confirmed  in  Orkney, 
as  its  captain  and  administrator,  by  Hacquin,  king  of  Norway  and 
Sweden ;  and  that  Hacquin,  in  1370,  made  Henry  Sinclair  Earl  of 
Orkney.  {Ibid,  p.  174.)  Having  made  this  statement,  we  shall  next 
see  how  it  is  supported  by  authentic  evidence  with  us.  There  is  a 
confirmation  by  Robert  I.,  who  reigned  from  130G  to  1329,  of  a  grant 
by  "  Malisius  comes  de  Strathei'n — Johanne  filie  quondam  Joannis  de 
Menteith  sponse  sue,"  (Rob.  Ind.  p.  18.)  The  latter  was  son  of  an 
Earl  of  Menteith,  so  the  discrepancy  here,  in  part,  from  the  relative 
notice  above,  is  not  great.  There  is  a  grant  by  Edward  II.  in  1318,  to 
Matilda,  daughter  of  Malisius  Earl  of  Strathern,  and  Robert  Tonny, 
her  husband,  of  certain  manors  in  England.  (Cal.  Rot.  Pat.  p.  83.) 
Robert  must  have  been  her  first  spouse ;  and  there  is  a  confirmation 
by  Robert  I.  to  "  Matilda,  the  wife  of  Robert  Ardesh  (Arde),  Robert 
instead  of  "  Weylandus,"  as  above,  being  apparently  his  Christian 
name.     (Rob.  Ind,  pp.  26.)    There  is  a  reference  in  a  Chamberlain 


IN  SCOTTISH  PEEHADES,  &iC.  663 

Thomas  Bishop  of  Urkoey,  about  the  middle  of  the  15th  cea- 
tury,  that  the  direct  representation  of  Malise  Earl  of  Stra- 
tbem,  includlDg  all  successions,  and  that  to  the  Earldom  of 

Roll  for  1330  and  I33I,  to  "dudum  Comes de;9fnifbern,"  and  tli«  rents 
"  quarte  partis  Oalhanie,"  to  which  he  had  been  entitled,  it  being  cor- 
roborated by  an  authority  to  bo  sliortly  quoted — independently  of  the 
possession  of  Cailhnees,  by  other  evidence — tbat  "  Xalite  E/irl  of 
Strathem  "  wag  "  Earl  of  Caithnesg  and  Orkney."  E^rl  Malise,  as  eldest 
parcener,  had  the  first  principal  [lorttoii,  and  there  were,  as  can  be  also 
instructed,  younger  Caithness  co-heirs.  There  is  a  confirmation  by 
Robert  II.  in  1374,  to  David  Stewart,  his  son,  "  et  heredtbut  tuit,"  of 
l\\e  "  Comilatut"  of  Stralhem,  upon  the  resignation,  and  quitclaim 
**  Alexandri  de  Arde"  thc/omif  r  possessor,  to  bo  held  in  the  same  way, 
as  by  him,  and  his  " antfcrsmret."  (Regist.  Rob.  II.  p.  138.)  And 
David  obtained  another,  from  the  King  in  that  year,  of  the  castle  of 
Brathwell,  and  all  Lordships  and  rights  "  lam  m  oamitalu  Cathan'ie 
qaam  alibi— <nie^erun(  Alejandri  de  k  Arde,  quitcunque  successione 
hertditaria  ipsnm  contiugentes,  Tel  contingentia,  ralione  MatUde  de 
Stratheme  matris  »ue."  {Jbid.  p.  169.)  The  rcgrant  is  upon  the  re- 
signation ot  Alexander,  goleiy  the  heiT-/emiUe.  David,  in  virtue  of  this 
title,  from  standing  in  hit  shoes,^  and  from  mere  grants  of  the  fief^,  or 
"  eomitatui," — thus,  as  over,  in  refutation  of  Lord  Mansfield — became 
"  Earl  of  Stiathem,  and  Caithness,"  and  is  so  accordingly  described  in 
a  chartor  in  1379.  {Ibid.  p.  142.)  There  was  likewise  a  confirmation 
by  David  II.  who  succeeded  in  1320,  of  an  antecedent  "  contract,  and 
marriage  betwixt  Malitiut  Earl  of  Stratheme,  Cailhnet,  and  Orkney, 
and  William  Earlof  Rmi,"  (Rob.  Inil.  p.  fil.)  And  lastly,  there  is  a 
charter,  April  23, 1391,  (confirmed  by  Robert  III.)  by  "  Ifetiricvs  de 
Sanelo  Claro,  Cornea  Oreadie,"  &c.  {who  is  proved  by  a  deed  in  1396,  in 
the  Perth  Charter- chest,  to  have  hod  lands  in  Norvxty),  to  David,  his 
brother,  of  certain  heritable  ScottLth  property,  in  lieu  of  any  claim  or 
interest  "  in  psrtibus  Oreadie,  et  Schetiandie  "  competent  to  him,  "  ra- 
tione  Isabelle  de  Saneto  claro  matris  sne."  (Reg.  Rob.  III.  p.  106.) 
The  line  thereafter  of  the  Sinclairs,  Earls  of  Orkney  and  Caithness,  is 
ascertained  by  records  and  deeds  in  private  Charter- chests. 

It  strikes  me,  that  the  statement  at  the  outset,  not  supported  either 
by  the  most  inferior  testimony,  whatever  want  of  explicitness  *•"■" 
may  be  in  some  particulars,  is  thus  borne  out — remarkably  in  i 
antiqua — in  essentials,  by  strict  authorities,  from  whence  it  resul 
the  right  to  the  Earldoms  of  Strathem  and  Caithness  descenij 
common  law,  to  Alexander  de  An),  through  &  female,  Matilda  d' 
theme,  his  mother  ; — while,  further,  upon  the  whole,  we  have  ft 
relevant  demonstration  that  Caithness  had  previously  vested, 
same  way,  in  Malise  Earl  of  Strathem,  her  anoostor  ;  for  bi^ 
descent  can  be  instructed  to  have  been  different  from  that  of  A 


562  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

be  DOW  likewise  held,  in  virtue  of  the  additional  evidence  I 
submit,  to  have  repeatedly  descended  to  female  heirs.  ^  The 
allegation  in  the  formal  attestation  I  have  appealed  to,  by 

.  ^  By  a  formal  and  solemn  Latin  attestation  of  Thomas,  Bishop  of 
Orkney,  at  request  of  William  Sinclair,  Earl  of  Orkney  and  Caithness, 
about  the  middle  of  the  15th  century,  (though  there  be  a  clerical  error 
in  the  date)  given  in  Wallace's  account  of  Orkney,  (p.  121,  et  seq,)  and 
in  Orkney inga  Saga,  (p.  545,  et  seq,)  it  is  instructed  that  Magnus,  Earl 
of  Caithness  and  Orkney,  who  addressed  the  letter  to  the  Pope  in  1320, 
(see  Anderson's  Dtp.  Scot,  cart,  u.),  was  succeeded  in  these  Earldoms 
by  "  Malisius  Comes  de  Strathem — Hnealiter—jurehereditariOy'  through 
&  female  ; — ^that  Earl  Malise,  by  his^r*^  wife,  a  daughter  of  the  Earl  of 
Menteith,  had  Matilda^  an  only  child,  who,  by  Weylandus  de  Arde, 
had  Alexander  de  Arde,  which  last  again,  "  ratione  sue  matrii^ure 
Regi^i  ScotiCy  et  consuetudine  hereditario,**  (these  are  remarkable  and 
conclusive  words),  succeeded  Earl  Malise  in  the  principal  messuage  of 
the  Earldom  of  Caithness,  including  the  dignity, "  appeUatione  Comiti^y* 
together  with  lands  in  Orkney ; — that  the  said  Alexander  sold  to  Ro- 
bert II.  "  comitatum  de  Cathnes— et  omnia  alia  jura — ratione  matris 
ejus — ^tanquam  ad  antiquiorem  sororem  jure,  et  consuetudine  regnorum 
Scotie,"  &c. — thus  shewing  we  did  not  admit  abbeyance ; — and  finally, 
that  Alexander  dying  childless,  the  lineal  representation,  and  rights 
devolved  to  the  heirs  of  Sir  W^illiam  Sinclair  by  his  wife,  a  daughter 
and  coheiress  of  the  above  Malise,  Karl  of  Strathem,  by  his  second  mar- 
riage with  a  daughter  of  Hugh  Earl  of  Soss,  of  whom  came  Henry 
Sinclair,  and  the  subsequent  Earls  of  Orkney  and  Caithness.  By  ge- 
nuine charters  also,  given  by  Torfaus  in  his  History  of  the  Orkneys, 
in  1^57  and  1375,  (pp.  173-4),  it  is  proved  that  "  Malise  Earl  of  Ork- 
ney "  had  a  lawful  heir  to  that  Earldom, — identically  as  instructed. 
"  Alexander  de  Ard — ^nobilis  vir,"  &c.  who  was  confirmed  in  Orkney, 
as  its  captain  and  administrator,  by  Hacquin,  king  of  Norway  and 
Sweden ;  and  that  Hacquin,  in  1370,  made  Henry  Sinclair  Earl  of 
Orkney.  (Ibid.  p.  174.)  Having  made  this  statement,  we  shall  next 
see  how  it  is  supported  by  authentic  evidence  with  us.  There  is  a 
confirmation  by  Robert  I.,  who  reigned  from  130C  to  1329,  of  a  grant 
by  "  Malisius  comes  de  Strathei'n — Johanne  filie  quondam  Joannis  de 
Menteith  sponse  sue.**  (Rob.  Ind.  p.  18.)  The  latter  was  son  of  an 
Earl  of  Menteith,  so  the  discrepancy  here,  in  part,  from  the  relative 
notice  above,  is  not  great.  There  is  a  grant  by  Edward  II.  in  1318,  to 
Matilda,  daughter  of  Malisius  Earl  of  Strathem,  and  Robert  Tonny, 
her  husband,  of  certain  manors  in  England.  (Cal.  Rot.  Pat.  p.  83.) 
Robert  must  have  been  her  first  spouse ;  and  there  is  a  confirmation 
by  Robert  I.  to  "  Matilda,  the  wife  of  Robert  Ardcsh  (Av^e),  Robert 
instead  of  "  Weylandus,"  as  above,  being  apparently  his  Christian 
name.    (Rob.  Ind.  pp.  26.)    There  is  a  reference  in  a  Chamberlain 


IN  SCOTTISH  PEERAGES,  &C.  563 

Thomas  Bishop  of  Urkney,  about  the  middle  of  the  15th  cen-^ 
tury,  that  the  direct  representation  of  Malise  Earl  of  Stra- 
them,  including  all  successions,  and  that  to  the  Earldom  of 

Roll  for  1390  and  1331,  to  <<  dudum  Comes  de  Straihem,"  and  the  rents 
"  quarte  partis  Cathaniey^  to  which  he  had  been  entitled,  it  being  cor- 
roborated hj  an  authority  to  bo  shortly  quoted — independently  of  the 
po^ession   of   Caithness^   by  other  evidence — that  "  Malise  Earl  of 
Strathern  "  was  "  Earl  of  Caithness  and  Orkney*^    Earl  Malise,  as  eldest 
parcener,  had  the  first  principal  portion,  and  there  were,  as  can  be  also 
instructed,  younger  Caithness  co-heirs.    There  is  a  confirmation  by 
Robert  II.  in  1374,  to  David  Stewart,  his  son,  "  et  heredibus  suis"  of 
the  "  Comt'/a/M* "  of  Strathern,  upon  the  resignation,  and  quitclaim 
"  Akxandri  de  Arde,*  the  former  possessor,  to  be  held  in  the  same  way, 
as  by  Wm,  and  his  *' antecessores»*^     (Regist.  Rob.  II.  p.  138.)    And 
David  obtained  another,  from  the  King  in  that  year,  of  the  castle  of 
Brathwell,  and  all  Lordships  and  rights  **  tarn  in  comitatu  Cathanie 
quam  alibi— que yiierun^  Alexandri  de  le  Arde,  quacunque  successione 
hereditaria  ipsum  contingentes,  vel  contingentia,  ratione  MatUde  de 
Stratheme matris sue**    {Ibid,  p.  159.)    The  regrant  is  upon  the  re- 
signation of  Alexander,  solely  the  hm-female.    David,  in  virtue  of  this 
title,  from  standing  in  his  shoes^  and  from  mere  grants  of  the  fiefs,  or 
"  comitatusy* — ^thus,  as  ever,  in  refutation  of  Lord  Mansfield — became 
*'  Earl  of  Strathern,  and  Caithness,"  and  is  so  accordingly  described  in 
a  charter  in  1379.    (Ibid.  p.  142.)    There  was  likewise  a  confirmation 
by  David  II.  who  succeeded  in  1329,  of  an  antecedent  "  contract,  and 
marriage  betwixt  Malisius  Earl  of  Stratheme,  Caithnes,  and  Orkney, 
and  William  Earl  of  Ross"    (Rob.  Ind.  p.  51.)    And  lastly,  there  is  a 
charter,  April  23, 1391,  (confirmed  by  Robert  III.)  by  "  UenHcus  de 
Saneto  Claro,  Comes  Orcadie,'  &c.  (who  is  proved  by  a  deed  in  1396,  in 
the  Perth  Charter-chest,  to  have  had  lands  in  Norway  J,  to  David,  his 
brother,  of  certain  heritable  Scottish  property,  in  lieu  of  any  claim  or 
interest  **  in  partibus  Orcadie,  et  Schetlandie  "  competent  to  him,  "  ra- 
tione Isabelle  de  Saneto  claro  matris  sue."    (Reg.  Rob.  III.  p.  196.) 
The  line  thereafter  of  the  Sinclairs,  Earls  of  Orkney  and  Caithness,  is 
ascertained  by  records  and  deeds  in  private  Charter-chests. 

It  strikes  me,  that  the  statement  at  the  outset,  not  supported  either 
by  the  most  inferior  testimony,  whatever  want  of  explicitness  there 
may  be  in  some  particulars,  is  thus  borne  out — remarkably  in  re  tarn 
antiqua — ^in  essentials,  by  strict  authorities,  from  whence  it  results  that 
the  right  to  the  Earldoms  of  Strathern  and  Caithness  descended,  at 
common  law,  to  Alexander  de  Ard,  through  &  female,  Matilda  de  Stra- 
theme, his  mother  ; — while,  further,  upon  the  whole,  we  have  fair  and 
relevant  demonstration  that  Caithness  had  previously  vested,  in  the 
same  way,  in  Malise  Earl  of  Strathem,  her  ancestor ;  for  his  male 
descent  can  be  instructed  to  have  been  different  from  that  of  Magnus 


664  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Caithness,  with  the  dignity^  descended  to  Alexander  de  Ard, 
in  right  of  his  mother,  the  eldest  co-heiress,  ^*jure  et  consue^ 
tudine  regnorum  ScotiCy'^  is  especially  observable,  and  corro* 
borative  of  the  female  descent  in  dignities  by  our  peculiar  le- 
Succession  of  gsil  practice.      The  voice  of  the  fifteenth  century  is  thus 
**®*"^*J?^*     clearly  against  that  of  Lords  Mansfield  and  Rosslyn  only  in 
iaw,~which  is  the  nineteenth.     It  is  hence  impossible  to  conceive  a  more 
their'fe.vour  *°  copious  induction,  SO  cofigruent  in  details,  or  such  conclusive 
and  striking  evidence  of  a  fact  in  ancient  times.     It  is  also  re- 
markable, that,  although  constituted  by  patent,  our  highest 
dignities,  such  as  Dukedoms,  at  this  day,  agreeably  to  the  origi- 
nal rule,  are  mostly  descendible  as  above.     Such  being  the 

Earl  of  Caithness  and  Orkney, — so  that  he  could  have  alone  taken — as 
he  is  explicitly  stated  to  have  done— as  his  Ytm-female,  Hence  we 
have  now  the  irresistible  fact,  that  aU  our  old  Earldoms,  even  includ- 
ing March,  as  was  observed,  went,  like  lands,  simply,  to  heir»  generai. 
It  appears  that  Malise  Earl  of  Strathcrn,  &c.  in  the  reigns  of  Robert  I. 
and  David  II.  was  vacillating  in  his  politics,  and  had  forfeited  Stra- 
them,  (see  Rob.  Ind.  p.  66),  at  least  that  it  had  escheated  to  the  crown 
in  consequence  of  a  transaction,  who  therefore  gave  it,  as  can  be  legally 
proved,  in  1343,  to  Maurice  Murray,  and  the  heirs-male  of  his  body. 
After  his  male  failure,  and  a  separate  conveyance,  the  forfeiture,  it  is 
clear,  was  either  found  invalid,  or  rescinded ;  for  otherwise,  there  could 
have  been  no  occasion  for  the  resignation  of  the  Earldom  by  Alexan* 
der  de  Ardc,  the  heir-general,  in  1374,  (see  above).  It  was  natural,  in 
the  interval,  to  grant  it  to  Maurice,  a  loyal  person,  and  descended  too 
(though  more  remotely  J  in  the  female  line,  as  can  be  proved  J)y  deeds 
in  the  Abercaimy  Charter-chest,  from  the  Earls  of  Strathem.  His 
family  never  claimed  the  Earldoms  of  Strathem  or  Caithness,  &c.  I  state 
this  because  the  Murrays  of  Abercaimy,  of  whom  Earl  Maurice  was, 
have  been  represented  erroneously  to  bo  the  nearest  heirs-general  of 
Strathern.  It  is  a  fable  likewise,  that  Malise  Earl  of  Strathem  had  a 
daughter  married  to  John  Earl  of  Warren  and  Surrey,  as  has  been 
asserted,  although  the  last,  an  Englishman,  had  a  grant  of  the  Earl- 
dom of  Strathem.  The  old  Earldom  of  Menteith,  as  Lord  Hailes  has 
shewn,  was  held  by  two  female  heirs  in  the  13th  century,  the  wives 
respectively  «f  Sir  John  Russell,  or  "  Buseellus"  and  of  Walter  Stew- 
art. Their  Christian  names,  formerly  unknown,  were  Isabella  and 
Mary^  as  I  can  prove  by  authentic  deeds  in  the  Douglas  and  Grant 
Charter-chests.  Both  their  husbands  are  also  there  specially  mention- 
ed. The  devolution  of  the  Moray  Earldom  to  the  coheiresses  in  the 
15th  century,  one  of  whose  names,  as  usual,  is  misrepresented  by  **  the 
Peerage  writers,"  will  be  afterwards  noticed. 


IN  SCOTTISH  PEERAGES,  &C.  565 

case,  how  much  it  must  astound,  nay,  even  petrify  us,  when  we 
find  it  assumed,  and  conclusively  founded  upon  in  the  Cassilis 
case, — shewing,  nevertheless,  the  stress  put  upon  ancient 
practice, — that  there  was  (of  old)  only  one  precedent  of 
thefenuxle  descent  of  an  Earldom,'  merely  of  Buchan  in  the 
sixteenth  century ;  ^  and  that  although  the  Earl  of  Ruglen  and 
March,  the  heir-female,  justly  condescended  upon  nine  of  the 
old  Earldoms  that  have  been  noticed  to  the  same  effect,  ^  Glaring  error 
Lord  Mansfield  (as  also  Lord   Hardwicke  after  him)  chose  *"^,*"**'®P'^®' 

.^  .  ...  .  nentation  here 

Utterly  to  shut  his  eyes  against  them,  (for  it  is  indeed  difficult  of  Lords  Mans. 
to  suppose  they  could  have  escaped  him,  having  been  ad- J^®Jjj[  *°^  ^"**' 
duced  in  the  previous  Lovat  claim  in   1730,  at  least  they 
ought  not,X  and  most  erroneously  to  affirm,  that  his  Lordship 
*'  has  only  been  able  to  bring  one  instance  of  an  Earldom 
(Buchan)  descending  to  a  female ! !  "  ^     What  must  be  now 

^  Lord  Hardwicke  generally  asserted,  "  There  has  been  only  one  in- 
stance proved  of  the  descent  of  a  Peerage  to  an  beir  female,  where  no 
patent  appeared,  therefore  when  the  instrument  (of  creation  J  is  lost,  I 
think  there  is  the  strongest  presumption  in  favour  of  the  heir  male,  and 
I  think  this  is  by  much  the  safest  method  of  proceeding  in  cases  of 
ancient  Peerages."  (Mr.  Maidment's  Pub.  p.  68.)  He  alludes,  as 
will  be  seen  immediately,  to  the  later  instance  of  Buchan.  There  can 
hardly  be  conceived,  I  submit,  a  more  rash  and  unfounded  conclusion. 

■  When  the  fief  was  altered  in  favour  of  heirs-female,  and  Christian, 
Countess  of  Buchan,  succeeded,  about  the  middle,  as  heir  of  John  Mas- 
ter of  Buchan,  her  father,  and  £arl  John,  her  grandfather.  The  hon- 
ours also  went  to  the  female  heir  of  line  at  the  beginning  of  the  17th 
eentury.    Buchan  was  exactly  in  pari  casu  with  the  cases  premised. 

•  Those  of  Athole,  Angus,  Buchan  {'anciently J  Fyfe,  Lennox,  Mar, 
Menteith,  Ross,  and  Strathern.  (See  case  for  the  Earl  of  Ruglen  and 
March,  ut  sup,  p.  29.)  The  noble  claimant  besides  appealed  to  other 
later  female  descents  of  honours.    (IbitL) 

*  He  then  adds,  "  But  the  force  of  this  instance  (in  the  16th  century) 
was  taken  off  by  the  resignation  and  new  grant  of  the  honour  in  favour 
of  the  heir  female,  with  the  express  consent  of  the  heirs  male."  (IbitL 
p.  49.)  But  he  is  here  again,  as  almost  constantly  in  such  matters, 
signally  incorrect,  for  there  was  no  resignation  of  the  Aonour,  as  he 
would  have  found  upon  inquiry.  There  was  only  so,  of  the  fiefs  and 
lands,  which  he  even,  at  a  far  earlier  period,  chose  to  affirm,  in  the 
Sutherland  case,  (as  will  be  immediately  seen),  had  no  influence  upon 
the  honours.  The  allegation,  too,  even  affected  grants  of  a  "  Comi  ta- 
lus,'* and  of  the  former  simply.  It  in  fact  appears,  as  may  be  fur- 
ther afterwards  evident,  that  the  conveyance  of  a  fief  or  comitatus 


566  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

thought  of  the  fairness,  accuracy,  and  precision,  with  which 
our  Peerage  claims  were  then  canvassed  ?  Or  what  reliance 
can  be  placed  in  the  main,  upon  what  has  been  termed  '^  Lord 
Mansfield's  I^aw/*  so  much  lauded  by  his  creatures  and  de- 
pendants, the  foundations  being  so  faulty  and  bad  ?  He  is 
here,  indeed,  driven  to  great  straits  ;  for,  contrary  to  the  just 
state  of  things,  as  Lord  Hailes  has  instructed, '  he  would  in- 
culcate that  the  Earldom  (^^  Comitatus'*)  of  Strathern,  in  the 
14th  century,  under  a  grant,  "  hceredibus  suisj'  went  to 
Other  such,  of  heirs-male, — boldly  seeking  to  identify  then  karedes  suos 
'  with  hasredes  masculos  ;^  when,  in  fact,  the  heir-female  legally 
did  succeed,  was  not  only  Countess  in  her  own  right  during 
her  entire  lifetime,  but  gave  the  dignity  both  to  her  husband 
(by  the  courtesy)  and  to  her  son.  ^  And  he  would  support 
this  by  the  veracious  testimony  of  Buchanan  in  the  1 6th  cen- 
tury, ^  so  little,  as  every  antiquary  knows,  to  be  trusted  in 
such  details,  and  so  often  inaccurate  and  faulty  in  minutiae 
who  states,  that  Strathern  was  considered  a  masculine  fief  I 
His  Lordship  here,  moreover,  admirably  illustrates  the  confi- 
dent proposition  of  some  English  lawyers,  that  in  a  Scottish 
Peerage  claim  the  House  of  Peers  only  decide  upon  the 
strictest  evidence,  and  never  upon  a  printed  book,  such  as  Bu- 
chanan's History,  that  was  hence  relied  on ;  while  his  thus 
founding  upon  the  grant  of  Strathern  in  question,  though 
simply  of  the  "  comitatusy* *  as  including  the  dignity,  is  in 
excellent  keeping  with  his  recondite  and  apposite  finding, 
subsequently  in  the  Sutherland  claim  in  1771,  that  such  iden- 
tical grants  in  the  case  of  Sutherland,  and  in  the  very  same 
century,  do  not  "  afiect  the  title,  honour,  and  dignity  of  Earl, 
— but  operate  as  conveyances  of  the  estate  on/y."  ® 

'Jlie  ancient,  or  Longobardic  feudal  principle  in  succession, 

sometimes  carries  honours,  and  sometimes  not,  just  as  may  suit,  in 
Lords  Mansfield's  and  Rosslyn's  estimation,  (see  p.  259,  notc)^  in  order 
to  aid  their  argument. 

*  See  Sutherland  case,  Chap.  V.  Sec.  13,  pp.  56-0-7-8. 
»  Mr.  Maidment's  Pub.  pp.  48-9. 

*  Lord  liailes,  ut  sup,  *  Pub.  nt  sup.  p.  49. 

•  Being  that  formerly  alluded  to,  by  Robert  II.  to  David  Stewarf, 
his  iioii,  upon  the  resignation  of  Alexander  de  Ard. 

•  Lords'  Journals. 


IN  SCOTTISH  PEERAGES,  &C.  567 

in  favour  of  males  only,  came,  as  is  well  known,  to  be  soon  in-  ow  Longobar- 
frioged  upon,  while  the  feudal  law  continued  in  other  re- never  here  ap- 
^ects,  even  supposing,  what  cannot  be  instructed,  that  the  P^*®J*  *"  ^°^" 
former  was  ever  recognised  in  Scotland.     It  is  amusing,  and 
shews  the  extreme  difficulty  to  which  the  impugners  of  this 
doctrine  were  here  reduced,  that  they,  including  Sir  Robert 
Gordon,  the  unsuccessful  counter  claimant  in  the  Sutherland 
case,'  can  alone  ground  their  argument  upon  the  general 
feudal  treatise  of  Craig,  who,  besides,  seldom  troubled  him- 
self with  Scottish  illustration,  and  which,  even  when  he  at- 
tempts, be  often  so  signally  perplexes  and  misrepresents.    And 
hence  from  all  that  has  been  premised,  grounded,  as  it  is, 
upon  the  general  and  concurrent  understanding  of  law, — il- 
lustrated, indeed,  by  the  very  descent  of  the  Crown,  that 
could  not  have  been  overlooked,  from  the  earliest  epochs, 
even  down  to  the  present  moment, — the  ratio  or  test  pro- ^a/to  adopt- 
posed  by  Lord  Mansfield, — that  of  our  original  practice,  in-  Man&fieW  in 
stead  of  aiding  him,  makes  glaringly  the  other  way ; '  and  in-  Cassiiia  cmc, 
stead  of  defeating,  ought  to  have  been  conclusive  in  favour  of  jusOy  gi^en  the 
the  Earl  of  Ruglen  and  March,  the  female  claimant.  ^     Cer-  ^^^^J^^  ^^° 
tainly,  with  the  greater  reason,  as  he  admitted,  quite  at  va- 
riance again  with  his  doctrine  in  the  subsequent  Sutherland 
claim,  ^  where  he  draws  so  wide  and  preposterous  a  distinc- 
tioB  between  such,  that  the  title  of  honour  "  cannot  be  sup- 
posed to  descend  in  a  different  channel  from  the  lands,*' ^  at 
the  time  of  its  constitution ;  while  we  have  seen  that,  at  that 
very  period,  the  fief  of  Cassilis,  and  the  entire  family  estate, 
then  most  large  and  affluent,  stood  to  heirs* female.^     His 
Lordship,  in  fine,  I  submit,  has  displayed  the  utmost  igno- 
rance and  misapprehension  of  our  peculiar  laws  and  institu- 

*  See  his  printed  cases. 

*  Lord  Bankton  also  presumed  directly  in  favour  of  hcirS'/etnale  in 
the  ease  of  honours,  under  the  present  circumstances,  (see  p.  371,  note.) 

■  Afterwards  Duke  of  Queensberry,  well  known  on  the  turf.  He 
had  talents,  but  not  those  of  his  political  preilecessors,  and  was  less 
anxious  for  the  honours  than  the  estate  of  Cassilis,  which  he  likewise 
nnsucoessfully  claimed,  being  excluded  from  it  by  a  modem  entail. 

*  To  bo  afterwards  stated. 

*  Seo  Mr.  Maidment's  Pub.  p.  48. 

*  Sec  also  here,  Lord  Bankton,  vt  tup.  p.  371. 


668  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

tions,  and  ancient  doctrine  and  practice,  sacrificing  all  to  an 

unnatural  and  arbitrary  modern  rule,  little  pardonable  in  a 

Scottishman ;  and  falls  into  the  error  that  not  unfrequently 

misleads  our  lawyers,  owing  to  their  proneness  to  foreign  and 

irrelevant  illustration,  ^  in  exclusion  of  our  own,  which  ought 

alone  to  be  consulted,  and  to  govern  when  discoverable. 

OKI  constitu-        So  far  as  any  thing  has  reached  us,  touching  the  constitu- 

nUies?  so  far  as  tion  and  desccut  of  our  earliest  Earldoms,  we  are  still  fully 

lan  be  ^een,   justified  in  the  main  conclusion.     There  is  a  charter  of  con- 

alao  deciuodly  ,  . 

against  him.  firmatiou  simply,  not  proceeding  upon  a  resignation,  by  Alex- 
ander II.  March  1,  1224,  to  Malcom  of  FyflF,  the  son  of  Earl 
Duncan  of  Fyfe,  of  the  "  Comitatum  of  Fyfe,"  with  "  socco, 
et  sacca — furca,  et  fossa — Tol  et  Them  et  infangenthef,"  the 
higher  feudal  prerogatives, — to  be  held,  not  by  the  heirs-male 
of  his  body,  as  Lord  Mansfield  would  have  insisted,  but 
"  sibi,  et  heredibus  suis,  de  nobis,  etheredibus  nostrisJ*  This 
last  adjunct,  if  any  doubt  could  be  entertained  upon  the  sub- 
ject, inevitably  fixes  that  heirs-general  were  called  by  the  li- 
mitation under  "  heredibus,"  because,  independently  of  the 
natural  and  technical  import  of  the  term,  it  is  here  employed 
to  denote  the  heirs  to  the  £rown,  who  were  incontestably  so. 
But  this  is  not  all,  for  the  confirmation  states  that  the  tenure 
is  to  be  in  the  same  terms  as  the  original  grant  and  confirma- 
tion respectively  of  the  "  Comitatus,"  by  the  Kings  David  and 
William,  which  first  succeeded  in  1124,  and  died  in  1153,  to 
the  family  ;  and  from  whence  we  may  conclude,  that  this  the 
original  cardinal  title — as  far  as  is  yet  known — was  also  here" 
dibus  suis.^     Nor  can  it  escape  attention  that  the  landsgiven, 

'  This  was  evident,  in  reference  to  part  of  our  Bench  and  lawyers  at 
the  close  of  the  17th  century,  and  afterwards, — from  their  founding 
upon  the  old  Longobardic  doctrine,  as  influencing,  and  ruling  in  the 
question  of  precedency  between  the  Earls  of  Crawford  and  Sutherland, 
&c. ;  and  it  is  singular  that  that  was  the  only  feasible  Scottish  prece- 
dent Lord  Mansfield  could  appeal  to  in  the  Cassilis  decision.  As  may 
be  shewn  in  a  future  place,  the  error  even  operated  in  conveyances  at 
the  period,  and  perverted  the  true  and  natural  import  of  our  law  dic- 
tion. 

'  The  confirmation  referred  to,  which  is  not  noticed  by  Lord  Uailes, 
is  verbatim  inserted  in  a  volume  of  the  Macfarlane  MSS.  in  the  Advo- 


IK  SCOTTISH  PEERAGES,  &C.  569 

under  royal  authority,  in  1214,  by  "  Maurice  junior^'*  the 
successful  competitor  for  the  Earldom  of  Menteith,  as  an  in* 
demnity,  or  kind  of  compromise,  to  the  daughters  of  '^  Earl 
Maurice  senior,''  his  brother,  who  had  taken  the  dignity,  are 
to  be  held  by  the  same  ^^  et  earum  heredes  qui  de  illis  veni- 
unt."  *  We,  in  short,  everywhere  meet  at  the  earliest  periods, 
in  evidence  that  can  be  trusted,  with  the  practice  of  the  des- 
cent of  lands,  fiefs,  dignities,  and  ofSces,  to  heirs-general  in- 
stead of  heirs-male  alone,  as  Lord  Mansfield  and  others  have 
maintained.  Nay,  there  has  been  no  authentic  trace  yet  found 
in  Scotland  of  the  Longobardic,  or  original  feudal  principle 
in  this  respect,  discoverable  elsewhere. 

In  perusing  the  speeches  of  the  legal  dignitary  in  question,  various  errors 
and  of  Lord  Hardwicke  in  the  Cassilis  claim,  there  will  in-  °^  ?*l®-^°'?®'^', 

and  Lord  Hard- 
deed  be  found  much  to  irritate,  and  astound  a  Scottish  law-  wicke,  in  the 

yer,  and  try  his  nerves  and  patience  to  the  utmost, — perhaps  ^****^"  *^"®- 

as  fully  as  the  discordant  sounds,  the  enraged  harmonist,  in 

Hogarth's  noted  delineation — while  their  jarring  effects  are 

more  lasting.     For  instance,  that  Scottish  honours  were  first 

but  **  masculine  fiefs," — that  Peerages  and  offices  were  then 

"  certainly  **  so, — that  "  territorial  dignities  ceased  long  be* 

cates*  Library.  I  many  years  ago  gave  an  excerpt  of  it  to  Mr.  Hamil- 
ton, ^en  engi^ed  in  his  unsnccessfal,  and  unavailing  case  for  Miss 
Lennox  of  Woodhead,  in  reference  to  the  Earldom  of  Lennox.  Lord 
HaUes  also  quotes,  from  the  Chartulary  of  Lennox,  the  confirmation 
by  Alexander  II.  in  1238,  of  the  Comitatns  of  Lennox,  to  Maldoveny 
filio  Alwini  Comitis  de  Levenax,  ''  et  heredibus  auiSy  quern  pater  ejus 
tenuit."  (See Sutherland  case,  Ch.  V .  Sec.  10,  p.  39.)  The  same  authority 
(ibid.  Sec  8,  p.  35)  gives,  from  Selden,  a  renewal  of  the  Comitatus  of  Mar 
by  King  William  in  1171,  in  favour  of  Moignnd,  son  and  heir  of  Gil- 
lodierus  Earl  of  Marr,  to  him  *^  et  heredibus  suis  /"  but  some  objections 
attach  to  its  credit,  and  it  has  been  impugned  by  Chalmers  in  a  printed 
statement. 

^  See  p.  172,  note.  This  curious  illustration  I  some  time  ago  discov- 
ered, and  fortunately  transmitted  to  us  hy  the  English  Patent  Rolls, 
(for  otherwise,  by  the  loss  of  our  Records,  we  would  have  had  no 
knowledge  of  it),  was  of  course  not  known  to  Lord  Hailes.  The  case 
in  dispute  between  the  two  rival  brothers  is  styled  "  loquela — inter 
est  (the  brothers)  de  Comitatu  de  Manenthf*  {Menteith),  into  which 
Maurice,  senior,  (probably  spurious,)  as  turned  out,  had  unduly  entered. 


670  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

fore  the  1424,"  ^ — "  that  hasredesy  without  any  addition,  meant 
heirs-ma/e," — that  to  include  heirs-female  there  must  be  the 
addition  of  quicunque^  ^ — that  in  honours  formerly  there  was 
"  convincing  evidence  of  the  exclusion  of  females," — that 
there  was  "  only  one  instance  proved  of  the  descent  of  a 
Peerage  to  an  heir  female,  where  no  patent  appeared,"^ — from 
which  very  accurate  allegation  it  is  forcibly  concluded  that  all 
in  pari  casu  should  merely  go  to  heirs-ma/e,  generally  without 
redemption, — that ''  Patents  of  honour  in  Scotland,  in  the  time 
of  Queen  Mary,  and  afterwards^  were  limited  to  heirs  male," 
which  therefore  must  enure  to  the  same  end,  and  irretrievably 
rivet  the  male  succession,* — "  that  there  was  no  creation  of 
superior  peerages,  such  as  Dukes,  &c.  without  some  writ  limit- 


*  Mr.  Maidment's  Pub.  pp.  46,  58.  To  these  assertions  I  may 
merely  oppose  the  multiplied  specific  authorities  to  the  contrary,  in 
Lord  Hailes's  Sutherland  case,  without  adducing  various  concurrent 
proof  to  the  same  effect,  from  the  public  Records  and  private  Cliarter- 
chests,  besides  such  in  this  performance. 

'  Mr.  Maidment's  Pub.  pp.  49,  50.  This  broad  assertion  is  a  palpa- 
ble delusion,  fully  disproved  again  by  the  Sutherland  case,  and  our 
Records.  Nay,  the  House  of  Peers  decided  very  recently  in  direct  op- 
position, in  such  identical  abstract  instance,  as  will  afterwards  be  seen — 
tliat  of  the  Barony  of  Polworth,  created  in  1690 — that  under  "  haredes" 
simply,  without  any  strict  enlarging  concomitant,  heirs  female  were 
entitled  to  the  Peerage. 

'  Mr.  Maidment's  Pub.  p.  58.  This  has  been  already  pointedly  re- 
futed, and  could  be  additionally. 

*  Mr.  Maidment's  Pub.  pp.  49, 50.  What  then  becomes  of  the  char- 
ter or  patent  by  Queen  Mary,  dated  July  20, 1566,  of  the  Dukedom  of 
Albany,  with  all  "  Honours  and  Dignities  &c.  belonging'  to  the  most 
noble  rank  of  a  Duke,"  in  favour  of  Henry  Lord  Damley,  her  husband, 
with  limitation  not  to  heirs-male,  but  "  haredibus  suis  de  corpore  suo." 
(Great  Seal  Register.)  And  the  inauguration  and  act  of  creation  can 
be  proved  to  have  followed  on  the  ensuing  22d.  In  terms  of  the  grant 
the  honour  is  identified  with  the  lineal  representation  of  the  Stewarts, 
now  in  the  Archducal  house  of  Austria  Modena.  Queen  Mary  also  con- 
finned  the  Earldom  of  Marr  by  charter,  dated  June  23, 1565,  to  John 
Lord  Erskine,  and  his  heirs-general.  (Ibid,)  As  to  there  being  no 
grants  of  peerages  "  afterwards  "  to  female  heirs,  we  might  as  well  deny 
the  existence  of  the  sun ;  indeed  even  the  greater  portion,  as  has  been 
observed,  of  our  modern  Dukedoms  arc  so  limited. 


IN  SCOTTISH  PEERAGES,  &C.  571 

ing  the  desceniy*^ — that  resignations  of  Peerages  "  were  only 
introduced  to  let  in  heiTS-feinale  11"^  &c.  &c. 

But  Lord  Mansfield,  over  and  above,  has  made  a  brilliant 
discovery,  that  must  convulse  and  electrify  Scottish  legal  anti- 
quaries, and  create  a  much  greater  harmony  than  was  thought 
between  the  political  institutions  of  the  two  countries.    He  has  strange  conceit 
found,  in  the  course  of  his  elaborate  and  successful  investiga-  geid,  that  we' 
tions,  that  we  had  baronies  "  by  writ,*'  as  in  England ;  for  he  ^^  Baronies 
positively  asserts  that  ^'  the  creation  of  the  Lord  of  the  Isles, 
in  1476,  was  by  tvrit,  though  the  Record  only  mentions  "quo 
die  factus  fait  Dominus  Parliamenti."  ^    How  he  verifies  this 
fact,  however,  is  nowise  discoverable,  and  must  defy  con* 
jecture,  only  appealing,  as  he  does,  in  the  shape  of  authority, 
to  the  Record,  which  is  no  other  than  that  of  Parliament,  and 
where  certainly,  under  date  July  1,  1476,  there  is  an  entry  im- 
porting that  James  II L  then  "fecit,  constituit,  creavit,  no- 

^  Mr.  Maidment's  Pub.  p.  67.  To  this  fancy  of  Lord  Hardwicke,  I 
might  perhaps  oppose  the  *^  constitution  "  of  the  Dukedom  of  Lennox, 
dated  August  5, 1581,  without  express  words  of  limitation,  (see  p.  99.) 
The  same  thing  applies  still  more  forcibly  in  the  patents  of  the  lesser 
dignities  of  Balfour  of  Burleigh,  and  Kinclevin,  in  1607,  (see  pp.'100-l.) 
But  the  grants  of  the  Dukedoms  of  Montrose  and  Ross,  in  1489,  and 
1503  respectively,  were  only  conceived  for  life,  (see  pp.  108-9) ;  and 
pray,  to  come  down  to  much  more  modern  times,  did  Lord  Hardwicko 
never  hear  of  the  patent  of  the  Dukedom  of  Hamilton,  dated  Sept.  20, 
1660,  granted  merely  in  this  restricted  way,  without  limitation  of  a 
**  deteent "  to  William  Douglas  or  Hamilton,  Earl  of  Selkirk.  (Great 
Seal  Register.) 

'  Mr.  Maidment's  Pub.  p.  58.  This  glaring  fallacy  and  absurdity 
will  indeed  astonish  modem  Scottish  lawyers, — there  being  besides  so 
many  such  resignations,  especially  in  the  I7th  century,  as  proved  by 
our  Records,  vice  verga,  ^*  to  let  in  "  heirs  nmle.  Notwithstanding,  I 
shall  add  a  prior  instance  in  refutation.  James  VI.  of  Scotland,  by 
charter,  dated  October  28, 1581,  created  Robert  Stewart  Earl  of  Ork- 
ney, JAtrd  Zetland,  to  him. and  the  h^rs  generally  of  his  body.  (Great 
Seal  Roister.)  In  terms  of  this  grant  the  honours  descended  to  Pat- 
rick, second  Earl  of  Orkney,  his  son  and  heir,  who  obtained,  upon  his 
retignationj  a  regrant  of  the  samcy  dated  March  1, 1600,  to  himself  and 
the  heirs  male  of  his  body,  whom  failing,  to  his  brothers  nominatim^ 
and  the  heirs  male  of  their  bodies,  quite  to  the  exclusion  of  female 
heirs,  who  took  before.  ('Ibid,  J  The  resignation  was  thus,  in  mani- 
fest contradiction,  to  let  in  male  heirs. 

'  Mr.  Maidment's  Pub.  p.  48. 


572  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

minavit,  ct  ab  heraldis  nominari  fecit,  Johannem  de  Ila  Do- 
milium  Insularum,  baronem  baronentem,  et  dominum  Par* 
liamenti  sui."  ^  But  pray,  is  this  all,  did  nothing  more  ob- 
tain? Most  provokingly,  again,  for  his. Lordship's  doctrine, 
and  in  manifest  refutation  of  it,  there  is  there  likewise  inde- 
pendently^ a  royal  charter  or  grant,  dated  July  15,  1476,  being 
the  real  and  substantive  constitution  of  the  honour,  whereby  the 
King  and  Parliament  make  and  create  the  same  individual 
''  dominum  nostri  Parliamenti,  et  baronem — Dominum  Insu- 
larum  perpetuis  temporibus  nuncupandum,"  conferring  upon 
him  at  the  same  time  Isla,  and  various  lands,  expressly  limit- 
ed to  him  and  the  lawful  heirs-male  of  bis  body,  whom  failing, 
to  Angus  his  natural  son,  and  the  heirs-male  of  his  body, 
whom  failing,  to  John,  another  bastard,  and  the  same  heirs, 
Quite  apocrv-  ^^^  *"*  ultimate  remainder  to  heirs  whatsoever.^  So  much 
phal.  for  this  apocryphal  barony  constituted  "  by  writ,"  of  course,  as 

>  Acts  of  Pari,  last  Edit.  vol.  II.  p.  113.  The  creating  the  indivi- 
dual a  Banneret  or  Baronent,  as  well  as  a  Barou,  was  the  form  with 
119  on  these  occasions,  part  of  the  ceremony  consisting  in  the  display  of 
a  banner,  and  snch  Barones  majore*  were  thereby  entitled  to  the  pri- 
vilege of  having  one  (borne  by  a  retainer  before  them'  in  the  field)  of  a 
quadrate  form.  As  indicative  of  the  distinction,  the  antelopes,  sup- 
porting his  arms,  on  the  seal  of  James  Lord  Hamilton,  appended  to 
his  original  Bond  of  Manrent  to  George  Earl  of  Angus  in  1457,  (which 
I  have  seen  in  the  Hamilton  Charter-chest),  bear  respectively  banners 
of  such  shape,  containing  the  armorial  alliances  of  the  family.  This 
is  the  more  remarkable,  being  shortly  subsequent  to  the  creation  of 
the  nobleman  in  question  as  a  Lord  of  Parliament,  which  occurred  in 
1445.  (See  Acts  of  Pari,  last  Edit.  vol.  II.  p.  59.)  The  form  of  creat- 
ing Barons  also  bannerets  prevailed  as  late  as  the  reign  of  James  YI. 
To  quote  one  instance  among  several,  at  the  coronation  of  Anne  of 
Denmark,  his  queen,  in  May  1590,  **  Sir  John  Maitland,  knight  of 
Thirlestane,  {wsa^creat')  Lord  of  Thirlestane  baron,  banorent,  and 
Lord  of  his  highnes  Parliament,  who  past  to  receive  ye  honour  in  a  red 
robe,  his  standard  borne  befoir  him,  conveyed  by  Sir  William  Murray 
of  Tulliebardin,  and  Sir  Archibald  Napier  of  Merchieston."  (From  a 
MS.  account  I  have  seen  of  the  solemnity.)    There  was  also  a  patent. 

'  Acts  of  Pari,  ut  sup.  pp.  189-90.  From  a  consideration  of  the 
evidence  in  the  matter,  it  now  strikes  me  that  the  Macdonalds  of 
Dunovaig  and  Glins,  of  whom  the  noble  family  of  Antrim  are  repre- 
sented as  being  sprung,  eame  to  have  the  right  to  the  lawful  male  repre- 
sentation and  chieftainship  of  these  Macdonalds,  Lords  of  the  Isles. 
I  don't  know  if  any  male  descendant  of  the  Antrim  branch  now  exists. 


IN  SCOTTISH  P£ERAGES»  &C.  573 

held  io  such  instance,  without  mention  of  heirs !  On  the 
contrary,  it  was  constituted  by  an  express  charter,  analogous 
to  a  patent  in  our  days,  though  conveying  also  lands ;  and  we 
cannot  fail  duly  to  appreciate  the  glaring  oversight  of  Lord 
Mansfield,  whom  this  important  extra  notice  utterly  escaped, 
— at  the  very  part  of  the  record,  to  which  he  specially  refer- 
red. The  previous  entry  quoted  was  the  mere  accessory 
form  of  inauguration,  or  solemnity,  of  the  **  Act  of  creation,'' 
as  it  was  called,  which  sometimes  obtained  before,  as  well  as 
afiter  the  grant, — as  in  the  instance  of  the  constitution  of  the 
Earldom  of  Winton,  in  1600.^  But  clearly,  at  one  time  or 
other — independently  of  the  grant  or  charter. 

Under  favour,  however,  of  a  manifest  misconception  of  Lords  Mans. 
the  constitution  of  our  diimities,  both  Lord  Mansfield  and?*^^'**"***^*?"* 

,  ,  lyn  s  apocryphal 

Lord  Rosslyn  were  so  wild  as  to  inculcate,  that  belting,  ^^  ctiic- constitution  of 
tura  gladiij"  a  single^  known  element  of  the  "  act  of  creation,"  bemiJI  wi/y5 
or  ordinary  form  of  inauguration,  alone  sufficed  for  that  pur- 
pose t  And  further  still,  that  by  means  of  such  cabalistic, 
though  mute  rite  exclusively,  an  eloquent  though  mysterious 
Peerage  sprung  up,  miraculously  indicating  its  own  descent, 
— ^namely,  to  heirs-male  of  the  body  t  Such  peerages,  how- 
ever, unfortunately — or  rather  fortunately,  we  must  alone  at- 
tribute to  the  fancy  or  incantation  of  these  legal  wizards; 
but  how  they  should  have  been  restricted  to  the  latter,  when 
the  first  Lord  admits  the  constitution  of  baronies  with  us  by 
writ  of  summons,  which  hence  must  largely  descend  to  heirs- 
general,  may  be  another  difficulty  and  palpable  contradiction, 
that  we  will  leave  his  Lordship  to  explain.  As  to  the  re- 
jection by  him,  of  a  dignity  being  attached  or  annexed  to  *^  the 
capital  seat,  or  some  other  part  of  the  fief,"  '  that  has  been 
already  refuted.^  Lord  Hardwicke,  and  he  also,  in  the 
Cassilis  case,  seem  to  have  been  unaware  of  a  Novoda^ 
muSf  as  our  common  Institutional  writers  would  have  inform- 
ed them,  being  *^  an  original  right."  ^ — But  there  is  no  end  to 

'  See  pp.  49-50.    It  followed  in  the  Albany  case,  see  p.  570,  n.  4. 
'  See  Mr.  Maidment's  Pub.  p.  45.  '  See  pp.  100-10. 

*  See  Mr.  Maidment's  Pub.  pp.  53 — 59.    Erskine's  Instit.  B.  II. 
Tit.  III.  §  23. 


574 


INQUIRY  INTO  THE  LAW  AND  PRACTICE 


Amusing  mit- 
conception  of 
Lord     Hard- 
wicke  in  the 
Cassilis  case. 


these  errors,  and  inadvertencies,  that  bloat  and  disfigure  near«- 
ly  every  part  of  the  Cassilis  procedure. 

Honest  Lord  Hardwicke  was  somewhat  naturally  scared 
at  the  sound  of  the  strange  and  mystifying  office  of  "  Kenky- 
nol"  —  the  obsolete  Gallowidian  right  of  captainship,  or 
chieftainship,  and  taking  ^'  caupes" — thus  explaining  to  our 
English  neighbours,  obscurum  per  obscurius^ — carried  by  two 
charters  to  the  Cassilis  family,  in  1405  and  1450.^  But 
nothing,  after  all,  is  too  difficult  for  an  English  lawyer  in  a 
Scottish  Peerage  claim,  who  at  once,  however,  it  may  be,  cuts 
the  Gordian  entanglement,  and  resolves  the  node.  In  the 
same  way.  Lord  Hardwicke, — as  he  might  have  also  done  in 
the  case  of  the  peculiar  and  congenerous  terms  of  "  Toschea- 
ger^^  and  "  Toiacheuach  darach^^^  and  with  equal  relevancy, 
— thinks  that  the  "  Kenkynol" actually  is  the  "  precedence," 
and  ^^ priority oi  placed'  and  '^  title  and  honour'*  in  parliament, 
due  to  the  Earls  of  Cassilis,  conveyed  with  the  comitatus  of 
Cassilis,  by  the  charters  1642,  and  1671,^  the  meaning  of  which 
last  terms,  although  the  grant  was  not  there  warranted,  is  ob- 
vious I^  He  thus  seeks  to  explain,  by  his  unaided  intuition,  and 
under  the  influence  of  Coke  and  Lyttelton,  what  is  purely 
ancient  Scottish,  and  derived  from  the  remote  institutions  and 
manners  of  the  barbarous  aboriginesy  before  the  Saxon  and 
Norman  colonization.  But  any  thing  better  than  allow  that 
honours,  even  in  the  faintest  manner,  were  affected  by  a  charter. 
"  Kenkynol "  denoted  the  right,  with  arbitrary  ascendency,  in 

*  Great  Seal  Register.  "  Kean"  denoted  the  head,  and  ^^Keand**  a 
tribe  or  family,  in  Gaelic,  thus  corrupted  into  "  Kenkynol." 

■  According  to  Chalmers,  "  the  highest  officer — among  the  Gaelic 
people  of  Galloway."  (Caledonia,  vol,  I.  p.  4.61.)  That  district  was 
like  Wales,  where  the  older  inhabitants  still  retained  their  institutions 
and  customs,  though  conquered  by  the  feudal  Lords  of  the  Saxon  and 
Norman  pale.  In  this  respect,  as  in  other  conquered  countries,  the 
Kings  of  Scotland  were  for  a  time  disposed  to  indulge  them,  the  better 
to  secure  their  obedience  ;  and  in  the  reign  of  David  II.  there  was  a 
charter  to  "  the  men  of  Galloway  anent  their  lawes  and  liberties." 
(Rob.  Ind.  p.  33.)  Malcolm  Earl  of  Lennox,  who  figured  in  the  I3th 
century,  grants  the  Gaelic  office  of  "  Tosheagar  "  of  Lennox,  along  with 
that  of  Forrester  of  the  same,  to  Patrick  Lindsay  in  fee.  (Chartulary 
of  Lennox,  edited  by  Mr.  Dennistou,  p.  49.) 

■  Mr.  Maidment'fl  Pub.  p.  69.  *  See  pp.  558-9. 


IN  SCOTTISH  PEERAGES,  &C.  575 

such  estranged  and  savage  fastnesses  as  Galloway,  comprising 
Cassilis, — as  an  heir-loom  of  their  otherwise  exploded  usages, 
^of  exacting,  under  the  name  of  '^  caupes,"  a  substantial  in- 
fliction and  contribution,  such  as  a  horse,  cow,  and  heifer,  ^  &c. 
by  a  rabid  chief  or  head  of  a  sept  or  clan,  from  his  abject  and  des- 
titute dependents ;  who,  however  redoubtable,  and  feared  by 
them,  could  never,  in  virtue  of  such  petty  tyranny,  which  was 
only  privative  to  his  quarter,  have  claimed,  and  been  allowed 
rank  and  precedence  within  the  walls  of  Parliament,  in  civi- 
lized districts.  The  perquisite  could  never,  little  respected 
as  it  was  in  Saxon  and  Norman -Scotland,  which  at  length 
justly  suppressed  it,  have,  according  to  Lord  Hardwicke,  con- 
stituted public  and  national  pre-eminence,  or  converted  there, 
a  collector  of  cattle  in  Galloway  into  a  greater  dignitary  than 
the  superior  or  ordinary  Barons,  many  of  whom,  independently 
of  regalities  and  paramount  fiefs,  had  rather  more  important 
and  ennobling  offices.  But  what  is  here  clenching,  the  taking 
of  caupes,  the  essential  right  of  the  Kenkynol,  had  been  abo* 
lished  by  Act  1489,  c.  19,  and  still  more  by  Act  1617,  c.  21, 
which  accounts  for  the  latter  not  subsequently  appearing  in 
the  Cassilis  charters  after  1450,  and  of  course  fully  excludes 
its  constructive  conveyance,  by  the  supposed  terms  in  those  of 
1642  and  1671.^  The  misapprehension  of  Lord  Hardwicke 
is  similar  to  that  of  another  English  legal  authority,  as  little 


'  See  Skene,  tub  voce^  **  caupes  in  Galloway  and  Carrick,"  the  pre- 
cise locality  of  Cassilis ;  and  Chalmers  derives  the  term  from  *'  the 
Calpa  of  the  Gaelic  signifying  a  cow,  or  horse, — or  Calpach,  a  heifer, 
a  bollock,  a  colt.''    (Caledonia,  vol.  I.  p.  448.) 

■  The  Act  1617,  c.  21,  "  Anent  dischargeing  of  caulpis — by  the 
chefiis  of  Clannis,"  justly  states  that  the  custom  had  been  discharged 
in  Cralloway  by  an  Act  of  James  lY. ;  and  in  peremptorily  abolishing 
it,  gives  a  striking  picture  of  the  cruelty  and  barbarity  of  the  practice, 
whereby  horses  and  oxen  had  been  pulled  out  of  ploughs  and  harrows  by 
the  chiefs  during  their  greatest  need.  And  this  was  done  repeatedly  by 
rival  chiefs,  who  happened  to  contest  the  privilege,  one  after  the  other. 
(Acts  of  Pari,  last  Edit,  vol.  IV.  p.  648.)  It  transpires  from  the  Act 
1489,  e.  19.  that ''  the  heads  of  kin  in  Galloway  "  had  been  summoned 
to  instruct  their  right  to  the  exaction,  but  had  not  appeared.  (Acts 
ut  sup,  vol.  II.  p.  222.) 


576  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

OfanotherEng-at  a  I088,  who  rendered  our  ^^  umquhile"  {quondam  or  de- 
awyer,    c.  ^^^j^ggj^^  y^j  the  term  humble.  * 

The  new  date  of  our  calendar,  too»  as  subsequently  holds, 
(instead  of  the  25th  of  March,  the  former  commencement  of 
the  year,)  by  Act  of  Privy  Council,  the  27th  of  December 
1599,  in  a  Peerage  claim  not  extremely  recent,  occasioned 
much  surprise.  And  notwithstanding  the  circumstance  is  so 
notorious,  certainly  at  least  with  us,  it  was  regarded  by  some 
of  the  noble  judicatory,  after  being  premonished  by  a  Scottish 
counsel,  as  curious  and  most  important  information.  Nor  is 
it  less  remarkable,  that  one,  not  the  least  distinguished  of  the 
English  counsel  engaged  in  Scottish  Peerage  cases,  was 
equally  surprised  and  electrified,  when  he  learned  that  the 
Session  decided  Scottish  Peerage  claims  instead  of  our 
House  of  PeerSy — an  epithet,  it  must  be  allowed,  foreign  to 
us,  and  adverse  to  our  political  institutions. 
Natural  condu-  AH  this,  again,  forcibly  evinces,  in  order  to  prevent  undue 
above.  delay  by  correction,  which  is  there  a  material  consideration, 

the  importance  of  the  facts  and  necessary  explanations  in  our 
Peerage  claims,  being  first  adjusted  and  settled  by  the  proper 
competent  jurisdiction  of  the  Court  of  Session,  as  Ordinaries, 
instead  of  being  left,  as  has  often  obtained,  and  must  more  or 
less  still  do,  in  the  present  conceived  unnatural  and  inexpe- 
dient state  of  things,  to  rumination,  and  the  likely  conse- 

*  It  is  to  Lord  Hardwicke  we  arc  indebted  likewise  for  the  arbitrary 
preference  of  the  male  to  the  female  succession  in  our  peerages.  Lord 
Mansfield  informs  ns,  in  his  Speech  on  the  Sutherland  claim  in  1771, 
that  **  it  was  settled  with  Lord  Hard  wick  (in  the  Cassilis  instance  be- 
tween them)  that  in  cases  where  no  instrument  of  creation  or  limita- 
tion of  the  dignity  appeared,  the  legal  presumption  was  in  favour  of 
the  heir  male.  The  judgement  was  penned  at  his  sight."  (From  the 
authentic  copy,  Sutherland  Charter-chest.)  It  will  bo  afterwards  in- 
quired whether  even  these  authorities,  supposing  them  to  have  had 
every  qualification  for  the  purpose,  were  thus  entitled  to  coin  or  enact 
such  new  law ;  but  with  all  duo  deference  and  respect  for  them,  may 
we  not  question,  after  what  has  been  set  forth,  their  endowments  and 
competency  in  this  view,  and  their  ability,  even  with  any  degree  of 
safety  or  surety,  to  pronounce  upon  the  speddl  merits  of  a  Scottish 
Peerage  claim.  At  the  same  time  it  must  be  confessed,  that  Lord 
Hardwicke  acquitted  himself  most  sensibly  and  judiciously  in  the  Ox- 
cnford  claim,  in  regard  to  a  modern  matter.    (See  pp.  382-8.) 


^pw^i^^p 


■p 


tm^mmt 


IN  SCOTTISH  PBERAGES^  &C. 


577 


quence  of  palpable  error  and  miaconception.  Lord  March- 
mont,  a  Scottish  nobleman, — the  only  other  Peer  who  spoke 
on  the  Cassilis  occasion, — ^it  must  however  be  confessed,  ac- 
quitted himself  mudi  better,  which  may  be  ascribed,  as  he 
himself  intimates,  to  his  ^^  knowledge  in  the  law  of  Scotland;" 
for  while  he  justly  observes  that  Craig's  "  notions  were  wrong," 
being  <*  all  (like  those  of  some  of  our  modem  lawyers)  de* 
rived  from  the  feudal  law  of  Lombardy," — confirming  what  I 
have  remarked, — ^he,  with  equal  truth,  contends,  that  ^^  cer-  Pertinent  doc- 
tainly  our  succession  was  always  linealj  and  always  ^fiia/e;^^'"®.^^^^^^^ 
and  where  there  was  an  heir-male,  he  was  no  heir  of  law,  but  an 
heir  of  provision."  ^  This  preference  of  beirs-general,  in  con- 
formity, likewise,  to  Lord  Hailes^s  precepts,  ought  to  be  an 
important  and  inevitable  rule  in  favour  of  female  claimants. 

I  have  elsewhere  remarked,  that  our  Peerage  constitutions 
had  formerly  always  more  or  less  of  a  territorial  character. 
And  the  fact  of  there  being  no  formal  erection  of  the  Baronial 
fief  of  Cassilis  before  the  17  th  century,  cannot  be  instanced 
as  peculiar  or  an  exception ;  for  lands,  or  a  reference  to  them, 
might  have  been  contained  in  the  original  grant  of  the  dignity. 
Thus,  the  charter  of  constitution  of  the  Earldom  of  Glencaim, 
dated  May  28,  1488,  confers  upon  Alexander  Earl  of  Glen- 
caim, the  honour  and  dignity  of  Earl  of  Glencaim  and  Lord 
Kilmaurs, — a  form  more  explicit  than  usual ;  but  for  their 
support,  and  increase  of  his  means,  there  are,  at  the  same 
time,  conveyed  the  lands  of  Drummond  and  Duchray,  to  be 
held  by  him  ^*  et  lueredibus  suis,'*^  .  And  this  limitation  eveu 
Lord  Rosslyn  admitted,  on  the  occasion  of  the  Glencaim 
claim  in  1797,  fell  to  determine  the  descent  of  the  honours  in 
the  same  deed, — which  hence  had  still  a  territorial  connection, 
though  not  feudally  erected  into  a  Comitatum, 

The  old  dignity  of  Lord  Kennedy,  conferred  in  the  reign  Dignity  of  Lord 
of  James  II.  though  the  constitution  be  as  little  extant,  wasdrimed^and^ai- 
also  claimed  and  allowed  to  the  heir-male,  upon  Lord  Mans-io^^.<i*<^  h^*>r- 
field's  untenable  ration  in  1762.     It  is  not  in  the  most  remote 
manner  carried  by  any  of  the  deeds  referred  to, — nor  did  it 


Mr.  Maidment'a  Pub.  pp.  42-3. 
Original,  produced  at  the  claim  subsequently  noticed. 

2o 


578  INQUIRY  INTO  THE 'LAW  AND  PRACTICE 

take  its  name  from,  or  give  it  to  a  fief,  however  feudal  the 
form  of  creation  may  have  been ;  so  that  this  Peerage,  dif- 
ferent so  far  from  Lovat,  may  be  the  more  argued  to  be  af- 
fected by  the  principles  of  our  common  law,  in  favour  neces- 
sarily of  heirs-general,  having  never  passed  the  latter,  as  di- 
rectly warranted  by  the  decision  of  the  Session  in  1633,  in  the 
case  of  Oliphant,  the  precedents  of  Salton,  and  Athol,  &c.  &c. 
CuriottB  re-  The  following  curious  notice  is  from  an  autograph  account 

A^  Fe^-  ^y  ^^  ^^*™  Fergusson  of  Kilkerran,   Baronet,  (a  distin- 
son  M  to  Uie    guished  and  highly  respectable  lawyer  in  his  day,)  of  a  con- 
ass  18  case,     versation  he  had  with  Lord  Rosslyn,  on  July  13,  1797,  in  re- 
ference to  Peerage  matters :  ^ — ^'  He  (Lord  Rosslyn)  said. 
Lord  Mansfield  was  clearly  wrong  in  his  opinion  on  the  case 
of  Cassilis,  in  which  he  had  been  misled  by  William  Gordon. 
He  seemed,  however,  to  limit  this  error,  to  his  supposing  a 
presumption  in  favour  of  males  in  the  succession  of  lands, 
and  to  hint  at  a  distinction  between  lands  and  honours.     He 
avoided  saying  that  the  decision  in  the  case  of  Cassilis  was 
wrong,  though  Mr.  Chalmers  ^  assured  me  that  he  had  said 
to  him  that  the  judgment  itself  was  wrong ;  and  Mr.  Grant 
told  me,  that  Mr.  Anstruther  had  said  the  Chancellor  (Lord 
Mossfynj  had  spoken  of  it  in  the  same  terms  to  him." 
ETidenceofthe      Sir  Thomas  Kennedy,  the  heir-male,  founded,  in  support 
male  claimant  of  hb  pedigree,  upon  a  general  service,  of  the  most  recent 
his  pedigree!'    occurreuce,  ou  January  28,  1760,  as  heir-male  of  John,  last 
Earl  of  Cassilis,  which  was  received  without  any  direct  at- 
tempt to  extinguish  nearer  heirs  of  the  same  character,  who 
had  existed,  and  were  not  so  discussed.     The  evidence  of 
Laxity,  and     printed  books  was  also  held  admissible.     So  much  in  behalf 
contradictory,    ^f  ^jjg  confident  and  rash  assertion  of  some  Enfflish  lawyers, 

practice  of  the  i  .  •  i 

House  of  Peers  that  the  Housc  of  Pcors  only  exact  the  strictest  evidence  in 
e°i<SnM "  fn-  °"^  Peerage  claims.     They  have,  it  must  be  confessed,  been 
eluding  retours,  extremely  vacillating  in  this  respect,  owing  to  their  conflicting 
procedure,  placing  our  services  especially  in  a  strange  predi- 
cament ;  but,  in  the  present  instance,  the  male  descent  of  Sir 
Thomas,  the  successful  claimant,   being  legally  made  out, 

^  In  the  Kilkerran  Charter-chest, — ^not  intended  for  the  public  view, 
but  only  as  a  private  memorandum. 
'  James  Chalmer,  the  solicitor  formerly  noticed  ;  see  p.  384,  note  3. 


^aga^m 


IN  SCOTTISH  PEERAGES^  &CC.  579 

while  there  was  no  contradictor,  it  sufficed,  according  to 
Scottish  principle,  which  was  therefore  properly  adopted.  It 
was  also  positively  maintained  by  the  Earl  of  Ruglen  and 
March,  the  heir-female,  that  what  weighed  with  the  Court  of 
Session  in  the  Lovat  decision,  was  the  descent  of  the  Baro- 
nial fief  to  heirs-male,  in  full  corroboration  of  what  has  been 
said  under  that  head. 

But,  said  Lord  Mansfield  at  a  subsequent  period,  in  177 1,  cue  or  tbe3a- 
in  his  Speech  upon  the  Sutherland  claim,  though  somewhat  JJJ°y  ^in^^ea 
previously  hesitating,  ^and  with  just  reason,  ^  now  gathering  and  leoa. 
assurance  and  confidence  after  the  successful  disposal,  ac- 
cording to  his  views,  of  the  Cassilis  case, — as  a  striking  and 
final  corroboration  of  my  doctrine,  I  appeal  to  the  case  of 
Borthwick, — his  own  olT^ring,  likewise,  it  may  be  held,  Decision  much 
daimed  and  maturely  '  decided,  as  he  inculcates,  immediately  Muufieid. 
afker  Cassilis,  in  1762.^    Here  was  an  old  Barony,  (created 
in  the  reign  of  James  II.)  the  constitution  of  which  is  not 
extant;  and  judgment  ^^  went  of  course,"  to  use  his  Lordship's 
words,  in  Ssivour  of  the  claimant,  **  as  the  heir-male  of  the 
body  of  the  person  first  ennobled,**  while  ^^  no  regard  was  had 
to  the  limitations  of  the  estate ;"  and  <*  the  Crown  supplied 
the  claimant  with  money  to  prosecute  his  right."     The  ge- 
neral question  is  ^<  therefore — solemnly  determined."  ^     If 
any  thing  were  wanting,  this  weighty  precedent,  so  fully  and 
advisedly  considered, — certainly  as  much  as  that  of  Mording- 
ton,  formerly  adverted  to,'  and  to  be  further  still,  in  the  se- 

*  He  pre&oes  the  conclusion  of  his  Speech  on  the  Cassilis  claim  with 
intimating,  that  he  delivered  himself  **  with  great  diffidence.'*  (See 
Mr.  Maidment's  Pub.  p.  55  and  p.  43.) 

'  In  the  same  Speech,  in  1771,  upon  the  Sutherland  claim,  he  takes 
credit  for  the  circumstance  of  ^^  an  adjournment  of  the  cause  "  being 
allowed,  after  **  the>Sr<<  hearing,"  to  enable  the  claimant  to  ''  supply 
the  defect"  in  *'  the  eridence  of  the  pedigree— that  did  not  satisfy  the 
House,'* — ^which  was  done  to  their  satisfaction.  This  trivial  delay  was 
little  indeed,  and  especially  insignificant,  considering  the  nicety  and 
great  importance  of  die  matter. 

*  The  claim,  upon  a  petition  to  the  King,  was  referred  to  the  Lords 
on  January  29, 1762,  and  decided  speedily  enough,  on  the  ensuing  8th 
of  April.    (Lords'  Journals.) 

*  PVom  authentic  copy  of  his  Speech  in  the  Sutherland  Charter-chest. 

*  See  pp.  986-6. 


580  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

quely — must  open  the  eyes  of  all  sceptics  and  unbelieversy  and 
constrain  them  to  my  opinion. 

The  remarkable  intervention  of  the  Crown  in  this  instance, 
for  political  and  electioneering  views,  it  must  be  confessed, 
was  rather  partial  and  indecent ;  and  it  ia  di£Bcult  to  see  how 
the  fact,  so  relevantly  introduced,  can  aid  the  argument :  but 
what  will  be  said,  when  it  actually  turns  out  that  the  House 
infactreckieu»of  Peers,  by  this  lauded  decision, — in  reality  bad,  reckless, 
and  bad.  ^qJ  precipitate, — adjudged  the  honour  to  one  legally  a  stran- 

ger, nay,  to  one  even  in  a  worse  situation,  to  a  mUural  de- 
scendant of  the  house  of  Borthwick  ?  And  not  only  so,  but 
to  the  prejudice  of  justice  and  of  lawful  heirs,  whom  it  placed, 
in  our  days,  in  an  unjust  and  embarrassing  situation ;  while, 
being  thus  rotten  at  the  core,  it  must  be  viewed  as  a  very 
Balaam^ike  illustration  indeed  in  relative  matters,  and  littie 
to  be  trusted  in  the  present.  The  maxim,  ^^Jhbum  in  uno 
falsum  in  omnibus"  here  relevantiy  applies,  and  with  the 
greater  likelihood,  after  the  avowed  hesitation  in  the  in- 
stance of  Cassilis.  We  again  descry  the  same  singular  fatality 
that  characterizes  most  of  Lord  Mansfield's  illustrations  and 
authorities ;  and  the  ill  success  that  attends  them,  seems,  we 
might  almost  say,  to  have  been  designed  by  providence  to 
mark  to  posterity  how  signally  and  egregiously  he  erred,  and 
tiie  shattered  and  frail  nature  of  his  Peerage  perceptions. 

Henry   Bortiiwick,  the  claimant,   founded  upon  a  male 
descent  from  Alexander,  son  of  William  Lord  Borthwick, 
who  figured  towards  the  end  of  the  fifteenth  century,  and  fell 
at  Flodden  in  1513.     He,  de  facto^  was  so  descended  ;  but 
then,  again,  this  Alexander  was  illegitimate.     His  usual  de- 
The  claimant  of  signation  was,   ^^  in  Johfistonej*   (in  the  parish  of   Keith, 
icen?,-M  «6-'  Humby,  East  Lothian,)  where  he  and  his  family  resided,  and 
«tf9««n</jf  turned  owned  a  Subordinate  interest.     On  December  5,  1489,  he  and 
Margaret  Lawson,   his   wife,  obtained  a  grant  from  Lord 
William,  of  certain  husband  lands  in  Nenthorn;  and  on  three 
different  occasions,  not  only  in  the  charter,  but  in  the  pre- 
cept of  seisin  and  infeftment  in  that  year,  forming  the  entire 
conveyance,  and  the  several  stages  of  the  investiture,  he  is 
specifically  styled  ^^  son  natural''  of  William  Lord  Berth- 


IN  SCOTTISH  PEERAGES,  &CC.  581 

}  While  the  epithet  has  never  been  shewn  to  be  applied 
to  any  lawful  member  of  the  family,  it  was  with  us,  as  it  in- 
deed still  is,  the  regular  and  approved  designation  of  illegiti- 
mate offspring ;  '<  natural,"  coupled  with  ^*  son,"  having  such 
identioal  import  in  our  civil  records  and  deeds,  when  unqua- 
lified, and  thus  occurring. '  But  this  is  not  all :  for  there  is 
further,  a  legitimation  of  the  same  party,  under  the  warrant 
of  the  Privy  Seal,  dated  September  2,  1511,  by  his  un- 
doubted description  of  ^*  Alexander  Borihwick  in  John-^ 
MUme^^  The  conclusive  point,  therefore,  is  irretrievably 
fixed,  there  having  been  only  one  "  Alexander  Borthwick  in 
Johnstone  "  at  the  period,  which  has  never  been  refuted,  and 
must  legally  be  presumed,  in  the  absence  of  contrary  evi- 

*  Proved  b7  the  original  authentic  deeds,  only  i^rwards  addaeed  in 
the  Ho«se  of  Lords  by  an  objector,  and  counter  claimant,  in  1808  and 
1812. 

'  An  attempt  was  made  by  the  claimant  to  confuse  and  perplex  the 
meaning  of  **  naturaiis^*  owing  to  its  occasional  conjunction  "^i^^  n?n?of 
**  kgitvmu9^*  and  hence  marked  qualification.  But  that  is  not^  natu-  «  naturalU,' 
nlialofi^if tn,"  or  standing  alone,  as  technically  explained  in  the  Canon 
Law,  and  every  European  country,  which  when  thus  appearing,  and  as 
in  the  text,  denotes  illegitimacy ;  while  **  natuialis  e/  iegitimtu,*'  fixing 
blood,  as  well  as  civil  relationship,  for  greater  explicitness,  in  contra- 
distinction— nay,  even  in  England  to  this  day,  and  abroad,  where 
however  there  is  no  doubt  as  to  the  former — ^is  oppositely  interpreted. 
The  epithets  are  definitely  voces  eignattB^  and  the  rule  is  practically  il- 
lustrated with  us.  No  dlificulty  either  arises  from  some  grants  to  the 
natural  son  of  a  num  and  his  wife  in  Papal  times,  as  were  likewise  ob- 
jected, owing  to  what  was  stated  (see  p.  516)  as  to  dispensations  for 
marriage,  subsequently  completed,  between  parties  within  the  forbid- 
den degrees  not  operating  retroy  or  salving  bastardy  in  the  case  of  pre- 
vious issue,  who  necessarily  answered  the  same  description.  Even 
now  there  maj  be  bastards  between  a  man  and  his  wife,  but  there  were 
frequently  indeed  then.  The  above  circumstances,  therefore,  can  never 
attach  legitimacy  to  naturalis.  Inadvertence  of  specialties  such  as 
these,  with  the  aid  of  modem  impressions,  is  the  bane  of  antiquarian 
discussion.  **  Naturalis  "  (tantum)  has  long  indeed  been  the  standard 
term  for  ill^timacy,  even  as  far  back  as  the  Roman  law,  where  it 
posseased  that  identical  import. 

'  Privy  Seal  Register.  That  peculiar  designation  of  Alexander 
Borthwick,  the  filiue  naiuraiU  of  Lord  Borthwick,  acquirer  of  Nen- 
thorn,  as  well  as  of  his  descendants,  and  the  other  material  facts,  can 
be  duly  instructed.    The  above  Register  is  patent  to  aU, 


582  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

dence.     Indeed,  those  who  gainsay  it  must  be  necessitated 
to  make  out,  what  I  suspect  is  not  very  probable,  and  may 
be  rather  of  difficult  probation,  that  upon  the  same  narrow^ 
bleak,  and  obscure  spot,  in  the  same  house  and  steading,  ^ 
there  were,  at  the  same  time,  two  Alexander  Borthwicks  **  tn 
Johnstonef"  rentallers  or  fanners  there, — indicated  by  the 
"  tn  "  Johnstone  with  us, — the  one  a  legitimated  bastard,  and 
the  other  a  natural  son,  holder  of  husbandhxida  in  NenthorUy 
which,  alter  all,  would  not  really  mend  matters,  owing  to  the 
still  adhering  tache  of  ^^  naturalis ;"  while  even  the  mutual 
agricultural  calling,  further  exemplified  by  the  occupation  of 
the  husband  lands,  might  corroborate  the  identity. 
Sotpicious  cir-      Although  these  documents  and  authorities  happened  not  to 
atThlTimVT^®  adduced  in  1762,  it  was  sufficiently  startling  at  that  junc- 
adjudicaUon.    turo,  that  another  grant  by  the  above  William  Lord  Borth- 
wick,  widiout  a  date,  but  afterwards,  (probably  in  1495,)  to 
the  Alexander  Borthwick  in  ((uestion,  and  Margaret  his  wife, 
of  parts  of  the  same  lands  of  Nenthom  that  had  been  pro- 
duced by  the  claimant  to  instruct  the  material  fact  of  the 
filiation  of  the  former — was  mutilated,  and,  by  a  singular  fa* 
tality,  had  an  abrasure  directly  following  ^^filio^^  i.  e.  of  Lord 
Borthwick  in  reference  to  him,  where  ^^  naturali"  fell  to  be 
inserted.^    In  the  conveyance  previously  alluded  to,  naturalis 
constantly  follows  fiUuSy  agreeably  to  the  usual  form.     The 
unfavourable  and  fatal  epithet  therefore,  thus  repeatedly  at- 
taching, as  is  to  be  presumed,  and  in  the  instance  last  noti- 
ced, precisely  as  before,  may  be  held  there  to  have  been  pur- 
posely destroyed.     This  striking  and  significant  mutilation, 
as  it  appeared,  ought  to  have  riveted  the  attention  of  the  House 
of  Lords ;  yet  neither  did  the  circumstance,  nor  the  certain 
existence  formerly  of  many  nearer  heirs-male,  (even  throwing 


>  Johnstone  was  merely  so,  and  never  a  hamlet  or  village,  l)eing  with- 
in the  estate  of  the  Keiths,  £)arla  Marshal,  the  proprietors  of  the  dis- 
trioty  and  situated  in  the  parish  called  Keith  Humbie,  after  the  latter. 
It  was  adjacent  to  the  chill  elevation  of  SoUray  hill,  which  the  £unily, 
increasing  in  their  moans,  afterwards  acquired,  and  thence  derived  their 
recenter  designation  of  Soltray.  Though  possessors  of  husband  lands 
in  Nenthom,  (in  Berwickshire),  Johnstone  was  their  residence, 

•  Froved  by  the  original  produced. 


IN  SCOTTISH  PEERAGES,  &CC.  583 

the  illegitimacy  out  of  view,)  wholly  unaccounted  for,  retard 
the  precipitancy  and  extraordinary  despatch  on  thb  occasion, 
so  different  from  their  procedure  in  certain  others. 

But,  as  has  been  already  observed,  and  what  renders  the 
argument  in  support  of  the  illegitimacy  of  the  same  Alexander 
Borthwick  irresistible  is,  that  natural^  even,  without  the 
denching  corroboration  of  the  legitimation,  fell  legally  to  in- 
struct it.  This  conclusion,  besides,  directly  follows  from  the 
remarkable  modern  procedure  of  the  same  tribunal,  upon  the 
claim  of  Sir  James  Sinclair  of  May,  to  the  Earldom  of  Caith* 
nesSyin  1791.  No  less  than  four  individuals,  David,  Henry, 
John,  and  George  Sinclairs,  respectively,  the  immediate  off- 
spring of  John  Lord  Berridale,  eldest  son  of  George  fourth 
Earl  of  Caithness,  and  of  the  Murkle  and  Greenland  progeni- 
tors, all  nearer  de  facto  than  the  claimant  in  the  succession  Ret  judicata  m 
to  the  Caithness  honours,  were  exclusively  extinguished  thejeetion  ofiui<«- 
14th  of  April  1791,  by  documents  in  1587,  160r),  1618,  BXid^^^ 
1619,  through  the  mere  agency  of  the  descriptions  either  of 
** brother  natural^'  or  of  ^*  son  naturcdy'  the  identical  words 
in  question — ^that  were  there  applied  to  them,  in  reference  to 
the  material  link  of  fraternity  and  filiation,  that  proved  their 
reoenter  relationship  and  descent.^  Hence  this  specific  and 
unexceptionable  precedent  is  regularly  to  be  held  as  fixing 
and  deciding  in  practice  the  legal  import  of  naturalisy — occur- 
ring as  it  does  precisely  in  the  Borthwick  case. 

With  allusion  again  to  the  subject  of  extinctions,  the  Berth-  ExUactions  la 
wick  claimant  in  1762  principally  founded  upon  a  general  ser-  <^®.  ^^^^^^i^^ 
vice  in  1734,  as  heir-male  of  William  first  Lord  Borthwick,'  Semce  chiefly 
which  was  admitted ;  and  Che  following  is  the  manner  in  which  ^^^^^^  °"* 
hedbposed  of  his  extinctions,  including  that  of  the  Borthwicks 
of  Glengilt,  whom  I  can  alike  prove  by  legal  deeds  to  have 
been  numerous,  of  long  continuance,^  and  directly  sprung  from 
a  Lord  Borthwick.     '^  In  matters  of  succession,  it  is  estab- 
lished by  the  Law  of  Scotland,  that  any  degree  being  proved, 
it  is  presumed  to  be  the  nearest  degree,  unless  a  nearer  be 
instructed ;  it  resolves  in  this  negative  that  there  is  no  other 

'  See  Caithness  Minutes  of  Evidence  under  the  above  date,  pp.  139, 
167-8-9, 170. 
•  In  the  Records  of  Chancery.  •  These  facts  were  not  stated. 


584  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

nearer  degree,  which,  as  other  negatives,  proves  itself.'     In 
the  present  case,  therefore,  the  claimant  cannot  be  put  to 
prove  the  extinctions  of  every  person  who  appears  from  the 
ancient  deeds  and  writings  to  have  been  connected  with  the 
family  of  which  ho  is  descended.     The  extinction  of  all  the 
branches  of  the  family,  except  that  of  Borthwick  of  Cruik- 
ston  (whom  he  makes  of  remoter  descent,)  is  proved  by  the 
general  reputation  of  the  country."     And  he  likewise  gratuit- 
ously asserts,  that  the  Borthwicks  of  Glengilt  have. been  ^'long 
since  extinct."  ^     I  do  not  dispute,  that  as  there  was  no  com- 
petitor, this,  with  taciturnity  and  absence  of  previous  counter- 
claim, upon  which  h^  also  founds,  might  suffice,  according  to 
our  law ;  but  the  House  of  Lords  claim  the  merit  of  adopting  a 
new  system,  so  that  the  above  allegations  being  at  once  re- 
ceived by  them  without  scruple,  there  is  here  a  contradictor 
to  it ;  while  it  is  a  jest  again  to  admit,  with  certain  English 
Proof  oftbe  for.  counsel,  that  in  our  Peerage  claims  they  have  always  exacted 
evidence  Ua*'^**®  Strictest  evidence,  especially  in  extinctions.     On  this  oc- 
and  contradict,  casiou  too,  in  further  refutation  of  the  same  conceit,  hearsay, 
s"rictn6M^'of    ^^^  reputation,  and  printed  books,  such  as  Rymer's  Fcedera, 
House  of  Lords  mjd  Forduu,  &c.  were  adduced  to  authenticate  ancient  material 

in  such  matters.  «  .         . 

facts.3   And  the  same  thmg,  independent  of  the  corroborations 
in  that  of  Cassilis,  will  be  shewn  in  the  sequel,  in  respect  to 
other  claims. 
Claim  to  the        Henry  Borthwick,  the  successful  claimant,  died  without 

ho''n'lt«*''in      ^^^^  ^^  ^'^'^^-     ^"^  ^^°g  thereafter,  in  1808,*  the  Borthwick 
1808.  honours  were  claimed  by  Archibald  Borthwick,  Esq.  descend- 

ed in  the  male  line  from  Alexander  Borthwick  in  Reidhall, 
younger  brother  of  William  Borthwick  of  Soltray,  immediate 
ancestor  of  the  preceding,  and  younger  son  of  William  Borthwick 
*^  m  Johnstone^''  which  last  was  son  of  William  Borthwick  *^  in 
Johnstone^"  the  son  of  Alexander  Borthwick  ^Un  Johnstone^** 

»  Tho  authorities  referred  to  hero  were  Stair,  B.  III.  Tit.  6,  §  36 ; 
Erskine,  B.  III.  Tit.  8,  §  66  ;  Macdowal,  vol.  II.  B.  III.  Tit.  4,  p.  331. 

'  Papers  and  aigament  in  the  claim.  The  printed  case  is  subscrib- 
ed by  Alexander  Wedderbum,  aflerwardt  Lord  Roislyn,  who  was 
then  making  his  debut  in  Peerage  matters. 

'  Procedure  in  the  claim. 

*  This  fact,  and  the  subsequent  procedure  referred  to,  are  taken  from 
tho  Lords'  Journals,  and  Minutes  of  Evidence,  Sec, 


1 


IN  SCOTTISH  PEERAQE8»  &C.  585 

and  of  Nenilwmy  tbe  legitimated  ^iim  naiuriUis.^     He  stood 
in  the  shoes  of  the  previous  claimant,  being  bis  beir-male  (col-  New  daimant 
kUeralfyJf  and  thus  equally  descended  from  the  same  Alexan- 1|^^  *°f  p^^. 
der,  the  common  ancestor.    There  being  no  doubt  of  this  cof^  ^oum  one. 
netting  ancestry,  Archibald  Borthwick  was  entitled,  having 
much  the  same  arguments  in  his  favour,  to  found  upon  and 
avail  himself  of  Lord  Mansfield's  decision.^     And  it  was  upon 
this  occarion,  on  John  Borthwick,  Esq.  of  Crookston,  a  law- Evidence  of  the 
ful  descendant  of  the  House  of  Borthwick,  coming  forward, ^^^^^^"^^^ 
and  objecting, — as  he  was  authorized  to  do,  in  1809,  that  that^'-  Borthwick 
part  of  the  authentic  evidence  of  the  illegitimacy,  turning  upon  the  oi:aector. ' 
**  naiuraiis,**  was  first  produced.     The  perplexing  and  diffi- 
cult case,  therefore,  according  to  English  notions,  now  arose, 
whether  Archibald  Borthwick  was  entitled  cfe  piano  to  rest 
upon  the  previous  decision  in  1762,  in  favour  of  Henry  Lord  Procedure  m  to 
Borthwick — in  effect  likewise  extending  to  him — owing  to^^^ggj^i^a 
their  common  descent  from  Alexander,  the  natural  son  of  Wil-i°  ^^62. 
liam  Lord  Borthwick — so  as  to  bar  the  objection  of  illegiti- 
macy, contrary  at  least,  it  may  he  held,  to  substantial  justice, 
and  thus,  in  &ct,  re-importing  a  supposititious  heir  into  the 
house  of  Borthwick.     The  Lords'  Committees,  before  whom 
the  claim  and  objection  came,  reported  on  April  27,  1809, 
that  the  facts  in  the  claim  of  Archibald  Borthwick  *'  may  be 
enquired  into,  Inifore  the  House  shall  determine  whether  John 
Borthwick  of  Crookston  shall,  according  to  his  petition,  be 
heard  by  counsel,"  as  objector ;  and  the  House,  of  the  same 
date,  ordered  the  former  to  search  into  precedents,  for  the 
better  fixing  the  procedure.     The  Committee  having  accord- 
ingly  resumed,   and  investigated,   and  John  Borthwick  of 
Crookston  having  also  claimed  on  March  23,  1812,^  they 
next  reported  on  the  ensuing  14th  of  April,  that  a  motion 
had  been  propounded  to  them,  that  they  **  ought  not  to  re- 

'  The  doficent  in  question  can  be  legally  authenticated. 

'  This  fiunily,  I  need  not  add,  are  respectable,  and  I  regret  being 
thus  obliged  to  allude  to  their  remote  illegitimacy,— only  owing  to  the 
peculiar  nature  of  this  treatise,  and  stem  legal  necessity. 

'  As  heir-male  of  John,  second  son  of  William  first  Lord  Borthwick, 
on  the  fi&ilure  of  nearer  male  descendants,  except  those,  tie  facto,  of  his 
iiifgitimate  grandson  Alexander,  the  **fiHu9  nattiralig*' 


586  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

ceiye  any  such  evidence  against  the  claimant  (Archibald 
•  Borthwick),  as  calls  in  question  the  right  of  Henry,  late  tenth 
Lord  Borthwick,  to  the  title,  honour,  and  dignity  of  Lord 
Borthwick,  which  was  reported  from  the  Committee  of  Privi- 
leges, and  resolved  and  adjudged  by  this  House  on  the  8th 
of  April  1 762 ; "  hut  that  die  Committee  had  ^*  roQolved  that 
it  is  expedient  to  receive  the  instructions  of  the  House  upon 
a  matter  of  such  importance."  Here  they  were  embarrassed 
and  diflBculted,  owing  to  Lord  Mansfield's  decision.  If  the 
above  motion  had  been  allowed,  Archibald  Borthwick  would 
have  prevailed,  the  lawful  desceut  of  his  branch  from  that  of 
Lord  Henry,  and  the  male  representation  so  far,  as  already 
obvious,  being  indisputable.  On  June  28,  1813,  however, 
the  purport  of  it  was  negatived,  and  this  resolution  agreed  to 
by  the  House :  ^^  That  the  Committee  of  Privileges  be  in- 
structed to  permit  the  Claimants  of  the  title  of  Borthwick, 
whose  petitions  have  been  referred  to  this  House  by  his  Ma- 
jesty, to  give  evidence  in  support  of  their  respective  claims, 
though  the  same  should  controvert  the  pedigree  produced  by 
Henry  Lord  Borthwick,  in  favour  of  whose  right,  on  the  sup* 
posed  truth  of  such  pedigree,  the  House  decided  in  1762 ;  as 
there  is  no  lineal  descendant  of  the  said  Henry  now  in  being^ 
who  can  claim  the  benefit  of  such  judgment,  and  as  Archibald 
Borthwick,  the  only  claimant  who  alleges  a  descent  from  Alex* 
Carious  sped-  onder  Borthwick  of  Nenthom,  (or,  in  Johnstone^  the  natu-- 
^ty,  allowing    ^^  son.^  as  the  common  ancestor  of  himself  and  the  said 

that  esiception  '^ 

to  be  traTened.  Henry  Lord  Borthwick,  has  disqualified  himself  from  claim- 
ing the  benefit  of  such  judgment,  by  proposing  Ui  falsify  the 
pedigree  under  which  Henry  Lord  Borthwick  claimed  and 
obtained  it,  without  prejudice  to  any  question  that  may  arise 
concerning  the  effect  of  a  previous  judgment  of  the  House  in 
a  case  of  Peerage,  if  there  existed  claimants  who  had  interest 
in  the  judgment,  or  who  had  not  so  disqualified  themselves." 

How  grounded  ^^^  proper  apprehension  of  the  specialty  here,  it  is  to  be 
stated,  that  Henry  Lord  Borthwick,  in  his  pedigree  down* 
wards,  had  omitted  an  essential  link, — so  much,  again,  for  the 
care  and  vigilance  bestowed  upon  Peerage  matters  by  Lord 
Mansfield  and  his  coadjutors,  who  could  be  so  imposed  upon, 
without  perceiving  the  error, — and  which  had  been  properly 


IN  SCOTTISH  PEERAGES,  &C.  587 

corrected  by  Archibald  Borthwick,  who  accurately  supplied 
the  deficiency,  that  directly  affected  himself.  ^     Upon  this 
ground  he  may  be  allowed  to  have  disowned,  in  a  particular, 
and  justly  so,  that  descent  {Lord  Henry's)  on  which  the 
Lords  decided  in  1762.    But  how,  in  this  laudable  and  honest 
effort,  he  could  be  unqualifiedly  stated  hs  falsifying^  while  he 
thus  amended,  may  be  rather  enigmatical ;  and  still  more, 
how,  upon  this  ground,  he,  and  more  especially  his  innocent  de- 
scendants, should  be  summarily  barred,  and  placed  in  a  worse 
situation  than  otherwise,  may  be  irreconcilable  with  the  common 
rules  of  reason  and  equity.    The  induction  seems  adverse  like- 
wise to  the  English  principle  of  Peerage  rights  (as  were  here 
in  question)  being  inherent  in  the  blood  of  the  family,  without 
subjection  to  a  casual,  personal  exception,  such  as  this  was. 
The  doctrine  and  expedient  resorted  to  seems  curious  and 
anomalous ;  but  whatever  objection  attaches  thereto,  though, 
at  the  same  time,  forwarding,  through  a  tortuous  and  some- 
what inexplicable  path,  the  ends  of  substantial  justice,  that 
had,  perhaps,  been  better  attained  by  the  relevant  plea  of  res 
naviier  veniens  ad  notitianty  may  be  palliated  by  the  pecu- 
liarity of  the  emergency,  and  glaring  want  of  due  investiga^* 
tion  and  discernment  on  the  part  of  the  legal  dignitaries  in 
1762.    Their  successors  were  here  trammelled  by  the  ex- 
treme effect  occasionally  given  by  English  law  to  the  previa  Engiuh  noUons 
ous  admission  of  a  Peerage  right, — or  summary  recognition  ^^'^* 
of  it  by  a  writ  of  summons  and  a  sitting,  ^  from  which  ours 
considerably  differed,  having  been  more  cautious  and  uncon- 
ceding,  in  the  first  inst^ce ;  and  while,  as  has  been  instructed, 
it  was  in  the  habit  of  only  allowing  a  qualified  or  tn/ertm  right 
of  possession,  where  there  was  appearance  of  doubt,  did  not 
preclude  a  Peerage,  even  regularly  constituted  and  perfected 
in  form,  and  clothed  with  unexceptionable  possession,  from 
being  afterwards  questioned  and  annulled,  upon  a  special 

*  The  omiwion  of  the  link  erroneously  made  his  ancestor  Alexander 
Berth wiek  in  Reidhall,  son  of  the  first  William  Borthwick  in  John- 
stone^ (son  of  Alexander  Borthwiek  in  Johnstone,  in  1511 ),  instead  of 
the  seeandy  (see  p.  584,)  as  truly  obtained ;  but  who  was  wholly  loft  out. 

'  As  illustrated  in  the  casesof  the  Baronies  of  Strange,  Clifford,  and 
Willoughby  of  Parham. 


588  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

legal  ground.  ^     We  here,  moreover,  see  the  necessity  of  the 
innate  jurisdiction  of  the  Session  as  Ordinaries  in  Peerage 
claims,  who,  by  previous  examination  into  the  proper  and 
more  accessible  sources,  and  better  and  easier  preparation 
and  determination  of  the  relative  factB^  might  have  been  the 
means  of  preventing  such  untoward  and  embarrassing  conse- 
quences, saving  future  parties  much  anxiety  and  delay,  be- 
sides  heavy  and  severe  expenditure. 
EngUahprece-       The  casc  of  Borthwick   differs  from  the  noted  one  of 
loughby  of  '  Willoughby  of  Parham,    in  England,  though  evidently  in 
ParhaiD.  view,  and  influencing  the  above  instructions  of  the  House  of 

Lords, — inasmuch  as  in  the  latter  there  wert  heirs-male  of 
the  body  of  the  individual  in  whom  the  Peerage,  in  virtue  of 
a  writ  of  summons  upon  a  claim,  had  been  erroneously  ad- 
mitted by  the  same  tribunal,  in  1680 ;  and  whose  rights,  or 
pretensions,  therefore,  though  not  the  heirs,  in  terms  of  the 
ruling  patent  in  1547,  to  heirs-male  of  the  body,  they  would 
not  afterwards  disappoint  or  recal,  even  at  the  suit  of  the  true 
and  preferable  heir  accordingly,  in  1733.  That  person  only  at 
length  succeeded,  upon  the  male  extinction  of  this  strictly 
usurping  line — more  remote  heirs-male — in  1767,  who  thus, 
all  along,  by  means  of  a  summons  and  recognition,  erroneously 
grounded,  came  to  supplant  him  and  his  ancestors,  and 
merely  upon  this  special  ground,  that  ^^  the  contrary  posses- 
sion ought  to  be  no  bar  to  his  claim,  as  there  was  no  person 
in  being  interested  under  such  possession," — that  is,  no  heirs- 
male  of  the  body  of  the  first  interloper,  in  the  face  of  the 
patent ;  *^  but  without  prejudice  to  tte  question,  if  there 
was.'*  ^    Thus,  the  utmost  tenderness,  and  regard  to  tiieir  in- 

'  See  pp.  103-4-5,  Sec,  and  previously,  pp.  7, 8, 9, 16.  In  the  instance 
of  the  Earldom  of  Strathem,  (see  p.  16,)  reduced  and  rescinded  by  a 
common  action  at  law  before  the  Session,  without  interposition  of 
Parliament,  there  had  been  the  fullest  and  most  solemn  constitution 
and  enjoyment  of  the  dignity  by  the  holder  in  every  conceivable  way. 
(See,  among  other  proofs  of  this,  Acts  of  Pari,  last  Edit  vol.  V.  p.  6  &c.) 

'  See  Cruise  on  Dig.  pp.  169-70.  Supposing  that  the>!r«£  Willough- 
by of  Parham  usurper,  and  taker  '^  contrary  to  right  and  the  truth  of 
the  case,"  as  stated  in  the  ultimate  determination  of  the  Lords  in  1767, 
had  had  a  younger  brother — ^necessarily  an  heir,  in  terms  of  the  patent — 
of  whom  male  issue  then  existed,  and  holding  that  the  usurped  posses- 


IN  SCOTTISH  PEERAGES,  &IC.  589 

terests,  merely  from  the  unjustifiable  rei  interventusj  was 
still  shewn  the  intrusionists,  even  when  believed  extmct; 
while  the  righteous  heir,  in  fact,  was  thereby  fatally  injured, 
and  certainly  in  direct  violation  of  the  regulating  grant, 
came  to  be  postponed,  and  only  to  take  after  them.  We 
hence  see  the  reason  for  the  stress  above  laid  upon  the  cor- 
respon<Ung  incident  in  the  Borthwick  case,  of  there  having 
been  no  heirs-male  of  the  body  of  Henry  Lord  Borthwick, 
the  intrusionist — ^from  the  bastardy ^  in  1772.  And  tlie  Lords, 
we  may  conclude,  might  have  come  to  another  and  more  fa- 
vourable determination,  as  in  the  Willoughby  of  Parham  in- 
stance, if  there  had ; — although,  I  repeat,  by  the  genius  and 
spirit  of  our.  practice,  supported  by  authorities  adduced, 
which,  I  conceive,  should  rule  exclusively, — the  most  solemn 
grants  of  Peerages,  with  Royal  and  Parliamentary  recogni- 
tions, were  not  held  indefeasible,  or  to  be  incapable,  upon 
strict  and  weighty  cause  shewn,  to  be  afterwards  recalled  and 
rescinded.  And,  if  so,  how  much  more  the  original  resolution 
of  the  Lords,  in  the  hasty  procedure  upon  the  Borthwick 
cUm — a  purely  Scottish  matter — ^in  1762. 

Neither,  it  must  be  confessed,  does  English  practice  appear  Engiuh  or 
always  to  have  been  consistent,  or  swayed  by  the  same  ad-^"^**^'**:'jj^® 
ventitious  enuring  rule,  as  was  countenanced  by  the  case  of  conBiatent  in 
WiDoughby  of  Parham.     Although  James  Duke  of  Queens-  ^^  '^'P^'*' 
berry,  in  Scotland,  after  his  creation  into  the  British  dignity 
of  Duke  of  Dover,  by  patent  dated  May  26,   1708,  with 

aon  had  enured  into  a  legal  right,  the  latter,  by  our  genuine  and  original 
law,  might  even  have  likewise  taken,  in  exclnsion  of  the  elder  and 
jnti  heirs,  becanse  an  heritahle  suhject,  such  as  the  Peerage  here,  with 
US,  constantly  descends — and  necer  aacendsy  as  would  have  obtained 
had  it  gone  wee  versa.  In  thi^  emergency,  **  the  heir  of  my  heir  was 
my  heir,*'  agreeably  to  the  old  brocard,  and  we  only  here  contem- 
plated, as  a  tenmnue^ — ^from  which  the  succession  was  to  be  regulated, 
— ^the  but  holder.  Such  was  our  maxim,  curiously  illustrated  by  the 
conceived  preferable  right  of  the  House  of  Lennox  to  the  Crown,  im- 
mediately after  James  VI.  (before  he  married),  in  exclusion  of  that  of 
Hamilton, — ^though  strangely  overlooked,  and  denied  by  some  autho- 
rities in  modem  times.  But  of  course  I  don't  admit  that,  by  our  law, 
an  indefeasible  right  had  vested  in  the  usurping  Willoughby  line. 
The  previous  doctrine  also  ruled  in  distinguished  cases  on  the  Continent. 
The  House  of  Lennox  were  heirs  of  James  VL  but  not  of  his  mother. 


590  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Case  of  Duke-  I^iiutatioii  to  him  and  the  heirs-male  of  the  body  of  Charks 
dom  of  Dover,  his  son.  had  had  a  writ  of  summons  accordingly,  and  had  sat, 

in  1 720.  o  ^ »  -» 

and  voted  without  challenge,  in  that  sole  capacity,  in  the 
House  of  Lords,  during  no  less  than  two  ensuing  Parliaments, 
they  nevertheless  eventually  determined,  the  1 4th  of  January, 
1 720, — owing  to  the  conceivedincompatibility  with  the  Articles 
of  Union,  of  a  Scottish  Peer  holding  a  British  Peerage, — 
upon  a  claim  to  the  Dukedom,  and  the  above  identical 
rights  and  privileges,  actually  clothed  by  possession,  by 
Charles  Duke  of  Queensberry  the  son,  that  he  was  not,  in 
conaequence^  entitled  to  a  writ  of  summons,  or  to  sit  and  vote 
in  their  House  as  a  member  of  their  body,  from  which  he 
therefore  was  excluded.^  Here  the  principle  in  the  Willoughby 
case  was  obviously  violated,  inasmuch  as  solemn  admissions, 
and  possession  of  the  essential  attributes  and  privileges  of  a 
Peerage,  without  which  it  was  as  nothing,  in  the  same  way  as 
there,  were  utterly  contemned  and  disregarded.  What  had  pre- 
ceded might  have  been  thought  to  have  operated,  by  analo- 
gous argument,  as  a  specialty  in  favour  of  the  claim  of  Duke 
Charles,  without  compromising  the  general  question  regard- 
ing the  Scottish  Peerage.  If  confessed  rule  could  be  sacri- 
ficed to  the  authority  of  the  acts  of  the  Sovereign,  and  the 
Lords,  in  the  Willoughby  instance,  so  also  might  it  be  in  that 
of  Dover.  The  judgment  affecting  the  latter  was,  besides. 
Judgment  af-  adverse  to  the  dictum  of  Lord  Erskine  in  the  Banbury  case, 
Enkine't^doc-  ^owover  contrary  it  may  be  to  our  notions, — "that  when 
trine.  Qf^^  the  blood  of  a  man  is  ennobled  by  sitting  in  that  Hotkey 

(the  House  of  Peers)  as  a  Peer,  nothing  but  delinquency 
(that  did  not  obtain)  can  deprive  his  posterity  of  the  same 
honour."  '  Consequently  these  express  acts,  that  so  re- 
markably concurred  in  respect  to  James  first  Duke  of  Dover, 
should  have  enured  to  an  heritable  right  to  the  precise  force 
and  effect  in  every  extent,  including  sitting,  &c.  in  favour  of 
Duke  Charles  bis  son,  and  his  male  posterity,  the  blood  of 
the  father  having  been  hence  indubitably  ennobled^  On  the 
contrary,  however,  what  weighed  with  Lord  Erskine,  and 

'  Lords'  Journals. 

■  Report  of  the  Barony  of  Lyle  by  Sir  Harris  Nicolas,  p,  108,  note. 


IK  SCOTTISH  PEEBAGES,  &CC.  591 

especially  in  the  Willoughby*case,  turned  out  in  bis,  to  be  no- 
thing ;  ^  and  we  may  be  thus  justified  in  not  holding  as  con-  Dover  decision 
dasive  the  rule  authorized  by  the  former,  going  irretrievably '^^"*°*^^j^** 
to  shield  usurpers  against  law,  and  frustrating  and  annulling  loughby,  and 
the  right  of  true  heirs,  owing  to  erroneous  admissions  and  re-  ^i^trine! 
cognitions  by  the  Peers.     The  restrictive  term  *^  posterity^'* 
used  by  Lord  Erskine,  must  yet  take  the  case  of  Borthwick, 
in  1808,  out  of  the  benefit  of  the  English  law  he  inculcates, 
for  the  claimant  was  not  of  the  body  of  Henry  Borthwick,  Specialty  in 
ennobled  by  the  decision  in  1762.     It  remains  to  be  stated,  B^rthwickcaie. 
that  the  €u:iual  Dover  question,  turning  upon  the  Articles  of 
Union,  was  ttgain  canvassed,  but  otherwise  determined,  by  the 
House  of  Lords,  in  the  noted,  though^r  weaker  case,'  of  the 
British  Dukedom  of  Brandon, — (created  in  1711,  in  favour  of  J*»«  of  Bran- 
James  Duke  of  Hamilton,  a  Scottish  Peer,) — upon  the  6th  of 
June  1782,9  whereby  the  claimant,  his  heir,  was  found  entitled, 
in  consequence,  notwithstanding  the  same  objection,  as  urg- 
ed in  that  of  Dover,  to  sit  and  vote  in  the  House  of  Lords, 
and  enjoy  and  exercise  all  the  privileges  of  English  Peers. 
This  conflicting  decision  further  shews  that  resolutions  of  the  Fluctuating, 
Lords  are  fluctuating  and  traversible,  and  by  no  means  irre-  naturcTof  the 
vocable  and  conclusive  even  in  a  matter,  as  here  happened,  ^^^^'  i"<^* 
where  there  was  not  rea  noviter  veniens  ad  notitiam.    The 
Brandon  precedent,  therefore,  may  bear  a  fortiori  upon  the 
Borthwick  exception,  that  dt£?  involve  such,  backed  moreover 
by  the  concurrent  Scottish  law  and  practice.     Nay,  with  the 
greater  reason  still,  as  this  very  Brandon  case  had  been  also  un- 
favourably dealt  with  by  the  Lords,  precisely  like  Dover,  by 
their  antecedent  resolution  in  1711.^  Certainly  the  rejection  of  Con<ra/ylBran- 
a  Scottbh  Peerage  claim  by  the  House  of  Lords  is  not  deci-^°°j^.^^|®„ 
sive,  and  can  be  again  brought  before  them,  and  discussed  up-  nil. 
on  a  petition  and  reference,  as  was  actually  done  in  the  very 

■  Tho  honours  of  Dover,  in  tenns  of  the  patent,  became  extinct  in 
the  person  of  Duke  Charles,  who  merely  had  the  nominal  title,  with* 
oat  any  benefit  in  the  sh'ghtest  manner  therefrom  during  his  lifetime. 

'  There  having  been  there  no  summons,  sitting,  or  voting  upon  the 
patent. 

•  Lords'  Journals.  *  P>%d. 


592  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

recent  case  of  the  Barony  of  Rutherford,  to  be  afterwards 
adverted  to. 
Further  proof       Th®  o®**  material  step  in  the  Borthwick  claim,  was  the  cor-^ 
of  the  aiegiti-  roborotory  adduction  by  John  Borthwick  of  Crookston,  on  May 
B^hwickcJe  26, 1814,  of  the  new  evidence  of  the  "  legitimation"  of  "  Alex- 
1 8 1  r**^'  ^^    ander  Borthwick,  in  Johnston,"  in  1 5 1 1 ,  which  was  received  and 
founded  upon.  Archibald  Borthwick,  the  first  claimant,  having 
died,  Patrick,  his  son  and  heir,  in  1816,  petitioned  to  be  placed 
in  his  situation;  but  although  there  was  subsequent  discussion 
as  to  the  mode  of  procedure, — whether  or  not  the  claim  of 
the  latter,  prior  in  order,  should  be  first  disposed  of,  before  at 
all  scrutinizing  the  other,  nothing  decisive  ensued,  and  the 
Both  oiaimi  to  claims  are  still  in  pendenti,  or  rather  fallen  asleep.     It  was 
p^d^^L^^  *"  ^0^  unnatural  that  Patrick  Borthwick  should  wish,  as  he  did 
actually,  by  such  scrutiny,  to  have  a  hit  against  his  opponent, 
in  return  for  the  compliment  paid  to  his  father,  which  however 
was  never  realized. 
Que&tion  of        John,  the  last  undoubted  Lord  Borthwick,  appears  from  the 
n[astnS^"      discussion  to  have  died  in  1672  ;^  so  the  ninety  years  that  pre- 
ceded the  claim  in  1762  were  held  to  be  no  bar.     This  is 
perhaps  a  better  instance  of  the  non-operation  of  prescription 
in  honours  than  Somervile,  and  is  in  accordance  with  our  law, 
where  no  right  is  lost,  without  its  actual  devolution  to,  and 
possession  by  another.     Henry  Lord  Borthwick  had  indeed 
assumed  the  dignity,  and  voted,  under  protest,  at  Elections, 
after  his  general  service  to  the  first  Lord  in  1734 ;  a  form  of 
proving  a  descent  thus  invariably  resorted  to,  although,  on  a 
far  weightier  occasion,  so  remarkably  discountenanced  and 
rejected  in  the  recent  Rutherford  claim. 
Lord  MaoB-        ^^^  same  poiuts  formerly  discussed  recur,  in  respect  to 
field's  mistaken  the  devolution  of  the  Borthwick  Peerage.  Although  the  above 
pUed.'  ^  ^^'     Lord  John  was  heir-general,  as  well  as  heir-male  of  the  fa- 
mily. Lord  Mansfield,  as  usual,  in  1762,  at  once  cuts  the 
Gordian  knot,  by  deciding,  upon  his  arbitrary  principle,  in 
favour  of  the  conceived  heir-male,  notwithstanding  the  exist- 

^  On  January  28, 1676,  John  Dundas,  younger  of  Hervieston,  was 
served  "  heir  "  (through  his  mother)  of  John  Lord  Borthwick  "  avun- 
culif**  (thus  extinguishing  her,)  in  Borthwick  castle,  Barony  of  Heriot- 
mure^  &c.  and  residue  of  the  £k>rthwick  estate,  ^/ffjr*  Spec.) 


IN  SCOTTISH  PESRAOESy  &CC.  593 

ence,  then,  of  numerous  and  preferable  heirs  in  the  female 
line. 

The  castle  of  Borthwick,  the  principal  messuage  of  the  old 
«<  Barony  of  Borthwiek,''  with  the  remainder  of  that  large 
fief,  which  comprised  Heriot-mure  and  various  lands,  was 
descendible,  before  1672,  to  heirs-female,  ^  however  originally 
to  heirs-male.  The  honour,  therefore,  the  constitution  being 
wanting,  may  approach  in  its  leading  features  to  that  of 
Lovat ;  while  both,  owing  to  the  marked  feudal  connection 
and  distinction,  differ,  as  has  been  seen,  in  this  respect  from 
the  Barony  of  Kennedy. 

In  the  Borthwick  claim  in  1808,   Archibald  Borthwick  Pa'oi® .  evi- 
judged  the  examination  of  Margaret  Lady  Borthwick,  widow  Bonhwick  case 
of  the  claimant  in  1762,  incumbent,  in  order  to  obtain  herj*^®°  in  Scot- 

landf  under  ao- 

hearsay  as  to  the  extinction  of  a  younger  brother  of  the  lat-  thonty  of  the 
ter  and  nearer  heirs-male ;  and  that,  in  hb  belief,  Archibald's  ^^'^'' 
family  were  his  next  heirs-male.  But,  as  it  happened  that 
this  lady  was  old,  bed-rid,  and  infirm,  and  incapable  of  tra-^ 
yelling,  without  serious  risk  and  danger,  as  was  sworn  to  by 
a  Scottish  medical  person  at  the  Bar  of  the  Lords,  he  peti- 
tioned that  she  should  be  examined  at  her  abode,  by  two  of 
the  Justiciary  Lords  on  the  Perth  circuit,  which  the  former 
agreed  to,  on  June  20,  1810,  after  consulting  precedents,  and 
finding  they  authorized  the  step,  *'  though  at  first  their  Lord- 
ships entertained  great  doubts  upon  the  subject."  The  lady 
was  then  accordingly  examined,  and  her  answers  to  the  ques- 
tions, that  had  previously  been  submitted  to  the  House,  were 
subsequently  reported  and  received.'  The  difficulty  here 
obviously  originated  in  the  recognised  principle,  of  always  se- 
curing, and  in  the  best  and  most  unexceptionable  manner,  di« 
rect  probation  in  a  Peerage  claim.     The  House  of  Peers,  in 

'  This  is  proved  by  the  retour,  quoted  January  28^  1676,  of  John 
Dundaas,  younger  of  HarviestoD,  in  the  castle  of  Borthwick,  &c.  shew- 
ing that  the  residue  of  the  iief  had  at  least  stood  in  Lord  John,  who 
was  bom  in  1616,  (Prestonpans*  Parish  Register,)  and  his  heirs-gene- 
ral. The  fiunily,  however,  were  quite  reduced,  and  in  a  bankrupt  con- 
dition, which  may  account  for  the  heirs-female  not  moving.  Neither 
did,  then,  any  heir-male. 

'  Lords'  Journal,  16th  May,  1809  ;  16th  and  20th  June,  1810 ;  20th 

January  and  9th  AprU,  1812. 

2p 


594  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

the  cases  of  Colvil  and  Borthwick,  may  be  said  equally  to 
have  awarded  the  dignity  to  a  stranger,  in  the  first,  to  one  not 
entitled  to  that  claimed,  under  die  grant  exclusively  adduced : 
in  the  latter,  to  one  still  less,  owing  to  his  exceptionable  and 
illegitimate  status. 
Etfidom  of  The  existence  of  the  £arldom  of  Sutherland,  certainly 
i^^^|[^  among  our  original  Earldoms,  though  not  the  most  andent, 
teriiUct  and  or  to  be  classcd  with  Marr, — now,  perhaps,  unparalleled  in 
the  Empire, — or  even  certain  others,  may  be  traced,  as  al- 
ready observed,  to  a  period  between  1222  and  1245.^  Al- 
though the  constitution,  like  that  of  the  former,  is  unknown, 
the  **  ComiCaius''  of  Sutherland  in  1347, — then  aggrandized 
and  distinguished  by  the  high  and  inhering  privileges  of  a 
regality,  into  which  it  was  erected, — was  equally  descendible 
to  heirs-general. '  The  futile  and  gratuitous  attempt  to  se- 
parate and  disconnect  the  integral  regality  from  the  camital 
fief  at  the  time,  by  Sir  Robert  Gordon,  one  of  the  claimants, 
during  the  noted  Sutherland  discussion  after  1767, — so  as  to 
make  them  devolve  differently^  and  partly  assist  his  imaginary 
salick  theory, — being  in  itself  so  absurd  and  preposterous,  is 
undeserving  of  comment.  It  was  certainly,  if  I  may  so  express 
myself,  **  splitting  straws  with  a  witness,"  nay,  going  even 
farther,  s  The  dignity,  besides,  in  the  15th  century,  in  virtue 
of  a  Royal  charter,  still  exclusively  of  the  **  Comitatus  **  in 
1455,^ — continued  to  be  in  favour  of  heirs-general,  and  under 
an  investiture,  still  to  the  latter,  the  succession  opened,  in 
1514,  to  Elizabeth  Sutherland,  the  only  sister  and  heiress  of 
John  Elarl  of  Sutherland,  who  died  in  the  same  year,  son  and 
heir  of  a  previous  John  Earl  of  Sutherland.  She  accordingly 
took,  to.  the  exclusion  of  male  heirs,  descended  of  the  body 
of  the  old  Earls  of  Sutherland,  including  the  Sutherlands  of 

'  See  pp.  167-8  9. 

'  See  Lord  Hailes's  Sutherland  case  at  the  beginning,  p.  10. 

'  Who  ever  would,  now  at  least,  maintain  that  valid  erections  of 
lands,  before  the  Union,  into  a  higher  denomination,  with  a  title  and 
dignity,  of  which  we  have  many  instances  in  the  17th  century,  to  heirs- 
general,  would  not  carry  oi/,  eoUectivelyy  to  them  ?— and  yet  this  is  a  pa- 
rallel  case  to  that  considered. 

*  Ibid.  p.  12. 


IN  SCOTTISH  PEERAGES,  &C.  595 

Forse  and  Duffus, — ^in  virtue  of  grants  of  the  Comiiatus  simply, 
though  embracing  the  hanourSf  as  well  as  lands,  and  transmitted 
both  to  her  heirs  by  Adam  Seton,  or  Gordon  of  Aboyne,  younger 
son  of  George  Earl  of  Huntly,  (of  the  distinguished  House 
of  Seton,)  *  who  further,  in  marked  exemplification  of  the  con- 
tinuance of  the  territorial  system,  became  Earl  of  Sutherland 
through  his  marriage,  ^*  raiiane  curialitatis  Scotie''  ^  Of  this 
union  the  direct  descendant  was  William  Earl  of  Sutherland, 
who  died  in  1766,  leaving  issue  an  only  child,  Lady  Elizabeth 
Sutherland, — the  late  Duchess  Countess  of  Sutherland, — un- 
doubted successor  to  his  estates,  and  the  claimant  likewise  of 
his  dignities.^ 

The  investitures  of  the  *^  Comitaius  "  of  Sutherland  were 
still  repeatedly,  in  the  16th  century,  to  heirs^general ;  ^ 
and  although  they  were  altered  by  conveyances,  after  1600, 
in  favour  of  heirs>male, — ^heirs-female  agiun  took,  including 
Lady  Elizabeth,  (in  1766,)  by  Exchequer  charters  of  the  same, 
bearing  mention  also  of  the  honours,  in  1681,  and  down  to 
the  moment  of  the  Union.  ^  But  these  identical  conveyances 
may  be  regarded  too  late  for  the  purpose,  because  patents 
were  then  fairly  introduced,  by  which  dignities  were  conveyed 

>  Through  his  male  ancestor,  Sir  Alexander  Seton,  younger  son  of 
Sa  William  Seton,  of  Seton  and  Winton,  who,  early  in  the  16th  cen- 
tury, married  Elizabeth  Gordon,  heiress  of  the  family  of  Gordon.  This 
is  another  remarkable  alliance  of  the  same  noble  and  distinguished 
house,  to  which,  therefore,  the  late  Duchess  Countess  of  Sutherland  be- 
longed in  the  male  line.  I  may  mention  by  the  way,  that  I  believe  I 
have  new  and  authentic  evidence  which  may  settle  the  important  anti- 
quarian question  that  has  been  long  agitated  in  Aberdeenshire  and  the 
aorth,  as  to  the  ttatus  of  eertain  Gordons  there,  sprung,  by  male 
descent,  from  the  finmily  of  Grordon,  near  the  termination  of  the  di- 

rect  male  line,  in  the  person  of  the  above  Elizabeth,  the  heiress.    The  The  oldett  ea- 
chief  cadets  seem  the  fine  border  family  of  Gordon  of  Lochinvar,  or  the  dels  were  qoar- 
Visoounts  Kenmure  in  the  south.    The  Setons,  even  after  the  Grordon  *®|^  **  **  ^"' 
alliance^  retained  their  own  surname,  though  they  in  course  of  time 
sunk  it  in  Gordon,  but  still  quartered,  as  at  present,  the  Seton  arms. 
All  the  Gordon  honours,  including  the  Ducal,  were  alone  acquired  by 
the  Seton  Gordons. 
'  Lord  Hailes^s  Sutherland  case,  pp.  13, 14, 15,  et  seq, 

>  Md,  p.  19. 

«  In  virtue  of  Royal  charters  in  1527, 1546,  &c.  ibid.  pp.  15, 16. 
•  Ibid.  pp.  17, 18,  19. 


596 


INQUIRY  INTO  THE  LAW  AND  PRACTICE 


Properly  de- 
scendible to 
heirs-generAl. 


exclusively  of  lands, — while  in  Peerage  charters,  as  illustrat- 
ed by  the  cotemporary  instances  of  the  Elarldom  of  Winton, 
and  others, — ^indeed  preyiously,  towards  the  end  of  the  16tb 
century, — it  became  prevalent  specificaliy  to  mention  honours 
and  dignities  in  the  relative  transmissions.^  Exact  strictness 
too  was  enforced,  in  the  conveyancing  practice  in  regard  to 
Peerages,  as  is  demonstrated  by  a  letter  of  James  VI»,  in 
1615,  previously  referred  to,  asto  the  peculiar  form  in  pass- 
ing "  signatouris  of  alienatioun,  resignatioun, — ^taillie,"  and 
<*  dispositioune  "  of  *^  honouris^  iiliUis  and  dignities^  wharin 
the  righte  succession  is  altered, — against  the  tendencie  of  the 
first  original  infeftments"  of  honours  and  titlea^  confirmed  by 
his  Majesty  or  his  predecessors.^  Here  honours  again  are  ex- 
pressly nominatim  designated. 

Takmg  the  above  circumstances  into  consideration,  joined 
to  the  leaning  of  our  law  in  favour  of  heirs-general,  as  evinc- 
ed by  the  instance  of  the  Earldom  of  Athole,  and  the  constant 
early  authorities, — while  the  *'  Comitatua "  of  Sutherland 
originally,  as  far  as  can  be  seen,  and  at  the  period  that  fell  to 

>  On  June  20, 1606,  Robert  Earl  of  Winton  resigned  ''  the  Erledame 
of  Wintoun — with  the  estate,  dignitiey  and  honour  of  the  saide  Erldome, 
-with  all  prerogatives,  priviledgies,  and  liberties  of  the  samyn,"  in 
favour  of  George  Seton,  his  younger  brother,  and  his  heirs-male.  And 
thereafter,  a  royal  regrant,  dated  Whitehall,  the  12th  of  July  1607, 
past  in  favour  of  the  latter,  and  his  heirs-male,  of  the  "  ConUtaiu***  of 
Winton,  **  cum  nomine^  statu,  tituh,  hojiore,  et  dignitate^**  while  it  has 
this  further  clause,  that  they,  respectively,  should,  in  Parliaments,  have 
**  dignitatesy  honoreSy  et  loca — ^sicut  aliquis  aUus  ComeSy  infra  dictum  nos- 
trum regnum  Scotie,"  and  "  Comites  de  Winton  posthac  nuncupentur 
et  instituentur,*'  &c.  (From  the  Originals,  penes  the  Earl  of  Eglinton, 
the  lineal  heir-male  of  the  Earls  of  Winton,  Lords  Seton,  &c.  and  their 
partial  r^strations  on  Record.)  The  like  form  is  ot^erved  in  the 
subsequent  entails  and  transmissions  of  the  Winton  honours  and  es- 
tates, during  the  century  in  question,  the  honours  being  specified,  to- 
gether with,  and  independently  of  the  comitatusy  as  obtains  moreover 
in  various  cotemporary  instances  of  the  kind.  It  is  to  be  remarked 
too,  that  during  the  same  period  there  came  to  be  sundry  erections  of 
lands  merelyy  into  a  '*  Comitatumy*  and  even  ^'  MarquUatum*^  and 
"  Ducatumy*  without  conveying  honours,  or  having  any  authority  to 
do  so.  There  was  hence  at  length  a  new  crisis,  different  from  strict 
feudal  times. 

•  See  p.  267. 


IN  SCOTTISH  PEERAGE^  &C.  597 

govern,  stood  likewise  to  them,— hence  making  the  case  dif- 
ferent from  that  of  Lovat, — and,  moreover,  the  actual  devolu- 
tion of  the  honours   to  the  heir-female  in  1514,  in  excliiaion 
of  the  heir-male,  the  right  of  Lady  Elizabeth  Sutherland,  her 
direct  descendant,  and  the  heir  female  and  general  in  1766, 
maj  be  admitted.     And  accordingly  it  was  allowed  by  ft  Triple  cUims  to 
resoluUoa  of  the  House  of  Lords,  the  2l8t  of  March  mUsut^t^^in^ 
upon  a  petition  and  reference  by  the  Crown,'  in  opposition  to  ^'?7,  widrew- 
counterdaims,  in  the  same  way,'  by  Sir  Robert  Gordon  of tuai judgment, 
Gordonstone,  Baronet,  the  direct  heir-inafe  of  Adam  Gor-*'^^^'* 
don  of  Aboyne,  Earl  of  Sutherland,  and  Countess  Elizabeth 
in  1514,  and  of  George  Sutherland  of  Forse,  as  the  male 
descendant  and  representative  of  the  first  and  original  Earls 
of  Sutherland,  before  their  representation  had  merged  in  the 
line  of  Gordon  or   Seton.     But  while  this  obtained,   the 
grounds,  as  partly  enforced  by  Lord  Mansfield  in  the  resolu- 
tion, cannot  either  be  overlooked,  or  coincided  in.     He  could  ,P«uUy  ground, 
not  contemn  or  gloss  over  the  strong  fact  of  the  ancient  fe-  resohidoo. 
male  descent, — howsoever  opposed  to  it,  which  be  therefore 
converted  into  a  specialty ,'  taking  the  case  out  of  the  con- 
strained, and  despotic  bondage  of  his  doatingand  fictitious  pre- 
sumption in  behalf  of  heirs-male ;  but,  in  so  doing,  he  still 
stretched  and  carried  the  same  to  the  utmost;  for,  aware  of  their 
hostile  counteracting  force,  he  here  visionarily  inculcated,  ^^that 
mme  of  the   Charters  produced  affect  the  Title,   Honour, 
and  Dignity  of  Earl  of  Sutherland,  but  operate  as  convey- 
ances of  the  estate  only  J*  ^    This  preposterous  and  futile 
doctrine,  thus  in  direct  contradiction  of  the  actual  fact,  and 

'  Lords*  Journals.  '  Ibid. 

*  It  cannot  escape  attention — even  upon  this  abstract  specialty  of 
Lord  Mansfield — ^how  much  more  relevantly,  and  afortiarij  the  original 
Earldom  of  Marr,  considerably  older  than  Sutherland,  now  vests  in 
the  present  Earl  of  Marr,  the  Uneal  heir,  and  in  his  heirs-general,  ow> 
ing  to  the  ancient^  invariable,  and  repeated  descents  of  the  dignity  to 
heirs-female.  (See  p.  168.)  The  Earl  of  Mar  may  be  justly  consi- 
dered the  premier  Earl  of  Scotbuid,  as  he  is  the  premier  Viscount,  not- 
withstanding the  decreet  of  ranking  in  1606,  which  is  no  legal  bar  in 
his  way,  and  could  be  legally  set  aside  as  regards  him. 

*  Lords*  Journals.  The  resolution  is  well  known  to  have  emanated 
from  him. 


&c 


598  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

rendering,  in  the  main  point,  the  Royal  charters  of  the  princely 
erection  of  the  **  Comitatua  "  of  Sutherland  into  a  regality, 
in  the  fourteenth  century,  and  of  the  identical  *^  Comitatus** 
in  the  fifteenth,  and  beginning  of  the  sixteenth, — ^all  to  heirs- 
general — a  mere  nullity  and  dead  letter,  was  yet  in  keeping  with 
the  astounding,  and  CTen  still  more  incredible  allegation  in 
his  speech,  upon  the  same  occasion, — which  has  been  so  often 
adverted  to,  that  with  us,  **  after  1214, — territorial  Peerages 
must  have  been  gone."  ^ 
Fully  expoMd  Such  glaring  bigotry,  and  manifest  adhesion  to  gross  error, 
^^^'jj*  ^J^^'^  is  hardly  conceivable,  especially  when  so  directly  refuted  by 
Lord  Haiies,  what  actually  occurred,  and  indeed  passed  before  his  eyes,  in 
the  very  Sutherland  succession  in  1514,  that  is,  so  late  even 
as  the  sixteenth  century.  Lord  Haiies  has  further  proved  to 
demonstration,  that  on  its  then  opening  to  Elizabeth,  the  heir- 
female,  she  still  continued  to  be  described  as  a  commoner^  and 
in  law  continued  so, — in  the  same  way  as  John  the  Earl,  her  bro- 
ther, previously,  until  she  was  retoured  and  feudally  vested 
in  the  "  ComitatuSy*  or  fief,  including  the  lands,  in  1514  and 
1515,  after  which  only,  in  virtue  oit\\e  territorial  possession, 
she  thereby  became  Countess  of  Sutherland.'  The  above 
material  circumstance,  likewise,  I  find  again  illustrated  by  the 

>  "  After  1214,"  (he  there  says,)  "  I  think  it  is  clear,  that  territorial 
peerages  must  have  gone — no  man  can  saj,  when  they  did  exist.  Posnbiy 
before  1214,  but  not  after ! "  An  authentic  transcript  of  the  speech  of 
his  Lordship,  containing  the  above, — as  well  as  of  Lord  Camden's,  to 
be  shortly  referred  to, — is  preserved  in  the  Sutherland  Charter-chest, 
from  which  I  long  ago  took  a  literal  copy,  that  agrees  with  one  from 
the  same  source,  lately  published  by  Mr.  Maidment,  advocate.  He 
thus  again  has  done  essential  service  to  the  public  by  bringing  forward 
to  open  scrutiny  what  formerly,  from  being  only  in  MS.  and  in  a  pri- 
vate repository,  was  known  to  but  a  limited  few.  These  publications 
of  the  learned  gentleman  cannot  fail  to  advance  and  ripen  our  Peerage 
law,  by  exposing  errors  and  misconceptions,  and  fairly  submitting  im- 
•«»  portant  points  to  the  test  of  candid  and  general  criticism,  so  much 
wanted  in  respect  to  what  has  been  styled,  though  now  by  no  means 
in  a  flattering  sense,  "  Lord  Mansfield's  Law."  The  speeches  in  ques- 
tion I  shall  ^80  subsequently  quote,  under  the  title  of  Mr.  Maidment's 
publication,  where  the  preceding  quotations  will  be  found  at  pp.  17 — 19. 

'  See  Lord  Hailes's  Sutherland  case,  pp.  13,  14  and  15,  at  the  begin- 
ning, where  the  facts  are  instruftcd  by  explicit  legal  evidence. 


^ 


IN  SCOTTISH  P£EBAGES»  &C.  599 

foUowiDg  entry  in  the  Responde  Register,^  where  the  offi- 
cer of  the^  crown  is  debited  with  the  relief  duty  and  ordinary 
feudal  payments  due  by  a  ya^sal  on  relieving  the  fief  out  of 
the  hands  of  the  crown,  the  superior.  Under  date  the  14th 
of  October  1514,  there  is  a  corresponding  charge  ^*de  relevio 
totius  et  integri  Comitaius  Suiherlandie  cum  tennentibus, 
tennandriis,  et  liberetenentium  servitiis,  cum  advocatione,  et 
donatione  capellanarum  sancti  Johannis  de  Helmsdaill,  et 
beati  Jacobi  in  Ecclesia  Cathedrali  Cathaniensi  fundatarum, 
cum  advocatione,  et  donatione  ecclesiarum,  et  Hospitalium  in 
dido  Comiiaiu  cum  pertinentiis,"  which,  it  is  added,  was  ow- 
ing to  the  King,  ^*  per  saisinam  datam,"  (simply)  <<  Elizabethe 
Sutherland  de  eodem." '  This  evidently  may  even  be  held 
conclusive  upon  the  point,  and  fully  to  refute  the  modern  fal- 
lacy of  Lord  Mansfield :  for  if  honours  had  then  ceased  to  be 
territorial,  as  he  insists— that  b,  obviously  connected  with  land 
— the  lady  in  question,  on  the  other  hand,  agreeably  to  mo- 
dem practice,  would  have  been  Countess  of  Sutherland  from 
the  moment  of  her  brother*s  demise ;  but  so  far  from  this, 
without  reference  io  that  fact,  she  was  not  so,  until  she  had 
obtained  the^fe^or  Comitatus^ — which,  nevertheless,  his 
Lordship  here  recklessly  and  ignorantly  excludes  from  ef- 
fect— when,  as  a  necessary  consequence,  the  honour  thereby 
centered  in  her.  Being  originally  in  the  Comitatus^  it  still 
went  with  it,  and  by  the  mere  settl^nent  of  the  fief  upon  heirs- 
general,  she  became  Countess  of  Sutherland.  What  clearer 
evidence  can  there  be,  that  dignities  were  then  territorial — 


*  lu  her  Majesty's  General  Regisfter  House. 

'  It  is  also  proved  by  the  Record  at  the  identical  period,  that  the 
same  thing  obtained  with  respect  to  the  Earls  of  Bothwell,  Lennox, 
Caithness,  Montrose,  and  the  Lord  Seton,  &c.  who,  on  thns  entering 
into  their  lordly  inheritances,  are  simply  styled  Patrick  Hepburn, 
John  Stewart,  John  Sinclair,  William  Graham,  and  George  Seton; 
bnt,  of  eoarse,  immediately  thereafter,  are  described  by  their  Peer- 
ages. All  their  fothers,  the  preceding  Peers,  had  strikingly  fallen  at 
the  sanguinary  conflict  of  Flodden  ;  and  it  was  previously  ordained  by 
a  special  Act,  that  minor  heirs  in  such  circumstances  should  at  once 
he  feudally  admitted  into  their  patrimonies,  as  if  they  had  attained 
majority,  subject  to  no  burden  or  penalty,  hy  reason  of  wardship  and 
minority. 


600  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

.  that  is,  under  proper  conveyances — and  went  withi  and  were 
an  heir-loom  of  the  lands? 

Independently,  too,  this  identical  fact,  notoriously  to  all 
Scottish  antiquaries,  is  demonstrated  ex  abundantly  not  only 
by  Lord  Hsules,  in  his  Sutherland  case,^  but  in  every  variety 
of  way,  by  our  records  at  large  in  the  13th  century,  poste- 
rior to  1214,  and  long  subsequently. 
^n'S^rtooft^a  ^^  redargue  Lord  Mansfield  again,  in  the  Sutherland  in- 
Mansfieid  ag&iii  staucc,  as  respects  another  striking  particular, — to  which  he 
Siuheriand*^^  advcrts  in  order  to  prop  a  favourite  fallacy, — ^would  be  to  re- 
case,  peat,  tediously  enough,  much  of  what  I  have  offered  under  the 
Cassilis  case, — the  mistaken  ratio  or  principle  upon  which 
the  latter  was  decided — to  show  the  progress  of  error — ^being 
now  confidently  founded  upon,  both  by  him  and  Lord  Camden, 
who  spoke  upon  the  occasion.  By  means  of  the  untenable 
theory  there  exposed,  grounded  upon  misconceived  notions 
of  our  original  law,  that  where  the  constitution  of  the  fief  and 
dignity  is  not  extant,  and  there  is  no  express  spedcUty^  the 
legal  presumption  !>,  that  it  alone  descends  to  heirs-mo/e  of 
the  body, — backed  by  the  other  illusion  of  honours  ceasing  to 
be  territorial  from  1214, — he  again  seeks,  most  lamely,  to  get 
quit  of  the  irresistible  argument,  of  all  the  known  conveyan- 
ces, of  aU  our  ancient  Earldoms,  under  the  simple  descrip- 
tion of  a  ^*  Comitatus^''  being  actually  limited  to,  and  having 
constantly  descended,  like  the  crown,  to  heirs-general.     This 

*  1  may  hero  particularly  refer  to  his  clear  and  minute  exposition, 
under  the  head  of  *^  Connection  between  lands  and  titles  of  honour/' 
Chap.  lY.  from  p.  43  to  p.  70,  which  I  humbly  conceive  will  infer 
conviction  even  to  ordinary  capacity.  The  instance  of  the  Earldom  of 
Wigton,  in  1342, 1366,  and  1371,  (at  pp.  61-2,)  is  especially  striking, 
the  respective  grants  of  the  '^  Comitatws'^  to  the  original  disponee,  and 
— upon  a  sale— to  a  stranger,  afiecting  the  dignity,  and  both  making, 
and  unmaking  an  Earl ;  in  which  last  event  the  individual  dwindled 
into  a  commoner.  This  fully  instructs,  as  Lord  Hailes  inculcates,  (at 
p.  50,)  that  in  ancient  timefi  ^'  the  title  of  honour"  was  understood  to  be 
"  inseparably  connected  with  territory."  He  likewise  illustrates  the 
principle  in  the  Sutherland  case  subsequently,  and  much  later  down, 
including  portions  of  the  16th  century :  yet  Lord  Mansfield  takes  it 
upon  him  to  say^  that  no  *'  satisfactory  evidence  has  been  shown  upon 
this  point."    See  Mr.  Maidmcnt's  Pub.  p.  10. 


IN  SCOTTISH  PESRAGE8,  &;C.  60 1 

he  utterly  regards  as  nothing,  first,  because  the  original  con-  • 
slitution  (Umgobardici)^  though  not  preserved,  may  have  been 
to  beirs^mafe ;  and  secondly,  as  before,  forsooth,  that  the 
Comiiatus  merely  related  to,  and  carried  the  estates,  and  not 
the  dignities  1 1  ^  Nothing  can  be  conceived  a  more  outrag- 
eous beg^g  of  the  question. — The  conveyance,  or  recenter 
constitution,  moreover,  of  the  **  Comitatus  *'  of  Strathem,  by 
Robert  the  Second,  in  favour  of  heirs-general,  under  which 
the  hevt-female  succeeded  as  ^  Countees"*  and  the  still  earlier, 
and  remarkable  Parliamentary  Batony  and  Regality  of  the 
Lordship  of  Man,  by  Robert  I.  m  1324, — ^with  the  constant 
attendant  title  of  Lord  of  Man — of  which  Lord  Mansfield 
neither  knew,  nor  dreamt — ^in  favour  of  such  identical  heirs,' 
— ^independentiy,  again,  of  the  ancient  Fyfe  instance,^ — dis- 
prove another  flagrant  misconception  he  falls  into,  of  there 
bdng  no  grant  of  dignities  before  the  time  of  James  L  but  to 
heirs-ntofe.^  According,  incontestably,  to  his  strange  and  crude 
notions,  if  the  Earldom  of  Sutherland  had  not  gone  to  the 
heir-female,  in  exclusion  of  the  heir-male,  in  1514, — the  cir- 
cumstances otherwise,  being  yet  precisely  as  they  are, — it 
would  infallibly  have  heen/Mricated  in  his  hands  into  a  male 
honour,  and  been  awarded  by  him  to  the  male-heir,  instead  of 
to  Lady  Elizabeth.  But  withal,  in  the  same  instance, — and 
with  his  usual  luck  and  fatality,  altiiough,  like  persons  espous-  ^^  ^ ««  Par- 
ing a  bad  and  untenable  cause,  he  is  guilty  of  a  striking  con-  LwdManieeid. 
tmdiction,  and' of  a  glaring  ^/o  de  se.     He  insists  that  when 

*  ^  Though  ten  of  the  thirteen  original  peerages,  (we  must  now  add 
oA^includingthe  thirteen,  see  pp.  661-2yX  stated  in  Lady  Elizabeth's  case, 
have  gone  to  femaleSy  yet  I  am  not  convinced,  but  that  the  ort^ino/ limit- 
ations ifilsrA/  have  been  to  heirs  male  ; — no  man  can  say  when  (territorial 
honours)  did  ejfUt.  (!)  Possibly  before  1214,  bat  not  after.  (!)  Can 
it  then  be  maintained  that  a  grant  of  the  Comitatus  carried  the  honours 
80  late  as  the  time  mentioned  ?" ! !  (Mr.  Maidmenf  s  Pub.  pp.  18, 19.) 
This  is  indeed  cogent  reasoning,  especially  as,  independent  of  the  uni- 
▼ersal  adverse  testimony,  his  Lordship  has  not  a  single  scintiUa  of  a 
fact  or  aignment  in  support  of  such  manifest  and  ignorant  assumption. 

'  See  Lord  Hailes's  Suth.  case.  Chap.  V.  Sec.  13,  pp.  55-6. 

*  See  pp.  102-8.  *  See  p.  568. 

*  ^  It  comes  out  that  all  the  peerages  created  before  1424,  when 
James  I.  returned  from  England,  whose  limitations  now  appear,  are 
to  heirs  male.'*    (Mr.  Maidment's  Pub.  pp.  12, 13.) 


602  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

•  honours  were  territorial — that  ia,  by  bis  assertioDi  only  before 
1214— the  husband  of  a  feudal  Peeress,  in  her  own  right,  took 
the  dignity  by  the  courtesy }  This  was  a  peculiar  and  inher- 
ent  feature  of  the  system,  consequently  afterwards  exploded  ; 
— ^but  then  to  refute  the  absurd  claim  of  Sir  Robert  Gordon, 
upon  the  pretence  that  Adam  Gordon,  the  husband  of  Coun- 
tess Elizabeth,  after  1514,  had  the  title  by  a  new  creation, — 
from  whence  he  politely  made  it  go--under  Lord  Mansfield's 
auspices  too — to  heirs-male,  and  necessarily  to  himself,  he 
straightway  wheels  about,  and  retorts  in  reply,  that  it  was  not 
in  that  way  he  became  Earl  Sutherland,  but  actually,  will  it 
be  credited,  by  this  usage  of  the  courtesy  1 '  Why,  if  so,  did  it 
then  not  strike  his  Lordship  that  the  territorial  principle  and 
practice,  of  which  this  was  an  admitted  element,  and  that  con- 
nected honours  with  the  fief,  so  far  from  having  vanished,  as 
he  absolutely  asserted,  in  1214,  might  not  have  continued  a 
great  deal  later,  and  although,  in  manifest  opposition  to  his 
former  doctrine,  even  in  the  15th  century, — ^nay,  in  fact,  in 
1514  ?  Nor  is  this  all,  for  he  elsewhere  inculcates  that  **  in 
personal  honours  no  courtesy  took  place,"'  that  is  in  honours, 
precisely  the  same  as  he  would  represent  Sutherland,  stript 
of  their  territoriality,  which  is  again  to  his  own  palpable  refu- 
tation, for,  as  just  shewn,  he  contended  that  it  applied  to 
it  I  In  such  manner  Lord  Mansfield,  like  Lord  Lord  Bosslyn, 
as  formerly  exemplified,  blows  hot  and  cold,^  at  one  moment 

'  '^  It  is  clear  that,  when  they  were  territorial,  the  hushand  had  a 
right  by  courtesy  to  his  wife's  title,  as  well  as  to  her  estate."  (Mr. 
Maidment's  Pub.  p.  10.) 

'  Ibid.  p.  14 ;  and  he  adds  in  corroboration,  that  '*  the  idea  of  a  con-- 
nection  hetween  the  territory  and  the  title  of  honour  did  not  wear  out 
all  at  once,  but  by  degrees.  It  is  very  weil  known,  if  a  territorial 
:  peerage  descended  to  a  female,  the  husband  must  have  been  tenant  by 
courtesy,  both  of  the  estate  and  peerage.  It  was  indisputably  so  in 
England,  and  there  is  no  ground  to  think  it  was  otherwise  in  Soot- 
land,^*  (Ibid,  p.  15.)  Here,  to  our  great  surprise,  he  changes  to  the 
advocate  of  territoriality  in  Scotland,  comparatively  at  a  recent  period ; 
— and  pray,  how  are  we  again  to  reconcile  this  with  his  other  ailega* 
tions,  that  "  no  man  can  say  when  they  (territorial  honours)  did  ex- 
ist," or  shew  <<  any  satisfactory  evidence— upon  this  point?"  (See 
p.  698,  note  1,  and  Mr.  Maidment*s  Pub.  p.  10.) 

»  Ibid.  p.  10.  *  See  p.  259,  note. 


IN  SCOTTISH  PEERAGES,  &C.  60S 

upholding  the  comparadvely  modern  continuance  of  the  terri-  .  . 
torial  principle,  which  at  another  he  nearly  wholly  excludes, 
just  according  as  it  suits  him.  A  signal  instance  of  this  fur-  other  giving 
ther  occurs  in  respect  to  the  former,  in  his  desperate  attempt  contradicUon. 
to  prop  hb  argument  by  means  of  the  Earldoms  of  Fife  and 
Ross,  in  the  fourteenth  century.  He  before  would  not  al- 
low grants  of  a  *^  Comitatusj*'  from  1214  downwards,  to  carry 
a  dignity ;  but  now  he  appeals  to  much  later  charters  of  the 
<<  Comitatus  "  (merely)  of  Fife  and  Ross,  in  1362,  and  1369, 
in  favour  of  heirs-mafe  of  the  body, — though  faUing  these,  like- 
wise to  heirs^mafe  in  the  Ross  case,' — to  instruct  that  of  old 
all  peerage  constitutions  were  to  heirs-mo/e.'  Nay,  not  con- 
tent therewith,  he  even  goes  the  length  of  styling  these  charters 
''  Creations^*'  ^ — ^although  that  of  Ross  is  only  a  regrant  up- 
on a  resignation,  like  many  upon  which  Lord  Hailes  has 
founded  in  the  Sutherland  claim,  in  favour  of  heirs  generally, 
but  which  he  most  consistently  rejected.  This  is  indeed 
sad  ambi-dexterity  in  Lord  Mansfield,  always  keeping  in 
view  his  noted  resolution  in  the  Sutherland  claim,  that  such 
conveyances  of  a  ^*  Comitatus,"  in  the  14th  and  15th  centu- 
ries, do  not  *^  affect  the  title,  honour,  and  dignity,"  &c. —  This 
doctrine  therefore,  proceeding  from  his  own  mouth,  excludes 
the  Fife  and  Ross  precedents  from  bis  argument. 

Amid  such  contradictions— gratuitous  and  unauthorized  in- 
ferences of  his  Lordship— and  bis  superficial  and  mistaken 
researches,  it  is  no  wonder  that  he  lamentably  erred,  and  has 
perverted  and  mystified  our  Peerage  law.^ 

'  See  Mr.  Maidment's  Pub.  p.  18.  The  same  remark  applies  to 
another  Earldom  he  there  mentions. 

•  See  Begist.  Dav.  II.  p.  31,  No.  G2,'-ihid.  p.  74,  No.  258.  These 
are  abstract  charters  of  a  "  Comitatus^*  and  unquestionably  what  Lord 
Mansfield  refers  to.  That  of  Fife  is  styled  our's,  having  been  in  the 
crown,  though  long  before  constituted. 

'  Mr.  Maidment's  Pub.  ut,  mp, 

•  We  may  be  now  enabled  to  appreciate  what  is  termed  "  Lord 
Mansfield's  Law/'  that  <mee  obtained  a  strange  adventitious  celebrity, 
and,  according  to  Sir  Adam  Fergusson,  an  able  Peerage  lawyer  in  his 
day,  was  lauded,  and  ^  rung  in  (his)  ears  by  those  who  knew  nothing 
of  the  subject."  I  need  not  add,  that  he  expressly  deprecated  it.  The 
above  forms  part  of  his  remarks,  already  referred  to  under  the  article 
of  Cassilis,  (see  p.  678). 


604  INQUIEY  INTO  THE  LAW  AND  PRACTICE 

Lord  Camden*8     llie  argument  ofLord  Camden,  theonly  other  legal  dignitary 

arffumeDt  io  the     i  i  •    j      j  •  j  •  i*     1^1  vi 

Sutherland      ^^o  spoke,  seems  mdeed  meongruous  and  inexplicable.     He 
ca>««  does  very  justly  scout  the  notion  of  lands  and  honours,  both 

in  England  and  Scotland,  not  being  descendible  of  old  to  fe- 
males.   Nay,  he  is  at  pains  to  show,  most  relevantly,  that  the 
principle  was  solemnly  recognized  and  fixed  m  Scotland,  at 
the  competition  for  the  crown,  between  Bruce  and  Baliol ;  ^ 
but  then, — though  be  inculcates,  that  in  ancient  times  ^<  the 
grant  of  the  barony  itself  carried  the  dignity^'*  and  <<  they 
needed  only  to  look  to  the  landa^  and  the  dignity  folbwed,"  ' 
he  strangely,  and  perversely  will  not  admit  our  cotemporary 
or  even  oldest  Earldoms,  further  still  through  conveyances  of 
a  **  Cofnit€UuSf"  their  proper  style  and  description,  to  the  same 
comprehensive  construction  or  indulgence.^    By  some  incon* 
ceivable  and  arbitrary  whim,  he  draws  an  enchanted  and  con- 
demning circle  around  them,  holding  them  so  far  as  proscrib- 
ed, and  as  legally  precluded  from  it.     In  these  circumstan- 
ces,  while  he  concedes  that  the  Earldom  of  Sutherland, 
owing  to  its  devolution,  in  1514,  to  the  heir-female,  must 
go  to  Lady  Elizabeth,  the  successful  claimant,  he  yet,  like 
Lord  Mansfield,  regards  every  old  grant  of  a  ^^  Comitatus*' 
as  merely  carrying  the  feu  or  lands,  and  the  dignity,  without 
such  peculiar  specialty,  abstractly  to  rest  in  the  direct  heir- 
male, — that  is,  though  the  lands  might  descend  otherwise. 
He  unqualifiedly  says,  ^^  it  will  hkewise  be  understood,  as  an 
established  point,  that  kg  charter  of  the  Earldom  or  Lord- 
ship, without  mentioning  the  dignity,  shall  be  understood  to 
carry  the  title  of  honour."  ^     He  preposterously  thinks,  that 
every  oU  charter  of  a  Comitatus,  however  solemn  and  weighty, 
carrying  for  instance  the  important  and  super-eminent  privilege 
of  a  regality,  a  dominium  in  dominiot  as  in  the  Sutherland  in- 
stance in  1347,  has  no  greater  force  or  effect.^     He  confess- 
edly subjects  the  matter  here  to  a  modern,  most  inadequate, 
and  inapplicable  criterion.     As  will  be  afterwards  shown, 
under  the  head  of  the  Earldom  of  Caithness,  there  was  a 
Royal  charter  of  the  **  Comitatus  "  of  Caithness  in  1476,  to 

1  Seo  Mr.  Maidment's  Pub.  pp.  26,  26. 

•  Jbid.  jK  23.  ■  Ibid.  pp.  21,  22. 

*  Ibid,  p.  22-3.  *  Ibid,  p.  21 . 


IN  SCOTTISH  PEEBAOES,  &C.  605 

William  Sinclair,  the  youngest  son  of  William  Earl  of  Orkney  Muiifettrarou- 
and  Caitbness,  proceeding  upon  the  rengnadon  of  the  latter,  J^g  aiu^ril 


who  bad  two  elder  sons.  WilUam  and  Oliver.   Mow,  accordinir  ^f*  ^7.^^    . 

^  of  CaiUmesB  in 

assuredly  to  Lords  Mansfield  and  Camden,  as  a  ^*  Comiiatus'*  i476. 
grant,  of  whatever  date, — even  a  great  deal  earlier,  does  not 
'^affect  tlie  title,  honour,  or  dignity  of  E^l,"  but  operates  as 
a  conveyance  ^* of  the  estate  only"  the  dignity  of  Earl  of 
Caithness,  previously  hereditary  in  the  father,  should  have 
devolved  notwithstanding,  upon  William  the  eldest  son,  and 
his  heirs,  die  mere  lands  *<  only**  going  to  William,  junior .  But 
practice,  which  is  much  better  than  most  theories, — certainly 
than  those  of  the  above  modem  authorities, — ^here  instructs 
the  direct  contrary,  and  rivets  my  argument ;  for  it  so  turns 
out,  that  under  the  conveyance  in  question,  as  has  been 
tested  in  the  most  unanswerable  and  conclusive  manner, 
the  dignity  did  descend  to  William,  junior.  Nay,  under  it, 
as  a  cardinal  title,  though  altered  in  the  limitation  by  a  sub- 
sequent Royal  charter, — ^but  again,  it  will  be  observed,  solely 
of  the  <'  Comiiatus" — moreover  to  his  direct  heirs ;  and  is 
actually  held  by  their  representative  at  the  present  mo- 
ment. And  this,  while  William,  the  eldest  son,  and  his  heirs, 
have  been  obliged  to  be  contented  with  the  dignity  of  Lord 
Sinclair;  and  Oliver,^  the  second,  and  his  heirs,  with  no  dignity 
atalL 

But  this  is  merely  one  of  innumerable  illustrations,  to  the 
same  effect.  At  the  same  time,  it  is  evidently  here  difficult  to 
deal  with  Lord  Mansfield  in  his  Proteus  capacity, — as  was 
shewn  also  in  another  instance ;  ^ — for  this  enemy  to,  and  de* 
baser  of  **  Comitatus "  at  one  moment,  —  on  his  different 
bent,  has  admitted,  as  we  have  seen,  that  it  not  only  implied 
an  honour,  but  the  creation  of  a  Peerage.  Thus,  when  you 
press  him  hard,  and  think  you  have  him,— "^e^,  aper,  mode 
avis,  mode  saxum,*'  &c. — ^^  ejffugiet  tamen,  haec  sceleratus  vin- 
cula  iVo^^tt^." — Neither  is  it  less  observable,  that  Lord  Camden 
falls  into  the  same  contradiction  with  Lord  Mansfield,  before 
noticed,  first  asserting,  that  in  1455, — thus  even  earlier  than 

*  Oliver  will  be  proved,  under  the  article  of  Caithness,  to  have  been 
the  second  son,  and  William,  junior,  the  yowagest, 
•Seep.  376. 


606  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Simiiftr  contra-  the  Caithness  charter  in  1476, — when  a  charter  of  the  "  Co- 
Camden  with  a  nutoius  "  of  Sutherland  passed  to  heirs-general,  the  territo- 
i^iS  ManXid^™'  prindple,  and  honour  had  ceased, — ^indeed  long  before, 
and  yet  that   Adam  Gordon,  after  1514,  enjoyed  the  title 
of    Sutherland,   by    the    territorial  rule  of  the  courtesy.^ 
When  I  further  add,  that  deriving,  at  the  same  time,  his 
information  of  our  ancient  Earldoms  from  Lord  Hailes's 
valuable  and  universally  esteemed  Sutherland  case,  he  yet 
chooses  to  designate  it  by  the  epithet  of  ^^rttbbishf"^  I  think 
I  may  venture  to  leave  his  effusions  and  speculations  to  the 
just  discrimmation  of  others,  without  much  apprehension  of 
my  doctrine  being  thereby  endangered,  or  serious  fear  of  the 
consequences.     Indeed,  in  perusing  the  speeches  of  the  pre- 
ceding unfortunately  legal  umpires,  as  tiiey  have  proved,  we 
are,  I  conceive,  insensibly  reminded  etiam  in  re  tarn  exiguii, 
— according  to  Chancellor  Oxenstiem, — **  quam  parva  sapi- 
entia,"  or  penetration,  *^  mundus  regitur."    Lord  Hardwidce, 
at  least,  was  less  confident  and  assuming,  and  honestiy  admit- 
ted that  the  matter  in  question  was  ^* obscure*'  and  difficult;^ 
but  Lord  Camden,  on  the  contrary,  openly  asserted,  that  it 
was  simple  and  extremely  ^*  clear ;"  *  thus  prepared,  rashly,  it 
may  be  admitted,  and  proud  in  his  own  conceit,  to  overleap 
every  obstacle, 
aaim  of  Sir        The  claim  of  Sir  Robert  Gordon  to  the  Earldom  of  Suther- 
t^^the  ^w  ^"  land,  at  the  same  juncture,  has  been  noticed.    It  was  certainly 
of  Sutherland    untenable,  assuming,  without  any  proper  proof,  and  what  was 
um?*  **"*    absolutely  negatived,  that  Adam  Gordon,  husband  of  Coyn- 
tess  Elizabeth,  in  1514,  had  been  cTcated  Earl  of  Sutherland, — 
in  virtue  of  which  supposed  constitution,  their  heirs  afone,  it 
was  pretended,  held  the  dignity,  that  was  descendible,  of  course 
to  heirs-male  of  the  body, — according  to  Lord  Mansfield 8  law, 
— from  ignorance  of  the  limitation,  and  hence  to  Sir  Robert, 

1  Ibid.  pp.  23,  28. 

'  Ibid.  p.  21.  I  mnst  be  allowed,  with  eve)ry  apology,  here  to  repeat 
in  reference  to  him  and  the  production,  Gnecum  est  non  potest  kgi ; 
nor  is  the  illegibility  in  this  instance,  by  the  foreign  individual,  as  I 
may  style  his  Lordship,  at  all  unnatural. 

'  See  Mr.  Mudment's  publication  of  Cassilis  case,  pp.  56,  67^. 

*  His  Sutherland  publication,  p.  21. 


IN  SCOTTISH  PEERAGES,  &C.  607 

the  nearest  in  such  relation.     All  in  support  of  the  theory  is 
an  unsupported  allegation  of  Ferrerius,  a  foreigner,  who  wrote 
a  history  of  the  Gordons  at  the  middle  of  the  16th*century,* 
that  the  previous  Adam  Gordon,  on  his  marriage,  ^'  Comes 
SutfaerlandisB^-creatur.'*    But  the  authority  of  this  person, 
by  no  means  always  accurate^  and  under  the  special  circum- 
stances, cannot  be  admitted.     The  creation  also,  if  true,  was 
liable  to  this  legal  objection,  owing  to  the  date,  that  it  must 
have  been  the  unwarranted  act  of  a  regent,  who,  it  was  argued 
without  refutation^  could  not  confer  a  dignity. '     Supposing, 
howerer,  there  had  been  such  grant,  liable  to  no  objection, 
by  which  the  subsequent  Sutherland  line  exclusively  took,  the 
Earls  of  Crawford  and  Errol,  as  well  as  certain  other  Earls^  Suppoied  in- 
would  have  then  had  the  precedence  of  them, — ^though  not,  as  ^l^  ^f  Cnw- 
things  actually  stood,  the  authentic  era  of  the  constitution  of  fo'<i  ^^  ^^^^ 
the  Earldom  of  Sutherland  being,  as  has  been  shewn,  at  least 
antecedent  to  1245,  while  that  of  the  former  was  respectively 
in  1398,  and  during  the  reign  only  of  James  II.     Yet,  under 
the  previous  hypothesis,  the  House  of  Peers,  the  16  th  of  March 
1769,  ordered  Lady  Elizabeth   Sutherland,   the  successful 
Sutherland  claimant,  to  give  notice  '^  to  the  Earl  of  Crawford 
and  the  Earl  of  Errol — that  they  may  appear  before  the  said 
Committee  (qf  Privileges)  for  their  interest "  so  far,  **  in  case 
they  shall  be  so  advised."  ^    On  the  12th  of  March,  1770,  two 
counsel  were  appointed  to  be  heard  for  these  Earls.  ^     But 
they  don't  seem  to  have  been  disposed  to  act  with  vigour,  or 

'  Two  MS.  copies  of  this  performance  exist, — one  in  the  Advocates' 
Library,  and  the  other  among  the  Harleian  Collection,  in  the  British 
Museum.  A  difierent  velrsion  of  the  matter,  too,  is  given  by  another 
historian,  Alexander  Rossieus,  who  wrote  in  iS27,  in  his  account  of 
the  family  of  Sutherland,  where  he  says  that  Adam  Gordon  of  Aboyne 
**  EHxaJbetha  Sutherlandise  herede  uxore  ducta,  hujus  Provincia  (Suth^ 
erlandj  comes  evasit,"  and  adds,  that  Elizabeth  **Juxta  regni  consue^ 
tiuRnemy  lucres  Sutherlandise  Comitatus  proximo,  anno,  1514  declarata 
fait,** — ^that  is  obviously,  as  has  been  seen,  on  her  being  feudally  en- 
tered by  the  crown.  One  MS.  copy  of  this  work  of  Rossa^us  was  in  the 
poasesaion  of  the  Kinnoul  family. 

'  He  could  however  with  us,  by  consent  of  Parliament^  as  instructed 
by  the  case  of  the  creation  of  the  Barony  of  Stewart  of  Uchiltriey 
Mafch  15, 1542.    (See  Acts  of  Pari,  last  Edit.  vol.  II.  p.  413.) 

*  Lords*  Journals.  *  Ihid. 


608  INQUIRY  INTO  THE  LAW  AND  PKACTICE 

to  revive  that  contest  for  precedency  which  was  so  keenly 
agitated  by  their  predecessors  before  the  Union. 
Barony  of  Gor-     It  having  been  rumoured,  though  by  no  means  instruct- 
rnoc  .  ^  ^^^  ^^  ^^^  ^^  Baron  Gordon  of  Dornoch  had  been  re- 
cognised in  the  fietmily  of  Sutherland,  in  1617,  Sir  Robert 
Gordon  also  claimed  it  by  petition  and  reference,  in  1769.' 
No  resolution,  however,  was  here  come  to,  and  the  pretence 
appears  to  have  been  visionary  and  groundless. 
Claim  of  Suih-     The  claim  of  George  Sutherland  of  Forse,  the  remaining 
one.  QQuipg^^f^  ^^  founded  upon  the  doctrine  of  the  old  Lon- 
gobardic  feudal  law,  by  which  fiefs,  including   Earldoms, 
went  exclusively  to  heirs-male ;  but,  as  formerly  instructed, 
there  is  no  trace  of  the  rule,  however  received  elsewhere,  hav- 
ing operated  in  Scotland.  Indeed,  every  thing  tends  to  ihe  con- 
trary.    The  circumstance,  therefore,  of  the  former  being  the 
lineal  heir-male  of  the  original  Earls  of  Sutherland,  however 
ancient  and  distinguished  the  descent,  could  prove  to  him  of 
no  avail.     Of  course,  he  bolstered  his  plea  by  the  question  be- 
ing that  of  an  honour,  and  not  necessarily  prescribed  by  the 
protracted  adverse  possession  of  the  heir-female  since  1514. 
By  the  settlement  of  the  Sutherland  estates,  fisdling  Lady 
Elizabeth,  they  went  to  the  heirs  to  the  honours ;  and,  in 
consequence.  Lady  Elizabeth  Wemyss,  her  aunt,  the  next 
heir-at-law,  was  allowed  by  the  Lords,  the  1 6th  of  March  1769, 
(upon  her  petition,)  to  maintain  a  corresponding  argument 
with  the  former  against  the  counter-claimants.  *    In  general, 
the  House  of  Lords,  as  will  be  further  shewn  in  the  sequel, 
allow  any  one,  upon  a  feasible  ground,  or  in  support  even  of 
no  very  material  interest,  to  object  in  a  Peerage  claim. 
Cases  of  the        The  ^*  Comiiatus  "  of  Caithness,  as  already  partly  obvi- 
c*ih^™  °^n    ^**®*  ^^  constituted  in  the  person  of  William  Sinclair,  young* 
1768, 1771-s,  esi  son  of  William  Earl  of  Orkney  and  Caithness, — the  first 
i787,«idi7M.  j;^j.j  ^f  Caithness  of  his  Une,_in  exclusion  of  his  two 

elder  brothers, '  and  their  issue,  by  a  Royal  charter,  upon 

*  Lords'  Journals.  The  petition  was  presented  to  the  Lords  the  16th 
of  March,  in  that  year. 

'  Lords'  Journals. 

'These. were  William  geniar^  mainly  disinherited, — ^the  eldest, — 
whose  son  and  heir,  Sir  Henry  Sinclair,  as  <'  cheiff  of  yat  blade,"  had 


IIMCOTTISH  PEfiRAa&Sy  &C.  609 

record,  dated  December  7, 1476,  proceeding  upon  the  fadier's 
vesignation,  with  lindtatioa  to  William,  younger,  ^^ethere^ 
dibua  ipAua  ^abuscumqueJ*     In  virttte  of  diia  grant  alone  of 

a  Iteliamentary  confirmation  of  the  titla  of  *^  Lord  l^ndare/'  January 
14^  1488;  ^*  efter  the  forme  of  ye  oharteris  and  evidentis  maid  thanip- 
oauy*'  (see  Acts  of  Pari,  last  edit.  vol.  II.  p.  213>)  and  Sir  Oliver  Sinclair 
of  Rodyn; — but  whether  the  latter,  or  the  William  in  the  text^  was  the 
elder,  has  been  controverted,  and  keenly  disputed  by  their  descendants. 
The  following  material  legal  deed,  however,  may  fairly  settle  the  qmea- 
tion.  Contract,  nnder  form  of  Instmment,  9th  of  February  1481,  be- 
tween WiUiam  Sinclair,  ^  wn  and  heir  of  umquhile  William  £ari  of 
Caithness,  and  Lord  of  Saint  Clair," — Henry  Saint  Clair,  his  son  and 
apparent  heir ;  and  Sir  Oliver  Sinclair,  whereby  the  last  renomioes  in 
lavonr  of  the  former  the  lands  of  Dysert  and  Ravynseraig,  with  all 
rights  and  securities  thereof,  ^not  scaithiess  to  hinueff  in  other  lands, 
ner  to  hU  tovngbk  broker  WiUiam^**  but  in  return  he  is  to  have  Besa* 
lyn,  including  the  Castle,  PencaiUand,  &c.  *^  And  ye  said  Sir  Oliver 
shall  in  tyme  to  come  doe  worship  and  honour  to  ye  saide  William,  as 
effeirs  and  accords  him  to  doe  to  his  eldest  brother,  and  give  it  happins 
any  plea  or  debaitt  to  be  betwixt  ye  said  William,  and  his  ffouriger 
brother  for  ye  Earledom  of  Caitlmes,  the  saide  Sir  Olipher  shall  stand 
evinlie  betwix  yame."  This  final  settlement  and  transaction  is  from 
the  Pencaitland  Charter-chest,  among  the  writs  of  Sir  John  Gibson  of 
Pencaitland.  In  1509,  there  is  mention  in  a  civil  process,  of  ^^  Henry 
lorde  Sindare,  ye  are  and  successor  of  umquhile  Williame  erle  of  Ork- 
nay,  for  ye  tyme  erie  of  Caithness,  and  lorde  Sindar,"  and  of  ^umqu- 
hile William  Sinclaire,  son  and  are  apperande  to  ye  saide  umquhile 
Williame  erle  of  Orkney,"  whidi  last  is  stated  to  have  married  Chria- 
tian  Lesley,  daughter  of  ^  umquhile  George  Earl  of  Bothes,"  (by  his  di- 
vorced Countess,  see  pp.  453-4.)  Acts  and  Decrees  of  Supreme  Citnl 
Court,  In  1511  also,  Henry  Lord  Sinclair  protests  that  whatever  was 
d<me  ^  anent  ye  eridome  of  Caithness  &c. — suld  not  tume  him  nor  his 
airis  to  prejudice.  And  for  remeid  yeragain,  tyme  and  place  effer- 
ande."  Ibid,  Owing  to  the  failure  of  the  male  line  of  William  senior, 
(the  present  Lord  Sinclair  being  of  a  difierent  stock  of  Sinclairs^)  as 
well  as  of  Sir  Oliver  Sinclair,  Alexander  now  Earl  of  Caithness,  the 
male  descendant  of  William  Junior^  is  heir-male  of  the  original  Wil- 
liam Earl  of  Orkney  and  Caithness,  and  chief  of  the  family.  The 
Ptoliamentary  confirmation  of  the  title  of  Lord  Sinclair,  noticed  in 
1488,  being  to  Lofd  Henry,  upon  the  consideration  of  his  being  heir  by 
his  fiither,  and  William  skrl  of  Orkney  and  Cuthness,  his  grandfather, 
**  Lord  Sinclair,"  and  after  the  form  of  the  relative  grants,  is  not  the 
old  dignity  in  them  conveyed,  and  should  not  the  ranking  of  the  Ba- 
rony, confirmed  and  extended  to  new  St.  Clairs  by  patent  in  1^7^  (see  p. 
55,)  be  therefore  considerably  before  1488,  the  date  now  assigned  to  it  7 

2a 


610  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

the  ^^  Comitatus^**  the  disponee,  hence  but  a  singular  succes* 
DeicentofEari-sor,  was  Earl  of  Caithness,  and  inherited  the  honour,  as  well 
ness.**'^"***'  as  the  landed  fief,  in  striking  refutation,  as  has  been  re- 
marked, among  a  host  of  concurrent  authorities,  of  Lord 
Mansfield's  memorable,  and  ever  to  be  stigmatized  hallucina- 
tion in  the  Sutherland  claim,  that  honours,  with  us,  became 
wholly  personal  after  1214;  and  that  such  charters  of  a  "  Com* 
itatus"  even  as  far  back  as  the  13th  and  14th  centuries,  &c. 
had  no  relation  to  dignities^  but  operated  as  conveyances  of 
"  the  estate  only,'* 

But  by  a  later  charter  of  the  **  Comitatus "  of  Caithness, 
the  2d  of  October  1545,  upon  a  resignation,  it  was  made  des- 
cendible to  heirs-ma/e;  while  corresponding  Royal  regrants  of 
the  same  followed,  on  the  3d  of  April  1592,  and  thereafter.^ 
The  alteration  of  the  investiture  may  be  regarded  as  hav- 
ing diverted  the  honours  into  the  male  channel. 

George,  sixth  Earl  of  Caithness,  lineal  male  descendant  of 
the  noble  disponee  in  1476,  after  an  inefiectual  attempt  in 
1672,  as  formerly  stated,'  to  convey  the  honours  and  estates 
to  Sir  John  Campbell  of  Glenorchy,  afterwards  Earl  of 
Breadalbane,  died  in  1676,  without  issue,  when  he  was  suc- 
ceeded in  the  former  by  George  Sinclair,  his  heir-male,  only 
son  of  Francis,  second  son  of  George  the  fifth  Earl.  This 
George,  hence  the  seventh  Earl,  whose  right  was  specially  ad- 
mitted by  the  Crown  in  1681,  ^  died  unmarried,  in  1698,  leav- 
ing an  only  sister,  Jane,  the  wife  of  Sir  James  Sinclair  of 
May ;  but  the  honours  then  devolved,  to  her  exclusion,  on 
John  Sinclair  of  Murkle,  the  eighth  Earl,  as  next  collateral 
heir-male,  the  male  descendant  of  Sir  James  Sinclair  of 
Murkle,  (his  grandfather,)  second  son  of  John  Master  of 
Caithness,  which  last  had  predeceased  George,  fourth  Earl 
of  Caithness,  his  father,  who  died  in  1682. 

Upon  the  death  of  Alexander,  ninth  Earl  of  Caithness,  in 
1765,  the  son  and  heir  of  the  said  Earl  John,  the  dignities, 
again,  instead  of  centering  in  Lady  Dorothea  Smclair,  his 
only  child,  the  wife  of  James  Earl  of  Fife,  were  exclusively 
claimed  by  two  asserted  male-heirs, — first,  by  James  Sinclair, 

'  They  are  all  to  be  found  in  the  Great  Seal  Register. 

•  Sec  pp.  2e— 72.  »  See  pp.  29,  30. 


IK  SCOTTISH  PEERAGES,  &C.  611 

who  Styled  himself  Earl  of  Caithness,  and  protested,  on  his 
vote  not  being  received  at  an  election  in  1766,  ^  alleging  him- 
self, through  his  father,  David  Sinclair  in  Thurso,  to  be  grand- 
son and  heir-male  of  David  Sinclair  of  Broynach,  undoubted 
second  lawful  brother  of  John  Sinclair  of  Murkle,  who  suc- 
ceeded as  eighth  Earl  in  1698 ;  and,  secondly,  by  a  more 
remote  relative,  William  Sinclair  of  Ratter,  founding  as  male 
descendant,  (as  he  truly  was,)  of  Sir  John  Sinclair  of  Green- 
lands  and  Ratter,  younger  brother  of  Sir  James  Sinclair  of 
Murkle,  who  has  been  mentioned,  the  grandfather  both  of 
the  said  John,  the  eighth  Earl,  and  of  his  brother,  the  said 
David  Sinclair  of  Broynach, — who  was  thus  near  in  the  scale 
of  propinquity.  William  Eclair  also  answered  another  pro-  Competition  for 
test  by  his  opponent,  James  Sinclair,  as  before,  at  a  Peerage  ^aa^^behlreen 
election  in  1768,  maintaining  his  preferable  claim ;  and  **  that  two  parties. 
by  the  laws  and  practice  of  this  country,  it  is  an  established 
rule,  that  where  a  collateral  heir-male  claims  a  Peerage,  he 
must  first  estabUsh  his  right  by  a  regular  service^  as  heir  to 
the  person  who  last  enjoyed  the  dignity," — which,  he  added, 
James  had  not  done,  (although  he  had  taken  out  brieves  for 
the  purpose,)  but,  with  '^  the  highest  presumption,"  had  as- 
sumed die  dignity,  which,  by  order  of  the  Court  of  Session, 
in  the  litigatibn  to  be  immediately  noticed,  he  was  *^  obliged 
to  lay  aside." ' 

Agreeably  to  the  constant  and  appropriate  rule  in  ques-  Both  flnt  pro- 
tion,  to  fix  their  respective  pedigree  and  propinquity,  both  par*  ^***  ^^  wtuce, 
ties  forthwith  took  out  brieves  in  their  individual  capacity,  to 
be  served  heir-male  of  Alexander  the  ninth  and  last  Earl,  and 
a  mutual  competition  thus  arose  between  James  and  William 
Sinclairs.  William  admitted  the  nearer  descent  of  the  other 
defactOi  as  he  set  forth,  but  objected  bastardy  against  him, 
because  Janet  Ewen,  the  mother  of  David,  James*s  father,  was 
not  the  wife  of  David  Sinclair  of  Broynach,  the  father,  again, 
of  David,  from  whence  it  resulted  that  James  the  claimant 
taking  through  this  channel,  was  necessarily  illegitimate, 
and  barred  from  the  succession.  This  was  in  fact  the  only 
possible  objection,  although,  if  admitted  conclusive — the  same 

'  See  Robertson's  Peerage  Proceedings,  p.  319. 
•  Robertson's  Peerage  Proceedings,  p.  342. 


612  INUUIRY  INTO  THE  LAW  AKD  PRACTICE 

descent    being   otherwise   unquestionable,    and   conclusive. 

The  Court  of  the  Macers,  before  whom,  according  to  the 

practice  of  the  time,  the  matter  came,  (in  1767)  allowed  a 

William  Sin-    conjunct  proof ;  and  after  examination  of  various  witnesses  up- 

by  the  service,  on  the  points  at  issuc,  and  adduction  of  written  proof,  princi- 

in  1768.  pally  by  William  Sinclair,  in  behalf  of  his  descent,  the  Jury, 

on  November  28,  1768,  returned  a  verdict  in  his  favour  as 

heir-male  of  Earl  Alexander. 

By  the  Information  for  James  Sinclair  in  a  subsequent  pro- 
cess, he  laboured  on  the  occasion  under  every  disadvantage, 
being  himself  poor  and  destitute,  without  any  interest  in 
Caithness,'  the  scene  of  operations,  or  having  sufficient  legal 
assistance,  while  his  opponent,  besides  a  gentleman  of  fortune, 
possessed  both  in  a  high  degree.  He  also  complained  that  a 
re-examination  pf  certain  witnesses  had  been  denied  him,  up- 
on the  opposition  of  the  latter,  who  justly  dreaded  it,  from 
which  material  results  might  have  been  expected,  and  that 
his  very  obscurity,  and  the  charge  of  illegitimacy  in  his  in- 
stance, had  operated  unfavourably  to  him.  Nay,  that  the 
Jury,  so  far  from  being  unanimous,  were  difficulted  and  divid- 
ed in  opinion, — some  even  thinking  that  they  were  not  com- 
petent to  the  question,  which  was  strictly  consistorial. 
Sustained  by  Accordingly,  before  the  service  was  retoured  to  Chancery, 
mo?*uplon  an  Ja^acs  Sinclair  brought  it  under  review  of  the  Court  of  Ses- 
actionof  reduc-gion  by  an  actiou  of  reduction,  where  he  was  only  enabled  to 

tion  by  James      ,  .    .  '  •      ^'  r  •  ^     •   i  -^  j 

Sinclair.  obtaui  an  exammation  of  some  immatenal  new  witnesses,  and 

who,  upon  July  21,  1770,  absolved  his  opponent  from  the 
conclusions  of  the  action,  and  ordered  the  service  to  be  re- 
toured  to  Chancery. 

William  Sinclair  of  Ratter,  however,  still  did  not  think  him- 
self secure,  but  actually  now  applied  to  James  Sinclair,  as  he 
positively  maintained,  for  a  ratification  of  the  decision  *'  by  a 
proper  deed  under  his  hand,"  promising,  in  the  event  of  his 

*  According  to  the  testimony  of  Sir  William  Dunbar,  April  14, 1791, 
upon  the  subsequent  claim  of  Sir  James  Sinclair  of  May  to  the  Earl- 
dom of  Caithness,  (see  Minutes  of  Evidence,)  he  was  then  '^of  a  lower 
degree,*'  and  not  in  "  Gentleman's  company,"  while  his  wife  was  the 
daughter  of  one  of  his  tenants.  Younger  sons,  however,  of  good  fami- 
lies in  the  north  were  sometimes  taxmen  and  rentallcrs. 


IN  SCOTTISH  PEERAGES,  &C.     *  613 

compliance,  to  procure  him  an  ensigncy  or  life-rent  tack  out 
of  his  estate, — but  which  the  latter  indignantly  rejected. 

The  successful  competitor  having  thus  instructed  his  status,  claim  of  Wiu 
aa  heir-male  of  the  family  of  Caithness,  according  to  the  ap-  jj*"  Sinclair 
proved  form,  next  claimed  the  honours  in  the  House  of  Peers,  House  of  Lords, 
by  a  reference  to  them,  the  5th  of  February,  1771,  (upon  a*"  *^^*' 
petition  to  the  Crown,)  where  he  pointedly  founded  upon  his 
retour.^     That  Tribunal,  thereafter,  ordered  him,  the  16th  of 
March  1772,  to  give  notice  to  James  Sinclair,^  which,  in  his 
petition  on  the  ensuing  3d  of  April,  he  stated  he  was  unable 
to  do,  because  he  had  found,  on  inquiry,  that  James, —the 
previous  5th  of  February,  had  sailed  as  a  cadet  for  the  East 
Indies,  ^<  as  will  be  proved  by  the  affidavit  of  a  Gentleman/'^ 
The  House,  on  his  application,  therefore,  at  the  same  time 
ordered  him  merely  to  give  notice  to  the  agents  of  the  for- 
mer ;^  after  which,  trusting  to  what  had  preceded,  they,  with- 
out  farther  procrastination,  the  7th  of  May  1772,  at  once  re- Resolution  in 
solved  in  favour  of  the  claimant,^  who  succeeded  to  the  hon-  j*^®^^*^*'"'^'  *" 
ours  accordingly,  under  the  due  sanction  and  approbation  of 
the  Crown. 

The  just  and  precautionary  step  in  the  first  instance,  is  Remarks. 
strangely  contrasted  by  the  precipitancy  in  the  last,  under  the 
circuoistances,  and  after  the  repugnance,  and  opposition  of 
part  of  the  Jury  in  1768,  that  must  have  been  known,  or 
ought  to  have  been,  to  the  Lords ;  while  James  Sinclair  was 
now  out  of  the  reach  of  hearing,  and  thus  capable  subsequent- 
ly, of  objecting  the  plea  of  a  judgment  in  absence,  and  non 
valentia  agendi^  that  would  have  voided  such  procedure  in 
our  Courts.  But,  in  fact.  Lord  Mansfield  and  his  coadjutors 
were  too  eager  speedily  thereby  to  inculcate  their  favourite 
doctrine,  of  the  descent  of  Peerages  not  constituted  by  wto- 
dem  patent,  to  heirs-male  of  the  body, — and  with  the  usual 
luck  and  fatality, — that  likewise  happened,  (as  in  the  case 
of  Borthwick,)  signally  to  characterize  their  eflForts.  By 
what  strict  evidence  too,  it  may  be  asked,  did  the  House 

^  Lords'  Journals.  '  Ibid. 

■  Here,  at  variance  with  the  procedure  in  the  Wigton  ease,  aa  will 
lie  afterwards  seen,  the  Lords  received  affidavits. 
•  Lords'  Journals.  *  Ibid, 


614  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

extinguish  David  Sinclair  of  Broynach,  an  undoubted  nearer 
Procedure  looieheii'-niale,  ^ven  admitted  by  William  Sinclair  ?  By  none  ex- 
comparaUTeiy,  ^^^j^  y^y  ^^  parolo  testimony  adduced  below — not  the  most 

ftDd  premature  ...  , 

under  the  cir-  Convincing,  it  may  be  held, — ^indeed  disputed  by  some  of  the 
cumitances.  j^^^  -^  1768,— a  fact  that  might  have  startled  them,— and 
whose  credit  and  veracity  may  be  ascertained  in  the  sequel. 
Had  the  cause  been  influenced  by  rules  enforced  on  other  oc- 
casions, the  Lords,  would  not  have  remained  satisfied  with  it, 
but  compelled  a  personal  examination  of  the  witnesses  at 
their  bar.  Indeed,  as  has  been  seen,  4hey  were  with  difficulty 
induced,  in  the  Borthwick  claim,  to  allow  Margaret  Lady 
Borthwicky  an  aged  and  bedrid  witness,  and  unable  to  move* 
without  risk  of  her  life,  to  be  solemnly  examined  upon  com- 
mission by  the  Lords  of  Justiciary  on  the  circuit.'  This, 
with  the  summary  procedure  in  other  respects,  the  precipi- 
tancy, and  want  of  evidence  of  the  extinction  of  Francis  Sin- 
clair, a  preferable  heir-male — paternal  uncle  of  David  Sin- 
clair of  Broynach — who  is  admitted  to  have  gone  to  Sweden^ 
and  gratuitously  represented  to  have  had  no  male  issue,' — as 
to  which  afterwards — further  proves  that  the  House  of  Lords 
have  not  been  precise  and  uniform  in  their  procedure,  or,  as 
some  English  lawyers  have  ventured  to  assert,  always  demand- 
ed the  strictest  legal  evidence  in  Scottish  peerage  claims.' 
Indeed,  both  the  claimant  and  the  House  appear  to  have  re- 
lied principally  upon  the  contested  service  in  1768,  in  regard 
to  the  pedigree.  The  procedure  may  be  held  by  some  to 
have  been  lax  enough,  and  the  consequence  is  both  striking 
and  interesting. — David  of  Broynach  had  also  a  son,  Francis. 
The  utter  incapability  of  acting,  (there  not  being  then  in 
London  such  zealous  and  munificent  patrons  of  every  claim- 
ant to  a  Peerage,  as  in  our  days,)  from  absolute  poverty,  ^ 
and  want  of  requisite  assistance,  had  alone  prevented  James 

• 

'  See  p.  603. 

•  See  printed  Case  for  William  Sinclair  of  Ratter.         *  See  p.  684. 

*  David,  his  grsndfiEither,  he  represented  as  merely  designed  of  Broy- 
nach, probably  from  living  or  having  a  tack  there.  His  descendants 
were  destitute,  and,  as  we  have  seen,  in  a  lowly  situation,  while  the 
party  in  question  had  the  humble  description  during  the  competition, 
of  James  Sinclair  "  in  Reis,"  or  "  in  Thurso." 


■^ 


IN  SCOTTISH  PEERAGES,  &C.  615 

Sinclair  from  proceeding,  and  necessitated  him  to  accept  a 
situation  abroad.     Butihe  merely  went  there  to  better  his  cir* 
cumstances,  in  order  that  he  might  push  his  claim  at  a  future 
period, — which  he  never  for  a  moment  overlooked.     And  for-  Return  of  James 
tune  crowned  his  laudable,  and  arduous  efforts,  in  this  res-  luid,  and  re- ' 
pect,  with  success  ;  for,  at  the  long  interval  of  fourteen  years  ""^J®'*°** 
afterwards,  on  June  24,  1786,  he — now  a  captain  in  the  Hon-coYenesbyhim. 
curable  East  India  Company's  Service — was  enabled  to  re- 
turn to  his  native  country,  with  the  proper  means  for  the 
purpose.     His  first  and  prompt  step  was  to  present  a  peti- 
tion of  appeal  in  that  year  to  the  House  of  Lords,  as  the  Ap- 
pellate Jurisdiction,  against  the  judgment  of  the  Session,  in 
1770,  but  it  came  too  late,  and  was  withdrawn.     His  whole 
case,  (as  partly  evident,)  turned  upon  thb,  whether  David 
Sinclair,  his  father, — through  whom  he  claimed, — originally 
at  least  a  natural  son, — had,  or  had  not  been  legitimated  by 
a  marriage  between  David  Sinclair  of  Broynach,  with  Janet 
Ewen,  his  concubine,  of  which  they  were  both  capable,  being 
so/utus  and  soluta ;  and  fortune  here  again  assisted  him  in  a 
signal  and  opportune   manner.     He  learned  *^by  accident" 
that  a  near  relative  of  William  Sinclair,  his  former  competitor, 
bad  mentioned  to  two  persons,  when  talking  of  the  Caithness 
claim,  that  he  knew  where  there  was  written  evidence  suffi- 
cient to  prove  the  marriage  of  Broynach^  (the  above  David 
Sinclair,)  with  Janet  Ewen,  nay,  '^  was  even  so  particular  as 
to  condescend  upon  the  place  where  they  lay,"  and  to  admit 
that  if  ^^  he  had  been  called  upon  at  the  time  the  aforesaid 
proofs  ^  were  led,  he  must  have  made  the  discovery."     Cap- 
tain James  came  also  to  be  informed,  that  '*  Mr   Andrew 
Robertson,  late  Minister  of  Kiltearn  in  Ross-shire,  who  had 
been  schoolmaster  and  Session  Clerk  to  the  Presbytery  of 
Caithness,  recently  after  BroynacVs  marriage  with  Janet 
EweUf  upon  deathbed,  about  the  period  of  the  former  proofs, 
and  hearing  of  the  point  at  issue,  had  declared  to  a  neigh- 
bouring clergyman,  that  Broynach  and  Janet  Ewen  were 
married  persons,  and  had  their  children  baptized,  as  such,  by 
Mr  William  Innes,  the  Minister  at  Thurso."     This  shows 

*  Those  during  the  competition  in  1768  and  1770. 


616  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

how  partial,  and  insuAcient  the  probation  nmat  have  been  in 
1770, — ^probably,  as  was  maintained,  owing  to  the  mfluence 
and  exertions  of  William  Sindatr  and  his  friends. 

After  such  favotxraUe  and  direct  clues,  the  party  lost  no 
time  in  deqiatching  his  agent  to  Caithness,  to  make  die  requi- 
site investigations ;  aiid  the  result  was  indeed  triumphant  and 
decisive.  The  latter,  on  examinid|g  the  Presbytery  recotda 
of  Caithness  from  1700,  ^  in  the  very  place  n%enii<medf*  ac- 
tually found  a  process,  by  the  Presbytery,  against  the  Rev- 
erend Arthur  Anderson,  an  Established  clergyman,  inier  alkty 
for  celebratiBg  aa  irr^ular  marriaye  between  David  Sinclair 
of  Broynach  and  Janet  Ewen,  wherein,  after  proof  being  led,^ 
and  the  charge  legally  instructed,  sentence  of  deprivation  by 
the  reverend  Court  was  pronounced  against  him*  The  fact 
in  question  thus  came  out  in  the  most  unbiassed  and  unexcep- 
tionable manner;  and  this  was  quite  res  nomter  veniens  ad  notu^ 
tiam,  and  entitled  to  the  due  weight  in  law  involved  in  the  plea ; 
for  who,  in  the  <^dinary  case,  without  such  fortunate  or  mi- 
raculous reference,  would  have  thought  of  exploring  Presby* 
tery  ordeals  in  matters  of  descent  or'pedigree  ?  ^  I  need  not 
add,  that  by  our  law  in  later  times,  and  at  the  period,  such  a 
marriage,  though  irregular,  had  legally  every  civil  effect,  and 
legitimated  the  issue.  Nay,  by  our  very  loose  and  unautho- 
rised modem  practice,  as  I  have  attempted  to  show,  a  great 
deal  less  would  have  sufficed,  even  a  simple  acknowledgment 
by  a  man,  (as  in  the  instance  of  Macadam, ')  of  a  female  as 
his  wife,  without  the  intervention  of  a  clergyman,  merely  be- 
fore ordinary  witnesses ;  and  Gretna  Green  marriages,  (by  a 
blad^sraitb,)  which  even  bind  English  parties,  are  not  to  be 
contrasted  with  the  former.  But  the  above  was  not  all :  a 
concurrent  and  material  procedure  was  discovered  in  the  Re- 
cord of  the  Kirk-session  of  Olrick,  in  which  parish  David 
Smclair  and  Janet  resided,  for  the  purpose  of  obtaining  pe- 
nance from  them,  tor  QnienuptUUdelinquencies,  previous  to  their 
procuring  one  of  their  children  baptized*  lliis  was  a  neces- 
sary derieal  measure,  on  account  of  the  immorality  of  their 

*  Independently,  too,  as  already  obvious,  there  was  the  fact  of  the 
judgment  in  1772  being  in  absence,  and  the  non  vakntia  agendi, 
'  See  pp.  482-3,  et  scq. 


IK  SCOTTISH  PEERAGES,  &C.  61? 

original  stitte  of.ooncubinage,  that  demanded  a|>propriate  ex- 
piation,— notwithstanding  the  purifying,  or  removal  of  civil 
objections  by  the  subsequent  marriage,  which  it  necessarily, 
at  the  same  time,  proved.  In  addition  to  this,  there  was  the 
pointed  parole  testimony  alluded  to,  and  more  of  a  corrobo- 
ratory kind,  irrefragaUy  substantiating  that  Captiun  James, 
after  all,  was  not  only  the  lairful  beir-male  of  David  Sinclair  Curious,  and 
of  Broynach,  his  grandfather,  but,  moreover,  of  the  Earls  of  ofmalterf/ 
Caithness,  and  justiy  entiUed  to  their  honours  and  dignities. 
Here,  then,  was  a  strange  and  most  anomalous  situation  of 
things, — occa^oned  by  the  inadvertence  and  precipitancy  of 
Lord  Mansfield  and  the  law  Lords, — ^iriVolving  all  the  hor- 
rors and  embarrassments  that  operated  in  the  untoward  case 
€i  Willoughby  of  Parham,  in  England ;  and,  to  a  lesser  de- 
gree, in  that  of  Borthwick«  ^  But  Captain  James  was  not  to 
be  deterred  in  the  just  vindication  of  his  rights,  and  those  of 
the  house  of  Caithness.  He  fortiiwith,  in  1787,  raised  an  ac-New  action  of 
tion  of  reduction  before  the  Court  of  Session,  (to  which  hej^^ggV^"^^^^^ 
regularly  betook  himself,  according  to  our  notions,  in  the  first  ^^  Judgment 
mstance,)  of  their  judgment  in  1770,  and  the  retour  it  had  previous  service 
sustained, — ^his  former  competitor  being  now  dead, — against ^'^  ^^^®* 
*<  John  Sinclair  of  Ratter,"  his  son  and  heir,  <<  assuming  and 
taking  upon  himself  the  tide  and  dignity  of  John  Earl  of 
Caithness," — ^^diom  he  thus  described.  On  the  20th  of  July 
thereafter,  in  the  same  year,  the  Lord  Ordinary  repelled^  in 
hoc  staiUy  the  summary  objection  of  the  defender  to  the  compe- 
tency of  the  action ;  and  issue  being  joined,  the  question  was 
brought  cfirectly  before  the  whole  Court,  through  printed  ca^ 
ses,  wherein  the  pursuer  founded,  as  f  tated  in  terms  of  his  ac- 
don,  upon  the  new  evidence.  Against  this  the  defender  bad 
nothing  actually  to  ofier,  nor  did  he  even  meet  it ;  he  exctu- 
»vely  stood  upon  the  res  judicata  in  1770, — in  favour  of 
which,  (that  was  relevantly  traversible  by  the  tcs  noviter 
veniens  ad  notitiam,)  even  the  vicennial  prescription  had  not 
run,  and  upon  the  resolution  of  the  Lords  in  1772.  He  con- 
tented himself  with  exclaiming  against  the  indecency  and 
grosa  impropriety"  of  the  degrading  designation  given 

*  See  pp.  685-6,  et  seq. 


tt 


618  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

him  by  the  pursuer,  derogatory  ^^  from  that  respect  which  is 
John  Sinclair,  due  to  the  coDstitutiou  and  to  the  law  of  the  land."  He  en- 
n*8ff,°onaiid'  trenched  himself  in  these  adventitious  outworks, — ^thus  eon- 
heir  of  the  pre-  structed  for  him  by  Lord  Mansfield,  * — maiittaininff  that  the 

vious  William,     ,,         ,,  /  .        „     i         ,  7 

deciineB  going       matter  was  no  longer  entire ;    that  the  pursuer,  by  not  op- 
inio the  merits,  posing  him  in  1771  and  1772,  had  acquiesced  and  barred  him- 
self ;  and  that,  *'  in  consequence "  of  the  Peerage  decision, 
**  the  title  and  dignity  of  Caithness  must  for  ever  remain" 
'    with  him.     He  hence  availed  himself  of  the  plea  of  the  intru- 
sive line  of  the  Lords  Willoughby  of  Parham,  in  England ; 
but  without  quoting  that  case,  or  entering  into  express  ar- 
gument or  authorises  in  his  behalf.     There  can  be  little 
doubt  what  would  have  been  the  result.     Under  the  autho- 
rity of  our  law,  as  inevitably  expounded  by  the  Supreme 
Civil  Court,  the  pursuer  would  have  been  adjudged  lawful 
male-heir  and  representative  of  the  Earls  of  Caithness ;  but 
he  might  not  have  been  held  heir  to  the  Peerage,  though  pro- 
perly turning  upon  the  same  hinge,  in  the  House  of  Lords, 
But  successful  who  had,  infacL  unjustly  deprived  him  of  the  very  kernel  of 

issue  of  the  ac-      .  ^        •f        ^        j         j        r        ^  j  ^  ^ 

Uon,  and  possi-  his  status.  The  character  and  rights  of  the  parties  might 
biy  strange  re-  jjg^^g  contradictorily  shifted  and  varied  in  the  two  tribunals, — 

suits,  barred  by  ,  •' 

the  sudden  the  One  being  lawful  representative,  and  taking  the  Court 
stncUuHn  *™*^'  ^'  Scssiou ;  but  the  other  not,  and  a  usurper, — and  vice  versa 
1788.  in  the  House  of  Peers.     But  strangely,  as  happened  again, 

the  unfortunate  Captain,  who,  upon  the  whole,  seems  to  have 
been  born  under  an  unlucky  star,  died  without  issue  at  the 
critical  moment,  on  the  11th  of  January  1788,  during  the 
pendency  of  the  process,  which  restored  things  exactly  to  their 
previous  state,  both  he  and  his  father  having  left  no  surviv- 
ing younger  brothers  or  male-heirs  through  them,^ — but  fortu- 

*  Who  directed  and  ruled  the  Scottish  Peerage  proceedings  after  the 
middle  of  last  xK^ntury,  and  in  1771  and  1772,  and  was  then  regarded  a 
vast  authority. 

'  Some  of  these  just  and  righteous  claimants  to  honours  seem  to 
have  been  less  lucky  than  certain  supposititious  aspirants  who  have  re- 
cently obtruded  themselves  upon  public  attention.  Sergeant  David 
Lindsay,  son  of  John  Lindsay,  a  common  soldier,  who,  it  wsis  truly 
stated,  '*  had  fallen  back  in  the  world,"  but  undoubted  lineal  heir-male 
of  the  Lindsays  of  Kirkforther,  (as  from  authentic  documents  I  have 


IK  SCOTTISH  PEERAGES,  &C.  619 

nately,  indeed,  for  the  line  of  ^Ratter,  (if  their  possession 
could  ha^e  been  challenged,)  or  rather,  as  turned  out,  for  the 
subsequent  heirs  ; — ^for,  moreover j  by  another  extraordinary 
fatality,  John  Earl  of  Caithness,  their  kist  male  representa- 
tive, who  has  been  mentioned,  equally  doomed,  as  would  ap- 
pear, died  suddenly^  the  very  next  year,  in  the  precise  predi-  Sudden  death 
cament,  under  circumstances  too  affecting  and  notorious  tojohnahedefen- 
be  particularized.  Had  Captain  James  Sinclair,  therefore,  ^®*'»  *°  *^®**^' 
but  survived  until  1789,  the  tables  again  would  have  been 
turned  in  his  favour,  and  he  would  have  been  Earl  of  Caith- 
ness without  impediment, — his  situation  being  then  identical 
with  that  of  the  just  and  eventual  heir  to'  the  Willoughby  of 
Parham  honours.  *  Nay,  even  duplici  jure  ;-  for  he  would 
also  have  legally  taken  qua  male-heir  of  the  stock  of  Ratter, 
and  the  last  of  them.  Fortune,  in  this  manner,  played  a 
strange  and  provoking  game  with  both  parties,  signally  far 
vouring  and  ba£9ing  each  in  their  turns, — in  reality  and  in 
prospect. 

With  every  submission,  far  better  had  it  been,  if,  accord- 
ing to  our  practice, — as  instanced  in  the  cases  of  the  Earldoms 
of  Buchan  and  Kincardine,^  (independent  of  the  Session  being 
Ordinaries,)  and  supported  by  the  corresponding  rule  in  the 

seen),  had  right,  in  virtue  of  this  eminent  descent,  to  the  honours  and 
dignities  descendible  to  the  heirs-male  of  the  noble  and  ancient  house 
of  the  Earia  of  Lindsay,  Lords  Lindsays  of  the  Byres,  &c.  He,  in^jcon- 
sequence,  was  extremely  desirous  to  e<lucate  himself  for  that  sphere  in 
society  to  which  he  was  justly  entitled  by  birth ;  but,  instead  of  com- 
mencing with  the  common  elementary  instruction  exclusively  suited 
to  his  calibre,  he  was  recommended  (by  some  witling  apparently)  to 
logarithms  and  the  abstruse  sciences,  in  his  utter  inability  to  appre- 
hend w^hich,  while  he  laudably  though  desperately  persevered — ^amidst 
this  struggle  of  ardent  zeal  with  intellect — ^a  brain  fever  supervened, 
that  quickly  despatched  him  in  1809.  He  had  only  been  served  heir-male 
of  the  family  of  Lindsay  of  Kirkforther,  indisputably  cadets  of  the 
Lords  Lindsays  mentioned,  the  2dd  of  August  1808,  notwithstand- 
ing an  attempted^opposition,  that  turned  out  to  be  groundless.  What 
is  singular,  John  Lindsay,  the  soldier,  his  father,  was  actually  younger 
brother  of  Captain  George  Lindsay  of  Kirkforther  (son  of  John  Lind- 
say, of  Kirkforther),  and^  in  1760  had  been  served  tutor  of  law  to  his 
da^gkters.  So  ended  the  line  of  Kirkforther. 
»  See  p.  688.  «  Sec  pp.  32-3. 


620  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Commons,  —  the  House  of  Peers,  in  1772,  had,  in  the 
emergency,  only  granted  interim  possession  to  the  ckdmant, 
"  aware,  as  they  were,  of  a  competitor,  who  was  abroad^  and 
whose  rights  fell  to  be  fully  canvassed.  The  expecfient 
strikes  me  as  more  salutary,  and  really  beneficial,  than  the 
device  or  principle  of  summonses  to '  Parliament  in  England, 
however  erroneous,  indelibly  ennobling  the  blood  and  de- 
scendants, ^ — rather  crazy,  and  poetical,  as  may  be  thought^ 
— that,  besides,  did  not  always  hold*^  It  is  a  fiction,  no 
doubt,  to  extricate  a  difficulty ;  but,  according  to  our  law, 
not  admissible  in  such  a  case,  when  palpably  enuring  to  in- 
justice, and  defeating  the  rights  of  others. 

It  has  been  truly  said,  that  it  mtist  be  an  ill  wind  that  blows 
no  good ;  and,  finally,  after  the  preceding  melancholy  occur- 
rences, and  premature  decease,  also,  of  John,  the  in /act  intru- 
sive Earl,  in  1789,^  the  Caithness  honours  devolved  to  a  re- 
claim to  the  moter  heir-male,  Sii'  James  Sinclair  of  May,  whom  they  thus 
James^SincWr'  benefited  and  promoted,  in  virtue  of  his  descent  from  George 
of  May,  the     Sinclair  of  May,  younger  son  of  George,  fourth  Earl  of 
aUowediDi793!  Caithness.     He  claimed  them  by  reference,  (upon  petition,) 
the  19th  of  February,  1790;^  and,  after  instructing  his  pedi- 
gree, and  founding  upon,  and  proving,  by  parole  evidence, 
the  extinction  of  the  Broynach  branch,  owing  to  the  demise 
of  the  unfortunate  Captain  James  Sinclair, — and,  moreover, 
of  Francis  his  uncle^  without  issue,  * — they  accordingly  were 
•.  allowed  him,  through  a  resolution  to  that  effect,  the  4th  of 
March    1793.^      Alexander,  his  son  and  heir,  is   the  ex- 
isting Earl   of  Caithness.     In   unison  with  received  form, 
which  sufficed  the  Caithness  claimant  in  1770  with  respect  to 
his  pedigree,  Sir  James  had  been  served,  the  24th  of  May  1 790, 
heir-male  of  William,  second  Earl  of  Cathness,  (though  the  first 
of  his  stock),  the  original  disponee  in  1476.7     He  probably 
adopted  this  procedure  owiug  to  the  peculiar  state  of  matters, 

•  According  to  Lord  Erskine,  see  pp.  590.  587,  note.    *  See  pp.  589>00. 
'  He  was  a  gallant  officer,  with  promising  prospects,  who  had  hardly 

attained  the  meridian  of  life,  which  lamentably  closed,  the  8th  of 
April  in  that  year,  to  the  regret  of  one  especially. 

•  Lords'  Journals. 

•  Minutes  of  Evidence,  14th  April,  1791. 

•  Lords'  Journals.  '  Records  of  Chancer)-. 


IN  SCOTTISH  PEERAGES,  &;C.  6S 1 

which  perhaps  rendered  a  service  to  the  intrusive  Earl,  or  the 
the  other  (de  facto)  righteous  one,  ineligible,  (though  other- 
wise the  preferable  course),  from  the  pendency  of  the  action 
between  them,  and  sudden  and  premature  decease  of  the  two 
SosiaSy  claiming  alike  the  same  dignity  and  status. 

There  does  not  seem  much  more  requiring  comment,  the  Remarkt  as  to 
right  of  the  heir-male,  so  repeatedly  obtaining, — in  terms  of  the  Earldom. 
the  Lovat  decision  in  1 730,  and  Lord  Hailes's  feudal  prin- 
ciple, being  good,  however  the  claimant  and  the  House  of 
Lords,  in  1772,  and  1793,  went  upon  Lord  Mansfield's  abstract 
rule  in  behalf  of  heirs-male  of  the  body.  And  although  the 
original  constitution  of  the  Earldom  in  1476, — which  I  main- 
tain must  then  be  held  to  carry  the  dignity,  whatever  his 
Lordship  may  inculcate  to  the  contrary, — ^was  to  heirs-general 
— a  circumstance  no  doubt  deserving  consideration,  when 
backed  by  our  leaning  in  their  favour — still  the  former  was 
altered,  as  has  been  proved  by  a  Royal  charter,  as  far  back 
as  1545,  to  heirs-male,  not  to  advert  to  others  uniformly  down- 
wards.' The  last^couYcyance  in  1672,  by  Earl  George,  of 
the  honours  and  estates,  in  the  reign  of  Charles  II.,  to  John 
first  Earl  of  Breadalbane,  I  need  not  observe,  was  null,  being 
unauthorized  by  the  Crown. 

It  is  further  remarkable,  that  nearer  heirs-male  had  existed,  Extinctions  not 
who  were  neither  directly  extinguished,  or  according  to  the  ouu/eiAer*of 
supposed  strict  method   of  the  House  of  Lords — in  1793.  the  ciaima. 
Among  these  particularly,  was  Francis  Sinclair,  formerly  al- 
luded to,  paternal  uncle  of  John  eighth  Earl  of  Caithness,  and 
of  David  Sinclair  of  Broynach,   who  went  to  Sweden,  and 
was  stated,  in  the  Ratter  case  in  1771,  to  have  died  without 
issue  f — ^but  he  now  turns  out  to  have  had  a  son  JameSy  as  is 
specially  admitted  in  this  last  claim.^     Nay,  it  is  possible 
to  conceive  that  there  may  be  yet  male  descendants  of 
Francis  abroad,  for  there  was  again  nothing  directly  to  dis- 
cuss him.^    Neither  was  there  any  thing  to  impugn  a  general 

»  See  p.  610.  •  See  p.  614. 

'  In  the  genealogical  table  to  the  printed  case  for  Sir  James  Sinclair 
of  May. 

*  The  only  new  evidence  here,  so  far  as  I  can  find,  was  legal  proof  of 
his  being  at  Thnrso,  the  11th  of  March  1635,  he  of  that  date  subscrib- 


622  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

service,  which  was  still  received.     Indeed  far  from  it,  as  the 
extinction  of  the  previous  Francis  could  only  be  effected  by 
that  alluded  to  of  yesterday,  upon  which  the  claimant  direct- 
ly founded. 
Notabio  disco-       But  Lord  Mansfield,  it  seems,  has  made  another  notable 
Mansfield.        antiquarian  discovery,  to  enlighten  and  edify  the  hitherto  ob- 
tuse and  uninitiated  antiquaries  and  lawyers  of  Scotland. 
There  is  a  peculiar  unknown  charm,  it  turns  out,  in  the  adjunct, 
"bearing  the  name  and  arms  of  a  family,"  of  sovereign  force 
and  efficacy,  which  by  some  invisible  magical  intervention  al- 
ters the  colour  of  things,  and  converts  limitations  "  to  heirs- 
male,"  or  "  heirs  "  simply,  into  the  unbounded  ones  of  heirs- 
male,  or  heirs-whatsoever.    I  will  not  allow,^  Lord  Rosslyn  in- 
culcated, following  in  the  wake  of  his  noble  master  and  ora- 
cle, that  *'  heirs-male "  include  heirs-male  coUateraL    The 
words  are  little  comprehensive,  and  merely  denote  heirs-male  of 
the  body ;  ^  but  apply  the  charm  in  question, — ^then  presto, 
the  transformation  immediately  ensues,  they  attain  excessive 
force,  and  become  enlarged  and  inflated,  in  the  way  stated. 
Case    of   the       Upou  ^At^ground  the  Barony  of  Kirkcudbright,  granted  by 
cudbright  in    psttcut,  Junc  25, 1 633,  to  Sir  Robert  Maclellan, "  suisque  haere- 
^^^^'  dibus  masculis  cognomen  et  arma  dicti  Domini  Roberti  geren-^ 

tibuSf'!^  was  adjudged  by  the  House  of  Lords,  the  3d  of  May 
1772,  to  John  Maclellan,  a  very  remote  collateral  heir-male, 
his  branch  having  sprung  from  the  patentee's  family,  as  far 
back  as  the  fifteenth  century  I  ^  The  ratio '  decidendi  being 
thought  ^raM^r  peculiar,  is  notorious,  and  transmitted  on 
all  hands.  I  have  a  letter  from  the  late  James  Chalmer, 
who  has  been  alluded  to,  the  first  Peerage  solicitor  in  his 
day,  besides  a  professional  cotemporary,  who  had  the  best 

ing  an  instmment  there.  (Minutes  of  Evidence).  The  authorities  for 
the  facts  and  proceedings  in  the  Caithness  claims,  from  those  of  James 
and  William  Sinclairs^in  1766  and  downwards,  inclusive,  independently 
of  what  has  been  specified,  are  the  printed  informations  and  cases,  be- 
fore their  respective  tribunals.  Minutes  of  Evidence,  and  reagesta,  &c. 
and  relative  proof  upon  record,  and  elsewhere,  &c. 

'  Or,  to  use  the  peremptory  language  of  these  legal  dignitaries,  it 
was  so  penned  and  fixed  by  Lord  Mansfield  and  mj'self. 

■  That  such  was  his  opinion,  will  be  immediately  shown. 

=*  Great  Seal  Register.  *  Lords'  Journals. 


IN  SCOTTISH  PEERAGES,  &C.  623 

means  of  knowledge,  wherein  he  mentions,  that  in  the  ^^  case 
of  Kirkcudbright,  Lord  Mansfield  took  a  distinction  in  respect  importance  at- 
to  the  additiony  cognomen  et  armagerentibusy  which  he  held  to  ^^^^^  idt^°d^ 
be  something  more  than  the  simple  haredibus  mascuUs,'^   Mr.junct,  "bear- 
Chalmer  also  intimates  in  another,  in  the  same  year  (1812),  that  a"rms?"  TiTaTi^ 
he  had  stated  the  question  as  to  the  legal  import  of  a  limitation,  miution. 
^*  heredibus  masculis," — whether  it  comprehended  collcUerals 
— **  to  a  counsel  of  considerable  eminence,  and  received  an 
elaborate  opinion,  that  (he)  had  every  reason  to  believe  was 
dictated  by  the  late  Lord  Rosslyn,  who  knew  more  of  such 
mat&rs  than  anyman"('^) — wherehe  ^Miscusses  theparticular 
circumstances"  of  the  individual  peerages,   which   are   so 
granted  with  us,  and  shows  *^  their  inapplicability  "  to  autho- 
rize the  affirmative, — ^but  especially  *^goes  deeply  (he  adds,) 
into  Kirkcudbright.*'  .  It  is  to  be  regretted  that  the  venerable 
solicitor  did  not  do  so  himself  on  this  occasion,  and  favour 
us  with  the  results. 

The  conclusion  that  the  opinion  was  Lord  Rosslyn's,  is  cor- 
roborated by  an  unfavourable  one,  which  I  know  he  gave  in 
reference  to  the  claim  of  the  collateral  heir-male  to  the  Earl- 
dom of  Dunbar,  conferred  in  terms  of  a  patent  dated  July  3, 
1605,  upon  Sir  George  Hume  of  Berwick,  the  first  Earl,  "  et 
haredes  suos  masculos  in  perpetuum"  ^  He  thought  (valeat 
quantum)  that  it  alone  descended  to  heirs-male  of  the  body. 

But  really,  in  sober  earnest,  we  must  fairly  admit,  notwith-  inept  and  in^fg- 
standing  what  has  been  premised,  that  the  cardinal  addition,  ^iflcao^* 
as  was  thought,  of  ^*  bearing  name  and  arms,"  is  here  immsr- 
terial,  nay,  amounts  to  nothing.  The  largeness  and  extent  of 
a  concession  of  honours  exclusively  depends  upon  the  will  of 
the  Crown,  whose  concern  that  is ;  but  a  man,  even  where  he 
could  only  obtain  a  restricted  limitation  of  them,  might  still 
naturally  desire — nor  would  he  be  here  opposed  or  thwarted 
— that  his  heirs,  however  comparatively  few,  should  bear  the 
former.  The  condition,  accordingly,  has  thus  freely  been  in- 
serted at  his  option,  in  order  to  combine  the  family  represent- 
ation as  much  as  practicable — ^but  without  enuring  effectually 
otherwise.     It  will  not  be  affirmed  to  be  so  important,  more 

*  Great  Seal  Register, 


624  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

weighty,  or  significant  than  the  appendage  of  ^*  succeeding  to 
iiiustntMHit  of  the  patrimony  and  estate ;"  and  yet  the  latter,  latinized  **  ipH 
my  poMtion.  ^^^  patentee)  in  patrimofuo,  et  statu^  &c.  succedentibus/' 
is  attadied  to  the  narrowest  limitation — **  suisque  hseredibus 
masculis  de  corpore  euo"  in  the  patent  of  the  Elaildom  of 
Findlater,  the  20th  of  February  IGSS,^ — showing  that  it  even 
may  not  elongate  the  succession,  but  merely  serve  as  above. 
To  come  to  the  precise  point, — ^the  present  adjunct,  of  *^  bear- 
ing the  name  and  arms,"  likewise  identically  figures  after  such 
restricted  limitation-namely  « haredibus  Buis  masculis  de 
corpore  suo" — in  the  patents  of  the  Baronies  of  Barret  of 
Newburgh,  and  Fairfax  of  Cameron,  the  17th,  and  18th  of  Oc^ 
tober  1627.'  The  addition  was  hence  indifferent,  and  neutral 
in  its  import,  so  far  as  regarded  descent,  and  as  much  applied 
to  lineal  heirs-male  only,  as  to  heirs-male  collateral,  in  which 
last  way  it  figures  in  the  limitation  of  the  patent  of  the 
Earldom  of  Selkirk,  the  24th  of  August  1646.3  But  being 
there  thus  inserted — ^after  ^  haeredes  masculos  quoscunquef' 
— it  again  is  exemplified  to  be  confessedly  inoperative  in  the 
material  view, — heirs-male  collateral  taking  qmteindependen^ 
Ipi  and  as  much  so,  as  without  it. 

But  the  next  illustrations  even  more  pointedly,  and  in  the 
most  express  manner,  instruct  my  position,  and  expose  the  ut- 
ter ineptness  of  a  circumstance  upon  which  such  stress  has 
been  laid, — even  when  obtaining  in  a  limitation  precisely  the 
Case  especially  same  with  Kirkcudbright.  It  is  proved  by  the  patent  of  the 
MeigumT"  ^  ^  Viscounty  of  Melgum,  dated  October  20,  1627,  that  that  dig- 
nity was  granted  to  John  Gordon,  son  of  George  Marquis  of 
Huntly,  *<  suisque  heredibus  masculis  cognomen  et  insignia  de 
Gordon  gerentibue*''^  Had  the  limitation,  therefore,  been 
shown  to  Lord  Mansfield,  he  would  have  decided,  upon  the 
strength  of  his  favourite  adjunct,  here  expressly  inserted,  that 
the  Viscounty  was  descendible,  failing  heirs»male  of  the  body, 
to  heirs-male  whatsoever,  and  hence  at  least  to  the  brothers  of 
the  patentee.  Than  this,  however,  nothing  could  be  more 
erroneous.    John,   thus  first  Vbcount»  Melgum,  as  is  well 

>  Great  Seal  Register.  >  Ibid.  '  Ibid. 

^  Original,  Aboyue,  or  rather  Huntly  Charter-chest. 


9^ — v^ — ■»—=—— i',"^ — ■ — . — ■■  I-    *>  ^    *  ."*      *    -■■■■•«  —      "r " 


IN  SCOTTISH  PEERAGES,  &C.  625 

knowDy  died  without  issue,  haying  been  lamentably  burnt  in 
the  Tower  of  Frendraugbt,  (a  remarkable  and  rather  inexpli-' 
cable  catastrophe  at  the  time) ;  when  Charles  I.,  on  the  nar- 
rative of  this  calamity,  by  another  patent,  dated  April  20« 
1632,  was  induced  to  confer  and  constitute  the  ^^  prior  "  dignity 
upon  George  Lord  Gordon,  his  elder  brother^  during  the  life- 
time of  the  above  George  Marquis  of  Huntly,  their  common 
parent,-— and  subsequently  to  that  event,-*-after  Lord  George's 
necessary  accession  to  the  hereditary,  and  higher  honour  of 
Marquis  of  Huntly,  upon  other  male  heirs.  And  why,  it  may 
be  here  asked,  and  upon  what  account  ?  For  no  other  rea- 
son than  this, — owing  to  the /ailure  of  heirsy — because  **  die- 
tus  quondum  Vicecomes  de  Melgum  (the  first  patentee) 
obiit  absque  heredibus  masculis  decorpofo  suo^** — **  in  quos,'' 
the  second  patent  next  distinctly  states, — moreover  quoting 
the  ipsissima  verba  of  the  former  limitation,  in  that  of  1627, 
— <<  dictus  titulus  Vicecomitb  per  nostras  literas  patentes  con- 
Jerendusjuitr^ 

It  is  hence — over  and  above — pointedly  instructed  by  the  Cotemporary, 
best  and  highest  authority,  by  the  Crown,  the  fountain  of  hon-  *" 
our, — whose  sense  and  pleasure  are  imperative  on  such  occa- 
sions,— in  complete  refutation  of  Lord  Mansfield's  jejune  and 
empty  distinction, — that  so  far  as  regarded  the  length,  or  brevi- 
ty of  descent,  his  favourite  adjunct  weighed  nothing, — ^was  ac- 
tually nothing, — since  the  identical  Kirkcudbright  limitation  is 
— the  very  pear  befi^re^  interchanged  with,  and  explicitly 
proved  to  have  been  legally  synonymous, — not  merely  with 
**  heirs-male," — just  as  if  there  had  been  no  ^*  bearing  name 
and  arms," — ^but  even  with  the  narrowest  and  most  restricted 
limitation  to  heirs-male  of  the  body  ; — a  meaning  too,  which, 
whatever  may  be  urged  to  the  contrary,  in  the  17th  century, 
after  the  full  introduction  of  patents  and  personal  honours, 
was  frequently  imparted  in  patents  to  **  heirs-male," — and 
which  remarkable  circumstance,  in  the  case  of  such  subjects  as 
honours,  at  that  period,  should  create  an  impression  against 
their  comprehensive  import.     There  was  consequently  no 

'  From  the  original,  (ibid.)  which  is  al8o  recorded  in  the  Great  Seal 

Register.     The  limitation  in  1627  is  also  elsewhere  literally  repeated 

in  the  grant.  '  As  stated,  the  Kirkcndbright  patent  was  in  1633* 

2a 


626  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

proper  ground  in  the  Kirkcudbright  instance,  for  extending 
their  effect, — which  otherwise,  neither  he  nor  Lord  Rosslyn 
would  have  done, — according  to  their  confessed  notions, — 
simply  owing  to  the  repetition  of  the  express  adjunct  in  ques- 
tion,— so  strangely  magnified  and  exaggerated  by  them,  but  in 
reality  here  trivial,  and  nugatory.  The  point  is  brought  to 
the  plainest  conclusion  ;  for  if  the  construction  of  these  lawyers 
had  been  true,  the  second  patent  in  the  case  of  Gordon  would 
have  been  wholly  excluded  by  the  first,  which  had  still  ruled, 
and  been  operative,  and  had,  per  se^  given  the  dignity  to  the 
identical  George,  the  new  patentee, — who,  however,  takes  alone 
by  means  of  the  second,  in  1632.  And  so  far,  again,  from  the 
same  construction  holding,  it  is  additionally  refuted  by  the 
inductive  ground  and  avowed  motive  in  the  preamble  of  the 
second, namely, — **ut  prior  titubis  VicecomiiiSy  (that in  1627) 
REViVAT," — (which  thereby  it  could  not  hav^  done, — being  ac- 
tually existing y)-^\n  James  Gordon,  son  of  the  previous 
Lord  George, — to  whom,  after  his  father,  though  under  the 
style  of  Viscount  of  Aboyne,  it  is  now  given,  by  means  of  a 
renewal,  or  reconstitution  of  the  spent  limitation  in  1627, '^^hse- 
redibusque  suis  masculis  nomen  et  insignia  de  Gordon  geren- 
tibus."  Nor  is  even  this  all;  for  upon  the  demise  also  of  this 
James,  who  at  length  succeeded,  in  conformity  to  the  grant, 
without  issue,  the  same  Viscounty  of  Aboyne  may  be  con- 
cluded, in  further  illustration,  to  have  become  extinct ;  for,  be- 
sides, never  having  been  assumed,  or  enjoyed  by  the  main  stock 
of  Huntly,  the  collateral  heirs-male,  and  still  the  certain  heirs, 
under  Lord  Mansfield's  interpretation, — as  proved  by  the 
various  and  anxious  enumerations  of  their  titles  in  their  styles, 
— the  dignity  of  the  Earl  of  Aboyne  was  conferred  by  patent, 
dated  10th  of  September,  1660,  upon  Lord  Charles  Gordon, 
a  later  cadet,  and  the  heirs-male  of  his  body.^  Such  new  crea- 
tion by  the  identical  title,  though  under  a  higher  degree  in 
the  Peerage,  according  to  our  old  notions,  appears  incompa* 
tible  with  the  existence  of  the  former. 

It  is  needless  to  add,  that  Lords  Mansfield  and  Rosslyn 
were  quite  ignorant  of  the  preceding  case  of  the  Viscounty 

'  Great  Seal  Register. 


««Si 


IN  SCOTTISH  PEERAGES,  &CC.  6S7 

of  Melgum  and  Aboyne;  >  nor  can  it  be  supposed,  nor  does 
it  appear  from  what  has  been  transmitted,  (which  also  but 
too  often  happens  in  the  case  of  the  English  authorities,  in 
respect  to  our  Peerage  claims, — ^they  being  estranged,  and 
away  from  the  natural  sources  of  information,)  that  Lord  Mans-* 
field  had  at  all  properly  examined  into  the  subject.     He  was 
chiefly,  if  not  wholly  swayed  by  his  own  heresies  and  predilec- 
tions, and  in  fact  at  once  solved  the  matter  by  mere  intui* 
tion,  or  rather  fancy,  much  in  the  same  way  that  he  arbitrari-* 
ly  cuts  the  gordian  knot,  in  others  of  far  greater  abstruseness 
and  difSculty.     We  here  again  see  the  expediency  of  the  pre-  Expediency  of 
eise  facts  and  authorities  in  a  Scottish  Peerage  clsdm,  being  anc™*7f*^X'*" 
first  settled  and  adjusted  through  the  salutary  and  appropriate  Session. 
ordeal  of  the  Session, — acting  in  theur  just  and  inherent  ca- 
pacity as  Ordinaries. 

The  Kirkcudbright  honours  had  for  a  considerable  time 
been  dormant  or  unassumed.     William  MacleUan,  glover  in  Previous  com- 
Edinburgh,'  the  father  of  John,  the  claimant  in  1772,  was,  on  KirkcTdbright 
the  9th  of  April  1734,  served  heir-male  in  general  of  James  ^®"*>""».^f" 
Lord  Kirkcudbright,  a  previous  assumer  of  the  dignity,  where-  and  James  Mac- 
upon,  agreeably  to  the  usual  practice  and  legal  understanding,  '®^^^°' 
he  also  took,  and  maintaiQed  his  right  to  it,  voting  at  Peerage 
Elections  in  1737,'  as  well  as  thereafter,  though  under  pro- 
test.   There  was  a  counter-claim,  at  the  same  time,  by  James 
Madellan,  son  of  Sir  Samuel  MacleUan,  Provost  of  Edinburgh, 
both  as  asserted  nearest  heir- male  of  the  family,  and  founding 
upon  a  pretended  resignation  of  the  honours  by  a  previous 
Lord  Kirkcudbright, — ^but  what  that  was,,  does  not  satisfacto- 
rily transpire,  and  the  right  seems  to  have  been  visionary.^ 
He  states,  in  1741,  that  he  had  petitioned  his  Majesty  for  the  Reference  of 
honours,  who  had  referred  his  cldm  to  the  Lord  Advocate  fo  ^  scotush^^ 
and  Solicitor-General,  **  that  the  said  Peerage  may  be  deter-  crown  counsel 
mined  upon  in  the  course  of  Law."  &     According  to  the  pro- 

■  It  was  first  adduced  by  the  Author  in  a  Treatise  published  in  1833. 

*  See  RobertBon*8  Peerage  Proceedings,  p.  154,  and  the  subsequent 
references* 

»  Ibid.  pp.  182-3-4-7.  His  right  to  the  title  and  vote  had  also  been 
protested  against  by  James  MacleUan  afterwards  mentioned  in  the 
text,  aa  early  as  1734,  when  he  was  serred.    (See  p.  164,  ibid,) 

«  JbU.  pp.  95,  154,  231-2-9.  •  Ibid.  p.  231. 


628  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

test  against  him  by  Willia'm  MacleUan,  his  opponent  in  1742, 
the  reference  was  oii^  April  28,  1736;  and  these  legal  officers 
had  certified  to  bb  Majesty  that  he  had  not  instructed,  by 
writings  produced,  what  he  maintained,  that  he  was  **  the  near- 
est beir«male"  of  Sir  Robert  MacleUan,  first  Lord  Kirkcud- 
bright.^ James  MacleUan  did  not  take  further  steps  in  rela- 
tion to  hb  claim ;  and  the  House  of  Peers  havings  the  14th  of 
December.  1761,  discharged  William  MacleUan  from  assum- 
ing the  title,  or  voting  until  he  made  out  his  right,  John,  his 
son  and  heir,  eventually  claimed  with  success,  as  shewn  in 
1772.'  The  above  reference  of  a  Scottish  claim  to  the  Crown 
Officers  of  Scotland  exclusively,  is  somewhat  difierent  from 
the  subsequent  usuaUy  practised  form,  though  apparently  more 
competent,  and,  it  may  be  maintained,  the  next  best  course 
in  the  first  instance,  excepting  the  innate  and  preferable 
cognizance  of  the  Session  as  Ordinaries. 
Conttitatlon  of  A  Commission,  and  **  Letter  of  Patent,"  dated  at  Whitehall^ 
wigt^"*'in  **' March  19,  1606,  passed  the  Great  Seal,  wherein  James  Lof 
1606.  Great  Britain,  on  a  narrative  of  the  services  of  John  Lord 

Fleming,  and  especial  considerations,  grants  power  and  autho* 
rity  to  John  Earl  of  Montrose,  the  King's  Commissioner  for 
the  time,  and,  in  his  defEiult,  to  Alexander  Earl  of  Dunferm- 
ling,  the  Chancellor,  to  constitute  and  create  the  aforesaid 
nobleman  Earl  of  Wigton ;  which  dignity  the  King  declares 
"  cum  prsefato  Joanne  Domino  Fleming,  hseredibus  suis 
masculis  legitime,  et  linealiter  descendentibus,  manere,  et 
durare  volnmus,  omni  tempore  futuro."  ^  A  signature,  the 
due  warrant  for  the  grant,  in  English,  had  previously  past 
Act  of  creaUon,  the  Sign  Manual.  *  And  the  Act  of  creation  followed  there- 
fbrm«!*Jbiir^ed**'®^'  at  Perth,  on  July  1,  1606,  where^  in  presence  of  «  a 
accordiDgiy.  number  of  the  nobility  of  the  said  kingdom  of  all  ranks,"  the 
patentee  delivered  the  warrant  under  the  Sign  Manual,  with 
the  patent,  to  the  Earl  of  Montrose,  the  Commissioner; 
who,  in  implement  thereof,  **  constitute,  and  create,  with  all 
solemnities  used  in  such  cases,  the  said  John  Lord  Fleming 

*  Ihid,  pp  297-8.  '  Lords'  Journals. 

*  Original,  with  the  seal  still  entire,  Cumbematild  Charter-chest. 
It  was  also  recorded,  though  not  until  1777. 

*  Cumbernauld  Charter-chest. 


\ 


lAOES,  &C. 


63S 


Earl  of  Wigi 
pre-emmence  \ 
cordiBgly, — the^ 
his  heira-male  of' 
after."     The  sole« 
stances,  ooasisted  it, 
appearing  in  bis  rot 
ceive  the  new  honou., 
**  belting^'  a  usual  acc^ 
and  dignity  by  tbe  hera 
creation  is  instructed  by  sk 
books  of  tbe  Lord  Lyon,  d: 
him  and  *'  Hay,  herald  keipt 
the  Sign  Manual  is  verbatim 


V* 

o 


-^^ 


^B-male  simply,   and  Presumed  fail- 
1^««   4.kA4>   ««A   i-A  ore   of  heirs- 

'%  -^^s  that  go  to  ^^^^  i„  ,^,„, 

A^  >M)f  tbe  pa- of  patent  1606. 


^g^  Peerage 
^  creations  in 

.-  under  J^^*^'  ^•■ 


^,  essential  to 
^fi  of  the  Sovereign. 


shew  that  the  creation  bad  the  \ 
On  this  account  it  is  always  firsts  ^led  fof  in  Peerage  claims, 
and  especially  relied  upon,  as  interpolations  occasionally  in- 
tervened,— ^independently  of  undue  conveyances  of  Peer- 
ages,— of  the  easier  fabrication,  owing  to  tbe  remoteness  of  the 
seat  of  Government.  Agreeably  likewise  to  a  natural  and 
laudable  fbrm,  there  was  a  record  of  the  creation  in  the 
Lyon's  registers,  that  have  been  so  miserably  kept,  and 
purloined, — a  remarkable  consequence  of  the  mismanagement 
so  discernible  in  later  times,  in  all  relative  to  that  depart* 
ment.  That  the  practice  was  usual,  is  further  evident  from 
the  patent  of  the  dignity  of  Lord  Binning,  conferred,  the 
19th  of  November  1613,  upon  that  able  statesman.  Sir  Tho- 
mas Hamilton  of  Byres,  first  Earl  of  Haddington,  with  limi- 
tation, ^^  ei,  et  heredibus  suis  masculis  cognomen  et  insignia 
Hammiltoniorum  gerenttbus,"— where  there  is  a  mandate, 
^'  Leoni  Regi  Armorum  fratribusque  suis  fecialibus,  ut  pre* 
sends  creationis  diploma  suis  gcriniis*  inserant,  et  insumant, 

'  See  pp.  571-2,  and  the  same  thing  will  be  corroborated  in  the  se- 
quel. For  the  above  ceremony  of  the  heraldic  proclamation  and  others, 
see  form  of  creation  of  the  Marquises  of  Hamilton  and  Hnntly,  in 
1599,  given  by  Sir  Geoige  Mackenzie.    Works,  vol.  II.  p.  6S6. 

'  Cumbernauld  Charter-chest. 

'  What  are  now  the  **  5ertnto"  (forsooth)  of  the  Lyon  Office, — timm- 
tmm  fnutata,  it  may  be  indeed  said,  in  their  poverty,  or  evanescence,  if 
such  even  can  be  held  to  exist  ?    See  also  p.  7* 


630  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

(et)  Thomam  Dominum  de  Bynningy  et  heredes  suos  masculos 
in  caialogumf^  et  ordioem  Majonun  Baronum,  et  Donunonim 
Parliament!  dicti  regni  Scoticani,  referant,  et  inscribant.'* ' 
Had  the  Lyon  RegisterSi — ^now  in  ancient  matters  a  mere 

blank, deformed,  as  they  besides  are,  by  every  incongruity 

and  misrepresentation,  at  a  modem  period, — been  kept  even 
with  secondary  care  and  precision,  they  might,  notwith- 
standing unavoidable  casualties,  have  thrown  no  small  addi- 
tional light  upon  the  constitution  and  descent  of  our  Peerages. 

The  Parliament  to  which  the  Earl  of  Montrose  was  High 
Commissioner,  commencing  at  Perth,  on  July  I,  1606,  the 
date  of  the  Act  of  the  Wigton  creation  there,  afforded  a  na- 
tural occasion  for  the  solemnity.  And,  accordingly,  *<  Johne 
Erie  of  Wigtoun,  Lord  Fleming,"  figures  upon  a  Committee 
of  Parliament  in  the  same  year.  ^ 

I  have  been  careful  in  detailing  the  especial  forms  of  the 
constitution  of  the  dignity  in  question,  as  the  present  instance, 
with  various  others  to  the  same  effect,  *  must  expose  a  glaring 
and  unaccountable  hallucination  of  Lord  Rosslyn,  in  reference 
to  the  mere  accessary  ingredient  of  **  belting^'*  in  the  act  of 
creation  or  inauguration, — already,'  and  further  to  be  after* 


■  How  important,  too,  such  official  and  authorized  Catalogue  would 
have  been,  if  duly  kept  after  the  Union,  when  the  roll  of  our  Peers 
has,  in  certain  respects,  been  so  objectionable,  and  little  coireeted  and 
emended ! 

'  Great  Seal  Record*  Append,  or  Paper  Register. 

•  Acts  of  Pari,  last  Edit.  vol.  IV.  p.  SOO. 

*  The  constitution  of  the  Earldom  of  Roxburghe  is  identical  with  that 
of  Wigton.  There  is  a  letter  of  patent  the  18th  of  September^1616,  di- 
rected to  the  Chancellor,  to  constitute  and  inaugurate  Robert  Lord 
Rozbuighe  in  the  honours  of  **  Earl  of  Rozbui^he,  Lord  Ker  of  Cess- 
furde  and  Caverton,*' — ^  quovis  tempore  et  loco— cum  ceremiOniU  eteolem-' 
nUatibue  in  talibus  casibusiMifo^i^  et  cofMti6<i«,'\ which  is  moreover  spe- 
cial, limited  **  sibi,  suisque  hseredibus  masculis."  (Original  Roxbuj^he 
Charter-chest,  unrecorded.)  And  it  is  stated,  in  an  original  cotempo- 
rary  letter  in  the  Balfour  Collection,  in  the  Advocates*  Library,  that 
"  the  Lord  of  Roxburghe  was  created  erle  of  Roxbuighe  upon  the  19 
of  this  instant,  {September  1616,)  the  eolemniteU  being  assisted  be  the 
Harques  of  Hiunilton,  the  erlis  of  Mar,  Wynton,  Perthe,  Eglinton, 
and  Tullibardin,  the  Lords  Scone,  Bugcleugh,"  &e.  The  inauguration 
or  creation  thus  took  place  the  next  day.  ^  See  p.  57d. 


IN  SCOTTISH  PEBBAGES,  &C.  63 1 

wards  alluded  to* — little  indeed  to  be  expected  from  those  the 
least  versant  in  such  details ;  and  which  may  even  excite  sur« 
prise  in  England.  It  has  been  productive  of  most  irrelevant 
and  unfair  conclusions,  injurious  to  the  proper  descent  and 
rights  of  Peerages* 

The  Earldom  of  Wigton,  in  terms  of  the  patent  in  1606,  DMcentofthe 
devolved  upon  William  the  fifth  Earl,  the  great-grandson  and  wigto^  ^^ 
heir-male  of  the  patentee.     He  obtained,  upon  his  resigna* 
tion,  a  signature  under  the  King's  hand,  dated  August  IB,  gf^naivreofan 
1669,  authorizing  a  charter  or  regrant  to  pass  the  Great  Seal,  «^teD<i«<|,  re. 
of  the  diguities  of  Earl  of  Wigton,  Lord  Fleming  ^  and  Cum- honours  in  i669 
bemauld, — together  with  the  estates, — in  favour  of  himself??"  *  rewgna- 

,  ^  ,  lion. 

and  the  heirs-male  of  his  body,  containing  remainders  also  to 
Charles  Fleming,  his  brotber-german, — Sir  William  Fleming, 
bis  Majesty's  gentleman  usher,  son  of  John,  second  Earl  of 
Wigton, — Lieutenant  Colonel  John  Fleming,  son  of  Malcolm 
Fleming,  son  of  the  first  Earl  of  Wigton, — and  to  Lady  Jean 
Fleming,  (afterwards  wife  of  George  Earl  of  Panmure,)  only 
daughter  of  John  fourth  Earl  of  Wigton,^  to  the  heirs-male  of 
their  bodies,  seriatim,  eacii,  and  all  of  them ;  with  an  ulti-. 
mate  substitution  to  the  eldest  heir -female  without  division  of 
the  body  of  die  disponee.*''     It  is  remarkable,  however,  that 
this  regrant  always  remained  in  the  same  inchoate  state,  and  Never  per- 
was  never  perfected  in  any  manner.     Nay,  what  may  be  still  '^^'''^®^' 
more  singular,  it  was  not  only  neglected  by  the  family,  but 

*  This  was  another  old  Barony  of  which  the  oonstitntion  is  unknown, 
but,  according  to  the  Auchiuleck  Chronicle,  created  in  1462, — the  act 
of  creation  being  there  stated  in  that  year,  when  Robert,  the  first  Lord, 
was,  in  usnal  form,  made  a  **  Lord  of  Parliament  and  Banrent."  From 
what  will  be  afterwards  remarked,  it  may  be  afiecied  by  Uie  above  resig- 
nation. 

'  This  lady,  by  the  Earl  her  husband,  had  an  only  child,  George  Lord 
Manle,  who  is  extinguished  by  his  father's  retour  to  hini,  upon  record, 
after  the  death  of  the  mother,  on  May  9, 1685. 

'  Cumbernauld  Charter-chest.  The  present  John  Lord  Elphin- 
sUme  is  now  the  heir  under  the  grant,  in  terms  of  that  substitution,  in 
virtue  of  his  descent  from  Lady  Clementina  Fleming,  his  great  grend- 
mother,  to  be  afterwards  noticed.  The  signature  of  the  regrant  was 
adduced  by  the  crown  against  the  Wigton  claimant,  who  will  be  men- 
tioned, in  1781.  It  passed  the  King's  signet,  and  an  extract  was  given 
forth  of  the  precept  under  the  signet. 


682  INQUIRY  INTO  THB  LAW  AND  PEACTICE 

even  became  subsequently  unknown  to  them,  until  its  acciden* 
.  tal  discovery  after  the  middle  of  last  century.     Earl  William 
died  previous  to  October  1 9, 168 1,  as  is  proved  by  the  retour  of 
bis  successor,  of  that  date,  upon  record,  leaving  two  sons,  John 
and  Charles,  the  sixth  and  seventh  Earls  of  Wigton,  who  took 
'"seriatim  in  male  order.     The  first  had  an  only  child,  Lady 
Clementina  Fleming,  the  heir-general,  married  to  Charles 
Lord  Elphinstone ;  and  eventually,  in  17479  upon  the  death  of 
Earl  Charles,  her  uncle,  without  issue,  sole  representative  of 
the  family,  her  Ladyship  having  succeeded  to  the  estates,  in 
virtue  of  a  strict  entail,  made  by  Earl  John,  her  father,  dated 
June  24,  1741,^ — to  whom,  strangely  indeed,  the  signature 
in  1669  was  unknown — in  favour  of  the  heirs-male  of  the 
body  of  himself  and  Charles  his  brother,  in  the  first  instance, 
which  last  was  thus  preferred,  owing  to  his  being  heir  to  the 
Wigton  honours.     These  are  the  only  heirs-male  specified ; 
and  there  is  a  remarkable  clause,  carefully  binding  the  heirs- 
female,  and  next  substitutes,  to  take  exclusively  the  title  of 
Lord  Fleming — should  they  have  a  right, — and  surname  and 
arms  of  Fleming  of  Cumbernauld,  in  the  event  of  the  Jiul- 
ure  of  the  Jbrmer, — **  whereby  (the  Earl  adds)  the  title  and 
dignity  of  jEot/  of  Wigton  (the  chief  consideration,  and  that 
was  to  be  borne  also  in  their  case  exclusively)  may  become  ex- 
tinct'*     In  this  manner  things  stood  at  the  time  of  Lady  Cle- 
mentina's accession.     By  the  resignation  in  1669,  which  was 
gratuitous  and  not  onerous,  as  in  the  instance  of  Oliphant, 
William  the  fifth  Earl  may  be  legally  held  to  have  denuded 
himself  of  the  honours ;  and  although  the  crown  regranted 
them  to  him,  and  the  heirs  mentioned,  by  the  signature,  the 
latter  was  never  acted  upon  or  completed.     That  the  signa- 
ture, in  these  circumstances,  must  be  accounted  efiete,  follows, 
I  conceive,  from  what  I  formerly  instructed.'     A  material  ob- 
jection might  therefore  have  been  raised  to  the  subsequent 
existence  of  the  Earldom,  had  the  occurrence  iu  question  been 
known,  which  it  happened  not  to  be  until  long  after  the  ex- 
tinction of  the  direct  male  line,  and  epoch  of  the  female  suc- 
cession.    But  even  holding  that  the  same  resignation  did  not 

>  Recorded  in  the  Register  of  Entails.  '  See  pp.  64-6-6-7. 


i^w    ir^^^?^"^^^^^^^^^^^" 


IN  SCOTTISH  PEERAGES,  &C.  6*S3 

defeat  the  original  patent  in  1606,  to  heirs-male  simply,  and  Presumed  fail- 
that  it  is  still  in  force,  there  are  considerations  that  go  to  roaie°^in*Te7ra8 
countenance  the  failure  of  heirs-male  of  the  body  of  the  par  of  patent  leoo. 
tentee ;  because,  in  the  first  place.  Earl  William,  in  the  con- 
veyance of  1669,  seems  to  have  been  anxious  to  secure  his 
heirs*male — according  to  the  general  bent  of  the  family — ^in 
the  succession,  whom  he  may  be  held  to  exhaust  nominatim  ; 
while  all  of  these  there  recited — and  indeed  others  pre- 
viously existing,— have  been  extinguished  by  evidence  I  have 
seen.  The  above  inference  may  be  natural,  agreeably  to  the 
more  modem  usage, — although  such  nominatim  specifications, 
— ^instead  of  a  general  substitution  to  heirs-male, — ^have  been 
employed  of  old  when  a  partial  selection  was  intended. 
Still,  nevertheless,  why  the  Earl  did  not  complete  the  convey- 
ance, when  he  was  fully  enabled  to  do  so,  seems  at  the  same 
time  an  enigma  to  be  solved.  And  secondly,  the  conclusion 
of  such  male  failure,  in  the  conviction  of  Earl  John,  the  head 
of  his  house,  so  extremely  solicitous,  as  has  been  shewn,  for  the 
preservation  of  his  honours,  and  of  the  Earldom  in  the  first 
place, — who  succeeded  as  early  as  1681,  and  was  likely  to  be 
well  versed  in  the  state  of  ihe  representation  of  his  family, — 
may  be  more  directly  authorized  by  the  contingency  he  takes 
for  granted  in  his  entail  in  1741,  of  the  extinction  of  the  dignity, 
on  the  death  of  himself  and  hb  brother  without  male  issue. 
The  obvious  induction  here  may  be,  that  they  comprised  the 
remaining  male  heirs. 

In  these  unfavourable  circumstances,  as  would  seem,  we  ciaima  to  the 
come  to  the  pretensions  of  Dr.  Charles  Ross  Fleming,  physi-  i^fye^**"^^"," 
clan  in  Dublin,  who  assumed  the  title  of  Wigton  shortiy  af- 1777-81-82,  by 
ter  the  death  of  Charles  the  last  Earl,  as  lineal  heir-male  of  f^'j  hu^ol"^ 
the  patentee  in  1606,  and  who,  on  being  ordered  by  the  House 
of  Lords,  in  1761,  to  instruct  his  right,  and  claiming  upon  pe- 
tition and  reference  to  them  in  1762,  acknowledged,  the  25th 
of  March  in  that  year,  that  he  was  ^'  not  prepared  with  any 
evidence,"   but  desired   **  further  time.**  *     Such  admission 
boded  but  ill  for  his  cliaim.     The  Lords  in  consequence  resolv- 
ed that  he  should  be  considered  unentitled  to  the  Peerage, 

'ds*  Journals. 


684  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

which  he  was  discharged  from  assuming,  or  to  vote  at  Elec- 
tions, until  his  claim  should  be  substantiated.^  After  his 
death,  however,  and  a  long  interval,  Hamilton  Fleming,  Esq. 
his  son,  in  1777,  claimed  in  like  manner.  And  from  the  evi- 
dence, that  was  now  singularly  only  ^st  adduced,  the  sub- 
ject may  be  despatched  in  a  few  words.  John  first  Earl  of 
Wigton,  no  doubt,  had  a  younger  son  Alexander,  father  of 
James  Fleming,  which  last  was  alive  in  1654  f  but  the  claim- 
ant failed  to  instruct  his  male  descent  from  them,'  as  be 
maintained,  (nor  could  it  be,)  through  James  Fleming,  rector 
of  Castlane  or  Kilkenny,^  and  Magdalene  Way,  his  wife,  his 
grandfather  and  grandmother,  and  an  earlier  James  Fleming, 
rector  of  Ray  or  Ilomachy  in  Donegal,  &c.  He  could  only  pro- 
perly condescend,  waving  his  immediate  ancestry,  upon  vague 
or  inconclusive  writings,  and  parole  testimony  in  the  shape  of 
hearsay.^  The  latter  seems  of  easy  attainment  in  Ireland;  but 
the  glaring  futility,  and  absolute  falsity  of  which,  has  been  so 
pointedly  exposed  in  the  late  case  of  the  Crawford  succession, 
that  so  strangely  misled  several.^  Such  charms  has  romance 
at  all  times. 

There  is  a  bond  upon  record  for  200  merks,  by  William 
Fleming,  merchant  in  Glasgow,  dated  the  last  of  July  1654, 
to  '^  James  Fleming,  son  lawful  to  umquhile  Alexander 
Fleming,  brother-german  to  John  Earl  Wigton.''  ^  None  of 
this  stock,  however,  are  called  to  the  Wigton  succession,  either 
in  1669, — by  Earl  William,  grand-nephew  of  Alexander,  and 
cousin  and  cotemporary  of  James, — or  in  1741,  from  whence, 

*  Ibid,  under  same  date.  '  This  will  be  immediately  proved. 

*  He  represented  Alexander,  as  the  fourth  and  youngest  son  of  the 
Earl,  James  and  Malcom  being  the  two  immediately  elder. 

*  He  is  stated  to  have  been  one  of  the  Chaplains  of  the  Duke  of 
Ormond. 

*  This  account  is  from  the  printed  evidence,  papers,  informatioas, 
and  procedure  in  the  case,  &c. 

'  This  is  the  more  remarkable,  there  having  been  no  written  proof 
at  all  in  support  of  the  aspirant,  though  the  alleged  descent  was  not  re- 
mote, while  the  fanciful  parole  testimony  was  not  only  traversed  in 
the  same  way,  but  most  articulately,  and  irrefragably  by  written. 

'  Registered,  October  6,  1776,  as  a  probative  writ  in  the  Books  of 
Session. 


IN  SCOTTISH  PEERAGES,  &C.  635 

and  owing  to  what  was  formerly  stated,  their  extinction  may 
be  presumed.    But  the  matter,  in  the  circumstances,  however 
the  want  of  due  evidence,  may  be  remedied  by  Irish  ingenuity 
and  resources,  was  jus  tertii  to  the  claimants,  either  in  1762 
or  1782 ;  on  the  6  th  of  February,  of  which  last  year,  the 
Lords  resolved,  that  Hamilton  Flemmg  had  «  no  right  to  the  Hl^n*"^^^'!^; 
titles,  honours,  and  dignities  "  in  question.  ^     In  this  case  the  the  sod,  disau 
House  also  determined  that  they  could  ^<  not  admit  affidavits  ^^^^ 
as  evidence." '    Nor  would  they  enforce  production  of  the 
original  patent  of  Wigton  in  1606,   by   Lady  Clementina 
Fleming    and    Charles    Lord    Elphinstone,    her    husband, 
(who  had  declined  compliance  when  applied  to  for  the  pur- 
pose,) upon  his  affidavit^  *'  that  he  has  been  informed,  and 
verily  believes  "that  they  had  it,  (which  was  the  fact,)  and 
his  representation  that  he  could  not  proceed  without  such  ori- 
ginal document. '    That  the  Lords  were  here  justified  in  the 
step,  I  will  not  dispute ;  but  an  important  question  arises,  can  exhibition 
whether,  in  a  more  favourable  alternative,  where  two  parties  ^}  important 

•  deecu  be  GnroF' 

competently  join  issue  in  a  Peerage  claim,  one  is  not  entitled  ced  against  a 
to  force  and  expiscate,  on  fair  shewing,  conclusive  evidence  in  JJe^m^^tt*  f^*' 
the  possession  of  the  other, — or  even  elsewhere, — when  he 
has  made  out  a  presumptive,  or  even  probable  or  unrefuted 
ex  fade  ease,  different  from  that  considered,  in  which  there 
was  an  insurmountable  impediment,  and  where  the  actual  ad* 
duction  of  the  patent  craved  for  could  not  avail.  It  is  singu- 
lar, that  notwithstanding  the  great  lacunm  in  our  public  records, 
our  remissness  and  negligence  in  the  registration  of  patents 
and  Peerage  grants,  ^  which  often  descend,  with  the  lands,  to 
strangers  or  remote  heirs,  who,  as  I  have  experienced,  are 
generally  opposed  to  their  exhibition, — and  whereby  their  con- 
tents, firom  their  clandestineness  and  the  want  of  re^str ation,  are 
unknown,  and  sealed  to  those  interested, — no  point  of  the 
kind  has  yet  directly  occurred.  This,  too,  although  the  value 
and  importance  of  private  repositories  is  necessarily  so  pecu- 
liarly enhanced ;  and  in  the  case  of  any  grant,  including  a  pa- 

'  Lords'  Journals.  '  Dnd.  on  10th  of  April,  1781.    See  p.  613. 

•  Lords'  JoumalBy  May  6, 1777. 

*  In  reference  to  the  unmethodical  and  careless  procedure  in  this  re- 
spsil,  even  in  the  event  of  registration,  see  pp.  266-6. 


636  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

tent,  according  to  legal  doctrine,  the  right  of  property  in  it 
vests  in  the  heir  under  the  limitation.  ^  The  same  remark 
applies  to  material  evidence  of  pedigree  and  descent. 

Our  law  would  seem  more  inclined  to  an  exhibition  or  de- 
livery, in  such  circumstances,  than  the  English,  which,  I  am 
informed,  from  their  peculiar  practice  and  conveyancing,  is 
especially  scrupulous  in  interfering,  even  indirectly,  with 
private  rights  and  charter-chests ;  but  then,  again,  a  Peerage 
is  ju8  publicum^  in  which  the  nation,  as  well  as  the  parties, 
are  interested,  and  who  hence  may  naturally  require  that  jus- 
tice, and  the  fair  truth  in  the  matter,  should  be  fully  extri- 
cated ;  while  our  own  doctrine,  and  not  that  of  the  English, 
ought  relevantly  to  rule.  Added  to  this,  our  neighbours 
being  more  methodical  and  careful  than  our  very  negligent 
selves,  in  the  registration  and  transmission,  in  a  public  form, 
of  Peerage  grants, — their  records,  at  the  same  time,  having 
been  far  better  kept,  and  suffered  far  less  from  dilapidation 
and  the  injury  of  time, — the  motives  and  considerations  that 
apply  to  them,  may  not  to  us. 

Connected  with  the  present  weighty  topic,  in  some  degree, 
which  it  anticipates,  and  may  in  the  main  discuss,  though 
does  not  properly  decide,  the  following  modern  case,  that,  if  is 
to  be  regretted,  was  not  formally  and  sufBciently  laid  or 
framed  for  better  elucidation  or  determination,  (however,  not 
altogether  unfavourable)  falls  particularly  to  be  noticed. 

Action  of  exhi-  *^^^°  ^^'  ^^  Crawford  and  Lindsay  obtained,  upon  his  re- 
bitioD,  and  de-  siguation,  a  charter  or  regrant,  under  the  Great  Seal,  dated 
ud^granu  "of&t  Eklinburgh,  the  28th  of  April  1648,  of  the  honours  and 
honours,  &c.  by  eg^l^^g  ^f  Crawford  and  Lindsay,  &c.  to  himself  and  the 
bell,  against    heirs-malc  of  his  body  ;  whom  failing,  to  the  eldest  heir-female 

UnVcJaw.  ^f  ^^  ^^y^  *^c- '  ^"^  Colonel  WUliam  Claud  Campbell, 
ford,  before  the  under  the  latter  character,  (the  heirs-male  having  failed,) 
th*e*"Appenate  being,  in  1820,  served  and  retoured  heir  of  provision  in  ge- 
jarUdiction,  in  neral,  Dursued  an  action  of  exhibition  and  delivery  in  the 
Court  of  Session,  of  all  original  grants  of  the  Crawford  hon- 
ours, including  those  before  1648,  and  afterwards,  or  deeds 

'  See  authoritj  of  Stair,  afterwards  referred  to. 
'  Great  Seal  Raster.    Infeftment  followed  in  due  course,  and  the 
title  under  the  conveyance  to  the  estates  took  full  effect. 


IN  SCOTTISH  PEERAGES,  &C.  637 

connected   with  them,   which   were  specially  condescended 
upon,  against  Lady  Mary  Lindsay  Crawford,  the  presumed 
possessor ;  at  least  who,  though  a  more  remote  heir-female, 
had  succeeded  to  the  Crawford  estates  and  family  papers,  in 
virtue  of  a  modern  settlement,  of  the  property  alone,  long 
after  the  Union,  which  so  far  abrogated  the  former.    She  had 
confessedly  no  claim  to  the  honours ;  while  the  pursuer's  ob- 
ject was  to  corroborate  his  eight  thereto,  and  to  avail  him- 
self of  every  incidental  interest,  pre-eminence,   or  faculty 
affecting  the  same,  that  might  thus  transpire,  and  centered 
in  him,  in  virtue  of  the  charter  in  1648.    To  such  of  the  deeds 
and  instruments  as  concerned  exclusively  the  dignities,  he 
maintained  a  right  of  property,  according  to  the  doctrine  laid 
down  by  Stair ;  ^  but  to  the  remainder  that  might  affect  the 
estates  also, — which  he  again  did  not  claim,  a  right  of  inspec- 
tion, and  of  availing  himself  of  them  quoad  the  former,  on  re- 
ceipt and  obligation  for  re-delivery.     The  Court  of  Session, 
on  July  9,   1823,  after  opposition  by  Lady  Mafy,  the  de-  Sustained  by 
fender,  who  appeared,  sustained  the  action,  and  remitted  to|)j^jr^„||^^^[ 
the  Clerks  of  Session  "  to  examine  Lady  Mary  Crawford's  rerersed  by  the 
charter-chest,   or  other  repositories,  containing  the  family  isdiction. 
papers,  for  the  deeds  called  for  by  the  pursuer  in  his  informa- 
tion, and  to  select  the  same,  if  found,  and  with  full  power  to 
take  the  deposition  of  havers ;  and  granted  commission  and  di- 
ligence for  that  purpose  accordingly."     But  the  noble  de- 
fender having  appealed,  the  House  of  Lords,  as  the  appellate 
jurisdiction,  the  26th  of  May  1826,  reversed  the  judgment, 
and  assoilzied  or  absolved  her  Ladyship  from  the  conclusions 
of  the  process. '     The  grounds  of  the  reversal,  as  given  by 
Lord  Gtffbrd,  in  his  speech  or  decision  upon  the  occasion, 
were  these  : — that  Colonel  Campbell  had  failed  to  prove  his 
right  of  property  in  the  deeds,  he  neither  claiming  the  estates, 
or  having  at  all  instructed  his  right  to  the  dignity, — ^which 
were  r^arded  indispensable  for  the  purpose.     His  want  of 

'  ^  Elxbibition  and  delivery  (that  learned  Judge  inculcates)  is  com- 
petent to  any  party,  in  whose  favours  a  writ  is  conceived,  without  ne- 
eessity  to  prove  that  it  was  delivered."    (7n^.  B.  I.  Tit.  VII.  §  14.) 

*  See  Wilson  and  Shaw's  Reports  of  Appeal  Cases,  containing  the 
present,  toI.  II.  pp.  443-7. 


638  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

right  to  the  latter  was,  besides,  conlessed,  by  his  merely  pur- 
suing as  a  commoner.  ^^  His  action  is  not,"  hb  Lordship 
affirmed,  '<  for  the  exhibition  of  deeds  to  make  out  his  claim, 
but  to  deliver  the  deeds  to  him,  he  founding  upon  a  right  of 
property  in  the  deeds.  ^  He  says  he  has  been  served  heir. 
Be  it  so  :  still  he  has  not  established  his  right  to  the  dignity ; 
and  unless  your  Lordships  have  recognised  his  cldm,  he  can- 
not  aay  that  he  Js  entitled  to  the  dignity."  But  this  judg- 
ment, at  the  same  time.  Lord  Gifford  added,  ''  will  not  pre- 
vent a  proceeding  on  his  part,  on  any  future  occasion,  sup- 
posing him  to  have  a  ground  for  it.  He  may  raise,  if  he  is  so 
advised,  an  action  of  exhibition,  ad  probandunij — ^that  acces- 
sory action  to  which  I  have  referred,  ^ — or  if,  at  a  future  time, 
he  shall  be  found  entitled  to  the  dignity,  the  present  form  of 
action  may  be  relevant."  ^  It  is  very  remarkable,  that  if  the 
Case  of  Colonel  Crawford  succcssion  had  opened  to  Colonel  Campbell,  the 
STe^wUh  tb^t  hw-fenaale  before  the  Union,  and  if  he  had  produced  in  Par- 
of  the  Buchan  liameut  the  charter  in  1648,  and  evidence  of  a  Parliamentary 
1698!^"^'  *"  ratification  in  1661, — which,  though  not  now  existing,  can  yet 
be  instructed  to  have  past, — then  his  case  would  have  been 
fuUy  identical  with  that  of  the  Earldom  of  Buchan  in  1698. 
The  claim  there,  was  exclusively  supported  by  a  parallel  char- 
ter of  the  honours  and  estates  of  Buchan  in  1625,  dated  at 
Edinburgh,  ^  backed  simply  by  a  Parliamentary  ratification  in 
1633. '  And  the  Parliament,  therefore,  as  they  did  in  that 
instance, — as  wpll  as  in  conformity  to  the  later  one  of  Kin- 
cardine, in  1706, — would  accordingly,  in  the  event  stated,  have 
given  the  Crawford  party  in  question  interim  sitting  and  pos- 
session, reserving  power  to  all  interested  to  question  his  right 
in  the  Court  of  Session,  who  were  alone  competent  to  the 
matter.  ^  Such  being  the  case,  and  the  evidence  the  Colonel 
adduced  being  equiponderant,  and  by  relevant  Scottish  pre- 

^  This  only,  however,  as  is  clear,  partly  or  alternately  obtained. 
"  In  obTious  opposition  to  the  snbstantive  one,  grounded  upon  a 
right  of  property. 
'  Wilson  and  Shaw,  ut  sup.  p.  461. 

*  Great  Seal  Register. 

'  Acts  of  Pari,  last  Edit.  vol.  v.  p.  06,  ei  #07. 

*  See  pp.  32-3,  and  what  precedes. 


IN  SCOTTISH  PEERAGES,  &;c.  639 

cedent  allowed  to  constitute  a  presumptive,  or  at  least  exjacie 
right  in  a  Peerage,  with  incidental  and  attendant  interests, — 
could  the  Session,  at  the  same  time,  in  the  due  exercise  of 
their  authority,  have,  in  strict  form,  refused  to  enforce  de- 
livery, or  exhibition  of  any  grants  or  patents  of  the  Crawford  court  of  Ses- 
dignities,  on  a  substantive  action  at  his  instance,  grounded  upon  ^^^  competent 
his  title  as  a  Peer,  and  pursuing  in  that  capacity,  or  even 
by  an,  accessory  one  to  RuthenticsLtQ  (ad  probandum)  or  corro- 
borate it,  ob  majorem  cautelam^  and  prudentiaUy  and  rele- 
vantly,  6b  majorem  rei  securitatem  f  I  conceive  they  strictly 
could  not.     There  was,  it  is  observable,  no  counterclaim. 

The  error  committed  by  Colonel  Campbell  in  his  action, —  His  action,  per. 
after  his  service,  too, — upon  Scottish  principle,  strangely  as  p^f'y  ,haped!°" 
it  may  strike  modern  apprehension,  may  have  been  in  not  pro- 
ceeding qua  Peer,  in  this  way.     By  not  assummg  the  dignity, 
upon  grounds  that  were  certainly  admitted  and  recognised  by 
the  Scottish  Parliament  in  1698,  but  insisting  as  a  commoner, 
he  gave  rise  to  a  personal  objection ;  and  may  hence  have  in- 
validated, (agreeably,  as  seems,  to  the  exception  in  the  Borth- 
wick  case,  ^)  or  indicated  a  distrust  of  his  right  to  it.     The 
new  evidence  adduced  in  this  treatise*  was  not  then  known, 
or  at  least  referred  to, — instructing  the  Court  of  Session  to 
be  the  exclusive  Ordinaries  in  Peerage  questions.     A  service 
besides,  by  which  Colonel  Campbell  had  been  duly  warrant- 
ed, as  has  been  abundantly  proved  by  cases  after,  as  well  as 
before  the  Union,  was  of  far  greater  account  in  law,  in  respect 
to  dignities,  than  Lord  Gifford,  an  English  lawyer,  seemed  Miwpprehen- 
aware  of.    It  was  the  ordmary  method,  even  recogmsed  by  the  Gifford. 
House  of  Peers,^  of  instructing  the  right  to  a  Peerage,  in 

•  See  p.  686-7.  •  Under  Chap.  I. 

*  This  has  been  shewn  by  the  claim  of  William  Sinclair  of  Ratter, 
to  the  Caithness  Peerage,  in  1772,  (see  p.  614,)  where  his  recent  unsa- 
tisfactory, and  in  £Eict  erroneous  service,  in  1768,  was  relied  upon  by  the 
Lords,  and  by  which  alone  extinctions  could  have  been  substantiated. 
The  same  remark  applies  also  to  the  service  in  1700,  of  Sir  James 
Sinclair  of  May,  the  next  successful  Caithness  claimant,  founded  upon 
before  the  Lords,  in  1793.  (See  p.  620.  See  also  the  striking  concurring 
instances  of  Somervile,  Holyroodhouse,  Cassilis,  Berth  wick,  and  Caith- 
ness again,  pp.  350, 385, 578, 583, 61 1,  621-2.)  At  the  Peerage  Election 
in  1737,  William  Maclellan,  in  whom  was  the  Peerage  of  Kirkcudbright, 


640  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

terms  of  a  conveyance  of  honours,  or  even  of  a  mere  construe' 
tive  grant  or  descent. 

Both  ingredients  in  a  Peerage  claim  appear  to  have  been 
virtually  and  presumptively  held  to  constitute  such  right ;  and 
by  our  forms  and  practice,  Colonel  Campbell,  it  seems,  having, 
in  reality,  sufficient  interest,  and  entitled  to  interim  possession 
in  virtue  of  the  Buchan  precedent, — ^nay,  afortiorif  by  means 
additionally  of  a  service  that  did  not  there  hold, — may  have 
been  authorized  to  insist  in  the  way  stated.  And  further  still, 
if  opposed  by  a  competitor,  the  Court  of  Session  might  then 
have  probed  and  investigated  his  right  to  the  Peerage.  The 
action  of  exhibition,  granting  the  premises,  follows  even  upon 
the  reasoning  of  Lord  Gifford,  who  laid  such  stress  upon  the 
matter  of  claim,  which  he  absolutely  rejected  in  the  case. 
English  Peerage  notions,  so  much  at  variance  with  ours,  may 
be  further  held  to  have  prejudicially  operated  against  theCraw- 
ford  pursuer  in  1826.  What  the  latter  were  in  such  respect, 
Difference  in  — iq  confirmation  of  what  I  have  attempted  to  inculcate, — is 
Peerage  rights,  thus,  I  couccive,  wcU  and  truly  explained  in  an  original  state- 
and  in  relative  ment — ^yetcxtaut,  by  a  lawyer,  in  reference  to  another  Peerage 
tween  the  two  ca8e,at  the  middle  of  last  century.  *'  The  Peers  of  Scotland 
countries.  ^^^^  ^^^  ^j^.  jg  j^g^jy  gtated)  summoned  to  Parliament  by  parti- 
cular writs  addressed  to  each  Lord,  but  by  one  general  Sum- 
mons. When  a  Peerage  fell  to  a  collateral  heir,^  he  had  no  oc- 
casion to  apply  by  Petition  to  the  Kmg,  as  in  England,  for  his 
writ  of  Summons ;  neither  had  he  any  occasion  to  apply  in  or- 
der to  prove  his  propinquity,  because  that  was  ascertained  in 
the  regular  legal  method  by  the  verdict  of  a  Jury^  upon  evi- 
dence returned  to  the  writ  of  Mortancestry  (in  other  words, 

as  snbseqnently  fonnd  by  the  Lord£f,  prodnoed  a  service,  in  1784,  as  heir- 
male  of  James  last  Lord  Kirkondbright, "  in  order  to  ehow  that  he  has  a 
right  ((fuasuch)  to  vote  at  the  said  Election.'*  (Robertson's  Peerage  Pro« 
eeedings,  p.  183.)  Our  original,  and  appropriate  law,  was  here  obviously 
adopted.  Nay,  the  sole  ground,  as  has  been  proved,  (see  p.  185,)  upon 
which  Charles  II.,  the  11th  of  July  1670,  allowed  the  Barony  of  Sal- 
ton  to  Alexander  Fraser  of  Philorth,  the  heir-female,  was  merely  his 
service  in  that  year,  as  ^  heir  of  lyne,'*  of  Greorge  Lord  Salton. 

*  Of  course  the  same  thing  obtained  in  respect  to  a  linealy-^the  men> 
tion  here,  of  the  coBateral  heir,  was  owing  to  the  case  under  oonsidera* 
tion  affecting  such. 


IK  SCOTTISH  PEEBAOES,  &C.  641 

fty  a  retour.)  That  return  is  not  traversable,  but  must  be 
taken  as  a  true  bill,  tiU  by  a  process  of  reduction  it  is  falsi* 
fied.  Upon  this  service  then  he  took  his  seat  in  Parliament, 
and  held  a  right  to  the  possession  of  his  Peerage.  If  this 
right  was  objected  to,  it  might  either  be  by  a  competition  for 
the  Peerage,  or  by  a  Lord  objecting  to  his  title ;  and  in  both 
cases  the  matter  was  considered  as  any  other  question  of  civil 
right,  and  determined  by  the  Court  of  Session,  If  not  ob« 
jected  to,  he  continued  his  possession,  and  enjoyed  the  right 
of  a  Peer." 

There  is  hence  abundant  ground  here  in  favour  of  the  com-  inductions  in 
petency  of  the  Session  in  honours,  and  their  consequent  att-^^on*^,  com- 
thority  and  jurisdiction  in  Colonel  CampbelFs  action.  Inde- petency  in  the 
pendently  of  this,  according  to  English  rule,  Lord  Gifford,  with^SIJ^f ""'  "***" 
every  submission,  (to  whom  these  facts  must  have  been  un- 
known,) may  be  charged  with  great  inadvertency,  or  inaccu- 
racy, when  he  unqualifiedly  said,  th$it  the  former  could  not  be 
viewed  as  '^  entiUed  to  the  dignity, — unless  your  Lordships 
have  recognized  his  claim."  >  Now  it  is  indisputable,  that  the 
House  of  Peers  have,  in  reality,  no  proper  jurisdiction  in  the 
matter, — no  more  than  any  other  tribunal, — nay  even  than 
the  Court  of  Session,  abstracting  from  their  actual  right,  as 
has  been  shewn, — who  may  as  relevantly,  under  the  only 
sanction  or  authority,  in  England, — that  of  the  Crown, — dis- 
cuss and  resolve,  in  a  Peerage  claim.  It  is  remarkable  that 
it  was  even  argued  without  direct  contradiction,  in  the  Craw- 
ford process,  before  the  Appellate  Court,  that  the  Session 
were  alone  competent  to  the  ^^  question  of  property  "  in  the 
grants  of  honours, — though  Lord  Redesdale  affirmed,  agree- 
ably to  his  known  and  exclusive  doctrine,  that  when  the 
Lords  were  constituted  by  the  King  judges  in  Peerages, 
"  all  orders,**  including  the  "  power  of  taking  the  proof,  eman- 
ated from  the  House.*'  ^ 

This  quadrates  certainly  with  EngUsh  notions,  but  by  ours 
properly,  the  power  in  the  first  instance  should  centre  in  the 
Session,  as  Ordinaries.  But  be  this  as  it  may.  Lord  Gifford 
admitted,«that  in  other  circumstances,  in  a  substantive  claim 

'  See  Wilson  and  Shaw,  ut  mpra^  p.  461.      '  Ibid,  pp.  44C-7» 

28 


642  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

to  a  Peerage,  which  the  present  was  not,  an  action  of  ex- 
hibition, adprobandum^  might  be  raised,' *-of  course  before  the 
Session, — so  that  from  this,  in  the  important  emergency  con- 
templated at  the  outset,  involying  a  Peerage  right  directly  and 
relevantly  contested  by  two  parties,  we  may  be  led  to  con- 
clude, that  exhibition  of  material  documents  may  be  here  in- 
sisted upon,  by  one  party  having  shown  sufficient  cause  or 
interest  against  the  other,  and  duly  enforced  by  the  former,  un- 
der authority  of  the  House  of  Peers — whether  in  the  charac- 
ter of  their  appellate,  or  quoad  Peerages,  delegated  jurisdic- 
tion. This  not  inconsistently,  too,  in  the  latter  case,  as  our 
law  Lords  in  Scotland  have  thus  incidentally  acted,  in  Peer- 
age claims  before  the  Peers,  and  taken  proof  in  regard  to 
them,  as  has  been  instructed  by  that  of  Borthwick.' 

The  Flemings  of  Cumbernauld,  Earls  of  Wigton,  &c.  who 
have  indirectly  led  to  this  discussion,  were  an  o/c/,  and  dis« 
tinguished  House,  of  whom,  nevertheless,  no  male  cadets  ap- 
pear now  to  exist,  although  they,  singularly  enough,  often 
abound  in  many  families  of  a  much  briefer  pedigree,  l^be 
Flemings,  ancient  Barons  of  Slane  in  Ireland,  it  is  remarka- 
ble, from  an  idea  of  clanship,  or  mutual  descent,  uninstructed, 
and  probably  only  grounded  upon  the  coincidence  of  surname, 
included  the  former  in  an  entail  of  their  estates  in  1624.^ 

»  See  p.  638.  •  See  p.  593. 

■  See  Lyncho's  Feudal  Dignities  in  Ireland,  p.  206.  The  ultimate 
settlement  there  is  "  in  fee  to  the  Lord  Fleming,  now  Earl  of  Wigton, 
in  Scotlandy  and  to  his  heirs  for  ever."  There  were  diverse  previous 
remainders  to  heirs-male.  The  Cumbernauld  charter-chest  contains 
a  curious  communication  in  1725  from  William  Fleming,  afterwards 
"commonly  called  Lord  Slane,"  (there  having  been  an  attainder,)  to 
John  Earl  of  Wigton  ;  from  whence  it  transpires  that  he  was  "  cousin 
german  to  the  late  Lord  Slane,  now  Lord  (Viscount)  Longford,"  (out- 
lawed at  the  Revolution,)  and  "  cousin  german  to  the  late  Earl  of  An- 
trim ;"  and  he  in  it  expresses  "  deep  concern  that  your  Lordship's 
friends  in  Ireland  are  not  better  known  to  you, — Christopher  Fleming, 
late  Lord  Baron  of  Slane,  (his  '  Great  Grandfather/  having)  limited 
his  estate  and  titles  to  the  Earl  of  Wigton  and  his  heirs  ;"  and  the  pre- 
sent Earl,  it  is  intimated,  being  now  "  next "  in  remainder  to  him — the 
said  William.  There  is  also  the  old  legend  of  three  sons  of  an  Earl 
of  Flanders  being  ancestors  of  the  Earls  of  Wigton,  the  Le  Flemings 
in  the  north  of  England,  and  of  Lord  Slane.    William  Lord  Slane, 


IN  SCOTTISH  PEERAGES,  &C.  643 

The  House  of  Peers,  the  9th  of  March  1761,  appointed  aEffort«  of  the 
Committee  to  make  a  "  list  of  the  Peers  of  Scotland  at  the  to^harra  cor- 
time  of  the  Union,  whose  Peerages  are  still  continuing," '^cUiat  or  roil 
With  **  power  to  summon  all  proper  persons  before  tnem,  and  Peen. 
to  report  from  time  to  time."  ^     On  the  15th  of  March  1762, 
they  further  ordered  a  reprint  of  the  Report  of  the  Lords  of 
Session  in  1740,  upon  the  same  subject,  including  the  limita- 
tions of  certain  dignities,  which,  with  some  good  remarks, 
contains  inadvertencies  and  misconceptions.^   And  the  20th  of 
March  1767,  they  formed  themselves  into  a  Committee,  '^  to 
consider  of  the  most  proper  means  effectuaUy  to  ascertain  the 
descents  of  the  Peers  of  this  kingdom,  so  that  the  Crown,  or 
this  House,  may  not  incur  the  risk  of  being  imposed  upon  by 
any  ill-founded  claim  of  Peerage."  ^ 

There  was,  it  must  be  admitted,  great  necessity  for  these  Roll  »ince  the 
steps, — the  Roll  of  the  Scottish  Peers  adopted  since  the  rate,  and  not 
Union  being  inaccurate,  and  carelessly  adjusted.     But,  per-  properly  ad- 
haps,  the  duty  fell  more  eligibly  to  the  Peers  of  Scotland, 
who  might  have  been  intrusted  by  the   crown  and  legisla- 
ture with  summary  powers  for  the  purpose, — though  under 
reservation  to  parties  who  might  think  themselves  aggrieved 
by  the  procedure, — as  on  the  noted  occasion  of  the  decree  of 
ranking  of  the  Scottish  nobility  in  1606,^  to  have  recourse,  for 
redress,  to  the  Courts  of  law  ;  for  it  so  happens,  as  things  at 

repreaentative  of  the  Irish  Flemings,  had  a  son,  Christopher  Lord 
Slane,  who  died  without  issue  in  1771,  having  three  sisters,  his  co- 
heirs. (See  Lynch,  ut  sup,  p.  210.)  The  arms  of  the  Scottish  and 
Irish  Flemings  are  different.  Much  in  the  previous  way,  the  Flem- 
ings of  Barochan,  another  old  family  with  us,  but  probably  distinct 
by  male  blood  connection, bearing  different  arms,  are  called  as  ultimate 
nude  heirs  in  a  Wigton  settlement  in  1595.  (Great  Seal  Register.) 
The  Scottish  stocks  may  be  descended  from  leaders  of  Flemish  colon- 
ists, who  figure  in  our  charters  in  the  12th  century.  The  present  John 
Lord  Elphinstone,  besides  other  representations,  is  heir-general  of  the 
Earls  of  Wigton,  and  through  them,  of  the  ancient  and  still  more  dis- 
tinguished House  of  the  Keiths,  Earls  Marshal,  (if  we  take  every  kind  of 
relevant  *^  illustration,"  according  to  the  present  French  test,  into  ac- 
count,) in  whom  the  hereditary  office  of  Marshal  had  been  for  such  a 
protracted  period,  and  to  which  there  are  likewise  now  no  male  heira. 

'  Lords*  Journals.  '  Ibid. 

■  IHd.  *  See  pp.  10,  11. 


644  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

present  stand,  that  our  Peers  at  Elections  are  the  only  public 
body  who  have  no  right  to  purge  their  Roll.  Neither,  as 
formerly  obtained  with  us,  on  the  extinction  of  a  dignity,  or 
its  merging  in  another,  has  there  been  any  order  for  expung- 
Prejudieiaicon-ing  it  from  theuce. '  Owing  therefore  to  all  titles,  with  the 
fequences  from  g^i^  exception  of  those  forfeited,  beinff  retained  in  the  exist- 

this»and  wantof ,  *        ,  . 

form  in  Scottish  lug,  or  what  is  Styled  the  Union  Roll,  whether  assumed  or 
i^r'Lir"  riSu  extinct,  although  it  has  been  altered  and  augmented  by  the 
on  BQccMsion.  insertion  of  others  under  the  authority  of  the  Lords,  success- 
fully claimed  since  the  Union, — the  unrevised  and  exception- 
able state  and  condition  of  that  roll,  and  want  of  a  peremp- 
tory form  and  due  establishment  of  Peerage  rights,  upon 
the  demise  of  a.  Peer  and  accession  of  his  heir,  ^ — while  far- 

'  The  Parliament,  the  2dd  of  April  1685,  <' ordered  that  TuUibarden 
(the  Earldom  of)  be  expunged  out  of  the  Rolls  of  Parliament^  in  regaird 
the  estate  and  title  thereof  is  in  the  person  of  the  Marquess  of  Athole.'* 
(Acts  of  Pari,  last  edit.  vol.  VIII.  p.  467.) 

'  With  us  too,  it  is  remarkable,  that  after  the  inauguration,  or  acces- 
sory solemnities  of  a  Peerage  constitution,  there  was  no  parliamentary 
form  by  which  its  descent  was  articulately  guarded  or  defined,^^ther 
than  sucli  order  noticed  on  a  merger,  or  an  extinction.  There  was  the 
intervuntion  of  no  writ  of  summons,  as  in  England,  individually,  to 
the  heir  of  a  Peerage,  on  the  demise  of  a  predecessor — affording  a  salu- 
tary check  to  undue  assumption  and  usurpation.  Scottish  Peers  before 
the  UnioHy  in  the  ordinary  routine,  on  such  event,  neither  petitioned 
the  King  or  Parliament,  (which,  differently  from  England,  comprized 
in  one  chamber  both  Peers  and  Commoners,)  and  wliich  last,  as  little, 
except  in  remarkable  cases,  and  urgently  and  summarily  called  upon, 
as  in  that  of  Buchan  in  1698,  (see  p.  32,)  interfered  in  the  matter  of 
his  right  or  pedigree.  Nor  did  they  even  then  go  into  the  merits,  (see 
again  iHd,  and  p.  33,  &c.)  only  giving  an  interim  order.  As  fonnerly 
shewn  and  stated,  (see  pp. 640-1.)  these  were  "ascertained  (inter alia) 
in  the  regular  legal  method  by  the  verdict  of  a  Jury,  upon  evidence  re- 
turned to  the  writ  of  mortancestry,"  which  was  "  not  traversible,  but 
must  be  taken  as  true,  till  by  a  process  of  reduction  it  is  falsified. 
Upon  his  service  (of  fer  greater  account  than  Lord  Giffbrd  seems  to  have 
apprehended,)  he  took  his  seat  in  Parliament,  and  had  a  right  to 
the  possession  of  his  Peerage.  If  his  right  was  objected  to,  it  might 
either  be  by  a  competition  for  the  Peerage,  or  by  a  Lord  objecting  to 
his  title,  (as  in  the  same  instance  of  Buchan,  ut  aup.  and  see  Acts  of 
Pari,  last  edit.  vol.  X,  p.  144,)  and  in  both  these  cases  the  matter  was 
considered  as  any  other  question  of  civil  right,  and  determined  by  the 
Court  qf  Session,  (see  p.  33).    If  not  objected  to,  he  continued  his  pos- 


IN  SCOTTISH  PEERAGES,  &C.  645 

ther  still,  the  preceding  measures  of  the  House  of  Lords  have 
proved  trremedial, — it  has  been  practicable  for  any  one,  though 
a  mere  stranger,  to  answer  and  vote,  under  some  vcu^ant  dig- 
nity, at  Peerage  Elections.  Hence  the  late  preposterous  in- 
trusion and  annoyance  of  the  pseudo  Earl  of  Stirling,  and 
certain  individuals  as  little  entitled,  vtrith  untoward,  and  per- 
plexing consequences,  at  least,  that  have  been  felt, — a  door 
being  thus  opened,  to  use  the  purport  of  the  resolution  in 
1767,  for  imposing  upon  the  CroWn  and  the  Peers,  by  ill- 
founded  claims.  Lord  Roseberry,  no  doubt,  in  our  days,  has  No  proper  re- 
made laudable  efforts  to  remedy  the  evil,  aggravated,  as  I  "^p.^^peJ  Peerl 
conceive,  by  the  Session  having  been  disused  as  Ordinaries  age  Roll  made. 

session,  anil  enjoyed  the  rights  of  a  Peer."  (See  same  case  of  Buchan 
ut  9up,)  Upon  the  moving  for  a  writ  for  Perthshire,  in  the  House  of 
Commons,  the  21st  of  February  1840,  owing,  Men,  to  the  succession  of 
William  Lord  Stormont,  by  the  death  of  his  father  William  Earl  of 
Mansfield, — Viscount  of  Stormont,  to  the  latter  Scottish  dignity.  Sir 
William  Follet,  (who  was  only  recently  aware  that  the  Court  of  Session 
ever  discussed  Peerages),  influenced  by  English  notions,  irrelevantly 
maintained,  upon  the  strength  of  the  inapplicable  precedent  formerly 
of  the  present  Lord  Scarborough,  that  until  a  nobleman,  in  such  situa- 
tion, had  received  a  writ  of  summons,  it  was  not  usual  to  move  for  a 
new  writ  in  the  Commons  in  respect  to  a  place  he  had  represented. 
Mr.  Maule  answered,  that  Lord  Stormont  would  take  his  place  in  the 
Uoase  of  Lords,  qua  such,  without  summons  ;  the  Lord  Advocate,  that 
by  the  law  of  Scotland  no  service  of  his  legitimacy  or  filiation,  (which 
was  notorious  to  the  House,)  or  form  whatever,  was  incumbent ;  while 
Sir  William  Rac  justly  argued  upon  the  importance  and  expediency 
of  a  service  on  the  occasion.  His  opinion,  though  there  certainly  be 
foundation  for  the  proposition  of  the  Advocate  in  modem  times,  seems 
the  sounder,  and  is  precisely  consonant  with  our  genuine  original  no- 
tions ;  for  it  has  been  established,  that  in  the  16th  century,  at  least, 
until  a  Scottish  nobleman  was  served,  and  feudally  took,  after  his  de- 
ceased predecessor,  he  was  accounted  but  a  commoner.  (See  pp.  698- 
9.)  The  principle  here  did  not  obtain  with  us,  "  quod  mortuu9  aasit  vi- 
rum"  This  form,  grounded  upon  feudal  principle,  like  every  thing 
else,  as  is  obvious,  again  refutes  the  firtt  Lord  Mansfield.  We  have 
fieen  too,  that  upon  the  death  of  Alexander  Earl  of  Caithness  in  1766^ 
the  two  claimants  had  recourse  to  a  service  to  instruct  their  pedigree, 
and  peerage  right ;  while  the  Court  of  Session,  in  the  interim,  before 
the  matter  was  duly  fixed,  compelled  one  to  relinquish  the  title  which 
he  bad  taken.  (See  p.  611.)  The  previous  writ  for  Perthshire  was 
carried,  of  the  date  mentioned. 


646  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

and  the  natural  Forum  in  such  matters ;  but,  by  some  strange 

fatality  or  other,  not  with  the  effect  and  success  that  might 

have  been  expected.     Neither,  as  I  have  already  hinted,  did 

the  former  attempts  of  the  House  of  Lords  attain  the  intended 

Previous  efforts  end ;  for  no  new  Roll  was  ever  made  and  adjusted.     They, 

Lords  in* some  howovor,  in  the  furtherance  of  their  object,  on  March  16,  and 

degree  benefi-  November  16,  1761,  ordered  the  assumers  of  the  titles  of 

cialf  in  the  case 

of  certain  Peer-  Stirling,  ^  Borthwick,  Kirkcudbright,  Rutherford,  and  Wig- 
age  aspirants.    ^^^^  ^^  u  attend  this  Housc,"  and  '*  shew  by  what  authority, 

and  upon  what  grounds,"  they  respectively  took  them. ' 

None,  however,  of  the  same,  —  including  also  William 
Graham,  the  assumer  of  the  Menteith  title,  who  had  come 
to  be  cited  in  like  manner  ^ — having  done  so,  the  Lords,  on 

>  Lords'  Journals. 

'  The  petition  of  William  Alexander,  the  claimant  of  the  Earldom 
of  Stirling,  had  been  referred  by  the  Crown  to  the  Lords,  the  2d  of 
May  1760,  and  again,  on  being  represented,  December  14, 1761,  ibid. 
Nature  of  Men-  '  On  the  27th  of  January  1762,  ibid.  As  far  back  as  October  12, 1744, 
teith  claim  in  — at  a  peerage  election — this  individual,  styling  himself  a  student  of 
*'^1j"*  'medicine,  on  calling  the  Roll,  answered  to  the  title  of  Earl  of  Men- 
teith, founding  upon  his  confirmation  as  executor  to  *'  the  l<ut  Earl" — 
WiUiam  Earl  of  Menteith  and  Airth,  who  died  at  the  close  of  the  pre- 
vious century.  (See  Robertson's  Peerage  Proceedings,  p.  243.)  Half 
crazed,  though  harmless,  and  only  inheriting  (except  the  right  of  blood) 
but  a  portion  of  the  lunacy  of  his  family,  he  yet  fully  believed  himself 
an  Earl,  and  was  to  be  seen,  during  a  life  of  continued  mendicity,  ««- 
coping  from  towns,  on  the  eve  of  Elections,  with  his  ^*  bags  and  wallets," 
lest  his  presence  as  a  Peer  might  havo  the  effect  to  concuss  them. 
His  wretched  circumstances,  occasioned,  as  is  believed,  by  the  unna- 
tural conduct  of  a  male  relative  to  his  equally  unfortunate  mother, — 
originally  heiress  to  the  estate  of  Gartmore, — the  Menteith  and  Airth 
executry,  and  to  relative  landed  interests,  together  with  undue  ad- 
vantage taken  of  her  in  her  minority,  not  to  add  his  state  of  mind, 
over  precluded  him  from  actually  mooting  his  claim.  He  was  the  di- 
rect heir  through  her,  of  Lady  Elizabeth  Graham,  sister  and  co-heiress 
of  Earl  William  mentioned,  by  her  husband  Sir  William  Graham, 
Baronet,  of  Gartmore, — of  whom  he  farther,  in  like  manner,  was  the 
sole  representative.  And  in  Lady  Elizabeth's  descendants,  and  in  those 
of  Lady  Mary  Allardice,  the  remaining  sister  and  co-heiress,  centered 
the  immediate  representatiouship  in  general  of  that  nobleman.  Had 
Lady  Elizabeth  been  eldest,  the  poor  mendicant  would  have  been  a 
preferable  claimant  to  the  Earldoms  of  Menteith  and  Airth,  than  Mr. 
Barclay  Allardice  of  Urie,  and  Allardice,  (or  his  female  ancestors,)  the 


IN  SCOTTISH  PEERAGES,  &C.  647 

December  14»  1761,  the  2d,  10th,  15th,  and  25th  of  March 
1762,  discharged  each  and  all  of  them  from  taking  the  digni- 
ties, or  voting  at  Elections,  until  they  had  made  out  their 
claims,  and  had  them  allowed  in  legal  course.^ 

The  procedure,  in  a  certain  degree,  was  productive  of  good 
effects.  It  forced  the  Borthwick,  Kirkcudbright,  and  Wigton 
claimants  eventually,  as  we  have  seen,  to  prosecute  their  con- 
ceived rights  to  a  determination, — the  Rutherford  asserted 
heir  male,  to  claim,  by  petition  and  reference,^  though  neither 
he,  or  the  Stirling  aspirant,^  chose  to  insist  farther.     And, 

direct  descendant  of  Lady  Mary,  and  present  competitor  for  these  dig- 
nities in  tlie  House  of  Lords.  But  the  evidence,  now  recoverable,  told 
the  other  way ;  though  the  Earl  had  chosen  to  appoint  Sir  John  Graham 
of  Grartmore,  his  only  nephew,  by  Lady  Elizabeth,  (who  died  with 
issue,)  his  executor  by  testament.  By  those  ignorant  of  law,  such  pre- 
ference of  Sir  John,  who  came  to  be  cognosced  for  lunacy,  and  in  whose 
shoes  the  mendicant,  his  grand-nephew,  stood, — though  in  reality  incon- 
clusive, was  thought  to  be  decisive  in  his  favour,  as  to  the  seniority  in 
question  ;  and  in  virtue  of  it,  he  voted  at  several  Elections  after  1744. 
(See  Robertson's  Peerage  Proceedings,  pp.  255,  273,  275,  277,  290.)  It 
is  now  altogether  immaterial,  owing  to  the  thorough  extinction,  as 
proved  in  the  Airth  claim,  of  Lady  Elizabeth's  line.  But  what  of  the 
defect  of  right  of  her  descendant  so  far,  he  was  of  high — indeed  of  the 
purest  royal  descent,  being  sprung,  as  well  as  Mr.  Barclay  AUardice,  of 
the  heir  of  Robert  the  Second's  unexceptionable  and  unblemished  mar- 
riage with  Euphcmia  Ross,  (see  pp.  515, 518-9, 136,)  and  had  a  clear 
and  transcendant  claim,  contrasted  with  that  of  sundry  Peerage  aspir- 
ants in  our  days.  The  end  of  the  beggar-i;^ar/,  as  stated  in  an  original 
letter,  was  indeed  *'  deplorable,"  he  dying  through  penury  and  exhaustion, 
in  1783,  on  the  road-side  near  Bonill,  when  plying  his  vocation  among 
the  neighbouring  farmers.  His  nephew,  and  heir,  by  a  sister,  one 
Bogle,  a  miniature  painter  of  some  celebrity,  died  without  issue. 

'  Lords'  Journals. 

'  Uis  petition  was  presented  to  the  House  the  14th  of  December  Rutherford 
1761,  nbidj.    The  conceits,  and  clamorous  wrangling  and  jarring  of  claim  in  1761 
the  male  and  female  Rutherford  claimants  may  be  said  to  litter  ouJ^'n^jmibir*'^'' 
Peerage  proceedings,  (see  Robertson's  relative  woik,  passim  ;  J  and 
while  the  ca.<e  of  the  first  still  remained  in  the  objectionable  statu  quo 
in  the  proof  of  descent,  that  of  the  latter  was  utterly  futile  and  pre- 
posterous. 

*  The  William  Alexander  above  referred  to.    He  afterwards  figured  Stirling  claim 
as  the  noted  American  General,  and  friend  of  La  Fayette  and  Wash-  ^°  '^^'* 
ington.     His  death  in  1783  was  <<  very  much  regretted "  by  the  last. 
(See  Letter  of  Washington  among  the  La  Fayette  lilSS.  lately  pub- 


648  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

with  respect  to  the  others,  including  the  Rutherford  heir- 
female,  they,  by  taking  no  step  at  all,  virtually  avowed  the 
futility  of  their  pretensions. 

By  the  Articles  of  Union,  as  the  Scottish  Peers  are  entit- 
Principie  upon  led  to  the  privileges  of  the  British,  with  the  exception  of  a 
;;J^,|;^|^*'d^°,^^  sitting  in  the  House  of  Lords,  (unless  they  be  also 

abote.  British  Peers,  as  has  been  latterly  found,)  and  derogation,  in 

a  certain  degree,  from  their  strict  chronological  precedence, 
according  to  their  respective  creations, — while  besides,  they 
are  all  individually  capable,  by  election,  of  becoming  mem- 
bers of  the  House  of  Lords, — that  House,  and  the  order 
generally,  thus  comprising  more  or  less  the  Scottish  nobility, 
have  an  interest  in  preserving,  and  keeping  the  whole  free  and 
inviolate,  owing  to  the  common  co-eiistent  rights  and  privile- 
ges, from  the  intrusion  and  encroachment  of  strangers ;  which 
may  be  assigned  as  the  only  argument  for  their  having  acted 
incidentally,  and  questionably,  as  it  may  seem,  as  just  stated. 
For  I  need  not  observe,  that  by  the  law  and  practice  of  Eng- 
land, the  Lords  have,  otherwise,  no  cognizance  directly,  or  in 
the  ordinary  case,  of  discussing,  and  determining  Peerage 
claims,  or  settling  or  adjusting  the  Peerage  ;  and  by  that  of 
Scotland,  as  I  have  contended,  which  however  is  more  favour- 

lished,  vol.  II.  p.  70.)  I  have  seon  a  statement  of  his  case  by  Mr.  Dagg, 
his  solicitor,  who  affirms  that  the  GeneraPs  family  '*  has  been  settled 
in  America "  down  to  1766,  when  he  came  to  Britain,  and  that,  in 

their  "  opinion, the  Peerage  of  Stirling  had  devolved  to  him  aa 

the  male  descendant  of  John  Alexander,  uncle  of  the  first  £arl  of  Stir- 
ling." His  service,  whereby  he  assumed  the  dignity,  as  heir-male  of 
Henry  last  Earl  of  Stirling,  was  in  1769 ;  and  the  Earldom,  by  the 
only,  and  regulating  patent,  dated  14th  of  June  1633,  (in  the  Great 
Seal  Register,)  went  to  the  **  heirs-male  bearing  the  surname  and  arms 
of  Alexander."  But  his  pedigree  appears  not  to  have  been  properly 
borne  out,  which  probably  prevented  him  from  proceeding,  indepen- 
dently of  the  subsequent  revolution  in  America,  in  which  he  promi- 
nently figured.  His  original  descent  was  at  least  obscure ;  ''  John 
Alexander  in  Middleton  "  his  alleged  ancestor,  and  made  by  genealo- 
gists younger  son  of  Andrew  Alexander  of  Menstrie,  grandfather  of 
William  first  Earl  of  Stirling,  (see  Douglas's  Peerage,  first  Edit.  pp. 
641-3.),  I  have  found  as  a  tenant  upon  the  lands  of  Menstrie,  being  so 
alluded  to, — as  well  as  Janet  Sinclair,  his  widow,  (a  new  character,)  af- 
ter his  death, — among  other  tenants  there,  in  a  process  in  1675.  (Acts 
and  Decrees  of  Council  and  Session.) 


IN  SCOTTISH  PEERAGES,  &C.  649 

able  to  them,  they  exclusively  come  strictly  to  do  so,  as  an  Ap- 
pellate jurisdiction  from  the  Court  of  Session,  here  acting,  as 
usual,  in  the  first  instance,  as  Ordinaries.  It  is  owing  to  the 
previous  reasons  that  they  still  more  relevantly  decide  on  the 
occasion  of  disputed  Elections  of  any  of  the  sixteen  Peers,  up-  ^1,^  ^^^  contest- 
on  a  protest  and  petition  by  parties,  in  order  to  fix  the  due  com-  «<*  ScottUh 

,  i.    1     •       1         »  1       mi       I.  1  »  Peerage  Elec- 

ponent  members  of  their  chamber.  ^  The  form  here,  as  well  tiont,  and  the 
known,  is  for  the  House  to  refer  the  petition  to  a  Committee  Jje™'then'^nter- 
of  Privileges,  who  proceed,  and  report  as  in  a  regular  Peerage  pose. 
claim,  while  the  House  take  it  upon  themselves  ultimately  to 
decide.  In  this  way  Peerage  claims  have  been  more  ex- 
peditiously and  economically  dispatched  for  parties.  But 
even,  as  formerly  observed,  when  the  House  of  Lords  discuss 
Peerage  claims  by  a  specific  reference  from  the  Crown,  they 
are  held  merely  to  advise,  and  not  to  decide, — a  right  that  still 
remains  with  the  authority  from  whom  they  so  far  derive  their 
existence,  that  accordingly  constitutes  them  a  legal  or  efficient 
body.  The  Crown  is  not  bound  by  what  they  resolve,  and  can 
order  a  re^consideration  of  the  Peerage  discussion,  either  by 
themselves,  or  by  others.  And,  in  fact,  it  so  happened,  that 
all  the  individuals  mentioned,  against  whom  the  House  of 
Peers  had  issued  their  anathemas  in  1761  and  1762,  and 
who  had  any  feasible  pretensions,  did  not,  de  planOf  proceed 
to  show,  or  instruct  their  rights,  as  thereby  ordered  by  the 
Lords,  but  had  recourse,  for  the  purpose,  to  the  special  autho- 
rity of  a  reference  from  the  crown,  upon  petition. 

On  the  29th  of  January  1762,  there  was  a  reference  by  the  Claim  to  the 
crown  to  the  Lords,  upon  a  petition,  of  the  claim  of  George  ^^^jjj^^^gg^*** 
James  Duke  of  Hamilton,  as  heir-male,  to  the  Earldom  of 
Angus.     His  Grace  further  set  forth,  that  the  dignity  had 


'  There  is  nothing,  however,  upon  this,  and  the  previous  matter,  in 
the  Articles  of  Union,  &c.  When  Lord  Lauderdale  objected  to  the 
right  of  Greorge  Earl  of  Enrol  to  his  dignity  in  1796,  after  the  preceding 
Election,  it  was  for  the  purpose  of  being  returned  himself,  he  having 
the  next  greatest  number  of  votes.  This,  he  contended,  in  the  event 
of  success,  especially  from  having  protested  at  the  time,  followed  ipso 
facto.  But,  on  the  other  hand,  I  am  informed  by  cotemporary  good 
authority,  still  alive,  that  Lord  Rosslyn  thought  there  should  even 
then,  have  been  a  new  Election. 


650  INQUIRY  INTO  THE  LAW  ANI>  PRACTICE 

been  claimed  by  Dunbar  Earl  of  Selkirk,  (owing  to  a  conceiv- 
ed settlement  and  grant  of  the  estates  and  honours  before  the 
Union,)  and  by  Archibald  Stewart,  Esquire,^ — subsequently 
Douglas,  and  created  Lord  Douglas  in  1790,  whose  petition 
likewise  for  the  dignity  was  thereafter  disposed  of  in  the  same 
way  on  the  22d  of  March,  in  the  above  year.  ^ 
To  the  EarU       There  were  references  besides  by  the  Crown  to  the  Lords, 
tl^nLj'^nd  the  15th  of  March  1769,  and  the  9th  of  February  1777, 
Newburgh,  in    of  the  petitions  of  Alexander  Lennox,  in  the  sixth  regiment 

1769     1777  '  «-» 

and  1*784.   *     of  militia  for  the  county  of  Surrey,  and  Munro  Ross  of  Pit- 
calny,   respectively,   for  the   original  dignities  of  Earl    of 
Lennox,  and  Ross  f  and  latterly,  on  the  1 4th  of  June  1784,  of 
the  petition  of  James  Bartholomew  Radcliffe,  as  heir-female, 
for  the  Earldom  of  Newburgh,  &c/   But,  as  happened  besides 
in  respect  to  certain  others  that  have  been  mentioned,  none 
of  the  parties  insisted  farther. 
Claim  to  the        John   Borthwick,   Esquire  of   Crookston  had  previously 
B*rth^-  k'      claimed  the  dignity  of  Lord  Borthwick  in  1773,  immediately 
1774.  on  the  death  of  Henry  Lord  Borthwick,  who  has  been  point- 

edly mentioned.  His  petition  to  the  crown  was  referred  to 
the  Lords  the  24th  of  February,  1774.^  But  after  proceed- 
ings were  had  upon  the  claim,  the  14th — 16th  of  May,  and 
16th  of  June  thereafter,  and  in  1776,  he  was,  on  November 
25th  in  the  last  year,  discharged  from  assuming  the  title  **  un* 
til  his  claim  shall  have  been  allowed  in  due  course  of  law,"^ — 
subsequent  to  which  he  did  not  push  it.  The  ulterior  pro- 
ceedings in  the  case  of  this  Peerage  have  been  already  given.^ 
AboTo  Lenno\  The  claim  of  Alexander  Lennox  in  1769,  to  the  ancient 
b**Leanorof  ^^^s''^*^  Earldom  of  Lennox,  that  has  been  referred  to, — upon 
Woodhead.  an  alleged  service  in  1765 — in  virtue  of  a  pretended  male 
descent  from  Alexander  Lennox,  younger  brother  of  Duncan 
Earl  of  Lennox,  executed  in  1425, — had  been  opposed  by 
William  Lennox  of  Woodhead,  another  competitor,  as  pre- 
ferable heir-male,  at  a  Peerage  election  in  1768 — when  the 
Clerks  very  properly  would  receive  neither  of  their  votes  in 
hoc  statu,  the  Peerage  not  having  been  upon  the  Rolls  of 


*  Lords'  Journals.  •  Ibid.  ■  Ibid.  *  Ibid. 

*  Ihid.  ■  Ibid.  ^  See  p.  684,  et  seq. 


IN  SCOTTISH  PEERAGES,  &C.  65 1 

Parliament  for  centuries.^     Alexander's  pretension  was  fu- 
tile and  preposterous,  as  the  dignity  went  to  heirs-general, — of 
whom  innumerable  then  existed  before  him,  (and  st'dl  do) 
even  admitting  his  pedigree,  and  had  repeatedly  gone  to  the 
heir-female,  in  exclusion  of  the  heir-male.    It  hence,  even  by 
the  circumstance  and  specialty  that  influenced  Lord  Mans- 
field in  the  Sutherland  claim  in  1771, — independently  of  the 
regulating  substitution  in  the  charter  of  the  ^'  Comitatus  "  of 
Lennox,  dated  8th  of  November  1392,  *<  hcsredibw  quibus- 
cunque^**  ^  of  the  above  Earl  Duncan, — would  have  been  de- 
cided to  have  descended  in  the  same  way.     But,  moreover, 
the  pedigree  of  the  claimant  was  utterly  unsupported,  and 
incapable  of  proof ;  although  he  intimated  in  his  petition,  in 
1769,  that  he  had,  in  1765,  been  ^<  served  nearest  heir  male  " 
of  Earl  Duncan,  (which  happens  to  be  unfounded,^)  and  had, 
**  the  26th  of  April  1768,  made  legal  claim  accordingly,  before 
the  Peers  of  the  Realm  of  Scotland  at  Holyroodhouse."     It 
is  also  fakely,  and  unblushingly  set  forth  there,  that  the  re- 
gulating charter,  cited  by  Robert  III. — erroneously  again  re- 
presented as  by  Robert  II. — was  simply  to  Earl  Duncan's 
*' heirs  male  whatsoever;"^  whereas  it  was  first  to  heirs-male 
of  his  body  oit/y, — of  whom  he  had  none — by  lawful  descent, 
whom  failing,  to  Murdac  Duke  of  Albany,  and  Isabella  his 
daughter,  the  heirs  between  them,  who  failed  at  her  death,  with 
an  ultimate  substitution  to  the  Earl's  heirs  *^  whatsoever**^ 

•  See  Robertson's  Peerage  Proceedings,  pp.  336-6.  The  family  of 
Woodhead  never  petitioned  the  crown  for  the  dignity. 

•  Great  Seal  Register. 

•  This  will  be  evident  in  the  sequel.  *  Lords'  Journals. 

•  In  the  "  Case  of  Margaret  Lennox  of  Woodhead,  (the  heir-general 
of  that  family,  who  have  now  failed  in  the  male  line,)  in  relation  to 
the  title,  honours,  and  dignity  of  the  ancient  Earls  of  Lennox,"  print- 
ed and  circulated  in  1813,  there  is  the  following  note  at  p.  8,  which 
throws  farther  light  upon  the  same  Alexander  Lennox  and  his  pro- 
ceedings. *'  In  1768  and  1769  a  claim  was  made,  and  a  petition  pre- 
sented to  the  King,  for  the  title  of  Lennox,  by  an  Alexander  Lennox, 
who  alleged  he  was  lineally  descended  from  Alexander,  the  brother  of 
Duncan,  fthe  Earl  noticed).  In  1771  he  attempted  to  get  himself 
served  heir-male  of  Earl  Duncan  ;  the  evidence  he  produced  consisted 
of  recent  notarial  copies  by  an  English  notary,  of  contracts  of  marriage 
from  1389,  and  of  certificates  of  birth  from  1345  downwards  ;  but  the 


claim. 


652  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

By  the  way,  as  constantly  obtains,  among  a  multiplicity  of  other 
instances,  the  charter  of  the  Lennox  '^  Comitatus,*'  in  1392, 
again  signally  refutes  Lord  Mansfield's  finding  in  the  Suther- 
land case  in  1771,  that  a  charter  of  a  Comitatus  then,  only 
carried  lands ;   for,   in  virtue  of  the  samcy  the  honours  of 
Lennox,  as  well  as  the  estates,  devolved,  after  her  father's 
death,  to  Isabella ;  and  this  identical  grant  was  still  admitted, 
and  founded  upon  by  theyema/ex^ompetitors  for  the  dignity, 
•  ProTed  by    as  its  regulating  conveyance,  even  in  the  15th  century.* 
Montrose  ^and       ^^^^  claim  of  William  Lennox  of  Woodhead,  who  opposed 
Haidane  charter  in  1768,  has  been  alluded  to.     Although  (/e^c^o  a  male  des- 
Lennox  of       ccndant  of  the  preceding  Duncan  Earl  of  Lennox,  and  certain- 
Woodhead       ly  capable  of  instructing  the  fact,  he  yet  was  fully  barred  by 
the  spurious  status  of  Donald  Lennox,  hb  direct  male  ances- 
tor, the  natural,  and  thereafter  legitimated  son  of  the  Earl. 
Donald  is  specially  styled  the  Earl's  *'  natural  son,"  with 
Malcolm,  and  Thomas  Lennoxes,  his  other  offspring,  equally 
spurious,  in  an  original  confirmation  by  him,  dated  12th  of 
August  1423, 1  recently  found  in  the  Brisbane  charter-chest.^ 

claimant's  ancestor  (Mr.  Lennox  of  Woodhead)  having  objected,  the 
proceedings  were  carried  before  the  Court  of  Session,  and  Alexander's 
measures  prevented."  By  all  who  are  aware  of  the  peculiar  state,  and 
destruction  of  our  old  writings  and  records,  comprising  those  here  men- 
tioned, I  conceive  the  latter  will  be  at  once  pronounced  to  be  fabricat- 
ed, and  supposititious,  (and  of  equal  credit  with  the  late  Stirling  con- 
trivances,) as  struck  me  long  ago  on  the  first  examination. 

*  None  of  the  alliances  of  Earl  Duncan  having  hitherto  been  dis- 
covered, though  long  sought  after  for  obvious  material  purposes,  in 
respect  to  his  lawful  and  preferable  representation,  the  following  notice 
I  have  lately  found,  at  least  of  one  of  his  wives, — ^as  is  to  be  concluded, 
possibly  the  only  one, — ^may  bo  here  given.  It  is  derived  from  an 
Exchequer  Roll  in  1434,  where  there  is  first  an  item  of  payment  "  do- 
mine  Isabelle  albauie  ducisse  juniori "  of  "  xxi  i*-  vi  ■•  viii  *• ,"  and  then 
another  of  "  vii  u-  vi  ■•  viii  ^  domine  Elene  Comitisse  de  levinax,"  both 
being  "  per  assignationem  regis "  (James  I.)  who  had  achieved  the 
ruin  and  downfall  of  the  Houses  of  Albany  and  Lennox.  The  mother 
of  Earl  Duncan  "  octogenarius"  in  1425,  when  executed,  (see  Fordun^ 
vol.  II.  p.  483,)  was  Margaret  de  Levenax,  Countess  of  Lennox  in  her 
own  right,  (from  whom  he  inherited  the  Earldom,)  as  is  proved  by 
the  Chartulary  of  Lennox,  and  other  authorities ;  so  M-e  may  fairly 
presume  that  tlic  same  Countess  IJen  was  his  widowed  spouse.  The 
probability,  uinlcr  the  circumstances,  likewise  is,  that  she  may  have 


IN  SCOTTISH  PEERAGES,  &C.  653 

The  claim  to  the  Earldom  of  Ross,  also  previously  noticed,  Preceding  Ros« 
by  Munro  Ross  of  Pitcalny,  in  1777,— heir-male  of  the  family  *'*"'"• 
of  Ross  of  Balnagown,  sprung  from  Hugh  Ross,  younger 
son  of  Hugh  Earl  of  Ross,  (slain  at  Halidon  in  1333,)  of  the 
original  Ross  stock, — stood,  in  regard  to  pedigree,  in  a  very 
different  situation.  But  then,  again,  as  ever,  in  refutation  of 
Lord  Mansfield,  this  other  original  *^  ComitatuSy*  like  all  the 
rest,  was  clearly  descendible  to  heirs^ma/^,  and  had  repeatedly 
gone  to  them,  in  exclusion  of  the  heirs-male.  Nay,  it  further 
was  forfeited  to  the  Crown  in  1475,  and  1476,  in  the  person 
of  the  last  John  Earl  of  Ross,  Lord  of  the  Isles  ;^  so  that,  up- 
on two  grounds,  the  claimant  in  1777, — both  by  reason  of  for- 
feiture, and  not  being  the  preferable  heir, — came  to  be  ex- 
cluded,— ^however  remarkable,  and  distinguished  his  descent.' 

been  the  mother  of  the  above  Isabel  Duchess  of  Albany,  eldest  daughter 
of  Earl  Duncan,  and  the  widow  of  the  unfortunate  Murdac  Duke  of 
Albany,  Regent  of  Scotland,  not  rendered  the  less  probable  from  their 
thus  figuring  together,  and  experiencing  the  charity  of  the  crown. 
If  80,  Countess  Elen  cannot  be  presumed  the  mother  of  Donald  Len- 
nox, ancestor  of  Woodhead,  the  only  way,  in  the  emergency, — ^backed 
by  her  surrivance, — by  which  he  could  have  been  truly  lawful.    In  a  This  authority 
charter,  dated  26th  of  August  1423,  (Great  Seal  Register,)  Duchess  Isabel "  "«»•  *"<!  "o^ 
is  expressly  styled  "  hjeredeu  Comitatus  de  Leventix"  when  confirm- ^^^  the*  Wood- 
ing a  Lennox  grant  by  her  eanHing  father, — the  *'  Oomitatua*'  then,  as  head  case   in 
has  been  shewn,  by  the  regulating  charter  in  1392,  being  settled  upon  1^13. 
his  heiTS^/emale  only^  in  failure  of  heirs-male  of  the  body,  which  corro- 
borates my  induction  ;  for  if  Donald,  the  son  of  the  Earl  de  facto^ 
had  been  of  the  same  mother,  he  would  have  been  not  merely  full 
brother  of  the  Duchess,  but  excluded  her  here,  by  clear  legitimacy,  in  tho 
apparency  in  question,  which,  in  refutation  of  any  such  notion,  on  the 
contrary,  was  thus  duly  vested  in  her.    Neither  is  it  less  remarkable, 
that  the  application  of  the  epithet  **  hteredem "  to  the  Duchess,  was 

indnbitably  paeteriar  to  that  given  to  Donald,*  and  supposed  to  instruct   ' .  ^^®  P-  •? '  ^' 
,.,...  T»   A  Ai--  •        '-x-vi        •  r       •!  and  note  2,  i&itf. 

his  legitimacy.  But  this  per  »e  irresistible  piece  of  evidence  neces- 
sarily of  his  illegitimacy,  is  only  a  portion  of  what  can  be  legally  ui^ed 
to  the  same  effect,  including  the  actual  devolution  of  the  Earldom  to 
the  Duchess,  and  the  descendants  of  her  two  sisters,  qua  the  **  nearest 
iatpful**  Lennox  co-parceners,  and  thus  served  to  Earl  Duncan,  her  fa- 
ther, &c.  See.  (as  I  shewed  in  another  treatise), — ^which  so  clearly  re- 
fntes  the  Woodhead  claim.    "  Levenax  "  and  "  Lennox  "  are  identical. 

'  See  Lord  Hailes'  Sutherland  case,  Chap.  V.  Sect.  7,  pp.  26-7-8,  et 
9eq,  besides  other  known  authorities. 

'  It  could^  I  believe,  be  instructed  by  documents,  which  probably  still 
exist. 


664  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Indeed,  the  families  of  Ross  of  Pitcalny,  and  Sutherland  of 
Forse,  respectively  heirs-male  of  the  original  Earls  of  Ross 
and  Sutherland,  may  be  deemed  of  the  highest  and  most  un- 
exceptionable lineage  in  the  north. 
Case  oftheBa-  Upon  the  6th  of  May  1590,  a  charter  past  the  Great  Seal, 
'""nsi  f '*^°*®  specially  erecting  various  lands  and  regalities  that  formerly 
constituted  the  patrimony  of  the  Bishopric  of  Moray,  into  the 
free  Barony  of  Spyne,^  moreover^  at  the  same  time  conferring, 
and  granting  **  Titulum^  Honorem^  ordinem^  et  statum  liberi 
Baronis "  to  Alexander  Lindsay,  the  King's  Vice-Chamber- 
lain,' *'  haredibus  suiSy  et  assignatis^ — qui  nunc,  et  imperpe- 
tuum  bcwones  de  spyne  nuncupabuntur."  ^  This  was  in  direct 
Its  constitution  implement  of  a  solemn  promise  of  James  VI.  when  in  Den- 
in  i59().  niark,  in  1589,  or  considerably  previous  to  May  1590,  as  ex- 
pressed in  an  original  letter  still  extant,^  wherein  he  engages  to 
give  the  said  Alexander  the  said  '*  temporalitie  of  Murraye  in 
a  temporall  lordschipp,  with  all  honouria  thareto  apparteining." 
Nay,  it  appears  from  another,  equally  authentic,'  addressed  to 
his  favourite  Jean  Lyon,  Countess  Dowager  of  Angus,  whom 
the  former,  an  especial  <<  minion,"  afterwards  married  by  the 
procurement  and  earnest  management  of  the  King,  that  he  had 
designed  to  raise  him  even  to  a  higher  grade  in  the  Peerage,  in- 
asmuch as  he  there  says,  ^^  I  ame  resolute  to  advance  this  mann 
ofmyne  (the  latter)^  whomfor  I  have  nou  salang  delt  vith  you, 
to  the  ranke  that  ye  vas  Isistjoynedwith" — namely,  that  of  an 
Earl,  her  deceased  husband  having  been  Archibald  Earl  of 
Angus.     Thus,  if  any  doubt  were  entertained  as  to  the  rela- 

.  *  Naturally  enough  from  Spynie  Castle,  the  chief  residence  of  the 
Bishops  of  Moray.    The  lands  were  limited  like  the  honour. 

'  He  was  a  younger  brother  of  David  Earl  of  Crawford. 

'  Great  Seal  Register,  and  Acts  of  Pari,  last  Edit.  vol.  III.  pp.  660-1, 
et  »eq.  where  the  grant  is  verbatim  given  in  a  ratification  of  the  same 
in  1692,  to  be  shortly  adverted  to. 

,*  Without  a  date,  among  the  Balfour  Collections,  in  the  Advocates' 
Library.  To  shew  their  intimacy,  the  King  thus  curiously  dates  his 
epistle :  **  From  the  Castell  of  Cronebuig,  quhare  ve  are  drinking  and 
dryving  our  in  the  aulde  maner." 

*  IM,  Also  without  a  date,  but  obviously  before  the  Spynie  char- 
ter. It  is  of  course  also  proved  by  the  same  letter,  that  the  parties  in 
question  were  then  unmarried.    Both  letters  are  autograph. 


IN  SCOTTISH  PEERAGES,  &C.  655 

tive  or  precise  import  of  the  charter  1590,  it  would  be  fully 
explained  and  removed  by  these  antecedent  Royal  demonstra- 
tions of  intention,  and  warrants.  That  grant  was  subsequent 
to  the  noted  act  15879  c.  120,^  by  which  the  ordinary  or  lesser 
barons  were  excluded  from  a  hereditary  seat  in  Parliament, 
their  right  to  sit  and  vote  there,  in  time  coming,  being  merely 
elective,  as  it  has  ever  since  continued ;  while  the  words  ^^titley 
honour^  and  rank  of  a  free  Baron,"  as  above, — independent  of 
the  Baronial  fief, — now  necessarily  especially  select— were 
technically  applied  ex  tunc^  in  reference  to,  and  descriptive 
of,  a  great  Baron  or  Peer,  or  hereditary  Lord  of  Parliament, 
as  proved  in  various  instances.^  Such  being  the  case,  the  no- 
tion of  Lord  Mansfield  in  the  Spynie  claim,  that  ex  terminis, 
and  from  its  import,  a  hereditary  Baronial  Peerage  was  not 
carried  by  the  charter  1590,  but  merely  an  ordinary  fief,  the 
converse  of  which  is  not  only  already  evident,  but  will  be 
further  in  the  sequel, — is  untenable.  Nor  will  it  excite  less  Rash  and  onfor. 
surprise,  when  it  is  added,  that  the  learned  counsel  for  the  |"°*^f  .®"°r,  ^^ 

*    ,  the  claimant  b 

Spyme  claimant  were  so  rash  and  ill  advised  dunng  the  dis-  counsel  here. 
cussion,  as  actually  to  *'  give  it  up^**  as  a  grant  of  peerage,  or 
a/ att  influencing  the  dignity,  and  to  adroit,  in  like  manner,  that 
it  merely  carried  lands.^    This  shews,  with  various  preceding 
illustrations,  not  only  how  badly  the  business  was  conducted. 


»  Arts  of  Pari,  last  Edit.  vol.  III.  p.  609. 

'  Thus  the  charter  of  constitution  of  the  Peerage  of  Cardross,  June 
10, 1610,  which  has  existed  ever  since,  confers  the  **  honour,  title  and 
dignity  of  a  free  Lord  and  Baron,"  (Great  Seal  Register)  ;  and  the 
words  ''title,  honour,  rank,  and  state  of  a  free  Baron,"  as  in  the 
Spynie  grant,  are  used,  in  the  same  way,  in  the  charter  of  constitution 
of  the  Barony  of  Abercom,  dated  April  5, 1603,  (ibid,)  upon  which, 
by  the  authority  of  Sir  David  Lindsay,  the  Lord  Lyon  at  the  time,  un- 
der his  autograph  attestation  in  the  Advocates'  Library,  creation  or  in- 
vestiture  followed  the  25th  of  April  1604. 

■  Proved  by  a  Memorial  for  the  Counsel  of  the  Claimant,  after  the 
Spjnie  decision  in  1785,  in  his  repositories ;  for  which,  and  other  in- 
formation, to  be  referred  to  in  the  sequel,  as  in  the  Spynie  charter- 
chest,  I  am  indebted  to  the  kindness  of  John  M.  Lindsay,  Esq.  W.  S., 
brother  of  William  Fullarton  Lindsay  Carnegie,  Esq.  of  Spynie  and 
Boysaek,  in  whom  the  claim  of  the  former  to  the  Spynie  Barony  now 
vests,  in  the  same  character  of  heir-generaL 


656  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

but  how  hastily  and  inadequately  Scottish  Peerage  claims 
have  been  discussed.^ 
SoUequent  The  Spynie  Act  of  creation  or  investiture,  an  attendant 

creation  or  in-  form,  as  in  the  case  of  the  Peerage  of  Wigton,  and  others, — 
I590""  *°  including  the  usual  solemnities,  of  which  "  belting y*  or  the 
cinctura  gladiiy  was  a  constant  ingredient,  obtained  on  the  en- 
suing November  after  the  charter,  which  was  its  warrant 
Sir  James  Balfour,  Lord  Lyon  to  Charles  L,  explicitly  in- 
forms us,  that  the  "  same  zeire,  (1590)  4  Novembrisy  Alexan- 
der Lindesy,  brother  german  to  David  Earll  of  Crauford,  ves 
knighted,  and  immediatelie  thereafter  made  Lord  of  oure 
Soveraigne  Lords  Parliament,  and  nanCd  Lord  Spynie,**'  thus 
in  exact  conformity  to  the  charter.  And  David  Moysie,  a 
legal  cotemporary,  corroboratively  states  in  his  noted  Me- 
moirs, that  "upon  the ^trd  (fourth)  of  November  (1590) 
Mr  Alexander  Lyndsay,  brother  to  the  erle  of  Crafurde,  wes 
maid  lord  of  Spynie,  and  with  him.  Sir  George  Home,  (after- 
wards Earl  of  Dunbar,)  and  Sir  James  Sandelandis  hnichtit"  ^ 
The  latter  intimation,  (together  with  the  nomination,  &c.) 
clearly  fixes  that  this  was  the  attendant  investiture  or  inau* 
guration,  including  '*  belting ;"  the  creation  of  Knights, — as 
will  be  fully  instructed  hereafter, — constituting  another  indis- 
pensable portion  of  the  solemnity.  Although  a  circumstance 
Exception  here  that  has  elsewhere  misled  English  authorities,  and  Scottish 
obTiate  .  \egsl  sciolists,  inducing  erroneous  conclusions,  in  conformity 

with  modern  prejudicies  and  prepossessions, — the  bane,  and 
antidote  to  all  antiquarian  accuracy, — it  is  yet  of  no  mo|pent, 
or  any  way  impeaching  or  invalidating  the  ascribed  effect  of 
the  charter  in  1590,  that  the  party  in  the  subsequent  act  of 
creation,  as  seen,  is  immediately  before  its  obtaining  but 

'  JiOrd  Mansfield,  as  will  afterwards  be  seen,  like  a  special  pleader, 
instead  of  a  sifting,  justly  discriminating  Judge,  turned  the  previous 
unwary  step,  and  abandonment  of  the  charter,  with  interest  against 
the  counsel. 

■  Autograph  excerpts  by  Sir  James  from  the  productions  of  the  no- 
bility to  instruct  their  precedence,  under  legal  authority,  previous  to 
the  decree  of  ranking  in  1606.  (Ad.  Lib.)  The  Record  from  whence 
they  were  taken  no  longer  exists. 

»  Edit.  1830,  printed  by  the  Bannatyne  Club,  p.  85. 


tK  SCOTTISH  PEERAGES,  &6e.  657 

^mply  described  ^*  Mr.  Alexander  LindBay,**  qua  commoner. 
Sudi  was  the  form,  with  us,  that  applied  in  the  intervcU^  after 
an  indisputably  valid  written  grant  of  Peerage,  and  before  the 
act  of  creation.  Thus  the  Wigton  patentee,  as  has  been  in- 
structed, was  then  simply  styled  in  the  same  way  ^'  Lord  instance  or 
Fleming,^— his  previous  style,  and  had  only  the  designation  of  wigtonin  leoe. 
Earl  of  Wigton,  notwithstanding  the  preexisting  patent,  after 
his  act  of  creation.^  And  again,  in  the  act  of  creation  of 
William  Marquis  of  Douglas,  (specifically  including  ^belting") 
in  1633,  following  in  like  manner  a  valid  patent,  (as  ^^l^^gl^^J^J^"^' 
be  fuUy  seen  in  the  sequel,)  he  is  at  the  outset,  and  before  its  1039. 
completion,  merely  described  by  his  former  inferior  title  of  Earl 
of  Angus,  and  does  not  receive  his  new  and  more  elevated 
style  until  the  concluding  form  of  the  **  nomination.**  Va- 
rious other  such  illustrations  could  be  added.  It  was  in  vir- 
tue directly  of  the  latter ^  the  crowning  part  of  the  ceremony, 
that  the  title  vested ;  and  accordingly  Alexander,  first  Lord 
Spynie,  after  the  forms  and  nomination,  as  has  been  seen  in  Application  to 
his  creation,  certainly  relative  to  the  previous  charter  1590,-^ 
became  Lord  Spynie,  and  so  subsequently  invariably  figured. 
All  this  is  easily  explainable ;  the  inauguration  or  investiture 
was  analogous  to  infeofFment  in  lands,  which  perfects  in  form  Eipianation. 
the  real  right ;  and  it  has  been  fixed,  that,  at  a  territorial  pe- 
riod, heirs  to  an  honour,  upon  the  death  of  their  predecessors, 
did  not  assume  it,  until  q/ter  their  service  and  investiture  in 
the  fief.  Until  then,  as  remarked,  they  were  ostensibly  re- 
garded but  as  commoners.'  It  is  further  corroborative 
too,  that  Johnstone,  the  cotemporary  Scottish  historian,  at 
the  same  time  that  he  mentions  the  creation  as  above  of  the 
**  Btaro  Spin^BUSf* — with  the  attendant  creation  of  knights,  in 
effect  intimates  that  he  had  obtained  the  patrimony  of  the 
Bishoprick  of  Moray,  under  the  description  of  Spynie,^  thus 

'  See  pp.  628-9. 

'  See  pp.  698-9,  including  n&iey  and  p.  645,  note. 

'  **  Q,nopr€Bdio,**  he  immediately  adds,  after  noticing  the  Sftnie  crea- 
tion in  this  manner,  the  former  term,  from  the  context,  necessarily  re- 
ferring to  the  fief  with  the  dignity,  **  potitus  ftierat  ante  Ponttfes  Mo- 
rdrtensis,  (the  Bishop  ofMoray^')  et  nuUua  ante  eum  (Lindsay,)  laieus 
fewU  Eeeieriaetici^  (namely  of  Moray  J,  dignitatem  habuit."  fRer.  Brit. 
Hut.  Edit.  1666,  Lib.  v.  p.  160.) 

2  T 


658  INQUIRT  IKTO  THE  LAW  AND  PBACnCE 

undeniably  by  the  charter  1690,  and  sfaowmg  that  it  and  the 
Peerage  were  relative,  and  formed  in  reality  one  grant. 
There  clearly  having  been  investiture,  or  inauguration,  in 
the  Peerage,  which  was  always  warranted  by,  and  conjoined 
with  a  written  grant, — while  no  other  previously  than  the  ex- 
act corresponding  one  in  1590  can  be  either  figured,  or  dis- 
covered,— the  same  necessarily  must  have  been  that,  substan- 
tively, constituting  the  dignity  and  limitation. 
Authorities  of      '^^  above  authorities, — Sir  James   Balfour,   the   Lord 
Balfour,  Moy  Lyon,  Moysic,  and  Johnstone, — which  were  not  adduced 
stone  reietaat  in  ^B  Spynie  claim, — ^no  more  than  the  preceding  argument, 
IloerUieilrf^ii — ^®  Housc  of  Lords,  and  EnglLsh  lawyers,  cannot  consis- 
admisdon  of  ateutly  coutemu  or  reject,— peculiarly  strict  although  the  Ut- 
Giencaira  ^  ^^  pretend, — however  gratmtously,  and  erroneously,  as  has 
in  1797.  been  repeatedly  proved, — the  British  practice  to  be  in  Scot- 

tish Peerage  claims  ;^ — ^when  in  that  of  Glencaim  in  1797,  (as 
will  be  seen  in  the  sequel,)  Chancellor  Rosslyn  admitted 
without  scruple, — nay,  triumphantly  founded  upon  the  single 
incidental  intimation  by  a  subordinate  English  herald,' — a 
stranger  to  Scottish  law  and  usages, — and  so  far  back  as 
1503,  (when  he  happened  to  be  in  Scotland,)  of  the  creation  of 
the  Earldom  of  Olencaim  in  that  year,  as  decisive  evidence  of 
the  fact.  It  was  merely  transmitted  too  in  a  modem  printed 
book,' — ^from  which  secondary  notice  he  drew  the  supposed 
vital  conclusion,  upon  which  he  alone,  and  the  Lords  with  him, 
grounded  their  resolution, — and  in  fact  the  decision. 

Alexander  Lindsay,  in  thb  manner  first  Lord  Spynie, — 
there  being  no  record  of  an  intermediate  meeting, — accordingly 
took  his  seat  in  Parliament  upon  the  6th  of  August  1^91, 
and  is  there  ranked,  as  lowest  of  our  hereditary  Lords  of  Par- 
liament, under  the  specific  title  of  *<  Spynie.'*^  He  moreover, 

>  I  have  an  opinion  by  a  modem  English  counsel,  not  the  least  cele- 
brated or  in  repute,  in  which  he'peremptorily  lays  it  down,  that  tliere 
must  be  ''evidence  of  the  ttricUH  kind  in  Scots  Peerage  claims,"  an 
inadverteut  conclusion,  as  may  be  sufficiently  tested,  and  appreciated  by 
much  indeed  that  has  preceded. 

'  John  Ytunge,  Somerset  Herald. 

*  Leland's  Collectanea,  edit.  1770,  in  vol.  IV.  p.  300. 

*  Acts  (»f  Pari,  ut  sup.  vol.  III.  p.  625. 


IN  SCOTTISH  PEEBAQES,  &C.  669 

in  that  year,  in  1592,  and  constantly  afterwards,  figured  in  the  sitting  and  pot- 
same  capacity  in  the  Rolls  of  Parliament,  and  in  Privy  Coun-^'^^^'l;^^^/ 
cil,^  as  well  as  upon  every  occasion.    The  fief  conveyed  in  ingiy,  e?er  af- 
1590,  however,  having  been  church  property,  to  remove  the^^'^ 
solitary  though  material  objection  that  necessarily  attached, 
grounded  upon  the  Act  29th  of  July  1587,— ^whereby  all 
church  lands  had  been  annexed  to  the  Crown,*  and  effectual-  Confirmation  of 
ly  to  dissolve,  and  dissever  such  connection,  in  this  instance,  and^disannf  x^ 
there  subsequently  past  a  full  and  express  Act  of  Parliament,  !*<*"  ^^J^^  ^®^ 

•      « r^a.    *t.i  T  1  1  f'l'o"'  ***®  crown 

m  1592,  for  the  special  purpose.  It  proceeds  upon  .the  oner-  by  Act  1592. 
ous  and  weighty  consideration  of  the  great  public  services  of 
Alexander  Lord  Spynie,  including  his  actual  payment  of  8000 
crowns  of  the  Sun  to  government ;  and  while  it  fully  confirtM 
the  charter  in  1590,  there  not  generally,  but  verbatim  en- 
grossed,  disannexes  the  lands  and  subjects  it  transmitted 
firom  the  Crown,  **  notwithstanding  '*  any  act  to  the  contrary. 
And  further  **findis"  and  *'  dedairis"  that  his  majesty  might 
lawfully  **  haif**  bestowed,  and  may  ex  tunc  grant  them  to 
'*  the  said  Alexander  Lord  of  Spyne,  his  airis  and  assignais, 
and  to  sic  ugeris  wyt  him,  as  he  sail  nominat  and  designne." 
But  this  is  not  all,  for  the  Act  '*  of  new — grantis  and  dis- 
ponis^'*  the  same  to  him,  **  and  dame  Jane  lyoun,  countes  of 
Angus,  his  epouee^  (the  monarch'sySn;otfrtYe^  the  langest  levar  Definite  impie- 
of  yame,  in  conjunct  fie,  and  to  the  airis  lauchfuUie  gottin,  u'muluor^'n^^ 
or  to  be  gottin  betwix  thame,  quhilkis  failseing,  to  the  narrest  1^^'  ^>^  ■^■^^ 
and  lauchfiill  airis  maill  of  ye  saide  Alexander  lorde  of  Spyne  ^""^  ^  ^  ^"*^'' 
quhatsumevir,  and  thair  assignais.'*  They,  together  with  a 
right  of  regality,  are  to  be  erected  into  the  **  temporall  lords- 
chip  **  of  **  Spyne," — while  the  King,  by  the  authority  of  Par- 
liament in  the  same  way,  again  **  gevis  and  grantis"  to  the  no« 
bleman  in  question,  "  and  to  hi&fairsaidis^  the  hmour^  eetait^ 
dignUiej  koA  pre-eminence  of  anejrie  lorde  oi  parliament^  to 
be  intitulat  Lordis  of  Spyne,  in  all  tyme  cuming,** — in  reference 
to  all  which,  a  new  charter  and  infeftment  is  ordained  to  pass 
**  hereupon.** ' 

>  Ibid.  pp.  690,  662,  603-4,  660-66,  &c. 

'  See  p.  238.    The  objection  from  the  annexation  is  set  forth  in  the 
Act  nexl  a4dueed. 
'  Acts  of  Pari,  lant  Edit.  vol.  III.  pp.  660,  ti9eq. 


660  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

In  regular  practical  implement  of  the  Act  therefore — so  pre- 
Second  Spynie  ctge  and  explicit — the  noble  disponee,  who  is  invariably  sidled 

Royal  charter  IO-.tj^o  jii-ji-i't-  j. 

1693  in  unison      L«ora  01  opync,    obtamcd  forthwith,  m  proper  form,  a  re- 
wiih  the  above.  g,.j^n^  or  sccond  royal  charter,  dated  April  17,  1593,— duly 
followed,  like  the  first,  by  infeofFment,  of  the  aforesaid  temporal 
Barony,  with  the  honours  and  dignity  of  Spynie,  literally  as 
ill  the  Act.^     It  Bot  only  narrates  the  full  import  of  the  Act, 
butcontains  the  identical  limitation  there,  which  cannot  be  said 
to  be  novel,  or  extraordinary, — inasmuch  as  heirs-female  still 
took,  as  before,  in  the  first  instance ;  while  the  use  of  the  term 
**  cusigfiaiis*^ — then  more  effectual  and  operative  than  latter- 
ly,-^in  the  antecedent  charter  in  1590,  were  capabh^  and  ad- 
mitted of  such  future  modification.    It  is  remarkable  too,  thai 
the  terms  *^  heredibus  et  assignatls  (as  before)  supra  recitatia'^ 
are  even  incidentally  used  in  the  charter  1593,  as  expressive 
of,  or  in  reCerence  to,  its  limitation.  The  same  conveyance,  over 
and  above,  for  the  first  time  vests  a  right  in  the  disponee,  and 
his  heirs,  to  the  patronages  and  relative  interests  of  the  chap- 
ter and  inferior  clergy  of  Moray,  to  be  afterwards  noticed. 
Further  Spynie     The  favouT  of  his  majesty  stiU  continuing,  in  the  Act  1593^ 
^*rJ*|J^°**7  recalling  and  voiding  grants  of  church  patronages  formerly  in 
1593.  the  crown,  there  is  notwithstanding,  a  reservation  to  the  same 

party  of  those  in  the  ^*  Lordsebip  and  Baronie  of  Spynie,"  in 
terms  of  his  infeftment.' 

Alexander  Lord  Spynie,  withal,  by  the  decree  of  rank- 

Rankinf?  of      ing  of  the  nobility  in  1606,  was  placed  immediately  after  the 

i^wlnfthe  L®'«*  Thirlestane,a  who  had  been  created  a  Lord  of  Parlia- 

litated  eonstim.  mout  the  day  of  the  Queen's  coronation,  in  May  1590,^ — 

'  '   thus  prior  only  by  a  few  months  to  the  Spynie  creation  in 

November  ui  that  year,  and  necessarily  in  striking  conformity 

thereto.     Neither  the  circumstance,  nor  the  latter  coincidence 

*  Great  Seal  Register.        '  Acts  of  Pari,  ut  sup.  vol.  IV.  pp.  19,  2a 
'  Certified  extract  of  the  same,  under  the  subscription  of  the  Clerk  of 

Privy  Council  at  the  time,  in  her  Majesty's  General  Register  House. 

*  See  p.  572,  note.  Two  knights  were  then  also  created,  according  to 
custom.  Sir  James  Balfour,  Lord  Lyon,  in  his  Collections  referred  to, 
in  the  Advocates'  Library,  instructs  the  Thirlestane  creation  to  have 
been  at  the  same  time,  there  having  been  besides,  as  always  obtained,, 
a  written  grant.  See  also  another  authority  for  the  Thirlestane  crea- 
tion, in  May  1690,  at  p.  157,  note. 


IN  SCOTTISH  PEERAGES,  &C.  661 

and  coiToboratiou  seem  to  have  been  known,  or  were  fofinded 
upon  in  the  Spynie  daim.   It  will  be  obsenred,  that  the  oldpre-  Precedence  re- 
cedence  of  1590,  «lt7/ continued  in  Lord  Alexander,  according  f^J^Jer  i69o," 
to  our  practice ;  for  the  parliamentary  ratification  in  1692  ^^^  ^^  ^^ 
confirms  the  charter  1 590,  whereof  the  act  of  creation  was  an  borstm  m>  far 
adjunct*— while  it  removes  the  obstacle  grounded  upon  the  act"*  ^^^^' 
of  annexation  in  1587,  and  ordains,  together  with  the  relative 
flioc2^€/ limitation,  the  re-investiture  in  1593, — which,  as  can 
be  legaUy  instructed,  technically  sufficed  for  the  purpose. 
Even  in  the  case  of  regrants  of  honours,  upon  resignations 
in  favour  of  entirely  different  heirs,   whose  right  of  suc- 
cession was  thereby  exclusively  constituted,  it  was  still  the 
form  generally  to  cof^m  the  original  grant,  though  inno* 
vated  upon  and  abrogated  in  the  main,  *<  in  its  contenUy* 
with  the  view  to  the  old  precedence.   It  is  not  wonderful  that 
this  apparent  Iricism^  if  I  may  so  speak,  may  not  have 
been  understood  by  English  lawyers,  and  have    led,  like 
other  peculiar  Scotticisms^  to  error  and  misconception,  al- 
though rather  unpardonably  indeed  in  the  case  of  Lord 
Mansfield,  a  Scottbhman.  Notwithstanding  the  proper  and  re- 
quisite Spynie  conveyance  in  1593,  inter  aiia^  as  fixing  the  ex- 
act limitations,  virtually  however  comprised  in  the  former, 
that  in  1590,  still  so  far  stood^  and  remained  evidence  of  the 
original  constitution,  and  necessarily  precedence. 

So  things  were  in  essentials  during  the  lifetiipe  of  the 
nobleman  in  question,  all  in  fact  we  have  to  deal  with, — ex- 
ceedingly plain  and  obvious, — the  Spynie  honour  having  been 
conferred  by  the  joint  charters  and  act  mentioned,  without  the 
intervention  of  any  other  written  grant,  or  faintest  surmise  or 
indication  of  such, — ^by  which  alone  a  dignity  could  be  substan- 
tively constituted,  though  formally  perfected,  in  terms  there- 
of, by  the  investiture  or  creation.  His  right,  therefore,  to  the 
title  may  be  held  to  have  been  constituted,  not  only  duly 
and  legally, — but  in  a  manner  not  always  precedented  on 
snch  occasions.  No  objection  ever  could  arise  from  the 
prior  act  1592,  against  ratifications  of  erections  of  church 
property  into  temporal  lordships,  subsequent  to  the  act  of 

'  See,  among  others,  the  Napier  and  Lothian  regrants,  February  17, 
1677,  and  October  23, 1678,  Great  Seal  Register. 


662  INQUIRY  INTO  THB  LAW  AND  PBACTICE 

Act  ift93»  e.  IS,  annexation  1587  ;  for  the  former  has  at  the  eame  time  a  special 
^i^lnUtara  reservation,  and  exception  of  all  such,  in  virtue  of  charter  and 
and  beitiog  in  ififeftmenf  8  to  *'  persouncs  as  hes  already^  sen  the  said  last  Act 

nie^'andincon-*'^^"^®^^^^^^'  ressavit  ye  honouris,  ordouris  and  estaitis  of 
ceiYAbie  objec-  Lordis  of  parliament  be  the  solempne  forme  of  beltingy  and 

Hon   therofrom       .       .  *  .       .  .^  .       •  .  ,  , 

by  Lord  Mam-  utherts  ceremoHts  observit  m  sic  caisses^  and  hes  sensyne  en- 
fteid  againrt    ^^j^^  |^||^  giitin  iti  parliament  as  iemporatl  lordiSj  voitit  in  par- 

tution,  as  itat-  Uament^  and  articles,  ressavit  and  admitted  to  that  effect,' 


ion,  as  Mai-  iiameDi.^  anu  arucivsf  reetBavii,  auu  auiuiiieu  vu  luai.  euecv," 

^  under  which  category,  having  reference,  inter  alia,  to  the  act 

of  creation,  including  belting  &c.  the  Spynie  dignity  and 
lordship  are  obviously  comprised.  Lord  Mansfield,  in  the 
Spynie  decision  in  1785,  is  stated  to  have  founded  upon  this 
act^  as  barring  the  previous  constitution ;'  but  in  vrhat  way 
it  seems  wholly  impracticable  to  figure  ;  his  argument  must 
have  been  the  result  of  some  confused  and  obtuse  perception^ 
through  the  mist  of  caprice, — or  error  unpardonable  again  in 
a  Scottishman,  and  often  discoverable  in  his  instance.  As  be* 
fore  shown,'  there  especially  had  been  illegal  and  surreptitious 
charters  of  the  foregoing  erections  into  temporal  lordships ; 
and  what  the  Act  does,  as  a  measure  of  necessary  precaution^ 
and  for  the  public  weU, — in  tliis  peculiar  exigential  emergency^ 
is  to  deny  present  or  future  benefit  to  any  that  had  not  thus  been 
openly,  ultimately,  and  rigidly  perfected  in  form, — with  refer* 
ence,  in  particular,  ^iioodf  the  dignity,  to  the  vesting  ceremony^ 
which  onght  always  to  obtain, — ^but  had  not  in  the  case  of  the 
unduegrants,  owing  to  the  clandestine  and  unauthorized  nature 
of  the  procedure.  However  therefore  the  Act  in  question  may 
bear  upon  the  Barony  of  Culross, — ^to  be  noticed  again  in  the 
sequel, — or  slenderer  conveyances  of  the  kind,  it  can  have  none 
prejudicially  to  the  Spynie  dignity,  so  Jullff  and  articulately 
constituted  in  the  above  respects.  Nor  indeed  is  this  all|  for  its 
ralid  constitution  will  be  further  corroborated* 

In  such  identical  situation,  in  fine^  Alexander  first  Lord 
Spynie  was  notoriously  slain  by  Sir  David  Lindsay  of  Edzell, 

'  Acts  of  Pari,  ut  sup.  vol.  III.  p.  544. 

'  See  Mr.  Maidment*8  recent  Publication  in  reference  to  the  Spynie 
ease,  (to  be  afterwards  more  particularly  referred  to),  p.  10. 
*  See  pp.  237-8-9,  also  subsequently,  under  pp.  242-3. 


IN  SCOTTISH  PRERAOE8»  &C.  603 

on  the  12th  of  June  1607)  as  is  proved  by  the  <<  Testament  *' 
(confinned  the  7th  of  August  thereafter  by  the  Commissaries  Death  of  tint 
of  Edinburgh,)  of  **ane  noble  and  potent  Lord  Alexander  j-^^J^^  \p^^^ 
Lord  Spynie— gevin  up  be  dame  Jane  lyoun  Countes  of  An-  cession  of  his 
gus,  his  relict  spouse,'**  who  thus  survived  him.    By  this  lady,  ***"'  *  ™*"^'^' 
his  only  wife,  he  left  issue — Alexander  the  second  Lord,  then 
a  minor,  who  was  not  served  heir  to  his  father  until  the  3d  of 
March  1621.'    It  is  extremely  obvious  that  be,  a  new  cha- 
racter, might  have  had  different  views  from  his  father  in  regard 
to  the  succession ;  but  these,  or  whatever  he  did,  could  not 
compromise  or  shake  the  remote  and  distinct  constitution  of 
the  haHouTf  until  fully  and  unexceptionably  implemented,  or 
it  was  innovated  upon,  or  altered  in  the  peculiar  strict  and 
scrupulous  way,  justly  fixed  and  established  by  praeticet 
And  it  so  happened — ^whether  by  design,  or  accident,  that  he  BaiiyMk  charter 
obtained  upon  his  resignation,  and  that  of  certain  Strang- ^'*^''^°'^^'' 
era,  burgesses  of  Edinburgh,  a  charter  dated  26th  of  July 
1621,  to  himself,  **et  heredibus  suis  masculis  et  assignatis 
qmbuscunque,''  of  the  lands  of  Ballysak,'  and  others  in  For- 
farshire, distinct  from  Spynie,  with  the  patronage  and  attendant 
rights  of  the  Chapter  and  inferior  clergy  of  Moray,  previous- 
ly granted  by  the  Spynie  charter  in  1593,  which,  however,  are 
fdUely  stated,  in  terms  of  the  limitation  there^  to  be  simply 
conveyed  to  Alexander  first  Lord  Spynie,  Countess  Jean  his  Glaring  misre. 
wife,  and  ^'heredibus  ipsorum  nuuculis  et  assignatb ;"  whereas  f|J[^''o^charter 
the  limitation,  as  has  been  proved,  was  first  to  their  heirs- 1593. 
general.     Nevertheless  the  same  conveyance,  on  the  further 
narrative  of  the  resignation  by  the  first  Lord  Spynie,  exclu- 
sively of  the  territorial  patrimony  of  the  Bishops  of  Moray,  dis- 
tinct from  the  latter  clerical  rights  and  interests,  &e/  in  obe- 

*  Testunentsry  Register  of  the  Conunuoary  Court  of  Edinburgh. 
'  Register  of  Retours. 

'  Now  written  Boysadc 

*  It  is  to  lie  obeervedy  that  thoogfa  the  Aet  1006.  e.  2,  (see  Acts  of 
Pari,  hut  edit.  toI.  IY.  p.  281,)  restored  Epiieopaey,  and  voided  the' 
grant,  in  efibet,  of  the  Bishopric  of  Moray,  that  had  been  conferred  by 
diartera  «poD  Lord  Sp3rDie,  yet  his  right,  owing  to  a  certain  statutory 
proTision  likewise^  still  stood  in  law  to  the  patronages  and  relative 
ri^ts  alluded  to,  of  the  Chapter  and  inferior  clergy  of  Momy,  carried, 
moreoTer,  as  we  have  seen,  by  the  Spynie  charter  1683.    (See  p.  000.) 


664  INQUIRY  INTO  THB  LAW  AND  PRACTICE 

dience  to  the  desire  of  the  King,  then  bent  upon  the  restora- 
tion of  Episcopacy,^ — while  it  b,'  at  the  same  time,  admit- 
ted, that  notwithstanding,  the  dignity,  still  uncompromised, 
rested  in  the  present  Lord,  and  his  **  successors,*' ' — ^now 

h Jiy^Ter^^nr'  ®'®®^  *^®  "^''^  ^"^  ^'  Ballysak  in  Forfarshire,  with  the  re- 
existing,  and  ia  mainder  of  the  subjects  here  mentioned,  into  a  barony,  under 
wtetol^?***^  the  designation  of  Spynie ;  and  wUls  and  declares  tiiat  the 
dignity  of  Spynie  shall  be  held  by  the  noble  disponee  '*  sui- 
que  antedictif*  his  **  successors  "  (that  term  immediately  pre- 
ceding,) or  heirs-male  ostensibly,  but  in  reality  by  his  heirs- 
generaly  for  there  qualifyingly  follows,  ^*  secundum  ienarem  infe^ 
qfitmenii  dicto  quofidam  suo  patri  desuper  confecti,  ac  seeuud" 
vmdicti  quondam  sui  patris  creationem  in  temporale  dominium 
tempore  prescripto."  ^    Reference  is  thus  clearly  made  at  the 

'  The  original  letter  of  the  King  in  relation  to  this  resignation  of 
Lord  Spynie,  and  his  willingness  to  acoede  to  the  Royal  request,  ia 
funoDg  Uie  Balfour  Collection,  Adyocates'  Library,  and  datod  December 
1605. 

'  Whether  the  royal  authority,  however,  was  properly  adhibited,  in 
point  of  form,  to  the  present  grant,  will  be  afterwards  seen. 

■  **  Quod  Hcuii  (notwithstanding  the  previous  resignation  of  the 
Bishop's  patrimony)  tUuhu^  honor,  et  dignitas  dicti  dominii  de 
Spynie  ad  dictum  nostrum  pnedilectum  consanguineum  Alexandrum 
nunc  dominum  Spynie  pertinent^  ac  cum  ipso  et  sucoessoribus  suis  re- 
manentj*  This,— or  more  ciogently  perhaps,  from  what  was  intimated 
in  the  last  note, — ^the  undoubted  oontinuance  of  the  Spynie  Peerage  in 
the  first  Lord,  after  his  resignation  mentioned, — and  in  his  son,  at 
least  before  this  charter  1621,— indicates  the  separation  of  an  honour, 
OS  now  becoming  more  peculiarly  personal,  from  its  old  territorial  cha- 
racter, instead  of  the  arbitrary  apocryphal  epoch  assigned  by  Lord 
Mansfield,  so  fiur  back  as  1214.  The  Spynie  Barony  would  hence  in* 
yariably  descend,  as  in  fact  it  thereafter  did,  according  to  the  naked  li- 
mitotions  of  the  Peerage  grants,  abstracting  from  the  lands,  the 
estrangement  of  the  latter  in  such  a  case,— certainly  by  the  practice  of 
the  House  of  Lords,  not  forming  an  objection.  That  tribunal,  as  has 
been  proved  in  the  Colvill  instance  in  1723,  awarded  the  dignity, 
(though  mistaken,  and  under  an  erroneous  designation),  in  terms  of 
the  limitations,  in  the  same  way,  in  a  corresponding  charter  of  a 
secularized  church  patrimony  in  1609— when  every  acre  of  the  lands 
had  vanished.  The  constitution  of  the  Spynie  Barony,  as  premised, 
is  evidently  further  corroborated  by  the  charter  1621. 

*  Original  Spynie  charter-chest,  also  recorded  in  the  Great  Seal  Re- 
gister, 


VH  SCOTTISH  P££BAO£S»  &LC.  665 

dose  to  the  completing  conveyance  of  the  dignity  in  virtue  of  the 
charter  1593,  taken  however  with  the  first,  in  1590,  and  the  re- 
lative accessory  creation, — chiefly  so  far  as  regards  the  preced- 
ence, that  still  operated  in  thb  view,  in  virtue  of  the  ratification 
by  Parliament  in  1 592,  and  agreeably  to  our  practice,  upon  both 
of  which  infeofBnent  exclusively  followed, — though  in  conse- 
quence of  extreme  negligence,  sometimes  precedented,  and 
the  inaccuracy  with  which  the  graqt  is  confessedly  drawn, — 
and  presumed  ignorance,  or  inadvertence,  on  the  part  of  ConfeiMd  er- 
the  framer, — ^the  general  limitation  in  the  same  charter  ^  j"  *^*~'^ 
1593,  as  already  obvious,  is  falsely  made  to  have  been,  in  chapter  i62i. 
effect,  to  heirs-male  only,  which  may  have  elicited  the  new 
one  in  1621,  and  led  verbally  to  a  mutual  identity, — awhile  the 
dates  of  the  primary  constitution  and  creation,  elsewhere, 
when  alluded  to,  are  left  blank.  There  b  also  another  care- 
less blank,  and  omission  of  the  dates  of  an  important  known 
Act  r^arding  patronages  referred  to. — The  preceding  facts 
may  be  now  held  to  exhaust  every  thing  important  to  the 
merits  of  the  case ;  and  in  these  circumstances  certain  mate- 
rial considerations  may  naturally  present  themselves. 

I.  In  whatever  situation  the  lands  may  have  been, — ^and  it 
is  remarkable  that  **  no  infeftment  was  taken,  nor  possession 
had,  upon  the  charter  1621,"  ^  which  I  shall  call  the  Ballysak 
one, — the  substitution  limiting  the  honours^evidently  that  Clerical  errors 
acting  through  the  medium  of  the  grant  of  the  patronages  in  ^q^i  shake  or 
question,  and  barony  and  honours  of  Spynie,  in  terms  of  the  ^^^  charter 
charter  1593,  indisputably  referred  to,  would  still,  even  on  a  oos  constitution. 
far  worse  occasion,  however  misrepresented,  retain  its  true 
unvarnished  import  and  meaning,  and  carry  them  to  heirs- 
general.     There  is  here,  so  far  as  regards  the  substitution, 
but  a  subsequent  clerical  error  only,  which,  as  was  decided 
in  the  case  of  the  Barony  of  Napier,  the  25th  of  Febru- 
ary 1793,  in  an  analogous  point,  cannot  void  or  nullify  the 
right  of  the  previous,  or  actual  legal  heirs.     The  regrant  and 
ruling  conveyance  of  the  Napier  honours,  the  17th  of  Febru- Napier  decision 
ary  1677,  now  proceeds  upon  a  reference  to  an  entail  of  the*°'^^®*"P***°*' 
estates  there  given,  as  on  the  7th  of  February  1667 — but 

*  This  was  affirmed^  so  for  as  I  can  find^  without  contradiction,  in  the 
argument  and  printed  information  in  the  Spynie  claim* 


666  INQUIRY  INTO  THE  LAW  AND  PRACTICfE 

none  in  thai  year  was  ever  executed.  The  regrant  was  there- 
fore argued  to  be  null  and  invalid ;  it  happened,  however,  there 
had  been  an  entaU — that  evidently  in  view, — though  mistaken- 
ly, dated  the  7th  of  February  1667 — instead  of  1677,  which 
was  held  nevertheless  to  rule-^the  admitted  faulty  reference 
being  merely  construed,  justly  enough,  as  a  clerical  error.^ 

The  palpable  misconceptions  and  confessed  errors  in  the 
Bally sak  charter  in  1621,  can  never,  by  faulty  tiu»ifeii/a/ des- 
cription, as  obtains  much  in  the  same  way,  make  the  regulat- 
ing charter  1593  belie  itself,  and  operate  to  a  different  legal 
AiM  a  tabsidi.  purposc — prejudicially  to  the  honours*    This  the  more  so, 
GtencaS^aie  ^^^^  **  ^^  decided,  inter  cUia,  m  the  Glencaim  case  in  1797, 
in  1797.  that  a  direct  and  express  ratification  by  Charles  L,  the  21st 

of  July  1637,'  per  incuriam,  of  a  grant  of  the  Earldom  of 
Glencaim  by  James  Ill.in  1488, — in  reality  ineffectual,  having 
shortly  thereafter  been  rescinded,  but  declaring  it  to  be  **  oa- 
Kdunif  per/ectum^  et  sufficient  jus  "  for  the  full  and  peaceable 
enjoymentof  the  honour, — ^^ secundum  "  its  own  terms,  didnot, 
in  consequence,  transform  or  alter  its  pristine  character  or  con- 
dition, nor  give  it,  under  such  unquestionable  royal  authority, 
a  different  effect  than  it  had  before*  The  objection  here,  from 
the  rescission  alone — ^though,  with  us,  as  will  be  afterwards 
proved,  competent  in  a  proper  way  to  the  crown  to  cure  and 
remove  without  the  aid  of  Parliament — was  fiital.  If,  then, 
by  parity  of  reasoning,  the  erroneous  assumption  by  the  King 
— ^which  has,  even  in  certain  cases  in  English  practice,  enured 
into  force,  or  homologation  of  the  validity  of  a  faulty  writ  or 
admission  of  honours,  thus  availed  nothing,  ajbrtiori  must  the 
erroneous  assumption  of  the  limitation  in  the  charter  in  ques- 
tion, by  a  mere  derk  or  agent,  be  as  inept.  It  cannot  dis- 
turb or  imsettle  its  intrinsic  import. 
At  the  mott,  H.  As  the  charter  1621,  almost  wholly  involring  new  sub- 
charter    1621  jects,  did  not  proceed  upon  a  resignation  of  the  dignity, — 

could  not  affect'  ...  •         j     i_    a^        t         r  ^i.      i      j 

original  Spynie  which  moreovcr  was  ncvcr  resigned,  but  only  of  the  lands 
AoiMNir,  from  iu  i^Q^  patronaiTes,  &c.  by  the  noble  dtsponee,  and  certun 

non  resignation.  *  ,  •  •  i        i        %»      •  • 

strangers,  to  make  up  a  due  title,  the  dignity  can,  m  no  de- 
gree, be  thereby  compronused,  but  must  still  continue  intact 

'  The  Napier  ease  will  be  farther  stated  hereailer. 
'  Great  Seal  Register,  under  the  sign  mimiial. 


IN  SCOTTISH  PEERAGES,  &C.  667 

and  descendible,  as  before,  and  in  1593,  to  '*  heirs/'    Nay, 
actually  a  second  grant  or  patent — unexceptionable  in  point 
of  form — eren  supposing  the  above  charter  to  have  been  so — 
in  favour  of  a  party  and  new  heirs — of  an  honour,  of  the  iden- 
tical name,  and  degree  in  the  Peerage,  (which  seems  the 
strongest  case  of  confliction,  if  I  may  so  speak,  of  the  kind,) 
with  a  /ire-existing  one,-— duly  constituted,  like  that  of  Spynie, 
in  virtue  of  the  charters  in  1590  and  1593, — and  as  follows 
differenily  limited,  but  still  not  proceeding  upon  a  resignation 
— ^not  only,  as  evinced,  is  not  held  to  prejudice  the  latter,  but 
besides  to  be,  in  itself,  inept,  and  ineffectual,  as  a  Peerage 
conveyance.     The  conjoined  Earldoms  of  Annandale  and  Eineidation 
HartfeU  were  bestowed  by  a  patent,  dated  February  13, 1661, 5[n"aSdie"^ 
upon  James,  formerly  only  Earl  of  Hartfell,^  and  bis  **  heirs-  eiaim,  etinctng 
male/'  (simply)  with  subsequent  remainders.^    And  he  there-  ^^^^  ^^\^'' 
after  obtained  a  royal  charter,  under  the  sign  manual,  dated  be  carried  by 
April  3,  1662,'  erecting  his  estates  into  the  <*  Earldom^of  An-  ^ 
nandale  and  Hartfell,"  *<  cum  iitulo  sHlo  et  dignitate  Comitis 
secundum  (the  identical  word  used  in  the  Ballysak  charter 
in  1621,)  datas  Diphmatum  dido  consanguineo  etconsiliario 
nostro  Jacobo  comiti  de  Annandaill  et  Hartfell,  et  quondam  * 
ejus  patrt  desuper  concessorum," — thus  literally  including  the 
former  dignity,  or  dignities  of  Earl  of  Annandale  and  Hartfell, 
in  terms  of  the  patent  in  1661,  and  another  with  the  same  li- 
mitation, as  there  in  the  first  instance,  of  the  Earldom  of 
Hartfell,  dated  March  18,  1643,  to  Earl  James  his  father,^ — 
but  in  favour  of  different  heirs,  of  **  heirs  male  o/the  body  " 
only,^  instead  of  *^  heirs  male "  simply,  as  before,  or  heirs- 
male^general,  as  is  now  held  by  the  House  of  Peers, — though 
with  the  Bubsiequent  remainders,  as  in  1661.     It  happened, 
however,  that  this  charter  1662  did  as  little  as  the  Ballysak 
one  proceed  upon  a  resignation  of  the  honours,  and  according- 
ly, during  the  pending  discussions  on  the  Annandale  claim, 
it  was  not  founded  upon  by  Mr.  Hope  Johnstone,  the  claim- 
ant, whom  it  would  have  decisively  preferred,  as  a  peerage 
conveyance.     He,  like  his  opponent  Sir  Frederick  Johnstone, 

*  In  virtne  of  an  earlier  patent,  to  be  immediately  mentioned. 
"  Great  Seal  Register.  •  Ibid. 

*  IM.  •  Ihid. 


668  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

whom  the  charter  again  excluded,  joined  issue  upon  the  earlier 
patent  in  1661)  which  the  Lords,  likewise  so  far,  only  consi- 
dered.    There,  was,  moreover,  a  parliamentary  ratification  of 
the  charter  1662,  in  the  same  year,^  but  equally  disregarded 
agreeably  to  the  law  formerly  noticed,  and  as  admitted  in  the 
concnirent  au-  CassiUs  instance*    The  law  in  question  appears  to  have  been 
Mansfield  uid  ^^^  recogniscd  there  in  1762.     In  discussing  the  merits  of 
Hardwicke  in  the  similar  Cassilis  charter  (though  also  otherwise  objection- 
able) in  1642,  Lord  Hardwicke  said,  *'  It  is  agreed  that,  by 
the  charter  1642,  no  honours  passed,  because  it  was  a  per- 
sonal honour  (  dusiUsJf  and  was  not  resigned.*'    And  in  this 
Lord  Mansfield  assented,  observing,  *^  I  take  it,  that  nothing 
can  pass  by  such  right     It  is  clear  the  King  could  grant  no- 
fAtn^but  what  was  resigned.  Here  the  Aonovr^were  no/resign- 
Case  of  the    ed,  and  therefore  could  not  pass."  ^ — But  the  case  of  the  Mar- 
Q^ni!bi?r°^  quisate  of  Queensberry,  decided  the  9th  of  July  1812,»  may 
&c.  in  1812.'    be  much  stronger,  where  that  dignity,  the  Viscounty  of  Drum- 
lanrig,  and  a  subordinate  Barony,  were  found  to  remain  with 
the  original  heirs,  even  in  the  face  of  an  actual  resignation 
and  regrant  of  the  other,  and  principal  family  dignities,  in  fa- 
vour of  new  heirs, — ^with  a  general  reference  to,  and  salvo  in 
behalf  of  the  latter,  of  any  honours  and  dignities,  &c.  ever  con- 
ferred upon  the  grantee  and  his  family,^ — ^merely  because  the 
former  were  not  specified  nominatim.    And  this,  although 
there  could  be  no  doubt  of  the  intention  then  of  the  resigner 

'  Acts  of  Pari,  last  Edit.  vol.  VII.  p.  641.  Had  the  honour  been 
previously  resigned  in  1662,  then  the  case  evidently  would  have  been 
the  same  as  that  of  the  Earldom  of  Roxbuighe,  in  virtue  of  the 
royal  charter  of  the  estates  and  dignity  of  Roxburghe,  dated  July  31, 
1646,  (Great  Seal  Register,)  with  the  consequent  nomination,  which 
did  proceed  upon  a  resignation  of  the  dignity,  and  hence,  aeteris  paribus, 
w«is  resolved  by  the  House  of  Lords  in  1812  duly  to  transmit  it. 

'  See  Mr.  Maidment's  Cassilis  Pub.  pp.  69,  63. 

'  Lords'  Journals. 

*  Patent  dated  June  17, 1706,  Great  Seal  Register,  with  the  resig- 
nation in  question,  and  the  relative  instrument,  op.  Minutes  of  Evidence 
iu  the  claim  of  Charles  Marquis  of  Queensberry.  &c.  The  provision  or 
reservation  alluded  to  is  thus  expressed  in  the  deed  of  resignation,  that 
there,  moreover,  shall  be  no  pr^udice  '*  to  us  (the  resigner)  nor  our 
foresaid  aires  of  tailzie-^  any  of  out  former  titles,  honours,  &c.  former- 
ly granted  to  us  and  our  predecessors,^* 


IN  SOOTTISH  PEERAaES,  &C.  669 

to  make  (under  due  authority)  a  total  settlenient  of  his 
honours  and  estates,  sim%U  et  semel}  Neither  was  there,  as 
has  heen  supposed,  at  the  time,  any  reservation  of  the  Mar- 
quisate  of  Queensberry  to  the  old  heirs.  And  accordingly,  it 
so  happens  that  their  representatiye,  the  heir-male,  inherits 
that  dignity,  and  the  relative  ones  mentioned,  without  a  parti- 
cle of  the  resigner's  land ;  while  his  entire  territorial  patri- 
mony, and  more  exalted  titles  of  Duke  of  Queensberry,  Earl 
of  Drumlanrig,  &c.  now,  in  virtue  of  the  resignation  and  re- 
grant  in  1706,  centre  in  the  Buccleugh  family,  the  heirs-female. 
The  law  here,  justly  enough,  b  strict  and  scrupulous  ;  and  Application. 
hence,  the  ori^nal  Spynie  honour,  owing  to  the  want  of  the 
shadow  even  of  a  resignation  in  its  case,  as  I  before  observed, 
is  intact,  and  in  any  event  unaffected  by  the  charter  1621, 
even  in  whatever  way  we  may  regard  the  new  substitution  there 
to  heirs-male,  or  the  ostensible,  though  false,  conveyance  it  in- 
dubitably perpetrates  of  the  honour, — ^firom  misrepresentation 
of  the  true  limitation — or  rather  of  its  visionary  counterpart,  to 
the  same  heirs.  Independently  too,  there  is  intrinsic  proof, 
in  the  same  faulty  Ballysack  charter  in  1 621,  not  only  that  the 
Spynie  honour  was  not  resigned,  but  that  no  innovation  so 
far  was  thereby  intended ;  for  it  admits,  as  already  seen,  that 
notwithstanding  the  resignation  by  Alexander  Lord  Spynie, 
of  the  lands  of  the  patrimony  of  the  Bishops  of  Moray,  and 
what  had  obtained, — the  said  dignity  of  Spynie  still  belonged 
to  the  noble  disponee  his  heir,  and  "  remained**  with  him — evi- 
dently according  to  the  original  constitution — and  his  "  suc- 
cessors.'*' In  fact,  the  chief  scope  or  legal  purpose  of  the 
charter  1621  had  reference  to  other  objects,  and  the  title  to, 
and  consolidation  of  the  patronages,  with  the  estates. 

IIL  But  hitherto  we  have  been  taking  it  for  granted,  t^^tchwJriesV 
the  charter  in  1621,  quoad  the  honours,  was  duly  warranted,  ineflectuai  in 
and  perfected  m  point  of  form.     Thb,  however,  is  not  so  rx^^^^l/'^^'' 
practice,  or  can  be  held  to  be  by  a  ruling  judgment  of  the  dignity. 
House  of  Peers.     In  every  grant  conveying  honours,  accord- 
ing to  the  rationes  and  decision  in  the  parallel  case  of  Cassilis 
in  1762,  these  must  be  specially  axid  literally  described  in  the 

'  Proved  by  anthoiities,  ilrid,  and  others  upon  Record. 
'  See  p.  664,  note  3. 


670  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Fixed  eipeeiaiiydocquet  by  the  pubUc  functionary,  subjoined  to  the  proper 
^J^^*^*!^**^  warrant  or  signature,  l^ally  to  evidence,  together  with  the 
■ilia  case  in  authority  Under  the  sign  manual,  the  due  intelligence,  and  ap* 
^  ^^'  prehension  of  his  Majesty, — ^for  whose  special  information  the 

dooquet  here  is  deyised,  and  whose  unequiyocalacten/ia  and  act, 
CM  to  ihem^  thus  deliberately  adhibited,  is  imperatively  demand- 
ed for  their  transmission.^  Whatever  may  have  actually  obtain- 
ed, the  law,  as  a  necessary  guard  against  surreption,  which,  as 
has  been  proved,  has  been  practised  upon  such  occasions,'  pre- 
sumes the  royal  non-consent  if  the  form  be  omitted.  Instead 
of  which  notice,  the  docquet  to  the  signature  of  the  charter  in 
question  merely  mentions  the  patronages  and  territorial  fief, 
without  any  such  exemplification,  or  more*'  Hus  striking  de* 
feet  therefore,  seemingly  omitted  also  to  be  founded  upon 
by  the  Spynie  claimant  in  1784-5,  is  in  practice  fatal  to  the 
eflfect  of  the  conveyance,  as  touching  or  compromising  the 
honours, — ^independent  of  the  previous  conclusive  arguments, 
as  conceived, — and  at  once  expels  it  from  the  discussion. 
^t[fi!^oD*'^r       ^  °®^  ^  \\Vi!i^  allude  to  the  summary  parliamentary  ratifi- 

chftrtar  1621,  catiou  of  the  charter  1621,  in  the  same  year, — which  remark- 
here  una?  ailing 

under  rhe  cir-       i  It  was  objected  In  the  Caasilis  ease,  and  sustained,  that  a  royal 
cunu     eea.      ehsrter  in  1071  under  the  sign  manual,  carrying  in  gramio  the  Earldom 


of  Caasilis^  '^  with  the  dignity^  pnoedencjf^  and  priority**  oi  place,  was 
null  as  to  the  latter^  hecanse  **  the  docket  subjoined  to  the  original 
signature,  which  was  intended  as  a  check  to  prevent  grants  hj  subrep- 
tion, contains  a  special  description  of  the  whole  lands — but  does  not 
once  mention  the  title  of  honour  or  dignity.**  (See  also  p.  659.)  This 
is  the  fact,  as  I  found  hj  the  actual  signature  in  the  State  Paper  Office. 

'  See  p.  63,  and  pp.  207-8. 

'  The  following  is  an  entire  copy  of  ths  dooquet,  which  was  adduced, 
with  the  conveyances  in  the  Spynie  chum :  <^  An  Grant  to  be  passed  by 
your  Majesty  to  the  Lord  of  Spynie,  of  the  lands  of  BaHysack,  Braid- 
fiittis  Garden,  and  other  lands  lying  within  the  Sherifidom  of  Forfiur, 
with  the  patronage  of  divers  Elirks,  unitit  and  annexit  in  an  Lord- 
ship and  Barony,  to  be  eallit  hereafter  the  Lordship  of  Spynie.  (Sub- 
seribed)  George  Hay.'*  An  ordinary  Dominium  et  Baronia  are  here 
simply  carried,  which,  without  the  words  title,  and  honour,  &c.  only 
then  import  a  landed  fief.  It  is  to  be  observed,  that  in  the  Cassilis  doo- 
quet the  "^  Earldome  and  Lordsehip  of  Cassilis  "  are  specified,  besides 
efsen  an  obligation  to  the  heirs  to  take  the  ^armes  and  dtjrnt^y,"— hence 
so  far  stronger ;  but  this  oven  did  not  avail,  or  enable  the  grant  to  pass 
the  honour.  Sir  George  Hay,  who  subscribes  above,  was  Clerk  Raster. 


IK  SCOTTISH  PEEBAGES,  &C.  671 

ably  again  does  not  mention  the  honours,^  it  being  besides  long 
after  the  union  of  the  crowns,  and  the  removal  of  the  King  and 
leading  administration  to  the  remote  locality  of  London,  in 
consequence  of  the  law  also  laid  down  in  the  Cassilis'  case, 
rendering  the  same  equally  unavailing  in  the  emergency*' 
The  descent  of  the  Spynie  honours  therefore,  on  all  hands,  ex-  Deioent  of  Spy- 
chisively  stands  upon  the  charters  1590,  and  1593,  backed  by  ^'^^^^°<^j]^^^ 
the  express  and  effectual  act  in  1592.  by  charten 

Alexander  second  Lord  Spynie,  was  succeeded  by  George  ^^^^'i^^^ 
his  son  and  heir,  the  third  Lord,  who  died  in  1670,  or  1671»  ^^^  "hein" 
without  issue,^  when  the  direct  heirs-male  failed.   The  takers  tunoe. 
hitherto  combined  the  status  both  of  heirs-male  and  heirs- 
general  ;  but  by  the  death  of  Lord  George  it  split,  and  the 
female  representation  opened  to  Margaret,  his  eldest  sister, 
who    married    William   Fullarton  •  of  Fullarton*      At  this 
period,  the  means  and  fortunes  of  the  Spynie  family  were  ut- 
terly gone  and  delapidated ;  that  of  Fullarton  also  were  great- 
ly redttoed  in  their  circumstances,  the  members  being  besides 
concerned  in  the  rebellions  in  1689,  and  1715,'  which,  as  in 
similar  cases,  had  barred  a  claim,  and  assumption  of  the  dig- 
nity, that  became  subsequently  dormant.'  It  still,  however,  re- 
mained on  the  Union  Roll ;  and,  after  a  considerable  interval, 
was  claimed,  by  petition,  and  reference  to  the  Lords,  the  28th  cidm  to  the 
of  May  1784,  by  Vt^iam  Fullarton  of  Glenquich,  the  direct  ^ll  ^^^l 
1  ji    .  ^^  1^1^  ^£  ^^  above  Margaret,  in  terms  of  the  heir  .general  io 


lU-;'k.  .(I   !»:»» 


regulating  charters  of  the  honour  in  1590,  and  1593,  to  heirs- 
general,' — when  it  was  at  once  found,  after  some  discussion, 
on  the  18th  of  April  1785,  that  he  had  no  right  to  it.'    And 
why,  it  may  be  asked,  and  upon  what  ground  ?    Merely — al-  At  once  reject- 
though  the  resolution  was  penned  by  Lord  Mansfield,  who  ^  ^^  m^^ 
alone  spoke  on  the  occasion,  it  may  indeed  surprise   andpeenin  1785. 

>  Aeti  of  Parliament,  last  Edit.  vol.  IV.  p.  664. 

*  Pdntedly  rejecting  a  Parliamentary  ratification  in  1C72,  of  the 
Cunlis  charter  alluded  to,  in  1671.  '  See  pp.  65^-9. 

*  So  proved  by  evidonoe  in  the  Spynie  claim. 

*  From  information,  Spynie  Charter-chest. 

*  The  Lords  of  Senion,  in  their  printed  Peerage  Report  in  1740, 
could  not  take  it  upon  themfielvet  to  say  that  it  was  extinct. 

'    LordsT  Journals.  •  Jhid. 


678  INQUIRY  INTO  THB  LAW  AND  PKACTICfi 


Astounding, 
futile,  and  in- 
explicable. 


GnmndM  of  astound  moBtpersoDs — because  ^'hile,  it  seeroSy  forsooth,  th^re 
their  rewiaaon.  ^^  ,j^  proo^  or  indication  of  "  the  original  creation  of  the 
title, — ^it  smfficiently  SLppearSy/rom  the  act  of  ratification  1592, 
the  charter  1593,  and  the  charter  1621,  that  the  descent  was 
limited  to  the  heirs^tnale  of  Alexander  (first)  Lord  Spynie, 
consequently — ^the  claimant  has  no  right  to  the  said  Peerage."  1 1 
The  rationes  decidendi^  palpably,  may  be  even  still  more  easy 
to  expose  and  refute,  than  most  of  Lord  Mansfield's  argu* 
ments,  futile  and  inconclusive  as  they  are, — deplanOf  by  the  ab- 
solute veto  (to  use  a  modem  term)  of  the  intrinsic  words  and  im- 
port of  the  said  act  1592,  and  charter  1593,  themselves,  direct*- 
ly  referred  to  as  their  warrant, — which  are  unappealable,  and  not 
only  substantively  instruct, — ^together  with  the  charter  1590, 
here  however,  wholly  disregarded, — the  actual  constitution  of 
the  original  honour,  but  its  descent,  as  has  been  instructed, 
e  conversoj  to  heirs-general.  <*  It  sufficiently  appears"  from 
them^  indeed,  that  the  honour  <<  was  limited  "  but "  to  the  heirs- 
male  r*  It  is  a  plain  mockery  to  say  so ;  the  conveyances  in 
que8tion,broad  and  congruent  as  they  are,  intrinsically^  involve 
no  such  confined  and  restricted  descent,  as  his  Lordship  gra- 
tuitously assumes,  —not  legally  even  the  irrelevant  one  in  1621,> 
his  only  other  groundwork, — ^but  diametrically  otherwise.' 

These  memorable  rationes^  which  were  admitted  and  con- 
firmed upon  the  fiat  of  this  legal  dignitary  by  the  crown,  of  a 
truth,  seem  the  most  extraordinary  and  revolting  ever  risked 


*  This  charter,  it  is  remarkable,  wHh  the  exception  of  its  palpable 
incorrectness, — ^which  made  the  matter  worse  in  its  case, — ^had  all  the 
essential  features  of  the  Cassilis  charter  in  1671,  yet  while  the  latter 
was  at  once  discarded  by  the  Lord  Mansfield,  the  former  was  coruis' 
tenUy  admitted  and  founded  upon  by  the  same  authority. 

'  The  limitation8,-H»bBtractly  occurring,  as  they  do,  in  the  Act  1692, 
and  charter  16dd,  and  filling  to  be  literally  or  naturally  rendered,  as  will 
afterwards  be  shewn, — ^namely  "  to  the  heirs  lawfully  gotten,  and  to 
be  gotten,  between  them,  (Lord  Alexander  and  Countess  Jean,) 
quilks  failing,  to  the  nearest  and  lawful  heirs  male  of  the  said  Alex- 
ander Lord  of  Spynie  whatsomever,  and  their  assignees" — ^must  in- 
clude, as  every  legal  Tyro  knows,  heirs  general  or  female,  under  the 
term  "heirs,"  while  they  may  involve  them  likewise  in  virtue  of 
"assignees."  And  this  the  more  so,  seeing  the  limitations  apply  to 
lands  equally  as  to  honours. 


IK  SCOTTISH  PEER  AGES,  &C.  673 

in  law,  and  render  this  singular  case,  (even  still  more  than 
some  of  the  preceding,)  most  strange  and  inexplicable.    His  Lord  Mantfieid 
Lordship,  independently  of  his  unfoundedly,  and  as  irrelevantly  h!!te  consfrued^ 
repudiating  the  conveyances  in  1590, 1592,  and  1593,  asgrants  "  hein'*  here 
of  the  honour^ — ^must  obviously  be  held  thus,  to  have  denied  general." 
and    rejected    the    genuine    meaning    of   a    limitation    to 
*'  heirs  "  simply,  as  including  heirs^female.     And  here,  not 
to   mention  innumerable  illustrations  and  authorities,   no- 
toriously   to    the   contrary,'    this   foreclosing,    ahnegatory 
doctrine  is  at  once  shattered  and  annihilated  by  the  recent 
Polwarth  decision  before  the  same  tribunal.     The  Barony  of 
Polwarth  was  bestowed,  (precisely  like  the  Viscounty  of  Stair  impo'twit  caie, 
m  the  same  year,)  by  a  patent,  dated  the  2oth  of  December  Barony  of  PoI- 
1690, — under  an  uncommon  limitation,  it  may  be  said,  else-f^J'^'g'*^.^^ 
where  unparalleled  in  Peerage  grants, — upon  the  patentee,  pabie  refatation 
'*et  haeredes  masculos  de  corpore  suo  legitime   procreatos^    "   ^      ^^' 
seu  procreandos,  et  fueredes  dictorum  suorum  hwredum^*^* — 
namely,  to  heirs-male  of  the  body,  and  to  their  heirs.     The 
Polwarth  estate,  under  the  description  of  a  *^  Barony,"  ^  by 
royal  charters,  dated  the  25th  of  June  1669,  and  last  of  Jan- 
uary 1704,^  both  ratified  in  Parliament,^  thereby  constantly 
stood  in  the  person  of  the  patentee,  a  man  of  influence,  and 
High  Chancellor  of  Scotland,  and  to  his  ^'  heirs  male  whatso- 
ever," in  the  first  instance,  which  was  moreover  the  limitation 
he  exclusively  adopted  in  his  final  patent  of  honours,  dated  23d 
of  April  169  7,  of  the  Earldom  of  Marchmont,  Viscount  Blazon- ^u  **>«  f*«»*y 
berry,  and  of  *^  Baron  Polwarth  ol  Polwarth^*'^  &c.  a  singular  (except  that  in 
recurrence  to  much  the  same  style,  as  in  1690, — ^f^ot  proceed- J^^^^^^^jj^*" 
ingupona  resignation.     And  though  last  in  degree,  though  bie  to  heirs  male 
'^not  probably  last  in  estimation,  the  old  family,  baronetcy  of  J^e  patemi  ^ 
Nova  Scotia,  conferred  upon  Sir  Patrick  his  father,  Decem- 
ber 19,  1637,^  was  also  exclusively  in  him  and  his  heirs-male. 

'  See,  inter  alia.  Lord  Hailes's  Sutherland  case,  passim, 

'  Great  Seal  Register.    The  patent  of  the  Viscotinty  of  Stair  in  ex- 
act terms,  dated  April  21, 1690,  is  also  recorded  there. 

*  An  ordinary  one.  *   Great  Seal  Register. 

'   *  Also  in  1669,  and  1704.  Acts  of  Pari,  last  Edit.  vol.  VII.  p.  6dl,  and 
vol.  XI.  p.  200.  '  Great  Seal  Register. 

'  Proved  by  authorities  upon  record.    The  date  of  creation  assigned 

to  thii  Baronetoy  in  1626,  is  not  correct. 

2u 


tee. 


674        INQUIRY  INTO  THE  LAW  AND  PRACTICB 

The  male  succession  therefore,  to  the  utmost  extent, — he  pre* 
ferring  all — even  the  most  distant  heirs-male,  of  whom  there 
were  an  immensity — to  his  own  female  issue,  and  heirs-general, 
must  have  been  his  especial  predilection,  certainly  in  respect  to 
his  entire  estates,  and  every  other  honour, — at  least  saving  the 
Barony  of  Polwarth  in  1690. 

Every  Scottish  lawyer  knows,  that  although  the  genuine 
and  presumed  meaning  of  **  heirs  "  occurring  in  the  relative 
patent,  is  identical  with  heirs-general,  yet  it  is  still  a  flexible 
term,  and  may  be  controlled  and  altered  in  this,  its  natural 
acceptation,  by  certain  marked  a,nd  peculiar  accidents  and  con- 
siderations.    And  as  far  as  intention  went,  and  in  support  of  its 
coming  here,  within  such  category,  may  we  not  hold,  that  the 
Faets  nrged  on  noble  disponee,  who  preferred  the  male  succession  at  large,  in 
Motion,  Mconl  ^^^^  Other  instance,  to  the  complete  exclusion  of  females, 
troiibg  ••  heirt*'  gmgt  also  have  been  as  little  inclined  to  favour  or  include  them 
patent  In  1690.  in  the  Substitution  of  the^^^  Barony  of  Polwarth  ?     It  must 
be  admitted  at  least,  that  such  collateral  evidence  in  behalf  of 
the  male  construction,  as  controlling  *<  heirs,"  is  immeasura- 
ble stronger  than  that  in  the  Spynie  instance,  directly  resorted 
to  by  Lord  Mansfield ;  for  here  it  is  sustained,  and  palpably 
evinced,  not  only  by  the  uniform,  and  concurrent  import  of 
the  settlements  of  the  Polwarth  fief  and  his  estates,  but  by  the 
limitation  of  his  higher,  and  all  his  other  honours, — ^in  fact,  sub- 
stantively constituting  his  proper  family  representation, — and 
moreover,  in  the  manner  shewn, — (not  alluding  to  the  oldest 
and  hereditary  title  of  Baronetcy,  to  the  precise  same  effect,) 
— sunder  authority  of  Parliamentary  ratifications,  and  Royal 
grants  to  the  identical  party  himself, — whose  will  is  in  question, 
and  which  must  have  been  consulted  and  followed  in  a  great 
degree,  at  least,  if  not  wholly,  during  his  lifetime.  Now,  on  the 
other  hand,  what  have  we  to  contrast  with  this  in  the  same 
qualifying  view,  to  induce  the  prejudicial  restricting  conclu- 
sion in  favour  of  heirs-male,  from  the  Spynie  conveyances, 
according  as  Lord  Mansfield  has  similarly  attempted  in  that 

case? 

Nothing  but  the  impotent,  inefficient  Ballysak  charter  in 
1621,  questionably  to  heirs-male, — that  does  not  carry  the 
Spynie  honour, — but  mixed  incongruous  lands  and  interests, 


IN  SCOTTISH  PEERAGES,  &:C.  675 

nearly  all  distinct  from  the  Spynie  inheritance, — and  that 
intended  no  innovation  of  the  former, — rather  it  must  be  held  But  the  abore 
an  Irish  mode  of  illustration  on  the  part  of  hb  Lordship,  see-l^'P^f^^^^^'^ 
mg  It  was  noif  as  aboye,  during  the  lifetime  of  the  par-— butt conira. 
allel  party,  whose  intention  we  are  equally  discussing,  but 
long  after,  at  the  distance  of  more  than  a  quarter  of  a  century, 
— in  respect  to  a  grant  wholly  unauthorized  by  him,  of  which 
he  knew  nothing,  and  that  could  not  be  an  index  or  criterion 
of  his  intention,  he  being  then,  and  long  previously,  in  his 
tomb ; — while  the  entire  and  princely  dominium  and  fief  of 
Spynie,  in  his  person^  which  alone  fell  to  be  consulted  in  this 
collateral  mode  of  illustration, — instead  of,  like  the  Polwarth, 
being  restricted  to  heirs-male,  was  constantly  descendible  by 
repeated  grants  to  heirs-general,  in  unison  with  the  Spynie 
honour.  Such  test  or  probation  therefore,  instead  of  cogently 
impugning  or  refuting  in  every  respect,  so  far  as  it  goes,  the 
natural  meaning  of ''  heirs,"  as  in  the  Polwarth  instance,  e  con- 
verso^  pointedly  and  relevantly  defends  and  corroborates  it  in 
that  of  Spynie.  Added  to  this,  not  broaching  the  nice  Further  objec- 
point,  whether,  in  virtue  of  the  Polwarth  limitation,  a  daugh-  ^^  '^^ 
ter,  the  sole  offspring  of  an  elder  brother,  a  male  descendant 
of  the  patentee,  would  fall  to  exclude  his  younger,  which  was 
mooted  by  Lord  Redesdale,'  it  is  indisputable  that  it  might 
have  so  happened  in  respect  to  it, — giving  the  term  ^'  heirs  " 
a  female  import,  that  a  daughter  and  heir-female  might,  in 
consequence,  have  become  Baroness  of  Polwarth  in  her  own 
right,  though  entirely  destitute,  without  a  particle  of  the  lands 
— which  would  then  separate  in  the  gross,  and  irretrievably  de- 
volve to  the  heirs-male.  This  surely,  (confining  ourselves  to 
ihe  first  Polwarth  honour,  and  holding  it,  as  might  have  hap- 
pened, to  have  been  the  only  one,)  would  be  a  jarring  and  ano- 
malous state  of  things,  which,  it  can  indeed  be  little  presumed, 
the  noble  disponee,  at  the  time  of  its  creation, — which  is  the 
relevant  epoch,  a  man  of  power  and  influence,  and  whose  will ^ 
as  has  been  observed,  must  have  been  consulted  in  the  fram- 

*  It  here  fortunately  however  happened,  that  the  Pol  worth  claimant 
was  the  heir-general  both  of  the  first  and  last  heir-male  of  the  body, 
then  having  been  no  previous  opening,  as  contemplated  in  the  text,  to 
an  heir-female. 


61f6  INQUIRY  INTO  THE  lAW  AKD  PRACTICE 

Ing  of  the  patent, — could  ever  have  couDtenanced.  The  ef- 
fective political  representation,  and  weight  of  his  family,  evi-* 
dently  from  his  anxious  entails,  and  naturally,  a  cherished 
object  with  him,  a  strenuous  statesman  and  politician — especi- 
ally in  a  far  more  feudal  age  than  afterwards,  would  have  been 
materially  destroyed  or  shaken ;  while,  in  the  case  of  the 
poor  impoverished  Baroness^  with  but  the  bauble  of  an  empty 
impotent  title,  in  the  likely  emergency,  it  is  probable  that,  like 
others  in  the  same  situation,  as  in  the  instance  of  Somerville, 
she  would  haveforeborne  to  assume  it,  being  wholly  without  the 
means  of  its  support.  Owing  to  these  forcible  and  substantial 
considerations,  it  was  held  and  argued  by  some, — who  besides 
viewed  **  keredibus^**  in  the  limitation  in  1690,  but  as  a  legal 
pleonism,  or  in  fact  equivalent  to  hereditarie — solely  to  elongate 
the  male  descent  heritably  downwards^ — for  it  is  to  be  observ- 
ed,  that  the  previous  words  there,  '*  heirs  male  of  the  body," 
in  our  patents,  are  occasionally  employed  only  to  include  tin- 
mediatem^Xe  issue,  or  sons^ — that  the  whole  Polwarth  subatitu* 
tion  in  question  merely  resolved  into  one  to  heirs-male  of  the 
body,  which  would  have  fully  reconciled  matters.  It  was  fur- 
ther remarkable  too,  that  the  Stair  estates,  as  settled  by  the 
first  Viscount  Stair,  author  of  the  Institutes,  and,  according 
to  many,  our  highest  legal  oracle,  went  precisely,  like  the  Pol- 
warth, to  heirs^male,  which,  in  the  same  way,  might  have  con- 
trolled "  heredibus"  in  his  patent  of  the  Stair  Viscounty  in 
1690,  having,  as  was  stated,  asubstitution  identical  with  the  for- 
Yet  House  of  mer.  But  the  House  of  Lords  would  not  allow  themselves 
inTa**ouVof\he  ^^  ^^  influenced  by  any  such  reasoning  and  considerations  in 
heir-^irma/e  in  behalf  of  intention,  and  of  the  male  succession  only,  or  any 
claim.  way  couutcnance  such  collateral  mode  of  illustration, — at 

least,  so  lamely  and  irrelevantly  attempted,  in  1785,  by  Lord 
Mansfield.  I'hey  entirely  shut  their  eyes  to  them  ;  and  in 
this  remarkable  and  rather  narrow  case,  according  to  some 
lawyers,  they  gave  the  strictest  and  most  rigid  effect  to  the  term 
heredibus  in  the  Polwarth  substitution,  agreeably  to  its  naked 
and  presumptive  meaning ;  and  in  virtue  thereof,  the  heirs- 
male  of  the  body  having  failed, — on  the  25th  of  June  1835, 
adjudged  the  said  Barony  of  Polwarth  to  the  direct  heir- 


IN  SCOTTISH  PEERAGES,  &C.  677 

female, > — that  is,  to  the  individual  who  held  the  same  status, 
and  stood  in  the  precise  situation  with  the  Spynie  claimant  in 
1785.     It  must  therefore  in  law,  in  conformity  to  the  deci- Concia>ion. 
sion,  require  the  agency  and  bias  of  strong  facts  and  con- 
comitants indeed,  to  shake  the  intrinsic  meaning  of  ^'  heirs,"^ 
— certainly  not  such  as  warranted  the  Spynie  resolution,  pen- 
ned by  Lord  Mansfield,  whose  rationes  there  are  necessarily 
exposed  and  refuted.      And  again,  contrasting  the  Spynie  o°  contrwiing 
case  with  Polwarth,  I  need  hardly  now  add, — ajbrtiori^  how  oje  case  with' 
irresistibly  the  latter,  including  the  decision,  tells  in  its  favour ;  ^°^"*''**:  *jf" 

^  '  .  ^  vantage  in  fa- 

for  not  only,  under  the  ruling  Spjnie  grants  to  the  first  Lord  vour  of  the/«>r- 
Spynie,  was  the  word  "heirs"  opposed,  as  in  the  ^o/tt'arM^j^*^y^^*J[^^[," 
one — under  a  distinct  remainder  too,  there  wanting — to  heirs-  to  (hf»  latter. 

1  •  i_     ^i_  J  •         ^  •         ..  •         i_  J      excluded  in  its 

male,  moreover  with  the  adjunct  cLssignatis^ — hence  de- instance. 
noting  a  more  varied  and  wider  range  of  descent, — but  heirs- 
female,  as  we  must  now  hold,  in  virtue  of  the  same,  were 
called  therein,  in  the  first,  and  not  merely  in  the  second  in- 
stance,— which  indicates  a  more  marked  preference.  Neither 
was  this  by  a  single  conveyance  of  the  kind,  as  in  Polwarth, 
at  variance  with  all  the  rest,  whether  of  the  estates  or  hon- 
ours, but  repeatedly  and  uniformly  in  reference  to  the  large 
and  princely  patrimony  of  the  Bishoprick  of  Moray,  from 
whence  the  dignity  was  derived,  during  again  the  material 
and  relevant  time ; — while,  to  descend  to  all  details,  no  awk- 
ward and  irreconcilable  dilemma  could  ever  have  been  occa- 
sioned by  a  separation,  under  the  regulating  settlements  of 
the  Spynie  honours  and  estates,  such  as  the  striking  one  no- 
ticed in  the  Polwarth  instance.  On  the  contrary,  both  thereby 
would  have  been  consistently  united,  and  accordingly  de- 
scended simul  et  semeL     In  this  manner,  the  Spynie  case,  iu 

*  Lords'  Journals.    There  still  exist  many  heirs-male  whatsoever. 

'  This  rigid  doctrine  as  to  8uch  technical  terms,  as  is  notorious,  waa 
in  a  great  measure  enforced  in  the  Scottish  cases  of  Hay  of  Liupluin, 
28th  July  1788,  and  of  Walker  (especially),  June  17, 1766, — ^both  upon 
appeal.  "  Heirs  whatsoever "  too,  a  description  likewise  flexible  in 
oar  day^  received  a  strict,  naked,  technical  interpretation,  in  opposition 
to  intention  transpiring  in  oney  and  the  same  deed,  in  the  case  of  Far- 
qohar  against  Farquhar,  in  1838.  (See  Dunlop,  Bell,  and  Murray's 
Reports,  vol.  I.  p.  121.)  And  the  same  thing  can  \)e  additionally 
«riuced. 


678  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

terms  of  the  claim  in  1784,  is  rendered  harmonious  and  in- 
trinsically coherent  9  authorizing,  agreeably  to  the  modem  dio^ 
tates,  and  principles  of  law,  the  construction  contended  for. 
Upon  the  foot-  Upon  the  whole,  with  every  submission,  so  long  as  the  Pol- 
warth  decision,  warth  dccision  Stands,  we  cannot  but  regard  the  right  of  the 
Spynie  claim     Spynie  heir-fcmale  to  be  irresistible, — under  favour  of  that 
remarkable  precedent  which,  as   I  premised,  utterly  shat- 
ters, and  nullifies  the  strange  and  inexplicable  finding  of  Lord 
Mansfield  in  1785,  to  the  prejudice  of  the  latter.     And  even, 
if  there  were  doubt  in  the  matter,  still  I  conceive,  however  it 
be  affected  to  be  contemned  and  disregarded  in  modem  times, 
that  the  general  presumption  and  leaning  of  the  Scottish  law 
in  favour  of  heirs-female — as  I  have  attempted  to  illustrate — 
Absurd  objee-  ought  to  Operate  and  preponderate.     One  of  the  closing  argu- 
Mansfield  To*    meuts,  forsooth,  of  Lord  Mansfield,  in  his  speech  against  the 
Spynie  claim,    female  succcssion  in  the  Spynie  case,  was — straining  mistaken 
hypothetical  inference  of  intention  to  the  dregSj  most  accordant-- 
ly  with  his  principles,  as  will  be  afterwards  shewn — that  such 
would  be  "highly  improbable," — for  then  "a  niece  (would)  dis- 
inherit  (exclude^  he  ought  to  have  said)  her  uncle."^  "  Highly 
improbable^'* — ^why,  on  the  contrary,  this  happens  every  day 
in  numerous  instances,  in  the  case  of  every  peerage  descendi- 
ble to  heirs-general.      But  again,  holding,  as  was  forcibly 
maintained  in  respect  to  the  Polwarth  substitution, — and  a 
point  adhuc  sub  judice^  that  the  daughter  of  an  elder  brother 
would  exclude  his  younger  brother,  this  actual  vicissitude  of 
things  would  have  obtained,  under  far  more  adverse  and  irre- 
concilable circumstances.     Yet  the  consideration,  so  far  from 
being  attended  to,  or  operating,  according  to  Lord  Mansfield's 
hallucination,  to  cast  the  claim,  came  to  be  deemed  immaterial 
in  a  parallel  state  of  matters,  and  to  be  completely  disregard- 
ed.    The  Polwarth  decision  thus  additionally  refutes  Lord 
Remarks  onpe-  Mansfield.     I  need  hardly  advert  to  the  import  of  the  Spynie 
Siie**Spynie  re-  Substitution,  as  affecting  the  more  precise  and  intrinsic  descent, 
guiating  liraita-  which  is  conccivcd  to  Alexander  Lord  Spynie,  Jean  Countess 
of  Angus,  his  wife,  the  longest  liver ^  and  to  the  lawful  heirs 
of  the  body  between  them^  whom  failing,  to  his  heirs-male 

*  See  Mr.  Maiilment's  Pub.  ut  sup,  p.  11. 


IN  SCOTTISH  PEEBAGESy  &C.  679 

whatsoever  ;  for  any  supposed  unfavourable  inference,  would 
obviously  now  be  irrelevant  in  practice,  in  consequence  of  the 
finding,  and  technical  construction  of  *'  heirs^*  in  terms  of  the 
former.  It  was  however  not  unnatural  in  Lord  Alexander,  Not  unnatiirai 
however  clannbh  he  might  be  fancied,  in  this  manner,  to  pre-  coTOUnoL  **' 
fer  his  beloved  and  highly  connected  wife,  whose  death  he 
might  not  always  anticipate,  and  who  actually  survived  him, 
and  his  issue  by  her,  to  his  heirs-male  whatsoever,  including 
the  issue  of  others.  And  what  is  even  stLU  more  important, 
James  VI.  himself,  who,  as  we  have  seen,  took  a  deep  inter* 
est  in  the  Spyoie  grant  to  his  <<  minion,"'  the  same  nobleman, 
might  be  expected  to  enforce  the  previous  descent  out  of  re- 
gard and  affection  to  Countess  Jean,  there,  at  any  rate,  greatly 
&voured,'  and  whom  also,  as  is  transmitted  to  us,  he 
peculiarly  affected  and  courted*'  Nay,  it  would  appear 
evident,  from  the  letters  of  James  I.  alluded  to,  that  the 
Spynie  grant  and  honour  had  especial  reference  to  the 
Countess,  inasmuch  as  it  was  a  further  argument  and  in- 
ducement to  promote  and  secure  her  marriage  with  Lord  Al- 
exander, of  which  his  Majesty  was  the  zealous  projector  and 
main  instrument.^  This  would  naturally  entitle  her,  and  the 
issue  of  it,  to  the  preference  in  question,  in  tbe  eye  of  a  mon- 
arch who  was  by  no  means  disinclined  to  the  female  descent,^ 
and  who  was  vehemently  swayed  by  such  predilections — to 
which,  as  in  the  noted  cases  of  Somerset  and  Buckingham,  &c. 
he  repeatedly  sacrificed  every  consideration,  even  the  advan- 


ce 


'  See  Moysies'  Mem.  first  edit.  p.  143.  And  Sir  James  Melville  says, 
My  Lord  of  Spyny  was  in  sagret  favour  with  his  maiestie,  and  sonic- 
tymes  his  bedfallow,  that  he  was  worthy  to  be  envyed."  (Mem.  last 
Edit.  p.  402.)  See  also  the  Letters  from  the  King  to  him  and  the 
Countess  his  wife,  in  the  Balfour  Collection  referred  to,  p.  654. 

*  From  the  Spynie  liferent  to  her. 

*  This  is  proved  by  a  letter  of  the  King  to  her,  as  above,  (see  p.  654), 
and  by  another  from  his  Majesty  to  the  Countess,  In  the  Balfour  Col* 
lection,  in  regard  to  which  and  its  contents  to  that  eifect.  Lord  Hailes 
remarks,  in  a  paper  in  the  Spynie  Charter-chest,  that  the  King  prose- 
cuted *'  his  scheme-— of  engaging  the  Countess  Dowager  of  Angus  to 
marry  Alexander  Lindsay,  for  which  purpose  he  became  an  eaniest 
suitor  with  the  Countess.*' 

«  Ut  9up.  p.  664,  •  See  p.  174. 


680  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Preeedented  tage  and  public  weal  of  the  nation.  Independently  too,  sub- 
e  ewhere.       stitutions  the  Same  with  Spynie  as  it  stands,  and  as  it  proved, 

obtained  elsewhere  with  us  on  various  occasions.^ 
Remuoing,pre-     But  if  the  previous  reasons  noticed  in  the  resolutions  for 

e^fTftrni'more  ^^j^^^^^g  ^^^  Spynie  claim  in  1785,  based  as  they  are,  be, 
untenable  ratio  with  ovcry  submissiou,  avowodly  irrelevant  and  untenable, — 
field,  &c.*"'  what,  although  even  contrasted  with  them,  is  to  be  thought 
agaiDtt  the       of  this  remaining  argument  by  which  Lord  Mansfield  orally, 

Spynie  claim.  .  -^  u^  ^     u     i         A^  ^  '     ^U 

on  the  frround  m  his  extreme  necessity,  sought  to  back  and  to  sustam  tbem ; 

tioiw  **Sr*^'''  *°^    Lord    Rosslyn,   still  more, — on  the  bare  hypothesis 

attached  to      of  the  constitution  of  the  Spynie  dignity  having  been  by 

"  ^•*^"«-         <c  belting  "  onfyy — "  without  writing  or  mention  of  descent," — 

for  which  ceremony  even  he  appeals  to  no  proof, — and  from 

which  isolated  act,  moreover,  they  sapiently  inculcated  and 

contrived^ — after  this  known  and  approved  mode  of  general 

constitution, — a  fictitious  substitution  in  the  present  instance, 

abstractly  limiting  the  honour  to  heirs*male  of  the  bodp^^  and 

>  Thus,  by  the  regulating  patent,  dated  February  27, 1707,  the  hon- 
ours of  Gray  are  limited  to  John  Gray  of  Crichie,  (afterwards,  in  con- 
sequence, Lord  Gray),  and  to  the  heirs  general  hud  fefnale  of  his  body 
by  Mrs.  Marjory  Gray  his  wife,  only  child  of  the  existing  Patrick 
Lord  Gray,  (upon  whose  resignation  the  grant  proceeded), — and  dur- 
ing her  life  the  heir  of  line  in  apparency,  with  a  subsequent  remain- 
der in  effect,  as  in  Spynie,  to  heirt-male  whatsoever,  (Great  Seal  Re- 
gister.) Neither  are  any  other  heirs-general  of  Patrick  Lord  Gray,  who 
was  still  alive,  the  deceased  Marjory's  father,  or  of  the  said  John  Gray 
of  Crichie,  himself  the  next  heir  independently,  failing  both  their  issue, 
and  Charles  Gray,  the  nobleman's  only  brother,  who  renounced  his 
right,  and  had  none,  contemplated,  or  called.  In  this  case  and  that  of 
Spynie,  in  the  event  of  a  second  marriage  of  the  parties,  which  never 
happened,  a  full  sister  of  a  brother  of  the  first,  would  have  taken,  after 
his  succession  and  failure,  in  exclusion  of  a  half  brother ;  but  such  too 
would  be  according  to  our  common  law.  And  the  honours  and  estates 
of  Rothes  are  settled  in  a  similar  way,  by  a  Royal  charter,  dated  July 
8,  1687,  upon  the  heirs-general  of  the  body,  through  different  remain- 
ders, of  the  disponee,  with  an  ultimate  one  likewise  to  **  heirs  male 
whatsoever."  (Ihid^J  I  might  also  further  allude  to  the  regulating 
conveyances  of  the  honours  and  estates  of  Errol,  and  Napier,  in  1674, 
and  1677,  where  heirs^female  are  in  effect  called  before  heirs  mole 
whatsoever. 

•  See  Mr.  Maidmenfs  recent  Publication  in  respect  to  the  Spynio 
(sse,  (p.  10),  derived  from  authentic  sources,  includin^^  cotemporary 


w 


IN  SCOTTISH  PEERAGES,  &C.  681 

therefore,  to  the  exclusion  not  only  of  the  Spynie  claimant  in 

1785,  but  of  every  other  heir ! !  Here  there  is  adoption  of  a 
former  illusion  that  has  been  already  alluded  to,  and  which 
can  never  be  sufficiently  stigmatized — the  rankest  error  and 
misconception  imaginable.  ^'  Belting,"  or  the  ordinary  **ctiic- 
tura  gladii^**  as  is  notorious  with  us,  and  in  conformity  to 

excerpts  from  Lord  Mansfield's  speech  on  the  occasion.  He  has  there- 
by conferred  an  additional  benefit,  independently  of  the  preceding  in 
the  Sutherland  and  Cassilis  cases,  upon  Peerage  law  ;  and  the  public 
are  thus  again  apprized  of  the  sentiments  of  Lords  Mansfield  and  Ross- 
lyn  in  that  department,  with  which  they  are  brought  into  contact,  and 
Uiereby  supplied  with  the  due  maaus  of  criticism,  and  appreciation. 
Further,  in  a  Memorial  for  counsel  in  the  Spynie  Charter-chest,  in 

1786,  alter  the  Spynie  decision,  formerly  alluded  to,  it  is  set  forth  that 
Lord  Mansfield,  who  akme  spoke  on  the  occasion,  **  stated  that  the  ere- 
ation  muH  have  been  by  Beiting  without  writing,  and  without  mention 
of  descent ;"  and  Messrs.  Spottiswoode  and  Robertson,  solicitors,  (the 
former  the  son  of  Mr.  Spottiswoode,  the  agent  in  the  Spynie  claim, 
and  who  thus  came  to  have  his  papers,)  corroborate  the  above,  in  a 
letter  in  1818  in  the  same  repository,  especially  mentioning  **  it  had 
been  admitted  at  the  Bar,  that  the  charter  1690  related  only  to  lands," 
and  that  Lord  Mansfield  **  considered — ^that  the  honour  must  have  been 
created  by  the  form  of  belting,  without  any  limitation  of  heirs.'*  The 
following  passage  in  the  strange  speech ,  and  virtual  decision  of  Lord 
RoBsIjm  in  the  Glencaim  case  in  1797,  (to  be  afterwards  more  fully 
noticed),  from  the  authentic  copy  in  the  charter-chest  of  the  claimant, 
next  proves  his  Lordship's  concurrent  perpetration  of  the  error.  *'  In 
that  title  (ofSpjmie,  alluding  to  the  relative  claim  in  1786)  several 
charters  and  instruments  were  referred  to  as  creating  the  title,  but  all 
attempts  to  prove  the  limitations  by  collateral  evidence,  (directy  he 
should  have  said),  were  fruitless.  (Why  so?)  The  creation  of  the 
title  was  by  the  form  of  belting ^  after  which  (only)  the  person  so  created 
sat  in  Parliament,  and  his  son  sat  also.  And  this  House  decided  that 
the  presumption  of  Law  earned  the  title  to  heirs  male.  (!)  1  recollect 
not  only  the  speech  of  Lord  Mansfield  upon  this  occasion,  but  also  a 
eonsultation,  I  then  having  a  seat  in  this  House,  had  with  his  Lordship 
previous  to  the  decision.  //*  there  be  any  thing  certain  in  the  Law  of 
Peerage,  it  is  this  presumption  in  favour  of  the  heir  male."  ! !  His 
Lordship's  misrepresentation  noticed,  in  respect  to  the  evidence,  is  in- 
deed glaring ;  and  he  latterly,  most  inflatedly  and  absurdly,  hegs  a 
material  question,  gratuitously  taking  a  falsity  as  granted.  L^al  un- 
derlings, of  course,  and  natural  landers  of  Chancellor  Rosslyn,  chimed 
in  with  the  same  preposterous  doctrine  ;  and  I  have  a  communication, 
— ^by  the  late  Mr.  Chalmer,  the  solicitor, — though  vain  in  self-conceit, 
yet  his  abject  follower,  (see  p.  384,  w,),  wherein  he  discloses,  as  an  im- 


682  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

*'  Belting,'*  or  Criuse  even,  and  to  English  practice,^  was  but  one  of  the 
diT^Tmere'^ > simple,  Symbolical  solemnities  that  composed  the  accessory 
oesforyact,  like  act  of  '^  investiture,"  or  "  inauguration/'  as  it  was  also  styled, 
land.  <>'  A  ^^^  "^^  in  his  dignity,  precisely  analogous  to  seism 

or  infeoffment  in  the  case  of  land.^     It  was  a  mere  mute  in- 

portant  and  valuable  secret, — ^but  for  the  favoured  few, — ^that  he  had 
written  an  <'  Essay**  instructing  that  a  Scottisk  Peerage  in  the  16th 
century  was  "  constituted — not  by  Patenty  charter^  writing^*  but  by 
•*  tnau^ra^ion,"— especially  including  "  beitingy" — ^which  **  was  essen- 
tial, and,  of  itself y  completely  vested  the  dignity  ;*' — tliat  '*  the  King" 
thus  '*  conferred  the  dignity-— wtMotif  writing  ;" — and  that  Lord  Ross- 
lyn,  his  idol,  curiously  **  shewed"  that  there  **  was**  such  "  creation  by 
the  simple  form  of  belting**  The  shewing,  of  a  truth,  must  have  been 
indeed  curious,  inasmuch  as  it  was  truly  novel,  and  utteriy  unrecog- 
nised in  genuine  law,  and  practice. 

'  Cruise  espouses  the  opinion,  *'  that  in  all  those  cases  (of  belting) 
there  was  also  a  charter."  (On  Dig.  p.  67.)  This  was  more  especially 
in  feudal  times  ;  and  in  the  form  of  creation  of  English  noblemen,  the 
diploma  or  patent  was  granted,  independent  of  the  investiture.  (See 
Selden  and  relative  English  authorities,  passim. J 

*  Further,  in  illustration  of  this  analogy  and  great  mutual  apiHroxi- 
mation,  Selden  states,  that  in  England  '* neither"  was  fdneturagladii 
or  belting)  ''  used  only  at  the  investitures  of  a  creationy  (as  at  this  day), 
but  at  those  also  which  were  only  as  liveries,  or  confirmations  of  Earl- 
doms made  Ui  heirs, — Thence  it  is  that  Hoveden  hath  tlie  phrase  of  ac- 
cingere  gladio  Comitatus patris sui** — ^in  reference  to  a  confirmation 
by  Richard  I.  of  the  Earldom  of  Leicester  to  Robert  de  Bretuil,  as  heir 
of  his  father  in  the  same.    (Titles  of  Honour,  p.  560.)    Here  the  heir 
entered,  by  warrant  of  the  Sovereign,  as  in  the  case  of  a  common  fief. 
Investiture  or  inauguration  likewise  obtained  on  all  occasions,  after 
the  manner  of  feudal  practice,— even  in  the  church,  and  spiritual  de- 
partment.   Thus,  on  a  Pagan  being  converted  to  Christianity,  he  was 
said  to  have  been  made,  or  *'  shriev*d  **  Christ's  hnight, — ^that  is,  invest- 
ed in  the  estate  of  Cliristianity,  by  becoming  a  member  of  the  church 
militant,  of  course  upon  due  written  ecclesiastical  warrant,  and  autho- 
rity.   In  1531  Edward  Buchanan  being  '^  elected**  by  the  parishioners, 
parish  clerk  of  Killeam,  Stirlingshire,  he  was  forthwith  invested  in  this 
spiritual  offioe,  (^"  dericatus** ) — ^upon  a  charter  of  confirmation,  the 
18th  of  September  in  that  year,  by  the  Archbishop  of  Glasgow,  con- 
taining a  mandate  or  precept,  for  the  purpose,  directed  to  the  Dean  of 
the  Christianity  of  Lennox,  Curate  of  Killeam,  &c, — "  per  amphore 
aque  henedicte,  et  aspersorii  traditionemy  ut  moris  est."    One  of  the  du- 
ties of  the  situation,  then  discharged  by  persons  of  family  and  condi- 
tion, consisted  in  keeping  these  vessels  of  religion,  which  thus  were 
serviceable,  symbolically,  to  the  induction  ;  and  this,  as  added,  was 


IN  SCOTTISH  PEERAGES,  &C.  683 

gredienty  which,  although  generally  shewing,  like  the  latter,  the  Doe*  not,  a« 
formal  execution  and  completion  of  the  written  grant,  yet,  of  or  illustrate,  in 
iUelf,  80  far  as  regarded  the  other  supposititious  restriction  *"y  ^^y*  ^^^ 

«     ■  _  ,  QCSCWll     Ol     & 

as  to  the  descent^  was  utterly  mept  and  meffectual ; — mdecd  dignity. 
as  much,  in  this  view, — in  denoting,  forsooth,  a  limitation  of 
the  honour  but  to  heirs-male  of  the  body, — as  the  delivery  of 
the  eewth  and  stone  abstractly^  in  the  ordinary  case  of  landed 
investiture.  I'hese  mere  physical,  obtuse  particles  or  sub- 
stances might  have  been  made  by  the  preceding  legal  dignita- 
ries, with  as  much  reason,  miraculously  to  speak,  like  the  fish 
in  the  Arabian  tales,  and  to  proclaim  the  descent  of  the  sub- 
ject in  their  instance,  and  thus  to  enure  in  the  same  way. 
We  might,  with  equal  relevancy  at  leasts  draw  such  cardinal 
result  from  the  other  ceremonies  that  obtained,  besides  "  belt- 
ing," in  the  investiture  of  a  nobleman  in  his  dignity, — ^for  ex- 
ample, from  the  blast  of  the  Herald*s  trumpets,  in  the  nomi- 
nation, proclaimmg  his  style,  &c.^  Nay,  with  greater  still, 
from  the  simple  metal  -  of  which  the  clarions  themselves 
were  composed,  seeing  that,  according  to  the  '*  noble  Science  of 
Arms  and  honours^''  or  of  "  Heraldry,"  **  metals  "  are  of  so- 
vereign virtue  and  efficacy,  and,  however  mute  elsewhere, 
are  here  extremely  eloquent  and  significant,  and,  under  cer- 
tain rules',  indicate  and  express  every  thing  sublunary.  It 
is  extraordinary,  that  in  suchan  age  so  glaringa  hallucination  as 
that  in  question  should  have  ever  been  sported,  and  enter- 
tained. And  here  Lord  Mansfield  again  is  glaringly  in  default.  Lord  Mans^fieid 
— ^recurring  to  his  hacknied  expedient  of  ambidexterity ;  for,  **®'*  *^*"  *^^' 

farther  to  entitle  the  ministrant  to  the  respective  oblations — ^* farina 
daieaii^*  &e.  (Hamilton  of  Bardowie  Charternshest.)  In  the  curious 
instrument  of  Election,  dated  the  previous  antepenult  of  August  1631, 
(ibid.  J  the  names  of  the  Electors,  including  the  Vicar,  women  as  well 
as  men,  (which  is  singular,  the  former  having  then  no  voice  in  law), 
"  generoH — husbandly  et  tenentes  "  are  specially  recited — "  qui  amneg 
parcxihiani — degerunt-^eno  Jure — daudo  eorum  voces,"  &c. — in  the 
parii^li  church,  the  place  of  convocation.  The  above  was  the  only  spi- 
ritual patronage,  parishioners  possessed  witli  us  in  Papal  times,  al- 
though, much  the  same  right  and  procedure,  the  present  Presbyterian 
Scottish  Church  would  now,  for  the  first  time,  extend  to  them  in  res- 
pect to  churcli  preferment,  and  advowsons  at  lai^. 
»  See  pp.  671-2. 


684  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

naiiy  ambidex'  j^  admirable  keeping  with  this  notable  hallucination  of  em- 
blematical  and  virtual,   nay,   actual   descent,   as  fixed  by 
^^  belting"  alone,  he  asserted,  in  his  speech  in  the  Cassilis  case 
in  1762,  <<  that  there  was  no  creation  of  any  Earl,  or  Lord  of 
Direct  refuta-   Parliament,  without  some  charter  or  writing  /"  ^     We  thus, 
rCTwa^^^d^r  *®  repeatedly  happens,  have  only  to  quote  Lord  Mansfield  in 
trine.  order  to  refute  Lord  Mansfield,  in  a  matter  which  I  shall 

however  next  proceed  to  fix  and  illustrate  by  direct  and  spe- 
cificevidence, — though  well  aware  that,  in  so  doing,  I  am,  in 
fact,  unnecessarily  proving  a  truism. 
Instance  (in  re-      In  the  abstract  entry  of  the  constitution  of  the  Earldom 
Earldom  of     T*'  Comitotus^")  of  BothwcU,  in  the  Books  of  Parliament,  un- 
Bothweu.  in     Jor  date  the  17th  of  October  1488,  there  is  the  creation  or 
decoration  of  Patrick  Hepburn  Lord  Hailes  in  the  dignity, 
^^perprecingcionemgladii^  ut  worn  est,"*  thatis,by6efttn^;but 

'  See  Mr.  Maidment's  relative  Pub.  p.  46. 

*  As  I  remarked,  under  the  head  of  our  Consistorial  Law,  (pp.  478-82,) 
so  difierently  from  afterwards,   we  were  lovers  of  forms  and  solem- 
nities on  all  occasions.  The  charter  of  the  Earldom  of  Marr,  conferring 
Constitution       his  first  title,  with  a  specific  limitation,  upon  James  Stewart,  the  noted 
and  imposing     Regent,  (subsequently  exchanged  for  that  of  Murray),  is  dated  Febru- 
&c.  in  fayoar"of  *^y  ^>  \^l*     (Privy  Seal  Register.)     Of  the  %ame  date,  as  we  are  in- 
the    Regent      formed  by  the  minute  and  curious  Pullok  Chronicle,  he  ''  was  maid  " 
^"7fy»  ^^  '*»«  by  his  bountiful  mistress  (by  the  accessory  act  of  creation)  "  Eric  of 
Incise*™  °     ^  ^^  Mar,"  (ibid,  p.  70)  ;  and  the  next  day,  on  occasion  of  his  marriage 
with  Agnes  Keith,  daughter  of  the  Earl  Marshal,  there  was  a  convey- 
ance of  the  parties  by  **  the  haill  nobilitie  "  from  Saint  Giles's  Church, 
where  the  ceremony  obtained,  to  Holyroodhouse.    Then  followed  the 
banquet,  graced  by  the  presence  of  the  benignant,  and  unfortunate 
Mary — ^**  casting  of  fyre  ballis,  fyre  speris,"  (a  fit  emblem,  like  the  fire- 
brand of  Troy,  of  the  Earl's  future  incendiary  contrivances),  horse- 
racing,  &c.  with  the  attendant  form  in  the  solemnities  of  constitutions 
of  honours,  of  creations  of  knights.    (Ibid,)    There  eventually  arose 
too,  a  litigation,  in  1565,  keenly  prosecuted,  between  the  Heralds  and 
Macers,  who  both,  by  ''  ye  auld^  auneient  use  and  custome  wes  present 
— at  ye  marriage— of  (the  said)  James  Lard  Stewart,  Erie  of  Mar,  and 
Agnes  Keyt,"  and  of  course  at  the  creation  of  the  knights,  for  sharing 
of  the  fees,  viz.  '*  auchtscore  pundis  money,  and  ane  blak  welvote 
gowne  lynitt  wyt  satyne,  quharof  (the  engrossing  Lyon  King  of  Arms, 
a  miniature  of  the  sovereign,  and  truly  taking  the  lion's  portion  in 
this  Leonine  transaction)  ressavit  eex  score  lib.,  wyt  ye  said  ffowne;** 
while  **  ye  uyer  XL.  lib,  yerof  (were)  ressavit  be  ye  heraldis,"  to  the 
utter  exclusion  of  tlie  poor  macers,  though  they  figured  "  beirand  yair 


IN  SCOTTISH  PEEEAGES,  &C.  685 

this  plainly  did  not  suffice,  for,  together  with  an  erection  of  lands 
into  a  *'  ComitaJtum^^  it  is  declared  that  he,  ^'  et  sui  heredea 
pro  perpetuoy  futuris  temporibus,  Comites  de  Bothvile  vocen- 
tur."^  Here  Lords  Mansfield  and  Rosslvn  are  at  once  re- 
futed,  for,  in  direct  opposition  to  their  doctrine  in  the  Spynie 
claim,  instead  of  no  concomitants  obtaining  semel  et  aimul, 
with  " belting"  but  that  it  intrinsically  and  exclusively  oper- 
ated per  s€j  to  the  effect  pretended,  there  were^  over  and 
above,  both  formal  constitution  of  the  dignity  otherwise,  and 
explicit  '^  mention  of  (the)  descent ;"  and  further  still,  instead 
of  the  honour  being  only,  by  the  accessory  of  belting,  as  here 
intervened,  restricted  to  heirs-male  of  the  body, — which  they 
bad  inculcated,  it  was  broadly  extended  to  heirs-general.  The 
words  "  ut  moris  est "  are  material  in  proving,  what  however 
every  Scottish  legal  antiquary  must  know,  that — whether  ac- 
tually specified  or  not — the  accessory  of  belting  held,  inter 
alioj  in  the  ceremony  of  every  creation. 

The  Act  of  creation  or  investiture  of  William  Earl  of  An-  Of  the  Marqu*. 
gus,  in  the  Marquisate  of  Douglas,  the  17  th  of  June  1633,  J^  ie|J,3,  °"*^** 
was  by  Charles  I.  sitting  ''  in  his  chaire  of  State,"  in  the  pa- 
lace of  Holyroodhouse.^     It  consisted  in  that  nobleman  be- 
ing brought  in  by  the  Earls  of  Linlithgow  and  Wigton,  and 

tnasis,"  and  claimed  "  yair  equal  pairtis.'*  (Act  and  Decree  Register 
of  the  Supreme  Civil  Court.)  The  names  of  the  knights  created, — all 
persons  of  family,  or  authority, — twelve  in  number,  and  far  more  than 
usual  on  the  ceremony  of  the  creation  of  an  Earl,  cither  through  the 
Queen's  favour,  or  relationship  of  the  party,  are  specially  given  in  the 
process. 

*  Acts  of  Pari,  last  Edit.  vol.  II.  p.  206.  The  form  here  was  fuller 
than  ordinary.  In  some  parts  of  the  Records  of  Parliament  there  are 
very  smnmary  entries,  that  such  a  person  was  created  a  Peer  of 
Parliament ;  this  evidently  merely  relates  to  the  accessory  of  investi- 
ture, or  inauguration,  and  docs  not  constitute  alone  the  substantive 
grant  of  the  honour,  as  has  been  inadvertently  supposed  by  some. 

'  Lord  Hailes  falls  into  a  slight  misapprehension  in  his  remarks  upon 
the  Spynie  case,  (see  Mr.  Maidment's  relative  Pub.  pp.  11, 12),  in  sup- 
posing **  belting  "  only  to  have  been  performed  in  Parliament.  This 
was  not  always  the  fact ;  it  was  often  performed  at  Holyroodhouse,  as 
in  the  present  instance,  and  in  others  to  be  stated  in  the  sequel — on 
the  occasion  of  coronations  too,  as  well  as  elsewhere,  besides  Parlia- 
ments. 


68(5  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

*'  invested  "  by  his  Majesty  ^'  with  the  honourable  ensignes  of 
ane  Marqueis  by  putting  his  robbes  about  him,  girding  him 
with  his  sword  (the  actual  cinctura  or  belting Jy  and  setting  the 
croune  upon  his  head,**  Here  again,  belting  was  but  an  ac- 
cessory ;  and  if  the  previous  legal  dignitaries  had  only  read 
8o  far  from  the  legal  cotemporary  instrument,  instructing 
the  occurrence  and  ceremonies,  from  which  I  quote, — which  is 
still  extant  in  the  Douglas  charter-chest— or  in  some  printed 
historical  narrative,  but  a  summary  notice  of  the  creation  and 
belting  exclusively, — as  will  be  afterwards  in  reality  verified  in 
respect  to  Lord  Rosslyn,  in  the  matter  of  the  Glencairn  Peer- 
age in  1797 — they  would  at  once  have  asserted,  that  the  dig- 
nity, immediately  taken  thereafter  by  the  noble  investee,  was 
only  descendible  to  heirs-male  of  his  body.  But  here,  as  re- 
peatedly on  other  occasions,  they  would  have  grossly  erred ; 
for  it  turns  out  that  there  was  also  a  patent,  dated  the  precede- 
ing  14th  of  June,  not  restricting  the  honour,  as  they  bad 
done  in  their  judicial,  niggardly,  and  unjust  interpretation  of 
the  descent,  but  elongating  it  to  the  former,  *<  suisque  haere- 
dibus  masculis  et  successoribus  in  perpetuum"^ — which  the 
House  of  Lords  would  now  infallibly  interpret  into  *' heirs-male 
whatsoever."  But,  moreover,  it  naturally  happens,  that  the 
act  of  the  Douglas  creation  instructs  that  his  Majesty,  on  the 
occasiouy  Jirst  produced  the  re/*^ patent  as  the  warrant  of  the  in- 
vestiture, which  was  afterwards  delivered  to  the  new  Marquis 
— upon  his  knees, — just  precisely  as  a  superior  or  disponer 
would  have  done  in  a  landed  grant,  when  he  infefts  a  disponee 
in  such  subject,  "  propriis  manibus,*'  by  earth  and  stone.  The 
same  principle  and  form  prevailed  in  honours  and  lands.  To- 
gether with  the  previous  ceremonies  in  the  Douglas  creation, 
and  nomination,  and  declaration  of  the  new  style  of  the  party, 
there  followed  also,  on  this  occasion,  as  in  the  Spynie  instance. 
Of  the  Marqui-  the  creation  of  knights,  to  the  number  of  six.*  In  like  man- 
and  HamUton  "Or,  in  the  iuvestiture  of  George  Earl  of  Huntly  in  the  Mar- 
in 1599.  quisate  of  Huntly  in  1599,  there  were  the  above  ceremonies 
observed,  *^per  gladii  cincturam^  ac  unam  cappam  honoris  et 
dignitatis,  et  circulum  aureum  super  caput,"  as  stated  in  a 

'  Dougltis  Charter-chc^t.  '  Act  of  creation,  ibid. 


IN  SCOTTISH  PEERAGES,  &C.  687 

document  in  the  Gordon  charter-chest, — while,  by  the  fuller  ac* 
count  of  it,  as  well  as  of  the  investiture  of  John  Marquis  of 
Hamilton  at  the  same  time  by  Sir  George  Mackenzie,^  there 
was  the  nomination  of  the  style  by  the  Heralds,  and  the  crea- 
tion respectively  of  four  knights.  And  this  wholly  indepen- 
dent of  the  previous  patents. 

The  illegality,  nay,  manifest  injustice,  however, — already 
perhaps  sufficiently  obvious, — that  would  follow  from  the  mis- 
chievous and  pernicious  rule  of  Lords  Mansfield  and  Rosslyn, 
founded  upon  the  veriest  assumption,  may  be  even  still  more 
exemplified  in  the  next  instances. 

Both  Sir  Nicolas  Throckmorton,  Queen  Elizabeth's  am- stui  more  strik- 
bassador  to  Scotland  at  the  time,  and  Sir  James   Balfour,  [^e  Earidoin  of 
Lord  Lyon  to  Charles  L  have  transmitted  to  us — the  first  in  ^^^»  »"**  ^»- 
an  official  State  Paper,^  and  the  latter  in  his  MSS.  Collections  mannch,  in 
in  the  Advocates*  Library,  that  Henry  Lord  Darnley,  previous  '^^* 
to  bb  marriage  with  Queen  Mary,  was,  in  like  manner,  with 
Alexander  first  Lord  Spynie,  at  Stirling,  the  loth  of  May 
1665,  '*  made  knight — named  Lord  of  Ardmanach,  and  Lord 
of  our  Soveraign  Ladys  Parliament,"  and  **  beltit  Earl  of 
Ross,"  with  creation  of  fourteen  knights,  which,  as  well  as  the 
nomination  as  stated,  always  obtained.     If  nothing  more  had 
transpired, — as  might  have  well  happened,  from  the  loss  of  re- 
cord, and  distance  of  time,  Lords  Mansfield  and  Rosslyn  now 
would  have  clearly  had  no  hesitation,  in  the  possible  event  of 
a  dum — seeing  the  heirs-male  of  the  body  of  the  investee, 
whom  they  would  alone  regard,  have  long  failed — to  adjudge 
the  dignity  to  be  extinct, — thus  to  the  manifest  prejudice  and 
exclusion,  as  is  notorious,  ol  innumerable  female  descendants.^ 
What  can  be  a  clearer  case  they  would  have  predicated,  the 
honour  was  created  or  constituted  by  "  belting^'* — infallibly 
therefore  "  without  writing,  or  mention  of  descent," — "after 
which  the  person  so  created  sat  in  Parliament,  and  his  son  sat 
also."     The  honour  inevitably  was  only  descendible  to  the 
above  heird  ;  the  matter  is  incontestible  ;  for  "  if  there  be  any 
thing  certain  in  the  law  of  Peerage,  it  is  this  presumption  in 

»  Works,  vol.  II.  p.  635. 

■  Pablished  from  the  original  in  the  Cotton  Library,  by  Keith,  in 
hisChurch  History,  (pp.  280-1.)    '  Including  her  present  Majesty,  &c. 


688  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

favour  of  the  heir-male."  '  Such  is  the  '^established  rule  now 
fixed  and  settled/'  &e.  &c.*  This  is  indeed  conclusive^  and  high 
sounding  language; — ^but  here  again  these  authorities  would 
have  signally  erred,  so  that  it  is  vox  et  prater ea  nihily — ^however 
the  same  might  have  enured  to  their  unjust  and  baneful  pur- 
poses ;  for  it  happens,  as  before,  that  the  charter  of  consti- 
tution of  the  said  Earldom  of  Ross  is  extant,  dated  at  Siir^ 
lingy  the  \5th  of  May  1565,  the  very  place  and  day  of  the 
creation^  for  which,  like  the  Douglas  patent  in  1633,  it  must 
have  served  as  the  warrant,  including  the  Barony  of  Ardman- 
ach^  and  an  erection  of  the  whole  into  a  "  Comitatum  et  do- 
minium^'* &c.  and  does  not  so  restrict  them,  but,  on  the  con- 
trary, enforces  the  large  substitution,  '<  hceredibus  de  corpore 
suo  legitime  procreandis,"^  confessedly  to  the  corresponding 
heirs-female,  and  hence  comprehending  the  vast  range  of 
heirs  who  have  been  alluded  to.  This,  after  the  Polwarth  de- 
cision, must  undoubtedly  follow,  <<  haeredibus "  occurring 
more  nakedly  than  in  that  instance,^ — if  there  is  to  be  any 
consistency  at  all  in  Peerage  practice,  and  the  whole  sys- 
tem is  not  to  become  an  absolute  jest  and  dead  letter.  The 
fallacy  of  the  ascribed  import  of  ''  belting  '*  is  thus  reiterated- 
ly  exposed.  There  can  be  no  doubt  to  every  Scottish  legal 
antiquary,  in  the  absence  of  the  contrary,  that  the  honours 
were  constituted  by  the  above  grant  of  the  Comitatus  of  Ross 
and  Baronia  de  Ardmanach.      It  is  certainly  futile  and  pre- 

*  See  pp.  680-1,  including  note, 

■  See  notes  of  Lord  Mansfield's  speech,  ap,  Mr.  Maidment's  Pub., 
Spynie  case,  p.  10. 
'  Great  Seal  Register. 

*  If  it  were  necessary  further  to  elaborate  this  point,  I  might  appeal 
to  the  charter  in  the  above  Record,  dated  25th  of  May  1565,  of  the  pa- 
temal  estates  of  Henry  Lord  Daniley,  in  Dumbartonshire,  to  him  and 
the  "  heirs-wia/e"  of  his  body,  whom  failing,  to"heirs-ma/c"  whatsoever, 
where  these  limitations  are  thus  markedly  opposed  to  that  of  Ross  iu 
his  favour.  There  was  an  evident  reason  why  Ross  and  Ardmanach, 
part  of  the  patrimony  of  the  crown,  and  hence  like  it  previously  de- 
scendible to  heirs-general,  should  still,  on  the  other  hand,  descend  broadly 
in  a  corresponding  way  ;  and  it  so  turned  out,  that  the  heirs  of  Dam- 
ley  in  Ross,  &c.  actually  proved  to  bo  the  Queen's, — while,  in  the  Ross 
charter  in  1565,  there  is,  after  the  limitation  to  "  heirs,**  a  clause  of  re- 
turn to  the  crown. 


IN  SCOTTISH  PEERAGES,  &CC.  689 

posterouB  to  fancy,  that  the  lands  only,  and  not  the  former, 
could  have  been  conveyed.  Indeed,  these  twain  authorities, 
Lords  Mansfield  and  Rosslyn, — these  Gogs  and  Magogs  in 
Peerage  law — have,  in  reality,  admitted  as  much  during  their 
indiscreet  and  dangerous  toying  with  the  term  comitatus — 
although,  like  certain  individuals  on  such  occasions,  they  have 
proved  fickle  and  treacherous,  and  belied,  and  revoked  their 
language  in  a  diflerent  emergency  J  But  if  any  stress  were  to  And  eren  mora 
be  laid  upon  their  vacillating  self-refaied  doctrine,  on  thisj^^^^^^jl'®^*" 
bead,  it  would  be  at  once  obviated  by  this  additional  illustra-in  i565. 
tion,  in  the  case  of  the  previous  august  personage.  The  so- 
lemn act  of  creation,  further,  in  the  same  way,  of  Henry 
Lord  Damley,  now  styled  <^  Erie  of  Ross,  lord  Armanoch,"  as 
**  duk  of  Albany^**  obtained  **  with  greit  magnificence  *'  at 
Holyroodhouse,  the  22d  of  July  1 565  ;^  and  in  more  conclusive 
still,  and  plainer  refutation  of  the  ^^fratrea  gemelli,  lucida 
sidera  "  m  question,  it  is  in  proof  that  there  had  passed  a  royal 
charter,  on  the  20th  of  July  immediately  before,  **  Henrico 
Coraiti  Rossie,  Domino  de  Ardmanach/'  of  **  totum  et  inte- 
grum Ducatum  Albanie, — cum  omnibus  honoribus^  dignitatis 
buSj&c.BdnobilissimumDixcB.t\xs  5to/t<m pertinentibus,"  with  a 
Gmitation,  not  restrictecfly,  tx>  heirs-male  of  the  body,  but  again, 
as  in  the  Ross  charter,  ^*  heredibus  suis  de  corpore  suo  legitime 
procreandis,"'  and  as  indisputably,  to  heir8-;^iiia/e.  I  need 
not  here  repeat  the  same  obvious  remarks  in  regard  to  this  in- 
stance, where  the  literal  insertion  of  the  words  '^  honours  and 
dignities"  agreeably  to  the  practice  that  was  beginning  to  be 
more  usual, — though  not  superseding  the  former,— removes 
any  possible  cavil  as  to  its  application  and  relevancy ;  and  the 

'  See  pp.  603,  259,  &c.  By  the  way,  Selden  says,  that  **  under  the 
words  of  Comitatua  LeycestrisB  " — after  the  middle  of  the  Idth  century, 
"the  dignity  of  Earl  is  here  comprehended.*'  (Titles  of  Honour,  p.  642.) 
So  Lord  Bilansfield,  independently  of  Lord  Rosslyn,  being  thus  also 
imsupported,  and  abandoned  by  high  English  l^;al  authority,  is  left 
quite  a  wreck,  in  his  opinion  at  one  time,  as  to  the  import  of  ^  Oo- 
mitatus"  and  cessation  of  the  territorial  principle  in  1214 ;  for  the  feu- 
dal practice  anciently,  so  far,  was  much  the  same  in  both  kingdoms. 

'  Curious  cotemporary  Pollok  Chronicle,  lately  printed,  p.  TV,  and 

Sir  James  Balfour  the  Lord  Lyon's  atttog.  intimat.  Ad.  Lib. 

*  Great  Seal  Register. 

2x 


692  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

obtained  indifferently  in  every  grant  of  honours,  as  an  ingre- 
Final  condu-   dient  of  the  investiture, — as  much  when  to  heirs-female,  or 
'*  heUinff"       to  heirs-male  whatsoever,  as  to  heirs-male  simply  of  the  body ; 
— to  which  last,  however,  the  fictitious  rule  of  the  former — ^in 
reality  a  mere  bugbear — would,  unnaturally  and  arbitrarily, 
limit  it  after  the  fashion  of  the  bed  of  Procrustes.    It  was,  in- 
deed, per  56,  no  fixed,  or  technical  test  or  criterion  at  all,  as  they 
would  have  it,  of  the  inheritance  and  descent  of  a  dignity.' 
Occasional  to-      One  singular  specialty,  however,  applied  to  the  act  of  in- 
Htary  »peciaiiy  yestituro  or  Creation,  that,  unlike  investiture  in  land,  it  some- 

peculiar    to  7  -»  .  jj.  .         1 

"  belting,"  as  times — ^probably  for  the  purpose  of  securmg  additional  pomp 
fJoffmenr*""  *°^  Solemnity,  or  for  the  convenience  of  the  Sovereign, 
the  sole  fountain  of  honour — preceded  and  anticipated,  at  a 
coronation,  royal  marriage,  or  great  public  occasion,  the  writ- 
ten grant  or  patent,  (which  however  always  past,  and  must  be 
so  presumed  to  have  done,  one  time  or  other,)  as  in  the  instance, 
which  was  shewn,  of  the  dignity  of  Lord  of  the  Isles  in  1476.' 
The  Earldom  of  Caithness,  in  the  Crichtons,  may  also  have 

Parliament,)  the  5th  of  July  1633.  (See  Annals  of  Sir  James  Balfour, 
the  cotemporary  Lord  Lyon,  vol.  IV.  pp.  368-9.)  And  the  previous 
patents,  dated  the  25th  of  May,  and  24th  of  June,  in  the  same  year,  are 
recorded  in  the  Great  Seal  Register.  Prince  Henry,  eldest  son  of 
Curiou«  in.  James  VI.,  at  his  magnificent  christening  in  1594,  in  the  Chapel  Royal 
dom  of  Roth-  '  ^^  SHrlingy  was  invested  in  the  dignity  of  Duke  of  Rothsay,  &C.,  with 
•ay  in  1594.  all  solemnities,  a  ducal  crown  being  placed  on  the  tender  head  of  the 
infant, — who  moreover  was  then  knighted,  and  named  accordingly;  but 
even  supposing  there  had  been  no  recent  vrritten  confirmation  of  the 
dignity,  the  act  would  still  liave  been  warranted  by  its  original  consti- 
tution, certainly  after  that  form,  in  1398,  whereby,  as  has  been  shewn, 
(see  pp.  263-4,)  it  was  expressly  limited  ^*  all  tym  (to)  yekingis  eldeste 
sone,  and  his  air," — teriatimy  and  in  this  precise  way,  '*  Principibus  pri- 
mogenitis  Regum  Scotie."  The  form  of  the  inauguration  in  question 
is  attested  by  an  autograph  account  in  1627,  of  the  previous  Lord 
Lyon,  in  the  Advocates'  Library, — and  by  a  "still  fuller  one,  well  known, 
published  in  the  second  volume  of  Nisbet's  Heraldry,  giving  the  names 
of  the  sixteen  knights  created,  conformably  to  the  constant  form.  (See 
new  Edit.  vol.  II.  under  Exter.  Orn,  p.  151,  et  eeq,)  It  is  further  ob- 
servable, that  by  the  original  cx)nstitution  of  the  dignity  of  Rothsay, 
the  Stewart's  lands,  and  various  others,  were  also  passed,  which  could 
only  be  by  charter  applicable  to  the  whole.  (  See  W  inton,  Macphersoii's 
Edit.  VoLIL  p.  381.) 
»  See  pp.  571-2-3. 


IN  SCOTTISH  PEEttAOES,  &C.  693 

been  in  this  situation.     According  to  the  old  and  curious  instances  of 
Aucbinleck  Chronicle,  in  the  Parliament  in  1452,  "  Sir  George  ChUhnes*  and 
of  Crechtoune  was  beltit  erll  of  Caithness,*'  when,  it  is  added,  winton,  in 
be  **  annext  all  bis  landis  to  ye  erldome  of  Caithnesse/*^     And 
be  got  a  royal  charter,  with  consent  of  Parliament,  dated 
8tb  of  July  1452,  under  the  description  of  George  Crichton 
"  Earl  of  Caithness,"  incorporating  and  uniting,  upon  his  ex- 
press resignation  in  Parliament,  all  his  lands  to  the  ^*  comitatui 
— et  regalitati  **  of  Caithness.    Nor  is  the  limitation,  as  Lords 
Mansfield  and  Rosslyn  would  have  again  maintained,  from 
the  *^  belting^*'  to  heirs-male  of  the  body, — but  immeasurably 
broad,  namely,  to  the  disponee,  *'  et  (zasigndtia  suis."^     The 
investiture  of  the  Earldom  of  Winton,  would  appear,  from  the 
patent,  dated  16th  November  1600,^  to  have  been  at  that  very 
time,  or  rather  immediately  before ;  for  the  King  therein  says, 
that  "dictum  Robertum"  (Dominum  Seton,  the  patentee^) 
"per  cinciuram  gladii^  ac  unius  cappas  honoris,  et  digni- 
tatis, et  circuli  aurei,  circa  caput  positionem,  insignivimus  in" 
vestimmusJ'  In  the  case  of  the  Earldom  of  Arran  however,  that  That  of  Arran, 
has  been  aUuded  to,  the  investiture  was,  as  ordinarily,  subse-  liluartuaoi'ice.^ 
quent ;  for  the  patent,  dated  the  28th  of  October  1581,  has  a 
promise  "r«r6o regie,"  that  this  ''^constitution**  "cum  omnibus 
solemnitaiibus  requisitisy  erit  sine  mora,  perfecta,  et  comple- 
ta."^     The  previous  circumstance,   has  additionally  given 
rise  to  the  palpable  fallacy,  on  the  part  of  Lords  Mansfield 
and  Rosslyn,  and  certain  ignorant  solicitors,  and  legal  sub-  Errors  and  fai- 
ordinates,  that  the  supervening  charter  of  substantive  constitu-  ^^hieh  Lord:; 
tion,  when  bearinff  to  be  but  simply  of  a  "  Comitatus," — at  Jfan^fi**'^  ^'^^ 

i_  •  ji.  1.1  .         «.  ,,  r        Roaslyn,    and 

the  ancient  and  due  time  for  the  opposite  effect,  had  no  refer-  guboiWtnate 
ence  to  the  honours,  but  in  the  hacknied,  preposterous  notion  have  here  uV 
operated  but  as  a  conveyance  of  the  lands.     It  also  explains  len. 
another  thing,   that  has  equally  misled,   and  been  held  by 
tyro  antiquaries,   in   certain  instances,    absolutely   to   rivet 
the  conclusion, — from   the  dignity  necessarily  in  such   a 
case  being  given  to  the  disponee,  in  the  preamble  of  the 

'  Original,  in  the  Auchinleck  Charter-chest. 

'  Great  Seal  Register,  and  Acts  of  Pari,  last  Edit.  vol.  II.  p.  76. 

'  Great  Seal  Register. 

*  Ibid. 


694  INQUIBY  INTO  THE  LAW  AND  PRACTICE 

charter.^     This  was  clearly  owing,  as  indeed  in  part  formerly 

illustrated,   to  its  assumption  immediately  after  the  act  of 

Further    ob-    creation, — ^whensoever  timed, — the  name  and  style  of  the  hon- 

certain    io-     our  in  favour  of  the  party,  and  his  heirs,  being  then  solemnly 

stance.  given^  and  proclaimed  by  the  heralds  by  sound  of  trumpet, 

to  be  in  them, — ^in  virtue  of  the  attendant  form  of  nomination, 

which  is  of  itself  here  conclusive, — as  in  the  instance  of  Spynie 

and  others. 

Pint  trace  of  the     -j^g  cherished  conceit  as  to  the  visionarv,  conclusive  effect  of 

error    at  to  ^  ^    ^  • '  . 

*■  belting."  belting^  in  determining  Peerage  descents,  was  a  rank  and 
baneful  exhalation  that  arose  out  of  the  dregs  of  the  Cassilis 
claim,  where  it  was  ventilated, — then  flatly  rejected, — and 
most  consistently^  as  has  been  seen,  even  at  that  time,  by  Lord 
Mansfield.     It  further  drew  forth  this  pointed  refutation  by 

by  LordMarch.  Lord  Marchmont,  who  spoke  rather  ably  on  the  occasion. 

mont  in  CaMiiii  jje  Stated,  "  that  the  counsel,  in  arguing  in  this  case,  had  been 

case,  in  1 762.  ... 

guilty  of  great  mistakes,  particularly  in  saying  that  a  Peer 
could  be  created  in  Parliament  by  cincture, — the  cincture  was 
merely  a  symbol^ — it  was  a  general  rule,  there  could  be  no 
Peer  without  writ^ — symbols  were  very  ancient,  and  previul- 
ed  in  all  ages ;  they  are  mentioned  in  the  Bible,  in  the  case  of 
swearing."  * 

His  Lordship  then  alluded  to  the  account  by  Sir  George 
Mackenzie,  '^  concerning  Peerage,  and  the  solemnity  of  in- 
vestiture, and  said  that  it  appeared  that  \he  patent  was  always 
carried  (over  and  above),  which  shows  the  patent  then  existed. 
That  it  appeared,  after  the  solemnity  of  investiture  wore  out. 

Instance  of  *  lu  tbe  same  way,  it  is  to  be  presumed,  in  the  valid  charter  of  erection. 
Earldom  of  ^t  the  time,  of  the  dignity  of  the  Earldom  of  Glencaim,  together  with 
fias!^**"''*"  lands,  dated  28th  of  May  1488,  the  grantee,  although  previous- 
ly Lord  Kilmaurs,  and  a  Lord  of  Parliament,  is  called,  at  the  outset  or 
preamble,  ^*  Alexander  Earl  of  Glencaimy  and  Lord  Kilmaurs."  (Ori- 
ginal, produced  in  the  Glencaim  claim  in  1797.)  And  after  such  pre- 
cise form,  the  disponee,  in  the  same  place,  is  styled  ^  James  Lord  of 
Hamilton,"  in  the  charter  of  erection  by  the  King  and  Parliament,  dated 
the  dd  of  July  1445,  of  certain  lands  into  the  loixlship  of  Hamilton, 
with  a  hereditary  lordship  of  Parliament.    (Acts  of  Pari,  last  Edit. 

vol.  II.  p.  69.) 

*  This,  in  r^iard  to  a  mutual  obligation,  has  been  illustrated  also  with 
U«,  under  the  head  of  Consistorial  Law,  (see  p.  482,  n.  1.) 


IN  SCOTTISH  PEERAGES,  &C.  695 

the  modem  patents  contained  a  particular  clause  dispensing 
with  the  ceremony  of  investiture — He  said  there  could  be  no 
investiture  without  writ.  That  the  Lords  of  Erection  were  all 
made  by  charter," '  that  is,  be  it  observed,  undoubtedly  such 
Lords  as  the  first  Lord  Spynie  in  1590,  and  1593, — fully  refute 
ing  Lord  Mansfield's  absurd  finding,  excluding  its  operation  in 
his  case,  and  attributing  all  to  belting, — ^and  who,  as  has  been 
proved,  obtained  his  honour  by  actual  charters  of  erection  in 
these  vears. 

But  vrithal,  apparently  conscious  of  the  weakness  and  fra-  Feeble  and 
gility  of  bis  visionary  pretence  upon  this  head,  Lord  Mans-|^'*pj^*"*LOT'^j 
field — as  in  the  case  of  a  sinkiug  man  and  argument — is  fain  Mansfield  to 
further  to  prop  and  sustain  himself  by  the  mere  agency  of  a  rJ^^a^e  heresj 
straw,  nay,  with  even  less  than  one.  It  seems  that  there "^o"***^^"*^* 
passed  in  1606,  in  the  year  before  his  demise,  a  grant  of  the 
comparatively  insignificant  property  of  Burnside,  to  Alexander 
first  Lord  Spynie,  and  to  his  *'  heirs  male,  and  assignees  what- 
soever,"— nay,  three  grants  of  other  portions  of  lands, — long 
after  that  date,  in  1623,  1624,  and  1631,  in  favour  of  Alexan- 
der second  Lord  Spynie,  his  son,  and  to  the  heirs-male  of  his 
body  ;  and,  by  means  of  these,  he  seeks  to  shake  and  control 
the  regulating  descent  of  the  Spynie  honours,  fully  constituted 
as  far  back  as  1590  and  1593,  in  virtue  of  the  Spynie  charters 
mentioned,  and  to  restrict  it,  Mrov^A  co-operation  with  his  wild 
induction  from  **  belting,"  to  the  latter  heirs.^  In  respect  to 
the  Burnside  grant,  the  noble  disponee  might  have  naturally 
intended  thereby  a  provision  to  his  heirs-male  of  the  body  by 
a  second  marriage,  who,  as  is  evident,  would  have  been  ex- 
cluded from  the  large  Spynie  inheritance  by  a  full  sister  of  a 
son  of  the  first,  who  died  in  possession,  and  by  her  descendants ; 
or  he  might  even,  though  less  probably,  have  meditated  an  al- 
teration in  his  general  succession,  precluded  by  his  sudden 
murder  in  1607,  but  which,  being  truly  an  inchoate  step,  and 
never  completed,  could  not  prejudice  the  original  heirs. 
Heirs-female  too,  might  still  have  been  called,  in  virtue  of  the 
term  '^  assignees  "  in  the  Burnside  limitation.  Neither  can 
the  circumstance  in  question,  at  the  most,  or  in  any  view,  be 

'  See  Mr.  Maidment's  Pub.  in  regard  to  the  Cassilis  case,  pp.  41-2. 
'  See  Mr.  Maidment's  Spynie  Pub.  p.  11. 


696        INQUIRY  INTO  THE  LAW  AND  PBACTICC 

deemed  material, — it  being  by  no  means  unusual  for  a  person 
thus  to  have  his  principal  and  inferior  successions  or  proper- 
ties differently  destined  in  the  16th  century.  Indeed  a  paral- 
lel, though  much  more  striking  instance,  has  been  already 
given,^  in  the  case  of  Henry  Lord  Darnley,  where,  while  the 
Dukedom  of  Albany,  and  the  Earldom  and  extensive  fief  and 
feudal  dependencies  of  Ross  and  Ardmanach  were,  evidently 
in  virtue  of  the  charters  in  1565,^ — ^in  a  corresponding  manner 
with  Spynie — to  go  to  ''  AciW," — heirs-general  of  the  body, 
his  Lennox  or  Dumbartonshire  estates,  e  converso,  by  an- 
other, immediately  after,  in  the  same  year,  stood  limited,  stall 
more  exclusively  than  Burnside,  to  heirs-ma/e  of  the  body, 
whom  failing,  to  heirs-ma/e  whatsoever.^  In  this  last  way,  even 
an  heir-male  collateral  would  exclude  a  daughter;^  and  I 
conceive  he  must  be  a  bold  person  indeed  who  will  maintain 
that  heirs-general  did  not  take  under  the^r^^  charters.  With 
respect  again  to  the  remaining  grants  noticed,  founded  upon 
by  Lord  Mansfield,  from  1623  to  1631,^  nothing  can  be  ima- 
gined more  absurd  and  preposterous,  than  their  adduction, — 
they  being  merely  taken  by  the  second  Lord,  without  refer- 
ence to  Spynie,  or  the  acts  or  conveyances  of  the  first,  and  at 
so  remote  and  unconnected  an  epoch,  when,  inasmuch  cer- 
tainly as  regards  the  honour,  or  the  original  Spynie  succes- 
sion, they  must  be  allowed,  on  all  hands,  to  be  wholly  foreign 
and  irrelevant.* 
nan7  ambkiex-  ^^^  come.  Lord  Mansfield,  we  might  thus  apostrophize  this 
**'•  legal  dignitary : — You  are  here  again  signally  ambidexter — you 

here,  it  turns  out,  actually  do  avail  yourself  of  conveyances 
of  lands — nay,  even  but  of  secondary  ones,  at  any  rate  of  collat- 
eral landed  grants,  expressly  exploded  by  your  associate, 
Lord  Rosslyn,  in  principle,  in  his  view  of  the  Spynie  case,7 — 
to  control,  actually  to  determine  the  descent  of  an  honour !  In- 

1  See  pp.  688-9.        *  Ihid.        •  See  p.  688,  n.  4.         «  See  p.  678. 

'  They  carried  the  acquisitions  of  Carrieston,  dominical  lands  of 
Leyis,  and  Barony  of  Finhaven,  Forfarshire. 

•  This  last  argument  or  rafio,  prudently  reserved  for  mere  passing 
oral  enunciation,  was,  with  others,  it  will  l>e  remarked,  not  ventured 
to  be  included  in  the  Spynie  resolutions  in  1785.    (See.  p.  672.) 

'  See  p.  681,  note. 


IN  SCOTTISH  PEERAGES,  &C.  697 

dependently  of  your  utter  rejection,  absurdly  enough,  of  the  HU  effort  quito 
territorial  rule,  so  very  far  back  as  1214, — how  can  you 4"^  at  wianM 
possibly  reconcile  this  with  your  strikingly  conflicting  and  y^>^*>»  *»»•  i*^ 
peremptory  finding  in  the  Sutherland  case,  ^^  penned "  with 
your  own  band  in  1771,  applicable  even  to  the  14  th  and  15th 
centuries,  when,  differently  from  the  17th,  personal  grants  of 
honours  were  unknown,  and  there  subsisted  a  far  stronger, 
nay,  the  strongest  mutual  connection  and  dependence  between 
them,  and  lands,  that  charters  of  a  *'  comitatuSy'  nay,  further, 
along  with  a  regality,  did  ^^  operate^but  as  conveyances  of 
the  estate  only"  ^  without  having  the  least  relation  to,  or 
any  way  controlling,  or  affecting  the  descent  of  the  dignity  ? 
And  this  although  they  necessarily  involved  the  most  exalted 
dominion  and  pre-eminence,  and  the  very  stamina  and  es- 
sence at  least  of  family  authority  and  representation  I  Such 
was  your  Lordship's  decision,  in  the  fac«  of  a  strong,  and,  as 
is  conceived,  irresistible  argument  to  the  contrary.  Can 
it,  for  a  moment,  be  pretended,— that  such  charters  of  a 
comitatus,  with  a  regality  to  boot,  did  not  then  fall,  ajbrtiori^ 
at  least  to  affect — if  not  to  determine — as  the  best  Scottish 
legal  antiquaries  decisively  maintain,  the  devolution  of  the  re- 
lative honour,  if  the  conveyances  of  the  fief  or  territory  are 
to  be  at  all  listened  to  ; — and  yet  you,  in  this  manner,  by  a 
flagrant  dereliction  of  principle  and  opinion,  now,  on  the  other 
band,  atuch  imperative  importance — as  ruling  the  descent  of 
9k  modem  honour,  to^r  inferior,  irrelevant  grants  of  isolated 
Ikagments  of  lands,  not  connected  with  the  paramount  and 
baronial  fief  of  Spynie,  and  much  less  with  a  comitatus, — 
while  the  Spynie  dignity,  besides,  is  shewn,  even  by  the  Baly- 
sak  charter  in  1621,  to  have  been  admitted  to  be  then  personal 
and  not  territorial !  These  grants,  of  a  truth,  must  weigh  as  a 
mere  drop  in  the  bucket,  compared  with  the  ancient  and 
insuperable  charters  of  a  comitatus  referred  to,  which  you, 
however,  in  precisely  the  present  view,  did  most  consistently^ 
when  it  suited  your  purpose,  scout  and  disregard — upon  what 
grounds,  I  shall  notstop  to  re-expose,  in  the  Sutherland  instance 
io  177  !•     But  pray  ;  if,  as  you  now  think,  the  estates  of  the 

'  See  p.  697,  including  what  precede;:  and  follows. 


698  INQUIRY  INTO  THE  LAW  AND  PEACTICE 

Spynie  family  are  to  be  thus  taken  in  computo  and  into  calcula- 
tion, ought  not  the  actual  descent  of  the  entire  and  princely 
fief  of  Spynie,  after  which  the  honour  was  named, — containing, 
with  a  regality,  so  many  lands  and  patronages,  in  terms  of 
the  relative  grants  of  the  peerage — rather  more   relevant^ 
ly  come  into  play,  and  turn  the  scale  in  favour  of  the  heirs- 
Refuted,  upon  general  ?     They  far  indeed  counterbalance  any  effect  derived 
by  the  Spyi?" *  ^^m  the  petty  irrelevant  charter  of  Burnside  in  1606,  at  the 
ease.  distant  period  of  the  premature  demise  of  the  first  Lord,  which 

precluded  him  from  completing  any  alteration,  if  he  contem- 
plated such,  in  the  main  succession.  Then,  besides,  adopting 
Lord  Mansfield*s  exploded  criterion  in  1771,  but  now  pressed 
into  service,  are  we  to  shut  our  eyes  to  the  confirmation  by 
Patrick  \yood  of  Bony  ton,  dated  July  3,  1601,  of  the  grant, 
the  4th  of  November  1C97,  by  Robert  Guthrie,  of  the  valua^ 
ble  property  of  Kinblathmount  in  Forfarshire,  in  favour  of  the 
first  Lord,  taken  thereby,  precisely  as  in  the  case  of  the 
Spynie  charters,  to  himself  and  the  **/i€iW," — thus  the  heirs- 
general — between  his  Lordship,  and  Jean  Countess  of  Angus, 
his  wife, — with  the  same  ultimate  remainder, — which  is  repeat- 
edly and  uniformly  given,  both  in  the  original  grant  and  con- 
niaring  inaccu-  firmatiou  ?^  And,  by  the  way,  this  moreover  is  another  admir- 
Mansfieid.^'  able  illustration  and  confirmation  of  his  Lordship's  notable 
and  veracious  dictum^  in  his  speech  in  the  Spynie  case,  that 
*^aU"  the  grants  to  the  first  Lord  Spynie  were  to  heirs* 
male ! '  The  above  shows  the  utter  straits  and  misrepresent- 
Hii  doctrine  ations  to  which  the  former  was  driven  in  supporting  the  glar- 
a*/i!rrton^*by  '°8  fautasy  and  anomaly  in  respect  to  belting.  And  after  this 
the  Poiwarth  I  need  not  rccur  to  the  important  Polwarth  decision  in  1835, 
likewise  conclusive  on  this  head,  and  in  direct  refutation  of 
Lord  Mansfield,  where  the  grant  of  the  Barony  of  Polwarth 
in  1690— abstracting  from  every  other  consideration,  as  has 
been  seen,  under  the  natural  ^ma/e  interpretation  assigned  to 
the  term  ^^heirs^'*  (as  in  the  Spynie  grants),  effectually  resisted 
the  counter^  j^i'i'ing  limitation  at  the  time,  and  invariably,  not 
merely  of  a  pendicle  of  land,  but  of  the  whole  baronial  fief  of 
Polwart(i,  and  family  estate,  in  favour  of  heirs-male,  to  the  ut- 

•  Spynie  Charter-chest. 

■  See  Mr.  Maidment*6  Spynie  Pub.  pp.  10,  11. 


IK  SCOTTISH  PEERAGES,  ic.  699 

ter  exclusion  of  females.  The  heirs-female,  iii  this  maDDer» 
iu  virtue  solely  of  the  term  "  heirs," — under  the  most  un- 
toward and  conflicting  circumstances,  in  the  view  in  question 
— on  Lord  Mansfield's  renegade  rule — had,  notwithstanding, 
their  right  at  once  admitted ;  and  if  so,  a  fortiori^  through  the 
merits  of  this  precedent,  as  has  been  made  evident,  that  of  the 
Spynie  heirs-female  should  have  been  still  more  sustained. 

Like  a  special  pleader,  more  than  a  Chief  Justice,  ultimate  His  special 
Judge,  (as  proved,)  or  one  who  discharges  exactum  discrimeriy  pleading  and 
as  he  was  imperatively  bound,  his  Loidship  took  advantage 
of  the  strange  admission  in  1785  by  the  counsel  for  the 
Spynie  claimant,  that  the  charter  1590  was  wholly  impotent 
as  to  the  dignity  ;^  from  whence,  as  the  necessary  result  was, 
that  it  must  have  been  otherwise  constituted,  it  was  therefore 
exclusively,  by  his  now  favourite,  though  formerly  exploded 
method  of  **  belting ;"  and  therefore  descendible  alone  to  heirs- 
male  of  the  body — thus  at  once  solving  the  matter.^  And  this, 
although  he,  at  the  same  time,  coquettishly  allowed  a  curious, 
nondescript,  unintelligible,  and,  in  fact,  «e//^ contradicted  influ- 
ence quo€ui\h%  honour,  to  the  Spynie  act  and  charter  in  1592,  Spynie  act  and 

,,:^^,  ,  .        ,         ,   ,  J       ,  ,      .  J.         charter,  in  1592 

and  1 593,'  on  the  other  hand,  however,  ae  plano^  the  immediate  and  1593. 
organs  of  its  constitution,  and  validating,  and  definitely  imple- 
menting the  true  original,  but  utterly  discarded  grant,  (includ- 
ing the  act  of  creation,)  in  1590 — as  I  fearlessly  maintain,  and 
which  I  conceive  no  modern  lawyer  will  now  be  disposed  to 
dispute.  With  respect  to  the  subsequent  Ballysak  charter  in 
1621,  he  affirms,  "  no  variation  (was)  intended  either  to  lands 
or  honours,'*  and  .there  was  "  no  pretence  (thereby)  for  a  new 
creation.*'  *     Certainly  for  once,  rather  inclining  to  his  Lord- 

*  See  pp.  655-6.  In  accordance  with  this,  the  former  said  in  his 
speech,  ''The  claimant  founded  on  charter  1590  by  petition  and  case, 
now  admitted  (by  his  counsel)  that  this  charter  has  nothing  to  do  with 
Peerage.  No  other  instrument  of  original  constitution  appears,*'  &c. 
(Mr.  Maidment's  Spynie  Pub.  p.  10.) 

■  "  Honour  created  by  belting,  without  writing  or  mention  of  descent." 
C Ibid,  J  He  likewise  so  expressed  himself  in  his  Speech,  as  is  more- 
over proved  by  other  concurrent  authorities. 

*  See  resolutions  in  1785,  p.  672.  It  is  very  clear,  in  any  view,  if  at 
all  listened  to,  that  they,  e  conversOy  refute,  through  their  limitations, 
the  alleged  constructive  effect  of  the  belting. 

*  Mr.  Maidment,  ut  sup,  p.  11. 


700  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

ship,   I   might  admit  that  there  possibly  was  no   inteniion 
(though  there  then,  as  is  evident,  must  have  been,  so  far,  a  cle- 
rical error,  as  is  besides  aliunde  discoverable  in  this  faulty 
conveyance)  to  vary  the  descent  of  the  honour,  and  which  at 
any  rate  such  error  cannot  legally  do — ^however  differently  as 
Lord  Mansfield  to  the  lands  ;^-but  hens  again  too,  he  has  in  this  emergency 
genciet  "tr^hia  ^is  fictitious,  ncver-faiUng,  and  hacknied  explication  by  *'  belt- 
hacknied  expu-  jng,"  in  promptu^  to  the  exclusion  of  every  relevant  consider- 
ing." ation,  by  which,  like  the  sword  of  Alexander  in  the  case  of 
the  Gordian  knot, — or  rather  more  appositely,  like  the  home- 
ly,   and   equally   hacknied, — but   truly   far   more   effective 
and  serviceable  rapier  and  blade  of  Hudibras,' — ^he,  accord* 
ingly, — and  Lord  Rosslyn  after  him, — both  here,  and  else- 
where, relieves  himself  from  all  difficulty,  and  cuts  every  thing 
short. 
The  absurd  ar-      fhc  absurd,  rash,  and  arbitrary  restriction,  by  Lords  Mans- 
tion  by  Lords    field  and  Rosslyu,  of  the  Spynie  honour  to  heirs-male  only  of 

RoTJyn^of'tht  *®  '^^^y*  *'«®  ™°8*  unjustifiably  and  illegally,  barred  the  ob- 
Spynie  honour  yious  rights  of  numerous  other  parties,  in  a  different  charac- 
maie  of  the '*  tor,  who  Were  not  in  the  field,  and  to  whose  interests  the  for- 
body.unjustifia-nier,  eveu  according  to  their  professed  principle  of  general  ex- 
tbe' undoubted  podieucy  and  utility  in  determining  peerage  claims,  were  im- 

of numerous™' P®''*^^^^®'y  bouud  to  have  attended.  Of  these  principally 
other  distin-  Were  the  uoblc  family  of  Balcarras,  the  direct  heirs-male  of  the 
noHn  theTeid!^''^^*^  Earls  of  Crawford,  who  certainly  took,  far  more  irre- 
and  whose  in-   sistibly  indeed  than  the  adjudged  "  Colvil"  collateral  claimant 

terests  should     .      ,  _  J^^  _  ,  T      X  .    .      i  i  . 

have  been  con- m  1723,^  however  even  the  first  might  have  been  construed, 
suited.  under  the  broad  closing  limitation  in  the  definite  Spynie  grants  to 

'^heirs-male  whatsoever," — Alexander  Lord  Spynie,  the  gran- 
tee, being  a  younger  son  of  one  of  the  Earls  alluded  to.  After 
Balcarras,  and  Lindsays  of  Evelick,  &c.  there  moreover  came 

• 

*  "  It  was  a  serviceable  dudgeon, 
Either  for  fighting,  or  for  drudging , 
When  it  had  stabbM,  or  broke  a  head, 
It  could  scrap  trenchers,  or  chip  bread, 
Toast  cheese  or  bacon,  though  it  were. 
To  bait  a  mouse-trap,  'twould  not  care, 
Set  leeks  and  onions,  and  wforthy**  &c.  &c. 

■  See  p.  364,  et  »eq. 


IN  SCOTTISU  PEERAQ£S»  &iC.  701 

the  ancient  Lord  Lindsays  of  the  Byres,  Earls  of  Lindsay, 
forming  the  later  house  of  Crawford,  with  their  cadets, 
also  male  heirs  of  the  old  Crawford  stock,  and  others  su- 
perflaous  here  to  specify,  but  whose  existence,  notorious  to 
most  persons  at  least,  ought  ever  legally  to  have  precluded 
the  unauthoHzed  conclusion  in  question,  to  the  effect  of  extin- 
goishing  the  Spynie  honour. — But,  by  the  way,  the  Colvil 
decision  in  1 723  has  nearly  escaped  me,  which  the  preceding 
legal  dignitaries  either  knew,  or  ought  to  have  known.  It  Remarkable 
comes  here  indeed  most  righteously  into  play,  and  is  directly  j"*®'^^^.^***^™ 
in  the  face  of,  and  impugns,  that  of  Spynie, — for  there,  a  single  thakes  and  re- 
charter  of  the  ecclesiastical  lands  or  patrimony  of  the  Abbacy  de'cUion.^^'^"** 
of  Culross  in  1609,  erecting  them  into  a  temporal  Barony, 
like  the  Spynie  conveyance  in  1590,  or  1593,  with  the  tide 
of  **  Lord  Culross,"  was  de  piano  adjudged,  per  se^  to  be  ef- 
fectual, and,  however  strangely,  as  has  been  shewn — and  suf* 
ficiently  laiden,  as  it  was  already — by  some  miraculous  agency, 
to  have  the  power  of  transmitting  a  distinct  extraneous 
dignity  which  it  did  not  own,  or  bear  in  gremio.  And  this, 
moreover,  under  unfavourable  and  concussing  circumstances 
before  familiar,^  and  to  be  further,  in  the  sequel,  in  respect  to 
its  exclusive  and  ostensible  honour  of  '^  Culross;" — although 
no  relative  act  of  creation  and  belting  obtained  in  the  case  of 
the  latter — no  sitting,  accordingly,  in  Parliament — no  express 
and  special  Parliamentary  ratification  of  the  Peerage — no  ad- 
mission or  matriculation  of  its  constitution  by  the  Lord  Lyon 
— no  pro6f,  in  fine,  of  such  individual  grant — which  the  law 
is  ordinarily  disposed  to  question,  and  regard  with  jealousy,' 
ever,  so  far,  having  been  properly  recognised  and  acted  upon  ; 
— all  which  important  requisites  and  ingredients,  however, — 
including  besides  the  royal  promise  and  warrant,  as  to  the 
grant  of  the  actual  dignity  at  the  outset  in  1589,  with  the  se- 
cond Parliamentary  reservation  in  regard  to  the  fief  in  1 593,^ —  , 
e  converso^  did  favourably  hold  in  the  a£Srmative  in  the  Spynie 
instance,— while  a  long  non-assumption,  previous  to  1723,  the 
date  of  the  decision,  could  be  equally  objected  to  the  other. 
With  submission,  it  seems  impossible  ever  to  admit  the  Colvil 

*  See  ibid. 

'  See  pp.  238,  H  nq.  and  pp.  245-6-7-8-9.  '  See  p.  060. 


702  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

iaip<»sn>ie  to  decision  (as  it  has  been  styled,)  without  admitting  a  fortiori f 
mer.  without  —  as  regards  the  matter  of  constitution  at  least,  in  virtue  of 
Spyn^  dlimf  ^^^  charters  1690,  1593,  &c.  with  the  ratification,  &c.  thepre- 
&t  least,  fo  far  ponderating  excellence  of  the  Spynie  claim,  the  just  effect  and 
matteTof'coD-  i^port  of  which  grants,  nevertheless,  Lords  Mansfield  and 
•mution.  Rosslyn  have  utterly  disregarded,  and  at  once  sacrificed  ta 

their  conceit  of  "  belting" — ^the  most  visionary  and  preposter- 
ous imaginable.  I  further  conceive,  we  may  certainly  conclude, 
that  if  the  Colvil — or  Culross  claim,  as  it  should  have  been, 
— of  the  true  merits  of  which  they  were  probably  ignorant,  had 
come  originally  before  them,  they  would  have  resolved,  in  the 
first  place,  that  as  the  mere  and  all  deciding  act  of  creation, 
or  "  belting** — as  they  would  have  viewed  it,  in  1 604,'  of  the  indis- 
putable Baronyof*'Co/e;i7pf  Culross,"  (wrongly  and  irrelevant* 
ly  claimed  and  awarded  in  1723,  instead  of  that  of  ^'  Culross" 
which  was  alone  contained  in  the  grant  founded  on),  is  but 
simply  transmitted  to  us,^  it  was  thereby  exclusively  descendi- 
ble to  heirs-male  of  the  body,  and  consequently  extinct,  the 
claimant  being  only  an  heir-male  collateral;  and  secondly, — in- 
evitably after  the  fashion  in  Spynie, — that  the  said  grant  or 
charter  of  the  Barony  of  *'  Culross,"  (alone)  so  founded  up- 
on, in  1609, — ^being  correspondent  in  terms,  as  obvious,  with 
those  of  Spynie  in  1590,  and  1593,  in  the  hacknied  and  pros- 
tituted language  of  Lord  Mansfield,  as  it  may  be  held,  did 
not  affect  the  title,  but  operated  as  a  conveyance  *'of  the  estate 

LordtM   »fieid®"'y*"     ^^  ^^'®  manner,  the  claimant  being  placed  between 
and  Rotiiiyn,     two  fircs,  would  have  had  as  little  right  to  the  latter  evidently,  as 
cipTesl'^wouw"  ^  *^®  former.     I  need  hardly  here  repeat,  that  according  to 
hate  rejected     English  technical  accuracy,  independent  of  the  other  consider- 
in  1723.         'ations,  and  proof, — as  was  instructed,^  the  Barony  of  "  Col- 
vile  of  Culross"  is  clearly  different  from  that  of  *<  Culross." 
This  is  moreover  fully  fixed  and  illustrated  by  our  practice, 
in  the  case  of  the  two  baronies  of  "  Polwarth,"  and  "  Pol- 
warth  of  Polwarth,*'  that  may  be  held  still  nearer  to  approxi- 
mate in  the  description,  and  constituted,  in  like  manner,  by 

'  Of  course,  there  has  been  then  a  previous  relative  written  grant, 
now  lost. 
'  See  pp.  866,  et  9eq. 
■  See  p.  867^  and  note  2. 


IN  SCOTTISH  PEERAGES,  6lC.  70S 

two  separate  grants  in  1690,  and  1697,^  but  which  indisput- 
ably are  distinct,  and  now  descend  in  terms  of  their  limita- 
tions,— as  admitted  on  all  hands — the  one  to  heirs-female  of 
the  body,  and  the  other  to  heirs-male  whatsoever. 

But  I  have  not  even  yet  done  with  the  Colvil  or  Culross  Further,  and 
case, — the  contrast  between  which,  and  that  of  Spynie,  ~  still  JrMt"b*twee"n 
much  indeed  to  the  advantage  of  the  latter, — will  be  even  *J*«  .^••®*  ^^ 

*i_  111  1.    1  1-  Vnw.  I       -Colvil  and  Spy- 

further  palpable  on  a  little  more  prpbmg.     On  the  9  th  of  nte  much  to 

October  1616,  as  out  of  distrust,  and  justly  so,  of  the  Culross  j^^f^j^'^^jJJJ'^'^^^^^ 
charter  in  1609,  there  past,  upon  the  resignation  of  James 
"  Lord  Cohil  of  Culross,"  (thus  the  constant  style,  and  not 
that  of  "  Culross"  simply)^  a  charter  of  the  barony  and  es- 
tate of  Culross,  in  favour  of  James,  son  of  Robert  <*  Mas- 
ter of  Colvil^'*  (not ''  of  Culross,")  his  grandson,  and  his  heirs- 
male,'  only  under  the  easchet,  as  it  proves,  and  hence  not 
available  in  any  view,  quoad  the  dignity.     But  at  length,  in 
1617,  and  not  till  then,  there  was  a  brief  summary  parlia- 
mentary ratification,  not  however  to  be  compared,  in  weight,  or 
authority,  with  the  express  Spynie  Act  in  1592,  of  the  previous 
Culross  charter  in  1609,  taking  no  notice  of  the  interloping 
grant  in  1616,  and  again  so  different  from  what  had  obtained 
in  the  Spynie  instance,  without  at  all  mentioning  the  honour. 
And  this  ratification,  besides,  lets  out  this  important  fact,  that 
the  patrimony  of  Culross  had  been  previously  annexed  to  the 
croum^ — so  in  law  was  not  before  capable  of  being  granted  to 
any  one  ; — to  remedy  which  fatal  objection  therefore,  and,  for  Supposed  re- 
the  first  time,  legally  to  disannex — the  ratification,  in   1617,  ross  grant  in 
for  such  identical  purpose,  was  naturally  resorted  to.^     It  thus  in^^J723"  nun**^ 
happens, — neither  the  fact  of  the  annexation,  in  virtue  of  the  and  inept,  and 
Act  1587,  being  noticed  in  the  Colvil  claim,  and  decision  inJroT'o?  Houia 
1723,  and  the  salving  Act,  as  little  founded  upon,  or  referred  to  «>f  P««™- 

*  See  pp.  673-4.  '  Great  Seal  Register. 

»  Acts  of  Pari,  last  Edit.  vol.  IV.  p.  669.  The  Act, "  be  the  tennour 
heiroff,  annulles,  dissolvis,  and  infringis  the  said  general  annexatioun, 
(by  Act  1587,)  of  the  Kirklandis  of  this  Realme  to  the  croune^  in  swa 
far  as  it  may  be  extendit  to  the  temporalitie  of  the  said  Abbacie  of  Cul- 
rofl."  The  party  here,  as  constantly,  is  styled  ^'  James  Lord  Co/t»7/," 
or  **  Colvili  of  Culros,"  An  unavailing  attempt,  as  is  extremely  obvious, 
had  bee^i  made,  d$  facto,  with  the  same  view,  in  the  charter  1609. 


704  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

in  either, — but  only  the,  per  se^  iinf>otent  charter  in  1609,  as 

their  exclusive  warrant,  that  the  House  of  Peers  not  only  then 

granted  an  honour,  in  terms  of  a  charter  that  did  not  contain 

it,^  but  of  one  which,  so  viewed,  and  situated,  was  clearly,  from 

the  flaw  attaching  to  it,  by  reason  of  the  annexation,   a 

legal  nonentity,  and  dead  letter.'     But  again,  as  in  tiie  special 

effective  Spynie  ratification  in  1592, — so  closely  following, 

and  directly  curing  the  corresponding  defect  in  the  Spynie 

Other  deflden-^'^*''^'^  ^^  1590, — the  Culross  ratification,  further,  ^*ordanis 

cy  in  CuiroM    ane  new  infeftment  to  be  maid  and  gevin  off  the  samen^  (the 

truted^wlth'  BoTOfiy  of  Culross,)  to  ye  said  James  Lord  ColviU  of  Cul- 

Spynie  caie,    ^ Qgg  (^jg  ^iris  maill  and  successoures  heretablie,  to  be  extendit 

which  ii  both     .        '     .  .  ,       „      i  ..• 

here,  and  else-  in  maist  ample  form.  With  all  clauses  necessar ;  ' — yet  it 
bit**  i*nd^»Tronff-  actually  docs  happen,  that  this  order  and  enactment,  so  salu- 
er.  tary  and  incumbent  to  vest  a  clear  unexceptionable  title — 

necessarily  through  a  new  charter  under  the  sign  manual,  and 
infeoffment, — while  such  identical  one,  to  that  precise  purport 
and  effect,  as  we  have  seen,^  wets  instantly  resorted  to  and  fully 
implemented  in  the  Spynie  instance,  (in  1593,) — never  re- 
ceived the  slightest  obedience  or  operation — so  far  as  I  can 
find,  in  that  of  Culross.'  Here  then  was  another  deficiency, 
— the  new  salving  Culross  conveyance,  grounded  upon  abso- 
lute necessity,  being  in  a  manner  still  inchoate,  and  never 
adequately  and  technically  perfected,  while,  I  repeat,  the 
direct  reverse  triumphantly  obtained  in  the  other ; — so  that  I 
may  conclude,  the  Spynie  case  both  here,  and  obviously  else- 
where, in  the  view  taken,  is  in  a  far  more  favourable  predica- 
ment, and  infinitely  transcends  the  case  of  <'  Culross  '* — I  beg 
pardon,  I  should  say,  in  conformity  to  the  Lords'  decision  in 
1723,«^though  I  know  not  why— that  of  "  Colvil  of  Cul- 

■ 

^  See  p.  864,  et  seq, 

•  Wallace,  who  ought  to  have  known  better,  in  the  same  way  held 
the  charter  alone  completely  to  suffice,  and  to  justify  the  anomalous 
Colvil  decision,  which,  in  his  Treatise  upon  Peerages,  published  in  1785, 
(see  pp.  371-2,)  he  represents  as  wholly  warranted  by  it,  without 
noticing  any  other  grant  or  adminicle. 

'  Acts,  ut  sup.  *'  See  pp.  669-60. 

*  I  have  stated  all  I  can  discover  regarding  the  curious  Culross  case. 
If  I  am  guilty,  inadvertently,  of  any  error  or  misconception,  I  need  not 
add,  1  shall  always  be  most  happy  to  admit  and  amend  it. 

'  See  also  report  of  the  case^  p.  354,  ut  mp. 


IN  SCOTTISH  PEERAGES,  &C.  705 

ro88.*'  '  Nevertheless,  however,  in  these  circumstances, 
the  solitary  inefficient  charter, — as  standing  alone  merely, — in 
1609,  was  found,  in  the  irrelevant  and  bizarre  manner  stated, 
JuUy  to  operate  as  a  Peerage  constitution, — although  such  iden- 
tical effect  was  utterly  denied  by  Lords  Mansfield  and  Rosslyn, 
in  1785,  to  the  far  preponderating,  and  unexceptionable  title, 
in  virtue  of  the  Spynie  charters  in  1590  and  1593,  with  the 
relative  accessory  of  creation,  backed  by  the  express  Parlia- 
mentary ratification  in  1592,  actually  then  adduced^ — ^not  to 
allude  to  the  repeated  feudal  investitures  in  1590  and  1593  I  ^ 
With  submission,  I  conceive,  a  piece  of  actual  injustice  is  ex- 

*  It  may  be  also  observed,  that  the  title  of  Spynie  continued  on  the 
Union  Roll,  while  that  of  Colvill  had  been  removed  from  thence,  and 
was  only  added  to  it  in  1723. 

'  The  early  Culross  charter  in  1689  (see  p.  865)  is  clearly  quite  out 
of  the  question.  Among  the  other  objections  also  to  its  validity, — 
while  no  act  of  creation,  sitting  in  Parliament,  possession,  or  even  as- 
mmption  of  the  dignity  followed,  as  in  the  instance  of  Spynie,  after,  and 
in  virtue  of  the  charter  6th  of  May  1590 — evidently,  as  applied  like- 
wise in  the  case  of  certain  grants  of  the  kind,  from  peculiar  intrinsic 
nullity,  (see  p.  366,  et  seq.) — there  was  the  conflicting  interest  and 
title  **  hereditarie"  in  the  patrimony  conveyed — again  independent  of  its 
previous  annexation  to  the  crown  by  Act  1687 — in  the  person  of  John 
Colvil,  "  Commendator  of  Culross,"  upon  whose  indispensable  resig- 
nation, the  charter  1609  at  length  proceeded  and  passed.  It  is  moreover 
proved  by  the  Record  of  the  Great  Seal,  that  Alexander  Colvil, "  Commen- 
dator "  likewise,  the  father  of  the  preceding  John,  the  Commendator, — 
alive  in  1689,  and  years  after,  had,  in  1566,  obtained  the  whole  benefice 
of  the  Abbacy  of  Culross  for  life.  This  was  of  itself  another  bar,  and 
together,  with  the  title  in  the  son,  before  its  voluntary  surrender  as 
stated,  further  excluded,  inter  pares,  or  subjects,  at  common  law,  the 
l^al  efficacy  of  the  conveyance  in  1689  to  the  disponce,  a  distinct 
Colvil.  In  these  circumstances  the  Culross  charter  1689  never  can  be 
put  into  competition  with  that  of  Spynie  in  1690 — ^where,  besides,  no 
such  oonfliction  of  titles,  but  one  only  existed,  the  defect  in  the  latter 
instance  from  the  annexation,  being  fully  removed  by  the  Parliamen- 
tary ratification  in  1692,  coupled  with  the  charter  1593 ; — ^but  the  same 
in  the  previous  Culross  charter  never  was.  It  was  legally,  on  this,  and 
the  other  accounts,  inept  and  invalid  from  its  birth,  and  ever  after- 
wards ;  while  I  need  not  add,  that  the  act  of  creation  of  the  Barony  of 
**Co/ri/  of  Culross,"  in  1604,  (see  p.  360  and  what  precedes  there,) 
could  thus,  independently  of  relating  to  another  dignity,  and  grant  of 
Peerage — ^as  by  the  striking  description — have  no  influence  upon,  or 
connection  with  the  charter  1689. 

2y 


706  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

emplified  in  the  Spynie  instance,  solely  to  be  attributed,  like 
other  objectionable  precedents  and  decisions  noticed,  to  the 
rashness,  bigotry,  and  legal  ignorance  of  the  preceding  judicial 
authorities, — ^who  ought  to  have  been  fully  aware  of  the  Col- 
yil  merits,  ought  thoroughly  to  have  explored  the  general 
subject, — and  taken  the  various  circumstances  seriatim  into 
consideration, — ^in  order,  in  their  imperative  bounden  duty 
and  capacity,  to  a  matured,  consistent,  and  uniform  system — 
instead  of  the  perplexing  chaos,  and  incertitude  into  which 
they  have  plunged  our  Peerage  law,  here,  as  well  as  else- 
'  where, — and  the  anomalous,  irreconcilable,  and  revolting  situa- 
tion of  the  two  dignities  in  question.  And  I  especially  again 
ConciutioDs.  contend — whatever  may  obtain  in  other  respects,  in  regard 
to  interpretating  the  Spynie  limitation,  whether  justly,  by  the 
success  of  the  Polwarth  decision,  conclusive  as  it  is  in  prac- 
tice,' or  not — that  the  rationes  decidendi  in  1785,  grounded 
upon  belting^  and  the  asserted  noit-operation  of  the  Spynie 
conveyances  in  1590, 1592,  and  1593,  qua  grants  of  Peeragej 
never  can  in  reality  stand  in  law  ; — but  must  ever  be  consi- 
dered a  professional  stigma  and  reproach  to  Lords  Mansfield 
and  Rosslyn.  Neither  can  we  shut  our  eyes  to  the  certain, 
manifest  injustice,  as  has  b%en  stated,  done  again,  necessarily 
at  the  same  time,  to  numerous  undoubted  Spynie  heirs,  pre- 


^  It  was  obviously,  at  least,  ^iteaa  relevant  in  the  Polwarth  case,  to 
look,  for  explanation  of  the  term  '^  heirs,"  to  the  Marchmont  and  *'  Pol- 
warth of  Polwarth  "  patents  in  1697,  granted  to  the  actual  original  dis- 
ponee  in  1690,  and  his  heirs-male  exclusively — grounded  upon  the  con- 
sideration of  intention,  which,  however,  was  not  done, — as  in  the 
Spynie  case,  with  the  same  view,  to  the  inept  Ballysak  charter  in  1621, 
not  in  favour  of  such  material  party,  but  at  a  remote  and  unconnected 
period  indeed,  only  of  his  successor. — A  propos  to  the  charter  1621,  osten- 
siblyy  but  ineptly  carrying  an  honour,  (see  pp.  670-1),  a  noted  Act  of 
the  Scottish  Parliament  in  1695  for  a  company  to  trade  to  Africa,  (Acts, 
last  Edit.  vol.  IX.  p.  377,)  with  a  royal  charter  in  terms  of  it,  was  held 
legally  inefiectual,  because  **  without  a  warrant  from  the  crown"  (See 
Dalrymple's  Mem.  of  Great  Brit.  p.  96,  and  Vernon's  Letters,  recently 
published,  vol.  II.  p.  303.)  This  confirms  what  I  have  said  as  to  such 
Acts  and  grants — of  a  higher  kind — having  unduly  passeil,  without  real 
adhibition  of  the  requisite  royal  authority,  during  the  union  of  the 
crowns. 


IN  SCOTTISH  PEERAGES,  &C.  707 

ferable  to  those  in  the  yet  favoured  Colvil  instance, — who  were 
noways  in  the  field.^ 

*  The  Spynie  case  is  the  last  of  the  kind  that  Lord  Mansfield  (for- 
tunately) is  understood  to  have  been  instrumental  in  deciding.  He 
died  in  1793,  and  thus  left  a  field  for  which  he  was  ill  qualified,  and 
into  which  he  should  properly  have  never  trespassed.  The  very  un- 
favonreble  impression  we  derive  of  him  from  Andrew  Stuart's  cele- 
brated Letters  in  the  Douglas  cause,  as  to  his  inconsistency,  unsound- 
ness, vacillation  or  obliquity,  if  I  may  use  the  term,  in  matters  of 
evidence,  and  marked  want  of  fairness,  just  analysis,  and  discrimi- 
nation in  balancing  their  merits,  strikes  me,  I  regret,  as  tested  in  his 
Peerage  procedure,  to  have  been  true.  His  friend  Butler  even  inti- 
mates, what  would  seem  to  have  been  just,  that  it  was  ^*  argued,  that  his 
knowledge  of  the  law  was  by  no  means  profound^  and  that  his  great  pro- 
feasional  eminence  was  owing  mare  to  his  oratory  than  to  his  knowledge. 
This  (he^adds)  was  an  early  charge  against  him.  Mr  Pope  alludes 
to  it,"  &c.  (See  Hor.  Jurid.  Subseciv.  pp.  222-3.)  To  the  tender 
merciesy  as  has  been  seen,  therefore,  of  a  shallow  lawyer  and  sciolist, 
was  the  arbitrament  of  our  knotty  Peerage  law  committed.  His  Lord- 
ship's motley  and  tattered  Peerage  mantle,  but  a  flimsy  covering  and 
subterfuge  indeed  for  glaring  errors,  descended  to  Lord  Rosslyn,  who 
hugged  himself  in  it,  to  the  disappointment  of  many  who  expected 
better  things,  with  an  amelioration  of  that  law  and  doctrine,  which,  as 
6uperfieially  and  fictitiously  modelled  by  his  predecessor,  he  is  repeat- 
edXjf  stated,  by  unexceptionable  authority,  at  one  time  to  have  con- 
demned. Such  returns  did  we  experience  from  these  fratres  gemeliif 
these  Seoii  Anglioati^  the  last  formerly  with  us  but  a  bad  epithet  (what- 
ever it  may  be  now),  and  so  used  in  our  Chronicles  ;  but  unfortunately 
verified,  in  such  sense,  with  every  et  tu  Brute  consideration  in  their  in- 
stance. And  yet,  as  Sir  Adam  Fergusson,  a  great  lawyer  in  his  time, 
said.  Lord  Mansfield's  law  is  "  every  day  "  extolled,  and  *'  rung  in  our 
ears,"  though,  he  pertinently  adds,  "  by  those  who  know  nothing  of 
it ;"  while  Chalmer,  the  solicitor, — ^it  must,  however,  be  confessed,  but  a 
poor  authority  and  discriminator, — while  idolizing  Lord  Rosslyn,  af- 
firms that  he  *'  knew  more  of  such  matters  than  any  man."  (See  p.  384, 
iwte  Q,J  As  if  this,  forsooth,  truly  obtained,  and  either  of  the  above 
were  at  all  aufait  therein,  or  for  a  moment  could  be  compared  with 
the  late  Lord  Redesdale,  in  point  of  indefatigable,  strict,  and  recondite 
investigation  into  the  proper  sources,  with  due  and  enlarged  illustra- 
tion,— who  here,  as  well  as  other  English  lawyers  in  the  peerage  de- 
partment in  the  sister  kingdom, — whatever  peculiar  and  questionable 
opinions  they  may  chance  to  entertain  in  some  respects — and  who  do 
not  ? — liave  so  eminently  and  laudably  distinguished  themselves.  The 
late  Mr.  Adam,  an  English  peerage  lawyer,  well  describes  the  noted 
Peerage  Reports  of  the  Lords  Committees,  in  which  Lord  Redesdale 
at  Icai^t  largely  shared,  as  exhibiting   "  the  most  elaborate  research, 


708  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Law  of  For.  l^he  English  law  of  high  treason  being  extended  to  Scot- 
LVmicMi  Holi''*°d,---inroomoftheold, — by  Act  of  Queen  Anne  1708,  c.2l, 
our.,  after  the  §  1    2,  &c — to  take  effect  from  the  ensuing  1st  of  July  1709, 

Union,  since  1st .      -  „  .   „  -   .  .        .  ^  -> 

uf  July  nop.  It  falls  especially  to  claim  attention  in  reference  to  our  Peer- 
ages. And  I  accordingly  shall  next  proceed  to  touch  upon, 
and  discuss,  so  far  as  I  may  be  enabled,  this  interesting  and 
most  important  subject,  in  its  essential  and  leading  features. 
Scottish  dignities  coming  thus  to  be  regulated  in  such  respect, 
by  a  new,  and  in  a  great  measure,  foreign  Code,'  the  matter 
is  obviously  one  that  may,  in  the  main,  be  best  appreciated  and 

Tiiat  of  £ng.  settled  by  English  lawyers, — although,  at  the  same  time,  it 

land  in  the    ^Quld  follow,  that  the  nature  and  genius  of  the  Scottish  under- 
main,  though  .         ^  .    ®  .  ,  J. 
M>mewhat  qua-  staiiciing  and  practicc,  in  certain  points  regarding  conveyance 

lified.  j^g^  ^Q  J  |.jj^  peculiar  effect  of  our  "  substitutions,*'  is  not  to  be 

overlooked,  but,  on  the  contrary,  consulted  in  the  application. 
Hence  a  kind  of  modified  law,  though  still  upon  English  prin- 

Opinion  penet  *^^  *^®  Tdost  deep  examination,  of  the  principles  of  law  applicable  to 
the  author.  that  subject."  This  is  indeed  far  better  than  the  superficiality,  court- 
ly, and  at  the  same  time  transparent  sophistry,  nay  palpable  errors  and 
misrepresentations,  suicidal  contradictions,  &c.  as  have  been  evinced,  of 
Lords  Mansfield  and  Rosslyn,  including  their  mutable,  convenient  ar- 
gument of  "  expediency  "  withal,  (of  which  more  hereafter),  equiva- 
lent to  arbitrary  legal  change  and  innovation — and  by  which  they  at- 
tempt to  back  out  of  straits  and  difficulties, — for  the  most  part  of 
their  own  creating.  But,  in  lieu  thereof,  full,  rigid,  and  inexorable 
scrutiny,  in  matters  of  fact  and  precedent,  is  what  we  ante  omnia  de- 
siderate, especially  owing  to  the  darkness  that  environs  us  by  the  com- 
parative destitution  of  our  records,  and  the  flattering  fables,  and  illu- 
sions— ^with  not  a  little  of  the  na^tono/ tendency,  ascribed  by  Dr.  John- 
son,— ^so  copiously  palmed  in  our  details — even  of  law,  as  well  as  of  his- 
tory, public  and  private, — ^upon  whatever  side  it  may  be  directed.  In 
the  same  way,  with  bitter  and  repulsive  fruits,  and  ingredients,  pain- 
ful and  irksome,  lucubrations  of  the  kind  often  produce  wholesome 
and  excellent  results — in  this  instance  by  the  expiscation  of  truth  ;  and 
from  the  zeal  and  labours  of  a  M*Crie, — in  the  matter  of  history — even 
a  staunch  Episcopalian  or  Papist  may  glean  information  and  arguments 
serviceable  to  his  own  views  in  civil  and  religious  polity, — and  vice 
versa.  Lord  Hailes,  though  somewhat  formal,  quaint,  and  costive  in 
his  expositions,  may  be  deemed  the  first  who,  with  the  qualifications 
of  a  scholar,  duly  applied  the  rigid  and  clamant  tost  in  question,  and 
therefore  can  never  be  sufficiently  upheld  and  commended. 
'  See  pp.  125-6-7-8,  230-1,  and  what  will  be  Ftatod  in  the  sequel. 


IN  SCOtTISH  PEERAGES,  &C-  709 

ciples,  would  seem  to  be  established.^  For  the  first  of  these  Forfeiture. 
reasons,  I,  of  course,  must  oflTer  my  remarks  with  correspond-  ^-'^^'*''^ 
ing  deference,  and  occasionally  with  some  distrust.  But,  at 
any  rate,  the  yalidity  of  the  grant,  and  conveyance  of  the 
honours,  its  construction  ex  terminis^  and  import  of  the  limita- 
tions— so  far  as  defines  the  line  of  descent,  and  who  are,  or  are 
not  to  take, — must  still  be  regulated  by  our  especial  doctrine 
and  practice.     The   English  treason  law,   in  honours^  be- 

>  This  is  tmdoubtedly  a  nice,  and  rather  difficult  point.  Tho  late 
Mr.  Adam,  (aee  p.  707,  noUy)  the  English  barrister,  as  well  known, 
much  employed  in  peerage  practice,  Scottish  as  well  as  English,  has 
the  following  remarks,  in  a  relative  opinion  referred  to— "Altho* 
it  depends  on  the  Law  of  England  whether  any  ascertained  interest 
under  a  Scotch  grant  be  forfeited,  yet  to  ascertain  what  that  interest 
is,  recourte  must  be  had  to  the  Law  of  Scotland  ;"  while  he  adds,  what 
tends  to  occasion  the  perplexity,  that  ^  there  is  always  extreme  diffi- 
culty in  ascertaining  with  precision,  whether  the  limitations  in  a 
Scotch  patent  or  deed  arc  to  be  considered  as  equivalent  to  an  English 
remainder,  the  whole  scheme  and  genius  of  the  Law  of  Entails  in  the 
two  countries  being  entirely  dissimilar.*'  The  Scottish  estate  of  Park  Scottish  caw  of 
was  entailed  by  Sir  James  Gordon  in  1713,  upon  himself  for  life,  whom  Oo"lon  of  Pa«^Ji. 
failing,  to  William  his  eldest  son,  and  the  heirs-male  of  his  body,  1754^ 
whom  failing^  to  the  heirs-male  of  Sir  James's  body.  William,  after- 
wards Sir  William  Gordon,  who  succeeded  accordingly,  was  forfeited,  for 
his  concern  in  the  rebellion,  in  1746 ;  and  Mr.  Cruise,  another  English 
lawyer,  the  writer  upon  Dignities,  in  an  opinion  I  also  have  by  him, 
holds  that  by  *'  the  English  Law  the  limitation  to  the  heirs  male  of 
the  body  of  Sir  James  would  have  united  with  the  estate  for  life, 
and  have  descended  to  his  eldest  son  William,  (the  traitor^)  and 
been  forfeited  by  his  attainder,"  so  as  to  bar  John  Gordon,  William's 
younger  brother,  unattainted,  who  claimed,  in  virtue  of  it,  in  the  noted 
ease  in  1754.  **  But,"  he  adds,  the  limitation  in  question  **  was  con- 
strued very  differently  ;  it  was  admitted,  on  the  part  of  the  crown,  that 
(it)  was  not  by  the  Law  of  Scotland  an  estate  tail  executed  on  Sir 
William,  but  was  a  substitution,  in  the  nature  of  a  remainder,  created  in 
favour  of  the  younger  sons  of  Sir  James,  and  not  affected  by  the  at- 
tainder of  Sir  William.  The  construction  was  adopted  by  the  House 
of  Lords,  for  Sir  William  having  died  at  Douay  in  1761,  leaving  two 
M>n8  bom  in  France  after  his  attainder,  his  next  brother,  John 
Gordon,  claimed  the  estate,  upon  the  ground  that  his  brother  was  dead 
without  issue  inheritable,"  owingto  their  alienage,  and hesneceeded  accor- 
dingly by  judgment,  in  1754,  of  the  same  appellate  jurisdiction.  Here, 
although  an  English  principle  obtained,  yet  it  saved  entirely,  through 
the  ptedium  and  operation  of  the  Scottish  doctrine  as  to  substitutions, 


710        INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,  ing  less  inexorable  and  obdurate,  nay  not  altogether  absolute, 
introHuction  of  *^^^  Uncompromising  like  ours  formerly,*  but  open  to  certain 
English  law  here  favourable    Specialties   and   exceptions,   may  be  regarded, 

by   tho  Statute ..  .       ^     .  ,  .  *^  ,r. 

of  Queen  Anne  m  its  amalgamation  with  our  system,  as  a  boon  conferred  upon 
of  o^uf  Vo^me^* "® — iuasmuch  as  it  has  constructively  identified  our  "  substitu- 
rigorou',»y»tem,  tions^or  limitations,  nominattm^  OT  otherwise^^  in  patents  and 
u«,  a«  rxeinpii-  8^"^^  eutails,  prefixed  by  the  words  "  whom  failing"  with  En- 
fied  in  the  tpe- gUgh  "  remainders  over,"  in  virtue  of  which  a  certain  antidote 
maiiidcrs  over.  ^^8  been  afforded  in  especial  emergencies,  to  other  heirs  than 
the  traitor,  and  those  who  took  with  him,  against  the  severe 

which  was  curiously  followed  vice  verM  in  the  face  of  the  English,  by 
which  apparently  the  claim  would  have  gone.  The  above  is  a  most  ma- 
terial precedent  fixing  the  law,  and  proving  that  the  last  Park  limita- 
tion mentioned  is  constructively  as  strong  as  if  it  had  been  after  the  fa- 
shion of  the  irresistible  remainder  in  the  Somerset  patent  in  1546,  to  be 
afterwards  noticed,  nominatim  to  John  Gonhn^  younger  or  second  son 
of  Sir  William,  and  the  heirs-male  of  his  body.  Mr.  Cruise  adds,  what 
is  admitted  likewise  by  Mr.  Adam,  and  all  authorities,  **  I  have  no 
doubt  but  that  the  principles  adopted  in  the  wcond  case  of  Park  fthat 
in  question)  are  equally  applicable  to  dignities  ;'*  and,  besides,  corrobor- 
atory peerage  instances  will  be  given.  Mr.  Cruise,  however,  and  Mr. 
Adam,  Cut  sup,)  draw  a  distinction  between  the  last  Park  remainder, 
and  one  rather  different, — ^namely,  if  it  had  been  to  Sir  James  the 
settler,  and  the  heirs-male  of  his  body,  where,  by  the  English  law,  as 
Sir  William  the  traitor,  who  likewise  answers  the  description  (literai- 
iyj,  **  would  have  taken  a  vested  interest  as  heir-male — expectant  on 
the  determination  of  his  (prevumsj  estate  Tail,"  the  right  of  John,  by 
his  necessary  conjunction  of  ^*  estate  *'  with  the  traitor,  would  have 
been  forfeited.  But  still  it  might  have  been  saved,  as  before,  by  the 
Scottish  law,  though  this  is  not  res  judicata.  Of  course,  as  I  remarked, 
at  the  outset,  considerable  abstruseness  attends  the  matter,  especially 
owing  to  conflicting  opinion.  The  doctrine  of  Lord  Redesdale,  to  be 
given  in  the  sequel,  especially  as  illustrated  in  the  instance  of  Boling- 
broke,  of  the  heir  by  remainder  taking  as  by  an  original  independent 
grant,  may  be  viewed  favourable  also  to  tho  latter  conclusion.  Lord 
llardwicke  too,  admits,  that  an  interest,  under  the  last  Park  limitation, 
vested  (fatally)  in  the  traitor  by  the  English  law,  but  that  it  held 
otherwise,  according  to  the  law  of  Scotland,  which  saved.  (See  Karnes's 
Elucid.  p.  382.) 

'  Owing  to  the  high  prerogative  of  the  crown  in  Scotland,  however, 
the  king,  by  a  remission,  could  alone  salve  and  remove  an  attainder,  (see 
p.  128,  and  authorities  to  be  afterwards  adduced,)  though  Parliament 
also  was  occasionally  and  often  resorted  to  for  the  purpose. 
^  As  illustrated  by  the  above  ease  of  Gordon  of  Park,  inter  alia. 


IN  SCOTTISH  PEERAGES,  &CC. 


711 


coDsequences  of  conviction  for  treason,  which,  without  such  aid    Forfeiture, 
andinterposition,  would  have  been  final  and  irremediable.  The     ^-^^^^"^^ 
ruin  and  calamity,  instead  of  being  total,  is  thus  partially  and 
equitably  salved.     But  it  must,  however,  at  the  same  time  be  Our  ftubttitu- 
confessed,  that  our  substitutions  of  the  kind  stated,  though  „^  'construc- 
couched  in  identical  terms,  are,  by  the  Scottish  law,  different  JjJth^j^e  Mter** 
in  their  technical  nature  and  attributes  from  the  remainders  not  strictly,  or 
in  question.     They  merely  constitute  a  spem  auccessionis^  a  '°**®'«"^*y  •o- 
right,  not  real  in  contingency,  to  take  as  heir  under  the  clc-^ 
iual  character  with  the  prior  holders  ;^  and  not,  as  in  the  Eng- 
lish case,  an  independent  vested  right  at  the  moment,  through 
a  separate  *'  estate,"  even  amounting,  as  will  be  afterwards 
seen,  according  to  Lord  Redesdale,  in  dignities,  to  an  original 
distinct  grant  and  creation,  though  only  subsequently  coming 
into  play ;  upon  the  basis  of  which  principle  a  forfeiture  in- 
curred  by  other   previous    takers   does    not    here   apply. 

>  The  subject  is  thus  explained  by  an  eminent  Scottish  judge,  Mr. 
Cranstoun,  lately  retired  from  the  Bench,  in  an  opinion  he  gave  upon 
an  important  point  of  forfeiture,  now  before  me.  ''By  the  law  of 
Scotland,  suhstitute  heirs  of  tailzie  f  entail)  have  rights  of  two  kinds. 
In  the  first  place,  by  virtue  of  the  destination  they  have  a  right  to  suc- 
ceed to  the  estate,  on  the  failure  of  the  prior  members  of  the  tailzie. 
This  right  is  evidently  not  vested^  but  purely  contingent,  and  it  does  not 
alieet  the  estate  in  any  way  whatever,  until  the  contingency  has  occurred. 
In  the  second  place,  every  substitute  has  a  personal  right,  a  jus  crediti^ 
which  vests  in  him  from  the  moment  of  his  birth,  and  to  which, 
therefore,  it  is  unnecessary  for  him  to  complete  any  title  by  service  or 
otherwise.  By  virtue  of  that^ti^  crediti,  he  may  reduce  any  act  done 
by  the  heir  in  possession,  in  contravention  of  the  fetters  ;  and,  if  the 
contravener  is  alive,  may  also  insist  in  a  declarator  of  irritancy  or 
forfeiture  against  him.  i^tf<  although  this  right  is  vested,  it  is  not  real; 
it  does  not  affect  the  estate,  and  cannot  be  made  to  affect  it,  unless  an 
irritancy  is  committed.  It  exists  only  in  consequence  of  the  personal  \ 
obligation  imposed  on  the  heir  in  possession ;"  the  interest  ''  is  of  an 
anomalouB  nature."  Baron  Hume  also  corroboratively  says,  '*  every  sub- 
stitute in  the  tailzie,  when  he  succeeds,  is  no  other  than  an  heir  who 
takes  by  inheritance  of,  and  through  those  who  are  called  before  him, 
and,  by  the  proper  forms  of  title,  as  in  a  succession,  the  very  same  estate 
crfee^  which  has  been  vested  in  those  prior,  and  more  &voured  persons. 
As  also,  it  is  not  conceived  with  us,  that  before  succeeding,  the  heir  of 
tailzie  has  in  him  any  actual  or  real  estate  of  his  own,  distinct  from  that 
of  the  present  owner  ;  but  only  a  prospect  of  succeeding,"  &c.  (Punish- 
ment of  Crimes,  Edit.  1797,  vol.  II.  p.  471.) 


712  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.     Neither  did  we  in  honours,  as  in  England,  in  reppect  to  for- 

v^^v^-w^     feiture,  make  any  distinction  between  en^atV^t/ succession  and 

future  ami  its  that  at  common  law.    Both  were  equally  affected  by  it.    The 

penalties  at-     Scottish  Act  1690,  c.  104,  uo  doubt  (like  the  English  statute 

tacheil,  irrerae-  .  . 

iiiahiy  in  every  de  doTiis)  saved  the  right  of  heirs  other  than  the  traitor,  to 
instance.  strictly  entailed  estates  for  a  period,  which  advantage   they 

thereafter  lost  by  the  Act  of  Queen  Anne,  in  1708;  but  it 
does  not,  I  conceive,  extend  to,  or  embrace  the  former,  a  mat- 
ter that  will  be  afterwards  adverted  to. 
Precedents  and      ^  ^^  ^®^^  S^^®  instances  of  Scottish  dignities   since  the 
illustrations  of  Uniou,  and  introduction  of  the  English  treason  law,  protect- 
law.*^*"  ed,  through  its  intervention,  against  the  penalties  of  forfeit- 

ure, in  virtue  of  constructive  remainders  over. 
^*®  YsJn-^*       '^^®  present  dignity  of  Lord  Sinclair  was  granted  by  pa- 
ciair  in  1723,    tent,  dated  the  first  of  June  1677,  to  Henry  Sinclair,  and  to 
inMsSr*  *"    ^^®  heirs-male  of  his  body  ;  "  whom  failing^**  or  with  remain- 
der overy  to  John  Sinclair,  brother-german  of  the  said  Henry 
Sinclair,  and  to  the  heirs-male  of  his  body;   remainder  to 
Robert  Sinclair,  brother-german  of  the  deceased  John  Sin- 
clair of  Herdmanstone,^  (father  of  Henry  the  patentee,)  and 
the  heirs-male  of  his  body  ;  remainder  to  George  Sinclair,  an- 
other brother-german  of  the  last  John,  and  the  heirs-male  of  his 
body ;  remainder  to  Matthew  Sinclair,  also  another  brother  of 
the  said  John,  and  the  heirs-male  of  his  body  ;  with  an  ultimate 
one  to  the  nearest  and  lawful  heirs-male  of  the  said  Henry,  the 
patentee.*    The  latter,  thus  Lord  Sinclair,  died  in  1723;  but 
John,  his  eldest  son,  and  heir,  in  terms  of  the  patent,  having 
been  previously  attainted  by  Act  of  Parliament  in  1715,  was 
thereby  unable  to  succeed  ;  and  hence,  during  his  life,^  which 
continued  to  1750,  and  the  lifetimes  thereafter,  of  his  brothers, 
James,  and  Henry  Sinclairs,  who  died  in  1762,  and  1766, 

^  He  {JdhUy  of  Herdmanston)  was  not  descended  of  the  Lords  Sinclair. 
For  remarks  upon  the  curious  state  of  this  Peerage,  carrying  the  pre- 
cedence of  the  original  Lords  Sinclair,  of  a  different  stock  in  the  male 
line,  sec  pp.  54-6. 

■  Great  Seal  Register. 

'  There  was  a  partial  Act  of  restoration  by  Parliament,  that  availed 
nothing  as  to  the  honours,  in  1736,  of  the  said  ''John  Sinclair,  eldest 
son  of  Henry  late  Lord  Sinclair  deceased,  to  sue  or  maintain  any  Ac- 
tion," and  take  property,  "notwithstanding  his  attainder."  Brit.  Acts. 


IN  SCOTTISH  PEERAGES,  &C.  713 

and  took,  under  the  same  limitation,  or  estate-tail,  the  hon-  Porreiture. 
ours  were  forfeited.  But  in  1780,  after  the  entire  male 
extinction  of  this  branch  or  estate-tail,^  they  were  claimed  by 
Charles  St.  Clair  (Sinclair),^  a  remote,  though  now  the  next 
heir  male, — great  grandson  of  the  aforesaid  Matthew  Sinclair, 
a  distinct  remainder-msLn  in  the .  patent, — by  a  reference  to 
the  Lords  upon  his  petition  to  the  crown,  and  found,  by  their 
resolution,  the  25th  of  April  in  1782,  (duly  admitted  by 
the  crown)  to  be  legally  vested  in  him,  and  to  be  wholly  un- 
affected by  the  attainder,  from  his  thus  inheriting  under  a 
special  and  distinct  remainder.'  There  having  been  no  for- 
mal ornominatim  forfeiture  of  the  dignity  was  of  no  moment, 
as  will  be  instructed  in  the  sequel.  It  was  duly  held  in  law 
to  be  as  much  attainted — tacitly  and  virtually — from  the  suc- 
cession opening  to  the  traitor  after  his  father's  death,  as  if  its 
literal  forfeiture  had  obtained.  The  honour  was  lost  and  gone 
by  the  fatal  and  blasting  contact  with  him,  and  would  have 
been  so  for  ever,  had  it  not  been  for  the  subsequent  form  of 
the  destination.  I  may  here  add,  what  may  be  sufficiently  in- 
telligible after  this,  that  an  inferior  Peerage  in  the  person  of 
a  nobleman  exclusively  attainted  under  the  title  of  a  higher,  his 
ordinary  designation,  is,  at  the  same  time,  equally  forfeited. 

The  honours  of  Earl  of  Kintore,  Lord  Keith  of  Inverurie,  caso  of  the 
and  Keith-hall,  are  in  a  parallel  situation,  and  have  been  long  ^*^*j*^^^  ^l 
held,  in  like  manner,  without  any  challenge,  or  exception,  byio  i7r>i/and 
the  concurrent  and  decided  opinions  of  lawyers.     They  were   *'  '     ' 
conferred  originally  by  patent,  the  26th  of  June   1677,  upon 
Sir  John  Keith,  younger  brother  of  George,  hereditary  Earl 
Marshal  of  Scotland  ;   with  limitation  to  him,  and  the  heirs- 
male  of  his  body,*  but  extended  thereafter  to  a  large  series  of 

'  There  were  also  three  other  brothers,  William,  David,  and  Matthew, 
who  were  equally  extinguished  in  the  subsequent  claim  noticed. 

"  Such  was  the  later  orthography,  in  the  same  way  that  Seymour  is 
now  St.  Maur  in  England  ;  and  hence,  with  equal  reason,  the  surnames 
of  Mwehet  and  Mowat  with  us— though,  it  must  be  confessed,  vilely 
corrupted — ought  to  resume  their  original,  and  Norman  forms  of  "Mont- 
fitchet,"  or  "  de  Monte-fixo,"  and  "  Monte-alt,"  or  "  de  Monte  alto." 

'  Lords'  Journal.  Other  particulars  are  from  the  papers,  &c.  in  the 
case. 

*  Great  Seal  Register. 


714  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,  heirs,  by  means  of  the  royal  and  regulating  regrant,  dated  1 7th 
of  December,  16949  (that  carried  likewise  the  estates,)  pro- 
ceeding upon  his  resignation,  and  backed  by  the  sign  manual.^ 
And,  under  identical  circumstances  with  Sinclair,  all  came  to 
be  indisputably  forfeited,  from  the  succession  opening  in  1 76 1 ,  in 
terms  of  a  remainder  in  the  regrant,  to  George  Earl  Marshal 
— the  grandson  and  heir  of  the  preceding  George  Earl  Mar- 
shal,'— the  heir-male  and  chief  of  the  House, — who  had  been 
attainted  in  1715  by  Act  of  Parliament,  and  who,  although 
subsequently  restored,  to  take  as  heir  by  remainder  to  lands^^ 
was  never  rehabilitated  so  as  to  enable  him  to  hold  honours. 
But  again,  after  his  death  without  issue  in  1778,  and  co-ex- 
tinction of  the  heirs  under  his  remainder,  the  dignities 
in  question,  in  virtue  of  another,  in  the  regrant  that  then  came 
into  play,  were  saved  to  the  next  heir.  It  is  in  these  terms, 
**  quibus  deficieniibus  filiabus,  seu  haeredibus  femellis  ex  cor- 
pore  Gulielmi  Domini  de  Inerurie,  (eldest  son  of  John  first 
Earl  of  Kintore,  afterwards  second  Earl,)  legitime'procreatis, 
seu  procreandis,  et  heredibus  masculis,  et  femellis  de  corpori- 
bus  dictarum  filiarum  descendentium  successive."  And  they 
accordingly  devolved  to,  and  were  taken  by  Anthony  Lord 
Falconer  of  Halkerton,  the  lineal  female  heir,  owing  to  his  des- 
cent from  Lady  Catherine,  eldest  daughter  of  the  said  William 
Lord  Inverurie.  Claiming  too  under  quite  a  different  charac- 
ter, and  status,  from  George  Earl  Marshal,  the  traitor,^  he  was, 
to  use  an  English  legal  phrase,  clearly  "  out  of  the  mischief." 

*  Ibid. 
■  Namely  "  Geoigio  Marescalli  Comiti,"  (the  latter  elder  brother  of 

John  Earl  of  Kintore,  the  patentee,  in  167C,)  "  et  heredibus  masculis  de 
corpore,"  &c. 

^  By  a  later  Act  in  1760,  enabling  the  Earl  "  to  sue  or  maintain  any 
action  or  suit  notwithstanding  his  attainder,"  and  likewise  *'  to  take, 
or  inherit  any  Real,  or  Personal  Estate  that  may,  or  shall  hereafterde- 
scend  or  come  to  him,  or  which  he  was  entitled  to  in  Reversion  or  Re- 
mainder,"   British  Acts. 

His  Lordship  came  hence  afterwards  to  possess  the  Kintore  estates 
in  1761.  His  brother,  the  celebrated  Marshal  Keith,  in  the  Prussian 
service,  predeceased  him  without  issue.  Ho  was  the  last  of  this  talented, 
and  remarkable  house,  taking  in  the  corresponding  remainder. 

*  See  p.  709,  note. 


IN  SCOTTISH  PEERAGES,  &C.  7 1  5 

Upon  the  same  ground,  the  honours  were  held  by  William,  his  Forfeiture. 
son,  the  next  Earl,  and  now  vest  in  Anthony,  his  son  and  repre-  v^^nr^o 
sentative,  the  present  Earl  of  Kintore,  &e. 

I  may  further  illustrate  the  law  here,  through  the  medium  EoRiish  prece- 
of  English  cases  and  precedents,  now  of  course  mainly  appli-^®"''»°'l?°"7®» 
cable  to  us,  only  premising,  as  before,  that  the  express  forfeit-  to  us. 
ure  of  the  honour,  which  obtains  in  their  instance,  makes  no 
essential  difference  between  them  and  the  Scottish  ones  that 
have  been  given. 

The  Earldom  of  Northumberland,  in  the  reign  of  Elizabeth,  Case  of  the 
stood  limited  to  Thomas  Percy,  Earl  of  Northumberland,  and  Jorthumb^/- 
tbe  heirs-male  of  his  body,  whom  failing^  to  Henry  Percy,  hisian*^»  >"  '|»® 
brother,  and  the  heirs-male  of  his  body.  Earl  Thomas  (in  pos-  beth!  ^ 
session)  was  attainted  and  executed  for  high  treason,  but  that 
did  not  affect  the  previous  right  that  had  thus  vested,  at  the 
moment,  in  contingency  by  the  remainder,  in  Henry  his  young- 
er brother,  who,  after  the  death  of  the  traitor,  inherited  the 
honours.'     This,  as  Cruise  observes,  immediately  happened, 
Earl  Thomas  not  having  left  male  issue ;   while  it  follows 
that,  if  they  had  existed,  the  forfeiture  would  have  attached 
to  them  atso,^ — being  of  the  body,  and  in  the  same  limitation, 
with  the  traitor.     The  case  of  the  Viscounty  of  Bolingbroke, 
to  be  afterwards  particularly  noticed,  is,  as  now  held,  to  the 
same  purport. 

But  further,  that  of  the  Dukedom  of  Somerset  may  be  even  Remarkable 
still  more  striking,  and  in  point,  as  is  obvious  from  the  follow-  ??*^^do^'*^of 
ing  statement  of  it  by  Lord   Redesdale,    "  when    Edward  Somerbet,  in 
Seymour,  Earl  of  Hertford,  by  letters  patent,  dated  the  16th  *^^^' 
of  February  1546,  was  created  Duke  of  Somerset,  and  by  the 
terms  of  the  patent,  that  dignity  was  granted  to  him,  and  the 
heirs-male  of  his  body,  by  Ann,  his  second  wife  ;  and  failing 
such  heirs-male,  the  dignity  of  Duke  of  Somerset  was,  by 
the  same  patent,  granted  to  Sir  Edward  Seymour^  son  of  the 
Earl  of  Hertford,  by  Catherine,  his^^^  wife,  and  the  heirs- 
male  of  the  body  of  Sir  Edward  Seymour,  the  son,  the  attain- 
der  of  the  Duke  of  Somerset,  his  father^  hnd  forfeiture  of  his 
dignitieshy  Act  of  Parliament,  of  the  5th  and  6th  of  Edward 

*  See  Cruise  on  Dig.  p.  122,  &c.  *  Ibid. 


716  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,  the  Sixth,  did  NOT  affect  the  dignity  of  Duke  of  Somerset 
granted  to  Sir  Edward  Seymour^  and  the  heirs-male  of  his 
body.  By  the  terms  of  the  grant,  that  dignity  had  vested,  im- 
mediately after  the  patent  had  passed  the  great  seal,  in  Sir 
Edward  Seymour ^yiiih  limitation  to  the  heirs-male  of  his  body, 
though  the  actual  enjoyment  of  it  by  Sir  Edward,  and  the  heirs- 
male  of  his  body,  was  made  to' depend  on  the  failure  of  heirs- 
male  of  the  body  of  his  father,  by  his  second  wife."  His 
Lordship  adds,  that  such  conveyance  would  have  obtained  even 
if  the  noted  statute  de  donis  had  not  been  made,  and  thus  con- 
tinues, **  Edward  Seymour,  (for  there  were  two  Edwards  his 
offspring),  son  of  the  first  Duke"  *'by  his  second  wife,  (tho' 
the  preferable  heir,)'  was,  in  the  first  of  Elizabeth,  created 

^  The  first  wife  of  the  Duke,  known  as  the  Protector  Somerset,  was 
Katherine  Fillol,  daughter  and  co-heir  of  Sir  William  Fillol ;  the  second 
Anne,  daughter  of  Sir  Edward  Stanhope,  (see  Dugdale's  Bar.  vol.  II. 
p.  367)  ;  and  upon  this  subject,  Horace  Walpole,  Earl  of  Oxford,  has 
these  striking  and  curious  remarks,  in  letters,  in  1760,  to  Sir  Horace 
Mann,  ^<  You  have  heard  me  speak  of  the  great  injustice  that  the  Pro- 
tector Somerset  did  to  the  children  of  hx^firH  wife,  in  favour  of  those 
by  his  second ;  so  much  that  he  not  only  had  the  dukedom  settled  on 
the  younger  brood,  but,  to  deprive  the  eldest  of  the  title  of  Lord  Beau- 
champ,  which  he  wore  by  inheritance,  he  caused  himself  to  be  anew 
created  Viscount  Beauchamp  :  well  in  Vincent's  Baronage,  a  book  of 
great  authority,  speaking  of  the  Protector's  wives,  are  these  remarkable 
words, '  Katheriruiy  iilia,  et  una  cohseredum  Gulielmi  Fillol  de  Fillols 
hall  in  Essex,  uxor  primal  repudiatay  quia  pater  post  nuptias  earn  cogno- 
vit,* The  speaker  has  since  referred  me  to  our  Journals,  where  arc  some 
notes  of  a  trial  in  the  reign  of  James  the  First,  between  Edward  the 
second  son  of  Katherine  the  dutiful^  and  the  Earl  of  Hertford,  son  of 
Ann  Stanhope,  which  in  some  measure  confirms  our  MS.,  for  it  says,  the 
£arl  of  Hertford  objected  that  JohUy  the  eldest  son  of  a//,  (wholly 
omitted  in  the  Somerset  patent,)  was  begotten  while  the  Duke  was  in 
France.  This  title,  which  now  comes  back  at  last  to  Sir  Edward  Sey- 
mour, (the  successful  claimant,)  is  disputed  :  my  Lord  Chancellor  has 
refused  him  the  writ,  but  referred  his  case  to  the  Attorney-General,  the 
present  great  opinion  of  England,  (Sir  Dudely  Ryder,)  who,  they  say, 
is  clear  for  Sir  Edward  Seymour."  (Letters  to  Sir  Horace  Mann,  edited 
by  Lord  Dover,  vol.  II.  pp.  846,859-60.)  The  writer  subsequently 
adds,  (p.  872)  that  Sir  Edward  <<has  not  yet  got  the  Dukedom  himself, 
as  there  is  started  up  a  Dr.  Seymour,  but  he  will  be  able  to  make  no- 
thing of  it." 

Of  course  I  cannot  vouch  for  the  accuracy  of  what  is  thus  stated,  up- 


IN  SCOTTISH  PEERAGES,  &C.  717 

Baron  Beauchamp  and  Earl  of  Hertford ;  and  William,  son  of  Forfeiture. 
Edward,  and  grandson  of  the  first  Duke,  was  afterwards 
created  Marquis  of  Hertford,  and  was  in  1660  restored  to 
the  Dukedom  of  Somerset  by  act  of  Parliament.  But  the 
restoration,  &c.  did  not  operate  to  preserve  the  dignity  of 
Duke  of  Somerset,  granted  to  Sir  Edward  Seymour^  &c.  be- 
cause it  wanted  no  such  act  for  its  preservation.  If  the  dig- 
nity had  not  been  restored  to  the  Marquis  of  Hertford,  Sir 
Edward,  or  the  heirs-roale  of  his  body,  must  have  enjoyed  the 
dignity  of  Duke  of  Somerset,  on  failure  of  heirs-male  of  the 
first  Duke,  by  Ann  his  second  wife.  The  dignity  of  Duke  of 
Somerset,  vested  in  the  Jirst  Duke,  was  utterly  gone  by  the 
forfeiture,  &c.;  it  was  not  by  that  act  vested  in  the  crown^^  but 
until  it  was  again  called  into  being  by  the  Act  of  1660  it  had  no 
existence,"  it  was  ^'  utterly  extinct  and  gone  by  his  forfeiture, 
— the  legislature  alone  having  power  to  restore  the  dignity,  &c. 
JVhen  the  heirs-male  of  the  body  of  the  first  Duke  by  his 
second  wife,  failed^  the  grant  by  the  original  patent  of  the  dig- 
nity of  Duke  of  Somerset  to  Sir  Edward  Seymour,  and  the 
heirs-male  of  his  body  took  effect;  Sir  Edward  Seymour  having 
taken  the  dignity  under  that  grant,  as  a  purchaser^  and  the 
first  Duke  having  taken  nothing  under  the  grant  to  Sir  Ed- 
ward Seymour,  which  was  a  distinct^  and  substantive  grant. 
Accordingly,  on  the  death  of  Algernon  Duke  of  Somerset,  in 

on  the  authority  of  Vincent's  MS.  Baronage  (in  the  possession  of  the 
College  of  ArraSy)  but  it  transpires  that  the  unfortunate  John  Seymour, 
the  son  of  the  stigmatized  Catherine  Fillol,  thus  utterly  disinherited, 
was  alive  at  the  date  of  the  Somerset  patent  in  1646^  and  made  his  will 
as  far  down  as  the  7th  of  December  1662,  where  he  constitutes,  under 
deduction  of  legacies  to  his  servants,  Sir  Edward  Seymour,  his  brother 
at  least  through  his  mother,  his  executor,  and  heir  to  his  lands.  It 
was  recorded  in  the  Prerogative  Court  of  Canterbury,  the  probate  be- 
ing dated  April  26, 1553.  Ho  is  represented  as  having  died  without 
issue,  of  which  the  above  seems  presumptive  evidence.  The  further 
singularity  would  appear  to  be  in  the  Protector  cohabitating  with  Ca- 
therine, after  her  illicit  ofience,  whether  incest,  or  simple  adultery,  to 
which  John  may  be  inferred  to  have  owed  his  birth,  and  to  have  then 
had  by  her  Sir  Edward  Seymour. 

'  This  may  be  somewhat  a  new  distinction, — ^honours,  when  there 
is  no  possessor,  being  usually  thought  to  revert  to,  or  merge  (at  least 
conditionally)  in  the  crown. 


718  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.  1749,  there  was  a  failure  of  heirs-male  of  the  body  of  the 
first  Duke,  by  Ann  his  second  wife  ;  and  on  the  1 7th  January 
1750,  a  writ  having  issued,  upon  the  report  of  the  Attorney- 
General,  to  summon  to  Parliament,  as  Duke  of  Somerset,  Sir 
Edward  Seymour,  who  was  then  the  heir-male  of  the  body  of 
Sir  Edward  Seymour ^  (the  remainder'-fnanf  under  *  the  second 
grant,'  in  1546,)  Sir  Edward  produced  thai  patent,  and  took 
his  seat  in  the  House,  accordingto  the  date  of  that  patent,"  &c.^ 
— from  whom  the  honours  have  descended  in  the  same  way,  to 
his  male  descendant  the  present  Duke  of  Somerset. 
Remainder  over  Here  the  issue  of  the  body  of  the  traitor  were  even  saved 
in   Somerset    f^Qm  attainder,  by  the  mere  sovereign  effect  of  the  remainder 

case  even  saved  ...  «  ij»  f  i 

the  descendants  over,  the  honour  m  this  manner  first  utterly  dymg, — from  the 
ai^ainst  ^tho^*^'  ^^^^  taint,  and  visitation  in  the  original  limitation,  and  then 
forfeiiure  of  the  again  as  Suddenly  re^xisting  through  the  medium  of  the  for- 
mer.    But,  as  Cruise  says,  *^  the  issue  must  (abstracting  from 
the  forfeiture^  in  such  limitation)  be  capable  of  inheriting  the 
dignity,  otherwise  the  remainder  will  take  effect.     Thus,  in 
Issue,  however,  ^^0  casc  of  Gordou  V,  the  King's  Advocate,  (that  of  Park, 
'"•"'^  **^^i**%  fo'^^^'^y  alluded  to,*)  the  following  question  was  put  (in  1754) 
taking,  and  not  to  the  Judgcs  by  the  House  of  Lords: — **  Tenant  in  tail 
nex"rcmainder^  ™*^®  ^^  lands  in  England,  with  remainder  over,  is  attainted  of 
takes  effect,      high  treason,  and  the  estate  tail  thereby  forfeited  to  the  crown. 
After  this  attainder,  tenant  in  tail  has  issue  male  born  in  ^/b- 
reignpartSf  out  of  the  ligeance  of  the  crown  of  Great  Britain, 
and  dies  leaveing  such  issue  male,   QucBre^   Is  the  estate  or 
interest  in  the  lands,  which  were  forfeited  to  the  crown,  as 
aforesaid,  continuing,  or  determined  ?   The  Lord  Chief  Baron 
of  the  Court  of  Exchequer,  having  conferred  with  the  other 
Judges  present,  delivered  their  unanimous  opinion,  that  the 
estate  or  interest  in  the  lands  so  forfeited  to  the  crown,  as 
aforesaid,  was  determined.**     In  consequence  of  this  opinion, 
the  person  who  was  next  in  remainder,  recovered  the  estate 
from  the  crown.' 

*  Third  Peerage  Report  of  the  Lords  on  the  dignity  of  the  Peerage, 
in  1826,  pp.  76-6. 

*  See  p.  709,  note, 

*  On  Dig,  p.  123.     Il;i<l  it  not  been  for  the  alienage  here,  the  estate 
would  have  been  >till  retained  by  tfie  crown,  under  the  title  of  a  "ba>je 


IN  SCOTTISH  PEERAGES,  &C.  719 

Cruise  further  inculcates,  (as  elsewhere  shewn,*)  as  well  as  Forfejiure. 
other  lawyers,  that  the  above  case  and  decision, — which  more-  cawofPark 
over  corroborates  what  was  premised, — applies  equaUy  to  hon-  exemplifying 

'^  '        rr  T         J  the  law,  equally 

*  applicable  to 

fee,"  during  which  tenure,  that  might  have  continued  for  ever,  it  could  honourt. 

have  granted  and  assigned  the  same  to  any  one  in  fee-simple, — ^always 
conditionally,  however,  and  dependent  upon  the  existence  of  heirs-male 
of  the  traitor's  body, — in  terms  of  the  first  limitation  ;  for  upon  their 
failure,  the  heir  under  the  remainder  could  have  reclaimed  the  inheri- 
tance in  juriSy  and  at  once  rescued  it  from  the  crown,  and  the  assignee. 
In  the  previous  interval,  the  holder  of  such  ''  qualified  "  base  fee  ''  has 
the  same  rights  and  privileges  "  over  it,  **  tUI  the  qualification  *upon 
which  it  is  limited  is  at  an  end,  as  if  he  were  tenant  in  fee-simple."  (See 
Cruise  on  real  property,  under  estates  in  remainder,  referring  to  Plowden 
&c.,  vol.  I.  pp.  108-78-9-96.)    This  of  course  does  not  obtain  in  the 
case  of  forfeited  estates  in  fee-simple.  The  above  curious  state  of  things, 
and  peculiar  kind  of  abbeyance,  though  now,  from  the  introduction  of 
the  English  treason  law,  applicable  to  us,  toa«,  I  need  hardly  add,  quite 
foreign  and  unknown  to  our  system  ;  and,  what  is  remarkable,  has  never 
yet  furly  occurred,  or  come  into  play  ;  though*  there  have  been,  since 
the  treason  Act  of  Queen  Anne,  several  forfeitures  of  lands  held  under 
entails,  with  remainders  over,  including  that  of  Gordon  of  Park.  I  re- 
collect the  astonishment,  and  almost  discredit  and  disbelief,  with  which 
this  English  doctrine  was  treated  by  some  Scottish   lawyers  at  a 
consultation  involving  a  question  of  forfeiture,  and  the  same  contingen- 
cy.   As  the  heir  by  remainder,  on  the  expiry  of  the  base  fee,  must  also 
come  to  possess  in  Scotland,  (constructively)  vijuriSy  and  propriojure, 
it  may  be  difficult, — taken  with  the  purport  of  recent  Scottish  decisions 
regarding  services,  to  say  in  such  event, — ^how  he  should  proceed  in 
completing  his  title.  It  might  be  probably,  in  part,  by  an  action  of  de- 
clarator before  the  Session,  against  the  crown  or  assignee.    He  can  as 
little,  as  our  law  stands,  serve  heir  to  the  entailer — as  to  the  traitor ^ 
the  hut  heir  of  entail,  (otherwise  the  proper  ancestor,  or  terminus  to 
select,) — passing  over  intermediate  substitutes,  and  heirs  already  res- 
pectively served  seriatim^ — though  this  would  be  in  conformity  to  the 
English  principle  of  the  heir  in  entails  taking  per  formam  doni  only, 
under  the  settlement  of  the  entailer.    But,  to  secure  the  indefeasible  In  lands,  to  give 
rights  of  Scottish  remainder-men,  in  landsy  the  entail  must  be  strict,  and  ®^®*^'  ^^   '«- 
recorded  in  the  Register  of  Tailzies,  (see  case  of  David  Kinloch  against  ""h  us"the^*'^* 
the  King's  Advocate,  January  10, 1751 ).  The  principle  is  obvious,  in  tail   most   be 
order  that  their  contingent  interest  be  inviolable,  and  independent,  and  »^"c*»  and  duly 
not  vacillating,  or  at  the  disposal  of  common  law.    Irritancies  too,  in-  [r^ritanciei  de- 
carred  by  the  traitor,  in  terms  of  the  same  decision,  and  that  of  Gordon  dared  before 
of  Park,  November  16, 1760,  must  be  declared  before  his  attainder ;  they  ^^^  forfeiture, 
cannot  be  afterwards.    This  prospective  expedient,  in  one  event,  to 

'  See  p.  710,  note. 


720  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,  ours.  Tbis  indeed  is,  of  itself,  obvious,  from  his  giving  them 
Con^^w^dprin- ^^  iHustration  in  his  work  confined  to  dignities.  The  princi- 
cipie  in  excep.  pie  there  involved,  in  the  determination  of  the  succession,  I 

tion  from  alien-  .         •^i_^.i»  i*  f  j        ^.i-^ 

aye.  conceive,  is,«that  the  issue  bemg  aliensy  and  not  subjects,  are 

as  if  they  had  never  existed,  in  the  utmost  sense,  and  hence 
incapable  of  any  prejudice, —  such  as  even  the  consequences 
or  penalties  of  forfeiture, — equally  as  of  civil  benefits.     The 
crown  therefore  can  have  no  interest  in  the  matter, — as  other* 
wise,  in  the  case  of  attainder,  by  the  treason  of  subjects^ — 
being  precluded,  in  this  way,  from  taking  any  thing  from  such 
legal  non-entities,* — as  much  beyond  the  pale  or  knowledge  of 
law,  with  due  apology  toMr  Wallace,  as  his  ideal  men  with  tails.' 
The  next  heir  accordingly  forthwith  succeeds.     Upon  corres- 
rre»cnt  cai^e  of  pouding  ground,  the  honours  of  Earl  of  Newburgh,  Viscount 
iiie  Earldom  of  Kinuaird,  &c.  though  simply  conferred  by  patent,  the  last  of 
December  1660,  upon  James  Viscount  Newburgh,  "ejusquc 
haeredes  quoscunque,"^  have  been  assumed  by  the  heir-general, 
capable  of  taking  in  this  country,  in  exclusion  of  the  nearest, 
in  such  character,  in  terms  of  the  patent,  who  happen  to  be 
aliens,  and  resident  foreigners. 
Curious  con-         Put  the  case,  that  Lord  Lewis   Gordon,  younger  son  of 
inrewd^io*     Alexander  Duke  of  Gordon,  attainted  in  1746,  had  had  after- 
Lord  Lewis       wards  male  issue  born  abroad,  where  he  was,  in  consequence, 
«d  in  ]  746.       obliged  to  reside,  who  again  had  left  male  descendants,  existing 
at  present y — of  course  aliens, — the  latter  necessarily  would  not 
only  have  been  excluded  from  the  Dukedom  of  Gordon,  limit- 
ed by  patent  in  1684,^  to  heirs-male  of  the  body  of  George 
Duke  of  Gordon,  Lord  Lewis's  grandfather,  but  from  the 

Partial  guard     guard  against  the  fatal  consequences  of  treason  to  a  family,  was  sug- 

*fi^*"**|j**^®**"  gested,  the  middle  of  last  century,  by  James  Fergusson  of  Pitfour, 

Faculty   Fer-    l^^an  of  Faculty,  an  eminent  lawyer,  afterwards  promoted  to  the  bench 

gusson.  — ^viz.  to  insert  a  clause  in  the  entail,  enabling  the  possessor  at  the 

time, — ^whcn  the  heir  apparent  should  be  attainted, — so  far  to  alter  it, 

as  to  exclude,  by  requisite  conveyances,  both  him,  and  the  heirs  of  his 

body,  from  the  succession. 

^  By  the  English  law,  even  an  attainted  person  could  take  an  estate 
conveyed  to  him,  though  only  for  the  benefit  of  the  crown.  (See  opinion 
of  the  twelve  Judges  in  the  Airly  case.  Cruise  on  Dig,  p.  163.) 

*  See  p.  620,  note  3.  •  Great  Seal  Register. 

*  Great  Seal  Register. 


IK  SCOTTISH  PEERAGES,  &C.  721 

Marquisate  of  Huntly,  created  in  1599,  and  descendible  at  Forfeiture. 
least  to  such  actual  heirs  of  George  Earl  of  Huntly,  their  ^-"'^'^^^^ 
common  male  ancestor.^  There  being  certainly,  in  the  above 
event,  no  other  heirs-male  of  the  body  of  Duke  George,  the 
Marquisate  would  have  gone,  as  was  in  fact  resolved  by  the 
House  of  Lords  in  1838,  to  George  Earl  of  Aboyne — the 
next  **  habile"  male  descendant  of  the  first  Marquis.  But  sup- 
posing the  crown — as  might  not  unlikely  have  happened,  espe- 
cially after  the  many  recent  Peerage  restorations,  nay  even 
that  of  Francis  Duke  of  Buccleugh  in  1742,  to  the  Earldom  Lonb^Journait. 
of  Doncaster,  forfeited  as  far  back  as  1685 — to  have  natural- 
ised and  simply  restored,  subsequent  to  1838,  the  male  des- 
cendants in  question  of  Lord  Lewis,  this  curious  and  conflict- 
ing situation  of  things  might  have  obtained,  that«they  would 
have  been  Dukes  of  Gordon,  &c.  without  any  demur,  so  far,  ou 
the  part  of  the  said  George  present  Marquis  of  Huntly  (late 
Earl  of  Aboyne),  to  whom  the  matter  is  wholly  ^im  tertii^  ow- 
ing to  his  not  being  sprung  from  the  first  Duke  of  Gordon,  but 
more  remotely : — while,  on  the  other  hand,  he  ought  appa- 
rently to  retain  the  adjudicated  Marquisate,^  though  strictly 
turning,  quoad  the  rehabilitated^  upon  the  same  hinge,  and 
otherwise  conjoined  with  the  Dukedom  in  them.  Could,  in 
such  vicissitude,  the  naturalization  and  restoration  have  here 
a  retrospective,  adverse,  and  injurious  effect  to  the  former? 
At  the  same  time,  as  will  be  afterwards  instructed,  owing  to  a  PaTourabio  re- 
known  specialty,  if  the  issue  of  Lord  Lewis  had  been  born  *"*^  *f  .^^®  "P; 

posed  iMue  of 

in  Scotland  before  the  attainder  in  1746,  they,  or  probably  Lord  Lewis,  in 
their  male  descendants,  would  at  once  have  succeeded  to  aUjJJ^^''®''**^®'^"*" 
theGordonand  Huntly  honours,  &c.upon  the  demise  of  George, 
last  Duke  of  Gordon,  in  1836 — just  as  if  there  had  been  no  for- 
feiture. 

The  law,  above  applied  in  the  instance  of  Gordon  of  Park,  Law  in  the  Park 
may  now,  by  a  kind  of  analogy,  hold  a  fortiori^  when  attainder  ^J!^  b^lSer* 
in  England  in  one  coheirship  to  a  Barony  in  abbey  ance  does  not 
bar,  as  was  formerly  conceived,  the  determination  of  the  hon- 

'  Proved  by  original  documents  in  the  Gordon  Charter-chest. 

■  From  what  was  formerly  shewn,  especially  in  the  case  of  a  Scottish 

honour,  the  noted  precedent  of  Willoughby  of  Parham,  by  the  ^nius 

of  our  lawy  may  not  here  altogether  rule. 

2z 


722  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeitare.    our  in  faTOur  of  the  sole  existing  heir  under  the  other,  which 
was  lately  found  in  the  case  of  the  Barony  of  Beaumont,  not 
an  entailed  honour,  but  merely  constituted  by  writ  of  sum- 
mons.    The  exception  of  alienage,  as  illustrated,  partly  gain- 
AHenage  fonns  ^ays  Lord  Redcsdale's  proposition  of  an  honour,  under  a  re- 
LonTRed*  ^  ^°  mainder  over,  being  "  utterly  gone  "  without  qualification, 
dale's  doctrine,  during  the  existence  of  heirs  of  the  body  of  the  traitor.^     But, 
on  the  other  hand,  in  the  case  of  a  dignity  granted  in  tail- 
male,   under  one  estate  or  limitation — as  to  heirs^male  of 
Qttidjum,  u  to  the  body,  wholly  abstracting  from  remainders,   the   conse- 
q^Aefto(fy,with.quence  would  have  been  different  from  what  was  instructed, 
outremaindert  ?  ^p^^^  ^\^  attainder  of  the  actual  holder  for  high  treason.     The 
Earldom  of  Westmoreland  was  thus  limited  by  letters  patent 
Earldom  of     ^  ^^®  original  grantee  and  the  heirs-male  of  his  body,  under 
Weitmoreiand,  which  au   Earl  thereafter  succeeded,  who  became  attainted. 
James  vl"  ^  ^^^  ^^  treason  was  decided  by  the  Judges,  the  2d  of  James  I. 
to  extinguish  the  honour,  and,  in  contradistinction  to  the 
case  of  a  saving  remainder,  to  bar  the  right  of  the  collateral 
heir-male,  descended  of  the  body  of  the  patentee,  who  claimed 
after  the  decease  of  the  traitor  without  male  issue,  and  whose 
blood  had  received  no  taint  or  corruption.'     By  the  original 
Saeh  honours    English  law,  grounded  upon  the  Statute,  de  donia^  13.  Ed.  I. 
thenindodedin  c,  I,  which  was  then,  and  long  afterwards  at  least,  held  to  ap- 
donis,  as  modi-  ply  to,  and  include  honours,  the  dignity  would  have  been 
fied  by  the  26Ui  saved,  and  found  legally  to  have  been  in  the  claimant,  because 
in  entailed  subjects  comprehending  such — though  otherwise, 
in  respect  to  those  in  fee-simple,^  the  right  of  succession  of 
every  heir  or  individual  distinct  from  the  traitor,  is  thereby 
preserved  intact  and  inviolate,  without  being  affected  or  com- 
promised by  the  offence.     But  then  again,  this  Statute  was 

>  See  p.  717.  I  have  not  space  to  enter  minutely  into  a  distinction 
drawn  by  some  English  lawyers,  in  respect  to  dignities  viewed  as  in- 
corporeal rights,  in  opposition  to  lands  that  are  corporeal ;  and  perhaps 
with  the  less  regret,  as  it  appears  to  be  too  snbtile,  and  nice  spun  ; 
while,  at  the  same  time,  not  properly  borne  out,  or  recognised,  or  estab- 
lished in  practice. 

'  See  Collins  on  Baronies,  pp.  137-8,  et  9eq.  Craise  on  Dig.  p.  118,  and 
Neville's  case,  7  Coke,  pp.  33,  et  seq.  &c. 

*  I  need  hardly  here  add,  that  honours,  and  every  possession  in  fee- 
simple,  are  utterly  gone,  and  forfeited  by  treason. 


IN  SCOTTISH  PEERAGES,  &C.  7S3 

trenched  upon  or  altered  to  a  certain  extent,  by  the  26th  of  forfeiture. 
Henry  VIII.  c.  13,  which  specially  enacts  that  thenceforth 
every  offender,  being  convicted  of  high  treason,  ^' shall  lose 
and  forfeit  such  lands,  tenements,  and  hereditaments,  which 
any  such  offender,  or  offenders  shall  have,  of  any  estate  of  in- 
heritance, in  use  or  possession,  by  any  right,  title,  or  means, 
at  the  time  of  any  such  treason  committed,  or  at  any  time  af^ 
ter;  unnng  to  every  person  and  persons^  their  heirs  and  suc- 
cessors, (fitter  than  the  offenders  in  any  treason,  their  heirs 
and  successors )j  all  such  rights,  titles,  &c.  which  they  shall 
have  at  the  day  of  committing  such  treasons,  or  at  any  time 
afore." » 

There  was,  consequently,  a  manifest  extension  of  the  penal 
lawy  and  it  now  came  to  obtiun  in  virtue  of  the  exception  here, 
tibsit  not  only  the  traitor,  but  also  *^  his  heirs  and  successors," 
were  affected,  and  compromised  by  the  treason ;  which  last 
description  l^ally  include  the  heirs  in  the  same  estate  tail 
with  himself,  and  necessarily  the  cUdmant  in  the  Westmore- 
land case ; — awhile  the  saving  continued  in  favour  of  the  sepa- 
rate guiltless  *^  person,  or  persons,  their  heirs  and  successors," 
protected,  quoad  honoresy  under  received  construction  and  au- 
thority of  the  act  de  donisj  as  formerly,  the  remainder  men ; 
Aey  not  being  held  by  the  English  law  the  heirs  of  the  traitor, 
but  taking,  though  eventually,  in  their  own  right,  as  stran- 
gers or  *'  purchasers "  in  the  strictest  sense,  under  an  inde- 
pendent and  distinct  vested  tide.' 

Bat  suppofflng  the  limitation  (still  without  remainders  over)  suppoung  the 
had  been  simply  to  **  heirs  male,"  (not  restrictedly  of  the  body)^  honour  to  be 
which  words  have  of  late  received  in  England,  by  the  Devon  *«  heir«  male" 
decisioo,  so  broad  a  construction,  equivalent  to  *•  heirs  male  JhJu*h'\uu  ^* 
general,"  or  **  whatsoever,"  and,  in  fact,  embrace  a  far  wider  without  remain- 
range  of  heira-male  than  those  called  nominatim  in  the  Sin- 
clair patent  in  1677,^ — would  the  same  law,  it  may  be  inquir- 
ed, have  stiU  obtained — that  is,  so  as  not  to  save  the  heirs - 
male  coUaieralj  other  than  those  of  the  body  of  the  patentee, 

*  See  Cmlse  on  Dig.  p.  142. 

■  The  new  ground  upon  which  Lord  Redesdale  saves  the  right  of  re- 
mainder men  in  honours  already  glanced  at,  will  be  further  adverted 
to  in  the  sequel.  *  See  p.  712. 


724        INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.    ^  [^  ^^^  Westmoreland  instance  ?     The  legal  understanding 
appears  to  be — though  this  is  not  res  judicata — that  it  would, 
and  that  nothing  but  the  interposition  of  an  explicit  remainder 
would  protect  the  former.     In  this  conclusion  I  am  further 
UnfaTourabie    Supported  by  the  opinion  of  Mr.  Adam,  the  English  authority 
«uchM«e*aiso   referred  to, — and   who  has  stated,  in  an  answer*  to  this 
hy  late  Mr.      identical  question,  professionally  put  to  him,  that  the  limitation 
*'  still  conveyed  but  an  Estate  tail  male  general,"  while  these 
^*  collateral  heirs  could  not  take  as  in  remainder,  and  conse- 
quently (that)  their  interest  would  be  affected  and  destroyed 
Same  conse-    by  the  attainder  of  the  tenant  in  tail  in  possession."     The 
quence  would   ggjj^Q  doctriue  would  indeed  follow  undoubtedly,  according  to 

obtain  under  •'      ,  ° 

Lord  Redet-     the  modcm  imprcssiou  of  Lord  Redesdale,  as  will  be  after- 

dalei  doctrine.  ^^^  ^^^^  j^^^  ^^  ^j^j^j^  j^.  ^^^  y^  ^^^  difficult  tO  Subscribe, 

that  honours  are  not  included  under  the  antecedent  English 
statutes,  and  who  puts  the  exclusive  exception  in  favour  of 
remainder  men  upon  another  footing.      We  now  naturally 
come  to  a  specialty  under  this  head,  which,  although  in  part 
already  contemplated  and  obviated,  through  the  medium  of 
the  Scottish  illustrations  given,  has,  as  well  known,  occa- 
sioned much  discussion,  and  been  greatly  mooted  in  our  days. 
Caie  of  an  heir-  U  involves  the  casc,  not  of  a  holder,  but  of  the  direct  heir- 
Sr^ml  e"uteapP«^«»^  to  a  dignity  in  tail  male,  who  had  been  forfeited  for 
tail,  forfeited,   troasou  ouly  during  his  apparency^  but  survived  when  the 
ini?  the  holder   successiou  eventually  opened  to  him,  in  terms  of  the  patent, 
of  a  dignity,     ^q j  ^y^^  question  is,  whether  this  qualifying  circumstance,  as 
thought  by  some,  coupled  with  the  heir-apparent  dying  with- 
out issue,  equally  sunk  and  destroyed  the  honour,  and  barred 
the  right  of  the  guiltless  collateral  beir-male,  (who  otherwise 
took,)  as  in  the  Westmoreland  case  ?     This  matter,  which  eli- 
cited ingenious  views,  and  arguments  of  a  favourable  tendency, 
though  unavailing,  and  strictly  without  solid  foundation  in  our 
original  law,  from  Scottish  lawyers,  is  exemplified  and  solved 
by  the  following  cases  of  Airlie,  and  (actually)  of  Wemyss. 
Case  of  the    The  Earldom  of  Airlie,  Barony  of  Ogilvie  of  Lintrathen, 
AiSe'inififi2,  &c.  was  granted  by  patent,  dated  April  2,  1639,  to  James 
and  thereafter!  Lord  C)gilvie,  *^  suisque  hseredibus  masculis,  sibi  in  patrimo^ 

^  Penes  auetorem. 


IN  SCOTTISH  PEERAGES,  &C.  725 

nio  et  statu  succedentibus."*  It  would  appear  that  heirs-male-  Forfeiture. 
general  were  here  in  view,  because,  shortly  previous  to  this, 
by  a  regulating  charter,  the  18th  of  July  1635,  in  force  at  the 
above  date,  the  ancient  Barony  of  Lintrathen,  and  the 
family  estate,  thus  evidently  referred  to,  are  destined  to  the 
patentee  in  liferent,  with  limitation  to  James  Master  of  Ogil- 
vie,  his  eldest  son,  (afterwards  second  Earl  of  Airlie,)  and  the 
heirs-male  of  the  body,  between  him,  and  Helen  his  wife ; 
whom  failing,  to  the  other  heirs-male  of  his  body ;  whom/ail-- 
ing^  ^^legitimis  et  propinquioribus  haeredibus  masculis  et 
assignatis  dicti  Jacobi  Magistri  de  Ogilvie  quibuscunqueJ*^ 
As  to  this  fact,  which  however  does  not  concern  the  present 
point, — only  compromising  the  lineal  heirs-male,  in  one  estate- 
tail  with  the  patentee,  more  hereafter. 

James  Lord  Ogilvie,  son  and  heir-apparent  of  David  third 
Earl  of  Airlie,  who  took  as  heir-male  of  the  body  of  the  for- 
mer, was  attainted  by  Parliament  of  high  treason  in  17 15,  dur- 
ing the  lifetime  of  his  father,  whom  he  survived ;  and  died  even- 
tually without  issue  about  1730.  And  there  was  another  for- 
feiture, upon  the  same  ground,  in  1746,  of  David  Ogilvie,  Lord 
James's  nephew,  son  and  heir-apparent  again,  at  the  time,  of 
John  Ogilvie,  his  immediate  younger  brother,  who  was  never 
attainted,  but  came,  in  1730,  after  the  death  of  his  said  attaint- 
ed brother  Lord  Jameef,  to  he  heir  in  terms  of  the  patent,  and 

*  Great  Seal  Register. 

'  Ibid,  The  adjunct  in  the  Airlie  patent,  succeeding  to  the  estate^ 
&c.  with  other  more  inoonyenient,  and  difficult  ones  in  such  grants, 
has  been  already  alluded  to,  (see  pp.  202-3-4,  note^  205,  221-2,  &c.) 
This  objection  was,  in  consequence,  urged  by  the  crown  in  the  identi- 
cal case  of  Airlie,  that  the  succession  to  the  dignity  necessarily  depend- 
ed upon  the  succession  to  the  estate,  and  that  the  reference  to  the 
charter  1636  did  not  merely  serve  as  a  rule  or  criterion  of  descent, 
but  denoted  and  enforced  an  insei)arab]e  union  between  both  the  hon- 
ours and  lands.  To  which  it  was  not  irrelevantly  replied,  that  the  ar- 
gument proved  too  much,  as  the  alienation  of  any  portion  of  the  patri- 
mony, however  9fnaU^  would,  on  tliat  construction,  defeat  the  title  to  the 
dignity.  No  direct  opinion  was  expressed  upon  the  point  in  the 
House  of  Lords  ;  but  the  objection,  from  what  ultimately  followed,  may 
be  held  to  have  been  virtually  overruled,  and  that  although  the  Air- 
lie estate  has  not  in  ewry  respect  descended  entire  to  the  heir. 


726  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

^^^JJJiJJ[^'  male  represeutative  of  the  family.'  David  likewise  survived 
his  father ;  so  that  there  were  here  two  attainders,  in  pari  ctxsUj 
in  the  direct  descent  from  the  Airlie  patentee,  though  quali- 
fied, in  respect  to  the  last  traitor,  first  by  a  pardon,  and  there- 
after by  an  Act  of  Parliament,  the  23d  of  George  III.  c.  34, 
that  removed  certain  disabilities,  and  incapacities,  but  without 
affecting  the  dignities.  Upon  the  failure  and  extinction  of  the 
above  David  Ogilvie,  and  David  his  only  son,  the  same  were,  at 
length,  claimed  in  1812,  by  Walter  Ogilvie,  unattainted,  the 
younger  brother  of  the  former,  by  petition,  and  reference  to 
the  Lords,  by  whom,  after  much  discussion,  it  was  resolved, 
(the  claim  being  likewise  pushed,  after  the  death  of  Walter,  by 
David  Ogilvie  his  son),  in  conformity  with  the  opinion  erf  the 
favounbie  by "  twelve  Judgcs,  who  were  consulted  upon  the  occasion,  that 
the  English  they  could  not  take,  but  were  barred  by  the  attainders,'  which 
Hou8eofLords.ftt  the  same  time  fully  forfeited  the  dignities,  in  respect  at 
least  to  the  direct  heirs  in  tail-male.  In  consequence  of  this, 
David,  the  claimant,  present  Earl  of  Airlie,  availed  himself,  as 
is  well  known,  of  a  special  Act  of  restoration  to  the  honours, 
which  past  in  his  favour  in  1826.3 
Owe  of  the  The  case  of  the  Earldom  of  Werayss, — though  never  push- 
Wemyw,  essen-  ©d  to  a  claim,  or  publicly  mooted,  was  however,  in  terms  of 
tiaiiy  the  same.  ^\^q  regulating  charter  or  patent,  the  23d  of  August  1672,*  the 
same  in  essentials.  Francis,  the  present  Earl,  no  doubt  took 
through  uncorrupted  blood,  besides  under  a  remainder  there, 
in  favour  of  Margaret  Countess  of  Wemyss,  in  her  own  right, 
and  the  heirs-male  of  her  body;  but  then  it  equally  embraced 
David  Lord  Elcho,  his  grand-uncle,  a  previous  and  preferable 
heir-male,  under  that  precise  character,  who  had  been  attaint" 
ed  in  1746,  during  the  lifetime  of  James  Earl  of  Wemyss,  his 
father,  the  grandson  and  heir  of  Countess  Margaret;  and 
whom  h&  survived  without  issue, — ^identically  as  in  the  Airlie  in- 
stances.    Both  being  thus  included  (whatever  independently 

*  IIo  took  the  title  of  Earl  of  Airlie,  and  his  son  that  of  Lord 
Ogilvie. 

'  See  Cruise  on  Dig.  p.  131,  et  seq. 

■  Brit.  Acts.    Tho  above  account  is  from  the  printed  papers  and 
procedure  in  the  case,  Cruise,  iif.  sup.  &c. 

*  Great  Seal  ^Register. 


IN  SCOTTISH  PKBRAQESy  &CC.  7S7 

held)  in  one  simple  limitation,  to  heirs-male  of  the  body,  the  Forfeiture. 
treason  of  Lord  David,  agreeably  to  the  Airlie  finding,  proved  ^•^^^"^^ 
as  £atal  to  the  claim  of  the  other,  who,  in  consequence,  under 
the  mere  description  of  *^  Francis  Baron  Wemyss,"^  his  recent 
British  title,  conferred  in  1821,  obtained  also,  in  1826,  a  Par- 
liamentary restoration  to  the  Wemyss  dignities.'  In  this  case 
it  was  only  necessary  to  rescind  the  attainder  of  David  Lord 
Ekho ;  but  in  that  of  Airlie,  which  was  more  complex,  it  be- 
hoved to  rescind  both  those  of  "  James,  eldest  son  of  David 
Earl  of  Airlie  (Lord  Ogilvie,)  and  of  David  Ogilvie  (his  ne- 
phew), taking  upon  himself  the  title  of  Lord  Ogilvie,"'-^which 
forms,  accordingly,  were  respectively  adopted.  And,  in  this 
manner,  two  noble  and  estimable  families  were  most  equitably 
reinstalled  in  the  honours  of  their  ancestors. 

The  prominent  arguments,  that  may  perhaps  strike  one  as  Anfuments 
chiefly  weighing  in  the  Airlie  case,  seem  to  be  these.  Sup-  have  weighed 
posing,  as  previously  admitted,  the  Statute  de  donia,  which  Jj^*^*  ^*'"* 
has  been  alluded  to,  to  remove  corruption  of  blood  in  dignities  in 
tail-male,  such  as  Airlie, — so  far  as  it  has  been  considered, — 
then  the  surviving  traitor  in  question  has  capacity  to  ^^  take," 
but  not  for  himself,  but  for  the  crown,  in  whom  the  honour 
would  then  vest  from  want  of  a  proper  heir, — ^in  consequence 
of  his  attainder, — that  is,  of  one  able  to  maintain  or  rather  re- 
tain possession.  Nay,  the  same  result  would  follow  in  vir- 
tue of  the  Act  of  the  26th  of  Henry  VIIL  c.  13,  which 
trenches  upon,  and  to  a  certain  degree  alters  the  other,  inas- 
much as  it  forfeits  to  the  traitor,  and  his  heirs  in  the  same 
estate  tail,  not  only  **  any  estate  of  inheritance,  in  use  or  pos- 
session^  by  any  right,  title,  or  means,  at  the  time  of  any  such 
treason  committed ;  "—but  also  ^^or  at  any  time  c^er"^ — 
under  which  last  terms,  the  interest  or  inheritance,  by  the  fu- 
ture opening  of  the  Airlie  succession  to  the  Airlie  traitor,  was 
held  to  be  comprized,  llie  honours,  therefore,  became  duly 
and  adequately  forfeited, — that  event  having  actually  occur- 
red in  his  instance.     In  this  way,  in  support  of  such  conclu- 

'  It  will  be  observed,  that  he  is  as  little  described  here  as  Earl  of 
Mareh,  see  p.  207* 

•  Brit.  Acts.  '  J^d. 

*  See  p.  723. 


728  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeitaiv.  gioD,  the  twelve  Judges  inculcated  in  the  Airlie  case,  that  **  a 
conveyance  to  an  attainted  person,  ever  so  long  qfter  his  at- 
tainder, would — carry  an  estate  to  him,  which  he  would  be 
capable  of  tahingy'  but  only  **  for  the  benefit  of  the  Crown ;"' 
— while  honours,  included  by  English  authorities  in  real  in- 
heritances,— in  such  alternative, — ^naturally  return  to  the  lat- 
ter, from  whom  they  originally  came. 

But  over  and  above,  the  Judges  likewise  thought  that  the 
Statute  de  donisj  saving  the  rights  of  all  heirs  of  entail  excepting 
the  traitor,  does  not,  ex  terminisy  embrace  the  peculiar  Airlie 
situation,  whatever  it  may  else  do, — ^where  the  traitor  was  not 
heir,  or  tenant  in  tail  in  possessiofij  or  had  done  any  thing  in 
that  character  at  the  time  of  his  attainder ;  which  precise  situ- 
ation, with  certain  acts  incurred,  according  to  them,  by  the 
traitor,  then  or  before,  it  alone  contemplates.' 

This,  with  every  submission, — while  the  effect  of  the  Sta^ 
tute  dedoniSy  as  relating  to  dignities,  and  so  far  removing  cor- 
ruption of  blood,  was  at  the  same  time  first  questioned 
in  the  Airlie  case, — a  matter  to  be  afterwards  noticed, — is 
all  I  deem  myself  entitled  to  offer  upon  the  curious  and  obvi- 
ously nice  points  in  question,  without  presuming  to  go  far- 
ther into  the  subtile  arguments,^  and  distinctions,  there  moot- 
ed. For  these — which,  as  connected  with  English  law,  I  may 
not  be  well  able  to  appreciate,  I  must  refer  to  the  appropriate 
sources.  What  I  have  adverted  to,  however,  may  possibly  be 
sufficient  to  evince  the  legal  insufficiency  of  the  Airlie  and 
Wemyss  claims,  in  bar  of  attainder.  I  need  not  add,  that  ex« 
eluding  the  application  of  the  Statute  de  donis  to  honours, 
they  were  then  solely  amenable  to  common  law,  and  subject 
to  forfeiture  in  every  view. 

'  See  Cruise,  ut  sup.  p.  163.  '  Ibid,  p.  168. 

*  Stress  was  laid  by  the  Judges  upon  the  other  doctrine,  in  Neville's 
case,  that  a  Peer,  by  attainder,  forfeited  '<  his  estate^'*  in  **  a  dignity— by 
force  of  a  condition  taciie  annexed  to  the  estate,  because  he  owes  duties 
to  the  crown  in  respect  of  it,  which  are  grossly  violated  by  the  offence 
of  high  treason,"  from  whence  they  inferred  the  forfeiture,  independent- 
ly of  the  grant  being  only  in  tail- male,  to  be,  on  a  separate  ground,  by 
common  law,  and  hence  irretrieTable. .  (Cruise,  ut  sup.  p.  162.)  Sed 
qutrre  ? 


IN  SCOTTISH  PEERAGES,  &C.  729 

There  never  was  an  express  forfeiture  of  the  Airlie  or    Forfeitore. 
Wemyss  dignities;  nay,  the  latter  has  inadyertently  contmued, 
without  intermission,  in  the  Union  Roll,  which  confirms  what  Airlie  case, 
I  have  remarked  as  to  a  virtual,  implied  one,  in  the  way  il-JJ^of  the  gene- 
lustrated,  in  reference  to  them,  being  as  fatal  and  conclusive  rix  role,  that  nn 
as  the  former.     But  another  material  question  might  arise,  |!|^eiTequipon- 
affectine  the  eventual  condition  of  the  Airlie  nonours, — under  ^«'*"'  ^  *°  ®** 

^  .  ,  press  one  of  a 

the  hypothetical  continuance  of  the  forfeiture, — ^now  most  disnity. 
happily  removed.   Holding,  as  would  seem  just,  the  regulating 
charter  of  the  Airlie  estate,  in  1635,  to  be  taken  into  account,  other  point 
nay  to  fix,  and  constitute,  and  to  be  the  regula  regulans  of  the  ^^^^l^^the 
descent  of  the  dignities,  under  authority  and  adoption  in  effect,  above,  on  the 
of  the  patent  in  1639,  which  directs  to  it  accordingly,  would  thT  forfeiture. 
the  heirs-male  collateral,  on  failure  of  the  direct  heirs-male  of  ?''*°«^.^®"'" 

ference  in  the 

the  patentee, — ^namely,  those  in  the  same  estate-tail  with  the  patent  to  a  rui- 
traitor, — be  saved  from  his  treason,  and  be  then  duly  entitled  JJ^the'esute  *^* 
to  the  honours,  in  virtue  of  the  ultimate  remainder  over  to  wUk  remain- 
heirs-male  whatsoever  in  the  charter  in  question  ? '  If  the 
remainder  had  been  specifically  contained  in  the  patent,  they 
assuredly  would ;  but  the  present  matter  is  not  actually  res 
judiciUa,  although  such  references  in  patents  to  the  settle- 
ments and  entails  of  the  family  estates,  in  order  naturally  to 
make  them  and  the  honours  go  simul  et  semel^ — nay,  on  other 
occasions  with  far  less  precision,  are  by  no  means  uncommon 
with  us.*  We  seem  thus  to  have  made  the  latter  an  integral 
portion  of  the  former,  from  which  the  same  favourable  result 
may  be  held  still  to  follow,  the  referential  remainders  in  this 
guise  being  indubitably  warranted  by  the  crown  ;  while,  as  has 
been  fixed  by  the  instance  of  Gordon  of  Park,^  (where  the 
remainder  over  was  solely  by  a  subject,)  the  nature  and  tech- 
nical import  and  force  of  our  practice,  in  such  respects,  are 
by  no  means  to  be  overlooked  in  the  apposite  construction. 

I  do  not  precisely  know  how  the  English  law  abstractly 
would  view  the  question.  I  may  only  here  add,  that  the  limit- 

*  See  p.  725.   **  AtsignaM*  in  the  remainder  may  be  held,  appiicando 
singula  tingulity  to  relate  to  the  lands. 

'  For  a  few  such  instances,  among  various  others,  see  pp.  Id9, 200, 
202-3-4-6,  &c. 

•  See  pp.  709-10,  note. 


I 


7S0  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,    ation  in  the  patent  of  the  ducal  honours  of  Roxburghei  dated 

^^"^^^"^^     25th  of  AprU  1707,*  after  that  to  heirs-male  of  the  body  now 

Com  of  the      Spent,  in  favour  of  the  heirs  appointed  by  previous  grants  to 

R«b^he!'in  "  succeed"  to  the  title  of  Earl  of  Roxburghe,  was  decided  by  the 

1812.  House  of  Lords,  in  1812,  ezclusivelyy  in  virtue  of  a  noted  and 

special  limitation  and  femainder  over — in  a  private  nomination, 

authorized  by  a  royal  charter,  of  the  Earldom  and  estates  of 

Roxburghe,  in  1646,'  to  constitute  the  existing  title  and  right 

to  the  entire  dignities  and  estates  of  Roxburghe*     Hence,  so 

far  at  least,  the  utmost  force  has  been  attached  to  such  mode 

of  conveyance,  whatever  might  hold  in  respect  to  forfeiture. 

What,  ander        But,  transposing  the  occurrence  of  the  material  fact  consi- 

tdi  Tfthe^t«*^  dered  in  the  Airlie  and  Wemyss  cases,  and  imagining  the  trait- 

tainted  heir-ap-  ors  there  to  have  predeceased^  instead  of  surviving  the  respec* 

ceaie  the  holder  ^^^^  possoBsors  of  the  dignities,  at  the  date  of  the  forfeiture, — 

of  the  honour,   while  moreover,  e  converso^  they  also  left  issue, — we  next  come 

leaving  iMue*  ,     ,  .  . 

are  the  latter     to  a  distinct  favourable  specialty  (independent  of  that  through  a 

X^^a^^  uk-  ^^^™^der  over)  that  actually  would  protect  the  latter  against 

log  ?  the  treason,  though  taking  under  one  and  the  same  limitation,  or 

estate-tail,  with  the  attainted  parent.  The  Dukedom  of  Athole 

Case  of  the       was  granted  by  patent,  dated  June  30, 1703,  to  John  Marquis 

Athole^n  1764.  ^'  Athole,  **  ot  haercdibus  tno^ctf/iide^o  corpora, quibusdefici- 

entibus  hseredibus  masculis  de  corpore  defuncti  Joannis  March- 

ionis  de  Athole  sui  patris."  ^    It  was  hence  a  dignity  in  tail-male 

in  the  first  instance,  with  a  remainder  over,  but  which  last  has 

not  yet,  or  is  likely  to  come  into  play.     The  patentee  had 

issue,  besides  William  Marquis  of  TuUibardin,  his  eldest  son, 

attainted  in  1715,  (when,  and  in  1733,  there  passed,  during  the 

lifetime  of  his  father,  two  remarkable  Acts,  establishing  the 

succession  in  the  other  heirs-male,  just  as  if  he  had  never  lived,^) 

Lords  James,  and  George.     Lord  James,  in  consequence,  by 

his  parent's  demise,  and  even  during  the  existence  of  the  Mar- 

*  Great  Soal  Register. 

'  Ibid,  and  authorities,  and  informations  in  the  case. 

'  Great  Seal  Register,  and  Acts  of  Parliament,  last  Edit.  vol.  XI.  pp. 
117-18,  where  the  patent  is  also  recorded.  Under  the  remainder,  the 
Dukedom,  &c.  would  go  to  the  noble  family  of  Dunmore,  though  not 
of  the  body  of  the  patentee,  but  only  of  his  father, 

*  Sec  p.  202. 


IN  SCOTTISH  PEERAGES,  &;C.  781 

quia,  bis  eldest  brother,^  became  second  Duke  of  Athole ;  while    Forfeitare. 
Lord  George,  as  well  known,  was  attainted  in  1745,  for  his     ^— 'v-^w^ 
prominent  concern  in  the  rebellion.     But,  after  the  death  of 
Duke  James,  without  male  issue,  in  1764,  the  honours  were 
claimed,  by  reference  to  the  Lords,  upon  petition,  by  John 
Murray,  son  of  the  identical  attainted  Lord  George,  and  al- 
lowed him,  owing  to  the  latter  having  predeceased  the  previous 
holder  of  the  honours,  and  not  survived  him,  as  in  the  Airlie 
and  Wemyss  instances.'     Here,  upon  the  then  admitted  prin- 
ciple of  corruption  of  blood  not  applying  to  entailed  dignities,  Opposite  rea- 
the  heir  could  not  only  take,  but,  e  conversOy  being  no  traitor,  ■^"^^** '®" 
without  interception  or  impediment, — for  his  own  benefit,  in-  aity,  why  the 
stead  of  that  of  the  crown.      In  these  circumstances  it  was|||||^^^^^^[|^ 
held  he  could  directly  make  resort  to  Duke  John,  hb  grand-  attainder. 
&ther,  the  patentee,  as  in  the  ordinary  case  of  entailed  suc- 
cession in  England,  and  claim  from  him,  perjbrmam  doni,— 
although  still  de  facto — or  necessarily  connecting  his  ^^  pedi- 
gree *''  through  the  traitor.   For,  under  the  Statute  de  donisy 
Tegulatmg  enUdled  succession,  all  called  in  an  entail  take 
from  the  original  donor,  or  entailer,  perjbrtnam  doni^  without 
being  prejudiced  by  the  acts  of  the  intervening  predecessors. 
And  while  this  obtained,  the  Athole  claimant  took  nothing 
from  his  attainted  father,  who  was  never  tenant  in  tail  in  pos- 
session, or  could  forfeit  "  by  any  right,  title,  or  means,"  &c.  in 
regard  to  the  matter,  during  his  life,  so  as  to  bring  him  here 
within  the  penal  enactments  of  the  Act  26th  of  Henry  VI H/ 
The  authority  and  ground-work  for  the  resolution  is  thedoc-J'***"***®"^*^ 

,  °  inciilcators  of 

trine  admitted  by  Blackstone,    Chief  Baron  Parker,  Lord  the  doctrine. 

'  Marquis  William  surviyed  until  1746,  (being  also  engaged  in  the 
rebellion,  1745, )  when  he  died  without  issue.  Cruise,  in  his  report  of 
the  Athole  case,  erroneously  represents  Duke  John,  the  patentee,  as  being 
succeeded,  on  his  death  in  1725,  by  Duke  James,  '^  his  eldest  son,"  which 
the  latter  then  obviously  was  not.    See  his  work  on  Dig.  p.  128. 

'  Lords'  Journals,  February  2,  and  7,  17G4  ;  also  papers  and  autho- 
rities in  the  claim,  Cruise  on  Dig.  pp.  128-9,  el  seq,  &c. 

*  ^  His  title,  or,  to  speak  more  accurately,  his  pedigree, "  Such  are 
the  relative  words,  in  the  opinion  of  Sir  Fletcher  Norton,  in  1761,  in  the 
present  case,  founded  upon  by  the  claimant,  (ap.  Cruise,  utsup.  pp.  120- 
30.)    The  distinction  is  curious,  and  rather/^ie. 

*  See  Cruise,  Mt  sup,  and  p.  723. 


732  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeitore.     Nottingham  in  Viscount  Purbeck's  ease,  and  long  before  by 

^'^'""^'^^     Coke,  and  the  Judges  unanimously  in  that  of  Neville  in  the 

reign  of  James  I.  with  sundry  others,  ^  that  an  honour,  as  well 

Alone  founded  as  lauds.  Came  under  the  above  Statute  tie  donis^^  (though 

tate'!fccfoi«w,*forP**'^"^y  altered  by  the  26th  of  Henry  VIII.)   which  was 

the  lifnour       viewed  as  thus  operating  in  respect  to  honours.    For  without 

would  be  other-  *^  o  *  *    i  i  j 

wUegone.  such  Statutory  intervention  the  Dukedom  of  Athole  would 
have  been  utterly  sunk  and  gone,  necessarily  by  common 
law,  to  the  claimant  and  his  heirs — abstracting  from  the  re- 
mainder over,  as  to  which  more  immediately.     It  would  ap- 

fiit  iSSdied^by  P®*'^  ^  ***^®  ^®®°  *"*  reserved  (directly  at  least)  for  the  late 
Lord  Redes.  Lord  Redcsdalc,  and  the  Attorney-General  in  the  Airlie  case, 
ney^Generai,  in  ^o  question,  and*  deny  the  application  of  the  Statute  de  donis 
the  Airlie  case.  ^  dignities,'  in  this  manner  traversing  and  unhinging  what 
may  not  inadequately  be  viewed  as  established  law  and  rights. 
Lord  Redesdaie  |^^j  inducinff  uutoward  and  unlooked-for  consequences.     His 

holds  remain-  .  •••  ••• 

ders  to  save  in-  Lordship  even  maintains,  in  accordance  with  the  doctrine, 

'ro*r^'tri'from  *^^  ^^  "8*^'  ®f  hcirs,  in  virtue  of  remainders,  against  attain- 

forfeiture,  with-  dcr,  is  uot  thereby  saved,  as  was  imagined/  but  exclusively, 

tatute.  j£  J  ^^y  ^^  speak,  by  a  kind  of  fiction, — ^upon  the  supposition 

of  every  individual  remainder  over  being,  per  se^  a  separate 

original  grant  of  a  dignity,  and  so  to  be  construed— diough 

*  See  after^rards. 

'  Blackstone's  Com.  Edit.  1770,  II.  p.  113.  Eden's  Reports,  II.  p.  373. 
Lord  Nottingham's  Speech  in  Purbeck  case,  ap.  Cruise,  ut  sup.  p.  124, 
n.  Shower's  Parliamentary  Cases,  pp.  5,  et  seq.  Coke's  Rep.  p.  34,*- 
(Edit  1826,  vol.  IV.  pp.  120-1.)— Ist  Inst.  p.  9,^-  &c.  &c. 

'  See  Third  Report  of  the  Lords  Committees  on  the  Dignity  of  a 
Peer  of  the  Realm,  &c.  pp.  68,  et  9eq.  74,  &c.  &c.  It  is  generally  stated 
— and,  as  far  as  I  know,  without  contradiction — to  be  framed  by  Lord 
Redesdaie.    Also  Cruise,  ut  9up.  pp.  132-3. 

*  See  Coke's  Rep.  p.  34,^  And  in  Viscount  Purbeck's  case,  the  At- 
torney-General thus  addressed  the  Lords,  for  the  crown,  **  The  Statute, 
De  donis  canditionalibuSf  extends  to  honours ;  the  word  terram  would 
be  thought  an  improper  word  to  comprehend  all  things  tailable,  yet 
said  to  extend  to  a//,  and  to  honours  too,  1  Inst.  20 ;  and  if  an  honour 
can't  be  entailed,  then  no  remainder  can  be  limited ;  and  there  be  many 
Lords  that  sit  in  this  House  by  reminder,  by  good  title."  Shower's 
Parliamentary  Cases,  p.  5.  The  Purbeck  case,  in  1678,  involved  the 
surrender  of  an  honour  to  the  crown,  which  was  then  disallowed,  though 
the  practice  certainly  continued  in  Scotland  till  the  Union. 


IK  SCOTTISH  PEERAGES,  &C.  733 

only  to  take  effect  afterwards.^     And  this,  however  numerous     Forfeiture. 
the  remainders,  and  merely  comprized  but  in  one  instrument,     ^^"^"^^"^^ 
— and   otherwise  operating,  quoad  the  order  of  succession, 
like  common  substitutions,  or  even  a  single  one,  with  us. 
Thus,  to  appeal  (with  Lord  Redesdale)  to  the  instance  of  the 
Viscounty  of  Bolingbroke,  which  was  granted  by  patent  in  cue  of  the 
1712,  to  the  celebrated  Henry  St.  John,  and  the  heirs-male  of  JjJ?°"°^J^°^.^ 
his  body,  with  remainder  to  Sir  Henry  St.  John,  his  father,  and  1754. 
the  heirs-male  of  his  body,  there  were  here  accordingly  two 
distinct  patents  or  creations  of  two  distinct  dignities, — though 
identical  in  name  and  by  date,' — whereby  the  heirs-male,  un- 
der the  last  remainder,  were  eventually  enabled  to  succeed, 
as  resolved,  in  1754,'  notwithstanding  the  noted  attainder  of 
the  patentee  in  17 15,  after  the  period  of  his  death,  and  the  con- 
sequent extinction  of  those  in  the  same  estate-tail.     It  is  to 
be  remarked,  that  the  patentee  literally  also  again  took  in  the 
above  way,  as  nearest  heir-male  of  Sir  Henry  his  father,  whom 
he  survived;  but  Lord  Redesdale  (still  in  unison  with  his  ^^'^""S®  coo* 
opmion)  sensibly  mculcates,  contrary  to  some,  that  he  legally  tertained  there. 
here  had  no  interest,  which  had  been  spent.^     And,  on  the  op- 
posite supposition,  the  case  indeed,  by  the  peculiar  English 
law,  might  have  been  much  the  same  with   Airlie.      The 
traitor  would  have  re- taken,  but  not  for  himself,  but  for  the 
crown,  and  the  honour  would  have  been  irretrievably  forfeit- 
ed.    Whatever  there  may  be  in  Lord  Redesdale's  peculiar 

*  In  such  event,  he  says,  **  the  dignity,  so  granted,  (by  the  saving  re- 
mainder) will  not  be  the  dignity  which  existed  before  the  attainder ; 
it  will  be  a  new  and  distinct  dignity,  of  the  same  quality  and  name^  but 
not  the  same  dignity."    Third  Rep.  ut  mip.  p.  76.    See  also,  upon  this    > 
head,  pp.  74-6,  ibid. 

'  See  previous  note. 

*  The  Lord^  Journals  (vol.  XXVIII.  p.  204,)  bear  that,  Feb.  12, 1764, 
Frederick  St.  John,  (grandson  of  Sir  Henry  the  &ther,  and  heir-male 
of  his  body  through  a  younger  brother  of  the  patentee,)  **  by  yirtue  **  of 
the  remainder,  daimed  the  honours,  and  was  **•  introduced"  accordingly, 
and  took  his  seat,  fiolingbroke,  the  statesman,  as  is  equally  note- 
rionSy  was  partially  restored,  as  in  the  instances  of  Sinclair  and  Mar- 
shall, (see  pp.  712,  n.  714^  n.)  but  not  so  as  to  repone  him  in  the  dignities. 
See  also  Third  Report,  ut  sup.  pp.  76-7. 

*  For  a  curious  distinction  here,  drawn  by  Lord  Redesdale,  in  the 
case  of  landy  by  English  law,  see  Third  Rep.  ut  tup.  p.  77. 


734  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiuire.    doctiine,  it  yet  goes  more  effectually  to  protect  the  remainder-^ 

men^  in  the  Scottish  conveyances  noticed  at  the  outset,^  against 

Whatever  the  attainder,  as  well  as  those  in  the  instance  of  the  Dukedom  of 

consequence^tbe  Somerset,  (independent  of  the  Statute  de  donisy  &c.>)  which 

same  in  remain-  he  has  elaborately  referred  to  in  exposition  of  it.^     We  in  fact 

only  arrive  at  the  same  favourable  conclusion  by  a  different 

route ;  while  the  precedent  of  Bolingbroke,  as  formerly  hint- 

ed,  becomes  an  additional  illustration  in  point. 

The  proteeUon     To  rocuT  to  dignities  in  tail  male  nrnply^  although  at  the 

uof  *^^' r  ^b  ^™®  ^™®  ^^  '^^y  ^®  confessed  that  there  is  foundation  ab* 

the  sutute'  <ie  stractly,  and  ex  terminis  for  Lord  Redesdale's  or  the  Lords 

n^  rapreufy  Committees'  restricted  interpretation  of  the  Statute  de  donisj 

there  afforded,  go  as  not  to  comprehend  honours,  and  of  course  not  to  ex- 

structiveiy^n.  cludc  Corruption  of  blood  in  respect  to  them,^  still  this  is  now 

ured  into  law. 

'  See  pp.  709-12-13.  •  See  p.  716. 

'  It  is  curious  to  observe,  under  favour  of  the  law,  perhaps  too  much 
originating  in  the  authority  in  question,  that  in  the  Sinclair  patent  in 
1677}  (see  pp.  712-14,)  there  would  have  been  no  less  than  six  distinct 
patents  or  creations ;  and  in  that  of  Kintore  in  1694,  and  others,  many 
more,  although  it  may  have  indeed  little  struck  the  humble  conooctorSy 
or  framers,  or  the  Scottish  advisers  of  the  crown,  that  they  were  then 
specially  discharging  so  huge  an  exercise  of  the  Royal  prerogative. 

^  The  Statute,  strictly  speaking,  merely  concerns  tenements  and  lands, 
and  not  honours,  especially  such  as  are  personal.  It  was,  however,  up- 
on the  supposed  connection  between  lands  and  an  honour,  that  Sir 
Edward  Coke  held  that  of  Westmoreland  to  be  within  the  former. 
Aud  this  territorial  postulate,  in  some  shape  or  other,  caused  a  demur 
at  first  to  Chief  Baron  Parker,  in  the  case  of  the  Earldom  of  Ferrers 
created  in  tail-male  ^*  without  mention  of  any  locality,"  after  the  con- 
viction and  execution  of  Earl  Ferrers  for  felony  in  1760.  Being  thus 
entirely  personal,  it  was  difficult  to  include  it  within  the  Statute,  by 
which  forfeiture  for  the  crime  could  alone  be  avoided*  At  length  he 
resolved,  that  as  the  Viscounty  of  Tamworth,  a  dignity  ^  named  from 
a  place — (was)  created  by  the  same  patent,''  the  Earldom  was  likewise 
80  protected ;  for  *^  otherwise  this  absurdity  would  plainly  follow  ;  that 
where  two  honors  were  conferred  and  limited  in  tail  by  one  and  the 
same  patent,  the  one  from  a  place,  and  the  other  not," — ^the  last  would 
be  forfeited,  and  the  other  not.  (Third  Report  of  the  Lords  Conmiitteea, 
iU  9up,  p.  72.)  This  may  not  seem  conclusive  reasoning ;  it  might  be  ar- 
guedy  that  the  Viscounty  of  Tamworth,  the  lesser  honour,  should  rather 
succumb  to,  and  be  thus  metamorphosed  into  the  nature  and  condition 
of  the  hi^er,  and  be  hence  lost  with  it,  by  *^  attraction,*'  But  be  this 
as  it  may,  the  Earldom  in  view  was  acc(Nrding]y  saved ;  and  it  has 


1" 


IN  SCOTTISH  PEERAOBS,  &CC.  735 

not  res  integral  the  contrary  baying  bo  long  obtained,  under    Poffeiture. 
the  bigbest  and  gravest  autborities,' — enured  into  law — and     ^"^^^^^^ 
been  fairly  admitted  and  homologated  in  practice; — while 
die  Statute  has  received  a  large,  and  by  no  means  judaical 
interpretation.      Coinciding   with   the    former   again,  how 
are  we  to  regard  the  Atbole  decision  in  1764,  and  certain  ^i^^^ioiueoiue- 
other  Peerages,  which  are  alone  saved  to  their  present  hold- eige^ensue!' and 
ers,  and  rescued  from  the  penalties  of  forfeiture  by  the  Act  ? '**°**^'f **  1^®*/' 

'  "^  '  agei  struck  at 

Of  this  number  are  the  Earldom  of  Ferrers  and  Barony  of  and  gone. 
Stonrton,  dignities  exclusively  limited  in  tail-male, — and  ac- 
tually in  the  same  situation, — that  have  been  thus  preserved 
against  forfeitures  for  felonies,  perpetrated  by  their  respective 
possessors,  in  1557,  and  1760,* — owing  to  which  they  would 
otherwise  have  gone,  (as  will  be  further  evident  in  the  sequel) ; 
for  exdudii^  the  Statute  in  question,  then  the  common  law 
comes  into  play,  with  its  blasting  and  utter  extirpating  re- 
sults. It  may  be  here  remarked,  that  although  the  reverse 
obtains  in  it,  in  regard  to  the  effects  of  treason,  there  is,  in 
the  subsequent  one  of  the  26th  of  Henry  VIIL  repeatedly 
alluded  to,  no  notice  of  felony.  The  larger  protection,  there- 
fore, of  the  heirs  in  tail-male,  in  the  case  of  felony,  other  than 
the  convicted  criminal,  is  wholly  grounded  upon  the  Statute 
de  donis.  It  may  be  thus  forcibly  argued,  that  the  fa- 
founded  this  important  doctrine,  thai  a  dignity  **  in  tail  **  is  within  the 
Statute^  and  honee  not  forfeited  for  felony,  whether  **  it  be  conferred 
from  any  place  or  not.**    See  Eden's  Rep.  II.  p.  873. 

*  Independently  of  others,  and  those  already  cited,  Mr.  Charles 
Yorke  states,  in  his  opinion  in  1761  in  the  Athole  case,  that  '*  though 
the  descent  of  a  dignity,  in  fee-simple,  may  be  impeded  by  corruption 
of  blood  in  cases  of fekmy  or  treason,  yet,  as  there  is  no  corruption  of  . 
blood  in  the  course  of  succession  to  an  estate-tail,  created  either  in  lands 
or  dignities,^*  he  therefore  concludes  that  John  Murray,  the  claimant, 
as  already  obvious,  was  entitled  to  the  Athole  honours.  See  Cruise,  ut 
sup.  p.  12d.  According  to  Mr.  de  Grey's  opinion  also,  in  the  same 
matter,  he  identically  took  performam  doniy  indubitably  in  virtue  of 
the  Statute  de  donis,  {ibid.  p.  130.)  And  further,  Sir  Fletcher  Norton 
inculcates  there,  that  by  the  law  of  England  there  was  **  no  difference" 
in  such  respect,  between  **  estates-tail  and  dignities  in  tail."  (Ibid.  p. 
129.) 

'  See  preceding  note,  and  p.  734,  note,  and  Cruise,  ut  sup.  pp. 
123-4. 


786  INQUIRY  INTO  THE  LAW  AND  PBACTICE 

Forfeitura.  yourable  law,  coDBtruetiyely  recognised  and  admitted,  is  not 
now  open  to  challenge,  and,  if  it  were,  as  already  observed, 
baneful  and  injurious  consequences  would  ensue,  for  seve- 
ral Peers  would  be  stript  of  their  dignities.  To  use  the  strong 
words  of  Lord  Nottingham,  *^  the  Peers  are  all  undone  if 
the  objection  be  true,  and  that  honours  cannot  be  entiuled."' 
Neither  is  it  to  be  supposed,  in  these  circumstances,  that  the 
House  of  Lords  would  tamely  abjure  a  doctrine,  upon  which 
the  rights  of  many  of  their  order  may  so  inevitably  depend. 
DigniUesinfee- As  indeed  already  evident,  by  the  English  law,  all  honours 
quaUfiediy  or  held  in  fec-simple,  or  at  common  law,  are  unqualifiedly  by 
b*Trfe*"i  '***^  attainder  for  treason  and  felony*  Accordingly  tiie  Barony  of 
Lumley,  constituted  by  writ  of  summons,  and  descendible  to 
heirs-general,  was  found  in  1723  not  to  have  been  in  John 
Lumley,  or  in  any  heir,  but  irrevocably  forfeited  to  the  crown, 
and  extinct,  owing  to  George  Lumley,  his  father,  having  been 
attainted  for  treason,  though  he  even  predeceased  John  Lord 
Lumley,  his  father,  the  undoubted  holder  of  the  dignity,  and 
grandfather  of  the  said  John.^  This,  with  the  sole,  though 
weighty  and  decisive  exception  of  the  honour  not  being  en» 
tailed,  is  obviously  the  precise  case  of  Athole  in  1764;  and,  as 
will  be  afterwards  seen,  the  decision  is  in  unison  with  our 
original  law.  Had  the  traitor  survived  his  father, — then  it 
would  have  been  even  worse,^  and  more  so  than  the  unfavour- 
able cases  of  Airlie  and  Wemyss,  though  in  a  degree  analo- 
gous. The  Lumley  attainder,  thus  again  equally  forfeited  the 
dignity,  though  it  was  not  of  the  tenant  in  possession,  or  of 
the  first  mentioned  directly  or  expressly. 
Favourable  ipe-  Cruisc  ho  We ver  inculcates,  as  to  succession  in  fee-simple,  that 
in  suceeMionliii  though  the  attainder  of  an  elder  son,  as  above,  during  the 
fee-simpie.  lifetime  of  his  father  the  tenant,  induces  forfeiture,  and  the 
escheat  of  the  property  to  the  crown,  yet  that  a  younger  one 
would  take  as  heir  to  the  father,  if  his  eldest  attainted  brother 
had  predeceased  the  latter  without  issue.  The  reason  as» 
signed  by   Cruise,  is,  because — even  differently  from  the 

^  See  Cruise,  ut  tup.  p.  125,  note* 

'  Collins  on  Baronies,  p.  373 ;  and  Cruise,  ut  iup.  p.  126. 

*  See  Cruise,  ut  iup,  p.  125, 


IN  SCOTTISH  PEERAGES,  &C.  737 

Athole  instance — the  younger  son  "  can  derive  his  descent    Forfeiture. 
from  him  (the/ather)  without  claiming  through,  or  even  men^ 
tioning  his  brother."  ^ 

Although  baronies  by  writ  of  summons  were  unknown  to  Same  lavr  ap- 

^   .   »       .     J  J      ^-M    1  .  J.      ...      plicable to  Scot- 

US,  we  yet  certainly  bad,  and  still  have,  various  dignities  \i^\^  dignities  to 

(saving  abbeyance,)  alike  descendible  to  heirs-general,  either  dewsendiWe, 
expressly — or  constructively,  as  has  been  resolved   by   thcance),  whether 

House  of  Lords  in  the  instance  of  the  Peerage  of  Sutherland  Jj'^';j2veiy' *'''"" 
in  1771,  without  the  intervention  of  a  known  constitution  or 
creaUon — including  both  the  latter,  and  the  still  older  Earl- 
dom of  Marr,  &c. — to  which,  necessarily,  the  same  law  of 
treason  would  apply.  In  the  same  manner,  honours,  like  the 
Earldom  of  Cassilis,  found  constructively  descendible  to 
heirs-male  of  the  body,  would  be,  in  pari  casuj  with  one  act- 
ually so  limited.  The  absolute  attainder  of  an  English  dignity  Absolute  at- 
in  fee-simple  for  felony ^  is  illustrated  in  the  case  of  the  ancient  g^uh  digniu 


esin 


Barony  of  Audley,  constituted  by  writ  of  summons.     It  only  fee-simple  for 

came  to  be  held  by  James  Touchet,  the  son  of  the  notorious  Audley  in  issi. 

Mervin  Lord  Audley,  convicted,  and  attainted  of  that  offence, 

in  1631,  through  special  restoration,  by  Act  of  Parliament, 

the  29tb  and  30th  of  Charles  II.  without  which,  according 

to  English  authorities,  it  had  gone.     There  is  here  a  strik-  ^e*vM  diflerent 

ingly  different  result  from  that  in  the  Ferrers  and  Stourton  tail-male. 

instances,  owing  to  these  dignities  being  in  tail-male ;  while 

it  would  have  equally  obtained,  had  the  attainder  in  question 

been  of  an  "  heir  apparent,"  who  survived  his  ancestor,*  &c. 

But,  with  us,  it  may  be  questioned,  whether  the  same  law.  Questionable, 
in  the  case  of  felony,  would  obtain,  because  the  Act  of  Queen  ^^  *wheSier 
Anne,  ia  1708,  c.  21,  though  it  extends  the  English  treason  felony  ordinar- 
law   to  Scotland, — yet  likewise   expressly  enacts,  that  cer-  compromise  " 
tain  felonies  and  capital  crimes,  such  as  "  theji  in  landed  men,  Scottish  hon- 
mufder  under  trust,  wilful  fire-raising,  firing  coalheughs,^  and 
assassination*' — which  had  been  alone  made  treason  in  Scotland 
by  Statute^^  from,  and  after  the  ensuing  1st  of  July  1709,  are  to 
cease  to  be  «o,  and  ^'  to  be  only  adjudged,  and  decerned  to  be 

'  Ihid,  p.  127. 

•  See  Cruise,  tU  sup,  pp.  12d-5. 

•  Coalpits.    This  would  be  now,  clearly,  a  very  heinous  offence. 

•  See  pp.  129-30, 230,  224,  227. 

3  A 


our. 


738         INQUIRY  INTO  THE  LAW  AND  PEACTlCfi 

ForfWture.  capital  offences,  and  the  committers  thereof"  to  be  only  "  pun* 
ished,  and  tried — as,  by  the  Law  of  Scotland^  is  provided  in 
the  cases  of  other  capital  crimes/' 

The  above,  therefore,  constituted  no  longer  treason  in  any 
view,  even  by  the  Act  that  introduced  the  English  treason 
law  into  Scotland,  and  were  reduced  to  a  common  level,  as 
originally,  with  ordinary  Scottish  felonies,  which  had  never 
been  so   visited  by  our   statutory  law,  and  did  not  infer 
treason.     Owing  to  this  circumstance,  backed  by  the  special 
eye  of  the  Legislature  in  1708,  from  urgent  and  weighty  poli- 
tical considerations,  with  the  object,  so  far,  of  mutual  assimilar 
tion,  to  what  is  termed  '^  proper,"  or  high  treason,  or  misde- 
meanours directly  against  the  State,  without  reference  so  much 
to  the  inferior  crimes  in  question,  which  more  approximated 
with  us  to  petit  treason,  but  were  now  even  divested  of  that 
character,  the  Scottish  common  law  in  this  emergency,  from 
the  restoration  of  things  to  their  first  state — necessarily  with- 
out any  English  controul,  would  appear  to  come  into  play, 
and  to  rule  in  the  case  of  the  latter, — and  in  the  parallel  de- 
linquencies that  have  been  considered  in  England,  in  respect 
to  Scottish  honours— thus  excluding  the  operation  of  English 
law.      The  plain  corollary  from  which,  at  the  same  time, 
would  be,  that  the  perpetration  of  such  felonies  referred  to,  by 
a  Scottish  Peer,  would  not,  as  occasionally  by  it,  compromise 
liowefw°*by    ^*®  dignity.     That  would  still  continue  entire,  in  all  events* 
Queen  Anoe'i  An  exception,  however,  obtains  in  the  British  Act  in  1708,  in 
of^a  "loM  of  regard  to  the  murder  of  "any  of  the  Lords  of  Session,"  or 
Seidoo  or  Jus-  cc  Justiciary,  sitting  in  judgment^  in  the  exercise  of  their  office," 
tiDg  in  judg-    which,  it  is  declared,  "shall  be  construed  and  adjudged  (from 
"•"*•  the  said  1st  of  July,  1709)  to  be  high  treason." 

By  mtr  common      Oil  the  murder,  otherwise,  in  1543,  of  Mr  Robert  Galbraith, 
kw,  murder  of  ^  Judge  of  the  Court  of  Session,  or  one  of  the  Senators  of 

•ucQ  supreme  . 

Judge*  or  a    the  College  of  Justice,  as  they  are  also  styled,  there  was  an 

oMiMA^rt're^  ^^  ®^  ordinance  by  the  Regent  Chastelherault,  with  advice  of 

•OD.  the  Chancellor,  and  Lords  of  Council — upon  the  narrative  of 

,  ^  ,    the  ^*  cruel  and  tressojiable  slauchter,"  committed  by  John 

Case  of  Gal-  .  ^ 

Waith  in  1543.  CarketiU,  burgess  of  Edinburgh,  and  his  accomplices,  *^  quhair- 
throw,"  it  is  stated,  "  yair  is  "  such  **  monisching  '  and  host" 

'  Admonishing,    Amot,  referring  to  MSS.  Memoirs  of  the  Family  of 


IX  SCOTTISH  PEERAGES,  &C.  739 

in^  maid  aganis  ye  remanent  of  ye  said  Counsel!,  advocatis    Forfeitare. 

of  ye  said  College,"  that  "  yai  feir  to  procure  in  ye  materia     ^•^^^'^^ 

concerning  oure  Soverane  Ladyis  liegis/'     And  by  the  act, 

his  Grace  declares,  that  ^^  quhatsumevir  maner  of  persone  in- 

Tadi9,  siayisy  or  hurtis  cruelly  any  of  ye  Counsell,  advocatis 

or  scribis  yero/^  wytout  quhome  ye  said  College  cannot  be 

halden,  (they)  salbe  callit  and  accusit,  as  committaris  of  lese 

nuj^estie^  and  punist  yerfore."     This  was  an  evident  exten-  Then  intended 

sion  of  the  law  in  their  subordinate  case ;  but,  "  not  ye  /cm,"  p^naUy  °o  the 

it  is  added,  "  ye  slauchter  of  ye  said  Maister  Robert,  is  to  be  other  membcw 

■  1         »ti        1     .  .      of   Session, — 

persewit  as  tressoun^  conforme  to  ye  common  law,  ^ — that  is,  though  not  duly 
agreeably  to  the  existing,  and  the  old — shewing  what  it  here  effected. 
waSf  and  necessarily  in  the  matter  that  forms  the  exception 
in  the  last  passage  referred  to  in  the  British  Act,  1708.     Ac« 

Sinclair  of  Hemiistoun,  states  that  Galbraith's  murder,  by  the  parties 
mentioned,  was  **  on  account  of  some  favour  shown  to  Sir  William 
Sinclair  of  Herdmanstoun."    (Crim.  Trials,  p.  165.) 

*  February  13,  1643,  Acts  and  Decrees  of  Council,  &c.  I  am  not 
aware  of  this  procedure  being  elsewhere  adduced.  The  Session,  at  the 
juncture,  seem  rather  to  have  been  in  bad  odour,  and  to  have  been  exposed 
to  much  insult  and  obloquy.  James  Hamilton  of  Sten house,  Captain  of 
Edinburgh  Castle  in  1545,  told  Mr.  Thomas  Macalzean,  an  able  lawyer, 
that  if  *'  he  procurit  in  ye  mater  movit  be  Alexander  Sandelandis  aganis 
him, — he  suld  have  his  Mn  /"  nay,  when  taken  to  task  in  consequence, 
he  even  said  that  he  '^  suld  do  siclyke  "  to  a  Judge,  **  or  ony  of  the  Lordis 
yat  satt  upon  ye  seUy*  (Session),  A  confederate,  Hamilton  of  Cauder, 
herein  agreed  with  this  worthy,  "  and  said  mair, — yer  were  na  lyff 
bat  gifF  ye  advocattis  were  punist,  on  yat  sort."  Long  before,  in  1515, 
in  a  judicial  procedure,  the  Right  Reverend  the  Elect  of  the  Isles  call- 
ed the  Chancellor,  (Beatoun,  Archbishop  of  Saint  Andrews,)  ^*  ane  waf 
Juge,"  a  disreputable,  sorry  one. — There  was  at  least  harmony  upon 
the  bench  on  the  23d  of  May  1546,  when  the  Session,  at  a  full  Sederunt^ 
or  con  vocation,  "concludit"  unanimously  "  not  to  remain,  wytout  yai 
gett  payment  for  yer  laubouris."  The  above  genuine  notices  transpire, 
at  the  corresponding  periods,  in  the  Act  and  Decree  Register  of 
our  Supreme  Civil  Court.  What  by  assassination,  on  one  hand,  and 
by  poverty,  on  the  other,  they  were,  as  we  say,  "  between  the  devil  and 
the  red  sea."     These  lines  are  known : — 

"  Dat  Galenus  opes,  dat  Justinianus  Aomotm, 
Sed  DOS  Philosophi  iurha  mittUa  sumus." 

The  last  description,  in  reference  to  the  '*  philosophers,"  would  thus 
appear  to  have  applied  to  our  sons  of  Justinian  at  the  time. 


740  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,  cordiiigly  the  Criminal  Carketill,  and  his  coadjutors,  were  in- 
dicted in  Parliament  the  28th  of  March  1544,  ^*  pro  pradito- 
ria  interfectione  "  of  the  Judge  in  question,^  but  they  were 
too  consciously  guilty  to  stand  the  result,  and  absconded.  The 
Fartberiiiustra-Iaw  was  as  solemnly,  and  still  more  expressly  recognised  on 
lawl^in 'i sJS^^n  *'^®  ^^  ^'  August  1546,  in  an  age  of  bloodshed  and  anarchy, 
caMof  the  mur-  when  there  was  riot  and  deviation  in  every  respect ;  of  which 
lor  Beatoun.  '  date  it  was  "  inquirit "  by  the  Chancellor  in  Privy  Council, 
of  certain  prelates,  nobility,  and  barons,  if  it  be  ^*  Trectson  to 
sla  (slay)  an  Chancelar  of  the  realme,  or  nocht  ?  Quha  all 
declarit,  that  conforme  to  the  commone  law^  it  tees  treasoun, — 
and  acceptit  the  interpretatioun  of  the  law,  quisquis  ad  Legem 
Juliam  C  in  that  cats.'*  ^  The  question  obtained  in  reference 
to  the  murder  of  Cardinal  Beatoun,  the  late  Chancellor,  Pri- 
mate of  Scotland,  in  his  Castle  of  Saint  Andrews,  the  exclu- 
sive seat  of  his  Archiepiscopal  jurisdiction;  while  his  murderers, 
again,  as  before,  were  equally  prosecuted,  and  convicted  of 
"  tressoune  "  and  "  lese  majeatie*^  *  The  murder  therefore  of 
a  judge  or  chancellor  has  been  instructed,  by  the  preceding 
authorities,  to  have  been  treason  with  us  at  common  law^  ob- 
viously founded,  as  well  upon  feudal  principle,  from  their  be- 
ing the  direct  representatives  or  ministrants  of  the  sovereign, 
the  great  paramount  or  supreme  head,^  in  their  functional  ca- 
pacity, as  upon  the  Roman  law,  above  specially  referred  to, 
which  was  vehemently  impressed  with  the  same  principle-* 

*  Acts  of  Pari.  last  Edit.  vol.  II.  p.  445.  The  former  Act  of  the  Re- 
gent Chastelherault,  in  1543,  further  ordains  that  the  extension  of  the 
law,  in  respect  to  the  advocates  and  scribes  of  Session,  should  be  fixed 
by  Statute  in  the  next  Parliament ;  but  none  such  appears  to  have 
passed. 

•  Register  of  Privy  Council.  The  penalty  is  extended  by  the  Ro- 
man law,  under  the  title  quoted,  to  such  as  should  generally  conspire, 
**  de  nece  etiam  virorum  illustrium  qui  cormliiSy  et  consittorio  noetro 
intersunt,  Senatonim  etiam,  nam  et  ijm  pars  corporis  nostri  sunt.'* 

»  Acts  of  Pari,  last  Edit.  vol.  II.  pp.  467-8,  &c.  and  479-80. 

*  All  contempt,  insult,  or  outrage  were  as  much  banished  from  the 
presence  of  Royalty,  or  the  halo  around  it,  as  the  descent — ^though, 
mce  verMy  unjustly  enough^-of  all  our  original  Earldoms  to  heirs- 
general,  from  the  minds  of  Lords  Mansfield  and  Rosslyn,  in  determin- 
ing the  descent  of  such  dignities. 

•  Ut  9Up. 


IN  SCOTTISH  PEERAGES,  &C.  74 1 

The  latter  likewise,  on  other  occasions,  will  be  shewn  in  the    Forfeitara. 
sequel  to  have  been  much  regarded  by  us  in  matters  of  j^  v^-np^ 
treason.     Such  being  the  case,  the  crime  of  treason,  so  esta-  great  role  with 
blished,  and  attaching  to  the  slaying  of  a  supreme  Judge  at  hereViiowed* 
any  time,  and  in  any  situation,  may  not  have  been  properly  u  well  u  the 
rescinded  by  the  British  Act  in  1708,  which  merely  contem- ^^^^^j^ . 
plates  murder  made  treason  by  statute,  and  not  simply  by  tioD»  in  the 
common  law,  like  the  former.     Nay,  so  far  from  this,  the  Act  g^t  p&^hl^not 
admits  and  re-enacts,  by  way,  as  it  were,  of  special  reserva-<'^*<^*°<^«<i  ^y 
tioD,  the  identical  penalty,  though  partially,  when  the  legal  Actio  1708. 
dignitary,  in  the  character  of  a  Lord  of  Session  or  Justiciary,  Coriougpowibie 
happened  to  sit  in  judgment.     And  hence  it  might  singularly  fi^^l'^g^^* 
follow,  that  a  Scottish  Peer — owing  to  the  Scottish  treason 
law  being  unrepealed,  and  still  obtaining  here — were  to  slay 
such  Judge,  in  any  emergency,  tanquam  quiUbet — not  sitting 
in  judgment — that  his  honours,  in  that  event,  whether  in  fee* 
simple,  or  held  under  remainders  over,  would  be  lost  and 
gone  for  ever ;  while,  in  the  later  restricted  view  of  the  of- 
fence, they  would,  under  favour  of  the  English  law,  be  saved 
to  remainder  heirs,  or  to  those  in  the  predicament  of  the 
Atbole  claimant  in  1764, — unless  we  are  to  hold  that  the  old 
Scottish  law,  owing  again  to  not  being  peremptorily  repealed, 
is  still  generally  to  govern.     The  spirit  and  purport,  no  doubt, 
of  the  British  act  might  be  thought  to  operate  otherwise,  in- 
asmuch as  its  avowed  object  is  to  make  the  treason  laws  in 
both  countries  as  ^'  near  as  may  be,"  and  broadly  to  enforce  the 
English,  which  it  may  do  indirectly.     But  such  statutes — in- 
dependently, as  formerly  observed,  of  the  higher  crimes  against 
the  State  being  more  especially  in   view, — are  ordinarily 
strictly  interpretated ;  and  the  matter  still,  may  not  be  so  un- 
equivocally, or  so  unexceptionably  fixed  as  could   be  de- 
sired. 

But  the  penalties  of  parricide  and  matricide,  in  terms  of  act  The  ScottUh 

^  ^  '  penutieiy  boW" 

1594,  0.  224,'  are  not  affected,  or  infringed  upon  by  the  Brit-  ever,  in  the  case 
ish  act  in  1708^«  the  crime  being  in  no  way  there  alluded  to.  jf^  ^J^jttrU 
Neither  was  it  accounted  treason  with  us.     And  hence,  sup- by  Qoeen 

Anne*t  Act. 
>  See  p.  222, — c.  30,  according  to  last  Edit,  of  Acts. 
'  The  latter  also  makes,  properly  enonghy  counterfeiting  the  Royal 
Seal  treason. 


742  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,     posing  the  former  to  extend  to,  and  embrace  the  state  of  hon* 
"X^^T^     ours — as  to  which  before,^ — there  would  necessarily,  in  the 
comprehend     event  of  conviction,  be  another,  and  qualified  kind  of  forfeit- 
th"°Mime*'de-  ^^^  ^V  ^pccial  enactment— -namely,  of  the  criminal  and  his 
tcendibie,   on  heirs,  tnrecta  linea;  while,  under  its  protection,  collateral  heirs 
parricide"  ailn  would  immediately  take,^ — as  through  cilienage^  in  the  instance 
the  case  of    of  Gordou  of  Park.*     Upon  the  subject  of  the  application  of 
the  same  act  1594  to  honours,  it  is  remarkable  that  the  Eng- 
lish statute  de  donisy  so  often  alluded  to,  though  literally  like 
it  only  regarding  landed  rights  and  succession,  has  yet  been 
held,  as  was  seen,  to  extend  to  dignities.    But  then  again,  the 
English  statute  was  of  far  ancienter  date, — in  the  reign  of 
Edward  I.— when  there  existed  a  strict  connection  between 
lands  and  honours,  owing  to  which  reason,  as  is  specially  incul- 
cated by  English  lawyers/  honours  have  been  thereby  includ- 
Giaring  absur-  ed.    This,  however,  by  the  way,  with  a  host  of  authorities 
Lord  AUns?eid^  ^^^  Same  effect, — the  corresponding  practice  and  under- 
in  Sutherland  standing  in  such  respect,  much  obtaining  in  both  countries, 
posed  by  the  but  o/ortiori  in  Scotland,  palpably  refutes  Lord  Mansfield's 
EngUsh  con-    gy^p  astouuding  proposition  in  the  Sutherland  case,   that 
tute  de  donu.    Peerages  with  us  had  previously  ceased  to  be  territorial,  and 
become  quite  personal, — nay,  even  so  far  back  as  1214 ! ! 

The  following  case,  of  a  twofold  nature,  and  involving  both 
the  British  and  Scottish  law  of  forfeiture,  is  curious  and 
remarkable.  WUliam  Drummond  of  Croralix  was  created,  by 
Case  of  Vis-  patent,  dated  the  16th  of  August  1686,  Viscount  Strathallan, 
county  of  Stra-  and  Lord  Drummond  of  Cromlix,  with  limitation  to  him  and  the 
1787^-90;  also  heirs-malc  of  his  body,  ^*  quibus  deficientibus,  (ad)  alios  ejus 
invoWing  the     hseredcs  masculos."*    On  the  death  of  James,  third  Viscount  of 

matter  of  For-  .        ,  , 

feiture  in  Hon-  Strathallan,  his  grandson  and  heir,  without  issue,  in  1711,  the 
badt  as  \69o  s^ccession  to  the  honours,  in  terms  of  the  patent,  under  the  clos- 
according  to  ing  Substitution,  opened  to  William  Drummond  of  Machany, 
our  origin  ^^^  heir-male,  collaterally,  he  being  descended  of  Sir  James 
Drummond  of  Machany,  younger  brother  of  John  second 
Lord  Maderty — an  older  title  in  the  family  ^ — the  male  ances- 

»  See  pp.  228-9-30. 

*  See  p.  222.  •  See  p.  718.  *  See  p.  734,  n.  4. 

*  Great  Seal  Regiiter. 

*  It  was  limited  simply,  January  31, 1609,  to  heirs-male  of  the  body 


IN  SCOTTISH  PEERAGES,  &C.  743 

tor  likewise  of  the  patentee  in  1686.     But  Sir  John  Drum-    Forfeiture, 
mond  of  Maehany,  the  grandson  and  heir-male  of  Sir  James, 
and  father  of  William  Drummond  of  Maehany,  referred  to, 
had  been  forfeited,  with  others,  in  terms  of  a  Scottish  Act  of 
Parliament,  the  14th  of  July  1690,  whereby  they,   ^Uheir 
name,  fame,  memory,  and  honour,"  are  declared  *^  to  be  ex- 
tinct, their  blood  to  be  tainted,  and  their  armes  to  be  riven 
fiirth,^  and  delett  out  of  the  book  of  armes,  sua  that  their 
poitentie  may  never  have  place,  nor  be  able,  hereafter,  to 
brook,  or  joyse  itny  honours^  ofBces,  titles,  or  dignities,  in 
tyme  comeing,"  as  well  as  lands,  heritages,  tacks,'  &c.     Sir 
John,  the  traitor,  was  never  pardoned,  or  restored,  against  the 
attainder;  though  he  latterly  returned  to  Scotland,  where  he 
resided,  and  died  in  1707,  under  circumstances  to  be  stated. 
However  William  Drummond,  his  son,  might  have  been  bene- 
ited, — according  to  the  English  law  of  treason,  as  exemplified 
in  the  case  of  Athole,  &c.  by  the  decease  of  his  father,  before 
the  opening  of  the  Strathallan  succession  to  him  in  1711,  and 
his  own  survivance — while  he  took  nothing  from  his  father  ex- 
cepting his  ^<  pedigree,"  in  respect  to  the  Strathallan  and  Ma- 
derty  honours,  or  otherwise,  that  law  did  not  then  obtain  with 
us ;  and  the  consequences  of  the  attainder  in  1690,  or  indeed 
of  any,  (as  perhaps  has  been  anticipated,)  from  the  discus- 
sion that  will  be  subsequently  gone  into,  may  be  very  differ- 
ent   Nevertheless  the  said  William  in  1711,  and  thenceforth, 
actually  assumed  the  Strathallan  dignities,  though  with  the  less 
chance  of  challenge  or  dispute,  as  he  forbore  to  take  the  oaths 
to  Government,  or  vote  at  Peerage  Elections.     Indeed  he 
had  been  captured  at  Sheriffmuir,  in  1715,  on  the  side  of  the 
Pretender,  but  without  being  prosecuted,  or  experiencing,  in 

of  James  first  Lord  Maderty,  the  father  of  Lord  John,  (see  PetitioD, 
Lords'  Journals,  printed  Strathallan  case,  and  Minutes  of  Evidence, 
&c)  and  also,  going  to  the  same  collateral  heir-male,  was  included  in 
the  daim  in  question  in  1787,  by  Andrew  Drummond,  the  male  Ma- 
ehany representative.  The  patentee,  in  1686,  was  a  younger  brother 
of  the  family  of  Maderty  by  recenter  descent,  in  whose  son  and  heir 
William,  second  Viscount  Strathallan,  the  Barony  of  Maderty,  in  de- 
fault of  nearer  heirs-male,  came  eventually  to  merge. 

*  Tom  forth. 

'  Acts  of  Pari,  last  Edit.  vol.  IX.  Append,  pp.  61 — 65. 


744  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,     consequeiice,  the  rigour  of  Govemment.      Being  zealously 
^^^'^''^^      attached  to  the  same  unfortunate  cause,  and  also  engaging 
with  James  his  son  in  the  rebellion  of  1 745,  there  passed  an 
Act  of  Parliament  in  1746,  declaring  that  if  the  said  ^*  William 
Viscount  of  Strathallan  (and)  James  Drummond,  Esquire, 
eldest  son,  and  heir  apparent  oi  William  Viscount  of  Strath- 
allan,'* did  not  surrender  themselves,  and  submit  to  justice,  **on 
or  before"  the  subsequent   12th  of  July  1746,  they  should, 
^^from  and  after  the  (previous)  18th  day  of  April, — stand  and 
be  adjudged  attainted  of  high  treason." 
FuUa  detigna-      I^  ^^  happened,  however,  that  the  Viscount  during  these 
tio  of  the  party  dates  was  dead,  having  fallen  at  the  battle  of  CuUoden;  while 

attainted  by  a  •!  .  xi.        •  .  ^     .1 

Britwh  Act  in  James,  his  SOU,  necessarily  not  then  m  apparency^  as  setforth, 
1746.  i^m-  Jq  f^|.  ^Q  family  heir  and  representative,  abstained  from 

complying   with   the  conditions,  and  escaping  abroad,  died 
there  in  1765.     The  son  and  heir  of  the  latter  was  Andrew 
Drummond,  who  in  1 787  claimed  the  Strathallan  and  Mader- 
ty  honours,  by  petition,  and  reference  to  the  Lords,  upon  this 
ground — that  any  forfeiture,  in  terms  of  the  preceding  Act, 
was  null  and  ineffectual  in  regard  to  his  father  and  to  himself; 
because,  while  it  would  be  proved  to  have  been  only  brought 
into  Parliament  the  8th  of  May  1746,  and  did  not  pass  until  the 
4th  of  J  une  thereafter,  V  iscount  William,  his  grandfather,  against 
whom  the  said  Act  was,  (as  premised,)  e2;j9r«M/^directed,didnot 
then  exist,  but  had  been  killed  as  far  back  as  the  16th  of  April 
previously.    There  were  hence,  he  insisted,  during  the  mate- 
rial periods — both  when  the  Act  was  introduced  and  passed — 
no  such  persons  as  William  Viscount  Strathallan,  and,  especial- 
ly, ^*  James  Drummond,  Esquire,"  his  **  son  and  heir  appa- 
rent ;"  for  James,  by  the  direct  admission  of  Government,  who 
did  not  deny  his  father's  right  to  the  dignity,  had  then  been 
divested  of  his  former  status,  and  become  a  peer  of  the  realm, 
under  the  family  title  of  Viscount  Strathallan.     From  whence 
it  resulted^from  his  false  designation  in  this  manner, — ^tbat, 
not  being  properly,  or  at  all  described,  or  called  upon  to  sur- 
render, James  was  not  bound  to  obey  the  Act,  or  legally  in- 
cluded in  its  terms  and  conditions,  which  were  necessarily,  so 
far,  effete,  and  actually  levelled  at  a  non-entity.    This,  coup- 
led with  the  predecease  of  Viscount  William,  which  render- 


IN  SCOTTISH  PEERAGES,  &C.  745 

ed  the  same  also  abortive  quoad  him,  the  claimant  contended,  Forfeiture. 
excluded  the  operation  of  the  conceived  forfeiture,  and  duly  ^-*'*^^^^ 
substantiated  his  case. 

But  on  the  matter  being  referred  to  the  twelve  Judges,  they  unavailing,  in 
unanimously  gave  it  as  their  opinion,  that  by  the  legal  un-  ^°'"*®cuiJ^"^Enf 
derstanding,  and  practice,  such  statutes  must  be  held  to  relate  giish  fiction, 
to,  and  embrace  the  Jirat  day  of  the  Session  of  Parliament,  ^  "°^"''''"  *°  "'' 
which,  in  this  instance,  began  as  early  as  October  1 745.     ^^  In 
the  contemplation  of  the  law,  the  whole  Session  makes  but  one 
day ; "  and  as  ^^  Parliament  may  pronounce  on  men's  future 
conduct,"  they  could  here  effectually  act  as  they  did,  and 
hence,  through  the  agency  of  this  legal  fiction,  duly  attach,  and 
implicate  the  parties ;  ^  for  Viscount  William,  as  well  as  James 
his  son,  was  alive  in  October,  and  for  months  afterwards,  both 
being  then  known,  and  styled  by  the  identical  designations 
given  them  in  the  statute.     The  Viscount  ^'  was  dead*'  when 
it  **  really  passed,"  (as  to  which  no  proof  was  allowed).    Was 
he  attainted  ?    Perhaps  he  wcls  not.     But  that  must  be  not 
on  account   of  any  defect  in   the  act,  or  because  he  died 
on  the  I6th  April;  but  because  he  died  before  the  12th  July 
1746, — and  it  would  be  presumed  that  he  would  have  surren- 
dered, had  he  lived.     The  claimant  was  here  seeking  to  take 
an  advantage,  to  defeat  the  plain  intendment  of  the  legislature ; 
for  it  could  not  be  disputed  that  his  father  was  meant  to  be  at- 
tainted by  the  Act.     It  could  not  be  regretted,  therefore,  if 
there  should  be  a  rule  which  went  to  support  the  legal  intend- 
ment, though  grounded  on  a  fiction."  ^     The  claim,  according- 
ly— the  Judges  determining  that  James  Drummond  had  been 
attainted,  was,  the  12th  of  May  1790,  rejected  by  the  Lords.^ 
James  Chalmer,  the  solicitor,  who  has  been  alluded  to,  and  was 
employed  by  the  claimant  in  the  case,  may  thus  not  inapposite- 

'  Ab  will  be  seen  in  the  sequel,  the  Scottish  practice  was  different, 
the  effect  of  our  statutes  not  being  thus  regulated,  but  naturally,  ac- 
cording to  their  precise  dates. 

'  This  specialty  was  however  admitted,  that  ^  in  the  ordinary  course 
of  judicial  proceedings,  the  conviction  must  have  related  to  the  time  of 
the  treason,    fiut  Parliament  is  not  so  bound.'* 

'  See  Cruise  on  Dig.  pp.  120-1-2,  where  the  reasons,  and  grounds  of 
opinion,  are  given.  The  other  facts,  previously  stated,  are  from  the 
Informations  and  papers,  &c.  &c.  *  Lords'  Journals. 


746 


INQUIRY  INTO  THE  LAW  AND  PRACTICE 


by    Chalmer, 
the  agent. 


Forfeiture,    ly  comment  upon  the  result, — in  bis  usual  characteristic  man- 
^""'"^^^^     ner.     "  The  judgement  of  the  House  of  Lords  was,  that  h© 
stra^haiian  case  (^^®  claimant)  had  not  made  out  his  right,  and  consequently, 
if  he  could  now  make  it  out,  it  would  be  competent  to  petition 
the  King  again,  and  have  a  fresh  reference  to  the  House.    But 
it  is  a  mistake  to  suppose,  that  his  (the  claimanfa)  want  of 
success  was  owing  to  a  crotchet  of  Lord  Rossljnas.     The  de- 
cision went  upon  a  crotchet  of  the  Law  of  England,  as  it  then 
stood,  viz.  that  all  the  Acts  of  one  Session  of  parliament  were 
to  be  held  as  passed  on  the  first  day  of  it,  and,  in  consequence, 
when  we  maintained  that  William  Viscount  Strathallan  was 
f.       not  attiunted,  because  he  was  dead  before  the  Act  passed,  and 
thai  his  son  was  wrongously  attainted  as  a  Commoner,  when 
he  had  become  a  Peer,  the  answer  was,  that  they  were  both 
rightly  named  and  attainted,  holding  the  Act  to  have  passed 
theyir^/  day  of  the  Session  ;  and  our  Reply,  that  even  sup- 
posing the  general  rule,  it  could  not  apply  to  the  case,  because 
the  Act  mentioned  events  subsequent  to  the  first  of  the  Ses. 
sion. '     This  question  was  before  the  twelve  Judges,  who  de- 
livered an  unanimous  opinion  against  us  ;^  and  they  concluded 
with  observing,  that,  however  harsh  or  absurd  the  general 
rule  might  seem,  they  could  not  regret  the  applying  it  to  this 
particular  case,  where  we  were  seeking  to  take  advantage  of  the 
Alteration  of    words,  against  the  intendment  of  the  Act."    Mr  Chalmer  adds, 
gard  to  previous^*  it  ^&8  this  determination  which  gave  rise  to  the  law,  that 
fiction,  owing  every  Act  should,  in  future,  bear  the  date  of  actually  passing, 
aiian  decision,   and  Operate  only  from  that  day,  unless  otherwise  expressed."  ^ 
Partly  similar       In  the  Act  mentioned,  in  1746,  in  respect  to  William  Vis- 
S^mmond™**  count  Strathallan,  and  his  son  "  James  Drummond,  taking 
titular  Duke  of  upou  himsclf  the  title  of  Duke  of  Perth,"  was  also  included, 
though  without  uudcr  the  same  condition  and  penalties,  and  he  too,  prema- 
/a/#a  designatio,  turcly  dying  on  the  1 1th  of  May,  could  as  little  surrender,  and 
5co»i«A  noUons.  Submit  himself  to  justice  thereafter,  ^*  on,  or  before  the  12th  of 
July"  (1746,)  the  precise  term  assigned.      But  on  the  ques- 
tion of  his  forfeiture  coming  before  the  Court  of  Session,  to 
whom  it  was  fully  competent,  "  as  having  authority  to  deter- 

'  This  further  specialty,  of  course,  will  be  attended  to. 

«  Through  the  Lord  Chief  Baron. 

*  From  the  autograph  statement  of  Mr.  Chalmer,  still  extant. 


IN  SCOTTISH  PEERAGES,  &C.  747 

mine  claims  on  forfeited  estates, — though  the  attainder  be  by    forfeiture. 
act  of  Parliament,"^  they  decided,  the   18th  of  July  1749, 
that  the  attainder  of  James  was,  in  consequence  of  his  prede- 
cease, ^^  void  and  null,"  and  his  estate  ^'  not  forfeited,"  be- 
cause ^^  the  condition  "  (of  surrender)  was  "  suspensive  of  the 
attainder,"  and  ^^not,lE^9olutive," — and  could  not  have  an  ab- 
solute prejudicial  effect  ;'  to  which  judgment  the  crown  did 
not  demur,  but  acquiesced.^    James  Drummond,  here  properly 
enough  described,  was,  differently  from   William   Viscount 
StrathaUan,  alive  and  not  dead  when  the  Act  was  brought  into 
Parliament,  but  certainly  dead  almost  immediately  after,  and 
considerably  before  it  passed.     No  strict  presumption  appears       # 
to   have  been  \j^wn, — ^as  in   the   instance  of  Strathallan,  lu  application 
"  that  he  would  have  surrendered,  had  he  lived."     In  terms  l^jjun.*"^  ^'"'" 
therefore  of  this  decision,  Viscount  William  was  not  attainted, 
indeed,  as  is  nearly  admitted  by  the  twelve  Judges  ;^  and  all 
turned  upon  the  condition  of  James,  his  son. 

In  consequence  of  the  judgment,  James  Drummond  (of 
Perth,)  being  found,  in  1749,  not  to  have  been  attainted, 
his  succession  opened  to  John — or  Lord  John  Drummond,  Case  of  John, 
(as  he  was  commonly  styled),  his  next  brother,  (the  former  J)'^ummond*^•n 
having  died  unmarried),  who  having  been  in  like  manner  call- 1760. 
ed  to  surrender  by  the  Act  1746,  and  surviving  the  prescribed 
term,  and  long  after,  was  necessarily  duly  attainted.     It  hence 
also  followed  thatthe  estate  was  irretrievably  forfeited  in  his  per- 
son, the  same  contingency  having  here  occurred  as  in  the  Airlie 
and  Wemyss  cases, — by  the  succession  thus  opening  to  an  at- 
tainted heir  apparent;  as  was  accordingly  decided  the  1st  of 
December  1760,  on  the  claim  of  a  third  party,  for  collateral 

'  So  Lord  Elchies,  a  reporter  of  the  case,  says,  under  the  reference 
subsequently  made. 

•  This  was  a  counter  plea.  "  It  will  not  be  pretended,  that  captivity 
or  grievous  sickness,  during  the  time  iimited,  would  have  barred  the  ef- 
fect of  the  attainder  ;  and  yet  these,  as  well  as  death,  would  have  made 
his  (Jama?9)  surrender  impossible."  It  was  also  argued  in  the  case, 
that  the  assumed  "  resolutive  condition  being  fixed  upon  by  the  Sia- 
fute,  cannot  be  supplied  by  an  equivalent^ 

'  Drummond  of  Logie-almond  against  the  King's  Advocate,  of  the 
date  mentioned,  in  Falconer's  Decisions,  and  those  of  Lord  Elchies,  vol. 
I.  Append.  II.  under  Forfeiture,  No.  7.  *  See  p.  746. 


748  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,  hcirs,  includiug  bimself,  in  the  face  of  the  erroneous  and  un- 
Forfeiture  of  an  founded  plea,  that  John  Drummond,  being  attainted,  could  not 
estate  by  the  hold  OF  take  ; — ^from  wheuce  it  was  urjred,  that  althouffh  the 

succession  t  j  ,  .  <.     i»  •      j        t 

opening  to  a  estate  escheated  to  the  superior,  yet  it  was  not  forfeited.  It 
orwhh^ut'any  ^°®®  "^^  appear  how  this  could  greatly  assist  the  claimant, 
salvo,  from  the  for,  in  such  emergency,  the  crown  would  still  come  in  as  su- 

misconceived  •       i       tt  -j      ^i     ^         j    j  i*    j  •  j 

plea  of  his  be-  pcnor.'  He  evidently  founded,  as  was  replied,  super  jure  ad^ 
ing  Hviiiter  versaru  ;  but,  as  already  instructed,  the  traitor  in  question 
could  take,  though  only  for  the  crown's  benefit,  in  virtue  of  the 
Act  26th  of  Henry  VIII.  formerly  referred  to,  and  which  was 
actually  objected  by  the  crown  counsel  in  this  case,  who,  it  is 
remarkable,  put  the  same  construction  thereupon,  as  the  twelve 
Judges  in  that  of  Airlie.^  The  preceding  plea  of  a  traitor  thus 
attainted  not  being  able  to  hold,  but  wholly  cimliter  mortuus^ 
has  been  elsewhere  irrelevantly  espoused  by  some  modern 
Scottish  lawyers,  who  have  even  inadvertently  been  disposed 
to  give  it  an  effect  like  that  of  alienage,  in  the  case  of  Gordon 
of  Park.« 

The  Strathallan  and  Maderty  honours, — even  if  previous- 
ly existing, — being,  agreeably  to  the  resolution  in  1790,  exdu- 


*  The  Lord  Advocate  also  contended,  that  supposing  even  the  ^'  estate 
were  held  of  a  subject j  and  escheat,  the  property  would  fall  to  be  deter- 
mined by  the  law  of  Scotland,  as  it  is  only  with  regard  to  forfeitures 
that  the  English  law  obtains,  and  by  the  Scots  law  Elscheats  likewise 
fall  to  the  King." 

'  Drummond  of  Logie-almond  against  the  King's  Advocate,  of  the 
date  in  question.  Falconer's  Decisions,  and  Lord  Elchies's  Reports,  vol. 
I.  under  Forfeiture^  Append.  II.  Nos.  15, 16.  The  preceding  James 
Dnimmond,  commonly  called  Duke  of  Perth,  had  legally  no  right  to 
that  title,  it  having  been  conferred  by  James  II.  after  his  abdication, 
upon  his  grandfather,  James  Earl  of  Perth,  Chancellor  of  Scotland. 
The  dignity  of  Earl,  and  that  of  Lord  Drummond  also,  the  constitutions 
or  grants  of  neither  of  which  honours  exist,  were  forfeited  by  the  attain- 
der, in  1716,  of  James  Lord  Drummond,  (son  of  the  Chancellor,  and 
fiftther  of  the  titular  Duke,)  who  was  also  in  the  same  way  Duke  of 
Perth,  and  survived  hie  father.  The  Scottish  Earldom  and  Barony, 
I  need  not  add,  would,  at  the  same  time,  have  been  forfeited  in  John 
Drummond,  in  1746,  had  they  not  been  so,  previously  in  1715  ;  when 
the  estate  however  was  saved,  as  thereafter  fpund,  in  consequence  of  a 
precautionary  family  transaction. 

■  See  pp.  718-20, 


IN  SCOniSH  PEERAGES,  &C.  749 

sively  and  suflSciently  forfeited  in  the  person  of  James  Drum-     Forfeiture. 
mond,  in  terms  of  the  act  1 746, — it  hence  became  unneces-     ^—^v^**-^ 
sary  for  the  House  of  Lords  to  probe,  and  go  into  the  remain- 
ing objection  and  obstacle  alluded  to,  grounded  upon  the  for^^  strathauLi^ 
feiture  also,  as  has  been  seen,  by  a  Scottish  Act  of  Parliament  ^|f  *™*?'  *° 
in  1690,  of  Sir  John  Drummond  of  Machany,'  father  of  Wil- attainder  of  sir 
liam,  styled  Viscount  Strathallan  in  the  previous  year.  It  was  ^^"^  ^uTn- 
through  Sir  John,  the  latter,  and  the  claimant  his  grandson,  cettor,  in  1690. 
connected  themselves,  as  collateral  heirs-male,  and  as  heirs  to 
the  dignities,  of  the  Strathallan,  and  Maderty  grantees,  of  the 
direct  main  stock.     The  Act  of  Queen  Anne  in  1708,  intro- 
ducing the  English  treason  law  with  us,  having  no  retrospect, 
and  only  operating  from  the  first  of  July  1709,  this  next  mat^ 
ter,  of  course,  falls  to  be  decided,  not  by  its  import,  which,  as 
has  been  shewn,— were  it  not  for  the  attainting  words^  would 
have  saved  the  succession  to  the  honours,  upon  the  authority 
of  the  Atholecase  in  1764,' — but  by  our  original  treason  law. 

The  Strathallan  claimant,  in  his  printed  case,  and  written  First  plea  of 
Informations,  which  I  have  seen, — though  not  the  subject  of  ^^g^injj'ihrsaid 
proper  or  any  discussion  by  the  Lords,  first  pleaded,  in  bar  of  a"ainder    in 
the  attainder  in  1690,  a  Royal  charter  thereafter,  dated  Febru-faiu  'to  be  re- 
ary  28,  1695,  of  the  estate  of  Machany,  to  the  above  William  ^'»|^«^^^^^J^^^^ 
Drummond,  son  of  the  attainted  Sir  John,  in  favour  of  him  and  law,  thus  next 
his  heirs-male.     It  proceeds  upon  the  express  narrative  of  hisj^™°*j  *  JJJ^^" 
attainder,  and  the  forfeiture  in  consequence,  of  the  property 
to  the  crown,  and  contains,  among  other  burdens  and  provi- 
sions, that  of  a  slender  aliment  to  Sir  John.^    It  was  hence  con- 
tended, from  this  partial  countenance,  or  regard  and  favour  shewn  Effect  of  a  sien- 

•      1  .  1  B  ^^  1111  der  aliment  by  a 

towards  the  traitor,  on  the  part  of  Government,  that  they  had  Rojai  charter, 
in  fact  overlooked,  nay  even  fully  pardoned  his  crime,*  al-***  *  ®®"***^*®*' 
Uiough  no  rehabilitation  could  be  discovered  of  this  individual, 
who  thenceforward  resided,  and  died  in  Scotland  in  1707. 

*  See  p.  743.  ■  See  pp.  730-1. 

*  Great  Seal  Register.  The  grant  is  hastily  and  carelessly  ooncoct'* 
ed  ;*  even  the  Christian  names  of  the  disponee  and  his  mother  are  left 
blank,  independent  of  other  such  defects. 

*  **  The  Royal  grant  to  William  Drummond,  the  son  of  Sir  John,  in 
1G05,  was,  by  the  law  and  custom  of  Scotland,  equivalent  to  a  pnrdon 
and  restitution.*'     (So  the  claimant  insisted  in  his  printed  case.) 


750  INQUmV  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.  But  the  circumstance  is  evidently  too  weak  and  inadequate 
Insufficient  per  to  authorize  80  broad  and  violent  a  conclusion ;  and,  while  the 
te  to  cure  or  forfeiture  is  reiteratedly  founded  upon  in  the  grant,  as  the 
tainder.  '  existing  basis  of  the  crown's  right,  there  is  nothing,  directly  or 
indirectly,  in  a  relevant  view,  to  remove  it, — ^from  whence  we 
Removal  of  at-  iQust  Unavoidably  hold  that  it  still  in  the  main  continued.  The 
lainder,  whe*  rescinding  ofso  heinous  and  flagrant  a  crime  as  treason,  espe- 
King,  or  by  the  cially  by  our  peculiarly  rigid  and  inexorable  code  in  this  respect, 

i\*amen*°^mu8V  c*^"'^^*^  ^^  ^®f^  ^^  mere  presumptiou  and  implication,  even  were 
be  direct,  and  there  room  for  them,  in  the  present  instance.  And  whether  by 
terms.*  ^^^^  ^  ^^^  King  singly,* — or  by  Parliament,  with  his  sanction,  aimulet 
semel^  there  must,  for  the  essential  purpose,  be  a  plain  resti* 
tution  and  rehabilitation  of  the  traitor  and  his  heirs,  in  full 
liiustrations-—  and  exprcss  terms.  To  proceed  to  illustrations,  the  case  of 
case  of  the  Ba-  James  Lord  Balmerinoch,  in  the  reign  of  James  VI.  may  be  in 

rony  of  Balme-'        ^  .  . 

linoch  in  1609  point.  [Although  solemnly  convicted  of  treason  the  1st  of  April 
and  1613.  1609,  with  Sentence  of  decapitation,^  he  was  yet  allowed,  like 
Sir  John  Drummond,  to  exist  and  die  in  his  native  country, 
without  experiencing  the  due  rigour  of  the  law — nay,  actually 
to  reside  at  his  house  of  Balmerinoch,  and  to  derive  benefit 
from  the  property.^  This  was  clearly,  however,  at  the  most, 
but  a  merciful  qualified  indulgence,  as  in  the  previous  case, 
the  sentence  being  still  in  force,  and  suspended  over  him ;  and 
it  was  only  by  means  of  a  royal  pardon,  and  rehabilitation  sub- 
sequent to  his  death,  August  4,  1613,  that  the  disability  was 
removed  from  the  family,  and  John,  his  son,  enabled  to  succeed 
to  their  honours  and  estates.  It  is  precisely  to  the  effect  re* 
quired.  After  reciting  the  forfeiture,  and  the  services  of  his 
ancestors,  it  specially  ^'restores"  and  ^^redintegrates"  the 
said  John,  *^  suis  honoribus,  singulis  dignitatibus,  noinini,  bon» 
famae,  et  privilegiis,"  receiving  him  and  his  successors  ^'  ad 
nostras,  misericordiam,  favorem  et  gratiam,  contra  dictam  sen'- 
ientiamy  &c.  ac  si  eadem,"  with  all  attendant  injury  to  John, 
and  his  heirs^  '*  nunquam  pronuntiata  fuisset,"^  &c.  The  re- 
habilitated, however,  had  been  in  no  respect  guilty,  or  bad  in- 

'  As  to  this  hereafter. 

»  Sec  Pitcairn's  Crim.  Trials,  vol.  II.  p.  680. 

«  Ibid,  and  Scotstarbet's  Stagg.  State,  Edit.  1764,  p.  61. 

*  Great  Seal  Register. 


IN  scorrisH  peerages,  &c.  761 

cunred  the  Royal  displeasure.     Lord  John  was  obviously  m    Forfeiiure, 
the  precise  situation  with  William  Drummond,  the  disponee,  peculiarly  ap* 
in  1695y  who  hence,  for  the  proper  rehabilitation  or  restora- placable  to  case 
tion  likewise,  of  himself,  as  well  as  of  his  family,  ought  to  have  claimant. 
been  similarly  pardoned,  which  never  happened.    They  were 
therefore  still  barred  by  the  uncommuted  crime  of  his  parent.  Difference  be- 
Lord  Redesdale inculcates,  in  England,  that "  on  all  attainders,  ^Z^^^  the  En. 

,  ,      ,  '  o  '  » gush  and  Scot* 

whereby  a  dignity  has  been  forfeited,  the  crown  has  no  power  tish  laws,  in  res- 
to  restore  the  dignity;  and  it  can  only  be  restored  by  Act  of  Par-  forfilJI!?;^^^ 
liament,'*  &c.^  There  was  therefore  a  wide,  and  marked  differ- 
ence here,  between  the  law  of  the  two  countries,  as  is  evinced 
by  the  Balmerinoch  precedent, — where  certainly  the  mere 
Royal  act  sufficed,  without  any  interposition  of  Parliament, 
and  further,  by  what  will  transpire  in  the  sequel. 

The  Argyle  case,  likewise  confirmatory,  is  remarkable.  Case  of  the 
Charles  II.  in  1663,  granted  to  Archibald  Lord  Lorn,  and  ArgyieTn^&es 
his  heirs,  the  honours  of  Archibald  Earl  of  Argyle,  his  grand-  **«o  corrobora- 
father,  and  of  his  predecessors,  with  the  exact  precedence, 
which  had  been  forfeited,  the  24th  of  May  1661,^  for  treason,  in 
the  person  of  the  celebrated  Archibald  Earl,  and  Marquis 
of  Argyle  his  father.  This,  if  any  faith  or  weight  is  to  be 
ascribed  to  an  indirect,  or  inferential  restoration  against  attain^' 
der,  would  obviously  afford  one,  in  the  main,  far  beyond  what 
could  be  pretended  in  the  Machany  instance, — but  still  such 
large  concession  and  expression  of  favour  on  the  part  of  the 
crown,  by  which  the  disponee  was  instanter  ranked  among 
the  first  hereditary  counsellors  of  the  nation,  did  not  suffice ;  for, 
to  give  them  effect,  there  is,  over  and  above,  in  the  relative 
charter,  dated  the  16th  of  October  1663,^  a  special  rehabilita'^ 
tion  of  him,  and  the  offspring  of  the  traitor,  <^ad  eorum  tn* 
tefframjhmam^  ut  ad  omnes  terras,  honoresy  dignitatesj  bona- 
que  mobilia,"  making  them  capable  to  hold,  and  to  transmit 
the  same,  with  the  family  '<coat  of  arms,"  ^'officiis,*'  &c« 
Some  such  suitable  clause,  therefore,  again,  for  the  due  pur- 
pose, should  have  been,  besides,  inserted  in  the  Machany  char- 
ter in  1695.     And  accordingly,  in  corroboration  of  a  previous 

*  Third  Report  of  the  Lords  Committees,  ut  sup,  p.  76. 

*  Acts  of  Pari,  last  Edit.  vol.  VII.  p.  682. 

*  Great  Seal  Register. 


752  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,    allegation,  while  the  Argyle  disponee,  immediately  upon  bis 
^^"^^^^^     father's  forfeiture  in  1661,  had  been  but  simply  styled  "  Ar- 
chibald Campbell,"^  instead  of  Lord  Lorn,  his  former  appella- 
tion, no  sooner  did  the  above  rehabilitation  pass  in  1663,  than, 
in  virtue  of  it — without  the  aid  of  Parliament,  he  figures  as 
Earl  of  Argyle,'  and  holds  the  old  rights  and  identical  pre- 
eminence of  his  family,^  together  with  the  separate  subjects  and 
privileges,  of  which  he  would  have  been  otherwise  incapable. 
Things  remained  incontested  in  this  state  down  to  as  far  as  1669, 
when,  no  doubt»  on  the  occasion  of  a  Parliamentary  ratification 
of  a  conveyance  of  the  estate,  there  was,  at  the  same  Ume,  a  con- 
firmation of  the  rehabilitation  ;^  but  this  was  evidently  in  ma* 
joremrei  evidentianiy  accumulando  jura  juribus^  without  para- 
mount necessity  for  it ;  while  this  accompaniment,  making  it 
indispensable,  would  further  expose  the  futility  of  the  alleged 
effect   (by   the  claimant)  of  the  slender  Machany  grant  in 
MarquiMte  of   1695.     The  Marquisate  of  Argyle  had  been  conferred  upon 
u^ed. '"   * '  ^^^^  Archibald,  the  traitor, — whose  fame  and  memory  were 
never  restored — in  1641 ;'  and  consequently  the  son  was  not  to 
take  any  thing  from  him,  although  fully  from  the  previous  fa- 
mily representatives,  so  that  there  was  an  exception  as  to 
this  higher  dignity,  which  remained  attainted,  as  indeed  it  still 
does.     Corruption  of  blood,  in  the  general  case,  will  be  after- 
wards shewn  to  have  obtained  with  us.   The  material  fact,  as 
to  the  exclusive  efficacy,  in  law,  of  a  royal  pardon  for  treason, 
is  inculcated  by  Sir  James  Stewart,  Lord  Advocate  to  Queen 
Anne,  a  revolutionist,  and  far  from  a  kingly  zealot  ;^  inde- 
strongcaseof  pendent  of  concurring  authorities.      Alexander  Macdonald, 
oienpTrry,  ?n  younger  of  Glengarry,  was  forfeited,  and  his  blood  attainted, 
1690  and  1693.  precisely  as  Sir  John  Drummond,  under  the  same  act  in  1690  ;7 
but,  on  the  last  of  April  1692,  he  obtained  a  remission  or  par- 
don from  the  King  for  his  treason,  still  preserved  in  her  Ma- 
jesty's State  Paper  Office, — in  virtue  of  which,  again,  without 

•  See  Acts  of  Pari,  last  Edit.  vol.  VII.  pp.  380-85,  and  Append,  pp. 
89,  90,  &c. 

•  The  title  of  the  said  grant  in  1663,  is  **  Diploma  Archibaldi  Cowi- 
tis  de  Ergifhy^  shewing  it  itutanter  acted. 

■  Acts,  tit  sup.  pp.  626,  6d0>6,  et  9eq,  &c.  &c.  *  See  ibid,  p.  682. 

•  JM,  vol.  V.  p.  616.  •  See  afterwards.         ^  See  p.  743. 


IN  SCOTTISH  PEERAGES,  &C.  753 

any  Parliamentary  interference,  he  was  fully  rehabilitated,  and    Forfeiture. 
the  estates  and  succession  perpetuated  in  the  family.    There  are     ^-"^'"^^^ 
corresponding  ones  there,  to  different  Scottish  individuals  at  ko  pardon  to 
the  time ;  but  no  trace  of  a  condonation  to  Sir  John  Drummond  sir  John,  the 

.      ,  ...       traitor. 

of  Machany,  who  equally  and  indispensably  required  it ;  which 
striking  defect  again  shews  that  such  clemency  and  favour 
were  not  intended  to  him. 

Craig  says,  '*  Princeps  tamen,  si  feudum  concessit  incapaci,  Opinion  of 
sciens,  videtur  eum — ^natalibus  restituere,"  though  admitting  ^'"^" 
that  here  **  ratio  dubitationis — est,  quoniam  hie  per  bannum 
WkeforisfcLcturam  (the  very  crime  in  question)  ab  omni  jure  di- 
vino  et  humano,  et  ab  omnibus  commodis,  &c.  quae  inde  prove- 
niunt,  excludi  videtur," — while  he  even  holds,  at  the  most,  that 
such  presumptive  restitution  ^  only  enures  to  a  remission  of 
the  criminal  prosecution,  and  ^*  capacitatem  faturorum  com- 
modonim."  The  Machany  grant,  in  1695,  may  possibly  have 
bad  the  former  effect,  with  the  restricted  means  of  enjoying 
the  qualified  or  abstract  boon  it  conferred.  But,  at  the  same 
time,  coupling  the  fact  of  Craig  being  more  a  general  than  a 
discriminating  Scottish  feudist,  and  that  he  adds,  on  the  other 
hand,  that  ^^  plerique  sint  magni  viri,  qui  bannitum  seu^m- 
Juctumprius  restUuendum  putant,  quam  ulliua  beneficii  sit 
capax ;  saltern  crimen  ei  expresse  ex  indulgentia  Principis  re- 
mittendum,"^  I  think,  upon  the  whole,  I  may  be  authorized 
and  countenanced  in  the  law  I  have  laid  down, — certainly  in  Conclusion. 
the  material  view.  Craig  besides  adds,  that  he  was  aware  of 
no  decision  in  point  ;^  which  may  have  been  naturally  owing 
to  the  palpable,  admitted  truth  and  application  of  the  law  in 
question  in  practice. 

Rigid  as  our  doctrine  in  forfeiture  was,  based  upon  the  Certain  slight 
stem  and  unflinching  Roman  Code  in  this  particular,  it  still  g^oSnder  upon 
likewise,  after  the  example  of  the  last,  connived  at,  or  counte-^**®  Roman  law, 
nanced  a  certain  aliment  or  provision  to  the  innocent  offspring  with  us  in 
of  a  traitor, — but  without  superinducing  other  claims  or  ex-  ^'«**on- 

*  It  is  observable,  that  analogous  authorities,  appealed  to  by  Craig  in 

support  of  it,  are  from  the  canon  law ;  but,  in  forfeiture,  as  is  repeatedly 

illustrated,  we  were  guided,  in  these  respects,  by  the  contrary  purport 

of  the  Roman  law. 

>  De  Feud.  Lib.  I.  Dieg,  14,  §  9.  '  Ihid. 

3  b 


754  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,    emptions.    Tbus  the  Session,  the  11th  of  July  1622,  enforced 
'^^'''^^*^     payment  of  a  "  meane "  sum,  due  by  William  Hamilton,  on 
Case  of  Stewart  j^jg  bond,  to  Margaret  Stewart,  in  that  situation,  she  being  the 
guiltless  offspring  of  Hercules  Stewart,  who  had  been  forfeited 
by  Act  of  Parliament,^  upon  this  charitable  specialty,  that  the 
sum  was  *'  meancy*  and  tended  to  her  *^  aliment  J'^     And  this, 
though  Hamilton,  the  defender,  refused  compliance,  harshly 
enough,  but  not  irrelevantly,  on  Margaret's  pursuit,  by  reason 
of  the  civil  disability,  or  nullity,  attaching  to  her  in  conse- 
quence of  her  father's  treason,  which  barred  her  from  legally 
insisting.     The  above  was  obviously  under  shelter  of  the  Ro- 
man principle,  which,  although  it  generally  subjected  the  heirs 
of  a  traitor  to  every  disability,  yet  made  a  distinction  as  to 
daughters,  on  account  of  their  ''sex"  and  "  infirmity," — allow- 
ingthem  ^^mediocrem — a/ttTtontam"  out  of  their  mother's  effects. 
Quisq,  ad  Leg,  JuL  C.    Under  such  consideration,  in  a  great 
measure,  the  crown,  in  the  Machany  charter  in  1695,  gave  a 
small  aliment  to  the  wife  and  children  of  the  traitor.    It  bears 
that  her  jointure  was  to  be  divided  into  three  parts,  two  of 
which  were  to  be  assigned  respectively  to  the  latter ;  while,  by 
a  large  stretch  of  benevolence,  the  wretched  pittance  of  the 
remaining  third  was  extended  to  the  husband.    The  Act  1663, 
Aeti633,c.  19.  c.  19,  likewise,  while  it  peremptorily  continues  the  severest 
disabilities  and  inflictions  of  treason,  in  the  main,  against  con- 
victed traitors,  that  '^  they,  and  their  children  and  posterity'' 
shall  not  *<  enjoy  honors,  dignities,  offices,  lands,  possessions, 
or  inheritance^''  has  yet  this  exception, — '*  BtU  what  they  shall 
receave  by  his  Majesty's  speciall  favour ^"^ — thus  in  the  latter 
instance  comprising  the  very  situation  of  Sir  John  Drummond 
of  Machany,  and  especially  his  son,  in  1695,  who  were  accord- 
ingly so  far,  not  irrelevantly  indulged ;  but  from  whence  it 

*  In  1692,  with  the  usnal  "  pane  of  tressoun,  and  niter  and  last  pun- 
ishment appointit  be  ye  lawes  of  this  realme."  Acts  of  Pari,  last  Edit, 
vol.  III.  pp.  632-6. 

'  Lord  Haddington's  MSS.  Decis.  Ad.  Lib.  In  the  same  way  it  was 
relentingly  concluded,  or  argued,  that  however  deplorable  the  fate  of 
the  issue  of  a  traitor,  and  involving  the  last  deprivations,  they  still 
were  not  to  be  ^^  stript  of  their  cloaths."  This  forcibly  characterizes 
their  condition. 

•  Acts  of  Pari,  last  Edit.  vol.  VII.  p.  464. 


IN  SCOTTISH  PEERAGES^  &C.  755 

again  results,  that  a  mere  isolated  grant  might  thus  obtain,  as    Forfeiture. 
in  their  case,  without  eliciting  further  consequences,  or  pos-     ^-"^v^**^ 
sibly  enuring,  as  was  gratuitously  contended  in  1787,  to  the 
far  weightier  effect  indeed,  of  the  absolute  removal  and  abo- 
lition of  attainder.^    Neither  can  we,  in  hoc  statu^  attach  ma-  Designation  of 
terial  weight  to  the  description  of  William  Drummond,  by  the  mond  as  vi^"' 
title  of  Viscount  Strathallan,  in  the  act  1746,  so  as  to  infer  a5°"°>  strathai- 
previous  restoration,  or  otherwise.     Though  the  crown  and  1746,  not  con- 
government  have  been  elsewhere  equally  misled,  and  per  in"  ^^^^^^' 
atriam  admitted  Scottish  titles  much  in  the  same  way ;  that, 
in  the  event,  has  not  proved  of  benefit  to  a  party  by  whom 
they  were  unjustly  assumed,   or  homologated  his  putative 
right.     The  case  of  the  Viscounty  of  Oxenford,  before  the 
middle  of  last  century,  is  here  in  point,' — to  which  we  may 
add,  the  Parliamentary  ratification  of  the  Cassilis  honours 
to  certain  heirs  in  the  reigns  of  Charles  I.  and  II.,  which 
however  proved  null  and  unavailing.^      If  there  had  been 
a  restoration  too,  Sir  John  Drummond  of  Machany  would 
have  been  at  once  reponed  in  all  his  inheritance,  and  there 
have  would  been  no  room  or  occasion  for  the  charter  1695 
to  William,  his  son,  or  for  any  such  circuitous  measure. 
Secondly,   it  was  strangely  excepted  by  the  Strathallan 

'  We  had  also  varions  restitutions,  aecundutn  quidy  in  forfeiture.  Of 
the  latter  kind,  an  instance  will  be  given  (p.  761)  in  respect  to  John 
Stewart,  son  of  an  attainted  traitor,  in  the  reign  of  James  VI.,  where, 
though  fttm«e//*unattainted,  and  he  had  collateral  heirs,  otherwise,  capa- 
ble of  succeeding  to  him,  and  to  whom  he,  in  like  manner,  might  have 
snoceeded,  the  rehabilitation  is  merely  to  that  individual,  and  the  heirs 
of  his  bodyy — to  take  and  hold  in  a  new  character.  Nothing  again  is 
here  left  to  surmise  or  presumption.  Dallas,  our  first  legal  con- 
veyancer in  the  reign  of  Charles  II.  and  down  to  1697,  introduces,  in 
his  Styles,  the  ordinary  form  of  a  qualified  remission  by  the  King  to  a 
traitor,  "  as  to  his  life  allcnarly,  (onlyj  without  prejudice  always  to 
his  Majesty  and  his  donators,"  of  his  forfeited  property  and  goods ; 
— ^while  there  is  an  express  clause  of  rehabilitation,  that  he  and  the 
heirs  of  his  body — only  extunc — may  hold  and  enjoy  lands,  offices,  or 
goods  they  may^acquiro,  or  that  may  fall  to  them.  There  are  some  too, 
that  the  restored  may  serve  on  juries,  and  be  a  "  habile  witnes  "  in 
law,  and  be  not  further  molestc  J  for  his  treason.  Styles,  Edit.  1697, 
pp.  C52-3-4. 

•  See  p.  62.  '  See  pp.  658-9, 


756  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,    claimant  in  1 787,  "  that,  by  the  law  of  Scotland,  there  waa  no 

Sec'^iidpili!  of^^^^P^^"'  ^^  "  blood,"  >-^o  that,  in  any  event,  his  grandfa- 
the  strathaDan  ther,  William  Drummond  of  Machany,  the  titular  Viscount, 
1 787  *?n  bar  of  *°^  necessarily  himself,  (always  on  the  supposition  of  there  be- 
tbe  attainder  in  ing  no  attainder  in  1746),  might  make  resort  to  William  Drum- 
there' was  no  niond,  the  Strathallan  patentee  in  1686,  or  to  Viscount  James, 
corruption  of    his  grandson,  and  take  from  them,  through  Sir  John   the 

blood  moor  law.        .         .       /.  ,  i     •   • 

traitor,  m  1690,  though  derivmg  their  ^^pedigree"  through  the 
latter,  as  in  the  analogous  Athole  instance.^  But  then,  even 
At  an  rate  A^^^^^^^S  ^®  f^<^^  there  would  Still  be  a  specialty  in  the  case, 
irreie?ant.  ow-  owing  to  the  express  terms  of  the  attainder  by  the  act  1690, 
oTthe  atfainder  which,  whatever  may  be  the  case  otherwise,  does  here  enforce 
in  1690.  corruption  of  blood.     For  it  is  thereby  explicitly  declared,  in 

most  forcible  language,  that  the  ^'  name,  fame,  memory,  and 
honour"  of  Sir  John  are  ^^toheextinct"  oxxd  actually  his  **blood 
to  be  TAINTED,"  that  is,  clearly  corrupted,  "  sua  that  (his) 
posteritie'^ — which  removes  all  doubt  in  the  matter — '*  may 
never — he  able,  hereafter^  to  brook,  or  joyse  any  honours^  &c. 
titles,  or  dignities,  in  tyme  comeing."^  This  enactment,  there^ 
fore,  unrepealed  in  the  18th  century,  of  itself  peremptorily  ex- 
cludes the  succession  in  question.  And  when  we  combine  with 
this,  that  we,  in  forfeiture,  made  no  difference,  in  respect  to  cor- 
ruption of  blood,  as  in  England,  between  entailed  dignities,  and 
those  in  fee-simple,  to  be  shortly  corroborated — independently 
of  the  general  nature  of  our  law,  as  may  at  the  same  time 
eqiially^transpire — I  think  it  may  be  held,  that  in  1711,  after 
the  extinction  of  the  direct  male  line  of  the  Strathallan  pa- 
tentee, both  the  Strathallan  and  Maderty  honours  became  for- 
feited in  the  person  of  William  Drummond,  son  of  the  traitor. 
He,  being  unrehabilitated,  was  fairly  struck  at  by  the  Act, 
under  the  term  ^*  posterity,"  and  unable  to  succeed  either  to 
the  former,  though  assumed  by  him,  or  indeed  to  any  honours, 
^"ment^of  tSr  ^nd  as  to  the  Act  1690,  c.  104,  saving  certain  entailed  inter- 
ciaimant  upon  ests,  upon  which  the  claimant  also  founded,  it  evidently  could 

the  act  1690,  *  i        i.      •  r  *       j*      'i.'  j  • 

also  irrelevant,  not  apply— having  no   reference  to  dignities,   and  owing 
ai  afterwards    ^^  other  reasons  explained  in  the  sequel.    Such,  it  is  conceiv- 

to  be  shewn.  *  * 

*  See  printed  case  for  the  dumant.  ■  See  p.  731. 

*  See  p.  743.    The  condemnation  and  extinction  of  the  memory  of 
the  family  are  direetly  imported  from  the  Roman  law. 


I  - 


IN  SCOTTISH  PEERAGES,  &C*  757 

ed,  would  have  beea  the  resolution  of  the  Lords  also  In  1790,    Forfeiture. 
had  the  case,  on  the  sustaining  of  the  first  plea — contrary  to     '^^'">^^'**-' 
fact — been  further  pushed,  and  properly  sifted ; — so  that  there  Conclusion. 
was  the  fatal  obstacle   of  two  attainders.     It  fortunately, 
however,  now  happens,  that  all  objections  and  disabilities  are 
removed  upon  this  head,  by  the  equitable  and  popular  restor- 
ation, by  Act  of  Parliament,  in  1824,  of  James  Drummond, 
Esq.  second  cousin  and  heir-male  of  the  claimant  in  1787,  to 
the  dignities  in  question,  by  whom  they  are  at  present  held. 

I  shall  next  proceed  to  the  equally  important  and  interest-  Did  corruption 
ing  subject,  whether  corruption  of  blood  universally  obtained  ^^^^^J^^.**^ 
by  the  Scottish  law, — it  certainly  at  least  being  enforced  inUw? 
Acts  of  Parliament.      And  here,  I  conceive,  there  exists  as 
little  difficulty  or  doubt.     Whatever  may  have  been  objected 
in  the  Strathallan  claim,^  or  supposed,  and  superficially  enter- 
tained by  certain  modern  Scottish  Jurists, '  our  legal  Code 
inexorably  combined,  in  the  instance  of  treason,  all  the  rigour 
of  the  feudal  law,  with  the  uncompromising  and  blasting  doc- 
trine of  the  Roman ;  which  was  here,  with  us, — as  is  in  part  al-  We  followed  the 
ready  evident, — a  great  rule.     In  unison  with  the  latter,  the  the  main,  'in 
Scottish  penalties  of  treason  were  irremediable  in  every  emer-^'®****"- 
gency,  and  vitiated,  and  obstructed  every  kind  of  succession. 
The  name,  fame,  and  memory  of  the  criminal,  and  his  family, 
thereby,  were  sunk  and  gone,  while, — still  after  the  example  of 
Rome, — the  crime  was  even  visited  upon  the  wretched  bones 
and  disjointed  carcase  of  the  unconvicted  offender,  which  could 
be  tried  and  condemned  posterior  to  his  death,  with  the  usual 
penalties,  as  a  greater  terror  to  others.^     Accordingly,  by  our 

'  The  Strathallan  claimant,  in  his  printed  case,  peremptorily  main- 
tained, **  that,  by  the  law  of  Scotland,  there  was  no  guch  corraption  of 
blood  "  in  honours,  to  bar  his  right. 

'  Among  others,  Baron  Hume,  the  learned  Institutional  writer,  as 
will  be  seen  in  the  sequel. 

*  By  the  LeaeJvUa^  it  is  strikingly  enacted,  that  the  posterity  of  tiait- 
on,  **  patemo  enim  deberent  perire  snpplicio--sint  perpetno  egentes 
~«d  nuUoB^TorwuA  honoreB,adniiito8acramentaperveniant ;  (hence,  with 
ui^  they  oould  not  be  jurymen,  see  p.  765,  n.)  sintpostremo  tales, ut  his 
perpetua  ^estate  sordentibus,  sit  et  mort  tolaHumy  et  vita  wppliciumJ* 

(imUq.  ad  Leg.  Jul.  O. "  etiam  poit  mortem  nocentium,  hoc  crimen 

indkoari  ponit,  ut  oonvicto  mortuo^  memoria  ejus  damnetur^  (our  pecu- 


758  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.  HDCient  laws,  as  might  at  the  least  be  expected,  all  lands  and 
possessions  of  traitors,  are  declared  to  be  generally  and  un- 
qualifiedly forfeited  to  the  crown,  without  recovery  by  any 
heirs — unless,  in  confirmation  of  what  I  before  said, — and  what  is 
a  natural  paramount  exception, — ^there  was,  de  planoy  a  royal 
pardon,  ^  that  sufficed  as  a  restoration.  The  same  principle 
excludes  the  chance  in  law  of  any  salving  exemption,  from  cor- 
ruption of  blood,  or  attainder, — these  being  thus  perpetual  and 
absolute.     And  coming  down  to  reported  precedents  and  au- 

liar  phrase),  et  ejus  bona  sacoessori  ejus  eripiantnr.''  P09L  Z>.  Maro,  con- 
stit,  ibid.  Agreeably  to  this,  in  further  proof  of  my  remark,  sentence  of 
treason  was  pronounced  upon  the  bones  of  Gowrie,  and  his  brother ;  as 
also  in  the  instance  of  Mowbray,  in  1603.  Nay,  the  body  of  L^gan  of 
Restalrig,  implicated  in  the  Growrie  treason,  as  is  notorious,  was  dug  up 
for  the  purpose,  years  after  he  was  buried  ;  while  further,  to  shew  our 
rigour  in  the  crime  in  question,  the  interesting  Janet  Lady  Glammis 
was  condemned,  July  17, 1587,  to.be  '*  brynt  in  ane  fyre  as  ane  2Vay- 
ioure'*  (See  Books  of  Adjournal,  of  that  date.)  The  form,  in  the 
Cowrie  and  Logan  cases,Iis  proved,  and  declared  by  Act  1540,  c.  1.  to 
have  been  a  part  of  our  **  commoune  law.''  (See  Acts  of  Pari,  last  Ekiit. 
Tol.  II*  p.  366.)  In  virtue  of  it,  therefore,  had  notour  old  treason  law 
been  superseded  by  the  English,  in  terms  of  Queen  Anne's  Act,  John 
Earl  of  Strathmore,  (descended  of  Lady  Glammis,)  and  massacred 
outright,  in  rebellion,  by  a  dragoon, — after  his  capture,  at  the  battle  of 
Sherifiinure  in  1715,  would  have  been  tried  and  attainted,  through  the 
guise  of  his  helpless  remains,  with  the  forfeiture  of  his  honours  and 
estates.  According  to  the  cotemporary  master  of  Sinclair,  a  ^  mill-stone'* 
thus  "  crushed  a  briUiant^**  (the  Earh)  (See  Lord  Mahon's  last  Hist. 
vol.  I.  p.  264^  n.)  But  this  nobleman's  much  lamented,  and  prematura 
death,  (the  parallel  incident  recurring  to  an  equally  luckless,  and  ac- 
complished representative,)  was  obviously  fortunate  to  the  present 
fiunily, — ^by  excluding,  under  the  new  practice,  a  trial  and  conviction. 
^  BtatuL  Maicdfnj  c.  XII.  §  1,  2,  3,  which  forfeits  *^ omnia**  in  the 
traitor,  **9ine  reouperatiane  alicujus  heredis.  nt«t  specialis  gratia  Regis 
intervenerit," — including  the  infliction  of  death,  ** sine  redempti&ne** 
The  Statute  has  no  mention  of  Parliament,  or  the  general  Council  of 
the  nation,  in  reference  to  the  pardon  ;  and,  by  the  authority  of  Sir 
James  Stewart,  Lord  Advocate  to  Queen  Anne,  '^  The  King,  granting 
a  remission  after  forfeiture,  restores  the  person  entirely**  (Ans.  to 
Nisb.  p.  127).  In  the  Regiamy  Lib.  TV.  c.  II.  §  1.  it  is  laid  down,  that  the 
convicted  traitor,  **  et  haredes  sfii^  perpetuo^  exhsredari  debent, " 
See,  to  the  corresponding  purport,  Quon.  Attach,  c.  19,  §  3 — c  48,  § 
17  ;  also  Acts  of  Pari.  1424,  c.  3,  and  1540,  c.  1,  (last  Edit  vol.  II.  pp. 
1,  356,  &c.) 


IN  SCOTTISH  PEERAGES,  &C.  769 

thorities,  that  of  Bisset,  to  the  above  purport,  is  clearly  in  point.     Forfeiture. 
Robert  Bisset,  of  Lessindrum,  fell  at  the  battle  of  Corrichie     ^•^'"^^'^^^ 
in  1562  with  the  rebels,  for  which  he  was  attainted ;  and,  after  ^ft^r  ?d62,  in 
his  father's  death,  whom  he  predeceased,  there  arose  a  ques-'"PP°'*  ^LV*^\ 

111  M-n    «  11  1      ,        ruption  of  blood 

tion  between  the  daughters  of  Robert,  and  the  crown,  whether  with  us  at  com- 
they  could  take  as  heirs  to  the  above,  their  grandfather,  or"*^"^*''' 
were  excluded  by  the  crown, — from  their  parent's  attainder ; 
— ^when  the  latter  came  to  be  preferred,  though  the  traitor  was 
never  in  possession.    And  why  so,  it  may  be  inquired  ?    Owing  Corroboratory 
to  this  express  raiio^  assigned  by  Craig,  a  cotemporary,  who  craig  "^  ^^ 
reports  the  case,  under  the  actual  head  of  corruption  of  blood, — 
'^  quod  vititUa  copula  (the  tie  being  vitiated  or  corrupted)  per 
quam  repies  avo  sua  conjungi  poterant,  proinde  interrupta^ 
successio  ad  eos  non  poterat  conjungi  ;^" — the  case  being  iden- 
tical with  that  of  Lumley  in  England,  formerly  alluded  to, ' 
and  where  the  same  result  was  judicially  enforced,  owing  to 
the  very  same  reason  that  came  here  into  play, — the  corrup- 
tion of  blood  of  the  descendants,  in  consequence  of  forfeiture 
of  a  predeceased  heir-apparent,   which  thus  equally  barred 
with  us.    Archibald  Wauchope,  alleged  to  have  been  infeoffed,  Case  of  Wau- 
(upon  a  resignation,)  though  this  was  denied,' in  the  estate  of  *^  ^^*  *" 
Niddry,  the  transaction  at  any  rate  being  incomplete  and  un- 
confirmed, had  been,  thereafter,  in  1592,^  attainted  in  the  life- 
time of  Robert  Wauchope,  his  father,  the  resigner,  who  still  con- 
Unued  in  possession.    And  on  the  death  of  the  latter,  in  1 598,  it 
was  decided  that  the  traitor,  by  his  conviction,  had  forfeited  his 
^'  spem  successionisin  the  lands," — in  virtue  whereof,  these  were 
expressly  found  to  have  devolved — in  exclusion  of  the  heirs 
— to  the  crown ;  with  which  they  became  consolidated  without 
seisin  ;  that  not  being  required  in  this  alternative,  because  the 
king  is  seised,  ^^be  hiBcroune"  "in  alllandis  within  his  realme."^ 

'  De  Feud.  Lib.  III.  Di^.  6,  §  16.  et  ibid.  Lib.  11.  m^.  18.  §  23. 

•  See  p.  736. 

'  It  was  objected  by  a  party  in  the  action  to  be  noticed,  that  lie  '^  wes 
never**  so  "infefL"  *  Acts  of  Pari,  last  Edit.  vol.  III.  pp.  532-C. 

*  Haddington's  MSS.  Decis.  Ad.  Lib.  Upon  tho  same  ground,  jure 
eorone,  the  king  de  planoy  without  any  service,  or  previous  customary 
title,  pursued,  in  1588,  a  reduction  qua  heir-general,  in  the  Angus  case, 
(see  p.  6.)  It  is  remarkable  that  Charles  II.,  in  order  to  establish  his 
right  of  succession  to  the  Ducal  House  of  Lennox,  by  the  nearest  male 


760  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.     The  law  here  is  in  accordance  with  that  in  the  previous  case. 
The  children  of  Alexander  Ruthven,  attainted  of  treason,  pur- 
of°RTh7e"n,Tn''  ^ucd,  for  payment  of  a  legacy  left  to  them  by  the  Laird  of 
1612.  Freeland,  his  "  relict  and  executrice;"  whose  defence  on  this 

ground  was  sustained  by  the  Session  the  1st  of  February 
1612,  '<  that  thair  father  being  forfalted,  and  his  posteritie  de- 
claired  be  Parliament  disabled,  (according  to  usual  form),  thay 
could  have  no  action.'*  ^  The  posterity  necessarily,  from  the 
attaching  corruption  of  their  blood,  were  infamous,  and  dead 
in  law,  and  hence  incapable  either  of  legally  taking,  or  acting 
in  any  shape.  The  Court,  in  this  instance,  may  have  been 
stricter  than  in  that  of  Stewart  against  Hamilton  in  1622, 
which,  however,  elicited  the  same  exception, — evincing  the  ge- 
neral understanding  of  practice.*  In  the  Ruthven  case,  it  ap- 
pears also  to  have  been  argued, — somewhat  as  in  respect  to 
^^«JJ^J{P^°'^»^  William  Drummond  of  Machany  m  1695,  in  the  Strathallan 
1695.  claim — ^in  behalf  of  the  children,  and  as  an  implied  royal  amend- 

ment, or  amelioration  of  their  condition,  that  the  king  had 
*^  givin  thame  ane  tutour  ;"  but  to  this  it  was  conclusively  an. 
swered,  that  "the  tutorie  wes"  only  "under  the  caschet;  and 
that  those  (such  as  the  children)  who  were  disabled  be  parle* 
ment,  could  not  be  rehabled  hot  be  the  king,  of  his  ceriaine 
knawledge," — in  consequence  of  which,  the  Session  "  refused 
to  grant  any  process,  at  thair  instance."  ^  Counteraction,  or 
removal  of  attainder,  therefore,  is  rigidly  interpretated  in  law, 
and  must  be  with  the  full  and  unequivocal  intention  and 
knowledge  of  the  sovereign ;  while,  in  this  decision,  we  have 
additional  proof  of  the  identity  of  our  treason  law  with  the 
Roman,  which  in  the  same  way  inculcated  that  the  posterity 
^nfoJ^"ty"o'"^^^  "  ^^^amentis  extraneorum  nihil  capiant"   Quisq. 

the  Roman  law.  ad  Leg*  Juh 

propinquity,  on  July  6, 1680,  was  "  wruedheir  in  special  *'  to  his  cousin 
Charles  Stuart,  the  previous  Duke  of  Lennox, ''  The  14  eldest  Lords  of 
Session  "  being  **  members  of  inquest,"  and  ^*  the  Lord  Chancellor 
Chancellor  to  the  assize ; "  while  the  **  four  macers  were  judges.^*  As  to 
which,  however,  Sir  John  Lauder  observes,  in  accordance  with  our 
original  notions,  and  practice,  that  **  some  called  this  service  rediculous 
and  unnecessary,  and  thought  ihejus  coronee  supplied  all  thir  (theaej  so- 
lemnities in  the  King's  person."  (See  his  Decis.  vol.  I.  p.  106.) 
*  Haddington,  ut  sup,         ■  See  p.  754.         •  Haddington,  ut  9up^ 


IN  SCOTTISH  PEERAGES,  &C.  761 

Agreeably  to  the  doctrine  in  question,  the  act  1621,  c.  67.    Forfeiture, 
declares  that  John  Stewart,  son  of  the  attainted  and  deceased  . 

Francis,  ^^sumtyme"  Earl  of  Both  well, — although  himself  in- of  John  Stewart 
nocent,  "  wes,"  in  consequence  of  his  father's  treason,  "be  ye*"  *®^*' 
lawesj  actis,  and  constitutiounes  of  this  realme,  dishabilitate, 
and  maid  unhable  to  have  bruikit,  and  possessit  landis,  of- 
fices, and  honoures."  And  it  was  purely,  as  is  set  forth,  out 
of  the  King's  clemency,  through  the  medium  of  a  royal  char- 
ter, that  John  was  indispensably  rehabilitated,  and  restored  to 
"gude  name  and  fame,"  and  to  certain  subjects,  of  which  he 
had  been  deprived  by  the  attainder.  Further  still,  the  above 
act  (in  confirmation,) — the  restoration  being  merely  secun- 
dum quid — restricts  the  benefit  to  the  son,  and  to  the  heirs  of 
his  body,  to  hold  "lands, — dignities  or  honours,"^  &c. — 
although  he  had  co//a^6ra/ heirs,  who  would  have  taken  to  him 
at  common  law,  and  to  whom  he  would  have  also  succeeded 
had  it  not  been  for  the  forfeiture.  The  corruption  of  blood, 
therefore,  so  far,  necessarily  still  obtained,  as  it  incontestably  did 
throughout,  before  the  royal  and  parliamentary  interpositions ; 
which  is  moreover  extremely  important,  as  the  descendants  of 
Sir  John  Drummond  of  Machany,  the  convicted  traitor  in  1 69  0,  it.  appUcaUon 
not  beinff  rehabilitated  at  all,  must  a  fortiori  have  been  de-  ^^  Machany 

°  .  case,  in  1690. 

barred  from  succeeding  to  the  collateral  branch  of  Strathallan 
in  the  Strathallan  honours. — Then  again  comes  the  strict  act 
it  1 663,  in  corroboration — plain  enough^ — that  need  not  be  des- 
canted upon. 

Proceeding  further  down,  the  Earldom  of  Melfort,  &c.  is  Case  of  the 
limited  by  patent,  dated  August  12,  1686,  to  John  Viscount  ^^/f^^|^^^^95 
Melfort,  and  the  heirs-male  of  the  body  by  his  second  mar- 
riage, *^  quibus  deficientibus  in  haeredes  ejus  masculos  de  suo 
corpore  quoscunque ;"  '  under  which  grant  the  heirs-male,  by 
the  second  wife,  took,  as  in  the  instance  of  Somerset,^  in  ex- 
elusion  to  those  of  the  first.     But,  on  the  patentee's  forfeiture 

^  Acts  of  Pftrl.  last  Edit,  vol.'  IV.  p.  656.  It  also  annuls  preyious 
attainting  acts.  '  See  p.  754.  *  Great  Seal  Register. 

*  See  pp.  715-16,  n.  et  seq.  The  unnatural  order  of  succession,  so  hr, 
WBg  similar,  in  regard  to  the  two  wives,  and  the  issue, — **  sed  aiioy  aliij^ 
The  spouse  first  married  Sophia  Lundin,  unlike  Katherine  Fillol,  Frk 
tector  Somerset's  first  wife,  was  blameless,  and  unexoeptionable  in  her 


762  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,    by  Parliament  in  1695,  it  was  at  the  same  time  enacted,  that 
^^^^'^^     the  attainder  "  shall  noway es  affect,  nor  taint  the  blood  "  of 
the  issue  last  specified,  which  was  to  *<  be  an  exception  in  the 
Corruption  of    doom  of  forfaultur."  *     Corruption  of  the  blood,  therefore, 
instructed.^  ^   clearly  held  in  the  case  of  the  statutorily  unprotected  poste- 
rity of  the  traitor,  and  would  have  done  so  by  law,  as  to  the 
others,  had  it  not  been  for  this  marked  interposition  of  le* 
gpislature,  by  which  it  was  alone  eluded.     It  hence  also  fol- 
lows, that  we  made  no  distinction  between  an  entailed  honour, 
and  one  in  fee-simple — that  in  question  being  undoubtedly  of 
the  former  kind ;  while,  in  virtue  of  the  ultimate  limitation, 
there  might,  through  the  guise  of  a  remainder  over, — calling 
English  notions  into  co-operation, — have  been  another  plea 
against  the  attainder.    But,  with  us,  on  the  contrary,  without 
the  saving  enactment,  every  thing  was  gone* 

In  addition  to  this,  the  Melfort  forfeiting  and  rehabilitat- 
ing Act  in  1695,  evidently  refutes  the  other  untenable  doctrine, 
— as  I  am  now  further  convinced,' — ^that  corruption  of  blood 
in  honours,  though  originally  obtaining,  had  been  fully  remov- 
.     ,««^      J  ed  by  the  earlier  Act  1690,  c.  104,'  that  refers  to  certain 

Act  1690  made  ^  ,  , 

here  no  innofa- landed  interests.     Still  continuing,  as  above  instructed,  at  a 

to  honouw***^'  wii^cjuen^  period,   the  latter  could  have  no  such  effect, 

besides  neither  specifying  dignities  at  all,  at  a  time  when, 

reasonably  enough,  a  full  and  apt  specification  was  required 

to  include  them.     And  in  this  material  conclusion,  I  am  fully 

Opinion  of  Jus- confirmed  by  the  opinion  of  an  eminent  Judge,  Justice-Clerk 

ac-  JyJJ^^,q^g^lJ^  which  will  be  adduced  in  the  sequel.     The  act  in 


queen. 


conduct, — ^whilo  the  second,  Euphemc  Wallace,  as  is  transmitted  to  U5, 
was  not. — Hence  the  facts,  in  the  case  of  Somerset,  though  paralle], 
were  reversed.  But  considerations  of  religion  interfered,  and  the 
senior  ofispring  were  unduly  postponed,  remaining  Protestants,  while 
the  father,  whose  example  was  followed  hy  his  second  family,  turned 
Papist, — ^like  the  Chancellor  Perth,  his  elder  brother  ;  which  ingratiated 
both  with  their  unfortunatej-oyal  master.  The  Chancellor  having  also 
married  a  frail  personage,  with  whom  he  had  Aa<^a  i?at«07i,  the  malignity 
of  the  age  said,  that  the  brothers  were  faithful  to  their  mistresses,  but 
faithless  to  their  God.  No  wonder  that  the  elder  Melfort's  issue  were  fa- 
voured, as  will  be  seen,  after  the  Revolution. 

>  Acts  of  Pari,  last  Edit.  vol.  IX.  p.  407. 

■  See  pp.  127-8. 

*  See  Acts  of  Pari,  last  Edit.  vol.  IX.  p.  225. 


IN  SCOTTISH  PEERAGES,  &C.  763 

question,  inter  alia^  under  the  limited  head  of  landed  sucees-    Forfeiture. 
sion,  exclusively  saves  the  right  of  the  heirs  by  strict  entidl,     ^^^'^^'^^ 
notwithstanding  the  treason  of  the  tenant  in  possession,  it  be- 
ing thought  but  just  (as  there  set  forth)  '*  that  every  man  suf- 
fer for  his  owne  foult,  and  not  the  Innocent  with,  or  for  the 
guilty."    The  statute  thus  approximated,  in  its  nature,  to  the  Act  i69o  like 
English  statute  de  donisy  though  it  never  received  such  large  ?°^^  Sutute 
construction.     Indeed,  it  may  be  said  to  have  been  but  ephe-  only  applied  by 
meral,  coming  soon  to  be  abrogated  by  the  treason  act  of 
Queen  Anne  in  1708,  which,  while  it  saved  the  right  of  heirs  Soon  abrogated 
by  remainder  over,   in  honours,  &c.  failing  previous  A^t'*^  of Qtwen  Anne. 
of  the  traitor's  body^  yet  nullified  that  of  the  latter  in  all 
subjects,  as  well  as  of  others  cldming  by  general  limitations 
in  entails,  in  the  way  shewn,  however  strict  and  valid.    It  ne- 
cessarily, at  the  same  time,  follows,  that  the  additional  plea  of 
the  Strathallan  claimant  in  1787,  that  by  the  act  1690  "the  Act  i690  can 

,  in   HO  ways 

right  of  heirs  in  dignities  was  saved  from  all  pretension,  that  benefit  William 
it  (the  Peerage)  could  be  affected  by  the  attainder  of  the  an-  MMh"''°tb/ 
cestor,"'  was  futile  and  irrelevant.    And,  moreover,  even  sup-  son  of  Sir  John 
posing  that  the  act  related  to,  and  comprised  honours,  he  ,^j^^^^|^^^ 
could  never  be  favoured  or  protected  thereby,  because  those »"  *>»»*  y**'- 
heirs  are  alone  contemplated  who  held  under  the  strictest 
entails,  entered  in  the  particular  Register  of  Entails,  "  con- 
forme  to  the  act  of  Parliament  in  the  year  1685,'* — of  which 
description  and  character  neither  was   William  Drummond 
of  Machany,  or  his  descendants.     They  were  heirs,  by  such 
entail,  to  nothing ;  they  had  only  right  under  the  abstract  Ma- 
chany charter  in  1695,  containing  but  a  simple  substitution 
to  heirs-male,  without  any  irritant  and  resolutive  clauses. 
Nor  is  even  this  all ; — while  the  act  of  attainder  of  Sir  John 
Drummond  of  Machany,  passed  the  14th  of  July  1690,  the 
one  premised,  which  has  no  retrospect,  did  not,  until  the  stib- 
sequent  22d  of  the  same  month  ; '  from  whence  it  equally  re- 
sults, that  his  family  could,  in  no  view,  be  benefited  by  it,  but 
that  their  case  still  depends  upon  our  previous  unqualified 
law ;  for  I  am  not  aware  of  any  fiction  with  us,  as  hereto- 

*  So  stated  in  his  printed  ease  before  the  Lords,  and  MSS.  Informa- 
tioDB,  which  I  havo  seen. 
'  See  Acts,  ut  sup,  vol.  IX.  pp.  204,  225,  and  Append,  pp.  61,  ei  seq. 


764         INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,    fore  in  England,^  of  our  acts  not  failing  to  take  effect,  accord- 
*^^"^'^**^     ing  to  their  precise  dates,  but  indiscriminately^  in  whatever  si- 
tuation, from  the  first  day  of  the  Session.   On  the  contrary,  it  is 
laid  down  by  our  Institutional  writers,  and  Commentators,  that 
— consistently  with  the  conceived  inherent  nature  of  law — the 
former  have  no  "  retrospect,"  and  that  they  ^'  are  understood 
Argument  of     to  take  effect"  solely  from  their  dates.'     In  the  Styles  of 
corruption  of    Dallas,  published  in  1697, — our  chief  conveyancer,  both  be- 
Daui'i'sTie*  ^^^^^  and  long  q/icr  the  Revolution,  and  Act  1690,— there  are 
anxious  clauses  in  the  requisite  forms  of  Royal  rehabilitations 
for  treason,  that  the  ^^  blood'*  of  the  traitor,  and  **of  those 
descending  of  him,  tainted  and  suppressed  (the  last  even  a 
stronger  term  than  corrupted)  by  the  said  crimes  and  sen- 
tence, (of  lese^Majesty  and  treason) — be  now,  by  our  royal 
grace  and  favour,  &c.  fully  and  entirely  purified  and  redin- 
tegrated."    This  shews  the  q^er  continuance  of  the  taint' 
Concurrent      And  Macdowal  of  Bankton,  our  well  known  Institutional 
Macdowai  ^'of   writer,  in  1752,  inculcates  the  law  I  maintain, — "  that  corrup- 
Bankton.         tion  of  blood,  upon  an  attainder  of  high  treason,  took  place  with 
us," — ^both  upon  the  authority  of  Craig,  before  cited,^  and 
Royal  rehabilitations,  from  Dallas,  &c.  reponing  '<  the  party, 
and  all  his  descendants^''  against  the  incapacity  "  of  enjoying 
lands,  honours,"  &c.      He  here  adds  also,  "  that  our  kings 
could,  by  their  pardon,  restore  the  blood,  which  is  otherwise  at 
present,"^  (after  the  Statute  of  Queen  Anne,)  thus  again  con- 
firming another  allegation.     But  to  appeal  to  a  still  greater 
_  authority,  not  very  remote,  that  distinguished  lawyer .  Sir 

SirJamet  stew- James  Stewart,  Lord  Advocate  to  Queen  Anne,  and  a  leading 
^j^^'^^/j^**- member  of  Government  from  1689  to  1708,  (in  which  last 
Anne.  year  the  English  treason  act  passed),  lays  it  down  as  follows, 

"  By  otar  law  (indubitably  after  Act  1690,  c.  104,)  the  blood  of 
traitors  is  tainted,  and  their  posterity  disabled,  ipso  jure,  &c. 
— but  itis  not  thought,  that  it  would  deprive  them — of  any  pro- 
per estate,  well  settled  in  their  persons,  (though  generally  held 
they  ought  to  be  restored  and  rehabilitated)  independant  on  the 
father's  forfeiture."*  This  latter  restricting  alternative,  though 

^  See  p.  745. 

'  See  £r8kine*s  Instit.  B.  I.  T.  1,  §  37,  and  note,  Lord  Ivory's  Edit. 
■  First  Edit,  of  his  work  referred  to,  p.  663.  *  See  p.  759. 

•  Institutes,  1752,  B.  III.  T.  III.  §  53.        •  Atis.  to  Nisbet,  p.  316. 


IN  SCOTTISH  PEERAGES,  &C.  765 

he  still  expresses  himself  with  some  degree  of  doubt,  may  per-    Forfeiture. 

haps  so  far,  in  rather  different,  though  analogous  circumstances,     ^■^''''^'^'*^ 

involve  the  condition  of  the  Machany  disponeein  1695.—"  The 

posterity  of  traitors,  in  strict  law,  are  disabled :  and  this  dis- 

habilitation  renders  (them)  incapable  of  possessing  lands  and 

honaurSy  and  even  of  testaiing.**^ — "  There  is  no  difference  with 

us,  betwixt  the  ante-ncUij  and  the  post-nati^  in  the  case  of 

treason  committed  by  the  father ;  for  the  dishabilitation  of 

chUdren  is  not  ex  traduce^  (in  the  particular  twig  or  stock, 

figuratively  speaking).     But  it  is  the  rigour  of  the  law  that 

taints  ALL  blood,"*  hence  every  heir. — "  A  person  is  forfaulted, 

but  still  in  life,  if  an  estate  should  in  that  interim  fall  to  him, 

as  apparent  heir,  tho*  he  be  civiliter  mortuus^  and  not  in 

a  capacity  to  be  served ;  yet,  with  us,  the  first  (the  King) 

would  have  claimed  the  estate,"  and  not  the  "  next  heir."  ^ 

This,  in  the  case  of  an  estate  in  tail,  is  nearly  the  Airlie  claim ;  Admission  of 

and  is  in  answer  to  a  query  of  Nisbet,  where  the  latter  admits,  bkioli* b^^Nil- 

that  the  heirs,  as  in  the  Bisset  instance,^  "  seeing  their  blood  bet. 

\acorruptedj — cannot  represent  their  father,  being  nullus"^ — 

"  If  a  man,  having  children  by  an  heiress^  come  to  be  forfeited, 

the  children  must  be  rehabilitate  before  they  can  succeed  to 

their  mother^  (and  of  course,  upon  principle,  through  her) ;  but 

it  were  great  rigour  to  refuse  to  rehabilitate  them.     Thus  the 

husband  of  an  heiress  being  forfeited,  hisji^  mariti,  and  also 

courtesy,  falls  to  the  King.     But  whether  she  might  dispone 

the  fee  without  the  husband's  consent,  in  case  of  his  surviving 

the  forfeiture,  may  be  doubted,  but  there  appears  no  law  to  q^^j^^  relative 

the  contrary."  ^    This,  with  the  more  favourable  case  of  the  points  in  trea- 

husband's  predecease  however,  seems  to  involve  that  in  the  by  sir  James^ 

reign  of  James  II.,  of  Anne,  Duchess  of  Buccleughand  Mon-  Stewart. 

»  nnd.  p.  73.  ■  Ibid.  p.  123. 

•  Ibid.  pp.  122-3.  •  See  p.  766. 

*  SteUarty  123.  Yet,  in  face  of  siich  authorities,  what  has  preceded, 
and  will  follow,  Baron  Hume  ventures  to  inculcate,  that  Craig,  (through 
themaitttm  of  the  Bisset  precedent),  '*  is  the  single  authority  for  any  such 
doctrine  "  with  ua, — ^namely,  the  "  corruption  "  of  blood ;  while  he 
holds  that  the  taint  was  ^^  only — ^introduced  "  by  the  Act  of  Queen 
Anne.  See  Criminal  Law,  under  Punish,  of  Crimes,  Edit.  1797,  vol. 
II.  p.  478. 

'  Steuart,  ut  sup. 


766  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture,    mouth,  after  the  attainder  of  the  Duke  her  husband  in  1685, 
^'^'^^^^     ^ho  made  such  conveyance  of  her  estates  and  honours  to 
cieugh  during    their  children  nominatimf  which  the  King  authorized  and 
reign  of  James  confirmed,^ — but  these  were  also  rehabilitated  the  next  reign, 
in  1690.^   At  the  same  time  Sir  James  inculcates,  that,  in  die 
ordinary  alternative,  **  the  children  of  an  heiress,  in  the  case  of 
their  father's  forfeiture,  must^  and  also  should  be  rehabiUtcttej 
Application  still  that  they  may  succeed."  ^     We  here,  as  almost  everywhere, 
iaw^°  *^^™*°    appear  to  have  followed  the  Roman  law,  by  which  the  pos- 
terity of  a  traitor,  whose  lives  were  spared  by  the  Emperor, 
^'  a  moierna,  vel  avita^  omnium  etiam  proximorum  hereditate, 
ac  successione  habeantur  alieni"     Quisq.  ad  Leg.  Jul.  C. 
Decided  opi-        But  finally,  upon  the  subject  in  question,  independent  of 

nion  of  Justice-    .%  ^i_     •*•  t  ^        x      ^i.  4.        •    • 

Clerk  Mac-     Other  authorities,    I   may  refer   to   the  concurrent  opinion 
*i"®®"»  ^o. ^« of  that  distinguished  Judge,  Justice-Clerk  Macqueen,  who, 
tionformeriy.ofas  evinced  formerly,  had  such  clear  notions  of  our  genuine 
WoocT^^TOd^hat  Cousbtorial  Law.*     He,  moreover,  that  he  here — in  marked 
the  Act  1690    distinction  from  the  English  law, — (as  I  have  likewise  done) 
tohonoiirar°^^P^^  entailed  and  simple  succession  upon  the  same  foot- 
ing,— clearly  corroborates  me  in  the  ascribed  interpreta- 
tion of  the  Act  1690  c.  104,  as  will  be  seen  by  tliese  ex- 
cerpts.^   *<  That  Statute  (the  latter)  does  not  apply  to  the 
case  of  Honours^  but  only  in  the  case  of  such  as  had  a  patri- 
monial interest  in  the  estate  of  the  forfeiting  person. — Upon 
the  principles  of  the  law  of  Scotland,  even  as  modelled  at  the 
Revolution  (in  1689),  there  was  no  reason  why  the  honours 
should  not  be  totcUly  extinguished  by  the  Jbr/eiture  of  the  per- 
son who  was  in  the  right  at  the  time;  and  so,  indeed,  it  seems 
to  have  been  understood  by  the  nation  in  general,  as  well  as 
by  the  writers  upon  our  law,  and  the  contrary  opinion  is  taken 
from  the  ideas  of  the  laws  of  England  ; — it  does  not  appear 

^  By  a  rogrant,  upon  tlio  Duchess's  resignation,  under  the  Sign 
Manual,  in  1687,  upon  record. 

•  By  an  Act  in  that  year,  (Acts  of  Pari,  last  Edit  toI.  IX.  pp.  164- 
6-7.)  The  English  honours,  however,  of  Duke  of  Monmouth,  Earl  of 
Doncaster,  &c.,  in  the  Duke's  person,  still  remained  forfeited,  though 
the  latter,  with  the  Barony  of  Tyndale,  were  afterwards  restored  by 
Act  of  Parliament  in  1743,  Brit.  Stat. 

,    ■  In  his  work,  tU  sup.  p.  123.  *  See  pp.  481-90-1. 

*  The  original  is  in  a  private  Charter-chest. 


IN  SCOTTISH  PEERAGES,  &C.  767 

to  me,  that,  prior  to  the  Act  1690,  any  such  thing  was  known    Forfeiture. 
in  the  law  of  Scotland,  similar  to  an  estate  in  remainder j  which     ^-""^•^'^ 
was  saved  from  the  forfeiture  of  the  person,  who  at  the  time 
stood  vested  in  the  right  of  the  estate.     On  the  contrary,  no 
tailzie  (entail)  saved  from  the  forfeiture  of  the  person,  in 
right  of  the  estate  at  the  time,  the  right  or  interest  of  any  of 
the  substitutes  of  the  tailzie ;  but  the  whole  went  to  the  crown, 
m  the  same  manner  as  if  the  estate  had  stood  in  the  forfeiting 
person  in  fee-simple.^ — And  I  am  fortified  in  this  my  opinion, 
from  the  very  style  and  conception  of  decreets  of  forfeiture, 
which  ordained  *  the  name,  fame,  memory,  and  honors  to  be 
extinct,'  which  is  usually  inconsistent  with  the  idea  of  honours 
lying  dormant,  until  the  succession  open  in  favour  of  the  col- 
lateral heirs  of  the  forfeiting  person ;  and  accordingly,  it  ap- 
pears to  me  to  be  the  opinion  of  lawyers,  as  well  as  of  the 
sense  of  the  nation,  that,  prior  to  the  Revolution,  the  estate 
went  to  the  crown,  and  that  the  honours  were  totally  extin- 
guished by  the  forfeiture  of  the  person  in  the  right."     Even 
the  Act  1690,  having,  as  already  obvious,  and  directly  admit- 
ted above,  no  influence  upon  honours,  was  of  short  duration, 
and  fully  superseded  by  the  treason  Act  of  Queen  Anne.    The 
actual  style  and  verbiage,  with  that  noticed  by  the  same  great 
lawyer,   continued   in  our  decrees   of  forfeiture  after  the 
Revolution ;  and  from  what  transpires,  or  I  can  discover,  the  Further  condu- 
**  tainting,"  or  corruption  of  the  blood,  extinction  of  the  me-head.^'' 
mory  of  the  family,  witii  the  blasting,  and  annihilating  conse- 
quences as  to  the  *^  posterity,"  in  every  event,  of  such  prevailing 
occurrence,  were  either  literally  enforced  or  implied  in  every  at- 
tainder, whether  before  the  Justiciary,  or  in  Parliament.'     So 
tb|t  all  convictions  of  forfeiture,  having  these  consequences  in 
the  main,  may  be  held  to  illustrate  the  corresponding  under- 
standing and  import  of  our  common  law,  as  laid  down. 
Our  original  treason  doctrine,  as  set  forth  by  Sir  James 


*  In  the  same  way,  Baron  Hume  inculcates,  that  by  "  the  native 
prindples  of  the  law  of  Scotland,  there  was  no  room  for  any  more  fa- 
vourable construction  of  the  forfeiture,  even  in  the  case  of  a  tailzied 
estate," — than  in  one  ^'in  fee-simple."  Crim.  Law  ut  tup.  vol.  II» 
p.  471.  '  See  also,  in  confirmation.  Act  1663,  p.  754. 


768  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

^^^JfjJJI^-     Stewart,^  barring  the  issue  of  an  heiress,  the  wife  of  an  attdnt- 

ed  person,  also  in  respect  to  her  inheritance,  or  what  they 

might  claim  through  her,  when  deceased, — agreeably  to  the 

principles  of  the  precedents  of  Bisset  and  Wauchope,* — would 

obviously,  if  now  in  force,  prove  fatal  to  the  existing  right  and 

Case  of  Earl-  title  to  the  Earldom  of  Errol,  and  high  hereditary  office  of 

high  Conttabu-  Constable  of  Scotland.     Upon  the  death  of  Mary  Countess 

^jy  ^[^^^^^^  of  Errol,  &c.  in  her  own  right,  and  holder  also  of  the  Consta- 

after1746t  .  . 

viewed  by  our  bulary,  in  1758,  the  succession  to  these  old  inheritances 
M  *s^°^  b7'  op®'^®^*  ^^  ^^  corresponding  character,  to  James  Lord  Boyd, 
Stewart.  the  heir-general,  her  grand-nephew.   It  was  under  a  common 

remainder  over,  including  both, — to  the  "  aires  female  "  of  the 
marriage  of  Sir  John  Hay,  Earl  of  Errol,  her  father,  taking  €is 
**  ares  of  tailzie  "  (entail) — "  without  divisioney"  '  (on  failure 
of  direct  heirs-male),  in  virtue  of  a  nomination,  the  16th  of 
February  1674,  executed  by  Gilbert  Earl  of  Errol,  and  war- 
ranted by  the  crown,  through  the  medium  of  a  royal  charter, 
upon  a  sign  manual,  formerly  referred  to,^  dated  13th  of 
November  1666.^    James  Lord  Boyd  here  connected  himself, 

»  See  pp.  766-6.  "  See  p.  769. 

'  This  has  reference  to  the  estates,  which  were  at  the  same  time  car- 
ried, and  would  otherwise  have  split  among  co-parceners.  But  honours 
do  not  do  80  with  us,  but  descend,  subject  to  no  abbcyancc,  exclusively 
to  the  eldest,  like  the  principal  superiority  in  land. 

*  See  p.  86 ;  also  Minutes  of  Evidence,  Information  in  the  case,  &e. 
from  which  the  present  account  is  chiefly  taken. 

*  This  deed  of  nomination,  the  fate  of  which  is  rather  singular,  be- 
ing at  one  time  lost,  and  merely  recovered  at  a  critical  moment,  (see 
p.  86,  fit  gup,)  is  also  itself  curious  in  its  terms.  Earl  John,  the  first 
nominee,  is  to  marry,  with  "  express  consent"  of  Earl  Gilbert,  and  to 
convert  the  bride's  *^  tocher,"  and  fortune,  to  hU  **  behoof  and  profeit ;" 
after  which,  he  taking  in  the  first  instance,  the  honours  are  to  go  to 
'^  the  aires  male  of  the  marriadge,  quick  failzeing  (to)  the  aires /email  of 
the  saide  marriadge,  (including  Countess  Mary,  and  Lord  Boyd) — to 
succeed  as  aires  of  Talzie^  (Entail)  and  provinone, — without  divi- 
siono ;"  remainder  to  Willam  Hay  of  Drumelzear,  he  being  bound  in 
the  same  way  in  regard  to  his  marriage,  and  to  the  heirs-male  of  his  body, 
&c. ;  remainder  to  David  Hay,  second  son  of  the  Earl  of  Tweed&le,  (as 
before),  and  the  heirs-male  of  his  body,  &c. ;  remainder  to  Earl  Gilbert^s 
former  heirs-male,  contained  in  his  infeofiments.  (Errol  Charter-chest.) 
This  nomination  and  deed  of  entail  has  irritant  and  resolutive  clauses, 
the  heirs  being  obliged  to  take  the  name  and  arms  of  Hay,  and  they  were 


IN  SCOTTISH  PEERAGES,  &C.  769 

through  his  mother,  Lady  Anne  Livingstone,  but  more  especi-  Forfeiture. 
ally  again  through  her  mother,  Lady  Margaret  Hay,  who  was  ^"^^^^^^^ 
the  younger  sister  of  the  preceding  Mary  Countess  of  Errol ; 
but  then,  it  singularly  enough  happened  that  both  these  ladies, 
although  never  in  possession,  had  been,  respectively,  the  wives 
oftraitors,  namely  of  William  Boyd,  Earl  of  Kilmarnock,  and 
of  James  Livingstone,  Earl  of  Linlithgow,  &c.  who  had  been 
attainted  of  treason  by  Act  of  Parliament,  the  one,  as  is  well 
known,  in  1746,  and  the  other  in  1 7 15.  The  case,  accordingly, 
of  Lord  Boyd,  thus  aggravated  in  its  kind,  comes  essentially 
within  the  category  of  that  alluded  to  by  Sir  James  Stewart, 
of  issue  claiming  through  the  wife  of  an  attaiuted  person, 
who  "  must,"  he  says,  be  "  rehabilitate^  that  they  may  suc- 
ceed" in  such  capacity;  for  he  further  inculcates,  that  '^  the 
rigour  of  the  law  "  here  "  taints  all  the  blood. "^  There  hav- 
ing been  no  rehabilitation,  therefore,  of  the  noble  heir  in  ques- 
tion— while  we  made  no  distinction,  in  the  present  matter,  be- 
tween entailed  inheritances  and  those  at  common  law,  the 
honours  necessarily,  and  interest  of  succession,  so  far,  would  Could  not  have 
have  devolved  to  the  crown,  in  unison  likewise  with  the  ^^®°  *'°*^* 
Roman  law ;  certainly  with  us  a  great  rule  in  treason,  which, 
as  has  been  shewn,  so  broadly  excludes  the  issue  of  a  traitor, 
*^a  mcLiema  vel  avitay  omnium  etiam  proximorum  hereditate,"' 
— whence  involving  the  actual  point. 

But,  on  the  other  hand,  agreeably  with  the  Scoto- Anglo  viewed  by  the 
treason  law,  under  which  this  case  was  included,  it  coming  *^"^**'^^'^®*"®" 
to  govern  since  1709, — ^from  Errol  being  an  entailed  honour, 
James  Lord  Boyd,  as  in  the  Athole  instance,  owing  to  the  pre- 
decease of  the  traitors,  though  he  necessarily  connected  his 
^*  pedigree,"  through  them,  by  their  conjunction  with  the  es- 
sential ^^matema"  and  ^'avita"  ancestry,  was  entitled,  in 

quite  sufficient  for  the  purpose  without  a  royal  oonfinnation,  in 
virtue  of  the  charter  1666,  as  resolved  by  the  Lords  1797,  contrary  to 
what  some  English  lawyers  have  been  led  to  maintain.  In  this 
manner  too,  the  Errol  honours,  after  the  present  family,  would  widely 
diverge  to  cadets  of  that  of  Tweedale,  of  an  ancient  stock, — so  much  so, 
as  hardly  at  least  to  be  legally  connected,  in  the  male  line,  with  the  Rtill 
ancienter  one  of  Errol,  now  apparently  extinct  in  t!ie  male  line. 
*  Answ.  to  Nisbet,  p.  123 ;  also  p.  765,  ut  sup,  •  See  p.  766. 

3  c 


770  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.  1 758,  at  once  to  make  resort  to  Gilbert  Earl  of  Errol,  the 
settler  in  1674,  and  take  from  him  per  formam  donif  without 
reference  to  the  previous  consideration.'  Nay,  a  Jbrtioriy  as 
the  inheritance  did  not,  as  in  the  Athole  instance,  mainly  flow 
through  a  traitor,  but  only  through  the  wives  of  traitors,  who 
Tho  result  fa-  in  respect  to  it  were  strangers.     The  English  law,  conse- 

hon^thoj^ve^^®"*^y»  ^^^  ^®^®  proves  a  boon  to  us,  evidently  sustuning 
again  a  boon  to  a  right,  which,  by  the  harsh  inexorable  Scottish  system,  would 

have  gone. 
Suppoiing  the      Supposo  this,  howevcr,  that  the  Enrol  honours  were  not  en- 

•honounofErrol     . 

not  to  have  tailed,  but  merely  in  fee-simple,  or  to  heirs-general  ? — Cruise 
|j^®"g[°j^j^"Mnculcates,  that  in  succession  in  fee-simple  "  the  attainder  of 
or  to  hetrs-ge-  a  persou,  who  need  not  be  mentioned  in  derivation  of  the  des* 
wouM  n^'  cent,  does  not  impede,  and  therefore,  where  one  may  daim,  as 
hold  ?  heir  \jQ  211  ancestor,  without  being  obliged  to  derive  his  descentj 

through  an  attainted  person,  he  will  not  be  affected  by  such  an 
attainder;'*  which  case  he  exemplifies  by  that  of  a  younger  bro- 
ther, taking  directly  as  heir  to  his  father,  who  had  an  elder 
attainted  son,  predeceased  without  issue.'  But  there  is 
evidently  here  a  shade  of  difference ;  the  younger  brother  in 
no  degree  traces  his  descent  through  any  attainted  blood, — 
the  Enrol  claimant,  on  the  other  hand,  doing  so  twofold;  while 
the  legal  denial  of  disseveration  to  parties  in  matrimony  would 
also  force  him,  in  the  view  taken,  to  include,  in  his  line, 
the  husbands  of  the  Errol  descendants,  certainly  his  ancestors. 
I  do  not  precisely  know  how  the  English  law,  which  must 
chiefly  govern,  would  decide  in  the  latter  instance,  possibly 
favourably  too,  owing  to  the  right  not  being  in  the  families  of 
the  husbands, — though  Erskine,  with  us,  after  Queen  Anne's 
Act,  lays  it  down  broadly,  that  no  ^^  heir  "  can  <^  succeed  to  an 
ancestor,  where  the  propinquity  between  the  two  is  necessarily 
connected  by  the  attainted  person.'' '    There  is  this  to  be  said 

>  The  right  of  George  Earl  Errol,  his  son,  to  the  honours,  was  snstain- 
ed  (800  pp.  85, 260-1,)  by  the  House  of  Lords,  on  other  grounds,  in  1797, 
against  an  objection  by  the  Earl  of  Lauderdale,  at  the  Election  of  the  Six- 
teen Peers  in  1796,-- from  the  minutes  of  oyidonce  on  which  occasion, 
informations,  &c.  and  the  public  records,  the  previous  Errol  statement 
is  taken. 

•  On  Dig.  p.  127. 

»  Inst.  B.  IV.  Tit.  IV.  §  26. 


IN  SCOTTISH  peehaoes,  &c.  771 

in  regard  to  Scottish  honours  limited  to  heirs-general,  that,  as    Forfeitare. 
we  have,  so  far,  no  co-parcenery  or  abbeyance,  females,  in  such  p  ^^JpC^ 
event,  would  take  singly,  the  eldest  being  preferred ;  as  under  Scottish  hon- 
an  entail,  in  the  ease  of  lands,  to  the  eldest  female  heir  sue-  buVhSn-'** 
ceeding  without  division, — whose  right  would  otherwise  split,  g«norai. 
— ^whieh  thus  approximates  to  an  entailed  interest : — though 
I  am  aware  that  the  above  may  not  materially  tell,  because 
the  females  still  only  take,  as  sons  would  in  fee-simple.     Of 
such  class  of  honours  is  that  of  the  Scottish  Earldom  ofCaseoftho 
Newburgh,  &c.,  conferred  by  patent,  the  last  of  December  Newburgh. 
1660,  upon  the  patentee,  ^^ejusque  haeredes  quoscunque,"'  and 
which,  not  recurring  to  the  relative  matter  of  alienage,'  has 
been  constantly  taken  by  certain  female  heirs,  though  sprung 
from  the  marriage  of  his  grand-daughter,   Charlotte  Maria 
Countess  of  Newburgh,  in  her  own  right,  with   Charles 
Raddiffe,   who  was  attainted  of   high    treason  in   1746.' 
James  Radcliffe,  the  son  and  heir  of  this  connection,  as  is  well 
known,  claimed  the  honours,  (which  he  assumed,)  upon  a  peti- 
tion, and  reference  to  the  Lords  in  1784,  but  no  resolution  has 
been  come  to  in  the  matter.    The  petition  is  ostensibly  for  the 
purpose  to  "  obviate  any  objections," — owing  to  the  petitioner 
being  ^*bom  in  a  foreign  country,  whilst  his  father  was  at- 
tainted of  high  treason ;  *** — thus  admitting  that,  so  far,  there 
was,  in  some  degree,  a  demur. 

The  dignity  of  Viscount  Dundee,  &c.  is  conferred  by  a  par  J^n*^" Jhe*^*- 
tent.  dated  12th  of  November  1688,  upon  the  celebrated  Ge- county  of  Dun. 
neral   John   Graham  of  Claverhouse,    "  et  haeredes  mas-  ^*'    ®* 
culos   ex  ejus  corpore,    quibus   deficientibus  in  alios  ejus 
haeredes  masculos,"'  many  of  whom  still  exist.      He  was 
atuunted  of  high  treason  in  1690,  in  terms  of  the  same  Act  that 
forfeited  Sir  John  Drummond  of  Machany  ;^  and  his  son,  an 
only  child,  died  an  infant.  In  this  manner  the  succession,  under 
the  patent,  opened  to  heirs-male-general,  of  whom  the  first, 
David,  the  patentee's  brother,  was  equally  forfeited  by  Act 
1690;  and  the  next — James  Graham  of  Duntroon,  by  a  British 


»  Great  Seal  Register.  *  See  p.  720.  '  Brit.  Acts. 

*  Lords'  Journals.  •  Great  Seal  Register. 

•  Acts  of  Pari,  last  Edit.  vol.  IX.  pp.  61-2,  et  seq. 


772         INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfeiture.     ^^^  ^^  1746' — in  whose  branch  also,  in  the  person  of  Wil- 
^^^>^^*^     liam  Graham  of  Duntroon,  his  father,  *  there  had  been  a  cor- 
responding attainder  in  1715.*   The  honours,  assumed  by  the 
latter,  ¥^ould  thus  appear  to  be  gone  by  the  British  treason  law, 
taking,  as  they  did,  in  a  more  aggravated  way  than  in  the  Airlie 
case  ;^  and  certainly,  as  has  been  shewn,  by  the  previous  Scot- 
tish, owing  merely  to  the  attainder  in  1690,  which  made  no 
difference  between  entailed  honours,  and  those  in  fee-simple. 
—  ofth  Eai   '^^®  Earldom  of  Dunfermling,  &c.  too,  (in  a  branch  of  the 
doin  of  Dan-    Doble  family  of  Win  ton),  though  originally  constituted  in  1605,^ 
fvrraUng,  &c.    y^^  j^  virtue  of  the  regulating  conveyance,  the  6th  of  April 
1611,  (upon  a  resignation),  settled  in  tail-male,  with  distinct 
substitutions  or  remainders,^  is  hence,  in  like  manner,  barred 
and  forfeited  to  numerous  existing  heirs,  through  the  exclusive 
attainder  of  Alexander  Earl  of  Dunfermling,  (a  direct  male 
descendant,  who  died  without  issue),  by  the  same  Act  referred 
to,  in  1690.     And  the  same  remark  at  least  as  forcibly  ap- 

'  Tho  Grahams  of  Duntroon  were  descended  from  Wsilter,  ^  second  ** 
son  of  Sir  William  Graham  of  Claverhouse,  and  younger  **  brother- 
german  "  of  Greorge  Graham  of  Claverhouse,  grand&tiier  of  John  Vis- 
oount  Dundee  ;  as  proved  by  genuine  documents,  I  have  seen,  in  1632, 
and  1643,  among  original  Claverhoase  writs.  There  is  also,  among  the 
old  Dundee  papers,  a  letter  of  Charles  II.,  1st  of  March  1683,  command- 
ing tho  Earl  of  Lauderdale  and  his  son  to  **  dispone'*  the  office  of 
Constable  of  Dundee,  and  House  of  Dudhope,  to  Colonel  John  Graham 
of  Claverhouse,  (afterwards  Viscount  Dundee,)  as  one  of  the  conditions 
of  a  discharge  to  the  former,  for  their  convicted  ^  abuses  in  their  trust 
about  the  Mint,  and  a  remission  of  all  crimes  of  a  publick  nature.** 

■  Proved  by  a  Testament  upon  record,  dated  24th  December  1729; 
also  instructing,  that  James  had  two  brothers,  John  and  Robert,  from 
which  stock  issue  can  elsewhere  be  shewn  to  have  sprung. 
'  Brit.  Acts.  *  See  pp.  724-5,  ei  seq, 

*  Great  Seal  Register,— on  tho  4th  of  March.  The  dignity  is  there- 
Danfermling  by  conferred  upon  ^*  heredcs  suos  masculos,— quo  quidem  honore  &o. 
fiIl!ui"eVr°efJtM'  dictum  Aleacandrum,*'  (Seton,  "Lord  Fyvie,*'  the  patentee,)  "per  togas 
Lord  Maosflold  caoumenis,  quam  (fie)  honoris  et  dignitatis  cappam  vocamus,  indu- 
andRonlyn'i  mentum^  gladii  eineturam,  et  oorone  sue,  circuli  aorei,cirGa  caput  po- 
conMit  u  to  sitionem,  insignivimus,  et  investivimus."  Here  the  belting,  again,  is 
^'  but  a  part  of  the  form  of  investiture  or  inauguration.    Nor  did  it  alone 

suffice,  transmitting  per  «e,  forsooth  an  heritable  right,  according  to  Lord 
Mansfield  and  Rosslyn's  wild  enactment ;  for  there  if,  over  and  above,  a 
limitation.    Sec  pp.  680-1,  et  seq.  •  JWrf. 


IN  SCOTTISH  PEERAGES^  &C.  773 

plies  to  the  Earldom  of  Middleton  &c.  conferred  by  patent    Forfeiture. 
October  1,  1660,  upon  General  John  Middleton,  ^^ejusque     ^-'''^'^'^ 
tuaredes  cognomen  et  arma  de  Middleton  gerentes,**  >  in  con-  bi idcUeton""  ^ 
sequence  of  the  attainder,  by  Act  of  Parliament,  of  his  descen- 
dant, John  Earl  of  Middleton,  the  2d  of  July  1695.'    The 
preceding — if  Lord  Mansfield  could  have  been  persuaded  to 
construe  it  to  heirs-^eiiero^  (as  he  ought,  after  the  Kirkcud- 
bright decision,) — would  obviously  be  a  very  broad  substitu- 
tion. ' 

There  were,  as  has  been  seen, — besides  that  in  1690,  attain- 1«^®'!^^  ^^'^a*"- 
ders  in  1715  and  1746,  of  the  distinguished  race  of  Drum- House  of  Drum- 
mond,  who  gave  an  ancestrix  to  the  Royal  family,  in  die  per-  ™^"^- 
8on  of  Annabella  Drummond,  a  daughter  of  the  house,  wife  of 
Robert  III. ;  which  may  have  further  tended  to  link  their  for- 
tunes  with   the   Stewarts.     A  settlement  of  the  principal 
Perth  estate,  the  28th  of  August  17 13,  by  James  Lord  Drum- 
mond, attainted  m  l715,^-~(son  and  heir  of  James  Earl  ofQaesiioRor  at> 
Perth,  Chancellor,)  upon  James,  his  son,  the  titular  DukeJ^tAtejn  17M). 
of  Perth  in  1746,  ^  and  the  heirs-male  of  his  body;  whom 
/ailing,  to  his  other  heirs-male   whatsoever,  was  found  by 
the  Session,  the  1 3th  of  December  1750,  to  be  unavailable 
to  the  latter, — although  under  protection,  as  would  seem,  of 
a  remainder  over, — the  lawful  connection,   or   *^  bridge, " 
as  it  was  technically  held,  between  the  settler  and  them,  a«'m- 
being  barred,  and  **  broken  down "  by  his  intervening  for- 
feiture.* 

The  above  James  Lord  Drummond,  the  settler,  was  not, 
like  the  entiuler  in  the  Gordon  of  Park  case,  free  from  disa- 
bility, but  e  contra  ;  and  that,  in  bis  instance,  obstructed  and 
nullified   the  closing  remainder.    Moreover,  the   settlement 

'  Acts,  ut  tup,  vol.  IX.  Append,  p.  110. 

'  Besides  the  Viscounty  of  Dundee,  there  are  other  Scottish  honours, 
with  broad  renuundors  over,  to  heirs-male  whatsoever ;  yet  the  plea  of 
exemption  from  forfeiture,  in  their  case,  on  such  ground,  before  the  Act 
of  Queen  Anne,  was  never  thought  of,  or  at  least  legally  attempted, 
further  illustrating  the  relative  law. 

•  By  Act,  Imo.  Geo.  I.  c.32.  »  See  p.  746. 

*  Lundin  against  the  Hog's  Advocate,  of  the  date  in  question,  Fal- 
coner's Decisions,  No.  171. 


774  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Forfefture.    was  Dot  a  sfyict  one,  like  the  Park  entail,  or  recorded  in  the 
^^"^^"^^^     Register  of  Entails,  requisites  even  indispensable  by  the 
superseded  Scottbh  Act,  in  reference  to  forfeiture,  in  1690,  ^ 
as  also,  by  proper  analogy,  with  English  principle, — as  has  been 
decided,  by  the  Scoto- Anglo  treason  law  after  Act  1708.' 
SpecWty  he-        Souie  may  think  that  the  above  decision,  in  1750,  ruled  by 
merand  Somer-  EngUshdoctrine,  isat  variance  with  the  almost  cotemporary  pre- 
set case  in  1760.  cedent  of  the  Duchy  of  Somerset,  the  I7lh  of  Jan.  1750, »  where 

•  See  p.  763. 

'  Especially  in  the  case  of  David  Kinloch,  against  the  King's  Advo- 
cate, January  10, 1751.    Falconer's  Dedsions* 
'  See  p.  715,  et  teq. 
Forfeiture  at         The  male  representation  of  the  House  of  Perth, — ^to  which  there 
PertThonoorr  ^^  many  heirs,  is  now  said  to  vest  in  the  French  (formerly  PopiithJ 
well  aa    '  Melfort  line,  sprung  from  Earl  John,  the  Melfort  patentee  in  1686,  (see 


those  of  Mel-    p.  761,)  who  again  was  attainted  in  1695,  (see  p.  762.)    That  noble- 
man was  younger  brother  of  the  equally  noted  James  Earl  of  Perth, 
the  Chancellor,  whose  son,  James  Lord  Drummond,  and  grandson,  John 
Drummond,  have  been  likewise  proved  to  have  been  attainted,  (see  pp. 
773,  747-8.)    By  the  attainder  of  the  former  in  1715,  the  honours  were 
lost  by  implied  forfeiture,  the  succession  having  opened  to  him,  as  in 
the  cases  of  Airlie  and  Wemyss  ;  and  the  estate,  (that  had  been  pre- 
viously saved  through  a  &mily  transaction,)  by  the  forfeiture  of  the 
latter  in  1746 ;  which,  in  the  same  way  also,  would  have  affected  the 
honours,  had  they  not  been  already  gone.    It  is  to  be  observed,  that 
both  John  Drummond,  and  his  elder  brother,  the  titular  Duke  of  Perth, 
(sec  pp.  746-7-8,)  were  descendants  of  a  traitor,  which  makes  their  caso 
«ven  worse  than  those  alluded  to.    Neither  were  there  any  express  or 
legal  remainders  over,  to  save.    The  patent,  or  regulating  constitution 
Patent  of  the    of  the  Earldom  of  Perth  some  time  in  1605,  (as  instructed  by  the  act 
Earldom  of     ^f  creation,  under  the  autograph  attestation  of  Sir  David  Lindsay, 
in  1606    not     *^®^  ^^^  Lyon,  in  the  Advocates'  library,)  is  not  preserved, — so  that 
e&taot.  the  House  of  Lords  would  but  hold  it  constructively  to  be  in  tail  mail, 

— ^probably  with  an  enlarged  interpretation,  owing  to  the  title  having 
devolved  to,  and  been  transmitted  through  John,  the  younger  brother 
of  the  first  Earl,  who  died  without  male  issue,  only  leaving  a  daughter, 
— as  to  which  formerly.  Nor  is  this  all ;  for  the  Melfort  line,  equally 
with  the  Chancellor's,  being  sprung  from  Earl  James,  son  and  heir  of 
John,  thus  the  second  Earl  of  Perth,  must  be  presumeil,  in  any  view, 
to  take  under  the  same  specific  limitation,  and  hence  to  be  fatally  com- 
promised by  such  blasting  and  destructive  conjunction,  from  the  inde- 
lible vice  in  it,  in  virtue  of  the  subsequent  Perth  attainders  ; — ^which  is 
independent,  too,  of  that  of  Melfort,  still  attaching  in  1695,  and  its  pe- 
culiar Scottish  effect,  as  exemplified  under  the  Machany  instance  in 
1090.     The  Barony  of  Drummond,  the  oldest  and  principal  dignity 


IN  SCOTTISH  PEERAGES,  &iC.  775 

the  heir,  who  took  vi  juris^  in  virtue  of  a  remainder  over,  ForfeUure. 
against  a  forfeiture  for  treason,  was  even  descended  of  the 
body  of  the  attamted  patentee.  But  another  specialty  would 
i^>pear  here  to  obtain.  The  Somerset  remainder  in  question, 
is  conceived  not,  as  in  the  Perth  case,  to  the  attainted  person*s 
heirs,  (by  Catherine,  his  first  wife,)  or  to  **kis*'  heirs-male- 
general,  which  makes  no  essential  difference,  but  to  Sir  Ed- 
ward himself,  the  ttiiattainted,  in  ihe^st  instance,  praprio 
jure^ — though  styled,  by  way  of  description,  the  son  of  the  par- 
ties,— and  to  the  heirs-male  of  his  body.  Sir  Edward  thus 
taking,  independently,  in  law,  was  the  means  of  his  own  special 
exemption,  and  eventual  perpetuation  of  the  succession  in  his 
stock.  It  would  follow  then,  in  principle,  in  the  Park  case, 
so  far,  that  the  remainder  over  to  heirs-male  of  the  body  of 
the  settler,  if  attainted,  (which  he  was  not,)  would  have  been 
admitted  to  equal  favour, — although  otherwise  assailed,  upon 
htal  ground,  by  the  English  law,  ewing  to  Sir  William  Gor- 
don, the  traitor,  his  eldest  son,  previously  called  nominatimj 
literally  thereby  re-taking.  But,  singularly  enough,  again, 
as  before  shewn, ' — though  I  profess  not  altogether  to  deal  Qualifying 
with  these  subtilties, — the  genius  and  force  of  Scottish  prac-of  JLottiBh'iaw 
tice,  applied  to  the  Park  remainder,  carried  it  agiunst  En-  ®°  ""«*>  «^- 
glish  notions ;  and  by  its  protecting  iEgis,  repelled  a  difficulty 

anterior  to  the  eonstitntion  of  the  Perth  Earldom,  is  much  mpari  ctuu  Barony  of 
the  relative  act  of  [creation,  on  January  29, 1487,  (see  Acta  of  Pari.  Dranimona 
last  Edit,  vol,  II.  p.  Wl.)  without  any  notice  of  the  words  of  limita- (i,^  ^,ij^  ji^.' 
tion,  being  alone  transmitted  to  us, — a  drcumstauoe  that  would  now  nity  in  Uie 
make  it  descendible  simply  to  heirs-male  of  the  body.    It  is  to  bo'^?y»™"*^^j" 
hoped,  however,  that,  as  in  similar  other  cases,  government  may  at  last  2^  forfllitod. 
be  induced  to  romoye  the  disabilities,  and,  so  far,  heal  the  sufierings 
— owing,  upon  the  whole,  to  consistent,  and  not  unoommendable  princi- 
ple—of one  of  the  most  distinguished,  and  best  allied  of  our  families, 
I  need  hardly  add,  that  neither  the  original,  or  any  proper  legal  exem-  Neither  the  ori- 
plification,  is  extant,  of  an  asserted  regrant  or  Now-^amus^  the  17thof  *J.    '^^^^ U. 
December  1687,  of  the  Perth  honours  and  estates,  to  Chancellor  fication  of  an 
Perth,  (upon  his  resignation,)  with  a  remainder,  failing  male  issue,  iQ^^txA  Novo- 
his  collateral  heirs-male.    It  was  founded  upon  in  the  claim  in  1792,  peKfa^honoun 
and  thereafter,  to  the  former,  upon  petition  and  reference  to  the  Lords  in  1687,  pre- 
by  James  Dmmmond  of  Perth,  the  direct  male  Melfort  reprcsentatiye,  wrred. 
and  then  also  of  Perth,— -that  was  never  fully  prosecuted,  or  pushed  ^*"?  '**  ^ 
to  a  decision.  Perth  in  1792, 

*  Sec  p.  709,  note,  and  thereafter. 


776        inquihy  into  the  xaw  and  practtice 

Forfeicure.    hece  that  might  have  been  msurxnountable.      It  hence  may 

^^^'^'^^^     thus  still  rule  in  analogous  cases.    Had  the  Park  entailer  been 

subsequently  attainted,  and  the  remainder  to  his  heirs-male  of 

the  body,  the  estate,  by  the  Drummond  or  Perth  precedent, 

would  have  been  forfeited  to  the  renuunder  men. 

I  have  now,  with  certain  exceptions,  noticed  and  discussed 
what,  I  believe,  may  be  most  material  in  our  Peerage  law 
since  the  Union,  which  may  be  the  more  fortunate,  as  I  find 
that  want  of  room  must  compel  me  to  be  briefer,  and  more 
condensed,  than  I  otherwise  had  been,  in  treating  the  remain- 
der of  the  subject.^     We  now  reach  the  stormy  period  of  the 

Iiarony  of  Aston  *  According  to  tho  public  prints  in  1788,  during  a  recent  canvass,  the 
of  Forfar,  crea-  reputed  Baron  of  Aston,  when  applieci  to,  declined  to  vote  at  an  ensning 
Election,  iirst,  because  he  was  a  Papist,  (query,  then  f  see  afterwards)  ; 
and  secondly,  that  he  could  not  assume  the  title,  or  exercise  the  atten- 
dant rights,  because  it  would  then  deprive  him  and  his  wife,  who  were 
in  business,  of  the  indispensable  fruits  of  their  industry ;  the  necessary 
abandonment  of  the  same  being  deemed  incompatible  with,  and 
derogatory  to  the  Peerage.  The  title  in  question,  that  uf  Lord  Aston 
of  Forfar,  duly  granted  by  patent,  the  28th  of  December  1627,  to  Sir 
Walter  Aston,  ^*  suisque  haredibus  masculU  in  perpetuuro,  cognomen  ct 
arma  de  Aston  gerentibus"  (Great  Seal  Register),  centered  in  Lord 
Walter,  his  lineal  descendant,  in  1713.  Owing  probably  to  the  family 
being  English,  and  having  no  Scottish  property,  nor  concerning  them- 
selves in  Scottish  matters,  the  former  liiul  been  omitted,  not  only  in 
the  Union  Boll,  but  in  the  Rolls  of  Parliament,  as  far  back  at  least 
lis  1670 ;  (see  Acts  of  Pari,  last  Edit.  vol.  VIIL  Append,  p.  1.)  But  a 
protest  for  enrolment,  in  terms  of  the  patent,  by  the  Earl  of  Roseberry, 
on  behalf  of  the  same  nobleman,  at  the  Election  in  1713,  was  strangely 
met  by  a  counter  one  of  exclusion,  or  non-admission,  in  name  of  the  Earl 
of  Forfar,  upon  no  conceivable,  or  relevant  ground  ;  (see  Robertson's 
Peerage  Proceedings,  pp.  63-4.)  Nothing  then  followed ;  and,  on  fail- 
ure of  the  direct  male  line  of  the  patentee  in  1751,  the  honours,  (tho 
estates  separating  to  the  heirs-general,)  by  favour  of  Lord  Mansfield's 
construction  of  the  parallel  Kirkcudbright  patent  in  1633,  (see  pp. 
622,  et  seq,)  were  assumed  by  Walter  Aston,  asserted  collateral  heir- 
male,  apparently  the  individual  glanced  at  in  1788,  who,  however, 
as  '*  Walter  Lord  Aston  of  Forfar,"  had  a  pension  from  Geoige  IIL  in 
1769.  Having  conformed  to  the  English  Church,  he  gave  in  a  list  of 
Peers  at  the  Election  in  1768,  which  was  not  admitted  by  the  Clerks, 
owing  to  the  dignity  neither  being  in  the  Rolls  of  Parliament  at  tho 
Union,  or  "many  years  past."  (Rob,  utsup.  pp.  336-7.)  The  petition 
to  the  crown  for  the  dignity,  by  the  Reverend  Walter  Hutchison  As- 


IK  SCOTTISH  PEERAGES,  &C.  777 

French  Revolution,  when,  from  the  keen  struggles  between 
political  parties — occasioned  by  the  excitement  of  the  mo- 
ment, and  agitation  in  public  opinion,  there  were  several  con-  varioiu  Scot- 
tests  involving  the  right  of  individuals  to  Scottish  dignities,  *"^^^^7fta^t. 
and  either,  to  be  returned  themselves,  or  to  elect  others,  as  «d  and  decided 
the  Sixteen  Scottish  representatives  in  the  House  of  Lords,  fhe^French  Re- 
that  originated  important  questions  in  Peerage  law.    These  ▼oiutton  in 
have  been  in  part  already,  and  will  be  next  further,  referred  to. 
They  generally  came  before  the  Lords,  the  exclusive  Judges, 
in  the  manner,  and  upon  the  principle  formerly  noticed,' — 
through  the  protests  and  petitions  of  those  having  an  opposite 
interest,  against  the  returns  and  votes  in  question ;  and  were 
then  fully  discussed  and  disposed  of  by  the  noble  tribunal. 
Under  this  head,  I  shall  commence  with  the  case  of  the  Ba- 
rony of  Lindores. 

There  [s  a  royal  charter,  dated  the  last  of  March  1600,  in  Case  of  Barony 
favour  of  "  Patrick  Leslie,  son  of  Patrick,  Commendator  of  JygolS.  °"'' '" 
Lindores," — proceeding'upon  the  demission  of  the  latter, — of 
the  Manor  of  the  Abbacy  of  Lindores,  and  relative  subjects, 
erecting  them  into  the  temporal  Lordship  of  Lindores,  with  Honours  lUerai- 
the  titk^  rank,  and  vote  of  a  Lord  of  Parliament ;  to  be  charter,  ]6oo. 
held  by  the  said  Patrick  (the  son),  **  haeredibusque  suis  mas* 
cults  quibuscunque  eorumque  assignatis." '     There  past  a 
Parliamentary  ratification  of  the  grant,  the  15th  of  Novem- 
ber in  the  same  year,  though  merely  to  the  grantee,  under 

ton,  son  of  tho  former,  was  referred  to  the  Lords,  Janiiiory  1 2,  1 816,  Pending  Aston 
but  has  not  been  pushed.    It  prays  for  a  declaration  of  his  riglit,  and  ^Jfj™  •'"*^° 
insertion  of  the  Peerage  in  the  Union  Roll,  his  predecessors  being  de- 
barred from  tho  exercise  of  their  rights  by  their  religion. — Lords' 
Journals. 

The  claim  of  Robert  Colvil,  a  mere  pretender,  (such  as  have  been  ex-  Futile  claim  to 
posed  in  our  days»)  to  the  Barony  of  Colvil  of  Ochiltrie,  (created  by  Barony  of  Col- 
Charles  II.),  in  1784  and  1787,--at  the  Elections  in  which  years  he  voted  T^.^J^'^Jll'i!' 

-  _  ,  11..  1  **>  17o4— l7oo. 

Without  protest, — though  not  so  m  1788, — ^through  a  visionary  descent 
from  an  ideal  James,  asserted  second  brother  of  Robert,  tho  second 
Lord,  is  too  absurd  and  preposterous  to  require  comment.  Its  fallacy 
came  even  formally  to  bo  admitted  by  his  counsel.  For  the  procedure 
thereupon  at  Peerage  Elections,  and  in  Parliament,  by  whom  the  claim 
was,  in  effect,  maturely  disallowed  in  1788,  see  Robertson,  ut  9up»  pp. 
423-35,  443,  458,  etseq,  to  p.  4G7  inclusive. 
*  See  pp.  648-9.  ■  Great  Seal  Register. 


778  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Bat  the  former  the  description  of  **  Patrick  Leslie,  of  Pitcarelie/'^  But  there 
wTO**ipecbJty  ©specially  followed,  considerably  afterwards,  in  1606,  an  Act  of 
In  1606,  &c.  Parliament  in  favour  of  "  Patrick,  now  Lord  of  Lundoris,  (ike 
Jather,)  sumtyme  CommerubUor"  of  the  *^  Abbacie  of  Lun- 
dores,"  dissolving  the  principal  mansion — ^manor  place  of 
Lindores,  and  other  subjects,  from  the  temporality  of  the  Ab- 
bacy in  the  crown  ;  and  upon  a  narrative  of  the  antecedent 
grant  in  1600,  **to  Patrick,  now  Maister  of  Lundoris,  than 
stylit  son  lawfiiU  to  the  said  Patrick  Lord  of  Lindores,*'  it  in- 
cludes the  same  in  the  benefit ;  further  ordainmg  a  new  char- 
ter of  erection  and  infeftment  of  the  temporal  Lordship  and 
dignity  of  Lindores,  c^atn,  to  the  disponee,  in  1600,  and  to 
^^his  airis  maill  and  assignayis  ^tr^au/itf,"  u  e.  to  heirs- 
male  whatsoever  and  their  assignees.'  A  more  favourable 
change  of  tenure  is  likewise  bestowed,  while  the  name 
and  memory  of  the  Abbey  is  extinguished ;  ' — but  such 
charter  never  appears  to  have  passed.  Thus  strangely 
the  Commendator  was  Lord,  and  the  son  only  **  Master," 
in  1606,  utterly  incompatible  with  the  grant  in  1600.  The 
dignity,  after  the  death  of  the  former,  devolved  to  the  lat- 
ter, who,  during  the  lifetime  of  his  father,  is  elsewhere 
merely  styled  Master  of  Lindores,  and  to  the  male  descen- 
dants of  the  Commendator,  the  first  Lord,  until  1 736 ;  when, 
on  their  failure,  it  was  assumed  by  the  collateral  heirs-male,  on 
the  faith  of  the  charter  1600,  and  eventually,  in  the  same 
Claim  of  John  character,  by  John  Leslie ;  whose  right  to  vote  at  the  Peerage 
mSecoulSeiSu'  Election  in  1790,  being  petitioned  against,  and  thereafter  dis- 
diBniiowed  in  eussed  by  the  House  of  Lords,  was  dballowed  the  6  th  of  June 
1793/  They  here,  from  the  striking  circumstance  of  Patrick 
the  son  being  only  a  commoner,  and  Master  of  Lindores, 
long  after  the  charter  1600,  which  never  appears  to  have 
been  acted  upon  in  respect  to  the  dignity — presumed  in  fa- 
vour of  a  later  more  valid  grant,  though  unknown,  probably 
upon  resignation,  to  the  father,  and,  according  to  their 
adopted  rule,  solely  to  the  heirs-male  of  his  body.'    Com- 

»  Acts  of  Pari,  last  Edit.  vol.  IV.  p.  246. 

'  Under  the  s.<uno  limitation  as  that  in  1600,  hero  premised. 

«  Ibid.  p.  365.  *  Lords'  Journals. 

*  Lord  Ros8l}Ti,  in  his  speech  in  the  Moray  case,  (to  bo  inmiediateJy 


IN  SCOTTISH  PEEBAQES,  &C.  779 

bining,  as  formerly  shewn,  ^  the  often  unstable  and  fluctuat- 

mg  nature  of  such  grants  of  Church  lands,  so  great  an  object 

of   competition,  their    reitercMon  from  invalid  ones   that 

have  issued  in  the  first  instance,  with  the  necessity  of  a 

thorough  Parliamentary  dissolution  from  the  crown,  that 

would  seem  only,  in  the  case  of  Lindores,  to  have  been  by 

means  of  the  supervening  Act  in  1606,  though  unaccompanied 

by  the  charter  it  enforced,  there  might  follow  to  be  room  for  Possibly,  some 

the  rejection ;  though  no  such  presumed  conveyance  has  7^1^?^"^^  Jf' 

been  discovered.     But  certainly,  if  that  passed,  tliere,  on  the  thongh  not  for 

other  hand,  is  every  probabiUty  that  it  was  not  restricted, — as^^n'"™®^^?^*' 
inferred,  but  still  in  unison  with  the  other  relative  limitations,  to  male  or  tbo 

heirs-male  whatsoever.  Possibly  there  may  have  been  tndy  a 
flaw  from  the  first,  however  disregarded,  or  soldered  up.  In 
this  case,  the  assumption  of  the  honour  from  1736  to  1790,  by 
the  coUateral  heir»male,  a  period  of  fifty-four  years,  with  vot- 
ing at  Elections  of  the  SiiLteen  Peers,  were  held  to  go  for  no- 
thing, which  bears  upon  the  law  as  to  prescription  in  honours. 

Hie  defect  of  the  right  of  John  Ledie,  or  Anstruther,  to  Cue  of  the  Ba- 
vote  at  the  above  Election,  in  1790,  under  the  title  of  Lord  i^^j'y**^^^''''* 
Newark,  also  discussed,  and  rejected,  the  same  day,  in  1793,^ 
(after  the  same  form,)  was  even  more  glaring.  He  was  not  heir- 
male  of  the  body,  in  exclusive  terms  of  the  patent  of  the  digni- 
ty, dated  last  of  August  1661,^  but  claimed  under  an  alleged 
regrant  of  the  latter,  upon  a  resignation  by  General  Leslie, 
the  patentee,  in  favour  of  heirs-general,  including  himself.  The  Rejected,  be- 

^i_  aa         c  1^   '      M."  ^ji-T.    came  the  aasert- 

regrant,  however,  apparently  a  fabrication,  was  found  to  be  ed  regrant,  up- 
untenable,  labouring  under  remarkable  flaws  and  objections ;  °°'''*'®'*  ^^\ 
among  others,  its  date  on  a  Sunday,  &c.     A  claim  to  the  dig-  was  in?aiici. 

stated),  29th  of  April  1793,  thus  alludes  to  the  ratio  decidendi.    **  In  tho  Ratio,  or  reso- 
ease  of  the  Peerage  of  Lindores,  decided  the  other  day,  a  charter  was  J"^**"*  *"  Lin- 
produced  in  favour  of  heirs-male  whatsoever ;  but  after  this  charter,  the  cording  to  LordI 
grantee  was  styled  and  treated  as  a  commoner,  and  the  claim  under  Roulyn. 
it,  by  an  heir-male  whatsoever,  though  backed  by  possession  of  consi- 
derable length,  was  rejected,  because  your  Lordships  presumed,  that 
some  other  patent  had  been  granted,  limiting  the  honours  to  heirs-male 
of  tho  body."    The  doctrine,  obviously,  may  bear,  in  some  d^gree^  upon 
the  Colvil  of  Cnlross  case ;  see  pp.  354-6,  et  seq. 

»  See  pp.  238,  et  seq,^  and  pp.  246-6-7-8-9. 

»  LordH*  Jounmlf?.  '  Great  Seal  Register. 


780  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

nity,  by  the  heir-female,  had  also  been  objected  to  at  an  Elec* 

tion  in  1771.^     It  may  be  only  added,  that  the  Peerages  of 

Lindores  and  Newark,'  to  members  originally  of  the  same 

family,  were  continued  on  the  Union  Roll, 

EMfdom  *of        ^°  January  30,  1561,  there  passed  a  royal  charter  of  the 

Moray  io  1790  Comitotua  of  Moray,'  to  James  Stewart,  prior  of  Saint  An- 

—1793.  drews,  subsequently  the  noted  Regent,  and  to  the  heirs- male 

First  grant  in  of  his  body>     Ccrtiun  considerations,  however,  inducing  a 

in  tuipense!  forgi'cuit  to  him  by  the  crown  immediately  thereafter,  the  7th  of 

atime,  by  rea-  February  1661,  of  the  Earldom  of  Marr,  under  the  same  li- 

8on   of  a  cir-       ..•.••ii  i  -  .1  1 

cumstance.  mitation — whicb,  With  the  attendant  act  of  creation,  have  been 
already  instructed,'  had  the  effect  of  rendering  the  previous 
one  in  suspense*     But,  along  with  a  change  of  circumstances,* 

^  See  Robertson's  Parliamentary  Proceedings,  p.  S60. 
'  The  particulars  as  to  them,  are  from  the  Informations,  papers,  and 
relative  procedure,  &c.    The  Lords  of  Session,  in  their  Report  about 
Scottish  Peerages  in  1740,  after  noticing  the  patent  in  1661,  state  that 
none  had  sat  or  voted  in  any  shape,  under  the  title  of  Newark,  since 
1690.    See  Acts  of  Sederunt y  Edit.  1790,  p.  845. 
Older  unknown     ■  Although  not  mentioned  in  the  Peerages,  (by  no  means  surpris- 
d^^o?  l^ray  *^^»^  *^*®  Earldom  of  Moray  kad  been  given,  in  1456,  upon  forfeiture  of 
about  1456.       the  Douglasses,  to  David^ — equally  unknown, — a  younger  son    of 
James  XL,  as  is  proved  under  an  item  of  the  expense  in  an  Exchequer 
Roll  in  that  year,  "pro  domino  Principe  (afterwards  James  III.)  Va- 
vide  Comite Moravia,  et  domina  Maria  JUiis,  et  iilia  Domini  RegiSy' 
(James  II.)    David  dying  young,  the  Earldom  became  extinct,  and 
was  afterwards  an  appanage  to  illegitimate  Royal  ofi^pring. 

*  Privy  Seal  Regbter. 

•  See  p.  684,  n.  2. 

The  political  '  Lord  Hailos  (Suth.  case.  Chap.  VI.  p.  101,)  ascribes  the  Marr  grant 
reasons  qualify-  to  a  "  political  reason  ;"  and  the  matter,  as  is  notoriouft,  has  occasioned 
Moray'srant^in  historical  discussion.  There  were  strong  interim  reasons  for  the  noble 
1561.  party  not  forthwith  availing  himself  of  the  first  Moray  charter,  his  in- 

fluence and  address  had  procured  from  his  sister,  the  unfortunate 
Queen,  which,  it  has  been  directly  maintained,  was  kept  in  petto,  or  in 
retentis.    A  principal  one  was  a  previous  charter,  (among  other  titles,) 
the  13th  of  February  1548,  (Great  Seal  Register),  of  this  identical  and 
Previous  grant  much  coveted  Comitatus  of  Moray,  to  a  formidable  rival,  George  Earl 
^^^^^  ^?°j!**"  of  Huntly,  in  fee,  whom  the  Regent  afterwards  succeeded  in  crushing ; 
Earl  of  Huntly.  ^^^  whom,  in  1561,  the  measures  for  the  purpose  being  only  in  train, — 
and  not  realized  until  the  noted  defeat  and  death  of  Huntly,  in  October 
1562,  followed  thereafter  by  his  attainder,  (as  in  the  sequel,) — ^it  was  in- 
expedient then  to  provoke,  by  a  premature  public  assumption  of  the  dig- 
nity, witli  the  fief, — both  indeed  pre-claime<l.   Ilencc, — ^it  being  incum- 


IN  SCOTTISH  PEERAGES,  &C.  78 1 

the  noble  family  of  Marr  having  commenced  a  claim,  as  heirs-  intervening 
general,  to  the  ancient  dignity  of  Marr,  that  eventually  proved  UJUdom  of' 
successful,  the  new  acquirer  relinquished  the  style  of  Marr,  Marr  in  isei. 
he  had  actually  taken,  for  that  of  Earl  of  Moray,  in  virtue  of 
the  corresponding  charter  referred  to,  upon  which  the  Act  of 
creation  latterly  obtained  in  usual  form,  the  10th  of  Febru- 
ary 1562.'    This  further  shews,  that  a  Peerage,  duly  and  so-?^^®'^ 
lemnly  constituted,  such  as  Marr  above,  was  not  held,  as  it 
would'appear  to  be,  in  England,  indefeasible,  and  rivetted  in 
the  blood,  but  might  be  the  subject  of  posterior  challenge, 
and  voided  and  recalled,  on  just  and  relevant  grounds,  at  the 
instance  of  the  righteous  heir.   And,  at  the  same  time,  we  see  itreieyant  con- 
again,  in  respect  to  Moray,  the  effect  of  a  charter  of  a  Comtto- ^^ggeid,  bat 
ha'm  1561,  as  carry mg  an  honour,*  whatever  Lords  Mans-e«P«c»»*>y  ®^ 
field  and  Rosslyn  may  predicate, — which  has  been  rashly  de- owing  to  inad- 
nied,  owing  to  the  Moray  dignity  not  being  immediately  ss-^^rtenee, 
sumed  thereafter,  of  course,  partly,  inter  aUa^  (as  seen,)  in 
absence  of  the  creation,  that  has  escaped  attention.    The  fu- 

bent  that  the  Rojral  favourite  should  be  ennobled  in  1561, — ihQtnter^ 

twm'n^lMarr  grant,  only  a  week  after  that  of  Moray,  in  its  peculiar 

eireumstances.    Such  being  the  case,  it  is  curious  to  observe  Lord  Shallowness 

Rosslyn,  unaware  of  the  true  state  of  things,  in  all  his  shallowness,  and  ®«**"»  *°^  *'" 
^    '  o  *  ^  ron60U8  r6Hson" 

superficiality,  recklessly  attempting,  in  his  speech,  (to  be  afterwards  re-  i„g  ^f   Lord 
ferred  to,)  in  the  Moray  claim,  through  such  early  non-assumption  of  Rottlyn  through 
the  dignity  of  Moray,  by  the  Regent,  peremptorily  to  refute  the  as-  ^",''/'°''®  °^ 
aibed,and  technical  effect  of  the  relative  charter  in  1661!  Further,  in  re- 
futation of  Lords  Rosslyn  and  Mansfield's  crudities,  as  to  an  old  grant 
of  a  CknmtatuSy  Huntly  again,  in  virtue  merely  of  his  Moray  charter  in 
1648,  is  directly  afl&rmed,  by  historical  authority,  to  have  assumed  the 
dignity  of  Earl  of  Moray, — of  which,  however,  his  rebellion  in  October 
1662>  whereto  he  was  driven  by  Moray,  deprived  him,  when  the  first 
Moray  grant  to  the  Regent,  confirmed  by  the  later,  took  full  effect. 

»  Aftetj  it  is  to  be  observed,  the  defeat  and  death  of  Huntly,  as  pre- 
mised, (at  the  battle  of  Corrichie),  in  October  1562.  The  year  then  be- 
gan on  the  25th  of  March.  The  act  of  creation  in  question,  it  given,  of 
the  date  mentioned  in  the  text,  by  Sir  James  Balfour,  Lord  Lyon  in 
1630,  in  an  autograph  compilation  by  him,  to  be  specially  referred 
to  in  the  sequel,— obviously  from  the  official  heraldic  vouchers  and 
appropriate  register  under  his  control,  as  King  of  Arms ;— as  well  as 
identically,  by  Father  Hay,  a  noted  antiquary  in  the  reign  of  James  II, 
in  his  MSS.  Collections,  which,  with  the  former,  are  in  the  Advocates* 

Library..'',^  r 
■  Also^  in  1548,  in  the  case  of  Huntly  :  see  previous  note. 


782  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

After  first  grant  ture  Regent,  whose  influence  was  great,  obtained,  the  22d  of 
^['J^^^'^f^^™  January  1563,  a  regrant  of  the  "  Comitatus"  of  Moray,  to 
1 56 1 ,  that  took  him,  and  the  heirs-male  of  his  body .^    And  finally,  and  particu- 
grant  of  the'  l^rly,  on  the  Ist  of  June  1566,  another  of  the  same,  upon  his 
same  in  1563,  special  resignation;  but  with  an  entirely  new  limitation,  (he 
regulating  one  having  Only  female  issue,)  namely,  to  himself  and  wife,  &e. 
in  J®g"'*®°®'*^ "  et  heredibusy  inter  ipsos  legitime  procreatis  seu  procrean- 
dis,"  whom  failing,  to  his  heirs  whatever^  or  to  heirs-generals 
This  constituted  the  last,  and  regulating  conveyance ;  and  in 
such  situation  of  things,  the  Regent  was  assassinated  in  1570. 
It  may  be  added,  that  afterwards,  in  1592,  there  was  a  Parlia- 
mentary ratifiqation  verbatim  of  this  charter  in  1566,  with 
but  a  summary  reference  to  **all  utheris  charteris,  infeft- 
mentis,*'  &c.  in  favour  of  the  Regent.^   The  Act,  thus  virtually 
including  that  of  the  Comitatus  in  1563,  has  occasioned  sur- 
prise, owing  to  the  conflicting  limitation  in  the  latter ;  but  it 
was  still  an  original  title,  once  in  force,  and,  what  was  mate- 
rial, duly  instructed  the  subjects  resigned,  and  subsequently 
carried  in  1566 ;  while  this,  as  has  been  exemplified  in  the  si- 
milar instance  of  Napier,  and  others,^  independently  of  many 
Modem  misap-  more,  was  a  usual  form,  in  the  circumstances.     Modern  im- 
Wated"**^"  ****"  pressions,  in  this  way,  frequently  run  counter  to  apposite  an- 
cient practice,  occasioning  futile  and  mistaken  motions.  There 
had  been  also  a  ratification  of  the  charter  1563,  together  with 
one  of  Brsemar  (1564)  in  1567,^  to  be  found  among  our  ex- 
isting Parliamentary  Acts,  (in  reference  to  grants  affecting 
private  rights,)  that  are  however  not  perfect  at  the  period,  which 
renders  the  thing,  that  could  not  have  solid  weight  in  any 
event,  immaterial. 

The  Regent  Moray,  having  no  sons,  was  succeeded  by 

^  George  Earl  of  Huntly  having  been  forfeited^  on  account  of  his  re- 
bcllion,  the  28th  of  May  1563,  (see  Acts  of  Pari,  last  Edit.  vol.  II.  p. 
572,)  there  could  be  now  no  possible  bar  or  scruple.  January,  as  al- 
ready obvious,  then  followed  May  in  the  calendar  of  the  year.  Sen- 
tence,  thus  agreeably  to  our  practice,  had  been  pronounced  against  the 
trdtor,  though  dead ;  see  pp.  757-8.  The  feud,  owing  to  the  Earldom  of 
Moray,  still  continued,  and  led  to  the  slaughter  of  James  Earl  of  Moray, 
by  George  Earl  of  Huntly,  heir  of  the  former,  in  1502 :  see  p.  780,  ».  6. 

•  Acts  of  Pari,  last  Edit.  vol.  III.  pp.  620,  etseq. 

»  See  p.  661.  *  Acts  of  Pari,  last  Edit.  vol.  II.  p.  553. 


IN  SCOTTISH  PEEAAOES,  &C.  783 

Elizabeth,  his  eldest  daughter,  the  only  surviving  one  who  left  SuUeqaent  de- 
issue,  she  being  thus  entitled,  as  senior  co-heiress,  in  the  first  Earldom  of 
instance, — which  with  us  carried  a  right  to  the  dignity  and  the  JJ|?™fe^*^® 
chief  superiority,  in  virtue  of  the  regulating  charter  in  1666  ; 
who,  marrjdng  JamesStewart,  younger  of  Do  wn,  transmitted  the 
honours  and  the  fief  to  him  by  the  courtesy,  according  to  the 
practice  which  then  obtained,  and  indeed  long  after,^  as  well 
as  to  their  descendants.     Eventually,  but  not  until  the  next^"^' o*"*^® 
century,  on  the  17th  of  April  1611,  there  passed  a  charter  of  i6ii. 
the  Comitatus,  on  his  resignation,  to  James  Earl  of  Moray, 
theu*  direct  heir  and  representative,   limiting  the  same   to 
heirs-male,  with  a  substitution  to  heirs  whatsoever.'     The 
lineal  descent,  both  in  the  male  and  female  character,  from 
Countess  Elizabeth,  was  perpetuated  in  the  heirs  seriatim^ 
who  duly  succeeded  as  Earls  of  Moray,  until  the  demise  of 
Alexander  Earl  of  Moray  in  1700,  when  it  split, — the  honours  Assumption  of 
and  estates — to  which  last  these  had  an  undoubted  right  under  ter  1700^  b'y  the 
the  charter  161 1,  being  taken  successively  as  heirs-male,  alone*  heir-male  of  the 

1     ^1       -■  1  t'»  •      1  •  1        1    t  •    1  1  abo^e  heir- 

by  Charles,  and  i^rancis,  bis  second  and  third  sons, — to  the  ex-  female,  in  ex- 
clusion of  Emelia,  wife  of  Alexander  Eraser  of  Strichen,  and  ^^l^^J^^' 
her  issue,  the  child  of  James  Lord  Down,  his  eldest  son,  who 
predeceased  his  father, — indisputably  the  heir  of  line.     In 
1790,  Francis  ^*  flarl  of  Moray  "  was  grandson  and  heir,  by 
male  descent,  of  the  preceding  Francis,  while  the  heir-general 
of  the  family,  and  of  Countess  Elizabeth,  was  Alexander  Era- 
ser of   Strichen,  the  grandson  and  heir  of  the  preceding 
Emelia ;  and  the  right  of  the  former  qua  Earl  of  Moray,  to  Question  of  the 
vote  at  the  Peerage  Election  in  that  year,  (which  indeed  had  beir.niaie'after 
also  been  protested  agamst  at  Elections  in  1784  and  1788,^)»>««g  protested 

,.,1  ^^..         ,-  t^xj.-  ,.    ''against  in  1784- 

^ang  brought,  upon  petition,  before  the  Lords,  this  question  e,  brought  by 
arose,  whether  the  Earldom  of  Moray  still  went,  as  it  had  ^^^^^^^  ^^^ 
done  originally,  to  the  heir-general,  or  duly  vested  in  the  pre- in  1790. 
sent  assumer,  who  was  only  a  singular  successor ;  and  stood 
precisely  in  the  situation  of  Sir  Robert  Gordon,  tiie  claimant, 

>  See  pp.  111-12.    This  can  be  additionally,  and  fully  illustrated  by 
▼ariouB  authorities. 
'  Great  Seal  Register. 
^  See  Robertson's  Peerage  Proceedings,  pp.  419,  442. 


784  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

— but  unsuccessjully — of  the  Earldom  of  Sutherland  in  1771) 

with  reference  to  the  merits  of  that  case.' 
Conclusions  in       It  would  follow,  that  both  in  virtue  of  the  regulating  char- 
Fratere  of  stri- ter  of  the  Comttatus  in  1566)^  and  owing  to  the  immediate 
Chen,  the  heirs-  descent  thereafter  of  the  dignity  to  the  heir-female,  it  should 

general,  whose  .  ,  ,  . 

case  was  then  have  Still  Continued  in  the  female  line,  and  therefore  descend- 
though  iTot' in  ®^  ^^  ^^®  Frasers  of  Strichen,  the  heirs-general, — the  far 
the  field.  later  charter,  in  161 1, — from  the  change  of  circumstances,  and 
peculiar  epoch  of  its  passing  in  the  17th  century,  when  great- 
er strictness  and  precision,  as  has  been  set  forth,  are  dbcover- 
able,  and  were  enforced  in  Peerage  conveyancing, — intro- 
duction then  of  modem  ^^patents^"  or  abstract  grants  of  Aon- 
ourSi  with,  at  least,  constant  insertion  of  the  same^  in  charters^ 
over  above  the  fief  and  lands, — not  being  entitled  to  the  for- 
mer weight.'  While,  again,  the  recent  assumption,  compara- 
tively, of  the  male  line  in  the  18th  century,  with  voting,  and 
their  being  occasionally  returned  at  certain  Peerage  Elections, 
from  1701,  to  1784, — ^when  their  right  did  come,  and  repeat- 
edly to  be  challenged, — was  admitted  in  the  relative  discus- 
sion to  be  noticed,  in  1793,  not  to  be  conclusive, — however  it 
might  serve  as  a  presumption.  Indeed,  even  the  deciding  Lord 
would  not  take  it  upon  him  to  say,^  that  ^'  such  adverse  pos- 

'  My  statement  is  taken  from  the  printed  papers,  MSS.  informa- 
tions, and  relative  particulars,  including  the  public  records. 
Proof,  inter         '  For  proof,  independent  of  what  may  be  else  adduced  on  this  head, 
"f"*'  ®^  gi[«nt8    of  grants  of  a  ComitatuSy  and  even  Baronia,  carrying  the  honours,  in 

Mii?yS^*tt!!r  ^^^»  ^^^y  ^^^  1^1»  ^^  PP-  ^^^y  (especially)  687-8,  632,  note.  To 
honour  in  1664-  these  I  may  add,  the  charters  of  the  Comttatus  of  Moray,  in  1561,  &c. 
6.  IWI.  (see  pp.  780-1-2)  ;  and  of  Marr,  the  23d  of  June  1665,  (Great  Seal 

Register,)  which  exclusively  confirmed  the  Marr  honaurt  in  the  Ers- 
kines,  (and  their  heirs-general,)  as  was  even  most  consistently  admitted 
by  Chancellor  Rosslyn  in  the  case  of  Moray.  ^ 

'  In  the  Sutherland  claim  too,  in  1771,  a  charter  of  the  Cmnitatusin 
1601,  under  the  sign  manual,  to  heirs-male,  quite  in  exclusion  of  heirs- 
general,  and  the  successful  female  claimant,  was  especially  held  by  the 
House  of  Lords  to  be  utterly  null,  and  inoperative  in  regard  to  the 
dignity.  In  the  same  way,  in  the  Moray  caso^  in  1703,  the  Attorney- 
General  contended,  that  the  above  later ^  and  identical  Moray  cliarter 
in  1611  "  conveyed  lands  only,  not  the  dignity.  Territorial  honours, 
(he  added,)  wore  then  out  of  practice." 

^  Lord  Rosslyn,  the  Chancellor,  a  transcript  from  a  full,  authentic 
copy  of  whose  speech,  the  29th  of  April  1703,  in  moving  the  resolution 


IN  SCOTTISH  PEEBAGES,  &€.  7^5 

session  was  sufficient  in  law"  for  ever  to  preclude  another ivb bar fttmi<^ 
party,  or  that  there  was  precedent  or  decision  to  that  effect.^ — ^^^  usump* 
But,  a  Jbriioriy  agreeably  to  the  ruling  abstract  principle, 
**  settled"  (to  use  their  special  phraseology)  by  Lord  Mansfield  JJ^„^jty  ^  m^, 
in  the  identical  Sutherland  claim  in  1771, — and  which  Lord  ray  ct»e  fm/jf, 
Rosslyndid  notdispute,  but  recognised  elsewhere* — that  reject-  therUuid,  eves* 
ed,  and  would  here  reject,  the  interference  and  import  ef  atf  °po"   ^^d 


grants  of  Comitatus^  however  relevant  at  any  period,  and  deter-  uo 
mined  the  descent  of  an  old  honour  in  favoar  of  the  Ymx-female^ 
de  planOj  from  the  mere  circumstance  of  its,  precisely  like  Mo>- 
ray,  having  before  gone  to  an  heir-female,' — thus  serving  as  a 
rule  or  eriterioo,  accordingly,  in  future,*— the  Earldom  in  ques- 
tion ought  to  have  so  devolved  in  1700,  and  continued  ever 
afterwards  in  the  female  line.  If,  in  the  Moray  instance,  where 
this  cardinal  specialty  and  postulate  so  strikingly  recurred,  it  be 
objeeled,  that  there  was  no  constitution  or  conveyance  of  the 
konoura  literaUf,  agreeably  to  the  later  prevalent  fashion,  to 
heirs-general,  neither,  it  may  be  redargued,  was  there  such  to 
heirs-male ;  whUe  this  remaining  feature,  again,  only  tends  to 
complete  its  identity  in  all  respects  with  that  of  Sutherland, — 
where  the  same  coincidence  ako  precisely  obtained.  As 
long  as  law  stands,  I  contend,  without  much  fear  of  being 
refitted,  that  both  cases  are  substantially  identical  in  their 
individual  merits,  and  must  be  ever  so  held.  But  the  claim  The  roijb  «»•> 
of  an  heir -female,  it  would  seem,  was  not  to  be  preferred  ^^[J|^'7roiii  bf 
bv  Lord  Rosslyn,  in  any  event,  to  that  of  his  adored  heir-Lo''<'.?^^3^ 
male,  or  even  to  the  semblanee  of  such,  however  cu'cum-toheiit-maie. 

of  the  Committee  in  tke  Moray  case,  I  have,  and  to  which  referenod 
is  made  both  here,  and  (largely)  in  the  sequel.  Indeed  I  may  once  for 
all  state,  that  i^'hen  I  notice  any  relative  particulars  as  uttered,  or 
signed  by  his  Lordship,  they  are  derived  from  this  source. 

'  I  shall  state  more  on  this  subject  under  the  Glencaira  claim  in  1797. 

'  Most  explicitly  in  his  speech  in  the  latter  claim. 

'  See  p.  697.  The  simple  ratio  decidendi^  as  from  the  resolutions, 
March  21,  1771,  (Lords'  Journals)  was,  that  the  Sutherland  Earl- 
dom (whose  constitution  is  unknown,)  had,  in  1514,tievolved  to  Eliza- 
beth, the  heir  of  Earl  John  her  brother,  and  sole  surviving  issue  of  a 
j^evions  Eari^in  exclusion  of  theheirs-mak  then,and  even  now  existingi 
descended  of  the  original  Earls  of  Sutherlaiid,  from  which  tAHmet  ladt 

the  conclusion  in  the  text  was  applied, 

3  D 


786  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

stanoed ;  and  bence  his  Lordship,  who,  as  was  remarked,  had 
abjured  his  former  notions  for  those  of  Lord   Mansfield, — 
bugging  himself  therein, — now  even  transcending  the  latter, 
and,  for  his  fond  and  bigotted  purpose,  even  contemning  his 
oracle,  decided  actually  in  favour  of  the  Moray  heir -mofc, — 
originally  too,  through  a  female,  —the  peer  petitioned  against 
m  1790,  which  resolution  the  Lords  agreed  to,  the  6th  of  June 
The  latter  feigns  1 793.^    And  simply  upon  the  mere  pretence  and  hypothesis,  fu- 
creStion"orrhl  ^®  ^^^  visiouary  indeed,  of  a  new  creation,  by  «  Patent,*'  of  the 
Mony  dignity  in  dignity,  exclusively  in  favour  of  James  Stewart,  the  husband 
hiMbui/of  the  ^'  Elizabeth,  the  Regent's  daughter, — which,  of  course,  con- 
first  heir.gene-veniently  and  dextrously  enough,  (I  should  rather  say,  sinU- 
accordingly       trousfy),  as  nothing  could  be  gleaned  thereof,  its  date,  its 
against  her.      passing,  a  single  item,  or  tittle, — must  hihemici^  (assuredly) — 
according  to  the  bigotted  and  despotic  presumption  of  this  new- 
fangled law, — though  to   the  palpable  disseveration  of  the 
honours  and  estates  at  the  time — a  most  credible,  and  likely 
arrangement  forsooth,— go  only  to  heirs-male  of  the  body,  and 
necessarily  to  the  former  I     An  utter  novice  in  the  subject,  he 
thus  concluded  too,  the  miraculous  intervention  of  a  ^'  Patent " 
abstractly,  of  honours, — of  the  novel  form  in  modern  times, 
such  as  we  afterwards  had,  but  not  then.      In  this  manner 
was  the  heir-female  (though  not  personally  in  the  field)  cast. 
The  pretexts  or  hallucinations  of  Chancellor  Rosslyn,  to  sup- 
port his  vital  induction  of  the  new  creation,  exhibit  a  choice 
specimen  of  special  pleading, — mongrel  indeed,  and  anoma- 
lous,— he  here  availing  himself  of  a  tissue  of  glaring  falsities, 
and  empty  facts  in  reality,  amid  contradictions, — ^plausible  per- 
haps in  part,  when  viewed  through  modern  prejudice,  or  ap- 
prehension, but  sufficiently  brittle,  and  easily  **  pounded  "  by 
those  versant  in  the  matter,  and  by  Scottish  legal  antiquaries. 
The  following  may  be  the  most  favourable  sample  of  his  efforts. 
His  evidence  in  He  maintains,  that  as  James  Stewart,  the  husband  of  Coun- 
support  of  thu,  ^ggg  Elizabeth,  sat  in  Parliament  as  Earl  of  Moray,  the  19th 

——properly  hit  .    . 

«o/earguroent~of  May  1584,'  it  could  not  be  by  the  courtesy^  because  '*  it  is 

i"rre?eTaLf  *"**  proi?c(/  that  tiU  then  (the  year  1588)  she  (Elizabeth)  was 

never  considered  a  Countess, "   or  so  denominated. — ^*  My 

^  Lords'  Journals. 

•  Acts  of  Pari,  last  Edit.  vol.  III.  p.  290. 


IN  SCOTTISH  PRERAOES,  &C.  787 

Lords,"  he  therefore  triumphantly  exclaims,  the  solution  of 
the  sitting,  by  the  courtesy,  is  '*  impossible, — can  it  be  so 
much  as  for  a  moment  imagined  ? — it  is  absolutely  a  chimera. 
Her  husband  (hence)  must  have  been  created  a  Peer,  and 
sat  in  Parliament  in  his  own  right"     But,  most  unfortu- His gUnng or- 
nately again  for  his  Lordship,  he  is  here,  as  elsewhere,  signal- '°''  *•  ***  *^® 
ly  wrong  m  his  premises  m  a  common  point  of  fact,  which  he,  by  the  aboTe 
as  a  judge,  and  ordinary  investigator,  ought  to  have  known ;  {ho'dfmuTtiU^ 
for  it  is,  e  converso^  as  clear  as  noon-day,  that  this  noble  isse. 
female  party  wcu^  to  use  his  own  diction,  ''  considered  as  a 
Countess,'*  and  actually  so  styled, — not  only  before  1588, 
but  be/are  1584 1     Nay,  an  Act  of  Parliament,  even  as  early 
as  the  penult  of  November  1581,   specially  recites  Kpre^ 
vious  *' compromit,"  or  agreement  affecting  Colin  Earl  of 
Argyle,  *'dame  Elizabeth  Stewart,  countesse  of  Murray,  and 
Margaret  Stewart  hir  sister,  dochteris  to  umquhile^  James 
eril  of  Murray,  &c.  Regent  to  oure  souerane  lorde,"  and 
**  James,  now  (obviously  in  consequence  of  his  marriage)  erll 
of  Murray,  spouse  to  ye  said  Elizabeth,  for  his  enteres." ' 
She  thus,  I  reply, — on  the  contrary, — at  this  material  time.  She    hrfwe^ 
b^re  the  sitting, — does  figure  as  a  Countess,  while  the  Earl  ^  °"own*riihi, 
itfonly  so,  by  the  courtesy^ — though  thus  arbitrarily  exclud- and  her  husband 
ed  by   Lord   Rosslyn.     This  is  not  only  intimated  by  his  Curtesy.  ^ 
being  postponed  to  her  on  the   occasion,  but  so  inserted 
latterly — **  for  his  enteres ;"  which  identical  words,  it  is  not  to 
be  overlooked,  his  Lordship  afterward  asserts,  indicated,  and 
were  necessary  to  indicate  the  right  by  courtesy .^    There 
was  hence  no   chimera  at  all  in  the  conflicting  plea  with 
Lord  Rosslyn's,  which  he  so  arrogantly  rejects ;  and  thus  his 
rash  and  preposterous  superstructure,  the  foundation  being  ut- 
terly worthless  and  untenable,  at  once  crumbles  to  the  ground. 
Were    I  here  to  probe  further,   after  all  superfluously^  I 
could  additionally  refute  his  Lordship.     Indeed,  in  the  ser- 

*  Deceased.  '  Acts,  ut  sup.  p.  230. 

'  *'  It  is  well  known  (he  predicates)  that  where  a  married  woman 
is  to  execute  a  deed  respecting  property,  the  fee  whereof  is  in  herself 
it  uniformly  is  made  to  run  in  her  name,  with  the  consent  of  her  hus- 
band, and  by  him,  ybr  Am  interest  only"— clenrly  here  through  the  mar- 
riage and  courtesy. 


788  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

vice  of  the  noble  lady  in  question,  the  1st  of  February 
1586,  (hence  before  1588)  to  her  sister  Annabelia,  she  is 
again  specially  described  as  *'  Countess  of  Murray."  ' 
Other  futile  ^^^  Chancellor  besides,  owing  to  marked  inadvertence,  and 
rearon  of  Lord  ignorance  of  the  then  legal  practice,  founds  in  support  of  hb 
port  of  bit  the*  vital  theory,  (it  is  always  to  be  remembered,)  upon  the  lady 
^^'  being  styled  only  by  her  christian  name  and  surname  at  an 

earlier  period,  but  subsequent  to  marriage,  while  her  husband 
figures  as  Earl.     He  consequently,  again,  must  have  been  so 
by  a  new  creation.    If  his  Lordship  had  opened  his  eyes,  and 
made  the  smallest  investigation,  he  would  have  speedily  found 
that  at  the  period — indisputable  Countesses  are  often  actually 
so  designated,  while  the  above  opposite — though  neutral  cir- 
cumstance in  this  instance,  equally  then  applied  to  their  hus- 
bands, and  sons.     As  in  ornithology,  the  noble  mate,  in  these 
days,  (when  women  were  not  admitted  as  witnesses,)  was  in 
writs  fully  bedizened  in  the  superior  plumage  of  the  honours, 
that  were  then,  not  unseldom,  ungallantly  withheld  from  the 
Palpable  refu-  female,  howcver  legally   entitled  to  them.      It  will  not  be 
wme°  in  the  d^niedi  that  Lady  Agnes  Keith,  daughter  of  the  Earl  Mar- 
very  instance  of  ghal  of  Scotland,  and  wife  of  the  Regent  Earl  of  Moray, — 
JAoTKyT^^  °  the  actual  mother  and  father  of  Countess  Elizabeth,  was 
Countess  of  Moray.     Indeed  she  is  occasionally  so  described ;' 
yet  when  a  widow,  in  the  identical  way  with  her  daughter,  as 
has  been  objected, — in  an  Act  1^92,  regarding  the  Moray 
. '  succession, — which  Lord  Rosslyn  either  saw,  or  ought  to 

have  seen, — ^she  simply  figures  but  as  **  dame  Agnas  Keith," 
— at  the  moment  when,  again,  in  compliance  with  the  fashion 
in  question, — she  is  likewise  styled  the  spouse  of  "  umquhile 
James  Erll  of  Murray,  &c.  Regent^" — who  thus,  e  converso^ 
In  that  of  Fa-  by  it,  has  all  his  due  honours  and  styles,  &c.^  The  dowager 
miiy  of  Hontly.  Countcsses  of  Huntly,  in  like  manner,  in  a  legal  process  in 

*  Act  and  Decree  Register  of  the  Sheriff  Court  of  Perthshire.  Even 
by  the  ChanceUor^a  shewing,  Elizabeth  should  have  been  CaunteaSy 
through  her  husband,  long  before  1588. 

'  See,  for  instance,  an  Act  in  1674,  bearing  mention  of  the  R^ent 
**  James  erll  of  Murray,**  and  of  '*  dame  Agnes  Keith,  countesse  of  er- 
gyll,  and  Murray  his  relict,*'  she  afterwards  having  married  Colin  Earl 
of  Argylc.    Acts,  ut  9up,  vol.  III.  p.  86. 

•  Jbid,  p.  630. 


IN  SCOTTISH  P££RAGES,  &C.  789 

1526,  are  cited  but  as  <'  Mergerat  Stewart  his  moder," — 
t.  e.  of  *'  George  erll  of  Huntlie/'  he  having,  as  above,  his 
full  style, — ^'  EUzabeth  Hay,  his  foirgrandame, — and  Eliza« 
beth  Gray,  his  grandschiris  wife,"  though  they  can  all  be 
proved  the  undivorced  wives,  respectively ,.of  Earls  of  Huntly, 
and  certainly  aliunde  Countesses.' 

Innumerable  other  such  cotemporary  instauces  I  could  give 
from  record.^  But  it  may  be  perhaps  contended,  that  these 
were  not  Countesses  or  Peeresses  in  their  own  right, — such 
as  I  hold  Elizabeth,  the  Regent  Moray's  daughter,  to  have 
been, — and  that  the  practice  did  not  apply  to  the  latter.  If 
so,  I  need  only,  in  refutation,  agaun  appeal  to  the  next  au- 
thorities, to  instruct  the  exact  extension  of  it  to  them  also. 
The  old  Baronial  dignity  of  Dirleton,  with  larffe  estates,  de-in  that  of  Fa- 
volved  to  the  noble  family  of  Ruthven  and  Gowrie,  through  JJ,n'![  or  Gowrie. 
Janet,  the  eldest  daughter  and  coheiress^  of  Patrick  Hali- 
burton,  the  previous  Lord.^  Yet,  after  the  succession  had 
opened  to  her,  there  is  a  royal  confirmation,  1st  of  March 
1535,  of  the  lands  of  Forteviot,  to  her  husband, — *^  Domino 
Willielmo  Domino  Ruthven,"  but  to  herself  only  as  "  Joneie 
HaUtmrtoney  sue  spouse" *  Here  too,  as  little,  is  she  even 
styled  Lady  Ruthven,  in  right  of  her  husband.  The  usage  had 
been  ancient,  and  deep-rooted;  for  we  find  a  confirmation, -7^/f**®f*"*'3r 

*  of   March    and 

May  24th,  1367,  by  ^'  Patrick  Dunbar,  Earl  of  March,  and  Moray. 

*  Act  and  Decreo  Register  of  tlio  Supreme  Civil  Court.  The  pro- 
cess turned  upon  the  jointures  of  the  Countess,  and  aliment  to  the 
Earl,  all  then  alive. 

*  Thus,  inter  alia^  the  then  undoubted  wives  of  "  Gilbert  Earl  of 
Caarilis,"  and  of  ^*  Alexander  Earl  of  Glencaim,"  so  explicitly  deserib* 
ed,  on  the  ICth  of  January  1575,  and  M  of  December  1577,  are  only 
called  **  Dame  Margaret  Lyon,"  and  ''  Jean  Cunningham,"  as  proved 
by  charters  of  these  dates  in  the  Great  Seal  Register. 

'  We  had  no  abbeyance  in  Scotland,  the  eldest  coheiress  alone,  ipso 
jure,  succeeding. 

*  William  Ruthven,  also  her  male  descendant,  Earl  Gowrie,  by 
charter  20th  of  October  1581,  (Great  Seal  Register,)  is,  in  the  preamble, 
expressly  styled  "  Lord  Ruthven  and  Dirletoun,"  He  is  likewise  so, 
elsewhere  described. 

*  Great  Seal  Register.  By  the  way,  this  is  a  fresh  instance  of  the  des- 
cent of  an  old  dignity,  whose  limitations  are  unknown,  to  the  heirs- 
female. 


7dO  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Moray^'  and  **  Agnes  "  bis  wife,  as  "  Countess  of  March 
and  Moray/' — the  latter,  the  celebrated  **  black  Agnes," 
heiress  of  the  Randolphs  Earls  of  Moray,  and  precisely  like 
Elizabeth  Stewarts-Countess  of  Moray,  in  her  own  right, — 
her  husband  only  taking  by  the  courtesy ;  while,  on  the  other 
hand,  there  was  a  royal  charter,  the  28th  of  June  1362,  under 
the  same  circumstances,  to  a  party,  upon  the  resignation  of  the 
said  Earl,  in  the  full  pomp  and  blazonry  of  his  style,  as  above, 
but  by  the  Countess  simply,  as  **  Agnes  sponsa  sua."^  Yet  it 
will  not  be  pretended  that  she,  the  noted  heroine  of  Dunbar, 
so  masculine  in  her  character,  and  arrogating  far  more  than  the 
usual  privileges  and  attributes  of  her  sex,  would  have  been  re- 
miss and  lukewarm  in  the  assertiou  of  her  rights  iand  pre- 
Id  the  eotem-  eminence*      But,  coming  much  further   down,   and  to  the 

Sf  "piiX'^of  ^^^^^  P«"o^  ^^  Countess  Elizabeth,  after  the  death  of  the 
Bttcban.  Regent  Moray,  I  may  cite  one  other  charter  of  the  lands  of 

Bonnieton,  &c.  the  10th  of  March  1576,  **  Roberto  (Doug- 
las) Comiii  de  Buchan^^  and  '*  Dominse  Cristina  SieuHxrt 
sue  spouse," ' — which  lady,  be  it  observed,  was  then,  as  can 
be  fully  proved.  Countess  of  Buchan  in  her  own  right,  the 
dignity  being  only  in  Robert,  the  husband,  by  the  courtesy  ;* 
audit  was,  under  such  identical  and  repeated  right,  as  the  heir« 
female  of  Cristian,  that  the  Earldom  again  descended  to 
Countess  Mary,  her  grand-daughter,^ — thus  constituting  even 
a  stronger  instance  of  female  succession  than  the  well  known 
Earldom  of  Sutherland. 

Enough  therefore  upon  this  subject,  that  enabled  the 
Chancellor  forsooth,  according  to  his  assumption,  to  give  the 
case,  victoriously,  as  he  chose  to  mould  it, — **  upon  its  tn$e 
merits," — but  in  opposition  to  certain  fact  and  reality,  and  to 
found  an  argument,  it  seems,  in  his  own  behalf, — his  cheval 
de  guerre — of  the  most  irresistible  kind,  though  perfectly 
futile  and  evanescent. 

Pursuing  this  track,  however,  a  little  farther,  he  does  not 
deny,  nay  he  adduces  evidence  which  proves  that  Elizabeth 


'  Regist.  Dav.  II.  Lib.  I.  pp.  56-6,  29.       '  Great  Seal  Raster. 
'  See,  inter  alia,  Lord  Hailes'  Suth.  case,  chap.  V.  §  14.  pp.  62,  el  M7. 
•  Ibid. 


IN  SCOTTISH  PEERAGES,  &6C.  791 


was  Countess  of  Moray,  and  so  recognised  in  1688, — as  he 
would  pretend,  in  right  of  her  husband  only.     According  to  Further   con- 
his  reasoning,  therefore,  she  should  always  have  been  thus  de-  Jj^n^'of  "/"^i' 
signated  thereafter^  for  it  involves  the  vital  postulate  of  con-  Rossiyn  bere» 
stant  adhesion  to,  and  observance  of  such  special  style  ;  but  it  ow  "ground,  in 
so  happens  again,  that  even  then^ — on  the  21st  of  January  the  cue  of  th« 
1589, — we  still  find  her  described,  iu  a  civil  process,  but  aSgenenO. 
^^dame  elizabeth  Stewart,  dochter  and  air  of  umquhile  James 
erl  of  Murray,"  while  her  husband  is  described  as  EarL^ 
This,   at  the  same  tiAie,  in    perfect  accordance  with,    and 
pointedly  ilUistrating  my  former  position, — the  lady  being  now^ 
at  least,  on  a//  hands,  a  Countess,  and  strictly  entitled  to  that 
rank  with  the  relative  rights, '  &c. — clearly  evinces  the  utter 
insignificance  and  inconclusiveness  of  the  Chancellor's  test,  or 
pretext,   based  upon  the  occasional  non-application  of  the* 
style  in  question,  from  which  (done  he  draws,  at  one  epoch,  the 
violent  conclusion  of  its  being  foreign  to  the  party,  and  which 
indispensably  subsumes,  that  a  real  Countess  in  those  days 
was  never  designated  otherwise  than  as  a  Countess.     The 
reverse  is  strikingly  shewn,  even  in  the  very  instance  of 
Elizabeth  ;  and  he  might,  just  as  relevantly,  in  virtue  of  his  ar- 
gument, have  denied  that  she  had  a  right  to  the  dignity  in  1589 
as  before^ — or  indeed  that  of  the  latter  indisputable  Peer* 
esses  and  Countesses  mentioned, — who  are  exactly  in  pari 
casu  ;  but  with  what  truth  and  foundation,  is  now  abundant- 
ly clear.     Nay,  in  another  litigation,  even  in  additional  illus* 
tration,  the  very  day  after  the  one  quoted,-*the  noble  Moray 
heretrix  again,  has  her  explicit  strict  designation  of  ^'  deame 
elizabet  Stewart,  countas  of  Murray  ;*  while  upon  this,  as 
well  as  the  forii^r  occasion,  her  husband  only  follows  in  her 
wake ;  a  circumstance  to  which  the  late  Lord  Lauderdale,  as 


1  Action,  of  the  date  mentioned,  by  James  Durham  of  Duntarvie, 
agunst  tho  lady,  as  in  the  text,  and  her  husband  for  his  interest,  de- 
fenders, to  pay  certain  debts  incurred  by  the  Regent  Moray,  her  father. 
(Act  and  Decree  Register  of  the  Court  of  Session.)  January  was  near 
the  end  of  the  year,  it  then  beginning  on  the  25th  of  March.  She  is 
ealled  **  dame  elizabet  Stewart,*'  exclusively. 

'  It  will  further  be  fixed  in  the  sequel,  in  her  own  right. 


792  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

will  be  afterwards  shewn,  affixed  considerable  importance.' 

No  stress  whatever,  therefore,  can  be  laid  upon  the  mere  oo» 

casional  withholding  from  her,  of  the  style  in  question. 

Other  nitiie  and     The  Chancellor  seeks,  after  Lord  Mansfield's  fashion,  to 

ineouitcetit  at-  disprove  the  right  of  the  Regent,  and  his  heirs,  to  the  honours, 

Rossiyn.  Under  the  grants  of  the  Comitatusm  1561, 1563, 1566,  whichby 

our  practice,  as  evinced,  did  carry  them,'  yet  most  consistentfy 

indeed  founds  upon  that  of  the  Comiiatus  of  Marr  simply  in 

1565,'  to  instruct  the  right  and  descent  of  the  Marr  dignity  in 

the  Erskines.     These  attempts  respectively  cut  each  other's 

-     ,  .  throat;  while  he  wouldevenargue,thatthemerelimitationsofthe 

CODClttwT4  All* 

thoritiet  e  eon-  estate  of  Moray  in  the  17th  century  to  heirs-male  demonstrate 
EniTb^trhow!  "  **^  *^  honours  were  limited  to  the  same  heirs."— But  I 
log  the  dignity  shall  uow  adduco  conclusivc  evidence,  and  authorities,  upon  the 

In    her    own  a.*i«4.jj»  'a 

right,  &c.         material  point  under  discussion.^ 

I.  Upon  the  L  In  a  minute,  and  curious  specification  of  the  Scottish 
strength  of  e?i.  Qoi^ilil^y  afeout  1595,  (in  the  British  Museum,)  by  a  cotem* 
1595  down  to  porary,  who  evidently  had  direct  and  accurate  means  of  Intel- 
modern  timet,  liggnce, — of  their  agcs,  connections,  and  religious  tenets,  &c. 
with  an  obvious  view  to  important  political  purposes,  it  is 
stated  that  the  then  Earl  of  Murray  was  only  ten ;  that  his 
mother  (Elizabeth)  was  **  daughter  to  the  Earle  of  Murray, 
Regent^  by  quhome  this  Earles  father  had  that  Earkdome^ 
(Moray)  ;  that  he  was  *'  not  maryed,  his  house  Tamway. 
This  was  James,  in  one  view,  through  the  right  by  the  courtesy 
in  his  &ther,  the  third  Earl,  but  by  descent  the  second,  who 
hence  inherited  the  Earldom  from  Countess  Elizabeth,  and  in 
no  degree  from  the  former,  who,  it  is  merely  said,  quite 
truly,  had  been  ''slayne  by  Huntly,"  (in  1592.)  In  a  MS. 
genealogical  compilation,  and  deduction  likewise  of  the  pedi- 
grees and  connections  of  the  Scottish  Peers,  before,  and  at 
the  beginning  of  the  17  th  century,  once  in  possession  of  Sir 

'  Action  by  Archibald  Earl  of  Argyle,  the  said  **  Countas  **  Elizabeth, 
and  others,  against  William  Douglas  of  Erlismiln,  in  relation  to  the 
succession  of  Agnes  Keith,  her  mother,  Countess  of  Aigyle  and  Moray, 
22d  of  January  1589.    Act  and  Decree  Register,  ut  sup. 

*  See  p.  784,  n.  2.  *  Great  Seal  Register. 

*  As  for  as  I  know,  these  under  the  following  head  were  not  ad- 
4aMd  in  the  Moray  case,— at  least  the  most  material. 


IN  SCOTTISH  PEERAGES,  &C.  79S 

Robert  Cotton,  the  noted  antiquary,  and  thereafter  of  Camb- 
den,  there  are  two,  of  the  family  of  Moray,  in  which  the 
husband  of  the  daughter  and  heiress  of  the  Regent  is  either 
only  represented  as  *'  Jacobus"  (Stewart),  or  paternally,  as  son 
of  the  **  Abboti^  (or  Commendator)  of  Saint  Colms  Inch ;" 
while  she  exclusively  figures  as  '*  Comitissa  Moravie" — in  her 
own  right'  Sir  James  Balfour,  Lyon  King  of  Arms  in  1630, 
still  more  explicitly  sets  forth,  in  an  autograph  account  of 
the  Scottish  nobility,  dedicated  to  Charles  I.  that  '*  Jame$ 
Sieuarte  Lord  Doune^  (by  a  hereditary  title  in  the  Abbots  his 
father)  wes,  in  right  of  hit  wife  Isabel^  (Elisabeth,)  eldest 
daughter  to  James  Erie  of  Murray,  and  Regent  of  Scotland, 
Earl  of  Murray  J  and  had  issue  2  sonnes, — Jame&  "  the  eldest, 
*<  new  Erll  of  Murray,"  his  cotemporary,  and  the  nobleman 
above  referred  to.^  Neither  this  authority,  the  foregoing  ones.  Good,  eyen 
or  those  that  follow,  (equally  unadduced,  so  far  as  I  &in  R^wnWafio 
aware,  in  1793,)  Lord  Uosslyn  could  have  relevantly  disre- «'«»■«'«»;'«««  the 
garded,  because,  as  will  be  afterwards  seen,  under  the  Glen- 
cairn  claim  in  1797,  he  founded  exclusively  upon  much  inferior 
testimony, — that  merely  of  a  subordinate  £fi^/t«A  Herald,' — to 
instruct  the  parallel  vital  fact  of  the  constitution  and  descent 
of  the  Scottish  Earldom  of  Glencairn  in  1503.  Indepen* 
dently  too,  tbe  evidence  of  Sir  James  Balfour  the  Lyon,  is  ir- 
resistible in  the  circumstances,  inasmuch  as  the  Lyon  King 
of  Arms  not  only  attended,  and  drew  large  fees  at  the  crear 
tion  of  Peers,  but  moreover  kept,  ex  officio^  a  Register  of  every 
peerage  grant  and  creation,  ^  wherein  those  of  the  Earldom 
of  Moray  must  have  been  undoubtedly  inserted,  and  from 
which  genuine  source — it  being  constantly  under  bis  personal 
control  and  observation,  he  must  have  drawn  his  informal 

*  This  is  another  instance  of  appropriation,  by  one  of  "  the  Lords  of 
the  congregation,"  of  church  property,  with  the  old  clerical  style, 
through  a  purchase  or  singular  acquisition ;  see  pp.  239-40. 

■  Advocates'  Library.    **  Elizabeth"  is  so  in  both  the  pedigrees. 
'  Isabel  and  Elizabeth  have  been  with  us  promiscuously  used  as  de- 
noting the  same  Christian  name. 

•  Advocates'  Library,  ap.  his  other  numerous  Collections. 

*  One  John  Younge,  Somerset  Herald,  an  utter  stranger  to  Scotland, 
wliere  the  event  occurred. 

•  See  pp.  7,  684-6,  n.  029-30.    The  old  Lyon  Rcconls  have  perished. 


I 

I 


794  INQUIRY  INTO  THE  LA.W  AND  PRACTICE 

tion, — curious  and  searching  withal»  as  he  is  known  to  have 
been  in  such  matters,  as  is  testified  by  numerous  relative  col- 
lections. Any  new  creation  too,  as  pretended,  in  favour  of  the 
husband  of  Countess  Elizabeth,  could  not  therefore  have  es- 
caped his  attention,  especially  after  the  striking  fact,  not  only  of 
bis  having  thus  directed  his  attention  to  the  Moray  pedigree, 
but  of  his  havmg  even  transmitted  to  us  the  actual  date  of 
the  original,  and  only  Moray  creation,  as  formerly  shewn,  on 
the  10th  of  February  1562.^  Hence  his  silence  as  to  the 
former,  and  a  renewed  Moray  constitution,  fully  excludes  its 
occurrence.  I  may  merely  here  add,  that  such  evidence,  and 
a  certain  class  of  historical,  are  admissible  by  the  law  of  Scot- 
land,'— ^which,  moreover,  according  to  Lord  Rosslyn,  ought 
to  rule,  as  will  be  likewise  shewn  under  the  Glencairn  clium. 
In  the  Latin  account  of  the  province  of  Moray,  published  by 
Bleau  in  1662,  the  succession  to  the  Moray  honours  is  repre- 
sented continuously,  in  the  great-grandson  of  the  Regent, 
then  existing,  without  any  ret  interventus?  To  the  forego- 
ing, I  may  add  the  testimonies  of  Sir  George  Mackenzie, 
Lord  Advocate  to  Charles  IL  a  legal  antiquary,  and  of  Prin- 
cipal Dunlop,  historiographer  of  Scotland,  in  1695,^ — which 
last  laid  the  foundation  of  a  Scottish  Peerage,  as  intimated  by 
Crawford;*  and  who  both,  in  their  MSS.  Genealogical  Col- 
lections in  the  Advocates*  Library,  make  Elizabeth  the 
second  inheritor  of  the  dignity,  and  transmitter  of  it  to  her 
descendants.  Sir  James  Dalrymple,  even  more  acute,  and  dis- 
tinguished in  the  same  department,  the  noted  author  of  Col- 
Mections  concerning  Scottish  History  in  1705,  is  equally  con- 
current. He  explicitly  states,  in  1695,  that  '*At>(the  £«- 
gents)  only  daughter  brought  this  title  f  the  *  honour '  of  Earl 
of  Murray)  unto  her  husband^  Sir  James  Stewart  of  Down.'*' 
All  are  uniformly  silent  as  to  any  new  creation  in  his  favour. 
Then  there  is  the  previous  Crawford,  who  did  publish  a 

*  See  p.  781.  '  This  will  be  iDstructed  afterwards. 

*  Scottish  Atlas,  p.  126.  *  He  also  figured  considerably  before. 

*  In  his  Peerage  (to  be  afterwards  referred  to),  Pref.  pp.  iv.  v. 

*  In  his  second  edition  of  Cambden,  published  in  the  same  year,  p. 
188. 


IN  SCOTTISH  PEERAGES,  icC.  795 

Peerage  in  17165  wherein  be  says  that  the  above  noble  lady 
**wa8  married  with  James  Stewart,  Lord  Down,  who^  in 
RIGHT  of  her,  his  wife,  became  EatI  of  Murray,"  by  whom, 
**  the  Countess  of  Murray,"  he  had  **  James  the  next  Earl."^ 
This  author,  also,  of  the  genealogy  of  the  Stewarts  in  1710, 
— where  he  identically  premises  such  statement,' — ^had  access 
to  most  of  the  charter-chests  of  Scotland  ;  and  to  the  same 
purport  are  all  the  subsequent  authorities  and  writers  upon 
'the  subject,  whom  it  would  be  tedious  and  superfluous  to  re- 
fer to,  —thus,  inter  aliOj  pointedly  refuting  the  rash  and  er- 
roneous assertion  of  Lord  Rosslyn  in  his  speech, — that  the 
Countess  in  question  **  is  no  where  described  as  a  Peeress 
in  her  own  right." 

And  what  has  this  legal  dignitary  to  oppose  to  the  above  i^rd  RoMijm 
express  and  multiplied  evidence,  so  consistent  in  itself, — to  o^^  to^tbe 
which  he  was  certainly  bound  by  his  doctrine,  as  elsewhere  ^^^^  P'®®'* 
exemplified,  to  give  the  utmost  effect, — and  bearing  upon  a 
inmple,  though  material  fact?    Not  one  authority,  not  one 
circumstance,  or  tradition,  nothing — saving  hie  mere  assump- 
tion and  hallucination,  that  is,  of  a  resident  Londoner  in  our 
days, — with  his  peculiar  qualifications,  as  ascertained,  who,  it 
seems,  alone  knew  the  truth — ^far  better  than  the  preceding  at- 
testers,   of  old,  including   some  who   laboured  under  the 
weighty  objection  of  being  even  cotemporaries  of  the  noble 
parties  whom  it  deeply  concerned,  and  whom  they  possibly 
knew, — nay  farther  stiU,  as  will  next  be  instructed,  actually 
than  the  parties  themselves  t 

IL    I  now  come   to   an  insuperable  piece  of  evidence,  IL  inrapenUe 
per  scy — that  was  adduced  in  1790-3.     It  is  an  original  pre-^^  iDl694f^ 
cept  of  a  charter  of  confirmation,  the  14th  of  June  1594,  of  a^upport  of  my 
former  charter  and  infeoffmcnt  granted  "  per  quondam  Domt-^"***^ 
nam  Elizabetham  Stewart,  Comitissam  de  Murray,  et  quon- 
dam Jacobum  Moravie  Comitem,  ejus  maritum,"  of  lands  in 
the  Earldom  of  Murray,  in  favour  of  Walter  Mawer,  to  be  held 
of  the  said  Countess,  the  Regent's  daughter,  and  the  Earl  her 
husband,  the  granters,  *^  et  de  eorum  ubkbdibus  Comttibus, 

'  Pp.  358-9,  360. 

'  Including  with  it  the  HiHtory  of  Renfrewshire ;  see  last  Edit.  p.  230. 


79(i  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

et  CoMiTissis  de  Moray"    The  interest  of  the  Earl  here, 
tibough  secondary,  but  undoubtedly  by  the  courtesy,  entitled 
him,  as  explained  by  a  parallel  instance  in  that  century,  "libero 
tenemento, — Comitatus, — cum  annexis,  &c.  tenentibus,  tenen- 
driis^  libere  tenentium  sermtiis^  molendinis — advocatione  et 
donatione  Ecclesiarum,"  &c.  during  his  lifeJ      Here  then, 
as  before,  the  Countess  not  only  first  figures,  as  having  the 
real  cardinal  title,  but  the  dignity  is  clearly  proTed  to  be  des- 
cendible to  heirs-general,  by  the  marked  inclusion,  in  the  te* 
nendas^  of  ^*  Countesses"  of  Murray  in  their  own  right — 
among  the  successors  and  ^*  heirs  "  thereto — who  could  never 
have  been  thus  inserted,  in  the  opposite  view,  if  the  des* 
cent  forsooth,  according  to  Lord  Rosslyn,  both  before  and 
after  the  Regent*s  time,  had  been  restricted  merely  to  heirs- 
male  of  the  body.     Combined  with  what  has  preceded,  the 
matter  hence  may  be  set  at  rest ;  for  none  could  have  known 
better  thim  the  actual  parties  how  it  truly  was.     Against 
.  this  plain  and  conclusive  proof,  which  even  his   Lordship  is 
Gratuito  s  b-  '^''**^  ^®  admit  to  be  of  some  "  weight,"  and  to  "  cause — 
jection  of  error  hesitation  "  he  cau  only  urge  that  there  must  be  a  *'  blunder" 
lyn  to^  the  ^'u^  — '^J'  ^^^  writer  or  notary  ! — which  was  sensibly  and  forcibly 
thority,  with    replied  to  by  the  late  Lord  Lauderdale, — as  well  known,  one 
it  by  Lord  Lau-  of  the  prominent  peerage  authorities  in  his  day, — that,  in  this 
derdaie.  manner,  to  **  attribute  a// — to  the  mere  blunder  of  the  writer, 

will  not  do,"  in  any  event ;  for  then,  what  is  indeed  incredi- 
ble, "  at  least  an  equai  degree  of  ignorance  must  be  presum* 
ed  in  the  parties  themselves^  as  to  their  own  situation  ;  be- 
cause erroneous  as  the  deed  is  said  to  be,  it  is  not  denied  that 
the  Earl  and  Countess  executed  h.^  The  pretence  in  ques- 
tion, therefore,  ''  made  no  such  impression  on  (his)  mind,"  (as 
on  Lord  Rosslyn's);  and,  if  true,  ^^  the  Earl"  would  *^  have" 

*  The  authority  in  question  is  a  royal  charter  of  the  C&mitmtus  of 
Sutherland,  the  1st  of  Decemlier  1527,  to  Adam  GordcHi  Eari  of  Suth- 
erland, bjf  the  eourtesyy  and  Elizabeth  his  wife,  Countess,  in  her  own 
right,  wherein  such  identical  interests  are  instructed  to  have  bedta  in 
him,  "  ratione  curialitatis  Scotie  "  at  common  law  ;  while,  in  the  same 
way,  in  the  relative  clause,  the  Countess  is  mentioned  first,  and  £arl 
Adam  last.  The  grant  is  in  the  Great  Seal  Register,  and  was  adduced 
in  the  Sutherland  claim  in  1771,  and  previously. 


IN  SCOTTISH  PEERAGES,  &C.  797 

been  named  *^  firet,^  and  not  the  lady."'  But,  in  reality,  the 
pretence,  or  bare  supposition  of  any  material  error,  is  again  here 
quite  gratuitous,  and  visionary.  All  that  the  Chancellor— here, 
as,  for  the  most  part,  signally  misled,  can  advance  in  support 
of  the  same,  are  mere  modern  flimsy,  or  finical  conceits  and 
sophistries,  which  he  contorts  into  capital  exceptions. 

In  the  first  place, — that  the  precise  right  in  the  Countess,  Pint  arKumeni 
with  the  precise  interest  in  the  husband, — through  adhibttion  R*Ji^iyn°'in  wp^ 
of  his  actual  consent,  in  virtue  of  the  courtesy,  not  being  spe-  port  of  the  sup- 
cially  stated,  and  condescended  upon  in  the  conveyance,  must^"'^ 
have  the  sad  and  rueful  effect  of  its  utter  voidance  and  jactita- 
tion,— though  otherwise  presumptively  valid,  and  acted  upon. 
This,  with  a  witness,  to  use  Mr.  Canning's  reply  to  the  some* 
what  analogous  attack  or  exception  of  his  adversaries  in  the 
Copenhagen  expedition, — though  much  more  relevantly,  on 
the  part  of  the  latter, — is  like  perishing  with  Vattel  in  our 
hand, — sacrificing  all  to   absurd   supererogatory   form   and 
punctilio.    And  it  is  amusing  to  see  Lord  Rosslyn  so  pedanti- 
cally strict  and  punctilious  in  this  instance,  that  makes  against 
him,  when  he  is  notoriously  so  lax,  remiss,  and  indulgent  in 
evidence,  and  particulars  tending  his  way.     Yet,  independent 
of  the  respective  rights  and  interests  of  the  parties  being  Reply,  and  legal 
evident  from  their  order  and  precedence,  as  things  stand,  by  by7?«ctke?"of 
technical  practice,  there  was  no  such  unavoidable  necessity  the  authority  in 
for  such  minute  detail  and  hypercritical  explanation  to  eg.**"*"*®"- 
chew   the  outrageous  conclusion  in  question.     In  proof  of 
this,  I  need  only  recur  to  a  parallel  instance  before  cited, — at 
a  time  when  not  only  the  female  succession  prevailed,  but 
there  was  approved  nicety   in   feudal    conveyances  and  te- 
nures,— namely,  the  royal  confirmation  past  in  1362,  of  a 
landed  grant  by  Patrick  Earl  of  March  and  Moray,    and^y  ^Me   of 
Agnee  Randolph  his  wife.  Countess  of  Moray,  in  her  own  right,  March  *nd  Mo- 
wherein  these  exactly  corresponding  parties  are  even  more  oUien. 
summarily  and  shortly  stated  to  have  executed  the  important 
resignation  that  warranted  the  former.     The  relative  retros- 


'  This  also  instmcts  a  previous  remark  ;  see  pp.  791-2. 
'  From  an  authentic  copy  of  his  Lordship's  reply  to  Lord  Rosslyn  in 
the  Moray  question. 


I 


798  INQUIRY  INTO  THE  LAW  AND  PRACTICB 

pective  words  are,  **  quas  (the  lands)  patricius  Comes  Mar- 
chie,  of  Moravie,  et  Agnes  spousa  sua  nobis,  &c.  reddide* 
runt;" — while  the  tenure,  as  generally,  is  but  *'sicut  dicti 
Comes,  et  Agnes  spousa  sua,  dictas  medietates  baroniarum 
(the  valuable  subjects  conveyed,)  &c.  possiderunt,"^ — and  this 
without  an  lYem,  or  the  least  of  such  explanation  as  is  demand- 
ed,— but  which,  however,  as  imperatively  applied  to  them. 
The  same  briefness  too,  and  marked  want  of  Lord  Rosslyn's 
supposed  indispensable  amplitude,  in  the  case  of  other  mar- 
ried parties,  who  had  equally  such  identical  distinct  rights 
and  interests,  will  be  immediately  demonstrated  ex  terminu 
even  by  original  grants, — ^whicb  tells,  ajbrtiori^  in  the  pre- 
sent refutation. 
Second  argn*  Secondly,  the  Chancellor  excepted — in  support  of  his 
Rouiyn.  ^  Strange  vapid  conclusion — ^to  the  words  of  the  tenure  in  the 
instrument  in  1594,  as  being  loose,  faulty,  and  untechnical. 
But  he  is  again  redargued  by  the  above  most  relevant  test, 
they  being,  on  the  contrary,  legally  faultless,  and  unchallenge- 
able,— remembering,  at  the  same  time,  that  the  interest  of  the 
husband  of  an  heiress,  already  explained,  was  ostensibly 
great  by  the  courtesy,  (more  so  than  now,)  and  gave  him  the 
Reply,  and  le-  Semblance  of  a  proprietor.  Thus,  remounting  to  strict  feudal 
^n  M  before '  t™cs  and  practice,  there  is  an  authentic  grant,  before  the 
from  instance  of  22d  of  February  1221,  by  "  Willielmus  Comyn,  Comes  (in  vir- 
oiii^to°i22]!*^'  ^U6  of  ^^  courtesy),  et  Margareta  sponsa  sua  Comitissa  de 
Buchan,"  (in  her  own  right,^)  of  the  church  of  Bathelvy,  in 
the  Earldom  of  Buchan,  to  the  abbey  of  Arbroath,  to  be  held 
"  in  elemosina  ;"  and  which  they — "  nos^  et  heredes  nastri^* 
are  to  warrant.^  Though  this  be  a  mortification,  of  course, 
without  words  of  descent,  yet  the  warrandice,  as  respects  the 
heirs,  is  couched  in  parallel  terms  with  those  applied  to  the 
heirs  in  the  ienendas  of  the  Moray  instrument ;  and  whaf;  may 
be  objected  to  the  latter,  may  be  as  cogently  to  the  former, 

*  Regist.  Day.  II.  p.  29.    See  also  p.  700,  ut  sup, 
'  See  Lord  Hailes's  Suth.  case,  chap.  V.  §  1,  pp.  14-5.  The  same  facts, 
too,  can  be  aliunde  instructed. 

'  Chartulary  of  Arbroath  (vet.)  Ad.  Lib.  The  epoch  of  the  pass- 
ing of  the  grant  is  fixed  by  the  royal  confirmation,  (ihid.J^  of  the  date 
in  the  text. 


IN  SCOTTISH  PEERAGES,  &C.  799 

which,  however,  he  would  be  fool-hardy  indeed  to  assail  on 
such  ground.  Neither  is  there  any  explanation  of  the  indi- 
vidual rights  of  the  mortifiers,  as  Lord  Ro8sl3m  would  have 
judaically  demanded.  In  like  manner,  but  more  directly  in  By  imtanca  of 
point,  there  is  a  charter,  the  3d  of  August  1373,  by  Walter ''•°°°*^**^^^^' 
de  Fosselane,  "  Dominus  (and  elsewhere  '  Comes^'  ^)  de  Le* 
venax" — who  solely  possessed  the  Earldom  by  the 'courtesy,  in 
right  of  his  wife  Margaret  de  Levenax, — of  the  lands  of  Auch- 
mar,  <'  in  Comitatu  nostra  de  Levenax,"  in  favour  of  Walter 
de  Buchanan, — to  be  held,  in  effect,  just  as  in  the  Moray  in- 
strument,— ^*  de  nobis^  et  heredibus  nostris"  *  Nor  is  this  a 
solitary  case,  for  there  are  others  by  him  in  identical  terms  f 
— ^while  there  again  is,  as  before,  no  specification  of  the  actual 
title  or  interests.  What  earthly  ground  there  can  be  for  the 
injurious,  and  condemnatory  imputations  of  the  Chancellor 
against  the  Moray  tenendas  in  1594,  and  how  they  can  at  all 
relevantly  bear,  it  is  indeed  difficult  to  discover.  The  suc- 
cession is  defined  by  the  common  rule  of  the  law  of  Scot- 
land, applicando  singula  singulis^  of  course,  under  the  con- 
current control  of  the  charter  of  the  Comitatus  in  1566. 
The  succession,  no  doubt,  might  vary  according  to  certain 
contingencies,  and  be  notoriously  different  by  the  law  of  Scot- 
land,^ from  that  by  the  law  of  England;  his  ignorance, 
as  usual,  of  which  discrepancy  appears  to  have  founded,  in 
part,  his  ideal  exceptions  on  the  footing  of  the  latter.  But 
the  credit  of  the  Moray  instrument  is  not  to  suffer  from  his 

*  See  Begist.  Rob.  II.  Rot.  III.  pp.  113-14,  where  this  person  is 
explicitly  styled  *^  Walter  Earl  of  Lennox  ;"  and  the  same  fact  can  be 
duly  fixed  by  other  legal  vouchers.  In  the  parallel  way,  that  **Dofnu 
nium  "  was  applied,  occasionally,  to  a  CamitatuSf  or  Earldom,  (as  will 
be  proved  under  the  Glencaim  claim),  Dominus  was,  also,  as  in  the 
text,  to  a  Comes  or  Earl. 

'  Chartulary  of  Lennox,  (Levenax),  printed  by  James  Dennistoun, 
of  Dennistoun,  Esq.  pp.  9 — 68,  &c. 

>  See  ibid.  pp.  69, 70,  still  with  the  *^  tenendas~-de  noMs  et  heredibus 
nostris." 

*  Owing,  as  repeatedly  noticed,  to  our  having,  in  succession,  only 
considered  who  is  the  heir  of  the  person  Ia$t  in  possession,  without  go- 
ing further  back,  and  determined  it  accordingly.  Neither  did  we  adopt 
the  principle  of  matemn  matemUy  as  in  England. 


800  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Ignorance.    Nay,  further  still,  it  by  no  means  stands  alone 
in  its  conception  and  phraseology,  but  is  here  identically  sus- 
tained,  in  a  remarkable  degree,  by  the  correct  legal  conyey> 
ancing  of  the  same  century.     In  support  of  which,  there  is 
Other  pointed  AQ  Original  procept  of  seisio,  the  24th  of  July  1561,  (upon  an 
the'a^ihenttcit  ^"^*^^®  grant,)  in  favour  of  Alexander  Gordon,  in  the  lands  of 
and  correctness  Garrachic,  likewise  ^'  tenendaa de  suprema  dominanostra  regina 
Tn  ^qLiUon"io  (Q"®®^  Mary)€*«iM*iicc€«»ort6i«,r€^'ftt«,c<REGiNi8  Scotic,**' 
156 1 .  Here  the  crown  of  Scotland,  like  the  Earldom  of  Moray,  being, 

as  indisputable,  descendible  to  heirs-general,  female  heirs,  in  the 
exact  way  again,  are  justly,  in  prospect,  included  among  the 
takers,  under  the  name  of  *^  Queensy* — precisely  as  "  Ccmii* 
t€$aea "  in  the  Moray  instrument,  and  in  the  identical  broad 
clause  as  there.  If  the  crown  of  Scotland  had  gone,  upon 
the  Salick  principle,  only  to  heirs-male,  they  akme  wotdd  have 
been  specified  above,  without  the  broader  terms  resorted  to, 
which  at  the  same  time  illustrate,  and  relevantly  fix  the  eorre»- 
ponding  import  of  those  in  our  immediate  authority.^ 
Desperate  and  The  Chancellor,  at  length,  in  despair,  and  quite  unable 
■ouroe  of  Lord  ^  ^^Qt  the  latter,  which  he  evidently  dreads,  is  compelled  to 
Rossiyn  in  his  draw  largely  upon  his  imagination,  and  gratuitously  to  con- 
clude, as  a  forlorn  resource,  that  it  was  merely  the  clumsy 
fabrication  of  the  blundering  '^  Bailiff  of  the  family,"  ^ — thus 
seeking,  after  vulpine  fashion,  to  vilify  and  depreciate  what  he 
could  not  master,^ — and  whom,  poor  innocent  defunct — little 
guilty,  or  aspiring  after  such  pre-eminence  and  notoriety,  he 
curiously  saddles  with,  and  makes  the  ignorant — though  in  fact 

*  In  the  Cbarter-chest  of  Sir  Robert  Burnet  of  Leys,  Baronet. 

'  hi  the  regulating  |»tents,  also,  in  1677,  and  1706,  of  the  Bai^ny 
of  Napier,  and  Dukedom  of  Queensberry,  &c.  (Great  Seal  Register,) 
likewise  to  hei]'s*jr9iiera/,  we  find,  as  above,  a  specification  of  the  futuje 
heirs  under  the  descriptiou  of  *'  Domini,  et  Domine  de  Napier,"  and 
*'  Dnoes^  vel  Dueeasa*  de  (^ueensberry." 

'  He  actually  maintains  that  it  is  *'  to  be  taken  as  the  production  of 
some  blunderer  who  did  not  know  his  business, — the  framer  of  it  was, 
moet  probably,  the  Bailif  of  the  Family."  !  I 

*  This,  besides,  is  in  admirable  keeping  with  his  pointed  remark, 
that,  in  weighing  and  determining  a  case  of  this  kind,  "  every  tkiny 
should  he  thrown  into  the  scale,"  without  being  thus  summarily  rejeeir 
ed,~though  even  not  wholly,  or  absolutely  important. 


IN  SCOTTISH  PEERAGES,  &C.  801 

correct  author  of  the  ideal  nullities  he  pretends, — in  reality  on- 
ly figuring  in  his  own  brain  I    This  is  indeed  as  little  creditable 
to  bis  resources,  as  to  his  legal  perception  J    There  b,  in  fine,  Moray  inttra- 
nothing  that  can  \>e  properly  objected  to  the  Moray  instru- J"®"!,  *°.,'^^* 
ment  in  1594, — so  plain,  and,  I  repeat,  per  ^e,  conclusive ; — it 
stands  impregnable  and  repels  every  attack,  which  only  serve 
further  to  elicit  its  strength,  and  recoil  upon  the  assailant. 
It  is  even  stronger,  than  some  of  the  relative  authorities  re- 
ferred to,  inasmuch  as  Countess  Elizabeth  figures  first,  in- 
stead of  only  latterly  as  there,  a  precedence  that  forcibly 
struck  Lord  Lauderdale ;  while  it  is  remarkable,  that  in  the 
earliest  notices  where  James,  her  husband,  is  styled  Earl,  (of 
course,  with  the  exception  when  he  sat  in  Parliament,  though 
still  in  her  right),  it  is  always  in  connection  with  the  lady,  who 
at  the  same  time  appears ;  she  thus,  in  fact,  ennobling  him,  in- 
stead of  he,  her,  as  is  wildly  figured.     Never  until  q/2er  the  Funher  corro- 
marriage,  and  this  is  the  proper  test,  is  the  husband  styled  ^''^°''- 
Earl,  which,  there  being  no  new  creation,  clearly  points  to  the 
courtesy,  tiienJuUy  in  force,  as  much  as  formerly.  Even  upon  Lord  Rouiyn'a 
Lord  Rosslyn's  own  shewing,  the  assumption  of  Elizabeth  *JJ""J)J5,' '**'**''** 
not  being  styled  Countess  before  1588, — independent  of  its  fal- 
sity,— proves  too  much.   There  hence  must,  at  any  rate,  have 
been  a  palpable  error  that  ruins  all;  for  even  thetiy  in  his  view, 
shewaa  still  a  Countess^  and  ought  to  have  been  so  described, 
in  virtue  of  her  husband's  supposed  creation,  according  to 
him,  during  the  marriage,  before  1584. 

III.  But  this  remaining,  and  new  piece  of  exactly  cotem*  Remdoiog 
porary  evidence,  I  have  found  (not  yet  adduced)  may  be  even  ^^^^Sf  °"ilfi« 
still  more  direct  and  clenching.      It  is  in  the  shape  of  an  ac-  thority. 

'  In  fact,  he  here  seems  quite  to  bewilder  himself ;  for  he  says,  ^*Had 
the  title,  and  they^  of  these  lands  (of  Moray)  been  in  the  Lady,*'  &c. 
thus  treating  the  matter  donbtingly,  as  if  there  had  been  a  question  of 
this  periett  of  truisms  in  the  affirmative, — sed  tad^  harum  nugarumj 
and  I  may  have  devoted  too  much  space  to  their  refatation.  Every 
Scottish  lawyer  knows  that  ^en^ra/  verbiage  and  descriptive  references,, 
with  which  we  have  had  to  deal,  and  which  have  been  so  boldly  re- 
jected by  Lord  Rosslyn,  may  be  even  as  strong  and  binding  in  law,  as 
an  attempted  elaborate  specification  of  relative  particulars.  Indeed 
sometimes  more  so,  as  was  illustrated  in  the  noted  entail  case  of  Rox« 
hurghe,  as  contrasted  with  that  of  Tillicoultry. 

3s 


803  INQUIRY  INTO  THE  LAW^  AND  PRACTICE 

tion  in  1588,  before  the  Court  of  Session,  at  the  instance  of 
John  Earl  of  Marr,  who  had  the  ward,  and  non-entries  of 
*^  all  lands,  lordschips,  &c. — quhilkis  pertenit  to   umquhile 
James  erle  of  Murray,  Regent^**  &c.  as  also  of  '*  the  marriage 
of  dame  Elizabeth  Stewart,  now  (by  the  succession  baring 
fully  come  to  her)  Countes  of  Murray,  eldest  dochter,  and 
ane  of  the  tua  airis  of  the  said  umquhile  erle  of  Murray," 
against  the  said  ^^dame  Elizabeth  Stewart,  Countes  of  Murray," 
and  James  Stewart,  now  erle  of  Murray,  hir  spous,  /or  his 
enteres" — whereby  the  previous  Earl  pursues  these  noble  de* 
fenders  for  payment  to  him  of  40,000  pounds,  the  just  ralue 
of  her  "  marriage,"  that  is,  the  feudal  casualty  due  on  the  nup- 
tials of  the  Countess  with  her  husband, — an  obvious  relative 
incident  in  the  Moray  succession.      And  it  is  here  expressly 
set  forth,  without  contradiction,  as  a  necessary  condescendence 
and  ground  of  the  action,     which  was  decided  accordingly  in 
favour  of  the  pursuer, — that  the  Regent  heui  possessed  **  ye 
erldome  of  Murray,"  and  certain  lands,  &c.  *^  to  ye  quhilkis 
Erldome^"  &c.  especially, — "  the  saide  dame  Elizabeth  Stewart^ 
€is  ane  of  ye  saide  Erie  of  Murrayis  tua  dochteris,'  and  airis 
fimahf  hes  succbdit."  The  summons  goes  on  to  state  that  she 
Explicit  strict  i«  wes  unmarriet  ye  tyme  of  hir  said  umquhile  fatheris  deceis ;" 
th^iiu(ih«nd  of  but  "marriet  *c««yn€*  wyt  ye  saide  James,  vowerle  ofMurray^^ 
f  **  h*^h**icf  *  h*  — ^"^  ^  because  he — "  quha^'-^sA  immediately  follows,  **  bb 
Earldom  by  theAt^  MART  AGE  (ahne)^  wtft  yc  Said  deome  elizabethy  hbs  ob- 
Swr«^7right  to''^*^*'^  y^  RYCHT  of  ye  Said  ERLDOME,  hail  landis^  and  uyeris 
the  same  ww  foirsaidis, — ye   said  deame  Elizabeth  (as   finally  transpires, 
in  her.  j^  explanation)  being  eldest  of  ye  saidis  twa  dochterisi  and 

airis,/^e//ofyesdd  umquhile  erle  of  Murray, — quhais  haill 
heretage  is  transferrit^  luyt  herself^  be  hir  mariager  As  already 
observed,  no  denial  is  attempted  of  any  of  these  allegations^ 
and  the  judgment— on  the  14tb  of  March  in  the  same  year, 
is  penned  as  before,  against  *'  ye  said  deame  Elizabeth^ 
Cottnl««  of  Murray,"  and  "James  Stewart,  now  erle  of  Mur- 
ray,^r  his  enteres  " — merely.  ^ 

^  The  younger,  who  can  be  proved  to  have  been  Margaret,  died 
without  issue. 
'  Hinee  then. 
■  Act  and  Decree  Register  of  the  Court  of  Session. 


IN  SCOTTISH  PEERAGES,  &C.  808 

The  matter  in  question  is  now  abundantly  plain.     The  Countess  EUu- 
whole   Moray  succession— "  AaiY  heritege/'^-jnclyiinguthe  j^^^^^^^^ 
dignity,  thgs  came  through  Countess  EHzabethfas  heir  of  her  "«^<»- 
father,  obviously  in  terms  of  the  charter  in  1566,  and  was         A  ^     -. 
merely  imparted,  as  instructed,  through  her,  in  virtue  of  the 
courtesy,   in  a  secondary  way — to  her  husband.      It  was,  '' 

further,  the  *'  Earldom,"  as  well  as  the  <'  hail  lands,"  though 
carried  9imul  et  aemel^  that  thus  devolved.  The  succession, 
withal, -is  every  way  legally  set  forth,  just  as  at  the  moment 
of  the  Regent's  death,  (in  1570,)  and  as  it  had  ever  continued, 
excluding  any  qualifying  circumstance,  or  rei  interventus  in 
its  case,  which  is,  indeed,  in  a  certain  measure  barred  by  the 
minority  and  occasion  of  the  wardship.  Lord  Rosslyn  admits 
at  least,  (as  was  indisputable,)  the  honours  to  have  been  duly 
borne  by  the  lady  in  1588 ;  it  hence  again,  and  as  thus  can 
only  be  presumed,  must  have  been  by  the  charter  1566. 
There  are,  besides,  other  important  actions  in  1588,  where 
strict  accuracy  was  incumbent,  for  exhibition  of  the  family 
grants^  and  those  of  the  Earldom,  &c. — still  without  any  op- 
posing or  contradictory  incident, — at  the  instance  of  "  Dame  Aucrted  new 
Elizabeth  Stewart,  Countess  of  Murray,  as  dochter  and  air  eluded  in  every 
(generally)  of  umquhile  James  erle  of  Murray,  and  James  now  ^"^' 
erle  of  Murray,  hir  spous, — for  his  entresj'*  '—just  as  before, 
the  husband  still  figuring  secondarily^  and  under  the  phrase- 
ology, even  inculcated  by  Lord  Rosslyn,  to  denote  the  mere 
courtesy.'  And  why,  it  may  be  pointedly  asked,  if,  as  his  Lord- 
ship pretends, — in  the  material  interval,  there  had  beeii  a  new 
grant  and  creation  of  the  Earldom,  alone  in  his  favour,  under 
which — though  quite  visionarily — the  Chancellor  decided  the 
lady  only  inversely  bore  the  title, — does  not  that  transpire,  as  it 
assuredly  would  have  done,  in  some  way  or  other,  during  the 
course  of  these  relative  proceedings  ?  But  so  far  from  this, 
not  only  there,  but  everywhere  else,  there  is  not  the  faintest 
trace  or  semblance  of  such  a  thing,  which,  combined  with 
the  marked  silence  of  Sir  James  Balfour,  while  he  directly 
corroborates  me  in  my  argument,^  fully  disproves  it.  In  my 
bumble  opinion,  the  case  as  attempted  to  be  put  and  shaped  by 

«  See  p.  787.  'See  pp.  793-4. 


804  INQUIRY  INTO  THS  LAW  AND  FBACTIGE 

Lord  Rosslyn,  is  obvious  and  confest.     But,  over  and  above, 
I  would  even  stake  it  upon  tbis  comparatively  narrow  issue- 
It  being  admitted  that  there  is  no  literal  grant  of  the  hon- 
ours, nomtita^tm—certainly  abstractly^ — which,  be  it  observ- 
ed, whatever  his  Lordship  may  ignorantly  suppose,  did  not 
then  obtain,! — or  otherwise, — and  as  little,  with  equal  founda- 
tion, as  I  conceive,  any  new  creation,  such  as  pretended, 
which  may  be  now  fairly  discarded, — while  there  yet  does  ex- 
ist the  regulating  charter  of  the  Comitatus  of  Moray  in  1566, 
TJoaToidabie  re-  — after  a  form  that,  nevertheless,  did  carry  honours  at  the 
mcrite°itateJ'*  time,*  is  it  not  a  relevant,  nay  insuperable  presumption,  or  con- 
clusion in  law,  in  the  absence  (as  holds)  of  all  to  the  contra- 
ry,  that  the   subsequent  possession,  in  perfect  conformity 
therewith^  must  be  ascribed  to  it,  and  is  necessarily  in  favour 
of  heirs-general ;  and  if  so,  what  then  must  the  case  be  upon 
the  remaining  merits,  with  nothing  still  to  traverse,  but  every 
thing  flowing  in  the  same  current, — nay,  moreover,  of  the  pre- 
Eren  farther     pondcrating  and  clenching  kind  that  has  been  established?  In 
corroboration    further  Corroboration,  the  descendants  of  Countess  Elizabeth, 

from  the  award-  '  .  ' 

ed  Moray  pre-  the  heir-female,  who  undeniably  bore  the  title,  not  only  took 
1606?^*  "  through  her,  as  the  connecting  link  with  the  Regent  the  first 
Earl,  but  besides,  as  is  proved  by  the  decree  of  ranking  of  the 
nobility  in  1606,  had  a  precedence  given  them,  in  conformity, 
as  nearly  in  the  circumstances' as  could  be,  with  the  above  char- 
ter in  1566.^ 

-  He  is  always,  theny  however,  absurdly  fancying,  and  conjuring  up 
the  apocryphal  intervention  of  a  strict  modem  patent — ^that  is,  entirely 
personal,  without  the  least  allusion  of  lands, — an  ideal  spectre  with 
us,  even  at  that  period. 

'  See  p.  784,  n.  22,  referring,  inter  aliay  to  precise  authorities  in  sup- 
port of  the  proposition. 

'  Immediately  after  the  Countess  of  Buchan,  whose  honours  were 
constituted  considerably  anterior  to  the  close  of  the  loth  century,  and 
before  the  Earl  of  Orkney, — Patrick  Stewart, — whose  Earldom,  inherit- 
ed from  his  father  Robert,  is  instructed,  by  a  charter  in  the  Great  Seal 
•Register,  to  have  been  at  least  conferred  the  28th  of  October  1581,  (upon 
this,  however,  see  hereafter),  long  preceding  the  important  actions 
mentioned  in  1588,  when  there  had  been  no  rei  interventtu  in  the  Mo- 
ray succession.  (See  also  p.  691.)  There  was  in  1606,  of  date  between 
the  periods  referred  to,  no  Earldom  but  that  of  Moray.  The  decree  of 
ranking,  March  5, 1606,  duly  certified  in  her  Majesty's  General  Regis- 


IN  SCOTTISH  PEERAGES,  &C.  805 

The  decree  awarded  a  precedence,  at  least  before  the  28th  of 
October  1581,  while  Countess  Elizabeth  and  her  husband  Also,  u  bearing 
being  married  in  January  1580,^  there  could  not  have  been  *  " J°^^®^^JfJ^* 
new  creation  previously  of  the  latter,  who  only  then  came 
into  the  family.  Neither  could  there  have  been  on  the  mar- 
riage, when  it  assuredly  would  have  happened  in  the  same 
way  as  in  her  father's  case ;'  for  Calderwood,  who  specifies 
the  occurrence,  and  relative  ceremonies,  is  entirely  silent  on 
this  head  f  and  what  is  generally  conclusive,  the  right  to  the 
Earldom  is  proved  to  have  been  exclusively  in  the  Countess, 
as  heir-general,  so  late  as  1588,  and  in  her  husband  by  the 
mere  courtesy,*  in  which  state  it  continued.  The  entire  new 
creations  too,  are  at  least  exactly  fixed  from  1579^  to  1580, 
inclusive,  by  the  public  Records,  including  the  relative 
Chamberlain's  accounts ;  and  yet  there  is  no  notice  of  the 
supposed  one  of  Moray,  which  thus  again  may  be  rejected.^ 

ter  Housey  further  instructs  that  all  the  respective  parties, — Mary, 
Conntess  of  Buchan  in  her  own  right,  James  Earl  of  Moray,^s(Hi  and 
heir  of  Countess  Elizabeth,  the  then  holder  of  the  Earldom,  and  the 
said  Patrick  Earl  of  Orkney,  had  been  formally  cited,  while  the  de- 
cree of  precedence  is  pronounced  in  respect  to  them,  as  stated.  The 
preceding  circumstance  and  evidence  were  not  founded  upon  in  the 
Moray  case  in  1790-3. 
'  The  year  then  began  on  the  26th  of  March. 

*  On  the  occasion  of  the  Regent's  marriage  to  Agnes  Keith  in][1661» 
when  he  wasjirst  ennobled  as  Earl  of  Marr,  (see  p.  684,  n.  2,)  and  there 
obtained  great  solemnities  and  festivities  in  the  Abbey  of  Holyrood. 

'  He  only  says  in  his  MS.  Church  History,  Advocates'  Library,  that  * 

the  marriage  happened  the  29th  of  January  1680<1,  when  there  was 
running  at  the  ring,  justing,  ''and  other  pastimes  in  the  abbey,"  thus 
as  above,  before  the  king,  boat-racing  at  Leith,  &c. 

*  See  p.  802,  and  what  preceded. 

*  With  respect  to  the  exact  precedence  of  Orkney,  it  is  proved  by  a 

bond,*  the  7th  of  July  1576,  affecting  Robert  Stewart,  the  first  peer,  •  Upon  Record, 
and  his  natural  children,  that  he  had  even  then  the  style  of ''  ane  no- 
bill  lord,"  and  ""Eari;'  while  the  title  of  "Eari  of  Orkney"  has  also 
been  given  him  earlier  by  historical  authority ;  so  that  if  there  was  thus 
an  earlier  ground  for  the  former,  which  we  cannot  deny  owing  to  tho 
record  of  the  productions  in  the  decree  of  1606  being  lost,  the  above 
material  conclusion  is  necessarily  even  still  more  directly  settled.  The 
subsequent  charter  1581,  may  have  been,  substantially,  in  a  measure 
eonfinnatory,  and  it  does  ratify  the  previous  possewion  of  the  lands 
of  Orkney  to  the  disix>nee. 


806  INQUIBY  INTO  THE  LAW  AND  PRACTICE 

The  laitr  heir«  It  really  86611)8  that  all  the  heir-male,  after  1700,  can  possibly 
stand  upon^die  Stand  u|>on,  18  the  much  later  charter  in  1 6 1 1 ,  under  a  change  of 
Irrelevant  chw-  circumstances,  as  to  which  already ;  and  which,  from  their  spe- 

ter  m    1 61  If.  ,  ,  , 

which  if  admit-  cial  resolutions,  and  practice,  I  conceive  we  may  safely  pre- 
ToldHl'^lIw"^**^'®  the  House  of  Lord  will  never  allow  to  carry  honours.* 
upon  the  intrin-  In  fact,  if  they  did,  then,  afortioriy  it  is  indisputable  that,  in 
preseiu  right  of^^^^uc  of  the  Sutherland  charter  1601,  that  is  alluded  to — 
the  Family  of  gir  Robert  Gordon,  the  cfemt-male  claimant,  and  in  the  ex- 
thetr  ancient  act  situation  with  the  later  Earis  of  Moray,  ought  to -have 
honours.  he&d  preferred  to  the  Sutherland  honours,  under  the  noted 

claim  in  1771, — instead  of  Countess  Elizabeth,  the  heir-female 
and  successful  party, — who  again  stood  incontestably  in  the 
ex€ict  situation,  as  much  so,  as  in  reciprocity  of  their  names, — 
with  the  other  Countess  Elizabeth  in  reference  to  the  Moray 
question — ^the  solemn  decision  in  favour  of  the  first  of  whom, 
I  contend,  would  then,  in  such  alternative,  be  quite  irreconci- 
lable, and  indefensible.  Indeed  to  this  strange  dilemma,  ac- 
tually, though  otherwise,  Lord  Rosslyn,  I  conceive,  by  the 
Moray  decision,  has  unjustifiably  plunged  matters, — the  Suth- 
erland and  Moray  cases  being  identical  in  their  respective 
merits,  while  the  respective  decisions  are  beautifiiUy  conflict-^ 
ing^  and  incompatible^  the  later  one  nullifying  the  former.  Be- 
sides, the  Sutherland  heir-female,  as  above,  is  utterly  barred. 
In  the  disproved  view,  again,  if  it  be  still  insisted  upon,  the 
Chancellor  has  rashly  taken  of  the  subject, — that  the  Moray 
heir-female  did  not  inherit  in  the  1 6th  century, — ^but  to  which, 
«  of  course,  I  do  not  subscribe,— then  still  less,  I  reply,  did  the 

subsequent  heir-male,  in  his  very  anomalous  capacity,  himself 
taking  likewise,  through  a  female ;  from  whence  it  would  in- 
evitably result,  that  the  dignity  is  now  gone.  And  moreover, 
if  it  be  attempted,  I  must  deny  the  conclusion,  both  in  law 
and  logic,  under  yZir  more  favourable  circumstances  indeed, 
for  the  heir-male,  than  exist,  and  in  (sict  foreign  to  the  question, 

»  In  the  Moray  claim,  the  Attorney  General  successfully  argued  for 
its  rejection,  (see  p.  784, ».  8.)  As  stated  also  Cibid.J,  they  decisively 
held  in  1771  such  identical  charterof  aComtto^tM,— that  of  Sutherland  in 
1601,  exclusively  to  heire-male,  and/or  ever  hBjring  female  heirs— under 
which  Sir  Robert  Gordon,  the  claimant  in  the  Sutherland  case,  took, 
to  be  in  the  same  way  quite  null  and  effete. 


UH  SCOTTISH  P££BAQ£S,  &C.  807 

— that  because  there  mf^A^have  been  a  new  creation,  ergo  there 
must — though  not  unauited  to  the  calibre  of  Lords  Mansfield 
and  Rosslyn. 

After  the  notable  fashion  we  have  seen,  was  the  Moray  Probable  rea- 
heir-general  excluded  in  1793.  Why  he,  Alexander  Frazer  of  Morayheir-fe- 
Strichen,  (in  whose  shoes  the  present  Lord  Lovat  now  stands,)  ™**®  *****  °f^^ 

,  .  •  •  I  •         1  mote  in  1793. 

made  no  appearance  on  the  occasion,  is  rather  singular, — 
though,  at  the  same  time,  his  certain  exclusion  by  the  later 
settlemeutin  the  17th  century,  from  the  landed  possessions — 
the  more  substantial  inheritance — ^may,  if  he  was  duly  aware 
of  the  ioTcs  of  his  rights  and  claim, — which  may  certainly  be 
questioned,  have  rendered  him  rather  passive  and  lukewarm. 
The  discussion  was  indeed  rather  antiquarian,  beyond  ordi- 
nary reach;  certainly  that,  as  now  turns  out — of  Lord  Rosslyn 
— without,  it  is  conceived,  a  full  proper  adduction  and  exposi* 
tion  of  the  necessary  facts,  which  seem  partly  to  have  been 
unknown,  at  an  unfavourable  and  prejudicial  period  of  fierce 
public  turbulence,  and  excitation,  when  the  judgments  of  most 
men  were  more  or  less  warped  or  biassed,  nay  frequently  sa- 
crificed to  )>olitics.  How  things  now  stand,  may  perhaps  be  Present  tute  of 
gathered  from  what  I  have  attempted  to  shew  as  to  the  weight  JJIic-SJiet^ili 
and  import  of  our  peerage  Decisions  and  Judgments.  They  the  caie. 
clearly,  together  with  the  relative  doctrine  of  prescription,^ 
form  the  best  guide  or  standard  on  such  occasions.  Nay,  the 
Chancellor  himself  expressly  admitted  in  his  speech,  that  by 
"  the  law  of'  Scotland— our  (the  Lords' J  decision  should  be  re- 
gulated.'*'  The  dictum  too,  in  law,  might  assist,  that  wherever 
there  is  a  right,  there  is,  or  should  (accordingly)  be  a  might ; 
while  the  material,  and,  as  I  contend,  the  just  party,  the  heir-*  .^®  '^^  5" 

-  ...      ,      .1,  11  1.  thu  head,  under 

general,  not  bemg  m  the  field,  or  at  all  convened  m  1790,  and  the  Waterford 
IT 93,  the  decision  then — that,  moreover,  did  not  proceed  up- ,^®*^®  j!jj[°j[ 
on  a  reference  from  the  crown,*  or  had  its  recognition  or  confir-  "d  Finneiiy's 
mation,  or  agreeably  to  the  regular,  approved,  bxiA  unrepealed  ^oV%i.  pan^i. 
Scottish  method,  was  one  quoad  the  former,  in  absence^^  which,  pp-  iS3-4,<*««g. 

*  For  more  upon  the  latter  subject,  as  affecting  the  Moray  case,  see 
afterwardi,  under  that  of  Glencairn  in  1797. 

'  As  to  the  form  observed  in  the  Moray  instance,  see  p.  783. 

'  It  is  to  be  observed  too,  that  Lord  Rosslyn,  in  his  speech,  lays  con- 
siderable stress  upon  the  female  party  not  being  in  the  field  and  takes 


808  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Effect  of  preTt-notorioudy»  by  our  law,  goes  for  nothing.    The  plea  too,  in 
ooB  jodgmeot.  ^jjg  last  instance,  may  here  apply  a  fortiori^  honours  not  bebg 
generally,  like  subjects  at  common  law,  controllable  by  pre- 
scription, while  governed  by  stricter  rules,  in  point  of  form 
and  legal  solemnities.     Any  bar  likewise  from  prescription, 
might  be  the  less  relevantly  objected,  owing  to  the  facts  of  the 
case  being  still  instructed,  and  capable  as  much,  I  conceive, 
of  being  now  canvassed  and  weighed  as  formerly,  according 
to  the  doctrine  inculcated,  as  will  be  afterwards  shewn,  under 
Lord  RoMiyn    the  Glcncaim  claim.     The  precedent  of  Moray,  at  the  same 
founded  ouAaw*™®'  further  pointedly  illustrates  the  perplexity  and  contra- 
by  the  Mony  diction  introduced  into  Scottish  peerage  law  since  the  Union, 
— again  through  the  glaring  errors  and  incompetency  of  Lord 
Rosslyn,  who,  instead  of  carefully  ascertaining  and  rendering  it 
uniform  and  consistent,  as  imperatively  required  by  his  situation, 
even  there  transcended  Lord  Mansfield  in  inadvertence  and 
extravagance,— out-Heroding  Herod, — and  making  confusion 
worse  confounded.     Of  a  truth  it  may  be  said,  his  Moray  de- 
cision, with  that  of  Sutherland,  and  the  relative  law : — 

"  Non  bene  oonyeniuiit,  nee  in  un&  sede  morantur." 
Andrew  Lord  Ochiltrie,*  and  Andrew  his  son,  having,  at 

great  advantage  of  it  in  his  emergency.    '^  When  the  present  contest  is 
with  third  parties,"  he  states,  **  and  not  with  <Aotfe  whose  right  is  said  to 
have  been  invaded,  (the  heirs-femaieyj  ntch  possession  (that  by  the  la- 
ter male  heir)  must  weigh  very  forcibly  in  favour  of  the  preeent  Earl," 
FaToureble        — ^the  Peer  objected  to.    ErgOy  if  the  heir-female  had  come  forwaid, 
I^onsidermtU)!!  *^*"8s  would  have  assumed  a  different  shape,  as  they  may  perchance 
of  M  )ray  case,  doyet ;  and  we  here  again  find  his  Lordship  deciding  rather  narrowly, 
accordiog  even  and  not  upon  the  broad  legal  grounds,  so  as  to  meet  the  general  merits 
to  Lord  Rostlyn.  ^f  ^  ^^^^^  ^  y^^  y^^^  ^^^^  ^ij  other  legal  dignitaries  on  such  occa- 
sions.   This  is  besides  the  more  striking,  as  he  is  especially  attentive 
to  the  interests  of  the  crown^  who  did  not  claim,  and  at  the  same  time 
fully  founds  upon  the  only  other  relative  fact,  in  his  impartial  consi- 
deration, '^  that  there  has  been  (in  the  matter)  no  usurpation  from  the 
crown**  who  thus  were  not  to  be  aggrieved,  thanks  to  his  Lordship, 
however  the  female  party,  owing  to  the  similar  abstinence,  upon  whidi 
be  prejudicially  seizes,  might  avowedly  be. 

*  This  barony  had  been  heritably  constituted,  as  appears  by  the  Act 
of  creation,  the  15th  of  March  1542,  (see  Acts  of  Pari,  last  Edit.  vol. 
II.  p.  413,)  in  favour  of  a  male  ancestor,  Andrew  "  sumtyme  Lord  Af}- 
endale**  who,  upon  an  interchange  of  property  with  a  party,  had  relin- 


IN  SCOTTISH  PKEUAGKS,  &C.  809 

the  beginning  of  the  17th  century,  acquired  property  in  Ire- Case  of  the  Ba- 
landf  where  they  had  resolved  to  settle,  the  former  resigned  [^"J^jq  1790^ 
his  honours  and  estates  of  Ochiltrie,  in  favour  of  Sir  James  ^7^^* 
Stewart  of  Killeith,  his  first  male  cousin,  (son  of  James,  his 
younger  paternal  uncle,  the  depraved  Earl  of  Arran,  by  his 
infamous  Countess,  who  have  already  figured  in  our  pages, 
and  were  justly  stripped  of  their  honours,)^  upon  which  there 
passed  a  royal  charter,  the  9th  of  June  1615,  of  the  lands,  its  ottenubie 
"cum  omnibus  honoribus,  titulis,"^  &c.   to    the    same   Sir'^,®°»*^*«5°?*« 

'      ,  '  16 15.  and  im- 

James,  '*  et  etiam  suis  hseredibus  masculis  gerentibus  nomen,  mediate  descent 
et  arma,"' — hence  to  the  exact  purport  of  the  Kirkcudbright    ®"'*^- 
patent  in  1633/ 

The  noble  resigner  was  thereafter,  the  7th  of  November 
1619,  created  Lord  Castlestewart  in  Ireland,  (of  course,  an  in- 
ferior dignity,)  which  became  his  exclusive  title  f  and  the 

quiahed  that  older  dignity,  coeval  with  the  reign  of  James  II.  whose  Original  consti- 
original  limitation  is  unknown.    This,  again,  with  repeated  instances,  tation  of  the 
shews,  contrary  to  Chancellor  Erskine's  doctrine  in  England,  (seep.  590)  «I[[?"If°o  ku- 
that  a  Peerage  with  us  was  not  indelible  in  the  blood,  but  could  be  de-  trie, 
mitted  and  relinquished.  Indeed,  the  same  thing  was  again  illustrated, 
as  will  be  seen  in  the  case  of  this  very  family.    The  interchange  of 
property  alluded  to,  was  that  of  the  Baorony  of  Ochiltrie  by  Lord  An- 
drew, for  his  of  Avcndale,  with  Sir  James  Hamilton  of  Finnart,  fol- 
lowed by  a  charter  of  confirmation,  the  2d  of  September  1634,  (Great 
Seal  Register)  naturally  inducing  thereafter  the  new  style  of  Ochiltrie 
on  his  part.  It  was  confidently  attempted,  in  the  Sutherland  case  (in  Objection  to 
l771),toredargue  the  subsistence  of  the  territorial  principle  then,  by*?""*®'!^  P""* 
the  assertion  that  Sir  James  Hamilton,  though  thus  again  the  acquirer  honours  further 
of  the  dignified  fief  of  Avendale,  did  not  in  consequence  become  a  noble-  refuted, 
man  by  that  title ;  with  what  foundation  may  appear,  when,  on  the 
other  hand,  I  have  discovered,  that  in  a  legal  transaction  about  1540,  he 
is  styled  "now  Lord  Avendale,"  (Act  and  Decree  Register  of  the 
Court  of  Session,)  and  that  he  elsewhere,  before  his  death,  is  described 
as  a  nobleman.    The  subsequent  disgrace  and  forfeiture  of  Sir  James, 
(so  famjliar  in  history),  with  the  qualified  restoration  only  of  his  ter- 
ritory, eventually  in  1643,  to  his  heir,  by  a  bargain  with  the  Regent 
Chastelherault,  may  account  for  the  future  withholding  of  the  title. 

*  See  pp.  631-2 — 640,  n.  and  previously  at  p.  7. 

'  It  had  then  become  the  constant  rule  to  specify  the  honours  besides 
the  lands,  in  illustration  of  a  repeated  remark. 
'  Great  Seal  Register.  *  See  p.  622,  et  seq. 

*  It  is  singular,  however,  that  the  Castlestewart  patent,  after  1619, 
remained  long  unperfected,  and  "  deteyned  from  the  seall,"  owing  to 


810  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Oebiltrie  honours  were  at  the  same  time  certainly  taken  by, 
and  generally  recognised  in  Sir  James,  the  grantee  in  1615, 
and  in  his  family.     The  Lord  ^^  Uchiltrie"  (the  same  «8 


Peculiarity  in  the  death  of    Francis  ^Edgworth,"  (direct  ancestor  of  that  gifted 
CMtleitewart     fomiiy,)  Clerk  of  the  "hamper"  in  Irehmd,  from  whom  it  came  to 
patent  in  16    .  ^^  executors,  and  only  after  the  death  of  the  patentee,  to  "  his  son 
and  heir,  Andrew,  the  second  Lord."    This  necessarily  elicited  a  letter 
of  Charles  I.  to  the  deputy  of  Ireland,  the  last  of  July  1632,  where,  on 
a  recital  of  the  facts,  the  merits  and  high  descent  of  the  family,  and 
that  no  prejudice  should  thereby  arise  to  their  precedence,  in  terms  of 
the  grant,^owing  to  intermediate  creations  of  other  peers, — ^he  orders 
that  officiary,  "  with  all  convenient  diligence,  to  append  the  seal  to  it," 
for  which  the  letter  was  to  be  a  "  sufficient  warrant."    There,  of  course 
had  been  a  previous  royal  signature.    This  ordinance,  (with  various 
important  documents,)  is  in  the  original  State  Paper  Register  of  Se- 
cretary Alexander,  first  Earl  of  Stirling,  in  the  Advocates'  Library ; 
and  such  royal  interposition  was  absolutely  called  for  in  the  circum- 
stances, as  I  have  shown  elsewhere,  (see  pp.  64-5,  et  seq,  with  what 
QuegtioQ  of  the  precedes.)      The  material    defect   in   question   was  not   otherwise 
male  repreten-  capable  of  being  remedied,  owing  to  the  predecease  of  the  patentee* 

taeion  of  the     rj^j^^  second  Lord  thereafter  took  his  seat  in  the  Irish  House  of  Lords. 
StewartSi  espe- 
cially as  affect-  His  family,  of  whom  the  Lords  Downs  are  cadets,  were  sprung  from  a 

ing  the  families  legitimated  son  of  the  princely  branch  of  the  Stewarts  of  Albany,  before 
CartelmUk^ *°^  *^®  middle  of  the  15th  century.  Touching  the  male  representation  of 
the  Stewarts,  the  late  Andrew  Stuart,  of  Torrens,  and  Castelmilk,  prov- 
ed that  the  distinguished  **  Sir  William  Stuart  of  Jed  worth,  knight,'* 
dead  in  1402,  male  ancestor  of  the  Earl  of  Galloway,  could  not  be,  bs 
maintained,  "  William  Stuart,  Escuyer'*  (Esquire,)  younger  brother  of 
Sir  John  Stuart  of  Damley,  who  both  fell  at  Orleans  in  1428-9.  I 
also  clenched  this  by  further  proof,  while  first  showing,  that  the  attempt 
of  that  writer  to  identify  the  mature  "  Sir  William  Stuart  of  Castel- 
milk, knight,^  in  1398,  his  predecessor,  with  this  young,  much  coveted 
"  Esquire,'* — ^having  such  an  ideal  progeny, — was  equally  unsuccessfuL 
See  communication  by  me,  to  Anderson's  Hist,  of  House  of  Hamilton, 
(Edin.  1825,)  p.  44.  et  seq.  n. ;  and  my  Reply  to  misstatements  of  Dr. 
Hamilton  of  Bardowie,  (Edin.  1828,)  pp.  28-4«  I  could  additionally 
disentangle  Jedworth  from  Damley,  by  cotemporary  evidence  from 
the  Exchequer  Rolls,  &c.  But  I  have  little  doubt  that  the  above  Sir 
William  Stuart,  of  Jedworth,  was  otherwise  a  male  descendant  of  Sir  John 
Unascertained  Stuart  of  Bonkil,  (younger  brother  of  James 5th.  High  Stewart  of  Scot- 
CaftelmUk***  °^land,  before  and  after  1300,)  whose  male  representation  is  now  identifi- 
ed with  the  male  chieftaincy  of  the  Stuarts,  through  want  of  nearer 
heirs ;  though  as  to  the  origin  of  the  Stuarts  of  Castelmilk,  now  extinct 
in  the  male  line,  it  is  not  easy  to  say,  they  being  rather  isolated,  in  the 


IN  SCOTTISH  PEERAGES,  &C.  811 

Ochiltrie)  especiaUy,  sat  in  Parliament  among  the  higher 
Barons,  the  7th  of  March  16 1?,  and  thereafter  in  the  same 
year.^  He  b  ranked,  conformably  to  the  old  precedence 
of  his  predecessors.  But  it  is  remarkable,  that  these  were  the 
only  sittings  under  the  reconveyance.  The  son  of  the  per- 
sonage in  question,  ^^  William  Master  of  Ochiltrie,"  pre- 
deceased him  in  1645 ;  ^  and  this  strangely  fluctuating  family, 
that  experienced  every  vicissitude,  the  former  being  a  noted 
adventurer  and  spendthrift,  who  at  length  supported  himself 
as  a  quack,  or  empiric,^  fell  into  the  utmost  poverty  and  ob- 
scurity, and  failed  in  the  male  line  in  1675,^  when  there  remain* 
ed  only  female  descendants,  ^'  meaoly  married."  ^  But  the 
Ochiltrie  honours,   after  being  long  dormant,  and  disused, 

abscuce  of  proper  evidence  to  attach  them  to  the  prominent  stems. 
Further,  "  John  Stuart "  is  legally  proved  "  of  Castelmilk  "  in  1409. 

»  The  17th,  and  28th  of  June.  Acts  of  Pari,  last  Edit.  vol.  IV.  pp. 
681,  624,  7. 

'  As  proved  by  his  confirmed  testament,  12th  May  1646,  Eldin. 
Test.  Raster. 

'  The  Lords  of  Session,  in  their  report  upon  the  Scottish  Peerage  in 
1740,  (see  Acts  of  Sed.  Edit.  1790,  p.  341.)  state  that  none ''  sate  in  Par- 
liament under  that  title,  (Lord  Ochiltrie,)  since  the  year  1617."  The 
same  title  is  yet  included  in  the  Roll  of  the  Parliaments  in  1670, 1672, 
and  1673,  (see  Acts  of  Pari,  last  Edit.  vol.  VIII.  Append,  pp.  1, 10, 26,) 
as  well  as  in  that  at  the  Union.  Scotstarvet  even  says,  that  he  sustained 
^'  his  family  "  by  the  medical  art,  whether  beneficial  or  not,  to  the 
lieges,  may  be  another  thing.    (Stagg.  State,  Edit.  1754,  p.  11.) 

*  There  were  promise  and  talents  in  the  last  male  descendant.  Lord 
William,  blighted  in  the  bud  by  his  dying  a  stripling  in  the  above 
year. 

'  Such,  like  a  scriptural  visitation,  was  the  marked  fate  of  the  pro- 
geny of  the  unprincipled  royal  minion  Arran,  and  of  his  infamous 
Countess,  (see  ut  &up.  pp.  631-2,  640,  &c.)  One  of  them,  Ann  Stewart, 
daughter  of  Lord  Jamas,  by  his  wife  Mary  Livingstone,  who  survived 
him,  and  died  in  1683,  figures  in  1676  as  the  humble  spouse  of  ''John 
Murdoch,  Apothecary^  Burgess  of  Edinbui^h,"  (Edin.  Test.  Register,) 
the  latter  probably  partner  or  assistant  of  the  noble  parent  in  his 
final  vocation, — ^in  whose  boutique  the  attachment  naturally  arose  be- 
tween Anne  and  Murdoch.  A  bizarre,  restless,  mischievous  impulse 
appears  to  have  prevailed  in  the  family,  for  which  the  above  nobleman, 
originally  an  ardent  spirit,  found  a  scMlative  in  the  recipe  of  a  cool  im- 
prisonment of  twenty  years,  owing  to  his  vapouring  charge  of  treason 
against  the  Marquis  of  Uamilton  in  1630,  so  known  in  history. 


813 


INQUIRY  INTO  THE  LAW  AND  PRACTICE 


in  1790-3. 


Rejected. 


Groundi   of 
rejeetioD. 


were  daimed,  by  reference  to  the  Lords,  (upon  a  petition 
naimby  the    to  the  crown,)  the  13th  of  April  1790,^  by  Andrew  Thomas 
J^Pheir-i^e  Stewart,  Lord  Castlestewart  in  Ireland,^— asserted  heir-male 
and  descendant  of  Andrew  Lord  Ochiltrie,  afterwards  Lord 
Castlestewart,  the  resigner  in  1615, — who  founded  upon  the 
charter  in  that  year.     From  his  shewing,  necessarily  as  colla- 
teral heir-male,  he  was  clearly,  by  virtue  of  the  Kirkcudbright 
decision  in  1772,^  the  heir  in  terms  of  the  latter.     But,  after 
considerable  discussion,  his  claim  was  dballowed,  the  6th  of 
June  1793,  (the  remarkable  day  when  several  other  Peerages 
were  either  lost  or  sustained,)^  upon  the  ground  of  the  charter, 
which  is  only  dated  at  Edinburgh,  not  having  been  duly  war- 
ranted by  the  crown,'  as  was  certainly  incumbent,  and  conse- 
quently effete.   The  Lords,  moreover,  it  is  transmitted,  were 
not  satisfied  with  the  evidence  of  the  pedigree,  although  it  had 
been  held,  by  the  Irish  House  of  Peers  in  1774,  to  instruct 
the  right  of  the  party  to  the  Irish  Barony,  noticed,  of  Castle- 
stewart, that  had  also  been  long  dormant,  and  which,  being 
limited  to  heirs-male  of  the  body,  turned  actually,  so  far,  upon 
the  same  hinge. 

It  must,  notwithstanding,  be  confessed,  that  the  Irish  pro- 
cedure in  Peerage  claims  was  occasionally  lax  and  question- 
able in  the  last  century,  even  more  so  than  that  of  the  British 
House  of  Peers.  The  resolution  of  the  latter,  in  the  Ochiltrie 
claim,  necessarily  involved — either,  that  the  second,  or  new 
Barony  of  Ochiltrie, — however  borne  and  recognised, — had 


*  Lords*  Journals. 

'  He  had  previously,  upon  the  calling  of  the  title  of  Lord  Ochiltrie, 
(that  continued  on  the  Union  Roll,)  at  the  Election  in  17G8,  claimed 
to  vote  accordingly ;  but  the  clerks  would  not  admit  his  right,  upon 
which  he  protested,  (see  Robertson's  Peerage  Proceedings,  pp.  343-4.) 
There  was  also  a  petition  to  the  Lords  by  certain  Scottish  Peers,  De- 
cember 1, 1790,  against  the  vote  tendered  by  the  claimant,  at  the  pre- 
vious remarkable  Election.  (Lords' Journals.)  The  noble  party  was 
afterwards  created  Earl  of  Castlestewart  in  Ireland,  and  was  father  of 
tlie  second  Earl,  &c. 

*  See  p.  622,  et  seq, 

*  Lords'  Journals.  The  words  are  general  and  in  accustomed  form, 
**  That  the  petitioner  has  not  made  out  his  claim  to  the  title,  &c.  of 
Lord  Ochiltrie."  •  See  p.  815,  n. 


IN  SCOTTISH  PEERAGES,  &C.  8 1 S 

never  been  properly  constituted ;  or  that  there  had  been  ano-  CoroiUriet  from 
ther  more  valid  grant  of  the  dignity, — though  not  now  disco-  ^  *^^^' 
verable, — the  terms  of  which  being,  of  course,  unknown,  it 
could  only,  according  to  the  arbitrary  Jiats  of  Lords  Mans- 
field and  Rosslyn,  descend  to  heirs-male  of  the  body,  and  was 
therefore'extinct,  the  claimant  being,  upon  his  admission,  but 
the  collateral  heir-male.  In  the  first  more  probable  and  na^ 
toral  alternative,  there  having  been  sittings,  as  instructed,  in 
1617,  it  will  thence  again  follow,  that  they,  with  us,  were  not 
indefeasible,  or  acted  in  the  conclusive  and  irrevocable  man- 
ner in  England,  according  to  Chancellor  Erskine's  but  fanciful 
and  rather  poetical  doctrine.^ 

What  may  be  accounted  singular  in  this  case,  is  a  letter  that  Remarkable 
was  adduced  by  the  crown,  and  afterwards  founded  upon  by  yl  in  i616,  in 
the  claimant,  by  James  VI.  to  the  Privy  Council,  the  27th  o^atrie.^^o^^^^ 
of  May  1615,  wherein,  upon  a  narrative  of  the  previous  facts,  tation,  foanded 
and   of  the  material  motive  that  instigated   Andrew   Lord  "^e  pwiies!* 
Ochiltrie,  he  commands  them,  after  the  resignation  by  the 
latter,  of  his  honours  and  lands,  to  receive  Sir  James  Stewart, 
the  resignee,  *^  in  his  {Lord  Andrew's)  place,  inabilling  him 
by  als  sufficient  a  warrant  as  can  be  gevin  in  such  thingis,"  to 
enjoy  all  the  honnouris,  dignities,"  &c.  of  the  '*  Lordschip  of 
Uchiltrie,"  for  which  *^  their  presentis  sail  be  a  sufficient  war- 
rant."   In  compliance  therewith,  the  Privy  Council  ordained 
the  Treasurer,  and  his   Commissioners,   to  "expeid"    Sir 
James's  '^  infeftment  and  patent "  accordingly, — *'  notwith" 
standing"  the  former  prohibition  (the  preceding  month  of 
March,)'  that  none  such  of  '^  honours  sould  be  past;  unies 
— signed  be   his    Majesties   oume  handJ'^     And   then   fol- 
lowed the  Ochiltrie  charter,  merely  dated  at  Edinburgh  the 
9th  of  June  1615,  &c.     It  might  be  thought,  though  in  an- 
other guise,  that  the  royal  power  and  authority  for  the  char- 
ter, had  been  thus  virtually,  though  circuitously,  adhibited  on 
the  occasion  ;  but  still  it  was  not  held  by  the  Lords  in  1793, 
to  conipensate  for  the  express  want  of  the  regular,  salutary 

'  See  p.  590, 

*  It  is  the  strict  and  peremptory  one,  through  another  letter  of  this 
monarch,  that  I  have  adduced  at  p.  257,  and  which  certainly  strikes  at 
the  subsequent  Ochiltrie  conveyance  in  the  same  year. 

•  Privy  Council  Register. 


814  INQUIRY  INfO  THE  LAW  AND  PEAOTICE 

form  last  referred  to,  that  had  been  so  lately  peremptorily  en- 
forced by  the  king  himself.  Neither  might  the  subsequent 
commands  of  the  prince  have  been  deemed  adequately,  and 
technically  obtempered  and  implemented,  in  terms  of  his  com- 
mands, generally  conceived, — he  having  there  still  in  view,  as 
was  natural,  the  approved  practice,  as  it  governed  at  the 
time,  which  exacted  his  superscription  to  the  grant,  here  omit- 
Extreine  strict-  ted.  This  evinces  the  extreme  strictness  and  rigour  of  the 
quence  of  the  law, — ^not  without  much  causc,  on  such  occasions,  and  gives 

men^^tn^odi-  P^^^^^  ^^^^^  ^  ^Y  renja^'ts  upon  the  state  of  the  Earldom  of 
iitrie  resoiuUon,  Leveu.^    Even  sittings  in  Parliament  in  the  Ochiltrie  instance, 
foroed^lif  the"''^y*^  recognitions,  public  writs  and  instruments,  and  thus 
passing  of  Peer-  royal  homologation,  it  might  be  argued,  of  the  style  and  dignity 
— as  can  be  proved — would  seem  not  to  have  cured  the  origi- 
nal radical  flaw,  in  the  only  discoverable  conveyance.   Indeed, 
mere  Scottish  "  Exchequer  charters,"  as  they  are  called — 
though  professing  to  run,  as  they  always  do,  in  the  king's 
name — like  that  in  question  in  1615 — without,  in  reality,  a 
royal  warrant  under  the  sign  manualf  are  dated  at  Edinburgh, 
and  never  at  the  royal  residence ;  which  last  occurrence  afone, 
e  canversOy  legally  induces  or  instructs  the  act     This  was  de- 
cided by  the  Lords  in  1812,  in  the  ease  of  the  charter  of  re- 
grant  of  the  Roxburgh  honours  and  lands  in  1 646.'    The  deci- 
sion of  Ochiltrie,  thus  countenanced  and  supported,  becomes 
The  latter  hence  here  an  important  rule  and  precedent,  and  has  accordingly  been 
mportant.        ^^  relied  on.^   After  all,  what  is  curious  enough,  the  only  cer- 

'  See  pp.  56,  e^  seq,  '  See  also  £rrol  case,  as  follows. 

•  In  the  Errol  case,  from  1796  to  1797,  a  charter  of  the  ComUatus  of 
Enrol,  the  4th  of  March  1674,  (Great  Seal  Register,)  not  constituting 
the  trtie  and  cardinal  title,  bnt,  in  reality,  inoperative,  was  founded  up- 
on by  the  noble  party,  whose  right  to  the  dignity  was  contested,  he 
also  taking  under  it, — ^before  the  fortunate  discovery  of  the  regulating  no- 
mination in  terms  of  the  valid  regrant  of  the  Earldom  of  Errol,  &c.  in 
1666,  (see  pp.  85, 768,  &c.)  But  to  the  former  it  was  replied,  that  being 
dated  "  not  at  the  residence  of  the  Sovereign,  hut  at  Edinburgh,  of  con- 
sequence, there  neither  was,  nor  could  be  a  warrant  for  the  grant,  under 
the  sign  manual."  Neither  could  honours  be  carried,  it  was  truly  af- 
firmed, **  foithout  the  interposition  of  the  Sovereign  himself,  testified  by 
his  actual  signature — nevertheless  (as  is  added)  there  are  many  instan- 
ces, and  this  of  Errol  is  one,  of  charters  purporting  to  convey  honours 
passing  the  seal  without  such  warrant,  (see  further  as  to  this,  p.  62,) 


IN  SCOTTISH  PEERAGES,  &C.  815 

tain  exception  mily  be  the  patent  of  the  original  Earldom  of  iioiated  case  of 
Roxburgh,  dated  the  18th  of  September  1616,  which,  whatever  ^^•^^jJJrin^ 
the  peculiar  cause,  bears  the  date  at  Edinburgh,^   and  toi6i6,  inapre. 
which  all  we  may  say  is,  that  one  swallow  does  not  make  a^*°"*^* 
summer,  or  that  exceptio  ftrmat^  &c.     The  curious  court 
intrigue  regarding  the  Ochiltrie  transaction,  in  1615,  preced- 
ing the  charter,  shewing  that  the  queen,  as  well  as  the  king, 
were  cognizant  thereto,  has  been  already  alluded  to.*     The  provious  non- 
non-assumption  and  non-claim  of  the  Ochiltrie,  from  1675  ^^^Snn^^h  ^- 
1768,  appears  not  to  have  constituted  a  material  exception,    oun. 

Archibald,  third  Lord  Napier, — his  baron v  being  only  pre-^**®®^^**®^*- 

__  1.1*,  1         11       M  %."  f  %.r        « /t.V.M         rony  of  Napier, 

Tiously  descendible  by  patent,  dated  the  4th  of  May  162/,  to  i7uo~i793. 
heirs-male  of  the  body,'  obtained,  upon  his  resignation  into 
the  king's  hands,  a  new  patent  or  regrant  of  the  same,  the  7th  The  reconttita- 
of  February  1677,  failing  heirs-male  of  the  body,  to  his  eldest  ^^||^*°J„^J,J; 
heir-female,  (none  of  which  heirs  he  ever  had);   << ^ttt^ctf^uoad the hon- 
deficientibus  heredibus  ejus  talHcB^  et  provisionis  contentis  in  culdlng  "them 
cartOy  et  in  tn^q/2ini6it^o  status,  et  terrarum  de  Napier  de«^*^**««*^^®*- 
data  7mo  Februarii  1667."  ^     He  had  also  at  the  time  resign- 
ed his  estates  and  honours,  tnoreovery  into  the  hands  of  the 
Barons  of  Exchequer,  upon  which  a  charter  of  regrant  fol- 
lowed, under  the  sign  manual,  of  the  same  date  with  the  above 
patent^  which  hut  intended,  through  the  clause  quoted,  to  re- 
fer to,  and  to  comprehend,  in  gremio^  the  further  limitation  or 
extension  of  the  succession  in  the  charter,  to  heirs-general,  in 
terms  of  which,  Francis  Lord  Napier  took  through  a  female ; 
— and  whose  right  to  vote  at  the  memorable  Election  in  1790 
being  objected  to,  upon  the  grounds  to  be  stated,  by  certain 


but  they  have  been  considered  as  inept.  This  was  expressly  laid  down 
bj  Lords  Hard  wick  and  Mansfield  in  deciding  the  case  of  Cassilis. 
The  claim  to  the  Ochiltrie  title  was  refected  upon  the  same  ground,  in 
the  last  Parliament ;  it  is  a  rule  not  now  to  be  shaken.'*  Printed  Infor- 
mation for  the  Lord  Lauderdale,  objector  in  the  Enrol  case. 

'  Original,  produced  at  the  litigation  for  the  Roxburgh  honours  and 
estates,  between  the  late  Duke  of  Roxburghe  and  General  Ker. 

'  See  pp.  83-4.  I  have  said  there,  that  the  conveyance  was  confirm- 
ed by  the  royal  regrant  (in  1615).  It  was  ostensibly,  but  obviously 
subject  to,  what  has  shewn. 

'  Great  Seal  Register.  «  lUd. 


818  INQUIRY  INTO  THE  LAW  AND  PRACTICE 


Eogliah  authorities,  and  in  the  Napier  discussioo,  reerived  af- 
Napier  com  ill  terwardd  full  corroboration  in  the  House  of  Lords,  inter  aiia^ 
In-o  T^than  ^  ^  noted  case  of  Roxburghe  in  1812,  where  a  reaignatioii 
that  of  Box-  of  the  Roxburgh  honours,  merely  as  ahove»  into  the  hands  of 
^^^  the  Barons  of  Exchequer,  followed  only  by  a  presumed  re- 

grant  under  the  sign  manual,*  hence  rendering  it  not  so 
strong  as  that  of  Napier, — was  found  to  be,  in  like  manner, 
unexceptionable,  to  draw  with  it  the  most  important  results, 
including  the  existing  descent,  not  only  of  the  Earldom,  but 
of  the  Dukedom,  and  of  all  the  honours  of  Roxbuigh.    The 
fact  of  the  resignation  into  the  king's  hands  bang,  alrteHjr, 
weightier  in  form,  (and  here  there  might  be  an  anak^ous 
question  to  the  weaker  one  conridered,  under  legitimation  per 
other  corioM   mhsequeM  moirimanium  *)  may,  not  however  legaOy,  affsct 
specialty.         ^^  prejudice  the  other ;  in  whose  case  there  might  again  be^ 
as  stated,  an  interceptkm  of  the  patent,  through  means  of  its 
own  prior  regrant,  &c.    Upon  the  whole,  the  precedent  of  Na» 
Napier  case  re-  P^^  ^  remarkable ;  for  I  am  not  aware  elsewhere,  of  such  two- 
markabie  by  the  fold  conveyances  of  bouours,  both  under  the  authority  of  the 
ance  of  Uie  bo-  crowu,  of  which,  whilo  there  was  a  clerical  error  m  the  one,  the 
''^"'  other,  in  its  tenour,  was  fiiirftless  and  correct.  The  noUe  party 

appears  to  have  wished  to  make  assurance  doubly  sure. 
Cafe  of  the        The  clwn  to  the  Earldom  of  Caithness,  before  the  Lords, 
cdth^  from  ^^  ^  ^^  ^^  February  1 790,  (upon  a  petition  to  the  crown,)  and 
1790  to  1793.  dedsion  the  4th  of  March  1793,'  together  with  the  obvious 
merits  of  the  question,  and  general  state  and  descent  of  that 
EiuMom,  have  been  already  alluded  to.^    His  right,  as  a  Peer, 
at  the  Election  in  1 790,  not  having  been  then  formally  in- 
structed, it  was  further  petitioned  against  by  certain  Peers, 
the  1st  of  December  1790.' 

such  resignation,  defiano^  withont  more,  in  the  interval,  denuded  the 
party,  in  favour  of  the  erown.    But  it  fa^e  r^-ffrantti. 

'  From  tiiediarter  of  regrant  being  dated  at  the  royal  rendenee^  the 
signature  being  lost 

'  See  pp.  620^  H  #07.  *  Lorda^  Journals. 

*    See  pp.  620-1,  and  from  006  to  620. 
Lyie  Mm  \m        '  Lordi^  Journals.    **  Walter  Lord  Lyie,"— Sir  Walter  Montgomery 
1799.  Canuingfaam,of  Conhill,  Baix>net,— the  22d  of  December  1790,  petition- 

ed the  Lords  against  the  refusal  of  the  Clerks  to  admit  his  votes  as 
*^  Lord  Lyle,"  at  the  previous  Eleetion  in  that  year ;  but  no  more  en- 


IK  SCOTTISH  PREBAGES,  &C.  819 

On  the  23d  of  May  1793,  it  was  resolved  by  the  House  of  Resolution  of 
Lords,  that  the  votes  of  the  Duke  of  Queensberry,  and  the  17*^,  „  |o 
Earl  of  Abercom,  that  had  been  objected  to,  at  the  same  noted  5®  ^^"|^«  ^f 
Election  in  1 790,  upon  the  ground  of  their  being  British  Peers,  aod  EvI  of 
created  since  the  Union,  «  ought  to  be  counted/'^  auTu^Mr 

The  claim  to  the  Earldom  of  Perth,  &c.  has  been  likewise  Peen. 
noticed.'     It  came  before  the  Lords,  upon  petition  to  the  ^^^  of  the 
crown,  the  12th  of  June  1792  ^  but  though  a  printed  case  was  Penh,  &c.  from 
given  in,  and  a  procedure  had,  upon  certain  writs,  after  seve-  ^^^'  '^  *^^' 
nd  postponements,  the  order  for  hearing  was  finally  dis- 
chaified  the  1 1th  of  April  1796,*  no  resolution  being  ever  come 
to ; — subsequent  to  which,  on  the  26th  of  October  1797,  the 
claimant,  James  Drummond  of  Perth,  accepted  a  British  Ba« 
nmy,  under  the  title  of  Lord  Perth,  &c.^ 

The  case  of  the  Earldom  of  Errol,  before  the  House  of^aseoftbu 
Lords,  upon  the  petition  of  Lord  Lauderdale,  the  19th  of  Oc-  ^i,'  f^^^noc 
tober  1796,^  with  the  subsequent  resolution,  on  the  23d  of  ^^^  ^797. 
May  1797,^  in  favour  of  the  then  holder,  has  been  repeatedly 
stated  and  adverted  to.* 

The  Earldom  of  Glencaim, — which  now  furnishes  the  next  Caw  of  the 
subject  of  inquiry — was  first  bestowed  by  James  II L  the  28th  Gien^!ini^  in 
of  May  1488,  upon  Alexander  Cunningham,  Lord  of  KU-17M  and  1797. 
maurs,  (another  old  title  in  his  family,  coeval  with  James  II. 
whose  limitations  are  unknown^);  and  that  the  former  was 
descendible  to  heirs-general,  may  be  concluded  by  the  accom-  _  .  .   . 

*«it        *i'x  «         iT^i  iA«    Origmal  consti- 

panymg  grant  of  the  lands  of  Drummond  and  Duchray,'^  m  tution  m  uos, 

sued,  though  he  eraved  to  be  heard  by  counflel.  (Lords'  Journals.)  He 
was  the  heir-general,  through  a  female,  of  the  old  Lords  Lyle,  of  tho 
same  surname,  who  have  been  notiocd  at  p.  370,  in  allusion  to  similar 
claims  by  a  predecessor,  in  1721,  and  1722. 

'  Lords'  Journals.    On  February  14, 1787,  tho  Lords,  however,  re-  Previous     re- 
solved  that  the  Earl  of  Abeiwm,  and  Uie  Duke,  for  the  like  reason,  had  "^^^^^^"^^^^ 
ocotsed  to  be  two  of  the  representative  Peers,  f  Ibid. J    Such  similar  ti^m. 
vsicancies  incurred,  have  not  latterly  been  expeditiously  filled  up. 

'  See  p.  775,  n.  and  wlmt  precedes,  ibid,  *  Lords'  Journals. 

*  Ibid.         *  Ibid.    He  was  introduced  as  such,  the  0th  of  Jan.  1708. 

*  Ibid.  »  md.  »  See  pp.  85,  2G0-1,  7C8-0,  770,  &c. 

*  It  was  then  also  carried. 

'*  Formerly  bclouging  to  Lord  Drummond,  thou  ho&tilo  to  the  king, 
and  to  another,  as  to  which  afterwards. 


820  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

(Bot  singular,  the  charter  of  constitution,  of  the  above  date, — ^*  in  augmeii' 
^cf^^^l^^^ji^tationem  buI  vitalis  redditus,  et  ad  suatentaiionetn  sui  status, 
general  et  hoHoHsj"  to  the  party,  "et  heredibus  «iw."*     But  the 

Earldom  necessarily  sunk  for  the  time,  by  the  act  of  James 
Neeetnriiy  re-  IV.  thereafter,  the  17th  of  October  1488,  c.  19,  rescinding  all 
Act  in  iheMune heritable  grants  and  "creatioune  of  new  digniteis,"  conferred 
year.  ^yy  his  then  deceased   father  James   III.  since  the  2d  of 

February  1487,'  comprising  of  course  that  of  Glencaim.  In 
consequence  of  this,  Robert,  son  and  heir  of  the  grantee,  who 
had  fallen  at  Bannockburn,  on  the  1 2th  of  June  1488,  by  the 
side  of  the  latter,  then  also  slain,  (which  formed  the  actual  cause 
of  rescission,)  in  the  singular  and  unnatural  contest  between 
the  two  monarchs,  was  reduced  to  the  previous  family  dignity 
ConttituUon,  of  Lord  Kilmaurs.  Cuthbert,  his  son  and  heir,  agun,  also 
UonTe^aL.  originally  figured  exclusively  under  such  title ;  but,  on  the  1 8th 
to  hein  general,  of  November  1505,  he  is  entered  in  the  Rolls  of  Parliament 
as  '*  Earl  of  Glencarne  ;"^  and  there  is  a  charter,  the  24th  of 
July  151 1,  of  the  Comitatua  and  Baronia  of  Glencairn,  afford* 
ing  the  first  legal  notice  of  the  ComitatuSy  (an  epithet,  as  re- 
peatedly illustrated,  then  and  considerably  afterwards,  carry- 
ing the  dignity) — to  himself  in  liferent,  and  to  William  his  son 
(subsequently  Earl)  in  fee,  ''  et  heredibus  suisJ'  ^  The  EarU 
dom  had  hence  now  been  validly,  and  heritably  constituted — 
as  to  the  precise  date,  and  nature  of  constitution,  more  will 
transpire.  Long  after,  at  the  much  later  period  of  the  17th 
century,  (before  the  middle),  there  are  upon  record,  settle* 
ments  of  the  lands  to  heirs-male.  On  the  21st  of  July  1637) 
Charles  I.  confirmed  the  original  grant  of  the  dignity  of  Glen- 

'  Original,  produced  in  the  Glencairn  claim.  Lord  Rosslyn,  in  liis 
antipathy  to  female  descent,  maintains  it,  with  his  usual  want  of  know- 
ledge and  discrimination,  to  bo  ^  of  a  singular  nature.'*  But  this  by  no 
means  holds.  In  the  valid  constitution  of  the  Barony  of  Hamilton  in 
1445,  (see  Acts  of  Pari,  last  Edit.  vol.  II.  p.  59,}  the  honour  is  in  the 
same  way  conferred  without  express  words  of  limitation,  and  thus  infer- 
entially  also,  through  an  attendant  grant  of  lands,  to  heirs-general. 
Nay,  the  concession  for  support  of  the  dignity,  is  even,  notoriously,  in  con- 
formity to  various  valid  English  grants  of  honours. 

'  The  year  then  began  on  the  25th  of  March.  Acts  of  Pari,  ut  sup, 
p.  211. 

»  llrid.  p.  251).  *  Great  Seal  Register. 


IN  SCOTTISH  PEERAGES,  &C.  821 

cairn  in   1488,  in  favour  of  William  Earl  of  Glencatrn,  the  inept  conflrma- 
heir-general,  as  well  as  direct  heir-male,  and  of  his  "  heirs  and  j^  of**tho  orfgl! 
successors ;"'  but  the  confirmation  being  strangely  qualified^  pal  constitution 
and  only  **  secundum  validitatem"  oi  the  Jbrmery  thus  added 
nothing  more  than  it  imported,  and  purely  left  things  in  their 
pristine  condition.     Down  to  1670,  the  descent  had  always 
been  to  the  heirs  of  line,  who  were  at  the  same  time  the  heirs- 
male  ;  but  the  representation  split  in  that  year,  John,  styled 
Earl  of  Glencairn,  the  heir-male  exclusively,  succeeding^  in  Descent  there- 
prejudice  of  Lady  Margaret  his  niece,  the  heir-general,  only 
child  of  Alexander,  undoubted  Earl,  his  eldest  brother.     In 
1796,  John,  also  styled  Earl  of  Glencairn,  great-grandson 
and  last  heir-male  of  the  preceding  Earl  John,  died  without  cium  by  Sir 
issue,  when  the  honours  were  claimed,  bv  reference  to  the  ^^^  F^^^ 
Lords,  upon  petition  to  the  crown,  by  Sir  Adam  Fergusson  of  general,    in 
Kilkerran,  Baronet, — ^the  great-grandson  and  heir  of  Lady  '^^* 
Margaret,  in  the  character  of  heir-general ;  who  held  the  in-> 
tervening  assumption  since  1670,  by  the  heir-male,  an  usurps 
tion;  but  was  opposed,  upon  petition  to  the  Lords^  (only)  by  opposed  by  Sir 
Sir  Walter  Montgomery  Cunningham  of  Corshill,  Baronet,  WaherM.Cun- 
in  character  of  heir-male,'  in  virtue  of  his  asserted  descent  hl^f-mUe. 
from  Andrew,  younger  son  of  Earl  William,  already  mention- 
ed,' son  and  heir  of  Earl  Cuthbert,  who  sat  in  Parliament  in 
1505.*     The  date  of  the  petition  is  the  27th  of  April  1797.* 

My  remarks  as  to  the  Earldoms  of  Cassilis,  Sutherland,  inductions  u  to 
Moray,  &c.  may  here  also  nearly  apply,*'  and  giving  effect  to  |J®  ^nr^^Va^ 
the  favour  with  us^  towards  heirs-general,  as  well  as  to  the  honours. 
import  of  the  charter  of  the  Comitatus  in   1511,  expressly 
limited  to  them — of  far  greater  weight  and  importance  certain- 
ly, than  the  mere  settlements  of  the  lands,  long  after,  in  the 
i7th  century,  at  the  decline  and  fall  of  the  territorial  princi- 
ple,— upon  these,  and  other  grounds,  I  say,  already,  and  to 
be  further  shewn,  we  may  naturally,  disregarding  the  circum- 

•  Ibid. 

■  He  was  likewise  the  heir-general  of  the  old  Lords  Lyle  ;  see  p.  818, 
n.  6.  "  See  preceding  page. 

•  Lords'  Journals.  The  above  facts  also,  and  the  other  requisite 
particulars,  are  from  the  Informations,  papers,  &c.  in  the  case,  besides 
authorities  specially  referred  to. 

•  Ibid.  He  was  allowed  too,  to  be  heard.    •  See  pp.  660,  595-6,  784-5, 


822  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Stance  last  noticed,  and  the  intrusion  of  the  heir-male  from 
the  comparatively  modem  period  in  1670,  in  the  absence  of 
all  opposite  relevant  proof,  incline  to  Sir  Adam  Fergusson, 
the  heir  of  line. 
Rpjettiton  of  the     But  Lord  Rosslyn,  the  Chancellor  at  the  time,  in  his  deciding 
h^rT  eneraUn  ^P®®^^  '^  ^^  ^*se,  the  I3th  of  July  1797,  followed  by  the  reso- 
1797.  lution  of  the  Lords,  in  accordance,  next  day,*  at  once  discard- 

ed his  claim ; — siding,  as  usual,  with  the  darling  heir-male,  who, 
however,  did  not  proceed  further.   And  why? — It  will  scarcely 
be  credited,  merely — and  rather  compendiously  indeed — upon 
Prepoiteroaa    the  Strength  of  his  old  Hudibrastic  expedient,^  thus  ventilated 
^fio"  of^  Lord  ^  nauseam,  and  which  I  will  not  fatigue  my  readers  with 
RoMiyn  for  the  again  exposiug,^  because  the  honour,  at  the  date  to  be  men- 
theiMfii«iiiortB  tioned,  had  been  constituted  exclusively  by  ^^beUing,**  and 
ri4?wh^"  he "  ^^  therefore  only  descendible  to  heirs-male  of  the  body  I  * 
improperiy^oBiy  His  sole  authority  for  the  belting  is  the  intimation,  in  an  ac- 
^^^"^  ^   ^^'   count  by  one  Young,  a  subordinate  English  herald,  (from  a 
printed  compilation  in  1770,)  of  the  marriage  of  Margaret  of 
England  witii  James  IV.  of  Scotland  in  1503,  that,  on  the  13th 
of  August  of  that  year,  Cuthbert  Lord  Kilmaurs  was  belted, 
and  proclaimed  by  the  heralds,  ^*  Conte  de  Gtencame,  Lord 
de  Kylmarres,  Baron,  Banerett,  and  Lord  of  Parlement."^ 
This  was  obviously  but  historical  testimony  at  most,  none 
strictly  legal  being  adduced  of  the  fact.    But  pray,  Lord  Ross- 
lyn, we  may  next  ask,  have  you  fairly  given  all  that  even  thb 
Young,  your  favourite  authority,  and  sheet  anchor,  has  de- 
tailed of  the  matter  ?     You  certainly  have  not ;  for  this  very 
individual,  Balaamlike,  to  your  manifest  exposure,  and  refu- 
tation of  your  conceit,  not  only  transmits  the  usual,  though 

^  Lord£^  Journals.      '  See  p.  700,  n.      *  See  pp.  680-1-2,  et  wq.  &c. 

*  I  quote  here,  and  throughout,  from  a  full  and  properly  vouched  copy 
of  the  Chancsellor's  speech,  in  the  Charter-chest  of  the  claimant.  Hb 
Lordship  states,  **  Accidentally ''  Young's  testimony  as  to  the  belting 
^  comes  to  our  aid  in  this  difficulty,"— of  his  own  conjuring ; — ^he  de- 
cides upon  the  creation  ^*  by  belting,"  and  that  thence,  the  honours  by 
**  such  mode  of  creation," — without  any  written  grant  directly,  or  in- 
directly,— ^which  he  here  wholly  repudiates, — ^went  to  heirs-male.  For 
his  concurrent  dicta  as  to  heUing^  likewise,  in  the  Spynie  case,  see  p.  681, 
note;  also  in  the  continuation,  next  page. 

*  Leland's  Collectanea,  Edit.  1770,  vol.  IV.  pp.  299, 300. 


IN  SCOTTISH  PEERAGES,  &C.  83S 

neutral  accessory  of  "  belting  "  to  the  question,  which  you, 
however,  confine  yourself  to,  and  so  much  exaggerate,  for  your 
particular  purpose — ^namely,  that  James  IV.  <<gyrdled  "  the 
Earl  **  with  the  noerd  (sword)  abouffe  (hu)  schoulder  ;'*— 
tel,  moreover^  that  he  incontinently,  ^*  gaffe"  him,^--^of  course 
seripio* — his  ^^Lordschip"  that  is,  the  ^* dominium**  or  lordly  ConeiusioBftoin 
fief  of  Glencaim,— which  was  appUed  to  an  Earldom,  as  well  ;^J"J^  ^^j;^*' 
as  to  a  Barony,'yiir/A€r  explicitly  stated  by  the  former  to  be  do-  ^  r^ds  the 
seendible  to  him  and  to  bis  ^^heiresJ*^  Nor  can  it  be  less  doubt-  tUtut^^or  re- 
fill that  it  was  coupled  with  the  honour.'  Here,  then,  you  have  ^^i<a<>on  » 
chosen — only  as  we  can  gather  with  the  above  view — extra- 


'  The  entire  words  are,  ^mnd  gaffe,"  &e. 

*  The  era  indeed  liad  long  expired, — ^if  it  ever  oceurrod,  with  ns,— 
when  heritable  sabjeets  were  exclusively  bestowed,  and  conveyed  by  a 
mere  symbolical  fonn,  or  act,  as  elsewhere,  in  pimeyal  times,  anterior 
to  writs,  by  fixing  a  dagger  at  an  altar,  &e. 

*  Thus,  the  regulating  charter  of  the  Earldom  of  Lennox,  November 
9, 1902,  carries  the  <*  Comitatum  de  Levenax,  et  Dotmnium**  and  that 
of  the  Earldom  of  Mcmiy  which  has  been  rrferred  to,  the  1st  of  June 
1566,  (see  pp.  782*4.)  the  "^DemitiMttfii,  et  Comitatum  de  Murray." 
(Great  Seal  Register,  and  Acts  of  Pari,  last  Edit  yoI.  III.  pp.  634,  et 
•eq.)  In  the  last  instance,  the  ^*  Dominium^*  or  Lordship,  even  precedes 
the  Coimta/um,  of  which  there  ue  also  other  examples.  Glencaim 
originally  was  a  BtunmHti. 

«  Ihid.  p.  300.    This  will  he  immediately  further  snpporfod. 

*  Sueh  gtneral  descent,  (as  to  which,  and  (ho  latter  foots  in  the  text, 
the  Chancellor  is  entirely  silent,)  would  even  follow,  in  the  circum- 

stanees,  by  his  Lordship's  admission  elsewhera^  m  his  deciding  Glencaim  i^^^  RowKn** 
q)eech,  that  the  simple  accompanying  grant  of  the  new  lands  to  ^  keir^*  coocarrent  in- 
in  the  Glencaim  charter  of  constitution  in  1488,  (see  pp.  819-20.)  raised  terprouiion  of 
an  argument,  of  **  considenble  force,**  in  behalf  i^A^on^etpomding  WmU  ^'\^^'*'^^''^ 
tation  of  the  konmurt  there,  thoqgh  not  q»ecified  as  to  them.    Nay,  he 
further  says,  that  admitting  ^  the  Paient  in  1488,  (the  said  dkarfer,) 
we  muH  take  the  limitation  (of  the  dignity)  from  the  construction  of 
that  instrament,'' and  that  it  was  not  ^confined*'  to  the  grantee. 
The  conveyance  in  IMd,  of  the  old  Cunily  lordship  or  domtnium  (of 
Glencaim)  may  make  tho  present  case  stronger,  as  direetfy  turning 
upon  it.     The  intimation,  by  James  VI.,  in  the  preamhle  of  the  con- 
stitution of  the  Dukedom  of  Lennox  in  1681,  of  his  desire  for  the  stand- 
ing of  the  House  of  Lennox  in  his  maie  cousins,  though  not  directly 
bearing  upon  the  subsequent  broad  constructive  limitation  there,  may 
possibly  be  thought  antecedently  to  control  it,  and  qualify  what  I  hare 
said  at  pp.  99-100, 176-7. 


824  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

ordinarily  enough,  to  omit  the  cardinal  part  of  your  own  evi- 
dence,  at  the  same  time  refuting  your  hallucination,  based  up- 
on the  visionary  effect  of  abstrtzct  belting, — which  here,  for- 
sooth, only  obtained, — while  it  pointedly  confirms  what  is  pal- 
pable, however  gainsaid  by  you,  that  there  was  always,  inde- 
pendently, on  such  occasions — a  specific  heritable  grant  in  uni- 
son, including  lands,  or  the  exalted  or  dignified  fief!'  I 
*  submit,  if  Lord  Rosslyn's  mode  of  argument,  such  as  has  been 
'  exposed,  before  a  tribunal,  naturally  not  the  deepest  Scottish 

I  legal  antiquaries,  and  hence  the  more  likely  to  be  risked  with- 

out detection,  could  be  credibly  expected  of  a  Lord  Chancel- 
lor of  England ;  and  does  not  savour  rather,  I  am  constrained 
to  say,  of  the  lower,  and  more  subordinate  walks  of  the  profes- 
sion. 
Taken  with  iho     Such  specific  heritable  grant,  therefore,  as  now  shewn,  ob- 
other  circum-  tained  also  in  the  present  instance  to  "  heirs ;"  and,  coupling  the 
ceived'descent  cif cumstance  with  the  concurrent  limitation  in  the  first  subse- 
•uu  to  heiri-  quent  royal  conveyance,  and  erection  upon  record,  of  the 

general  m  the     *         .  -  ^,  ,       .,»,,•       «  11       1.         -i 

conveyance  in    Comttatus  of  Gleucaim  in  1511,  that  became  the  leading  Utle, 
1603.  — ^  y^Q  jjj^yg  ugj^ij  ^Q  consider, — expressly  in  favour  of  Earl 

Cuthbert,  and  to  his  son,  *^ et  heredibus  suis^^  we  may  rele- 
vantly conclude  that  such  actually,  likewise,  was  the  descent 
in  the  grant  in  1503,  equally  relating  to  Glencaim.  And 
this  descent  aud  limitation  was  most  natural,  being  besides  in 
exact  unison  with  the  original  Glencairn  constitution  in  1488, 

^  See,  inter  aUay  tho  conBtitntion  in  1488,  of  tho  Comitatua  of  Both- 
well,  pp.  684-5,  also  pp.  685-6,  et  $eq. 

*  This  charter  is  already  partly  alluded  to  at  p.  820.  It  had  heen  dis- 
covered, as  we  are  informed,  by  the  quequidem^  that  the  greater  part  of 
M  t  ri  1  f  t    ^^  lands,  or  fief  of  Glencairn,  had  legally  escheated  to  the  crown  by 
and  con9t<lcra-  recognition ;  and  hence,  to  obviate  this  vital  flaw,  and  *'  forfeiture,"  as 
tion  omitted  by  it  is  termed,  the  indispensable  necessity  for  this  noffo-damus  and  erec- 
l.ord  Ros«lyn.    ^^^^  ^^y  the  charter,  of  the  Ckmitatus^  &c  which  formed  a  new  and  ex- 
clusive title— of  course,  by  the  practice,  including  the  honour, — even  al- 
though there  had  been  a  previous  constitution  of  the  same,  with  which, 
however,  the  latter  may  presumptively  correspond,  instead  of  being,  ac- 
cording to  Lord  Rosslyn's  conceit,  arbitrarily  only  to  heirs-male  of  the 
body.     To  give  the  charter  greater  effect,  and  as  was  not  uncommon 
in  such  emergencies,  it  proceeds  upon  a  resignation.    But  these  fiicts, 
rather  material,  it  is  thought,  are  again  wholly  overlooked,  or  suppress- 
ed, by  Lord  Rosslyu. 


IN  SCOTTISH  PEERAGES,  &C.  825 

in  favour  of  Alexander  the  disponee,  and  his  ^^ heirs"  or  heirs- 
general,  which  might  serve  as  a  model  and  pattern ;  especially 
as  James  IV.  might  have  justly  felt  some  compunction  and 
regard,  operating  to  that  efiPect,  towards  the  latter,  the  loyal 
and  devoted  adherent  of  his  deceased  father,  his  unnatural  and 
baneful  contest  with  whom,  the  occasion  of  his  lamentable 
death,  he,  in  the  sequel,  so  deeply  repented  of,  and  deplored.  ^ 
It  is  well  known,  that,  in  expiation,  he  subjected  himself  to  a 
grievious  act  of  penance  ;  and  the  same  feeling  of  contrition 
and  remorse  might  have  induced  an  honourable  tribute  to  the 
memory  of  the  friend  of  the  ill-fated  iponarch  in  question, 
who  fell  with  him  in  the  same  field, — ^but,  slenderly  indeed,  in 
a  retrospective  shape,  either  by  a  final  restoration  of  the 
dignity,  or  corresponding  corroboration  of  it,  (inter  aliuy)  in 
1 503,  upon  a  joyous  occasion,  to  his  heir.  This,  at  least,  James 
IV.  certainly  then  did  in  a  great  degree,  and  the  pious  mo- 
tive might  have  been  wholly  followed  out.  Though  somewhat 
capricious  likewise,  in  the  destinations  of  his  previous  grants. 
Earl  Cuthbert,  the  heir  in  1503  and  1511,  had  various,  after- 
wards, to  his  heirs-genera/. ' 

Sir  Adam  Fergusson,  the  Glencairn  claimant,  a  celebrated 
jurisconsult,  modestly  admitted,  towards  the  conclusion  of  the 
case  in  1797,  that  although  founded  upon,  he  had  latterly 
"  giv«n  up  hopes  of  the  Patent  (as  it  was  called)  in  1488,  be- 
ing supported."*     But  I  have,  on  the  other  hand,  discovered 
a  piece  of  evidence,  that  possibly  may  aid  or  realize  my  New  evidonce 
antecedent  induction  even  of  an  actual  restoration  of  the  J^^'°^f °,'^ji  *„ 
Earldom,  ex  terminis,  by  means,  apparently,  of  the  no  longer  or  confinnaUon 
existing  AeritoMe  grant  in  1503 — suppressed  hy  Lord  Rosslyn,  Gien^irncon- 
and,  in  fact,  confirmed  in  1511  to  Earl  Cuthbert  and  his  heirs.  "^^^"^^^°    '° 

1488    lubss* 

Previous  to  the  15th  of  January  1515,  Earl  Cuthbert  ob-quentiy,— as 
taiued  a  brief  from  Chancery,  directed  to  the  Sheriff  of  Dum-  "^  ^J^^"^""" 
barton,  to  be  served  heir  in  the  lands  of  Drummond  and 
Duchray,  expressly  *'  be  ye  decis  of  umquhile  Alexandre  erlb 
of  Glencairnej  his  grantschir"  the  material  party,  who  had 
been  stript  of  the  dignity  first  granted  to  him  in  1488, — upon 

'  Proved  by  the  Great  Seal  Register. 

•  Proved  by  his  autograph  statement,  dated  July  13,  1797,  after 
the  decision,  in  the  Family,  or  Glencairn  Charter-chest. 


826  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

The  Dobie  dii-  wbich  a  service,  accordingly,  past,  of  that  date.  It  came  sub- 
ruTto*  hlr^  Bequently  to  be  reduced  by  the  Session,  the  13th  of  January 
been  Earl  tub-  1616,  at  the  instance  of  the  king  and  Lord  Drummond,  &c. 
rawSndiiiff^  A^  owing  to  the  alleged  execution  of  the  brief  by  incompetent 
tnenUooed  io  officiarics,  the  orroncous  description  of  the  lands  as  in  the 
e  Mine  year,  ^p^^^y  ^f  Dumbarton,  with  the  faulty   procedure  there, 

instead  of  Stirlingshire,  their  asserted  true  locality,  and  other 
objections  in  form ;  and  because  the  jury  had  found  <*  Erie  " 
Alexander  to  be  the  last  vassal  therein,  virhen  the  same  had 
belonged,  in  their  respective  capacities,  to  the  crown,  to  Lord 
Drummond,  and  to  %nother  individual.^  The  judgment,  how- 
ever, was  not  final,  it  being,  inter  aliay  qualified  the  same  day 
by  the  admission  of  the  pursuers,  and  the  Court,  that,  not- 
withstanding thereof,  John  Earl  of  Lennox,  Sheriff  Principal 
of  Dumbarton,  and  the  inquest,  should  be  entitled  to  the  l^al 
pleas  and  exceptions  to  be  urged  in  their  behalf ;  while  even« 
tually,  on  the  14th  of  January  (1516),  it  was  contended  for  the 
Earls  of  Glencairn  and  Lennox,  the  latter  an  obvious  party, 
— that  the  lands  did  then  lie  within  the  County  of  Dumbar- 
ton, and  that  the  acting  Sheriffs,  the  Deputies  of  Lennox,  were 
duly  competent,  for  which  a  term  of  probation  is  sought. 
Further  still,  on  the  Court  intimating,  by  an  *^  Interlocutor,'' 
they  would  *^proceid  (<mly)  in  the  said  matter," — shewing  it 
was  still  unconcluded,  the  procurators  of  the  parties  protested 
that  because  the  crown  did  not  appear  to  pursue,  they  **  myt 
haif  yer  just  d^fisngiomn,*'  (d^fisnces,)  and  that  there  had  been 
no  proof  led  of  the  lands  of  Drummond  and  Duchray  having 
<<  pertenit  to  ye  kingis  grace,  or  to  ye  said  lord  Drummond." 
— In  this  strange,  contradictory  state  of  things,  thus  in  a 
manner  but  inchoate,  the  action,  which  was  not  disposed  of, 
appears  to  have  remained.* 

The  title,  in  the  person  of  Earl  Cuthbert,  to  the  above 
lands  being,  as  already  shewn,  in  virtue  of  the  Glencairn 

'  There  is,  however,  no  mention  of  the  reecisBion  of  the  charter  1488, 
nor  is  it  founded  upon. 

'  These  particulars  are  derived  from  the  Act  and  Decree  Raster  of 
the  Supreme  Civil  Court  for  the  time,  where  I  have  been  unable  to 
discover  more.  There  may  have  been  a  subsequent  compromise  of  the 
parties  in  the  process. 


IN  SCOTTISH  PEICUAGKS,  &c.  827 

charter  or  ^'patent"  (as  il  was  called)  iu  1488»  to  Alexander 
bis  grandfather,  by  which  they  were  bestowed' — if  good — as  Relative 
was  in  effect  maintained  in  the  proceedings,  necessarily  at  the^™*'^* 
same  time  supported  the  corresponding  grant,  tfemel  et  simul^ 
of  the  honours  to  heirs-general.     And  it  would  seem  singular, 
e  camfersoy  on  the  still  subsisting  invalidity  of  the  charter, 
that  the  previous  point  should  have  been  ever  a  subject  of 
discussion*     But,  be  this  as  it  may,  it  is  incontestable,  that 
during  the  whole  stage  of  the  litigation,  notwithstanding  the 
other  objections  mooted,  Alexander,  the  above  noble  progeni- 
tor, in  1488,  is  repetUedly  and  uniformly  designated,  without  a 
vestige  of  cavil,  both  by  the  crown,  the  court,  nay  even  by  the 
subject  pursuers,  a«  <^  Erie  of  Glencame,"  as  well  as  '^  Lord 
of  Kilmaurs."'    The  obvious  corollary  from  which  appears  to 
be  a  clear  admission  of  his  right  to  the  Earldom,  because, 
again,  if  the  act  rescissory  in  1488,  recalling  the  dignity,  so 
hr,  had  stood,  this,  in  conformity  even  to  the  ordinary  law,  and 
still  more  rigorous  observances  of  the  time,  had  not  obtained; 
and  consequently,  as  already  observed,  there  must  have  been — 
to  explain  the  incident  at  an  epoch  when  the  facts  were  known, 
and  could  not-be  miBtaken,-*some  later  ret  interventus^chang* 
ing  the  aspect  of  things,  in  the  shape  of  a  corroboration,  and 
in  fact,  restoration  of  the  Earldom, — of  course,  retrospective- 
ly benefitmg  E^l  Alexander,  as  we  may  conclude,  through 
the  grant  in  1503;  to  which  even  the  Sovereign's  act  then  was 
abme  competent.  The  disability,  in  the  way  of  such  restoration, 
might  thu$  be  removed,  afortioriy  from  the  relevancy  of  the 
same  abstract  «cure,  as  has  been  shewn,  to  that,  in  conse* 
quence  of  adjudged  attainder,  the  most  serious  and  usually 
most  indefeasible  infliction  of  the  kind,'  even  supposing  there 

'  See  pp.  819-20. 

*  The  oourtf  espeeially  in  their  finding,  style  bim  ^  Alexander  Erie 
of  glencame,  Lord  of  Kilmaars ;''  and  the  brief,  by  the  puntien,  is  even 
iinexoeptionably  stated  tohavebeento  him,  mider  the  first  of  these  titles. 

*  See  pp.  752-3  (and  previously,)  758—764.  Yet  Lord  Rosslyn  de- 
uies,  in  his  speech,  that  ^*  the  King^'  subsequently  ^  oonld  give  effect 
to  the  former  patent,  (the  GleneaimeAiiW«r  in  1488,)  which  had  been 
done  away  by  Act  of  Parliament."  He  says  it  **  was  impossible ; " 
but  we  have  seen,  in  the  instance  of  Moray,  (see  p.  787),  and  else- 
where^ the  nature  of  his  Lordship's  tnipofitM/ilJet,  not  such,  certainly,  as 


828  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

were  no  Parliamentary  rescission,  the  converse  of  which  might 

here  be  presumed,  owing  to  the  imperfection  of  the  relative 

Records.     And  this  independently,  as  obvious,  of  the  king — 

in  1503,  being  capable  of  bestowing  another  grant  of  the  hon* 

ours,  in  terms  of  the  former  one. 

The  matter  in       The  curious  circumstauce  in  question,  therefore,  should 

wTwnrof  fur-  ^^^^^  further  inquiry,  and  it  behoved  me  to  notice  it.»     The 

ther  research  preceding  evidence  is  stronger  too,  than  might  perhaps  at 

MpedaHy  u  the  ^^^^  Seem,  and  may  the  mdre  warrant  what  is  thus  maintained, 

inference  drawn  when  it  is  in  proof,  that  ou  the  4th  of  November  1488,  immedi- 

when  contrasted  ately  subsequent  to  the  important  rescinding  Act  noticed,  Ro- 

Uiti* *^^'T7.' ^^^^  ^^®  ®^°  *"^  ^^*^  ^^  *^®  unfortunate  Elarl  Alexander^  (and 
father  of  Earl  Cuthbert),  legally  maiie  up  certain  titles  to  the 
former  J  likewise  by  service — in  virtue  of  a  special  salving  act 
in  the  same  year  for  the  purpose,^  but  not  to  him  in  the  above 
character,  under  the  description  of  an  Earl^  but  merely  by  tliat, 
according  to  his prior^  unrecalled  designation,  of  **  Alexander 
Lord  Kilmaures"^  This  was  confessedly  his  just,  exclusive 
style  at  the  time^  and  AckI  been  always,  under  the  same  cir- 
cumstances. There  is  besides,  later  down,  on  the  20th  of  Ja- 
nuary 1493,  a  "  declaration  "  by  James  I V.  ♦'  that  the  Parlia- 
ment made  no  further  inquisition,  (as  respected  the  foregoing 
nobleman,  but  in  what  particular  does  not  appear),  and  so  was 
sufficient  to  purge"  him.  But  here,  he  is  still  again  only  en- 
titled <<  Alexander  Lord  Kilmauresy"*  and  certainly  not  as  in 

the  Traveller  in  Rhodes  (in  the  fable)  had  to  realize.    On  the  contrary^ 
they  are  usually  very  easily  overleaped, 

*  No  satisfactory  light  can  be  thrown  upon  the  sul^ect  by  the  order, 
or  noblemen  ranking  at  the  time,  in  the  Bolls  of  Parliament.  Lord  Ross- 
lyn  observed  in  his  ^>eech,  that  the  '<  marking  of  the  Peers  **  there  **  has 
little  regard  to  precedency ;"  and  he  supposes  that ''  their  names  were 
taken  down  as  they  came  in,  without  regard  to  that  point." 

'  C.  7.  on  the  17th  of  October  1488,  (Acts  of  Pari,  last  Edit.  vol.  II.  pp. 
207-8.)  It  enables  the  heirs  of  those,  who,  like  Earl  Alexander,  had  fall- 
en in  battle,  against  the  existing  Sovereign  at  Bannockbum,  to  make  up 
titles  to  the  former,  their  predeoessoi^  under  the  warran  t  of  a  writ  of  Privy 
Seal,  first  shewn,  and  produced  with  the  requisite  view  in  Chancery. 

*  This  fact,  as  instructed  in  the  ease,  was  explicitly  founded  upon  by 
Lord  Kosslyn.    • 

*  The  authority  also,  pointedly  referred  to  by  Lord  Rosslyn,  is  from 
an  old  inventory  of  Family  title-deeds,  produced  in  the  claim. 


IN-  SCOTTISH  PEERitGESy  &C.  8S9 

1515  and  1516.  While  the  mere  purging — for  other  unknown 
purposes — could  not  affect,  or  homologate  the  original  grant  in 
1488,  owing  especially  to  the  expli(^it  terms  of  its  rescission  by 
Act  1488,  c.  19 — ^in  force  at  least  until  1503— 'this  peculiar,  and 
striking  discrepancy  in  the  posthumous  style  of  the  identical 
personage,  at  Uie  distinct  periods  mentioned,  can  only,  it  is  sub- 
mitted, be  regularly  explained  by  my  induction  of  the  special* 
ty,  and  ret  interventusy  as  premised ;  for  otherwise,  tiie  same 
form  and  practice  would  have  equally  obtained,  as  it  palpably 
does  not,  in  both  emergencies. 

The  counter  possession,  or  assumption  by  the  Glencaim  Counter  potses- 
heirfr>male,  for  the  considerable  period  of  126  years,  from  1670tionb7theh™£. 
to  1 796,  that  would  have  been  so  fatal  at  common  law  in  or-  ™f^®  'P  ^^® 
dinary  succession,  was  not  held  a  legal  bar  in  the  way  of  Sir  not  held  a  legal 
Adam  Fergusson,  the  heir  of  line.     He  nevertheless  was  al-™erai^*  ^^"' 
lowed  fully  to  go  into  the  merits  of  the  question.    And  this,  aU 
though  the  preceding  had  voted  without  protest  at  Peerage  £lec« 
tions.     Nay,  James  Earl  of  Glencaim,  elder  brother  of  John, 
the  last  Earl,  had  even  been  returned  to  represent  the  Scottish 
Peerage  in  1780,^  and  had  sat,  and  voted  accordingly,  in  the 
House  of  Lords*     The  same  thing  has  also  been  illustrated 
in  the  instance  of  the  Earldom  of  Moray  in  1793,  where  there  Sach  law  and 
was  alleged  adverse  possession  from  1700  until  1784,  whenQ}]!^^^^  oUi^ 
it  came  first  to  be  challenged,^ — thus  evincing  the  existing  le-  <^®"* 
gal  understanding,  to  which  I  do  not  demur,  as  it  seems  not  at 
variance  with  our  law.     Further  still,  in  the  Errol  case,  that 
has  been  likewise  noticed,  James  Earl  of  Errol,  father  of 
Earl  George,  whose  right  came  formally  to  be  questioned  in 
1796,  and  1797,  had  been  equally  returned  as  one  of  the  re- 
presentative Peers  in  1770,^  in  virtue  of  a  title  and  succes- 
sion recognised  since  1717  ;  but  this  '^  possession"  also,  as  it 
was  maintained,  when  founded  upon  by  him,  was  not  deemed 
conclusive  by  Lord  Rosslyn ;  for  he  said,  <^  whatever  inclination" 
he  might  have  *^  to  give  every  possible  presumption  to  long 
possession,  I  cannot  admit  it -against  evidence^    nor  can  I 

*,..,  ,  ,.i/.i-iii.  Opinion  here  of 

admit  it  in  the  present  case,  because  the  title  of  Larl  ofLord  Roesiyn; 

^  Robertson's  Peerage  Proceedings,  p.  404. 

«  See  p.  783. 

'  See  Robertsou*s  Peerage  Proceedings,  p.  353. 


880  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

aod  that  Peen  Errol  is  set  out  distinctly,  and  fiiliy,  your  Lordships 
Union  hMi  not  ^^  aware  of  every  thing  respecting  it,  and  as  sudi,  you 
thereby,  an  in-  must  determine  upon  it."  He  obviously  inculcated  also, 
to  their  Peer-  ^^a^  ^  Unkm  had  not  given  *'  an  indefeasible  right,"  in  res- 
ages.  pect  to  their  dignities,  ^  to  tbe'Peers  of  Scotland,  then  sittingin 

Opinion  of  Lord  Parliament."^     In  the  Moray  case,  again,  in  1793,  Lord 
ns^r'    ^     Lauderdale,  in  his  speech,^  rejected  the  plea  of  prescription 
in  honours  altogether ;  while  Lord  Rosdyn  said  on  the  oc- 
casioo,  that  he  never  intended  to  represent  it  as  an  effectual 
bar ;  fiirther  remarking,  that  <*  when  honours  are  usurped  from 
the  crown,  no  length  of  time  can  justify  the  possession.**^    The 
case  of  Lindores  is  moreover  in  point,  where  the  assumption  of  the 
honour,  widi  voting  at  Ejections  lErom  1736  to  1790, — a  period 
of  fifty-four  years, — ^was  found  to  go  for  nothing,  on  the  right 
to  that  Peerage  being  thereafter  discussed,  and  disallowed 
by  the  Lords  in  1 793/     I  need  hardly  observe,  that  when 
there  has  been  no  adverse  possesrion,  but  only  domancy,  and 
No  prescription  non<-as8iiniption  of  a  dignity — however  long  continued, — it  is 
rins hihonouri  ^ ^^  Substantial  importance ;  for  even  by  our  common  law, 
when  there  ii  jug  sanguinis  nunquom  prescribitur^ — unless  ihe  right,  in  the 
sum^il^^^*  interval,  through  the  requisite  term  of  prescription,  vests  in 
P^''*^^^^       another.'    This  last  alternative  has  recently  been  strikingly 
illustrated  in  the  matter  of  General  Service8,^---however,  the 
also  recent  Rutherford  resolution  of  t^e  Lords,  to  be  after- 
wards referred  to,  may  tell  otherwise  in  honours. 
Lady   Harriet       Harriet  Dou,  ^  commouly  called   Lady   Harriet   Don," 
the°iastEari  of  cl^l^st  sistcr  and  daughter,  respectively,  of  John,  last  Earl  of 
Giencaim,   of  Glcncaim,  (deceased  in  1796),  and  of  the  previous  William 
only,  admitted  Earl  of  Gleucaim,  the  male  assumers  of  the  dignity,  was  at 
Gien^n '"  ^^*  ^°^®  permitted  by  the  Lords,  the  2d  of  March  1 797,  (upon  her 
claim.  petition),  that  was  referred  by  them  to  the  Committee  of  Privile- 

ges, to  be  heard  by  '^couBseF'  against  theclaim,  and  in  support  of 

*  From  cotemporary  notes  of  his  Lordship's  speech,  in  the  hands  oC 
the  iamily  agents. 

'  Referred  to,  ibid. 

'  In  his  speech  referred  to,  ibid. 

*  See  p.  779. 

*  See  Stair,  B.  II.  T.  XII.  §  15.   Erskine,  B.  III.  T.  VII.  §  12. 

*  See  p.  1^  el  seq.    The  case  of  Nelson,  ibid,  is  affirmed  on  appeal. 


IN  SCOTTISH  PEERAGES,  &C.  8S1 

ber  '^  rigbt  and  interest."^  Whatever  this  party  sets  forth  in  her 
petition,  as  to  her  conceived  preferable  daim  to  the  Earldom,  iq  fg^^  eouM 
the  only  discoverable  interest  she  had,  was  in  the  preservation  <^°*y  defend  ber 
of  her  peculiar  title, — ^not  in  law,  but  through  courtesy,  as  the 
daughter  of  an  alleged  Earl, — however  identified  with  the 
contested  right  to  the  Earldom  in  her  line.    Thb  evinces,  to- 
gether with  a  similar  procedure,  though  on  a  wei^^tier  ground^ 
in  the  Sudierland  daim  in  1771>  in  respect  to  Lady  Elisabedi 
Wemyss, — ^the  heir  only  after  the  claimant,  who  was  equally 
permitted  to  be  heard,  that  the  Lords  are  thus  far  from  be*  The  practice  of 
ing  precise  or  scrupulous,  but  on  such  occasions  freely  grant  ^onb  hm  ^b 
such  fiivour  and  indulgence  of  moving  and  opposing  to  any  far  fVom  scm- 
upoD  a  secondary  interest  merely,  nay  hardly  tangible,  or  up-  Stti^i,  ""Unl 
hdd  by  law.^     And,  such  being  the  case,  we  here,  as  well  as  ^^  ^  ^^^  ^^ 
elsewhere,  look  in  vain  for  the  invariable  strict  procedure,  as  rsUo. 
asserted,  of  the  House  of  Lords  in  Scottish  Peerages.    After 
the  above  fashion,  likewise,  in  the  Sutherland  instance,  the 
Earls  of  Crawford  and  Enrol,  utter  strangers  to  the  suoces* 
sion,  were  appointed  to  be  heard,  because  the  matter  might 
affect  their  right  of  precedency.'    And,  further.  Sir  Walter  sir  Waiter  M. 
Montgomery  Cunningham,  who  has  been  alluded  to,^  was  al-  ^"^I^H^^^d 
lowed  by  the  Lords  in  1797  to  oppose  the  Glencaim  claim,  in  u  a  party, 
the  express  diaracter  of  heir-male  of  the  body  of  an  Earl  of  no^"^rov^  his 
Glencaim, — although  Lord  Rosslyn  explicitly  admitted  that^?f^>  »P<>n 
he  l»d  ii>ef«ly  given  "  same  general  evidence  of  bis  piopin-:^'  "" '""" 
quity  in  the  male  line,"  but  that  it  was  ^*  not  in  evidence — 
whether  he  be  such  heir-male  or  no//'    Thus  much  again  for 
the  asserted  extreme  strictness  of  the  House  of  Peers  in  their 
procedure,  especially  in  matters  of  evidence,  which  may  be 
next  referred  to. 

So  little  of  alegal,  and  profound  inquurer  was  Lord  Rosslyn,  Laxity  of  Lord 
— m  such  marked  contrast  to  the  late  Lord  Redesdale,  and  ^xl"^^^^^ 
other  eminent  English  forensic  authorities,  in  the  antiquarian  and  hii  want  of 
and  Peerage  department — that,  not  recurring  to  his  clinging  to  condito^e-"'' 
Young,  the  subordinate  Englbh  herald,  as  his  sheet  anchor,  in-  •«vcb. 
stead  of  purely  r^ipsacking,  like  the  former,  the  original  strict, 

*  Lords'  Journals.  '  See  p.  006.  *  See  p.  607. 

*  See  pp.  818»  n.  5,  and  821,  and  Lords'  Journals,  27th  of  April  1797. 


882  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

and  reeondite  sources  of  information, — he  is  fain  to  betake  him- 
self, with  this  view,  in  his  Glencaim  oration,^  to  a  modern  Hia- 
tory  of  Scotland,  published  in  17979  by  John  Pinkerton,  the  very 
year  whenit  wasdelivered.'  Such  evidence  would  be  discarded 
by  our  law,  as  well  as  by  the  English  ;  and  this,  with  abun- 
Hi*  law  and    dance  of  what  has  been  set  forth, — and  will  additionally^  in  the 


rhr^noaon"or8^u®l>*--s^^^S^y  ^^u^®^^^^<^^^®  ^     notion,  (already 


extreme  strict-  glanced  at),  entertained,  I  know,  by  a  modern  legal  authority 
ed.ofthe  House  of  distinction,'  of  the  necessitv  ^^  of  evidence  of  the  strictest 
Evidenc?  '"  kinds  in  matters  of  Peerage  (Scottish),  in  the  House  of 
Lords ;"  nay,  further,  of  ^^  the  probable  rejection  by  the  House 
of  Lords  of  any  book^  or  document  as  evidence,  not  strictly  ad-^ 
missible  by  the  Law  of  England."  The  latter  heterogeneous 
proposition,  in  such  marked  contrast  again  with  what  has  been 
repeatedly  instructed,  and  will  further,  necessarily  forming  a 
relative  rule  though  thus  disowned,  books  and  documents  of 
all  kinds,  nay  mere  unauthenticated  copies,  having  been,  at 
different  times,  both  argued  upon,  and  admitted  as  evidence, 
indeed  remains  to  be  substantiated;  while  he,  moreover, 
inculcated  novel  and  astounding  intelligence  certainly,  and 
subversive  of  all  our  law  and  practice,  both  in  principle,  and 
otherwise,  though  secured  and  guaranteed  to  us  by  the  Arti* 
cles  of  Union,  and  acted  upon,  not  adverting  to  its  obvious 
fallacy  and  irrelevancy,  that  in  Scottish  Peerage  cases  ^^  the 
House  of  Lords  has  not  yet  acknowledged  any  rule  of  evi- 
dence,   but  those  established  by  the  English  Law."     llie 

*  Ab  bearing  upon  the  important  circumstances  attending  the  ^^  Pa- 
tent in  1488,"  &c. 

■  Nor  is  my  comment  here  by  any  means  singular,  or  unprecedent- 
ed. I  havo  likewise  an  opinion  before  me,  of  the  late  Mr.  Sergeant  Lens, 
a  respectable  English  counsel  upon  another  peerage  claim,  in  which,  it 
being  necessary  to  take  that  of  Glencaim  fully  into  consideration,  he 
observes,  that  **  the  case  of  Glencaim  seems  to  have  been  decided  by 
Lord  Loughborough  {Ros9lynJ  merely  on  the  particular  historical 
ground  in  that  case."  In  order  to  make  the  said  Pinkerton  the  more 
deserving  of  such  high  weight  and  distinguished  notice,'  Lord  Rossi yn 
atyloB  him  "  a  gentleman  of  much  accurate  rosearclif*  who  lias  "  lately 
thrown  great  light  upon  this  e7i tangled  portion  of  history,"  (under 
James  III.  and  IV.) — no  doubt  to  Lord  Rosslyn. 

*  As  by  an  opinion  exclusively  regarding  a  Scottish  Peerage  claim. 


IN  SCOTTISH  PEEBAGESi  &C.  8S8 

EnglUhy  thus  entirely  to  predominate !     All  we  need  add  to 
tuch  fulminating  dogmas  is — 

"  Tutius  est  igitnr  fictis  contendere  verbis 
Quam  pugnare  manu,** — 

they  being,  when  we  come  to  practical  collision  and  scrutiny 
with  them,  so  capable  of  such  instant  demolition.     In  parti-  Proof  in  sup- 
cular,  with  respect  to  printed  books,  including  old  histories,  writ-  posuion*"^  ^^^' 
ings,  and  multifarious  proof  in  general, — independently  of  the 
threefold  refutation  here  in  point,  from  the  precedent  of  Glen- 
cairn,^ — the  direct  reverse,  as  is  notorious,  perpetually  and 
strikingly  obtained  in  the  celebrated  tripartite  ^  Sutherland 
controversy  in  1 77  i ,  and  before — so  long,  copiously,  and  keen- 
ly agitated,^  as  well  as  in  various  others,  almost  unnecessary 
to  refer  to,* — clearly  no^  in  accordance  with  such  supposed  The  sttictpr^C' 
exclusive  strict,  or  rigorous  English  practice  in  the  House  ofgiJghpri„ctpie!" 
Lgrds,'  but  with  that  chiefly  of  the  law  of  Scotland — so  un-  ^"  "^^  ™'«<*  •■ 

cooteDded. 

'  Dlastrated  in  the  testimony  of  Young — especially,  merely  through 
a  printed  version  brought  so  vitally  to  bear, — of  Pinkerton, — and  in 
the  admission  by  the  Lords,  of  an  alleged  heir-male,  as  a  material  party, 
upon  secondary,  and  confessed  inadequate  proof;  (see  p.  831.) 

'  There  being  three  contending  parties  in  Foro  contentiosissimo,  all 
with  opposite  claims  quite  hostile  to  each  other. 

'  For  proof  of  this,  I  need  only  quote  the  well  known  bulky  and 
elaborate  printed  papers  in  the  case,  witli  the  Lords'  speeches. 

*  See  pp.  5Q6y  683>4,  and  especially  the  procedure  in  evidence  under 
one  branch  of  the  Caithness  case,  pp.  613-14,  (which,  however,  was  so 
]ax  and  hasty,  as  to  be  below  the  level  of  any  approved  law,)  pp.  639- 
40,  &c.  together  with  what  will  transpire  in  the  sequel. 

*  It  may  be  perhaps  urged  too,  that  the  English  law  proper,  is  not  The   English 
always  very  strict  or  punctilious  in  evidence.    It  admits  any  hearsay  in  '«'''  proper,  not 
pedigree  of  the  nearest  relatives  who  have  an  interest,  even  as  to  re-  ^J^J^^  ^n*^*^*!. 
mate  facts,  which  (hearsay,  in  general)  Glassford,  a  lawyer,  and  the  dence,  as  shewn 
latest  enlightened  writer  upon  the  true  principles  and  philosophy  of  evi-  *>y  certain  in^ 
denoe,  holds  to  be  but "  secondary,"  "imperfect,"  and'*  suspicious,"  nay  •**°®®'' 
generally  "  inadmissible."  (See  Essay  on  Evid.  p.  358.)  Our  law,  though 

now  here  assimilated  with  the  English,  peremptorily  rejected  probation 
in  the  former  shape,  not  without  reason,  as  I  can  fully  prove,  from  an 
early  period.  Monumental  inscriptions,  insertions  in  family  Bibles,  rings, 
and  an  nnvouched  pedigree  hung  up  **  in  a  dining-room,"  (as  incul- 
cated by  Chancellor  Brougham,  in  the  Kelly  case  in  1835,)  nay  even  in 
lesser  circnmstances,  are  in  England  admissible  proofs  of  pedigree. 
I  have  been  said  publicly  to  know  something  of  such  matters,  (though 

a  knowledge  of  which  I  am  far  from  being  conceited,)  but  I  must  de^ 

3  a 


884  INQUIRY  INTO  TH£  LAW  AND  PRACTICE 

Ob  the  eon-  ceremoniously  discarded.^  I  say  chiefly  too,  because  it  is,  at 
tlThhu^ci^y'  ^^®  same  ^me^somewhat  difficult  to  predicate,  judging  from  aa- 
in  hoaoara,not-  certiuned  proceedings  of  that  Tribunal,  where  there  appears  to 
certain  irr^u-  ^^^  ^^°  &  degree  of  coutradictioB,  precipitance,  and  want  of 

larities. 

dare,  that  judging  by  ourtdves^  I  cannot  fancy  more  fertile  sources  of 

error,  empty  aspiration,  fiilsity,  and  delusion  than  the  latter,  of  a  looser 
character,  or  more  likely  to  mislead  if  consulted.    Monuments  witii 
inscriptions  too,  of  course  by  the  Aet>«,  (if  by  the  deceased  it  might  be 
different,)  for  the  behoof  of  which  first  they  chiefly  are  reared,  like  the 
noted  one  in  London,  but  too  often  lift  up  their  heads  and  lie.    It 
seems  a  family  propensity.  Bibles,  ut  supra,  as  has  notoriously  proved, 
are  admirable  engines  for  forgery,  affording,  through  the  prefixed  auto- 
graph Family  insertions,  like  acopy  in  a  writing-school,  the  easiest  means 
of  exactly  imitated  interpolations  in  the   subsequent  interrening 
spaces,  or  in  the  closing  blank,  so  invitingly,  below.    Parish  Registers, 
&c.  are  received  at  once  in  England,  but  of  old  not  with  us,  per  se;  they 
were  but  adminicular,  and  demanded  coijoboration.    (See  Tait  on 
Ev.  pp.  61-2.)  "  Engravings  upon  rings,*'  or  poesys,  are  legally  probative 
in  England, — ^why  ? — ^because  "  a  person  would  not  wear  a  ring,"  (."  pal- 
try," according  to  Shakspeare,)  valuable,  or  endeared  though  it  might 
be  by  a  fair  giver,— even  inveigling,  "  with  an  error."    (See  Vesey, 
Rep.  V.  13,  p.  144.)    But,  according  to  Horace,  the  natural  blemi^ 
or  error  of  the  polypus,  in  the  otherwise  faultless  and  handsome  face 
of  Agna,  was  deemed  a  farther  merit  and  attraction.    The  above  ratio 
appears  artlessly  innocent,  and  better  fitted  for  the  Satumian  age. 
Monumental  inscriptions  are  similarly  defended,  because  it  turns  out 
they  are  but  **  the  natural  f  unsophisticated  J  effusions  of  a  party,"  (see 
ibid.  p.  614,)  as  to  which,  in  the  general  run,  credat  Judneus  !   But  as  I 
have,  in  substance,  admitted  elsewhere,  most  of  the  above  legal  ingre- 
dients, in  certain  predicaments,  with  other  accessories,  in  the  shape  of 
circumstantial  evidence,  may  well  tell;  and  he  would  be  bold  generally 
to  predicate  as  to  probation, — ^though  I  am  much  mistaken  if  the  preced- 
ing is  not  the  way  in  which  certain  portions  of  our  law  have  been  criti- 
eiged, — ^rather  is^atedly,  perhaps — ^in  the  sister  kingdom. 
Our  law  indeed,     *  Various  English  authorities  too,  and  in  the  House  of  Lords,  will  be 
according  to     subsequently  adduced,  proving  that  our  law,  as  might  be  expected,  just- 
other   EngUsh  ,y  j^i^  Ijj  Scottish  Peerage  claims;  and  if  in  one  particular,  why  not 
noUhe^EngU*^  in  all  ?    Stair,  our  usual  oracle,  says,  "  Histories  are  probative  in  ail 
ought  to  rule,    cases  where/ai»c  is  relevant,  if  they  be  authentic,  and  not  contradicted, 
as  in  the  case  of  propinquity, — ^and  priority  of  dignity,  titles  of  honour." 

Historical  evl-  ^^^^'  ^'  ^^'  '^'  ^^^^-  §  ^^'  ^^^  Erskine  expresses  himself  to  the  same 
dence,  how  far  effect,  specifying  "  in  the  proof  of  ancient  fiicts, — ^histories— by  writers 
recognised  with  ^f  credit,  near  that  age  when  the  facts  happened."  Inst.  B,  IV.  T.  II. 
^'  §  7.    Young,  therefore,  the  subordinate  English  herald  referred  too, 

though  a  foreigner,  if  his  History  be  authentic,  (as  to  which  I  cannot 


IK  SCOTTISH  PEERAGES,  &C.  835 

common  principle  and  precision,  through  the  instrumentality  of 
Lords  Mansfield  and  Rosslyn,  whatexactbindingrulehere,  they 
can  be  said  properly  to  embrace.  But  this,  in  a  manner,  as  com- 
promising all  genuine  law,  cannot  truly  compromise  the  Scot> 
dsh.  No  doubt,  the  strictest  evidence,  everywhere,  when  at- 
tainable, falls  to  be  preferred — a  common  legal  truism,  though 
that  will  not  meet  the  question,  what  is  to  be  done  in  /acts 
ostensibly,  or  morally  true,  as  not  unfrequently  happens,  sus- 
ceptible only  of  inferior  testimony, — as  to  which  hereafter. 

The  existing  Baronies  of  Belhaven  and  Stenton  were  con-  Case  of  the 
ferred  by  patent,  the  10th  of  February  1675,  upon  John  Ha-Beihaien  and 
milton,  of  the  family  of  Barncleuch,  husband  of  Margaret  Ha-  8^«nton,  in 

.11  1,1  1  ,  ,...,.       1790-3,  and  in 

milton,  the  grand-daughter,  though  not  apparent  heir  of  Ime  1795-9. 
o!  the  then  John,  Lord  Belhaven, — the  original  holder  of 
the  honours,  by  an  earlier  patent,  dated  the  15th  of  Decem- 
ber 1647,  to  him  and  his  heirs-male  lineal  and  collateral.  And 
by  that  in  1675  the  limitations  comprise  *^  Heredes  masculos 
ex  ejMis  corpore  (the  patentee's)  procreatos  seu  procreandos ; 
quibus  deficientibus,  ejus  proximos  Haeredes  masculos  quos- 

predsely  say,  it  only  coming  to  us,  in  a  modem  printed  form,  in  1770, 
from  an  asserted  MS.  I  have  not  seen, — see  Lei.  Collect,  ut  sup.  vol. 
IV-  p.  258.)  may  be  perhaps  admissible  evidence  in  absence  of  better, 
he  being  certainly  cotemporary  with  the  &cts  he  details.    But  why,  Farther  laxity 
I  may  ask,  was  the  mere  modem  printed  version  exclusively  founded  and  negligence 
upon  by  Lord  Rosslyn,  and  received,  without  adducing  the  original,  *"  *?*®  GleMaim 
that  ought  to  have  been  alone  taken,  or  independently  corroborating,  matter,  as  res- 
nay,  even  adminicling  the  former  ?    As  far  as  I  can  discover,  this  most  peets  Young's 

oommon  and  obvious  practice,  was  not  adopted  by  his  Lordship  ;  and  a«*l»ority,--Sir 
•*  I.        u  •  •  f      rA.  .        .  James  Balfour  s 

if  so^  we  have  here  again  a  precious  sample  of  the  supenor  ngour  or  far  stronger  in 

strictnesB,  as  contended,  (see  p.  832.)  of  the  House  of  Lords  in  evi-the  Moray  case. 
denee,  in  Scottish  Peerage  claims.    The  autograph  testimony  of  Sir 
James  Balfour,  Lyon  King  of  Arms  in  16dO,  may  be,  afortioriy  admis- 
sible, in  the  circumstances,  upon  the  material  Scottish  fact  alluded  to 
in  the  Moray  claim,  (see  pp.  79d-4)  ;  but  as  to  the  mere  recent  compila- 
tion of  Pinkerton  in  1797,  and  his  ipse  dixit^  they  fell,  on  all  hands,  to 
be  rejected,  especially  because  access  might  have  been  had  to  all  his 
authorities,  and  ground-works,  that  ought,  in  the  above  way,  to  have 
been  directly  consulted  and  adduced,  without  such  negligent  secondary 
method.    I  may  here  infer,  that  cotemporary  MSB.  private  Reports  of  Higher  class  of 
cases  by  the  Judges  of  old,  when  admitted  to  be  so,  and  ordered  to  be**"*®".****"'^'*** 
published  by  the  crown,  for  the  public  benefit, — of  which  I  know  an '  ^  ** 
instance, — ^may  l>e  classed  with  the  highest  species  of  historical  proof. 


8S6         INQUIRY  INTO  THB  LAW  AND  PBACnCS 

cunque/"  It  was  with  reservation  too,  of  the  peerage  in 
liferent  to  the  aforesaid  Lord  John,  who  had  no  sons,  but 
only  daughters,  and  whose  original  patent,  so  far,  was  ratified 
according  to  a  form  formerly  adverted  to.'  The  respec- 
tive disponees  mentioned  in  1675,  and  1647,  were  of  distinct 
lineage ;  John,  the  first  Lord,  being  illegitimately  descended 
of  the  noble  House  of  Hamilton,  after  the  middle  of  the  15th 
century;  while  John,  his  adopted  heir,  legitimately,  through  the 
noted  and  numerous  stock  of  Udston,  which  produced  that 
of  Bamcleuch,  at  an  earlier  period.  The  latter,  thus  a  singu- 
lar acquirer,  took  and  succeeded  accordingly,  as  second  Lord 
Belhaven  and  Stenton,  and  the  dignities  were  transmitted  «e- 
ricUim  in  his  male  descendants,  until  their  failure  in  the  per- 
wheOier  by  the  SOU  of  James,  fifth  Lord  Belhaven,  in  1777 ;  when  the  first  limi- 
piKtent  ^676,on^^Qjj  j^^  ^^  patent  1675  becoming  exhausted, — there  arose 

iuue  of  the  pa-  this  question,  who  next  was  entitled  to  take  under  the  closing, 

the  honoara^un'.  *^^  ^^^  regulating  remainder  there,  to  "  heirs-male  whatso- 

der  the  remain-  ever," — namely,  of  the  patentee  ?     There  were,  as  little,  any 

elder,  or  young,  in&le  descendants  of  a  brother,  or  of  any  paternal  uncle  of  the 

hLr*l^**™^    same  John,  the  second  Lord,  so  it  became  necessary,  with  a 

view  to  the  succession,  to  remount  to  the  anterior  generation, 

— to  James  Hamilton  of  Bamcleuch,  his  grandfather,  whose 

direct  male  line  had  also  consequently  failed^  and  who  happened 

to  be  the  middle  of  three  brothers, — ^namely,  of  John  Hamil* 

ton  of  Coltness,  the  eldest,  and  of  William  Hamilton  of  Wishaw, 

the  youngest,  the  joint  progeny  of  John  Hamilton  of  Udston, 

*  Great  Seal  R^g;iiter. 

"  His  male  ancestor,  John  Hamilton  of  Broomhill,  was  ^  natural 
son  "  of  James  Lord  Hamilton,  father  of  the  first  Earl  of  Arran,  by 
''Janet  Calderwood ;"  under  which  character,  he  figures  in  a  charter 
upon  record,  of  part  of  the  Hamilton  property,  in  1474.  In  a  process 
before  the  Session  in  1541,  he  is  retrospectively  described  '^  eameuaJe^ 
sone  gotten  betuixt  umquhile  James  Lord  Hamilton  and  Janet,** 
shewing,  inter  alioy  that  ** carnal'*  has  been  used  with  us  to  denote 
bastardy, — John  the  offspring  being  otherwise  indisputably  proved  illfr* 
gitimate.  Crawford,  in  a  MS.  in  the  Advocates'  Library,  transmits  that 
the  lady  was  in  hopes  Lord  James  would  have  married  her,  but  that, 
on  learning  his  marriage,  as  is  notorious,  with  the  Princess  Mary,  she 
^  threw  "  the  luckless  child  *^  out  of  her  lap,  and  broke  his  thigh,**  de- 
claring **  she  would  be  married  to  a  handsomer  man  than  he  was,  be- 
fore she  slept." 


r^ 


)Am 


IN  SCOTTISH  PKERAGGS,  &C.  837 

the  common  ancestor.  As  these  two  brothers  specified  had 
left  male  descendants  who  existed  at  the  period,  the  honours 
would  necessarily  devolve  under  the  broad  remainder  stated 
somehow  in  their  line ;  and  it  fell  now  to  be  decided,  whether 
the  heir-male  of  the  said  Coltness  branch,  or  of  that  of  Wishaw, 
ought  in  law  to  be  preferred  ? 

The  votes  tendered  by  Captain   William  Hamilton,  the  The  question 
male  Coltness  descendant  and  representative,  (who  had  actual- ^^^Mt^CaJta^^ 
ly  since  1777  assumed  the  dignities),  being  petitioned  against,  wmum  Hamii- 
at  the  remarkable  Election  in  1790,  by  certain  Peers  on  the  co?iaterai  heiT- 
ground  of  their  illegality ;  and  his  right,  accordingly,  thereaf-  b**^^- 
ter  coming  to  be  discussed,  in  the  customary  adopted  form,  the 
Lords  resolved,  the  6th  of  June  1793,  that  the  former  were 
*^not  good,"^  owing  to  his  not  being  the  heir  to  the  Peerage. 
They  espoused  the  argument  urged  against  the  party,  that  the 
Peerage  here,  instead  of  ascending^  jure  rq^resentationis^  to 
him,  as  heir-male  of  John  Hamilton  of  Coltness,  the  eld- 
est of  the  three  brothers  mentioned,   (from  the  middle  of 
whom  the  Belhaven  patentee  sprung)  and  first  of  the  elder 
branch,  must  descend^  and  necessarily,  through  the  deceased 
William  Hamilton  of  Wishaw,  the  youngest  brother,  by  the 
same  admitted  principle  of  representation,  to  his  male  issue, 
who  were  instructed  to  exist.     This,  I  need  hardly  add,  was  This  in  perfect 
in  exact  conformity  to  the  common  law  of  Scotland.     An es-  Jbriawo/scot- 
tate,  acquired  and  settled  like  the  Belhaven  honours  in  1675,  i*^*'- 
would  necessarily  go  to  the  male  issue  of  the  conquestor — tn  s<  ^  }  ^i*.  »«•' 
pari  casu^  with  the  Belhaven  patentee, — who,  unavoidably  >^  f    r...f 
taking,  as  heirs  in  the  general  and  indefeasible  course,  what    /     ^        j 
had  been  conquest  before  in  his  person,  would  thereby  become    T  ** '   "^  1 
heritage;  and,  owing  to  the  repeated  male  descents  afterwards, 
would  still  more  descend — invariably — if  that  were  practicable, 
according  to  the  relative  law  of  heritage,  and  consequently, 
as  premised.^     There  was  here,  in  fact,  no  room  for  the  ^«^^°'J®"?  ^^'J 
of  conquest.     If  Lord  John,  the  patentee  in  1675,  had  died  conquest 

'  Lords'  Jonnials.  '  Feudum  novum, 

'  ^  Conqnestus  dicitur  ratione  primi  conqnestoris,  et  cum  transmittitur 
ad  ejus  haredem^  exuit  naturam  conqaestus,  et  induit  naturam  fteredi' 
tatU.^  Skene  sub  voce^  besides  variotis  oorroborations.  See  also  case  of 
Watson  and  Johnston  in  1681,  stated  in  the  sequel.  ^ 


-'^-^ 


8S8  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

without  male  issue,  then  certainly,  e  converso^  through  oper- 
How  the  latter  ation  of  the  latter,  which  would  now  come — though  thus  but 

pUed  in*a  differ-  ^^^^»  ^"^^  V^^Y^ — ^^®  °^^®  descendant  of  Coltness,  in  right  of 

•Dt  event.        his  descent  from  the  eldest  brother  of  the  grandfather  of  that 

Lord,  would,  by  representation,  be  preferred, — after  which, 

this  very  law  of  conquest,  on  the  above  account,  would  be 

transmuted  into  that  of  heritage  even  in  his  line.^     In  the 

same  event,  there  would  be  two  sets  of  heirs,  the  honours, 

and  whatever  had  been  *'  conquest'*  by  Lord  John,  (they^tf- 

dum  novum)  only  going  to  the  Coltness  representative,  while 

all  his  paternal  property  {ihQfeudum  antiquum)^  with  the  heir- 

Theo  two  seu  ship,  &c.  unfettered  by  their  limitation  and  condition,  would  still 

the  ^honours*  descend^  by  the  law  of  heritage,  in  their  case,  to  the  younger 

mighthaTegone  Wishaw  branch,  the  heirs  of  line,  and  favourites,  generally^ 

conquest.         uudcr  our  system.'     This  is  partly  admitting  the  law  of  con- 

»  See  Stair,  B.  III.  T.  V.  §  10  ;  Erskine,  B.  III.  T.  VIII.  §  16.  The 
peculiar  law  in  question  makes,  at  any  rate,  the  deviation  from  that  of 
heritage,  to  which  it  forms  a  single  exception,  as  narrow  as  possible. 
Upon  this  principle,  though  there  be  many  elder  brothers  of  the  oon- 
questor,  it  exclusively  favours  the  younger,  and  never  the  elder  or 
eldest,  as  elsewhere.    Nay,  Nisbet,  as  conquest  merely  ascends  grada- 
timy  is  not  disinclined  even  to  prefer  the  youngest  son  of  such  deceas- 
ed elder  brother,  before  the  eldest.    See  his  Doubts,  p.  82.    As  to  the 
gradatim  ascent,  see  Qwm.  A  ttack,  c.  88,-~d7,  Stat.  Rob.  III.  c.  3.  *^  Th« 
custom  of  England/'  as  Stair  inculcates,  **  is  contrary ;  for  thereby,  the 
eldest  brother  succeedeth  Cin  conquest)  to  all  his  brothers,  failing  the 
issue  of  each  ;  but  with  us  the  immediate  elder  or  younger  doth  always 
succeed,"  &c.    Instit,  ut  sup. 
The  diitinctife      *  "^^^  distinctive  features  in  conquest,  (familar  to  the  feudal  law,  and 
featores  of  the  Normandy)  with  us,  though  occasionally  disputed,  may  be  gathered 
law  of  conquest,  from  ancient  practice.  William  Grovane,  in  the  reign  of  James  VI.  **  «m- 
to  heritaw  °  to  9^^^*  lands  and  annual  rents,  "  to  him,  and  his  airis,'*  and  died  with- 
which  it  is  bat   out  issue,  upon  which,  Alexander,  his  **  younger^*  brother,  took  the  sue- 
a  slender  excep-  cession,  under  the  limitation,  by  service ;  but  the  latter,  with  his  conse- 
brori^"  al™^^^^^  ^"®^*  *^*^®'  ^^^^  thereafter  reduced,  by  the  Session,  the  26th  of  March 
Seottfoh  autho- 1588,  at  the  instance  of  Patrick  Govane,  lawful  son  of  the  deceased 
rities.  James  Govane,  styled  "  elder  broyer  to  ye  saide  umquhile  Williame," 

Case  of  Govane  whose  preferable  right,  through  representation  of  his  said  father,  as  the 
**  immediate  elder  broyer,"  was  adjudged, — ^**bo  resoun  of  conqueis,  of  ye 
law  and  pratik  of  yis  realme."  (Act  and  Decree  Register  of  the  Su- 
preme Civil  Court.) 

James  Johnstone,  burgess  of  Edinburgh,  the  second  of  four  brothers, 
Herbert  Johnstone  being  the  eldest,  William  the  third,  and  Adam 


IN  SCOTTISH  PEERAGES,  &C.  889 


quest  in  honours, — as  to  wluch  aft^wards.  But,  in  the  palpa-  Potiie  attempt 
hie  absence  of  the  above  spedtd  alternative,  Captain  Hamilton,  ^'fl^o^nto  indue© 
in  1793, 8p<^ed  this  singular  and  gratuitous  theory,  that  not- the  law  of  con- 

the  fourth,  left  two  sons,  Mr.  William  and  Mr.  Andrew  Johnstones,  Case  of  John - 
which  last  owned /r<wi  Mr.  "William  his  brother,  who  died  without  is-*^"®  '"  ^^74. 
sue,  certain  heritable  subjects,  that  were  thus  transformed  from  their 
original  conquest  state  into  heritage,  in  the  full  sense.  But  Andrew 
himself,  who  stood  essentially  in  the  shoes,  quoad  the  property,  of  the 
last  Lord  Belhaven,  in  17779  ^^o  died  without  issue.  Who,  then,  did 
the  Session  find,  in  1574,  to  be  his  heir  ?  Not  Herbert,  his  eldest  uncle,  or 
any  of  his  branch, — in  the  shoes  again  of  Captain  Hamilton  in  1793, 
but  Mungo  Johnstone,  the  grandson  and  heir  of  the  said  William  John- 
stone, third  and  immediate  younger  brother  of  James  the  buigess, 
(fiither  of  the  above  Mr.  William,  and  Mr.  Andrew,  his  sole  ofispring,) 
exactly  situated  as  the  Wishaw  heir,  and  who  accordingly  took, 
and  was  reponed  by  the  Session,  against  an  inadvertent  service  that 
came  to  be  reduced,  obtained  by  the  heirs  portioners  of  Adam  the  fourth 
brother,  of  the  original  stock,  without  any  challenge  still,  from  the 
eldest  or  Hetbertine  members  of  the  Family.  Ihid, 

Robert  Reid,  Bishop  of  Orkney,  had  two  brothers,  an  dder  and  ^^^■•^  **^  ^^^^  *■ 
younger,  the  first,  ancestor  of  John  Reid  of  Aikenhead,  and  the  younger, 
of  Walter,  Abbot  of  Kinloss ;  and  the  question,  afiecting  the  succes- 
non  of  the  Bishop,  who  died  without  issue,  qua  heir-general,  and  of  line, 
being  controverted  by  these  two  descendants  before  the  Session,  it  was  de-  * 

dded  in  1561,  that  the  Abbot,  by  the  ^^commone"  and  ^^  municipal"  law  of 
"yis  realme,"  was  ^general  aif^*  of  the  Bishop,  ^^beresouneof  yelawand 
pmctique,  aUaiTKhipdUcendUythereheingin/erioure  ('younger J  heir,  to 
ye  deid  f  deceased  J  in  ye  samyn  degree,  and  in  sa  fare  as  ye  elder  brodar 
Buccedis  to  ye  deid,  yat  is  €dlanerlie  f  only  J  to  landis  conquest  be  ye  deid 
of  ye  special  provisione  of  ye  municipall  law,  quhilk  provisione  is  not 
eaetendit  attour  ('beyond J  yat  singular  caice  in  landis  conquest,  be  res-  Distinction  be* 
soun  yat  landes  hes  allanerlie  ye  name  of  conquest,  quhilk  is  not  ex-  tween  hentai^e 
tendit  nor  applyit  to  moveable  guidis,  and  airschip  &c.  {^yatj  descendis.'*  J^"  conquwt^ 
Such  airschip  goods  with  us,  go  like  heritage  to  the  heir  of  line.  And 
accordingly,  the  service  that  John  Reid  had  unduly  obtained,  as  '*  air 
in  general,  and  universal,"  of  the  Bishop,  was  reduced  at  the  Abbots 
instance.  Ibid,  The  Abbot  stood  precisely  in  the  situation  of  the  an- 
cestor of  the  Wishaw  branch,  the  confessed  favourites  of  the  law,  like 
him.  The  above  is  the  oldest,  and  most  minute  judicial  explanation  of 
heritage  and  conquest  I  am  aware  of,  and  shews  that  the  very  nar- 
row right  of  succession  by  conquest  was  a  single  exception  to  the  ge- 
neral law,  which  presumed  in  favour  of,  and  gave  almost  every 
thing  to  the  heir-general,  or  of  line  ;  while  heritage,  with  the  family 
representation,  always  descended  to  the  next  in  degree,  under  such 
character,  after  the  deceased.     The  above  cases  being  new,  and 


840  INQUIRY  INTO  THE  LAW  AND  PRACTICB 

quest  in  hu  fa-  withstanding  the  fatal  and  irretrievable  intervention  of  the 
ru^e^onij^ruu"  direct  male  descent  from  the  patentee,  for  ever  barring  its  ef- 
>"«•  feet,  the  law  of  conquest,  still  in  nascent  vigour,  lurked  in  the 

family,  in  a  state  of  preparation,  ready  to  start,  and  actively  to 
propel  the  ascent  of  the  succession,  on  failure  of  the  patentee's 
male  issue — for  he  could  not  altogether  surmount  this  diflSculty 
— to  the  elder  line,  and  by  representation  to  himself.  In  sup- 
port of  which  extraordinary  and  visionary  protraction  of  con* 
quest,  which,  at  the  most,  is  by  no  means  favoured  or  extended 
by  our  genuine  law,  he  could  betake  himself  to  nothing  but  an 
irrelevant  twisting  of  the  ordinary  authorities,  always  more  or 
less  practicable  in  a  case  (under  shelter  of  his  assumption)^  which, 
even  upon  his  showing,  could  not  assist.^  But,  in  fact,  the 
point  is  res  judicata  ;  for  the  Session  decided,  in  December  1 68  i , 
in  the  case  of  Watson  and  Johnston,  where,  of  three  brothers, 
one  '^  conquered  "  lands,  that  these  '*  became  heritage^'*  be- 
cause  they  had  ^^  descended  to  his  son,"  and  hence  fell  to 
be  wholly  regulated  by  the  relative  law,  in  bar  of  any  plea  or 
pretension  of  conquest.'  And  indeed,  after  the  devolution  of 
a  subject  to  one,  qua  heir  by  blood,  to  determine  his  future 
succession  and  representation,  our  law  only  inquired  who  was 

the  earliest,  properly  reported,  being  the  kackneyed  one  of  Lady 
Clerkinton,  July  20, 1664, — which  solely  arose  out  of  a  conceit  and  error 
of  Craig,  who,  as  usual,  is  always  misrepresenting  and  mistaking  cur 
law,  in  that  instance,  in  opposition  to  two  good  practical  lawyers,  Oil- 
phant  and  King,  (see  Stair,  B.  III.  T.  V.  §  10.),  I  have  been  induced  thus 
to  refer  to  them.  The  first  oldest  authority,  the  statute  of  Robert  III. 
*  The  etmque§*  c.  3,  briefly  enacts  that  "  proximus  ante  natus  superior  frater  ejus,*  ad 
dictas  terrat  (de  conquestu)^  &c. — succedet,  gradatim  ascendendo." 
The  authorities  from  the  Q^oniam  Attachiamenta,  c.  88,  andc.  97, may 
be  held  to  have  nothing  more  material  on  the  point,  unless  taking 
for  granted  that  infeftment  has  there  preceded,  while  inculcating  too 
that  heritage,  on  the  other  hand,  must  descend. 

'  He  availed  himself  too,  in  order  to  found  an  inv  incible  presumption  in 
favour  ofprimogeniture,of  the  ordinary  legal  preference  of  the  eldest  son 
of  the  elder  brother  of  the  conqucstor  in  conquest,  nay,  of  the  eldest  al- 
ways, including  his  descendants,  under  his  oonstmction  of  Qtion.  Attach,  c 
97 ;  but  **primogenitum*'  there,  is  qualified  by  "gradatim,"  and  still  more 
by  the  statute  of  Robert  III.  c.  3.  where  the  relative  phrase  is, "  ante  na- 
tus superior  frater,"  even  supposing  this  could  assist  him  ;  as  it  does 
not,  being  jut  tertii, 
'  Sir  John  Lauder's  Deeia.  vol.  I.  p.  167. 


IK  SCOTTISH  FEEftAOES,  &C.  84 1 

next  heir,  or  of  line,  of  course  by  de^cen^,  without  any  retroB' 
pectf  as  obtained  in  the  earlier  case  of  Johnstone  in  1574.i 

Captain  Hamilton  of  course,  held  the  slender  exception  or  of  course,  he 
specialty  of  conquest,  his  only  ostensible  auxiliary  under  the  gfl Jy  **°o  *i^i!^ 
Scottish  law, — for,  as  will  be  seen  in  the  sequel,  he  further  des-  oun.  Does  this 
pairingly,  though  pertinaciously,  clung  to  another  irrelevant  ^^""Jn"?^^"' 
and  even  still  weaker  plea — equally  to  apply  to  honours, — up- 
on which  point — however,  I  am  not  aware,  as  yet,  of  any  ex- 
plicii  legal  dictum  or  precedent,  there  are,  by  no  means, 
wanting  relevant  facts  and  arguments  for  the  affirmative. 

The  law  of  conquest,  no  doubt,  as  already  partly  obvious,'  Aigamenu  for 
is  inculcated  with  us,  to  obtain  in  feus  and  heritable  rights,  ^*  •*"»•»*▼•• 
upon  which  infeftment  has  passed,  or  in  their  general  complex- 
ion (even  while  absent)  associated  with  it,  or  where  it  ^* might" 
have  obtained.^  But  infeftment  anciently  wttSy  moreover, 
incumbent  in  grants  of  honours  when  they  were  territorial,  nay 
even  did  afterwards  obtain,  when  they  happened  to  be  convey- 
ed by  charter  with  lands ;  so  that,  combining  the  identical  ori- 
ginal nature  of  the  first,  with  their  constituting  a  real  inherit- 
ance, the  doctrine  of  conquest,  and  certain  intrinsic  legal  re-  scotUsh  hon- 


sults, — €is  is  obviously  elsewhere  discoverable  in  the  case  of®"".  onginaUy 
dignities, — may  still  follow,  and  be  admitted  in  their  case,  not-  feftment,  the 
withstandmg  the  modern  absence,  so  far,  of  the  feudal  sym-*^^"°2jj®*°^ 
boiical  form  of  possession.     The  old  rule  has  undergone  much  which  traces 
extension,  and  it  is  notorious,  a  general  service  as  heir  of  con-^^le  at  aUter 
quest,  merely,  is  now  competent.    Upon  this  head,  I  may  spe-  period, 
cially  observe,  that  in  valid  conveyances  of  honours,  down  to  as 
late  as  the  reign. of  Charles  L,  and  indeed  still  later,  after  the 
middle  of  that  very  century — as  I  can  yii%  establish,  we  yet 
hear  olinfeftments  of  the  ^' title,  honour  and  dignity^'*  ^  while 

*  See  pp.  838-9,  n.  *  See  p.  840,  n.  ■  See  Maodowal, 
B.  III.  Tit.  IV.  §  21.  and  Erskine,  B.  III.  T.  VIII.  §  16,  &c. 

*  See,  inter  aHa,  a  strong  example  in  the  case  of  the  Earldom  and  hon- 
ours of  ADgtis,  nBj  first  seat  and  ffote  in  Parliament,  &c.  in  the  reign  of 
Charles  I.  pp.  159-60-1.  And  Dallas,  in  his  Styles,  Edit.  1774,  vol.  II.  pp. 
268-9, — ^merely  to  refer  to  him, — gives  us  the  regrant  of  the  Earldom  of 
Rothes,  &C.  in  the  reign  of  Charles  II.  which  proceeds  upon  the  re- 
signation of  the  Earldom,  and  **  title  of  honour — for  uB^r  infeftment  of  the 
Mine,*'  &e.  Infeftment^  at  one  place,  is  also  declared  in  the  charter  of  the 
Crawford  honours  and  lands,  in  1648,  to  be  sufficient  for  the  ^  titles  hon- 


842  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

the  same  also  bear  to  be  carried  in  infeftments.     Hence  they 

may  be  then  presumed^  at  least,  exfigura  verborum^  not  to  be 

estranged  from  seisin,  and  even  to  come  within  the  strict  rule. 

with  th^'^ri^*^^*^*  even  upon  the  antecedent  principle  of  the  connection 

nai  territorial    between  land  and  honours,  the  noted  English   Statute  de 

Interpretation  of  ^'***>  ^^  Edw.  I.  as  WO  have  seeu,  though  merely  concerning 
the  English  sta-  <<  tenements  and  landsy'  has  been  brought  to  apply  to  digni* 
favour  oflhe'"  ^^^ '  ^^^  ^^  modcm  persoHcU  Earldom  of  Ferrers,^  created 
application  of    but  in  1711,  included  within  its  benefit,  solely  from  the  «Aa- 

conquest.  ,  .  ... 

douyy  semblance  certainly,  of  still  attaching  or  lingering  locality 
or  territoriality  thereto,  from  the  second  accompanying  hon- 
our under  the  common  patent,  the  Viscounty  of  Tamwarth 
being  taken  from  a  place.'    This,  then,  is  an  illustration  fully 
in  point,'  equally  authorizing,  by  parity  of  reasoning,  indeed  a 
fortiori  in  the  circumstances,  the  intervention  and  application 
of  the  Scottish  regulation  of  conquest,  in  the  same  way  terri- 
torial, as  much  so  as  the  English  statute  in  its  especial  object, 
to  modem  Scottish  honours,  that  are  also  derived  from  places, 
— ^honours  with  us,  withal,  retwiing  far  longer  their  territorial 
character  than  in  England.     Nor  does  the  parallel  cease  even 
Singular coinci- here;  for  the  Statutum^  enforcing  the  law  of  conquest  in  the 
fween  the^Eng^  Quoniom  AttachiamentOf  c.88,  treats  of  it  in  the  exact  way  as 
liah  Statute,  and  in  the  English  case  above,  in  reference  to  ^'  terram  et  tenemen' 
regardfng  con-  tum^"  which  Were  there  held,  in  its  relative  statute,  to  imply 
^est  in  ttie    dignities.    The  statute  of  Robert  III.  c,  3,  also,  when  enforo- 
tachiamenta.     ing  the  former  in  the  same  manner,  has  allusion  to  lands. 
Hence  the  cases,  both  of  feudal  parentage,  being  identical  in 
the  material  l)earing,  you  cannot  relevantly  hold  to  an  admit- 
ted construction  in  the  one,  without  extending  it  also  to  the 
other.    And  besides  this,  to  come  directly  home,  Nisbet,  in  the 
reign  of  Charles  II.,  whom,  I  believe,  none  will  dispute  as  a 

our  and  dignity,"  &e.  (Great  Seal  Register.)  And  yet  Lord  Mansfield, 
in  the  Sutherland  case,  maintained  that  the  territorial  and  feudal  no- 
tion in  honours  had  quite  ceased  before  1214  I 

*  Taken  from  a  surname. 

'  See  pp.  734,  n.  4  ;  732,  n.  4 ;  722,  &c. 

'  Of  course,  it  is  thus  quite  competent  to  refer  to  English  legal  doc- 
trine, and  precedent,  in  the  same  way  as  to  that  of  any  other  country, 
where  there  is,  as  on  the  present  topic,  not  the  most  direct  determina- 
tion, and  practieai  rule  at  home. 


IN  SCOTTISH  PEERAGES,  &C.  843 

respectable  authority,  states,  that  even  "Patents  of  Honour"  Jo'robomtory 
are  "  quasi  feuda^**  and  should  be  subjected  (obviously  in  the  bet. 
mmn)  to  the  same  rules.^ — Quid  Juris,  I  may  ask,  is  there, 
as  to  the  descent  of  a  British  Peerage,  granted,  under  a  Scot- Can  a  Brituh 
tish  denomination,  to  a  domiciled  Scottishman,  the  third  of  c®®.?*^  ^^°"* 

'  '    ^  ^  Scottish  place, 

four    brothers,    who   all  survived  him,   with  limitation   toinadomiciiiated 
himself,  and  "  his  heirs  male  whatsoever," — which  now,  after  miedbyThe law 
the  English  Devon  decision,  must  include  collaterals  in  both  ^^  conqaest, 
kingdoms, — ^in  the  event  of  the  patentee's  decease  without  is-  p\j  to  honours  ? 
sue  ?     There  can  be  no  doubt  that  his  second  brother,  by 
seniority,  according  to  our  law,  and  admitting  conquest  as 
above,  would  be  the  heir, — ^both  to  the  exclusion  of  the  eldest 
and  of  the  youngest, — though  different  by  the  law  of  England. 
And  though  the  dignity  be  British,  it  is  not  English  (ab* 
strac£ly)y  for  there  now  cannot  exist  such  English  dignity;  so 
that  may  it  not,  as  circumstanced,  and  in  virtue  of  the  Scottish 
ingrediential  influence,  involved  in  the  description  and  com- 
bination of  ^^  British,"  comprising  Scotland  as  well  as  Eng- 
land, upon  the  principle,  applicandi  singula  singulisyhe  regulat- 
ed by  the  Scottish  law,  and  hence  under  the  application  of 
that  of  conquest,  descend  as  stated  ?     However,  I  daresay, 
most  lawyers  in  the  sister  kingdom  may  scout  such  a  conclu- 
sion, yet  it  may  obtain  some  countenance,  by  analogy,  from  Argument  in 
the  reasoning  of  Chancellor  Brougham,  in  the  Waterford  |,y®^^"y*^^^^^^^ 
Peerage  case  in  1832,  who  admitted  that  *^  there  is  now  no  the  doctrine  of 
more  an  English  Parliament ;"  that  the  present  upper  House  Brougham  in 
(of  Peers)  is  "  equally  composed  of  the  peerage  of  the  several  ^^^^^^^^ 
parts  of  the  united  kingdom, — that  which  now  sits  being  not 
the  Scotch,  the  English,  or  the  Irish  Parliament,  but  a  new 
Parliament  identically^  constituted  of  each,  and  which  there- 
fore must  be  taken  with  reference  to  the  preceding  devolu- 
tionst  (that  is,  as  regards  their  old  peculiar  notions,  and  dis- 
tinctive law,  &c.)  to  stand  in  the  pUwe  of  the  Parliaments  of 
these  three  portions  of  the  empire."^     Hence,  if  the  Scottish 
Parliament  still  exists,  so  far,  as  an  element  of  the  British,  so 

'  Doubts,  p  124.  So  much,  again,  for  honours  only  being  feudal  or 
territorial  before  1214,  according  to  the  searching  law  of  Lord  Mansfield ! 

'  See  Report  of  the  Waterford  Peerage  claim,  in  Clark  and  Finnel- 
ly^8  Appeal  Cases,  vol.  VI.  P.  I.  pp.  148,  and  previously  at  p.  147. 


case. 


844  INQUIRY  INTO  THE  LAW  AND  PRACTICB 

may  congruently,  a  Scottish  honour  in  a  British  Peerage, 
that  gives  the  right  to  sit  there,  and  may  be  as  much  Scottish 
as  English  or  Irish,  especially,  as  above,  in  the  person  of  a 
domiciled  Scottishman ;  from  whence  it  might  follow,  the  laws 
of  his  country  too,  being  preserved  by  the  Articles  of  Union, 
that  the  descent  of  his  British  title,  under  a  Scottish  denomi- 
nation, ought  to  be  accordantly  fixed  and  regulated  by  them. 
Concarrent  opi-  My  conclusion  is  at  least  Supported,  a  fortiori^  by  the  opinion 
"nTehLfTthl  of  those  lawyers  who  advised  the  son  of  John  Earl  of  Strath- 
Bo  wet  cUum»  more,  (a  Scottish  dignity),  by  Mary  Milner,  to  claim  the  British 
Barony  of  Bowes,  (as  will  be  afterwards  seen,^)  limited  in  1815 
to  the  Earl,  and  the  lawful  heirs-male  of  his  body ;  the  said  son 
being  only  capable  of  being  lawful  by  the  subsequent  marriage 
of  his  parents,  according  to  the  doctrine  of  the  Scottish  law, 
that  is  wholly  rejected  in  England.     It  is  true,  the  claim  was 
unsuccessful ;  but  that  was  upon  the  specialty  of  the  parties 
being  held  as  English^  and  not  as  Scottish,  both  being  domi- 
ciled in  England,  where  they  uniformly  resided,  and  the  father 
of  the  child  had  large  estates. 
Discarding  the       Discarding,  however,  the  law  of  conquest  with  us  in  hon- 
law  of  co°<i"«»'  ours,  the  general  presumed  one  then,  of  heritage, — as  opposed 
ours,  those  in  to  couqucst, — wholly  applying,  without  any  control,  the  Bclha- 
instance*  would  ^^^  dignities,  of  course,  would  have  invariably  descended,  even 
have  always  de-  in  the  Opposite  Contingency  considered,  according  to  its  distinc- 
n««-  ucended.  ^^^^  attribute,  as  has  been  fully  instructed,  to  the  Wishaw  line. 
And  this  must  also  be  taken  in  reference  with  what  has  been 
speculated  as  to  the  British  honour,  where  there  still  would 
be  room  for  disceptation,  in  the  same  way,  owing  to  the 
marked  contrariety  of  succession  in  the  two  kingdoms. 
Successful  claim      ^^  consequence  of  what  had  preceded,  as  stated,  in  1793, 
coiiatOTarBeU  ^^'^^*™  Hamilton  of  Wishaw,  not  then  a  party,  but  male  des- 
haven    heir-    Cendant  and  representative  of  the  William  Hamilton  of  Wishaw 
preferabiT^      mentioned,  yottw^e*/  of  the  three  Udston  brothers,  owing  to  the 
of  line,  in     way  being  thus  necessarily  cleared  for  him,  claimed  forthwith  the 
Belhaven  dignities,  in  a  more  solemn  and  effectual  manner,  by 
a  royal  reference,  upon  his  petition  in  1795 ;  and  after  legally 
establishing  his  descent,  with  the  necessary  extinctions,  that 

*  Under  the  Strathmore  Peerage  ease,  in  1821,  see  p.  848. 


1795-6. 


IK  SCOTTISH  PKERAQES,  &C.  845 

mow  formed  the  only  obstacle,  bad  tbem  awarded  to  bun, 
by  tbe  Lords'  resolution,  on  tbe  19tb  of  April  1799.  ^ 

I  am  informed,  and  it  transpires  from  tbe  Belhaven  pro-  Scottish  law 
cedure,  that,  by  tbe  law  of  England,  tbe  party  in  1790,  and  J"^,;*^  ^^^j^"^^^- 
1793,  of  tbe  elder,  or  Coltness  branch,  would  have  been.sition  to  the 
preferred ;  but  with  us,  it  was  obviously  di£Perent,— thus  ad- ,?  affferenX^Imd 
ditionally  instructing — independently  of   other  weighty  au- the  fatal  cowe- 
tborities,   even  including   English  lawyers, 'and  the   plain  2dhibuion  of  any 
sense  and  reason  of  the  thing,  to  the  same  purport,  that  the  con^'^nr  irreie- 

°  ,  .    vant  system  aa 

law  of  Scotland  must  relevantly  and  exclusively  govern,  as  it  pretended. 
here  clearly  did,  in  tbe  case  of  Scottish  Peerages, — instead  of 
ihe/oreign  English, — or  an  anomalous  intermediate  system, 
such  as  has  been  crudely,  and  gratuitously  affected  by  some,  in 
modem  times.  Certainly  too,  you  cannot,  at  the  same  time, 
both  approbate  and  reprobate,  in  law  ;  and  hence  if  you  en- 
force the  appropriate  Code, — besides  so  solemnly  reserved 
to  us  by  the  Articles  of  Union,— even  but  in  a  particular,  es- 
pecially in  tbe  above  essential  one,  (among  many,  as  actually 
obtains,)  you  must  do  so  in  toto.  There  is  no  subsequent 
room  for  any  contrary  qualified,  or  party-coloured  doctrine. 
Indeed,  admitting  the  latter, — not  adverting  to  its  gross 
illegality,  —  the  most  baneful  and  inextricable  legal  con- 
sequences would  ensue ;  Peers,  hitherto  admitted  and  re- 
cognised, would  then  fall  to  be  deprived  of  their  honours  f 
there  would  indeed  be  no  definite,  practicable,  or  consistent 
rule.  Our  Peerage  law  would  be  at  the  mercy  of  mere  fluc- 
tuating whim  and  caprice, — not  to  add  any  plausible,  though 
in  fact  dangerous  innovation,  under  Lord  Mansfield's  un- 
describable,  deceitful  and  elusory  maxim  of  expediency,  be- 
sides so  unauthorized  in  itself,  to  be  afterwards  adverted  to. 

*  Lords'  Journals.    Of  eonrse,  it  was  agreed  to  by  the  crown. 

'  This  will  be  proved  in  the  sequel,  under  the  closing  remarks. 

'  The  Peerage  determinations,  moreover,  in  the  Stair,  Enrol,  and 
Roxbnrghe  cases,  &c.  would  all  be  void  in  effect,  as  the  honours  in 
every  one  of  them  were  awarded  to  claimants  by  regrants,  upon  re- 
ngnations,  altering  the  original  established  descent,  quite  in  the  face 
of  the  English  law,  that  absolutely  scouts  and  rejects  such  mode  of 
oonveyance.  And  I  need  not  add,  that  there  are  other  striking  discrt- 
pancies  between  our  law  of  succession,  and  the  English,  independent 
of  what  is  noticed,  as  capable  of  producing  the  condemned  results  above. 


846  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Unsuccessful  Under  favour,  however,  of  the  above  crude  and  absurd  con* 
^/'';j^^";*^i^y-ceitand  haUucination,  Captain  William  Hamilton,  likewise, 
attempted,  the  putative,  and  rejected  Peer  in  1793,  sought,  in  his 
nance  orLords  extreme  Straits,  as  a  forlorn  hope,  to  bring  foreign  law,  and 
Mansfield  and   ^jj^t  of  England,  to  his  aid,  in  the  weighty  matter  of  the  sue- 

Roulyn,    to      *         ,  ^  -.         ,  i  o         •  i      i  i     « 

make  the  En-  cossion,  where,  under  the  relevant  ocottish,  be  was  wholly 

foi^*tesu!.wWch  ®xcl^<i®<l*  He  founded,  not  unnaturally,  upon  the  strange 
was  rejected,  arbitrary  rule  of  Lords  Mansfield  and  Rosslyn,  since  the 
Union,  in  respect  to  the  descent  of  our  honours  only  to  heirs- 
male  of  the  body,  their  peculiar  presumptions  in  descent,  and 
upon  the  irrelevant  construction  of  our  limitations  by  the  for- 
mer, after  the  special  method  in  the  Kirkcudbright  instance, 
with  certain  relative  precepts  and  dicta^  which,  he  truly  said, 
were  quite  contrary  to  the  law  of  Scotland,  and  which  last  be- 
ing fully  discarded,  under  the  mi3taken  assumption,  moreover, 
of  such  extraneous  innovations  being  solely  by  the  law  of  Eng- 
land, he  next  contended  accordingly,  that  it  therefore  should 
solely  rule  in  his  important  point,  and  necessarily  give  him 
the  preference  as  the  heir.  This  was  indeed  rather  a  violent 
resource  and  expedient.  We  hence  again  see  the  deep  obliga- 
tions we  owe  to  the  preceding  legal  dignitaries,  and  that  error 
only  engenders  error.  Nay,  under  their  shield  and  counte- 
nance— for  if  you  transgress  one  law,  according  to  original 
precept,  you  may  perpetrate  every  ruin, — he  went  further, 
and  even  maintiuned,  that  all  Scottish  Peerage  grants  after 
the  Union  of  the  crowns,  must  be  regarded  but  as  English,  and 
construed  accordingly,  in  their  limitations,  &c. !  But  the 
House  of  Lords,  now  under  the  direction  of  other  wiser  coun- 
sels, would  not  listen  to  such  absurdities,  as  little  as  to  the 
previous  plea,  and  at  once  rejected  his  claim.^ 
important  point  In  the  final  Belhaven  claim  in  1795,  and  afterwards,  this 
fixed  In  the  Bel- ™P^^^°*  point  was  Settled  under  the  head  of  extinctions, 
haven  claim,  in  which  rather  abounded,  not  unnaturally,  owing  to  the  compass 
of  the  pedigrees,  that  when  the  existence  of  a  preferable  heir 

*  I  am  informed,  that  this  Captain  William  Hamilton,  and  his  male 
stock,  that  of  Coltness,  have  since  failed ;  so  that  the  present  Lord  Bel- 
haven,  the  son  of  the  claimant  in  1799,  is  now,  in  every  possible  view, 
the  heir-male  ;  and  consequently  male  representative  of  the  common 
Udston  branch  of  the  family  of  Hamilton. 


IN  SCOTTISH  PEERAGES,  &C.  847 

18  merely  established  by  secondary  or  historical  evidence,  if  he 
happen  thereby,  at  the  same  time,  to  be  extinguished,  that  ipso 
facto  suffices  in  law,  always  supposing  t^ac  nothing  farther  is 
recoverable.  The  objection  comes  thus,  in  fact,  to  be  entirely 
neutralized,  the  evidence  itself  proving  a  fair  antidote  to  any 
baneful  effects  it  may  bear,  in  gremio.^ 

The  case  of  the  Barony  of  Berth  wick,  from  1808  to  1816,  Case  of  Borth- 
&c.  has  already  been  discussed,^  as  well  as  those  of  the  Duke-  ^'^isf^™  ^T  r 
dom  of  Roxburghe,^  and  Marquisate  of  Queensberry,  &c/  Queenaberry  in 
decided  respectively,  the  11th  of  May,  and  9th  of  July  1812.^^^'^' 
The  former  involved  the  import  of  the  patent  of  the  Rox*  Cue  of  Rox- 
burghe  ducal  honours,  the  25th  of  April  1707,*  having  refer- ^^^^*»  '^^^ '° 
enee  to,  and  under  control  of  the  regrant  of  the  Earldom, 
(first  created  in  1616,^)  upon  a  resignation,  the  31st  of  July 
1646,®  in  terms  of  which,  through  the  medium  of  a  relative 
entail,"  includmg  moreover  the  lands,   the  family  honours, 
with  express  exception,  however,  of  the  Barony  of  Roxburghe, 
were  awarded  to  a  female  heir.    The  constitution  of  the  Bar-  Barony  of  Rox- 
ony  not  being  preserved,  though  the  date  of  the  act  of  crea-  i*o^d®i^'l8i2 
tionis  transmitted,  as  on  the  16th  of  November  1600,^^  it  was 
held  to  descend  only  to  heirs-male  of  the  body,  and  to  be 
extinct,  owing  to  their  failure  J  ^     This  was,  in  a  measure,  ac- 
cording to  Lord  Mansfield's  law,  though  the  cotemporary  des- 
cent of  the  estates  was  to  heirs-male.     The  opposing  claims, 
also   by  royal  references,  of  Lady  Essex  Ker,  the  nearest 

'  The  above  account  is  taken  from  the  papers,  pleadings,  and  pro- 
cedure in  the  case,  &c. 

'  See  pp.  584—694,  incl. 

■  See  pp.  77,  96, 199,  201,  218-19,  729-30,  814-16. 

*  See  pp.  668-9.  *  Lords'  Journals. 

'  Great  Seal  Register. 

'  In  favour  of  heirs-male  only.  (Original  Roxburghe  Charter-chest.) 

'  Great  Seal  Register.  *  Upon  Record. 

^  Under  the  autograph  attestation  of  Sir  David  Lindsay  of  the 
Mont,  Lord  Lyon  at  the  time.  Ad.  Lib.  This  was,  of  course,  not  the 
previous  Sir  David  Lindsay  of  old,  so  noted,  but  a  later  relative,  who 
diflchajiged  the  same  functions.  The  former  Sir  David,  of  the  date  given 
in  the  text,  states  there  that  ^^  the^  Laird  of  Cessfuird  "  was  created 
"  Lord  of  Roxburgh," 

^'  Streas  was  also  laid  upon  the  non-assumption  of  the  dignity  siTice 
the  death  of  Robert,  the  first  Baron,  without  heirs-male  of  his  body. 


848  JNQUIBY  INTO  THE  LAW  AND  PRACTICE 

I 

Roxburghe  heir  of  line,  and  of  General  Walter  Ker  of  Little- 
dean,  a  very  distant  heir-male  collateral,'  under  that  charac- 
ter, equally  founding  upon  the  above  regulating  conveyances, 
which  they  construed  their  own  way,  were  rejected.* 

The  case  of  the  Earldom  of  Airlie,  in  1812,  &c.  has  like- 
wise been  given  under  the  article  of  Forfeiture.' 

Cue  of  the        The  case  of  the  Earldoms  of  Strathmore  and  Kinghom,  &c. 

strathmore,  in  (already  glanced  at"*)  in  1821,  merely  involved  a  point  of  legiti- 

^^^^*  macy,  whether  the  domicil  of  John,  the  last  Earl  of  Strath- 

more, was  English  or  Scottish ;  and  the  former  being  esta- 
blished, John  Bowes,  his  natural  son,  was  adjudged  not  to 
be  legitimated  by  the  subsequent  marriage,  in  London,  of  his 

It  merely  inToi-g2U(}  father,  with  Mary  Milner,  an  Enirlish  woman,  though 

▼ed  an  immate-  ,  »•«     t   •     «.      i  «  i  i       i         i      t-     i 

rial  matter  of  '*  solut  persones.  '  It  IS  further  observable,  that  the  Earl  was 
legiUmaey.  nearly  in  extremis  at  the  date  of  his  marriage,  the  2d  of  July 
1820,  being  carried  to,  and  taken  from  church  in  a  chair  for 
the  celebration,  under  the  mortal  malady  of  which  he  died 
next  day.  This  would,  moreover,  have  founded  an  objection 
by  the  canonists.^  The  case  came  before  the  Lords  by 
royal  references,  upon  the  respective  petitions  of  the  offspring 
in  question,  and  of  Thomas,  present  Earl  of  Strathmore,  the 
next  brother,  and  heir-male  of  his  father,  both  claiming  under 
tbe  regulating  grants  of  the  honours,  the  30th  of  May  1672, 
and  the  1st  of  July  1677)^  (on  a  resignation)  to  heirs-male  in 
the  first  instance ;  and,  in  terms  of  the  Lords*  resolution,  Earl 
Thomas  was  necessarily  preferred,  on  the  29th  of  June  1821.^ 

'  See,  on  this  head,  pp.  401,  et  9eq,  '  Lords'  Joumals. 

•  From  p.  724,  to  p.  730,  inc/. 
«  See  pp.  418—844. 

*  This  was  agreeably  to  the  present  law ;  see  pp.  417-8. 

'  See  pp.  483-4.  Of  courso,  the  unsuccessful  party  here  objected,  as  in 
point,  and  as  rebutting  the  exceptiou  by  our  law,  (according  to  modem 
fashion  in  such  emergencies,)  the  inaccurate  report  of  the  case  of  the 
Master  of  Sempill,  by  Craig.  See  pp.  484,  n.  2  ;  463,  n.  4.  &c.  Accord- 
ing to  Craig,  the  Master  was  carried  to  the  celebration  in  lecticay  while 
the  Earl  of  Strathmore  in  a  sedan  chair. 

'  Originals  in  the  Family  Charter-chest,  and  Great  Seal  Register. 
They  proceeded  upon  a  resignation,  extertding  the  original  descent,  ac- 
cording to  the  old  system. 

'  Lords'  Journals,  papers  in  the  case,  &c.  John,  the  natural  son,  also 
unsuccessfully  claimed,  in  the  same  wi^y,  in  1821,  his  fathe9^9  British 


IN  SCOTTISH  PEERAGES,  &C.  849 

On  June  14,  1823,  there  occurred  the  discussion  before  Heritable  Office 

the  Privy  Council,  between  the  Duke  of  Hamilton,  Marquis  of  g^own'of"lcot- 
Douglas,&c.andthelateLordDouglas,  re8pectively,maleand>«ud  at  Parlia- 

female  descendants  of  the  noble  family  of  Angus,  touching  ed  by  a  party  to 
the  claim  of  the  latter,  that  was  opposed  by  the  former,   to  ^ti!^*lh°*^^*ht 
the  oflSce  of  bearing  the  crown  of  Scotland,  (still  preserved),  at  to  the  Earldom 
royal  processions.     Strictly,  the  hereditary  right  in  question  4922!^*** '° 
was  that  of  bearing  the  crown  at  Scottish  Parliaments^^  of 
course  merged  now  in  the  British ;  but  the  same  had  received 
a  liberal  interpretation  at  the  Scottish  coronation  of  Charles  I. 
at  Edinburgh,  when  it  was  determined  in  Privy  Council,  the  Extended  by 
12th  of  June  1633,'  <*  that  the  honoitrs,  (comprising  the  crown,)  tr^rrying^^e 
be  carried  be  the  same  persons  at  the  coronation^  who  are  to  ®'°?^°  ^  ^®'°" 

1  1^  !•  .111.  naliona. 

carie  the  same  at  the  parliament ;  to  wtti^  the  eldest  m  crea- 
tion,"— which  adjunct  has  been  differently  interpreted ;  and 
accordingly,  the  crown  was  borne  at  this  other  solemnity  by 
William  Douglas,  Earl  of  Angus,  created  Marquis  of  Doug- 
las, ancestor  of  the  preceding  noble  parties,  and  undoubtedly 
the  hereditary  crown*bearer  in  Parliaments.  From  thence,  by 
strong  induction  and  reason,  the  hereditary  privilege  was  na- 
turally argued  to  extend  to  all  public  and  royal  processions 
where  the  crown  might  be  carried.     The  Duke  of  Hamilton's  The  office 

1   •  •    J.  ^      •  'a-  _     ai_  J   claimed,  in 

daim  or  mterest,   m  opposition,   upon  the  same  ground,  1322-3,  by  the 
quoad  the  office,  stood  upon  his  alleged  right  to  the  Earldom  heir-maie,  and 

i.   *  .11  /.lo.ii.ii  11.        *  heir-female,  un- 

of  Angus,  Still  unconfirmed,^  with  which  he  contended  the  of-  der  older  and 
fice  was  connected,  and  upon  the  older  grants  of  the  Ctomite-J[^^®^^*^[''^5' 
tus  of  Angus  to  heirs-male,  specially  conveying  it.     Lord  the  previous  ar- 
Douglas  claimed  upon  the  subsequent ^  and  noui  regulating  §^™^idm^ 
grants  of  the  fief,  latterly  under  the  sign  manual,  to  the  like 
import,  towards  the  end  of  the  17th  century,  and  beginning 
of  the  18th,  (before  the  Union,)— but  introducing  heirs^/^mofe, 
and  necessarily  himself  in  exclusion  of  the  former.     The 

Barony  of  Bowes,  &c.  (now  extinct,)  created  the  7th  of  August  1815, 
to  Atmy  and  the  heirs-male  of  his  body. — Lords'  Journals. 

'  See  p.  157.     '  See  Acts  and  Decrees  of  Privy  Council,  of  that  date. 

'  It  was  claimed,  by  a  royal  reference,  upon  petition,  by  Douglas 
Duke  of  Hamilton,  his  male  predecessor,  in  1762, — as  also,  in  the  same 
year,  by  the  late  Lord  Douglas,  see  pp.  649-50 ;  but  no  discussion  or 
resolution  obtained, — the  matter  not  being  prosecuted. 

3h 


850  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

R«uiiffe  Report  BritUh  Pfivy  Couneil,  after  the  discussion  noticed,  represented 
Councnta1iM3,*o  GeoFge  IV.  by  their  report,  the  8th  of  August  1823,  that 
approTed  of  by  while  the  hereditary  privilege  of  bearing  the  crown  at  royal 
processions,  gtnerallyy  was  not  made  out,   Lord  Douglas's 
claim,  so  far  as  it  went,  involving  an  heritable  right,  might  be 
discussed  and  decided  by  the  Courts  of  law  (Scottish),  which 
his  Majesty  approved  of  accordingly.     There  has,  however, 
been  no  later  procedure.     The  report,  in  the  closing  resolu- 
tion, was  obviously  in  consonance  with  our  Peerage  practice 
before  the  Union.^ 
Are  high  Here-     The  leading  decision  in  the  case  of  Cockburn  of  Langton, 
diiary  otBce*    23d  of  July  1747,*  ss  to  the  hereditary  office  of  King's  Usher 

analogous  to      ,  •'  •'  ° 

Peerageis  in      in  Parliaments,  and  General  Assemblies,  &c.  has  shaken  an 

an^r  deVoiu^'  ^^^*  entertained  of  our  high  hereditary  offices  being  analogous, 

tion,  &c.  or  if  in  ccr tain  attributes,aiid  their  dc vol u tiou,  to  Peerages,  and  nottii 

in  tvmmtrcio  f   commercio  ;  and  the  late  Lord  Lauderdale,  when  he  olgected to 

the  rightof  the  Earl  of  Errol  to  his  dignity  in  1796-7,^  admitted 

that  the  latter  would  still  continue  hereditarv  Constable  of  Scot- 

land,  in  virtue  of  its  being  carried  in  his  favour,  like  an  ordinary 

subject,  by  a  mere  Exchequer  charter,  without  the  sign  manual, 

that  was  also  invalidly  founded  upon,  in  respect  to  the  honours. 

The  qaestion    before  the  fortunate  discovery  of  the  solemn  and  regulat- 

may  be  gtiii,    \^o  conveyancc  transmitting  both.^    But  this  material  question 

in  a  certain  rle-       o  .  o  i 

gree,  doubtful,  may  uot  be  properly  settled ;  and  I  formerly  referred  to  oppo^ 
aiiy^^^the^ratler  *''^  ^^%^\  couclusions  and  authorities,  in  the  reign  of  Charles 
conclusion  pre-  IL  as  to  the  nature  and  descent  of  the  high  hereditary  office  of 

Constable,  as  well  as  Great  Marshal  of  Scotland.^ 
Retoiution  of        The  Lords  resolved,  the  13th  of  May  1822,  upon  a  report 
i822^forcing    ®'  ^^^^  Committee,  to  whom  the  matter  had  been  referred, 
remoter  heirs    under  the  Same  authority,  that  none,  '^  upon  the  Decease  of 

'  From  the  printed  papers  and  authorities,  &c.  in  the  case.  For 
more  minute  particulars  of  the  same,  that  grew  out  of  contending  claims 
of  the  noble  parties  to  carry  the  crown  at  the  procession  of  George 
IV.  to  the  Castle,  when  in  Edinburgh,  in  1822,  see  Mr.  Maidment's 
'^  Heraldic  and  Antiquarian  Tracts,"  published  in  1887,  pp.  xxviii-ix. 
^  9eq, 

•  See  Falconer's  Reports.  ■  See  pp.  85,  770,  n,  768-9. 

•  See  pp.  65,  260,  814-15,  n.  where  the  Exchequer  charter  in  the 
text  is  explicitly  noticed. 

•  See  p.  24,  including  n.  2. 


r 


IN  SCOTTISH  PEERAGES,  &C.  851 

any  Peer,  or  Peeresa  of  Scotland,  other  than  the  son,  grandson,  and  eUinanu  u> 
or  other  lineal  descendant  or  the  brother  of  such  Peer,  or  the  *?*I'"^^  ^^" 

^  '  right  to  Peer- 

son,  grandson,  or  other  lineal  descendant  of  such  Peeress,  shall  ages    before 

be  admitted  to  vote  at  the  Election  of  the  Sixteen  Peers,  &c.  or 'j^J^,;  °"p',^' 
at  the  Election  of  any  one,  or  more,  of  such  Peers  (Scottish),  to  deceseort. 
supply  any  vacancy*'  in  the  Scottish  representation  accordingly, 
**  untiU,  on  claim  made  on  behalf  of  such  person,  his  right  of 
voting  at  such  Election  or  Elections,  shall  have  been  admitted 
by  the  House  of  Lords ;"  it  being  at  the  same  time  resolved, 
**  that  the  right  of  every  person  voting,  or  claiming  to  vote, 
or  having  voted  or  claimed  to  vote,  at  any  Election  of  the 
Peers  of  Scotland,  shall  he  subject,  and  liable  to  every  objec* 
0on  to  which  the  same  would  have  been  subject  and  Uable, 
had  the  foregoing  Resolution  not  been  agreed  to."  ^     And  ac-  eu^^  ^f  the 
cordingly,   Henry  David,  Earl  of  Buchan,  the  paternal  ne-  ^ari  of  Buchan 
phew  of  the  last  Earl,  upon  his  petition  to  the  Lords  simply,  tngiy,  ,a  isso. 
grounded  upon  the  previous  Resolution,  to  be  allowed  to  es* 
tablish  his  right  to  vote  at  such  Elections,  had  the  matter  re- 
ferred to  a  Committee  of  Privileges,  the  14th  of  July  1830, 
who  reported  the  2l8t  of  Ju\y  thereafter,  that  the  petitioner 
**  hath  made  out  his  Claim  to  be  admitted,  as  a  Peer  of  Scot- 
land, to  vote  at  the  Election  of  Peers,''  &c.  f  which  being 
agreed  to,  the  consequent*^  Resolution  and  Judgement*^  was 
ordered  to  be  forwarded  to  the  Lord  Clerk  Register  of  Scotland. 

It  must,  seemingly,  as  formerly  remarked,^  be  incidentally  Thu  as  a  com- 
with  a  view  to  the  Election  of  the  Sixteen  Scottish  Peers,  ne-  kaT^^^fe^raM^ 

*  Lords'  Journals.  *  Und. 

*  See  pp.  Q4B-0, 288,  n.  By  the  Irish  Act  of  Union,  39  and  40  of  George 

m.  (1800),  c.  Q7,  Art.  4.  the  British  House  of  Peers  have  power  and  Different  sit  ua- 
authority  givei)  them,  in  Irish  Peerage  Elections,  and  relative  claims, !{,°"  t *^*^i'*'**j 
with  right  of  decision.    This  might  follow  naturally,  in  a  certain  Scotti«h  Peers, 
measure,  from  the  former  dependence  of  Ireland  upon  Kngland,  and  bs  to  claiminj^, 
similarity  of  their  laws  and  institutions,  after  the  abolition  of  the  Irish  *i  ""^ff  »'once  t« 
Parliament ;  but  in  the  Scottish  Act  of  Union  in  1707,  there  is  no- 
(k*9g  of  the  kind  on  the  ht'-ad  of  Peerage  Elections,  nay,  no  Peerage  juris- 
diction at  all  is  given  thereby  to  the  present  noble  tribunal, — naturally 
enough  owing  to  the  fact  I  have  shewn,  of  the  Supreme  Civil  Court 
with  U8,  being  here  the  Ordinaries,  and  its  strictly  being  only  com- 
petent, by  our  law  and  notions,  to  the  British  House  of  Peers,  upon  op- 
fcs/,  as  in  any  civil  case,  to  cogfnosce  in  the  matter.    See  also  pp.640-K 


852  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

tu   Scottuh      cessarily  and  indispensably  to  ascertain  who  are  the  legal  com- 

Peeragp  Eiec-  ponent  members  of  their  body,  the  upper  Chamber  of  the  na- 
tion*, for  the       .  I         t      T¥  r  1^  1  ««        K/M 

Lords  have  tion,  that  the  House  of  Peers  came  here  to  act ;  for  different- 
The^^^En  7i»h*°" 'y*  as  rcspccts  the  Irish  Peerage,  they  have  no  corresponding 
principle,  no  fixed  power  by  statute ;  and  upon  English  principle,  contrary 
lion^n'^  p"^ra^^  ^  ^^®  Scottbh,  as  has  likewise  been  explained,^  they,  deplanoy 
»''»•  have,  directly  at  least,  no  peerage  cognizance  without  a  refer- 

ence from  the  crown,  that  may  be  delegated  to  any  persons. 
It  might,  however,  be  as  well  if  Parliament  would  conclusive- 
ly legislate,  in  every  view,  in  the  Scottish,  as  well  as  in  the 
Irish  case ;  for  besides,  the  above  resolution  of  the  Lords,  in 
1822,  has  not  met  the  general  evil,  so  much  complained  of;  it 
does  not  apply  to  parties,  the  asserted  claimants  to  Peerages, 
that  have  been  previously  assumed,  owing  to  the  failure  of  im- 
mediate heirs,  without  the  range  of  the  privileged  relation- 
ship specified,  as  is  illustrated,  inter  alia^  in  the  late  futile  pre- 
tensions to  the  Earldom  of  Stirling.    Under  colour  of  the  pre- 
ceding motive  too,  of  extrication  of  necessary  right,  it  is  pos- 
sible to  imagine  that  the  Lords  might,  in  fact,  in  worse  times, 
(still  upon  the  English  principle),  encroach  upon  the  exclusive 
cognizance  of  the  crown  in  honours,  and  ultimately  decide  in 
Their  privilege,  Scottish  Peerage  claims  in  general.     Hence  it  may,  perhapsj 
80  far,  should  be  partly  dubious,  whether  the  case  of  the  Earl  of  Buchan  in 
rtretched,^^and  1830,  not  Springing  from  a  contested  Election,  or  immediate- 
might  be  better  \y  touching  the  uoblc  tribunal  in  question,  was  thus  strictly  de- 
(ixed  by  Act  of  terminable  as  it  stood,  without  a  special  reference  from  the 
Parhainent.      erown,  which  might  have  been  more  regular  and  satisfactory. 

Peiiiionin  1832  ^^  *^®  ^^^  ^^  March  1632,  Mary  Marchioness  of  Down- 
by  the  Mar-  ghirc,  Baroucss  Sandys,  &c.  petitioned  the  Lords  against  Mr 
DuwTshire  to  Humphrys  Alexander,  whose  claim  was  utterly  nugatory,  in  so 
I  he  Lords,  ^.  f^,.  j^g  regarded  his  voting  at  Elections  of  the  sixteen  Peers, 
»umer  of  the  and  taking  the  dignity  of  Earl  of  Stirling,  upon  the  preamble 
our8"in  «^°"  ort  ^^^  ^®  kuown  patent  of  the  Stirling  honours  was  only  to 
of  her  own  prior  heirs-male,  and  that,  upon  his  own  shewing,  if  there  was  a 
upon^hi.  own  valid  extension  of  them,  as  he  pretended,  (in  1639),  totheeldest 
shewing.  heir-female,  without  division,  of  the  last  heir-male,  they  did 

not  belong,  as  he  stated,  to  him,  but  to  her  Ladyship,  as  the 


'  See  pp.  648-9,  ut  iup,  &c.  also  p.  P53. 


IN  SCOTTISH  PEERAGES,  &C.  853 

direct  descendant  of  Lady  Judith  Alexander,  sister  of  Henry, 
the  last  Elarl  of  Stirling,  who  died  in  1739.'  This  consequence 
was  perfectly  correct,  as  has  been  further  since  corroborated; 
and  the  noble  petitioner  concluded  with  praying,  that  the  Lords 
would  require  the  intrusive  party  to  prove  his  right  by  due 
courseof  law,  until  which  he  may  be  enjoined  not  to  assume  the 
dignity,  or  exercise  the  relative  privileges ;  or  that  they  should 
make  such  other  order  therein,  as  may  be  proper  for  the  pro- 
tection of  the  privileges  of  the  Peerage,  and  their  honour  and 
dignity.     The  petition  was  referred  to  a  Committee  of  Privi-  Referred  to  in 
leges,  the  19th  of  March  of  the  same  year,^  previously  con- ^n^^^^'^^ 
stituted  by  the  Lords  in  reference  to  Peerage  matters  ;  but  following. 
nothing  followed  of  importance. 

The  Countess  Dowager  of  Northumberland,  in  1672,  had  Similar  North- 

..,,_,.-.,  .         ^  „  umberUod  case 

petitioned  the  Lords  m  like  manner,  against  James  Percy,  in  i672. 
(an  impostor,  as  transpired,)  taking  the  titie  of  Earl  of  Nor- 
thumberland and  Lord  Percy,   "to  the  dishonor  of  that 
family,"  when  the  House  referred  the  matter  to  the  Commit- 
tee of  Privileges ;  but,  as  Cruise  pertinently  observes,  **  the 
house  (afterwards)  applied  to  the  King  for  permission  to 
proceed  in  the  claim,"  on  the  part  of  Percy,  "  which  was 
granted,"  so  that  all  difficulty  and  exception  were  here  ob- 
viated.^   This  subsequent  form  (upon  English  principle)  might  Better*  if,  in 
hence  have  been  also  adhibited,  through  application  of  the  Downahire  pro- 
Lords,  or  of  the  party,  in  the  case  of  the  Marchioness  of  **^"^'    i**? 

'  irx  •  *•  sanction  of  the 

Downshire,  (the  Dowager);  for  Cruise  agam  jusuy  inculcates,  crown  had  abo 
"  that  without  a  reference  by  the  crown,  the  house  of  lords  ^"'•'^^*°®**- 
has  no  right  to  entertain  a  claim  to  a  dignity.*'^ 

The  case  of  the  Barony  of  Polwarth,  before  the  Lords  by  ^"«  **^^*VJ  ?** 

'         ,  .  ,  .  •'  rony   of  Pol- 

royal  references,  upon  the  petitions  of  successive  heirs,  under  warth,  iei8-35. 
the  same  character,  from  1818,  until  the  25th  of  June  1835, 
when  it  was  decided,  has  been  already  stated.^     I  still  con-Byour^enicine 
tend,*  that  by  our  genuine — at  least  older  law,--iu  virtue  of  Jg^mg^oMhe 
the  limitation  in  the  Polwarth  patent  in  1690,  to  heirs-male  Polwarth  limi- 


'  I  need  hardly  add,  that  such  regrant  was  quite  visionary,  and  an 
actual  forgery  ;  see  p.  293,  n. 

•  Lords'  Journals.  '  On  Dig.  p.  2.')7.  *  Ibid, 

*  See  pp.  177,  fi73.8.  incL        "  See  p.  196. 


864  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

tation  in  1690,  of  the  bodj,  ftlid  to  their  heirs^^ — ^the  heirs-male  being  conBtm- 
o/femaie  oHhe  ®d^*<  to  be  exhausted,  (as  to  which  there  is  now  elsewhere 
last  heir-ma/e  a  questioo,  that  did  not  fall  to  be  solved  in  the  above  claim/ 
would  ha'e  ex-  the  claimant  being  alike  the  heir  female,  or  geheral,  of  all  the 
eluded  the  heir  ijg;rg.uj,jjg\  ^^  daughter  or  heir-female  of  the  heir-male  last 

in  such  capaci-  ,  '  ° 

ty,  of  (he  elder  in  possession,  though  a  younger  heir-male,  would  exclude  the 
eir-m  e.  daughter  or  heir-female  of  an  older  one,  who  had  happened  to 
Difference  here,  take  before.  Our  peculiar  distinctive  law,  I  conceive,  difier- 
law  and  the  ^^^  from  that  of  England  in  these  respects,  merely  inquir* 
Engiifh,  with    ^d  in  such  cases  of  succession,  who  was  the  heir  of  the  idst  in 

iUustratiodt. 

possession,  without  looking  back,  as  there,   or  weighing  or 

tracing  it,  ab  origins?     In  this  way  a  father,  as  heir  of  an  only 

child,  deceased  without  issue,  still  succeeds  to  a  feu,  that 

had  vested  m  the  latter,  through  his  mother,  an  heiress,  to 

whom  the  previous  parent  had  no  blood  relation, — although 

the  original  superior  at^d  graht^r  merely  contemplated  die 

blood  of   the  mother's  ancestor,  the  primus  investitus  and 

disponee,  and  intended  that  the  property  should  strictly  go  to 

Case  of  the    him  and  his  heirs/     Nay,  by  the  strong  cotemporary  and 

knd,°after  the*  Corresponding  understanding,  even  the  crown  of    Scotland 

middle-  of  the  (thus  also  comprehending  far  more  than  honours)  stood  des- 

taken  with  its    ccndible  to  the  House  of  Darnley  or  Lennox,  the  paternal 

~^***^"»^^^*- heirs  (m/y,  of  James  VI.  qua  such,  ajter  he  had  been  invested 

Act  of  Settle-   in  the  kingdom  by  bis  coronation,  and  put  in  real  possession, 

nent  in  1873*   _j^^  ^j^^  event  of  his  deceasing  childless/  The  crown,  it  is  to  be 


'  **  In  dictum  Dominmn  Patricium  Hume  (the  patentee)  et  haeredes 
masculas  de  corpore  stio  legitime  procreates  sen  procreandos,  et  Hdsredes 
dictorum  suorum  hasredum.^    Great  Seal  Register,  and  Books  of  Pfekrl. 

'  Still,  in  effect,  tn  pendenti ;  as  will  be  obvious  in  the  sequel. 

*  See  Stair,  B.  III.  T.  IV.  §  34, — thus  completely  at  variance 
with  the  English  principle,  tnateme  matemis, 

*  See  Stair,  ut  sup. 

*  See  pp.  196-7.  The  effect  of  the  coronation,  or  investiture,  upon 
the  feudal  principle,  was  great ;  and  this,  among  certain  political  deliber- 
ations in  16G8,  was  one,  that  there  should  be  an  Act  preserving  agsdnst 
prejudice  the  right  of  the  Hamiltons,  (as  next  heirs  of  Mary),  just  at 
the  tifne  of  her  marriage, — ^i.  e.  before  James's  birth  and  coronation,  that 
thus  ex  necessitate,  seriously  deterioriated  it.  (Secretary  Cecil's  *•  De- 
liberations," of  that  date,  Paper  Office.) 

On  this  head  Sir  Nicholas  Throckmorton,  in  his  Letter,  quoted  under 


IN  SOOTTISfl  PKEHAGKS,  &C.  865 

obserTed,  merely  came  to  James  V  I.  through  Mary^  hi6  toother,  Pretomption  in 
of  wham  the  Hamiltons,  excladed  a6  above,  after  him,  were  the  ^X"^^'  ^/,^^" 

,  Hou«e  of  Len- 

nextstrictly  by  bloody  and  certainly  not  the  House  of  Lennox,  in  nox,  upatemai 
its  vations  lines,  who,  although  preferred,  as  stated,  ^61*6  Ae^^jameA  vi.^^ 
strangers.     And,  what  is  even  additionally  remarkable,  and 
renders  this  precedent  peculiarly  apposite,  the  succession,  in 
their  instance,  had  opened  to  Mary  and  James,  under  a  re- 
mainder,— failing  repeated  ones  to  heirs-male  of  the  body,  to 
the  '^  vert  et  legitimi  heredes  de  anngmney  et  parentela  regalii 
extunc,  et  inantea,"^  in  terms  of  the  regulating  parliamentary 
settlement  of  the  crown  in  favour  of  Robert  II.  and  those 
appointed  to  succeed,  in  1373.^   What  is  this,  but  to  the  identu  it  bean  in  prin- 
CO/ lawful  heirs  of  the  Stewarts— far  more  emphatically  than  in  ""^f^^  "/^'o"' 
the  Polwarth  patent,  deriving  by  blood  from  the  person  of  the  PoiwarUi. 
**  Stewart "  then  upon  the  throne?  while  the  House  of  Dam- 
ley  or  Lennox  could  only  trace  their  male  descent  from  Sir 
Alan  Stewart  of  Darnley,  in  the  reign  of  Robert  Bruce,  long 
anterior  to  the  accession  of  the  former.    Kor,  whatever  ge- 
nealogiats  mtiy  pretend,  can  they^  by  proper  concluswe  proof, 

the  last  reference,  also  adds,  that  the  office  of  '^  Tutor  to  the  Prince^ 
(James  Vl.)  and  Governor  of  the  realtn  in  his  minority, — ^be  the  opi- 
txion  of  the  hest  teamed  in  the  law, — doth  And  justly^  appertain  to  the 
Ektl  cf  Lennox.'*  The  latter,  Maikew  Ekrl  of  Lennox,  grandfather 
6f  the  king,  M  ibe  ^^  neareH  agnate'*  ^tteceeding  to  him,  capable  of  act- 
ing, and  discharging  the  office,  was  entitled  to  that  high  situation, 
(formerly,  in  the  same  way,  discharged  by  the  Hamiltons,  in  the  in- 
fancy of  Queen  Mary,)  in  terms  of  Act  1474,  c.  6.  Charles,  his  only 
^ontjger  son,  brother  of  Darnley  deceased,  was  thus,  though  next  heir, 
on  aooonnt  of  bis  minority,  out  of  the  question  ;  and  accordingly,  the 
Earl  became  **  iauc/{fuil  tutoar  and  Regent,*'  See  Acts  of  Pari,  last  Edit. 
vol.  11.  pp.  106-7 ;  vol.  III.  p.  65.  The  Act  of  Tutory  in  1474,  under  the 
first  reference,  legally  gave  Lennox  the  tutory,  though  "  nocht 
imediate  to  succeid  to  the  childe"  (because,  as  it  specifies  "  of  yonger 
breder,"  brothers,  J  The  general  principle  of  succession  applying  hero 
by  legal  understanding,  clearly  involved  the  higher  eventual  right,  after 
the  Regency,  to  the  kingdom,  though  not  originally  inherent  in,  or 
derived  from  the  Lennox  family. 

>  Extune  is  plain  enough,  and  inantea  is  rendered  by  Du  Cange, 
femb  voce  J  in  poeterum — so  the  sense  of  the  adjunct  here  is  obvious 
ibd  natural,  and  both  HteraUy  involve  the  constant  Stetoart  descent. 

'  Original,  in  her  Majesty's  Greneral  Register  House,  among  the 
chief  muniments  of  the  kingdom,  &c. 


856  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

remount  to  an  earlier  ancestry,  or  legally  connect  themsehes 
The  HamUtont,  With  the  royal  stem.    It  is  true,  no  doubt,  that,  by  our  origi- 
ItrictWbyWood,  ^^  la w,  there  was  only  succession  to  a  mother,  or  her  relatives, 
thereby  exciud-  suchas  the  Hamiltons,  in  the  above  instance,  after  the  paternal 
line,^  though  now  wholly  excluded, — which  may  make  the  Len- 
nox case  stronger ;  but  still  the  principle  remains  in  point ;  and 
the  express  ratio  assigned  for  the  Lennox  preference  was,  that 
the  family  were  "next  heirs"  to  the  individual  last  **  invested  " 
in,  and  in  ^*  real  possession  "  of  the  crown,'  whereby  they  alone 
took — ^in  identical  words,  as  the  heirs  of  the  last  in  possession. 
Upon  thisexclusivegroundistheir  right  precisely  based,  which, 
at  the  same  time,  fully  substantiates  my  proposition,  as  it  pre- 
fers, in  principle,  every  heir  in  that  situation. 
Concurrent  '^^  essential  law  in  question,  independently  of  older  cor- 

doctrine  of  mo-  roborative  authorities,  has  besides,  even,  been  inculcated  by 
at  least  in  the    Erskiuc  in  modem  times,  who  explicitly  says,  **  no  regard  is 
ordinary  case,    y^^  ^  ^^  question,  (in  heritage).  From  what  quarter  the  es- 
tate of  the  deceased  has  come  f     If  the  right  appears  to  be 
once  vested  in  the  deceased^  the  only  remaining  question  is, 
who  is  his  heir  at  law  ?   tvithout  considering  whether  such 
•  heir  stands  related  to  him  from  whom  the  estate  descended 

to  the  deceased."^     In  the  same  way,  Macdowal  before  incul- 
cated here,  that  '*  we  (but)  consider  in  whose  person  the  right 
last  subsisted,  and  titles  must  be  made  up  by  his  heirs."  ^ 
And,  as  shewn  under  the  head  of  conquest^  the  succession,  un- 
der that  naked  and  narrow  exception,  always  paternally  des- 
cendSf  and  never  ascends,  when  there  is  a  corresponding  heir 
of  line  in  the  same  degree,  or  downwards  (by  representation) ; 
in  support  of  which  every  legal  presumption  transpires. 
Curioos  inver-       ^°  these  circumstsncos,  it  is  curious  to  observe  by  that 
•ion  of  opinion  strange  vicissitudc  and  anomaly  in  human  sentiments  and  oc- 
h^h*  ^English *  currences,  an  English  legal  dignitary  in  the  Polwarth  claim, 
andahighScot-guppQf^W  the  effect  and  construction  I  have  given  to  the 

tish  legal auiho- _  *1*         ,     i.     ..    ..  t  •  .i_  i  « 

rity.  Polwarth  limitation,— upon,  as  I  conceive,  the  natural  and 

>  See  Reg.  Maj.  Lib.  11.  e.  25,  §  5,  and  Macdowal  of  Bankton,  B. 
III.  T.  IV.  §  19.    "  Seop.l97,ande8pecially  caseofGray,p.861-2,n.4. 

"  Erskine,  B.  III.  T.  YIII.  §  10.  Stair's  authority,  as  referred  to 
before,  is  to  the  same  purport. 

•  Inst.  B.  111.  T.  IV.  §  19. 


IN  SCOTTISH  PEERAGES,  &C.  857 

genuine  Scottish  principle  ;^  while,  inversely,  it  is  rejected  by 
a  Scottish  legal  dignitary,  upon  what  may  be  only  construed 
by  us,  the  English — who,  in  the  case  agitated,  would  prefer 
the  daughter  or  heir-female  of  the  eldest  heir-male.' 

The  latter  respectable  personage  further  appeals,  in  sup-  HamUtoo  pre- 
port  of  his  conclusion,^  to  the  similar  succession  (in  fact )^  °^  *^**^  n°whi"ch^tht* 
Anne  Duchess  of  Hamilton,  the  eldest  daughter  and  heir- utter  Yoanded, 
female  of  James,  first  Duke  of  Hamilton,  to  the  Ducal  hon-^"^^^^ ' 
ours,  after  they  had  vested,  on  the  death  of  the  said  Duke 
James,  her  father,  without  male  issue,  in  Duke  William,  his 


*  This  again  corroborates  that  English  authorities  admit  the  exclu- 
sive application  of  our  law  in  the  case  of  Scottish  Peerages,  which  (how- 
ever strangely  denied,)  is  besides  strikingly  evident,  in  the  other  loEuling 
respects,  from  the  Polwarth  claim. 

'  Chancellor  Brougham,  in  the  Polwarth  resolution,  June  25,  1835,  Opinions  of 

inculcated  that  the  party  taking,  under  "  whom  failing,  to  the  heir  what-  Chancellor 

„  ,^,     _         ,     ,.  ^  .         :i        ti .      Vexi.   i_  .  ,  ^  Brouffham,  and 

joecer,"  ^"rf  toreowdictorumsuorumhseredum,"  i.  e.  of  theheirs-tiiafo)  the  late  Lord 

in  the  Polwarth  patent,  (see  p.  854,  n.  1 . )  ^*  is  the  heir-general  of  the  Uut  of  President,  in 
such  heirs-male  of  the  body  of  the  first  patentee,"  who  had  succeeded  be-  ^^®  p^i^'-Jh 
fore,  &c.  ^  Thaty"  he  adds,  *^  is  perfectly  Intimate,  accordingio  the  law  limitation. 
of  Scotland^*  And  Lord  Lyndhurst  would  appear  to  have  coincided,  (as 
has  also  been  understood  on  our  Bench ;)  for  he  stated  **  that  the  heir  in 
general  of  the  last  heir  (male)  in  tail,  is  the  heir-general  of  the  first 
heir  (male J  in  tail."    (From  the  notes  of  the  speeches  of  the  above 
Lords^  taken,  in  caura,  by  Gumey.)   But  the  President  of  the  Court  of 
Session,  in  the  similar  case  of  Lockhart  v,  Macdonald,  July  24, 1840, 
(to  be  afterwards  noticed),  in  adverting  to  the  former  of  these  opinions, 
replied,  that  the  party  in  question  *^isno  such  thing  (such  heir-gene- 
ral) by  the  law  of  Scotland  ;  it  would  be  the  daughter  of  the  eldest 
branch  of  the  heir-male."     (See  Dunlop  and  BelPs  Reports,  vol.  II. 
p.  986.)    Though  this  important  matter  was  mooted,  and  in  a  pointed 
manner,  both  affirmatively,  and  negatively,  as  thus  contended,  by  the 
litigants  in  the  case  kut  cited,  according  to  their  argument,  no  special 
authorities,  or  precedents,  other  than  the  above  legaAdicta  in.the  Polwarth 
claim,  were  referred  to.    (See,  inter  alia^  Dunlop  and  BelPs  Report,  ut 
sup,  pp.  414-15.)    On  this  account,  and  that  case  being  both  curious  and 
keenly  contested,  I  may  perhaps  be  the  more  pardoned  for  attempting 
to  contribute  my  mite  upon  the  relative  controverted  subject,  (as  in 
the  text,)  in  the  dearth  that  seems  so  fEur  to  prevail. 

*  Dunlop  and  Bell's  Rep.  ibid,  p.  386.  His  Lordship's  illustration 
turning  upon  mere  mistake  in  fact,  though  important  in  its  conse- 
quences, I  have  taken  it  upon  me  to  correct,  under  favour  of  the  known 
candour  and  liberality  of  the  eminent  l^gal  authority  in  question. 


858  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

younger  brother,  by  whose  daughters  and  heirs^female  agaie* 
(he  likewise  having  left  no  male  descendants^)  who  survived 
him,  equally  with  Duchess  Anne,  and  had  issue,  there  was 
here  no  counter-claim  or  opposition.  If  this  had  been  in  terms 
of  such  a  limitation  as  we  have  been  considering,  the  prece- 
dent assuredly  would  have  been  good ;  but,  with  every  submis- 
sion, it  is,  in  truth,  as  it  stands,  clearly  irrelevant,  and  does  not 
apply.  The  limitations  in  the  patent  of  the  Dukedom  of  Han 
roiltoh,  &c.  dated  the  12th  of  April  1643,  which  wholly  ruled 
in  the  matter,  are  quite  different,  being  first  nominatimf  to 
James  the  patentee,  then  Marquis^  but  in  consequence  there- 
of, Duke  of  Hamilton,  and  to  ''the  heirs-male  of  his  body;" 
whom  Jhiling,  to  Duke  William,  also  nominatim^  (under  his 
appropriate  title  then,  of  Earl  of  Lanark),  bis  younger 
brother,  and  to  '\the  heirs-male  of  his  body;''  **gufbus  etiam  de» 
Jicienttlmsy^  which  comes  immediately  after, "  beredi^meZ/e  na^ 
tu  maxime  absque  divisione,  de  corpore  dicti  Jctcobi  Marchionis 
de  Hamiltoun,'*^  &c#  Duchess  Anne  being  then,  and  always,  in- 
disputably such  heir-female,  bo  clearly  and  expressly  designate 
ed,  hebCe  took  by  special  remainder,  as  an  absolute  stranger, 
being,  in  this  abstract  and  unequivocal  manner,  factus 
bseres,  without  the  least  chance  or  possibility  of  an  opening 
to  the  force  or  intervention  of  common  law,  or  to  any  materiid 
question,  owing  to  the  confessed  discrepancy  between  the  two 
cases,  as  occurred  in  that  of  Polwarth ;  upon  which  the  present, 
from  its  different  scope  and  import,  cannot  bear.  The  Hamil- 
ton patent  is  far  fuller  and  more  definite  than  the  Polwarth, 
and  as  little  could  ever  originate  the  other  doubt  there, 
as  to  the  preference  of  the  succession  of  the  heirs-male  of  the 
body,^  who  all  in  the  former  fell  exptieitly  to  be  exhausted  be- 
The  ease  of  Ha- fore  the  heirs-female  could  take.  Nay,  the  prior  succession 
ra'rhe?  to*bear  ^^  Duchess  Auue,  SO  much  relied  upon,  may  be  said  rather, 
the  other  way.  from  the  express  and  anxious  manner  it  which  it  is  secured, 
to  oppose  the  important  conclusion  drawn  by  the  preceding 
Scottish  legal  functionary,  inasmuch,  as  contrasted  with  the 
Polwarth  substitution,  the  special  remainder  in  her  case 
might  have  been  indispensably  inserted  to  preclude  her  actual 

»  GreAt  Seal  Rpgister.  •  Se6  p.  854. 


IN  SCOTTISH  PEERAGES,  &C.  859 

extrusioD,  or  postponement,  through  the  use  of  less  definite 
phraseology,  as  in  terms  of  the  latter^  owing  to  the  admitted 
force  of  common  law,  by  the  daughters  and  heirs-female  of  Duke 
William,  her  uncle,  the  last  heir-male  in  possession.  And  such 
especial  care  was  further  observed  on  this  head,  that  in  a  final 
settlement,^  by  the  upright  Duke  William,  of  the  estates,  &c. 
after  his  succession,  dated  the  1 9th  of  March  1650,  in  failure  of 
heirs-male  of  his  body,  he  calls  Duchess  Anne  again  under 
an  explicit  remainder,  as  before,  though  further  nominatim. 

The  general,  so  far,  indiscriminate  word  ^^  their,"  moreover,  The   term 
prefixed  to  heirs  in  the  Polwarth  limitation,  referring  to  any  "  ^^^^^1  *°  ^^* 
heir-male, — to  the  youngest,  as  well  as  to  the  eldest, — strikingly  tent,  secmi  to 
quadrates  with  my  interpretation,  which,  I  conceive,  it  may  lenT^materiar" 
uphold ;  the  former  being  thus  resorted  to,  in  the  necessary  induction. 
uncertainty  as  to  the  precise  event  of  the  succession,  that  de- 
pended upon  natural  contingencies  it  was  impossible  to  anti- 
cipate, and  which  therefore  was  left  under  its  agency,  ap 
plicando  singula  singulis^  to  the  disposal  and  obvious  arbitra 
ment  of  common  law.     This,  at  least,  seems  a  fair  technical 
presumption  ;  and  if  the  intention  of  the  ruling  party  was  dif- 
ferent, all  we  can  then  say  is,  quodvoluit  non  fecit. 

The  important  case  of  Bargeny  in  1738-9,  is  different  in  important  Bar- 
terms'  from  that  of  Polwarth,  inasmuch  as  the  disputed  limi-  1 73^.9,  ^differ- 
tation  of  the  estates  there,  in  1688,— failing  his  elder  and*"'* '"*?'«'^!»*" 

.  ,    degiee,  m  the 

younger  sons  seriatim^  and  the  heirs-male  of  their  bodies, — is  point  in  quea- 
to  the^^Aer,  John  Lord  Bargeny,  the  settler,  and  the  oM^'*  0° Poiwarih!**** 
heirs-male  of  his  body,  (of  whom  he  had  none) — ^'  which  fail- 
ing,"— and  this  is  now  the  material  clause, — '^to  the  eldest  heir 
female  of  the  body  of  the  said  John  Lord  Bargeny,  and  the  de- 
scendants of  her  body," — the  succession  here  obviously  de- 
volving, in  the  latter  instance,  to  the  heirs  of  line,  or  at  com- 
mon law,  with  the  sole  immaterial  exception,  from  the  ordi- 
nary condition  adjected,  that  the  eldest  heir-female  shall  suc- 
ceed "without  division."  The  heirs-general,  therefore,  of 
John  Lord  Bargeny,  the  entailer,  and  not  generally  of  the 


>  See  relative  charter,  15th  of  June  1061,  Great  Seal  Register,- 
p.  864. 
*  I  may  not  properly  have  marked  the  specialty  in  a  eorrespoiiding 
,  I  have  glanced  a^  in  pp.  10$$  and  190. 


860  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

The  Bargeny    heirs-male  before  called,  as  in  the  Polwarth  destination,  were 
preferring  the  '  hence  to  take  strictly y  ex  figura  verborum  ;  and  upon  this 
*h*'  w"**"°'^  footing  it  was  decided,  upon  appeal,  in  1739,  in  terms  of  the 
stead  of  'the    relative  limitation,  that  the  female  descendant  of  the  younger 
mo/e^who'had  ®^°  *°^  heirHOoiale,  though,  as  it  turned  out,  the  last  in  pos- 
heen  in  posses-  scssion  of  the  estate,  fell  to  be  excluded  by  the  female  des- 
rcntiy"  rapport-  cendaut  of  the  elder  son  and  heir-male,  notwithstanding  the 
ed  by  our  ge-  inheritance  had  previously  passed  from  that  line,  owing  to  the 
failure  of  heirs-male  of  the  same,  to  the  aforesaid  younger 
heir-male,  whose  male  issue  came  also  to  fail.     But  it  may 
be  fairly  questioned,  whether  this  was  a  fitting  decision,  ac- 
cording to  our  genuine,  at  least  original  notions,  the  substi- 
tution still  not  being  suflBciently  precise  ^  for  the  material  pur- 
pose,— combined  with  the  noted  received  brocard,  that  *^  the 
heir  of  my  heir  is  my  heir^*" — a  character  assuredly  that  vested 
in  the  rejected  party ;  and  moreover,  again,  with  the  strong, 
nay  irresistible  bias  by  our  law,  as  has  been  evinced,^  except 
only  in  the  inapplicable  exception  Of  conquest,  cwteris  paribus^ 
of  landed  succession  to  descend^  necessarily  here,  to  such  last 
younger  heir,  and  not  to  ascend^  as  was  found,  in  1739.     It 
seems  too  violent  an  effort  in  the  circumstances,  and  more  akin 
to  the  untenable  attempt  of  Captain  Hamilton,  the  elder  Uel- 
haven  heir,^  to  make  the  same  thus  ascend — against  the  ascer- 
tained force  of  the  current, ^notwithstanding  the  intervening 
lapse — in  both  instances — ^to  the  elder  female  heir,  in  the  pre- 
DtfficuU  still,  to  sent  case.     Nay,  by  the  general  feudal  law,  it  was  a  question, 
"l'^!li^\  *"*^'  whether  in  such  succession,  '*  si  faemmA  per  masculum  semel  ex- 

cession  there  * 

ascend  after  de- clus&,  isque  masculuB  postca  deccdit  sine  liberis,  an  (uUiuc 
wa8>!SJitodo.  ^^»ow  faemina  excludatur  ?'** — that  is,  irretrievably,  in  every 
Juture  event,  there  being  no  competition  here,  between  female 
heirs, — while  it  is,  at  the  same  time,  admitted,  that  ^'  postremi 
masculi^ta,  etiam  sorori,  in  priori  gradu,  in  successione  avi 
aut  proavi  prefertur,"^  thus  showing  that  no  exclusion, — ^far 
from  it,  obtained  as  to  the  other  heir  in  view.^  More  definite 
and  conclusive  terms,  therefore,  or  a  special  remainder  in 

*  Sec  further,  as  to  this,  in  the  sequel.  '  See  pp.  8»38-0,  ?i. 
■  See,  upder  Belhaven  case,  pp.  839-40. 

*  Craig,  De  Feud.  Lib.  I.  Dieg.  14,  §  13.    Craig  ik,  of  course,  a  better 
authority  upon  general  feudal  law,  than  in  ourit,         *  Ut  9up,  §  3. 


IN  SCOTTISH  PEERAGES,  &C.  861 

fnvour  of  the  elder  Bargeny  heir-female  specifically,  as  was 
technically  and  wisely  done  in  the  analogous  Hamilton  in- 
stance in  1643,^  should  have  been  resorted  to,  as  a  relevant  and 
effectual  lever  of  ascent,  to  exclude  the  depressing  influence 
of  the  common  law ;  in  behalf  of  which,  as  has  been  remarked, 
there  is  always  a  strong  presumption,  and  which  must  invari- 
ably rule,  tn  dubio.     I  rather  suspect  that  English  doctrine  English  doc- 
and  precepts,  which  were  particularly  referred  to,  and  argued  Jjjl^®^^^*^® 
upon  in  the  Court  below,^  as  well  as  strong  English  bias,  in  the  Bargeny 
and  legal  impressions,  in  the  ultimate  Appellate  Tribunal,  by  rentiy^irrecon" 
whom  the  rejection,  likewise,  of  the  heir  of  the  last  Bargeny  ciiabie  with  our 
heir-male  by  the  Session,  in  1738,  came  to  be  affirmed,  so  dia-  rai. 
metrically  at  variance  with  ours  properly, — ^must  have  more 
or  less  weighed.^     Hence,  what  seems  now  regarded  by  some 
unexceptionable  and  irrefragable  law,  would  rather  strike  us, 
upon  the  whole,  to  be,  in  effect,  but  inadequately  sustained.  Advene  iiius- 
being  irreconcilable,  at  least,  with  radical  admitted  principle,  ^'^jj*  ^"  **'  f*'®" 
of  which  regulating  traces  elsewhere,  are  still  discoverable  in 
our  Code.     I  cannot  bring  myself  to  think,  that  a  half  brother 
could  properly  have  taken  by  law,  in  exclusion  of  a  full  sister 
of  an  elder  brother,  who  had  died  without  issue,  last  seised  in 
an  estate,  as  heir  of  their  deceased  father,  the  primus  invesli- 
tusj  under  a  limitation  to  <*  his  (^e  father's)  heirs,"  that  is,  to 
heirs  of  line  ;^  or  that  a  property,  accordingly,  could  havede- 

'  See  pp.  857-8-9.  '  See  Elchies's  Keports,  vol.  II.  p.  870. 

'  The  Lord  Justice  Clerk  however  held,  that  giving  ^*  heir-female"  The  Lord  Jus- 
in  the  Bargeny  destination, — as  was  in  feet  finally  decided, — the  con-  J**'®  ^*®*  ^^ 
struction  of  "  heir  whatsoever,"  the  same  confessedly  as  heir  of  line,  heir-femiae°fn' 
the  Bargeny  heir,  just  alluded  to  in  the  text,  fell,  in  opposition^  to  be  pre-  that  case,  upon 
ferred  ;  thus  in  full  corroboration  of  my  induction.     It  is  to  be  observ-  »  natural  con- 
ed, that  the  Session  had  found  in  1738,  though  by  the  narrowest  majori-  *^™^'*®"- 
ty  only,  that  the  only  daughter  of  John  Lord  Bargeny,  the  settler  in  1688, 
and  her  descendants,  took  preferably  to  a//,  under  the  same  description 
of  **  heir  female,"  including  her  heir,  a  party ;  which  was  reversed  by  the 
House  of  Lords  in  1789,  who  construed  it  as  stated,  but  in  fevour  of  the  The   previous 
only  child  (a  daughter)  of  the  first  and  elder  heir-male,  agreeably  to  the  one  here,  of  the 
sentiments  of  the  great  minority  in  the  Court  of  Session.    See  Lord  ^.^^ 
Elchies's  Reports,  vol.  II.  pp.  370-1.    This  Baigeny  statement  is  ta- 
ken from  the  papers,  pleadings,  and  procedure  in  the  case. 

•  At  least  such  certainly  was  the  old  law.  There  are  various  royal  char- 
ters of  offices  and  lands,  including  the  Barony  of  Longforgund^  in  1488, 


863  rKQUIRY  INTO  THE  LAW  AND  PBACTICE 

Tolved  to  the  maiemal  relatives  of  a  son,  who  had  also  depart- 
ed issueless,  the  last  infeft  as  heir  to.  his  mother, — ^in  exclusion 
to  A»  father,  or  his  heirs, — under  a  eorresponding  title  in  A^r  fa- 

Remarkable  1500, 1503, 1508, 1609,  &c.  to  "  Andrew  Lord  Gray,  and  to  his  heirs."  He 
ca«e  of  Gray,  ^^  accordi ngly,  succeeded  by  his  son  and  heir,  Tatrick  Lord  Gray,  who 
the  middle  of  had  two  full  sisters,  married,  respectively,  to  the  Laird  of  Lauriestoo,  (of 
the  16th  cea-  the  surname  of  Straiton),  and  to  John  Lord  Glamis ;  and  a  half  brother, 
'"'y*  Gilbert  Gray  of  Buttergask.    He  died  vested  in  the  family  property, 

though  he  had  previously  executed  an  entail  of  the  same,  still  includ- 
ing the  Barony  of  Longforgund,  confirmed  by  a  Royal  charter,  16th  of 

*  Also  confirm-  April  1524,*  upon  Buttergask  nominatim,  and  the  heirs-male  of  his 
•d  ia  1642.       body,  whom  failing,  to  other  heirs-male,  (Great  Seal  Register,  which 

also  contains  the  previous  conveyances  mentioned)  ;  but  even  in  this 
crisis,  so  strong  were  their  rights  in  law,  as  heirs  of  Lord  Patrick,  the 
Uut  seised,  and  in  possession,  that  Andrew  Straiton  of  Laurieston,  his 
nephew  and  heir  of  line  through  his  full  sister,  and  the  Glamis  family, 
the  next  heirs,  in  the  corresponding  capacity,  (then  represented  by 
the  crown,  on  account  of  their  forfeiture,)  were  held  still  to  be  the  hein 
to  the  family  estates,  from  which  they  had  been  solely  barred,  ex  ter^ 
vdni9^  by  the  settlement,  and  that  stood,  by  the  previous  and  only  other 
investiture,  **  to  Andrew  Lord  Gray,"  the  grandfather  of  the  latter,  and 
'^to  his  heirs,"  of  whom  Patrick  Gray  of  Buttergask,  son  and  heir  of  the 
above  now  deceased  Gilbert  Gray  of  Buttergask,  (essentially,  though 
not  literally  in  the  shoes  of  Sir  Hew  Dalrymple,  who  gained  in  the 
Bargeny  case,)  was  strictly,  correlatively,  the  representative.  The 
same  Andrew  Straiton  of  Laurieston,  was  actually  cnt^ed  by  service 
as  heir  of  his  noble  uncle,  in  the  Barony  of  Longforgund^  expressly  de- 
scendable, as  has  been  seen,  to  ''Lord  Andrew,  and  to  Am  heirs,"  with  the 
estates,  &c.  And  although  it  came  to  be  reduced  by  an  action  before  the 
Session,  at  the  instance  of  young  Buttergask,  in  1542,  still  it  was  ex- 
clusively on  account  of  the  entail  in  his  favour  in  1524 ;  while  that 
party,  nevertheless,  felt  so  little  confident  of  his  right,  that  he  was  ob- 
liged to  pmchase  a  solemn  resignation,  or  renunciation  of  the  estates 
from  Straiton, ''  as  one  of  the  two  heirs  and  successors  "  of  Patrick  Lord 
It  eonflicu  with  ^i^y»  ss  i^  proved  by  a  charter  in  the  Great  Seal  Raster,  the  28th  of 
the  Bargeny  de- April  1542.  This  case  directly  conflicts  in  its  import  with  that  of 
eiiion.  Bargeny.    The  above  facts  I  can  legally  establish.    I  shall,  however, 

annex  this  legal  proof  of  the  material  relationship  in  question.  Re- 
duction, upon  the  ground  mentioned  in  1542,  of  the  retour  of  Andrew 

*  See  also  Gray  Stiaiton  of  Laurieston,  "  as  ane  of  ye  nerrest  and  lauchful  airis  of  ye 
l^T  AppOTfi.  ***^®  umquhile  Patrik  lord  Gray,  hi?  eiw«,"  (uncle).* — Act  and  Decree 
p.  iv.  where  the  Register  of  the  Court  of  Session.  Action  in  1573,  by  John  Lord  Glam- 
femah  j'^P'®'  miss,  "  ane  of  ye  tua  airis  of  lyne  of  upaqifhile  Patrick  lord  gray,  his 
a^a  ^legally^S'^'^daiitebioyer,"  (that  is,  his  grandame's  brother,)  '^  against  Patrik 
proTed.  gray,  sone  and  air  of  umquhile  gilbert  gray  of  buttergask,  hdffhtoyet 


IN  SCOTTISH  PEERAGES,  &CQ.  86S 

tber.  And  yet  these  cases,  upon  the  general  rule  laid  downi  90 
far  as  I  can  see,  are  tant^^paount  to  that  of  Bargeny,  the  rejects 
ed  beir*(eniale  there,  as  wa^  adjudged,  coming  equally  under  1^ 
limitation  to  the  setiler^s  "h^ra,"  or  "heirs  whatsoever"  (of 
the  body),  and  being  the  heir,  equally  with  the  full  sister,  and 
fathers  aqd  heira  mentioned,  of  the  last  in  possession.     Nay,  The  former  no- 
the  Bargeny  destinatiqn,  again,  aX^o  corresponds  with  the  80-*Jj"*  *"t<r'the" 
lemnsettiementof  the  crown,  previously  noticed,  in  1373,  name- descent  of  the 
ly,  as  in  the  case  of  the  former,  to  repeated  heirs-male  of  the  ih°*"^t^JJ"in' 
body,  hvxwhom  failing^  more  emphatically,  to  the  ^rwc  heirs  by  '373,  inimical. 
tiaod  and  lineage  of  the  main  Stewart  stock  ;  under  which,  as 
set  forth  by  received  legal  opinion,  the  heir  of  the  last  in  pos- 
session, without  any  retrospection,  took,  whoever  he  was, 
though  strictly  by  no  means  falling  within  such  category.     If 
it  be  objected — ^supposing  there  be  any  thing  in  the  exception, 
that  the  Bargeny  settlement  constituted  an  entail,  that  is  still 
more  than  obviated  by  th^  Ust,  which  is  the  strictest  entail 
in  the  veriest  sense,  having  several  explicit  remainders,  and 
moreover,underexplioitauthorityof  apublic  Act  of  Parliament, 
proceeding  upon  the  universal  voice  of  the  nation,  Butreallys 
it  strikes  me,  upon  the  relevant  basis,  I  conceive,  I  adopt,  that 
Sir  James  Stewart,  I^ord  Advocate  to  Queen  Anne,  the  first 
lawyer  of  his  day,  has  virtually  put,  and  concurrently  answer-  c«ie  alfo  put 
ed  the  present  question,  through  another  illustration  of  the  s?e^art^*and*hii 
kind  premised,  which,  in  effect,  seems  still  to  bear  me  out.  tQiutioD  of  the 
He  starts  the  case,  that  a  ^*  Feudum  Fceminium  is  (limited) 
o/t^ly^  to  afnan,and "Risheir^^  whatsomever,"that  is, essentially 
identical  with  the  Bargeny  limitation,  owing  to  the    term 
"his,"  different  from  "  their,"  as  in  that  of  Polwarth;  while  the 
adjunct "  whatsomever,"  cannot  properly  detract.    Well,  then, 
he  goes  on  to  state,  "  and  that  his  ds^ughter,  succeeding  to  him 

of  nmqnliile  Patrik  Lord  Gray,"  &c.  actually  for  reduction  of  the  en- 
tail in  1524.  Andrew  Straiton  of  Laurieston  here  figures  as  the  other 
portioner.  f  Ibid,  J  Tliis  process,  strengthening  the  impression  as  to  ^ 
female  heirs,  evidently,  either  has  not  been  pushed,  or  been  compromised. 

*  The  word  *^  only  **  here,  is  also  important,  shewing  he  gave  little 
Ibree  to  sueh  a  limitation,  corresponding  with  the  Bargeny. 

'  ^Bia  heirs"  must  be  tantamount  to  John  Lord  Bargen%f9  heirs,  being 
actually  of  the  settler,  while  the  nominatim  form  is  not  indispensable. 


Mme. 


864  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

therein,  leaves  a  son,  who  is  also  her  heir, — if  he  die  without 
issue," — what  then  ?     We  now  come  to  the  exact  point ;  in 
that  event  Sir  James  says,  *^  the  succession  must  fall  to  the 
(his) father  J  and  to  the  heirs  on  the  father's  side,"  precisely  as 
in  the  case  of  James  V  I.  "  And  it  cannot  fall  to  the  heirs  by  the 
mother,  (though  strictly  of  the  *  man  *  at  the  outset^)  unless  it 
were  by  special  provision  ;  as  if  the  feu  were  granted  to  a 
daughter,  and  the  heirs  of  her  body,  which  failzieing,  her  heirs 
and  assignees  whatsoever," — just  equivalent  to  the  instance 
of  Hamilton  cited,  where,  in  order  to  secure  the  succession  to 
the  corresponding  preferable  heir  by  blood,  of  the  original 
disponee  in  the  strict  sense,  there  is  also  recourse  to  such 
special  remainder,  as  in  this  case,  as  I  have  remarked,'  in  or- 
der adequately  to  prevent  the  very  contingency  I  contend  for. 
And  to  clench  the  parallel.  Sir  James  now,  e  converso,  ad- 
mits that  then,  in  this  altered  state  of  things,  **  the  sou  dy- 
ing without  issue, — ^his  mother's  heirs  designative  would  suc- 
ceed to  him,"  not  certainly  under  a  limitation,  as  in  the  Bar- 
geny  instance,  which  would  be  here  inept,  but  spedcMy  "  as 
heirs  of  taillie  (entail)  and  provision,"  precisely  in  the  char 
oTen  more  di-  ractcr  of  Auue  Duchcss  of  Hamilton.'    The  Gray  case,  for- 
abt^tVBargenyl  ™erly  adverted  to,  may  still  more  bear  me  out  in  principle.' 
Under  the  Pol-     In  the  Polwarth  case,  the  daughters  of  the  elder  brothers, 
thYSujAtertof  ^^  heirs-male,  &c.  might  hence  possibly  be  irretrievably  ex- 
the  elder  bro- eluded ;    but  that,   bcsidcs  receiving  express    countenance 
for  ever  exciud-  ^om  feudal  uotious  in  general,^  may  not  weigh  by  the  law  of 
®<i*  of  Scotland,  which  was  peremptory,  and  had  here  no  retros- 

'  See  p.  868-9. 

'  See  Stewart's  Ans.  to  Nisbet,  p.  206.  The  latter,  while  he  admits 
that  the  rule  matema  matemis  with  us,  **  has  noplace,'*  thinks,  not  unna- 
turally, that  the  law  in  this  respect  ought  to  be  otherwise ;  but  Stewart 
unflinchingly  upholds  it,  without  respect  to  exclusion  of  the  blood,  llnd, 

*  See  pp.  861-2,  n.  4. 

*  See  p.  860.  It  was  maintained,  in  the  case  of  Lockhart  o.  Mac- 
donald,  that  the  heir-fenude  of  the  elder  heir-male,  being  excluded  by 
the  younger,  could  not  succeed  at  all.  (See  Dunlop  and  Bell's  Rep.  ui 
sup,  p.  426.)  By  our  present  law,  however,  she  evidently  could,  to 
such  younger  heir,  in  the  event  of  the  latter  having  no  direct  heirs,  or 
who  could  take  on  the  descending  principle  ;  the  succession  then,  as  a 
last  resource,  would  ascend  to  the  former,  in  exclusion  of  the  crown. 


IN  SCOTTISH  PEERAGES,  &C.  865 

pect,  only  considering  the  immediate  eontiDgency,-^«^^iiiic, 
to  use  the  relative  term  in  the  settlement  of  the  crown  in  1373. 
Neither  can  tlie  above  be  objected  as  a  fair  anomaly;  for,  as  we  But  this  alone 
have  seen  elsewhere,  upon  the  strength  of  confessed,  and  still "  "°* '  relevant 

J     •       J       1        .  I  «       1       1^    .  ,      or  efficient  ob- 

admitted  rule,  those  who  were  once,  equally  the  heirs  under  jecUon. 
a  limitation,  nay,  ought  literally^  to  have  taken  accordingly, — 
might  not  only  be  so  excluded  by  the  same  varying  fortuitous 
incident,  but  also  for  the  mere  behoof  of,  and  to  make  room 
for  strangers.  And  further  still, — though,  it  is  admitted,  a 
case  not  in  point,  ex  terminiSf — ^in  several  modem  entails, 
there  are  limitations  specificaUyj  to  the  heirs  of  the  last  in 
possession,  which  shews,  that  instead  of  being  condemned,  or 
unauthorized,  such  an  arrangement  was  not  thought  without 
its  advantages,  but  even  fitting  and  judicious,  at  an  advanced 
period. 

But,  with  all  this,  I  am  fully  aware  of  the  natural  unto*  The  old  law  or 
wardness  and  incongruity,  as  strikes  one,  of  applying  the  cor-  h^eTer,  i^'*' 


nil- 


responding  criterion  and  principle  in  question,  to  honours, — '"^"J'*'  ?"!?* 
our  more  immediate  object, — ^which  certainly  is  obnoxious  to  tionahie,  espe- 
the  received  impressions,  and  ordinary  notions  of  nobility,  in-  J^'Jon^JJ^*'**^^ 
eluding  genuine  descent ;  and,  in  behalf  of  which,  there  may 
not  note;,  be  the  most  cogent  and  direct  authority,  owing  to  the 
conflicting,  and  recenter  precedent  of  Bargeny,  affirmed  upon 
appeal.     The  latter,  inasmuch  as  involving  legal  succession, 
may  be  held  preferably  to  rule, — especially  after  the  consi- 
derable interval  that  has  even  elapsed  in  its  instance,  so  far  as 
I  am  conscious,  without  any  rebutter.^   The  converse  assuredly 

'  On  the  contrary,  the  BaTgeny  principle  was  lately  applied,  una-  Case  of  Good- 
▼oidably  as  held,  by  the  Session,  in  the  case  of  Goodinge  Johnstone  3„g^^J'|JJ,"® 
against  Johnstone,  19th  of  November  1839,  under  a  charter  of  the  An-  stone,  in  1839, 
nandaie  estates,  &c.  April  3, 1662,  to  James  Earl  of  Annandale,  &c.  ^"  i^®  face  of 
and  to  the  heirs-male  of  his  body,  whom  foiling,  to  the  heirs-female,  «^«o><*d<>«'rin«- 
without  division,  of  the  wid  Earl  Jame^%  body,  and  to  the  heirs-malo 
of  the  body  of  such  eldest  heir-female,  &c. ;  whom  failing,  to  the  heirs  and 
assignees  whatsoever  of  Earl  James.   (Great  Seal  Kegister.)    The  pur- 
suer claimed  accordingly,  as  heir-female,  under  an  alleged  descent  from 
John,  99cand  son  of  the  noble  disponee,  whose  grandson  Thomas,  he  as- 
serted,— ^but  upon  no  strict  and  conclusive  evidence, — had  survived  as 
the/la^  heir-ipale  ;  but  the  Court,  even  upon  his  own  shewing,  pre- 
ferred the  defender,  the  direct  female  descendant  of  William,  first  Mar- 

3i 


866  INQUIBY  INTO  THE  LAW  AND  PKACTICE 

The  former  too  receires  no  countenance  or  support  in  England;  but  it  was 
the^EM|[LDy  Ld  imperative  upon  me  to  state  impartially  what  appeared  to  be 
Johnstone  de-  ^j^,.  radical.  OX  oWer  law  on  the  point  however  it  may  bear. 

titions,  and  also  .  .         . 

especially  again  And,  no  doubt,  I  am  happy  in  having  first  adduced,  akin  with 

Ihe^lmpm  %  ^^^  ^^  Bargeuy,  the  remarkable  and  older  authority  still,  of 

the  MordioKton  the  patent  of  Mordington  in  1640,  whose  preamble  and  indno 

^  °  ^°       '  tive  grounds  are,  strictly^  in  favour  of  the  true  descent  and 

representation  in  honours,  being  identified  with  the  blood, 

and  tkua  flowing  eoniinuoustg^  and  undivergingfy  from  the 

original  taker,^  however  English  prepossessions  here  may  have 

also  irrelevantly  operated  in  a  certain  degree,  owing  to  the 

date  after  the  union  of  the  crowns,  either  in  the  mind  of 

Charles  L,  or  of  his  advisers.'    In  the  case  of  Lockhart  against 

qnis  of  Annanc^.ale,  eldest  son  of  the  above  Earl  James,  as  heir  under 
the  settlement,  (the  heirs-male  being  admitted  to  have  fiiiled,)  agree- 
ably to  the  Bargeny  deeision.    (See  Dunlop  and  Bell's  Rep.  vol.  II.  p. 
73,  et  eeq,)    Judging,  however,  from  the  relative  papers  and  reports^  no 
specific  precedent,  or  new  authority  was  adduced,  in  opposition,  by  the 
pursuer,  and  in  behalf  of  his  ai^gument.    The  matter,  in  fact,  seems  to 
have  been  but  slenderly  litiscontestated. 
I  See  pp.  180-1, 196-9. 
SucccMion  in       t  ^The  succession  to  the  Earldom  of  Moray,  (in  the  Dunbars,)  dur- 
Evldom  of  Mo-  ^^^  ^^®  ^^  ^^  James  II.  though  rather  conflicting  in  its  nature^  b 
ray  (\n  the  Dun-  fiur  from  prejudicing  my  former  argument.    By  the  ordinary  aoeount^ 
ban),    before  Mary,  it  should  be  Elizabeth^  who  married  Archibald  Douglas,  is  re^ 
middle  of  \he  P^^s®^*®*!  •*  younger  coheiress,  with  Janet,  her  supposed  elder  sister, 
15th  century,    of  the  collateral  branch  of  Frendraught,  and  to  have  held  the  Earldom 
through  the  power  or  assumption  of  her  husband,  in  prejudice  of  the 
latter.    Archibald  Douglas,  whether  thus  by  the  courtesy,  or  under 
fovour  of  a  new  constitution,  figures  as  Earl  of  Moray  at  the  middle  of 
the  15th  century,  and  shortly  after.    But  the  same  Elizabeth,  who,  sub- 
sequently to  the  death  and /or/Mtire  of  her  husband  in  1455,  was  first 
jilted  by  George  Earl  of  Huntly,  (see  p.  527,}  and  then  married  to 
John  Colquhoun  of  Luss,  in  the  character  of  **  Elizabethe,  Dunbar  oUm 
Comitisse,  Moravie,'*  and  the  wife  of  Colquhoun, — and,  moreover,  as 
^  Elizabethe  de  Dunbar >E/te  quondam  Thome  de  Dunbar  Comitis  Mo* 
ravie,''  is  receiving  payments,  or  the  beue&ction  of  Grovemment,  res- 
pectively, in  1458, 1462, 1460,  and  thereafter,  &c  as  is  proved  by  the 
Exchequer  Rolls.    Earl  Thomas  was  of  the  Mer  line,  distinct  from 
the  younger  of  Frendraught,  to  the  former  of  which,  therefore^  Eliia* 
beth  belonged,  (thus  in  correction  of  an  error  at  p.  500.)    Yet,  at  the 
nme  time,  Janet  Dunbar,  the  heir  of  this  younger  branch  of  Fren- 
draught, to  whose  progenitor,  as  heir-male^  probably  by  a  regzant  and 


IN  SCOTTISH  PBERAQE89  &c.  897 

Maodonald,  referred  to,^  decided  by  the  Session,  January  24,  <^u«  of  ^oci^* 
1840,  but  now  under  appeal,  the  disputed  substitution,  in  ef-naid»*iii  1840. 
feet  like  that  of  Polwardi,  (which  is  not  directly  compromise 

entail,  the  Earldom  aeems  to  have  deyolved  inthefirst  instance,  figures  in 
a  deed  in  the  Enrol  charter-chest,  the  8th  of  November  1454,  as  *' Janeta 
de  Dunbar  Oomitissa  Moravie^  et  domina  de  Frendraught,"  &c  indepen- 
dently of  later  authorities  to  the  same  effect.   There  were  thus  two  co- 
temporary  Countesses  of  Moray,    Janet  may  hare  lawfully  succeeded  It  probably  il- 
«s  the  heb  of  the  younger  heir-male,  while  there  was  some  question-  |j^*^ij^^^  the  old 
able  earlier  settlement^  if  even  that,  which  came  to  be  enforced,  through 
the  power  and  despotism  of  the  Douglases  in  the  kingdom,  qualified 
again  by  the  counteracting  influence  of  the  rival  Crichtons,  whose  chief 
had  married  Countess  Junet,    In  his  attainder  too,  in  1455,  Archibald 
Douglas  is  only  styled  ^preUnmu  Comes  Moravie."  (See  Acts  of  Fttrl. 
last  Edit.  red.  II.  pp.  7^7.)    On  the  sabjeet  of  Genealogy,  I  might  be 
curious  to  know  what  English  antiquaries  thought  of  the  evidence  I 
adduced,  conclusive,  as  I  apprehend,  against  the  descent  of  the  English 
Courtenays,  from  the  French  Royal  stem,  in  refutation  of  Lord  Asbur- 
ton's  latter  corresponding  origin  of  them.  (See  my  remarks  on  Scottish 
Peerage  Law,  pp.  169,  el  9eq,)    But  I  may,  however,  add,  that  the  name  DisproTod  ori- 
of  FhruM^  erroneously  given  to  Peter  of  France,  husband  of  the  heiress  gin  ^  th*  Eng- 
of  Courtenay,  the  ancestor  of  the  Fr0n€h  princeiy  Courtenays,  in  quaiu  }JJ„^he  F^mciI 
^  aUo,  of  visionary  ancestor  of  the  English,  upon  the  strength  of  an  royal  st«in. 
English  Chronide,  (see  pp.  171-2,  ibid.  J  seems  actually  to  have  been 
borne  by  Lewis  VII.  or  "hjeune,**  the  eider  brother  of  Peter.  The  Abb^ 
Expilly  states,  that  Lewis  had  the  endearing  soubriquet  of  ^Florue**  (or 
^/Vniry,'*)  (v^Ludovicus  jP/lomt,"  from  his  father  Lewis  YI.  oiLeOros^ 
from  whence,  he  curiously  adds,  arose  the  French  fleure  de  lye^  first 
borne  in  their  original  form,  eane  nombre^  by  the  cherished  Florus,  and 
this,  upon  the  authority  of  **  Les  Memoires  de  la  chambre  des  comptes," 
&c    (Soe  Diet.  Geograph.   Histor.  &c.  in  1764,  by  the  Abb^,  euk 
f)oe,  **  Fleun-de-lye,**  J  Talking  of  the  latter,  the  term  should  have  been 
**  Liligeri,"  properly,  instead  of  "  Loligeri,"  in  the  verses  on  Magdalene 
de  Yalois ;  (see  p.  448.  n,)    Upon  the  footing  of  modem  French  no-  What  may  en- 
tions  at  l^st,  **  tOueiration;*  viz.  feme,  or  public  notorterjr  of  some  kind,  J"^*^^*?  "*'*** 
go  into  the  enhancing  merits  of  a  pedigree,  in  accordance  with  those ^^^'^^^^a' 
of  Geoige,  fint  Earl  of  Cromarty,  an  antiquary,  who  said,  "  it  is  an  French    and 
old  proverb,  that  it  is  a  scan^  kin  which  hath  neither  whore,  nor  thief  ^^«"»»  "<>- 
in't ;  and  it  is  difficult  to  find  an  ancient  and  considerable  kindred,   ^^' 
wherein  some  one  or  other  have  not  been  criminals."    (Gowry  Con- 
spiracy, pubw  1713^  p.  2.)  On  this  account,  though  certainly  not  of  such 
Mwrne  sort,  the  little  incidents  connected  with  the  Keir  family,  &c.  (see 
pp.  412-13,  ».)  so  characteristic  of  that  feudal  period,  and  even  worthy 
of  the  pen  of  Sir  Walter  Scott,  may  not  detract  from  the  baronial  im- 
•  See  p.  867,  n.  2, 


868  INQUIRY  INTO  THE  LAW  AND  PBACTICE 

ed  by  the  Bargeny  decision),  may  be  said  to  resolve  in  one  to 
*^  heirs-male  of  the  body,  and  to  their  heirs  whatsoever."  It 
has  given  rise  upon  the  point,  whether  or  not  the  heirs-male 
should  be  wholly  exhausted,  in  the  first  instance,  (which  was 
found  in  the  negative  by  the  Court  of  Session),  to  considera- 
ble argument  and  discussion,  from  which  I  am  unfortunately 
Inconvenience  barred  by  my  limits.  And  I  can  only  repeat,  that  the  flex- 
and  perplexity  jjjj^  nature,  in  our  untoward  and  unseemly  conveyancing,  of 

occasioned   by  j  a  c 

our    flexible    the  terms  ^*  heirs,"  *<  successors,"  ^^eldest  heir-female,"  nay, 
H™!'   ^^    ^"^^^  ^f  "  ®l^®s^  daughter,"  &c.  with  their  strange  attendant 
incidents  and  anomalies,'  is  a  plague-spot  and  torment  in  our 
law.     It  is  such,  that  I  have  seldom  found  it  very  difficult, 
with  reference  to  legal  dicta  and  precedent,  to  draw  plausible, 
though  the  most  opposite  constructions,  from  the  former,  under 
the  same  literal  combinations.     Nor  does  English  interfer- 
ence, or  southern  apprehension,  tend  to  mend  the  matter. 
Case  of  the         The  Viscounty  of  Fenton,  Earldom  of  Kellie,  and  Viscoun- 
K^iife*™vu-     ^  °^  Fentoti  (again)^  &c.  were,  respectively,  constituted  by 
county  of  Fen-  patents,  dated  the  18th  of  March  1606,  and  12th  of  March 
1830-6.  "        1619,  in  favour  of  Thomas  Erskine,  "  Lord  Erskine  of  Dirle- 
Tbe  dignities  toun ;" ' — the  former  being  limited  to  him,  *^et  heredibus 
two*patenu,  in  masculis  dc  corporc  suo  legitime  procreatis,  et  procreandis, 
1606  and  1619.  quibus  deficietUibus^  haeredibus  suis  tnasculis  guibuscunque  in 
perpetuum ;"  and  the  latter,  *^  heredibus  suis  masculis  cognth 
men  et  insignia  de  Erskine  gerentibus."^     These  honours 
were  held  successively  by  the  heirs-male  of  the  body  of  the 
patentee,  until  their  failure  in  the  person  of  Methven  Earl  of 

portance  they  have  so  long  supported,  and  is  now  meritedly  inherent 
in  them,  with  furtheragg;randizement,iindcr  fairer  and  happier  auspices. 
Neither  was  there  a  more  public  and  influential  character,  as  our  Records 
abundantly  evince,  than  Sir  John  '*  Strevelin"  of  Keir,  in  the  reign  of 
James  Y.  who  figures,  like  simiiar  cotemjporary  chiefia,  in  the  graphic 
and  delightful  poem  of  *^  Squire  Meldrum." 
'  See  from  p.  202,  to  p.  222.  inch 
Constitation  of      '  The  existence  of  this  Barony,  which  was  not  claimed,  is  solely,  as 
the  Barony  of  yet,  proved  by  this  description  accordingly,  of  the  noble  party  in  the 
Pr      before''  ^^^  patent,  and  intimation  in  that  of  Kellie  of  its  creation  in  his  fiir 
l8tb  of  March  vour.    There  being  no  heirs-male  of  tiie  body  of  the  original  taker,  the 
1606,  unknown.  Lords,  in  the  circumstances,  would  now  hold  the  barony  extinct. 

'  Great  Seal  Register. 


IK  SCOTTISH  PEEBAQES,  &C.  869 

Kellie,  in  1829,  subsequent  to  which  they  were  claimed  by  a 
royal  reference  to  the  Lords,  the  23d  of  March  1830,  upon  his 
petition,'  by  John  Francis  Earl  of  Marr,  as  collateral  heir* 
male,  he  being  the  male  descendant  of  John  Earl  of  Marr, 
Regent,  during  the  minority  of  James  VL  elder  brother  of 
Alexander   Erskine  of  Gogar,  Master  of  Marr,^  father  of 
Thomas,  the  aforesaid  patentee.   In  respect  to  the  Earldom  of 
Kellie,  &c*  he  founded  upon  the  precedent  of  the  Barony 
of  Kirkcudbright  in  1772,'  quite  in  point,  where  the  heir«*male 
collateral  was  accordingly  adjudged  to  be  entitled  ;  while  no 
doubt  could  be  entertained  of  the  corresponding  descent  in  re- 
gard to  the  older  Viscounty,  in  consequence  of  the  explicit 
ultimate  remainder  in  the  patent  to  heirs-male  whatsoever.^ 
And  consequently,  after  some  discussion,  natural  owing  both 
to  extent  of  the  pedigrees,  and  existence  at  one  time  of  many 
nearer  heirs,  the  right  of  the  noble  claimant,  (with  which  landed 
succession  combined,)  was  allowed  by  the  Lords,  the  3d  of  Sep-  Adjudged  to  the 
tember  1835  f  who  thereupon,  in  addition  to  being,  in  fact,  tei!|u  "in  ^^sV 
the  premier  Earl  of  Scotland,  in  virtue  of  the  Marr  dignity,  ^**®^rj**''^'» 
became  necessarily,  also,  the  premier  Viscount.  The  first  Vis-c«me  premier 
county,  as  a  Peerage,  strangely  enough,  conferred  in  Scotland,  ^^""j[  **^ 
was  that  of  Fenton,  only  as  premised,  in  the  year  160G.^ 

The  main  difficulty  in  this  case,  the  respective  descents  aiid.DifBcaity  in  the 
other  matters,  being  fiilly  instructed  to  the  satisfaction  of  tl^e^extincHon*'^ 
Lords,  may  be  said  to  be  the  extinction  of  Sir  James  Erskine 
of  Tullibody,  younger  brother  of  Thomas,  first  Earl  of  Kellie,^ 

>  Lords'  Journals. 

'  He  was  so  styled  after  the  French  ytwAton,  adopted  by  ns,  from  hav- 
ing been  at  onetime  heir-apparent  of  Marr, — ** Master"  being  thus 
analogous  to  ^*  Monsieur."  The  same  Alexander  had  also  a  younger 
brother,  Arthur  Erskine  of  Blackgrange,  whose  heirs-male  of  the  body, 
if  such  now  existed,  by  our  law,  would  have  taken,  preferably^  as  has 
been  illustrated  in  the  case  of  Belhaven,  (see  pp.  836-6-7-8,  &c.  844-6)  ; 
but  Arthur  died  without  issue. 

"  See  p.  622.  et  eeq. 

^  There  were  no  resignations  of  any  of  the  dignities,  so  that  in 
reality,  there  now  exist  two  Viscounties  of  Fenton,  one  created  in  1606,^ 
and  the  other  in  1619. 

*  Lords'  Journals. 

'  Soldcn  is  here  quite  right ;  see  Titles  of  Houour,  p.  699.. 


870         INQUIRY  INTO  THK  LAW  AND  PRACTICE 

the  patentee,  and  thus  a  degree  nearer  than  the  daimant^s 
ancestor.     He  was  a  reckless  spendthrift,  in  consequence  of 
which,  being  driven  to  Ireland,  with  a  blank  patent  of  the 
dignity  of  an  Earl,  from  James  VI.  (of  whom  lie,  and  his  kin- 
dred, were  favourites),  thereby  to  recruit  tii's  bankrupt  fortunes, 
he  acquired,  by  its  sale  to  the  highest  bidder,  by  (be  purchase- 
money,  in  return,  theestate  of  Agher,*  and  died  in  that  country, 
leaving  several  sons*    He  happened  to  be  an  eleventh  brother, 
but,  by  the  eventual  failure  of  the  remainder,  the  third;'  and 
his  male  line  was  continued  in  Ireland  down  to  the  reign  of 
Charles  11.  in  the  person  of  James,  or  Colonel  James  Er&- 
The  exiincUon  fcine.    There  was,  as  the  Attomey-Oeneral  contended,  no 
sMuie  out.  ^     conclusive  evidence  of  the  extinction  of  the  latter,  a  married 
person.     Administration  of  his  goods  was  granted  in  1675  in 
favour  of  a  principal  creditor,^  but  that  clearly  does  not  touch 
the  point,  and  is  the  last  authentic  notice  of  him ;  while  even, 
e  conversOf  in  a  process  before  the  Session  in  Scotland,  in  the 
same  year,  it  was  contended  that  he  /uui  left  a  son  or  grand- 
Expedient  of       *  -^^  above  was  one  of  the  notable  expedients  of  James,  piofiiae 
James  I.  to  en-  enough  in  honours,  when  his  Exchequer  had  been  drained  by  his  liber- 
rich  or  raiuin  ^Hty  to  liis  Scottish  fayourities,  and  others,  still  to  sustain  and  reoom- 
avonn  s.    p^^^^  them.    Tlie  patent  in  question  was  thus  advantageously  disposed 
of,  to  Tliomas  Lord  Bidgeway  ;  afterwards,  in  1622,  through  this  koMur- 
abk  transaction,  jSisW  of  Londonderry.  These  facts  are  dcriTed  from  the 
curious  Life  of  James  Bishop  of  Clogher,  (whose  daughter,  Archibald, 
the  son  of  such  trafficker  in  dignities,  had  married^)  ap,  the  MSS.  Collec- 
tions in  the  Adyocates'  Library,  of  Father  Hay,  prior  of  Remire- 
monty  &c.  a  well  known  nntiquary,  before  and  after  the  year  1700^ 
and  descended  of  the  Bishop. 

'  This  was  preyed  by  Sir  James's  funeial  certificate^  Mardi  10^ 
1636,  Ulster's  Office,  Du1)lin,  the  reletant  admiBsl<m  of  which  as  evi- 
dence in  the  case,  gaye  rise  to  curious  and  rather  interesting  discussion, 
for  which  I  regret  I  liaye  not  room.  To  shew  the  fidelity  and  correct- 
ness of  our  Peerage  writers,  not  a  vmtige  of  this  Sir  James,  his  marriage 
or  descendants, — independently  of  the  nvmeroiM  progeny  of  his  fother — 
((u  obtained),  is  to  be  found  under  the  relative  pedigree  of  Kellie  or 
Gogar,  in  Douglas's  and  Wood's  Peerages.  This  circumstance  oertaunly 
may  but  little  surprise  the  tnjtta/etf— -however,  emmeous  withal,  as  they 
90  often  prove,  certain  London  solidtors  have  by  no  means  been  indispos- 
ed largely  to  draw  upon,  and  to  bon'ow  from  them,  as  I  have  experienc- 
ed, in  Peerage  cases. 
'  See  Minutes  of  Evidence  in  the  Kellie  cUiim,  p.  31. 


IN  SCOTTISH  PfiERAOES,  &iC.  871 


Bon.*     In  the  oonfessed  want  of  written  proo^  the 
branch  m  question  was  only  directly  extinguished^  (if  such  a  Only  iiy  tecon- 
thing  can  be  even  fancied),  by  the  parole  testimony  of  an  ^x*^*^^^*'^^' 
isting  respectaUe  neighbour — not  a  relatiTe — of  the  last  Earl 
of  KelUe^ — ^Ihat  he  had  heard  his  Lordship  say  it  had  failed. 
We  hence  have  again  additional  means  of  judging  of  the  foun-  ^u,  ^^^  ,^ 
dation  for  tlie  assertion  of  a  legal  autliority  referred  to,  of  the  ^^tcs  the  notion 
necessity  **of  oTidenee  of  the  strictest  kind  in  matters  of  of  ttricT^'ri/ 
Peerage;"  (  Scottish).*    The  extinction  of  a  material  remote  ^^*^J,°  ^'^' 
branch,  sprung  hem  the  main  stock,  as  far  back  as  the  time  ctset,  in  the 
of  Queen  Mary,  who  had  left  Scodand,  with  which  they  had  i<o°*«<^^ordi. 
ceased  to  have  any  bond  or  connection,  and  who  had  thus  expa- 
triated themselyes,  being  left  in  the  equivocal  state  too,  in  which 
it  was,  to  the  mere  summary  adminicle  of  modem  hearsay, 
only  in  this  manner  admitted  in  English  practice,  valeaC  quan- 
tumj  owing  to  exigencies,'  and,  at  the  most,  far  from  being 
held  of  much  account  by  legal  authorities,  in  Evidence^ 

There,  however,  being  no  competition,  the  judgment  was  The  judgment, 
good^  according  to  the  law  of  Scodand,  which,  as  has  been^^f^^^^^ 
stated,  was  indulgent  in  such  respects,^  and  hence  relevantiyi^worscoUand, 

>  nu.  p.  51-2.  >  See  p.  832. 

*  See  Cruise  on  Dig.  p.  272,  and  fturther,  tlie  subsequent  Huntly  e^se. 

*  See  p.  42.    As  iUnstratiTe  of  our  law  of  eztinetioD,  in  the  16th  inasCnUion  of 
centaiy,  I  may  eite  this  pointed  instance.    A  summons  of  error,  O' extinctions*  In 
asCioii  c^  reduction,  in  1502,  before  the  Court  <tf  SessioD,  was  brought  the  16th  cen- 
by  one  having  interest,  against  the  service  of  John  Griei^  as  heir  to  his  taiy* 
fiither,  upon  these  grounds^— that  it  was  well  known  to  the  Inquest  and 

the  neighbourhood,  that  John  had  an  cMsr  brother,  Th&masy  who  fell 

to  be  preferred ;  that  it  was  not  **  any  vrit&  knowin  laachfullie,  to  yame, 

yat  he  wes  Md,"  (dead);  that,  "of  ye  frmumptims  oi  ye  teio," 

he  most  be  **  balden  isoand,  (linii^f^}  be  resoun  it  wes  not  knawin 

of  his  deid,**  (death),  more  especially  backed,  as  was  equally  notorious, 

by  Thomas— of  whose  late  there  was  evident  uncertainty, — ^being 

wiHUn  the  age  of  fifly^  which  may  have   been  thus  held  a  mortai 

isrmhnt^.    And  further,  "  oonsultatiounes  of  certane  men  of  law, 

and  practitioneris  of  pis  reahne^*    were  '*  opinlie,  and   expreslie 

red,"  in  support  of  the  oondusion,  "  yat  ye  said  elder  broyer  of  ye  law 

t#  presamit  to  be  levand,  ies  nsr  (unlen)  it  be  provin  yat  he  is  deid,** 

—which  neoeeaarily  excluded  and  voided  the  service.  The  above  might  J|.  "^y  J*^«  d«- 

hidicate  what  the  law  here  had  been,  or  as  entertained  by  some,  fiur  J^^^^  Ttrici-' 

stricter  than  afterwards ;  for  the  Session  werenot  thereby  moved,  but,  on  new. 

the  27th  of  April,  of  the  same  year,  "asoiliajed,"  or  fully  absolved  the 


872  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

r^ru?ed*^in're^  ^^®^®^»  ^°  reality,  properly  ruled,— thus  even,  ex  abundantis 

futaUoD  agiiin  of  in  refutation  of  Uie  same  authority  referred  to,  who,  as  has 

oM  awrUonJ''  ^®^  ®®®">  exclusively  recognised  and  prescribed  the  law  of 

England,  together  with  the  strict  rule  and  principle,  in  such 

Scottish  Peerage  matters.^     Our  old  remedy  for  the  above 

apparent  laxity  is  also  obvious,  and  will  be  recurred  to,  with 

more  upon  the  subject  of  extinctions,  under  the  next  case.' 

Cue  of  the         The  Marquisate  of  Huntly,  EarUlom  of  Enzte,  with  the 

Huiury?'Ear?-  Subordinate  honours,  are  stated  by  historical  evidence  to  have 

dom  of  Ewie,  been  conferred  upon  George  Earl  of  Huntly,  the  17th  of 

April  1599  ;^  which  can  also  be  legally  established  the  date,  by 

Inquest  from  the  process, — of  course  sustaining  tlie  service,  and  the 
contrary  presumption  as  to  the  extinction  in  question,  under  tlie  cir- 
cumstances.   (Act  and  Decree  Register  of  the  Court  of  Session.)    In  a 
competition  of  brieves,  that  is,  of  persons  claiming  to  be  served  in  the 
same  character  with  each  other, — wlien  issue  was  mutually  joined, 
the  practice  must  always  have  been  strict ;  but  this  was  neither  a  case 
of  the  kind,  nor  upon  a  tUreci  contradictor ;  and  from  these  considera- 
tions, modem  Inw  might  conclude,  at  once,  in  favour  of  the  served, 
and  have  as  little  allowed  the  objector  to  have  appeared,  as  he  is 
also  proved  to  have  done,  and  opposed  at  the  service.    The  latter  facul- 
Advantagev  dif-  ty  was  extended  by  our  former  law,  to  any  one  who  had  the  least  in- 
ferently,  from  terest,  as  can  be  fully  proved,  (see,  inter  aliOy  p.  37,)— though  now  ex- 
any 'one  ^on**  ^^luded,  nnd  certainly  gave  greater  cfiFect  to  such  general  service  when 
qualifying,  but  obtained,  it  thus  passing  through  a  severer  ordeal.    Indeed,  it  is  to  be 
a  secondary  in-  regretted,  that  the  practice  is  not  somewhat  restoi'ed.    According 
at  a  §8^06^***  ^  *^®  present  less  exacting  method,  it  is  only  there,  as  notorious,  by  the 
subsequent  process  of  a  reduction,  (as  latterly^  above,)  that  a  l^^al  i)arty, 
not  a  competer  originally,  and  hence  barred  in  the  first  instance^  can 
have  redress,  though  certainly  sure  when  it  comes.  But  circumstances 
may  not  speedily  evoke  such  a  party,  or  an  emergent  interest.    In  so 
far  as  constant  later  taciturnity,  and  moral  proljability  go,  the  extinction 
in  the  Kellio  case  may  be  now  admitted ;  but  this  does  not  altogether 
meet  the  material  question. 
I  See  p.  833. 

'  Tlie  preceding  Kellie  statement,  so  far,  is  from  the  various  autho* 
rities,  printed  Case,  Minutes  of  Evidence,  MSS.,  Notes  of  the  Plead- 
ings, resgestusy  &c. 

■  See  the  act  and  form  of  creation  in  Sir  George  Mackenzie's  Works, 
vol.  II.  p.  535.  It  hence  transpires,  'as  might  be  expected,  that  there 
was,  moreover,  a  written  constitution,  in  further  refutation  of  Lords 
Mansfield  and  Ilosslyn,  the  champions  of  abstract  ^  Belting,"  as  they 
had  proved  likewise  on  this  occasion.    A  most  ^iMptcioift  unauthentic 


IN  SCOTTISH  PEEKAGES,  &C.  873 

proof  not  adduced  in  the  claim  to  be  presently  noticed.     He  is  The  original 
likewise  styled  Marquis  of  Hundy,  &c.  in  1600,  and  1603,  in  though  in  1599, 
legal  deeds,  and  sat  in  Parliament  accordingly  in  1606.    And°°'  prewrTed. 
although  the  Jirst  limitation  of  the  honours,  owing  to  the  loss 
of  the  original  written  heritable  constitution,  be  now  strictly 
unknown,  yet  the  estates,  both  antecedently  and  down  to  the 
accessionof  Alexander,  seventh  ]Marquis  of  Huntly,  and  fourth 
Duke  of  Gordon,  in  1752,  stood  to  heirs-male,^  a  circum- Hantiy  estates 
stance  deserving  notice,  especially  as  Lords  Alansfield  and  heJ^mdir  *** 
Rossljm,   with  their   usual  consistency^  as  has  been  seen, 
toy  and  coquet  with  such  argument,  or  indication  sometimes, 
as  may  suit,  wholly  repudiating,  while,  at  others,  e  converso^ 
founding  upon  it  in  honours,  as  a  clue  of  descent.     The  Mar- 
quisate,  &c.  descended  to  Lewis,  third  Marquis  of  Huntly, 
grandson  and  heir*male  of  George,  the  original  Marquis  of 
Huntly,  (through  George,  the  second  Marquis,  his  sod),  who 

cated  copy  on  parchment,  impeifect,  and  wit] tout  a  date,  from  the  Gor-  Suspicious  and 
don  Charter-chest,  which  professes  to  be  an  unintelligible,  anomalous  »no"«>»*ou*  copy 
reoognitiou  or  declaration  of  the  constitution  of  the  Marquisate,  &c.  declaration  of 
and  limitation  of  the  same  to  ''  heirs-mnle,"  by  James  VI.  even  after  i^mw  I.  after 
the  union  of  the  crowns, — ^that  happened  in  1603, — was  adduced  in  'Jj®   ^tAoh  of 
the  Huntly  claim ;  but  though  received  in  evidence,  it  was  not  held  ^^  ^^^  constlw- 
per  se  to  suffice.  Its  epoch  is  thus  indirectly  evinced  from  James,  the  tioo  of  the  Mar- 
grantcr,  being  there  styled  King  of  Great  Britain^  France,  &c.;  but  *!""***»  ^^ 
from  what  motive  the  original  emanate<l,  if  actually  warranted,  which 
may  indeed  be  questioned,  does  not  satisfactorily  transpire.  This  copy, 
however,  that  will  be  recurred  to,  may  be  now  viewed  of  no  moment,  as 
was  even  admitted  by  the  counsel  of  the  claimant.  His  claim  likewise 
originally  involved  the  ancient  Earldom  of  Huntly,  with  the  older 
honours,  but  so  far  it  was  not  prosecuted.    It  appears,  by  legal  docu-  True  date  of 
mentsin  the  Gordon  Charter-chest,  that  Alexander,  first  Earl  of  Hunt-  ^^e  constitution 
ly,  (male  ancestor  of  the  grantee,  in  1699,)  was  Lord  Gordon  in  1444,  ^[  Humly!^n 
and  Earl  of  Hmitly  hi  144C, — ^while  ''  Alexander  Earl  of  Huntlie,"  is  1445. 
a  witness  to  the  Parliamentary  ratification  of  the  Barony  of  Hamil- 
ton, the  3d  of  July  1445.     (See  Acts  of  Pari,  last  Edit.  vol.  II.  p.  69.) 
He  was  thus  Earl  in  1445,  an  earlier  date  assigned  than  usual ;  and  an 
old  Chronicle,  very  consistently,  makes  the  constitution,  and  creation,  not 
now  extant,  in  that  year.    (See  Ford.  Goodall's  Edit.  vol.  11.  p.  541.) 
^  These  facts,  and  others  to  be  stated,  are  from  relative  authorities, 
either  condescended  upon  in  the  claim,  or  upon  record  in  that  year. 
The  title  of  Marquis  was  known  to  us,  as  early  as  tlie  29th  of  January  The  title  of 

1487,  which  is  the  date  of  the  constitution  of  the  Marquisate  of  Ormond,  »'"qy*«  ^^^^^^ " 
1       «*^    •    M     ^1      <  ««      •    -r    1      «     r«.       A    .  /  to  U8  in  148 1. 

%  locabty  m  Scotland,  as  well  as  m  Ireland.  (See  Act«,  ut  sup,  p.  180-1 .) 


874  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Important  Act  obtained,  the  25tb  of  March  1651,  *^  Bege  presentei"^  an  Act 

ing  LevrisTthT  ^^  Parliament,  reversing  the  attainder  of  the  above  George,  ae- 

Mcond  Marquis,  cond  Marquis  of  HuntIy,hisfather,andof  certain  near  relatives, 

which  now  re-'  by  the  previous  reI)ellious  authorities,'  and  restoring  him,  inter 

d^St,  ^^^"    ^^^  ^  *®  Marquisate  of  Huntly,  "  with  aU^  and  whatsoever 

titles^  honores^**  &c.  that  <^  did  pertine*'  to  tbesame  George,  just 

as  if  there  had  been  no  forfeiture,  in  favour  of  the  said  Lewis, 

^^and  his  airis  maiUj  BxidJaiUieing  of  him  and  them^  be  de« 

cis,  to  the  next  apparent  air  maiU  of  his  said  umquhile  father," 

— ^which  last  epiUiet,  ^*  heir  male,"  though  here  in  the  singular, 

has  been  similarly  used  in  our  patents  in  a  collective  sense ; 

and  being,  besides,  when  here  occurring,  interchanged  and 

identified  in  Uie  context,  with  **  airis  maill "  in  the  plural,  in 

reference  to  the  lands,  that  are  accordingly  carried, — simul  ei 

tfeme/,— it  further  relevantly  argues  the  common  descent  of  the 

honours,  in  the  exact  manner,  to  all  such  heirs-male.^ 

The  Act  is  pre-     This  Act  may  presumptively  too,  exemplify  the  original  des- 

terms,  so  far,  of  tination  of  the  honours  in  1599,  which  may  have  been  also  so 

the    oHgra^    Conceived ;  while  the  same  is  entitled  to  far  greater  weight 

cottstituUon  in         ,    .  '  ,  _    ^  -  r.     i-  *.  m 

1599.  and  importance  than  our  usual  Acts  of  Parliament  after  the 

union  of  the  crowns,  affecting  private  rights,  the  king  having 
been  thus  indubitably  present  at  its  passing,  and  hence  dir 
rectly  authorizing  and  warranting  it,  as  was  indispensable,  ow- 
ing to  the  conveyance  of  the  dignities, — ^in  req>ect  to  which  I 
have  now  stated  all  that  is  material. 

Upon  the  death  of  the  gallant  George,  eighth  Marquis  of 
Huntly,  Duke  of  Gordon,  &c.  (with  which  last  higher  dignity 
we  have  nothing  to  do,  it  being  only  by  patent  in  1684,  to 
heirs-male  of  the  body^  of  George,^tir^A  Marquis  of  Huntly, 
his  exclusive  male  ancestor,  and  expiring  with  him),  the  Mar- 
quisate, and  the  attendant  honours,  were  claimed  by  a  royal 

>  Charles  II. 

'  Theattainder  of  this  Marquis  in  1645,  was  likewise  rescinded  by  Aet 
of  Parliament,  the  3d  of  April  1661,  after  the  Resioration.  See  Minutes 
of  Evidenoe,  pp.  12 — 14. 

'  A  properly  certified  extract  of  the  said  Act  of  Piarliameiit,  (the  full 
original  Record  not  being  now  extant,)  from  the  €rordon  Charter-^hest, 
with  other  corroborations,  wasy  for  the  first  time,  adduced  in  this  claim. 
See  Minutes  of  £vid<^nce,  pp.  8,  9. 

*  Dated  on  the  Ist  of  November,  ju  that  year*    Great  Seal  Register. 


IN  SCOmSH  PSERAGES^  &C.  875 

reference,  (upon  petition,)  the  4th  of  February  1837,^  by 

George,  fifth  Earl  of  Aboyne,  direct  male  descendant  of  Lord 

Charles  Gordon,  first  Earl  of  Aboyne,  so  created  in  1 660.' 

The  latter  was  a  younger  brother  of  Lewis,  the  third  Marquis 

of  Huntly,  restored  in  1651,  father  of  the  preceding  Duke  and  '^^  honouw 

Marquis  George,  and,  of  course,  younger  son  of  George,  se-  allowed  to  the 

cond  Marquis  of  Huntly ;  and  the  honours  were  accordingly  2^^^,.^^/ to' 

allowed  the  noble  claimant,  his  male  descendant,  as  stated,  isss. 

in  virtue  necessarily  of  such  Huntly  representation, — by  the 

subsequent  resolution  of  the  Lords,  confirmed  by  the  crown, 

on  the  22d  of  June  1836.^     According  to  the  noted  inclines 

Hon  of  the  House  of  Lords,  irresistibly  backed  by  the  Act 

1651,  and  by  every  collateral  circumstance  that  could  be  re- 

ferred  to,  the  honours  in  question,  that  had  been  never  resign-  The    fonner 

ed,^  clearly  devolved  to  heirs-male,  including  the  claimant,  \^^it^  bein-* 

who  succeeded  in  establishing  his  pedigree,  as  above,  by  strict  m*^®* 

legal  evidence,  whicti,  apologizing,  however,  for  the  manifest 

legal  truism,  falls  always  to  be  adduced  where  it  exists.     The 

only  difficulties  in  the  case,  the  other  points  being  also  pro-  '^^,  ^^?  ^^ 

periy  fixed,  turned  upon  two  important  extinctions,  especially  cue  comprised, 

upon  the  alleged  strict  rule,— ;/?r«f,  of  Lord  Lewis  Gordon,  Jj^*^  ^^  It^^^' 

of  much  nearer  male  descent,  who  was  younger  son  of  Alex-  Lewis  Gordon, 

ander,  second  Duke  of  Gordon,  (son  of  the  first  Duke  men-  ^to^f/ Henry 

tinned),  dead  in  1728 ;  and,  secondly ^  of  Lord  Henry,  another  Gordon,_or  at 

younger  son,  with  Charles,  first  Earl  of  Aboyne,  (ancestor  of  th^  iltt'e?^^"^ 

the  claimant,)  of  George,  second  Marquis  of  Huntly, — or,  at  J°""fi^®J^***f° 

1       *   •  •       u-  *u       *u    ^    1      on.    r  u  •       Lord  Charles, 

least,  ra  provmg  him  younger  than  the  Earl.   The  former  bemg  tiie  claimant's 
attainted  by  Act  of  Parliament  in  1746,  in  consequence  of  the  *"^^^®''- 

^  Lords^  Journals. 

^  By  patent,  then  on  tho  10th  of  September,  Great  Seal  Register. 

'  Lords'  Journals. 

*  Nay,  there  is,  on  the  contrary,  a  formal  reservation  of  them  in  the  The  Marqoisate 
patent  of  the  Dukedom  of  Grordon,  mentioned  in  1684,  agreeably  to  the  of  Huntly  re- 
more  strict  practice,  which  even  makes  tJiis  a  stronger  case  than  that  Jf^***.'  ^  **"_ 
of  the  Marquisate  of  Queensberry,  (see  pp.  668-9,}  there  being  none%eni  of    the 
such,  of  the  latter,  or  of  the  attendant  dignities, — (claimed  by  a  colla-  Dakedom  of 
teral  heir-male,  in  that  character,  through  the  patent  of  the  Marqui-  ^^j^f  ^'**     *° 
sate,  &c.  in  1682,  and  allowed  him  in  1812,) — ^in  the  regulating  patent  of 
the  Dukedom  of  Queensberry,  (though  farther  proceeding  upon  a  resig- 
nation,) in  1706,  also  with  a  different  limitation.  SeeGreat  Seal  Register. 


876  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Lord  Lewis  a    rebellion,  betook  himself  abroad,  where  be  constantly  thereaf* 
difficuU  «*t«Dc-  ter  resided  in  obscurity,  and  is  exdusivelj'  stated  by  a  Britbh 
tempted    by    newspaper^  to  have  simply  died  in  France,  in  July  1754. 
indirect^second.  Even  this  obviously,  admitting  the  statement,  did  not  extin* 
ary  reputation,  guish  him ;  and  the  only  mode  by  which  that  came  to  be  at- 
tempted was  through  the  negative,  or  rather  neutral  reputation 
of  the  Earl  of  Aberdeen — the  grandson — of  the  brother — of  the 
wife — of  the  eldest  brother  of  Lord  Lewis, — (such  was  the 
connection,) — merely  that  he  *' never"  heard  of  the  latter 
"  having  left  any  descendants,"^  which  nevertheless  mighty  e 
conversOy  have  happened.     It  hence  was  by  no  means  at  all 
satisfactory,  or  stringent,  even  so  far  as  it  went  f  and  this  was 
all,  for  Lord  Aberdeen  did  not  speak  to  his  death,  which  re- 
mained quite  unestablished,  for  even  the  newspaper  was  tin- 
other  strange  appealed  to. — I  must  apologize;  there  was  indeed  another  most 
ouB  auemptr  t6'et^A^^  argument  pressed  in to  the  scrvice,  and  it  isas  follows. 
throu\'*"M*!Itr"  ^°  *  <lecree  or  judgment  of  the  Court  of  Session,  the  24th  of 
being  applied  to  December  1755,  given  in  favour  of  Henrietta  Duchess  of  Gor- 
1756  w'Vf  he  ^^°'  mother  of  Lord  Lewis,  sustaining  her  claim,  (since  1 74G), 
was  thereby  fin-  as  a  credttor^^  for  payment,  out  of  his  small  forfeited  estate,  of 
certain  sums  she  had  originally  advanced  to  him,  he  happens 
to  be  there  described  as  the  *^  late  Lord  Lewis  Gordon,  at* 
tainted ;"  ^  and  will  it  be  believed,  it  was  upon  this  ground, 
conclusively  argued,  and  contended  with,  that  inadvertence 
and  modem  bias  or  prejudice,  which  I  have  often  attempted 
in  vain  to  resist  in  Peerage  claims,  that  Lord  Lewis  was  then 

'  The  Caledonian  Mereury,  Ist  of  August  17^4.  Of  course,  the 
notice  wa«  copied  Id  to  one  or  two  of  the  other  ootemporary  prints. 

■  See  Minutes  of  Evidence  in  tJie  case,  p.  43.  Why  was  the  vener- 
able Duchess  of  Richmond  not  examined  upon  this  head,  the  grand- 
niece  only  of  Lord  Lewis  ?  She  ioas  examined  in  later  matters,  and 
if  9he  knew  nothing  certainly  about  his  Lordship,  it  might  be  supposed 
that  Lord  Abci'deen,  thus  indirectly,  must  have  even  less. 

■  It  seems  assuredly  but  weak  and  vague,  while,  besides,  Glassford, 
the  latest  and  most  intelligent  writer  on  Evidence,  upon  the  whole, 
holds  "  hearsay,"  (negative),  or  borrowed  traditionary  impression,  as 
above,  in  small  account.  See  Essay  on  the  Principles  of  Evidence,  p.  358. 

*  In  terms  of  an  Act,  Geo.  II.  1747,  c.  41,  vesting  the  forfeited  estates 
in  the  king,  and  for  satisfying  the  claims,  &c.,  upon  them  by  creditors. 

•  Act  and  Decree  Register  of  the  Court  of  Session  ;  see  Min.  p.  31. 


IN  SCOTTISH  PEERAGES^  &C.  877 

actually,  naturally  dead.     Although  every  legal  antiquary  Ob?iousiy;fatiie, 
knows,  that,  in  the  circumstances,  the  epithet  ^*  laie^"--ii31  i^'^ptaUtm  of 
that  came  here  to  be  appealed  to, — has  no  such  necessary  or  "**'•»"  ""^®' 

,  ,  ,  the  circumstftn* 

decisive  import,  but  was  applied  (according  to  original  genuine  ces. 
acceptation)  to  any  traitor — as  much  when  alive,  as  dead — af- 
ter the  time  of  his  attainder,  having  exclusive  reference  to  his 
civil  demise,  he,  then,  quite  according  to  the  feudal  precepts, 
being  put  at  the  ban  of  society,  and  expelled  from  its  com- 
munion and  pale,  where  he  was  no  longer  considered  a  coex- 
isting member,  but  a  mere  nonentity  for  the  future,  and  de- 
prived of  all  his  rights  and  interests,  which  had,  by  his  treason, 
suffered  a  total  erasure,  and  annihilation.  I  ought,  I  believe, 
to  ask  pardon  of  my  readers,  for  obtruding  upon  them,  as  I 
have  done  below,  legal  proof  of  the  fact  in  question,  so  fully 
applicable  to  the  case  of  Lord  Lewis.^    From  thence  it  follows, 

>  In  letters  and  reports  in  the  original  cotemporary  Record  of  Exche-  insunces  sbew* 
quer.  Advocates'  Library,  dated,  respectively,  May  and  July  1748,  and  >"?  }^^  ^^^ 
in  17th  of  June  1749,  there  is  specific  mention  of  the  «  late  Earl  of  ?f,P"^!*{*°  °^^^ 
Cromarty— tlie  iate  Lord  Elcho,  attainted,"— and  of  the  **  late  Lord  sons  after  their 
Pitsligo."    Oh,  then,  the  procurators  in  the  Hnntly  claim  would  have  forfeiture,  did 
said,  there  is  here  indubitable  proof  of  their  deaths  at  least  before  these  ^J^^eluh" 
periods.    Unfortunately,  of  all  these  notoriously  attainted  noblemen, 
or  rather  fortunately,  it  however,  e  eonversOj  luippens  that  ample  proof 
exists  of  their  survival  long  after ;  Loixl  Cromarty,  with  a  large  family, 
then  bemoaning,  as  is  transmitted,  his  unhappy  fate,  and  not  expiring 
until  September  1766,   in  PoLind  Street,  London,  Lord  Elcho  then 
complaining  of  Charles  Edward's  recreancy  at  the  battle  of  Cullo<len, 
like  Bonaparte,  declining  to  retrieve  matters  by  a  personal  charge, 
and  not  making  his  exit  even  till  1787,  while  Lord  Pitsligo  did,  as  little, 
till  1762,  a  model  of  Christian  piety.     Again,  in  March  1748,  there 
is  allusion  to  the  forfeited  estate  of  '^  the  late  Sir  James  lOnloch"  (of 
Kinloch)  ;  but  lo^  and  behold,  in  a  public  letter  afterwards,  in  Novem- 
ber in  that  year,  while  he  is  again  descril)ed  as  **  late^^  and  as  **  con- 
victed of  his  treason,"  there  is  authority  for  granting  a  pension  to  his 
wife.  Lady  Kinloch,  "  during  "  his  "  natural  life ;"  clearly  shewing  he 
was  still  alive,  and  that  '*  late,"  like  the  cholera,  does  not  always  kill. 
By  evidence,  too,  before  me,  he  was  at  least  alive  in  17^1.    Various 
other  similar  instances  could  be  produced ;  but  what  would  the  former 
think  of  the  following  ?    Lord  Greorge  Kurray,  actually  the  hero  of 
the  Stewart  crusade  in  1745,  in  two  official  documents  in  1752,  and 
1753,  is  likewise  styled  **  the  late  Lord  Greorge  Murray ;"  but  it  is 
equally  indisputable,  however,  they  might  have,  more  divinely  than 
the  fates,  cut  his  career  so  much  shorter,  that  he  did  not  die  (in  Hoi- 


878       iKQuntY  nrro  the  law  and  pbaotice 

therefore,  that  ^^late,"  in  his  Lordship's  case,  irfter  1746, 

becomes  perfectly  neutral  and  insignificant,  and,  intrinsically, 

no  more  proves  him  dead  at  the  period,  than  the  writer  of  these 

remarks  at  this  moment,^*-far  less  goes  to  extinguish  him. 

Yet  the  English  concocters  or  framers  of  the  Huntly  claim  in 

1838,  rested  so  material  a  point  as  this  weighty  extinction 

upon  the  preceding  singh  fact  in  evidence,  without  conde* 

scending  upon  or  specifying  an  itetn  more,  in  any  tangible  or 

dilucid  shape.^ 

It  was  only,  on      It  was  Only,  on  the  Attorney-General  requiring,  as  was  in- 

botn^'^Mtue!^  ^®^  incumbent,  more  proof  of  the  extinction,  that  the  still 

with  the  other  vsgue  and  feeble  adminicle  of  Lord  Aberdeen's  negative  hear- 

proof^of^  Oie    ^7'  ^^  rcsortcd  to,^  the  only  remaining  feather  that  could  be 

•stinction,  that  thrown  iuto  the  scale.     And,  moreover,  such  a  self  cut-throat 

repataUon  wu  piocc  of  busiuess  was  this,  that  actual  evidence  was  aeuielp 

resorted  to. 

laod)  until  October  1780.  The  last  instanooy  I  need  lisidiy  add,  is  ex- 
actly identical  with  that  of  Lord  Lewis  Gordon,  both  having  been  fo^• 
feited,  besides  sons  of  Dukes,  and  holding  their  titles  by  courtesy.  All 
these  authentic  authorities  are  from  the  official  Record  premised.  The 
form  was  old  and  deep»rooted :  to  go  a  little  further  back,  in  a  printed 
Report,  under  express  authority  of  Parliament,  just  beside  me^  in  1717, 
concerning  the  estates  forfeited  in  1716,  we  have  then  also  the  **  lai$ 
Eari  Mari8ohall,"--the  **  late  Lord  Naim,»^-«nd  the  **  late  Master  of 
Nairn,*'  (a  title  again  by  courtesy),  all  attainted  on  account  of  the  ear* 
lier  Stewart  rebellion,  and  who  notoriously  survived  long  after.  In- 
deed, the  Sari  Marshal,  the  £uned  friend  of  the  great  Frederiisk,  died 
at  the  advanced  age  of  eighty-four,  in  1778  ;  yet  it  would  have  been 
argued,  in  the  Huntly  claim,  that  he  was  dead  in  1717,  though  mors 
than  an  age  beyond  that,  he  starts  up  in  Dr.  Moore's  amusing  travels, 
and  maintains,  to  the  deep  regret  of  the  Duke  of  Hamilton,  and  the 
Doctor,  that  having  been  bom  before  the  Union,  he  was  nearly  the  only 
true  remaining  Scottishman,  all  others  produced  after  that  national 
suicide,  having  lost  the  status.    (See  Trav.  voL  II.  pp.  268-9.) 

^  See  printed  Minutes  of  Evidence  generally,  and  p.  31,  where  an 
excerpt  of  *^  a  certified  copy  of  the  Decreet  of  the  Court  of  Sesuon  in 
Scotland,  sustaining  the  claim  of  Lord  Lewis's  mother,  Henrietta  Duchess 
Dowager  of  Gordon,  to  his  estate,  dated  the  24th  of  December  1765,'* 
&c — ^that  expressly  referred  to^—- and  containing  the  wl^unct  **  late^ 
in  question,  is  alone  given, — ^in  the  total  abienee  of  any  other  relative 
emerging  &ct,  or  adminicle,  that  otherwise  ought  to  have  been  added, 
and  especially  noticed,  **  to  prove  the  death  of  Lord  Lewis  Grordon," 
and  to  shew  that  he  **  was  then  (m  1766)  dead." 

'  Xbitkp.^ 


IK  SCOTTISH  PBSRAOES,  &C.  879 

aad  most  consisteptly  produced  for  the  claiiiisnt»  whose  cause 
the  pretence  aa  to  ^Mate"  was  vitally  to  assist,  according  topieaasto"2afe" 
received  principle,  directly  refuting  it,  inasmuch  as  this  "fai^c"  ^Jfj^n^^'^^^ul^ 
is  there  applied  to  ilie  ^*  Marquis  of  Huntlie,"  ( George  the  ced  by  the 
second,  father  of  Marquis  Lewis)  in  1647,'  that  is,  at  the*^*"*"'"^ 
veri^  time  when  he  happened  to  be  a/i ve, — ^indeed  he  did  not 
die  until  (as  was  also  carefully  proved)  in  1649 ;'  in  this  roan* 
ner  most  sagaciously  and  providently  apprizing  the  crown  and 
the  public  of  the  ucter  nugatory  nature  and  nullity  of  the  for- 
mer, and  at  once  beadng  the  bottom  out  of  the  very  case. 
There  being  no  succession  with  us,  of  a  mother  to  a  son.' 
which  indeed  would  be  barred  here  at  any  rate,  by  tho  forfeit- 
ure of  Lord  Lewis,  the  previous  claim  of  the  Duchess,  so  far.  Sole  claim  of 

,  ..-11  1  .  11     1       ^l»o  Duchess  of 

merely  as  a  creditor  too,  clearly  proves  nothing;  all  that  Gordon   after 
may  be  hence  inferred  in  the  circumstances  is,  that  he  had  '^^*  "^^^^^r 

'  .  ,  ,  .  goes  to  prove 

not  heea  married,  or  had  issue,  b^re  his  attainder ;  for  other-  that  Lord  Lewis 
wise  there  might  have  been  a  claim,  under  settlements,  &c.  also  bdTore  hu'^rlTr? 
by  his  widow  or  chUdren ;  though  whether  this  argument  came  feiture,— even 
to  be  adopted  in  the  claim  or  not,  I  am  uncertain.     It  would  acco"  nt  "of  Ms 
thus  appear,  that  unless  to  profit,  or  to  take  advautage  of  the  ^^„^^  ^^^ 
L<^ds*  antiquarian  unproficiency^*-fio  high  complement  certain- 
ly.^wbo,  however,  deserve  every  full  and  proper  explanation 
— or,  what  is  more  probable,  and  a  more  charitable  supposition, 
and,  as  we  may  oondude,  owing  to  the  rashness  and  igno- 
rance of  the  projectors,  such  exclusive  method  of  killing 
l4ord  Lewis,-*— not  even   the  newspaper  being  adduced-*- 
eould  hardly  have  been  ever  well  resorted  to,  or  looked  for. 

We  now  come  to  the  remaining  important  subject  of  Lord  other  import. 
Henry  Gordon,  formerly  alluded  to.  As  be  was  pointedly  ^^  ^^i,t^e^' 
adduced  and  inserted  into  the  pedigree  as  younger  son  of^wingtoLord 
George  second  Marquis  of  Huntly,  and  brother  of  Charles   ^^^ 

*  By  a  solemn  aet  referred  to,  tlie  24tU  of  March  in  that  year ;  see 
Minntes  of  Evidence,  p.  14. 

'  By  another  Aet  of  Parliament  in  1661,  where  it  is  explicitly  stat- 
ed, that  this,  as  he  had  been  described,  **  kte  '*  Marquis  of  Huntly,  in 
1647,  was,  in  1649,  CfirHy  it  is  to  he  presumed,  unless,  like  the  Hydra 
of  antiquity,  he  had  many  lives^)  <*  cruelly  deprived  of  his  lifib  by  a 
pubHei  execution.'*    Ibid, 

'  The  brothers  and  sisters  of  Lord  Lewis,  and  their  descendants,  bat- 
ing his  attainder,  were  his  heirs-at-law. 


880  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

first  Earl  of  Aboyne, — ^in  order  to  discusd  him,  it  was  incum* 
bent,  either  to  prove  that  the  Earl  was  the  elder,  or  to  esta- 
Here  even  no  bUsh  that  the  former  died  without  issue*  But  neither  of  these 
pro^at  di.*"^  methods  were  adopted ;  cdl  that  transpired  on  this  head,  was 
a  slovenly  passing  remark,  in  an  insignificant  note  attached  to 
the  printed  case,^  of  a  line  and  a  half,  gratuitously  assuming 
botli  Lqfd  Henry's  juniority  and  extinction,  upon  a  vague  ono- 
nymous  reference  to  **  «;r2Yer«,".^thus  shadowy  phantoms,  it 
would  seem,  whom  it  was  left  to  the  reader  to  feign  and  to  im- 
agine,^t  being  only  added,  that  ^^  no  trace"  of  him  ^^has 
been  found  upon  record,"— ^as  to  which  hereafter. 


Yet  the  Lords  Yet  the  Lords  Were  induced  to  resolve,  upon  such  irresisti' 
hold  ihe  pre-  Me  proof  of  extinctions,  and  removal,  so  far,  of  the  material 
ceding  difflcui-  impediments,  that  any  objections  upon  this  head  had  been 
obviated,— thus  justly  obviated  and  vanquished,  and  the  claimant  infallibly 
:e7„«S"h"r  entitled  to  the  honours,  as  the  next  heir-male.  We  have  thus 
tion  of  the  ne-  again  an  admirable  exposition  of  the  truth  of  the  doctrine  in- 
evidence  '  in^  culcatcd  by  the  legal  authority  repeatedly  referred  to,  of  the 
Peerage  claims,  necessity  of  "  evidence  of  the  strictest  kind  in  matters  of 
Peerage  (Scottish)  in  the  House  qf  Lords^''  ^  and  the  rejec- 
tion by  them  of  what  is  not  rigidly  so,  and  below  the  mark. 
Nothing  of  the  Why,  excepting  the  slight  and  inconclusive  negative  hearsay, 
^^®'  tt°LolS  o'^^^P^^tion,  of  the  existing  Lord  Aberdeen,  as  it  may  be  held, 
Lewis.  — not  a  blood  relative  of  Lord  Lewis,  and,  however  highly  res« 

pectable,  most  certainly  but  an  indirect  connection,  and  not  near- 
ly so  close,  correlatively,  as  **  the  ghost  of  Prologue's  grand- 
mother, by  they&ZAer'tfside,"  &c.'  while  figuring  at  so  remote 
a  period, — ^there  was,  in  fact,  nothing  whereby  to  extinguish 
him.  And,  moreover,  what  stress  is  to  be  attached  to  the 
former,  may  be  even  further  obvious,  when,  independent  of 
concurrent  enlightened  authority,^  it  had  been  inculcated  by 
repuuuion  asTo  Lord  Rcdesdalc,  in  the  Roscommon  Peerage  claim,  only  so 
him,  quite  to-  recently  as  1828,  that  evidence  of  "  a  reputation"  was  "very 
easy  to  raise  ;*'  and  who  specifically  alluded  to  a  case,  where  it 
came  to  be  **  utterly  rejected,"  on  examination,  though  by  <^  a 
person  highly  respectable!'  It  proved,  after  that  sure  test, 
to  be  such,  as  to  be  both  improbable,  nay  wholly  unworthy  of 

»Seep.2.ofthe«iiiw,    ■Seep.832.     'Seep*876.     «  See  p.  833,  n.  4. 


IN  SCOTTISH  PKEHAOE89  &C.  881 

credit ;  and»  in  fine,  he  adds,  *^  that  mere  reputation,  without 
any  proof  to  support  it,  (exactly  as  in  the  present  instance,^) 
is  a  very  miserable  species  of  evidence  in  cases  of  this  descrip-  a  **  verymuer- 
tion,"  identically  again,  of  descent  and  extinctions.'     Yet,  in  eridenco"— ac- 
the  Huntly  case,  Lord  Lewis  Gordon  was  a  far  preferable  co'^«*»"«f  ^^  ^-o'"** 
heir,  and  indeed  a  grave  and  weighty  extinction,  upon  the 
claimant's  own  shewing,  owing  to  his  unrepealed  attainder^ 
even  at  this  day — ^his  being,  in  consequence,  rendered  a  per* 
petual  exile,  and  thereby  excluded  from  all  Scottish  commu- 
nion and   succession,   which   necessarily   threw  a  veil  and 
mystery  over  his  subsequent  fate  in  that  country,  and  barred, 
so  far,  the  likelihood  of  any  written  and  parole  evidence  res- 
pecting  him.      Having  thus  lived,  as  is  stated,^  and  closed 
bis  career  in  France,  in  obscurity,  there  was  indeed  but  little 
chance,  independently,  through  political  estrangement  and  pre- 
caution, of  his  Scottish  relatives  learning  much  of  him,  and 
still  less  of  Lord  Aberdeen,  only  distantly  through  them.     In  "^et  the  exUnc- 
lieu  of  what  was  so  weakly  relied  upon,  therefore, — in  these  Lewis     wm 
circumstances,  a  full  investis^ation  abroad,  where  the  hest^  and  '^^e^Rhty.  an«J 

,  ,  ,  peculiarly  d©« 

hence  far  more  eligible,  and  certainly  only  sure  intelligence  manded  proof, 
could  be  gained,  especially  according  to  the  strict  rule  or 
ratioy  (as  has  been  shewn),  contended  exclusively  to  apply  in 
such  emergency,  became  indispensably  necessary.     But  this 
was  never  fairly  attempted,  all  being  prematurely  left  to  the  The  faint  repa- 
"very  miserable  species  of  evidence,"  yclep'd  "  reputation  ;"|JJ]Jefmnt!'*'* 
which  was  here,  besides,  both  irrelevant  and  inadmissible,  be- 
cause, '^  in  order  to  let  in  "  even  that,  as  was  again  solemnly 
resolved  in  the  important  Roscommon  Peerage  claim  in  1828, 
'Mt  should  yirj^  be  shewn  that  searches  were  made  for  regiS" 


>  Of  coarse,  most  indirectly  through  Lord  Aberdeen, — as  to  Lord 
Lewis  not  having  left  issue. 

*  Report  of  Roscommon  Peerage  claim,  by  Clark  and  Finnelly,  under 
their  Appeal  cases,  vol.  VI.  Part  I.  p.  112.  When  reputation  or  hear- 
ny  is  admissible,  not  certainly  in  this  case,  as  it  stands,  and  hence  im- 
material, will  be  seen  in  the  sequel.  The  legal  profession  are  assured- 
ly much  obliged  to  the  above  learned  gentlemen  for  the  work  in 
question,  which,  it  is  to  be  hoped,  they  will  still  continue,  according  to 
their  welcome  intimation,  with  reports  of  Peerage  cases. 

*  By  the  evidence  only  of  the  Caledonian  Mercury,  (see  p.  876,)  whioh 
even  was  nof  adduced,  though  in  the  utmost,  penuria  tutimonti, 

8  k 


882  INQUIKY  INTO  THE  LAW  AND  PRACTICE 

i€r9^* '  of  course,  foreign  ones,  &c. ;  and  written  proof,  in  the 
There  shouM  present  instance,  in  France, — thus  while  no  report  of  such  prior 
sUtrntr*"  "rio"  °®^®^8*^y  investigation  there,  was  ever  made  to  the  Lords, — 
idvestigattons,  directly  confirming  the  course  I  have  anticipated.  I  fearless* 
an  abroa  .  jy  contend  too,  that  on  the  previous  strict  principle  or  crite- 
rion patronized — so  belied  again  by  the  **  reputations^  even  al- 
though Lord  Lewis  had  been  described  as  <<  naturally  deceas- 
Upon  the  strict  ed"  in  the  decree  of  the  Session  in  VIXjS^^  instead  of  simply 
possible  vtew?^  *' late,"  Still  that,  inasmuch  as  it  by  no  means  precluded 
the  extinction  ^^  possibility  of  issuc, — which  yet  remained  to  be  unequivo- 

was  unsupport-  ^  ^  *  ^  ^ 

ed.  cally  disproved,  as  it  happened  not  to  be,  was  far  indeed  from 

sufficing. 

Lord  Henry,        At  the  Same  time,  likewise,  we  have  seen  how  Lord  Henry 

Umjtion*or*ob-  ^ordou  was  disposod  of,  though  so  prominently  brought  for- 

etacie.innoway  ward,  ouly  by  a  gratuitous  passing  remark,  in  a  hardly  dis- 

ispoae  o .      (t^mibiQ  ^Qi^  ^  t,{je  printed  case ;  in  the  proof  led,  and  in  the 

Minutes  of  Evidence,  by  nothing — ^without  even  the  shadow  of 
an  adminicle — in  a  way  that  would  scarcely  have  been  risked 
in  a  subaltern  Scottish  service,  though,  in  the  gross,,  so  much 
affected  to  be  condemned  by  English  authorities. 

With  every  submission,  in  these  circumstances,  instead  of  sole- 

*  See  Clark  and  Finnelly's  Appeal  Cases,  ut  sup,  p.  105.    The  Roft- 
eommon  was  an  Irish  claim ;  and  the  Committee,  in  delivering  the 
above  resolution,  added,  that  ^'  it  was  extremely  important  to  observe 
conformity  on  English  and  Irish  claims  of  Peerage/'  lb.    Hence  such 
Hnntly  claim     rule  not  being  applied  in  the  Scottish  Peerage  claim  of  Huntly,  in  1838, 
further  shews    we  have  additional  refutation  of  a  former  assertion  risked,  that,  in  Scot- 
law  d^f  "nUt^  ^^^  Peerage  claims,  "  the  House  of  Lords  has  not  yet  acknowledged 
rule  in  Scottish  finy  rule  of  evidence,  but  those  established  by  the  English  Law.''    See 
Peerages.  p.  832. 

'  See  pp.  876-8.    Lord  Lewis  would,  assuredly,  have  been  a  far  bet- 
ter peg,  whereon  Peerage  adventurers,  (of  whom  there  have  been  so 
many  in  our  days,)  might  have  hung  a  supposititious  pedigree,  than 
certain  others  that  have  been  resorted  too.    In  the  much  later  oonfir- 
Testament  of   mation  of  the  Testament  of  Lord  Charles  Gordon,  brother  of  the  for- 
Lord  Charles    jj^q^^  j^  1790,  (in  the  Edinburgh  Testamentary  Commissary  Raster,] 
in  no  view  ex-  ^^^  Adam  Gordon  is  styled  "  only  surviving  son"  of  Alexander  Duke 
tinguish   Lord  of  Gordon,  their  father ;  but  this  too,  labours  under  an  obvious  objec- 
I^wls.  iiqj^  stated,  while  the  confirmation  here  of  Lord  Adam,  as  an  executor 

dative,  **  qua  nearest  in  kin,"  in  such  matter  of  executory,  would  not, 
by  our  law,  extinguish  the  issue  of  Lord  Lewis,  even  if  then  existing, 
because  they  could  not  have  taken,  not  being  upon  the  same  line, 
but  would  have  been  thus  excluded, — even  too  bating  the  forfeiture. 


IN  SCOTTISH  PEERAGES,  &;C.  88  S 

ly  clinging  to  ^<a  very  miserable  species  of  evidence,"  according  Method  that 

to  Lord  Redesdale,  in  the  strict— probably  most  eligible  and  been  **  hwe* 

approved  view,  and  far  from  being  unprecedented,  for  full,  and  ^opted  u  to 

proper  satisfaction,  the  obvious  course  available  in  this  ex-  the  drcomstan- 

treme  and  clamant  case — supposing  all  other  sources  exhaust-  ^®'' 

ed — should  have  been  to  have  stated  and  adduced  every  thing 

transpiring  in  regard  to  Lord  Lewis, — certainly  including 

the  newspaper  account  of  his  death,' — all  we  yet  have  upon 

that  head,  not  so  much  perhaps  in  the  character  of  evidence, 

as  to  shew  the  Lords,  who  may  be  considered  as  having  just 

light  to  every  attainable  information  in  the  solemn  exercise  of 

their  duty,  that  the  cldmant  had  made  all  due  investigation 

in  his  power,  and  had  fairly  and  honestly  submitted  the  results 

to  them,  with  which  they  might  deal  as  they  chose.     ^Fhere 

may  certainly  not  have  been  much  to  go  upon,  but  still  it  was 

better,  in  the  present  particular,  rather  to  tender  that  much, 

than  nothing — ^rather  than  the  blank,  or  pure  evanescence  that  E?ery   thing 

was  hazardously  trusted  to  in  its  stead.     As  long  as  there  is  been'here add 

a  distinction  between  majus  et  minusy  between  something  or  ced  for  the  /«// 

'  Such  identical  form  too, — ^that  of  thus  adducing  newspapers, — is  Newspapers  re- 
quite relevant  in  practice.    In  the  Borthwick  claim  in  1812,  the  Edin-  ^evantly   addu- 
burgh  Gazette,  Advertiser,  Courant,  and  actually  our  old  friend  the  Cole-  ?^  Peeraee  "*^- 
donian  Mercury^  (see  p.  876),  with  various  newspapers,  were  given  in  sen,  and  under 
as  evidence,  and  admitted  by  the  Lords  without  scruple,  to  corrobor-  exprestauthori- 
ate  the  pedigree  and  extinctions,  through  the  evidence  of  advertise-  ^  °  *  ®  Lords. 
meats  by  the  claimant,  therein  inserted.    This  was  likewise,  as  inti- 
mated, in  conformity  to  the  precedent  of  the  Zouche  claim,  where  the 
same  procedure  had  been  directly  enforced,  even  by  the  Lords,  for  the 
means  of  publication  and  information.    (See  Minutes  of  Evidence  in 
the  Borthwick  case,  pp.  87-8-9.)    Nor  are  the  above  solitary  instances. 
The  late  Clerk  Hamilton  was  a  leading  counsel  for  the   Borthwick 
claimant ;  and  in  the  printed  case,  (containing  the  usual  statement, 
and  requisite  authorities,)  of  the  Marchmont  claimant  in  1820,  now 
before  me,  framed  and  revised  by  him,  and  by  Mr  Brougham,  after- 
wards Chancellor,  whose  name,  as  well  as  that  of  the  former,  are  append- 
ed thereto, — ^in  order  to  prove,  in  the  identical  way,  as  in  the  present 
instance,  the  death  abroad^  in  Ireland,  of  John  Hume,  a  material  extinc-  Caledonian 
tion,  in  1738,  the  Caledonian  Mercury,  agaiuj  singularly  enough,  is  legal-  Mercury  might 
ly  referred  to,  and  actually  "produced"  for  the  purpose.    (See  p.  5.)  ^*jj°^  *>^«" 
That  paper,  though  excluded  in  the  Hun tly  case,  had  thus  prescript! vely  founded  upon, 
acquired,  independent  of  the  legal  relevancy,  the  right  of  kiiling,  and  as  in  the  Marrh- 
giving  du«  and  approved  testimony  on  such  occasions.  "*•"'  **••• 


884  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

faia/action  of  nothing^ — by  which  last  worthy  method,  in  fact,  (when  therd 
instead  of' no-  ^^  besides  Still  another  remedy,  as  will  be  further  apparent  in 
t^^n?-  the  sequel),  Lord  Lewis  was  only  attempted  to  be  dispatched, 

this  may  be  accounted  the  most  appropriate,  and  indeed  only 
course.     Nay,  it  is  but  recently  supported  in  principle  by  the 
Thin  corrobora-  resolution  of  the  Lords  again,  in  the  Roscommon  Peerage 
cedure  in  ^iw"  claim,  repeatedly  adverted  to  in  1828,  whereby  they  held  that 
Roscommon      even  "  documents  put  before  the  House  by  a  claimant,  al- 
though not  admitted  in  evidence"  were  yet  ^^ fit  matter  for 
observation,"  with  a  view  to  ulterior  objects^  and,  as  above,  to 
expiscate  truth  and  justice, — however,  it  had  been  contended, 
that,  owing  to  the  former  being  '^  not  in  evidence,"  it  was  ^'  un- 
necessary to  observe  upon  them."^     At  the  same  time,  what  I 
have  proposed  might,  by  the  very  publication,  (in  the  same 
way  as  the  Lords'  order,  through  newspapers^),  have  elicited  a 
clue  to  strict  legal  proof  of  the  necessary  extinction,  which 
Peculiar  nature  must  Constantly  be  preferred.     Neither  is  evidence  always 
o  evidence,      immutable,  and  to  be  precisely  defined.     On  the  contrary,  as 
is  notorious,  it  is  occasionally  flexible,  and  changes  its  hues 
and  complexion  from  circumstances,  so  that  what  may   well 
fall  to  be  rejected  in  a  certain  alternative,  may  not  in  another, 
such  as  the  present;  while,  bigottedly  to  maintain  the  reverse, 
and  to  withhold^  in  this  extreme  emergency — as  was  done  in 
Inconsistency  in  ^^®  Iluntly  instance, — the  newspaper  in  1754,  a  kind  of  sheet 
iho  Hontiy  ewe  anchor,  on  a  limited  scale,  would  be  tantamount  in  one  of 
iho  evidence  of  a  political  kind— though  with  far  greater  relevancy  there,  (re- 
the  newppapcr,  curriug  to  a  former  illustration,)  to  perishing  with  Vattel  in  our 
intsr  upon  a  cr^.y  hand.    But  again,  to  shew  the  consistenqf  ol  the  management 
:»  Soramr.  and  procedure  in  the  same  Huntly  respect,  in  a  point  of  far  less 
brication.         importance,  a  wretched,  indeed  suspicious  copy  or  writing,  up- 
on a  scrap  of  parchment,  undated,  unfinished,^  ungrammatical, 

*  See  Roscommon  claim,  in  Clark  and  Finnelly's  Reports,  toI.  VI. 
P.  I.  pp.  97-8,  107-8. 
«  See  p.  883,  w. 
Specimen  and      *  It  Stops  shortly  thus, — **  In  cujus  rei  testimoninm,  huic  present!, 
peculiar  nature  magnum  nostrum  sigillum  in  testimonium  proBmissorum,  apponi  prae- 

of  ihecopy.aml       j^^  „ without  insertion  either  of  the  place  ofexe3ution, 

wntinquegtion.     ^         \  ,^  ,    ^  ^.„  ^    .  i      ^*u    j  * 

names  of  any  witnesses,  or,  what  was  still  more  material,  of  the  date. 

See,  in  contrast  with  this,  inter  alia^  the  constitution  of  the  Earldom  of 
Winton,  dated  at  Holy-rood,  1600,  &c.  the  year  only  after  the  Hunt- 


IN  SCOTTISH  PEERAGES,  &C.  885 

anauthenticatedy  and  of  peculiar  and  foreign  hand-writing — 

beingeven,  I  might  say,  an  ignorantySiirtca^rora,  but  professing 

to  be  an  anomalous  retrospective  royal  declaration  of  the  fact 

of  the  constitution  of  the  Huntly  Marquisate  in  1599,^  t^'^^^?  The  latter  even, 

on  the  other  hand,  expressly  adduced^  nay.  even  admitted  inj*^?"^**  strictly 

,    ^  ^  1   .  below    notice, 

evidence,  though  with  an  intimation  to  the  claimant,  that  it  received  in  ovi- 
should  be  corroborated  in  **  the  absence  of  the  Great  Seal,"^  such  **®°*^*' 

ly  creation,  in  the  Great  Seal  Register,  which  has  all  these  usnal 
solemnities,  independently  of  the  royal  subscription. 

*  Whatever  might  be  superficially  thought,  these  facts  are  suflScient- 
ly  obvious,  on  inspection,  to  a  Scottish  legal  antiquary.  There  is  not 
the  least  vestige  of  the  necessary  tag,  far  less  seal,  to  give  the  parch- 
ment an  air  of  originality,  or  any  thing  to  that  effect,  though  a  small 
hole  or  abreption  at  the  bottom  has  been  made,  suspiciously  enough, 
as  it  were,  to  induce  such  an  impression.  The  grant,  besides,  begins  in 
the  present  tense,  ex  tuncy  and  then  peculiarly  goes  off  into  the  past, — 
first  wishing  to  exalt  the  grantee, — and  then  stating  that  he  had  been 
created,  and  so  exalted  in  1599, — thus  hibernici  analogous,  though 
inversely,  to  the  case  of  the  ^*  first  of  Irish  commanders," — ^who 
"  died  at  Antigua,  fighting  in  Flanders."  Independently  of  the 
hand-writing  being  strange,  the  document  running  in  the  name  of 
James,  king  of  Great  Britain,  France,  &c.  while  the  date  of  the  crea- 
tion referred  to,  in  gramio,  is  in  1599,  may  authorize  its  having  been 
by  a  foreigner,  who  thought  that  the  king  had  been  then  of  Great 
Britain^  and  not  until  1603,  the  true  era  of  the  Union  of  the  crowns. 
In  farther  corroboration,  I  might  add,  that  the  words  in  the  origi- 
nal, are  James,  king  '*  magni  Britannia?,"  thus  masculating  Brittan- 
ia,  but  an  odd  error,  and  not  likely  to  be  perpetrated,  at  tlie  outset  of  the 
deed,  as  it  is,  during  a  reign  that  produced  the  best  Scottish  Latinity, 
even  by  an  ordinary  conveyancer.  What  occasion  too, was  there  for  such 
later  declaration,  when,  from  the  official  account  of  the  Huntly  creation 
in  1699,  (in  Sir  George  Mackenzie's  Works,  referred  to,  see  vol.  II.  p. 
635),  it  transpires  that  there  voas  a  patent  then  given  to  the  dis* 
ponee  ?  The  fonner  may  have  been  much  more  by  an  ignorant  bailiff, 
than  the  Moray  instrument,  according  to  Lord  Rosslyn,  (see  pp.  800-1.) 
It  having  been  explicitly  admitted  by  the  counsel  for  the  Huntly 
claimant  in  1838,  '*  that  (his  Document  did  not  appear  to  have  any 
particular  Bearing  on  the  case,"  (see  Minutes  of  Evidence,  p.  7,) 
it  now  only  affords  a  topic  of  harmless,  though  curious  criticism. 

•  See  Minutes  of  Evidence,  p.  7,— and  Clark  and  Finnelly,  under,  it 
is  to  be  regretted,  their  very  summary  and  brief  account  of  the  Hunt- 
ly claim,  (Appeal  cases,  vol.  V.  p.  351,)  wherein  they  state,  that  **  the 
Committee  received  the  instrument,  (the  sorry  copy  in  question,)  after 
some  diseastion,"  adding,  that  the  Lord  Advocate  ^'  did  not  oppose  its 


886  INQUIRY  INTO  THB  LAW  AND  PRACTICE 

d^fect  not  being,  per  se^   fatal.     I   need  hardly   observe, 

that  the  suggestion,  resolving  into  an  order  to  illustrate  what 

was  obscurum  per  ohscurius^  elicited  no  further  results ,— and 

hence  so  much  again,  for  the  rigorous  notions  and  procedure 

as  to  evidence  of  the  House  of  Lords  in  Scottish  Peerage 

claims  I  ^ 

Bttt,  indepen-      But,  independently  of  all  this,  it  so  happens,  that,  owing  to 

abole,  \oTd    ^^  '^^^V  circumstanco  of  the  attainder  of  Lord  Lewis  Gordon 

Lewis,  and  any  in  1746,  both  he,  and  any  supposed  issue  withal,  could  at 

could  have  been  once  have  been  discussed  and  removed,  as  obstacles  to  the 

fully  (tispatch^d,^]g^jiQ^  ^p^ji  y  jij  ^^^  Unexceptionable  legal  precedent  and 

strict  law  and  authority,  namely,  in  terms  of  the  relevant  and  noted  deci- 

?n7t^hUattin>ion  in  the  case  of  Gordon  of  Park  in  1754,  which  is  admit- 

der,  upon  the  ted  to  apply  equally  to  honours  as  to  lands.     In  exact  con- 

rUyoithe  Gor'formity  with  the  latter,  the  Marquisate  of  Huntly  being  an 

**°°  ®i  «^*^^  entailed  honour,  with  a  remainder  over*  in  virtue  of  the  re- 
case,    fully  in,  iiAjiTfci'  •/• 

point  gulatmg  conveyance  by  the  Act  of  Parliament  m  1651,'  pre- 

cisely the  same,  so  far,  both  in  conception  and  phraseology, 
with  the  regulating  Park  entail,  while  any  imaginable  offspring 
of  Lord  Lewis  must  be  presumed  to  have  been  born  abroad  af- 
ter the  attainder,'  these  and  their  descendants,  being  thus,  as  is 
held,  aliens^  would  indisputably,  be  in  the  identical  situation 
of  the  alsojbreign  issue,  of  the  also  previously  attainted  Gor- 
don of  Park  traitor,  all  included  under  a  perfectly  correspond- 
ing limitation.  Hence  the  former,  as  fixed  by  the  Park  de- 
cision, in  consequence  of  their  birth  abroad,  and  the  antece- 
dent flaw,  elements  common  to  both  cases,  would  be  equally 
beyond  the  pale  of  law,  and  utter  nullities  thereby,  as  much 
as  if  they  had  never  existed, — in  which  event,  as  was  further 
conclusively  found  by  the  important  decision  in  question,  in 
favour  of  the  next  Gordon  of  Park  heir-male,  (he  taking  again, 
and  similarly,  by  a  remainder  over,)  immediately  on  failure  of 


reception,  but  submitted  whether  it  was  sufficient  proof  of  the  creation 
and  limitation  of  the  dignity  in  question." 

»  See  p.  832.  ■  See  pp.  873-4. 

'  See  p.  879.  If  he  had  been  married  too,  and  had  had  issue 
previously,  in  this  country,  there  would  have  been  fiill  means  of  fixing 
the  facts,  the  utter  absence  of  which  relative  proof,  necessarily  dis- 
proves  such  supposition. 


IN  SCOTTISH  PEERAGES,  &C.  887 

the  prior  heirs-male,  in  terms  of  the  first  limitation,  in  the 
Huntly  act,  in  1651,^  in  the  person  of  George,  last  Duke  of 
Gordon,  Marquis  of  Huntly,  &c,  the  Marquisate  and  the 
subordinate  honours,  on  the  supposed  alternative  of  heirs-male 
of  Lord  Lewis,  (he,  at  length,  as  we  may  hold,  being  fairly 
dead^),  in  virtue  of  the  closing  remainder  there,  to  the  *' heirs- 
male  whatsoever,"  that  now  would  come  into  play,  would  in- 
stantly vest  in  them,  and  necessarily  in  the  claimant,  as  the 
first  under  that  character.     By  the  settled  law,  in  the  con-  Lord  Lewn  and 
templated  event,  the  claimant  had  nothing  to  do  with  the  re-  hlVonseqiTenc^P 
maining  nearer  heirs-male,  (de  facto)  in  the  limitation,  who  i^^^^iy  quite  out 
were  barred,  as  above,  by  such  absolute  deprivation  and  loss  of  ^     ^  ^"^'  *^"' 
caste,  or  obliged  to  notice,  or  account  for  them,  as  he  took  too, 
as  was  shewn  under  the  law  of  forfeiture,'  by  a  title,  (through 
the  remainder  over),  quite  independent  of  them,  that  was  dis- 
tinct from,  and  wholly  uncompromised  by  the  guilt  of  the  per- 
son in  the  previous  limitation.^    Yet  this  argument,  barring 

>  See  pp.  873-4. 

'  See  also  p.  876,  the  confinned  testament  in  1790,  if  it  can  be 
fully  received  as  certain,  in  reference  to  his  Lordship,  whose  issue, 
however,  it  clearly  would  not  extinguish. 

•  See  pp.  712-13-14-15-16-17-18,  &c. 

*  This  report  of  the  Gordon  of  Park  case,  a  leading  one,  is  thus  Printed  ca*of, 
given  correctly  by  Cruise.    **  The  istue^  (heirs-male  of  the  body  of  the 

traitor,  under  a  first  limitation,  as  in  the  text,)  must  be  capable  of  in- 
heriting the  dignity^  otherwise  the  remainder  will  take  effect.  Thus,  in 
the  case  of  Grordon  against  the  King's  Advocate,  {Jhat  of  Park,)  the 
following  question  was  put  to  the  Judges  by  the  House  of  Lords : 
'  Tenant  in  tail-male  of  lands  in  England,  with  remainder  over,  is  at- 
tainted of  high  treason,  and  the  estate  tail  thereby  forfeited  to  the 
crown.  After  this  attainder^  tenant  in  tail  has  issue  maky  horn  inyb- 
reiffn  parts,  out  of  the  ligeance  of  the  crown  of  Great  Britain,  and  dies 
leaving  such  issue  male. — Qikrre,  is  the  estate,  or  interest  in  the  lands, 
which  were  forfeited  to  the  crown,  as  aforesaid,  continuing,  or  deter- 
mined ?  The  Lord  Chief  Baron  of  the  Court  of  Exchequer,  having 
conferred  with  the  other  Judges  present,  delivered  their  unanimous 
opinion,  that  the  estate  or  interest  in  the  lands,  so  forfeited  to  the 
crown,  as  aforesaid,  was  determined.'  In  consequence  of  this  opinion, 
the  person  who  was  next  in  remainder^  recovered  the  eetatey  (that  of 
Park)  from  the  crown."  On  Dig  p.  123.  The  entail  in  the  Park  case, 
by  his  father,  was  to  Sir  William  Gordon  of  Park,  the  traitor^  and  the 
heirs-male  of  his  body  ;  whomfailingy  to  the  heirs-male  of  tlio  body  of 


88S  INQUIRY  INTO  THfi  LAW  AND  PRACTICB 

exception  in  any  adverse  hypothetical  event,  and  imperatively^ 
I  conceive^  demanding  adduction,  not  only  in  the  regular 
course,  but  in  such  penuria  testimonii^  and  consequently  the 
commonest  regard  and  duty  to  the  client,  whom  it  certainly 
was  far  indeed  from  injuring,  has  been  as  little  resorted  to, — 
though  before  a  Tribunal,  so  scrupulous^  and  exacting,  as  has 
been  contended,  in  the  matter  of  evidence,  and  requiring  full, 
and  strict  authority  and  substantiation  in  every  thing.  Instead 
of  which,  all  was  thus  providentially  left  to  the  glaring  vacuity. 
This  material  i^  the  present  particular,  in  respect  to  the  still  outstanding 
argument,  how-  difficulty  as  to  Lord  Lewis,  which,  according  to  highest  autho- 
adduced.  rity,  and  doctrine  elsewhere,  as  we  will  see  in  the  sequel,  in 

virtue  of  a  later  decision,  (that  of  Rutherford,)  would,  a/oT" 
tiorij  have  been  utterly  fatal  and  insurmountable. 
.     .   „  Then  again,  as  to  Lord  Henry  Gordon,  the  remaining  im- 

again.  couUi  be  pediment  and  obstacle,  after  the  parallel  precedent  in  the  case 
paidled,  Ic-  °^  Bclhaven, — where  such  course  was  decisively  sustained,' — 
cording  to  the  besides  being  followed  in  the  recenter  Scottish  case  of  Lovat, 
o?BemaTenaiid^^o^ig^  his  existence  and  filiation  are  established  by  historical 
Lovat.  evidence,  (by  the  way,  it  may  be  observed,  conclusive,  accord- 

ing to  Lord  Rosslyn^),  yet,  by  that  very  evidence,  his  juniority 
to  Charles,  the  first  Earl  of  Aboyne,  ancestor  of  the  claimant, 
that  amounts  to  the  same  thing,  if  not  extinction  too,  are 
fixed,  which  also  solves  the  point,'     What  is  further  remark- 

his  fother,  under  which  last,  John,  the  successful  claimant,  took.  Cmise^ 
it  will  be  observed,  gives  the  above,  as  ruling  in  the  case  also  of  digni- 
ties, and  he  says  further,  in  a  Peerage  opinion  I  have  by  him,  in  1818, 
'*  I  have  no  doubt  but  that  the  principles  adopted  in  the  second caae  of 
Park,  (the  above,)  are  equally  applicable  to  dignities." 

»  See  pp.  846-7.  *  See  pp.  822-3,  831-2-4,  n.  1. 

'  Spalding,  an  Aberdeenshire  person,  and  a  cotemporary,  styles 
Lord  Charles  (the  Earl,)  the  ^*fourt  sone"  of  George,  second  Marquis 
of  Huntly,  (see  his  History,  last  £dit.  vol.  II.  p.  106,)  from  whence, 
as  we  can  indisputably  fix,  that  the  three  elder  were  George  Lord  Gor^ 
don,  James  Viscount  of  Aboyne, — who  both  died  without  issue,— and 
Lewis,  afterwards  third  Marquis  of  Huntly ;  Lord  Henry  necessarily 
must  have  been  the  fifth,  and  youngest.  Now,  as  to  Lord  Henry's  filia- 
tion and  juniority,  simultaneously^  by  one  and  the  same  evidence,  both 
Gordon  of  Sallagh,  another  equally  esteemed  cotemporary,  the  conti- 
nuator  of  Sir  Robert  Grordon's  History  of  the  Karldom  of  Sutherland, 
v.(8ee  p.  645,)  and  Grordon,  in  his  History  of  the  Family  of  Gordon,  pub- 


IN  SCOTTISH  PEERAGES,  icc*  889 

able  too,  this  identical  extrication  and  argument  had  been  even 

expressly  inculcated  and  enforced  by  Lord  Redesdale,  in  the 

recent  Roscommon  Peerage  decision  in  1828,  a  great  English 

rule  in  so  many  respects,  and  that  ought  to  be  familiar  to  all 

Peerage  lawyers.    A  MS.  pedigree  simply,  was  there  adduced,  Farther  fttni, 

to  prove  the  existence  at  one  time,  of  four  nearer  heirs  than  ™°*'  pointedly 

■  '  according  to  the 

the  claimant,  sons  of  the  first  Earl  of  Roscommon.     And  how  identical  doc- 
did  his  Lordship  meet  the  objection  ?  just  precisely  as  above ;  Roscommon* 
for  he  replied,  that  while  it  did  so,  "  the  pedigree  states  them  to  ca»e,  by  the 
have  died  without  issue,"  which  sufficed, — "  that"  he  observed,    °*  ** 
•*  which  proves  their  existence,  proves  their  death  without  is- 
sue ;  for  the  whole  document,"  he  most  pertinently  and  logi** 
cally  concluded,  '^  mtist  be  taken  together^  and  not  a  part  of  it ; 
so  that  there  is  no  evidence,  on  the  part  of  the  crown,  that 
there  were  such  persons  (the  above  Roscommon  «07z«,^  except 
this  pedigree,  and  this  shows  them  to  have  died  without  is- 
sue."^     Hence  the  very  evidence,  in  a  parallel  way,  proving 
Lord  Henry's  existence,  likewise  proving  his  juniority,  (which 
is  enough,)  must  have  equal  favour  and  eflFect.    llie  correspond-  y^t  j^,„^  ,gj^^ 
ing  facts  and  arguments,  here  again,  therefore,  should  have^a"^  facts  and 
been,  moreover,  deferentially  adduced  in  the  Huntly  claim,  were^  never 
out  of  due  regard  to  the  Lords,  as  suhjecta  materies,  as  much  »'*^<*' 
as  those  in  the  antecedent  extinction,  after  which  all,  (includ- 
ing Lord  Lewis,)  would  have  been  fairly  set  at  rest,  in  every 
yiew, — instead  of  actually  standing,  as  before,  in  a  shaking 
quagmire. 

Upon  the  strict  ratio^  assuredly,  as  inculcated  by  certain 

lished  in  1726,  (see  vol.  II.  pp.  179-80,  and  281-3,)  do  represent  him  as 
•071,  and  the  youngest  son,  of  the  above  George,  second  Marquis,  while 
the  latter  too,  in  such  a  manner  as  to  induce  perhaps  a  likely  impres- 
sion, that  he  had  heen  unmarried,  and  left  no  issue,  inasmuch,  while 
he  is  otherwise  communicative  as  to  his  brothers,  &c.  he  neither  men- 
tions any  marriage,  or  issue  of  Lord  Henry.  This  therefore  tells,  as  in 
the  text.  In  the  unparalleled  culpable  note,  formerly  noticed,  in  the 
printed  Huntly  case,  (p.  2.)  it  is  further  erroneously  stated,  that  *'  se^ 
verai  writers," — nameless,  as  was  remarked, — "  all  agree  that  he  (Lord 
EenryJ  died  without  issue,**  This  last  fact  is  hardly  capable  of  being 
inferred  from  more  than  one,  even  if  that. 

'  See  the  statement  of  the  Koscommon  Peerage  claim,  among  Clark 
and  Finnelly*s  Appeal  Reports,  vol.  VI.  Part  I.  p.  129. 


890  INQUIRY  INTO  THE  LAW  AND  PEACTICE 

Upon  the  strict  authorities,  chiefly  English, — ^independently  of  the  more  eligi- 
espoused  ^^y^  ble  course,  as  may  be  thought,  on  all  hands,  it  must  indeed  be 
some  English    confessed  that  the  Huntly  claim,  with  its  capabilities,  was,  in 

authorities,  the  ,         ,  ,  .       ,  ,  ,   ,         , 

Huntly  case  part,  very  lamely  and  madequately  concocted  by  the  agents 
inade'^urier^**  ®^  framers.*  By  some  strange  fatality,  besides,  as  was  else- 
concocted,  where  shewn,  gross  error,  and  misapprehension  seems  to  have 
environed  it,  owing  to  what  reason  I  shall  not  stop  to  inquire.' 
The  negligence  But,  with  every  deference,  the  striking  want  and  deficiency  in 
here  a  serioifs  ^^^  proof  in  question,  as  above,^  when  actually  available,  by 
consideration,  legal  precedent  and  authority,  is  a  serious  consideration,  as 
baneful  conse-  it  may  thus  Open  a  door,  ostensibly  under  the  high  countenance 
quences.  ^f  ^{^^  Lords,  to  loose  and  exceptionable  practice  and  conduct 

hereafter,  in  respect  to  extinctions, — dealt  with,  as  they  have 
been,  in  the  Huntly  instance/     Nay,  under  colour  of  the  lat- 
ter, to  the  harsh,  injurious,  and  unjust  consequences,  in  the 
noted  case  of  Willoughby  of  Parham,  the  slightest  chance  of 
the  recurrence  of  which,  however  differing,  as  our  law  may 
here  do,  from  thut  of  England — should,  above  all,  be  avoided. 
In  pointed  refu-  Whatis,  notwithstanding,  at  the  same  time,  curious  and  remark- 
iTprevioas'au-  ^^^^s  although,  as  has  been  seen,  it  was  inculcated  by  a  re- 
thority,    the    peatedly  quoted  authority,  that  evidence  would  not  be  autho- 

The  recent  Rtt-     ^  The  danger  of  such  rashness  and  negligence,  with  the  prudent  ne- 

^'"^  K^"*  h^*  oessity  of  a  different  course,  such  as  I  have  here  suggested,  will  be 

stated  shews     ©aidant  from  what  will  transpire^  under  the  also  recent  Rutherford 

the  necessity  of  claim.    In  a  Peerage  case,  every  thing  should  be  fully  and  correctly 

full  preparation  concocted  for  the  Lords, — with  as  little  retention  as  possible.    This,  I 

'  know,  quadrates  with  the  opinion  of  some  enlightened  English  lawyers, 

at  least,  while  the  Lords,  owing  to  their  various  important  avocations, 

require  every  due  premonition  and  information.    On  this  account,  I 

cannot  help  thinking,  that  the  original  Scottish  mode  of  procedure  is 

preferable  to  the  English.  '  See  pp.  341,  n.  342,  ibid. 

Negligent  cos-      '  On  this  head,  I  might  further  advert  to  the  practice  of  submitting 

torn  as  topedi-  printed  pedigrees  and  statements,  in  Peerage  matters,  to  the  Lords,  up- 

tish  Peerage  *  ^^  ^he  simple  authority  actually,  (though  uncondesoended  upon),  of 

claims.  Wood  and  Douglas.    This  only  creates  additional  and  unnecessary 

expense  to  clients,  from  the  indispensable  correction  of  manifest  errors 

afterwards,  (as  might  be  expected),  through  the  proper  channels,  that 

ought  to  have  been  before  explored  in  Scotland. 

*  How  the  procedure  quadrates  too,  or  is  to  be  reconciled  with  later 
doctrine  and  practice,  as  illustrated  in  the  Rutherford  Peerage  case, 
will  he  seen  in  the  sequel  under  tliat  claim. 


IN  SCOTTISH  PEERAGES,  &C.  891 

rized  or  admitted  in  a  Scottish  Peerage  claim,  by  the  Lords,  Huntiy  ca»e  wm 
"not  strictly  admissible  by  the  Law  of  England ;"  i  yet  un-i^^^r^J^^^^ 
questionably,  the  relative  procedure,  in  the  matter  of  the  to  the  Scottish 
Huntiy  extinctions,  in  the  obvious  dereliction  again  (as  in  the  the 'English,  or 
Kellie  instance)  of  the  latter,  was  far  more  in  accordance  with  ^" .  ^^^  *^"^^ 
the  law  of  Scotland, — upon  which  it  must,  in  a  measure,  not 
irrelevantly  rest ;  seeing  that  law,  when,  as  in  the    Huntiy 
case,  there  existed  no  competitor,  is  more  indulgent,  in  the 
main,  in  respect  to  extinctions,^  however  it  may  still  naturally 
authorize,  and  prefer,  when  attainable,  the  best  evidence,  and 
means,  to  meet  and  to  obviate  them.^ 

The  notion,  therefore,  of  superior  strictness,  or  in  the  ex-  Notion  of  the 
treme  always,  by  the  Lords'  practice,  in  evidence,  has  now  ""^g^oJ  *^l^' 
been  repeatedly  refuted,  latterly  through  the  medium  of  these  Lords  in  EyI- 
remarkably  lax  precedents  of  Lords  Lewis  and  Henry  Gor-tj^h^VeeragV 
don^  while  the  bent  and  character  of  our  law,  as  was  instruct- *^«'»  further 

here  glaringly 
refuted. 

>  See  p.  832.  '  See  p.  42. 

'  On  a  competition,  however,  our  law  appears  to  have  been  strict,  (see 
p.  42)';  and  on  the  occasion  of  every  probation  of  a  pedigree  by  service, 
different  from  present  practice,  any  one,  even  upon  an  indirect  in- 
terest, was  allowed  to  object,  which  submitted  it  to  the  test  of  a  much 
more  constant  and  rigorous  challenge,  (see  p.  37.) 

*  I  have  recently  discovered,  I  am  happy  to  say,  various  notices  of  New  authentic, 

wLord  Henry  Gordon,"  described  as  "brother  to  the  last  Marquis  of*°^,.  f»'o»f»Wo 
— -.  particulars  a- 

Huntly,"  (Lewis  the  third),  and  "  ione  to  the  late  George,  (the  second)  bout  Lord  Hen- 

ifargpti^*  of  Huntiy,"  in  the  original  Register  of  Privy  Council,  in  her  Ma-  ry  Gordon ;  see 
jcsty*s  General  Raster  House,  from  1664,  to  1667  inclusive,  that  may  P-  ®®^' 
be  further  favourable.  While  his  brother  Earl  Charles  is  elsewhere  pre- 
sumptively, shewn  to  have  been  more  advanced,  and  to  have  prominent- 
ly figured  before  the  Restoration,  besides  being  rewarded  with  the  Earl- 
dom of  Aboyne  in  1660,  and  other  grants,  immediately  thereafter,  it  trans* 
pires  from  the  above,  that  Lord  Henry  had  been  neither  provided,  or 
properly  alimented  until  1667,  when  he  is  classed,  in  this  respect,  even 
with  his  nieces,  the  daughters  of  the  deceased  Marquis  Lewis,  his  bro- 
ther. From  hence  we  may  conclude,  independently  of  the  historical 
evidence,  to  that  import,  that  he  was  the  youngest  son  of  George  the 
second  Marquis,  the  common  ancestor.  And  when  Lord  Henry  actual- 
ly is  provided,  as  a  son  of  the  &mily  in  1667,  in  virtue  of  a  general 
settlement,  it  is  by  a  grant  of  6000  merks,  allocated  on  lands  to  himself 
in  liferent  merely,  without  any  extension  thereof,  according  to  the  old 
custom,  by  way  of  appanage,  to  issue,  who  are  in  no  event,  or  any  rela- 
tive notice,  contemplated.    He  may  have  probably  been  hence  intended 


89S  INQUIftT  INTO  THE  LAW  AND  FftACTICB 

Apology    and  6^9  had  an  apology  for  its  comparative  mildoess  and  indul- 

•peciai  reason  ggnce  in  extinctions,  from  the  future  competency  with  us,  de- 

rative  miuiness  nied,  or  uukuown  in  England,  to  question  or  open  up,  in  emer* 

Uiw  ai  to"ea.  g®"^-'®8,  theadmission,  or  constitution  of  a  Peerage,  whereby,  as 

tinctioQi.  well  as  through  the  instrumentality  of  interim  possession  only, 

a  remedy  was  afforded  to  the  evil  of  the  English  consequences 

noticed.     I  have  been  indispensably  pointed  in  my  remarks 

upon  the  Huntly  claim,  owing  to  its  peculiarity  in  part,  and 

negligence,  and  inadequacy,  in  the  previous  concoction,  that 

always  demands  comment  and  animadversion.    How  far  the 

Will  the  Huntly  Huntly  precedent,  with  the  result,  may  bear  upon  extinctions  in 

duce^a  raore'ie-  ^"^"''^j  ^^  might  be  cxpectcd,  in  hitroducing  a  lenient  or  relax- 

nieni  and  lax  ed  rule,  it  is  not  for  me  to  say.     But,  I  apprehend,  it  is  only 

extinctionV    ^  ^J  adopting  the  course  I  have  done,  that  the  law  in  general  can 

be  properly  illustrated  and  matured ;  and  beyond  doubt,  with* 

My  pointed  re-  out  any  scruple  or  hesitation  in  the  instance  in  question,  the 

Huiidycawre- ^*'*^™  being  certainly  intrinsically  good,  upon  the  available 

quired,   virhiie  merits,'  however  unestimated  or  overlooked ;  according,  1  con- 

thev  are    far 

from  prejudic-  ccive,  as  I  have  treated,  and  disposed  of  it,  in  the  only  points, 

^8  i^-  that  may  be  otherwise  deemed  weak  and  insufficient. 

Obvious  quel-       I  have  Only  to  add  one  other  circumstance  in  the  present 

dedded  in*ihe  ^*^®'  ^"  regard  to  a  matter  of  form.     The  Earl  of  Aboyne,  the 

■ama.  Huntly  claimant,  having  merely  petitioned  that  he  might,  as 

entitled,  be  entered  under  the  higher  honour  of  the  Marqui- 

sate  in  the  Union  Roll,  without  praying  for  declaration  of  his 

right  to  the  dignities  in  question,  it  was  found  that  a  new 

petition  for  this  additional  purpose  should   be   presented. 

His  counsel  suggested  that  the  petition  should  be  to  the 

fbrthe  Romish  church,  (there  being  as  little  allusion  to  his  marrying,) 
to  which,  and  long  after,  the  House  of  Gordon  strictly  adhered.  We 
have,  in  the  transactions  referred  to, — the  curious  information,  that  the 
rental  of  the  Huntly  or  Gordon  estate,  then  amounted  to  24,771  pounds 
Scots.  It  is  perhaps  too,  the  more  incumbent  to  state  these  particulars, 
as  the  more  that  is  known  of  Lord  Henry,  may  save  him  from  being  the 
prey,  as  ancestor,  under  some  imaginary  character,  to  future  impostors, 
(of  whom  there  have  been  so  many  lately,)  in  their  eager  attempt  to 
foist  themselves  upon  noble  families,-~especially  ours. 

*  I  need  hardly  add,  there  is  besides  every  human  probability  of 
Lord  Lewis's  extinction,  naturally  also  ;  but  that  is  not  kt^ftu  loei^  or 
moets  the  obvious  legal  points  I  have  in  view. 


IN  SCOTTISH  PEERAGES,  &C.  89S 

Lords ;  but  the  Chancellor,  of  course,  would  not  adopt  such 
procedure,  quite  contrary  to  just  rule,  and  notions,  upon  the 
English  principle,  but  agreed  with   Lord   Shaftesbury,   the  Quite  in  confor- 
chairman  of  the  Committee,  that  it  "  must"  be  to  the  crown^  principle /"and 
because,  as  the  latter  iustly  said,  **  their  Lordships  had  no  *"y  ememiment 

,  .  .  .  rr.1  1  ofa  petition  by  a 

power  to  add  to,  or  alter  the  petition.     Ihey  were  only  to  claimant  in  such 
report  upon  the  petition,  which  was  referred  (by  the  crown)  to  nJu^j"^^b"^i^*|,*o. 
them."     The  above,  accordingly,  was  complied  with ;  and  ther  to  the 
thereafter,  upon  a  second  petition  being  tendered  to  the  crown,  ®'°'*°' 
containing  the  further  prayer  of  an  express  declaration,  as  pre- 
mised, and  on  its  being  again  referred  to  the  Lords,  and  by  them  No   decision 
to  a  Committee,  a  resolution  past,  the  22d  of  June  1838,  inl'^rciaim  t*oth» 
favour  of  the  claimant ;  but  at  the  same  time,  that  not  having  Earldom    of 
insisted  in  his  claim  to  the  ancient  Earldom  of  Huntly,  (for    ^^  ^* 
which  he  had  also  petitioned),  he  had  not  established  his  right 
thereto.   The  evidence,  under  sanction  of  the  Chancellor*^  opi- 
nion, was  not  gone  over  again. ^ 

Andrew  Rutherford,  afterwards  Earl  of  Teviot,  (a  dignity  Ca§e  of  the  B»- 
now  extinct,  and  in  which  we  have  no  interest,^)  was  created  by  fo"d  ui  laas^d^ 
patent,  the  19th  of  January  1661,  Lord  Rutherford,  with  li- 1837-9. 
mitation  to  him,  and  the  heirs-male  of  his  body ;  but,  in  default 
of  them,  in  favour  of  ^^  quamcunque  aliam  personam,  sen  perso-  Regulating  pa- 
nas quas aibi  (the Patentee)^  quoad  vixerit,  quinctiamy  in arli" *|^"'  °f  ^^xJ^i' 
ado  mortisy  ad  ei  succedendum,  ac  fore  ejus  hseredes  tallise,  with  powei of 
et  provisionis,  in  eadem  dignitate, nominare,  et  designare  placu-  ^^^!?^l^^i^^,^ 
erit,  secundum  nominationem^  et  designationem  manu  ejus  sub^ 
scribendam^  subque  provisionibus,  restrictionibus,  et  condi- 
donibus,  a  dicto  Andrea,  pro  ejus  arbiln'o,  in  dicta  designa* 
tione  exprimendis.*'^     The  patentee,  accordingly,  executed  a 

>  See  Minutes  of  Evidence,  and  Clark  and  Finnelly's  Appeal  Cases, 
▼ol.  V.  pp.  361-2-3. 

•  Being  only  granted  by  patent  2d  of  February  1663,  to  him,  and  to  T^arldom  of  Te- 
the  heirs-male  of  his  body,  (Great  Seal  Register,)  and  hence  becoming  "^^^^  ^^^^^  |n 
extinct  at  his  death,  as  he  left  no  issue.  1663,  extinct. 

•  Great  Seal  Register.    Such  phraseology  may  rather  seem  like  that  p^^^^ 

in  our  legitimations,  peculiarly  ample,  and  high  sounding,  and  to  fall,  nation  in  1661 

in  the  same  way,  to  be  taken  cum  grano  salis.    Giving  the  "  in  arti-  broad,  and  may 

culo  mortis^'  condition,  as  above,  full  scope,  a  weak  Peer,  moribundus.  ^^  **^*"  ^}^^ 

...    ,       ,  ,  .         ii.      .  1  -,.'§onie    reitnc* 

mighty  not  unlikely,  have  thus  nominated  his  sick  nurse,  or  any  of  bis  tion,     though 

menials,  under  whose  exacting  control,  and  care  he  necessarily  might  there  be  node- 


894  INaUlRY  INTO  THE  LAW  AND  PRACTICE 

final  motley  nomination,  in  the  form  of  a  testamentary  disposi- 
tion, dated  at  Portsmouth,  the  23d  of  December  1663,  of  his 
entire  estate  and  succession,  &c.  at  the  moment  of  embark- 
ing on  his  last  military  command,  which  closed  his  career,  in 
NominaUon  ex- 1664  ;  whereby  he  did  ^^  nominate  and  appoint  Sir  Thomas 
ecuted  by  the  Rutherford  of  Hunthill,  my  heir  to  succeed  in  mv  whole  cff- 

patentee  accor-  ^       j 

din^iy,  in  1663.  tate,  and  dignity  of  Lord  Rutherjvrd^  according  to  the  power 
given  me  by  his  Majesty's  Patent  under  the  Great  Seal,' 
whom,  by  these  presents,  I  nominate  my  only  executory  uni- 
versal legatar,  &c. — Providing  always,  and  it  is  hereby  spe* 
cially  my  will,  that  the  said  estate  and  landSf  or  if  in  monies, 
to  be  employed  in  lands,  left  hereby ^  by  me  to  the  send  Sir 
Thomas  Rutherford,  shall  still  remain  to  the  eldest  son  of  the 
said  Sir  Thomas  Rutherford,  and  failing  thereof,  to  the 
nearest  heirs  male  of  the  said  Sir  Thomas,  which  failing^  to 
the  eldest  daughter  of  the  said  Sir  Thomas ;  providing  always, 
that  he  to  whom  she  shall  be  married,  be  obliged  to  take  the 
name  of  Rutherjord^  arms^  and  title,  and  so  continue  from 
time  to  time ;  and  by  this  my  present  will,  and  upon  this  con* 
dition  specially,^  I  nominate  Sir  Thomas  Rutherford,  and 
aforesaid,  my  heirs,  executors,  etc.  that  they,  in  no  manner  of 
way,  shall  contract  (debt,  or  burden  the  estate,  &c.  a  mere,  and 
hence  ineffectual  legal  injunction,)  but  that  they  leave  it  free 
without  any  burden,  or  debt,  from  heir  to  heir,  an  Juiuram 


ciftion  >ettHng  be.    Yet,  at  the  same  time,  I  know  of  no  instance,  where  tiie  power  or 
the  point.  faculty /rom  the  crown,  once  properly  given^  as  in  the  present  instance, 

has  been  either  questioned,  or  judicially  denied,  with  us, — ^but  e  eon- 
Carious  case     tra.    In  the  case  of  the  Barony  of  Coupar,  in  1671,  something  outrage- 
respecting  the  qus  and  akin  to  the  previous  enormity,  though  lesser  in  degradation,  bad 
*'^j"^jg- J       nearly  been  curiously  perpetrated, — but  the  Royal  sanction  had  happi- 
ly not  been  secured,  (see  pp.  85-6-7.)    I  have  said  at  p.  87,  that  if 
the  latter  intervention  had  been  there,  the  Coupar  conveyance  noticed 
might  have  been  *^  adequate."    Of  course,  I  mean  ex  terminU,  without 
reference  to  the  strict  legal  question. 

*  As  above,  in  1661.    As  far  as  yet  shewn,  and  whatever  might  bo 
the  tradition,  Sir  Thomas,  %a%,  was  but  a  stranger  to  the  noble  party, 
who  appears,  though  a  Rutherford,  to  have  been  but  of  obscure  origin. 
'  Rather  indirectly,  as  affecting  him. 
■  Vain  hope  indeed  I 


IN  SCOTTISH  PEERAGES,  &C.  89. ') 

ret  memoriamy  and  for  tnainiaining  of  the  name  of  Ruther- 
ford, so  long  as  nuiy  be."  ^ 

The  noble  settler  appears  to  have  been  a  rough  soldier,  Peculiar  amMe- 
who,  upon  the  strength  of  this  faculty  of  nomination,  not  ir- JJ^^ J^^^^^J.®  ^jj 
relevantly  conferred  upon  him  by  our  practice,  was  unfortu-  soldier,  and  by 
nately  without  much  foreign  aid,  at  least,  in  the  habit,  pernici-  Hfie™^"^  XT 
OU8,  as  may  be  deemed,  in  most  ways,  by  the  legal  profession,  --  ^^^    ^^^ 
of  At8Me(f  executing  various  settlements  or  nominations  accord* 
ingly,  during  the  locomotive  nature  of  his  profession ;  which, 
being  different  and  repeatedly  recalled  and  altered,  induced  the 
not  unappropriate  remark,  considering  such  delegation  of  the 
royal  prerogative  in  his  instance, — that  ^*  he  made  a  Peer  at 
every  port."  But  his  rash  and  wholly  unwarranted  confidence  in 
his  own  qualifications  as  a  conveyancer, — nay,  even  scrivener, 
but  on  a  very  small  scale,  had  especially  this  unfortunate  re- 
sult, that  the  amusement  evoked  settlements,  as  might  natur- 
ally be  expected,  which  defied  law  and  ingenuity  strictly  to  un- 
ravel ;  and  of  such  a  kind  was  the  above  notable  production, 
**  hurriedly  executed,"  as  is  ingenuously  admitted  by  the  coun- 
sel in  the  present  claim,'  on  die  sudden  emergency  of  a  last 
and  fatal  expedition. 

It  is  strictly y  and  according  to  usual  professional  rule  or  Nomination  ac- 
exactitude,  evidently  in  certain  respects  inexplicit,  in  no  small  cording  to  ttrict 

,  .  i»^.        i_^.  t.  professional  rule 

degree;  imperfect,  mcoherent,  or  mcongruous,  and  irrecon-and  exactiiude, 
cilable  ;  in  this  manner  inadequate  to  the  intended  purpose.  I^^^Jj'Jj*^^*  * j**" 
Rendering  ^^  estate  "  there,  on  its  second  occurrence,  as  often,  inadequate. 
in  the  same  way,  pleonastically  obtains,  even  when  thus 
coupled  with  "  lands,"  by  its  ordinary  territorial  acceptar  illustrations  of 
tion,    as    denoting   nothing  more,   there    is    certainly    no  ^{***  ^^^®  •®'* 
conveyance   of  the  honour,  which   ought  besides  to  have 
been,    per    expressum,    specifically    repeated,    failing    the 
institute.  Sir  Thomas  Rutherford  of  Hunthill,  (who,  so  far, 
however,  may  be  properly  nominated  and  appointed),  either  to 
his  **  eldest  son,"  to  the  subsequent  heirs-male,  or  to  the 
smgle  heir-female.     It  is  to  be  observed  also,  that  *^  whole 

*  The  will  was  duly  proved  in  the  Prerogative  Court  of  Canterbury, 
24th  of  July  1664,  as  by  the  evidence  in  the  claim  in  question. 

'  See  printed  case  for  the  claimant,  which  is  candidly  and  judi- 
ciously drawn  up. 


896  INQUIRY  INTO  THE  LAW  AND  PBACTICE 

estate^*"  in  the  first  instance,  may  be  further  held  to  com- 
prise lands,  as  opposed  to  the  attendant  term  '^dignity*'  there  ; 
for  such  previous  grant,  accordingly,  can  only  justify  the  after 
intimation,  in  the  material  clause  affecting  the  remaining  heirs, 
that  "lauds,"  prefixed  too  by  ^^  said^"  were,  (or  had  been) 
"  left  hereby,  by  me  (the  settler )y  to  the  said  Sir  Thomas" 
the  institute — thus  fully  in  the  past  tense,  and  inevitably  involv- 
ing, and  so  explaining  the  former  word  {estate)^  in  the  absence 
of  any  separate  previous  grant  relativi.   And  hence,  if  "  estate" 
shall  be  admitted,  in  this   manner,  to  have  such  meaning, 
on  its  prior  employment,  it  may  be  relevantly  argued  still 
to  retain  it  in  the  latter, — the  direct  result  of  which,  owing 
to  the  dignity,  of  course,  not  being  at  all  carried,  grounded 
withal  upon  the  very  phraseology  and  proved  acceptation  of 
the  settler,  would  evidently  be  ruinous  and  fatal.     As  for  the 
other  term,  "  lands^''  coupled  with  "  estate,"  I  need  not  add, 
there  can  be  no  dispute.    Then  besides, — still,  under  the  view 
in  question, — this  succession  but  of  the  '^  estate  and  lands,"  so 
explained,  is  merely  to  go  on  failure  of  **  the  eldest  son,"  and 
the  "  heirs  male,"  most  consistently,  it  would  seem,  alone  to 
*^  the  eldest  daughter "  of  Sir   Thomas,  and  to  no  other 
female  heir;  for  there  is  no  such  corresponding  adjunct  extend- 
ing the  female  descent,  as  on  the  last  male  occasion,  although 
the  avowed  wish  and  intention  transpires  afterwards,  to  pre- 
serve and  perpetuate  "  the  name  of  Rutherford,"  (to  which 
southern  clan  tne  settler  belonged,)  "  infuturam  rei  memo^ 
riam — so  lang  as  may  be."     But  what  seems  still  more  pre- 
posterous, notwithstanding  this,  and  the  necessary  desire,  of 
course,  that  the  Rutherford  clan  and  blood  should  have  some 
interest,  at  least,  and  concern  in  the  succession,  as  premised, 
and  while  there  is  still  only  a  conveyance  of  the  ^'  estate  and 
lands  "  to  the  solitary  ''  eldest  daughter,"  her  husband,  a  mere 
unknown  undescriable  stranger^  is,  on  the  other  hand,  to  be 
much  more,  and  of  a  truth,  signally  favoured ;  for  there  is  ac- 
tually, most  consistently  again,  and  in  excellent  keeping  with 
the  above,  a  personal,  perpetual  transference  to  him,  exclusive- 
ly, of  all  the  other  heirs,  after  the  institute — of  the  "  title,^*  be- 
sides the  arms,  and  the  cherished  name  of  Rutherford.     Al- 
though too,  such  stranger  "  be  obliged  to  take," — as  in  duty, 


IN  SCOTTISH  PEERAGES,  &C.  897 

and  gratitade^heindeed  ought — thename,  ^*  titie^*'  andarmsi&c.  Further  anoma- 
it  is,  however,  only  in  the  way  of  a  simple  order,  in  a  simple  des-^„nJ^s 
tination,^  which  resolves  into  nothiDg;forthereare  no  irritiiDtadd 
resolutive  clauses  of  forfeiture  adjected,  U)  compel  him  to  do  so, 
and  to  forfeit  his  right  and  interest  explicitly,  in  the  event  of  con* 
travention,  which  are  notoriously  indispensablefor  the  purpose. 
And  then  i^ain,  su]>posing  the  husband  a  higher  peer,  and 
otherwise  fettered  to  the  contrary,  as  may  well  happen  with  us, 
or,  from  some  motive  or  caprice,  actually  not  to  hdve  imple- 
mented the  injunction,  where  then  wbuld  have  been  th^  ho- 
ttour  ?  certainly  nowhere, — ^it  would  be  extinct;  fof  it  strange^ 
ly  happens,  I  repeat,  noi  to  be  granted  (expreasljf^  it  must 
be  allowed,)  to  her,  or  to  any  beyond, — notwithstanding  the 
earnest  desire^'  on  the  part  of  the  nominator,  for  the  Ruther- 
ford immortality^  and  the  continuance  of  the  name  or  family 
until  **  crack  of  doom,"  as  long,  in  effect,  as  ^*  water  runs,  or 
the  grass  grows."    Under  the  test  and  criterion,  therefore,  as  The  conclusion 
premised,  grounded  upon  strict,  or  even  usual  professional  Jhli^tmST^^*  ^^ 
notions  or  rules,*^of  the  noble  settler  in  question,  we  may 
justifiably  say,  that  in  ^s — ^his  peculiar  fabrication,  articulate- 


<  This  practice,  through  the  medium^  of  course,  of  fuller  and  better  Singular  mode 
phraseology,  is  yet,  occasionally,  to  be  met  with  in  conveyances,  after  J*J**  "»»  ^f  un- 
the  middle  of  the  ITtb  oentnry.    Thus,  there  is  a  Royal  charter,  dated  ^^J^^  utle"'ima 
at  Edinburgh,  the  3d  of  September  1686,  not  under  tiie  sign  manual,  **hononr'*incol- 
(Great  Seal  Begistefy)  to  Greorge  Master  of  Ross,  and  the  heirs-male  of  1^^®''^  clauses, 
his  body,  whom  failing,  to  William  Lord  Ross,  his  father,  and  the  heirs-  Z^\t^  ""^^" 
male  of  his  hody,  whom  failing,  &c.  to  such  whom  the  latter  might 
name,  &c.  of  the  Lordship  and  Barony  of  Melvill,  &c.the  landt  only, — 
but  with  a  collateral  injunction,  that  the  heir-female,  and  the  descen- 
dants of  her  body,  use  *^  the  surname,  armes,  title,  honor,*^  &c.  of  **  Ross 
of  Hawkhead."  I  need  not  add,  that  such  insertion,  not  warranted  by 
the  crown — oertainly  in  this  instance,  is  inept  so  far  as  i^gard^  the 
dignity.    From  similar  insertions  in  the  Bargeny  entail,  in  reference 
to  hemFfemaie;  it  has  been  supposed  that  the  patent  of  the  Barony  of 
Bngeny,  not  preserved  upon  record,  might  have  comprized  them. 
Bat  this  ia  fvrthelr  disproved  by  what  other  evidence  we  can  here  re- 
sort to.    In  a  MS.  collection  of  patents  in  the  Advocates*  Library,  the  Question  of  de- 
patent  is  given,  as  on  the  22d  of  October  1639,  to  heirs-male  of  the"**"^^'*'***'* 
body  only,  while  in  an  original  lettefr,  in  a  private  charter-chest,  11th  '°"^' 

of  April  1796,  it  is  stated,  that  ^  My  Lord  Bargenie  (James,  the  kut 
heir-male)  ia  dead,  ^e. — and  th^  title  einke**  nor  was  it  since  assumed. 

3l 


898  INQUIRY  INTO  THE  LAW  iND  PRACTICE 

ly  at  least,  so  confusedi  inconsistent,  and  inexplicable,  be  bas 
been  signally  UDSuccessful,  and  quod  voluitf — wbaterer  tbat 
migbt  bave  been, — non  fecit. 
The  drift  of  a      A  kind  of  glimmering  or  indication,  bowever,  of  a  plausible 
^(^on^a  *"how.  ^^  fe&siblo  general  intention,  seems,  at  tbe  same  time,  to  diffuse 
ever,  •till  be  itself  througb  tbe  general  tououroftbis  rude  and  curious  compo- 
through  the^e-  sition,  tbe  mofc  perbaps  to  be  respected  from  tbe  testamentary 
lurai  nomina-  form  adopted,  backed  by  tbe  broad  delegated  powers  conferred 
the  circamstan-  by  tbccrowu,  autborizing  any  nomination  or  designation,  ad  K'* 
^le^iAe  latter  ^^^^*  ^^^  ^®  purpose,  tfftam  m  articulo  moriisj — thus,  so  far, 
in  some  degree',  too,  untrammelled,  and  beyond  tbe  usual  legal  restraints;  wbile, 
prwSiee/"*  **^  especially,  will  and  intention,  owing  to  tbe  previous  considera- 
tion, and  in  tbb  privileged  case,  falls  accordingly  to  be  con* 
suited.     Hence,  as  tbe  gallant  officer  may  yet  obviously,  from 
wbat  bas  been  sbewn,  bave  well  designed^  tbat  more  tban  one 
female  sbould  eventually  take,  nay  furtber,  beirs-general  at 
large,  we  may  not  only  tbus  admit  tbe  latter  construction, — 
to  a  certain  degree  indeed  autborized  by  tbe  collective  import 
given  to  tbe  identical  pbrase  <*  eldest  daugbter,"  in  tbe  noted 
Roxburgbe  case,^  but  besides,  analogously  apply,  or  extend  it, 
in  principle,  to  tbe  previous  one  of  ^^  tbe  eldest  son*'  of  Sir 
Tbomas,  as  equivalent  to  male  offspring,  or  rather  '^beir  male 
of  tbe  body,"  wbicb  also,  tbougb  only  in  tbe  singular,  bas 
be^i  employed  in  practice  as  equiponderant  to  ^*  Aet>»-male 
of  tbe  body,"  in  the  plural.^    In  this  instance  the  term  in 
question  would  fall  necessarily  to  be  more  narrowly  interpret- 
ed tban  in  tbe  former,  owing  to  being  controlled  by  tbe  substi- 
tution tbat  follows  to  tbe  <^  nearest  heirs  male."  And  hence,  af- 


'  To  the  eldest  daughter  of  Hary  Lord  Ker,  and  to  their  helrs-male, 
(as  by  the  noted  destination  in  1648 J  which  was  found  to  include  the 
four  daughters  Beriatim^  and  the  heirs-male  respectively,  of  their  bodies. 
Corroboration       *  Thus  the  patent  of  the  Viscounty  of  Primrose,  &c  dated  SOth  of 
ttw^  the  Prim-  jfovemher  1703,  (Great  Seal  Register)  is  to  Sir  James  Primioee,  and 
1703.**  ""  *   °  *^i®  "  heir-mafe  of  his  body/'  whom  failing,  to  the  "  heir-male"  of  Sir 
William  Primrose,  his  father.    It  can  never  £Edrly  be  supposed  that  the 
honour  was  merely  to  go  but  to  one  male-heir,  thus  literally  of  the  res- 
pective parties  ;  but  further,  in  an  exemplification  of  the  warrant  un- 
der the  sign  manual,  *^  heir-male"  is  rendered  *'  heirs-male,"  in  the 
pluraly  which  reconciles,  and  makes  things  all  plain,  as  I  state. 


IN  SCOTTISH  PEERAGES,  &G.  899 

ter  the  above  fashion, — upon  the  criterion  of  probable  intention 
and  design — while  giving,  on  the  other  hand,  <*  estate"  coup- 
led with  <^  lands,"  on  its  second  occurrence  in  the  nomination, 
a  meaning  that  it  sometimes  does  possess  of  general  family 
rank  or  representation,  comprising  honours^ — ^in  reference  to 
which  kist  likewise,  being  flexible,  it  is  also  sometimes  par- 
tially used, — the  whole  might  accordingly  amount  to  a  destina- 
tion of  the  honours,  with  the  other  subjects,  iii  favour  of  Sir 
Thomas  Rutherford,  and  the  heirs-male  of  his  body,  whom 
failing,  to  his  heirs-male  whatsoever,  whom  failing,  to  his  heirs 
whatsoever,  the  eldest  heir-female  succeeding  without  divi- 
sion, her  husband  taking  the  title  and  arms.   At  the  same  time,  stm  there  may 
the  qualified  acceptation  of  "  estate,"  by  the  context,  as  was  for-  oi^ecUoo'here, 
merly  shewn,  and  that  may,  per  se^  prove  a  cardinal  or  mate-  ^^  ^^^  v»^- 
rial  objection,  is  not  to  be  overlooked,  as  it  may  tril  still  even  term  <•  estate" 
in  the  present  alternative.     Some  may  be  inclined  to  think,  «™pioyed,  tho* 

•  ■  ^  .  .  #   1     .       <.         1        1        ■  1  \  •ometimes  re- 

that  the  subsequent  insertion  of  heirs- female  should  control  fernng  to  an 
and  narrow  the  immediately  preceding  male  succession,  so  as  ''^"^"'^* 
to  confine  it  to  heirs-male  of  the  body,  for  otherwise,  on  the 
former'  very  broad  male  interpretation,  the  heirs-female 
might  probably  never  take, — in  support  of  which  argu- 
ments may  not  be  wanting ; — but  still,  especially  owing  to 
the  striking  desire  of  the  settler  to  perpetuate,  for  ever,  the 
name  or  family  of  Rutherford^  and  other  such  clannish  con- 
siderations, transpiring  from  the  nomination,  I  should  be  dis- 
posed to  adhere  to  the  identical  extended  signification  as  be- 
fore. Nor  is  it  to  be  omitted,  that  we  have  strictly  such  con- 
current substitutions  in  practice  in  the  17  th  century  to  heirs- 
male  whatsoever,  whom  failing,  to  heirs  whatsoever.^ 

'  I  may  here  select  the  instance  of  the  patent  of  the  Earldom  of  Bread-  what  may  bo 
alhane,  the  13th  of  August  1681,  as  in  fact  the  same  with  the  Ruther-  held  the  pre- 
ford  nomination,  rendered  above,  the  substitutions  embracing  ^^hseredes  [taction  oHh 
maseulosy  &c.  ex  corpore  dicti  Joannis  Campbell  (the  patentee)  quibua  nomination,  is 
defidentibos  propinquiores  et legitimosheredes  ejus  masculos,  (of  course  lupported    by 
toOaUrai^  from  the  context),  quibus  deficientibus,  propinquiores  ©*  2ttM!r*S?*h* 
legitimes  heredes  ejus  quoscunque."    (Great  Seal   Register.)    The  Marchmont  scr- 
settlement  of  the  Marchmont  estate,  last  of  January  1704,  is  also  in  (lament,  in  1 681 
point,  having  substitutions  to  Patrick  Earl  of  Marchmont's  "  heirs- *°^  *^®^- 
male  whatsoever^**  (/ailing  heirs-male  of  the  body,)  whom  &ilingy  ^*to  his 
newest  lawful  heirs-yemafe,"  the  eldest  succeeding  without  division  ; 


900         INQUIRY  INTO  THE  LAW  AND  PEACTICE 

The  preient,  at     Bq^  indeed,  after  all,  it  may  be  a  stretch  in  law  to  arrive  at, 

best,  M  a  nar-  '  -^  .  .  ,  ,.  i 

row  caiie,  and  or  eke  out  these  latter  constructions — notwithstanding  the 

fribunai.*e!r?«!- ^'^^^^  power  of  noiDiDation  conferred,  (inducing  favourable 

minia  of  the  relative  conclusions) — which  yet  must  have  some  limits^^ 

suiulnth^ claim  ^^^  be  taken,  as  1  hinted  before,  cum  grano  mlis — so  that  it 

o^  ,^^*^  ^^^'    i^^y  be  atill  doubted,  whether  a  judicatory,  at  present,  in  the 

both  upon  uur  oiatter  of  bonours^  would  willingly  sustain,  or  incline  to  the 

°w°'ili  "e    **™®'  (failing  the  institute.)     And  this,  although  the  Ruth»- 

Bortbwiekeaie  ford  dignity,  ev$n  after  the  death  of  that  disponee,  without  is- 

sue,  ha4  been  twice  taken  by  his  two  brothers  seriatim — of 

course,  the  collateral  beirs-roale,  and  held  by  and  recognised  in 

them,  with  repeated  sjittings  of  both  in  the  Scottish  Parliament, 

in  the  corresponding  capacity.^    For,  coupling  what  is  pr«iu»* 

ed  with  the  remarkable  finding  and  resolution  of  the  Lords 

in  the  recent  Berth  wick  case  in  18 13,^  independently  of  our 

genuine  notions,  that  are  stiU  nupre  friendly  to  such  exception, 

it  might  not  altogether  be  incompetent,  even  by  British  law, 

to  dispute  the  right  of  another j  Aough  claiming  in  the  precise 

character  of  the  two  aforesaid  heirs-male,  ^eiii^,  owing  to  their 

extinction^  he  cannot  possibly  be  descended  of  thbm.     In 

whom  failing,  ^*  to  his  nearest  lawfal  heirs,  and  assignees  whaUoecerJ' 
(See  Acts  of  Pari,  last  Edit.  vol.  XI.  p.  200. 

'  The  authority  of  the  crown,  in  this,  and  certain  other  particulars, 
cannot  be  held,  with  us,  to  be  exactly  ascertained.  Sir  John  Nisbet 
strikingly  says,  that  **  the  Prerogative  is  inHar  littoris,  which  is  defined 
quofluctua  Hybemus  exastuat;  so  that,  as  the  sea  does  not  go  beyond 
the  shear,  when  the  sea  is  most  full ;  so  the  Prerogative  and  Plentitudo 
PotestatU  does  never  go  beyond  lawy  which  is  a  great  littus^  and  Boun- 
dmry  of  just  power."     Doubts^  pp.  137-8. 

'  It  was  proved  in  tha  late  Rutherford  dum,  that  Sir,  or  Lord  Thomas,, 
the  institute,  made  a  settlement,  8th  of  April  1668,  of  his  title  and  es- 
tates in  favour  of  these  two  brothers,  seriatim^  (Archibald  and  Robert,) 
and  the  heirs-male  and  female  of  their  bodies,  &c.  with  a  remainder  to 
his  heirs-mnir  and  assignees,  &c. ;  which,  though  inefiectual,  as  respect- 
ed the  title,— ^My«r  as  yet  known, — nuiy  have  either  positively,  or  by 
misapprehension,  smtained  the  right  of  the  latter.  The  service  of 
Captain  John  Rutherford  in  1787,  as  heir-male  and  of  provision  of 
Lord  Robert,  (see  afterwards,)  evidently  also  had  a  reference  to  lands; 
while  the  character  of  heir-ma!e>genera],  that  he  claimed,  quadrated 
both  with  the  Rutherford  settlement  in  1668,  as  is  set  forth,  and  with 
that  in  1663.    This  makes  the  service  stronger. 

*  See  p.  686,  and  what  precedes,  <6M. 


IN  SCOTTISH  PEERAGES,  &C.  901 

these  circumstances,  by  means  of  such  specialty^  in  the  Borth- 
wick  instance,  a  dignity  constructively  limited  to  lineal  heirs- 
male,  was  resolved,  in  like  manner,  to  be  challengeable  in  a 
party  standing  precisely  in  the  shoes  of  him  to  whom  the 
honour  had  been  solemnly  adjudged  by  the  Lords  in  1762,' 
but  not  of  /ir>  body.  Yet  I  must  likewise  confess,  there  still 
would  be  a  marked  colour  of  difference  between  the  Borthwick  But  there  i« 
and  Rutherford  cases,  inasmuch  as  there  was  the  (^ompulsatorl^^l^^l^^  ^^^ 
of  an  unfavourable  res  noviter  venlens  ad  notittatm,  by  the  com-  V^®®°    ^^^ 

1.  'i.!  y    »       %      1^  1  1     Borthwick  and 

mon  attaching  exception  of  bastardy  m  the  former — only  on  the  Rutherford  ca- 
occasion  of  the  recent  claim, — while  nothing  of  the  kind,  un-  JaJj>u«bie*  ^ 
less  by  way  of  new  argument  or  illustration,  (if  that  tell)  the  latter. 
upon  the  same  original  facts,  can  be  urged  against  the  bitter, 
which  thus  stands  upon  a  more  advantageous  footing ; — how- 
ever, the  striking  Borthwick  resolution  may  evince  that  even 
a  British  Peerage  decision,  upon  a  royal  reference,  in  a  Scot- 
tish claim,  may  not  (in  effect)  be  indefeasible,  or  beyond  the 
chance}  or  possibility  of  challenge.  And  if  so,  then  public  rec<)g- 
nitiona  and  sittings^  ohefifly,  in  the  Scottish  Parliament,  witl^ 
out  the  benefit  of  the  reajuditdta^  (as  in  the  Rutherford  in- 
stance,) may  still  less  relevantly  operate  as  ati  exclusive  invin* 
cible  ingredient  in  a  Peerage  case^-^especialiy  by  our  peculiar 
notions* 

Whatever  there  may  be  i^  these  rethiitks,  the  objectionable  At  any  rate,  it 
and  anomalous  Rutherford  settlement,  the  ^^  prentice- work,"  foundTpon  tiie 
as  may  be  held,  but  of  a  rough  soldier,-  frorti  some  hasty  or  Rutherford  no- 

ii»i*i«*i  •  «.»../        t  %     mination,  as  a 

rude  draft  of  the  kind,  at  most  imperfectly  imitated,  cannot  be  fit  and  technical 
entitled  to  much  extra  favour  iti  laiv  *  and,  far  l^tej  as  never-  ™^" '°  Peerage 

'  '  '  coDTeyancmg. 

theless  has  strangely  happetjed,  be  quoted,  or  referred  io^  as  a 
proper  rule  or  illustration  in  the  matter  of  Parage  conveyan- 
cings especially  in  limitations.  It  can  never  there  be  a  fit  sub- 
ject of  technical  or  fair  precedent ;  nay,  to  appeal  to  it  in  a 
case  for  support,  with  this  view,  would  betray  a  confession  of  the 
weakness,  indeed  desperate  character  of  the  latter.  It  is 
quite  enough  if  the  Rutherford  nomination,  quoad  honours, 
shall  succeed  in  sustaining  itself  without  sinking,  instead  of 
attempting,  however  charitably,  to  lender  its  #eak  and  feeble 

'  See  pp.  579,  et  seq,  and  pp.  684,  tt  99g, 


90S  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

aid  to  some  other  distressed  kindred  daim,  in  an  analogousi 
though  not  certainly  identical  dilemma. 
Sir  Thomas,  the     Sir  Thomas  Rutberford  of  Hunthill,  the  institute,  who,  at 
Stlue^ucceed-  ^^^U  ^^s  thereby  exactly  or  indisputably  nominated,  succeed* 
edaccordingiytoed  accordingly  to  Andrew  Earl  of  Teviot,  first  Lord  Rutber- 
I665.t-Aul!^hiiford9  in  the  latter  dignity.     He  made  up  titles  to  his  general 
iT^'h'^d'^'d  ^nccession,  by  service,  the  16th  of  March  1665,^  and,  as  already 
JZoicrfMnarim,  in  part  obvious,  dying  without  issue,  had  for  his  heirs  in  the 
•*^'  *""•        same,  seriatim^  his  two  younger  brothers  Archibald,  and  Ro- 
bert, the  third  and  fourth  Lords  Rutherford, — under  which  title, 
as  further  intimated,  they  were  publicly  recognised,  and  who 
claimed  in  virtue  of  the  words  in  the  nomination  in  1663,  to 
his  (Sir  Thomas* a)  << nearest  heirs  male."    But  after  the  death 
of  Lord  Robert  himself,  without  issue,  (in  like  manner,  as 
Archibald,  bis  elder  brother,  previously),  in  the  reign  of  George 
adm  and  ler-  \^^  xh^  dignity  of  Lord  Rutherford  was  first  assumed  by  George 
Dorie,  as  heir-  Durie  of  Grange,  who  voted  as  Lord  Rutherford  without 
drewlhe^flm  challenge,  at  tiie  Peerage  Election  in  September  1733,«  and 
Lord,  in  1733,  who  besidos,  ou  the  1st  of  November  1733,  under  the  de- 
ofLo^itobert,  scriptiou  of  "  Gcorge  Lord  Rutherford,''  was  served  "  heir  of 
"a"**"'*"***'  line,  entail,  and  of  provision,'*  of  Andrew  Earl  of  Teviot, 
*^  abavunculi^**^  through  his  descent  from  a  sister  of  that  noble- 
man.   Durie  thus,  though  ostensibly  excluded  by  the  nomina- 
tion in  1663,  claimed,  as  Yxm-female  of  the  Earl,  the  first 
Lord  Rutherford;  while  neither  he,  or  his  family,  ever  succeed- 
ed in  establishing  a  prior  legal  and  better  ground,  (as  far  as 
Of  Captain  John  b  discoverable,)  under  which  they  could  take.     But,  at  the 
iT^^r^ii^'  hb  Election  in  June  1734,  the  vote  of  the  former,  then  given,  was 
ierrice  to  the  protested  sgaiust  by  Captain  John  Rutherford,  who  peremp- 
hii  ••  heir-Mietorily  denied  his  right,^ — and  who,  in  the  relevant,  and  pre- 

'  Upon  record. 

'  See  Robertson's  Peerage  Prooeedings,  pp.  133-5,  et  seq. 

'  Upon  record.  It  may  be  presumed  to  be  in  virtae  of  other  set- 
tlements, besides  that  in  1663^  though  he  did  aUo  claim  upon  it.  Bat 
the  party  based  his  right  by  reason  of  the  ascertained  proptn^»(y  through 
this  service, — of  wAicft  there  could  be  no  doubt, — ^in  respect  to  the 
honoun.    See  Robertson,  ut  9up.  pp.  191-5,  268,  &e. 

*  Robertson,  ut  mp.  pp.  154 — ^160.  Lord  Marchmontthen  also  pro- 
tested against  any  person  voting  as  Lord  Rutherford.    Thid,  p.  154. 


IK  SCOTTiaU  PEERAGES^  &C.  903 

ferable  character,  was  subsequently,  on  the  Ist  of  September  and  of  pran- 
17379  served  **  nearest  heir  male^  and  oi provision  "  in  general,  "^"' 
to  Robert  last  Lord  Rutherford,  there  styled  ^*  nepoti  fratris 
proavi/''    He  had  thus  as  good  a  claim  as  Lord  Robert,  admit- 
ting his  descent;  and  therefore  also  became  Lord  Rutherford. 
It  wouM  be  tedious  to  detail  the  incessant  contest  and  wrangling 
between  lum  and  Durie,  who  founded  chiefly  upon  what  he 
called  his  <^ possession^*  i.  e.  his  earlier  assumptions^  as  well 
as  by  their  heirs,  for  the  Peerage,  most  keenly  and  obstinate-  ^o«"  centen- 
ly  maintained  in  public,'  more  especially  at  Elections,^  where  the  utie,  which 
i^ej  jointly  votedf  and  claimed  to  vote,  under  the  dignity,*  ^^*Tj  m™— 
down  to  the  15th  of  March  1762;  when  Alexander  Ruther- when  they  wcr« 
ford  and  David  Dury,  the  respective  heirs  of  the  former,  were^^  Lords.  ^^ 
prohibited,  by  an  express  order  of  the  Lords,  from  doing  so 
in  future,  or  styling  themselves  Lord  Rutherford,  until  they 
had  pointedly  established  their  cbum.^     With  this  command, 
and  iDJuiiction,  Durie  never  complied ;  and,  although  the  other 
"  Alexander  Lord  Rutherford"  had  claimed  the  Peerage,  by  Alexander,  ton 

*  .       -»        •!  ..  I  .,*.-,*  of  Captain  Ru- 

a  reference  to  the  Lords,  upon  petition  to  the  crown,  m  1761,7  therford,  had 
he  adopted  no  further  steps.    It  has  been  speculated  to  b*ve  ^" J^^^**[® 
been  owing  to  some  link  in  his  pedigree,  that  required  cor-i76i,  but  did 
roboration ;  however,  his  service,  as  heir-male,  has  always  ^  "'"^  ^^^^^' 
stood,  without  being  in  the  least  shaken  f  while  his  limited, 

*  Upon  record.  This,  as  already  remarked,  was  likewise  in  reference 
directly  to  the  &mily  landed  settlements,  which  makes  the  evidence  the 
more  weighty. 

'  See  Robertson,  ut  Mip.pp.  191, 194,195,  232,  258, 260,  272,  &c.  &c. 

'  The  press  was  also  called  into  play ;  for,  in  1748,  *<  Geoige  (Dnrie) 
Lord  Rutherford,"  printed  an  indigant  Memorial  in  support  of  his 
right,  and  in  opposition  to  his  rival. 

'  Robertson,  ut  mp.  and  pp.  187-8-9, 190-4,  et  9eq.  233-4-9,  243,  &c 
&C.  Indeed  this  competition,  including  the  legal  forms,  and  deeds  ad- 
duced, &0.  and  a  singular  speech  of  **  George  Lord  Rutherford"  in 
1747,  fills  no  secondary  portion  of  the  record. 

*  See  Robertson,  ut  eup, 

*  Lords'  Journals.  '  Ibid, 

■  What  would  appear,  too,  to  give  the  service  greater  force,  was  the 
attempt  of  George  Durie  to  oppose  it,  and  an  action  of  reduction  of  the 
same  before  the  Session,  in  1738,  by  Henry  Ker,  the  grand-nephew  and 
heir-general  of  Robert  last  Lord  Rutherford,  (see  afterwards,)  both  of 
which  were  unavailing.    See  Robertson,  ut  »up»  pp.  191,  233-4. 


904  INQUIRY  INTO  TU8  LAW  AND  FRACTICfi 

ctaimt  of  Alex,  depressed  means  and  condition,  or  adverse  poltiic8>  might  have 

ander  and  John       '        ,  •   i  .#i  i«t   -  ,  r»        i        i  . 

Rutherfords,  as  proved  a  Weighty,  It  not  a  sufficient  bar*     But  be  this  as  il 
mSe'^S'  the""  ^^^^  ^^^^  failure  of  bis  male  line,  in  the  person  of  Alexander 
Rutherfords  of  his  SOU,  the  Barony  of  Rutherford,  at  a  remote  period,  was 
i83°3  and  1^7,  ^^  claimed,  in  the  same  way  as  in  1761,  before  the  Lords, 
iMth  rejected  by  (upou  a  reference,)  the  5th  of  June  1833,  by  John  Rutherford, 
Esq.  still  in  the  character  of  heir»male  collateral  of  Hunthill, 
in  virtue  of  such  alleged  descent  before  16(K),  though  unsuc- 
cessfully, as  was  resolved  the  lltfa  of  April  1835.^     And  al- 
though such  identical  procedure,  with  discussion  as  before, 
was  repeated,  quite  competently,^  by  John  Rutherford  his  son, 
through  another  royal  reference,  the  Ist  of  February  1837,' 
it  shared  the  same  fate,  as  by  a  second  resolution  oi  the 
Lords,  on  the  26th  of  July  1839.^ 
Both  parties        In  tbis  situation  things  still  stand,   in  the  continual  ab* 
thVmeraVreu"  ^euco,  throughout,  of  aoy  independent  claim,  by  any  suppos- 
minary  objec-  ed  direci  heir-msle  ot  the  Lords  Rutherford.    The  proce« 
e'xt^nction  of    4ure  in  this  recent  Rutherford  claim,  (especiaMy  on  the  last 
Robert,  the  last  QQQ^^IQQ^  ju  1839,)  appears  to  have  been  peculiar,  and  truly 
%brttpt  and  summary.  The  claimant  was  cast,  (indeed  all  along) 
merely  by  the  preliminary  objection^  without  going  into  the 
merits,  that  he  had  not  extinguished  Robert,  the  fourth,  and 
last  Lord   Rutherford,    who  has  been  noticed.      It  was 
started  by  the  crown  at  the  outset,  and  indispensably,  and 
conclusively  pressed  by  Lord  Brougham,  notwithstanding  the 
former  had  further  adduced  in   1837,  independently  of  the 
service  of  Captain  John  Rutherford  in  1737,  as  nearest  and 
lawfid  heir-mo/e  of  this  very  Lord  Robert,  on  the  previous 
reference, — ^which  here  spedis  sufficiently  plain, — another  ser- 

*  Lords' Joamals. 

'  As  formerly  shewn,  a  resolution  of  the  Lords,  upon  such  reference, 
is  not  a  judgment,  until  fully  confirmed  by  the  crown  ;  previous  to 
which  it  is  viewed  but  in  the  light  of  an  opinion  given  to  the  latter, 
whereby  it  is  not  necessarily  bound,  but  may  order  a  reconsi- 
deration of  the  claim,  either  by  the  Lords  themselves,  or  by  any  in- 
dividuals.   Upon  the  English  principle,  the  crown  here  is  paramount. 

'  Lords'  Journals. 

*  IbifL  The  words  of  the  resolution  are  in  the  usual,  and,  as  I  hum- 
bly conceive,  too  general  form  on  these  occasions,  that  the  party 
**  hatli  not  made  out  his  claim." 


IN  SOOTTISH  PEERAQES,  &C.  906 

vice  J  on  the  12tb  of  December  in  the  said  identical  year,  of  Though  in  um 
Henry  Ker  of  Graden,as  lawfid  and  ne€art9t  <<heir  of  line,"  still  anotliergene^ 
of  the  nobleman  in  question,  his  grand-uncle,^  in  virtue  of  AMS^rTice  io  i837) 
(Ktr's)  direct  descent  from  bis  grandmother,  Lilias  Ruther-  Henry  Ker/  ma 
ford,  the  actual  9i&ter  of  that  Lord.     This  operated,  besides  ^®*[,  ^'.  ^^^ 

r  »  Lord,  bugruid* 

the  corroboration,  more  fully  and  forcibly  in  regard  to  the  ex-  unde. 
tinction,  as  it  at  once  dispatched  any  possible  issue  of  his 
Lordship,  female  as  well  as  male.  But,  what  even  attached 
greater  weight  and  effect  to  this  additional  service,  that  had 
also  connection  with  heritable  property, — was  the  striking  fact, 
independent  of  the  general  concurring  verdict,  of  the  mate- 
rial propinquity  being  positively  sworn  to  and  attested  by  two 
individuals,  who  must  have  had  the  best  sources  of  know- 
ledge from  being  near  relatives,  as  there  is  every  reason  to 
believe,  of  Lord  Robert,  and  his  family,'  which  is  proved  by 
the  existing  record  of  the  res  gestm.  Lord  Brougham,  how- 
ever, who  may  be  said  to  have  ruled,  or  to  have  given  the 
tone  to  the  resolution,  woukl  not  admit,  or  even  listen  to  any 
portion  of  the  preceding  proof  of  the  extinction,  because,  Firsts 
he  maintained  that  unless  a  service  was  special,  or  carried  The  two  rati'^ 
lands,  it  was  of  no  value  whatever^  as  evidence  of  the  facts,  m^^^  o^Lora 
grcnnio^  or  supposed  to  be  established  thereby.  Nay,  it  was  Brougham. 
with  difficulty  be  would  altogether  here  admit  a  special  one, 
a  matter  he  put  in  retentiS'^^hnt  he  absolutely  scouted  and  re* 
jected  a  general  service,  such  as  of  the  above  kind,  or  the 
two  in  1737,  with  which  we  have  been  dealing.  And,  second- 
ly^  because  the  corroboratory  proof  offered,  of  the  relationship 
of  the  two  jurors  in  the  Ker  service,  in  order  to  enhance  their 
testimony  in  the  peculiar  circumstances,  was  incompetent.^ 

*  "  ProavuneuU  "  upon  record. 

'  They  are  Alexander  Burnet,  and  William  Elliot,— while  it  was 
offered  to  be  directly  established  by  the  claimant,  (besides  other  cor- 
roborative proof),  that  two  individuals,  identically  so  named,  were 
married,  resrpectiyely,  to  two  sisters  of  Robert  last  Lord  Rutherford. 

*  A  special  service  certainly,  most  for  the  most  part  weigh  more^  in 
its  effect,  than  a  general  one,  carrying  as  it  does  a  substantial  succes- 
sion, and  of  real  value,  and  hence  the  more  likely  to  invite  challenge, 
and  competition,  if  undue  or  unfounded. 

*  I  have  derived  my  information,  in  these  particulars,  from,  as  I  have 
every  reason  to  think,  direct,  and  unexceptionable  authority. 


906  INQUIBY  INTO  TU£  LAW  AND  PRACTICE 

The  drat  raHo,  I*  ^ith  respect  to  the  former  of  these  allegations,  as  to  the 
wholly  rejecting  ^^^  rejection  of  ffoneral  services  as  evidence  of  their  facts 

cfeDeml  semces 

as  eridence  in  in  Peerages,  although  by  so  eminent  a  person,  I  am  con- 
Tnprecwienud  Strained,  both  as  a  Scottish  lawyer,  and  going  upon  true  rele- 
and  maintained  vaut  rules  and  precedent,  to  dispute  so  novel,  and  indeed  bold  a 
'^      ^^  ^  '    doctrine.     Nay,  further,  to  maintain  its  invalidity,— which,  I 

submit,  has  already  been  fully  established  in  this  performance. 

In  direct  opposition  to  the  above,  as  we  have  seen,  not  only 
Proof  e  eonira  before  the  Uuiou,  but  thereafter^  and  down  to  modern  dmes, 
of  their  Btriking  by  |;he  Scottish  Peerage  practice,  general  services  have  had 

▼aUdity  and  a-    "^  „  ,         --o      r  ,  ®     ,  ,     .     i  .      i  ,^ 

dopUon  since  every  effect,  and  were  the  usual  and  technical  method  by 
«ie  Union,  uid  ^hjeh  Scottish  Peerage  claimants  established  their  pedigree, 
present.  and  disposed  of,  and  dispatched  extinctions  before  the  Lords. 

I  may  here,  in  pointed  confirmation,  allude  to  the  obvious  in- 
stances of  Somerville,  Colvil,  Cassilis,  Borthwick,  and  Caith- 
ness, (the  last  in  particular),  independently  of  various  others.' 
Indeed,  it  is  impossible  for  me  to  turn  up  any  printed  Peer- 
age  case,  or  Minutes  of  Evidence,  without  likewise  constantly 
finding  general  services,  of  all  dates,  still  adduced  and  admit- 
ted, with  the  same  view.^     But  what,  besides,  surprises,  nay, 

>  See  pp.  360-1-2,355,385,578, 583,611-12-13-14, 617, 620-1-2, 627, 639, 
n.  3.  640-1,  644,  n.  2,  &c.  &c.  These  references  speak  sufficiently  plain 
in  the  matter,  besides  our  purely  concuirent  Scottish  notions  and 
impressions, — ^which,  by  Lord  Brougham's  just  and  striking  adoption 
of  them  in  other  respects,  in  the  Polwarth  instance  in  1835,  might  have 
been  expected  to  have  had  here  more  weight  with  him.  See  pp.  856-7, 
and  what  transpires  on  this  head,  in  the  sequel. 
Other  cogent  '  To  take  what  happens  to  be  next  me  of  the  kind, — ^the  Minutes  of 
proof  to  the  Evidence  in  the  successful  Polwarth,  and  Queensberry  claims  in  1818, 
same  e  ec  .  ^^^  ^^^2 . — {j^  the  first,  there  are  General  Services  tendered,  and  at 
once  received,  in  1740,  and  1781,  (nee  Polwarth  Min,  pp.  9 — ^23);  while 
in  the  Queensberry  case,  they  abound  with  as  little  challenge,  for  the 
years  1685^  1734, 1738, 1749, 1779, 1797.  (See  Queensberry  Min.  pp.  32, 
48-9, 43, 44, 45-6, 43.)  But  what  will  be  here  said,  moreover,  of  a  general 
service  of  Charles  the  claimant,  20th  of  April  1811,  as  heir-male  of 
William  first  Earl  of  Queensberry,  so  created  in  1633,  **proatfi  iui 
proavif**  and  of  another,  of  the  said  date,  as  heir-male  of  William  first 
Marquis  of  Queensberry,  grandson  of  the  latter,  so  created  in  1682  ? 
(See  Min.  ut  sup,  pp.  17, 18.)  Both  of  these,  though  modem,  and  going 
80  far  back,  much  more  even,  than  the  Rutherford  8eryioes,which  are  in 
1737,  are  exclusively  but  as  heir-malo,  and  general,  in  the  utmost  sense ; 
and  yet  were  admitted  by  the  Lords  without  the  slightest  dubiety,  or 


IN  SCOTTISH  PEERAGES,  &C.  907 

Btartles  me,  and  renders  the  present  matter,  as  it  was  handled  OeQendser?icet 
in  1839,  and  shortly  before,  stUl  more  strange,  and  inexplica- ;;^°„^*^^^j^^^^^^^ 
ble,  I  find,  by  very  recent  procedure,  even  Lord  Brougham  ed  to,  by  Lord 
here,  the  antagonist  of  himself,'  and  an  evident  opponent  ofthe^^Kei^'case 
his  owrn  doctrine; — inasmuch  that,  in  the  Kelly  Peerage  claim,  *"  ^®^»  *°<* 
that  has  been  noticed,  from  1830,  downwards,  when  be  was 
Chancellor,  and  under  his  special  authority,  and  auspices, — 
general  services,  not  only  in  1648,  (repeatedly),  have  been  put 
in  and  freely  admitted  without  question,  but  also  of  a  much 
later  date,  than  those  of  Rutherford  in  1737,  namely  in  1705, 
1766,  1777,  nay  even  in  1830,  all  singly,  and  respectively,  to 
prove  most  important  portions  of  pedigree  and  extinctions.' 

sample,  to  prove  the  material  descent.  Were  it  not  for  fatiguing  the 
reader,  I  could  indeed  establish  my  position  ex  abundanii.  Out  of 
various  instances,  however,  I  shall  conclude  with  one  from  the  Bel- 
haven  claim  in  1799.  Sir  Archibald  Hamilton  of  Bosehall,  who  figur- 
ed long  before  1700,  and  after,  had  two  sons.  Sir  James,  and  Sir  Hugh, 
who  Buoceeded  him  seriatim  ;  and  as  this  stock,  at  one  time  compris- 
ing o<ft«r  members,  were  nearer  heirs-male  of  the  Belhaven  patentee  in 
1675,  (see  pp.  8d5-7,  et  seq.)  than  William  Hamilton  of  Wishaw,  the 
ehimanty  it  behoved  him  to  extinguish  them.  And  how  was  this  effected 
in  the  Committee  of  Privileges  ?  By  the  adduction  of  a  General  Ser- 
vice, 5th  of  April  1758,  of  John  Lord  Belhaven,  grandson  of  the  paten- 
tee, and  eldest  brother  of  James  the  last  Lord,  dead  in  1777,  as  "  heir 
male"  simpiy^  of  the  preceding  Sir  James  Hamilton  of  Rosehall,  ^*  sui 
proavifratris  filii,"  (From  the  evidence  in  support  of  the  Belhaven 
claim.)  This  service  is  obviously  not  so  strong  as  the  rejected  one  of 
Captain  John  Rutherford  in  1737, — far  less  when  coupled  with  Ker  of 
Graden'Si  as  proof  of  extinction.  And  can  it  be  said  after  this,  (as  by 
Lord  Brougham,)  that  Greneral  Services  are  inept,  and  wholly  to  be 
disregarded  in  Peerage  law  and  practice  ?  If  so,  the  important  Rose- 
hall  branch  are  still  thus  properly  unextinguished,  and  the  present 
Lord  Belhaven  may  trti/y,  in  conformity,  have  no  right  to  his  dignity. 
The  above  General  Service,  in  1758,  is  duly  on  record. 

'  This  perhaps  is  not  altogether  so  much  out  of  keeping,  as  it  may  be 
said  of  his  Lordship,  with  his  high  and  varied  talents,  that  **  none  but 
ftt9ia«e(^can  be  his  paraUel^**  or  better  able  to  support  or  meet  his  own 
arguments. 

'  SeeMinutesof  Evidence  in  the  Kelliecase,/or£^yeor  1832,  (when, 
as  well  as  in  1833  and  1834^  Lord  Brougham  was  Chancellor), 
pp.  24-5, 43-4,  59.  These  general  services  are,  in  efiect,  the  same  either 
with  Captain  John  Rutherford's,  or  Henry  Ker  of  Graden's,  in 
1737»i.both  which  referred  also  to  lands. 


908  INQUIttY  INTO  THE  LAW  AND  PRACTICE 

In  the  circum-  If  then,  but  0116  general  senrice,  as  here  happened,  at 'such  re- 
proof was  a /or-  center  and  modern  epochs,  has  been  thus  held  in  the  several 
i^''1h^"reccit'  ^**®'*  ^  suffice,  in  establishing,  I  repeat,  material  links  and 
Rutherford  in-  extinctions,^  how  much  more  so,  ought  not  merely  one,  but 
'^°^'  iwo^  perfectly  concurrent,  as  those  in  the  Rutherford  instance, 

both,  as  yet,  unimpugned,  and  presumptively  good  and  va- 
lid, while  even,  so  far,  more  convincing  and  insuperable,  to 
be  entitled  to  a  corresponding  credit  and  force  in  the  single 
point  of  extinction  at  issue,  of  the  simplest  and  plainest  kind, 
and  notoriety.     There  seems,  indeed,  with  regret  be  it  spoken^ 
a  manifest  contradiction  under  this  legal  department,   the 
reason  for  which  may  not  be  very  intelligible.     Nay,  the 
Perplexity  and  perplexity  may  be  said  to  continue  to  the  present  moment ; 
contradicUon     f^^^  contrary  to  Lord  Brougham's  doctritie  at  one  time,  a  gene- 
from  that  aisoral  service,  so  late  as  the  27th  of  July  1836,  without  any 
in  1838.  repugnance  on  his  part,  was  fully  admitted,  in  the  very  mo- 

dem Huntly  claim,  on  the  3 1st  of  May  1838.' 
Second  rafco  of     jj^  What  has  been  stated,  might,  of  itself,  be  enoush  in 

Ld.  Brougham,  .   .  ,  \  .        .     ,^„I       .,  i« 

on  the  conceiv-  support  of  the  two  Condemned  services  m  1737,  without  offer- 
c**  *of **corrobo- ^"8  "lore.  In  regard,  however,  to  Lord  Brougham's  second 
rating,  as  offer-  allegation  or  ground,  by  our  law,  no  doubt,  there  might  have 
YiJ^^Q  1737*^'' been  a  bar  to  going  into  the  proof  of  the  relationship  of  the 
Thii  alio  dii-  two  important  jurors,  from  the  legal  presumption  in  support 

*  For  instanee,  that  dated  19th  of  Mareh  1777,  to  extinguish  the  eld- 
est son  and  grandson  of  Charles  Earl  of  Marr,  and  to  prove  James 
Erskine,  of  Grange  and  Marr,  the  direct  ancestor  of  the  Kellie  claimant, 
next  heir-male  of  the  Earl.  (See  Min.  ut  aup,  in  18S2,  p.  44.)  Sir 
George  Erskine  of  Invertiel,  second  brother  of  Earl  Thomas,  the  Kellie 
patentee,  and  a  much  nearer  heir-male  than  the  claimant,  was  another 
weighty  extinction.  And  how  was  he  dispaiched  ?  Merely  by  two 
general  services,  (npon  record,)  dated  26th  of  April  1648,  of  his  two 
femak  descendants,  as  his  heirs.  (See  Min.  ut  tup,  in  1882,  pp.  24-5.) 
Chancellor  Brougham  in  no  way  opposed  the  evidence*  while  even  the 
Attorney-General  admitted  that  the  claimant  had  thus  fiiUy  ^*  like- 
wise disposed  of  Sir  George  Erskine  of  Invertiel ; — they  (his  counsel,  he 
^ieiinctiy  added,)  have  shewn,"  by  the  service,  that  **  he  died  without 
male  issue."  (From  authentic  MS.  copy  of  the  pleadings.) 

'  Minutes  of  Evid.  ibid.  p.  29.  As  to  special  services,  if  general  ones 
abound,  as  is  the  fiict,  in  our  Peera^  prooednre,  the  former  do  so  in 
a  reduplicated  ratio,  and  swarm  in  e^'Ofy  direction. 


IN  SCOTTISH  PK£RAO£S,  &C.  d09 

of  their  creiUbility,  as  well  as  of  the  pecuUar  Ker  senriee  in 
general,  that  might  therefore  exclude  it,  though  demanded  by 
an  adversary.  But  supposing  it  to  be  deemed  rdevast,  as  in  Groundi  for  mr 
tlie  present  instance,  by  Ugh  authority,  imarticmiatefyj  and  ra^  in<>v<^oii. 
iher  irregularly,  it  is  thought,  according  to  our  noticms,  and  in 
the  fiice  of  the  striking  and  cogent  practice  just  unfolded,  to 
redaigue,  or  disregard  mck  a  service,  which  has  stood  for 
such  a  period,  then,  in  this  extreme  case,  I  apprehend,  tbm 
oooclttsion  in  question  of  the  same  legal  dignitary,  involving 
an  absolute  depkmo  rejection,  of  any  palpable  intriuflie  corro- 
boration thereof^  in  absolute  self-defence,  may  not  be  so  oh* 
vious.  Here,  holding  the  service  to  be  just,  a  material  inter- 
est, or  right,  has  in  fact  vested,  or  enured  in  favour  of  others, 
while  it  is  a  common  principle  inlaw,  that  wherever  there  is  a 
right,  there  should  be  or  ought  to  be  a  might,  or  proper  means 
directly,  or  otherwise,  of  rendering  it  available,  which  in 
tiM  present  circumstances,  in  the  singular  disclamation  of  the 
substantial  evidence  in  toto,  can  only  be  mainly  done  by 
means  of  such  corroboration  offered*.  The  authority  too,  and 
the  warrants  of  the  service,  through  the  testimony ,  by  analogy, 
might}  be  as  much  brought  into  play,  and  sifted,  and  subsidi- 
arily evinced,  as  those  of  a  patent^  to  shew  that  it  proceeded 
upon  proper  powers  from  the  crown,  as  is  notoriously  done  in 
Scottish  Peerage  claims.  For  this  purpose,  in  the  Roxburghe 
case,  the  eoUateral  fact  of  Charies  I.  having  been  at  Newcastle, 
at  the  date  of  the  once  disputed  royal  Kozburghe  charter  from 
thence,  in  1646,  and  similarly  and  vitally  bearing  upon  itse^ 
fect,^  was  duly  shewn  and  taken  into  view,  thus  in  order  to 
its  corroboration.  And  when  I  have  further  appealed  to  our 
proe^ure,  in  actions  of  reduction  of  services — to  which  Lord 
Brougham's  attack  in  the  Rutherford  instance  amounts — nay, 
in  proving  the  tenour  of  an  imperfect,  questionable,  or  lost 
document,  I  think  I  may  be  borne  out  in  my  position. 

With  every  submission,  too,  aware,  although  I  be,  of  the  Tb«  ^^o  con- 

,  ,      .       .  J  .  ^  ^  ,  .  current     lervi- 

occasional  laxity  m  our  daySf  m  respect  to  general  services, —  cet.  on  the  ma« 
still,  however,  not  without  a  cure  or  remedy,* — I  cannot,  upon  **"•*  P®'"*  ®' 

'  Great  Seal  Raster. 

'  I  mnst,  at  the  same  time,  continue  to  express  my  regret,  that  the 
old  salutary  form  of  permitting  others  to  oppose  at  a  general  service. 


910  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

extincUon,  the  whole,  but  help  entertaining,  in  the  circumstances,  and 
fa^e^beln^n^-  Under  the  striking  attaching  specialties  and  cancamiianiSj  a 
ceived  in  evi-  higher  and  different  notion  from  Lord  Brougham,  of  the  pre- 
admiMion^'of  a^umptively  good,  and  far  older  one  of  Ker  in  1737.  It  at 
wretched  paper  least,  a  fortiori,  apparently, — ^nay,  with  the  congruent  ser- 
the  HuoUy  case  Vice,  moreoveTy  of  Captain  John  Rutherford  m  the  same  year, 
in  1838.  might  have  been  received  in  evidence,  even  independent  of 

other  corroborations,  and  the  especial  accordant  practice,  as 
elsewhere  unfolded,  after  the  actual  admission  of  the  indeed 
suspicious  and  wretched  undated  copy  of  the  putative  Hundy 
declaration,^ — which  I  cannot  view  but  as  a  fabrication ;  for, 
while  there  b  every  thing  to  detract  in  the  latter,  there  is  no- 
thing, so  far  as  I  can  see,  to  question  or  mistrust  in  the  former. 
Oiher  eTidenee     There  was  besides,  in  behalf  of  the  simple,  and  single  Ru- 
tind^oniDquml^^^^^'^  extinction,  the  most  favourable  and  convincing  taci- 
aoD,  upon  the  tumity,  for  even  more  than  a  century — since  the  dates,  not  of 
of  most  ttrfldngtwo  scrviccs,  but,  in  effect,  of  three^  (including  that  of  Durie 
^*^^^<^in   1733,)  striking  termini  assuredly— and  all   conspiring, 
eei  in  1783  and  though  the  two  former  more  directly,  to  this  material  end. 
^^^^'  It  is  here  important,  that  while  the  Rutherford  dignity  was 

neither  held  then,  as  indeed  as  little  now,  to  be  extinct,  there 
were,  from  the  first,  two  especial  claimants  to  it,  namely, 
George  Durie,  qua  heir-general  of  Andrew  Earl  of  Teviot, 
first  Lord  Rutherford,^ — but  only  after  the  death  of  Lord  Ro- 
bert, who  constituted  a  previous  bar — and  Captain  John 
Rutherford,  qua  the  collateral  heir-male  of  that  nobleman 
alone,  independently  of  the  claim  in  itself,  even  more  cogent, 
and  turning  upon  the  same  hinge  with  the  latter,  of  Henry 
Ker  of  Graden  to  the  heritable  succession,  still  but  as  the 
collateral  heir  of  line.  Nor  did  these  parties  by  any  means 
conceal  their  pretensions,  so  far,  of  the  above  character,  under 
a  bushel.  On  the  contrary,  they  were  not  only  ventilated  and 
proclaimed  from  the  earliest  period,  but  all  regularly  and  pub- 
licly enunciated  by  the  respective  services  in  1733,  and  1737, 
which  had  undoubted  reference  to  them.     Nay,  the  two  claim* 

upon  qualifying  an  intorost,  even  though  not  very  direct, — and  with- 
out a  competing  brief, — ^has  been  abrogated  with  us. 

'  See  pp.  884-5-6,  &e.    Yet  too  a  corroboration  of  it  waa  allowed,  ibid, 

'  See  p.  902,  n.  8,  &c. 


IN  SCOTTISH  PEERAGES,  &C.  911 

ants  of  the  Peerage,  from  the  dates  of  theirs,  actually  assum- 
ed the  title  of  Lord  Rutherford,  by  which  they  were  universal- 
ly known,  amid  keen  argument  and  competition  of  a  very  pe- 
culiar kind.  It  was  tedious,  and  long  protracted  in  the  face  of 
the  whole  world,  whose  attention  was  signally  directed  thereto, 
especially  at  Peerage  Elections,  the  very  records  of  which  are 
loaded,  nay  in  a  manner  infested  with  the  procedure,  distin- 
guished withal  by  no  ordinary  vehemence  and  excitement.  And 
notwithstanding  even  the  solemn  order  and  resolution  of  the 
Lords  in  1762,  precluding  the  parties  from  using  the  title  un- 
til they  had  fully  established  their  right,  the  heir  in  the  shoes 
of  the  original  heir-general  >  of  Andrew  Earl  of  Teviot,  first 
Lord  Rutherford,  still  took  the  dignity  of  Lord  Rutherford, 
and  voted  at  an  Election  in  1788,  which  moreover  originated 
further  proceedings,  with  a  renewed  order  of  the  Lords,  also 
agunst  his  assumption, — that  was  met  again,  and  contested 
by  the  claim  of  another  in  1788,  the  predecessor  of  the  last 
Rutherford  claimant  in  1833,>  &c. 

Can  it  then  be  supposed,  under  these  circumstances,  after  Th«  udturnity 
such  striking  and  diversified  facts  and  procedure,  so  constant- a^^ouiy  ^^p^l 
ly  repeated,  and  of  such  palpable  publicity  and  notoriety,  that  ^*®  ^^  ^°9 
if  Robert  Lord  Rutherford  had  left  male  issue,  which  com-  extinction. 
prises  the  whole  Rutherford  extinction, — and  considering  be- 
sides, the  necessarily  clear  and  immediate  character  of  the  des- 
cent, that  they  would  not,  during  all  this  period,  embracing 
more  than  a  century,  have  come  forward,  in  some  way  or  an- 
other, by  a  protest,  at  least,  if  not  by  a  claim,  to  vindicate  their 
far  preferable,  nay,  indeed,  confessed  right,  that  only  required 
their  presence  to  its  establishment  ?     Or  that  there  would  not 
have  been  some  trace  or  surmise  of  their  existence^  however 
reduced  or  distressed  their  condition,  that  besides,  even  in 
that  case,  might  have  only  served  further  to  expiscate  them  by 
goading  them  vigorously  thus  to  move  and  to  act  to  improve  it  ? 
The  supposition  and  idea,  I  conceive,  is  absolutely  impos* 
sible ;  more  especially  as,  in  this  instance,  there  was  no  attain- 
der, and  inevitable  expatriation,  as  in  that  of  Lord  Lewis  Gor- 

'  John  Anderson,  of  Golan  ;  see  proof  next  referred  to. 
'  See  Robertson's  Peerage  Proceedings,  pp.  44.3, 456^7,  and  printed 
cases  for  the  recent  Rutherford  claimants. 


913  INQUIRY  INTO  THE  hAYf  AND  PRACTICE 

Contreit  be-  don  ID  the  Huntly  case,  and  such  contemplated  preferable 
dence  in^iup-  Rutherford  httrs-male^— «o  unlike  the  latier  or  bis  issue^ — 
port  of  the  sole  would  have  been  at  fuU  liberty  to  shew  themselves,  and  to  act  as 

Rutherford  ex-    .  ,  .  ^  i         i  i  i  . 

tioction,    and  they  choso,  qoitc  Unfettered  and  unclogged  m  any  respect— 

Lewii^Goi^'^n  ^^  ^^^  quarter.    Yet,  during  the  entire  space  of  the  time  in 

in  the  Hantiy  question,  down  to  this  day,  there  never  has  been  an  inkling, 

though  ^o«/'  ^^  ^^^  slightest  whisper,  either  of  such  individuals,  or  of  sudi 

weak  indeed,  an  attempt, — which  invariable  silence  necessarily,  among  so 

and  far  inferior  ,        ,  .  -^      •  •  i    •    . 

to  the  former,  many   legal  provocatives  to   its  invasion  and  mterruption, 
««  yet  aomii-  founds,  and  uuequivocally  constitutes,  as  I  have  maintained,  the 
strongest  evidence  of  taciturnity  in  favour  of  the  extinction  of 
Lord  Robert^     And,  a  fortiori^  how  much  not  only  the 
above  argument  in  the  present  instance,  but  moreover,  the 
reiterated  direct  legal  proof  in  behalf  of  this  main  fact,  must 
tell,  after  what  was  admittedf  by  the  bye,  as  Juil^  conclunve 
in  the  identical  matter  of  extinction,  as  respects  the  previous 
Lord  Lewis  Gordon,  in  the  remarkable  Huntly  case,  where 
all  the  recited  infallibly  detecting,  or  eliciting  dues  or  ex- 
piscations  were  glaringly  wanting  as  to  him  or  hb  issue, 
where  there  was  no  succession,  (such  as  has  been  set  forth,) 
that  they,  in  any  event,  both  owing  to  the  attainder,  which 
rendered  them  complete  blanks  in  law,  and  their  cadetsMp 
could  lay  claim  to,  or  that,  thereby,  could  possibly  drag  them^ 
for  the  important  purpose  in  view,  into  public  notice.     In  the 
absence  of  all  which,  they  were  merely  extinguished,  at  most, 
according  to  Lord  Redesdale,  by  a  '*  very  miserable  spedes 
of  evidence,"  in  the  legal  sense, — upon  secondary  inexpUdt 
reputation,  but  by  a  modem  existing  individual,  unnecessary 

*  Every  later  notice  too,  regarding  him,  so  far  as  I  can  discover,  afibrds 
no  countenance  to  the  ideaof  his  having  had  issue.  Descending  to  second- 
ary evidence,  (though  such  as  Lord  Rosslyn  would  clearly  have  adopted, 
see  pp.  8Sl-2-^4),  Nisbet,  in  his  Heraldry,  first  Edit,  published  in  1722, 
vol.  I.  p.  180,  states  that  this  individual,  **  Robert,  now  Lord  Ruther- 
furd, — made  over  his  estate,  Titky  and  arms,  by  disposition,  with  a  pro« 
curatory  of  resignation,  in  favours  of  Thomas  Rutherfurd  of  that  ilk, 
(or  of  Edzerston,)  chief  of  the  name,"  which,  nugatory  as  the  act  may 
be  held,  in  respect  to  the  title,  being  after  the  Union,  yet  may  farther 
strengthen  the  notion  of  his  having  died  childless,  because,  e  converso^ 
he  cannot  well  be  presumed  to  have  then  made  such  alienation  ultrone- 
ously,  to  one,  legally  a  stranger,  however  chief  of  his  family. 


IN  SCOTTISH  PEERAGES,  &C.  913 

to  recur  to.'     While,  so  far  from  this,  again,  on  the  other  hand,  Lord  Lewis  wa« 
the  material  Rutherford  extinction  was,  in  a  solemn  legal  man-  ^*  by*»"*^very 
ner,  judicially  and  positively  sworn  to  and  established,  upon  the  niMnOtie  ape- 
oaths  of  nearly  thirty  persons,  as  remotely  even  as  1 73  7,  in  terms  dence/'  wbUe 
of  two  public  brieves,  or  proclamations,  by  two  concurring  ser-*^®*®'*'^."^^®'- 
vices,  obtained  for  an  important  end,  powerfully  backed  and  nu  ■worn  to  by 
corroborated  by  the  striking  concomitants  that  have  lJ^cn*"J°^"^'  ^'^ 
stated.  They  supply  abundant  evidence  of  the  fact,  at  least  such  penoot,  imme- 
as  was  invariably,  nay  is  still  received  in  our  Peerage  claims ;  o^'JiJ^S^e  ^  /„! 
and  what,  I  really  apprehend,  is,  besides,  fully  deserving  of  <^®p^d<i«<>^  of 
attention,  have  only  as  yet  been  gratuitously  assailed,  without  leTant'proof/^* 
any  discoverable  t/ent,  or  particular,  any  way  to  compromise 
them.     In  this  view,  every  legal  presumption  conspires  inEyeryiegaipra- 
their  favour,     llien  again, — to  continue  as  before,  and  finish  !?"K'®°  "  ^®' 
the   Huntly   contrast, — as   to    Lord    Henry    Gordon,   the  Nay,  clenching 
remaining  pressing  extinction,  or  impediment  in  the  aggra>  ***®  ^"i!™h  **1* 
vated  duntly  case, — for  there,  there  were  two^  instead  of  only  ly  and  Ruther- 
one,    as    here, — though    likewise    victoriously  got  over, —  Henr^cjordont 
it  was  even  without  an  adminicley  or  phantom  of  evidence,  another  out- 
or  any  thing  adduced  in  its  behalf,  which  indeed  makes  thatfjonoroiMtaciei 
but  a  short  matter.      Upon  the  most  superficial  comparison,  wa»notdi*pow<i 
surely,  between  the  two  cases,  that  of  Rutherford  far  outweighs 
Huntly,  and  was  hence  entitled  to  much  more  favour ;  so 
that,  I  conceive,  with  every  submission,  upon  the  strength 
of  the  latter  precedent — only  a  year  before — the  Rutherford  ^/orfton.then, 
extinction  might,  a  fortiori^  have  been  allowed,  without  prov- |J®j"°J^'^||^^^®''" 
ing,  in  limine^  as  it  did,  an  absolute  bar  to  the  claim.     I  like-mighthavebecn 
wise  must  further  be  allowed  to  ask, — and  here  I  have  the ^,^7^  *    .. 

^  ,  .At  leaBt,    (hf 

Utmost  countenance  and  support  from  the  universal  Bri- evidence  in  sup- 
tish  practice, — why  were  the  two  extinguishing  Rutherford  hare^bel^'re-^ 
services,  not  entitled,  at  least,  to  the  usual,  and  qualified  pri-  ceived,  de  b*me 
vQege,  de  bene  esse^  when  the  far  weightier  obstacles  in  the  supposed  objec- 
Huntly  instance,  in  the  shape  of  the  two  altogether  unvouched-  ^®"  ^*»^'  *' 

.        .  ,      ,  i_         1        i_       J  r      once  casting  the 

for  extinctions  and  clearances^  on  the  other  hand,  never  for  claimant. 

'  See  pp.  880-1.  I  should  think  too,  that  as  good  evidence  of 
the  kind  could  be  obtained  upon  the  Rutherford  point,  even  from 
blood  rolatWes  of  Robert  Lord  Rutherford, — thus  better  than  in  the 
Hnntly  instance, — that  they  had  never  heard  of  his  having  left  issue. 
See  p.  876.  Dr  Johnson  sneeringly  said, "  much  faith  was  due  to  tradition,** 

3m 


914  INQUIRY  INT©  THE  LAW  AND*  PRACTICE 

Ajbrtiorijkgun,  a  moment  occasioned  much  demur  or  difficulty,  or  ever  stay- 
Haniiy'*fitbrica- ®^  procedure,  but  were  so  complacently  glossed  over,  and 
Uon  was  further  admitted  ?     Nay,  not  only  that,  but  to  recur  to  it  once  more, 

even  received  in     vxi.  ••  ri-»*j  i^.l  /»»i_ 

witUnce,  wDcn  the  suspicious  or  fabricated  copy  merely  of  the  unfinish- 

ed Huntly  declaration,  &c.  was  exalted  forsooth  into  legal  evi- 
dence, even  beyond  the  honour  of  de  bene  esse^  by  far  too 
high  a  rank  for  it  indeed — peace  to  its  manes.^ 

The  striking  ta-      But,  moreover,  in  regard  to  the  striking  and  confessed  fea- 

Rutherford  \n- ^^^®  ^^  **^*^^^"^^y  ^^  the  Rutherford  instance,  which  really 
stance,  more-  scems  to  have  been  overlooked,  1  cannot  but  still  more  appre- 
Hsh  law  perfect  ciate  it,  and  necessarily  the  Rutherford  evidence  in  the  gross, 
*>'5*®**"'P*'°°^of  which  it  isan  elemeut,  even  upon  the  English  footing, — 

— in  accordance  . 

also  with  ours,  when  I  find  that  high  legal  authority  in  Peerage  law,  the  late 
Lord  Redesdale,  so  often  charged  with  being  too  rigid  and 
scrupulous,  actually,  in  the  important  Roscommon  Peerage 
claim  in  1828,  laying  the  utmost  stress,  in  the  identical  matter 
of  extinctions,  upon  the  lapse  merely  but  of  tkirty-ftoe  years, 
since  the  claim  had  been  mooted  in  the  Irish  House  of 
Peers,  during  an  agitated  and  repeated  discussion  like  that  of 
Rutherford,  without^  in  the  same  manner,  as  there,  a  nearer 
heir,  having  been  instructed.  Nay,  when,  in  his  deciding 
speech,  he  founds,  as  conclusive  proof,  not  merely  of  one,  but 
ol  several  remote  extinctions,  upon  this  "  length  of  time," — but 
This  fixed  by  the  short  indeed  with  what  we  have  been  contemplating, — <*  which 
decision  in  the  \^.^^  elapsed  since  this  dignity  (the  Earldom  of  Roscommon) 

Roscommon  .  ^  ,  .  .         .i    ,  ,      .  .  . 

claim  in  1828,  came  into  competttiony  when^  if  there  had  been  any  other  per- 

in^r^iesser°  de-  ®^*^®'  ^^y  ^^^^^  ^^^^  naturally  come  forward  and  made  a 
gree,  it,  in  a  si-  claim.  I  submit,"  therefore,  **  to  your  Lordships,"  this  digni- 
™*  "i^^rched'^  ^^y  ©"ds  with  pointedly  inculcating,  "  that  is  a  ground  of  pre- 
teoeraz  remote  sumptiou  80  ^^roita  that  it  canuot properly  be  resisted.'^    And 

extinctions.  *.  ..  ...  i«i 

upon  such  ratio  and  argument,  the  extmctions  were  exclusively 
dispatched.  It  is  almost  superfluous  to  observe,  bow  much 
this  doctrine,  essentially^  applies  in  the  Rutherford  case, 
there  having  been,  independently  of  the  original  claimants, 
and  the  incessant  public  competitions  and  disputations  from 
1733,  and  1737  to  1762,  and  1 788,  two  other  claunants,  by  two 

'  P.  884-5.    For  the  Huntly  precedent,  see  pp.  875—882,  et  seq. 

'  See  Report  of  the  Roscommon  claim,  illustrating  material  points 
in  Evidence,  according  to  English  practice,  by  Clark  and  Finnelly, 
in  their  Appeal  Cases,  vol.  VI.  part  I.  pp.  120-9. 


IN  SCOTTISH  PKERAOES,  kc.  915 

distinct  references,  before  the  Lords  themselves,  from  1833  to 
1839»  the  matter  having  been  thus  continued  for  more  than 
a  century,  down  even  to  our  day,  with  as  little  the  appearance 
— nay  indeed  tvithout  the  very  semblance  or  shadow,  (which  is 
different  from  what  transpired  in  the  more  complicated  Ros- 
common case,^) — of  any  nearer  heir,  that  is  sprung  from  Ro- 
bert last  Lord  Rutherford ;  whose  extinction — the  only  one — 
in  like  manner,  should  therefore  much  more  be  legally  held. 

We  thus,  by  resorting  to  British  modern  practice  elsewhere,  Afortiariagain^ 
see  how  the  law  stands  in  the  minds  of  other  high  authorities  ^^^J'.^'y^^®^"" 

•    ^       ,  ,  ,  o  glishiaw,aswell 

accustomed  to  decide  in  Scottish  Peerage  claims, — the  more  as  by  oun,  the 
to  be  weighed,  as  not  conflicting  with  ours.     So  that  things  ({Qct^^n  was  fix^ 
may  be  clearly  brought  to  this  remarkable  and  untoward  pass,  ^^' 
that  if  we  admit,  as  conclusive,  the  strictness  and  rigour  ad- 
hibited, notwithstanding,  as  to  extinctions  in  the  Rutherford  in- 
stance, we  cannot  but  confess  the  inevitable  necessity^  of  there 
having  been  certainly,  much  more  proof  and  corroboration  The  Huntiy  and 
in  that  of  Huntiy,  where  they  besides  were  more  cogently  R"^*>e'ford  re- 

•'  '  .  .      ;   solution    being, 

required,  owing  to  the  recenter  era  of  Lord  Lewis,  the  princi-sofar.quitecon- 
pal  extinction,  who,  not  alluding  to  Lord  Henry  Gordon,  |™^J^pJ^^j,J^^^ 
(as  to  which  last,  there  happened  to  be  a  perfect  blank,)  was  untoward  and 
left  quite  undisposed  of  by  any  peculiar  distinctive  taciturnity,  consequences 
that  nowise  could  be— or  by  any  of  the  striking,  at  least  mor-  f*"®  'n^fo^^uced 

•'        "^  ,  *^  into  practice. 

ally  irresistible  legal  circumstances  and  accidents,  unneces- 
sary to  repeat,  in  behalf  of  the  only  one  of  Rutherford. 
Indeed,  with  the  material  view,  there  was,  as  has  been  seen, 
nothing,  except  at  the  most  a  vague,  inconclusive,  and  ^^very 
miserable  species  of  evidence."  With  every  submission,  the  b^^^contradic^' 
obvious  jarring  and  contradictory  nature  of  Peerage  practice  tory  procedure 
here,  and,  as  it  would  seem  elsewhere,*  may  be  deep  matter  of  e^*idence?  '° 

'  There  indeed,  at  tlie  twelfth  hour,  however  unfounded  their  claims, 
two  claimants  d\^  present  themselves,  upon  the  pretext  of  being  nearer, 
which  makes  the  Roscommon,  not  so  convincing,  or  irresistible  as  the 
Rutherford  case. 

'  It  is  remarkable  too,  that  what  may  be  regarded  a  genuine  and  ve- 
racious paper,  in  the  reign  of  Charles  II., — so  far  as  can  be  seen, — illus- 
trating, as  it  professes  to  do,  in  the  shape  of  an  '^  Information,"  by 
Haldane  of  Gleneagles,  a  respectable  cotemporary,  the  essential  matter 
in  the  Kelly  case,  of  the  pedigree  of  the  Irish  branch,  (see  pp.  869-70-1), 
— ^besides  being  derived,  like  the  putative  ITuntly  declaration,  just  allud- 


916  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

regret  to  all  the  well*wishers  of,  what  is  so  desirable,  aoine 
steady  and  uniform  rule  and  criterion. 

Upon  the  head  of  services.  Chancellor  Erskine  held  In- 

quisitiones  post  mortem — in  other  words,  the  former  **  much 

superior  "  even  to  the  modern  received  probation  of  the  kind 

by  registries  of  births  and  baptisms,  so  highly  preferred  in 

^^®"^*®'[^®^*  England.*     Yet,  as  things  at  present  stand,  combining  the 

Brougham   of  Ruthcrford  rcsolutiou  in  1839,  with  the  judgment  of  the  same 

kT^PMr^eV,^!!  ^''^'^^^"*'»  ^^  ^^^  appellate  character,  in  the  still  recenter 
■trongiy  con-  casc  of  Neilsou,  or  Neilson  against  Cochrane,  the  19th  of 
unbounded  ef-  March  1840,^  our  general  services,  as  above,  older  than  a 
feet,  »*iih  us,  at  (.gn^ury^  presumptively  good,  and  unimpeached,  may  be  thus 
statute.  '  doomed  to  be  worthless  and  inept,  in  proof  of  pedigree,  in 
Peerages  ;  while  one,  in  the  same  view,  at  common  law^  in 
terms  of  the  Act  of  the  vicennial  Prescription  of  Retours  in 

ed  to,  (see  pp.  88^5-6,)  from  the  charter- chest  of  the  family  of  the 
claimant, — ^however,  equally,  in  an  unascertained  handwriting, — was,  e 
conversOf  after  discussion,  in  1832,  in  the  first  place,  ^  received  only  de 
bene  esse/'  (See  Min.  of  Evidence  in  the  Kelly  claim,  p.  SO.)  And, 
in  the  future  ailment  and  pleading,  Chancollor  Brougham  said, 
^' There  is  no  pretence  for  receiving  this^  (the  paper  in  question,)  it  con* 
not  be  admitted^  it  is  no  declaration  that  can  be  admitted  ;  if  it  had  been 
in  a  Bible,  open  to  every  one,  it  would  have  been  a  different  thing, 
though  that  is  subject  to  contradiction."  (From  authentic  copies 
of  the  pleadings  and  discussion  in  the  Kelly  case.)  But  qaare^  is  there 
not  hero,  infact^  again,  a  contradiction,  contrasting  the  procedure  with 
that  of  Huntly,  which,  as  has  been  shewn,  did  admit  the  declaration, 
as  above,  even  in  evidence,  of  far  less  weight  and  account,  certainly,  to 
say  the  most  of  it  ?  At  the  same  time,  his  Lordship's  detraction,  in 
part,  from  the  usual  weight  given  to  insertions  in  family  Bibles,  goes 
to  support  me  in  a  former  remark,  (see  p.  833,  n.  6.) 

*  See  Cruise  on  Dig.  pp.  272-3. 

*  Affirming  a  decision,  to  the  same  purport,  by  the  Court  of  Seadon, 
who  thought  they  were  imperatively  barred  by  the  Act  1617,  to  be 
noticed,  from  applying  any  relative  redress,  though  there  demanded  in 
truth  and  equity,  or  in  such  emergencies,  as  follow  in  the  text.  See 
Robinson's  Appeal  Cases,  under  the  preceding  date,  and  p.  142  of  this 
performance.  The  same  Judge,  Lord  Cottenham,  Chancellor  at  the 
time,  presided,  and  delivered  the  deciding  speech,  in  the  above  case 
of  Nelson  against  Cochrane,— as  in  that  of  Rutherford  in  1839.  Nei- 
ther Lords  Lyndhurst  or  Wyndford  were  present,  nor  was  allusion  made 
to  the  subject  of  honours,  or  how,  if  in  any  respect  they  might  chance 
to  be  aflfected  by  the  decision. 


IN  SCOTTISH  PEERAGES,  &C.  917 

16179  c.  13,^  is  yet  perfectly  valid  and  indefeasible,  after  the  The  latter,  in 
brief  lapse  but  of  twenty  years,  however  incontestably  bad  and  *  g™  ^^  ^?^^ 
vicious  on  its  face.*     Nay,  even  we  may  conclude,  though,  may  go  too  (ar, 
through  the  medium  of  such  a  process,  a  son  and  a  father  ^^ij^di^y/^. 
should  he  erroneously  served  to  each  other  in  their  inverted  re-  g'«iai»»"e. 
lationship,  or  a  mother  as  heir  to  her  son,  most  incongruously 
with  us,  (in  every  view,)  in  like  manner,  in  quality  of  his  daughter. 
In  short,  a  service,  in  the  prior  case,  far  beyond  the  term  of 
pre8cription,orof  any  date,  may  be  worth  nothing,  while,  how- 
soever monstrously,  as  in  the  latter,  every  thing — a  state  of 
things,  apparently,  deserving  the  consideration,  and  interposi- 
tion of  the  legislature. 

It  might  be  premature  to  go  further  into  the  merits  of  the 
late  Rutherford  claim,  which  the  Lords  did  not  properly 
broach,  though  it  is  curious  to  find  the  same  objection  made  strange  and  w^ 
there,  as  formerly,  upon  the  exclusive  footing  of  English  no-  [fonlnlrorm^  r^l 
tions,  of  the  supposed  inefficacy,  in  point  of  fornix  of  a  Scot-peated  in  th& 
tish  Peerage  regrant,  upon  a  resignation,  or  through  the  uie- dium^*^  ^' 
diom  of  a  nomination,  as  by  the  Rutherford  patent  in  1 66 1 ,  to 
carry  a  dignity, — always  fated,  as  it  may  be  still,  to  be  repeat- 
edy — however,  always  sure,  eventually,  to  be  disregarded  and 
repelled,  as  in  the  instances  of  Stair,  Errol,  and  Roxburghe, 
&c.     Such  prior  attempt  savours  rather  of  English  bigotry. 

On  the  18th  of  June  1841,  the  Lords  *^  resolved  and  ad- Case  of  the 
judged,"  on  a  previous  petition  to  them,   exclusively,  which  st"i,  ,>,"  84i 
had  been  referred  to  a  Committee  of  Privileges,  that  "  John  exclusively  be- 
Hamilton  Dalrymple,  of  Cousland  and  Fala,  Earl  of  Stair,  Vis-  an'd  iieeided'  by 
count  of  Dalrymple,"  &c.**hath  made  out  his  claim  to  be  admit-  ^^^^  *''""''• 
ted,  as  a  Peer  of  Scotland,  to  vote  at  the  Election  of  Peers,  to 
represent  the  Peerage  of  Scotland,'*  with  further,  an  order 
that  the  Clerk  of  Parliament  transmit  such  resolution  to  the 
Lord  Register  of  Scotland.^    This  procedure  was  in  obvious 

'  See  Acts  of  Pari,  last  Edit.  vol.  IV.  p.  544-5. 

'  For  the  curions,  conflicting,  and  untoward  consequence  this  may 
induce  in  the  case  of  a  Peeragey  descendible  with  the  estates — ^by  a  strict 
entail,  as  is  not  uncommon  with  ns — ^in  r^pect  to  such  inheritances, 
see  pp.  401-2,  et  seq, 

'  Lords'  Journals.  This  exclusive  cognizance  of  the  Lords  in  Scot- 
tiA  Peerage  claims,  can  only  vest  in  them  by  practice,  and,  ex  neeessi- 
tatty  in  regard  to  voting  and  due  choice  at  Election  of  the  Sixteen  Peers. 


918  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Thi:i  4a«  under  conformity  with  the  order  of  the  House,  formerly  stated,  the 
.helror^^^^^    13th  of  May  1822,^  his  Lordship  being  a  distant  collateral 
1822,  also  com- heir-male  of  John  William,  the  last  Earl  of  Stair,  who  died 
the  case* of  Bu-^°  1840,  and  hencc,  in  terms  of  the  same,  obliged  to  petition 
Chan  in  1830.    or  claim  in  the  above  form,*  which,  as  we  have  seen,  had  also 
been  complied  with,  by  Henry  David  Earl  of  Buchan,  in 
1830,^  though  a  much  nearer  collateral  heir-male  of  his  noble 
predecessor.     The  petitioner  John,  the  present  Earl  of  Stair, 
though  not  descended  of  the  body  of  John  the  first  Earl,'  was 
yet  fully  entitled  to  the  honours  in  virtue  of  a  special  re- 
mainder in  their  regrant,  the  27th  of  February  1707,  in  fa- 
vour of  John  the  second  Earl  of  Stair,  his  son,  the  celebrated 
Marshal,  (already  referred  to,^  and  proceeding  upon  his  spe- 
cial resignation),  whereby,  failing  certain  others,  that  are  now 
The  Stair  claim- spent,  the  former  are  limited  to  his  heirs-ma/^  descended  of 
doubt^^^h*eir"  ^^^^^  Vtscoufit  Stairj  his  grandfather^ — of  whom  the  claim- 
both  under  the  ant  in  1841  is  now  the  nearest,  in  consequence  of  his  lineal 
regrantTn  i7o"'"^*l®  descout  from  Sir  James  Dalrymple,  younger  son  of  the 
and  the  original  gaid  Viscount  James,  the  well  known  President  of  the  Session. 

Stair  patent   in,     ,  i  i    i  .  .      ,*.a*.    i 

1703.  it  IS  unnecessary  to  go  beyond  this  regrant  in  1707,  because 

it  is  now  the  regulating  conveyance ;  but  it  is  remarkable,  that 
the  noble  party  would  have  still  been  equally  entitled,  in  terms 
of  the  original  constitution  of  the  Earldom,  by  patent  the  8tb  of 
April  1703,  where,  failing  heirs-male  of  the  body  of  the  paten- 
tee, John  the  first  Earl  of  Stair,  there  is  still  another  corres- 
ponding remainder,  embracing  ^'  haeredes  masculos  defuncti 
Jacobi  Vicecomitis  de  Stair"  ^ — t.  e.  the  same  distinguished 
lawyer^  as  before,  ^Mer  of  the  patentee,  and  the  first  Peer  of 
the  family. 
Similar  proce-       Under  this  head,  I  may  add,  that  the  male  and  female  re- 
*l7h'th  Y^^^f    presentation  of  the  Lords  Dfiflfus  becoming  disjoined,  upon 
stairin  1841. in  the  death,  iu  1827,  of  James  the  last  Lord,  without  issue,  (who 
Ba^ro^^f  Duf.  was  restored  by  Parliament  in  1826,  against  the  forfeiture 
fu8,  in  1832,— in  1715,)  and  the  patent  of  the  honours  in  1650,  not  being 
^ise^cTe^ntuaiiy  preserved,^  —  while,   at  the  same   time,    they   have   never 
different  in  form  2QQQ  j.q  ^^  hcir-femalo,  in  exclusion  of  an  heir*male — all  the 

in  1838.  ° 

»  See  pp.  850-1.  ■  Ibid,  '  See  p.  851. 

♦  See  pp.  386-7, 280,  ei  seq.       •  Great  Seal  Register.     •  See  pp.  375-0. 


IN  SCOTTISH  PEERAGES,  &C.  919 

previous  takers,  though  males,  being  also  heirs-general,  Sir  Duffot  patom  in 
BeDJamin  Dunbar  of  Hemprigs,  Baronet,  the  direct  heir-male  ][^j^]J°|j^'^**"*' 
(alone)  of  the  body  of  the  first  Lord,  and  second  cousin  of  therefore  r.<. 
the  last,  thereupon  assumed  the  dignity,  according  to  the  noted  he^^maie^of  ibo 
presumption  of  the  Lords,  in  favour  of  such  identical  heir  in*;o<^y  (»ionn)  oi 

,         .  «  .  ,        /.   Tt»  «^         T-i  .    the  hrst  Lord. 

the  circumstances.     But,  on  the  i5th  of  May  1832,  **  Eric 
Ruddof  Thorne,  in  the  county  of  York,  Clerk,"  the  heir-female, 
through  his  mother,  the  eldest  sister  of  the  said  Lord  James,  such  assump 
dead  in   1827,  conceiving  himself,  neverthelessi  to  have  a^f  J^3d|Jl!^![ 
preferable  right  to  the  dignity,  petitioned  the  Lords  against  hcir-rcmaie,  by 
such  assumption  by  Sir  Benjamin.     He  insisted,  in  his  peti-  Lords^Ui  1^2.^ 
tion,  that  the  Baronet,  who  had  likewise  attempted  to  vote 
by  proxy  at  the  Peerage  Election  in  1830,  should  be  called 
upon  to  show,  by  production  of  the  Duffus  patent,  and  upon 
what  ground  he  took  the  Peerage ;  that,  in  the  meantime, 
bis  doing  so  was  an  infringement  of  the  privileges  of  the 
House,  in  terms  of  their  resolution  in  1822,^ — until  due  com- 
pliance with  which,  the  step  was  wholly  unauthorized  on  his 
part;  that  he  believed  that,  upon  recovery  of  the  patent,  which 
was  not  to  be  found  upon  record,  his  claim  would  turn  out  to 
be  best ; — and  he  concluded  with  praying,  that  the  Lords,  at 
least,  may  take  such  measures  as  will  be  fitting  in  the  matter. 
The  petition,  resembling  that  of  the  Marchioness  Dowager  of 
Downshire,  in  the  identical  year,  however  the  party  objected  to 
by  her  Ladyship  stood  in  a  very  different  situation,^  was  or- 
dered to  "  lie  on  the  Table,"  ^  but  without  further  relative  The  heir-maie 
procedure,  although  Sir  Benjamin  Dunbar,  taking  the  hint,  wwds^ln  1832, 
still  under  the  title  of  Lord  Duffus,  like  Lord  Stair  in  1841, «"  t**^^*  ^^  **!« 

,.j       •  ^t  ....  -  ,  ,    Lord*'  order  in 

aid  subsequently  present  a  petition  in  the  same  form  with  1322. 
bis  Lordship's,  in  terms  of  the  resolution  in  1822,  claiming  to 
vote  at  Elections,  which  was  referred,  the  30th  of  July  1832, 
to  a  Committee  of  Privileges.^     But  he  eventually,  after  a 
considerable  interval,  during  which  nothing  material  ensued  But  finally  pro- 
in  the  business,*  changed  his  course  of  action,  and  petitioned  reference^from 
her  Majesty  for  the  dignity,  upon  which  there  was  a  special  the  crown  in 

*  That  before  noticed.  ■  See  pp.  862-3. 

'  Lords'  Journals.  *  Ptid, 

'  Although,  on  the  2d  of  August  in  the  mid  year,  Lord  Reay  was 
fiwom  to  give  evidence.    /M. 


920  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

1838,  aiwa}s    reference  to  the  Lords,  the  2d  of  June  1838.^     This  was 

uj^n^ihe^E'^!^'^*^'y  "P^"  *®  English  principle,  (for,  as  I  have  repeatedly 
ii»h  principle,  showu,  (mr  method,  on  the  occasion,  hitherto  unrepealed, 
there  is  any  would  have  been  different,)  the  best  and  relevant  step  in  the 
question.         emergency ;  for,  as  it  is  justly  laid  down  in  Clark  and  Fin- 
nelly's  Reports,^  and  is  illustrated  by  the  Waterford  claim  in 
1832,^  '^  if  there  is  any  question  affecting  the  dignity,  (as  in 
the  present  instance,  different  from  that  of  Stair,)  the  petition 
ought  to  be  to  the  crowns     It  must  always,  from  what  I  fur- 
ther formerly  stated,^  in  the  above  view,  be  the  safest  and 
most  satisfactory  side  to  lean  to ;  but  strangely,  the  same 
dahn itrtUUii  P*^"®®'  *®  before,  still  obtains,  in  respect  to  the  Duffus  claim, 
pendenti.  which  absolutely  continues  in  statu  quo, 

I  have  now  brought  down  the  Law  and  Practice  in  our  Peer- 
ages since  the  Union,  as  far  as  may  be,  having  at  length  stated 
and  discussed — probably  with  much  tadium  to  the  reader — 
every  decided  case.  Other  proceedings,  either  pending,  or  in- 
termitted in  undecided  Peerage  claims,'  it  may  naturally  be 

•  Ibid.  •  Vol.  VI.  Ptet  I.  p.  98,  n.  b, 

'  Ibid.  p.  133,  et  seq.  *  See  p.  852. 

Similar  undo-  »  Of  these,  I  may  briefly  notice  the  respective  claims  made  by  the 
dlae  Al°°'h"  heir-male,  and  heirs-female,  to  the  Annandale  honours,  (including  the 
mont^and  Airth  Marquisate,  by  the  former  on/y,)  constituted  in  the  17th  and  18th  cen- 
claims.  turies,  which  have  been  long  in  dependance  ; — ^the  claim  to  the  Earl- 

dom of  Marchmout,  &c.  under  a  patent,  dated  the  23d  of  April  1697, 
**  heredibus  masculis  qutbuscunque^*  by  a  very  distant  heir-male  col- 
lateral, properly  much  longer, — and  that  of  the  female  heir  of  line,  re- 
cently, to  the  Earldom  of  Airth,  under  an  orij^nal  patent  in  the  Mon- 
trose charter-chest,  dated  2l8t  of  January  1633,  embracing  the  paten- 
tee, **  et  Haredea  ttuosy^  &c.  The  claimant,  in  this  last  instance,  was  held 
by  the  crown  lawyers,  to  have  duly  established  his  descent,  with  any 
necessary  extinctions, — which  remark  may  apply  also  to  the  claim  to 
Barony  of  Lo-  ^^  Barony  of  Lovat,— that,  in  effect,  attempted  from  a  new  quarter, 
crai'medt  dearly  '^  *^®  Courts  below,  hitherto  proving  utterly  fruitless,  without  any 
irredeemably     chance  of  success.    But  the  noted  forfeiture  of  Simon  Lord  Lovat,  in 
rorreited ;  yet    174^^  clearly  attaches  to  the  Lovat  dignity,  the  obvious  reason,  I  con- 
d^e^ allowed!  elude,  for  its  not  being  further  pursued.  There  is,  however,  this  impor- 
tant result,  under  direct  countenance  of  this  Lovat  precedent,  that  a 
party  may  prove  his  pedigree  before  the  Lords,  even  in  the  case  of  an 
attainted  Peerage,  from  which  he  is  therdnf  barred.    I  find  I  have  an- 
Perth  claim  in  ticijiated  ill  my  remarks,  (see  pp.  774-5,  notBy)  the  merits  of  the  claim 
puri  c  (8u.  to  the  Earldom  of  Perth,  by  the  male  descendant  of  the  French  Mel- 


IN  SCOTTISH  PBEBAOE8,  &C.  93 1 

premature  and  unadvisible  to  notice.    Independently  of  being,  Our   Peerage 
in  part,  barred  here  by  private  professional  considerations,  it  thT^jJ^ion °hL 
would  be  rash  and  blameable  to  go  into  such  details, — in  a^«"  brought 

i*«p         .  ,       down,  and  dii- 

dmerent  emergency,  so  tnmttngj — unaware,  as  we  must  be,cuMed,  mfara* 
m  hoc  statUy  of  the  special  raiiones  that  are  to  influence  the  ^^^  ^* 
minds  of  the  noble  tribunal  to  whom  the  former  are  referred, 
in  expiscation  of  the  final  resolution;  which  it  may  besides  be 
diflBcult  strictly  to  anticipate,  in  some  instances,  owing  to  the 
peculiar — rather  variable  state  still,  as  I  apprehend,  of  our 
Peerage  law,  taken  in  the  aggregate.  Such  contemplated 
discussion,  therefore,  might  be  imperfect  and  unsatisfactory. 
I  will  not  deny,  that  in  certain  points  English  doctrine  is  oc- 
casionally resorted  to,  not  unnaturally  on  the  part  of  English 
lawyers,  who  are  chiefly  employed  in  our  Peerage  claims; 
but  that  may  not  suffice,  in  the  face  of  our  ascertained,  and 
hitherto  unrepealed  law  ^  and  practice,  whose  relevancy  and 
preference,  of  course,  at  least  in  the  main,  has,  at  the  same 
time,  been  repeatedly  admitted  (as  will  shortly  be  additionally 
proved)  by  the  highest  authorities,  even  including  those  of  the 
sister  kingdom.  Neither  can  our  legitimate  system  well  be 
compromised  by  any  anomalous  opposite  practice,  whose  rules 
and  precepts,  if  they  can  be  discoverable,  are  by  no  means  fix- 
ed or  stable, — all  that  could  be  objected.  Indeed,  for  the  most 
part, — ^because  constant  and  long  usage  may,  in  the  minds  of 
some,  here  operate  inversely,  (as  to  which  matter  I  shall  speak 
in  the  sequel,) — it  may  not  inadequately  be  said  of  the  latter, 

fort  line,  that  has  been  recently  referred  to  the  Lords,  upon  a  petition 
to  the  crown ; — and  from  what  I  have  there  stated,  and  consequently 
cannot  now  withhold, — according  to  my  declared  observance,  as  to 
other  such  pending  claims, — ^the  same  must,  a  fortiori^  be  held  to  be 
forfeited.  Pointed  allusion  to  any  remaining  Scottish  claims  of  the 
kind,  without  equal  consideration  of  all,  would  be  objectionable,  and 
might  appear  invidious. — I  therefore  must  content  myself  with 
only  further  referring  the  reader,  for  additional  information  upon  this 
head,  to  the  Lords'  Journals,  where  their  scope  and  nature,  to  a  certain 
extent,  may  be  discovered. 

*  Our  law,  as  is  notorious,  has  been  lately  partially  repealed  by  statute,  our  Uw  in  eri- 
and  assimilated  to  the  English,  in  so  far  as  removingthe  former  bar  with  deoce»  partially 
n»,  palpably  observed  from  an  early  period,  to  the  admission  of  pa- jJ[JJ"'"|^^''^®^^ 
role  testimony,  owing  to  consanguinity  and  relationship.  Eogland. 


922  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

that  a  breath  may  unmake  ihem,  as  a  breath,  very  summarily, 
if  not  capriciously,  has  made. 

Newdiftcov«ryin  It  may  appear  somewhat  remarkable,  but  I  have  very  re- 
onho"Baroiiy*  c^^tly  discovered  another  royal  charter  of  the  temporal  patri- 
of  •'  Cuiross,"  mony  of  the  Abbey  of  Culross,  with  an  additional  erection 
awarded  in  1723  iuto  a  hereditary  Lordship,  including  the  Parliamentary  dignity 
as  that  of"  Col-  f  "  Culross,"  in  favour  of  "Sir  James  Colvil,   of  Easter 

▼il  of  Cuiross,  )  '  ^  ^  ' 

of  another  char-  Wemyss,knigh  t,"and  his '  ^heirs  male  and  assignees  whatsoever," 
porTryBw^^^^^  at  Hampton  Court,  the  1 0th  of  March,   1604.     It  is 

"Cuiross," with  recorded  in  the  original  protocol  book  of  James  Primrose,  a 
1604.  '  notary  of  eminence,  containing  various  authentic  instruments 
from  1598  to  1624,  in  her  Majesty's  General  Register  House; 
— so  that  the  singular  case  of  the  ^'  Barony  of  Cuiross," 
as  well  as  that  of  the  ^^  Barony  of  Colvill  of  Cuiross,'*^  now 
Statement,  or  stand  thus.  On  the  20th  of  June  1589,  there  is  a  charter  to 
of  the  general "  Sir  James  Colvil  of  Easter  Weems,"  erecting  Cuiross  into 
facts  and  result.  ^  temporal  Barouy,  wiih  the  title  of  "  Cuiross"  only,  to  him 
and  to  his  heirs-male,  direct  and  collateral.^  On  the  day  of 
March  mentioned,  in  1604,  there  is  that  just  discovered,  and 
referred  to,  at  the  outset  and  earlier  parts,  merely  in  favour  of 
"  Sir  James  Colvil  of  Easter  Viemys^^'' (repeatedly^)  though  in 
the  subsequent  portion  and  conclusion,  after  the  erection — 
thus  for  the  second  time  into  a  temporal  Barony,  with  the 
title  again, — he  receives  the  style  of '*  now  Lord  of  Cuiross," 
and  of  ''James  Lord  Cuiross."  On  the  20th  of  January 
1609,  there  is  another  charter  to  the  said  disponee,  but  only 
as  "  Sir  James  Colvil  of  Easter  Werayss,"— though  much  ear- 
lier, as  has  been  seen, ''  Lord  Cuiross,"  of  the  same  possession, 
having  a  third  erection  into  a  temporal  Lordship,  with  the 
title  of  "  Cuiross,"  still  exclusively  (as  before,)  to  him,  and  the 
heirs-male  of  his  body,  whom  failing,  to  his  heirs-male  whatso- 
ever; and  where  he  is  described  throughout  as  Sir  James  Colvil, 
and  not  as  Lord  Cuiross.  It  proceeds  upon  the  resignation  and 
demission  of  John,  '*  nunc  "  Commeudator  of  Cuiross,  who  had 
acquired,  and  held  then  an  heritable  right  in  the  possession.' 

'  See  p.  354-5,  et  seq,  *  Great  Seal  Register. 

'  GreHt  Seal  Register, 


IN  SCOTTISH  PEERAGES,  &SC.  928 

On  the  9th  of  October  1616,  there  is  a  charter,  but  not 
under  the  sign  manual,  in  favour  of  James,  son  of  the  late 
"  Robert  Master  of  Colvil"  &c.  of  the  Lordship  and  Barony 
of  Culross,  proceeding  upon  the  resignation  of  the  previous 
Sir  James  Colvil,  his  grandfather,  there  described,  not  as 
"Lord  Culross,"  but  as  "  Lord  Colvill  of  Culross."* 

In  1617  there  was  a  Parliamentary  ratification  to  the  same 
"  James  Lord  Colvil  of  Culrods,"  of  the  "  Lordschip  and 
Baronye  of  CiUross,"  in  terms  exclusively  of  the  charter  1609, 
though  without  specifying  the  dignity,  particularly  dissolving 
the  former  from  the  crown^  to  which  it  had  been  annexed  by 
the  general  annexation  of  Church  lands  in  1587,^  thus  evinc*  Original  and 
ing  its  previous  situation^  ~but  ordaining  a  "  new  infeftment,"  ™on^i^\he  Cai- 
and  necessarily  grant  or  charter  stilly  to  Lord  James,  his »'®"  instance. 
"  airis  male  and  successoures,  &c.  to  be  extendit  in  maist  ample 
forme,  with  all  clausses  necesb-ar."  ^    The  latter  charter,  how- 
ever, though  such  identical  order  and  arrangement  likewise 
obtained,  and  was  fully  complied  with  in  the  corresponding  case 
of  Spynie,^  never  appears  here  to  have  past. 

Doubtless,  the  repetition  of  the  Culross  grants  may  be  held  That  combined 
to  imply  an  original  flaw  and  defect,  as  is  to  be  inferred  also  from  ^^^  ^^^^^  ^^o 
the  prior  interest  in  John,  the  Commendator  of  Culross,  and  with  the  repeti- 
^e  annexation;  and  it  so  happens,  that  Sir  James  Colvil,  the  verai  grants, 
grantee  in  1589,  certainly  thereafter  remained  a  commoner,  ®^*"®®  *"  ^°*'®" 
without  any  trace  of  nobility.     This  is  proved,  inter  alioy  by 
a  much  later  instrument,  in  Primrose's  Protocol,  referred  to, 
dated  24th  of  September  1603,  where  he  figures  but  as  '*  Sir 
James  Colvil  of  Easter  Wemyss."*    Neither  did  even  the 
charter  1604  take  effect  in  respect  to  the  ^'  Culross  "  honour, 
as  is  proved,  more  especially,  by  the  same  description  of  the 

^  Ibid,    It  was  under  reversion,  which  I  did  not  allude  to  formerly. 

'  Seep.238. 

'  Acts  of  Pari,  last  Edit.  vol.  IV.  569.    It  thence  is  to  be  presumed  The  other  Cul- 
there  bad  been  no  proper  previous  disannexation,  that  could  oniy  thus  be  jf*'**   chartew, 
by  Parliament.    It  is  merely  the  charter  1609  that  is  ratified,  and  not  igog^Qo^  r\tifl- 
those  in  1604,  and  1589,  which  therefore  remained  truly  inept  and  null,  ed  in   Parlia- 
as  before.    I  can  find  no  other  Parliamentary  disannexation.  ™®°^* 

*  See  pp.  659, 660,  in  virtue  of  the  Sp3mie  act,  and  charter,  respec- 
tively, in  1592-3,— also  pp.  703-4. 

*  At  p.  a3.  of  the  Protocol. 


dS4  INQUIRY  INTO  THE  LAW  AKD  PRACTICE 

All  the  Caiross  disponee  in  the  Culross  charter  IGOQ,  which  also,  in  its  turn, 
we°On  fact,  f^^  been  effete,  though  strangely,  per  sCf  without  a  particle  of 
null  before  the  corroboration,  found  by  the  House  of  Lords  in  1723,  to  trans- 

salTiQff  act  ID        .  "^ 

1617.— which  mit  the  extraneous  title  of  Lord  **  Colvil  of  Culross;"^  be- 
thatlo* I609!  ^  <^&use,  if  valid  and  effectual,  what  occasion  was  there,  not  al- 
luding to  the  conveyance  in  1616,  for  the  Act  1617? — which 
indeed  lets  out  the  secret,  as  premised, — quite  unknown  at  the 
time  to  the  Lords,— and  the  non-compliance  with  which, 
through  a  subsequent  ^«r^A  royal  charter — expressly  from 
the  king,  in  order  directly  and  fully  to  vest  the  subjects  in  the 
party,  leaves  things  (so  differently  from  in  the  Spynie  in- 
stance,') still  rather  in  an  inchoate  or  imperfect  state. 

But,  in  these  very  circumstances,  though  not  in  reference 
to  the  patrimony  or  *'  baronial  territory  of  Culross,'*  or  in 
grmmio  of  any  of  the  conveyances  noticed,  but  aliunde^  in- 
The  older  Baro- eluding  Primrose's  protocol,  Sir  James  Colvil,  from  June  at 
CuiroM  "^pre^  ^®*^*  ^°  1604,  inclusive,  and  ever  afterwcurds^  is  styled  "  Lord 
snmptifeiy  dif-  Colvil  of  Culross,"  aud  his  son  Robert,  the  "  Master  of 
tuted,  and  loa  Colvili'^  while  there  is  evidence,  in  a  distinct  shape,  from  the 
tiOT**fr^m"Sllt  ^^^  of  creation,  formerly  referred  to,  on  the  25th  of  April  1604, 
of  "Cuirost"  that  he  bad  then  obtained   the  identical  preceding  title  of 
"piy-  u  Lord  Colvil  of  Culross,"  according  to  which  too,  his  prece- 

dency^ and  that  of  his  family,  were  adjusted  by  the  decree  of  rank- 
ing in  1606.^  Further,  as  they  did  not  use  the  title  of  Lord 
*^  Culross"  simply,  and  as  neither  their  actual  Peerage,  **  Col- 
vil of  Culross,"  can  be  ascribed  from  the  denomination,  and 
ranking  to  the  Culross  charter  in  1609,^  which,  utterly  incom- 
patible therewith^  would  have  plainly  deteriorated  the  ranking 
— there  being,  at  the  same  time,  as  little,  any  resignation  of  the 

*  See  pp.  354-6.  ■  See,  as  before,  under  the  Spynie  references. 
"  He  has  the  above  style  in  instmments,  in  Primrose's  Protoool,  in 

ie05,  iu  1608  f  repeatedly),  in  1609  (repeatedly),  in  1612,  1617,  1622, 
1624,  &c.  &c.  Sometimes  he  is  styled  **  Lord  Colvill,"  but  he  never 
uses  the  title  of  ^  Culross  "  simply.  Though  in  the  Culross  eharter,  in 
March  1604,  (invalid  as  it  proved,)  he,  as  has  been  seen,  is  to  be  now 
*^  Lord  Culross,"  yet  in  the  infeftment,  in  terms  thereof,  (ibid,)  29th  of 
June  1604,  he  is  still  designated,  as  above,  **  James  Lord  Colvill  of  Cul- 
ross ;"  while  Robert,  his  son,  elsewhere,  (ibid,)  is  styled  repeatedly 
«*  Master  of  Colvil."  The  Act  of  the  "  Colvil  of  Culross"  creation  was 
(as  stated  in  the  text)  in  April  1604,  hence  after  the  Culross  charter. 

*  See  pp.  366-7-8.  •  Ibid,  and  pp.  369-60. 


IN  SCOTIISH  PEERAGES^  &C.  *  926 

party,  > — ^is  there  not  ground  for  the  presumption,  thafc  there 
was,  though  not  now  eztant,  a  restricted  personal  patent,  (as 
has  then  happened  elsewhere  in  such  emergency),  of  the  Bar- 
ony of  **  Colvil  of  Culross,"  upon  which,  implemented  by  the 
relative  Actpf  creation,  as  above,  his  right  as  a  Peer  stood,  and  Legal  pretump. 
was  properly  authorized  ?    This  would  follow  still  more  irresis-  **®°  °^  * *?  **** 

..  ,     ,        ,      o  •  •  icent,  and  ne- 

tibly  by  the  Spynie  decision.^    If  so,  what  would  then  be  the  cessary  eztinc- 
consequence,  according  to  modern  notions,  may  be  sufficients  ii^Tirrue  of*the 
ly  obvious; — and  while  we  cannot  but  still  be  surprised  at  Spynie decision, 
the  House  of  Peers  adjudicating  the  title  of  Lord  ^*  Colvil  of 
Culross,'*  upon  the  faith  of  the  charter  1609,  exclusively ^  indeed 
a  friul  member  but  of  a  frail  confraternity, — ^it  is  to  be  regretted 
that  the  claim  had  not  been  shaped  in  reference  simply  to  the 
Barony  of**  Culross," — the  only  one  which  the  House  of  The  nwony 
Lords,  under  their  law,  will  be  disposed  now  to  identify  with  ^^^  ?^'^the 
a  limitation  to  heirs-male  whatsoever,  necessarily  compris-oniy  one  that 
ing  the  present  male  representative  {collaterally  merely)  of  j^°|^J]['^y°^/." 
the  ancient  family  of  Colvil — but  vitally  and  indispensably  tue  exdaUTeiy 

of  tlia  Act  ]fil7 

backed  withal,  (besides  the  charter  1609,)  by  the  Act  16l7.^.if  uiewantof 
The  latter  is  a  kind  of  sheet  anchor,  and  can  alone  save  ;  if  the  ii«w  charter, 

.      .  in  terms  of  the 

the  want  of  the  subsequent  charter,  in  implement  thereof,  Act,  (ai  in  the 
rendered  eligible  by  the  intrinsic  nullity  of  that  in  1609,  i^^  SSrspynle'in- 
the  circumstances,  be  not  held  material.     This  being  too  after  stance),  be  not 
the  Royal  order  in  1615,*  when  stricter  forms  were  first  re- ^^ception. 
quired  in  Peerage  conveyances,  and  a  specification  of  the  dig- 
nity,— which  is  not  in  the  Act  1617,  though  otherwise,  in 
the  case  of  that  of  Spynie  in  1592,' — ^together  with  the  direct 

'  At  no  time  ^all  the  Culross  eharters  are  so  fiur  original,  and  detached. 
I,  of  course,  do  not  here  allude  to  the  futile  one  in  1616,  in  respect  to 
the  honours  at  least,  as  it  was  not  warranted  by  the  crown. 

'  As  to  the  Spynie  case,  see  from  p.  654,  to  p.  707,  ind, 

*  It  may  be  observed,  that  there  was  a  great  connection  implied,  implied  connec- 
and  indeed*8pecially  enforced  verbattm  in  the  charters,  of  such  secularise  tion    between 
ed  Barony  of  a  religious  house,  between  the  fief  and  the  honour,  (see  Sl^ny  of^^'^- 
pp.  246-6^)  the  more  naturally,  as  the  former  had  entitled  the  possessor  ligiont  hooM, 
to  sit  in  Parliament,  as  a  high  ecclesiastical  dignitary,  among  the  »nd  the  dignity, 
nobility,  and  even  above  the  Barons. 

*  See  p.  257,  and  especially  pp.  813-14,  under  the  Ochiltrie  claim, 
evincing  the  strict  and  severe  notions  of  modem  law  on  this  head* 

*  See  pp.  669,  703-4. 


836  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

adhibkion  of  the  royal  authority^ — the  vesting,  through  the 
charter,  of  course  under  the  sign  manual, — as  again  in  the 
analogous  Spynie  instance  in  1593,*  would  have  been  belter. 
A  claim,  aecor-  A.  claim  therefore,  as  premised,  might  perhaps  still  be  expedt* 
dingiy,  by  the  gjjj .  ^q^^  taken  along  with  the  Spynie  and  Lindores  decisions, 
still  be' made,    independent  of  existing  law, — the  other  Barony  of  <*  Colvill 
of  Culross,"  (erroneously  awarded  in  1723,)  will,  in  the  ab- 
sence of  the  patent,  be  presumed  to  be  only  to  heirs-male  of  the 
body,  and  hence  inevitably  to  be  extinct.     I  have  now,  at 
length,  done  with  my  remarks  upon  the  case  in  question,'  suf- 
ficiently tedious,  as  they  indisputably  have  been,  and  shall 
leave  the  matter  to  the  better,  and  impartial  judgment  of 
others ;  only  observing,  that  the  repeated  futile  Culross  grants^ 
The  instiDce  Id  (whifeh,  indeed,  as  we  say  in  practice,  prove  too  much^)  more- 
further  to  throw  ^^^^'  among  other  similar  instances,  throw  doubt  and  discredit 
di»tru»t   upon  upou  certain  erections  of  church  properties,  into  hereditary 
erections   of    Lordships  of  Parliament,  with  the  dignity, — that  is  to  say, 
church  proper-  ^h^n  standing  alone,  and  at  an  earlier  period  t^  of  which  the 

ties    into    tem-  o  »  r  ' 

porai  Baronies,  law  must  always  be  somewhat  jealous,  and  that  ought  to  be 
Titer  *?he  *  Rel  ^^^Y  ^^^  Satisfactorily  supported. 

formation. 

To  shew  further  the  right  or  interest  accruing  by  the  cour- 
tesy in  1594,  as  explanatory  of  that — ^nearly  about  the  period 
— ^in  the  person  of  James  Stewart  of  Down,  Earl  of  Moray, — 
derived,  under  such  title,  from  Elizabeth  Countess  of  Moray, 
in  her  own  right,  his  spouse,  heritable  proprietrix,  in  like 
manner,  of  the  Moray  estates,*  it  was  decided  by  the  Session, 
Old  Scottish  au-  the  12th  of  February,  in  the  year  in  question,  in  respect  to  the 
SSr'the  w'Jaird  of  Dalbatie,  that  the  «  courtesie  of  Scotland  fillis  landis 
ture  of  the  law  als  Weill  as  ane  infeftment  of  lyfrent,  or  conjunct  fie  does :"  and 

of  courtesy  with,  ,  ii  iii  .«%.. 

us,  in  reference bence  that  there. then  could  be  no  non-entries  affecting  the 
cLe***and!rtW. '*^°^®  ^^  Riddich,  which  the  laird  possessed  by  the  courtesy, 
wise.  in  right  of  the  heiress,  his  deceased  spouse,  they  being  thus 

'  See  pp.  eeo,  704. 

'  For  these  previously,  see  from  p.  364  to  p.  369,  inel.y  and  from  p. 
701,  to  p.  707,  partly  referred  to.  The  Colvil  Mm-claim,  so  hng  before 
1723,  is  also  material. 

'  See,  on  this  head,  p.  238,  et  teq.  pp.  246-6-7-8. 

•  See  pp.  796-6-7-8,  &c. 


IN  SCOTTISH  PKEKAOES,  &C.  9^7 

necessarily  **  full,"  in  consequence  of  the  preceding  rea- 
son.^ 

'  Original  MSS.  Reports  of  Lord  Haddington,  a  cotemporary  Judge, 
and  President  of  the  Court  of  Session,  Advocates'  Library.    In  the 
case  of  Ogilvy,  in  1657,  this  proposition  was  also  held  by  a  party  before  Case  of  Ogilvy 
the  Session,  in  regard  to  the  courtesy,  that  "  it  proceidis  of  ane  speciale*"  ^^^^• 
prevelege  grantit  of  ye  common  lawof  yis  realme  to  hvmallanerlie  (onlyy) 
quha  mereis  ane  heretrix  to  his  wife,  of  quatsumever  landis,  ande  gettis 
of  ye  samyn  wiff  ane  bame,  or  air  herd  cryand  betuix  four  wallis." 
(Act  and  Decree  Register  of  the  Session.)  The  right,  thus  broader  than  The  right   of 
now,  extended  originally  to  all  lands  in  the  person  of  the  heiress,  and  the  courtesy  for- 
Segiam  (see  Lib.  II.  c.  68,  et  seq.J  was  hence  the  rule ;  only  that  the  J^mi^iiow^    ^' 
latter  curiously  represents  the  child  as  *'  6ray-antem,"  or  braying^  in- 
stead of,  rather  more  humanly^  **  crying,"  as  above.    Contrary  to  under- 
stood present  law  too,  I  have  found  it  argued,  formerly,  that  the 
9eeond  husband  of  an  heiress,  by  whom  he  chanced  likewise  to  have 
issue,  was  entitled  to  the  courtesy,  upon  her  death, — even  although  Could  the  te* 
she  had  left  an  heir  by  a  prior  spouse ; — but  this  seems  never  proper-  ^^^'f  hu»band  of 
ly  to  have  been  received  with  us,  but  e  contra;  however,  singularly jj^g^jm^j^Q^^ 
enough,  the  late  Sir  Lucas  Pepys,  the  second  husband  of  Jane  Countess 
of  Rothes,  in  her  own  right, — ^with  issue, — upon  such  identical  ground, 
at  one  time,  not  altogether   without  legal  authority,  was  disposed 
l^lly  to  try  the  question.    It  was  found  as  early  as  1478,  in  the  case 
of  Melvil,  by  the  supreme  civil  Tribunal,  that  the  ''  speciale  privilege  Case  of  Mehil, 
of  ye  curtasy  of  Scotland — ^is  grantit  hot  alanerly  (only)  to  ye  personis  ***  **^®' 
yat  maryis  a  maydin,  and  feis  ye  land,  quhilk  privilege  suld  not  be  (w- 
tendit  to  nane  uyeris  personis."  : 


928  INQUIRY  INTO  THE  LAW  AND  PRACfTICE 


CHAPTER  VIII. 


CLOSING  REMARKS  AND  INDUCTIONS. 


Thb  general  facts  and  considerations,  such  as  I  conceive 
bear  upon  our  law  and  practice  in  Peerages,  having  now  been 
submitted,  so  far  as  may  be  expedient,  I  shall,  upon  the  whole, 
leave  to  the  judgment  and  discretion  of  my  readers, — to  whom 
much  more  will  doubtless  occur, — only  further  touching  upon 
the  more  prominent  and  material  points,  to  which  I  must 
necessarily  restrict  myself  owing  to  want  of  room. 
Important  con-     In  the  first  place,  it  strikes  me,  from  what  has  been  set  forth, 
tobeinrt*"T d*  ^^^  *^  important  and  certainly  natural  principle,  may  be  fairly 
that  the  Seou  conceded, — that  our  Peerage  law,  nowise  altered  by  the  Arti- 
iSii   Datunuiy  ^'^^  ^^  Union, — but,  on  the  contrary,  thereby,  especially  re* 
goTern-^ least  served, — faUs  alone  strictly  to  govern  in  the  subject  in  question. 
the  matter  "of*  Indeed,  SO  far  from  being  traversed  by  the  motley  and  anomal- 
Seottish  Peer-  Q^8  character,  in  same  respects,  of  modem  practice, — as  has 
been  shewn,  even  inconsistent  with  itself, — this  only  evinces 
that  the  former  could  be  met  by  no  proper  or  relevant  conflict- 
ing rule.     The  practice  alluded  to,  is  often  as  littie  conform- 
able to  English,  as  to  Scottish  law,  which  therefore  cannot,  in 
the  main,  at  least,  be  shaken  by  what,  in  the  emergency,  may 
be  merely  considered  the  obvious  result  but  of  misconception 
and  inadvertence ;  while,  at  the  same  time,  instead  of  being 
lost  sight  of,  our  peculiar  doctrine  and  system, — when  known 
and  justly  explained, — as  is  notorious,  has  sovereignly  and 
broadly  governed, — ^nay,  even  in  a  certain  degree,  under  the 
weighty  department  of  forfeiture  since  the  Union,   though 
imperatively  subjected,  by  the  Act  of  Queen  Anne,  to  the  law 
of  the  sister  kingdom.     But,  independentiy  of  this,  and  what 


IK  SCOTTISH  PEERAQES,  &CC.  9S9 

may  appear  even  more  convinciDg  aod  satisfactory,  I  appeal  This  even  ad- 
below,  to  the  concurrent  opinion,  upon  this  head,  of  the  most  Ejj!Jgj,**^j^'^]f 
eminent  authorities  at  all  times,  nearly  all  English  legal  dig- authority,  and 
nitaries,  and  members  of  the  House  of  Peers,  who  might  have 
been  expected,  if  that  were  practicable,  to  have  stickled  at,  and 
been  influenced,  on  the  other  hand,  by  their  homebred  notions 
and  impressions.'     And  assuredly,  if  the  Lords,  in  their  ap- 

'  The  celebrated  Hugh,  Earl  of  Marchmont,  in  the  Cassilis  case,  in  Proof  in  sapport 
1762,  maintained  that  it,  with  the  extensive  Peerage  matters  involved,  o/  my  propoii- 
"  must  certainly  be  determined  upon  the  general  principles  of  the  law  ***"' 
of  the  country  where  the  ease  itself  took  its  rise,**  and  argued  on 
Scottish  authorities.    Lord  Mansfield  no  way  impugned,  but  adopted 
the  same  course,  appealing,  inter  aliay  to  two  decisions  of  the  Court  of 
Session,  in  cases  of  Scottish  precedence,  and  Peerage,  in  1706  and  1730, 
along  with  the  opinions  of  various  Scottish  lawyers  and  writers,  while 
founding,  specifically,  upon  the  law  of  Scotland,  as  the  ratio  decidendi. 
Nor  is  there  any  thing  in  Lord  Hardwick's  speech,  on  the  Cassilis  occa- 
sion, to  the  contrary,  who  also  founded  upon  Scottish  practice  and  pre- 
eedents.    (See  Mr.  Maidment's  Publication  of  the  Cassilis  Case,  p.  39, 
from  p.  43,  to  p.  55,  and  pp.  57-8-9,  &c.)    The  same  remarks  apply  to 
Lord  Mansfield  and  Camden's  speeches  in  the  Sutherland  case  in  1771, 
though  the  former  attempted  his  broad  and  loose  doctrine  of  expedi- 
ency, to  be  afterwards  noticed.    (See  Mr.  Maidment's  other  relative 
Pub.  p.  7,  et  seq.  &c.)  Lord  Mansfield  is  even  still  more  express  on  this 
head,  in  his  opinion  before  me,  upon  a  claim  to  the  Barony  of  Ross  of 
Halkhead,  as  far  back  as  1755,  wherein  he  says,  ^  I  am  deary  that  in 
the  case  of  a  Scotch  peerage,  the  ffouse  of  Lords  ought  aiid  will  Judge 
by  the  rules  of  the  Law  of  Scotland^  if  they  can  be  discovered  ;"  after 
which  he  adds,  in  practical  corroboration,  that  "  they  (the  Lords)  did 
80  expressly  in  the  case  of  the  title  of  Stair,  for  they  established  a  new 
creation  upon  resignation  with  the  old  precedence,  which  could  not 
have  been  done  in  England."    His  Lordship  is  here  perfectly  correct^ 
that  casein  1748  (for  which  see  under  pp.  386,  et  seq,  and  previously,  at 
pp.  280-1-2,  et  seq.)  being  the  mere  creature  of  our  law,  and  solely  ground- 
ed thereon.    I  might  also  refer  to  the  Belhaven  case  in  1799,  and  to 
various  others  of  the  kind.    Chancellor  Rosslyn  again,  was  as  little 
liable  to  be  trammelled  by  system  ;  yet,  when  alluding  to  prescrip- 
tion in  his  speech,  in  the  Moray  case,  (now  before  me,)  in  1793,  he 
argues  upon  it  as  "  a  doctrine  of  great  weight  in  the  law  of  Scot- 
land,— hy  which  law**  he  moreover  adds,  "  our  decision  should  le  regu- 
lated*^ He  at  the  same  time  there  founds  upon  Scottish  authorities,  and, 
as  will  be  presently  seen  in  the  Errol  instance  in  1797,  would  not  con- 
strue a  Scottish  sitting  in  Parliament,  with  its  subsequent  eSec%  accord-  *  See  p.  9S1,. 
ing  to  the  Uw  of  England,  but  exclusively  by  that  of  Scotland.*  In  the  "•  *• 

O  N 


980  INQUIRY  INTO  TH9  I«AW  4^0  PiUCTlCS 

Tha  dodriM  pelliito  juripcUetioB»  stiU  eiLdnttyoly  foUow  the  Scoitiah  law 
Ttm  from  thi  i^  ^  Scottish  casepi  as  they  oonfegeedly  4o,  irtiy  sboqld 
pracUce  of  Um  they  Hot,  ca4eris  varibu$^  when  diacysttng  the  twin  and  paral* 

Scottish  Appd'.    ii_.  *«•!«  A        rrn.         ?  11  I  ■ 

/atejuriMUctfcon.  ioi  BUQject  of  ooottisb  Peerages  ?    They  have  equally  adopted 
this  courset  M  least*  in  essential  vital  Peerage  points  i— and 
by  wbatjustor  eorrect  principle  then,  or  ratiocination,  Iraayaskt 
are  they  not,  so  far,  thus  generally  to  act  ?    Admitting  what  I 
Mort  mtteriftl,  here  Contend  for,  an  important  step  will  be  gained  in  the  dis- 
maoy^irmy'iL  cussion,  it  being  the  main  pivot  and  groundwork  upon  which  my 
ductiont.  closing  remarks  and  inferences  will  turn,  besides  those,  in  a 

great  measure,  elsewhere*     And  hence  I  must  be  pardoned 
in  the  emergency,  in  discluming,  upon  any  sound  and  intelli« 
NeiUier  is  there  gible  notion8,-^-a8  has  latterly  been  preposterously  maintained 
to!^?ato°^cj>  by  some, — the  relevant  dominion  of  an  indescribable  extrane- 
troMmu  law.     qus  law,  of  a  mixed  nature,  over  ours,  which,  when  discovera- 
ble, ought  alone  to  he  consulted.     Such  being  the  case, 
cmr  re€€iv€d  mode  of  couyeyaiiQe  or  transference  of  honours, 


lion. 


AnnandiUs  6Ma  in  1826,  Chancellor  Eldon  inculcated,  'Hhere  is  tw 
dottht  thai  the  f^nmroi  law  of  Scotland  would  tqmUy  apply  to  the  caas 
of  a  4i§uitih  wMoh  applies  to  an  estate,**  in  reference  to  the  precise  in* 
terpretation  of  the  Annandale  patent  in  1661 ;  and  with  the  same 
view.  Lord  Redesdale  repeatedly,  and  exdusiyely  founded  i^pon  ^  the 
Law  of  Scotland,  and  ihe  c9M^ruct^9fk  which  is  put  upon  such  words, 
(in  the  limitation  there,)  in  the  Xaim  of  iScolfoiuf."  (From  ootemporary 
MSS.  copies  ef  their  speeches.)  Cruise,  the  well  known  English  writer 
*  hi  my  potMt-  QQ  English  dignities,  in  a  Peerage  opinion  in  1818^*  admits,  even  in 
the  case  <tf  a  f  losing  ScoitUh  remainder,  under  an  oftgimfar, — ^that 
its  legal  import  ^^  tnutt  depend  on  the  ruka  by  which  such  ultimate 
limitationB  have  heen  construed  in  the  Scotch  I^w,"  The  above  autho» 
rities,  out  of  many  othen^  may  suffice  at  present  But  it,  indeed,  is  only 
incumbent  to  look  at  any  Scottish  Peerage  cases,  in  further  elucidation. 
Chancellor  Brougham  certainly  adopted  the  same  obvious  principle ;  for, 
in  his  deciding  speech  in  the  very  reeent  Polwarth  claim,  26th  of  June 
188fi,  he  forcibly  impressed  this,  that  *^  we^*  the  Committee  of  Privil^ea^ 
**  are  sitting  in  a  SeaUUh  Court,  as  a  Court  of  Appeal,"  (thus  in  the 
mere  ordinary  Scottish  routine) ;  and,  moreover,  in  his  argument  upon 
the  construction  of  the  important  Polwarth  limitation,  he  founds  di- 
rectly upon  the  law  of  Hcoiland,  and  rests  his  condusion  aooordiagly,  as 
being  in  unison  with,  and  not  repugnant  to  that  law,  which  necessari- 
ly ruled  as  before.  (For  a  full  copy  of  his  qpeecli,  see  the  exhibits  or 
productions  in  the  case  of  Lockhart  v,  Macdonald,  in  181(^  formerly 
adverted  to,  at  p.  857,  n.  2.) 


IN  SCOTTISH  PHERAGBS,  &C.  931 

— ^Dot  to  dwell  upon  their  peculiar  constitutions,  somewhat  sin- 
gular though  thej  may  appear  to  some,  and  certainly  adverse 
to  the  English  practice,  must  still  exclusively  govern  in  the  Hence  our  law, 
shape  of  resignations,  and  regular  regrants,  frequently  com-  "cn"ound* by 
prising  lands  as  well  as  dignities — as  has  indeed  been  strik-t^^l'Ordi.niiefl, 
ingly  resolved  by  the  Lords  themselves, — which  is  further  cor- TO^utuUonand 
roborative  of  what  I  have  premised,  rejectinir,  above  all,  the  conveyance  of 

/«.  r   1    1  .  ,.  -r        ,    honours. 

Visionary  ctmstructtve  effect  of  beltmg,  according  to  Lords 
Mansfield  and  Rosslyn,-— an  anomaly,  at  least  now,  in  Eng- 
land— but  an  utter  heresy  and  stranger  in  Scotland.     It  is 
m^tained  in  the  former  country,  that  a  Peerage  is  indelible 
in  a  party,  and  rivets  in  his  blood,  as  exemplified  in  the  noted 
words  of  Lord  Erskine,  that  have  been  referred  to,^  which  is 
hence  held  the  bar  there,  to  its  subsequent  demission,  aliena^ 
tion,  or  loss,  in  any  alternative,  excepting  from  attainder,  by 
him  or  his  posterity,  in  whom  it  was  once  recognised  through 
a  sitting  in  Parliament*     But  with  us,  on  the  contrary,  the  a  Peerage  with 
right  and  interest,  so  far,  not  b^g,  by  any  means,  so  rivet-  ^^  ^^ndeml' 
ted  and  indefeasible,   could   be  fully  demitted,  as  is  even  in  the  blood, 
evinced  in  the  very  instance  of  Peerage  resignations,  that^/°co„if  ^^^' 
were  so  common ;  nay  declined,*  and  could  be  transferred  by  transferred,  un- 

,  -^li?  t       M.   '%      £-  •      der  royal  autho- 

praper  royal  conveyances,  m  the  form  of  entails,  from  a  pnor  rity,  in  e? ery 
possessor  to  any  one,  and  made  to  devolve,  and  separate  ^*^' 
among  certain  heirs,  according  to  arbitrary,  fluctuating  condi- 
tions and  events.'  Nor  is  it  less  certain,  that  sittings  in  Par- 
liament, although  under  a  Peerage  solemnly  constituted  and 
recognised,  were  neither  untraversible,  or  ennobled  the  blood 
in  the  way  in  England.^    The  Peerage,  nevertheless,  could 

>  See  p.  106,  &c  '  See  also  pp.  120-2-3. 

•  See  pp.  69,  212-13-14,  &c 

*  See  pp.  7,8,9,  104-5-6,  121-2,  216,  808-9,  813.    In  the  Errol  Effect  of  a  Scot- 
case  in  1797  it  was  attempted  to  be  argued,  *^that  the  right  of  atish  fitting  in 
Peer  of  Scotland,  ntting  in  Parliament  at  the  time  of  the  Union,  foro^^TunhTn 
cannot  now  be  called  in  question,"  and  must,  Anglic^^  enure  in  favour  contrasted  with 
of  liis  legal  heirs.     But  this  plea,  Chancellor  Rosslyn,  who  mov-  tn  Eogttsh. 

ed  the  Errol  resolution,  -would  **  not  assent  to  at  all,'*  as  he  explicitly 
decland,  or  admit  that  such  sitting  convoyed  an  indefeasible  right.  On 
the  same  occasion,  also,  Mr.  Grant,  a  counsel,  (afterwards  Sir  WU- 
liam  Grant,  and  Master  of  the  Rolls,)  compared  the  situation  of  the 
Peers  of  Scotland,  to  that  of  the  Peers  of  England,  without  coutradic- 


934  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

there  had  been  an  admission  of  the  right  by  the  Irish  Houae 
of  Peers  (still  alone,)  before  the  Union,  in  favour  of  a  pre- 
A  fortiori,  sach  decessor,  in  whose  shoes  the  party  stood.^  It  is  obvious  that 
Lotdi'*Ijo*IL!^of  *®  distinction  and  rule  may  apply,  ajbrtiorij  to  a  discussion 
still  less  weight  and  rosolutiou  simply,  of  the  House  of  Peers,  on  the  question  of 
n  cottit    on-  ^.^j^^  ^£  ^  Scottish  Peer  to  vote  at  a  Scottish  Peerage  Election, 


oars. 


such  as  those  controverted  before  them  in  1793,  inasmuch 
as  there  is  no  special  Act  or  direct  law,  as  in  the  Irish  in« 
stance,  giving  the  requisite  authority  to  that  tribunal,  who,  up- 
on the  English  principle,  have,  strictly,  no  inherent  jurisdic- 
tion in  honours,  and  can  still  lessso  act  by  the  Scottish.'   It  is  not 
recognised  by  the  Articles  of  the  Scottish  Union,  but  indirectly 
arises,  ex  necessitate^  to  expedite  another,  though  material  ob* 
AppiientSoo  or  ject.^  The  Several  Scottish  Peerage  resolutions,  therefore,  by  the 
Mpecfadiy  to  the  Lords,  in  such  exclusive  capacity,  in  1 793,  must  sink  consider- 
thigttUr  ^^^ably  lower  in  estimation ;  and  above  all,  the  extraordinary  one 
in  the  case  of  Moray,  admitting  my  conclusion,  that  the  heir- 
general  had  the  true  right ;  for,  independent  of  the  want  of  any 
royal  reference,  and  of  okt  ^6n«ui6procedure,  he  was  not  even  in 
the  field.^    There  was  thus  no  proper  litiscontestation,  and 
Other  material  he  hence,  by  uo  Isw,  could  be  ^ly  compromised*     Indeed, 
hr^'tJT^^  Lord  Brougham  pomtedly  backs  and  supports  this  doctrine 
Broogham  in   in  the  Waterford  claim,  when  he  essentially  diaracterizes  a 
Ihdm,  Vor  im-  proper,  <*  actual,  judicial  decision"  of  a  Peerage,  to  be,  **  when 
pugning  the    ^^  u)hole  caso  is  adverseljf  contested  on  the  one  side,  and  on 
Wo^iji  1 79S.     the  other  J  at  the  bar  '*  of  the  Lords,  on  a  royal  reference,  and 


when  they  **have"  thus  *^  come  to  a  judicial  decLnon,  that  would 
have  operated  to  prevent  a^y  party  ever  afterwards  question' 
ing  itr^  It  hence  proving  indefeasible,  and  only,  on  full 
issue  being  joined, — I  submit,  owing  to  the  material  party,  as 
above,  in  the  Moray  case,  not  being  necessarily  so  convened, 
or  barred,  from  the  striking  fact  in  question,  that  he  cannot,  in 

*  Ibid.  pp.  137 — ^142,  &G.  It  is  to  be  here  obaerred,  that  it  was  also 
found  in  this  case,  that  Iri^  resolutions  or  adjudications,  before  the 
Union,  are  equally  good  and  bindiog  in  Peerages,  as  English  or  British. 
Ibid,  p.  134.  '  That  is  accordingly,  in  ih»  firU  instance. 

'  See  pp.  648-9, 861-2,  and  previously,  p.  288. 

*  See  p.  807,  including  n.  3,  and  p.  806. 

'^  Clark  and  Finnelly, «/  nrj).  pp.  152-%^,  149,  &c. 


IN  SCOTTISH  PBEBAQBS,  icc.  9S5 

sttdi  way,  be  aibcted  by  the  subaltern  inadeqaate  Moray  pro- 
eedfire  m  1793,  hdwerer  what  may  have  been  then  rekrantly 
stated  and  adduced,  form  a  portion  of  arailable  evidence.    The  i^urther,  by  tba 
case  may  then^  on  these  grounds,  be  possibly  opened  up,  espe^  entet  ad  noHH- 
Isially  with  the  aid  of  the  res  nomter  venimtes  ad  ftaiitiam  I  ^^{^  ^|j^! 
have  adduced,  substantiating  the  relative  plea  and  exception,  sunce. 
whidi  had  such  weight  in  the  Borthwiok  instance,^  wbei« 
tbere  intervened  a  still  more  formidable  obstacle* 

/iittfrm  posseseion  only,  reserving  the  rights  of  third  parties,  iKtaim  ponet- 
and  challenge  or  reduction  in  the  relevant  way  implied,  (as  PMi4«»^pe- 
stated, )  has,  moreover,  been  explicitly  and  solemnly  admitted  in  ^^  to  iu,--a 
the  cases  of  Budhan,  Kincardin,  nay  in  fact,  of  Salton,*  &o« ;  dent  rdaf'^^* 
and  it  strikes  me,  we  have,  in  this  respect,  an  advantage  over 
English  practice,  to  which  such  qualified  interest  or  title  ap- 
pears foreign.    It  seems  a  provident  a^d  salutary  principle, 
obviating  and  preclu<fiag  most  unjust  and  untoward  oonsei>  Pneiadet  Um 
quences,  illustrated  in  the  noted  English  case  of  Wiltoughby  ward  ^^h 
of  ParhamyS  berides  other  attendant  perplexities  and  difficult  ^"^^o*^ 
ties,  increased  by  the  fanciful  and  far^etretched  dictum  of  Lord  p««ftfe  law. 
Erdtine,^  that,  after  all,  is  not  fully  borne  out  in  England/ 
The  above  judicial  dispensatton  secures  the  ends  of  germana 
putitia^  that  must  always  be  contemplated;  and  besides  is  the 
•etoal  rule  advantageously  adopted  in  the  other  House  ^'llf^if'*^^ 
Parliament,  where  a  member  may  hold  an  effective,  though  commons, 
temporary  seat  only,  in  virtue  of  an  Election,  and  yet  be  ob« 
liged  thereafter  to  relinquish  it  to  another,  on  his  return  bemg 
questioned,  and  found  Ulegal.    He  then  is  confounded  with 
the  mass  of  the  people,  without  deriving  the  least  benefit  from 
his  sitting,  and  entirely  retrogrades  during  the  Parliament,  in 
which  he  had  once  sat,  to  his  former  unparliamentary  status.  The  pmciiee 
just  as  if  nothing  had  intervened.    This  too  may  bear  with  ?"•'••  T^y**^'' 

*  ,  by  anEiogTi  op* 

some  analogy,  owing  to  the  common  elective  characteristic,  on  Um  cobm- 
upon  the  lame  attempt  to  bolster  up  a  disputed,  and,  in  fact,  JSJot^  «i^ 
untenable  claim  to  a  Scottish  Peerage  in  an  hidividual,  by  the  not  a  Peer,  m 
circumstance  of  a  predecessor,  in  whose  shoes  he  stands,  hav-pr^^Q^J^^/** 
ing  been  illegally  elected,  (owing  to  the  same  defect  of  right,  ^^'* 

'  See  pp.  580—586,  &c 

*  See  pp.  32,  33, 185-6,  and  also  pp.  30,  44-5,  &e. 

*  See  p.  588,  et  seq.  and  p.  932,  n,    *  Ut  tup,  p.  931.     *  See  p.  589. 


9S6  INQUIRY  INTO  THE  LA.W  AND  PRACTICE 

qua  Peer,  then  unknown)  a  Scottish  representative  Peer. 

The  latter  incident,  indeed,  may  much  less  be  conclusive,  upon 

what  is  conceived  our  relative  broad  adverse  principle,  as  has 

been  shewn,  without  too  the  aid  of  any  proper  resolution  or 

Such  retarn,  io  J^^S^^^^  &c.  against  a  future  challenge.     In  the  present 

•uch  case,  can-  casc,  the  Peerage  right  and  interest,  so  based,  was  merely 

or  homologate  ephemeral,  and  had  as  fully  died  in  the  interim  holder,  on  the 

the  supposed,  dissolution  of  Parliament,  as  in  the  case  of  a  representative  mem- 
nut  empty  right.  '  * 

ber  in  the  Commons,  leaving  '^not  a  wreck  behind," — when  he 
himself,  even  supposing  there  had  been  no  attaching  flaw  or 
invalidity,  would  wholly  relapse  into  the  condition  of  a  Scot- 
Different  from  tish  Peer,  in  the  veriest  sense,  as  before.     There  is  here  no 
v^t^f summons  ^^^^^^^^''^  accident  implied,  constructively  or  otherwise,  as  in 
in  EngUnd.      jiq  English  Writ  of  summons,  when  issued  to  one  having  no 
right  to  be  summoned,  as  in  the  remarkable  cases  of  the  Ba- 
ronies of  Strange  and  Clifford, — to  sustain,  or  eke  out  Lord 
Erskine's  sweeping  principle  ;^  while  it  has  been  resolved,  in 
the  Scottish  instance  of  Lindores  in  1793,'  that  the  long  tfi»- 
VotingatPeer-  disputed  cxercisc  of  voting  at  Peerage  Elections  by  an  undue 
age  Elections,  party,  who  bore  a  Peerage,  in  which  he  had  always  been  re- 
ens  no  ciahinfto  a  cognised,  thus  qua  Peer»  to  make  an  elective  Peer,  in  no  way 
Scottish  Peer,  strengthened  or  homologated  the  putative  or  untenable  claim 
in  his  person.   The  doctrine  has  been  fuHy  admitted  ;^  et  nugus 
et  minus  here,  non  variant  spedem.     The  antecedent  tem- 
porary right,  therefore,  though  erroneously,  to  sit  in  the 
House  of  Lords  by  election,  may  be  merely  tantamount,  in 
future,  to  an  isolated  summons,  likewise  upon  faulty  grounds, 
(as  has  frequentiy  happened),  to  one  not  a  Peer,  to  walk  and 
assist,  in  such  character,  at  a  coronation, — the  high  and  equally 
temporary  privilege  accordingly,  being  enjoyed  and  discharg- 
ed, which,  per  «e,^  nay  even  with  repetitions  of  the  same  thing, 
Even  a  tempo-  ^^  ^^^  8^®^  ^^"^  nothing.     Neither,  by  sitting  in  the  House  of 
rary  sitting  of  a  Lords,  docs  a  Scottisb  representative  Peer  become  at  all  an 
tentative  Peer,  English  Peer, — a  character  that  no  longer  exists, — or  proper- 


*  Ut  sup.  p.  106,  &c.  ■  See  p.  779,  and  what  precedes. 
"  In  effect,  as  evident,  in  the  instances  of  Moray  in  1793,  and  in  that, 

still  later,  ofGlencaim  in  1797,  for  which,  see  under  the  respective  claims. 

*  Fur  an  instance  of  tho  kind,  see  pp.  62-8,  including  n. 


IN  SCOTTISH  PEEBAQES^  &CC.  9S7 

ly,  or  fuUy,  a  British.    Though  oDtitled,  for  the  mere  time,  to  <q  uy  «▼«»(» 
especial  rights  and  prerogatives,  he  sits  chiefly  in  a  Scottish  Lonb,  can  draw 
capacity,^  and  certainly,  without  subjecting  thereby,  in  any  ^^^  *' "®  *"°<>- 
way,  his  Scottish  hereditary  rights  and  interests,  to  the  con- after^  expiry 
trol  and  conclusions  of  the  English  law.     On  the  contrary,  ^^^^^  P^Ua- 
instead  of  losing  caste,  not  a  hair  of  his  head  is  singed  in  this 
respect,  by  thus  passing  through  the  upper  chamber  of  the 
nation,  as  is  capable  of  the  utmost  illustration.     The  former 
still  continue  intact,  and  within  the  appropriate  pale  and  rule 
of  the  Scottish  law,  which,  as  has  been  established, — and  what 
is  here  decisive, — rejected  the  notion  of  indelible  identity  of  a 
Peerage  with  the  blood,  though  even  solemnly  constituted 
and  recognised  in  form ;  and  did  not  hold,  as  insuperable  and 
indefeasible,  an  incident,  thus,  of  far  superior  legal  effect  to 
the  fleeting  and  ephemeral  one  in  question, — which,  besides, 
can  as  little  be  contrasted  with  that  in  the  far  weightier  instance 
of  Borthwick. 

It  humbly  strikes  me,  coupled  with  the  relevant  power  of  Th«  unrepealed 
granting  interim  possession  only,  in  doubtful  cases,  &c.  that  dUcuBsing  Peer- 
the  Scottish  form  of  discussing  a  Peerage  claim  was  by  no  ^f  *^^^ w  *^?5' 
means  inadmissible,  namely,  by  the  same  high  Tribunal  who  Tantageoiu. 
had  the  cognizance  in  all  other  civil  rights,'  though  now  sub- 

'  See,  as  to  the  above,  pp.  843-4. 

'  Independently  of  the  various  concurrent,  and,  as  I  conceive,  irre-  Caie   of  the 
sistible  evidence,  I  have  adduced  in  proof  of  this  fact,  (see  Chapters  I.  p*^|f°".  °*1 
II.)y  I  may  add  the  remarkable  precedent  of  the  Earldom  of  Rothes,  in  13^2,  iDTolVinff 
the  reign  of  Charles  II.  which  is  new,  (being  only  lately  discovered  by  Uie  point  of  the 
me,)  and  further  illustrates  our  Peerage  notions,  in  important  particu-  !*"*  ^^j'!^^ 
lars.    That  old  Earldom,  constituted  by  an  unknown  grant,  imme-  peerages, 
diately  after  the  middle  of  the  15  th  century,  has  been  held  to  have 
been  descendible  to  heirs-male,  before  the  time  of  the  celebrated  John 
Duke  of  Rothes,  Chancellor  of  Scotland,  (whose  subsequent  Ducal  dig- 
nity, with  subordinate  oues,  exclusively  limited  by  patent,  dated  29th  of 
May  1680,  to  heirs-male  of  his  body,*  expired  with  him  in  their  default); 
but  the  Duke,  wishing  to  secure  his  Earldom,  and  ancient  titles,  with  Regulating  re- 
the  estates,  to.  his  daughters,  had,  on  the  4th  of  July  1663,  obtained,  f^\  ^^^l' 
upon  his  resignation,  a  charter  of  r^grant  of  the  same,t  to  the  latter,  Rothei  hon- 
(the  eldest  always  succeeding  without  division,  &c.)  and  to  other  heirs^  oon. 

*  Great  Sea)  Register. 

f  Ibid.     It  can  be  proved  to  have  been  under  the  siffm  manual,  by  the  original 
signature,  dated  at  Whitehall,  ttill  extant  in  the  Signet  Office,  Edinburgh. 


988  INQUIRY  INTO  THB  LAW  AND  PRACTICE 

To  the  Lords-- jecty  of  ooufie^  together  widi  all  dvil  quettiims,  to  the  appel- 
_io  ntplJtio  Iftto  jurisdiction  and  review  of  the  Lorda*  The  latter  too 
tbeir  intereits  would  hence  be  placed  in  a  better  situation  from  such  irre* 

which  was  ratified  by  Parliament  in  that  year.*    And,  in  such  eirenm- 
tancesy  after  his  death  in  1681,  the  following  procedure  occurred,  before 
the  Duke  of  York,  the  King's  Commissioner,  and  Priry  Council,  on  the 
2eth  of  January  1682,  as  is  prored  by  the  original  Record  of  Priry  Coun- 
cil, from  which  these  are  excerpts  :— '*  Anent  a  petition  presented  by 
John  Lord  Lindore%  shewing  that  where  the  Petitioner  being  undoubted 
Lord  Lindoret  t  ajr  male  to  the  deceast  Johne  Duke  of  Rothes,  (hy  a  descent  from  the 
the" Wole^he  ^^^^  ^'  Rothes,  after  the  middle  of  the  16th  Century,)  and  by  his 
Privy  Council,  right  of  blood,  hes  Interest  and  the  only  right  to  the  title  and  dignity 
in  the  aboTo  thereof,  which  law'presumes  to  belong  still  to  the  aire  male ;  and  since 
^^^'  nothing  can  be  made  appear  to  the  prejudice  of  the  petittoners  right  to 

the  title  of  Rothes,  and  that  he  cannot  beborred  from  injoying  the  same. 
And  therefore  humbly  supplicating  that  his  Royul  highness^  and  the 
Council,  who  are  only  Judges  competent  in  matters  of  honour,  quoad 
the  possessorie  judgment,  would  declare  that  the  petitioner  maybe  ac- 
knowledged as  Earle  of  Rothes,  and  that  he  may  assume  and  enjoy 
the  said  title^  conforme  to  his  right  of  blood,  and  the  law  and  pratique 
of  this  realme,  and  that  all  other  persones  may  be  discharged  to  assume^ 
or  use  the  said  title  in  time  oomeing ;  which  petitione  being  given  up 
Bat  opposed  by  to  sie  and  answer,  the  CourUest  of  Rothes,  (Lady  Margaret,  eldest 
Margmt,         daughter  and  heiress  of  the  previous  Duke,)  and  the  Earle  of  Had- 
Rother*in  her  ^''^<"'>  (Gharke,)  her  hashandy  did  give  in  the  answers  following 
own  right,  who  thereto,  viz. — ^whereas  the  petition  craves  that  the  Lord  Lindores  may  be 
maintained  the  acknowledged  as  Earle  of  Rothes,  conforme  to  his  right  of  blood,  and 
oTuie^t^^iiBiil  ^^  others  may  be  discharged  to  assume  or  use  the  title  in  time  comein^ 
and  the  eifein-  it  is  answered,  the  desire  of  the  petitione  is  unreasonable,  and  oontrarie 
■Ire  eonipeten->  to  Law,  in  respect  the  deceast  Chancelhr  (the  Duk^  of  RotheiyJ  having 
S  ^c^o^'faT  '^^solved  to  settle  and  provide  his  estate  and  dignitie,  failzieing  heirs- 
the  ttatter,  in  male  of  his  owne  bodie,  to  his  eldest  dochter  without  divisione^  shd 
ordinaty  form,  marrjring  a  nobleman,  or  gentleman  of  the  surname  of  Lesley,  at  the 
least,  who  should  use  &c.  the  said  surname,  &c. — he  did  make  fe«g- 
natlone  of  his  dignity  and  estate  in  favoures  of  himself,  and  the  aires 
male  of  his  owne  body,  whitk  fdUxeingy  to  his  eldest  do^tery  &c.  where- 
upon there  was  a  signature  obtained  from  his  sacred  Majestic  (intcaiods 
thereof,)  and  wherein  his  Majestie  promises  to  cause  ratify  the  ssme 
in  his  first  Parliament,  and  accordingly  there  is  a  charter  past  under 
the  great  scall,  &c. — in  maner  foirsaid,  and  which  charter  and  infefl- 
ment  thereupon  is  ratified  by  Parliament  anno  1663,  &c. — hy  which  it 
is  clear  and  evident  that  the  Htk  and  dignity  and  estate  of  Rothee  doee 
belong  to  the  present  Countee  o/Bothety  eldest  daughter  to  ihe  said  lord 
chancellor,  &c. — and  that  the  Lord  Lindores  hes  no  colour  or  pretence 

*  See  Aetfl,  last  Edit.  tol.  Yll.  p.  618. 


IN  SCOTTISH  PBEBAQES»  &C.  9S9 

tocabte  right  in  them, — thaii  merely  accidentally  at  present,  and  pMragACWe; 
tfarongb  the  mutable  breath  and  pleasure  (as  it  may  be)  of^^^Jlj^Jl^^ 
the  crown.     It  has,  moreover,  the  higher  advantage  of  far  to  a  proper  and 

of  right  to  the  same  as  aire  male,  in  respect  of  the  foresaid  resignation^ 
charter  under  the  great  seal,  and  ratification  in  parliament,  whk^  can- 
iroT  be  drawen  in  fttestian  before  the  Lards  of  his  Majesties  Privg  Oeun-' 
eU^  and  are  certainely  not  questionable  in  law,  but  consonant  to  the  i/n- 
eontrocerted  law  and  customs  of  the  kingdome^  and  if  the  Lord  Lindores 
think  it  worth  his  trouble  to  persew  any  declaratour  of  his  right  to  the 
title  and  dignitie  of  the  estate  of  Rothes,  it  is  only  competent  be/ore  the 
JtmoB  OaniHAJLB,  (certainly  the  Session,)  upon  citation  of  all  parties 
having  interest,  at  which  time  it  will  be  sufficiently  made  appear  the 
Lord  Lindores  wa  have  no  i«etence  of  right,  and  it  were  certainly 
most  absurd,  both  in  this  caice,  and  in  many  other  caices  of  noble  fiimi- 
lics  of  the  kingdome  to  imagine  that  parties  making  resignationes  of  Legal  effect  of 
their  titles  and  estate,  and  obtaining  grants  thereof  from  his  Maiestie,  *  resignation, 
with  ane  nowdamtts  in  fEtvoures  of  ther  ares  of  line,  or  eldest  daughter,  hon<m^^  that 
it  is  iMi<  to  invalid*  ane  legal  settlement  and  conveyance  of  the  estate centary. 
and  dignity, — that  is  the  unoentroverted  law  and  custome  of  the  king- 
dome,  and  hes  bene  observed  and  practised  in  the  case  of  many  other 
noble  fiomilies,  and  is  absolutely  necessar  for  the  continuance  preserva- 
tive of  the  splendor  of  noble  families,  that  the  estate  and  dignitie  should 
mae  be  separat,  (or)  should  be  swfnmarHy  dratoen  in  question  by  a  peti^ 
a&m  before  the  Lords  of  privy  Counsdly  and  who,  with  all  possible  de* 
ferenoe,  and  respect  to  them,  wiU  certanely  find  themselves  hot  osmpe-' 
teat  to  the  validity,  or  invalidity  of  heritable  rights,  which,  so  long 
as  they  stand  unreduced,  can  be  the  only  warrand  for  parties  to  use 
and  assume  the  said  title  and  dignity.    And  as  to  that  pretence,  that 
the  Lords  of  Privy  Councell  are  competent  Judges  in  matter  of  honour,  Alluiion  to  dis- 
and  to  the  possessory  part,  it  is  answered,  this  pretence  is  mrwARBAins  tinctive  eogniz- 
ABLE,  and  Hloes  not  at  all  meet  or  ocmoem  the  eaoe,  because  here  is  p|!^  ^Council 
no  injury  or  afiront  offered  to  any  mans  honour,  which  were  propper  to  whom   this 
to  be  redressed  by  the  Lords  of  Privy  Council ;  but  the  Countes  of  Rothes  ™^tor  of  i>on- 
hes  right  to  use  and  assume  her  fathers  title  and  dignitie,  which  is  u  "to   PvIU- 
ezpresslie  provided  to  her  by  graunts,  under  his  Majesties  Boyai  hand^  ment,)  wai 
duly  past  the  great  seall  and  ratified  in  Parliament,  so  as  it  were  ane  ^b^Ry  incom- 
invasioune  both  upon  her  right  and  possessione  to  invert  or  prejudge  the  ^  *°  * 
samin  ;  in  respect  whereof,  etc."    And  how,  it  may  be  asked,  do  the  The     PtItj 
Privy  Council  here  act  ?  They  forthwith,  de  piano,  without  any  demur  Co"ncn   would 
far  a  moment,  quite  in  unison  with  the  Countess's  just  argument,  and  buttn!rtontn*7e> 
what  I  have  all  along  maintained, — ^^  doe  remit  the  said  mater  in  de-  fer  the  parties, 

*  Probably  an  accidental  mistake,  instead  of,  in  sabttance,  validly,  to  operate 
as  a  legal  settlement,  &c. — which,  at  least,  must  be  akin  to  the  sense. 


940  INQUIRY  INTO  THfi  LAW  AND  PRACTICE 

moM  matured  more  matured  preparation,  especially  through  the  previous 
doding^thena'  filing  of  important  Scottish  matters  of  fact,  with  much 
tarai  objections,  greater  Certainty  and  precision,  by  means  of  Scottish  heads, 

a*  Bhewn,  to  the        ,  ...  ,  ii»  i»  i« 

later  Bystem,  and  practical  experience,  through  the  immediate  and  best 
theE***rh^°"  sources  withal, — in  this  way  precluding  the  likely  Englbh 
misconception  and  error  in  these  particulars,  with  consequent 
crudeness  and  fluctuation  in  judgmentSy  (pt  which  our  practice 
must  be  the  basis,)  that,  I  conceive,  has  been  strikingly  illus* 
trated.^  Such  are  by  no  means  uncommon  in  the  present 
system,  which  may  have  unduly  shut  out  the  older  with  us, 
that  has  not  been  repealed.  At  the  same  time,  the  undue  ef- 
fects of  Scottish  partiality  and  private  influence  below,  the 
bane  and  too  often  disgrace  of  our  procedure  before  the  Union, 
and  ev^n  after,  would  still  be  checked  and  obviated  by  the 
wholesome  review  and  final  judgment  of  the  upper  Tribunal, 
who  profess  to  be  guided  and  ruled  by  our  law,  and  doubtless 
would  fairly  be  so,  if  it  was  accurately  chalked  out,  and  sub- 
mitted to  them,  as  by  the  above  method,  in  the  leading  facts 
and  essentials. 

according  to  the  bate  to  the  Lordf  of  Sbssion,  to  be  didcast  by  them,  at  acoosdbs  of  the 

BumenTto  th"  ^^^>"  * — ^7  '^^^^  obTiously  in  the  ordinary  coarse.    The  teehnieal 

ordinary  and     meaning  of  ^*  remit,'*  or  ^' refer,"  besides,  as  merely  handing  over  a 

esublithed  Ju-  case  to  the  ordinary  established  judicatory,  was  formerly  exemplified 

honourt,"!*"     and  proved,  (see  pp.  37-8-9.)    There  is  here  again  no  aUnsion  what- 

namely/  the     ^^^r  to  King  or  Parliament  in  such  capacity,  who,  by  asmmption  of  a 

Coart  of  Se«-  very  recent  English  authority,  as  I  have  experienced,  had  alone  in  Soot- 

'^°'  land — and  there/ore,  we  mttst  admit — the  constant  Peerage  eogniz- 

ance  I    Certain  claimants  to  Peerages,  like  Lord  Lindores,  owing  to  the 

natural  love  of  original  hereditary  right  in  the  Duke  of  York,  the 

Commissioner  mentioned,  afterwards  James  II. — ^were  induced,  in  his 

time,  to  make  untenable  and  irregular  claims  of  the  kind,  in  the  hope 

of  his  arbitrary  interposition  and  countenance,  but  without  success. 

The  right  of  I  need  hardly  add, — ^the  Rothes  case  being  so  Terj  clear, — that  the 

Counteta  Mar-  noble  petitioner,  in  1682,  wisely  took  Countess  Margaret's  hint,  and 

RoSies^^on-*  ^*^  ^^^  "  think  it  worth  his  trouble  "  to  move  further  in  this  question 

ours,  indiiput-  of  the  honours,  (at  least  so  far  as  I  can  find),  which  have  ever  vested,  as 

*hle.  they  still  legally  do,  in  her  direct  descendants  and  heirs-general. 

'  This  also  may  be  a  result  from  the  mutable  and  fluctuating  compo- 
sition of  the  Committee  of  Privileges  of  the  Lords,  in  the  discussion  of 
Peerage  claims. 

*  From  the  original  Register,  as  stated,  of  Priry  Council,  in  her  Majesty's  Ge- 
neral Register  House. 


IN  SCOTTISH  PEERAOfiS,  icC  941 

It  may  be  further  argued,  that,  with  a  similar  view,  the  The    SootUsb 
English  Judges  are  often  consulted  by  the  Lords  in  material  J^m  ^  comuU- 
English  Peerage  points ; — why,  then,  ought  not  also  the  Scot-  ed,  and  with 
tish,  indeed,  a  fortiori^  in  those  affecting  Scottish  Peerages,  fl[en^'^han^e 
especially  when  so  much  in  unison,  and  quadrating  in  their  na-^"«'^**»"°^"** 
ture  with  our  system,  frequently  so  adverse  to  the  English,    sea. 

Our  own  evidence,  far  from  being  actually  compromised  by  Oor  own  eti- 
the  oecasiofuil  loose,  anomalous,  and  contradictory  relative  goyero,  iocind- 
procedure  since  the  Union,*  as  has  been  unfolded,  should  **!«  *®°*™* "'" 
likewise  consistently  govern.     In  respect  to  general  services, 
the  inapplication,  as  we  may,  upon  the  whole,  allow,  with  us,  of 
prescription  to  honours^  must  yet,  so  Jar ^  check  their  abuse, 
as  evinced  by  certain   instances  in   our   days,' — independ- 
ently of  the  competency  of  their  future  reduction  by  those 
having  an  interest  within  the  statutory  term  of  prescription. 
I  am  still  well  aware  of  some  nicety  and  difficulty  which  Some  nicety 
arises  on  the  subject,  from  the  later  distinction,  and  contrari-  |hJ^  alfflsrence 
ety,  in  services,  between  Peerage  rights  and  those  at  common  by  the  law  be- 
law, — thus  subjecting  the  same  matter  of  pedigree,  possibly  ^l^^onTin^^' 
hereafter  so  important,  and  having  every  bearing,  to  different  sa<»^Mion  in 
and  discordant  tests, — that  is  even  further  rivetted,  rather  in- 
congruently,  by  a  very  recent  case  that  has  been  adverted  to.^ 
This  might  again  lead  me  into  some  detail,  and,  after  all,  the 
best  remedy  might  be  by  the  interposition  of  legislature, 
here,  as  well  as  in  other  Peerage  points.     But  I  cannot  fairly  An  old  general 

lerrice  mav  cer* 

see  what  is  to  preclude  an  old  general  service  at  least,  in  any  tainiy  be  tery 
case  of  pedigree,  even  affecting  honours,  presumptively  good'J*'*"'***^'  •^*' 

Q9DCOe 

on  the  merits,  in  form,  and  in  procedure,  especially  upon  a 
record  of  due  authorities,  as  we  often  find,  hitherto  undisput* 
ed  withal — though  not  carrying  lands — to  be  admissible  in  evi- 
dence.   While  it  ought  to  be  fully  so,  according  to  our  law,  it 

*  See,  mider  the  case  of  Rutherford,  pp.  906-7-8,  913-14-15,  &c. 

■  I  must  always  however  here,  state  my  regret  that  our  old  form  of  al-  Our  old  practice 
lowing  individualSy  without  a  competing  brief,  even  on  an  indirect  in-  l°p**i^**!J[^f  "to 
terest,  to  oppose  at  a  general  service,  has  been  exploded  ; — why,  on  a  that  in  a  Peer- 
similar  occasion,  on  the  discussion  of  a  Peerage  claim  in  limine^  involv-  age  claim. 
log  a  matter  of  pedigree,  the  Lords,  in  unison  with  the  same,  do  allow 
^  any  person  *'  to  '*  oppose,'*    See  Cruise  on  Dig.  p.  259. 

'  See  pp.  916-17,  &c. 


942         INQUI&Y  INTO  THB  LAW  ANP  PRACTICE 

was,  invariably,  in  a  striking  manner,  viewed  in  the  same  light 
by  the  Lords,  in  cases  of  Scottish  Peerage,  subsequent  to  the 
Union,  and  for  a  long  period, — ^indeed  even  down  to  our  day. 
Yet,  nevertheless,  as  has  been  fairly  seen,  by  the  instance  of 
P*Jp^»«  -°h  ^**^*^®^®'^  ^  ^®39,  and  before,  a  most  strange  contradiction 
Lords'  practioe  has  here  lately  arisen,  placing  general  services  in  the  most 
*" '®'P®*^".°  ^*"  anomalous,  and  irreconcilable  8ituation,-4na8much  as  by  the 
that  are  some-  Houso  of  Peers  such  servico  o/oite  has  been  received,  on  manjf 
received'  °but  occasious,  as  perfectly  good,  and  probative  of  material  facts, 
at  others  not,  although,  ou  another,  under  far  stronger  and  apparently  irre* 
circumstances,  sistiblo  clrcumstancos,  as  is  conceived,  it  has  been  utteriy  dis- 
^|*^*^^°®^^"carded  in  a^twpfc,  confessed,  recent  point, — and  viewed  tii 
some  strict  and  toto  but  ss  a  dead  letter.^     While  I  am  much  mistaken,  if 
certain  rule,      ^j^  proof  may  not  be  superior  to  what,  by  Englidi  pracUce, 
— ^which  once  highly  prized  the  former,^ — is  not  infrequently 
recognised,'  at  least  admitted  de  bene  esse^  it  is  extremely 
to  be  desired  that  some  uniform  and  established  law  should 
be  here  laid  down  and  adhered  to ;  for,  as  things  stand,  I  may 
defy  any  one  to  say,  how  we  are  to  estimate  a  general  ser- 
vice, of  any  age,  in  Peerages — ^whethcr  again,  as  every  thhag, 
according  to  rule,  most  justifiably,^ — or  e  cosverao,  as  nothing. 


*  See  pp.  906-7-8,  and  what  precedes.  '  Cruise  on  Dig.  p.  273> 

*  See  p.  833y  n.  6.  With  respect  to  evidence,  by  an  insertion  in  a 
imi^tion  aN  family  Bible,  so  greatly  relied  on  in  England,  it  is  remarkable,  that 
tempted  by  an  such  being  adduced  in  the  recent  case  of  Lawrie  v.  Mercer,  May  28, 
insertion  in  a  1840,  to  prove  the  birth  and  age  of  a  female  witness  upwards  of  forty, 
evidence^rattc^^  —from  whence  a  material  conclusion  was  attempted  to  be  drawn, — 
relied  on  in  actually  turned  out  to  have  been  written  hy  henel/^  only  eight  or  nine 
England.          years  before ;  and,  according  to  the  interlocutor  of  the  Lord  Ordinary, 

the  14th  of  May  1839,  was  further  for  the  purpose  of  iniquitously  bol- 
stering up  a  fabricated  story,  or  "  mere  invention,^  to  assist  the  party, 
pursuer,  which,  he  pointedly  added,  only  made  **  the  matter  wone.'* 
(Printed  papers  in  the  case.)    For  Monumental  Inscriptions,  see  after. 
Proof  of  the  re-     '  Further,  in  palpable  contradiction  of  the  doctrine  inculcated  in  tho 
ception  of  ge-  Rutherford  case,  (see  pp.  905,  etseq.)  wholly  rejecting  general  services, 
by  our  latest  ^  '^^^  ^^^^  ^  ^^^  recent  procedure  in  the  still  pending  Marchmont 
law—in  direct  claim  in  1838,  when  various  general  services  were  received  without 
thiu*?n  uTe  Ru-  *^P^»  ^^  evidence,— including  two,  in  1726,  and  1740— and  actually 
therford  daim.'  ^^  ^^  ^"^^^^    (^^  Minutes  of  Evidence  for  that  year,  pp.  151-2,  and 
pp.  66-7-8.)    Nay,  subsequently  still  here,  m  1830,  the  year  of  the 
Rutherford  decision,  a  general  service,  even  sohteaa  1790,  was  equally 


IN  S00TTI8H  PBEBAOBSy  &C.  943 

General  servicea^  however  soBtained  by  the  Session,  in  fcro  General  servi- 
coniradictoriOf  (a  case  not  contemplated  by  English  authori*  ^®'*  '°  /°7 
ties,)  of  which  we  hare  seyeral  examples,  must  always  great-  not  contempuV 
ly  weigh,  I  suspect,  under  any  system ;  and  I  may  only  con-  fherford***ca«^r 
dude  as  to  Evidence  with  remarking,  in  conformity  to  enligh-  &c.  mast  always 
tened  authorities,  elsewhere  at  least,  that  it  must  ever  at  the  ^^^  ' 
same  time  be  somewhat  flexible  and  flitting  in  its  import^*-o  wing  The  same  En- 
to  circumstances, — alternately  varying  and  shifting  in  its  hues  i^^tfferent  cir/ 
and  a>mplexion,  like  those  of  the  dolphin,  which  it  may  be  far  camstances. 
from  easy  invariiibly  to  catch  or  define.   Independently,  there- 
fore, of  the  prudent  consideration,  that  omnis  definitio  in  lege 
periculosa  eatj^  the  broad  uncompromising  enunciation  recent- 
ly risked  as  to  general  services,  by  Lord  Brougham,  may  not 
even,  in  this  latter  view,  be  properly  warranted — not  alluding 
to  the  inanifestcontradiction  it  even  receives  from  his  Lordship.' 

The  Scottish  law  of  Forfeiture,   since  the  noted  Act  of  The    Scottish 
Queen  Anne,  though  thereby  identified  with  the  English,  as  {j^  te^e^^wen 
repeatedly  observed,  bag  been  liberally  administered — even  administered. 
with  reference  to  our  notions,  and  proved  a  boon.     By  our 
law  of  succession  in  honours,  hitherto  unrepealed, — to  which 
important  topic  I  next  come, — there  was,  I  conceive,  as  I  have 
demonstrated^ — and  could  still  do  so,  further,  a  strong  bias, 
and  unequivocal  presumption  in  favour  of  female  heirs.    This 
was  extremely  natural,   owing  to  the  parallel    established 
provision  in  other  heritable  succesaions,  with  which  honours 
have  been  classed,  where  they  were  preferred  vijuria^  especi- 
ally including  the  Crown,^  that  could  not  fail  to  be  a  rule ; 
but  here,  on  the  other  hand,  I  maintain  the  "  shoe  does  pinch,"  Bot  oar  law  of 
for  our  law,  in  this  respect,  has  been  most  unduly  tamper-  p^^*^°  ^ 
ed   with,   and  perverted. — Instead  of  such  confessed  prin- been  tampered 

admitted,  proyiug  the  male  descent  of  the  clannaiit*s  father  centuries 
badty  but,  especially,  as  in  the  Rutherford  case,  to  establish  a  recent  and 
mare  difficuH  exHnctkm.  (See  Min.  of  Evid.  for  1899,  pp.  340-1.) 
By  the  bye,  in  corrohoration  of  my  idea  of  •*  Monumental  Inscriptions** 
at  p.  834,  n.  see  Miss  Sinclah^s  **  Shetland,"  pp.  97—136.—"  SepuU 
ehrai  Hes^  according  to  Pope. 

'  This  may  also  apply  to  another  English  authority,  repeatedly  no- 
ticed ;  see  p.  832.  •  See  pp.  906-7. 

'  Originally ;  and  as  solemnly  and  justly  found  at  the  eomp^ition 
between  Bruce  and  Baliol. 


944  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

with ,  and  sig-  ^jpie  being  Still  allowed  its  natural,  or  any  weight,  Lords  Mans- 
by  Lord!  Mans-  field  and  Rosslyn,  of  themselves,  have  arbitrarily  and  un- 
fyn^  who^ore  chivalrously  enacted,  that  in  aU  cases  where  there  is  want  of 
here  enacted  a  direct,  undisputablc  evidence  of  the  limitations  of  a  dignity, 

tmou"iwT?rre'^°^^^^^^^  ^^  ^^®  Constitution  or  patent,  (bating 

letant  law  of  the  plain,  irresistible  specialty  in  the  Sutherland  instance,  and 
that  ought  to  have  ruled  equally  in  that  of  Moray) — the  colla- 
teral circumstances  being  neutral,  nay  even  when  palpably 
inclining  in  favour  of  heirs-female — there  is  room  only  for 
heirs-ma/e  of  the  body — who  must  exclusively  take  in  these 
emergencies  I  Of  a  truth,  we  may  here  justly  exclaim,  in  re- 
spect to  such  strange  enactment : — 

**  Quis  novus  hie  nostris  accessit  sedibus  hospea  f*         I 

For  it  is  every  way  a  novelty,  and  the  mere  offspring  of  their 
own  legalized  creation.  And  as  if  withal  distrustful,  as  they 
might  well  be,  of  support  or  countenance  to  this  futile  violent 
conclusion  and  conceit,  from  our  apposite  law  and  practice, 
they  lamely  seek  to  prop  and  colour  it  by  secondary  irrelevant 
considerations.  Because — in  the  first  place,  it  seems,  in  the 
gross,  through  patents^^  withal  in  later  times — more  Peerages 
have  been  granted  to  heirs-male,  than  to  heirs-female,' — ^from 
whence  therefore  it  must  follow  that  there  is  the  exclusive  pre- 
ference in  question.  This,  at  the  same  time,  however,  that 
there  are,  at  present, — rather  a  rebutter^  indeed, — in  virtue 
of  our  various  Peerage  grants,  a  far  larger  class  of  heirs- 
female  to  dignities,  than  of  heirs-male,^  independently,  as  has 

'  Patents,  I  need  hardly  observe,  arbitrarily  fixing  the  descent  of  an 
honour,  though  in  numerous  instances  likewiie  in  favour  of  heirs- 
female,  are  not  a  proper  criterion.  It  is  our  succession  that  must  here 
weigh,  when  left  to  common  law. 

'  See  Lord  Mansfield's  speech  in  the  Cassilis  case,  in  1762,  op.  Mr. 
Maidment's  Pub.  pp.  4d-40,  (he  here,  however,  grossly  exaggerate!  and 
misrepresents  the  matter,  for  which  see  pp.  565-6,669,  570  of  this  work,) 
and  his  Lordship's  speech  in  the  Suth.  case  in  1771,  Mr.  Maidment's 
Pub.  p.  13.  I  need  not  add,  that  Lord  Rosslyn  espoused  and  adopted 
Lord  Mansfield's  doctrine,  and  even  went  beyond  it  as  to  the  male  suc- 
•  cession,  as  was  strikingly  illustrated  in  the  Moray  instance. 

'  With  respect  to  our  Dukedoms  alone,  innumerable  existing  heirs- 
female  take  under  the  Ducal  patents  of  Hamilton,  Buccleugh,  Queens- 


IN  SCOTTISH  PEERAGES,  &C.  945 

been  instructed,  of  the  constant  devolution  of  all  our  older  ^  The  two  pre- 
to  heirs-general,  besides  the  later  female  descents, — is  at  (hey*  seek  to 
best  but  rtt5^7Ciii»  judicium  numero.  won  pondere.  the  prior  ofP'^P^'*'""*''^** 

-.  ,  ,,''  _  ,1,1  trary  presump. 

which  tests  has  been  contemned,  nay  reprobated  by  lawyers,  tion  ofibedes- 
and  cannot  in  the  abstract^  that  is,  as  regards  the  mere  quan-  ^"^^  l/oilT' of 
tity,  be  confided  in  ;*  while  the  latter,  the  proper  relevant  test,  the  body,  in 
evidently  in  this  alternative,  decisively  applies  in  behalf  of  gy^^'jJnje'naUc, 
the  heirs-female.   This,  I  maintain,  upon  Jthe  superior  intrinsic  •"^  irreUyant. 
weight  of  the  authorities  and  precedents,  articulately,  in  their 
instance,  which  in  every  sense  preponderates,  and  strikes  the 
scale  in  their  favour, — preposterous  and  absurd,  moreover,  as 
it  would  be  to  allow  such,  in  the  face  of  ascertained  law,  to  be 
compromised,  or  affected,  as  above,  by  the  subaltern  consider- 
ation objected,  even  admitting  it  as  contended. 

And  secondly,  the  preceding  legal  dignitaries  would  fain 
ground  their  visionary  and  fallacious  doctrine  upon  motives 
of  expediency^  because,  under  the  law  opposed  to  them,  the 
Peerage  would  necessarily  be  increased,  and  less  likely  to  be 
restricted,  (which,  it  seems,  is  most  desirable,)  in  virtue  of  the 
broader  presumed  descent  to  ''heirs-general,"  that  would  come 
into  play.'  They  here,  like  certain  modern  exclusives,  not 
of  the  most  ancient  extract,  would  wish  to  curtail  the  privilege 
of  their  coterie,  as  much  as  possible.  But  this  strange  illo-  That  grounded 
gical  and  inconclusive  argument, — for  such  consequence  again,  expedfen^cyrta 
can  still  less  justly  defeat  the  law  impugned,  if  well  founded, —  be  recurred  to. 

berry,  and  Montrose,  (as  was  there  at  least  intended,  see  pp.  200-1  ),yar 
more  than  male ;  and  the  Duke  of  Roxburgh  likewise  is  an  heir-female. 
*  When  there  were  no  patents ;  see  pp.  561-2-8-4,  et  teq, 
■  Of  the  strain  of  this  argument  by  numero,  it  might  be  well  said, 
with  Horace,  in  the  parallel  case  of  Lucilius, — **  cuin  ^ueret  lutulentus, 
erat  quod  tollere  velles,'^ — the  surpassing  number  of  the  two  hundred 
vapid,  or  mongrel  verses  at  most,  upon  which  the  poet,  in  tlio  same 
way,  founded,  nay  composed  "stans  pede  in  tino," — in  reality,  not 
amounting  pondere,  or  in  true  intrinsic  weight,  or  merit,  to  one  John- 
sonian, or  Byronian  ; — though  Lord  Mansfield  here,  may  be  said  not 
even  to  have  a  leg  to  stand  upon. 

'  See  Lord  Mansfield's  speech  in  Suth.  case,  ut  sup.  pp.  13, 14, 18, 87. 
Lord  Ilardwicke,  who,  how^ever,  took  his  cue  from  the  former,  the 
principal  speaker,  and  director  in  the  Cassilis  ca^e,  there  also  enter tain- 

oil  the  same  argument.    See  Mr.  Maidment's  Cassilis  Pub.  p,  57. 

o  o 


946  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

wiH  be  specially  recurred  to  in  the  sequel,  so  far  as  the  con- 
sideration  of  expediency  is  concerned,  which  may  properly  suf- 
fice on  this  head. 
TheaboTe>!e.  A  natural,  though  most  grievous  consequence  withal,  of 
tioror'lar.'hai  "  Lords  Mausfield's  and  Rosslyn's  law,"—- as  theirs  in  question 
plunged  our  hasbecu  (contemptuously) branded, — is,  thatithas  plunged  our 
sion  into  coo-  Peerage  descent,  in  certain  instances — which  they  ought  fully 
tradictioD,  con-|.Q  l^^y^Q  foreseen  and  weighed — into  contradiction,  perplexity, 
piexity.  and  anarchy.     It  will  not  be  denied  that  the  heir-male  of  the 

body  of  the  Abernethies,  the  first  Lords  of  Salton,  the  origi- 
nal limitation  of  whose  ancient  dignity  is  unknown,^  in  virtue 
of  the  previous  doctrine,  has  an  undoubted  right  to  the  same,' 
and  that  the  House  of  Peers,  (there  having  been  no  resigna- 
tion,^ owing  to  their  repeated  recognition  and  adoption  of  the 
above  law  in  multiplied  instances,  cannot  be  warranted  to  re- 
fuse the  Peerage  to  such  heir-male,  who  is  positively  affirmed 
to  exist,  in  the  event  of  his  claiming.  What  then  may  be  the 
This  signally  in-  cousequence  ?  This  cicluai  Barony  having  also  been  effectual- 
^f  the  Ba-  ^7  recogniscd  in,  and  duly  held,  on  the  other  hand,  by  the 


case 


rony  of  Walton,  P|.|^^f 3  ^f  Phillorth,  as  heirs:/%mofe, — agreeably  to  our  law, 

besides  that  of  i        »-i      i.  i  »  .  ./.••«>  a    » 

Moray,  in  1793.  nay,  cveu  to  the  bnglish, — at,  and  ever  smce  1670,*  there 
will  then,  in  no  unlikely  event,  be  two  Lord  SaUons^  clearly 
entitled  by  the  respective,  though  conflicting  laws,  to  the  iden- 
tical Peerage,  with  the  identiail  precedence,  and  identical 

^  It  was  as  little,  at  least,  in  the  reign  of  Charles  II. ;  nor  did  the 
honour  previously  diverge  to  an  heir-female,  in  exclusion  of  the  heir- 
male — ^both  characters  having  been  transmitted  through  the  same  takers. 

■  See  pp.  184-5,  et  seq, 

'  See  the  case  of  the  Marquisate  of  Queensberry  &c.  in  181 2,  before 
the  Lords,  pp.  608-9,  and  p.  875,  n.  4,  than  which  the  present  is  strong- 
er, it  involving  but  a  single  abstract  title,  having  no  possible  connec- 
tion, or  having  been  enjoyed  at  the  same  time,  previously, — as  in  the 
Queensberry  instance, — with  another,  under  the  identical  designation, 
though  of  a  higher  grade,  in  the  Peerage,  and  differently  descendible. 

*  See  p.  185.  As  shewn,  however,  the  recognition  in  the  circum- 
stances being  qualified,  and  in  conformity  to  the  legal  rights  in  the 
individual,  really  does  not  make  the  case  a  whit  stronger,  than  it  be- 
fore intrinsically  was.  There  was  further,  a  reservation  of  the  rights  of 
third  parties.  (Ibid,  and  p.  186.)  Common  authorities  likewise,  repre- 
sent the  dignity  in  the  Frasers,  "in  right  of"  their ywwafo  descent. 
See,  inter  alia,  Nisbet*s  Heraldry,  Edit.  1722,  vol.  I.  p.  288. 


IN  SCOTTISH  PKERAQES,  &a  947 

rights  and  privileges !     Such  consummatioii,  in  no  view  to  be 
defended,  whatever  may  elsewhere  obtain,!  is  at  variance  with 
our  notions,  and  indeed  plain  common  sense,  proceeding  upon 
grounds  wholly  incompatible    and  irreconcilable  with  each 
other.    Nay,  it  involves  not  only  the  most  palpable  legal,  logi- 
cal absurdity,  but  an  utter  impossibility ; — while  the  same  in- 
extricable anomaly  in  fact,  from  two  inveterately  hostile  and  re- 
pugnant rules  coming  equally  into  play,  as  has  been  exposed 
in  the  extraordinary  case  of  Moray   in  1793,^  would  un- 
doubtedly recur  ;  all  in  consequence,  I  repeat,  of  the  temerity, 
incompetence,  and  presumption  of  legal  dignitaries,  who  have 
hastily  resolved,  without  common  examination  into  our  proper 
law  and  practice,  or  been  at  all  aware  of  this  important  Salton 
precedent  in  1670,  and  thereafter,  to  which  tiiey  never  ad- 
verts   But  further  still,  the  same  extraordinary  law,  under 

'  As  in  England,  in  the  cases  of  the  Baronies  of  Strange  and  Clif- 
ford, which  we,  like  most,  I  believe,  do  not  precisely  understand. 

'  See  pp.  780-1,  et  seq,  &c. 

'  In  the  Maxwell  of  Pollok  charter-chest,  a  considerable  magazine 

of  old  writs,  and  interesting  documents,  both  historical  (including  the 

valuable  Pollok  Chronicle,  lately  printed,)  and  private,  &c.  we  find 

some  curious  cotemporary  information  as  to  the  state  of  the  noble  and 

ancient  family  of  the  Abernethies,  Lords  Salton,  in  1666,  and  1669. 

There  is,  especially,  a  letter,  9th  of  March  1669,  by  Lady  Salton,  New  and  origi- 

mother  of  Alexander  Lord  Salton,  their  laBt  immediate  heir-male,  to  "*\  P*'!**'"**" 

as  to   the   old 

Sir  George  Maxw.ell  of  Pollok,  wherein  she  states,  that  Alexander  Fraser  Family,    and 
of  Phillorth,  (eventually  the  heir-female,  and  Lord  Salton  in  1670,  honoan  of  Sal- 
as  in  the  text,)  had  then  summoned  her  **  dochter," — ^who  is  hardly  ^°°' 
knowDy  and  must  have  speedily  died, — **  to  enter  heir  to  hir  brother,** 
the  above  Lord,  in  order  evidently  to  denude  in  fJEivour  of  creditors  ;  and 
further,  that  Alexander  Abemethy  of  Auchcloich,  now  the  heir-male, 
(see  pp.  187-8,)  had,  with  Phillorth,  taken  "an  unworthie  perte 
against  his  cheifcy*  (her  eon  J  ;  which  "  treacherous  dealing,"  she  adds, 
*^  hastened  his  death,  most  sad  to  me  his  mother,"  &c    During  the 
embarrassed  and  shipwrecked  state  of  the  family,  there  were,  naturally, 
secret  intriguing,  and  interference  oi friends  to  promote  certain  ends. 
It  transpires  too,  from  an  "  Information,"  that  this  ruined  Lord  had  An    asserted 
made  "ane  dispositioun  of  his  honour  e**  to  Arthur  Forbes,  a  stranger,  conveyance  ^of 
(see  p.  187,  «.  1.)  which  had  been  ready — he  taking  the  name  and  arms  ^®   ^*^ip''  *° 
of  Salton,  &c.    Qt<ery,  is  the  latter  extant,  or  recorded?    It  perhaps  i„  n,e  igj^'ccn. 
had  not  been  duly  executed,  or  valid  ;  but,  at  any  rate,  was  hitherto  tary. 
unknown.  But  there  was  no  such  conveyance  of  the  honours  in  faronr 


948  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Bat  farther,  it,  tbis  head,  though  instituted  and  enforced  by  a  Chief  Justice, 
independently  ^ijjj  tjjg  concoinitant  flagrant  error,  and  evil,  as  above,  has 

has  cloaked  and  ^ 

perpetrated  ma- cloaked  and  perpetrated  manifest  tnjustice*     Charles  Doug- 
nifest  injustice,  j^^  hcir-male  of  the  body  (alone)  of  James,  first  Lord  Mord- 

This  instanced  .^,.  .,  ^i«i.  i_ 

in  the  case  of  mgton,  bcmg  arraigned,  as  a  commoner,  for  high  treason,  be- 
ihe  Barony  of  f^j.^  ^  Commission  of  Oyer  and  Terminer  at  Carlisle,  in  Sep- 

Mordmgton   in  •'  ^  .  .       T 

1746,  and  sub-  tomber  1746,  in  consequence  of  his  concern  in  the  rebellion  in 
sequen  y.  1745^  pleaded,  in  barof  the  indictment,  his  privilege  of  Peerage, 
under  a  pretended  right  to  the  Barony  of  Mordington ;  in  or- 
der thereby,  through  the  consequent  misnomer,  and  incompe- 
tency of  the  tribunal,  to  stave  off,  or  defeat  the  prosecution. 
There  existed  at  the  time,  however,  preferable  heirs-general 
and  of  line,  namely,  Mary,  and  Cambelina,  his  cousins,  the  sole 
issue  of  George,  last  Lord  Mordington,  the  undoubted  heir  and 
holder  of  the  dignity,  being  both  heir-general,  as  well  asJieir- 
male  of  the  body  of  the  first  Lord  ;>  so  that  the  constitution 
of  the  Barony  in  1640,  with  the  limitation,  being  then  unaddu- 
ced  and  unknown,  there,  of  course,  arose  the  material  question, 
directly  involving  the  validity  of  the  indictment,  yea  or  nay, — 
that  precisely  at  issue,  which  of  the  former,  the  heir-male,  or  the 
heir-female,  was  thereto  entitled?'   And  the  result  will  be  seen 

of  Fraser  of  Phillorth,  or  of  Abemethy  of  Auchincloich,  though  at  one 
time  also  meditated  as  to  Abemethy,  (see  p.  188),  so  that  the  material 
question  of  the  dignity,  at  least  as  affects  them,  remained  as  before,  at 
common  law,  to  the  former  as  direct  heir-female,  and  to  the  latter  as 
direct  heir-male.    The  preceding  Lady  Salton,  in  her  deep  domestic 
distress,  applies  to  the  above  Sir  Greorge  Maxwell,  her  relative,  as  she 
states,  through  the  Stewarts  of  Ardgowan,  for  his  aid  and  advice,  that 
was  duly  and  benevolently  given,  ~in  which  distinguished  representa- 
tive of  his  family,  we  recognise  the  same  worth  and  honour  that 
characterize  his  heirs  in  modern  times. 
Grow  errors   f      *  ^^^  Peerage  writers,  Douglas  and  Wood,  (whom,  however,  some 
our  Peerage     English  lawyers,  not  to  add  solicitors,  depend  upon  as  authorities,) 
writers.  have,  after  their  very  frequent  fashion,  grossly  mistaken,  and  misrepre- 

sented the  Mordington  pedigi*ee,  (see  Douglas,  pp.  487-8,  and  Wood, 
vol.  II.  p.  263,)  making  Charles,  the  criminal,  actually  brother,  and 
thus  every  way  preferable  heir  to  the  ladies  mentioned.  They  might 
even  have  learned  the  true  state  of  things,  as  in  the  text,  from  a  very 
ordinary  and  patent  authority,  the  "  Scots  f  Peerage j  Compendium*^ 
for  1756,  (if  not  also  before,  and  thereafter,)  under  the  article  of  Mord- 
ington, at  pp.  414-15,  which  has  given  the  descent  accurately. 
*  Of  course,  we  have  no  abbeyance  here. 


IN  SCOTTISH  PEERAGES,  &iC.  949 

by  this  excerpt  from  an  original  opinion  of  Lord  Mansfield,  now 
before  me,  dated  3i8t  of  March  1755,  taken  with  what  fol- 
lows. '^  The  like  reasoning,  (his  noticed,  in  behalf  of  the  de- 
scent of  an  honour  in  such  conceived  emergency,  only  to 
heirs-male  of  the  body,)  was  given  way  to  by  all  the  Lawyers 
of  the  crowfij  in  the  case  of  an  heir  male  (  Charles  Douglas)  of 
the  Family  of  Mordington,  claiming  the  Titie^  who  was  indict- 
ed for  high  treason  (as  above)  at  Carlisle,  tho'  the  last  Lord 
had  certainly  left  daughters^  in  favour  of  whose  right  opinions 
had  been  given/'  It  would  thence  appear,  even  by  Lord  Lawyers  in  1745 
Mansfield's  admission,  that  there  were  then  legal  deniers  of  M,^J^id^,d^^ 
his  doctrine ;  but,  in  consequence  of  this  opinion,  as  stated,  trine. 
of  the  crown  lawyers,  including  Lord  Mansfield,  who  was  of 
the  number — indisputably — and  as  we  learn  by  all  cotem- 
porary  accounts,  the  proceedings  were  necessarily  sisted, 
owing  to  the  ^^ reasoning**  in  question,  and  Charles  Douglas,  the 
criminal,  was  so  lucky  as  at  length  to  escape  with  impunity.^ 
Upon  this  notable  preference  of  him,  qua  Peer,  through  the 
adoption  of  his  own  law,  (that  under  discussion,)  his  Lord- 
ship above  all,  triumphantly,  and  acutely  founds,  in  the  opinion 
alluded  to,  in  order  to  repeat  and  enforce  it  likewise  in  a  claim 
to  the  old  Barony  of  Ross  of  Halkhead,  whose  constitution  is 
unknown,  and  as  to  which  he  had  been  consulted.  Now, 
supposing  things  had  remained  in  this  state,  and  that,  at  a  fu- 
ture time,  another  heir-male  of  the  body  had  claimed  the  Mor- 
dington Peerage,  by  petition  and  reference  to  the  Lords,  and 
had  been  opposed,  as  might  be  expected,  by  the  ever  luckless 
faeii:s-female,'  can  there  be  a  doubt  possibly  entertained  as  to 
what  would  have  been  the  issue?  ^  My  Lords,' — the  same  legal  Direct  exposure 

r».^  /       J        t     •    f  J  \  ijt_  'J  -J  of  the  doctrine 

dignitary,  (as  deeply  mformedas  ever,)  would  have  said,  amid  ^nd  reasoning  or 
his  usual  rhetoric, — *  this  is  indeed  a  clear  question,  not  now  open  J*®'***    *^**»»- 
to  be  disputed,  ^^  if  there  be  any  thing  certain  in  the  Law  of  lyn,  in  respect 

'  See  Lord  Hailes's  Suth.  case.  Chap.  VI.  pp.  165,  168,  besides  the 
eotemporay  public  prints,  ^Src.  Among  these,  tlie  Scots  Magazine  for 
1746,  (p.  438,)  explicitly  states  that,  at  the  trial,  Charles  Douglas 
'^pleaded  his  peerage,  as  Lord  Mordington  ;  which  was  allowed,  tho'  at 
first  opposed  by  the  King's  Council." 

'  The  direct  female  line  of  Lord  Greorge,  it  is  to  be  observed,  did  not 
&il  until  towards  the  end  of  last  century. 


960  INQUIRY  INTO  THB  LAW  AND  PRACTICE 

to  their  ftsed  Peerage,  it  is  this  presumption  in  favour  of  the  heir-male  *'  of 
^X'^diUcuZ'  the  body  ;  it  "has  its  foundation  in  law  and  in  truth  ;"  and 
sion,  from  the  further,  I  remember,  that  on  the  prosecution  of  Charles 
precedent.  Douglas  (in  whose  shoes  the  respectable  just  claimant  stands,) 
for  high  treason,  in  1746,  when  he  pleaded  his  Peerage  in  bar 
thereof,  the  matter,  in  his  instance,  was  "  fully  considered." 
And  it  was  solidly  and  truly  determined  by  the  advisers  of 
the  crown,  I  having  then  the  honour  of  being  his  Majesty's 
Solicitor- General,'  that  his  plea  was  just,  he  being  indis- 
putably, qua  heir-male,  Lord  Mordington.  This  then  is  de- 
cisive, "  it  is  not  now  open  to  litigate  this  general  matter  f 
the  honour  here  was  constituted  by  "belting  only,"  after  which 
the  party  ennobled  sat  in  Parliament,  and  his  son  after  him, 
and  it  can  only  descend  to  heirs-male  of  the  body.  In  such 
opinion  I  am  also  confirmed,  because  "  all  questions  concern- 
ing peerages  should  be  settled  upon  the  principles  of  expedi- 
ency." ' — This  is  substantially  the  argument,  and  very  words 
nearly,  tit  toto^  used  in  identical  circumstances,  by  Lords 
Mansfield  and  Rosslyn,  who  both  went  hand  in  hand  in  the 
cases  of  Sutherland  and  Glencaim.'  But  how  egregiously 
Lord  Mansfield  would  here  have  erred — as  he,  moreover,  cer- 
tainly did — together  with  his  legal  coadjutors,  on  the  former 
Mordington  occasion,  is  now  clear  as  noon-day;  for  the  explicit 
limitations  in  the  very  Mordington  patent,  dated  March  10, 
1640,  having  been  ascertained  from  the  legal  adduction, 

^  In  1746,  when  he  so  conspicuously  and  eloquently,  (as  stated,) 
acted  for  the  crown  against  the  rebel  Lords,  including  Lord  Balmerin- 
och  and  Lovat,  and  was  consulted  in  all  such  matters.  See  HoUida/s 
Life  of  Lord  Mansfield,  pp.  65-6,  et  seq. 

'  See  Lord  Mansfield's  speech  in  the  Suth.  case,  Mr.  Maidmenf  s 
Pub.  pp.  9, 11, 13, 18,  &c. — and  p.  681,  n.  of  the  present  work,.  It  is  re- 
markable, however,  that  Lord  Mansfield  was  not  so  very  confident  and 
peremptory  in  his  conclusions,  in  his  opinion  upon  the  Ross  Peerage 
Lord  Munfield  claim,  referred  to,  in  1765,  as  elsewhere.  On  the  contrary,  he  admits,  on 
did  not  always  that  occasion,  that  **  there  is  a  difference  of  opinion  as  to  the  descent  of 
wmT^tion^on  Peerages  created  in  Scotland,  before  letters  patent ;  Mr.  Craigie,  (Presi- 
tbis  head.         dent  of  the  Court  of  Session,  he  adds,)  and  other  great  authorities,  think 
they  descend  to  the  heirs  genertUl**  And  though  he  sides  with  the  heir- 
male,  he  yet  admits,  **  that  there  are  considerable  precedents  the  Mer 
His  contradic-  way,'*  t.  «.  in  &your  of  heirs-.^»iMi/i0.    Why  then,  I  ask,  did  he  not,  as 
tionbcre,  again.  ^  ^^^  ^^^  candid  Judge,  give  some  weight,  at  least  a/tun<fe,->as,  however, 
he  peremptorily  altogether  refused  to  do,— to  the  latter  fiact  ? 


IN  SCOTTISH  PEERAGES,  &C.  951 

(though  now  unknown)  of  the  signature  in  Scotland,  in 
1 730,^  fully  establish  that  the  Peerage,  instead  of  being  re- 
stricted in  any  such  way,  as  was  maintained,  to  heirs-male  ex- 
clusively, e  converso^  had  been  extended  to  *'  ye  heires — be- 
twix  hir  (Anna  Oliphantjj  and  ye  saide  Sir  James  Doug^ 
hu  of  Mordington,  (^st  Lord  Mordington^  the  respective 
Patentees,)  and  yer  heires^'*  &c.  That  is,  unequivocally  to 
heirs-general,  including  females,^ — an  interpretation  further 
conclusively  fixed  by  the  express  tenor  of  the  preamble  and 
context,  and  the  peculiar  relative  circumstances.^  Hence,  as 
there  existed,  both  in  1746,  and  long  afterwards,  the  heirs- 
female  mentioned,  in  conformity,  of  the  body,^  having  thus  the 
sole  and  undoubted  right  to  the  dignity,  in  terms  of  the  patent, 
quite  to  the  exclusion  of  the  heir-male,  who,*  nevertheless,  as 
we  have  seen,  was  illegally  preferred,  not  only,  I  repeat,  is 
manifest  injustice  in  succession,  the  direct  consequence  of 
*^  Lord  Mansfield's  law,"  the  ground  alone  for  such  rash  and 
unadvised  preference,^  but  it  indisputably  happens,  that 
also,  through  it,  the  most  important  ends  of  law  and  justice 
have  been  arbitrarily  and  mischievously  defeated  in  1 746,  in- 
asmuch as  this  visionary,  and  wise  conclusion  of  Charles 
Douglas  being  a  Peer, — which  rank  he  never  held, — was,  not* 
withstanding,  the  sok  pretext,  owing  to  the  misnomer  ingraft- 
ed thereon^  &c.  for  not  insisting  in  his  prosecution ; — whereby, 
there  being,  I  believe,  no  doubt  of  his  guilt,  a  flagrant  criminal 


<  See,  upon  this  head,  and  as  to  the  patent  otherwise,  pp.  179-80-1.  Wise  and  pecu- 
It  is  well  known  that  the  House  of  Lortb,  in  all  Scottish  Peerage  claims,  l»J|J*y.  "•^y**!^ 
call  first  for  the  signature  of  the  patent,  of  which  the  last  is  a  mereLordrin^Feert 
echo,  as  affording  the  best  proof  of  what  is  duly  carried,  and  granted,  age  grants. 
— ^a  most  wise  and  necessary  practice  nnce  the  union  of  the  crowns. 

'  I  need  hardly  here  appeal  to  the  Polwarth  case  in  1835,  not  near- 
ly so  strong  as  the  present. 

»  See  pp.  180-1. 

«  Of  the  nearest  class,  for  it  so  happens  that  there  were  then,  and 
are  still,  many,  though  more  remote,  of  the  body  of  the  patentee. 

*  The  Mordington  constitution  and  limitation  in  1640,  having  been  Great  negli- 
founded  upon  previously  in  1730,  in  the  Lovat  case,  (see  p.  179,  n.)  gence  and  in- 
(whose  result  Lord  Mansfield  knew  and  approved  of),  might  hence  Jererof  L^ord 
have  been  discovered,  in  1746,  among  the  warrants,  after  a  very  ordi-  Mansfield, 
nary  relative  Peerage  investigation,  in  the  most  obvious  quarter. 


952  INQUIRY  INTO  THE  LAW  AND  f RACflCE 

By    '«  Lord    ^^  thus  escaped  a  trial  and  conviction  for  the  most  heinous 
MansfieicTt       ^nd  aggravated  offence  in  the  Calendar !     And  not  only  so, 
criminal,  to  the  but  what  is  more  striking  still,  owing  to  the  law,  and  advice, 
fu'li'ce^^ha"  es-  ^®  ^^V  ^^"^y  co^^cludc,  of  the  Solicitor- General  of  England, 
caped   condign  afterwards  the  Attorney- General,  and  moreover,  Lord  Chief 
whirhhetachief  "^^st^c®*  ^^^  ^^  o/^cio  cxpoundcr  and  champion  of  the  criminal 
Justice,    has    law,' — namely.  Lord  Mansfield  I     Under  his  narrow  and  un- 
'  founded  doctrine,  therefore, — besides  so  carelessly  relied  on, 
and  applied  in  this  instance, — it  thus  happens,  that  an  impostor 
— not  to  add  traitor — may  be  wholly  preferred,  while  the  just 
and  righteous  heir  altogether  excluded.     Even  too,  though 
a  Peerage  had  been  erroneously  awarded  to  an  heir-general, 
upon  the  female  principle,  and  that,  presujnptively,  by  common 
law,  instead  of  to  the  heir-male,  necessarily  in  the  first  instance, 
still  such  utter  injustice  could  not  have  been  perpetrated ;  for 
even  then  the  cherished  heir-male  would  have  been  included, 
instead  of  being  wholly  excluded,  as  above. 
Unauthorized        Again  ;  the  Barony  of  Elphinstone,  another  old  dignity, — 
^ffht"aiio  in-  ^^^^^  Original  constitution  and  descent,  early  in  the  16th 
duce,  in  the  century,   has  likewise  hitherto  been  imagined   to  be  unin- 
Barony  of  EI-  structcd, — may  be  held,  whatever  has  been  objected,  to  have 
phinstone.        vested  all  along  in  the  heir-general,  as  it  does  at  present, 
qtui  such,  in  John  Lord  Elphinstone,  though  he  happen,  at  the 
same  time,  to  be  the  lineal  heir-male.     But  supposing  his 
Lordship  (as,  however,  every  one  would  deprecate)  to  leave 
only  female  issue, — there  existing,  as  is  notorious,  distinct 
heirs-male  of  the  body  of  Alexander,  the  first  Lord, — would  not 
the  -dignity,  in  its  present  conceived  state,  in  such  event,  still, 
by  the  fictitious  law  of  Lord  Mansfield,  be  awarded  to   the 
latter,  in  exclusion  of  the  former  ?     It  infallibly  would.     But 
here,  as  before,  most  irrelevantly ; — for  I  have  discovered,  in 
the  Elphinstone  charter-chest,  legal  proof  of  the  real  con- 
stitution of  the  Barony,  through  a  relative  registration,  in  a  co- 
temporary  Exchequer  Roll,  by  which  it  is  established,  e  con* 
ira,  as  in  the  preceding  case,  to  be  legally  descendible  to  heirs* 
general.     The  registration  in  question  bears  that  '*  nunc — 
apud  Edinburgh,  vicesimo  secundo  die  mensis  augustiy  anno 

'  As  is  well  kiiowD,  Lord  Mansfield  held  all  these  situations. 


IN  SCOTTISH  PEERAGES,  &C.  953 

domini  quingefUesimo  decimo  {IblO) — Dominus  Rex  (James  original" eti- 
IV.)  IN  creatione  dicti  Alexandri  (described  in  another  place  *'®°®®  ^^  }^^. 

'  V  Vfc        creation  of  this 

as  ^'  Alexander  Dominus  Elphinstone  "  )  in  Dominum  Par^  dignity,  and  ne- 

liamentii  tempore  baptismatis  sui  filii  Arthuri^^  ^^°^®^^^^ ?n "rtue*^even"of 
subscriptas  terras  dicto  Alexandra^  et  Elizabet  Berlay  ejus  Lord  Rossiyn's 

a     .  ia*j**.»  •        i.'      a.  x.       j«i.       *    ±.       •      admisMon    and 

sponse,'  et  eorum  alteri  diutius  viventi,  et  heredtbus  inter  ip-  doctrine 
BOS  legitime  procreatisseu  procreandis,  quibus  deficientibus, 
Reg],  et  suis  successoribus  libere  revertendas,  in  feodo,  et  he- 
reditate  imperpetuum,  viz.  terras  dominicales  de  Kildrummy, 
le  new,  Wester  Clovay,  auld  auchindore — Dorsky,*  &c.  &c. 
in  Comitatu  de  Mar,"  with  the  keeping  of  the  royal  Castle  of 
Kildrummy,  its  principal  messuage,  &c.  all  crown  property .^ 
Of  the  female  descent  here,  necessarily  of  the  dignity  like- 
wise, there  can  be  no  doubt ;  for  even  Lord  Rosslyn — the  an- 
tagonist of  female  succession — as  has  been  seen,  under  the 
Glencaim  claim,  is  forced  to  allow  that  such  limitation  of  lands. 


*  He  was  elder  brother  of  James  V.  but  died  in  infancy. 

'  An  Englishwoman,  said  to  have  attended  Queen  Margaret,  the 
wife  of  the  king,  to  Scotland. 

'  This  material  information  is  transmitted  to  us  in  the  authentic 
shape  of  a  certified  extract  from  the  original  Exchequer  Koll,  under 
the  hands  of  the  celebrated  Sir  John  Skene,  Clerk  Register,  and  keeper 
of  the  Public  Records,  in  the  reign  of  James  VI.    The  reason  of  such 
especial  registration  in  the  Roll,  (as  at  the  same  time  transpires,)  was  to 
prove  that  the  lands,  having  been  thus  absolutely  transferred  to  a  sub- 
ject, ceased,  as  before,  to  be  royal  property,  and  to  be  so  accounted  for 
by  the  Auditors  of  Exchequer  to  the  king,  through  a  rent  that  Lord 
Alexander,  the  disponee,  ^c^been  previously  bound,  as  a  kind  of  lessee, 
to  pay  for  them, — but  which,  in  consequence  of  his  new  full,  and  lu- 
crative grant,  is  now  discharged.  The  extensive  lands,  feudally  bestow- 
ed, formed  a  valuable  portion  of  the  Earldom  of  Marr,  then  in  the 
crown,  of  which  the  old  stately  Castle  of  Kildrummie  was  the  prin- 
cipal messuage.    They  continued  for  more  than  a  century,  afterwards, 
in  the  Ephinstoues,  being  their  most  important  possession,  and  by  the 
loss  of  which,  in  1626,  (see  p.  134^)  they  became  greatly  depressed,  and 
deteriorated,  in  their  circumstances,  as  can  be  proved,  scriptOy  hy  their 
own  admission.    As  was  formerly  stated,  (Und,)  they  were  even  styl- 
ed Xofidt  Kildrummie  in  1621,  and  1624,  apparently  from  its  possession 
by  the  son  and  heir  even,  during  the  father's  lifetime.  From  what  I  have 
premised  in  the  same  place,  (p.  134,)  it  might  follow  that  the/ti// right 
to  Kildrummie  had  been  in  1507,  instead  of  latterly,  as  in  the  text, 
which  supplies  the  earliest  date  of  the  event. 


954  INQUIRT  INTO  THE  LAW  AND  PRACllCE 

thus  heritably  and  broadly  given  at  the  stune  time^  with  the 
honour^  for  its  evident  and  better  support,  actually  as  in  the 
Glencaim  patent  in  1488,  which  is  essentially  in  pari  casUf^ 
moreover  ascertains  and  instructs  the  descent  of  the  latter,' 
in  this  instance  indisputably  '*  heredibus  inter  ipsos^*  (the  en* 
nobledparties)i  or  to  heirs-general,  certainly  after  the  late  PoU 
warth  decision.^    The  form  of  constitution,  therefore,  besides, 
similar  to  that  of  the  Barony  of  Hamilton  in  1445,^  obviously 
evinces,  in  marked  opposition  to  Lords  Rosslyn  and  Mans- 
field, the  continuance  still  of  the  territorial  notion.     It  af- 
fords me  pleasure  to  be  thus  instrumental  in  legally  proving 
the  constitution,  on  an  important  and  interesting  occasion, 
(such  as  we  have  lately  had),  of  the  Elphinstone  Barony,  with 
a  more  comprehensive  descent,  constructively,  than  would 
otherwise  be  held  or  presumed  in  the  case  of  this  distinguish- 
ed and  well-allied  iiamily.     And,  in  the  great  dearth,  as  is  no- 
torious, of  our  old  Peerage  grants  and  constitutions,  any  acces- 
The  pretext  of  sion,  like  the  present,  may  be  material.    Lord  Mansfield,  and 
^ch*^rds**^  Lord  Rosslyn,  in  eflTect  with  him,  are  further  driven,  as  was 
Mansfield  and  stated,  to  prop  their  peculiar  hallucination,  by  the  plea  of  ex- 
their  ^aw^in^  pedtency;  but  still,  holding  it,  even  in  the  abstract,  to  aid  them, 
question,  and  j,j  ^^y  ^^y^ — which  it  might  be  difScult  to  establish, — expe- 
to  apply  in    diency  may  not  be  law,  much  less  under  their  rule  and  di- 

fnd'mOTt  *dwi^'®^^^^'^5  *°^  ^^^7  Were  not  entitled,  I  conceive,  after  this 
gerous doctrine,  method  and  pretext,  to  tamper  with,  nay  even  to  annul,  as 
they  have  done,  that  which  existed.  Lord  Mansfield  indeed 
carried  the  notion  so  far,  as  to  maintain  that  "  it  is  of  import- 
ance that  all  questions  concerning  peerages  should  be  settled 
upon  the  principles  of  expediency  y*  besides  law, '  calling  thus 
its  sovereign  authority  into  play  in  every  Peerage  particular, 
— a  loose,  and  most  dangerous  doctrine  certainly,  as  must  strike 
every  one,  and  worthy  of  the  alleged  or  suspected  friend  of 
the  Stewarts.  Under  the  general  dominion  of  such  mutable 
and  always  indefinite  test,  according  to  the  conflicting  impres- 

*  See  pp.  819-20.  '  See  p.  823,  n.  6. 
'  See  pp.  673-^  et  seq. 

*  See  Acts  of  Pari,  last  Edit.  vol.  II.  p.^9. 

*  See  his  speech  in  the  Sutherland  case,  Mr.  Mftidment's  Pub. 
p.  IB. 


IN  SCOTTISH  PEEBA0E8,  &C.  956 

sions  and  wayward  caprices  of  men,^  however  acceptable  and 
conyenient  to  such,  as  we  have  seen,  indisposed  thoroughly  to 
investigate  into  fact  and  precedent,  and  unable  to  meet  and 
grapple  with  serious  legal  objections, — ^what  law  could  ever 
stand,  and  would  not  thereby  be  subjected,  in  ordinary  course, 
to  vacillation,  abuse,  and  perversion, — to  suit,  in  short,  any 
purpose;  nay  what  it  actually,  in  the  present  instance,  has  sus- 
tained from  his  Lordship  ?  It  might  introduce  strange  des- 
potism, and  anarchy  into  our  judicial  system,  where  fixed 
law  and  precedent  should,  above  all,  rule.  At  the  beginning  la  France,  nn^ 
of  last  century,  there  were  authorities  in  France,  who,  like  ***'™  *  ,^!^ 

» '  '  '  emergency  as  to 

Lords  Mansfield  and  Rosslyn,  wished,  from  whatever  motive,  succession  in 
probably  from  Salick  influences,  quite ^ret^  to  us,  to  apply  ye^,^''different 
a  new  restricted  construction,  in  an  analogous  case,  to  the  ^ojin%  was  pro- 

1 1-    -^     •       •     T>  t     .  P«"y  pursned. 

general  limitation  in  Peerage  grants,  "  a  ses  hoirs,  et  succes- 
seurs  et  ayant  cause,"  or  "  to  heirs  and  assignees,"  as  it  has 
been  rendered,  which  do  in  law,  abstractly  and  presumptively, 
include  heirs-female.  Here  then  was  a  parallel  case  with 
ours,  though  the  latter  may  still  more,  through  the  agency, 
again,  of  common  law,  and  not  by  a  limitation,  as  above,  in- 
volve the  female  succession.  But  did  the  Parliament,  the  higher 
legal  courts,  or  legal  dignitaries, — and,  as  is  notorious,  nowhere 
has  the  subject  of  ** Fairies"  honours,  ennobled  fiefs,  their 
constitution,  nature,  and  peculiarities  of  descents,  &c.  been 
more  studied,  or  more  elaborately  treated,  through  means  of 
the  best  illustration,  than  in  France,' — take  it  upon  themselves, 

*  As  they  might  think  better,  and  preferable,  for  there  is  no  other  Sach  pretext  of 
check,  under  favour  of  their  own  bent,  and  partial  notion  ;  which  **  legal  digirf- 
ratioy  or  motive,  is  well  excepted  to  by  Sir  John  Nisbet,  in  his  Deci-  ^  condemned 
sions  in  1666,  (see  p.  12,)  as  ''  not  nomen  juris^  and  law/'  he  adds,  by  Nisbef»  who 
**  ought  to  be  uniform^  and  not  Lesbia  regula  piyable^  and  variable,  upon  »<J*>ero»  to  ■*"«* 
pretences  of  fiivourable,  or  not  favourable.'*    In  proof  too  of  the  mark-    ^    °°®' 
ed  and  apprehended  consequence  in  the  text,  the  same  authority 
shrewdly  remarks,  "  ubi  antem  Lex  aut  regula  deest,  sibi  homines  Lex 
sunt,  ut  ait  Apostolus,  sensu  muUum  divert,'*    Doubts,  p.  65.    In  op- 
position to  Lords  Mansfield  and  Rosslyn,  as  would  seem,  Burnet, 
his  cotemporary,  transmits  that  Nisbet,  besides  being  of  **  great  integ- 
rity,— always  stood  firm  to  the  iatr,"  never  indulging  himself  with  "  ex- 
pediency."   See  his  Hist.  vol.  I.  p.  279. 

'  Independently  of  the  known  French  writers,  and  authorities  in 
these  subjects,  including  the  higher  dignified  fiefs,  chivalry,  heraldry, 
&ۥ  the  various  CoutumierSf  (especially  of  Normandy ^ J  Chartularies, 


• 


r ' 


956  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

though  far  more  capable  intelligently,  of  doing  so, — on  any 
ground,  or  upon  the  flimsy,  or  illusory  pretext  of  expediency, 
to  interfere  in  the  matter  ?  No, — knowing  it  to  be  beyond 
^  their  sphere  and  control,  owing  to  the  existing  law,  in  a  simi* 
lar  way  as  in  the  Scottish  case,  they  deferred,  in  this  respect, 
The  crown,  the  to  the  proper  and  paramount  authority, — to  that  of  the  crown, 

Aor™*therere-^^^  ^^^^  Specially  and  relevantly  interposed.  And  accord- 
levantiy  settled  ingly,  Lewis  the  Fourteenth  himself  effected  the  alteration 
ma  en.  .^  question,  by  the  celebrated  edict  of  Marly,  given  in  May 

1711,  and  registered  in  Parliament  the  21st  of  that  month,  in 
these  terms,  '*  Que  les  termes  generaux  d'hoirs,  successeurs, 
et  ayans  causes,  qui  sont  dans  les  Lettres  d' erection  {pfdigni" 
tiei)^  ne  seront  entendus  que  des  males  descendus  de  celui,  en 
faveur  duquel  I'erection  aura  ete  faite."^    It  will  not  be  denied 


Chronicles,  &c.  in  such  abundance,  the  splendid  *^  PreuveSy*  even  to  the 
large  Histories  of  the  Houses  of  Auvergne,  Montmorency,  Brittainy, 
Lorrain,  and  Barr,  with  many  more,  not  forgetting  Flanders  and  Sa- 
voy, so  much  connected  with  France,  supply  a  mass  of  valuable  rela- 
tive evidence,  in  the  shape  of  authentic  records  and  deeds  of  all  kinds, 
which  I  have  sometimes  even  found  also,  curiously  elucidatory  in  cer- 
tain Scottish  details,  public  and  private.  What  they  thus  contribute, 
sparkle  like  unique  gems,  amid  the  dearth  and  darkness  that  en- 
shrouds us  in  these  respects,  owing  chiefly  to  the  havoc  and  des- 
truction  of  our  numeroue  cathedrals,  and  religious  houses,  &c.  by  the 
Knoxite  fury  at  the  Reformation,  the  approved  and  preferable  recep- 
tacles, as  formerly  noticed,  (see  pp.  240-1-2,)  of  the  best  and  most  im- 
portant records,  and  muniments  of  the  kind, — ^nay  even  exclusively  in- 
volving civil  rights.  Registrations  of  Scottish  deeds  in  the  church 
courts,  which  sat  in  these  edifices,  and  had  the  sole  consistorial  cogniz- 
ance, besides  various  others,  now  consolidated  with  the  Session,  were 
deemed  better  and  safer  than  in  the  laick.  Our  truculent  Reformation^ 
amid  its  advantages— occasioned  the  above  evil,  from  which  Popish  coun- 
tries, singularly  enough,  are  exempt,  indeed  almost  all  others,  England 
for  instance,  to  such  extreme  and  deplorable  exteut. 

'  The  Edict,  containing  other  ordinances  respecting  honours,  their 
attendant  rights  and  privileges,  &c.  will  be  found,  independently  of 
elsewhere,  in  L'Etat  de  la  France,  Edit.  1727,  vol.  III.  pp.  112-13-14. 
There  is  also  one,  (ibid,  J  by  which  clauses  ^*  en  faveur  des  femellcs,  ne 
seront  entondues  que  de  celle  qui  descendra,  et  sera  de  la  maisonj  et  du 
nom  de  celui,  en  £aveur  duquel  Les  Lettres,  (derection)  auront  ete  ac- 
cordeds."  The  last  paramount  arrangement,  would  exclude,  with  us, 
the  descent  of  the  crown,  as  stated,  (see  p.  854<5,)  to  the  Houseof  Dam- 


IN  SCOTTISH  PEERAGES,  &C.  957 

that,  in  England  especially ,  the  crown  is  the  fountiun  of  honours,  The  crown  with 
and  authorizes  and  rules  their  descent  ;^  and  hence,  if  Lords  ?••  "*«?***  *^f 

nave  to  acted  in 

Mansfield  and  Rosslyn  did  not  approve  of  the  previously  es-  the  question  at 
tablished  Scottish  presumption  and  practice  in  dignities,  in  fa-  "olJJperat^bn^^f 
vour  of  heirs-female,  and  desired  here,  (as  was  the  fact)  in  like  Parliaments, 
manner,  the  above  corresponding  alteration,  they  ought  to  Mansfield  and 
have  been  more  modest,   and  less  engrossing  in  their  pro-^^^Jy"*?"^***® 

-  .  ,       -  .111      Lords,  who  so 

cedure,   mstead  of  at   once  arrogating  to  themselves  the  far  were  incom- 
right  of  making  a  new  law,«  through  mere  «  favourable"  or  «  un-  Ji^J^i^h"^  ri"„'^! 
favourable"  considerations.     They  ought,  in  such  emergency,  pie,  here  adopt- 
to  have  paused ;  and,  through  medium  of  a  regular  report,  to  ^    "  *""*' 
which  they  were  competent,  in  name  of  the  Peers,  have  eli- 
cited the  attention  of  the  Sovereign  to  the  matter,  and  hum- 
bly represented  and  petitioned  that  the  qualification  and  change 
in  question  should  be  legalized.     This,  besides,  was  the  more 
necessary  and  relevant,  because  it  was  only  by  a  reference  from 
him,  to  them,  for  their  mere  advice  and  information,  not  broad- 
ly for  their  unrestricted  decision,  through  claims  to  the  crown, 
at  the  outset,  involving  the  point  at  issue,  that  the  Lords 
came  to  have  a  breath  in  the  discussion.^  Cruise  pointedly,  on 

ley.  Query^  did  Lord  Mansfield  first  get  the  inkling,  or  notion  of  his 
restricted  mode  of  descent,  in  question,  though  most  incompetently  en- 
forced, from  the  above  edict?  If  heirs-male,  simply,  be  construed,  as 
they  have  been,  equivalently  to  heirs-male-general,  so  must  **  heirs," 
or  *'  heirs-female," — that  occur  in  our  patents,  as  equivalent  to  heirs- 
general,— to  limit  which  last,  was  thus  the  object  too  of  the  edict 
referred  to.  .-.       .  * 

'  See  further,  immediately,  as  to  this,  under  n.  3. 

■  It  is  rather  amusing,  with  reverence  he  it  spoken,  to  observe  the  Undue  assamp- 
laognage  of  these  personages,  in  their  speeches  on  Peerage  occasions,  {J,^"jjj®.*.  * 
such  as  exclusively  taking  it  upon  them  to  ''pen  the  decision,**  to  ^'settle  in  the  case  of 
fV  and  the  law,  as  if  all  depended  upon  them,  and  without  alhiding  to  l^*eerages. 
the  Peers  at  large, — ^not  upon  the  Sovereign,  whose  confirmation  was 
essential, and  who  could  at  once  disregard  and  reject  their  notions,  and 
order  a  new  discussion  elsewhere.    See  Cruise  on  Dig.  pp.  305-6.  on  the  English 

'  "  The  resolutions  of  the  house  of  Peers,  in  claims  to  dignities,  upon  principle,    the 
areference  from  the  crown,  are  merely  for  the  purpose  of  information, —  ''°^^»  .<^*"  on'y 
nor  can  they  be  considered  as  Judgments,  in  any  sense  of  the  word."  ^'J®^  butnot^de- 
Cruise,  ut  sup»  p.  298.    He  specially  adds,  that  the  crown  ''  is  clearly  cide,  the  entire 
not  bound  by  them, — the  supreme  jurisdiction  in  peerage  cases  is,  and  l^*®*'*^   ^^V*' 
has  ever  been  deemed,  part  of  the  prerogative  of  the  crown,"  (ibid. J  pronce*.  being 
And  again,  he  says,  '*  But  still  resolutions  of  this  latter  kind,  (by  the  in  the  crown. 


958  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Their  eoining  this  head,  inculcates  that  their  proceedrng,  in  1694,  ^^  respect- 
the  narrow  law  j^g  |^jjg  descent  of  Baronies  by  writ,"  (deciding,  or  resolving 
Scottish  Peer-  that  the  extinction  of  all  the  other  daughters  and  co-heiresses 
fac^^i^UMadmed  ^^^^^  ^°  abbeyancc,  saving  the  issue  of  one,  terminated  it,) 
by  EngUsh  au-  «  was  irregular."     And  why  ?  just  for  the  reason,  I  maintain, 
on  y  an     w.  ^^^  .^  ^^^  ultra  vires  of  the  noble  parties,  and  that  they  thus 
cannot  act,  or  make  law.^     It  cannot  be  disputed,  that  this 
case,  again  involving  the  descent  of  honours,  where  there  was 
no  patent,  is  precisely  such  a  one  as  we  are  considering,  only 
that  the  matter  there,  had  been  fixed,  as  I  hold,  by  our  common 
law,  which  makes  it  stronger.  Neither,  in  the  previous  alterna- 
tive, and  step,  submitted  and  recommended, — ^if  in  accordance 
with  the  general  wish, — can  it  reasonably  be  entertained,  that 
the  crown, — with  the  consent,  however,  of  Parliament^  which 
was  more  especially  demanded,  owing  to  the  necessary  infrac- 
tion of  an  Article  of  Union,  by  such  partial  alteration,  in  the 
above  manner,  of  our  former  law, — which  is  thereby  generally 
reserved  and  protected, — would  have  been  much  disposed  to 
refuse  the  entreaty,  especially,  inter  cUia^  after  the  striking 
identical  precedent  of  Athole  in  1715,  and  1733.' 

Lords),  are  not  final  and  conclusive ;  for  the  king^  in  whom  i^e  entire 
jurisdiction  over  dignities  is  placed,  may  refer  the  case  again  to  the 
house  of  peers,  or  elsewhere;  and  may  ultimately  act  according  to  his 
own  discretion^  (like  Lewis  the  Fourteenth,  see  p.  d56,)  in  assenting  or 
not  to  their  resolutions,"  &c.  Ubid,  pp.  305-6.    The  same  doctrine  of  the 
king  being  the  fountain  of  honour,  is  illustrated  in  Scotland,  in  the  in- 
stance of  Oliphant,  (see  pp.  17 — 178,  n.  5,  and  more  especially  Dune's 
Difference    in  Report  of  the  case,  Decis.  pp.  685-6,)  though  differently  from  in  Eng- 
one  respect,  be-  land,  the  cognizance  of  legaUy  construing,  or  generally  deciding  upon 
IWi^Md     ^^'  ^^®  nature  and  descent  of  an  honour,  already  constituted,  when  contest- 
original  genuine  6d,  was  by  common  law,  as  has  been  established,  in  the  Session.  Bj  the 
practice  here,    way,  this  case  of  Oliphant,  in  1633,  though  it  involved  a  specialty,  fur- 
ther distinctly  proves  that  our  old  Baronies,  as  in  England,  when  there 
existed  no  heritable  royal  constitution  and  grant,  or  rei  interventus^ 
were  legally  held  to  go  to  heirs-general  wiAfemaley  quite  in  the  face  of 
Lords  Mansfield  and  Bossl3m's  arbitrary  law  and  enactments. 
1  Cruise,  ut  sup.  pp.  196,  299,  et  seq,  and  pp.  202-3-4. 
'  See  p.  202.  Here,  in  the  same  way,  in  marked  deviation  to  established 
law,  a  younger  son  was  enabled,  by  act  of  Parliament,  to  succeed  to  the 
ducal  honours  of  Athole,  though  limited  by  patent  to  their  father,  and 
the  heirs-male  of  his  body,  &c.  in  exclusion  of  the  eldest,  who  then  ex- 
isted, and  indeed  for  an  age  after.    The  inducement  was  the  not-. 


IN  SCOTTISH  PEERAGES,  &C.  959 

Independently  of  this,  it  is  always  desirable  that  every  The  interTcn- 
important  legal  principle,  or  rule,  should  not  be  permitted  to  of  Parliament 
remain  at  all  dubious  or  vacillating,  but  should  be  rested  ^"  ^^®  present 

.  ,  case,  as  well  as 

upon  the  surest  and  most  unequivocal  foundation.  And  I,  in  others,  re- 
dierefore,  might  further  humbly  suggest,  (if  Peerage  matters  p'J^^r^esrpar- 
be  thought  worthy  of  serious  consideration  and  regard,  like  ticuiariy  requi- 
most  departments  of  the  law,  and  of  a  just  and  methodized  ^le.  *° 
system,)  that  the  same  remedy  might  be  resorted  to  and  ap- 
plied, through  the  crown  and  legislature,  in  reference  to  other 
relative  points  that  have  beeu  noticed,  either  controverted,  or 
of  difficulty,  fixing  especially,  as  prudently  and  judiciously  as 
may  be,  what,  as  must  be  evident,  with  us,  is  attended  with 
some  nicety  and  intricacy,'  the  proper  or  relevant  period  when 
the  territorial  period  may  be  held  essentially  to  have  ceased 
in  honours,  and  the  latter,  in  the  same  view,  to  have  become 
personal.  This  subject,  so  little  understood,  and  so  outrage^ 
ously  misrepresented,  and  tampered  with,  by  Lord  Mansfield 
particularly,  if  put  upon  abetter  basis,  even  although  by  some 
arbitrary  and  absolute  enactment,  which  can  solely  be  through 
Parliament,  might  tend,  in  no  small  degree,  to  simplify,  and 
more  satisfactorily  regulate  their  character  and  descent. 
The  same  legal  dignitary  too,  has,  as  unduly,  assigned  extra 
force  to  the  immaterial  adjunct  of  '*  bearing  name,  and  arms,"' 
to  *^  heirs-male,"  and  might  equally,  proprto  arbitrio^  have  tam- 
pered with,  and  perverted  the  other  strange,  uncouth,  or  ano- 
malous concomitants,  and  flexible  terms  in  our  limitations,  re- 
peatedly referred  to,  so  peculiarly  troublesome,  and  often  so  in- 
explicable, and  hence  further  perhaps  requiring  the  ultimate 
remedy  I  have  above  submitted. 

As  things  stand,  in  the  meantime,  however,  he  yet  would  be  But  as  things 
bold  indeed,  to  maintain,  that  the  Lords,  in  fact  now  the  cus-  many  concur^ 
tomarv  interpreters,  enured  to,  and  trammelled,  as  they  have  f'"?  decisions 

'        ,     \  ,  ,  1  .  •      ^  *"     Scottish 

been,  by  the  long  adopted  law, — ^in  so  many  mstances, — as  to  Peerages,  with 

ed  attainder  of  the  latter,  the  unfortunate  Marquis  of  Tullibardin,  in 
1716,  further  concerned  again  in  the  rebellion  in  1745. 

'  Scottish  honours,  I  have  no  hesitation  in  maintaining,  (indeed,  as 
I  have  shewn,)  probably  after  the  French  usage,  continued  fax  longer 
territorial  wi^  us,  than  in  England,  or  is  generally  apprehended. 

•  See  pp.  622-3. 


960  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

*•  Lord  Mans-  Peerages,  whose  constitutions  are  unknown,  and  have  not,  like 

fs^notto'be'ex!^^^^®^'*^^'  previously  diverged  to  heirs-female,  in  exclusion 
pected  that  the  of  heirs-male, — but,  so  far,  dubious  and  undefined,  wouldnow 
alter  It  Tand'this'^®  *^  *''  disposed  to  act  differently,  and  to  enforce  an  oppo- 
must  be  attend-  gite  rule  in  regard  to  such.    Notwithstanding  the  obvious  con- 
age  opinions,     siderations,  and  the  existing  English  practice,  allowing  old 
Baronies  simply  by  writ  of  summons,  as  little  without  any 
words  of  limitation,  and  thus,  in  pari  casu  with  the  former, 
not  to  be  so  fettered,  and  restricted  in  their  descent,  mere- 
ly to  heirs-male  of  the  body,  but  e  converse^  to  go  broadly  to 
heirs-general ;  still  we  may  hold,  that  they  will  never,  in  Scot- 
tish Peerage  claims,  abjure  the  admitted  constTaction  in  ques- 
tion ;^  and  he  might  therefore  be  both  an  unpractised  and  un- 
wary counsel, — whatever  his  own  peculiar  bias  and  notions, 
when  consulted  in  a  case  to  which  the  same  is  favourable,  thus 
Unavoidable     in  the  facc  of,  as  happens,  existing  law  and  authority,  to  deter 

u"i7cottn8ef°in  *  ^^^^^^  fr^™  i^  prosccutiou.  Nay,  it  so  obtains,  that  he  is 
such  emergen-  professionally  bouud  to  tell  him,  that,  in  the  event  of  his  mov- 
^^'  ing,  he  has  every  prospect  of  success.'     The  present  doctrine, 

'  Cruise,  while  he  admits,  as  we  have  seen,  (at  p.  958,)  that  the 
proceedings  of  the  Lords  in  1694,  respecting  the  descent  of  baronies  by 
writ,* was  ^^ irregular^*  yet  lays  stress  upon  their  being  ^'assented  to, 
and  acted  upon,  by  the  crown."  (On  Dig.  p.  299.)  This  may  weigh, 
applicando  Hngula  singulis  ;  and  I  may  here  relevantly  quote  Cruise, 
as  discussions  upon  Peerages  by  the  Lords,  upon  royal  references, 
were  only  by  the  English,  and  not  in  conformity  to  our  law. 
Questionable  '  Fully  aware,  as  I  am,  of  the  latitude  or  abuse,  so  exceptionable, 
and  undue  mode  that  prevailed  with  us,  in  resignations  and  regrants  of  honours,  after 

Sco[t*irh*' Peel-  ^^  ^°*^"  ®^  *^®  crowns,  and  injustice,  after  all,  of  that  mode  of  con- 
age  resigna-  veyancing,  by  which  the  vested  right  of  old  heirs  was  nullified,  I  oon- 
tions.  eeive,  such  procedure  should  be  strictly  weighed,  and  interpretated  in 

legal  practice,  and  that  the  resignation — ^the  lever  of  the  regrant — 
should  be  accompanied  with  all  due  requisites,  be  explicit,  and  abso- 
lute, barring  any  qualifying,  or  perplexing  condition,  rendering  the  state 
of  the  honour  ejcierminis,  hereafter,  fluctuating,  or  anomalous,— or,  as 
has  been  attempted,  in  a  certain  event,  fully  abrogating  the  transac- 
tion. This  seems  both  trifling  with  the  sovereign,  and  the  subject, 
the  highest  in  1aw,~however  valid  the  resignation,  (bating  the  ol)> 
ject,  otherwise,) — may  be  held, — the  procedure,  in  effect,  possibly  resolv- 
ing into  no  procedure.  Hence  I  now  entertain  doubts  whether  the 
contract,  and  procuratory  of  resignation  of  the  Oliphant  dignities  and 
•states,  dated,  I  find,  March  28,  1617,  (and  registered  in  the  books 


•  «     r  _    ■  ~ 


IN  SCOTTISH  PEERAGES,  &C.  061 

however  grounded,  may  be  assimilated  to  that  followed  ex  ne- 
cessitatty  though,  at  the  same  time,  honestly  deprecated,  and 
reprehended  by  Chancellor  Eldon,  owing  to  a  previous  £aulty 
English  decision,  upon  appeal,  in  a  Scottish  case,  that  an  in- 
stitute in  a  Scottish  entail  was  not  an  heir,  and  therefore  (un- 
less described  nominaiimy  or  otherwise)  not  included  by  its  terms 
or  conditions ;  the  first  of  which  propositions  is  capable  of 
such  ample  refutation  by  our  genuine,  and  original  practice. 

of  Council  and  Session,}  warranting  the  subsequent,  (otherwise  just) 
eondnsioii  in  the  Oliphant  matter,  (see  pp.  17>  178,)  con  be  fiurly 
sostained,  owing  exclusively  to  a  specialty  and  condition,  I  have  late- 
ly discovered  there,  to  the  preceding  purport.    In  virtue  thereof,  Laur-  When  the  re- 
ence  Lord  Oliphant,  the  resigner,  at  a  future  period,  can  recal  the  dis-  f^*^7th  ****- 
position  of  his  honours^  &c.  he  makes  to  Patrick  Oliphant  and  the»f,j|t^i,q|,|jified 
heirs-male  of  his  body,  and  void  and  annul  all  for  himself,  or  the  and  voidable  in 
heir-male  of  his  bwly,  by  merely  paying  to  Patrick  40,000  merks ;  in  •  *^°*'"|®"%. 
which  ease,  sucb  dubious  and  anomalous  disponee  is  to  denude  and  signer,  or  his 
restore  the  honours  to  their  ancient  state, — just  as  if  nothing  had  oc-  heirs,  as  is  now 
curred.    This  circumstance,  apparently  not  founded  upon,  seems  to  discovered   to 
have  escaped  the  Session,  in  the  relative  Oliphant  decision,  in  1633, —  ^he  Oliphant  in- 
where  the  Court,  besides,  found  that  honours  could  not  be  in  com- stance  in  1617, 
mereiOy  or  bartered  about, — hence  striking,  it  may  be  held,  at  the  above  v^djwit  f 
arrangement.    (See  Dune's  Decisions,  pp.  685-6.)    The  strange  rever- 
sionary form  in  the  grant  in  question,  no  doubt,  was  adopted  and  act- 
ed upon  in  the  case  of  Lauderdale  in  1667,  and  1675,  (see  pp.  215-16,) 
but  the  heirs-male,  the  eventual  takers,  who  were  thereby  benefited, 
even  excluding  the  intervening  transaction,  would  still  also  have  main- 
tained their  right  unimpaired,  by  the  previous  eonveyances  alone,  that 
then  necessarily  ruled.    By  challenging  the  act  of  reversion,  again, 
the  heirs-female  (ccut)  were  obliged,  against  legal  principle,  partly,  to 
repudiate  the  only  conveyance  in  their  favour,  which  rendered  their 
case  perplexing  and  contradictory.    There  hence  may  not  hero  have 
been  the  best  scope  for  trial  of  the  question ;  and  whether  that  single 
precedent  be  conclusive,  and  such  light,  unceremonious,  and  capricious 
mode  of  dealing  with  honours,  shall  be  judicially  recognised,  remains 
to  be  seen.    If  not,  the  heir-male  of  the  body  of  the  first  Lord  Oli- 
phant— notwithstanding  the  decision  in  1633,  then  not  necessarily 
binding  by  our  law, — ^would  be  entitled  to  the  dignity,  according  to  the 
existing  doctrine  of  the  House  of  Peers, — in  virtue  of  their  construc- 
tive descent  in  such  emergency ;  as  well  as  by  the  stated  confirmation 
in  fiivour  of  the  heir-male,  (see  p.  181,)  who  also  is  to  be  found  ranked  in 
Parliament-,  from  1660  downwards,  by  the  original  precedence.    See 
Acts,  last  Edit.  vol.  YII.  p.  551  ;  and  vol.  YIII.  Append,  pp.  1, 10^  &c 


963  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

in^  the  preced-      I  havo  already  hinted  at  the  propriety  of  a  confirmatory 
othen!  affecting  Parliamentary  enactment  here  also,  (as  recently,  in  the  partial 
our  Peerage  law  change  of  OUT  law  of  evidence,  for  the  English) ;  but  still,  what 
Mnce  the  Union,  is  Satisfactorily  to  be  done  with  the  Janus-faced  Peerage  of 
an/'^^onfirma-  ^^'^^'^^  partaking,  as  has  been  seen,  by  high  authority,  both  of 
tory  Act  of  Par-  a  male  and  female  character,  like  another  Caeneus,  according  to 
abie.*"^  **  *"'"  *^®  equally  ruling  precepts  of  the  two  conflicting  laws,  in  its 
instance,  namely  of  ours,  and  the  British — thanks,  as  before,  to 
Lords  Mansfield  and  Rosslyn,  it  may  be  indeed  difficult  to  pre- 
dicate. At  any  rate  it  maybe  conceded,  in  hoc  staiUy  that  the  law 
of  the  Lords  in  favour  of  heirs-male — even  so  much  at  variance 
with  the  English,  as  exemplified  by  the   enlarged  descent 
of  baronies  by  writ,  to  heirs-general — should  not  be  further 
extended,  but,  on  the  contrary,  should  be  restricted  and  con- 
trolled as  much  as  possible. 

The  preceding  topics  are  what  may  be  more  especially  re- 
curred to,  though  there  are  othersdoubtless,  deserving  attention 
in  the  course  of  this  performance,  from  which  I  am  precluded 
by  my  limits,  and  probably  by  the  patience  of  the  reader.  These 
may  be  weighed,  and,  necessarily,  far  better  resolved  by  him, 
with  additional  suggestions,  &c.  under  the  appropriate  beads. 
The  independent  subject  of  Consistorial  Law,  into  which 
I  have  been  enticed  by  the  way,  may,  I  believe,  be  left  as  it 
is,  without  any  recurrence,  from  its  more  obvious  and  familiar 
import.     As  I  stated  in  the  Preface,  my  sole  object  in  this 
work  is  the  expiscation  of  truth — however  it  may  bear — in 
certain  legal  departments,  that  appear,  upon  the  whole,  to 
have  been  but  inadequately  inquired  into  ;  and  most  happy 
shall  I  be,  if  my  having  merely  noticed,  and  touched  upon 
relative  important  points,  shall  elicit  additional  research  and 
The  topics  in  investigation,  and  promote  the  same  desirable  end.     What- 
whateTer  fSi»  ^^^^  f^s  within  the  province  of  law,  it  may  be  said,  is  de- 
within  the  pro-  serving  of  rigid,  nay  severe  scrutiny  and  comment, — the  only 
deserve  full  dii-  infallible  method  of  advancement  and  amelioration, — else  it 
cussioo   and     g^Qui^  be  at  oucc  held  a  dead  letter,  and  banished  from  its 

scrutiny*    else  ,  ,        ; 

they  should  be  pale ;  and  I  have  little  doubt — which  is  no  small  consolation— 

^*|^^®^  ^^^'^'  that  the  matters  and  topics  in  question  will  continue  to  evoke,  as 

they  have  done,  the  talents  and  assiduity  of  some  of  my  legal 

brethren.    Upon  this  head,  I  may  allude  to  the  contributions 


K- 


IN  SCOTTISH  PEERAGES,  &C.  963 

ot  James  Maidment,  Esq.  Advocate,  to  whose  publications — 
as  has  been  sufficiently  obvious  by  my  references — of  the  judi- 
cial speeches  and  opinions  that  happen  to  be  preserved  in  cer- 
tain Scottish  Peerage  cases,  with  apposite  statements  and  re- 
marks— besides  various  others,  respecting  our  history  and  anti- 
quities, &c.  &c.  the  public  are  much  indebted.     One  great  and 
most  important  object,  inter  alia^  has  been  thus  attained,  of 
bringing  the  public  into  juxtaposition  with,  and  making  them 
fully  aware — of  the  peculiar  doctrines  and  expedients  of  Lords 
Mansfield  and  Rosslyn, — only  hitherto  transpiring  in  MSS.  in 
private  repositories ;  and  hence  inducing  a  fair  test, — and  by 
it,  inevitable  refutation  of  their  numerous  errors  and  here- 
sies.   I  must  further  take  the  liberty  of  mentioning,  with  just 
encomium,  William  TurnbuU,  Esq.  another  learned  member  of 
our  Faculty,  so  ardent  and  persevering  in  the  pursuits  in  ques- 
tion.    What  is  very  remarkable,  he  has  been  the  first  to  re^ 
cover,  in  the  course  of  his  extended  and  successful  researches, 
and  ably,  and  liberally  to  reprint  the  intended  petition  and 
case  in  the  English  Hussey claim  in  1680,^— -that  was  unknown, 
I  believe,  even  to  English  authorities,  who,  with  far  better 
opportunities  than  we  possess,  have  so  zealously  and  intricate- 
ly explored  the  same  field.     And  independently  of  his  full 
Report  of  the  recent  Trial  in  the  matter  of  the  Stirling  Peer- 
age,^ and  other  publications,  he  has  lighted  upon  a  curious  DiteoTery  of  th« 
and  unique  document, — the  original  patent  of  the  English  Ba-^^^^i|^"^ 
rony  of  "  Cleworth,"  or  Clewer,  (near  Windsor,')  quite  un-*«f  ^  abdica- 


'  Edinbuighy  1836.    The  argament  is  professionally  drawn  with  Petition  ami  ar- 
paius  and  learning  for  the  period ;  but  this  claim  to  the  Barony  of  |J*™^°^  '"  ^^o 
Huasey,  (constituted  by  writ  of  summons,  in  the  reign  of  Henry  VIII.)  pefrm  d^m 
on  the  part  of  Molyneux  Disney,  the  heir-general,  in  face  of  a  serious,  in  1680. 
and  outstanding  forfeiture,  appears  not  to  have  been  prosecuted, — 
which,    however,  only  enhances — ^in  consequence  of  the  less  like- 
lihood of  its  transpiring — the  value  of  the  contribution. 

'  Published,  Edinburgh,  1839.  It  has  been  referred  to  at  pp.  343-4- 
6,  in  allusion  to  certain  remarkable  assertions,  and  conclusions  in  the 
relative  discussion,  thus  ably  transmitted  to  us,  that  called  for  com- 
ment, and  refutation. 

'  The  parish  of  Clewer,  or  Cleworth,  is  so  situated,  upon  the 
Thames, — ^the  church  being  dedicated  to  St.  Andrew,  the  tutelary  saint 


964  INQUIRY  INTO  THE  LAW  AND  PRACTICE 

Uon,  of  the  Bn- beard  of  before,  conferred  by  James  11.  of  Oreat  BrilaiOi 
ciewo^^r^to''^*®  7th  of  August,  and  fifth  year  of  his  reign,  (1689,)  as  by  the 
John  Earl  of  date  at  Dublin, — upon  his  distinguished,  though  mi^uided 
^  ^'^  counsellor  and  favourite,  John  Earl,  and  afterwards  titular 

Duke  of  Melfort,  younger  brother  of  his  equally  noted,  and 
unfortunate  Chancellor,  James,  also  titular  Duke  of  Perth. 
It  is  ample,  and  finely  written  on  parchment,  with  the  great 
seal  appended,  still  entire,  being  a  very  different  production 
indeed  from  the  wretched  Huntly  concoction,  formerly  no« 
ticed.^  The  dignity  is  limited  to  Melfort,  identically,  as  his 
previous  Peerage  grants,  preferring,  as  usual,  though  unjust* 
ly,  it  must  be  allowed,  the  heirs-male  of  Uie  body,  by  Eu- 
pheme  Wallace,  his  second  wife,  because  Papists,  to  those  of 
his  first.'  But  the  same  patent  having  passed  subsequent- 
ly to  the  abdication  of  the  royal  granter,  however  perfectly 
valid  it  had  proved,  in  die  ease  of  his  restoration, — had  that 
happened,  must  now  be  unavailing.^    It  is  only  by  such 

of  Scotland,  which  may  have  further  snggested  the  eh<Hoe  of  the  title 
from  that  distingnished  locality. 
>  See  pp.  884-6-6.  •  See  pp.  761-2. 

'  It  was  handsomely  presented  by  Mr.  Turnbull  to  the  existing 
male  Melfort  descendant  of  the  French^  or  Popish  branch,  together 
Corioas  original  with  a  remarkable  original  pardon,  he  had  also  recovered,  by 
PJ«*J«Jy^*"«"  James  II.,  dated  at  Saint  Germain  en.  Lay,  the  2ad  of  June,  the  tenth 
tiie  aame  Earl  7^^  ^f  his  reign,  (1694,)  to  the  above  John  Earl  of  Melfort,  for  high 
of  Melfort,  and  treason,  and  almost  all  crimes.  This  docmnent^  further  valuable  in 
gMit  to  him  by  hig^jy^  g^mg  ^kin  to  that  before,  in  1680,  (see  pp.  216,  n.  1,  iA  9eq.)  in 
the  Dukedom  of  ^^®  ^^^^  ^^  ^^  celebrated  John  Duke  of  Lauderdale ;  and  such  step  may 
Melfort,  &e.  fai  have  been  necessary  to  most  of  our  principal  statesmen.  The  grant  of 
1692.  ^Q  Dukedom  of  Melfort,  &c — as  from  the  original  signature,  having 

the  usual  formalities,  &c.  (I  believe  yet  in  the  possession  of  the  Mel- 
fort &mily,) — is  dated  '*  at  our  Court,  (James  the  SecoruTsJ,  at  the  Cas- 
tle of  Saint  Germains,  this  17th  day  of  Aprill,  new  stile,  1692,  and  of 
our  Reigne  the  eight,"  and  confers  that  dignity,  with  those  of  **  Mar- 
quis of  Forth,  Earle  of  Isla,  and  Bumtizland,  Vioomte  of  Rikerton, 
Lord  Castlemains  and  Galston,"  upon  ^  John  Earle  of  Melfort,  his 
Principall  Secretary  of  State  of  his  Realms  of  Scotland  and  England,— « 
and  the  heirs-male  of  his  own  body,  procreat  betwixt  him,  and  Dame 
Euphemia  Wallace,  which  failing,  to  the  heirs-male  of  his  own  body,  pro- 
creat betwixt  him  and  Dame  Sophia  Londin,  his  first  wife."  The  rela- 
tive patent  is,  thereby,  to  pass  the  great  seal  of  Scotland,  per  salttim^  while 
the  proper  docquet  is  subjoined,  subscribed  by  the  Earl  of  Lauderdale, 


IN  SCOTTISH  PEBKA.GB8,  &CC.  961^ 

laudable  researches,  and  discoveries,  that  the  laeunm  in  our 
records  and  mumments — ^witb  the  attendant  satisCactorjr  illus- 
tration, in  subjects  I  have  attempted  in  this  performance,  can 
be  possibly  remedied  and  compensated  for,..-such  deficiency, 
of  course,  attaching  the  utmost  value  and  inqK>rtance  to  every 
thing  conceivable  of  the  kind, — in  whatever  shape  it  may  pre- 
sent itself.     It  is  to  be  hoped  too,  that  George  H.  Pattison, 
Esq.  Advocate,  will  &vour  the  profession  with  a  Report  of  the 
Marchmont  Peerage  claim,  in  which  he  has  zealously  been 
engaged  as  counsel,  after  it  is  concluded,— which,  judging 
from  its  singular  protraction  hitherto^  it  may  not  be  easy  to 
define — however  the  termination,  by  successful  efforts,  may  be 
nearly  approaching.     The  relative  discussion,  inter  alioj  has 
raised,  and  will  tend  to  illustrate  various  questions  in  evidence, 

Treasurer  Depute,  who  had  also  attached  himself  to  the  abdicated  mo- 
narch.  It  has  therefore  been  subsequent  to  this,  (in  1694,  see  above,) 
that  the  grantee,  though  so  remarkably  exalted  and  honoured,  i^- 
ter  such  fashion,  by  his  royal  master,  has  been  pardoned  for  high  trea- 
son, and  various  offences,  &c.  towards  him.    I  am  not  aware  of  the  Date  of  the 
terms  and  limitation  of  the  grant  of  the  Dukedom  of  Perth,  Marqui-  g^mt  of  the 
sateof  Drummond,  &c  conferred  in  like  form, — ^it  has  been  Mtd,  three  p  !tk^^  ^ 
years  after  that  of  Melfort, — ^upon  the  Earl  of  Perth,  the  Chancellor,  Jamet'  ll/  to 
Melfort's  elder  brother, — ^though  taken  likewise,  as  is  notorious,  both  Chancellor 
by  his  son,  and  lamented  grandson.   Father  Hay,  the  antiquary,  how-  ren«y  unkn*" 
ever,  a  Papist,  and  noted  cotemporary,  transmits,  in  his  MSS.  colleo-  and  diflerently  * 
tions  in  the  Advocates'  Library,  that  the  Chancellor  **  is  become  Gover-  reprewnted. 
nor  to  the  Prince  of  Wales  at  Saint  G^rmains,  and  since  the  decease  of 
King  James  the  seventh,  fin  1701,)  Ihike  of  Perth."    By  original 
documents,  ap.  Macpherson's  History  of  Great  Britain,  this  nobleman 
still  figures  as  Earl  of  Perth  in  1695-6,  but  as ''  Duke  "  of  Perth  in  1704, 
while  his  son  C James  J  is  then  styled  Marquis  of  Drummond.    (See  vol. 
I.  pp.  637,  640,  669,  678.)    The  Melfort  and  Perth  ducal  creations,  al-Both  of  the 
though  invalid,  nevertheless,  gave  the  respective  disponees,  and  their  »bo^«»  m«re|y 
heirs,  rank  and  precedence,  as  actual  Scottish  Dukes,  at  the  French  gave^'^ra^' and 
Court ;  and  indeed,  the  corresponding  titular  denominations,  generally^  precedence,  at 
excepting,  of  course,  in  formal  or  legal  British  acts  and  documents,  ^^«    Fronch 
Ac    I  may  observe  by  the  way,  that  Father  Hay,  above,  while  he  anumers.     * 
praises  Chancellor  Perth — ^what  is  singular  enough  in  him,  detracts  from 
Melfort,  whom  he  represents  as  having  **  undermined  the  very  consti-  Father  Hay's 
tution  of  our  Government,  made  religion  a  step  to  his  ambition,"  and  2*5*°°  ni*** 
as  having  *^  endeavoured  to  repaire  the  decay  of  his  oun  privat  fortune  of  Melfort.   * 
by  the  mine  of  the  publick," — striking  features,  I  suspect,  however, 
more  or  less,  in  not  a  few  of  his  public  cotemporaries. 


■■^tf^ 


966      INQUIRY  INTO  THE  LAW  AND  PBACTICB,  &CC. 

including  extinctions ;  and  it  is  remarkable  that,  in  this  in- 
stance,— 80  different  from  in  that  of  Rutherford, — as  has 
been  shewn,^  general  services,  even  of  recent  date,  have  been 
admitted,  without  scruple,  in  material  probations. — It  surely 
must  be  a  reflection,  and  calumny  upon  the  House  of  Lords, 
though  maintained  by  some^  that  they  are  not  bound  by  their 
own  precedents  and  authorities,  but  are  entitled  to  try  every 
Scottish  Peerage  case  isolatedly,  and  upon  new  and  opposite 
grounds,  if  they  think  proper.  What  a  Babel  of  confusion, 
and  complete  anarchy,  such  doctrine,  if  admitted — that  has 
withal,  no  real  countenance  and  support,  but  e  contra — would 
infallibly  introduce  into  our  system,  already  rather  compro- 
mised, and  unduly  tampered  with,  I  need  not,  I  believe, 
further  trespass  upon  the  reader's  patience,  in  re-attempting 
to  prove  or  illustrate. 

1  See  pp.  905,  d42,  n.  4. 


APPENDIX." 


No.  I. 

Single  examflb  of  an  attbmfted  claih,  andpbocbss  bsfobb  paaliausnt 
exclusiyblty  in  1685,  in  thb  shape  of  an  action  of  beduction  and 

DBCLARATOB,  AT  THB  INSTANCE  OF  DaVID  LiNDSAT  OF  EdZELI^  THB  DIRECT 
HEIB-MALB  OF  THE  ORIGINAL  EaRLS  OF  CrAWFOBD,  IN  RBGARD  TO  THB 

HONOURS  OF  Crawford. 

(Seepp,  24-5  J 


I.  <'  Warrant,  and  Chabgb,"  accordingly,  to  the  above  <'  Laird  of 
Edzell,"  the  pursuer,  u/»on  his  Petition  to  the  Lord  Commissioner, 
and  the  Lords  of  the  Articles  in  Parliament,  in  1685,  for  sum- 
moning William  Lindsay  Earl  of  Lindsay,  (in  reality  also.  Earl  of 
Crawford,)  as  defender,  in  the  projected  Action  in  question. 


"  Att  Edinburgh,  the  fourteinth  day  of  May,  I™  VI9  and  eighty 
fyre  yeares,  anent  the  petitione  given  in  to  his  Grace  the  Lord  High 
Commissioner,'  and  the  Lords  of  the  articles,'  be  david  Lindsay  of  £d- 
zeil,  mentioning,  that  where  david  Lindsay,  sometyme  of  Edzell,  being 
once  in  fiie  of  the  estate,  and  in  possessione  of  the  title  of  the  honor, 
dignity,  and  Earldome  of  Craufurde,  whereof  he  did  never  denude 
himself,  otherwayes  than  upon  express  conditione,  that  if  david  Master 
of  Crawfoord,  grandchild  to  his  author,  in  whose  iavores  he  denuded 
himself,  and  the  aires  maill  of  his  body,  should  failzie,  that  then,  the 
estate,  Earldome,  and  dignity  should  retume  to  him,  and  the  aires 
maille  of  his  body ;  and  accordingly,  the  same  having  failled  in  Lodovick, 

*  It  Is  with  mach  regret  I  have  been  unaToidably  obliged,  owing  to  the  length 
to  which  this  work  has  now  extended,  far  beyond  my  original  conception,  to  cur- 
tail greatly,  several  of  the  Articles  in  this  Appendix, — nay  entirely  to  withhold 
others  I  had  reserved  for  insertion.  This  I  mention,  in  case  some  of  the  former 
may  appear  meagre,  and  rather  restricted. 

'  Then  William,  first  Duke  of  Queensberry. 

*  The  well  known  Committee  of  Parliament,  who  traniaeted  all  biuineis^ 


968  APPENDIX. 

Earie  of  Craufoord,*  and  George  Lord  Spynie,"  the  Earldome  and  digni- 
ties ought  to  retume  to  the  representatives  of  that  laird  of  Edzell,  then 
Earle  of  Craufoord,  transmitter  yerof,  upon  yat  conditione  especialliet, 
seeing  the  said  Lodovick  Earle  of  Craufoord  heing  taiken  prisoner  in  his 
Majesties  service  and  warrs  in  England,  anrw  164...,  was  sent  to  this 
kingdome,  and  keept  doss  prisoner  in  the  Tolhooth  of  Edinbnighe,  and 
unjustly  forfault  by  the  pretendit  parliament,  anno  1644,  ffor  his  said 
service,  loyaltie,  and  deuty ;  and  if  he  had  not  been  releeved  by 
the  then  Marques  of  Montrose  anno  1645,  the  usurping  power  for  the 
tyme  wold  have  unquestionably  taiken  his  lyfe  also,  as  they  did  of 
many  oyeris  his  Majesties  loyall  subjectis.  And  the  deoeast  Jolme  Earle 
of  Lindsay  being  of  great  power  and  interest  for  the  tyme,  tuking  ad- 
vantage of  ye  conditione  of  the  said  Lodovick  Earle  of  Craufoord,  did, 
upon  the  said  fibrfaulter,  assume,  and  taike  upon  him  the  title,  and  dig- 
nity of  the  Earle  of  Crafbord,  and  which  he  and  William,  now  Earle 
of  Lindsay,  his  sone,  hes  wrongeously  possesst  since  syne,  albeit  that 
your  petitioner  be  nearest  aire  maill,  and  of  Tailze,'  to  the  said  david 
Lindsay  of  Edzell,  thereafter  Earle  of  Craufoord,  my  Gutshirs  Grand- 
father, whereby  I  have  right  to  the  title  of  honor  and  dignity  of  ye 
Earle  of  Craufoord,  and  that  it  is  just  and  necessar  yat  I  vindicat  my 
ryt,  that  I  may  serve  his  Majestic  in  yat  capacitie  as  becomes,  therefor 
humbly  desyreing  yat  your  Grace  and  honourable  estates  of  parlia^ 
ment  wold  be  plei^ed  to  grant  warrand  to  Macers  or  Messingeris  at 
armes  to  summond  the  said  William,  now  Earle  of  Lindsay,  to  com- 
peir  before  his  Grace,  and  estates  of  parliament,*  upon  dayes 

wameing,  to  bring  with  him  his  pretendit  rights  to  the  said  title  of  honor 
and  dignity  of  Earle  of  Craufoord,  to  heare  and  see  the  8amen,and  the 
pretended  decreet  of  fibrfaultur,  and  oyer  grounds  whereupon  it  pro- 
ceeded, and  all  yat  has  followed  therupon,  reduced  and  declared  vo^ 
and  null,  and  to  heare  and  see  fimnd  and  declared  before  his  Graee,  and 
the  honorable  estates  of  parliament,  that  your  Petitioner  has  the  only  and 

Date  of  the  ere-  '  Though  the  Earldom  of  Crawford  was  eertaioly  created  in  1398>  (see  pp. 
ation  of  the  163,  262-8»)  yet  its  written  constitation  ii  not  preferred.  Owing  to  the  dignity 
r^''^r^"!l  \^  baving,  previous  to  the  transaction  to  be  noticed  with  Edf  ell,  before  the  middle 
ly  in  1398  tho*  ^^^^®  ^^^  century,  passed  heirs- female,  to  go  to  hein-male,  it  hence,  espedally*' 
the  written  m\i%i  be  presumed  to  be  descendible  in  the  male  line,  and  to  have,  every  way,  folly 
erection  is  not  vested  in  Earl  Ludovick,  the  direct  male  of  the  body  of  David  first  Earl  of  Craw- 
preserved.  |>^^^     r^^  Earldom  in  question  is  the  oldest  in  Scotland,  descendible  under  the 

conveyance  to  be  noticed,  in  1642,  to  beirs-nui/e. 
David  Lindsay  '  1^^  Spynie  branch,  for'a  period  after  the  death  of  Earl  Ludovick,  (previous  to 
of  Ediell,  the  the  Restoration,)  were  the  heirs-male,  but  neter  claimed  the  honours.  They  also 
pursuer,  was  failed  in  the  male  line,  in  1671.  (For  their  female  representation,  see  p.  671.)  Sob* 
male'^  *^®  *'®'''  sequent  to  which,  the  pursuer  in  the  text  became  the  undoubted  Crawford  heir- 
male,  and  acted  accordingly.  *  EntaiL 
Nature,  and  *  Thus,  not  merely  before  the  nobility,  but  before  the  three  orders  or  estates  oT 
constitution  of  the  community,  who,  with  us,  sat  merely,  in  one  chamber,  under  one  President 
our  Parliament,  q^  Commissioner.     There  was  no  discussion,  in  such  cases,  by  the  Peers  alone. 


APPENDIX.  969 

imdoubied  right  to  the  title  of  honor  and  dignitU  tf  Eark  of  Craufoord, 
and  that  he  hes  now  right  thereto,  ffbr  the  reasones  forsaidis  and 
oyerig.'  Therefiry  the  Lord  high  Commiflsioneris  Giaoe,  and  the  Lords  of 
the  articleBy  having  heard,  and  considered  the  above  vrittene  petitione, 
the  Lord  High  Commissioner,  and  the  Lords  of  the  articles,  grants  war- 
nmd  to  Maeers,  or  Messingeris  at  armes,  to  nLmmondy  -warne,  and  cftor^the 
saide  WiUiam  Eark  o/Craufoord  to  compeir  befor  his  Grace  the  Lord  High 
Commissioner,  and  the  Lords  of  ye  articles,  wytin  ten  dayes,  to  answer, 
at  the  inetanee  of  the  said  Petitioner,  to  the  grounds  above  rqvresented, 
and  to  hearsy  and  see  it  found  and  decktred  that  the  said  david  Lindsay 
of  Edzell  hes  the  only  right  to  the  title  ofhmwry  and  dignity  of  the  Eark 
^fOroMfoordy  and  yat  he  hee  now  rytyertOy  for  the  reasones  forsaid,  and 
uyeris,  with  certificatione  if  he  failzie  to  oompeir,  etc.  By  warrand  of 
the  Lord  High  Commissioner  and  ye  Lords  of  ye  articles,  (sie  stibseribi' 
tur.J    Tarbat,  Clerk  Register.'' « 

[Then  follows  tho  Meuenger's  exeeuUoQ  of  the  summoM  and  citation,  daring 
the  titling  of  Parliament,  on  the  16th  of  May  thereafter.] 

II.  ^'  Information  "  for  the  said  William  Earl  of  Crawford  and 
Lindsay,'  the  defender,  against  David  Lindsay  of  Edzell,  the 
pursuer,  in  the  same  Process. 

**  David  Earl  of  Crawford  having  taken  up  some  groundless  preju- 
dice agunst  his  son,  he  did,  in  the  year  1541,  dispone  the  lands  in 
Auchterallan,  and  others  of  the  estate  of  Craufurd,  to  David  Lindsay  of 
Edzell,  who,  after  the  said  Earl  of  Craufurd's  decease,  during  the  mi- 
nority of  his  Grand-child,  did  assume  and  usurp  the  title  of  Earl  of 
Crawfurd,  without  any  warrand  or  right ;  and  being  sensible  how  far 
Earl  David's  children  had  been  wronged,  he  did  dispone  the  estate 
back  again  to  David  Master  of  Crawfurd,  Earl  David's  grandchild,  and 
the  heirs  male  of  his  body,  which  failzying  to  return  to  the  disponer, 
and  his  heirs  male ;  and  then  the  said  David,  designed  Master  of 
Crawfurd,  in  tho  disposition  made  by  Edzell  to  him,  did  Re-assume  the 
title  and  dignity  of  Earl  of  Crawfurd ;  And  he,  and  his  heirs  male,  of 
whom  Ludovick  Earl  of  Crawfurd  is  lineally  descended,  did  alwise  en- 

'  The  form  is  thns  adopted,  as  in  an  Action  of  Redaction  and  Declarator  against  Form  of  proce- 
a  party  in  respect  of  lands,  «before  the  Session,  with  certification,  &c.  but  warrant-  dure  here,  the 
ed  by  no  petition  to  the  king,  with  a  reference,  as  in  an  English  Peerage  claim.    "^^^  "  ^"  .* 

•  From  a  cotemporary  MS.  copy  in  the  Crawford  Charter-chest,  at  the  Priory,  ^f  Redaction 
Fifeshire,  for  the  perusal  of  which,  together  with  the  following  printed  cotempo-  and  Declarator 
rary  Information  likewise,  in  caitta,  I  am  indebted  to  the  Earl  of  Glasgow,  the  before  the  Ses- 
heir  of  entail,  and  also  eldest  coheir  at  common  law,  of  George  last  Earl  of  Craw-  ''^^* 

ford  and  Lindsay, — a  nobleman  whose  general  merits  and  attainments  are  too  well 
known  to  require  any  enlarging,  especially  by  me,  on  this  occasion. 

*  The  title  of  Earl  of  Lindiay  exclutively  in  the  drfendert  KnCf  was  ondlspnted. 


970  APPENDIX. 

joy  the  title  ;  and  this  EdzelPs  predeoeBBorSy  who  are  alledged  to  be  de- 
scended of  the  said  David  Lindsay  of  Edzell,  to  whom  these  lands  of 
the  Estate  of  Crawfard  wero  disponed,  for  many  generations  continu- 
ed Lairds  of  Edzell,  without  having  the  least  pretence  to  the  title  and 
dignity  of  Earl  of  Crawfurd. 

The  said  David  Lindsay,  now  of  Edzell,  pretends  right  to  the  Title 
and  Dignity,  upon  these  grounds.  Firtt,  that  he  is  heir  male  to  the 
said  David  Lindsay  of  Edzell,  to  whom  Earl  David  disponed  the  lands 
in  the  year  1541,  as  being  nearest  heir  male  unforefiiult^  and  who  was 
once  in  possession  of  the  title  and  dignity,  which  appears  by  several 
writts  produced.  And  particularly,  by  a  writt  from  Queen  Mary, 
wherein  he  is  designed  Earl  of  Crawfurd,  and  called  to  a  Parliament ; 
who  albeit  he  disponed  the  lands  to  David  Master  of  Crawfurd,  and 
the  heirs  male  of  his  body,  which  failzying,  it  was  provided  the  same 
should  return  to  the  disponer's  Heirs  male,  of  whom  it  is  alledged  this 
Edzell  is  lineally  descended ;  so  that  David  Master  of  Crawfiird's  Heirs 
male  having  failzied  by  the  decease  of  Lodovick  Earl  of  Crawfurd,  and 
the  Lord  Spyne,  Edzell  hath  right  to  the  Title  and  Dignity,  as  Heir 
male,  and  of  line,  to  David  Lindsay  of  Edzell,  to  whom  Earl  David 
disponed  the  lands  in  the  year  154.... 

Secondly^  The  Title  and  Dignity  being  provided  to  the  Earl  of  Craw- 
furd's  Heirs  male,  Edzell  has  right  to  the  same,  as  nearest  Heir  male 
to  Lodovick  Earl  of  Crawfurd,  and  so  must  be  preferred  to  this  Earl  of 
Crawfurd,  who  hath  no  relation  to  Earl  Ludovick. 

It  is  answered  to  the  first,  that  Edzell  has  not  the  least  shadow  or 
pretence  of  right  to  the  said  Title  and  Dignity,  as  Heir  male  to  David 
Lindsay  of  Edzell,  to  whom  the  Earl  of  Crawfurd  did  dispone  the  lands 
in  the  year  1541 ;  Firsts  because  Earl  David,  in  the  year  1541,  did  not 
dispone  the  Dignity  to  Edzell,  but  only  the  lands  of  Auchterallan,  and 
others  mentioned  in  the  disposition,  which  were  a  part  of  the  estate  of 
Crawford,  but  neither  Dispones  the  Title  and  Dignity,  nor  the  Earl- 
dom, per  universitatem  ;^  so  that  the  said  David  Lindsay,  to  whom  the 
Disposition  was  granted,  had  never  right  to  the  dignity,  but  did  only 
assume,  and  usurp  the  title  during  the  time  of  Earl  David's  children's 
minority ;  and  it  is  most  false  to  alledge  that  the  Lands  were  Disponed 
to  Edzell,  as  nearest  heir  male  unforefault,  seeing  the  Disposition,  in 
the  year  1541,  bears  no  such  thing,  nor  does  it  mention  that  Edzell  had 
any  relation  to  Earl  David  at  all ;  and  any  writ  by  Queen  Mary,  calling 
the  Earl  of  Crawford  to  Parliament,  must  be  understood  either  of  Da- 
vid Earl  of  Crawford,  who  made  the  disposition,  or  of  David  Master  of 


Miirepreaenta-       ^  All  thii  if  futile,  and  unfounded  s  there  iwrt'a  conveyaDce  of  the  Comitaiut  of 
UoM  by  the  de*  Crawford  to  David  Lindsay  of  EdxeU  in  1541,  which,  ai  hai  been  shewn,  did  then 
carry  the  dignity ;  and  the  s€tm€  was,  in  1546,  reoonveyed  by  the  latter  to  David 
the  Master  of  Crawford,  under  resenration  of  his  liferent,  he  (Edzell)  being  de- 
signed Earl  of  Crawford  until  his  death  in  1658,— as  can  be  estabUshod. 


APPENDIX.  971 

Crawford,  to  whom  Edzell  did  again  dispone  back  the  Lands ;'  he  after 
his  minority ;  and  that  he  had  gotten  back  his  estate,  having  reassum- 
ed  the  Title  and  Dignity :  And  albeit  that  writ  could  be  understood  of 
David  Lindsay  of  Edzell,  who  had  usurped  the  title,  yet  that  could  not 
make  him  Eajrl  of  Crawford,  unless  he  had  otherways  right  to  the  dig- 
nity ; '  and  the  writ  by  Queen  Mary,  designing  the  said  David  Lindsay 
of  Edzell  Earl  of  Crawford,  isa  Dispensation  granted  to  the  Earl  of  Craw- 
ford, not  to  attend  the  Host,  wars,  arms,  weaponshows,  etc.  during  all 
the  days  of  his  lifetime  ;  in  respect  David  Master  of  Crawford  had  un- 
dertaken all  these  services  and  appearances  for  him ;  which,  albeit  that 
could  be  understood  of  David  Lindsay  of  Edzell,  as  thereby  designed 
Earl  of  Crawford,  yet  it  is  evident  that  he  had  no  right  to  the  Title 
and  Dignity ;  but  is  dispensed  with  as  to  his  appearance  in  all  publick 
meetings,  upon  the  account  the  Master  of  Crauford  did  appear  for 
him,  which  is  a  dear  evidence,  that  as  he  was  righteous  heir  to  the  es- 
tate, being  David  Earl  of  Crawford's  Grandchild,  so  he  had  the  only 
right  to  the  Title  and  Dignity,  and  in  all  publick  Meetings  did  appear 
and  discharge  the  duties  incumbent  to  him,  and  did  take  place  as 
Earl  of  Crawford ;  and  that  the  said  David  Lindsay  of  Edzell,  de- 
signed Earl  of  Crawford,  had  no  right,  is  evident,  seeing  the  Master  of 
Crawford,  to  whom  he  did  dispone  the  lands,  did  immediately  re- 
assume  the  Title ;  and  that  a  person  being  called,  and  sitting,  as  a  Lord 
of  Parliament,  does  not  give  a  right  to  the  Title,  is  evident  from  that 
recent  instance  in  the  case  of  the  late  Lord  Forrester,  who  albeit  hedid 
rit  in  several  Parliaments,  yet  he  had  no  right  to  the  Title  and  Dignity. 
2.  Albeit  the  Title  of  Honor  had  been  conveyed  by  the  Disposition 
made  by  Earl  David  in  the  year  1641,  as  it  was  not,  yet  he  having  dis- 
poned back  the  Estate  to  David  Master  of  Crawford,  in  the  same 
manner  that  it  was  disponed  to  him,  if  the  Title  of  Honor  was 
conveyed  by  the  Disposition  made  to  him  by  Earl  David,  he  was 
again  denuded  thereof,  by  the  Disposition  made  by  him  in  fikvoures 
of  the  Master  of  Crawford  ;  so  that  either  he  had  right  to  the  Dig- 
nity by  the  Disposition  made  to  him  by  Earl  David,  or  not ;  and 
if  he  had  not  right,  then  the  Pursuer  can  pretend  no  right,  as  heir  to 
him ;  and  if  he  had  right,  then  he  was  denuded  thereof,  in  fiivouree 
of  the  Master  of  Crawford,  from  whom  this  Earl  of  Crawford  de- 
rives right  by  progress. 

It  is  answered  to  the  teeond,  that  Edzell  cannot  pretend  Right  to  the 
Dignity,  as  Heir  male  to  Earl  Ludovick  :  First,  because  it  cannot  be 
instructed  that  he  has  any  relation  at  all  to  Earl  Ludovick,  but  only 
is  of  the  name;  and  if  he  could  instruct  he  had  any  relation,  or  that  his 

*  There  U  the  usual  misconception  or  misrepresentation  in  this  Information,  (to 
be  found,  in  a  certain  degree,  in  cotemporary  litigations,)  both  here,  and  elsewhere. 

'  Thu  is  corroborative  of  the  doctrine  with  us,  that  a  mere  summons,  and  sit- 
ting in  Parliament,  did  not  ennoble,  as  in  England,  as  will  be  even  still  more  ob- 
vious in  the  sequel. 


972  APPENDIX. 

predeoesson  came  of  the  House  of  Cnwford,  as  he  cannot^  yet  tfaero  ate 
many  others  that  are  nearer  Heirs  male,  and  particularly  Evilik,  Kils[»n- 
die,  and  several  others  that  can  be  condescended  upon,  who  came  of  the 
House  of  Crawford  long  after  Edzell,  if  he  could  instruct  he  came  of  the 
House  at  all.'  2.  Albeit  he  could  instruct  that  he  were  nearest  Heir  male 
to  Earl  Lodorik,  yet  he  cannot  have  right  to  the  Dignity,  because  Earl 
Ludoviky  and  John  Earl  of  Lindsay,  this  Earl's  Father,  haying  made  a 
mutual  Tailzie'  in  the  year  1641,  there  is  a  Resignation  made  in  the 
Kinfe  KandSy  of  the  Title  and  Dignity,  in  favours  ofEarlLodovU^eHeire 
male  of  hie  own  body,  which  failstying  in  favours  of  the  Earl  of  lAndsay, 
&iis  EarVs  Father ,  and  the  heirs  male  of  hie  body,  upon  which,  there  was 
a  Patent  ejepede  under  the  Great  Seal,  by  whieh  Earl  LodoTlks  other 
Heirs  male  are  absolutely  excluded,'  which  charter  was  confirmed  by  a 
charter,  under  the  Great  Seal,  in  anno  1648,  Beaaing&Novodamus,  and 
ratified  in  Parliament  in  the^  year  1661.     And  the  King,  being 
the  Fountain  of  Honor,  it  were  to  oontiovert  his  Majestie's  Fre- 
rogative  to  pretend,  that  the  King  could  not,  upon  ihe  Parties  Redg- 
nation,  transfer  the  Title  of  Honor  to  any  person  he  thought  fit,  albeit 
it  were  to  a  stranger.*    Thirdly,  there  being  Resignation  made  of  the 
Title  in  fiivours  of  Earl  LodoTik,  and  the  heirs  male  of  his  own  body, 
which  failying  to  the  Earl  of  Lindsay,  and  the  heirs  male  of  .his  body, 
upon  which  there  being  a  Patent  expede  under  the  Great  Seal  in  the 
year  1641,*  this  Earl  of  Crawford,  and  his  Predecessors,  hath  been  abore 
fourty  years  in  possession  of  the  Title  and  Dignity  by  yertue  of  the 
said  Patent,  and  so  hath  prescribed  a  right.* 

It  was  replyed  for  Sdzell,  I.  that  the  Dignity  being  provided  to  the 
heirs  male  who  hath  right  to  the  same  by  their  blood.  Earl  Ludovik 
could  not  make  any  disposition  thereof  to  any  other  person  in  preju- 
dice of  the  said  Heirs  male,  seeing  Titles  of  Honour  are  not  in 


*  This  is  a  remarkable  misrepresentation,  like  some  others,  alimnde, — Da?id 
Lindsay  of  Bdzell,  the  pnrsner,  being  undoubtedly  descended,  in  the  male  line, 
fVora  an  Earl  of  Crawford  before  the  middle  of  the  15th  century,  and  the  them 
nearest  heir-male  and  representative  of  the  Crawford  family. 

'  Entail. 
Important  and      '  This  important  and  condoaire  fact  against  the  parsuer  at  the  time,  Is  coirect, 
conclusive  fact   ^ith  the  exception,  as  will  be  afterwards  seen,  of  Earl  Ludevick's  collateral  heirs* 
tion  ^        "°*'  male  not  being  abachUtiy  excluded.  No  notice,  it  will  be  observed,  is  made  of  «icA 
conveyance,  in  the  citation,  or  mmiiuiiiff.     The  regrant  in  question  was  unexcep- 
tionable, being  even  before  the  forfeiture  in  1644,  (see  pp.  25,  968,)  of  Earl  Ludo- 
vick,  by  the  rebellious  powers,  however  it  might  be  viewed,  and  was  fully  acted  upon. 

*  This  conclusion  with  us  was  admissible,  and  relevant,  and  the  whole  jet  of 
the  case  is  here,  within  such  small  compass, — excluding  other  motley  facts  and  cir- 
cumstances, in  part  rather  weakly  urged. 

'  The  date  should  bo  1642,  as  will  be  shewn  in  the  sequel. 
'  This  questionable  argument  from  prescription,  is  but  a  kind  of  make  weight  i 
and  indeed  there  is  more  olijectionable  in  the  matter,  towards  the  conclusion. 


APPENDIX.  978 

• 

eio,  And^  however  a  Title  of  Honour  might  he  disponed  and  resigned 
in  favours  of  some  near  relation,  passing  hy  the  nearest,'  yet  it  cannot 
he  disponed  to  an  ahsolute  stranger,  such  as  the  Earl  of  Lindsay,"  in 
prejudice  of  the  Heirs  male ;  and  fhey  Edzell)  instanced  the  case  of 
the  Earl  of  Caithness,  whieh  alheit  the  late  Earl  of  Caithness  dispon- 
ed the  estate  and  dignity,  failing  Heirs  male  of  his  own  body,  to  Glen- 
urquhie,  now  Earl  of  Breadalbion,  yet  he  was  forced  to  pass  from  that 
Title  ;  and  this  Earl  of  Caithness,  as  Heir  male  to  the  late  Earl,  does 
assume  the  dignity.  2.  Titles  of  Honour  do  not  prescribe,  as  other 
rights,  and  albeit  they  could  Prescribe,  yet  Prescription  did  not  run 
against  Edzell  in  this  case,  because  Earl  Ludorik  having  lived  to  the 
year  1650,  or  thereby,  during  Earl  Ludovik's  lifetime,  Edzell  was  not 
ifakn9  agere,  and  could  not  claim  the  title. 

To  which  it  was  Duplyed,  PrimOy  that  it  is  an  uncontroverted  Prin« 
ciple  in  Law,  that  Titles  of  Honours  may  be  conveyed  by  disposition, 
and  Resignation,  as  well  as  Lands,  and  other  rights,  providing  the 
King  consent :  For  albeit  the  next  heir  have  right  to  the  Title  and 
Dignity  by  the  Blood ;  yet,  if  the  person  that  is  presently  in  the  title 
shall  dispone  and  resign  the  title  in  favours  of  a  third  person,  and  the 
King  eonfirm  the  same  by  a  Patent,  as  the  disponer  and  resigner  is 
validly  denuded  of  the  Dignity,  so  likewise  the  nearest  of  blood.* 
And  which  is  the  opinion  of  all  Lawyers  that  has  written  upon  that 
subject,  and  particularly  Tiraqueilus  de  Nobilitat,  cap.  7.  Num.  14.  who 
is  express.  Quod  aifeudum  Regale  Hi  ahcui  coneessumy  ea  eo  nobUitatur, 
H  princepSy  qui  jus  habet^  an^rmaverit.  That  Nobility  may  be  Trans- 
mitted from  one  person  to  another,  if  the  Eling,  who  is  the  Fountain  of 
Ebnour,  confirm  the  same ;  and  it  does  not  alter  the  case,  whether  the 
disposition  of  the  dignity  be  made  in  favours  of  a  relative,  or  a  strangerj; 
for  if  it  be  lawful  to  pass  by  a  near  relation,  and  to  dispone  the 
same  to  a  person  of  further  degree,  by  that  same  reason  it  voBij 
be  disponed  to  a  stranger  ;  seeing  it  is  not  the  Relation  that  makes  the 
disposition  to  subsist.  But  it  is  the  power  of  disponing;  for  if  it  were  the 
Relation,  that  made  the  right  subsist,  then  a  person  coidd  not  Dispone 
a  Dignity  to  a  further  Relation  in  prejudice  of  a  nearer,  whereas  it  is 
acknowledged,  and  there  are  many  instances  in  Scotland  where  a 
Title  and  Dignity  has  been  disponed  to  a  very  remote  relation,  in  pre* 
judice  of  a  nearer,  and  even  in  prejudice  of  a  daughter,  who  was  to  suc- 
ceed by  the  ancient  Patent ;  and  so  by  the  same  reason  may  be  dis- 
poned to  a  stranger ;  and  this  Earls  father  was  not  a  stranger  to  Earl 
Ludovick,  but  his  nearest  *  relation,  he  being  a  brother  of  the  House, 

^  This  was,  however,  exactly  John  Earl  of  Lindsay's  case,  independently  of  the 
argument  attempted  here  in  other  respects,  not  being  properly  home  out. 

'  It  is  amusing  to  see  both  parties  calling  each  other  strangers  to  the  Crawford  The  parties  mu- 
family,  with  equal  foundaUon.  The  Earl  of  Lindsay  was  the  oldett  Crawford  cadet.  *°*"y  misrepre- 

'  This,  with  us,  is  quite  true,  and  can  be  established  in  practice.  descent. 

*  This  is  incorrect ;  he  was  certainly  not  his  neareat  heir. 


974  APPENDIX. 

and  thereafter  married  with  the  House,  and  there  is  several  writs  pro- 
duced which  clears  that  the  Earl  of  Crawfard  was  alwise  in  use  to 
design  the  Earl  of  Lindsay  his  cousin  ;  and  particularly  a  Taiizie  ^  of 
the  estate  in  favours  of  the  Earl  of  Lindsay  in  the  year  1608  ;  and  this 
Statement    of  was  expressly  decided  the  eleventh  July  1633. — ^The  Lord  Mordingtan, 
the     Oliphant  contra  Patrick  Oliphant,  in  which  case  the  Lords  sustained  a  Disposi- 
formerly  refer*  ^^^^  ^^^  resignation,  made  hy  the  Lord  Oliphant,  of  the  Title  and 
red  to.  Dignity  in  favours  of  a  third  person,  in  prejudice  of  his  own  daughter, 

aud  found  that  albeit  Titles  of  Honour  be  not  properly  in  commerciOf 
so  as  the  disponer  may  transmit  the  right  and  dignity  to  a  third  per- 
son, without  the  Kings  consent^  yet  having  disponed,  and  resigned 
the  same,  the  Granter  of  the  right  and  his  heirs  was  fully  denuded, 
and  the  dignity  became  to  be  established  in  the  person  in  whose  fa- 
vours the  disposition  and  resignation  was  made,  when  ever  the  King 
gave  his  approbation,  and  confirmed  the  same.  And  as  to  the  ease  of 
the  Earl  of  Caithness,  it  does  not  at  all  meet  this  case,  for  the  Disposi- 
tion made  by  the  late  Earl  of  Caithness,  in  favours  of  Glenurchy,  was 
granted  upon  deathbed,  and  never  compleated  by  a  resignation  in  the 
King's  hands,  which  was  absolutely  necessar  for  conveyeing  the  Title," 
and  upon  these  and  several  other  grounds,  Glenurchy  did  voluntarily, 
without  any  process,  pass  from  the  Title,  upon  the  King's  granting 
him  a  new  title  of  Earl  of  Bread-albion.  2.  Prescription  does  run  as  to 
Titles  of  Honour,  as  well  as  to  other  rights,  as  is  clear  from  Tiraquet- 
lu9  de  ncbilitat.  cap,  14.  who  is  express,  that  nobility  may  be  prescrib- 
ed, as  well  as  other  incorporeal  rights.  And  it  is  clear  by  the  Act  of 
Parliament  concerning  Prescriptions,  that  ail  rights  ipAntMWieoer  pre- 
scribe, not  being  pursued  within  fourty  years ;'  which  must  likewise 
comprehend  Titles  of  Honours,  seeing  non  est  distingttendum^  uhi  Lex 
non  distinguity  aud  it  is  frivolous  to  pretend  that  Edzell  was  not  vaien* 
agere  during  the  Earl  Lodovick's  Lifetime,  seeing  if  he  had  conceived 
that  the  resignation  made  in  favours  of  the  Earl  of  Lindsay  had  pre- 
judged his  right  to  the  Title,  he  might  have  raised  a  reduction  and 
Declarator  of  the  same,  that  the  said  resignation  should  not  prejudge 
him  after  Earl  Ludovick's  decease.  But  the  resignation  being  made, 
and  a  Patent  under  the  Great  Seal  having  followed  thereupon,  in  anno 
1641,  and  Earl  Ludovick  and  the  defender,  and  his  father,  as  having 
right  from  him,  having  possessed  the  Title  and  Dignity  by  vertue  of 
that  Patent,  the  years  of  Earl  Ludovicks  possession  must  be  conjoyn- 
ed  with  the  years  of  the  Earl  of  Crawford  and  his  Father's  possession, 
to  make  up  the  prescription,  and  as  an  infcftment  of  Lands  to  Earl 
Ludovick  and  his  Heirs  male,  which  failzying  to  the  Earl  of  Lindsay, 
being  cled  with  fourty  years  possession,  would  prescrive  a  right  to  the 

*  Entail.  '  This  evidently,  with  us,  was  not  so. 

'  But  it  only  strictly  alhjdes  to  lands ;   and  the  next  conclusion  drawn  cannot 
lie  well  supported. 


APPENDIX.  975 

Lands,  and  Earl  Lndovick's  possession  wonld  be  oonjoyned  with  the 
Earl  of  Crawfords,  and  his  Father's  possession,  to  make  up  the  Prescrip- 
tion as  to  the  Lands,  so  likewise  their  possession  must  be  conjoyned 
to  make  up  the  Prescription  as  to  the  Title  of  Honor,  there  being  no 
difierence  in  Law  betwixt  Lands  and  Titles  of  Honoiur  as  to  the 
point  of  Prescription. 

In  respect  of  all  which,  the  Earl  of  Crawford  ought  to 
be  assoilzed  from  this  groimdless  Pursuit,  and  it  ought 
to  be  declared  that  he  has  undoubted  right  to  the  said 
Title  of  Honour." ' 

The  preceding  Charge  or  Summons,  with  the  printed  **  Information," 
for  William  Earl  of  Crawford  and  Lindsay,  I  hare  thus  inserted  wrba- 
Hm,  because  they  are  new,  and  I  am  not  aware  of  a  vestige  of  them  else- 
where.   On  the  other  hand,  a  fall  transcript  of  the  opposite  '^  Infer-  A  copy  of  the 
mation  "  for  David  Lindsay  of  Edzell,  the  pursuer  in  the  process,—  ^^^^q^  *foy°^j5[' 
disclodng  his  statement,  and  argument,  with  rejoinders  to  those  of  the  punuer,   too 
Earl,  has  been  long  preserved  in  MS.  among  the  Macfarlane  CoUec- long  to  be  given, 
tions  in  the  Advocat^  Library, — owing  to  which  reason,  and  its  lengthy  *•  *"  the  Advo- 
I  have  been  necessitated  to  al^ndon  my  intention,  as  before  intimated,  ^ 
of  also  printing  it.    The  latter,  like  the  former,  curious  in  certain  res- 
peetSy  and  not  without  interest,  will  be  found,  by  persons  desirous  of  a 
perusal,  in  vol.  II.  (a  folio)  of  MSS.  Genealogical  Collections,  in  1715, 
(from  p.  321  to  p.  332,  incl.)  in  the  compilation  above  referred  to.    In  a  The  omission  is 
material  view,  the  omission  may  be  unimportant.    The  case,  in  my  es- 1^®  J®"  impor- 
timation,  from  what  has  been  premised,  and  will  follow,  lies  within  ^*J|  J^*  dedd- 
a  small  and  easy  compass,  amidst  rather  protracted  and  unnecessary  ed  apon  a  very 
details,  interspersed  occasionally  with  loose  and  mistaken  inferences  narrow,   and 
and  argument.  ''"P^"  P*^^'' 

I  oonceive  the  chief  reason,  though  others  also  have  been  assigned,  for  The  chief  rea- 
the  striking  circumstance  of  there  being  no  authentic  notices  of  further  son  for  the  non- 
steps  in  the  above  inchoate  process  on/y, — isolated  as  it  stands,  and  f^e' Action*  was 
which  certainly  proved  abortive, — not  a  trace  of  it  even,  in  any  shape,  iu  incompeten- 
being  discoverable  in  the  Records  of  Parliament,"  was  its  obvious  in-  cy  in  form  ; — 
competency  in  point  of  form.     It  was    irrelevantly  and  unduly  j5  *^°"j*'»  ^ 
brought  before  Parliament,  instead  of  the  competent  tribunal  of  the  Rothes  case  in 
Session.    For  this  we  have,  inter  aUa^  the  express  authority  of  Sir  1682,  &c.  have 
John  Nisbet*  Lord  Advocate  to  Charles  II.  the  best  cotemporary  law-  ^^f",^^"!^'. 
yer,  (see  pp.  26-7).  It  was  equally  incompetent,  with  the  attempt  of  the  gi^n. 
Lord  lindores, — the  heir-male  of  the  Earls  of  Rothes,  and  in  the  precise 
situation,  in  effect,  at  the  period,  with  David  Lindsay  of  Edzell,  quoad 
the  Crawford  succession — to  claim  the  Rothes  honours  in  1682,  and  to 
exclude  the  new  legal  Rothes  heir,  upon  a  resignation,  and  regrant 

^  The  Earl  thus  did  not  depend  alone  upon  a  sitting,  so  important  in  England. 
'  Though  they  abound  too,  with  many  ordinary  and  inferior  occurrences  at  the 
lime.     For  a  relative  cabal  too,  against  the  defender  at  the  time,  see  p.  28. 


976  APPENDIX. 

further  again,  in  the  shoes  of  the  Crawford  defender,  by  a  process  be* 

fore  the  Privy  Council,  which  proved  equally  nnsacoesBfiil,  and  only 

elicited  from  them  a  further  recognition  of  the  just  cognizance  of  the 

Court  of  Session,  by  the  striking  reference  of  the  parties  to  that  Judi- 

No  application  catory.*    It  is  remarkable  too,  that  in  neither  of  these  instances,  and  as 

the  abo^T^es"  ^^*^^®>  ^^  other  such  cases,  was  the  crown  ever  thought  of,  or  applied  to, 

which  form  with — SO  differently  from  in  England;  where  the  power  of  the  crown, 

us,  waa  foreign  |^^  f?er«a,  so  far,  was  exclusive,    and  therefore  a   more  arbitrary 

an     unresorted  ^g^j^Q^  adopted  ;  while  the  course  of  trial,  with  us,  being  simply  by 

the  ordinary  civil  Court,  at  once  fully  and  impartially  opened  to  all, 

as  in  the  instance  of  any  civil  right. 

The  new  and      The  new  and  effectual  regrant,  or  patent  of  the  Earldom  of  Craw- 

Bthluon  Md'  ^^"^^  ^^  recently  found  in  the  Crawford  Charter-chest,  dated  Janu- 

descent  of  the  &^  ^^9  \^^^  duly  proceeded  upon  a  resignation  of  his  honours,  by 

Crawford  hon-  Lodovick,  the  then  Earl  of  Crawford,  into  tho  king's  hands,'  whereby 

Mci^nr*  rec^!  these,  with  the  ancient  precedence,  « CQmxium  de  Craufurd'-a  dote 

ence,  was  by  eorum  prima  creationia  in  Oomites"  (in  ldd8,*)  came  to  be  transferred, 

virtue  of  the  after  Earl  Ludovlck,  &c.  to  singular  success<»s,  namely,  to  John  Earl 

hffM2  ^^l  o^I'in<^y>  and  to  the  heir».male  of  his  body,  who  have  at  length.fail- 

ly  recovered.  ~  ed,— ^^  wUh  a  remainder  thereupon^  or  clause  of  return,  "  luBredi- 

The    Earl  of  hus  nuueuiU  dieti  Ludovici  Comitis  de  Crawford  (the  rengner)  quihui- 

Balcarras,a8the  eunque^  cognomen  et  insignia  Familis  de  Crawford  gerentibus."*  Un- 

male  is  now  the  ^®'  ^^  latter,  the  present  James  Earl  of  Balearras  now  clearly  takes, 

heir/ in  terms  as  the  direct  heir-male  and  representative  of  the  Lindsays  of  Edzell, 

thereof. 

*  See  p.  937,  n.  2,  and  pp.  938-9,  940,  ibid, 

*  "  In  manibus  nottris"  (the  King^s)  ;  and  the  patent,  dated  at  Windsor,  the 
royal  residence,  bears,  by  a  docqoet,  to  be  under  the  sign  manual.  Henoe,  in 
form,  it  was  especially  valid  and  unexceptionable. 

'  See  p.  968,  n.  1. 
The  old  preced-  "  Aliaque  privilcgia — debila  secundum  alia  Diplomata,  et  antentica  scripta  eon- 
ence,  carried  ex  tinentia  tempora,  et  datas  dicti  tituli,  et  dignitatis  Comitatas,"  &c.  Snch  iosertloo 
termtnit  ^X^he  regarding  the  precedency,  though  not  nearly  so  broad,  (snffieientfy  wmmom  on 
refutes  a  fflarinff  '^^®  occasions,  and  certainly  effectual,  as  can  be  legally  established  in  this  parti- 
crror  in  the  cular  instance,)  was,  strangely,  peremptorily  sworn  to,  and  held  on  the  Bench,  ia  the 
StirUng  criminal  recent  criminal  Stirling  Trial  in  1839,  to  impugn,  and  evince  the  invalidity  of  th« 
^'  asserted  Nowh-damut  of  the  Stirling  honours,  on  an  asserted  resignation,  in  1839. 

Such  reservation,  or  grant  of  the  precedence,  from  the  original  date,  was  incaleatcd 
there,  to  **  be  too  much  a  matter  of  course  '*  to  need  speciAcation,  and  **  nol  to  be 
found  in  ^oitfine charters  1"  (See  pp.  345-6.)  Had  things  only  been  so,  in  the  Stir- 
ling case,  without  the  fnriher  fatal  otjections,  it  is  indisputable  that  the  dream- 
stance  in  question,  instead  of  disproving  the  validity  of  the  conveyance,  as  was  thus 
so  svmmort/y  assumed,  would,  on  the  other  hand,  have  relevantly  sustained  ic 
For  Peerage  regrants  having  this  clause  as  to  the  old  precedence,  see  pp.  346-7, 
and  its  validity  could  be  further  established. 

*  This  too  is  obviously  the  patent  founded  upon  by  the  noble  defender  in  1685, 
(see  pp.  972-4)  ;  but,  as  has  been  seen,  not  Cairly,  at  least  fully  given,  the  final 
important  remainder  being  withheld,  while  the  date  is  1641,  instead  of  1642. 


APPENDIX.  977 

ftnd  neoessarily  chief,  and  heir-male  of  the  once  numerona  House  of 
Undsay,'  who,  independently  of  their  nobility,  and  distingnished  illus- 
tration, can  prove  a  higher  antiquity  than  any  in  our  Peerage,  by 
means  of  authentic  evidence.    The  Crawford  regrant  in  1642,  therefore, 
(naturally  so  much  founded  upon  by  the  noble  defender  in  1685,)  being 
perfectly  valid,  and  unobjectionable,  theEdzell  fomily  were^A^n,  at  once, 
excluded  by  the  preference  in  terms  of  it,  of  John  Earl  of  Lindsay, — ^un- 
doubtedly, in  consequence,  £arl  of  Crawford,' — as  well  as  by  the  former, 
his  son  and  successor,  and  his  direct  heirs-male, — ^that  is,  in  the  first  in- 
stance.   This  new  conveyance— significantly  omitted  in  the  summons 
before  F&rliament  in  1685,  by  received  law,  in  like  manner,  aa  in  the  Upon  the  whole, 
case  of  Rothes,  quite  superseded,  and  nullified  the  pleas  and  aiguments  the   Crawford 
of  the  pursuer,  David  Lindsay  of  Edzell,  at  the  «««,— attempted  proba-  jljj^"  ^jj*^^  *^®^' 
biy  from  the  same  consideration,  and  expectation,  that  had,  with  simi-  Rothes  in  1683, 
lar  fortune,  instigated  the  Rothes  party  in  1682,  only  shortly  before  ;'  oDiy  materially 
while  both  precedents,  in  fact,  merely  go  further  to  evince  the  incom-  •^""^^e*  *^®  *"j.® 
potency  alike,  of  the  Parliament  and  Privy  Council  in  the  matter  of  the  Seuion  in 
honours,  in  exclusion  of  the  Session,  the  ordinary  and  true  jurisdic-  honoun. 
tion. 

'  Upon  this  head,  and  for  a  delightful  concentration  of  all  that  is  most  attractiTO 
and  interesting  in  them,  by  talents,  virtue,  and  approved  excellence,  see  the  late 
printed  work  (in  1640,}  comprising  four  volumes,  entitled  "  Lives  of  the  Lindsays,'* 
by  Lord  Lindsay,  the  son  and  heir- apparent  of  the  nobleman  mentioned,  who,  with 
a  just  and  pious  feeling,  has,  appropriately,  paid  this  tribute  to  the  memory  of 
his  family,  and  ancestors ;  and  of  whom  it  may  be  truly  said,— 

«  non  deficit  tUttr 

AwreuM  ;  et  simili  frondesdt  virga  metallo." 

*  Though  this  Earl  certainly  was  the  most  powerful  and  affluent  scion  of  the 
House  of  Crawford,  and  head  of  a  branch  long  ennobled,  under  the  noted  title  o^ 
Lord  Lindsay  of  the  Byres,  yet  nevertheless,  that  branch  happened  to  be  the  most 
distant  by  the  male  propinquity, — not  only  Edzell,  clearly  the  nearest,  but  others 
taking  preferably,  in  such  character.  By  the  extinction  of  Ludovick  Earl  of  Craw- 
ford, as  set  forth  in  the  summons  in  1685,  the  limitation  in  the  patent  in  1642,  na- 
turally to  him,  and  the  heirs-male  of  his  body,  in  the  first  instance,  became  spent.  Present  descent 
and  the  male  representation  obviously  vested  in  Edsell,  upon  the  male  failure  of  of  the  Earldom 

the  next  collateral  branch  of  Spynie,  as  also  intimated  there.     Upon  the  death  of  ^/,^*".^^^  ^^ 
...       ^  »,    .    -^      -    .       .  r.    >         ..  ..  ,    ,.        -  .    titles  m  the  no- 

the  late  George  Earl  of  Crawford  and  Lindtay^  the  more  direct  male  hne  of  the  ^i^    famUy  of 

Lindsays  of  the  Byres  failed ;  but  the  titles  of  Earl  ot  Lindsay,  Viscount  of  Gar-  Lindsay  of  the 

nock.  Lord  Lindsay  of  the  Byres,  &c.  being  all  €xclttMivefy  in  this  stock,  and  de-  Byres — the  old- 

scendible  to  hu  heirs-male  collateral,  must  next  vest  in  the  nearest  of  its  indi-  5f^  branch   of 

Crawford. 
mduai  male  members,  now  comparatively  but  few.     Byret,  the  appanage  of  the 

branch  in  question,  with  Garmilton,  &c.  **infeodo  de  Haddington^*  (as  proved  by 
an  old  charter  I  have  read),  was  acquired  by  the  Crawford  line,  before  the  middle 
of  the  13th  century,  from  Gilbert  Marshal,  Earl  of  Pembroke,  who  married  Prin- 
cess Margaret  of  Scotland,  and  is  stated  to  have  got  with  her  **  a  noble  dowrie,*' 
including,  1  conceive,  Wi^  feodum  of  Haddington, 
'  See  p.  940,  n. 

3q 


978  APPENDIX. 


No.  IL 
Rbmabks  im  refbbbmcb  to  thb  BABomBB  OF  Sbhpill,  akp 

M0BDINGTON9  &c. 
(Seepp»  52-3,  190  J 


Singularity,  and  The  patent  of  the  Barony  of  Sempilly*  dated  26th  of  Jnly  1685, 
apparent  con-  fj^y  \^  viewed  as  rather  singolar.  Notwithstanding  the  avowed  predi- 
Sempill  patent  ^^^^^^  ^  ^^®  female  descent  in  the  preamble,  from  the  old  and  modem 
in  1 685.  usage  founded  upon,  of  recognising  and  continuing  the  honours  of  noble 

and  ancient  families  in  the  heir-female  and  **  her  heirs,'*  the  confirma- 
tion of  the  conveyance  of  his  honours  and  estates,  by  the  deceased  Ro- 
bert Lord  Sempill,  to  Dame  Anne  Sempill,  his  daughter, — as  well  as  of 
that,  or  resignation  into  the  king's  hands,  of  all  claim  to  the  same,  by 
Robert  Sempill,  the  heir-male,  to  her  heirsy  in  her  fiftvour,  still  the  dignity 
is  limited  subsequently,  but  to  the  heirs-male  of  the  lady  in  question, 
by  Francis  Abercromby  of  Fettemier,  her  husband,— who  have  lately 
failed,^r  of  any  other  marriage,  that  however  did  not  obtain.  There 
is  here  some  apparent  incongruity  and  anomaly,  that  would  require, 
in  due  explanation,  a  further  search  for,  and  full  examination  of  these , 
respective  transferences,  that  are  only  very  summarily  alluded  to. 
Subsequent  The  descent  of  the  Sempill  estates  and  honours  were,  thereafter,  ex- 

conveyance  of   tended,  upon  the  resignation  of  the  preceding  Ann  Baroness  Sempill, 
honou«iri688.  ^^  of  Francis  Lord  Glassford,  her  husband,'  failing  heirs-male  of  their 
bodies, — of  whom  already, — ^to  heirs-female,  and  to  other  heirs,  by  a 
charter  of  regrant,  the  16th  of  May  1688,  dated  at  Edinburgh,'— as  to 
which,  repeatedly.    Lord  Mahon,  in  his  History  of  England,  firom  the 
peace  of  Utrecht,  has  notices,  through  the  medium  of  portions  of  the 
Stewart  correspondence,  lately  brought  to  this  country,  and  otherwise^ 
in  1744,  and  1745,  of  a  **  Lord  Sempill,"  as  an  intriguing  adherent^ 
Who  waa  the  and  partizan  of  the  Pretender.*    Who  this  may  be, — for  he  certainly 
Jacobite  Lord  ^^^^s  not  the  true  Lord  Sempill, — ^Lord  Hugh  being  then  so,  the  male  de- 
empil  in  1746.  g^^^^j;^  j^^j  heir-general  of  the  patentee  in  1686,  who  happened  to 
be  in  the  opposite  interest,  and  had  a  principal  command,  under  the 
Duke  of  Cumberland,  at  CuUoden,  in  1746,  soon  after  which  he  died, 
— I  have  not  been  able  to  discover.    If  the  then  Sempill  heir-male,  as 
might  seem,  his  right  had  been  fully  barred,  according  to  our  notions^ 

*  The  constitution  of  this  dignity,  ortgtnally  as  old  as  the  reign  of  James  iV.  is 
not  preserved. 

'  The  preceding  Francis  Abercromby,  who  had,  moreover,  that  title  forhislife- 
tiroe«  conferred  upon  him  by  the  patent  in  1685. 
^  Great  Seal  Register. 

*  »ee  vol.  III.  App.  pp.  X.  xii.  ux.  and  body  of  the  work,  pp.  S78 — 445,  a.  &e. 


▲PPEKDIX.  979 

by  the  rarignAtion  of  the  heir-male^  oonfinned  in  1686.'    The  title  of  He  eonld  only 
the  Jaeobite  individual  may  have  been  in  virtue  of  a  creation  by  the  *^^®  "^^^the 
Pietender,  of  which,  including  those  by  his  father,  since  his  abdication,  Pretender, 
there  were  many.    It  might  be  curious  to  collect  them,  as  they  prin- 
cipally transpire  from  the  Stewart  documents,  now  in  the  royal  posses- 
sion, though  perhaps,  in  some  cases,  not  altogether  agreeable  to  certain 
families,  honoured  accordingly,  who  have  been  supposed,  and  have 
plumed  themselves  with  being,  stanch  and  steadfast  Hanoverians.    The  The  creations 
list  might  comprise,  in  itself,  a  distinct  Peerage,  the  more  interesting,  as  ^^  ^^^  latter,  of 
in  an  opposite  crisis,  that  might  not  impossibly  have  happened,  duly  and  constitute  a  ne^w 
eflfoctually  constituted.  Mr.  Edgar  also  figures  in  Lord  Mahon's  interest-  Peerage, 
ing  History,  in  1744  and  1746,  as  a  confidential  friend  and  agent  of  the 
Stewarts.'    By  an  authentic  authority,  in  the  Gask  Chartep-chest,'  he 
still  figures  as  the  Secretary  of  the  father  of  Prince  Charles  Edward, 
in  1761 ;  but  further,  in  an  original  letter  from  him  in  1760,  to  Lau- 
rence Oliphant,  Esquire  of  Gask,  (where  he  alludes  to  his  master's  ill- 
ness,) he  starts  forward  as  the  **  Earl  of  Alfoord,'* — at  the  same  time  Titular  Earldom 
amusingly  subjoining,  at  the  close,  **  Your  old  Comeradef  Mr,  Edgar,  of  Alfoord. 
makes  you  his  Compliments."  * 

As  &r  asl  am  hitherto  aware,  the  heir  of  line  of  the  noble  family  The  Barony  of 
of  Sempill,owing  to  an  intermarriage, and  descent  from  that  of  Hording-  ^o^^^^no^^n 
ton,  may  be  now  the  actual  heir  to  the  Barony  of  Mordington,  in  terms  the    Sempill 
of  the  patent  in  1640,*  to  heirs-general, — ^unless  there  be,  aftw  all,  ahflir-fei&ale. 
nearer  Mordington  descendant,  in  the  same  chameter. 


No.  III. 
Wans  OF  ScimoMs  to  attend  Scottish,  and  Ekglisb  Parliakbnts. 

(See  p,  102,  and  preceding.) 

Precepts  or  summons  to  attend  a  Scottish  Parliament,  on  the  eve 
of  one  appointed,  were  of  old  issued  from  Chancery  by  the  King,  with 
consent  of  the  Privy  Council,  under  the  testimonial  of  the  Great  Seal, 
and  directed  to  the  Sheriff  or  Bailie  of  the  particular  district,  *'  qua-  Instance  of  a 
tenus  summoneatis,  seu  publico  summoneri  faclatis,  omnes  et  singulos^*"®"^  Scottish 
episcopofi,  abbates,  priores,  comites,  barones  et  cseteros  liberetenentes,  Parliament, 
totius  balisB  vestra),  et  de  quolibet  burgo,  tres  vel  quatuor,  de  sufficien- 

'  See  above. 

'  See  Vol.  111.  pp.  298 — 341,  nofet,  and  Append,  pp.  xtU.  zz. 

*  An  abundant  and  valuable  collection  of  old  muniments  and  papers,  belonging 
to  James  Blair  Oliphant,  Esq.  of  Cask,  &o.  the  undoubted  male  descendant  and 
representative  of  the  Lords  Oliphant,  and  of  that  ancient  family. 

*  /Ucf.  *<  Alfoord  "  likewise  signifies,  that  **  Hie  Majesty  orders  me  to  return- 
jfOK  (Mr.  OUphant)  a  kind  compliment." 

»  See  pp.  179-80. 


980  APPENDIX. 

tioribus  burgensibusy"  &c.  to  appear  aoooidingly,  at  a  certain  day  and 

place,  **  cum  aliis  regni  nostri  prelatis,  proceribus,  et  buigorum  oommia- 

sariisy — ad  tractandum,  conoordandum,  subeundum,  etdeterminandnm 

e%  quae  in  dicto  noetro  parliamento,  pro  utilitate  regni  nostri,  et  rei- 

pnblicse,  tractanda  fuerint,  conoordanda,  snbennday  et  determinanda, — 

habentes  vobiscum  sununonitionis  vestrsd  testimonium,  et  hoc  brere. 

£t  hoc,  sub  pena  quss  competit  in  hac  parte,  nullatenus,  omittatis." 

A  special  one  xhis  was  what  we  termed  a  general  summons,  through  the  crown  officer; 

late,  of  the  same  ^^^  there  was  also  a  special,  after  the  same  form  and  import^  though 

import  directed  singly  to  a  Prelate,  £arl,  or  Lord  of  Parliament.* 

An  Englith  writ     An  English  writ  of  summons,  though  similar  in  terms,  had,  con- 

of  summons,     gtructively,  as  is  notorious,  much  greater  effect.  It  in  fact  ennobled  a 

though  in  siml-       u       i  •     •   j»   -j     n  j         j  i.-    i«  •      •     r 

lar  terms,  had'ugher  laic,  individually  so  summoned,  and  his  heirs  in  fee, — aconse- 

often  construe-  quence  quite  foreign  to  us.'    Want  of  room  precludes  the  insertion 

Uvely,  ^^^  here  of  a  full  example ;  but  they  are  sufficiently  femiliar,  and  abound 

nied  to  the  for-  ^^  Dugdale's  Summonses  to  Parliament,'  as  well  as  elsewhere.    The 

mer.  writ  is  directly  by  the  King,  with  the  advice  of  his  Council,  to  the  spe» 

cial  party  alone,  "  firmiter  injungentes,"  &c. — quody  (on  such  a  day, 

&c.  you  shall  attend  Parliament,) — ^*  ad  tractandum,  ordinandum,  et 

faciendum  nobiscum,  et  cum  prelatis,  et  casteris  proceribus,  et  aliis  in- 

colis  regni  nostri,— et  hoc  nullatenus  omittatis,"  &c. 

Our  Prelates  sat  Our  Prelates,  of  course,  sat  in  Parliament  in  right  of  their  temporal 
in  Parliament  in  Baronies,  though  sometimes  disinclined  to  do  so.  On  the  23d  of  August 
t^poral  Baro--^^^'  ^^  ordinance  was  issued  by  the  Regent  Chastelherault,  and 
nies.  Lords  of  Privy  Council,  stating  *'yat  yer  is  diverse  prelatis  of  yis 

realme  als  weil  bischoppis  as  abbottis,  yat  aw  (owe)  personale  com- 
pearance at  al  generale  counsalis,  ande  courtis  of  parliament,  for  yer 
avisos  to  be  had  in  all  materis  concerning  ye  commoune  wiell.  Ajid 
albeit  yai  haif  bene  oft  and  diverse  tymes  requirit  be  oure  soverane 
ladeis  lettres,  direct  to  yaim  be  aviso  of  my  lorde  govemoure,  hir  deir^ 
est  tutor,  and  lordis  of  counsall,  to  haif  comperit  at  hir  graces  generall 
counsalis,  and  parliament,  neveryeless  yai  haif  contemptuandlie  disso- 
beyit  yair  requisitiones,"  &c.  On  Which  account,  fresh  commands 
are  here  given  to  Sherifis  to  summon  the  Bishops  as  before ;  but  if  they 
still  do  not  appear,  then  their  temporal  lands  are  to  be  seized  and 
intromitted  with.  (Acta  Dominorum  Concilii,  of  the  date  in  ques- 
tion.) • 

*  For  fall  copies  of  these,  see  Wight  on  Elections,  first  Edit.  Append,  pp.  443-4. 
Different  con-  s  our  Parliament  too,  differently  composed  of  the  three  estates,  always  sat  and 
^tution  of  our  ^^Qgaited  together  but  in  one  chamber,  and  under  one  common  President. 

•  London,  1695. 

Curious,  and  «  There  was  an  order  in  the  community  with  us,  who  had  the  familiar,  and 
corre^onding^^^^^^^  ***"°"*°*'**''*  ^^  "  pood-nwfi,"— not  certainly  the  high,  ennobled  "  Ricm 
flMuit  as^denot-  hombres,*'  as  in  Spain,  (see  Selden's  Tides  of  Honor,  Edit.  1672,  p.  477,)— .literally 
ing  a  class    of  n'cA  men, — however  Inferior  these  may  be, — by  no  contemptible   authority,  lo 


APPENDIX.  98 1 


No.  IV. 

ApPBAXA  to  ROMBy  IN  SCOTTISH  0A8B8,  BEFORE  THE  RBFORllATIONy  WITH 
SPBGLLL  AUiUSIOK  TO  THE  SINGULAR  AND  PROTRACTED  ONE,  OF  MaROARET 
LOOIE,  THE  Queen  of  DaYID  II.,  and  to  that  REHARKABLS  PERSONAOBy 

&c.  &c. 

(Seepp,  449-50,  n.) 

Scottish  appeals  to  Rome,  so  frequent  with  us  in  Papal  times,  in  Scottish    Ap- 
general  consistorial  questions,  notwithstanding  the  great  distance,  P****  ^  Rome 
and  of  course  grievous  expense,  aggravated  hy  innumerable  obstruo-  we^Uke  Ih^e 
tions,  and  dangers, — the  intervention  **  vehementis  maris  ooeani,  tem- at  present  to  the 
pestates,  et  ventos  contrarios,'*  as  James  V.  strikingly  complains  in  an  House  of  Peers, 
authentic  letter,  I  have  seen,  to  the  Pope  upon  the  subject,  were  yet,  k  cirouS^btd 
in  fiu^,  precisely  like  those  in  our  days,  from  the  Session,  to  the  Ap-  in  time, 
pellate  jurisdiction  of  the  House  of  Lords.    And  in  the  same  way,  a 
peremptory  term  was  statutorily  prescribed  for  the  purpose.    The 
Offidal  of  Saint  Andrews  decided,  in  November  1541,  that  the  Appeal 
by  John  Seton  of  Lathrisk,  from  a  judgment  pronounced  against  him 
by  his  Courts — ^the  ultimate  Consistorial  authority  in  Scotland,  but 
^  lata  Curia  BomancB^^  was  now  void  and  incompetent,  *^  propter  lap- 
tumfaialis  temporiSy  et  negligentiam  pre&ti  Johannis  appellantis,  infra 
temptis  ddfitumy  et  &jure  giatutumy  minime  prosequentis.^    Among  the 
earliest  instances  of  the  kind  preservedy  is  the  process  as  to  the  *^  Kallen-  They  obtained 
tir,"  or  Calendar  succession,  about  the  middle  of  the  Idth  century,  by  Sir  from  an  early 
John  Kinross,  against  Sir  Alwin  de  Kallentir,  the  son  of  the  dec^ised  P^'^^* 
Malcom  Thane  of  Elalentir,  inrmng^^ supern<Udlibu9  ipsius  Alwini,  in 

food.   Sir  George  Mackenzie,  Lord  Advocate  to  Charles  II.  says  that,  in  Scotland,  the  commonity 
sach  as  held  *'  their  lands  of  the  Prince  were  called  Lairds,  bat  such  as  held  their  ^°   ^^^^  king- 
lands  of  a  subject,  though  they  were  large,  and  their  superior  very  noble,  were  oufy  "^™'' 
called  Good'men,  from  the  old  French  word,  bonne  homme,  which  was  the  Title  of 
Master  of  the  Fkmily."   (Works,  under  the  art.  of  Heraldry,  toI.  II.  p.  583.)    In 
the  argument,  in  the  English  case  of  the  Viscounty  of  Purbeck,  in  the  reign  of 
Charles  II.  it  was  maintained,  that  *'  the  Titles  of  Esquire  and  Gentlemen  are 
drowned  in  the  greater  dignity  of  that  of  a  Peer,  and  when  the  greater  are  gone, 
the  other  mutt  go  unih  it.     And  then,  from  being  a  nobleman  to-day,  he,  and  the 
rest  of  his  Family  must  be  beilow  all  nobility,  and  be  called  Yeoman^  or  Good-man.'* 
(Shower's  Parliamentary  Cases,  3d.  Edit.  1740,  p.  3.)     The  matter— that  in  dis- 
pute— is  here  contemplated,  of  a  nobleman  denuding  himself  of  his  Peerage ;  and 
hence,  in  the  sister  kingdom,  alas  I  a  *<  good  man  "  was/ully  as  little  respected  as 
with  us, — rather  contrary  indeed,  to  the  Roman  notion, — bom  trtri,  notoriously  in 
the  acceptation  of  Cicero,  denoting  senators. 
'  Register  of  the  Official  of  Saint  Andrews. 


98S  APPEKDIX. 

cajus  bonis  paterniSy  eo  exduflo/'  Sir  John  maintained  that  he,  **  tarn- 
quam  proximior^  debet  suooedere."  This  was  a  proper  Consistoriai 
qnestion ;  and  aocordinglyy  it  came  first  before  the  Bishop  of  Saint 
Andre wsy  (the  Scottish  Judge  in  the  matter,  of  whom  the  preceding 
official  was  the  Vice,  or  Depntyy)  was  thexeaAer  repeatedly  transferred, 
by  appeal,  to  Rome^  and  remitted,  like  a  mere  modem  case  of  appeal, 
for  further  consideration  here ;  until,  at  length,  after  fire  years'  tedious 
litigation,  the  process  was  settled  by  compromise  in  1252,  under  authori- 
ty of  Papal  Delegates  or  Commissioners.^ 

I  could  enumerate  various  other  sudi  proceedings  downwards,  be- 
sides that  of  the  Chenes  in  1613,  and  before,"  involying  different  ques- 
Renwrkable  di-  ^ons  in  the  competent  law.  The  action  of  divorce  by  David  II.  against 
Torce  of  Mugft-  his  second  wife,  the  beautiful  Maigaret  Logie,  about  1369,  a  hasty,  ill- 
^  ^f^''iHL  '^^^^^  union,  upon  what  legal  pretence, is  unknown,  was  decided  in  his 
favour  by  the  Ordinary  Ecclesiastical  Scottish  Tribunal ;  but  she  sub- 
Appealed  to  sequently  appealed  to  the  Roman  Court  at  Avignon,  when  a  keen,  and 
Rome,  and  re-  protracted  litigation  ensued,  productive  of  much  public  agitation  and 
Teraed.  commotion,  the  issue  of  which  appears  to  have  been  a  reversal,  and 

actual  standing  of  the  marriage,  with  the  high  indignation  of  the  Papal 
See,  that  exposed  Scotland  to  the  horrors  of  an  interdict^  and  excom- 
munication by  his  Holiness.*    With  respect  to  the  above  remarkable 
woman,  I  have  found  the  following  original  piece  of  evidence  in  the 
Enrol  CharterHshest^  that  valuable  repository  of  ancient  Scottish  muni- 
ments and  documents.* 
Curious  original     It  is  a  solemn  compact,  bond,  and  obligation,  dated  at  Edinburgh, 
tw^T*  Sbe    *^®  l^T^^^t  of  November  136...,  (the  fuU  date  of  the  year  being  un- 
QueeD»  her  ion,  fortunately  worn   away,)   by  ^Johannes  Kennedy,  Dominus   de 
and  John  Ken-  Dunuie,"  (ancestor  of  the  noble  feunily  of  Ailsa  and  Cassilis),  to  the 
nedyofDunure.  fgnner,  there  styled  "  Excellentissima  Dominamea^  domina  Maigareta 
dei  gratia  Regina  Scotie,'*  and  to  **  ipnuiJUiui^  nobilis  vir  etpotens  Jo- 
hannes de  Logffy  dominus  efusdem,**  whereby,  for  onerous  causes,  he 
binds  himself,  **  ad  esiendum  de  eorum  reHneniiay  pro  toto  tempore  vite 
sue,*'  to  labour  with  them,  and  to  warn  them  of  aU  snares,  **  cum  M» 
potenHa  hominum  me<»tim,  sine  fictione  qualitereunque— 4nfira  regnum 
Sootie,  et  precipue,  infra  Dominium  Vallis  Annandie,"  under  the  usual 
reservation  of  the  King's  authority,  **  Et  si  contingat  (he  concludes) 
me  contra  premissa,  velaliquid  premissomm,  aliquid&cere,vel  in  ali- 
quo  contravenire,  quod  absit,"  then  in  such  events  ^'obligo  me  ex- 
tunc,  et  ipso  facto,  essereprobatum,  et  (2^^um,' necnon/cUncfn,  perfu-^ 

>  This  is  established  by  authentic  cotemporary  evidenee  in  the  Calender  Char- 
ter-chest. '  See  p.  449,  n.  2. 

'  For  these  facts,  see  in  the  sequeL  Fordan,  with  all  others,  calls  Biaigaret 
**  tpeeiotUnrnam"  toI.  II.  p.  S70. 

*  The  way  in  which  it  happens  to  be  in  the  Errol  Charter-chest,  may  appear 
in  the  sequel. 

*  «  Q%o,  quis  Don  Stat  promissis.**    Dn  Cange,  ««(  voce  **  J)efkciui,'* 


APPENDIX.  98S 

rum^fidementitum^  bt  omni  honore  armorum,  in  perpeiuum,  earentem**  * 
The  elenehing  penalty  here,  of  loes,  or  forfeiture  of  the  '^  honour  of 
annsy"  as  the  eHmaa  of  enery  turpitude,  and  condign  infliction^ — ^the 
seTBrest  to  a  feudal  and  warlike  Baron, — 'va  finely  characteristic  of  that 
chiTalrous  period.    Other  things  of  importance  may  be  derived  from 
the  above  original  document.    1.  That  Margaret  was  not  the  daughter,  It  proves  she 
as  has  been  stated  by  old  authorities,"  but  the  widow  of  a  Logie,  the  ^"  ****  widow. 
Laird  ^  i^  Logie^^  which  designation  too,  is  here  first  intimated  to  us.  daughter,  of  a 
2.  That  Margaret  having  thus,  at  least  hefart  1970,  as  follows  from  the  Laird  of  Logie. 
date  of  the  former,  a  son,  John  Logie  <tf  Logie,  (a  fisct  hitherto  also  un- 
known,) then  arrived  at  manhood,  to  be  ooncludedfrom  his  beingtreated 
with,  above,  as  a  party,  and,  as  may  be  further  obvious  from  a  passport 
In  ld67,  to  **  Johannes  de  Logy  de  Scotia^  cum  XII.  equitibus  ;*'  *  she 

*  Margaret  was  clever  enough  thus  to  bind  down  the  Carriek  chief  tightly. 

'  See,  among  others,  Fordun,  Goodall's  Edit.  vol.  IL  p.  370.  Even  Lord  Hailet 
makes  her  the  *'  daughter  of  Sir  John  Logie,  Knt."     See  Annals,  Edit.  1797,  voL 
IlL  under  Append,  p.  115.     What  her  own  descent  was,  does  not  transpire, 
and  it  would  be  curious  to  discover.     She  may  be  said  to  be  the  only  queen  of  Margaret    the 
Scotland,  whose  filiation,  that  would  have  illustrated  most  families,  is  unknown,  ^y    ^^^^ 
Fh>m  her  taking  her  husband's  surname,  instead  of  her  maiden,  according  to  the  gij^iQ.  |^^  f^. 
ordinary  custom,  her  origin  may  have  been  obscure.     There  is  an  authentic  certi-  mily  are  un- 
fiedcopy  existing,  of  an  original  grant  by  "  Margaret  Logy,  Queen  of  Scotland,"  known. 
in  1867f  (once  in  possession  of  the  Scottish  College  at  Paris,}  to  William  de 
Kirkintnlloch,  with  a  description  of  her  seal  appended  to  it,  exhibiting,  in  the  Her    seal   in 
opper  part,  the  Royal  Arms  of  Scotland,  supported  by  two  Liona,  (the  old  Scot*  ^^7- 
tish  supporters,  which  continued  even  to  the  reign  of  James  III.  nay  I  believe  af- 
ter,) and  in  the  lower,  the  Queen  in  the  royal  habit,  crowned,  holding  a  sceptre, 
between  two  shields  of  arms  ^^geiUUiHa"    that  are  not  described,  possibly  her 
former  husband's  and  her  own.     Although  there  are  several  Logics  in  Scotland, 
yet,  from  sundry  indications,  I  conceive,  the  d-devani  husband  of  Queen  Margaret  Her  husband, 
was  ancestor  of  the  Logics  of  Logie-almond,  still  even  popularly  called  Logie,  (up-  ^°  .  "^^  '^'fTh 
on  the  Water  of  Almond)  in  Perthshire.     That  family  ended  in  an  heiress  before  fi^m^y  ^f  Logie, 
the  4tb  of  October  1493,  singularly,  another  "Margaret  Logie,"  who  possibly  or    Logie-al- 
sprung  from  the  Queen;  when  there  passed  a  royal  charter,  upon  her  resignation  mond,  of  whom 
of  the  Barony  of  Logie-almond  in  the  same  county,  in  favour  of  Thomas  Hay,  '°^    ^  ^  .  /' 
her  husband,  younger  son  of  William  Earl  of  Errol,  and  their  heirs.    (Great  Seal  ^y^y^  compact, 
Register.)     From  this  connection  came  the  Hays  of  Logie-almond,  also  called  **  of  ii  descended. 
Logie"  simply,  eventually  Earls  of  Errol,  by  failure  pf  the  direct  line  of  that  noble 
house,  and  ancestors  of  the  present  Earl  of  Brrol,  &c     It  may  be  presumptively, 
held,  in  this  way,  as  a  family  writ,  among  such  others,  that  the  old  compact  be- 
tween Margaret  Logie,  and  the  chief  of  the  Kennedys,  (as  above,  p.  982,)  happens 
to  be  now  in  the  Errol   Charter-cheit,  thus  going  to  support  my  induction. 
Logie,  or  Logie-almond,  left  the  Hay,  or  Errol  family,  for  the  Drummonds,  a 
branch  of  the  house  of  Perth,  by  whose  female  representative.  Sir  William  Drum* 
mond  Stewart,  Bart,  of  Grand-tuUy,  the  property  is  now  possessed. 

'  Rot.  Scot.  vol.  I.  p.  916.     Independently  of  this,  there  is  a  charter  by  Da- 
vid II.  even  so  far  back  as  1363,  '*  Johanmi  de  Logy  dondno  ejutdtm"  of  the 


984  APPENDIX. 

And  not  a  maid-  most  have  been  of  nuUured  age,  when  she  married  David  II.  in  1302^ 
en  and  yirgin,  orl963,Mii8l;eadofat6nderda9?Me/y'^Tii^n/'afiwemightooneludeyfiraiii 
as  sapposed,     ^^^  ^^  y^^^  represented.*    On  the  contrary,  she  evidently  has  been 

when  remarried  *  *  - 

with  Da\id  II.  a  "full  blown"  widow, — ^^Ituty"  as  Bellenden  styles  her,*  of  great 
—an  unfortu-  ripened,  matronly  attractions^  whose  experienced  vnles  and  alloie- 
nate  union.        ments, "  voiuptate  form®  appetUiva"  as  Fordun  adds,^  have  entieed  the 
weak  monarch,  ever  susceptible  of  female  charms,  into  a  connection, 
which,  like  all  such,  being  chiefly  8en8ual,'after  a  short-lived  gratifica- 
tion,* has  palled,  and  become  nauseating.    3.  Margaret^  however,  inde- 
pendently, unlike  her  spouse,  with  ability  and  talents,  which  he  was 
unable  to  appreciate,  or  to  "  direct  dUcret^y'  *  happened  to  be  active 
Able  and  ac-  and  enterprising.    She  aimed  at  political  power,  and  forming  a  party 
tive,  »he  aimed  j^^  ^j^^  state,  identified,  not  unnaturally,  with  her  own,  and  her  son's 
po^^  aggrandizement,  the  chief  indication  of  which  was  the  bold,  though  ne- 

cessary step,  (as  always  in  such  cases,)  of  the  imprisonment,  by  her 
means,  of  the  next  heirs  to  the  crown, — ^the  Stewarts,' — ^whom  she 
prudently  dreaded,  and  of  whom,  therefore,  it  was  incumbent  to  rid  her- 
self.   In  such  critical  emeigency  too,  she  behoved  to  strengthen  her 
faction,  by  the  aid  and  co-operation  of  the  leading  men  in  the  kingdom ; 
^■^h  T^h™?^^  ^^^  hence,  I  conceive,  originated  the  preceding  treaty,  and  compact 
nedy  of  Dunure  (aniong  others,)  in  136...,  (probably  about  1367-8),  with  John  Kennedy 
was  to  strength  •  of  Dunure,  a  great  intriguing  chiefUdn  in  Galloway  and  Ayrshire,*  who^ 
«n  her  party.     |q  iQg^  guise,  is  there  to  premonish  the  queen,  and  her  son,  agunst  aU 

Thanedom  of  Thanadas,  Forfarshire,  with  the  rerersion  of  Olammis,  royal  proper- 
ty, and  thns  well  suiting  a  royal  step-son.     Regist.  Day.  II.  p.  82,  No.  76. 

'  See  Regist  ttt  gup,  p.  25,  No.  28,  and  Winton,  Macpherson's  Edit  toI.  IL 
p.  293.  1362  would  seem  the  true  date,  that  is,  the  very  year  of  the  death  of 
Joanna  of  England,  the  king's  first  wife.  See  Lord  Hailes,  mt  wp.  vol.  IL 
p.  274. 

'  From  Boece  s  account,  who  makes  her  a  «  virgin,"  and  24  at  her  dif  orce,  about 
1369,  (see  his  Hist.,  Lib.  16,  f.  827,  a),  thns  only  in  her  teens  when  married. 
Mr.  Tytler  has  as  little  any  notion  of  Margaret  baring  been  preyionsly  a  widow, 
and  also  erroneously  represents  her  as  a  LoyU  by  parentage.  See  his  History  of 
Scotland,  yol.  II.  p.  144. 

*  B.  15,  f.  281,  a.  *  See  Fordon,  ut  ntp,  toL  IL  p.  870. 

*  See  Utter  work,  p.  879,  and  Winton,  Macpherson's  Edit.  vol.  IL  p.  298. 
Fordun  here  states,  that  David  *<  parte  tempore  habitarit  *'  with  the  Queen ;  and 
Winton,  that  '*  thai  war  togidder  but  schort  while." 

*  See  Fordun,  afterwards,  at  p.  987. 

Margaret  con-      7  Fordun,  ut  tup,  p.  880,  and  the  Accounts  of  the  Chamberiains  of  Scotland, 

fines  the  Stew-  ^^  ^y^^   ^^  1367-8-9,  (vol.  IL  pp.  498  and  524.)  by  which  it  is  proved,  that 

arts  in  JuocMc^ 

ven  Castle so  ^^  Stewart  of  Scotland,  and  his  son  Alexander,  were  then  respectively  confined 

inauspicious  to  in  Lochleven  Castle,  which,  in  consequence,  underwent  fortification  and  repairs. 

that  family.  s  jjiig  q^j.  |,e  inferred  fVom  hit  even  having  been  forfeited,  as  would  seem,  in 

the  reign  of  that  monarch.  See  Robertson's  Ind.  p.  30,  No.  6.  The  impor- 
tant privilege  of  the  Kemkynolt  fsee  p.  574,)  was  in  his  family,  even  at  the  time, 
as  well  as  of  leadng  the  men  of  Carrick. 


APPENDIX.  985 

gnares  and  counterplots,  to  which  they  were  peculiarly  exposed,  and 
to  lud  and  support  them  fnUy,  **  cum  tata  potentia  hominum  meo- 
nun."    4.  But  unfortunately,  Margaret,  at  the  same  time,  being  com- 
paratiyely  but  of  secondary  ^mily  and  connections,  and  especially,  like 
all  upstarts,  exciting  envy  and  hatred,  chiefly  in  the  higher  ranks,  was 
unable  to  effect  her  object,  which  has  been  successfully  thwarted  by 
an  opposite  faction.    The  result  of  which — ^backed  also,  by  the  cooling 
love  of  the  king,  degenerating  into  disgust,  and  then  compunction  at 
forming  such  a  humiliating  alliance,  after  his  first,  with  a  Plantagenet, 
in  the  person  of  Joan,  sister  of  Edward  III. — ^has  been  her  divorce  in  Her  disgrace, 
1969,*  upon  some  calumnious  fiction  for  the  nonce,  her  consequent  ^"^  oiua*t  cU- 
downfall,  and  the  liberation  of  the  Stewarts.'    Still  her  talents,  ener*  Scottish  triba- 
gy,  and  spirit, — ^which  we  cannot  but  admire,  in  defence  of  her  just  nal. 
honour,  and  interests,— did  not  even  then  foil  her.    She  found  imme-  She   eacapes 
diate  means  of  escaping  to  the  Apostolic  Court  at  Avignon,'  where,  by  »J>road,  appeals 
prosecuting  an  appeal  against  the  divorce,  it  is  forcibly  stated  "totum  Scotland*    in- 
n^tfift  commavU  ;***  and  though  but  a  calumniated  female  in  a  foreign  to  the    utmost 
country,  by  her  peculiar  address,  and  influence  with  the  Cardinals  and  confusion,   and 
the  Pope,  who  was  upon  the  point,  in  consequence,  of  excommunicating  vai]s!°^^  ^'^ 
Scotland, — after  keen  and  incessant  processes,  at  length  succeeded  in 
undoing  what  even  the  ahurch  had  previously  done.*     She  legally 
vindicated,  against  every  machination,  her  royal  style  and  status,  as  an 
undivoroed  Queen,  which  she  still  retained  in  1372,  137V  ^^^  1376,' 
after  the  decease  of  her  imbecile  spouse  in  1370. 

'  Ford,  ut  gup.  p.  379,  and  in  the  Chamberlain's  Accounts,  &c.  yol.  I.  p.  521,  Unnoticed  allu- 
andera  Compotum,  from  20th  of  January  1368,  to  19th  of  January  1369,  there  is  a 'ion  to  her  di- 
payment  whieh  has  escaped  notice,  **  domine  Margarete  de  logy  quondam  Regine  p^'^i^  i  {  ^ 
Scotie,"  (she  having  lost  the  title  in  Scotland,}  of  XL  pounds,  < *  in  partem  solutionis  Accounts    and 
teaimm  libramm  sibi,  assignatarum  p«r  dominum  nostrum  Repem,  percipienti  per  an-  pension  there- 
Bum,  poti  divortium  eelehratumt"  with  her  receipt  accordingly.     She  was  thus  al-  °P<>°  granted  to 
kmed  to  faU  gently,  with  a  tolerable  pension,  which  is  further  in  her  favour.  * 

*  Ford,  nt  tup,  p.  360.  In  the  Chamberlain  Accounts  for  1369,  after  the 
Qaeen  ■  divorce,  (ut  gup,  p.  522),  there  is  a  payment,  through  the  King's  Stew- 
ard of  the  houggholdf  **  ad expengas  Agnete de  Dunbar — in  absentia  Regis;"  query, 
was  this  a  new  mistress,  who  had  caught  the  fickle  monarch,  and  supplanted 
Margaret  ? 

*  Ford,  uigup,  p.  379.  "ageenea  damnvfi  in  aquam  de  Forth," in  1369,  short- 
ly after  her  divorce.  *  Ibid.  p.  379. 

'  Ibid.  p.  380,  and  Bellenden,  B.  15,  f.  231,  a.  who  says  that  she  **  gAiJinaUe 
9ne  gentenegf"  upholding  her  marriage, — which  will  be  confirmed  in  the  sequel. 

*  On  the  23d  of  July  1372,  as  **  Retina  Scotie,  uxor  condam  Domini  Davidis,  Obliged  to  bor- 
olim  Regis  Scotie  iUustris,  jam  defuncti,"  she  borrowed  abroad,  at  Avignon,  1 500 '^'^    money  a- 
merks ;  and,  the  4th  of  March  1374,  as  «« uxor  carissimi  fiatris  regU,  Davidia  de  **'°***  *°  ^^^^' 
Brnys,"  &c.  she  obtained  a  passport  from  Edward  III.  for  England,  with  liberty 

to  remain  there  two  years.     This  may  have  been  on  her  contemplated  return,  not 
venturing  all  at  once  to  trust  herself  in  Scotland  with  her  enemies  the  Stewarts. 
(Rymer's  Ffxdera,  vol.  YI.  p.  727,  and  vol.  YII.  p.  35.) 
'  Proof  of  this  will  appear  afterwards.     It  has  been  fancied  that  Margaret 


9A6  APPENDIX. 

The  accouou  How  Margaret  closed  her  feyerifih  career,  far  from  aadsfiaofortly 
abr(M!drio^id74-  ^'^^'i^^'^*  ^^^  aooonnts  are  SMiiewhat  contradictory,  not  to  add  mya- 
6,  Tague,  mys-  terions.  She  is  ragaely  transmitted,  after  her  mora/  triumph,  to  haTo 
terioui,  and  died  abroad,  conveniently  enough,  when  proceeding  to  Borne,  ^  aa  we 
contradictory.  ^^^  conclude,  again  to  baffle,  (tobe  presently  erident,)  the  unremitting, 
though  fruitless  attempts  of  her  persecutors ;  according  to  others^  (by 
what  fatality?)  en  ^^ye  way'*  home.* 

The  following  facts  at  least  are  certain,  and  can  be  established  by  a 
cotemporary  public  document,  only  reooYered  in  modem  times,  how- 
ever, strangely,  they  have  not  been  unfolded,  and  detailed  by  wiitors^ 
including  Tjrtler  in  his  lato  History,  who  cannot  discover  the  contin- 
gencies, progress,  or  issue  of  the  Queen's  litigation. — That  the  appeal 
8traiu  "ly^^^^  was  prosecuted  by  her  during  the  epochs  of  Pope  Urban,  and  Pope 
ert  II.  and  the  ^T^^goitjy  who  succeeded  in  1371 ;  that  she  obtained** eeveral  etniemeee" 
nation  on  her  in  her  favour,  against  her  adversaries,  which  subjected  the  king  of 
occasion,  with  Scotland,  as  well  as  the  Scottish  eommumtpy  who  figure  always  aa 
ffer  of  an  exi  P'^'^^  ^  dan^er,-«obviously  from  the  impending  excommunication, 
communication,  owing  to  their  still  continuing  restive,  and  recusant.  That  to  ward 
that  compelled  the  evil,  at  the  eameet  entreaty  of  Robert  II.,  Charles  V.  of  Fiance, 
c»TeTe''midU  ^^d  written  many  letters  to  tiie  Papal  autiioritiea,  craving  a  term  of 
ation  and  inter-  delay,  and  sisting  of  procedure  in  the  cause ;  that  this  availing  nothings 
rh"^"  v^  andtheaboveproceedingtoextremities^andnotevenrespectinglAMM^, 
the  matter' wi°h  ^^^  they  are  j»re<en^ed  to  have  acceded  to, — ^but  declaring  certain  die* 
the  Pope ;  with  truetful  procurators,  and  agents  of  the  Scottish  king,  (as  would  seem,) 
tubteqaent  re-  contumacious  for  not  appearing — ^under  such  pretext, — ^rather  sharp, 
upbraidimr  be-  ^°^  upbraiding  language  passed  between  the  two  monarchs,  Robert  re- 
tween  the  men-  fleeting  upon  Charles  for  not  fulfilling  his  promise  of  effectual  inter- 
vcba.  vention,  and  extrication  in  the  calamity,"  while  Charles  defended  him- 

self against  the  charge,  and  complained  of  the  harsh  tone  of  the  other. 
This  curious  information  we  learn  from  a  formal  notarial  instrument, 
dated  the  dlst  of  January  1374-5,  exemplifying  these  particttlars,  in  the 
shape  of  a  diplomatic  letter,  through  certain  ambaraadors,  from  the 
Scottish,  to  the  French  king,  with  the  answer  of  that  potentate,  in  the 

Absurd  notion  carried  her  parpote  abroad  by  Scottish  gold,  (from  what  mine  ?)  wherefy  the  Pope, 
that  she  carried  Cardinals,  &c  all  bent  before  her  I  This  is  rather  a  novel  idea.  Poor  Scotland, 
her  purpose  by  ^i,^  ^^^  OTcrwhelmed  in  debt,  was  far  more  likely,  (as  usual,)  to  be  bouffht. 
h^til  i^o  *  ^^''^  ^^^  ^  ^°^'  ^'  ^  ^°  golden  opinions,  especially  for  such  ejected  child.  But 
Pope  Cardi-  the  first  of  the  abore  authorities,  from  the  Fcedera,  proves,  on  the  other  hand,  that 
nals,  and  the  she  was  needy,  and  compelled,  in  her  straits,  to  borrow  from  strangers, 
foreign  autho-       i  pord.  ut  nq>,  p.  380.  •Bellenden,  B.  15,  f.  281,  a. 

ttties,  &e.  ,  g^  plainly  tells  him,  that  if  he  is  thus  disappointed  in  what  had  been  promised, 

he,  in  particular,  cannot  trust  to  his  word  in  other  matters,  that  had  been  both 
promised,  and  sworn  to  by  them,  "  et  qui  touehent  greipieur  chose," — thus  in- 
Tolving  some  weighty  political  project.  This  graphic  letter,  with  the  answer,  b 
yalnable,  in  the  great  dearth  of  historical  information  at  the  period. 


APPENDIX.  987 

Taluable  quarto  yellnm  MS.,  transmitted  in  1793,  to  Scotland,^  from 
the  State  Paper  Office.  And  further  still,  Robert  II.,  in  his  anxi- Robert  II.  again 
ous  eommnnieation  with  respect  to  a  matter,  that,  he  admits,  ten-  implores  sucb 
derly  touches  him,  impresses  upon  Charles,  that  both  Ae,  and  his  com-  i°^e.<'c«>>|<>n, 
munityy  are  likely  ttiil  <*  estre  pius  dommagiez^  et  en  dangler y  se  ilz  ne  ^e«  that  had 
se  peuent  par  temps,  pourueoir  de  remede^^  He  therefore,  beseeches  been  given  in 
him  affectionately,  "  empetrer  du  saint  pere,  que  lea  sentences  qui  sunt  M^**"'°^t^*Jf-*{! 
dionneisy  (for  the  Q^ueen)  soient  rapktJjBBs,"  and  modest  demand  Qowfas  an  ap- 
forsooth,  that  the   matter   be   restored  to  its  original   state,  justpellant  in    his 

as  if  these  had  not  passed!    In  answer,  Charles  professes  himself  1"™'**®  wishes 

to  reduce 
ready  again  to  assist  his  royal  brother,  and  to  write  to  the  Pope 

and  Cardinals.    All  this,  including  the  previous  altercation,  and  pre- 
text,  pretty  plainly  erince  that  Margaret,  formidable  indeed, — and 
who  is  even  styled  "  royne  d*Escoce"  by  the  French  king, — ^was  in 
the  right,  and  had  a  just  cause ;  but  her  opponents,  who  were  thus 
driven  to  every  strait,  turmoil,  and  peril, — in  the  wrong, — ^being  now 
obliged,  in  their  turn,  judgment  having  repeatedly  gone  against  them, 
and  in  fiivour  of  the  Queen,  to  figure  as  appellants.    Fordun  explicitly  Id  the  cirenm- 
says^ — and  hence  with  every  appearance  of  probability  and  truth,  that  if  •^•°®®*»    J"^" 
she  had  survived,  (it  being  impossible  to  shake  the  judgments,)  ^'  rog-  gone  in  her  fa- 
numlnterdictosupposuisset," — ^which  was  only  prevented  by  her  sudden,  ▼our,  Scotland, 
ranexplained  demise.'   We  have  here  again,  a  verification  of  the  old  ada-  ®'**°*  ^®  '^Md^" 
ges,  of  the  baneful  influence  of  a  wronged  and  enraged  woman,  ^'  belli  peryene  oppo- 
Uterrima  causa,*'  aggravated,  in  this  peculiar  case,  by  the  previous  ^^Judi-  sition,    would 
eium^'SpreUeque  injuria  fomwB."  It  is  probable  too>  that  England  politi-  ^^^jn^n®^^®^'!,' 
cally  uded  Margaret  in  the  course  of  her  long  process,  in  order  to  cUsturb  had  it  not  been 
and  perplex  the  Scottish  Grovemment,  especially  as  the  money  she  for  Margaret's 
borrowed  in  1372,  at  Avignon,  was  advanced  to  her  by  London  mer-  ^^^^^^nient  de- 
chants,  not  unlikely  by  authority  of  Grovemment,  though  paid  by  their 
foreign  agents ;  and  her  bond  appears,  (as  referred  to  in  Rymer,')  among 
the  English  Publie  Acts,  and  vouchers.    She  hence,  every  way,  however 
innocently,  became  ^atrisB  Erynnis  y"  and  with  reason,  no  doubt,  For- 
dun sapiently  exclaims,  in  reference  to  the  Queen,  that  a  wife ''  est  eli- 
genda,  (iMcrefe,— dirigenda  man^uet^,— diligenda  compj^,"*— the  choice 
being  made  **  per  discretam  deliberationemy  secretam  informationem,  com^ 
pletam  communicationem,'"— otherwise,  out  upon  it. 

>  It  is  printed  in  Robertson's  Parliamentary  Records,  at  pp.  129-30,  &c. 
'  See  Fordan,  ut  nrp.  p.  380;  and  Bellenden,  B  16,  f.  231,  a. 
'  See.  p.  985,  n,  6. 

*  He  adds  withal,  **  corrigenda  secrete; "—how  this  might  do,  I  cannot  laj. 

•  Vt  tup.  p.  370. 


988  APPENDIX. 


No.  V. 

Remarks  in  respect  to  the  old  Earls  of  March  and  Ditnbar,  thbir 
style,  and  designation,  turning  on  a  misconceftion  of  sir  ttatufctw 
Nicolas,  upon  this  head,  in  his  ^'  Siege  of  Carlayerock,"  &c.;  with 

ALLUSION  TO  ANOTHER,  MORE  IMPORTANT,   AFFECTING  EdMUND,  OR  SiR 

Edmund  Hastings,  tounger  brother  of  John  Hastings,  competitor 
FOR  THE  Scottish  crown  in  1291-2,  as  well  as  the  representation 
of  the  old  Earls  of  *^  Meneteth,"  &c. 

("See  pp,  456,  ei  ttq,) 

I  had  intended, — ^had  it  not  been  for  a  reason  repeatedly  given, — ^to 
have  inserted  here,  several  particulars  regarding  the  Earldom  of  March, 
or  '^  the  Mersey*  as  we  call  it,  that  is,  of  the  March  of  Scotland,  and  of 
its  original  possessors,  the  Dunbars,'— one  of  our  most  illustrious,  and 
historical  families,  who,  by  a  rash  step,  came  to  be  so  strikingly  eclips- 
ed, and  degraded,  and  at  lengthjdwindled  down,  in  their  representation, 
to  those  miserable,  ill-fated  individuals,  Margaret  and  Janet  Dunban, 
—their  direct  coheiresses,  in  general,* — ^who  have  only  served,  in  no 
very  creditable  manner,  to  *^  point  a  moral,"  and  illustrate  a  portion  of 
Error  of  Sir  our  Consistorial  Law.    I  may  observe,  however,    that  Sir  Harris 
Harris  Nicolas  Nicolas,  in  his  recent  and  interesting  publication  of  the  curious  Roll 
Patrick*Earrof  of  Carlaverock,  in  the  time  of  Edward  I.,  has  erroneously  supposed  that 
March,  to  have  the  title  of  ^'Earl  of  Lennox  "  is  there  given  to  Earl  Patrick,  the  heir 
been  styled  Earl  and  representative  of  the  former,  the  then  Earl  of  Dunbar,  and  March,* 
1300.*°"°*       — ^though  neither  he,  or  any  of  the  family,  ever  took,  or  had  it. 
The  same   ow-     '^^^^  misconception,  natural  in  an  Englishman,  is  easily  explained, 
ing  to  his  deslg-  when  the  actual  meaning  of  the  style,  ^^  Conte  de  Laonis"  or  ^^Laonois^* 
nation  of  "Con- — ^^he  cause  of  the  error,  given  to  this  nobleman,  in  the  two  copies 
in    the    CarU-  ^^  *^®  Roll,* — or,  as  it  is  similarly  sometimes  written,  "  Loenas  "  or 
yerock   Roll,    Lonius, — nay,  even  corrupted  into  **  JUwnc*,"— obviously  turns  out  to 
**v  11®*^"*  °^  ^  nothing  more  than  Earl  of  Lothian^ — if  not,  by  express  verbal  usage, 
improperly   us-  **  ^^  I>uhbary*^<}T  the  Lothian  Earl,  such  ha  vingbeen  formerly  the  old  or- 

'  Patrick  Earl  of  March,  too,  as  is  well  known,  claimed  the  Scottish  crown  in 
1291,  as  heir  of  Ada,  daughter  of  William  the  Lyon,  who  died  in  1214. 

'  See  pp.  456,  et  »eq,  and  p.  459.  The  frail,  adulteroas  Margaret  (who  must 
have  had  the  house  on  Kilconquhar,  but  AparticU  indeed  of  the  March  inheritance) 
was  the  eldest,  which  accordingly  entitled  her  to  such  messuage,  and  hence  to  the 
Earldom,  &c.  by  oar  law,  had  it  not  been  for  its  noted  forfeiture  by  Edward  I. 

'  See  his  work,  entitled,  **  Siege  of  CarlaTerock,'*  in  1300,  containing  the  Rolls 
in  question,  with  Tarious  comments,  London,  1628,  pp.  210-11. 

*  See  pp.  34-5,  ibid. 


9 


APPENDIX.  989 

thognphy  of  ih&idUtrict;  '  and  is  little  surpriBing,  (titles  then  not  be-  ed,  it  misnoder- 
iogso  stationary  and  fixed,)  owing  to  the  great  and  fertile  fief  of*^od. 
Dunbar,  with  the  redoubtable  Castle  of  Dunbar, — ^the  principal  fiist- 
ness  and  residence  of  Earl  Patrick/  and  his  family,  being  in  (ancient) 
Lothian.    He  thus  might  be  as  well  termed  **  of  Lothian/'  as  the  gal- 
lant Sir  William  Stewart  of  Jed  worth,  ancestor  of  the  Earl  of  Galloway, 
^of  Teviotdale,'*  in  the  next  century,  from  Jedworth,  his  abode,  also 
in  that  Sherifidom.    I  need  hardly  add,what  is  admitted,  that  the  arms, 
on  the  Carlaverock  occasion,  given  to  the  **  JLothian  Earl,"  are  ejfciusiveiy 
those  of  the  Dunbars,  Earls  of  March  ;'  while  the  insignia  and  bear- 
ing of  the  cotemporary,  Malcom  **  de  Levenax,"  Earl  of  Lennox,  on  Malcom,    all 
the  other  hand,  the  true  and  only  Earl  of  Lennox,  all  ahngy  (which,  of  ^lo°?>  the  true 
itself,  rebuts  Sir  Harris'd  notion,)  were,  as  can  be  established,  as  per-        ®^  Lennox, 
fectly  distinct  as  his  noted  descentand  extraction.  Further  still,  Lennox 
at  that  time,  (and  indeed  long  afterwards,)  was  written,  '^  Levenax,' 
and  sometimes  in  authentic  deeds, ''  Levenaux,"  or  ^'  Levenaughes,' 
— eomprising  the  district  of  the  river  of  Leven  ;  but  never,  as  above^ 
"  Laonis,"  or  "Laonois." 

Sir  Harris  Nicolas  conceives  there  was  ^*  great  uncertainty  about "  No  uncertainty 
Earl  Patrick's  "  proper  title  " — ^from  thence, — and  his  being  besides  call-  «^*®*'»  "  *P- 
ed  **  Earl  of  March," — after  his  comital  border  fief, — ^as  well  as  '^  Earl  si^  Harris',  \n 
of  Dunbar."  *.  But  he,  and  his  family,  unequivocally,  used  both  of  hia  Mtyle,  from 
these  titles,  and  had  such,  not  unappropriately,  given  them,— the  latter  ^j*  '^  *^***®' 
expressly,  from  their  chief  Castle  of  Dunbar, — in  a  similar  manner,  as  gi^en  to  him,  of 
theold  ]&urls  of  Sussex,  and  Ormond,  in  England  and  Ireland,  weredesig-  Earl  of  March 

• 

'  See  Macpherson't  Geographical  Illustrationt  of  Scottish  History,  mb  voce 
**  Lownes."  He  adds,  **  from  undoubted  authority,**  that  Dunbar  was  formerly 
held  to  be'  in  Lothian,  and  talks  synonymously  of  *'  the  Earldom  of  Lothian  or 
Dnnbar,"  which  indeed  at  once  solves  the  question.     See  also  ib,  under  Dunbar, 

*  The  Castle  of  *'  Colbrandtpath,'*  (or  the  path  of  Cotbrand,  tome  olden  hero,  The   Castle    of 
now  corrupted  into  Cockbnmspath,)  was  their  next  feudal  strength,  and  fastness,  Colbrandepath, 
-^tbe  principal  messuage  of  the  Earldom  of  March,  judiciously  reared  in  Berwick-  mf--?I!-^'^f  the 
shire,  adjacent  to  a  formidable  pass  and  ravine.     That  Earldom,  after  being  taken  Earldom     of 
from  the  Dunbars,  (by  James  I.)  was  granted  to  Alexander  Duke  of  Albany,  March,  with  the 
brother  of  James  IIL  ;  and  in  the  solemn  matrimonial  settlements  in  1477,  (once  dependencies, 
in  the  <*  Treeor  dee  chartret  in  Paris,}  between  the  Prince,  who  thus  also  was  Earl  Anne  Du '^ss 
of  March,  and  Anne  de  Boulogne,  the  daughter  of  Bertrand,  Count  de  Boulogne,  of  Albany    in 
Lauragais,  &c.  he  settles  upon  her,  during  his  life,  *'  Palatium — nuncupatnm  Col-  1477. 
bramdeepeehi"  (modem  Cockburnspath,)  with  the  demesne,  and  dependencies. 

Acoording  to  our  striking  usage,  the  old  arms  of  the  Dunbars,  Cthough  so  hnm« 
bled  in  the  sixteenth  century),  the  original  Earls  of  March,  became, — as  in  the 
instance  of  the  Bmces,  the  original  Lords  of  Annandale,  the  arms  of  the  fief,  and 
were  quartered,  in  right  of,  and  as  descriptiye  of  the  Earldom,  by  Duke  Alexan- 
der ;  as  can  be  abundantly  proved  by  authentic  ancient  authorities. 

*  See  the  Roll,  in  the  Siege  of  Carlaverock,  p.  34. 

*  Ibid  p.  211. 


990  APPENDIX. 

and  Danbtf ;    nated  £ari8  of  Arundely  ftnd  of  Gownui,_that  is^  from  ihmr  lespeefttre 
which  if  eoun-  Castles  of  Arundel,  and  Gowran,  &e.    The  previous  aanduous  anti- 
practice  in  ^e  4^^*^  ^  unable  to  detennine  of  what  stock  of  the  Gnhams,  Heniy  de 
sister  kingdoms.  Graham  was,    another  hero   at    Carlaverock ;    for   **  Sir    WiUiam 
{Robert  J  Douglas,  (author  of  one  of  our  very  inconeet  and  fiuilty 
Who  was  Henry  Peerages,)  takes  no  noHee  of  him/'  '—-certainly  a  most  likely  dream- 
^®   9''*2^'     stance^  and  just  what  was  to  be  expected.    The  same  Henry,  eridently 
the  siege   of    ^™  ^^®  saltier  accompanying  the  escallops  (the  principal  Graham 
CarUverock  ?     bearing)  in  his  shield,  was  of  the  distinguished  line  of  the  Grahams  of 
Eskdale,  connected  with  Annandale,  he  adding  the  saltier,  the  original 
feudal  arms  of  that  district,  in  token  of  feudal  and  clannish  dependenoe 
upon  the  Bruces  of  the  royal  stem,  the  first  and  paramount  Lords  of 
^nandale,  like  other  feudatories,  and  proprietors,  as  is  notorious,  in  that 
qnarter.    Although  the  fisct,  inadvertently,  has  been  difierently  staled 
by  some^  the  saltier  was  exclusiyely  the  arms  of  Bruce,'  (not  borne  by 
them,  as  fabulously  held,  in  right  of  an  Annand  heiress,)  and  thus  eame^ 
by  our  general  heraldic  practice,  to  be  those  of  Annandale,  &e.  I  observe 
Sir  Harris,  and  English  legal  antiquaries,  very  frequently  quote 
Douglas  as  an  authority ;  if  they  knew  the  true  character,  and  nature 
of  his  Peerage,  (here  referred  to  by  the  former,)~8o  inmieasumbly  in- 
ferior even  to  Dugdale's  similar  lucubrations  in  England,— I  am  sure 
they  would  be  the  last  to  do  so.'  Nor  does  Wood's  Edition  mueh  amend* 
Edmund  Hastings,  yonnger  brother  of  John  Hastings,  the  oompeti- 
Sir  Harris  Nico«  tor  for  the  Scottish  crown,  in  1291-2,  also  figures  at  the  Si^ge  of  Oar- 
las,  and  English  layerock,  and  in  the  Roll.*    In  the  famous  letter  of  the  English 

^uiiledt^th  the  ^^^^^  ^  *^®  ^^V^  ^^  ^^^»  noticed,  and  commented  upon  by  Sur 
style  and  desig.  Harris  Nicolas  in  his  preceding  performance,  and  in  the  ArchsBologi^  he 
nation  of  Ed-  is  described  as  '^  Dominus  of  Enchun^ioimok"  or  **  EnMmchdmok^ 
{""iSOl"" bro!  ^^^^®  ^^®  legend  on  his  seal,  appended  to  the  same,  bears  to  be  ^  S : 
ther  of  the  Edmundi :  Hasting  :  Comitatv :  Menetei** ' — This  description  and  de- 
Scottish  compe-signation,' not  unnaturally  again,  has  puzzled  him,  as  well  as  other 
titor,  another  Eugjigii  authorities, — ^as  much  as  the  uncouth  epithet,  "  Kenkynol,'* 
hero.  ^^^^  Hardwicke,  in  the  Cassilis  claim,"  without  any  satisfactory  means 

»  Tbid.  p.  381. 

'  The  chief,  too,  was  also  used  both  by  the  Bmces  and  Grahams. 

'  By  the  way,  Chambers,  inhu  Caledonia,  toI.  I.  p.  647,  n.  c,  far  IVom  inaocu- 
ratelj  states,  that  Douglas's  **  account  of  the  Grahams,  which  begins  with  legend, 
is  a  Tast  mass  of  confusion,  contradiction,  and  error.'* 

*  Siege  of  Carlayerock,  pp.  56-7,  299,  300. 
Enehmichelmok  *  ^^'  PP'  ^^»  ^^»  referring  to  Palgraye's  Parliamentary  writs,  and  **  Ar- 
or  Enchmaehol'  choeologia,"  toI.  XXI.  pp.  192,  217-18.  "  £nchnneholmok,'*&c  is  there  so  giren, 
mok  suspected  but  I  rather  suspect  that  the  original,  on  a  critical  examination,  might  warrant  the 
***^«  ^**«  ^^"®  reading  of*  Enehmichelmok,'*  or  «<  Enchmachohnok,**  owing  to  the  noted  flezl- 
Enirlish  autho-  ^^®  character  of  two  of  the  middle  letters, — ^wbich  would  even  more  closely  iden- 
rity.  tify  the  word  with  that  to  be  noticed. 

*  See  p.  674. 


APPENDIX.  991 

of  Boliiiioii,  or  riddance  of  their  embanraasment.    Sir  ELarris,  in  the 
dilenuna^  seeka  amusingly,  to  interpretate  the  signifieant  words,  *^  Co-  The  v^ordt 
mitatu  Menetei/'  as  of  ^  Saint  David's  in  Wales,"  *  from  whence  it  there,  "  Comt- 
seems  Edmund  here  takes  his  designation;  which,  though  not  so  remote  *^^\,jy*,^L. 
as  Jericho,  may  be  yet  allowed  to  be  rather  far-fetched ;  but  he,  and  all  poted  to  denote 
utterly  choak  at  the  barbarous  '<  Enchimcholmok,"  ^  Enchunehol-  "  Saint  Darid's 
mok,"  &c.  which  they  can  by  no  means  digest.'    Although  certainly  Jhey  *an**make 
not  a  Daniel,  I  think  I  can  explain  these  portentous  and  mysterious  nothing  of  Ed- 
writings,  that  have  dazzled^md  blinded  our  antiquarian  neighbours,  mond  s   further 
It  happens  to  be  expressly  proved,  by  a  cotemporary  English  Record,  Je  EncWncheU 
that  John  Hastings  mentioned,  the  competitor,  brother  of  the  Edmund  mok. 
in  question,  the  34th  of  Edwaid  I.,  had  obtained  the  ^^  parcel "  or  poT" 
tUm  of  the  *^  Comitatue**  of  ^^  Meneteth,"  which  had  belonged  to  Alan 
the  SooUish  £arl  of  Meneteth  ;*  and,  as  is  notorious,  was  seized  by  that 
monarch,  on  his  being  captured  on  the  side  of  Bruce.^  This,  confeseedly, 
as  I  conceive,  is  identically  the  very  Comitatue,  latinized,  that  of  ^'  Mene-^  '•  ComHatu  Me- 
tei/'  •  in  Edmond  Hasting's  style^  and  description,  and  beyond  doubt  "^** "  clearly, 
the  Scottish  Comitatus  of  ''Menetetk;'  (afterwards  Menteith  or  Mon-  SSnd?  denotes 
teith,)  that  did  partly  belong  to  the  above  Earl  Alan,  and  infallibly  the  Scottish  Co- 
lay  in  the  Sheriffdoms  of  Stirlingshire  and  Perthshire,  &c.  in  Scotland,  «*<«<«»  de  Me- 
— ^instead  of  being  "Saint  David  in  Wales."    While  it,  moreover,  is  as  ?*^^|-„^°  j© 
certain,  that  the  principal  residence^  or  futness^  and  "dUmmie^*  ofEnehimekeU 
the  Earls  of  "  Menetei,"  or  "  Meneteth,"  in  right  of  ikie  fief,  compris-  ^^  "  properly 
ed  two  islands  in    the   lake   of  "/ncfcemaefco/iiiofc,"— written  fi^/^J^^^^^'^of 
chiefly  subsequently,  "  Inchmaquhomok,"    and  (latterly),  "  Inch-  the  principal 
mahome^"— or  of  **  Meneteth,"  aa  it  was  further  styled.    The  former  P<>rtioo,  and 
venerated  appellation  extended  to  the  general  locality,  though,  strictly,  ^/c^mita- 
that  of  the  larger  island,  which  likewise  contained  a  Priory,  founded  by  tus, 
Walter  Comyn,  Earl  of  Menteith,  after  1238,  whose  ample  picturesque 
ruins,  with  those  of  other  buildings,  and  the  Earl's  gardens,  &c.  were 
in  preservation  last  century  f  and  where  the  sepulchral  monument  (the 

'  Anchseologia,  ut  ntp,  p.  218. 

'  Ibid  and  Siege  of  Carlaverock,  p.  299,  &c 

'  Calend,  Rot,  chart,  et  Inquini,  ad  quod  dam,  p.  138. 

'  Earl  Alan,  **  q\/u  Conte  Meneteth,"  (he  having  been  forfeited  in  consequence) 
at  -the  same  time,  (in  1306,)  was  delivered  in  custody  to  the  said  John  Hastings. 
Foed.  yoL  11.  p.  1012. 

'  The  word  was  written  in  the  13th  and  14th  centuries,  **  Meneteth/'  and  old  orthogra- 
**  Meneted,"  as  by  instances  before  me,  from  Rymer's  Fcedera,  and  the  Rotuli  Sco-  phy  of  the  Co- 
tia,  &c.  so  it  might  likewise  perhaps  be  either  of  these,  or  Menetet,  in  the  English  ^^^^  of  Me- 
anthority  referred  to,  the  "  d  "  or  «*  th,"  which  amount  to  the  same,  being  obscured,  "^Jj^^^or  Mon- 
or  obliterated  by  time,  and  the  more  likely,  as  Sir  Harris  Nicotes  informs  us,  that^eith! 
the  legend  comprising  the  description,  is  *'  now  very  impeffeet,**  Ardueolog.  mt 
sup.  p.  217.     In  Blaer*s  Atlas,  in  1662,  the  lake  is  that  of  iKchemahmo, 

'  See  Macpherson's  Geograph.  lUustrat.  under  ''Ineh-mahomo"  and  *<  Menteth 
(Lahe  of,)*'  the  Priory  of  **  Inchmahcme,"  (the  present  designation)  by  the  Rev. 


99Q  APPENDIX. 

same  being  naturally  the  family  burial-place)  of  Walter  Stewart^  Earl 
of  Menteithy  who  figured  after  the  middle  of  the  13th  century,  is  yet 
to  be  seen.*    We  hence  now  again,  equally,  discoyer  the  import  of  the 
remainder  of  Edmond  de  Easting's  description,  consisting  in  the  still 
more  inexplicable  designation,  as  was  thought,  of  ^^  Dominus "  of 
"  Enchimchelmok,"  or  as,  I  suspect  truly,  **Enchmichelmok,'*  or  "  Ench> 
macholmok," '  as  well  as  the  locality  of  the  title, — ^it  being  nothing 
Jnehmaeholmok  more  than  the  preceding  **  Indiinachoimok,**  which  the  very  sound,  and 
expresses  strict-  pronunciation  intimate,  as  shewn ;  or  the  insula  Sancti  Cohnoci,  or 
moJi^r'^ih^' Saint  Colmok's  isle,  from  its  tutelary  saint ;»— the prefixture  "^Inthe,^ 
principal  Island  ^^  ^*  Enche"  (an  obvious  English  corruption,)  denoting  an  island  with 
in  the  lake  jof  us,  and  "  mOy^^  good,  or  holy;  while  /  formerly,  being  often  mute,  has  been 
Meneteth,    or  g^ppressed  in  the  English  orthography,  as  well  as  in  the  other  Scot- 
hence,  with  the  tish  acceptation  of  '^  Inchmaquhomok."  Combining  therefore,  the  «n- 
general  locahty,  tire  description  of  Edmond  Hastings  in  1301,  thus  articulately  rendered, 
was  also  called  ^{j|gh  indeed  speaks  for  itself,  so  consistent,  obviously  self-explanatory, 
or   Inchmaqu'  ^^^  corroborative,  it  resolves  simply  into  this,  that  he  was  Lord  of  **  In> 
homok,  chemacholmok,"  in  the  Earldom  of  Meneteth,*  the  other  parcel  or  por- 

tion of  the  latter,  distinct  from  what  was  granted  by  Edward  I.  to  his 

Macgregor  Stirling,  pp.  32,  n.  1 14-1 5-1 6,  Macfarlane*s  Geog.  Collect.  Ad.  Lib.  &c. 

&c.     In  the  Scottish  Chamberlain's  Accounts  (toI  I.  p.  306.)  for  the  year  1958, 

there  Is  allusion  to  a  procedure  **  per  Priorem  de  Inchemaehalmok.**     See  also 

subsequent  note  3,  under  Priory  of  **  Sanest  Colmoei.*'    1  need  not  add,  that  the 

lake  of  Menteith,  with  the  ruins,  andoM  trees,  is  still  extremely  loyely  and  rooantic 

Sepulchral  mo-     '  It  exhibits  Am  arms,  a  fess  cheque  for  Stewart,  differenced  with  a  label  in 

nument  of  Wal-  chief,  as  a  cadet  of  the  principal  stem  of  Stewart.     He  is  cross-legged,  hariog 

Ru*!    f  M      -   been  a  crusader,  while  a  slight  coronet,  peculiar  to  his  time,  and  quality,  encircles 

teth  who  figur-  ^i*  head.     The  same  arms,  as  by  his  seal,  which  I  have  seen  at  the  Chapter 

ed  after  the     House  of  Westminster,  were  borne  by  Earl  Alexander,  his  son,  in  a  shield,  upon 

middle  of  the     fi^Q  breast  of  an  eagle  displayed.     The  family  afterwards  took  the  mere  simple 

I    h       h  U       difference  exclusively,  of  placing  the  cheque  on  a  bend  dexter.     Edmond  de 

mok,  now  called  Hastings,  in  the  Carlaverock  Roll,  has  his  paternal  arms,  or  those  ordinarily  of 

Inehmachome,    Hastings,  with  the  difference  of  a  label  in  the  former  way,  which  was  then  much 

used  by  our  higher  Barons,  independent  of  Princes.     See  Siege  of  Carlaverock, 

pp.  56-7.     It  is  the  known  Orleans  difference.  '  See  p.  990,  n.  5. 

*  See  what  is  stated,  p.  991 ,  n.  6.  Spottiswode*s  Religions  Houses,  under  /ii«A- 
mahome,  ap,  Keith's  Bishops,  *'  Priory  of  Inchmahome,"  ut  sup.  p.  29,  referring  to 
General  Hutton,  the  famous  Scottish  monastic  antiquary,  and  pp.  1 14*15,  &c.  Hid. 
Macpherson,  ut  sup.  An  original  grant  by  Alan  Earl  of  "Menetheth,"  forfeited 
by  Edward  I.  in  1306,  (In  the  Halden  of  Glencaglo's  Charter-chest,)  but  without 
date,  of  the  lands  of  Rusky,  in  the  *'  Comitatu  de  Menetheth,**  is  witnessed  by 
<*  Cristino  Priori  de  Insula  Saneti  Colmoei ;"  and  *'  Adam  Priour  del  Idle  de  Seint 
Colmoth,  et  le  Couent  de  mcsme  le  lu,*'  among  the  other  Scottish  ecclesiastics, 
swear  fealty  to  Edward  1.  in  1296.   See  Ragman's  Roll,  p.  117. 

*  In  like  manner,  as  Anne  de  Boulogne  would  have  been  described,  in  right 
of  her  Scottish  jointure  property,  namely,  of  Colbrandespath,  in  tfie  Earldom  of 
March,  of  which  the  former  was  the  chief  castle,  (see  p.  989,  n.  2.) 


APPENDIX.  993 

brother, — which  he  thus  necessarily  held, — and  the  prindpal,  containing  Edmond   If  ait- 
the  chief  castle  and  "  chemys,"  almost  impregnable  from  its  insnlar  situ-  *!*'  V  '^'r  ^'^d 
ation,  the  bulwark  and  head-quarters  of  that  important  fief.    This,  at  ofthe  former 
least,  must  be  the  clear  legal  conclusion,  unless  such  precisCy  co-identical  place,  in  ComU 
places  by  fia»»c,but  still  always  in  connection  with  "Edmund  Hastings,"  {"'JJ  **®  J'eno- 
happen  to  be  detected  in  "  Saint  David's  in  Wales,"  or  elsewhere,  «♦  st!  David's,  in 
which  I  rather  conceive  would  be  somewhat  miraculous ;  for,  as  yet,  I  Walea." 
am  aware  of  only  one  Earldom  of  "Meneteth,"  and  "  Enchemachol- 
mok,"  and  of  no  other  places  that  approach  to  them  in  name  and  des- 
cription.   And  my  interpretation  besides,  naturally  quadrates,  and  is 
supported  by  the  circumstance  of  Edmund,  independently  of  his  pos- 
sessing lands  in  Scotland  in  1296,'  which  he  lost  or  forfeited  in  1806,  at 
Brace's  accession,*  having  been  much  engaged  in  the  Scottish  wars.* 
Nay,  he  had  even  a  special  command,  (as  we  may  presume,  owing  to  Also  lapported 
his  military  eminence  and  talents,}  from  Edward  I.,  the  11th  of  Sep-  ^y   circum»tan- 
tember  1302,  to  remain  in  his  service  in  that  country,  instead  of  at-  tTiusbeinff  heldi 
tending  Parliament,  to  which  he  was  repeatedly  summoned.*    While,  through  the  con- 
therefore,  a  parcel  of  the  Comitatue  of  Menteith,  forfeited  by  Earl««"en^Po"cyof 
Alan,  and  hence  to  be  disposed  of  by  Edward,  was  given,  as  a  suitable  hiiJ'^'and  'hi/ 
return,  to  John  Hastings,  the  competitor,  who,  besides  his  Scottish  brother,  &e. 
royal  descent,  had  likewise  distinguished  himself  on  the  king's  side, 
against  the  Scots,*  another,  upon  a  proportionate  scale,  from  the  same 
motive,  was  cor^rmed  to,  and  consoiidated  with  his  brother,'  who  had 
even  mora  so  ;  namely  the  principal,  and  more  material,  which,  from 
what  has  been  premised,  as  containing  the  castle  of  Inchmacholmok, 
&c.  was  best  subservient  to  military  purposes,  and  hence  the  better 
intrusted  to  his  maintenance,  owing  to  his  superior  admitted  military 
qualifications.    Obvious  policy  too,  would  thus  suggest  the  division 
ofthe  entire  fief  between  one  English  family,  though  having  Scottish 
relations,  yet  the  close,  and  devoted  adherents  of  Edward  I.,  and  swayed 
by  a  common  English  interest ;  which  again  reconciles  and  upholds 
my  solution  of  Edmond's  description  in  1301,  by  cogent  probability, 
that  is  unopposed  too,  by  any  objection. 

So  much,  therefore,  for  things,  as  they  yet  stand ;  hni/Urther  still,  I  But  further,  my 
think  that  my  conclusion  as  to  the  latter,  may  be,  besides,  palpably  and  *^**"?"***?m^  ** 
curiously  evinced,  and  corroborated,  even  by  a  personal  interest  and^g^  /^JJ 
claim  attaching  legally  in  Edmund  Hastings,  to  the  preferable  or  right  attaching 
dignified  portion  ofthe  Menetethfief  in  question  ;  in  support  of  which,  *«  Edmond.  in 
there  would  appear  to  exist,  if  not  strictly  the  most  direct,  at  least  mor-  gubjeST^' 
ally  strong  and  irresistible  proof. 

*  See  Ragman's  Roll,  p.  167,  and  Rot.  Scot.  vol.  V.  p.  3. 
■  See  Roberlion's  Index,  p.  1,  No.  16,  and  p.  26,  No.  19. 

*  Siege  of  Carlaverock,  pp.  299-30. 

*  Ibid,  and  Palgrave's  Parliamentary  Writs,  Digest,  &c 

*  Siege  of  CarlaTerock,  pp.  296-7. 

'  As  to  this,  and  the  main  nature  of  his  title,  see  afterwards. 

3r 


994  APPENDIX. 

It  Also  eentered     The  wife  of  Edmund,  or  Sir  Edmund  Hastings,  as  he  eame  to  be 

ShU  wffJ^l'li!'^^®^'  ^**  certainly  a  great  Scottish  heiress,^  which  of  course  riyetted 

bella,  a  great  his  connection  and  interest  with  Scotland.    This  is  duly  established  by 

ScottwhbeireM.  her  solemn  act  of  homage  to  Edward  I.  in  1906,  with  others,  of  whom 

she  pre-eminently  takes  the  lead,  in  the  character  of  **  Domina  Isabella, 

uxor  Domini  EdmuiuU  de  H^utingw^  for  a  portion  of  her  estates  in 

Forfftrshire  and  Stirlingshire,  that  partiy  comprehended  the  Comitatus 

of  Meneteth.*    We  thus  obtain  her  Christian  name ;  but  what  was  her 

suniame  ?    That  next  transpires  from  a  curious  mandate  or  order  by 

Curioat  inter-  Edward  I.  the  6th  of  January  1292,  directed  to  the  feeble  and  incapa- 

ference  of  Ed-  hie  John  Baliol,  then  king  of  Scotland,  wherein  he  apprizes  him  that 

ward  I.  in  1292.  ^  ^  ^^^  ^j^^^  j^^  ^^  ^^  kingdom  of  Scotland, ''  ut  ipsins  superior 

Dominus,"  he  (Edward)  m^ht  have  given  (dediasemut,  i.  e.  duly,  by 
hiw)  the  fnaritagitun  of  the  sud  Isabella,  which  thenfeU  to  the  crown, 
to  the  said  Edmund  de  Hastings,  ^  dUedo  et  fideli  noHrOy*  and  insists 
upon  J(to,  who  had  here  different  views,  recalling,  and  absolving  the 
lady  from  the  oa<&,  it  seems,  he  had  ** extorted**  from  her,  that  she 
would  not  marry  without  his  consent ;  which  was  deemed  derogatory 
to  Edward's  right,  through  the  eupertorityj  so  prevunuiy  vesting  in  him, 
and  which  (of  course,)  he  was  determined  yet  to  exercise,  and  imple« 
ment  in  behalf  of  Edmund.*    This  shews  the  high  importance,  and 
competition  necessarily  attaching  to  Isabella,  and  her  alliance,  who,  in 
consequence  of  such  singular  retrospective  interpo6ition,--A  grant  of 
marUagium  for  the  most  part,  inducing  an  actual  marriage  between 
such  parties, — ^has  been  obliged,  John  being  wholly  controlled,  to  obey 
the  dictates  ffi  tota,  of  the  haughty  Lord  paramount,  to  do  as  he  was 
inclined,  and  in  reality,  as  we  have  seen,  to  marry  his  cherished  sub- 
The  former,  La^ject  and  favourite.*    But,  in  regard  directly,  to  the  main  point  here^ 
dy  Isabella  Co-f^Q^  ^  establishing  what  I  premised,  she  is,  in  the  mandate,  expressly 
^aiiamComynt  Styled  ^^  Isabella  CTomj^n,  reUcte  WUlielmiComyny**  vrhidi  not  only  unfolds 
dead  at  least  her  surname, — that  of  Comyn — as  well  as  her  fttMfiafuf^,-— our  higher 
^^^^  Sr5Arf^*^*®^^*^*^  ^  Isabelhi,  according  to  the  peculiar  Scottish  custom,  still 
January  1292.    i^taining  their  maiden  appellation,  after  their  marriage  and  widow- 
hood,^—but  further,  opens  a  door  to  her  filiation  and  extraction ;  for, 

'  This  intimatioD  is  besides,  tbe  more  importaat*  as  Sir  Harris  Nicolas  says*  that 
*<  whether  he  (Edmund)  was  married,  and  left  issue,  is  unknown ; — nor  is  €tnp  tMng 
stated  on  the  subject  in  the  pedigrees  of  his  family.*'  .Siege  of  Carlarerock,  p. 
300. 

'  Rymer's  Poed.  last  Edit.  vol.  I.  part  II.  p.  995. 

'  Rot.  Scot.  vol.  I.  p.  16,  a. 

*  There  could  certainly  be  no  feudal  objection  to  the  marriage  from  **  diq;Mir- 
agement  '* — Edmond,  as  well  as  bis  elder  brother,  the  competitor,  being  descend- 
ed of  the  Scottish  royal  family,  and  having  good  Scottish  blood  in  his  veins ;  nay, 
bad  tbe  kingdom  of  Scotland  wholly  gone,  in  the  course  of  common  law,  the  latter, 
as  is  well  known,  as  tbe  third  younger  co-parcener,  after  Baliol  and  firuce, 
would  have  been  entitled  to  one-third  of  the  kingdom. 

*  This  has  been  fully  proved  under  the  Bforay  claim,  see  pp.  78d-9,  790-1,  &c. 


APPENDIX.  995 

laying  all  the  eireomatanoes  together^  I  oonoeiTe  it  is  plain,  that  this 
defunct,  her  first  spoase, — she  hence  too  being  a  widow,  and  entitled  to  ItabelUnootber 
a  Comyn  jointure, — ^was  no  other  than  **  William  Comyn"  of  Badenoch  *•"  *!>•  widow 
and  Kirkintulloch,'  the  undoubted  chief  of  the  Comyns.    That  per-  J|[y„^of^de- 
son,  it  happens,  was  alire,  the  Friday  after  the  festival  of  Saint  Gre-  nocb,  sod  Kirk- 
gory  in  1290,'  but  had  as  indisputably  predeceased  without  issue,  the  >n<nllo«^»  ^^^^' 
dd  of  August  1291,  when  John  Comyn,  next  of  Badenoch,  his  younger  ^^^^  ^'^tJe^" 
brother,  gave  in  his  claim,  as  one  of  the  competitors  for  the  Scottish  competitor, 
crown,  and  in  which,  as  in  a  modem  Peerage  case,  he  explicitly  shews,  (as 
was  incumbent,)  that  the  fiunily  succession  and  material  representation 
had  devolved  on  him,  owing  to  **  William  Comyn,"  his  elder  brother, 
a  very  striking  coincidence,  kaeing  died  **  Hne  haerede  de  corpore  suo."  * 

But  this  is  not  all  ;  for  the  last  William,  as  is  fixed  and  as-  Which  William 
certained,  himself  a  Comvn,  had  moreover  married  a  Comyn.  his  first  ^**  ""'"^  f  ^.?" 
cousin, — ^thus  am>rdmg  m  her   case,  a  pomted  comcidenoe  again,  ^he  tjbowe  lady, 
with  that  of  the  above  Isabella  Comyn,^ — ^who  was  no  other  than  who  was   the 
the  Mid  and  heireee  of  the  Countess  of  Meneteth,  in  her  own  right,  ?*?****"  ^  ^^ 
direct  descendant,  and  representative  of  the  original  Earls  of  Mene-Q^uQteMofMe- 
teth,-  by  Walter  Com3m,  the  uncle  of  the  said  William,  who  was,  Deteth  in    hot 
of  course.  Earl  of  Meneteth  by  the  courtesy.    The  grant  of  the  marita-  »wn  right,   hj 
gium  of  this  sole  child  and  heiress  of  the  Countess  of  Meneteth,  v^alter  Comyo. 
must  therefore,  in  the  event  of  her  widowhood,  and  survival,  have 
strictly  fiillen  some  time  after  the  Friday  since  the  festival  of  Saint 
Gregory  in  1290,  when  her  husband,  William  Comyn,  was  alive,  but  be- 
fore the  3d  of  August  1291,  when  he  had  predeceased ;  which  again  signal- 
ly corresponds,  in  its  necessary  date  and  character,  with  the  second  mari- 
iayium  also,  of  Isabella  Comyn  mentioned,  also  the  widow  of  a  William 
Comyn,  and  the  spouse,  secondly ^  of  Edmund  de  Hastings, — ^which,  as  in- 
dubitably, had  opened  to  the  crown,  not  merely  about  the  5th  of  Jan- 
uary 1292,  the  date  of  the  preceding  mandate  of  Edward  I.,  who  there 
alludes  to  it,  but  specifically,  between  October  in  1290,  and  the  19th 
November  '  1292,  when,  as  likewise  follows,  from  his  express  intima- 
tion there,  to  that  effect, — ^this  period  comprising  the  length  of  such 
interr^pium," — ^he  held,  and  disposed  of  Scotland,  and  its  interests, 
as  Lord  paramount,  and  superior.    And  the  argument  from  this  last 
coincidence,  and  consequent  identity  of  Isabella  Comyn,  with  the 
daughter  of  the  Countess,  tells  the  stronger,  when  it  is  remembered.  Pother  corro- 
that  grants  of  the  maritayium  casualty  were  ordinarily  made  by  the 
erown,  shortly  after  they  fell,  certainly  in  the  case  of  a  widow,  such 
as  she,  arrived  at  maturity.    Combining  therefore,  these  striking  facts, 

*  Kirkintulloch  was  one  of  the  oldest  family  possessions,  transmitted  from  an 
early  period,  and  among  the  principal,  next  to  Badenagh. 

'  See  Rymer's  Feed,  last  Edit.  vol.  I.  part  II.  p.  730.      There  being  festivals 
of  several  Saint  Gregories  in  the  year,  1  cannot,  at  present,  ftx  the  precise  month. 
'  Rymer's  Foed.  last  Edit.  vol.  I.  part  II.  p.  776. 
^  See  abore,  p.  994. 
'  January  then  followed  November  in  the  Calendar  of  the  year. 

*  See  l^ailes's  Ann.  Edin.  1797,  toI.  I.  pp.  214-15-16-17,  243. 


996  APPENDIX* 

with  this  other,  equally  so,  formerly  uuknowD,  but,  as  I  have  lately 
From  the  Coan-  discovered,  that  the  name  of  the  above  Comitess  of  Meneteth  actually 
teu*i  name  too  also  was  Isabeilay^  which,  in  every  likelihood, — especially  in  an  age  when 
being  actaaily  fomale  Christian  names  were  but  few,  would  descend  to  her  daughter ; 
the  general  con-  ^^d  further,  that  no  distinct  ^*  William  Comyn"  at  the  time,  but  he  of 
curring  circum-  Badenoch  and  Kirkintulloch,  can  be  properly  ascribed  to  **  Isabella 

rit^^thetST  P<>™y°»"  **^e  "  "^t/^"  ^^  » **  William  Comyn,"— thus  having  besides,  the 
'  Mentical  Christian  name  of  the  former, — ^as  her  husband  ;  while,  not 
overlooking  either,  but  taking  fully  with  this,  the  whole  jet  aliunde^ 
and  uniform,  and  corroboratory  complexion  of  the  case,  as  already, 
and  to  be  afterwards  adverted  to,  I  humbly  submit  that  Me,  Isabella 
Comyn,  could  be  no  other  than  the  Countess's  daughter. 
Edmand  Hast-     Holding  then  **  Isabella  Comyn  "  to  be  thus  filiated,  and  possessing 
Ingi,  therefore,  gn^h  eminent  status,  she  was  clearly,  in  right  of  her  mother,  whom  she 
wife^lsabella     exclusively  represented,  the  direct  and  preferable  heiress  of  the  ancient 
Comyn,  was  the  Earls  of  Meneteth,  their  dignity  and  estates  having  confessedly  de- 
elder  repreten-  yol ved  to  her  mother  ;  so  that  we  now  discover  how  her  second  husband^ 
EarlTof  Mene- *'^^^^^'<S'  Edmund  de  Hastings,  who,  by  the  courtesy,  had  l^ally, 
teth,  and  there-  whatever  she  had,  was  more  especially,  and  immediately  entitled  to  be 
by  entitled  to  «  Dominus  "  of  "  Inchemacholmok,"  (of  itself,  by  the  way,  corrobora- 
d!emac^mok  *  *^^®  ®^  *^®  identity  in  question,}  that  is,  as  has  been  proved,  actually 
the  principal  lo-  of  the  **  Meneteth  principal^*'  as  we  would  say,"  with  which  the  former 
cality  in  that  ^^  synonymous.    In  other  words,  it  was  the  chief  portion  of  the  dig- 
i^^nuTi  SiA  ^^^  Meneteth  fief,  what  legally  attached  to  the  eldest  Meneteth 
his  description  heiress,— and  in  the  same  way,  reflectedly,  to  him,  through  his  wife, 
in  1301.  In  that  capacity  ;  hence  irresistibly  supporting  my  interpretation  of 

his  description  in  1301,  that  infallibly  related  to  the  above,  and  not 
Reasons  why  to  **  Saint  David  in  Wales."  Why  Isabella  did  not  assume  the  title 
Isabella  did  not  of  Countess  of  Meneteth  may  be  easily  explained,  by  certain  spedal 
take  the  title,  j^^^^  ^^^^  impediments  judicially  in  her  way,  that  are  familiar  in  his- 
Meneteth  his-  ^^*  Countess  Isabelki,  her  mother,  upon  the  decease  of  Walter 
•tory.  Comyn,  her  first  husband,  (a  younger  son  of  the  family  of  Badenagh,) 

founder  of  the  Priory  of  Inchemacholmok,  had  hastily  married  in 
1258,  without  due  permission  of  the  crown,  to  whom  her  second  mari- 
tagium  (as  in  her  daughter's  instance,}  thus  fell.  Sir  John  Russel,  an 
**  ignoble  English  knight j"  in  consequence  of  which,  and  a  charge 
against  her  of  poisoning  the  former,  a  powerful  and  distinguished  per- 
-fionage,  after  being  imprisoned  with  Russel,  she  was  stript  of  her  inh&- 
jitance,  and  compelled  to  fly  to  England  ;  when  the  Earldom,  and  es- 
tates of  Meneteth,l>eing  wantonly  C**proterv^**  J  clumed  by  Walter  Stew- 
art, (the  Earl,  who  lies  buried  at  Inchmacholmok,  or  Inchmahome,')  in 
right  of  his  wife,  Mary,* — ^the  next,  though  younger,  Meneteth  heiress, 
were  allowed  him.    This  is  curiously  transmitted  to  have  been  ^^fa- 

>    Seep.  997,  n,  1. 

*  John  Haldane,  hnsband  of  Agnes,  eldest  coheiress  of  the  Earls  of  Lennox,  in 
the  I5(h  eentnry,  was  thus  styled,  "of  the  Lennox prineipaL" 

'  See  pp.  991 -S.  '  Ex  parte  uxorie  tua.  Ford,  «/  seq. 


APPENDIX.  997 

▼ore  mag;natun,"  chagrined  at  the  Countess,  a  woman  of  great  attrac- 
tions, haying  frowned  at  their  overtures  of  marriage  ;  ^*  unde^'*  Fordun  Isabella,   her 
states  "mortem  comitis,  viri  prions,  ei  imposuerunt,"  and  imprisoned  "J?'J^^''  f^J"^^!** 
her,  and  the  knight.^    A  fruitless  attempt  was  made  by  Countess  Jm-  umhifymLryxog 
hdiOy  judicially,  to  recover  her  possessions^  in  1260.'    In  1273,  upon  her  a  second  time, 
demise,  her  only  child — UaMta  Com3m,  as  now  turns  out— by  Walter  *'^®'**^f*J^*^^* J" 
Comyn,  having  married,  as  we,  at  the  sametime,  learn,  her  first  cousin,  foniiw  her  hut- 
William  Comyn,  son  of  John  Comyn  of  Badenagh  and  Kirkintulloch,  band, 
a  keen  litigation,  at  the  instance  of  John,  as  their  guardian,  ensued  at 
York,  for  the  Earldom  in  question,  against  Walter  Stewart ;  the  result 
of  which  does  not  transpire,  only  the  lady  is  stated  by  Fordun  to  have 
been  ^verk  harts**  thereto.*    The  suit,  raised  in  a  foreign  kingdom, 
by  foreign  interference,  probably  was  hence  incompetent,  and  proved 
inept.    But,  at  length,  it  being  instituted  at  Sconey  by  the  said  William  Adjaitment  of 
Comyn,  in  1285,  against  the  same  Walter — in  a  manner  the  intruder,  ***®  Meneteth 
— ^things  were  settled,  under  royal  authority,  rather  unduly,  in  one  12!^**  where" 
view, — (Isabella,  the  true  heiress,  de  facto  at  least,  being  wholly  iuno-  although  the 

'  Fordan,  GoodaU*s  Edit.  yol.  II.  p.  92.  Lord  Hailes,  in  the  Sutherland  case,  ob-  Proof  of  the 
ierret,  "  who  was  this  Lady,  the  wife  of  Walter  Stewart,  and  what  was  the  nature  Christian  names 
of  her  claim,  does  not  with  certainty  appear.     It  is  probable,  however, — that  she  °,    j^      i^th** 
was  the  younger  sister  of  the  widow  of  Walter  Comyn,"  (the  CountesB  in  the  text).  Isabella's  mo- 
(Ch.  5.  sect.  4,  p.  14.)    I  have  been,  so  far,  fortunate  here,  as  to  supply  her  Chris-  ther,  and  of  th» 
tian  name,  previously  unknown,  which  was  Mary,  upon  the  authority  of  an  original  Countess    her 
conBrmation,  (in  the  Grantor  Seafield  Charter-chest,)  by  Alexander  111.  in  1267,  "ife^of^'waltcr 
of  a  grant  by  **  Waherus  Senescallas  Comes  de  Menetethe,"  with  consent  **  Marie  Stewart'  also  of 
sponse  sue  Camitiste  de  Menctethe,**  of  certain  lands,  to  Sir  Gilbert  de  Glenkemy.  the  second  mar- 
Herfall  figure  is  also  sculptured  on  her  husband's  monument,  on  the  right ;  see  pp.  "*ff®  ^\  ^^*  *^^' 
991-2.     This  other  original  charter,  which  I  further  discovered  in  the  Dooglu -_J.„i_. 
Charter- chest,  does  the  same  service  to  the  ejected  Countess  herself,   who 
was  before  equally  anonymous,  besides  legally  proving  her  marriage  with  Sir  John 
Rttssel,  and  letting  out  something  more.     **  Omnibus.  &c. — Dominus  JohanneM 
RuMMelluM,  et  Isabella  sponsasva,  Comitissa  de  Menethet — noverit,  &c. — ^nosdedisse 

— Domino  Hugoni  de  Abymethin,  et  heredibus  suis — viginti  libratas  terre in 

territorio  de  Abirfull,  &c.  His  teslibus  Domino  Duncano,  Comiti  de  fiffe,  Domi- 
no Malisco,  Coroite  de  Stratheme,  Domino  Alexandro  Cumine,  Comiti  de  Buch- 
ane,  Domino  Willielmo,  Comite  de  Mar,  Domino  Johanne  Cumine,  tunc  justiciario 
galuvidie,  Domino  Willielmo  Monte  fixo,*'  &c.  all  first-rate  personages.  This  con- 
veyance, (which  I  printed  elsewhere,)  without  date,  and  where  Sir  John  does  not 
take  the  title,  owing  to  his  marriage  being  without  the  consent  of  the  crown,  and 
the  enmity  of  the  magnates,  has  been  to  purchase  his,  and  his  wife's  freedom,  and 
to  be  allowed,  with  her,  to  leave  the  country ;  which  was  at  length  acceded  to,  after 
their  undergoing  some^«ctn^,  of  which  this  was  a  sample.  It  is  remarkable,  that  the 
entire  figure  of  the  Countess,  on  her  seal  appended,  erect  in  flowing  robes  and 
habiliments,  corresponds  in  costume,  with  that  of  Mary  Countess  of  Meneteth,  her 
succeuor,  on  the  above  monument  at  Inchemacbolmok,  that  characteristic,  and 
interesting  relic  of  Scottish  antiquity. 

'  Fordun,  «<  svp.  p.  96. 

'  Jlnd,  voL  II.  p.  120.  See  also,  in  part,  Winton,  the  next  authority  referred  to^ 


998  APf£Ni>IX. 

half  of  the  Earl- cent,)— after  this  fiwhion  ;  that  Walter  Stewart  should  rotain  half  of 

dom  was  con- ^j^g  Comitatus of  Meneteth,  with  the " ihemy9** (" Chbmys,")  or "  Oftim- 
Armed  to    Isa-       .   „,        _  .,.,,..        ,  ,,  ,     ,    , 

bella,  it  was     fnets"^  and  necessarily  the  dignity  that  was  usually  attached  thereto ; 

without    the     while  William  Comyn,  (in  right  of  his  wife,)  should  hold  the  other 
Md  tiife°"Jih1ch  ^*^^"  ^°  ^^^  Barony--fl& gud  in  ail  profyt— besyd  ye  Erldwroe,"  (whidi 
were  giren  to  a  ^d*  *<>  Walter)  "  all  qwytly."  •    Such  Tisitation,  her  mother's  ignohle 
remoter  heir,     nuptials,  without  the  consent  of  the  crown,  as  stated,  no  douht  a  high 
feudal  offence,  aggravated  likewise,  hy  the  allied  poisoning  of  her  first 
spouse,  like  that  in  the  decalogue,  drew  after  it,  in  respect  to  the  off- 
spring.   In  this  way,  the  £arldom  of  Meneteth,  devolyed  through 
Earl  Alexander,  the  son  and  heir  of  Walter  Stewart,  to  Earl  Alan,  al- 
ready adverted  to,  forfeited  by  Edward  I.  in  1306  ;  but  he,  being  &r 
from  a  warm  adherent  of  that  monarch,  but,  on  the  contrary,  siding 
eventually  with  Bruce, — ^indeed  the  cause  of  his  forfeiture,  while  £d- 
moud  Hastings,  the  second  husband  of  Isabella  Comyn,  was  quite  the 
reverse,  Edmund,  as  we  may  presume,  contemning  the  adjustment 
mentioned  in  1285,  in  the  very  distracted  and  turbulent  juncture, 
after  1292,  has  claimed,  and  seized  from  Earl  Alan  what  was  strictly 
Edmund  Hast-  preferable  in  her,  namely,  Inchmacholmok,  backed  of  course,  by  Ed- 
ings,  backed  by  <^ard  I.,  who  would  doubtless  support  him  in  the  possession,  which 
liave  contemn-  ^^^  ^^  ^*  obtain, seeing  that  he  was,  besides,  his  subject  and  favourite, 
ed  such  acjjust-  By  some  likely  compromise,  or  sufferance.  Earl  Alan  may  have  been  eu- 
ment,  and  taken  abled  to  retain  the  remaining  portion,  or  parcel,  that,  however,  by  his 
was"  preferably  complete  English  forfeiture,  as  has  been  proved,  was  not  inadequately 
in  his  spouse,     given,  and  for  the  reasons  assigned,  to  John  Hastings,  Edmond's 
elder  brother.    In  these  circumstances,  Edmund  being  only  a  cadet^ 
the  proud  and  exalted  appellation  of  ''  Dominus  "  of  **  Inchmachol- 
mok,'' or  of  ^^Meneteth,"  in  fact  exemplifying,  and  founding  his  prior 
right  to  the  Meneteth  dignity,  was  just  what  he  was  most  likely  to 
have  assumed ;'  and  which  he  therefore  did  in  1901,  in  full  eorrobo- 

'  The  principal  messuage  or  castle. 
The  Meneteth      •  See  Winton,  Macpherson's  Edition,  yol.  1.  pp.   397-8.     This  supports  the 

adjustment   in   uqjIq^  entertained,  that  Mary,  the  wife  of  Walter,  was  a  younger  co-paroener 
1286,    further      . ,   _    .    „  /  ,.     '*         u  *u    i  •      »  •  u     u     u         • 

shews  that  an-  ^^^°  Isabella,  or  her  mother,  though  the  law,  owmg  to  a  specialty,  has  been,  m  a 

ciently,  recom-  degree,  reyersed  in  her  favour.  As  exemplified  here  too,  and  elsewhere,*  the  prin- 

pense  was  due  cipal  messuage  was  not  given,  as  a  |ir«ct/wum, — as  at  present, — ^it  has  been  nnder- 

by  the  elder  co-  ^^^^^  agreeably  to  English  doctrine,  that  recompense  was  due  for  it  to  the  other 

younger  for  the  co-parcener.     This  is  evidently  evinced  by  the  condition,  that  the  baronial  half  is 

chemise.  to  be  possessed  freely,  "ah  pudt  in  all  profyt"  as  the  **ComitaV*  I  may  add,  that 

Macpherson  has  printed  above  "themys  *'  very  erroneously,  instead  of  "  cAcniyx," 

See  my  re-  ^  ^^  y^  ^^^^  ^iy  esamtning  the  original  MS.  of  Winton,  his  authority,  in  the 

Lennox  or  Ras-  ^"^i*h  Museum  ;  and  singularly,  although  the  meaning  here,  is  so  plain,  Lord 

ky  representa-  Hailes  has  also  committed  the  same  mistake  in  the  Sutherland  case,  (see  Chap.  V. 

tion,  pp.  10, 11 ,  sect.  4,  p.  17>)  where  he  assumes  **  Aemys  "  to  be  the  real  expression,  and  holds 

'^*  it  to  imply  the  clause,  *'  cum  bondis  et  nativu,"  or,  **  the  serfs  on  the  estate,**  in 

favour  of  Walter  I 

*  It  being  derived  from  Scotland,  forms  no  otgectipn.     Other  English  familiee 


APPENDIX.  999 

nitio&  of  my  znain  eonclusioo.    But  although  he,  by  the  eourtesy,  in 
right  of  his  wife,  the  eldest  Meneteth  heiress  of  Hney  thus  held  her 
snecessioii,  he  oouid  not,  without  the  direct  sanction  of  Edward  I.,  es-  St*^  Edward  I. 
pecially  according  to  the  English  notion,  take  the  title  of  Earl,-.as  to  JJ^^f^Sed  ^ 
which   that  able  and  sagacious   monarch,   from  political  motives,  utie  in  her,  to 
not  wishing  either  to  offend  the  powerful  John  de  Hastings,  now  the '!»«  prejudice  of 
other  Meneteth  co-parcener,  who,  being  no  Earl,  might  also  have  as-  the  "other  ^co^ 
pired  after  the  same  pre-eminence, — ^had  not  yet  signified  his  intention,  parcener,  by  a 
Things,  therefore,  so  far,  still  remained  in  abbeyance,  without  either  siogulv  title, 
taking  the  title. 

The  fact  of  Edmund  de  Hastings  likewise  being  reinstalled,  or  res-  other  corrobo- 
tored  by  Edward,  (evidently  through  the  courtesy,)  in  1296,  after  the  rations  of  my 
downfal  of  Baliol,  previously  the  admitted  king  of  Scotland,  in  lands  conclu»ion, 
in  Perthshire  and  Stirlingshire,'  while  Isabel  Comyn  has  been  proved 
to  have  done  homage  in  1306,  for  others  in  the  latter  county,"  addi- 
tionally points  at  their  possession  of  the  Meneteth  inheritance,  as 
the  Comitatus  of  Meneteth  lay  in  these  Sheriffdoms.  There  is  another 
circumstance  loo,  indicative  of  such  Meneteth  interest  and  possession. 

In  1297,  Edmund  became  surety  and  cautioner  to  Edward  I.  for  Edmund    de 
John  "Drumman  "  or  Drummond,  a  Scottishm^i  taken  in  arms  against  Hasting"  lurety 
him,  that  he  should  go  abroad  and  conduct  himself  in  future,  %a%  ^^^^^^  °   g"™^ 
and  faithfully.3  Now  it  singularly  happens,  that  the  landsof  Drummond,  tish  proprietor, 
belonging  to  the  family  of  Drummond,  of  whom  the  latter  has  been  re-  adjacent  to  In- 
presented  as  the  head  and  ancestor,  lay  exactly  in  the  contiguous  parbh  ^^  j  297?  ^^  ' 
to  Inchemacolmock  ;*  from  whence^  we  may,  with  reason,  conclude,  that 
this,  implying  an  intimate  connection  between  the  parties,  and  further 
attaching  Edmund  to  that  locality,  was  owing  to  his  being  Drummond's 
paramount,  or  superior,  in  certain  respects, — the  neighbouring  families 
and  vassals  especially,  in  the  case  of  a  great  fief,  similar  to  Menteith, 
having  naturally  a  subordinate  and  demi-clannish  dependence  upon 
such  lordly  proprietor ;  while  he  generally,  with  us,  as  above,  was 
answerable  to  government  for  their  aetions  and  behaviour.  The  House 

representing  Scottbfa,  and  the  heirs  by  descent  to  Scottish  titles,  were  even,  as  is 
notorious,  suraraoned*  under  them,  to  English  Parliaments,  and  sat  as  Earb,  such 
as  the  Beaumoants,  and  DmphraTiUes,  respectiTely,  Earls  of  Buchan,  and  Angus, 
ice.  even  long  after  their  connection  wholly  eeased  with  Scotland. 
'  Rotuli  Scotie,  ?ol.  L  p.  30,  a. 

*  See  p.  994. 

'  Rot.  Scot.  Tol.  I.  pp.  45  b,  and  49  b. 

*  At  least  in  1748,  the  parish  called  the  Port  of  Menteith,  comprising  the 
Lake  of  Menteith,  &c.  is  stated,  by  authentic  ei idence,  in  Macfarlone's  Collec- 
tions, Advocates*  Library,  to  bo  hounded  on  the  south  by  Dryvun  parish, — ^the 
same  as  Dnanmond,  and  of  course  by  the  lands,  the  cradle,  and  original  patrimony 
of  the  Drummonds,  and  where  they  resided  in  1297f  and  long  after.  The  fact,  I 
believe,  is  indisputable. 


1000  APP£ND1X. 

of  Menetethy  by  whom  grants  indeed  can  be  proved  to  have  been  made  ta 
the  DrummondSy'  must  have  ha<rman7  superiorities,  and  vassals  in  that 
quarter ;  and  on  any  other  ground,  than  *^  Lord  of  Inchemaoolmok/'  as 
he  must  have  been,  it  is  not  easy  to  explain  such  interference,  as  this 
of  Edmund,  on  the  occasion,  certainly  an  Englishman,  and  otherwise 
quite  a  stranger  there.'    The  great  preponderating  interest  and  posses- 
sions which  Edmund,  or  Sir  Edmund  de  Hastings  happened  to  ac- 
quire in  Scotland, — while  in  excellent  keeping  with  his  designation  in 
1901,— equally  accounts  for  the  fact  justly  noticed  by  Sir  Harris  Nicolas, 
Edmund's  Ust  of  "very  little"  being  "known"  of  him,— that  is,  in  England*    His 
ISU*  and*h''    ^^*  mention  is  strikingly  "  about  1314,"*  the  memorable  year  of  the 
'  '    Battle  of  Bannockbum,  the  grave  of  so  many  English  heroes,*  in 

'  There  is  a  charter  upon  record,  without  date,  by  Murdoch  Earl  of  Mene- 
teth,  the  Bucceuor  of  Earl  Alan,  forfeited  In  1306,  of  the  lands  of  Buchopill,  in 
the  Comitatut  de  Meneteth,  to  Gilbert  Drummond ;  and  the  Rererend  Macregor 
Stirling  shews,  in  his  Priory  of  Inschemachome,  referred  to,  (see  p.  34,  &c.)  that 
there  was  actually  a  '*  connexion  of  the  Drummonds  with  Inschemachome." 
'  Neighbouring  families  and  dependents,  in  like  manner, — such  as  the  Drum- 
Coincidence  be-  monds  then  were,  (howerer  afterwards,  high,  and  ennobled,)  in  reference  to  the 
tween  the  arms  Meneteths, — as  is  abundantly  prored,  in  Annandale,  the  Merse,  the  Lennox,  &c 
tinizs    in    130l'  ^'  occasionally  took  the  arms  also,  of  the  paramount  Lords,  and  family  in  the  dis- 
and  the  Drum-  trict.     And  again,  it  is  remarkable,  that  those  of  Drummond,  barry  wary,  were 
roond*s,  bis  de-  identical  with  what  Edmund  Hastings  bore  upon  his  seal  in  I30\t  when  figuHng  at 
pendents,  in  re-  „  Dominus  de  Inchemacolmok,"— independently  of  hit  family  innpiia  of  HasUngs, 
arirament  in  the  ^ben  engaged  at  the  siege  of  Carlaverock,  which  were  quite  different.     (See 
text.  Archseologia,  toI.  XXL  p.  217,  and  Siege  ofCarlaTerock,  p.  £6.)     This  circum- 

stance, as  is  not  surprising,  has  appeared  inexplicable  to  Sir  Harris  Nicolas,  which 
he  thought  it  **  impossible  to  explain."  (Archseolog.  vf  nrp.  p.  218.)  Query, 
The  arms  Ed-  might  not  the  former  hare  been  the  actual  arms  of  Edmund's  wife,  as  the  **  veri 
muDd  bore  in  A«re«,"  in  right  of  the  original  Earls  of  Meneteth,  that  happen  to  be  unknown, 
in  riffhTof  hU  ^^  taken  too,  by  the  preralent  custom  alluded  to,  by  the  Drummonds  ?  The 
^ife.  younger  intruding  line  of  Menteith,  if  we  may  so  call  them,  after  Countess  Isa- 

bella, merely  contented  themselves  with  their  own  differenced  arms  of  Stewart. 
There  are  unfortunately,  no  arms  on  the  seal  of  Isabella,  formerly  noticed,  (seo 
p.  997,  ».)  but  only  her  figure.      But  the  above,  at  present,  is  merely  a  specula- 
tion.    It  is  observable,  that  the  Logics  of  Logic,  (noticed  in  the  article.  No.  IV.) 
Peculiar    usage  oomiected  in  the  same  way  with  Strathem,  and  other  families  in  Strathern,  took 
merlT  with  us*  ^^^  chevrons  in  their  shields,  which  were  the  precise  arms  of  the  original  Earls  of 
and   fabulous      Strathern,  like  those  of  Meneteth,  the  Lords  paramount  of  that  district.  As  to  the 
origin  of  those  Hungarian  or  Atheling  origin  of  the  arms  of  Drummond,  I  need  hardly  add,  it  is  too 

or  the  Drum-   |^i,mrd  and  fabulous  to  claim  a  moment's  attention.    The  above  Logic  arms  are  in 
monds* 

an  old  MS.  Heraldic  Matriculation  of  Scottish  arms. 

'  Siege  of  Carlaverock,  p.  299. 

*  Ibid.  p.  300.  In  1312,  as  Sir  Harris  also  shews  there,  upon  the  authority  of 
the  Patent  Rolls,  he  had  been  appointed  by  Edward  II.  to  the  important  command 
of  Cuttot  of  the  town  of  Berwick,  the  key  of  Scotland. 

*  It  might  be  interesting  to  compile  a  full  enumeration  of  those  who  fell  at  that 


APPENDIX.  1001 

which  he  possibly  fell  too  ;  as  we  may  still  more  presume^  without^is-  and  his  wife's 
sue^  by  the  noble,  and  high-born  Isabella  Comyn,*  as  to  whom  record  ultimate  fate, 
seems  silent  since  1306,  and  who  proved  sterile  at  least,  to  her  first 
spouse.    Had  there  been  issue  in  the  latter  case,  they  might  have  been 
entitled,  in  virtue  of  their  father's  repeated  summonses  to  Parliament, 
naturally  continued  in  their  own  persons,  to  an  English  Barony  by  Her  great  ri^ts 
writ,  independently  of  being,  according  to  my  conclusion,  the  prefera-  »nd  claims, 
ble  heirs  of  line,  together  with  a  dignified  Comyn  representation,  of  the 
original  Earls  of  Meneteth,  whose  Earldom  too,  was  a  female  fief.'    In 
nearly  leaving  this  subject,  I  cannot  refrain  again  from  remarking,  (aa 
I  did  in  a  former  work,)  what  a  curious  and  strange  fatality  has  ever  singular  fatality 
attended  the  Earldom  of  Meneteth,  or  Monteith,  in  every  guise  and  atuching  to  the 
predicament,  being  from  the  first"  to  the  last,— nay,  including  this  mo-  ^j'^f^"  ^^  ***" 
ment,  when  it  still  happens  to  be  legally  contested, — instead  of  de- 
volving in  a  calm,  smooth,  undisturbed  course, — a  perpetual  cause  of 
unnatural  strife,*  distraction,  or  keen  legal  competition, — ^while  the 

"fatal  battel, — near  Sirivilin,*^  (Stirling,)  as  Dugdale,  and  English  authorities,  Massacre     at 
style  Bannockbum,  contrasted  with  the  dire  harock,  but  vice  versa,  at  Flodden  ;iivith  Bannockbarn 
which,  the  more  I  look  into  any  Scottish  charter-chest,  the  more  I  am  sensibly  *^^  Flodden. 
struck,  almost  e?ery  distinguished  Scottish  family  having  then  been  prematurely 
deprived  of  an  ancestor,  or  member. 

*  She  was  clearly,  the  heiress  at  least,  to  one-half  of  the  Comitatut  of  Meneteth, 
as  profitable  as  the  other,  (see  p.  998),  besides,  to  whatever,  independently,  cen- 
tered in  her  father  Walter  Comyn,  Earl  of  Meneteth,  &c.  the  most  able,  wise,  and 
powerful  nobleman  of  his  time  ;  not  to  add,  entitled  to  a  corresponding  jointure,  as 
widow  of  the  short-lived  William  Comyn,  her  first  husband,  chief  of  the  House  of 
Comyn,  then  the  greatest  and  most  numerous  in  Scotland.  Her  mother's  ill  fate 
(whether  owin^  to  the  poisoning)  seems  also  to  have  attached  to  her  husbands. 

'  In  the  patent  Rolls,  there  are  notices  of  grants,  the  5th  of  Edward  II.  and  2d 
of  Edward  III.,  (ibid.  pp.  73,  and  103,)  of  manors  and  haereditaments,  &c.  "  in 
Scotia,"  to  the  value  of  300  marks  per  annum,  and  of  the  lands  of  Bathket,  and  Who   was   Ro- 
Rathtn,  (RathoJ  there,  "  Roberto  de  Haslinges,**  and  ••  Hastange,"  which  I  take  ^^    ^^    '^*'*" 
to  be  the  same.     Who  this  is,  whether  a  descendant  or  relative  of  Edmund  de  ^^\g  of  lands 
Hastings,  I  shall  leave  to  English  antiquaries  to  explore.     The  Earldom  of  Mene-  in    Scotland, 
teth,  owing  to  the  final  preponderance  and  success  of  Bruce,  reverted  to  the  fami-  from  Edwards 
ly  of  Alan  Earl  of  Meneteth,  in  exclusion  of  John  Hastings,  Lord  of  Abergavenny,  \\'  ^^  ^^^'  ^ 
the  competitor,  ancestor,  as  is  notorious,  of  the  Lords  Hastings,  Earls  of  Pembroke,  f^ntly  of  a  dif- 
and  whose  ancient  Barony  of  Hastings  has  very  recently  been  called  out  of  abbey-  ferent  stock, 
ance,  and  confirmed  to  a  coheir,  Sir  Jacob  Astley,  Baronet,  now  Lord  Hastings.   See  Dugdale*s 

■  The  difficult,  seemingly,  and  remarkable  competition  between  two  brothers,  T^'  ^1       PP* 
both  singularly,  of  the  name  of  Maurice,  for  the  Earldom,  with  the  curious  ad« 
JQStmeot  in  1213,  has  been  already  given,  (see  p.  172,  si.  where  such  should  be 
the  date,  instead  of  1214  ;)  and  see  ibid,  as  to  another,  evidently  in  1237. 

*  Nearly  as  unnatural  as  the  former,  was  the  Meneteth  contest  and  struggle, 
after  the  middle  of  the  1 3th  century,  of  Countess  Mary,  and  Walter  her  husband, 
with  the  unfortunate  Countess  Isabella,  her  near  elder  relative,  who  may  have  been 
harshly,  or  ill  used. 


lOOS  APPENDIX. 

fief  and  lands,  the  more  substantial  pofisesBion,  after  being  torn  piece- 
mealy  has  vanished  from  the  respective  lines  altogether. 
Edmand  de  Inchemacolmoky  denoting,  and  being  extended  to  the  general  locality 
^•^  h°^  "'^h'  *^^  ^*^®  ®^  Meneteth,  besides  strictly  the  name  o^  by  far,  the  latter 
ed  of  Inchma-  island  there,  a  noted,  and  venerated  place,  where,  as  is  stated  in  Mao- 
colmok,  even  £urlane's  Collections,  *  about  the  middle  of  last  century,  the  Earl's  gar- 
•upposing  the  ^^j^  were  discernible,  I  have  Keld  it  to  contain  the  principal  Chemjs 
jastmentin  1285  ^^  ^^stle  of  the  **  ComitotuM  "  of  Meneteth.  There  was  oontiguoos,  as 
bad  remained  in  also  mentioned,  another  inhabited,  but  very  small,  unrenowned  island, 
force.  i^ed  «<  XaUa  "  or  **  Ellantallo,"  where  the  Earls  of  Meneteth,  at  least 

latterly,  had  a  seat,  or  House ;'  the  same,  with  certain  lands,  having 
been  granted  by  Malise  Graham  Earl  of  Meneteth,  who  figured  in  the 
reigns  of  James  I.  and  II.,  to  his  two  younger  sons,  John  and  Walter, 
by  whom,  however,  they  were  recon veyed  to  the  principal  stem."  Should 
it  be  thought  that  Talla  originally  contained  the  principal  Meneteth 
ehemys, — ^then  we  might  conclude  that  the  elder,  though  partly  dis- 
inherited  Comyn  Meneteth  line,  so  far, — erected  as  their  ehemys,  of 
course  only  the  second,  one  in  the  other  Island  Qilnchemacolmok^  after 
which  their  half  of  the  Meneteth  fief,  to  be  held  as  a  Barony,  by  the  ad- 
justment in  1285,  and,  contiguous  to  the  Comitai  half  in  the  Stew- 
arts,^ would  still  naturally— as  in  fact  obtained-— be  named  ;  and  of 
which  the  possessor  would  be  **  DominuSy*  as  Edmund  de  Hastings,  by 
That  would  not  the  courtesy,  in  1301.  This  would  obviously  make  no  very  materiid 
detract  from  the  (Jifferemje  upon  my  argument ;  nay  it  might  even  more  directly  identify 
*  Isabella  Comyn,  his  wife,  as  the  Meneteth  Comyn  coheiress,  in  right 
of  whom  such  portion  was  awarded  to  William  Comyn,  her  first  spouse^ 
by  the  adjustment  in  question,  which,  it  might  be  contended  too,  pre- 
sumptively, thereafter  still  remained  in  force ;  and  thus  accordingly, 
operated.  In  any  way,  Edmund,  as  above,  was  co-parcener  of  ^  Inche- 
maoolmok"  or  "  Meneteth." 


No.  VI. 

Remarks  upon  thb  nature  of  the  Office  of  Procurator  Fiscal^  nr 

THE  CoNSISTORIAL  AND  CoMMISSARY    CoURTB,  BEFORE,  AND  AFTER  THB 

Reformation  ;  and  certain  modern  proceedings,  in  regard  to  that 
LEGAL  Officiary  of  the  Commissaries,  and  Court  of  Session,  in  1813. 

(Seep,  461.) 

The  Procurator  Fiscal,  as  is  proved  by  the  old  Conastorial  reoords^ 
was  the  advocate  or  public  l^pal  fuctionary  of  the  Primate  of  Scot- 

'  In  the  Advocates'  Library. 

'  See  Macgregor  Stirling's  Inchmahome,  p.  71. 

■  Ibid,  *  See  pp.  997-8. 


APPENDIX.  lOOS 

land,  in  all  judicial  matterSy  in  whose  name  all  ediets  or  actions  issued,  Natare  of  the 
whether  in  confirmations  of  testaments  orexeeutors,  (which  afibrdedj*^^®o®c«»  ^- 
the  former  so  great  a  reyenue,)  the  other  Consistorial  questions,  and  in  ,^11^00.^    ^  ^'* 
suoh  as  affected  his  own  interests,  and  those  of  the  church,  and  spirituali- 
ty generally.    He  watched  over,  and  acted  in  whatever  might  compro- 
mise its  dignity,  decorum,  or  morality.    He  was  hence,  at  the  same  time.  He  was  (he  cri- 
the  criminal  prosecutor.    Thus,  previous  to  the  2d  of  March  1548,  the  ninal,  as  well  as 
"Procurator  Fiscal"  concurs  with  Master  Paul  Schedo  in  a  prosecu- *^*^'^  P~*®^°*®'- 
tion  against  Master  John  Philip,  because  he  had  violently  assaulted 
Paul  with  a  cudgel,  and  wounded  him  thereafter  with  a  dagger,  to  the 
"  iarge  **  effusion  of  his  blood ;  of  both  which  crimes  Master  John  being 
convicted,  received  sentence  of  excommunication,  in  terms  of  the 
canon,  «t  quis  suadente  diabalo»    But,  in  an  ecclesiastical  court,  especial- 
ly in  these  days,  it  was  not  to  be  expected  that  Hxejttll  rigour  of  law 
would  be  exercised  against  a  churchman  like  Mr.  John  ;  and  accord- 
ingly, the  Judge,— the  official  of  Saint  Andrews,— romt^M  the  case 
^ad  tedem  apoaioiicam" — **pro  abioiutiane  obtinenda,"^  (which  of 
course  followed,)  thus  freeing  the  criminal,  with  the  same  breath,  from 
the  blasting  sentence  pronounced,— though  he  is  condemned  in  ex- 
penses,' which,  including  the  further  Roman  procedure,  might  be  heavy. 
This  again  evinces  the  predominancy  of  the  Papal  law  and  influence. 
On  the  other  hand,  in  1531,  sentence  of  absolvitor  from  an  indictment 
of  murder,  at  the  instance  of  the  Procurator  Fiscal,  was  pronounced  by 
the  Official  of  Saint  Andrews,  in  fiivour  of  Walter  Gordon,  parish  clerk* 
of  Kerrimure,  he  being  found  to  be  "  immunem  de  arte  et  parte,"  of 
that  of  David  Skeppar  ;*  with  which  he  had  been  charged. 

After  the  Reformation,  the  public  officer  in  question,  stUl  legally  At  the  Refor- 
eonHnued  in  the  Commissary  Court,  which  came  into  the  shoes  of  the  niation,the  Pro- 
Papa],  or  of  the  Officials  alluded  to,  and  insisted,  as  before,  in  edicts  ^^jj^'  t'^'^ 
and  confirmations  of  executors  and  testaments,  in  processes,  actions,  and  quoad  eiviUa,  in 
in  other  relative  matters,  &c.  But,  in  particular,  he  strikingly  figures  the  Comnisiary 
on  the  canvass,  in  the  acknowledged  capacity  of  censor,  caetigatorque  ^T^^^  "^ 
morutny  as  he  did  during  Papacy,  even  against  the  clergy,  and  ad  vin-  cials. 
dietam  publicam.    He  pursued  divorces  a  vinculo,  in  the  case  of  illegal 

'  The  actual  words  are,  **  remUietu  (the  party)  pro  abiolutione,  &c.  proat  re-  Striking  exem- 
wuttenuu."   Vhat  stronger  proof  than  the  aboTo  can  there  be  of  the  term  remit-'  plification  of  the 
fui^,  only  denoting  handing  over  an  indiyidnal,  and  his  case,  to  the  ordinary  es-  ^^""^  ramit,   as 
tablished  jurisdiction,  which  in  this  instance  was  btfalliUy  that  of  the  Pope,  who  ^ered    in  res- 
could  only  absoUe?     And  this,  of  course,  a  fortiori,  bears  upon  the  identical  pect  to  honours, 
meaning  I  apply  to  the  term,  in  rendta  and  refertncnt  by  other  tribunals,  to  the 
Session,  in  cases  of  honours,  as  in  that  of  Rothes,  and  others,  (see  pp.  939-40,  ». 
37-8-9,)  which  were  indisputably,  as  much  competent  to  the  latter. 

'  Act  and  Decree  Register  of  the  Official  of  Saint  Andrews. 

'  Parish  clerks,  though  of  course  subjected,  tnrtute  offieU^  to  church  cognixance, 
were  then  laics ;  for  their  principal  duty,  and  curious  mode  of  election,  see  pp.  682- 
3,  a.  2. 

*  JHd*     Skeppar  seems  to  have  been  a  laic. 


1004  APP£KD1X. 

Hh    especial     marriages,  of  an  aggravated  kind, — inter  alia,  on  the  23d  of  July  1575, 
duty  consuted   of  that  of  Thomas  Paterson,  with  Christian  Johnstone,  which  was  in- 
Iral    marr?**^**^'®^*'*^^^   *^®  latter  having  been  the  niece  of  the  deceased  wife  of 
and   diTorceB,   Thomas,  '—as  well  as  for  the  prevention  and  suppression  generally,  of  un- 
by  collusion,  as  licensed  sexual  cohabitation.*    He  acted  in  this  way  eae  officio,  and  pro- 
other  n  "'d"  *^®®<^®^  ®^®^  upon  common  rumour,  having  his  eye  directed  to  the  con- 
duct of  all,  especially  to  coUuHve  proceedings  of  parties ;  whether — 
through  colour  of  ostensible  legal  procedure— unduly  to  solder  up,*  or  to 
Jactitate  a  marriage.*  This  certainly  was  often  the  only  way  to  eschew 
the  consequent  evil.  And  he  frequently,  for  the  purpose  of  the  general 
He  also  denoan-  edification,  and  morality,  charged  individuals  contracted  per  verba  defit' 
ced   concubtn-  ^^^^  ^j^j^  copula^  to  fulfil  and  complete  a  marriage  by  ceMtration,  and  to 
immorality.        abjure  a  connection  he  denounced  in  the  interval  as  **  a  great  sklander 
of  ye  kirk,  and  hie  contempt  of  godis  word,"*  &c. — which  further  shews 
the  importance  of  celebration.    The  above  can  be  fully  instructed  by 
the  Commissary  Records. 
Collusife  pro-      Every  one  is  aware  of  the  nature  of  certain  collusive  proceedings,  in 
cesses  id  the  ^^^g^  ^f  marriage  and  divorce,  that  have  strikingly  occurred,  before  the 
Court  in  1813,  Commissary  Court,  in  our  days ;  and  the  Commissary  Judges,  at  length, 
and  exertion     compelled  by  their  frequency,  and  urgent  motives  of  justice  and  recti- 
the  Pro  "  t  r  *^^®>  ^  ^^^Y  ^^^Y  V^V^^^Y  deemed,  to  check,  and  counteract  so  baneful 
Fiscal,  by  order  an  evil,  by  an  Act,  or  order,  the  21st  of  May  1813,  appointed  the  Pro- 
of the  Commis-  curator  Fiscal,  whose  office  still  existed,*  to  attend  the  examinations 
anT  ored  d**^^  in  processes  that  appeared  to  be  of  the  preceding  kind,  "  and  move  for 
them.  such  investigation,  as  he  finds  to  be  legal  and  competent,  to  detect  col- 

lusive agreements  in  cases  of  divorce,  entered  into,  not  only  by  the  par- 
ties themselves  directly,  but  also  through  the  medium  of  their  agents, 
or  persons  in  their  confidence."  This  latter  step  had  been  practi- 
cally shewn  to  be  absolutely  incumbent.  He  accordingly, — ^not  incom- 
petently certainly,  it  may  be  held,  from  what  has  been  premised, — 
did  so ;  but  upon  the  Commissaries  appointing,  on  his  application,  in 

^  Act  and  Decree  Register  of  the  Commissary  Court.  Marriages  a  fortiori  then, 
of  a  man  with  the  Mi$ier  of  his  deceasetl  wife,  such  as  have  occurred  in  oar  days, 
were  so  ;  as  to  which,  and  the  heinous  light  in  which  they  were  viewed,  1  could 
adduce  further  striking  proof  since  the  Reformation. 

*  See  again,  the  remarkable  case  of  the  Procurator  Fiscal  against  O^lvie,  Fras- 
er,  and  Chisholm,  in  1573-4,  pp.  460-1. 

'  As,  for  instance,  in  that  still,  of  the  Procurator  Fiscal,  in  1573-4,  last  died, 
turning  likewise  upon  **  collusion." 

*  See  also  a  striking  example  of  this,  in  the  case  of  the  Procurator  Fiscal, 
against  Janet  Cutlar,  and  John  Hog,  husband,  and  wife,  in  1573,  p.  444,  he, 

*  Amongst  other  cases,  see  that  of  the  Procurator  Fiscal,  against  Patrick  Loch, 
and  Agnes  Weyland,  June  6,  1564,  partly  referred  to,  at  p.  494,  n. 

^  His  name  too,  **  still  appeared  as  for  the  public  interest,  particularly  in  all 
cases  of  diTorco,"  however  fully  unexercised  his  powers  of  late.  See  Mr.  Fer- 
gusson*s  work,  to  be  referred  to  here,  as  an  authority,  Appendix,  p.  364. 


APPENDIX.  1005 

the  ease  of  Homfray  against  Nevte,  by  their  interlocutor,  the  18th  o( 
June  1813ya  witness  to  be  examined,  in  consequence  of  pregnant  in- 
dications of  collusion,  in  order  to  detect  it, — a  bill  of  advocation  was 
presented  by  an  opposing  party,  to  Lord  Reston,  the  Ordinary  in  the  The  Court  of 
Court  of  Session ;  who,  having  taken  the  same  to  report  on  the  18th  of  SeMion,  how- 
February  1814,  pronounced  the  following  judgment :  "  Having  advis-  vocation,  dis- 
ed  with  the  Lords  of  the  Second  Division,  remits  to  the  Commissaries,  charge  the  for- 

with  instructions  to  alter  their  interlocutor,  and  to  allow  the  proccff*  ["*' ''*'"  *°  **^'* 

tnff    and  award 
to  proceed,  as  accords ;  and  that  no  further  investigation,  with  regard  ^),^'  entire  ex- 

to  the  supposed  collusion,  shall  take  place  ;  also  to  find  the  Procurator  penses  incurred 
FUcal  liable  in  the  whole  expences  incurred  upon  the  point  in  dispute."  *"  *  question 
It  has  always  struck  me,  with  submission,  that  there  was  something  ^ch"'inte?rer- 
crude,  harsh,  and  not  altogether  authorized,  in  this  judgment ;  the  ence. 
Procurator  Fiscal,  thus  so  grievously  visited,  having  only  acted  under 
a  special  order  of  the  Commissaries, — ^whohave  '' always  had  the  power,  ^^^  deci«ion 
and  been  in  use  to  make  regulations  relative  to  the  duties  and  practice,  singular. 
in  their  own  judicature,  under  the  title  of  Acts  of  Sederunt," '  but  es- 
pecially, in  conformity  to  his  confessed  original  and  innate  duties, 
which  have  neither  been  legally  suspended  or  repealed.    Nay,  not 
nearly  so  remarkably, — directly,  (as  a  principal  party),  or  to  such  ex- 
tenty  in  this  instance,  as  in  the  previous  collusive,  and  relative  matters, 
&c.  since  the  Reformation  ;  while  the  check  in  question,  so  condemned 
and  summarily  countermanded  by  the  Session,  at  the  juncture,  by  every 
good  and  just  principle,  was  most  salutary,  and  loudly  called  for.    Under 
these  circumstances  too,  the  Procurator  Fiscal  was  naturally  deterred  from 
acting  in  another  strongly  presumptive  case  of  collusion,  that  of  St.  Aubyn 
against  O'brien,  in  the  same  year^  since  which  things,  were  allowed  to 
proceed  on  the  former  beaten  track.  For  a  full  account  of  these  later  pro- 
ceedings, with  apposite  remarks,  see  **  Reports  of  some  recent  Decisions 
by  the  ConHstoritU '  C  Commissary  J  Court  of  Scotland,"  &c.  '^by  James 
Feiguason,  Esq.  Advocate,  one  of  the  Judges,"  Edinburgh,  1817,  Ap- 
pendix, pp.  963-4-6,  et  seq.   The  learned  gentleman  adduces  there  an 
action  before  the  Commissaries,  the  11th  of  July  1565,  at  the  instance 
of  the  Procurator  Fiscal,  ^*  to  set  aside  the  second  marriage  of  Custine 
Stevenson,  with  Agnes  Pollock,  the  paramour,  for  adultery,  with  whom 
he  had  been  divorced,  from  his  first  wife,  who  gave  her  concurrence  to 
this  action,"  when  "  decree  was  pronounced  accordingly,"  '  and  the 
precedent  will  be  added  to  my  cases  and  authorities  cited. 

*  See  Mr.  Fergnsson's  work,  subsequently  referred  to,  p.  365. 

*  This  old  designation  had  been  revived  by  the  Court. 

*  Work,  ut  tup.  p.  364. 


1006  APPENDIX. 


No.  VII. 

RkMARKB    upon  a  LATB  PAMFHLBTy  BT  AUEXANDBB  SlKCLAIB,  EflQ. 
ENTITLED,  ^'  DIB6ERTATION  UPON  HEIBft-XALEy"  &e.  &C.^ 

(Set  too  p.  965,) 

Neither,  though  evidently  not  a  lawyer,  should  I  omit  Alexander 
Sinclair,  Esq.  without  his  meed  of  desert,  an  amateur  by  his  own  decla- 
ration in  Peerage  matters,' — and  no  doubt  a  good  trait  and  quality  in 
most  persons,  however  such,  abstractly  rather,  in  the  absence  of  those 
wholesome  and  indispensable  guides  and  rules,  that  can  be  alone  sup- 
plied by  legal  study  and  knowledge,  with  practical  investigation  into 
the  proper  and  recondite  sources  of  relative  information, — as  will  be 
exemplified  in  his  instance,  may,  for  the  most  part,  mislead  and  de- 
ceive, instead  of  proving  of  real  and  direct  benefit.    In  order  to  prove 
**  heirs-male,"  aione  (abstractly)  technically,  and  legally  equiponderant 
to  **  heirs-male  whatsoever,''  including  collaterals^  he  especially,  in  his 
Fifteen    easei  pamphlet  mentioned,  triumphantly  adduces  and  founds  upon  fifteen 
adduced  by  Mr  redoubtable  precedents  and  authorities,  as  he  thinks,  perfectly  relevant 
that  an  bonouT  '"^^  decisive  in  this  view.    These,  (taking  them  in  their  order,  to  which, 
limited  timpfy  BS  not  material,  I  shall  not  adhere,  in  the  following  remarks,)  arotiie 
to"heir»male,"  Peerage  cases  of  Ck)lvil  of  Ochiltrie,  Rutherford,  Roxbnrghe,  Lothian, 
maXo-general^  Strathallan,  Dundee,  Gamock,  Moray,  Sinclair,  Breadalbane,  Gray, 
inept,  and  irre-  Homo,  Jedburgh,  Aston,  and  Kellie.    Assuredly  this  is  a  goodly  liHy 
leTant.  though  my  legal  and  antiquarian  readers,  doubtless,  will  be  surprised 

at  such  an  attempt  by  the  aid  of  such  auxiliaries.  The  Colvil  ooUatetal 
Case  of  the  Ba-  heir-male,  appears  to  have  taken  after  the  death  of  Robert  the  first 
rony  of  Colvil  of  Lord,  in  the  reign  of  Charles  II.  but  how,  it  is  impossible  to  shew,  owing 
Ochiltrie.  ^  ^y^^  i^^  ^f  ^^ie  patent,  which  might  have  been  to  **  hein-male  whaU 

Moever^*  of  whose  broad,  unbounded  meaning,  and  eflkacy,  there  can  be 
no  dispute ;  or  to  heirs-male,  distinct  from  those  of  the  body,  in  the 
first  instance,  under  a  special  remainder  to  such,  hence  taking  this 
conceived  illustration  entirely  out  of  the  discussion,  that  exclusively  con- 
cerns a  eure  simple  limitation  to  **  heirs-male.'*  This,  however,  to  Mr. 
Sinclair,  is  of  no  earthly  moment ;  for  be  betakes  himself,  in  his  emer- 
gency, to  his  venerated  and  never-failing  oracles,  the  **  Peerage  writ- 
ers," though,  alas  I  as  Chalmers  would  have  truly  told  him,  ^  in  the 
form"  ot^ fiction — eontinuaUy  darkening  the  dear,  without  clearing  the 

1  •<  Dedicated,  with  the  greatest  respect, — to  the  Peers  of  Scotland,**  as  **  con- 
nected with  the  history  and  descent  of  their  ancient  Titles,**  Edinbargb,  1637.  I 
shall,  for  the  sake  of  brevity,  refer  to  it  thronghont,  under  the  title  "  Dissertation.** 

'  See  Preface  to  the  performance  in  question,  p.  ?l 


APPENDIX  1007 

dark  ;***  and  who  pennade  him,  good  easy  many  without  a  pretence  or 
restige  of  authority,  as  the  mere  result  of  their  fiat  or  ruminations, 
that  Robert  the  first  Lord  Colvill  of  Ochiltrie,  was  so  ''  created,  4th 
January  1651,  by  patent,  to  him  and  his  heirs  male.'"  He  next  grasps 
at  an  equal  straw.    An  impostor,  as  is  notorious,  attempted  to  vote  at 
a  Peerage  Election,  as  Lord  Colvil  of  Ochiltree,  in  1788,  in  character 
of  collateral  heir-male,  which  speedUy  ended  indeed,  in  his  rejection, 
not  after  ^  an  elaborate  discussion,"  *  as  Mr.  Sinclair  pretends,  but  a  very 
simple  one,  but  of  one  day,  by  the  adduction  of  explicit  evidence,  that 
at  once  refuted  his  asserted  pedigree  ;  so  much  so,  that  his  own  counsel 
w^re  the  first  to  abandon  the  claim.*    This  evidently  weighs  nothing.  CoItO    proce- 
The  party  being  cast  upon  this  ground,  that  sufficed,  rendering  it  im-  ^"f^*  immat^ 
material,  how  the  honour  was  constituted,  and  descendible,  and  ex-  rial. 
eluding  the  necessity  of  going  into  any  such  question,  or  exploring 
and  ransacking  every  place,  to  recover  the  problematieal  patent,  (in  re- 
spect to  its  termsyj  a  most  slow  and  supererogatory  task  ;  so  that  we 
can  neverconclude,withMr.  Sinclair,  strangely  and  preposterously  here, 
that  the  limitation  to  **  heirs-male,"  thereforsy  was  granted  and  admitted, 
as  he,  in  the  broad  manner,  has  represented  and  inculcates  ;  while, 
on  the  contrary,  the  challenge,  or  protest  by  Lord  Cathcart,  against 
this  Colvil  Peerage  aspirant  in  1788,  is  quite  general,  involving  every 
objection,  whether  on  this  head,  or  otherwise,  being  unqualifiedly, 
that  he  had  **no  right  to  that  title."*    And  then,  there  independently 
always  remains  this  objection,  as  before,  that  until  it  can  be  distinctly 
shewn,  that  this  honour  was  indisputably  limited  to  ^^eirs-male"  simply, 
which  has  never  been  done,  it  is  not  huju9  lod;  or  can  prove,  however 
Mr.  Sinclair  vehemently  contend  thereby^  that  a  Peerage  limited  to 
heirs-male  simply,  devolves  to  heirs-male  collateral.    He  even  goes  strange  and 
the  length  to  say,  that  the  precedent  ^  is  almost  equal  to  an  a<(^ii4^ei(f  prepoaterouiin- 
COM  in  fiivour  of  heirs-male,  including  colhiterals."*    Oh,  Mr.  Sinclair,  ^r?*^"  cltk.*  ""^ 
you  must  here  be  humorous,  or  attempting  a  sally  against  the  adjudi- 
cation of  our  respected  l^gal  tribunals,  whose  practice  and  law,  I  seri- 
ously conceive,  would  be  loose  and  strange  indeed,  and  deserving  of 
every  vituperation,  if  they,  even  for  a  moment,  listened  to  what  you  thus  J'^V.'^fc^  °^ 
equal,  in  point  of  weight,  nearly  to  the  most  solemn  decision !    We  strathallan,  and 
next  come  to  the  irreHstOde  instances  of  Breadalbane,  Strathallan,  and  Dundee. 

'  Caledonia,  ?ol.  I.  p.  666. 

'  See  Wood's  Dooglas'i  Peerage,  toI.  I.  p.  861,  whom  he  in  fact  here  quotet, 
naing  his  very  words,  though  without  making  any  acknowledgment  of  the  autho- 
rity. (See  Dissertation,  p.  67.)     Indeed,  he  is  so  far  an  original  writer,  as  to  dis-  |^r.    Sinclair 
dain,  nearly  always,  to  appeal  to  any.    Crawford,  a  far  older  Peerage  writer,  in  does  not  refer 
1716,  after  the  fashion  of  Mr.  Sinclair,  poUtely,  to  refer  to  such  oracles,  hai  ^o  authoriUes. 
nothing  touching  this  supposed  limitation  ;  see  his  Peerage,  p.  81 . 

'  Dissertation,  p.  58. 

*  See  Robertson's  Peerige  Proceedings,  from  p.  469  to  p.  466,  ind.  also  p.  467. 

*  IHd,  p.  443.  "  Dissertation,  p.  68. 


1008  APPENDIX. 

Dundee,  where  the  collateral  heir^-male,  in  terms  of  the  reguUting  pa- 
tents in  IG8I9  I6869  and  1688,^  all  take ;  but  under  distinct  remainders, 
to  other  '^  heirs-male/'  over  and  above  the  first  limitation  to  heirs-male 
of  the  body,  which  are,  it  seems,  in/aUibly  to  exemplify  that  ^*  heirs- 
male  "  unqualifiedly^  comprehend  heirs-male  collateral,  or  whatsoever  ! 
It  would  be  a  waste  of  time  to  inculcate,  that  the  express  remaindered  in 
favour  of  such  assumers  and  inheritors,  in  the  character  too  relative^ 
again,  of  <2trec/  heirs-male,  make  theirs  a  totally  different  case ;  while  in 
that  of  Dundee,  there  had  never  been  a  proper  opening  for,  or  legal  re- 
cognition of  the  collateral  succession,  owing  to  the  forfeiture,  not  only  of 
the  first  Viscount,  but  of  the  three  next  collateral  heirs-male,  by  which, 
as  was  formerly  shewn,  the  Peerage  is  utterly  extinct  and  gone.'    Yet 
Palpably  futile,  Mr.  Sinclair  pretends,  inter  alia^  that  the  Br^albane  case,  that  of  the 
and  erroneous  first  collateral  heir-male,  taking  d^nitely  under  a  remainder,  to  collateral 
again,  of  Mr.  beirs-male,  *^  is  an  indisputable  example  of  heirs-male  (simply)  having 
Sinclair.  exactly  the  same  meaning  as  heirs  male  whatever  !  **  ^ 

Case   of  the       If  these  precedents  are  thus  utterly  irrelevant,  what  shall  we  even 
Earldom  of  Mo-  ty^k  of  the  next,  that  of  the  Earldom  of  Moray  ?    Amidst  much  su- 
and*  more  inap-  perfluity,  Mr.  Sinclair  founds,  in  support  of  his  conclusion,  upon  the 
pHcable  than     charter  of  the  Comitatus  of  Moray,  the  1 7th  of  April  161 1,  to  James  Earl 
the  former.        ^f  Moray,  and  "  the  heirs-male  o/'/(t«  body  ;  whomfaUingy  to  Sir  Francis 
Stewart,  his  brother-german,  and  the  heirs-male  of  his  body,**  **  qnibus 
deficientibus,  legitimis  et  propinquioribus  haeredibus,  et  assignatis  dicti 
Jacobi  Murravie  Comitis  quibuscunque."  *    But,  supposing  the  char- 
ter carry  the  honours,  as  to  which  formerly,  and  what  the  House  of 
Peers  will  not  admit,^  how  can  it  in  the  least  aid  and  assist  him,  when 
the  noble  family,  all  along,  down  to  this  moment,  are  but  male  des- 
cendants of  the  body  of  the  disponee,  taking  solely  under  the  first 
limitation,  as  to  which  there  can  be  no  question  ?    Neither  can  there 
be  to  the  second,  which  is  again  only  to  heirs-male  of  the  body  of 

'  In  the  Great  Seal  Register. 

*  See  pp.  77  1-2  of  this  performance ;  and  for  the  Stralhallan  case,  see  pp.  742-3, 
et  teq,  ibid.    The  Strathallan  and  Dundee  remainders  are  to  **  other  "  heirs-male. 

'  Dissertation,  p.  71.  To  quote  Mr.  Sinclair's  own  words,  the  destination  is  **to 
the  heirs  male  of  his  own  body,  which  failing,  to  his  nearest  legitmate  heire  male, 
which  failing,  to  his  nearest  legitimate  heirs  whatsoever.'*  Ibid.  p.  69.     In  terms 
thereof,  John  late  Earl,  (created  Marquis  of  Breadalbane,  father  of  the  present), 
under  the  middle  limitation  to  heirs-male,  succeeded  as  the  first  collateral  heir- 
male,  which  collateral  succession  is  thus  deafly  defined  by  the  context^  and  remainder. 
For  other  particulars  about  the  Earldom  of  Breadalbane,  see  p.  220  of  the  present 
work. 
Inaccurate  re-      *  Great  Seal  Register.     I  give  the  precise  words,  and  reference  to  the  Record, 
ference    and     i^bich  Mr.  Sinclair,  according  to  his  peculiar  and  inadvertent  manner,  does  not  do. 
mIT  Sinclair       ^'^^'  ^^  ^^^'  instance,  he  has  committed  a  great  error ;  for  he  says,  **  there  is  an 
ultimate  remainder  to  the  heirs  male  of  the  said  Earl,  and  to  his  assignees  whatso- 
ever," and  argues  upon  the  force  of  male,  which,  however,  ie  fwt  there,     (See 
Dissertation,  p.  67.)     This  is  rather  loose  and  exceptionable  procedure. 

»  See  pp.  784,  n.  3,  806. 


APPENDIX.  1009 

**^  Francis  Stewart^'*  the  brother  of  the  disponee ;  while  the  ulti- 
mate one,  palpably  mis-stated  by  Mr.  Sinchur,  is,  indifferently^  and  irre- 
levantly, to  heirs-general,  and  assigns.    In  short,  there  is  not  the 
least  designation  of  ^'heirs-male,"  or  of  MteA  whatever,  in  this  notable 
authority, — ^forsooth,  to  prove  the  deeeent  of  honours,  taken  to  heirs- 
male  simply,  to  heirs-male  collateral.    Nor  have  the  latter  succeed-  Mr.  Sinclair *• 
ed.     Yet  he  most  cerrectiy  and  logicaUy  adds,  "  It  would  be  superflu-  !«^  ^Inami 
ous  to  say  more  than  that  all  these  heire  male  must  evidently  be  colla- 
terals V*  ^    Of  a  truth,  it  would  be  altogether  superfluous ;  for  no  one 
ever  before  thus  contended — ^thatan  ^*  heir- male  of  the  body,"  the  only 
heirs  specified,  and  with  whom  we  have  alone  to  do,  were  heirs-male  col- 
lateral I    It  is  indeed  tiresome,  and  unedifying  to  pursue  Mr.  Sinclair 
in  such  a  course.  Under  the  Gray  instance,  in  the  16th  century,  the  col-  C^®*  of  Gray 
lateral  heir-male,  and  his  heirs-male, of  the  body,  succeeded  by  a  special  j^jL^f^'  *°^ 
remainder  nomi na^tm,  under  a  charter  in  1524^  backed  by  other  confir- 
mations ;*  but  how  this  may  chance  to  bear,  he,  being  engrossed  by 
other  extraneous  matter,  does  not  attempt  to  shew. 

He,  moreover,  strives,  from  the  limitation  in  the  Gray  patent  in  1707, 
foiling  the  issueof  the  deceased  Marjory,  only  child  of  Patrick  Lord  Gray, 
by  John  Gray  of  Crichie,  her  husband,  to  Lord  Patrick's  **  heir  male,*' 
and  the  **  heirs  male  of  his  body,"*  to  extort  from  **  heir  male,"  in  the 
first  instance,  by  means  of  this  illustration,  as  he  apprehends,  that  heirs- 
male  alone,  here  agun  denote  heirs-male  whatsoever.  That  they,  however, 
do  not  do  so,  and  hence  making  this  supposed  illustration  even  more  ir- 
relevant and  useless  than  the  preceding,  is  sufficiently  plain,  when  there 
iiamedi$Xely  foUowe,  in  this  entail  and  settlement  of  the  honours, 
first,  a  special  remainder  to  the  heir-male  of  the  body,  by  any  other - 
marriage  of  the  above  John  Gray  of  Crichie,  who  was  Lord  Patrick's 
eousiny  and  next  collateral  heir-male,  capable  of  succeeding,  (Charles, 
that  nobleman's  only  brother,  having  expressly  renounced  the  succes- 
sion, and  being  out  of  the  question  ;*)  and  secondly,  another,  to  his 
heirs-male  whateoevery  in  this  way  pointedly  and  wholly  including 
Lord  Patrick's  heirs-male  whatsoever.    It  hence,  e  contra,  transpires-l'^®  ^*^^^ 
from  the  very  context  of  the  authority  adduced,  that  "heir-male,"*  in-  m1^*^|^]3J* 
stead  of  denoting  heirs-male  whatsoever,  denotes  only  the  heir-male  of  who  omits,  aod 
the  body  of  Lord  Patrick  ;  for  otherwise,  the  two  carefiilly  subjoined  overlooks  a  ma- 
remainders,  involving  and  exhausting  his  lawful  heirs-male  whatso-  ^V^  circum- 
ever,  would  have  been  nugatory  and  superfluous.    Mr.  Sinclair,  who 
has  omitted  all  mention  of  this  rather  important  fact,  of  John  Gray  of 

»  DisserUtion,  p.  67.  ■  /Wd.  pp.  72-3. 

'  Heir-male,  with  us,  has  been  so  used  to  denote  a  «on  only,  thus  affording 
farther  proof  of  its  limited  and  not  broad  acceptation.    See  p.  195. 

*  This  fact,  at  the  time,  is  specially  set  forth  in  the  patent,  (in  the  Great  Seal 
Register,)  which  proceeds  upon  it. 

*  It  was  not  unusual  with  us,  as  formerly  shewn,  to  ose  "  heir-male,"  though 
iu  the  singular,  in  a  collective  sense,  as  if  in  the  plural ;  see  p.  898,  n,  2. 

3a 


1010  APPENDIX. 

Criohie  being  sneh  heir-male,  is  thus  fdo  d£  se^  and  has  cut  his  own 
throat  by  the  instrument  which  he  cBgerly  handles,  but  thus  so  treadi- 
«i  Heir-male  "  ^^^^ly  deoeiYes  him.  It  proves  the  reyerse  of  what  he  expected,  and, 
there  denotes  Mr  necessitate,  riyets  the  limited  meaning  of  the  phrase,  he  is  so  anxi- 
heir-maleof  the^ng  ^  deny.  As  I  may  have  occasion  also  to  observe  elsewhere,  the 
heir-mJe-ffe-  ^^  ^^  logical  relevancy  of  the  worthy  gentleman's  ratiocination — for 
BeitL  we  unfortunately  cannot  call  him  *'  learned  ** — ^isnot  always  quite  appa- 

rent.   Under  this  notable  instance  of  the  Gray  family,  doubly  un- 
serviceable to  him,  he  asserts  that,  in  the  circumstances,  the  phrase, 
**  heir'-male  of  the  said  Patrick  Lord  Gray,  could  never  have  been  used 
to  mean  a  Mm."  *    Why  so  ? — ^unless  Mr.  Sinclair,  who,  to  be  sure,  is 
somewhat  original  in  discussion,  has  coined  a  new  language,  banishing 
the  approved  meaning  of  terms, — as  imagined  before,  by  us  humble 
mortals, — and  that  of  son,  in  particular,  as  tending  to  imply  a  male 
heir,  from  his  vocabulary  ;  or  Lord  Patrick  had  got  into  the  strange 
habit  of  only  producing  hermaphrodites^  or  anomalous  bipeds.    Bnt^ 
not  altogether  contented  with  this,  he  would  further  despoil  the  phrase 
of  the  innate  inheritance  of  its  meaning  in  this  emergency,  from  his 
insinuation  of  Lord  Patrick  having  then  ^'abandoned  all  expectations'' 
of  having  an  heir-nuJeof  the  body ;  whichsense,  therefore,  may  not  attach 
Rather  hanh    to  the  former,  inasmuch  as  he  was  ^  approaching  to  eighty."  *    This  is, 
n^ttlpa^dk    ^^^^^^9  *  harsh  and  cruel  condumon, — moreover,  too,  refuted  by  the 
Lord  Gray,  and  contrary  nature  of  the  settlements  of  old  men  every  day,  who  still  do 
old  men.  not  overlook  *^  heirs-male  of  their  bodies,"  whom  the  notion  always  agree- 

ably flatters,  and  in  which  they  might  be  indulged  ;~nay,  opprobrious 
withal,  to  the  virility  of  Lord  Patrick,  which  was  never  before  question- 
ed ;  while,  I  need  hardly  add,  that  many  existing  noble  fiunilies  are 
kgatty  descended  of  ancestors  of  the  age  of  eighty,  or  even  older,  nay  of 
'<  exhausted  longevity,"  to  borrow  a  phrase  of  Mr.  Sinclair's,*  at  the  time 
of  procreation  ;  not  to  add,  in  more  untoward  and  objectionable  predi- 
caments. Can  it  be  disputed  in  law,  which  we,  though  not  Mr.  Sin- 
clair, are  only  discussing,  that  a  future  son  of  Patrick  Lord  Gray— un- 
less proved  impotent,  and  even  that  might  be  impracticable,  would  not 
have  taken  under  the  limitation  in  question  ?  I  conceive  it  cannot ; 
and  if  so,  then  there  is  an  end  of  the  gentleman's  pretence.  With 
respect  to  this  instance  of  Gray,  I  have  only  to  add,  that  &thers  in 
those  days,  as  can  be  fully  proved,  by  our  strange,  uncouth  conveyan- 
cing practice,  which  I  have  often  reprobated,  were  in  use  to  evince 
great  kindness  to  their  daughters  after  the  above  fashion,  even  to  prefer 
Gray  eouTey-  their  issue,  in  certain  emergencies,  to  tliat  of  their  sons ;  while  not 
!!!!^iu*  *^^^  ®°^y  *^®  direct  heir-male,  but  actually  Marjory  Gray,  having  pre- 
*'*^'    •  Tiously  thoroughly  renounced  in  fovour  of  John  Gray  of  Criehie,  her 

husband,  who^  moreover,  at  the  moment,  was  put  over  the  shoulders  of 


peouliar. 


'  DiMertation,  p.  72. 

'  Jifid,     He  has,  however,  adduced  no  CTidence  of  his  age. 

'  Ibid,  (ContenU,)  p.  lii. 


APPEKDIX,  101 1 

Palrick  Lord  Qray^  and  so  exalted  to  the  dignit3r9~.which  is  all  prov- 
ed by  the  patent, — the  ordinaiy  legal  suecession  was  contemned  and 
inverted  in  his  case.  It  hence  cannot  either,  well  illustrate  a  point  at 
eommon  law,  which  was  not  followed  ;  John  thus  coming  in  as  a  sin- 
gular successor,  and,  it  is  believed,  owing  to  onerous  considerations. 

The  Rozbuighe  case,  which  Mr.  Sinclair  next  introduces  at  length,  Case  of  Ro\. 
has  nothing  to  do  with  the  question ;  the  Earldom,  though  limited  by  ^urghB  in  I7th 
patent  in  1616  to  "heira-male,**  havingbeen  fully  taken  from  them,even  J^  "{"J  wWecu" 
upon  his  own  theory,  to  heirs-female  of  tiie  body,  and  their  heirs-male, 
by  a  noted  regrant,  upon  a  resignation,  of  Robert,  first  Earl  of  Rox- 
burghe,  (whose  date  Mr.  S.  n^ligently  does  not  mention),  in  1646, 
while  no  claim  in  opposition  to  such  ruling  regrant,  that  carried  like- 
wise the  estates,  was  ever  attempted  by  a  collateral  heir»male.    Sir 
Walter  Ker  <tf  Faudonside,  the  heir*male  collaterally,  under  the  older, 
and  original  landed  Roxburghe  settlements,  which  wore  conceived  to 
heirs-male  whatsoever,  ratified,  through  fttrm,  the  new  conveyance,  so 
&r,  as  concerned  the  lands,  having  thus  a  previous  independent  inter-  * 
est ;  but  this  is  foreign  to  the  question  of  the  honours,  that  was  based 
otherwise,  and  could  not  be  afiected  by  any  such  act.    Why  this  pre- 
cedent was  brought  into  the  field,  may  indeed  again  puzzle  us,  unless 
as  on  agreeable  interiude,  and  variety,  as  a  contrast  and  palliative  to 
that  of  Grray, — by  way  of  amusonent  to  the  worthy  gentleman  and  his  Mr.  Sinclair 
readers ;  in  so  far,  as  much  more  &vourable  and  benignant, — howsoever  ^^^  indulges  is 
imkvani  the  Upic  in  the  main, — ^to  William  Drummond,  second  EarlfQ^f^J^^i^iJ*' 
of  Boxburg^e,  than  to  Patrick  Lord  Gray,  he  actually  contemplates  William  Earl  of 
laacomnnUif^  matrimony^ — ^nay  even,  sad  Rou^,  being  "  smitten  by  other  Roxbni^jhe,   ta 
eharms"  than  those  of  his  intended,  to  the  disappointment  of  the  f^^  i^i,  hanh- 
^' agent  of  Hymen,"  ' — ^whoro,  of  course,  influenced  by  better  motives,  new  to  Patridcr 
it  is  to  be  hoped,  Mr.  S.  will  be  disposed,  at  length,  to  obey ;  with  what-  ^^  ^^^*  ^^ 
ever  female  "  charms" — ^thus  remarkably  launched  into  the  discussion 
— ^he  may  be  smitten.    In  the  meantime,  it  must  afford  his  friends 
much  sensible  satisfiiction  in  hearing  him  in  this  manner  start,  and 
introduce  the  question  of  Hymen. 

Spent  with  the  above  agreeable  exertion,  Mr.  Sinclair  seems  to  have 
fallen  into  a  placid  state  of  torpor,  and  abstraction,  which  may  account 
for  his  great  inadvertence  in  the  Lothian  case.    The  patent  of  the  Earl-  Cara  of  Lothian 
dora  of  Lothian,  in  1606,  is  to  "heirs-male;"  yet  no  claim  was  ever  made  ^^^  1624,  also 
—even  upon  his  own  shewing — ^by  a  collateral  heir-male,  of  whom  there  |^,tead  ^^all 
nevertheless  were  many,  on  the  extinction  of  the  heirs-male  of  the  body  auisting  him. 
of  the  patentee,  so  early  as  Charles  the  Second's  reign. 

He  Uius  again  goes  to  refute  himself,  by  his  own  adduction.  He 
states,  that  upon  the  succession  of  the  direct  heiT-female  (in  1624),  there 
was  a  challenge  by  the  "  second  son  to  the  first,  and  brother  to  the  se- 
cond Earl ;"  '  but  he  being  thus  also  an  heir-male  of  the  body,  liad 
quite  a  right  to  move,  in  terms  of  the  patent  1606,  uuderwAa^eoeraoeept* 


'  Ibid,  p.  61.  '  Ibid,  p.  63. 


1012 


APPENDIX. 


ation  of  ^  hein-male/*  whose  meaning  it  con  never  illustrate  in  the  way 
he  intends.    There  is  no  feature  of  the  case  here^  worth  eonsidering.* 

The  appealing      q*^  ^^^^  great  straits  is  Mr.  Sinclair  driyen,  that  he  is  even  com- 

lo  the  case  #i 

Ratherford,       pelled  to  betake  himself  to  the  wretched  case  of  Rutherford/ — ^in  a 

which  besides  is  matter  of  this  kind, — already  sufficiently  stated  ;  involving  an  nntech- 
not  in  point,  w-Qieal  and  dumsily  executed,  if  not  effete  settlement,  by  a  rough  unex- 
ireme  weakness  p^nenced  soldier ;  and  which,  as  I  remarked,  at  the  utmost,  can  but 
of  Mr.  Sinclair's  save  itself,  without  attempting  to  save,  or  assist  ebewhere, — fair  less  to 


eipositioD. 


Case  of  Jed- 
burgh, in  the 
17th  century, 
also  unra?our> 
able  thereto. 


Mr.  Sinclatr 
BiisBtates  a 
circumstance. 


operate  as  a  rule  or  authority  in  conveyancing,  or  in  limitations.  In- 
deed, as  I  also  said,  to  allude  to  it,  is  an  absolute  confession  of  defeat. 
Independently  too,  of  this  poanbk  meaning  only  transpiring  from  the 
general  context,  and  other  clauses,  this  precedent  obviously  cannot  be 
viewed  as  an  abstract  limitation  to  heir»-male.* 

The  Barony  of  Jedburgh  was  limited  in  1622  to  heirs-male,  **sucee9' 
sorihus  in  Familiam  de  Femihirst,  cognomen  et  insignia  de  Ker  ge- 
rentibus."^  This,  then,  is  not  a  simple  limitation  to  heirs-male,  all  that 
we  discuss  ;  the  adjunct  "  succeewribtu,**  &c.  coupled  with  the  family 
destinations,  having  an  enlarging  efiect,  independent  of  that,  further  so^ 
constructively,  and  unequivocally  given  to  *' bearing  name,  and  arms," 
by  the  House  of  Peers.  Nevertheless,  upon  the  death  of  Sir  Andrew 
Ker,  the  patentee,  without  nude  issue,*  the  honours  at  once  vanished 
from  the  face  of  the  earth;  for  they  were  taken  by  none,  though  thm 
existed  many  eoUateral  heirs-male.  Nay,  of  these,  ^  John,  son  of 
Alexander  Ker,"  according  to  Mr.  Sinclair,  in  1654,  ^  was  served  heir- 
tnale  of  his  grand-uncle,  Andrew  Lord  Jedburgh," "  (the  patentee);  but 
though  thus  proud  of,  and  so  eager  legally  to  establish  the  status  of  his 
heir-male,  ho  neither  ventured  to  claim,  or  to  assume  the  dignity.  But 
at  length,  in  order  to  enable  Robert  Ker,  the  next  collateral  heir-male, 
to  be  Lord  Jedburgh,  at  the  advanced  period  of  1670,  recourse  was  had, — 
to  what  ?  to  a  new  patent,  which  de  novo  (on  a  recital  of  the  old)  createe^ 
makegy  and  constitutes  the  same  Robert,  there  repeatedly y  and  invarkMy 
described  simply  as  a  eommonery — a  matter  omitted,  nay,  in  fact  mi»- 
represented  by  Mr.  Sinclair,'— Lord  Jedburgh,  with  limitation  to  him, 

'  For  a  statement  of  the  curious  Lothian  case,  otherwise,  see  pp.  73-4,  c<  mj. 
The  conreyance  to  the  heirs-female  not  being  effectual,  I  conceiTO  the  heir-male 
collateral  may  haye  a  claim  to  the  honours,  on  the  modem  acceptation  of  heirs- 
male,  agreeably  to  the  late  Devon  decision. 

'  Dissertation,  p.  58. 

'  For  the  Rutherford  case,  see  p.  893,  et  teq.  including  pp.  901-2. 

*  Great  Seal  Register. 

*  He  left,  as  1  can  prove,  several  daughters,  of  whom  descendants  exist. 

'  Dissertation,  p.  75.  The  service,  a  general  one,  upon  record,  is  dated  Jone 
24,  1654.  Mr.  Sinclair  does  not  think  it  incumbent  to  specify,  or  to  give  his  au- 
thorities fully. 

'  He  states,  (Dissertation,  ut  tup.)  that  upon  the  failure  of  the  prcTious  colla- 
teral heir-male,  **  Robert,"  the  new  patentee  in  1670,  **  became  Lord  Jedlmrgk^ 


APPENDIX.  101 S 

and  the  heirs-male  of  his  body,  whom  failing,  to  William  Master  of 
Newbattle,  grandson  of  William  Earl  of  Lothian,  and  to  the  heirs- 
male  of  his  body,  &c.    Hence,  Robert  Ker,  though  the  heir-male,  took 
quite  in  a  new  character,  however  the  patent,  while  it  attempts,  some* 
what,  to  colour  and  to  gloss  orer  things,  (probably  at  the  suggestion  of 
the  party,)  states,  among  other  inducements,  and  motives,  that  it  was 
in  eorrobaratum  of  that  in  1622.    But  even  this  shews  that  the  latter 
was  distrusted,  and  not  held,  perse,  efiectual,  as  a  conveyance  to  heirs- 
male  collateral.    If  the  converse  too,  there  was  no  necessity  for  such 
peeuUar  additional  patent.    All  that  then  remained,  in  order  to  let  in 
the  above  Master  of  Newbattle,  the  grandson  of  the  £aW  of  Lothian,  the 
next  heir-male,  who  is  a  partial  deviation  from  the  direct  male  suo* 
cession,  was  simply  to  have  resigned,  and  to  have  obtained  a  regrant 
accordingly.    How  this  instance,  upon  the  whole,  including  the  differ^  He  does  not 
ent  structure  of  the  patent  in  question  in  1622,  from  one  simply  « to*®''  ^^^y^^ 
heirs-male,"  is  to  illustrate  his  ai^^ment,  which  it  directly  goes  to  re-  ^^   ttoiptiy** 
fnte^  Mr.  Sinclair  strangely,  even  does  not  venture  to  explain.    He  leaves  it,  to 
seemingly,  as  if  so  impressed,  diverges  to  an  extraneous  circumstance  P|^y  ^*^^  ^® 
regarding  the  Master  of  Newbattle,  with  whom  he  plays,  and  amuses  i^ttle. 
himself,  cruelly  leaving  his  former  porteg^  to  sink,  or  swim  as  it  can. 
I  may  only  add,  that  in  the  notice  of  the  registration  of  the  patent  in 
the  Books  of  Parliament,  **  heirs-male  "  alone,  are  twice  expressive 
of  the  two  limitations  respectively,  in  the  new  patent,  to  *^  heirs-male 
of  the  body  ;  "*  thus  exemplifying,  over  and  above,  their  narrow  synony* 
mous  meaning,  and  making  Mr.  Sinclair,  lucklessly  again,  Felo  de  se, 
through  the  agency  of  his  own  authority. 

Whatever  there  may  be  in  the  words,  **  bearing  the  name  and  arms,** 
taken  with  '^heirs-male,"  agreeably  to  others,  and  my  unbiassed  notion, 
as  formeriy  explained,  we  must  still  keep  in  view,  that  the  House  of 
Lords,  constructively,  from  Lord  Mansfield's  adoption  of  their  modem 
acceptation,  on  the  Elirkoudbright  occasion  in  1772,  have  held  them  to 
operate,  accordingly,  as  equivalent  to  heirs-male  whatsoever,  and  to 
carry  an  honour,  by  their  peculiar  effect,  to  such  collaterals.    Hence  Cue  of  Kelly 
they  also  would  now  act  in  the  same  way,  under  the  Jedburgh  patent  also  not  in  point, 
in  1622,  as  it  also  did  in  the  case  of  the  Earldom  of  Kelly  referred  to,  crnst^u^iyekw 
limited  by  patent,  the  12th  of  March  1619,  to  **  heirs-male  bearing  the  of  Lord  Mans- 
name  and  arms  of  £rskine,'**  where  the  specialty  was  founded  upon,  and  ^^^^  ^^  ^^^ 
admitted  in  1836  ;  which  necessarily  takes  that  precedent  out  of  the  "^?J!^''|^^^®"' 
category  of  simple,  or  abstract  limitations  to  heirs-male,  with  which  founded  upon, 
we  have  alone  to  do.    My  remarks,  as  to  Lord  Mansfield's  noted  pre- 
sumption as  to  heirs-male  of  the  body,"  here  again  apply«    Upon  the 

and  was  to  reeognittd  by  King  Charles  II.  in  1670,  when  he  got  a  new  grant,  with 
the  old  precedency,"  &c.  This  eridently  did  not  obtain,  as  stated.  Neither  did 
the  new  patent  proceed  upon  a  rengnation, 

>  AcU  of  Pari.  last  Edit.  toI.  IX.  pp.  244-5,  where  the  patent  is  fully  gifea. 

*  Great  Seal  Register.  *  See  pp.  969-60. 


1014  APPENDIX, 

Case  of  Hame,  authority,  as  before,  of  the  ^  Peerage  writers^"  his  insepaxable,  and 
in  the  1 7th  cen-  oonstaiit  orades,  without  whoee  aid  and  aaristanee  Mr.  Sinclair  would 
imle'ant'^eii^^^^^^^^^^^^^ — ^though  without  making  anf  acknowledgment 
upon  Mr.'  Sin-  in  retnm,  he  states  that  the  Earldom  of  Home,  to  which  an  heir-male 
clair*!  own  ooUateial,  as  he  also  mentions,  afterwards  saooeeded,  was  constituted 
•b««l>W-  iiie  4th  of  March  1605,  with  remainder,  flkmUaihn  is  the  select  term,) 

thus  most  broadiy,  ^  to  heirs-male  whaUoeoer,"^ 

What  then  has  this  again  to  do  with  the  question,  inTobring  **  hei»« 
male"  ahne  f   If,  as  above,  undoubtedly  the  heir*male  collateral  would 
succeed.    But  while  there  is  no  CTidence  as  jet  adduced,  or  known  to 
existy  of  such  broad  original  constitution,  whaterer  flattering  unction  the 
Peerages  conrey,    ecrtainly  upon  record,— it  strangely  happens  agun, 
that  ncM  heir-male  was  obliged  to  obtain  from  the  crown,  a  new 
patent,  dated  22d  of  May  1696,  of  the  Utle  of  Eari  of  Home,  backed  by 
an  Act  of  Parliament  in  1641,  carrying  the  old  precedence,  in  &vour 
of  the  party  and  his  heirs-male,'  under  which,  all  the  subsequent  Earls 
of  Home,  down  to  this  moment,  have  taken,  as  heirs-male  of  the  body. 
This^  of  course,  betrays  a  striking  distrust  of  the  efficacy  of  the  original 
patent,  whatever  it  was ;  for,  if  to  hdra-male  whatsoerer,  there  then 
was  no  conceivable  occasion  for  that  in  1696,  or  the  special  Act  of 
Parliament, — ^which  in  this  view  are  inexplicable  ;  whik^  if,  as  is  pro- 
bable, it  was  only  to  ^  heirs-male," — the  defect  of  such  lesser  limitation 
being  indispensably  so  salved, — ^the  case  again  makes  Mr.  Sinclair  Feio 
de  M,  and  cut  his  own  throat, — ^hisown  authority,  manifestly,  murder- 
Hay,  BMj  be  ing  and  destroying  his  argument.    To  such  attempt,  we  regret,  of  late, 
even  unfaToiir-  the  respectable  gentleman  is  rather  subject, — in  consequence  perhaps 
Mrn'mhi'^F^  of  the  irksomencss  of  this  business^  and  being  ^^smitten  (though  not 
^m^agam         hopelessly,  it  is  to  be  expected,)  by  Mer  charms."    Besides,  as  we 
have  seen,  the  right  of  the  collateral  heir^male  was  aetnally  contested 
by  the  heir-general  in  1683  ;*  and  hence  the  new  patent  in  1696,*  owing 
to  the  inefficacy,  as  we  mi^t  thus  conclude,  of  the  former. 
CaM  of  the  Ba-     Of  all  the  irrelevant  and  inappropriate  cases  that  could  ever  be  most 
rony  of  Sindair  blindly  dragged  into  the  discussion,  it  would  beggar  fancy  to  conceive 

m<Jf faUJe**Mid  ^^  "^^'^  *^'  **""*  *^*  ®^  ***®  Barony  of  Sinclair,  to  which  the  worthy 
•j^traneout  fana-  g«utleman,  however,  confidently  appeals.  It  is  constituted  by  patent, 
ginable.  dated  Ist  of  June  1677,  in  &vour  of  Henry  Sinclair,  and  the  heirs-male 

of  hie  body  ;  tohomfaUingy  to  John  Sinclair,  his  brother-german,  and 
the  heirs-male  of  his  body ;  whomfaihngy  to  Robert  l^clair,  brother- 
german  of  the  late  John  Sinclair  of  Herdmeston,  and  the  hdrs-male 
of  his  body ;  whom/iiUingj  to  George  Sinclair,  his  other  brother-ger- 
man, and  the  heirs-male  of  his  body ;  wham  fiuHngy  to  Muthew  Sin- 
clair, his  other  brother,  and  the  heirs-male  of  hie  body  ;  whom  feuling, 

'  See  Wood*!  Dooglaa't  Peerage,  toK  L  p.  736. 

■  Great  Seal  Register,  and  Acti  of  Pari.  toL  V.  lart  edit.  p.  683. 

'  See  pp.  15,  16. 

*  For  Mr.  Sinclair*!  remarks  on  the  Home  case,  tee  Din ertation,  p.  74. 


APPENDIX.  1015 

to  the  nearest  lawful  heirs-male  of  Henry  Sinclair  firBt  mentioned,  of 
conrse  clearly  coilateral^  by  the  context.^    Upon  the  foilure  of  the  pre- 
vious heirs-male,  the  honours  were  claimed  in  1780,  as  we  have  seen, 
by  Charles  Sinclair,  direct  male  descendant  of  the  My  of  the  aforesaid 
Mathew  Sinclair,  called  nominatimy  as  a  remainder-man,  under  an  in- 
dependent stock,  and  thereafter  allowed  him,  in  1782  ;'  and  his  case,  it 
seems,  is  a  cogent  instance  of  the  descent  of  an  honour  to  a  collateral  heir- 
male^  under  one  limitation  iimpty^  to  "  heirs-male  1 !  "—ail  that  can  be 
disputed.    Mr.  Sinclair  here  perpetrates  a  glaring  error,  and  misstate-  Mr.  Sinclair 
ment.    "  In  the  PetUion*'  of  the  claimant  in  1780,  he  says  Am  eftitm  was  \^^^'J^!^ 
only  reeted  **  upon  the  phrase^  ^  neareet  Mr-^nuUe;**  and  upon  the  strength  «rror  ^id  mia- 
of  this  single,  abstract  conceit,  which  neither,  could  have  compromis-  itatement 
ed  the  true  merits  of  the  case, — ^necessarily  to  the  exclusion  of  the  con- 
sideration, and  mighty  weight  of  the  distinct  remainders  recited — ^that 
even  saved  against  attainder,^— he  would  foin  entertain,  nay  broaches 
the  notion,  and  ventilates  it,  as  if  the  decision  was  only  thui  based 
and  authorized.  He  at  least  directly  says,  that  *^  this,  on  the  ground  of 
the  petition,  (as  abowyj  would  have  been  an  adjudged  case  in  fovourof 
eoUaterais  succeeding,  under  the  head  of  heire  male  I  *'*  But  what  must  we 
think,  when  it  turns  out,  that  such  neither  obtained  in  the  petition^  or 
in  the  claim ;  and  that  it,  e  ooneereOy  did  proceed  in  virtue  of  the  remain- 
ders, reguhiting  the  descent  in  the  patent,  which  are  all  fully  founded 
upon,  and  set  forth.    Nay,  further,  the  petition  emphatically  rests  the 
right  upon  the  conclusion,  that  the  petitioner  or  claimant,  **  by  the 
Umitatione  in  the  aforesaid  Letters  Patent, — ^is  become  entitled  to  the 
title  of  dignity,"  &c.  how  I— not  as  **  nearest  heir  male," — indifferent- 
ly, as  pretended  ;  but  exclusively  ^ae  the  heir  male  of  the  body  of  the 
said  Mathew  St.  Clair ! "  *    After  this  fiishion  does  he  proceed  in  align- 
ment I    Equally  futile  too,  is  his  assumption  and  gratuitous  supposi-  HeaUoratoeiop 
tlon,that  it  was  ever  entertained,— by  any  one, — in  the  case  of  such  com-  *  "^  of  ^^kw, 
prehensive,  and  articulate  destination  as  the  Sinclair,  that  the  adjunct  ^^  downr^ 
'^bearing  the  name  and  arms"  wasneee8sary,under  l^gal  understanding, 
at  any  time,  to  impress,  and  secure  the  effect  of  collateral  descent,'  so 
fully  marked,  and  defined  quite  independently,  and  by  the  context,-^  n^^  „  wellu 
a  distinction  which  it  seems  in  vain  to  drive  into  Mr.  Sinclair's  peri-  elsewhere,  does 
eranium,  which  here,  as  vrell  as  elsewhere,  is  in  no  small  degree  mysti-  "**^  •J.®  *°  °**^*' 
fied ;  and  is  illuded,  and  argues  with  the  aid  of  shadows. 

The  last  of  this  discomfited  squadron  of  cases,  as  I  think  we  may  The  two  uu  of 
now  call  them,  that  were  to  do  such  mighty  things,  are  the  Barony  of 'l>»*jJ»«>iDfited 
Aston,  and  Viscounty  of  Gamock,  which,  awkwardly  indeed,  in  aJ2J',_th^  ^* 

very  unserviceable,  laggard  condition,  bring  up  the  rear, — the  for-  Atton,  and  Gar* 

nock. 

*  Great  Seal  Regiiter.  '  See  pp.  712-13. 

*  See  ibid.  *  Dissertation,  p.  67. 

'  See  Lords' Journals,  and  Robertson's  Peerage  Proceedings,  pp.  406-7-8,  where 
the  «'  PeUtion  "  is  fully  given. 
'  Dissertation,  pp.  67-6. 


1016  APPENDIX. 

Aston  is  as  ir-  mer  being  limited  by  patent^  the  28th  of  November  1627,  to  **  heirs- 
relevant,  as  its  male  bearing  the  name  and  arms,"  *  and  which,  independently  of  th« 
pr  ecessors.  constructive  specialty  from  this  adjunct,  by  the  ruling  finding'  of  the 
House  of  PeerSy* — ^being  9nly  tuntmedy — ^without  any  proper  recogni- 
tion, as  in  several  untenable  Peerage  cases,  is  every  way,  nothing  to  the 
Garaock  most  purpose.  While  Gamocky  its  companion  in  distress,  even  still  m<HPe 
fir  i?^n^'  "^  ^^®  *  "  wounded  snake,"  draws  its  "  siow  length  along,**— being  indeed, 
tell.  without  disrespect  to  the  Christian  appellation  of  its  captain,  a  needier 

Aleamndrine,    Of  what  possible  use  it  is  here,  may  be  at  once  seen, 
when  the  honours  are  limited  by  patent,  dated  26th  of  November,  1703^ 
to  the  patentee,  '*  et  hteredibus  masculis  sui  corporis ;  quilnu  d^eien^ 
tibw^  ALiis  propinquioribus  Haeredibus  suis  maaculUy* ' and  as  yet, 
only  heirs- male  of  the  body  have  taken,  without  there  being  even  any 
devolution,  dejacto,  to  eottaterals;*  whobesidesy  as  coming  under  a  dis* 
tinct  remainder,  could  never  supply  an  instance  of  the  descent  of  an 
honour  to  *^  heirs-male  **  simply.    Such  attempts  at  illustration  by  such 
pretended  make-toeighU,  visionary  indeed,  only  litter  a  discussion,  and 
Mr.  Sinclair,     exclude  the  true  merits.  Yet  the  worthy  gentleman,  still  under  the  in- 
from  not  seeing  fl^ence  of  his  usual  mystification,  contends  that  the  creations  "  of  Stra- 
in the  ease  of  thallan  *  in  1686,  Dundee "  in  1688,  and  Gamock  in  1703^  independent 
patents  with  re-  of  the  actual  succession  of  collaterals  in  the  two  first  cases,  are  quite  de- 
mainders,  from  cisive  as  to  the  comprehensive  meaning  ot  heirs  mak"'' — ^that  is,  sim- 
heirs-male,       P^X'  ^^^  abstractly  I    Mr.  Sinclair  does  not  see  the  l^gal,  indeed  obvious 
draws  the  most  force  of  ^*  whom  failing,"  significantly  enough  coupled,  in  the  above 
preposterous     4iafies,  with  "  other  heirs  male ;"  thus  opposed  also  to  the  previous  "  heirs 
conclusion.        °^®  ^^  ^®  body"  only,  in  the  context,  and  hence  inducing  a  broader, 
unrestricted  descent ;  while  it  is  further  remarkable^  that  in  the  in- 
stances of  Strathallan  and  Dundee^  ('defaeto  only) — as  well  as  of  Bread*" 
albane,^— the  actual  collateral  takers,  are  biU  heirs*male  of  the  body^ 
that  is,  quoad  the  first  remunder-man,  or  stock,  under  whom  they  hold* 
The  preceding,  thus  irresistible  new  instances  of  Mr.  Sinclair,  in  his 
apprehension,  which  triumphantly  fix  that  *^  Hdrs-male  include  colla- 
terals,"'— and  whose  titles  even,  all  severally  and  respectively,  he 
blazons  out,  and  exultingly  prefaces,  and  parades,  in  capital  letters,**— 
insensibly  remind  us  of  the  sticks  carefully  planted  by  the  stripling,  in 
the  fond  belief  they  were  trees,  and  about  to  produce  the  best  and  the 
choicest  fruits.    In  the  same  way,  I  fear,  we  must  regard  what  the 
worthy  gentleman  has  thus  planted  in  the  field  of  controversy,  aa 

'  Great  Seal  Register.  '  See  p.  622. 

'  Great  Seal  Register. 

*  George  Earl  of  Crawford  and  Lindsay,  Viscount  Gamock,  the  last  heir-male 
•of  the  body,  died  in  1808 ;  since  when,  no  one  has  proseputed  his  r^ht  to  the 
Viscounty,  which  continues  unassumed,  and  dormant. 

■  See  pp.  1007-8.  '  See  iUd. 

^  Dissertation,  p.  24.  '  See  pp.  1007-8. 

*  Diisertation,  p.  67.  ^  Ibid,  pp.  57-8-9,  etseq.&c 


APPENDIX.  1017 

an  eqiud  fmlure,— metaphorically,  but  as  barren  sticks^  as  melancholy  All  the  fifteen 
scarecrows  in  the  desert  waste  of  his  exposition,— emblems,  alas  I  of  his  iMtancet,   as 
bootless,  though  ghriout  attempt — ^to  remain  only,  till  they  be  blown  ^^^  unaTailing. 
down  by  the  first  zephyr  : — 


"  Gloria-^emn  primo  deperitura  no/o.*** 

Not  only  so,  but  as  his  instances,  besides  rebeUiously,  and  unnaturally 
ruining  his  own  cause,  choke  and  preclude  healthy  vegetation,  they 
are  utterly  unprofitable,  and  fall  to  be  forthwith  plucked  out,  and  ex- 
tirpated by  the  husbandman.  They  may  excel  ostensibly,  in  numeroy 
but  not  certainly  in  pondere;  thus  exemplifying  the  futility  of  the  re- 
lative argument,  reprobated  by  lawyers,  as  used  by  Lord  Mansfield,  in 
reference  to  his  crude  presumption  in  finvour  of  heirs-male.'  In  perus- 
ing other  parts  of  Mr.  Sinclair's  performance,  we  still  meet  with  the 
same  luckless  attempts  at  illustration,  and  equal  miscarriage,  owing 
to  undue  haste,  and  inadvertence ;  and  in  the  absence  of  thorough,  and 
original  investigation  into  the  cases  he  adduces  in  support  of  his  conclu- 
sion. Take,  for  example,  that  of  the  asserted  ^^Eiurldom"  of  Angus,  His  others 
grounded  upon  a  charter  in  1547,'  which  not  being  in  the  17th  cen-  equally  so. 
tury,  or  afterwards,  for  a  reason  to  be  noticed  in  the  sequel,  might, 
even  upon  this  ground,  be  deemed  irrelevant.  It  is  like  the  Breadal- 
bane,  and  Strathallan  precedent^  &c.  though  even  more  adverse,  the  sub- 
stitution being  first  to  heirs-male  of  the  body ;  whomfaUingy  "  h»redi- 
bus  mascuhs  (of  the  disponee)  et  9ui9  assignatis  quihuicunque  ;  "'  and 
because  heirs-male  collateral,  as  he  apprehends,  were  tx  terminUy  entit- 
led to  the  dignity  by  the  remainder,  it  in  like  manner  hibemicey  again, 
explains  the  technical  meaning  of  **  heirs  male"  simply ! '    It,  how- 


'  By  the  way,  these  lines  are  used  by  Buchanan  in  reference  to  a  singular  mor- 
tal, one  Critto,  who  had  such  an  itch  for  heraldry,  and  pedigree,  as  to  be  constant- 
ly importuning  his  neighbours  therewith,  and  deducing  arms,  and  Peerages  upon 
the  frail  fabric  of  their  windows ;  which  the  unfeeling  Notus,  though  much  milder 
than  his  brethren,  having  no  such  turn,  is  thus  cavalierly  to  treat.  As  somewhat 
tonnected  with  the  present  subject,  I  shall  here  subjoin  the  whole  of  the  Poet's 
relative  epigram : — 

*'  Critto  suo  cupiens  aliquid  superesse  sepulchre. 

Nee  simul,  in  Stygios  totus  abire  lacus. 
Omnibus  appingitySulofa  iiuignia  vitrit. 

Nee  HIuHm  vacua  est  uHa  fenestra  notis. 
O  speifltixa—JireviM  famae  fiducia — mendax 

Gloria, — cum  primo  deperitura  Noto  t  *' 


'  See  p.  944-5.  "  Dissertation,  p.  64. 

*  1  qnote  from  the  original,  in  the  Douglas  charter-chest.         *  Dissert,  p.  6d. 


1018  APPENDIX. 

eyer,  singularly  tttrns  out,  that  the  charter  in  question  >  does  not  carry 
the  ^^  Earldom  "  or  *^  Oomitatu$**  of  Angus,  there  being  no  mention  of 
such  there,  but  only  of  iands,  a  ciroumstance,  whateTer  weight  may  have 
been  given  to  the  same,  that,  I  believe,  has  been  unnoticed*    Mr.  Sin- 
clair, under  this  head  also,  wrongly  asserts,  as  usual,  without  a  vestige  of 
authority,  which  he  seems  to  repudiate  throughout,  that  ^  the  mamd 
Marquis  of  Douglas,"  Earl  of  Angus,  &c.  ^^  obtained  power  from 
Queen  Anno  to  restore  female  succession  in  his  own  line."  '    This  is 
quite  unfounded.    He  obtained  no  such  high  faculty,  (having  beMea  ac^ 
tuaUy  predeceased  the  aocessum  of  her  Majesty, )  as  he  would  have  discov- 
Soatchea  at  an  ered,  had  he  barely  looked  into  the  Douglas  litigation,  last  century.  But 
apparent  short-  ^^^  above  isnot  all ;  Mr.  Sinclair  may  argue,  there  is  still  the  redoubtable 
throuffhThe  m«-  ^*^  ^^  *^®  "  Earldom"  or  Comitatus  of  Caithness  in  1646.   By  a  char- 
diwn  of  the     ter  in  that  year,  it  is  simply  limited  to ''heirs-male."  *  Here  then,  is  a 
Caithness  char-  case,he  says,  precisely  in  point;  fornotwithstandingthe  use  of  such  words 
which  however  ni^^ly,  in  full  proof  of  my  doctrine,  the  branch  of  Sinclair  of  May, 
does  not  tell,  in  Virtue  thereof,  though  only  collateral  heirs-male,  took,  and  had 
being  supersed- their   right  adjudged  and   admitted   by  the   House  of  Lords   in 
1 592.  *h!J^  at"  1793,—"  so  that  this  is. "  clearly  and  infallibly  **  a  case,"  to  the  utter 
once  dispels  Mr  discomfiture,  and  disgrace  of  my  opponents,  as  he  actually  adds — ^  of 
Sinclair's  bright  heirs  male,  without  any  specification,  including  collaterals."  *    Thisj,  no 
magina  ion.      ^Qji\yi^  sounds  abundantly  well;  but  pray,  Mr.  Sinclair,  was  this  charter 
1 546,  the  true  and  regulating  conveyance  in  the  matter  ?    Unfortunately 
for  your  brilliant  conclusion,  I  have  to  state,  it  was  not;  on  the  contrary, 
it  never  warranted  more  tlian  a  direct  male  descent,  when  in  force ;  for 
it  came  to  be  wholly  superseded,  and  nullified  by  a  later  charter  of  the 
Oomitatui  of  Caithness,  with  a  new  erection,  dated  3d  of  April  1692, 
which  you  have  strikingly  omitted, — ^not  by  any  means  so  restricted,  but 
broadly  conceived  to  "  heirs  male,* — "  et  assignatis,*  quibuecunquey**  * 
as  to  the  unlimited,  collateral  import  of  which,  there  can  be  no  doubt. 
The  latter  amply  comprehends,  under  the  adjunct "  quihuscunque"  the 
identical  branch  of  May,  including  all  the  lawful  heirs-male  of  the  house 
of  Caithness,  who  are  abundantly  known,  and  are  now  comprised  there- 
in.   Mr.  Sinclair  obviously  cannot  object  to  the  same  grant  in  1692, 
as  carrying  the  honours ;  for  he  allows  the  still  recenter  one  of  tho 
Comitatus  of  Moray  in  1611  to  do  so,  even  at  a  time  when  personal 
grants  of  honours  exclusively,  had  come  fairly  into  vogue.    I  need  not 
add,  that  the  Caithness  charter  1692,  takes  Mr.  Sinclair's  Caithness  in- 
stance in  1646  wholly  out  of  his  category.    Yet  nevertheless,  he  stUl 

'  The  original  was  produced,  and  printed,  at  tho  competitioa  for  the  Douglas 
estates,  last  century. 

'  Dissert,  p.  86.  His  Christian  name  is  James,  which  should  have  been  stated. 

'  **  And  assigns"  (auignalia),  as  added  ;  but  there  having  been  no  assignation, 
<urign»  may  be  thrown  out  of  view. 

*  Dissertation,  pp.  83,  24. 

'  Tho  same  remark  applies  here,  as  to  tungnatiM,  before. 

*  Great  Seal  Register.     It  proceeds  upon  a  resignation* 


APPENDIX.  1019 

goes  on,  to  the  same  tuoe,  quoting  the  equally  foreign  cases  of  Bucfaan  Cases  of  fiu- 
and  Yhester,  &c>  whose  barricadoes  of  distinct  remainders,  as  in  the  in-  ^'^;,J^®'y®[{ 
stances  of  Angus,  and  Strathallan,  &c.  which  he  contemns  and  over-  futjie,  irrele- 
leaps^  as  much  prevent  them  from  being  of  any  benefit  to  him ;  nd^vau 
Utdet  harumy  &e.  &c. 

In  shorty  Mr.  Sinclair  has  brought  forward  no  new  case  and  autho-  Mr.  Sinclai/s 
rity,  bearing  upon,  or  tending  to  illustrate  the  question ;'  nor  could  it  eflbru  like  the 
be  weU  expected,  considering— together  with  his  marked  legal  misap- J*^°"^"^'^^^^^ 
prehensions — ^the  secondary  sources  of  knowledge  that  he  contents  him-  ly  unproductiTe. 
self  with,  the  ^  Scottish  Peerages"  generally,  &c.  though  unacknow- 
ledged, if  even  sometimes  so  much,  without  broaching  the  original,  or 
the  more  recondite,  that  can  only  properly  illustrate  and  assist. 

My  present  remarks  have,  more  especially,  been  in  reference  to  what 
be  has  thus  attempted,  the  previous  adductions  and  expositions  in  the 
matter,  whether  judicially,  or  otherwise,  being  more  familiar,  and 
hence  less  deserving  a  recapitulation. 

It  cannot  be  denied,  that,  in  the  17th  century,  after  the  broad  intro-  Natural  distinc- 
duction  of  patents,  or  personal  grants  of  honours,  over  and  above  char-  ^^^^  ^  the  1 7  th 
tera,  as  before,  greater  strictness,  as  has  been  seen,  prevailed,  and  was  ^^"7  "^heTrtl 
enforced,  in  regard  to  their  constitution  and  descent ;  so  that  what  ori-  maIe/\ 
ginally  obtained  in  respect  to  ^  heirs-male,"  (as  to  which,  however, 
hereafter,)  might  not  then,*  as  I  have  already  hinted.    As  illustmted  *  The  fact  too, 
in  the  Oliphant  ease  in  1633,  they  were  held  not  to  be  in  commercto,  and  ^^  ^™|f  ^J^ 
to  be  less  like  a  subject  at  common  law.    By  analogy,  the  same  alter-  m^f »  sq  ^the* 
ation  or  modification,  too,  in  our  praetioe,  partly  also,  though  more  rtf«<rie<eef  sense, 
naturally,  throi^h  unavoidable  English  influence,  may  have  occurred 'fj®'?*"****^^® 
here, as  in  the  matter  illustrated,  under  the  cases  of  Folwarth,  and  Bar-  ^^q^  ^^    "^* 
geny,  &c.  touching  the  heir  of  the  person  last  in  possession,  now,  other-  practice^   not 
wise,  it  may  be  held,  since  last  century,  than  formerly."    And  thus  it  without  iu 
may  have  happened,  as  is  the  fact,  that  both  by  our  first  lawyers,  and  J^*? .  *^  j)^ 
by  the  crown,  the  words  in  question  came,  at  the  period,  to  be  strictly  Feud,  Lib.  1. 
used  in  technical  acceptation,  in  honours,  synonymously  with  "heirs  ^^'^\  §  ^' 
male  of  the  body,"  particularly  by  the  latter,  the  highest  standard  JjJ^  ensufnff '  p! 
and  authority  in  regard*  to  them,  and  by  whom  they  could  be  alone  1024,  ».  2. 
granted.    Sufficient  proof  of  this  is  afibrded,  inter  alioy  by  the  Report  lodispntable 
of  Sir  John  Nisbet,  Lord  Advocate  to  Charles  II.  of  the  noted  Lothian  Ji'^|fe2^„'^"' 
case,  where  he  explicitly  uses  "  heirs-male  of  the  body,"  as  quite  com-  ^f  \i^q  phrase^ 
mensurate  with,  and  exactly  to  define  the  limitation  to  "  heirs-male^*  then  afforded, 
in  the  patent  of  the  Earldom  of  Lothian  in  1606— the  certain  informa-  tl>ro"«l*  ^«  ac- 
tion and  knowledge  by  Charles  II.  of  that  limitation,  taken  with  the  uv^ore  and^the 
legal  conclusion  thereon,  which  is  transmitted  to  us,  through  a  royal  crown,  and  by 
order  of  James  II.  the  11th  of  May  1685^  in  reference  to  the  question  the  instance  of 
of  precedence  of  the  Roxburghe,  and  Lothian  dignities,  wtaUy  identified  * 

with  their  constitution,  and  descent,  that  the  previous  Earldom  was, 
therefore,  only  **Ih/  his  Patent  (the  patentee's  in  1606,)  provided  to 

*  Dissertation,  p.  24.  '  In  no  part  of  his  work. 

*  See  pp.  659,  860-1,  &c.  and  what  foUows  and  precedes. 


1020  APPENDIX. 

heirs  m&ieofhishody;  whereby/'  it  isnext^  most  conclusively,  added,  **  the 
honor  wu  bxtinct,"  '  owing  to  their  faiiurey  notwUhstandifUf  there  at^ 
isted  several  coUateral  heirs-male, — besides  warrants  of  patents  under 
the   sign    manual,  with  their   extensions  under  the  Great    Seal, 
wherein  the  phrase  **  heirs  male  "  only,  and  **  heirs  male  of  the  body/* 
are  indiscriminately  used  and  intercluuiged  in  the  same  sense,  and  ne- 
cessarily in  the  restricted.    Sir  James  Stewart,  also,  Lord  Advocate  to 
Queen  Anne,  evidently  construed  **  heirs-male  *'  in  like  manner.' 
£▼611  still  more.     But  independently  still,  there  is  the  remarkable  and,  intrinsically, 
by  the  palpably  irresistible  case  of  the  two  patents  of  the  Viscounties  of  Melgum,  and 
ortht*  vlw^!  Aboyne,  in  1627,  and  1632.    By  the  first  of  these,  dated  2ath  of  Octo- 
ties  of  Melgum  ber  1627,  the  Viscounty  of  Melgum  was  granted,  not  merely  to  the 
and  Aboyne,  in  «  heirs  male  "  of  John  Gordon,  the  patentee,  but  with  the  adjunct  also 
7  and  63  .  ^^„  bearing  his  name,  and  arms,'"  which  is  further  constructively  held 
by  the  House  of  Lords  to  be,  per  m,  equivalent  to  **  whatsoever,''  and 
to  define  a  collateral  descent, — whatever  there  may  be,  in  reality,  in 
the  notion,  for  which  Lord  Mansfield  is  responsible,  and  not  I.    If 
the  phrase,  ^  heir  male,"  then,  be  maintained  to  imply  collaterals,  a 
fortioriy  it  should,  with  such  accompaniment.    Yet,  in  a  subsequent 
'    patent,  dated  April  20, 1682,  after  special  allusion  to  the  former,  and 
expUctUy  and  verbatim  reciting  iu  limitation,  we  leam  that  the  said 
Viscount  John,  in  1627,  had  died  ^^  absque  hssredibus  masculis  de  eorpore 
sttOy' — **  in^  Quos,"  it  is  nejpt  added,  **  dictus  titulus  Viceoomitis  per 
nostras  literas  Fatentes  conferendusfuit.**    This  clearly  again  denotes, 
from   their  here   being  interchanged  and   identified,  that   **  heirs 
male,"  simply,  as  in  the  first  instance,  were  only  equivalent  to  heirs- 
male  of  the  body.    On  which  account,  therefore,  and  that  the  Viscounty 

Mr.  Sinclair  *  In  fact,  flrom  what  I  have  shewn,  under  my  statement  of  the  Lothian  case,  (see 

does  not  see  the  pp.  73-4-5-6,  etteq,  &c.}  that  is  carioos,  admitting  the  limited  import  of  heirs- 
true  merits  of  mg^e^  f}^\g  would  follow,  there  having  been  no  subsequent  valid  resignation  and 
Question  of  the  ''^g'''^^  of  the  Lothian  dignity  to  bein-female,  as  pretended.  The  precise  sitna- 
Roxburghe  and  tion  of  the  original  Earldom  of  Lothian  (in  1606),  which,  I  believe,  I  have  been 
Lothian  prece-  the  first  to  explain,  with  its  relative  bearing  upon  the  Earldom,  and  precedence  of 
1  v'lf^*    ^^  Roxburghe,  evidently  soars  immeasurably  above  Mr.  Sinclair's  comprehension,  who, 

vet.  throuffh  '  S^^^S  ^P^'^  ordinary  accounts,  as  usual,  stumbles  in  the  dark,  and  lamentably  turns 
means  of  hit  to  the  left,  instead  of  going  properly  to  the  right.  (See  Dissertation,  pp.  18, 
muappreheH'  ^nd  19.)  He  is  quite  unaware  of  the  flaw  attaching  to  the  supposed  Lothian  re* 
'1^9  charges  gfi^^^  Qp^Q  ^vhich  indeed  much  depends;  yet  recklessly,  and  with  incredible  pre- 
lawyers  then  luniption,  I  must  say,  makes  Charles  II.,  James  IL,  their  law-officers,  and  advisers, 
with  error,  and  &e.  &e.  all  ignoramuseg,  and  misled,  and  himself,  alas  I  what  a  falling,  and  bow 
ignorance,  and  erroneously,  the  only  one  who  can  see  through  this  millstone  I  I  need  not  advert 
supposes  mm-  ^^  ^^  nibblings,  in  other  respects,  upon  the  Lothian  question,  which,  to  say  the 
to  see  through  ^^^  ^^  them,  are  as  relevant,  and  of  the  same  stamp, 
that  millstone.       '  See  more  particularly  as  to  these  facts,  and  the  authorities,  my  **  Remarks 

npon  Scottish  Peerage  Law,'*  in  1833,  pp.  16,  17,  18,  etseq. 
'  The  limitation  in  the  original  is,  **  suisque  hnredibus  mascuUs,  cognomen  et 

insignia  do  Gordon  gerentibus." 


APPENDIX.  1021 

** refHfXU**    in  the   collateral  heir  xnale^  George  Lord  Gordon,  the 
elder  brother  of  Viscount  John  deceased, — hence  again  proving  the 
restricted   meaning  of  the    limitation,  to  '^heirs-male/'  owing  to 
the  same  being  thus  avowedly  spent  and  gone, — ^it  is  accordingly 
conferred   upon  Lord  George,  under  the  new  title  of  Viscount  of 
Aboyne,  during  the  lifetime  of  Greorge  Marquis  of  Huntly,  his  father, 
with  limitation,  after  his  succession,  to  the  higher  dignity  of  Huntly, 
to  James  his  «on,  just  as  before,  ^  heredibusque  suis  masculis  nomen,  et 
insignia  de  Gordon  gerentibus  ;*'  who  eUe  couid  not  take,^     In  Secretary 
Alexander's  original  Register,  for  the  time,  in  the  Advocates'  Library,  Farther  proof 
under  date  the  20th  of  April  1682,  the  identical  language  is  used  in  re-  of  the  extinction 
ference  to  the  creation,  with  the  will  of  the  sovereign  to  "rewue"  *^®ty  of  Al^ne^hi 
honour  in  favour  of  the  heirs-male.    It  is  to  be  added  too,  that  after  1632,   though 
the  death  also  of  James,  the  second  patentee,  in  1632,  without  male  is-  granted  simply 
sue,  the  Viscounty  of  Aboyne,  though  limited  in  the  same  way  as  Mel-  anj  ther"  eii^ 
gum,  appears  to  have  become  extinct ;  for  while  there  were  many  col-  isted    numer- 
lateral  heirs-male,  even  now  existing,  it  has  never  been  assumed  by,  ou*  heirg-male- 
or  given  to  any.*    The  phrase,  "  heirs-male,"  is  therefore,  in  a  remark-  ^°"***""' 

^  The  originals  of  both  patents  are  in  the  Aboyne  charter,  whQe  the  last  is  re- 
corded in  the  Great  Seal  Register. 

'  As  to  the  aboTe  instance,  which  I  first  adduced  in  1833,  Mr.  Sinclair,  with  Mr.  Sinclair's 

that  mode  of  ratiocination  so  peculiar  to  him,  roundly,  and  most  gratuitously  as-  mode  of  ratio- 

sames, — that  it  is  "  more  adverse  than  favourable  "  to  my  conclusion  1  (Disserta-  <^'°*^on. 

lion,  p.  17.)    The  Earldom  of  Forfar,  granted  by  patent  the  20th  of  October  1661,  q^^   ^f  ^y^^ 

simply  to  '*  heirs  male,"  (Great  Seal  Register,)  appears  to  have  sunk,  on  the  Earldom  of  For- 

death  of  Earl  Archibald,  son  of  the  patentee,  in   1715,  without  issue.     It  has  far  after   1715, 

never  since  been  assumed,  however  there  be  numerous  collateral  heirs-male. '^^      t^*7 

male   whore  all 
Neither,  though  the  next,  Archibald  Duke  of  Douglas,  and  the  Dukes  of  Hamilton,  the  discoverable 

were  sufficiently  disposed  to  take,  and  insert  their  titles  in  their  styles,  secondary  circumstances 
as  well  as  high,  are  those  of  Forfar,  including  also  the  Baronies  of  Wandell,  and  t^li  against  him. 
Hartside,  ever  to  be  found  there.  In  the  Devon  case,  much  stress  was  laid  upon  the 
assumption,  in  his  style,  by  an  Earl  of  Cork,  of  an  inferior  honour,  as  collateral 
heir-male,  in  proof  of  its  continuance,  (see  Report  of  Devon  case,  by  Sir  Harris 
Nicolas,  p.  lis);  by  the  most  relevant  induction,  then,  e  cctUra,  the  non-as- 
sumption of  such,  as  in  the  previous  instance,  must  tell  the  other  way,  and  argue 
its  extinction,  and,  at  the  same  time,  the  restricted  import  of  '*  heirs-male.'* 
Failing  the  Hamilton  and  Selkirk  family,  the  next  collateral  heir-male,  in  1 764, 
was  Sir  Robert  Douglks,  Baronet,  the  Author  of  the  Scottish  Peerage,  who  fur- 
ther states  there,  (of  course,  to  his  own  prejudice,)  that,  on  the  death  of  the 
above  Archibald  Earl  of  Forfar,  in  1715,  **  his  honours  became  extinct."    (See 
bis  Peerage,  p.  270.)     **  Mankind,"  Lord  Rosslyn  remarked,  in  his  Speech  in  Special  reason 
the  Moray  case  in  1793,  "  are,  in  general  at  least,  as  correctly  informed  in  their  ^^X  1  alluded 
own  afifairs,  as  strangers  can  be,  and  they  are  aeldan  induced  to  overlook  a  valua-    ^^.      ^^^  *^. 
ble  right ;"  so  that,  although  Sir  Robert,  certainly,  be  a  most  indifferent  Peerage  RobertDouirlas 
writer, — and  little  indeed  to  bo  ever  trusted  in  the  main,  he  yet  might  be  listen-  a  collateral  heir- 
ed  to,  in  soch  a  modern  matter  comparatively,  touching  Aim«e/jf  nearly,  as  the''^^®  ^f  ^®  pa- 
understood  state  of  the  Earldom  of  Forfar ;  especially  as,  in  a  point  of  this  kind,  ^"  ^^' 


1032  APPEKDIX. 

able  way,  irresbtibly,  and  repeatedly  proved  aboTe,  beyond  all  cavil. 
Upon  the  test  in  to  be  equivalent  but  to  heirs-male  of  the  body.*    The  late  claimant  to 
the  English  De-  the  Earldom  of  Devon  in  England,  in  1831,  could  merely  found  upon 
Melewn'  and°  ^  solitary  Irish  instance,  in  the  reign  of  Charles  I.  within  the  range  of 
Aboyne  *  should  his  own  law,  (to  be  afterwards  specially  noticed,)  in  support  of  his  con- 
a  fortiori  settle  cluslon,  that  *^  hoirs-male  "  comprise  collaterals,  he  being  entirely,  so 
the  quesUoD.     ^^^  .^  ^  ^^  Singular,  without  a  vestige  of  proper  English  precedent  or 
authority,  on  his  side ;  so  that  submitting  the  matter  even  to  such  corres- 
ponding test,  the  precedent  of  Melgum  and  Aboyne  would  indeed  be 
triumphant  and  victorious ;  for  it,  at  least,  while  equally  in  the  reign 

to  quote  another  anilogoas  remark  of   Lord  Rosslyn   in  the   same    Speech, 

**  every  thing  should  be  thrown  into  the  tcale."    But  while  this  may  obtain,  the 

leaning  to  htm,  so  far,  in  refamiliari,  through  a  specialty,  cannot  be  drawn  to  any 

thing  like  an  inference,  that  1,  by  having  so  appealed  to  him,  as  I  did,  on  ae- 

(*  See  Remarks  count  of  hi*  rdationghip*  in  the  particular  in  question,  ever  unqualifiedly  relied 

upon   Scottish   upon  his  opinion  or  authority,  in  his  distinct  and  general  character  of  a  Peerage 

Peerage  Law,  writer,  as  Mr.  Sinclair  might  seem  to  insinuate,  (Dissertotton,  p.  14} ;  lar  less 

became  answerable  for,  or  homologated  the  mighty  mass  of  his  faults  and  errors. 

Not  to  be  pre-  f^^^  distinction  here,  however  impervious  to  him,  is  obvious;  and  I  think  I  may 

quence  as  Mr*  ^<B^^®Mly  APpoal,  both  to  the  whole  of  this  performance,  and  the  general  tenor  of 

Sinclair  might  niy  writings,  in  proof,  how  fully  I  am  vnindebted  either  to  Douglas,  or  to  his  oon* 

insinuate,  to  ho-  fraternity.     It  was  yet  natural  in  the  worthy  gentleman  to  feel  somewhat  sore  at 

mologate,  or     ^y  marked  reprobation,  and  rejection  of  the  latter,  his  venerated  oracles,  without 

way    answera-  ^^^™»  ^^  '^  '^  evident,  he,  as  a  writer  on  Peerages,  cannot  well  walk,  or  move, 

ble   for    the       or  have  his  being ;  however  far  from  being  much  disposed  to  acknowledge 

mighty  mass  of  the  deep  obligation.     In  leaving  this  topic,  Mr.  Sinclair,  I  may  remark,  with  that 

or  bir   Robert  inadvertence,  and  want  of  proper  information  so  discoverable  in  him,  talks  of  a 

Douglas  s  faults  , 

and  errors.  "  complete— forfeiture     as  having  been  incurred  by  Archibald  Earl  of  Forfar, 

from  his  being  **  at  the  battle  of  SherifTmure,  in  support  of  the  ancieni  tfynaaty 

Glaring  error    ("the  Stewart*)  in  1715,*' — in  order  to  account  for  the  subsequent  non-assumption 

and  mistake  of  ^f  u,g  honours.     (Dissertation,  p.  43.)     Now,  it  is  notorious  this  is  quite  uo- 

the'  Forfar  in-  founded ;  it  is  too  bad  (bus  to  traduce  so  gallant,  so  loyal  a  nobleman.     Had 

stance.  the  worthy  gentleman  looked  into  any  of  the  ordinary  Histories  of  the  Rebellion  in 

1715, — Patten*s,  for  instance,  a  cotemporary,  who  wrote  in  1717, — he  would  have 

found,  from  a  government  report  of  the  battle  in  question,  that  the  Earl  of  For- 

t  Called  "  Lord  {^  ^^s  «•  on  our  side  "  (George  the' First's),  at  the  head  of  his  regiment,!  •*  under 

^"^a*  '^^"  the  Duke  ofArgyle"  and,  like  a  Douglas,  received  "  wounds — so  many,  that  his 

life  is  despaired  of ;"  being  **  shot  in  the  knee,  and  cut  in  t^e  Head  with  10  or  12 

strokes,*' — of  which  he  died,  to  the  deep  regret  of  all,  as  we  learn  elsewhere.  (See 

Another  error,   patten's  Hist,  utsup.  pp.  167-8-9.)    Mr.  S.  also  appears  to  see  triple.  He  makes 

Archibald  Duke  of  Douglas  have  *'  three  Marquisates,**  (Dissertation,  pp.  43, 

44)  ;  he  had  but  two  only,  those  of  VougUu,  and  Angus, 

OchOtrie  case       H  The  extension  in  Scotland  of  the  grant  of  the  Ochiltrie  honours,  by  a  charter 

too,   evidently  |||^  9^1  ^f  Jqqo  1615,  to  **  heirs-male  bearing  name  and  arms,**  though  under  a 

tric^^eanlnff  '^^'^  warrant,  the  27th  of  May  1616,  only  in  favour  of  the  grantee,  and  "  his  pot- 

of  heiss-malo.     teritie,** — that  is,  descendants  of  the  body,— however  liable  to  a  supervening  objec* 

tion,  exclusively  in  the  form  of  passing  the  charter,  (see  pp.  808-9,  13,  14,}  may 

also  pointedly  shew  the  understanding  as  to  the  import  of  the  tame  limitation. 


APPENDIX.  1023 

of  Charloal.  is,  in  itself,  most  releviintaiidcoiicliifiive,  unequiyocally  ex- 
piseating  the  opi>06ite  meaning ;  that,  on  the  other  hand,  does  not  ob- 
tain in  the  above  Irish  case,  which,  as  may  be  obvious  in  the  sequel, 
is  foreign,  and  really  irrelevant  to  the  question.    We  have  seen  too.  My  coDcIusion 
through  this  performance,  in  1670,  in  the  case  of  the  official  entry  then,  e^«°  supported 
and  statement  to  that  effect,  of  the  patent  of  Jedburgh  in  the  Books  of  J^^:^^*^  'iase  of 
Parliament,  "heirs-male"  simply,  twice  used  as  synonymous  with,  Jedbargh,  and 
and  to  express  two  undoubted  special  limitations  to  "heirs-male  of  the  oihen,  former- 
body*'  literaUy, — at  thesame  time,  therefore,  confirming,  under  authority  ^  ^    ^     ' 
of  Parliamentary  diction,  such  acceptation  ;  which  is  fully  illustrated 
by  the  previous  instances,  that,  though  attempted  to  be  nibbled  at,  have 
never  yet  been  refuted, — ^besides  others  I  formerly  adduced.^    My  ob-  It  bean  upon 
servations,  as  may  be  evident,  only  bear  upon  Peerages  in  the  17th  Peerages,  and 
oentury,  and  afterwards,  owing  to  the  partial  change,  and  peculiar  |l,°ii,"^i^7th  cen- 
reasons  affecting  them,  and  not  in  respect  to  mere  subjects  at  common  tury,  upon  an 
law,  where  "  heirs,"  or  "  heirs  male  "  may  be  difierently  and  broadly  analogous  Eng- 
rendered,  analogous  to  the  rule  also  that  was  maintained  in  England  Jtwch.lvom  p;. 
before  the  Devon  decision.'    The  indispensable  execution  of  all  the  culiar,  unavoid- 
warrants  of  our  Peerage  grants  in  England^  under  the  king's  hand,  able  circum- 
after  the  union  of  the  crowns  in  1603,  may  have,  in  a  degree,  natural-  heM***io"fiir 
ly  tended,  by  the  unavoidable  force,  however  indirectly,  of  English  no-  operate, 
tions  and  impressions,  that  might  sway  the  sovereign,  in  whom  the  be- 
stowing and  transference  of  honours  alone  rests,  to  such  mutual  assimi- 
lation.   But  yet,  it  is  very  remarkable,  that  "  heirs  male,"  with  us,  on 
the  lesser,  and  ordinary  occasion  of  landed  grants  only,  sometimes,  in 
a  striking  manner,  had  the  same  restricted  sense  I  have  noticed,  as  9""P^  ^^\' 
in  honours,  even  in  the  16th  century.    It  was  represented,  the  9th  of  1 55j|°'even^  i*n 
May  1559,  in  a  case  before  the  Supreme  Civil  Court,  that  according  to  the   case   of 
**  ye  use  obscrvit  past  memor  of  man,  vrytin  ye  lordschip  of  Strathem,  Jao^'t  proring 
yehaill  fewis  of  oure  Soveranis  londis,  are,  and  hes  bene  sett  to  ye  arU  timpir'to^have 
maitt,  and  failzeing  yerof,  to  ye  eldest  female  "  CheirJ .    This  destination,  the  restricted 
therefore,  where,  in  virtue  of  our  conveyancing,  the  phrase  « heirs  °*®'°*"fi^°^*'®*" 
male  "  cannot  be  said  to  be  controlled  by  the  context,  but  to  present  JJ^j* .  \^^ 
itself  simply,  would  have  been  undoubtedly  rendered,  by  the  espousers  much  more  re- 
of  the  broad  meaning  of  the  terms,  as  has  indeed  been  fully  elsewhere  ^«^ant  prece- 
exemplified, — ^first,  "  to  heirs  male  genenUy  or  whatsoever  y"  and  only  j^^^  pa^Snt  i 
^t/tny  ai/  these,  to  the  eldest  female  heirs,  &c.    But  here  again,  quite  1627,   in    the 
erroneously ;  as  distinctly  follows  from  this  conclusion,  or  corollary,  that  Bevon    claim, 
is  grounded  upon  the  above  fact,  as  the  premises,  in  the  legal  aigument  ^*  ^^  ^ 
in  the  case,  that  therefore,  certain  royal  lands  in  question,  in  Strathem,  noticed. 

1  Inmy  "  Remarks  upon  Scottish  Peerage  Law/'  in  1833. 

'  To  give  one  authority,  inter  alia,     **  Lands  granted  to  a  man,  and  his  heirs,  Distinction  be- 
will  go  to  collateral  heirs,  as  a  brother,  or  an  uncle ;  not  «o,  of  honours."    Argu-  tween   sacces- 
ment  in  the  case  of  the  English  Barony  of  Roas,  in  1666,  op.  Collins  on  Baronies,  **^°   ^^  \uidB, 
p.  266 ;  see  also  the  Fourth  English  Peerage  Report,  p.  18,  under  the  passage,  to  Eneland^'*"' 
be  giTen  immediately  ;  and  Sir  Harris  Nicolas's  DeTon  Report,  pp.  143-4-5,  &c. 


1024  APPENDIX. 

"behu^t  to  haif  bene  maid  to  umquhile  Jlione  Philpson,  gudsehire  to 
ye  said  Margaret  (a  party J^  and  his  airis  mat//  lauchfully  gottin  of  kit 
body  ;  quhilkisyat'/sretn^  CtDkom  failing  J  ^  to  his  eldest  female,  but  (vgith- 
out)  divisioD/'^  And  this  plea, — thus  in  the  latter  instance  so  dearly 
proving  ^ heirs  male"  to  be  used  only  synonymous  with  heirs-male 
of  the  body, — ^was  found  to  be  relevant  by  the  Court,  and  remitted  to 
probation,  for  the  purpose  of  clearly  establishing  such  especial  usage, 
and  practice.  Combining  what  has  been  stated,  therefore,  with  various 
other  precedents  and  authorities, — ^not  forgetting  Mr.  Sinclair's  suicidal 
instances,  which,  though  they  may  powerfully  sustain  me,  and  amuse 
my  readers,  yet,  like  the  sad  mischance  of  the  frogs  in  the  &ble,  prove 
ruinous  and  destructive  to  him,  we  may  infer,  as  I  have  shewn. 
Restricted  Indeed,  if  we  turn  up  any  treatise  of  the  Law  of  Peerage,  or  con- 

meaning  of  nected  with  the  descent  of  honours,  either  in  the  I7th  or  18th  cen- 
cemiblein every  *^"^  ^^  Scotland,  or  in  England,  we  will  find  "heirs-male,"  nay,  what 
way.  is  more,  "  heirs,"  though,  usually,  far  broader  in  import,  on  innumera- 

ble occasions,  understood,  and  constantly  used  to  express  direct  descen- 
dants, or  of  the  body,  only.'    Nor  can  my  conclusion,  in  the  main,  ctf 
such  understood  and  received  meaning,  by  the  higher  authorities  tooy 
It  cannot  be     ill  &  striking  degree,  as  at  least  is  proved,  be  &irly  rebutted  with  us,  by 
fairly  rebutted   one  or  two  instances,  where  dignities  have  been  assumed,  or  summarily 
douMfu?'  ^^^   recognised  in  collateral  heirs-male,  under  a  limitation  to  "  heirs-male," 
especially  as  such  have,  not  unCrequently,  been  taken  by  those  having 
no  rights  and  even  given  to  them  ;  while  a  sitting  with  us, — ^indepen- 
dently of  the  peculiarity  of  interim  possession — as  repeatedly  shewn,  did 
not  constitute  an  indefeasible  right.    There  still — ^whatever  may  be 

*  Act  and  Decree  Register  of  the  Supreme  CiTfl  Court,  toL  XIX.  p.  404,  b. 
We  here  trace  a  similarity  between  our  practice  in  descent,  and  that,  notoriously 
in  England,  from  its  varying  at  common  law,  owing  to  the  different  notions,  and 
rules,  so  far,  entertained  and  enforced  in  different  districts  or  localities. 
Scottish   and         '  Wallace,  the  Peerage  lawyer,  who  wrote  in  1 7d5,  and  may  here  answer  the 
English  autho-    purpose  in  part,  says,  **  A  Peerage  granted  to  a  man,  and  his  heirs-male,  seems  to 
rities  as  to  the    y^  limited  to  the  heirs-male  of  his  body—unless  in  the  patent  be  inserted  either  the 
meaninir  of       ^^''d  whatsoever,  or  some  other  equiTalent  to  it,  which  expressly  declares  it  descen- 
**  heirs-male.*'   dible  to  collateral  males."  (Ancient  Peerages,  p.  883.  See  also  pp.  1019-20,  &g.) 
Cruise  repeatedly  uses  the  words,  "  tenant  in  tail  maiU**  simply,  to  denote  heirs- 
male  of  Me  body,  (see  Dignities,  p.  122-3,  under  the  instances  of  Northumberland, 
and  Gordon  o.  the  King*s  Advocate.)   That  lawyer  also  shews,  what  is  incontesta- 
ble, that  the  Barony  of  Vesey  was  conferred,  the  27th  of  Henry  VI.  upoa  Henry 
Bromflete,  and  the  **  heirs>ma2«"  of"  Am  bodgt**  (ibid,  pp.  76-7)  ;  yet,  in  a  pedi- 
gree, in  reference  to  the  discussion,  about  the  Barony  of  Grey  of  Ruthven  in  1640» 
printed  by  Collins  in  his  Baronies,  (see  p.  251,)  the  identical  limitation  is  givea 
simply,  as  "  hsredibus  masculis.*'    The  above  are  examples,  out  of  innumerable 
others,  merely  from  works  that  happen  to  be  beside  me  at  the  moment.  At  p.  16  of 
the  Fourth  English  Peerage  Report,  it  is  laid  down,  that  **  the  grant  of  a  dignity  to 
a  man,  and  his  heirs,  is  a  grant  to  him,  and  the  heirs  of  hU  hodg  only,  and  will 
convey  nothing  to  collaterals.**      See  Attomey-General*s  Speech,  Devon  Report, 
pp.  1 43-4-5,  and  what  will  fUrlher  transpire  on  this  head,  in  the  sequel. 


APPENDIX.  1026 

said—- exists  in  Scotland,  no  Hrict^  proper  res  judicata  in  the  matter,  or  There  is  cer- 
in  foro  eantentioso.    In  the  Kincardin  case  in  1706,  which  approaches  *«i°!y  .°o  ^«^' 
the  nearest  thereto,  but  interim  possession,  (formerly  familiar  to  ^s,  [^•'^*J^"J"  *" 
and  hence  rendering  the  undue  taking  of  honours  less  important,)  was 
allowed  to  the  collateral  heir-male,  founding  on  a  patent  in  1647,  to 
"  heirs-male,"  •  though  always  under  reservation  of  other  interests  ;■ 
while,  amid  reiterated  protests  against  his  right,*  no  final  or  conclusive 
decision  ever  followed.  The  heir-female,  who  opposed  on  other  grounds, 
had  even  a  strong  interest  in  avoiding  this  question  of  ^  heir-male,"  ow- 
ing to  its  prejudicially  afiecting  her  father.    Nor  is  it  to  be  overlooked, 
that  the  heir-male  in  question  was,  at  any  rate,  a  Peer,  being  clearly 
entitled  to  the  Scottish  Barony  of  Kinloss,  under  a  special  remainder 
in  the  patent,  the  8th  of  July  1604,  to  heirs-fitoile  **  quilmscunque,^*  * 
on  failure  of  heirs-male  of  the  body, — ^thus  so  different  from  that  of 
Kincardin  in  1647 ;  and  further,  as  his  family  succeeded,  before  the 
middle  of  the  same  century,  to  the  far  preferable,  and  older  Earldom  of 
Elgin,  whose  limitation,  by  patent  in  1633,  in  fiivour  of  *^  heirs-male," 
has  moreover  the  adjunct  of  '^bearing  the  name  and  arms,"' — that 
weighs  so  greatly  with  the  House  of  Lords, — ^the  other  became^  compa- 
ratively, less  important,  and  likely,  on  an  essential  ground,  to  be  ques- 
tioned mfiro  contentioeoy  as,  in  fact,  it  was  not.*    Neither,  what  is  very '°  *  £-*^  °^# 
singular,  in  the  case  of  the  Earldom  of  Dunbar,  limit^  by  patent  Dunbar,  ihere 
the  dd  of  July  1605,  to  ^  heirs-male," '  though  there  was  a  summary  was   no  full 
order,  the  30th  of  August  1703,"  for  inserting  it  in  the  RoU  of  Peers,  J^^^^*^^n '  of 
in  favour  of  a  collateral  heir-male,  does  it  appear  ever  to  have  been  the  honour*,  at 
complied  with.     There  must  necessarily  have  intervened  a  serious  any  time,  by  the 
demur,  and  obstacle,  that  stopt  the  procedure,  hasty  and  questionable,  *^°i!*'?^  ^®*'" 
as  we  may  presume,  in  the  first  instance.    It  is  indubitable,  that  no  favourable  re»" 
such  Peerage  is  to  be  detected,  at  least,  in  the  printed  Roll  of  ^arlia-  interventvt. 


■  Great  Seal  Register. 

■  Acts  of  Pari.  Ia«t  Edit.  vol.  XI.  pp.  305-7. 

*  See  Robertson**  Peerage  Proceedings,  pp.  33 — 48-9. 

*  See  pp.  251-2.  '  Great  Seal  Register. 

*  The  remarks  of  the  Attorney-General,  in  the  Devon  claim,  in  reference  to  air 
inferior.  dignity»  contended  to  have  devolved  to  an  Earl  of  Cork,  might  here  latterly 
be  applied.  **  There  was  no  counter-claim.  There  was  no  disputed  point,  no  con- 
troversy, which  brought  the  matter  in  issue  before  the  House  of  Lords;  and  there- 
fore it  results  in  the  simple  fact,  that  it  being  immaterial  to  hU  (the  EarVtJ  rank 
and  dignity,  whether  he  sat  ictM  the  superior  title,  or  the  inferior,  nobody  thought 
it  worth  while  to  dispute  that  claim,  and  he  was  permitted  to  pass  as  Lord  Brog* 
hill,  (the  inferior  honour  in  question,)  as  well  as  Earl  of  Cork."  Report  of  Devon 
case  by  Sir  Harris  Nicolas,  p.  124,  which  I  shall  hereafter  quote  more  briefly,  as 
the  Devon  Report. 

'  Great  Seal  Register. 

*  Acts  of  Pari,  last  Edit.  vol.  XI.  Append,  p.  28. 

3t 


1026  APPENDIX. 

ment  in  1706/  aud  certainly  in  any  rolls  thereafter'  of  the  kind;  while 
it  has  been,  as  little,  entr  aesumedy — thoi^h  there  existed,  and  do  now. 
The  alleged  ex- numerous  heirs-male  collateral.    The  ostensible  exceptions  to  my 
ceptiont  to  my  main  conclusions,  might  therefore,  in  fact,  in  the  circomstanoes,  be 
be  «iid°to  prove  ^^^"^  forcibly  urged,  by  the  common  principle,  thaterceplto,  (however 
the  general  rule,  not  here  through  the  medium  of  ret  judicata^  J  firmat  regukun^  to 
Most  glaring    strengthen  them.    And  of  all  the  glaring  misstatements  and  miseon- 
and  unfoanded  eeptions  ever  hazarded,  or  &llen  into  htfwe  a  l^gal  tribunal, — most 
o!n  \hiA°hMid  ^  strangely,  without  the  manifest  contradiction  which  couid  have  been 
(perhaps  unpar-  given,  and  that  ought^  those  proceeding  from  the  crown,  in  the  Annan- 
alleled,)  in  the  ^^  qq^q  '^  1826,  may  be  held  the  most  striking  and  remarkable,  that, 
j^"j^g^®  ^'^^  from  1660  to  1707,  tiiere  were  sev^ty-nine  Peerages  taken  "  hieredi- 
bos  masculis,"  and  that  of  them,  '^  uo  fewer  than  twenty-eight  are 
held  by  collaterals  of  the  patentee."    Now,  on  the  other  hand,  tho 
fact  t«,  as  will  be  found  by  a  proper  examination  of  onr  records,  and 
the  competent  authorities,  that,  during  the  period  in  question,  there 
happen  not  to  be  more  than  five,  if  so  many,  thus  limited  simply 
Instances  addu-  '^  hsBrodibus  masculls ;"  while,  what  may  occasion  even  greater  surprise, 
ced  there,  of  not  a  single  instance  transpires  of  any  of  them  having  gone  to  colla- 
the   asserted    terals  I    Of  these,  Forfar,  as  has  been  seen,  may  be  held  pointedly  to 
iog^  of  hdra-  ^^^^  ^^^  reverse  ;  at  any  rate,  can  by  no  means  assist ;  and  as  to  the 
male,  that  are  few  solitary  remaining  instances,  that  were  condescended  upon  out  of 
besides  irrele-  ^j^^  above  range,  namely  the  Peerages  of  Nithsdale,  Seaforth,  Ken- 
the  oiher"way^  ^^'®>  Kincardine,  and  Kirkcudbright,*  two  merely,  Kincardin,  already 
discussed,  and  Seaforth,  whose  situation  has  been  anticipated,  can  alone 
y^    ^^^*^Q    at  present  tell, — specialties  attaching  to  the  others,  owing  to  circum- 
from  an  authen-  stances,  and  the  existing  law ;  while^  as  before  observed,  there  has  never 
tic  copy  of  the  been  a  fair  res  judicata  in  the  question,  either  in  reference  to  them,  or 
I  ord*^  Adrocate  ^^^  others.    This  opposite  statement,  it  is  remarkable,  was  made  by  me 
on  the  occa-     in  ^  Publication,  as  far  back  as  1883,  and  nearly  essentially,  legally, 
sion.)  elsewhere,  without  being  so  attempted  to  be  shaken  or  refuted.* 

In  the  English  In  the  English  Devon  case  in  1831,  involving  too,  a  limitation  to  '^  hein- 
case  of  Devon  inale,".its  advocates,  and  the  supporters  of  the  j  ndgmen  t,  independ^itly  of 
the  aid  of  our  *  solitary  Irish  precedent,  to  be  afterwards  stated,  (there  being  none  to 
law  was  so  much  assist  them  within  the  wide  compass  of  English  practice,)  were  obliged, 
implored  and  rather  amusingly,  and  by  marked  revolution  in  sentiment,  to  implore 
8iTeM**wa8^a?d  ^^^  beseech  the  countenance  and  protection  of  our  law  in  this  respect 
apon  the  above  — ^to  which,  in  their  straits,  they  eagerly  clung, — nay  further,  immense- 
misstatement,  ly  exaggerated  and  misrepresented,  the  better,  as  it  were,  to  suit  their 
siill^^m''**  *^*"  purpose.  And  accordingly,  it  came  to  be  there  maintained ;  while  the 
gro9»/y  eugger-  Lord  Advocate,  for  the  crown,  was  represented,  as  above,  in  the  Annan- 
Atc<l*  dale  case,  as  being  '*  much  startled "  at  the  supposed  new  restricted 

meaning  of  heirs-male,  and  contended  it  to  be  ^'  totally  contrary  to  the 

'  Now  before  me.    It  has  never  been  fairly  admitted. 
'  See  Rob.  Peerage  Proceed.  pa$nm, 

*  Neither  from  1600,  to  1660,  are  there  any  other  coMet^  owing  to  circumstance, 
further  illastratire  of  the  question,  which  now  may  be  held  as  fully  refevamtty  stated. 


APPENDIX.  1027 

understanding  of  all  Sootcfamen,  that  there  should  be  a  doubt  as  to  the  Supposititious 
meaning,"— that  in  the  cases  of  Seaforth,  Kinnoul,  Kenmure,  Kincar-  <»*®  ^^if  1?"°*^ 
^r\j Forfar,^  (I)  and  Kirkcudbright,  the  collateral  male  succession  had  JJ|^  imaginary 
'*  actually  been  decided  in  favour  of  claimanU  who  were  heirs-male  colla-  proof  of  the 
teral  of  grantees  of  Peerages,"  from  whence  it  resulted,  forsooth,  that  l^""*****  moan- 
such  confessedly  was  "  the  established  Law  of  Scotland,  supported  by  ^^^A^  ^however 
judicial  decisions  IT"   I  need  not  repeat,  that  this  never  obtained ;  and  also  made  the 
88  for  the  instance  of  Kinnoul,  here  objected,  as  I  shewed  elsewhere,  it  contrary  way. 
is  not  only  entirely  foreign  to  the  discussion,  but  even  makes  the  other 
way.'    Upon  such  erroneous  assumptions,  nevertheless,  the  Devon  jvevertheless 
argument  prospered  mightily ^   deriving   no  small  countenance    and  the  Devon  claim 
benefit  firom  the  same  ;  and,  like  a  snow  ball,  prodigiously  augment-  fM***''*^*^  "•^f^'J 
ing  as  it  rolls,  even  with  this  outrageous  increase  of  misrepresentation  grekt  benefit 
still,  that  *^  heirs  male  "  received  (quite  wsionarily)  a  broad  collateral  from  wch  mode 
import "  in  the  seventy-nine  "  Scottish  cases  of  Peerages,  to  which  allu-  ^^  iWu«tration. 
sion  has  been  made !  *    In  thus  glaringly  sinning  against  the  truth  of 
our  law  and  practice,  the  old  adage  of  the  canonists  has  been  reversed  in 
favour  of  the  Devon  claimant,  that  *^frustra  legis  opem  implorat,  qui 
contra  legem  peccat." 

In  the  actual  circumstances,  more  immediately  in  reference  to  the  Even  although 
main  topic,  as  was  submitted,  it  is  evident,  that  if  the  crown,  even  in  **»6re  were  but 
one  or  two  instances,  including  that  of  the  Viscounty  of  Melgum,  &c. —  authoritiM^*"' 
besides  the  remainder  to  that  effect,— did  use,  as  they  most  certainly  didyfor  the  restrict- 
**  heirs  male  "  to  define  only  heirs-male  of  the  body,  it  might  very  ®d  meaning,  or 
well  have  deliberately  done  so,  in  various  otliers.    Here  then,  was  a  ^^^l^  *"  *u^^ 
serious  demur  and  consideration ;  and  hence,  as  the  strict,  and  unequi-  ought/  in  hon- 
vocal  act  and  intention  of  the  crown  in  honours,  should,  I  conceive,  be  ^''**  ^^  deserve 
especially  inquired  into,  and  ascertained  ;  to  guard  against  any  undue  i^n?^»^^'f°^*^"' 
error,  or  misconception  on  this  head,  it  seemed  a  wise,  salutary,  and  some  additional 
necessary  doctrine,  that  when  the  words  "heirs-male"  occurred  in  circumstance,  to 
patents,  there  should  be  some  further  ruling  test,  and  criterion  exacted,  broad^sense  tn 
either  by  a  relevant  adjunct,  the  context,  or  collateral  indications,— not-  respect  to  heirs- 
withstanding  the  noted  case  of  Hay  of  Limplam  in  1789,  at  common  law,  male* 
— to  extend,  and  rivet  to  them  the  broad  meaning.  This  appears  the  safe 
and  best  method  to  eschew  error,  and  the  evil  in  question  ;  and  it  was 
countenanced  and  supported  by  lawyers  ;  while  the  frequent  adjunct 
**  whatever  "  to  "  heirs-male  "  opposes  their  wide  import  alone,* 

By  the  remarkable  English  decision,  however,  in  the  case  of  the  The  remarkable 
Earldom  of  Devon,  above  referred  to,  the  14th  of  March  1831,  which  is  En?'"l»  ewe  of 
quite  unique, — if  not,  I  would  almost  say,  a  solecism  in  English  prac-  D^von"  in™  ° 
tice, — and  that  has  elicited  much  comment  and  criticism  ;  for  the  first  i830*i. 
time  in  England,  a  dignity,  after  being  dormant,  and  universally 
believed  extinct  for  nearly  three  centuries,  was  adjudged  to  the 

'  See  p.  102 1,  II.  '  See  Devon  Report,  p.  68. 

'  See  my  former  "  Remarks  upon  Scottish  Peerage  Law,"  pp.  12,  13. 
*  See  Devon  Report,  p.  59;  also  for  what  precedes,  ibid.  pp.  49,  53-4-5-6-7- 
8.9,  61-2,  104-6,  153-4,  156-9,  184.  *  See,  inter  alia,  p.  1024,  n.  2. 


1028  APPENDIX. 

This  Earldom,  collateral  heir-male,  mnxif  in  which  character  all  along  existed,  and  on 
created  in  1663,  ^n  hands  acquiesced  in  the  extinction,  under  a  limitation,  in  1653,  to 
ries  to  be  ex- "  heirs-male."  ^  In  support  of  the  conclusion,  while  the  constructive 
tinct,  yet,  in  meaning  of  ^^  heirs,"  or  *'  heirs  male,"  in  honours,  as  already  obWous,' 
▼irtue  of  the  equivalent  only  to  direct  descendants,  had  obtained,  indisputably,  as 
**  heirs-male,"  "^ould  seem, — ^there  was  no  single  English  precedent  of  an  English  hon- 
without  a  nnffU  our,  during  the  foide  range  of  English  practice,  ever  hrfore,  havi  ng  gone  to, 
English  prece-  or  been  even  assumed,  by  a  collateral  heir-male,  under  such  limitation, 
authority  in  its  ^^7>  ^  further  unavoidably  evincing  the  strong  opposite  bias,  it  is 
support,  was  amusing  to  observe,  in  the  case  in  question,  the  claimant  actually  ob- 
adjudged,  in  liged,  on  a  difierent  point — ^that  of  his  pedigree,  to  adduce  suieidai  evi- 
collateral  heir-  ^^nce,  in  his  own  instance,  of  ^  heirs-male  "  having,  on  the  other  hand, 
male.  the  former  restricted  acceptation.    To  establish  that  he  was  the  beir- 

'  In  the  DeTon  palent  io  1663,  the  patentee,  and  his  heirs-male,  are  to  have 
the  pre-eminence,  state,  honour,  and  places,  such  as  *<  aliquis  antecessomm  dicti 
nunc  Comitis,  antehac  Comes  Defonie  existens,  habuit,  tennit,"  &c  (Devon  Re- 
The  clause  car-  port,  Append,  p.  iv.)  ;  but  this  clause,  including,  as  would  seem,  the  old  prece- 
rying  the  preee-  (jenee  of  former  forfeited  Earls,  cannot  be  properly  held,  as  was  pled,  to  amplify 
c^S^  Earu'^Vt^^  ^^^^^^^^^*  or  make  it  otherwise  than  it  intrinsically  is ;  for  in  entirely  new 
Devon,  in    the  grants  of  the  same  Peerage,  at  variance  with  the  previoua  ones — to  such  as  were 
Devon  patent  in  not  the  next  heirs  thereby ^  nay  even  to  utter  tirangera — the  succession  being 
1 663,  and  mser-  ^hoUy  altered, — the  identical  ancient  precedency  was  yet  in  use  to  be  carried. 
tuum  aft^       '  '^^^  ^^  \ieen  partly  shewn  in  the  case  of  the  Earldom  of  Crawford,  in  1642  ; 
"  heirs-male,"  (>®®  P*  976.)  The  case  of  the  Earldom  of  Errol  is  also  in  point,  the  present  noble 
cannot  properly  family,  in  virtue  of  the  regrant  in  1666,  with  the  subsequent  nomination,  (see  p. 
'fol^f *****"**  ^^®^'  having  the  ancient  Errol  precedence  in  the  16th  century,  though  neither 
the  heirs-male,  nor  the  heir»>general  of  the  original  stock,  or  taking  under  tknr  li- 
mitations ;  to  which  we  may  add,  the  similar  instance  of  the  Earldom  of  Roxbuighey 
in  1646,  and  many  others,  including  especially  that  of  Sinclair,  where  the  Baro- 
ny, with  the  old  Sinclair  precedence,  in  terms  of  a  patent  already  referred  to,  (see 
pp.   78-9,)  in  1677,  has  now  devolved  to  the  heir-male  of  the  Sindairs  of  Herd- 
manston,  legally  unconnected  with,  and  utter  strangers  to  the  antecedent  Lorda 
Sinclair.     The  precedency  was  thus  an  belated  royal  boon,  independent  of  de- 
*  For  the  strik-  scent,  which  it  therefore  neither  illustrates,  nor  what  had  preceded.*   Neither  can 
ing  corroborat-  stress  be  laid  upon  the  ac^junct  ^^imperpetuunC*  to  '*  heirs-male"in  the  Devon  patent* 
ory  Mordington  ^^^^  Report,  ut  svp,  p.  iv.)  it  being  per  ee  indifferential,  and  following,  with  us, 
1036.  heirs-male  of  the  body,  as  well  as  heirs-male.     1  may  here  refer,  among  other 

cases  precisely  of  such  kind,  to  those  of  the  patents  of  the  Barony  of  Eythen 
in  1642,  and  of  the  Earldoms  of  Ahoyne,  and  Dunmore,  in  1660,  and  1686, 
where  all  the  limitations  are  but  to  heirs-male  of  the  bodg,   *'  tn  perpeimanJ" 
(Great  Seal  Register,)  &c.  &c.     If  it  be  objected,  that  the  above  are  Scottiek 
t  See   Devon    illustrations,  this  cannot  avail ;  for  the  Devon  claimant  was  obliged,  in  order  to 
references  in  n  '°PP^^  ^*'  ^^^®*  elsewhere,  to  stand  upon,  and  earnestly  to  implore  the  aid  and 
4  to  p.  1027.      authority  of  our  Peerage  conveyances,! — further  maintaining,  that  the  law  and 
practice  of  both  countries,  so  far,  formerly,  were  the  same ;{  and  it  is  notorious, 
X  Devon  Eep.   ^^  cannot  both  approbate  and  reprobate  in  law.     I  shall,  therefore,  tbroughonf, 
|P«     '  '  '  Tiow  the  Devon  limitation  but  as  one  simply  to  "  heirs-male." 

>  See  pp.  1023,  n.  2.  1024,  n.  2.  and  pp.  1036-6. 


APPENDIX.  1029 

male  of  Williaii)>  first  Viscount  Courtenay,  his  grandfiither,  he  refer- 
red to  **  Extracts  frpm  Pedigrees  proved  before  the  Committees  of  Pri- 
vUegeSy  on  the  18th  February  1771,  and  17th  March  1794,"  fixing,  inter  Balaamlike,  or 
alia,  that  the  latter  had  been  created  Viscount  Courtenay  of  Powder- ^'^'^  ^^^^^l 
ham  Castle,  &c.  '^  by  Patent,  6th  May  1762,"  ''  to  him  and  his  Heirs  tricted  meaning 
malej*^ — thus  standing  alone.    If  so,  then,  equally — the  above  being  of  heira-male 
legal  evidence,  repeatedly  admitted  and  recognised  by  a  solemn  tribu-  ^^^^  t™?*d°  bv 
nal, — upon  the  identical  construction  of  **  heirs  male,'*  contended  for  the  Devon 
at  the  time,  the  present  Earl  of  Devon '  Viscount  William's  collateral  claimant  in  his 
heir-male,  ought  to  be  Viscount  Courtenay ;  which  honour,  neverthe-  ®^*"^°*^' 
lees,  in  the  utter  dearth  of  inferior  ones  in  the  family,  he  has  never 
claimed  ;  but  lo,  and  behold,  under  another  head,  by  irresistible  evi- 
dence, published  by  the  Devon  counsel,  the  former  words,  e  converso, 
are  ascertained,  and  fixed  to  have  implied  no  such  meaning,  but,  in  the 
terms  of  the  actual  patent,  to  have  denoted  only  '^  the  heirs  male  of 
his  (the  first  Viscounts  J  body,  lawfully  begotten."*  This  was,  however, 
quite  natural,  owing  to  such  limitation  being  synonymous  with  the 
above.    In  the  striking  absence,  therefore,  of  Englbh  authority,  as  Independently 
stated — independently  of  the  aid  he  so  anxiously,  though  unduly  °^.  |^®  Scottish 
grasped  at,  from  our  supposed  practice,*  the  Devon  claimant  was  com-  trations,  so  ex- 
pelled merely  to  stand  upon  the  naked  Irish  precedent,'  as  follows,— on  aggerated,  he 
which  he  triumphantly  founded,  really  ad  victoriam  causa,  as  if  could  only  stand 
identically  similar,  and  quite  adequate  for  his  purpose.    On  the  28th  "^ 

*  See  the  evidence,  as  fully  ^ven  in  the  Devon  Report,  Append,  p.  xlis. 

'  The  claimant  in  1831  died,  as  is  well  known,  some  yean  ago,  without  issue, 
and  was  succeeded  by  the  present  William  Earl  of  Devon,  in  the  capacity 
Subjoined,  as  next  heir-male. 

*  Ibid,  p.  19.  *  See  pp.  1026-7. 

'As  the  Attorney- General  well  remarked  in  the  Devon  claim,  there  was  no 
other  that  could  be  referred  to,  wxleat  quantum,  (See  Devon  Report,  p.  123.) 
One  or  two  old  examples  of  English  patents  to  **  heirs  male,"  together  with  others 
to  **  heirs  male  of  the  body,"  were  eagerly  attempted  to  be  pressed  into  the  ser- 
vice ;  but  this  weighs  nothing,  owing  to  the  former  terms,  as  before  understood, 
being  synonymous  with  the  latter.  The  framer  might  just  have  expressed  the 
same  thing,  as  often  happened,  under  such  literal  discrepancy,  for  variety's 
sake.  And  what  is  more  material  still,  forfeiture,  or  other  as  effectual  circum- 
stances, strikingly  obtained,  quite  precluding  any  illustration,  or  expiscation  of  the 
peculiar  meaning  of  "  heirs  male  "  in  their  case,  from  subsequent  contingencies, 
or  the  descent.  In  the  Scrope  instance,  the  patentee,  created  Earl  of  Wiltshire, 
the  29th  of  September  1397,  to  him  and  his  «  heirs  male,"  and  who  happened  to 
be  forfeited  only  two  years  after,  was  without  offspring  at  the  time,  while  he  had 
two  brothers  who  had  male  issue ;  from  which  mere  circumstance,  it  was  lamely 
endeavoured  to  be  maintained,  that  the  limitation  must  be  inevitably  to  heirs- 
male  whatever,  (ibid.  pp.  49,  60-1,  112-13-14)  ;  but  he  might  very  well  have  had 
subsequently  male  issue ;  and,  in  our  days,  there  are  many  grants  of  Peerages 
even  to  old  persons,  having  no  visible  prospect  of  issue,  only  to  the  heirs-male  of 
their  body,  and  otherwise  exactly  in  the  same  predicament  as  above. 


1080  APPENDIX, 

Irish  authority  of  February  1627,  Charles  I.  created,  by  patent,  Lewis   Boyle,  second 
'"  ^^27.  ^^  ^^  Richard,  first  Earl  of  Cork,  Baron  of  Bandonbridge,  &c.  in  Ire- 

land, to  him,  and  the  heirs-male  of  his  body ;  wh&m  failing,  to  the 
heirs-male  of  the  body  of  Earl  Richard,  his  father ;    whom  fahjno,* 
•*  rectis  heredibue  masculis  dicti  comitis  imperpetuum."    And  further 
still,   the   king,   in  the   preamble,  emphatically  declares,    that  it 
was  his  will  that  the  said  honour,  *'  non  eolum  dieto  Ludovico,  et  he- 
redibus  masculis  de  corpore  ;  verum  etiam  (minibus  heredibus  nuucuUs, 
tomde  corpore,  quam  a  laterb,  dicti  Comitis  permansurum,'"  than  which 
nothing  can  be  more  self-evident  and  explicit.    Here,  therefore,  it  will 
be  observed, — heirs-male,  as  every  legal  tyro  knows,  being  occasionally 
flexible  in  its  import, — ^first,  that  owing  to  the  certain  explicit  exhaustion 
of  aU  the  heirs-male  of  the  body,  in  the  previous  instances,  the  **  heirs- 
But  the  latter  is  male,**  over,  and  above,  under  the  ultimate  reminder,  can  only,  Av<er- 
befnff^'a  'ca»e°  *"*"**»  ^  ^  necessitate,  be  heirs-male  whatsoever,  and  collateral.    That 
(like   Devon)  is  indisputably  proved,  intrinsically,  by  the  context,  which  any  one  who 
of  *»heir«.inale"  nins  may  read.    And  secondly,  such  construction  is  even  additionally 
inff**the  bro^"  "^®**®^  ^7  *^®  pointed  declaration,  at  the  outset,  that  the  honour 
collateral  des-  eventually  should  go  to  the  Earl's  heirs-male  collateral,  **  a  latere,**  inde- 
cent enforced  pendent  of  his  body.'    A  male  collateral  descent  is  consequently  here 
bv  th        t"**!  ®"^*^'<^>  ^  abundanti,  in  the  plainest  and  most  inevitable  language  ; 
and   through     — ^but  can  it  ever  be  fairly  said,  that  this  very  peculiar  multiform  Irish 
special  remain-  instance,  forming  a  single  remarkable  exception,  in  itself,*  to  the  uni- 
ders.    In  con-  yg^g^j  jpjgjj  practice,  aliunde,  as  well  as  to  the  English,  interpretates, 
therefore,  the  ^^^  is  at  once  to  attach  the  same  broad  import,  so  anxiously  and  criti- 
opposite   rule,  cally  guarded,  to  a  naked  limitation  simply,  to  ^  heirs-male,"  as  in  the 
"PP^^^^^*  /2""  I^evon  case  ;  which,  forsooth,  was  contended  to  be  identical  with  the 
>most  apply.   '    above?    With  every  submission,  I  conceive  not.    The  obvious  rule, 
only,  applicandi  singula,  sitigulis,  can  come  here  fairly  into  play ;  and 
what  may  indisputably  weigh  in  the  one  case,  may  not  in  the  other. 
It  seems  irrelevant  to  found  on  the  Irish  patent  in  1627,  with  its  sub- 
sequent effect,  except  in  the  instance  of  a  patent, — ^not  assuredly  mea* 
gre,  inexplicit  at  most,  and  so  different,  as  that  of  Devon,  which  falls  to 
be  governed  by  other  fairly  referrible  tests  and  rules— -but  having  a  oor* 
responding  analogous  broad  structure  and  conteaeture  /*  the  context,  in 

'  **  Per  defectum  talis  exituM," — ^the  issue  which  had  preceded. 
'  Devon  Report,  Append,  pp.  WK.  Wiii.  '  Ibid,  p.  ItU. 

*  There  was  a  patent  also  of  the  Irish  Barony  of  Broghill,  granted,  of  the  aame 
-date  with  that  of  Bandonbridge,  &c.  to  Roger  Boyle,  another  yoimgpr  son  of  the 
aboTo  Earl  of  Cork,  (see  Devon  Report,  Append,  p.  Ix.)  that  was  alhided  to  ia 
the  discussion,  though  not  so  forcibly,  or  directly ;  but  it  is  in  ideolical  terms,  and 
import  evidently,  with  the  preceding,  being  besides  induced  by  the  same  motives, 
and  circumstances,  which  most  have  governed  both,  though  the  words  «  a  latere^'* 
the  single  exception,  happen  not  to  be  in  the  preamble. 

*  Great  stress  was  laid,  in  the  Devon  case,  apon  the  alleged  fact  of  the  Banmy, 
<n  terms  of  the  Irish  patent,  after  Lewis,  the  patentee,  who  died  without  issae, 


APPENDIX.  lOSl 

the  converse  instance  in  question,  being,  so  hi,  quite  ineloquent,  and 
mute.    If  a  collateral  nude  succession  too,  had  been  decisively  intend- 
ed in  the  Devon  patent,  why — ^the  same  law  and  practice  holding  in  ^l^y*  if  li^irs* 
both  alternatives-was  not  sametkinffai  least,  of  similar  force,  and  ^^J^'^^""^;?^^^ 
phraseology  with  the  other,  at  once  adhibited,  so  naturally,  to  take  the  was  not  similar 
case,  according  to  the  Irish  fashion,  out  of  the  weighty  dilemma,  result-  broad  language 
ingfrom  the,  at  most,  ambiguous  acceptation,  as  is  indisputable,  of  ^"^l^^^^j^^^^^ 
**  heirs-male ;" — ^words,  (ai&My)  that,  whatever  may  be  said,  have  been  instance,  at  in 
technically  employed,  both  in  England  and  Scotland,  but  most  especi-  ^^®  1"*^  ^ 
ally  in  the  first  country,  to  define  heirs-male  of  the  body ;  yet  of 
this,  there  is  not  a  vestige ;  while,  vice  verw,  the  full  and  anxious 
insertions  and  clauses  in  the  Irish  patent  bespeak  their  indispensable 
necessity  for  the  purpose.    The  Devon  plea,  in  fact,  stands  illogically 
thus,  that  because,  from  the  distinctive  terms,  and  context,  backed  by 
the  ultimate  and  decisive  remainder,  in  the  peculiar  circumstances,  in 
the  Irish  patent,  *^  heirs-male  **  therein,  do  denote  heirs-male  whatso- 
ever, ihertfore  a  limitation  to  "  heirs  male,**  nakedly ^  in  quite  a  difier-  _        a   '*  t 
ent  predicament,  is  to  be  equally  entitled  to  the  same  broad  construe-  the '  phrase 
tion.    But  admitting  such  construction  of  "  heirs-male,"  (simply,)  to  **  heirs-male  " 
be  thus  relevantly  fixed,  by  the  overtohelming  context  of  a  different  ^  ^Je^c^m"^^ 
patent  upon  one  occasion,  we  as  clearly,  in  principle,  arrive  at  a  totally  in  the  Irish  in- 
conflicting  one,  nay  ruinous  to  the  Devon  claim,  upon  another,  on  paral-  stance,  accord- 
lei  grounds,  as  strong  and  as  irresistible.    Why,  inter  alia,  we  are  here  ^^J^J^^  ^^^^^^i 
met  by  the  remarkable  modem  Roxburghe  case.    The  descent  of  the  clearly,  and  on- 
Roxburghe  honours,  now  including  the  Dukedom,  is  regulated  by  the  ly  is ;   &y  the 
noted  limitations  in  the   Roxburghe  conveyance  in  1648,*  to  the  ^^*^'*^l^  *ft 
daughters,  seriatim,  of  Harry  Lord  Ker,  only  son  of  Robert  first  Earl  may,  in  the  same 
of  Roxburghe,  and  to  **  their  Heirs  male;'*  but  with  remainder  next,  to  way,  be  equal- 
the  Earl's  "heirs  male  whatsoever;"  and  it  was  just  analogously  J^- ihe7e.*tricted *" 
solved  by  the  Lords  in  1812,  in  the  same  way,  though  diametrically 
opposite  to  the  vital  Devon  conclusion, — through  the  medium  of  the  *  (Under  autho- 
context, — that  "  heirs-male"  here,  on  the  other  hand,  under  authority  rity  of  'he  royal 
of  this  instance,  only  denoted  "  heirs  male  of  the  body  ;**  because,  as  must  |  g??"\^ 
strike  every  one,  if  not,  and  if  they  are  to  be  taken  in  the  enlarged 
sense,  contended  for,  what  necessity  could  there  possibly  especially,  be.  The  above 
for  the  next  remainder  to  "  heirs-male  whatsoever,"  or  to  •*  heirs-male  P'oTcd  by  the 
collateral  ?  "    In  fine,  if  the  phrase  «  heirs-male,"  sometimes  flexible,  inYsi!??'*  "*** 
may  be  proved,  as  it  is,  by  the  context  alone,  of  the  Irish  patent  in  obfious  corol- 
16279  upon  which  the  Devon  claimant  so  strenuously  and  mainly  re-  lary  here. 

having  gone  to  his  eollateral  heirs-male,  descended  of  the  body  of  the  Earl,  hh  father. 
( See  Devon  Report,  pp.  1 16-17-18,  &e.)  Bat  this  was,  nnder  the  e«|»resff  re- 
maimder  there,  "  to  the  heirt  male  of  the  body  "  of  the  Earl,  (see  p.  1030,)  which 
is  quite  another  thing ;  and  how  it  can  bear  upon  the  Devon  case,  properly,  I  am 
at  a  loss  to  discover.  There  is  no  doubt,  that  collateral  succession  obtained  in 
England,  after  a  certain  form,  by  remainders;  but  the  question  is,  how  it  is  to  be 
otherwise  eked  out,  whether  by  *■  helrs-nale  '  simply,  as  in  the  Devon  ease,  or  not  ? 


1082  APPENDIX. 

lied,— though,  I  oonceiye,  &irlymapplicabletohim,—«gaiDBt  the  strong 
negative  argament  too,  of  complete  English  taciturnity,  and  total  want 
of  corroborative  precedent,  so  far,  in  the  ordinary  case,  nay,  direct  Eng- 
lish repudiation  of  the  notion,  as  we  might  hold, — to  include  heirs-male- 
general ;  as  certainly,  by  parity  of  reasoning,  msy  the  same  phrase  be 
explained  and  illustrated  elsewhere,  in  the  same  way,  and  equally 
with  reference  to  the  Devon  claim,  to  be  only  capable  of  the  opposite 
restricted  acceptation  of  *'  heirs-male  of  the  body/* 
My  indaciion       ^^  proceed  to  other  parallel  examples,  besides  that  of  Roxburghe. 
also  established  The  Barony  of  Cramond  was  conferred,  by  patent,  dated  last  of  February 
by  the  patent  of  1628,  upon  Elizabeth  Lady  Richardson,  the  wife  of  Sir  Thomas  Richard- 
Cnimom?"  ta^  ^^»  ^^  Chief  Justice  of  the  Court  of  Common  Fleas,  in  England, 
1628.  ^  pro  toto  tempore  vite  sue ; "  with  limitation,  after  her  death,  "  perque 

modum  eucceasionia"  to  Sir  Thomas  Richardson,  knight,  **  wn  and  A^V 
of  the  Chief  Justice,  **  suisque  heredibus  nuutmlU  ;  qaihus  d^unentibus^ 
hsredibus  masculis  decorpore  dicti  Domini  Thoma — Patria,**  *  (the  Jus- 
tice, J     It  is  hence  plain  as  day-light,  owing  to  the  ordinary  mode  of 
male  succession,  as  stated,  being  here  confessedly  adopted,— taken  with 
the  ultimate  remainder  to  ^  heirs-male  of  the  body  "  of  the  common 
father  of  the  male  parties, — which  otherwise,  upon  the  large  construc- 
tion of  ^'  heirs-male,"  would  have  been  quite  unmeaning  and  superflu- 
ous,—that  in  this  patent,  framed,  and  revised,  as  we  may  presume,  by  a 
great  English  lawyer,  who  had  such  a  parental  interest  in  the  matter* 
these  very  words,  ^*  heirs-male  "  in  the  first  limitation,  do  again  merely 
express  heirs-male  of  the  body,  and  were  technically  used  fcr  such 
identical  purpose.  By  their  position,  through  aid  of  remainders,  in  the 
Irish  patent  in  1627,  they  came  to  express  hein-male-coilateral ;  by  their 
position  again,  above,  in  the  same  way,  coiUextwmaly^  in  1628^  to  act  quite 
conversely,  as  shewn.    The  Parliamentary  Act  of  restoration  of  the 
Marquisate  of  Huntly,  and  the  femily  honours,  dated  25th  of  March 
And  ftirther,  by  1661,  formerly  alluded  to,'  limits  the  same  to  *^  Lues  Grordon,'*— son 
the  Act  of  Par-  ^n^  h^ir  of  the  deceased  George  Marquis  of  Huntly, — ^in  consequence 
toTthl  Hllmly*^®'®^^>  *^®  ^^^  Marquis,— "and  his  airU  maiU ;  and  faillieing  of 
honours,    in     him,  and  them^  be  decis^  to  the  next  apparent  air  maill,  of  his  said 
1661.  umquhileyiUA^r,  and  breithem,**  ■ 

It  is  even  here  still  more  obvious  from  the  context,  that  "  heirs- 
male"  only,  (of  Marquis  Lues,)  denote  "  heirs- male  of  the  body,'* — 
thus  shewing  the  frequency  of  such  acceptation ;  because  otherwise^ 
there  could,  again,  have  been  no  earthly  use  for  the  subsequent  limi- 
tation ;  while  this  construction  perfectly  quadrates  with  the  situation 
of  the  family  at  the  time.  Marquis  Lues  having  then  a  son  George^ 
afterwards,  in  virtue  of  the  Act,  Marquis  Geoige,  and  two  brothers. 
Lords  Charles  and  Henry,  who  are  here  all  evidently  contemplated. 

>  Great  Seal  Regiiter.  '  See  pp.  873-4. 

*  From  the  original,  produced  at  the  recent  Huntly  claiqp. 


APPENDIX.  1033 

I  need  hardly  repeat,  after  what  was  formerly  shewn,  that  the  pre-  The  praeeding, 
ceding  are  all  relevant  illustrations ;  the  very  recent  Huntly  claim,  in-  fro*"  ^^^^  ^" 
deed,  in  1838,  mainly  turning  upon  the  same  Act  in  1661,  (as  regula-  f^^^"'  niustra-' 
ted  in  the  descent,)  and  being,  as  well  as  the  previous  Roxburghe  case  tioos  in  the  De- 
in  1812,  solemnly  discussed  and  adjudged  by  the  House  of  Peers.    It  ^on  claim,  may 
is  indisputable,  therefore,  from  these  three  unexceptionable  Peerage  in-  ^^^^  thew/i'tary 
stances  of  Roxburgh,  Cramond,and  Huntly,  now  stated,  in  the  reigns  Irish  cace. 
of  Charles  I.  ard  II. — ^all  before  the  close  of  1651, — that  "heirs-male" 
had,  e  conversoy  technically  acquired  the  restricted  meaning  ;  a  fortiori 
unquestionably,  than  may  be  exemplified,  with  respect  to  the  enlarge 
edy  but  in  the  mere  solitary  Irish  instance^  of  so  peculiar  and  unpre- 
cedented a  kind,  in  the    reign  of  Charles  I.,  and  that,  moreover, 
being  so  palpably  defined,  illustrated,  and  explained,  ejc  abundanti, 
in  its  import,  in  gramio^  can  never  properly,  I  conceive,  be  assimilated 
to  the  Devon,  involving  a  brief  abstract  limitation,  simply^  to  ^  heirs- 
male."    In  explaining  each,  and  arriving  at  their  meaning,  we  must 
infallibly  adopt  the  only  relevant,  though  opposite  principle,  of  appli- 
candi  singula  singulis  ;  while  it  is  as  obvious,  that  if  we  admit  the  con^ 
tejptual  ar^ment,  as  defining  or  fixing  "  heirs-male,"  from  tlie  Irish 
patent,  we  must  do  so,  by  means  of  the  Scottish  ones,  which  would  lead 
to  a  pretty  anomaly  indeed,  nay,  as  I  observed  before,  ruinous  to  the 
Devon  claim.    That  there  may  be  collateral  succession  in  honours,  in 
England,  no  one  can  dispute,  as,  through  the  notorious  agency  of  ex- 
press nominatim  remainders,  or  otherwise,  as  in  the  marked  Irish  case 
so  often  alluded  to ;  but  the  question  is,  how  is  it  differently,  to  be  fully    ' 
eked  out  ?  and,  with  submission,  it  at  least  has  not  been  so  satijfiu^ri-  '^^  Devon  case 
ly  done,  as  could  be  desired^  in  the  circumstances,  in  that  of  Devon,  at  least,  as  re- 
Whatever  there  may  be  in  the  more  abstruse  and  conflicting  doctrines,  ^'*^*  practical 
and  principles  of  the  English  law,*  its  various  subtilties  and  distinc-  countenance, 
tions,  &c.  into  which  I  of  course  cannot  enter,  and  that  may  have,  in-  the    weakest 
dependently,  ruled  in  the  Devon  claim,  still  I  may  contend,  that,  in  a  «<>"<**'»*»*«• 
practical  view,  and  as  deriving  support  from  direct  precedent,  authority,  ^^  •upporters 
or  res  Judicata^  it  is  among  the  weakest,  and  narrowest  imaginable,  obliged  to  sup- 
And  no  wonder  that  its  patrons  and  supporters,  in  their  great  straits,  plicate  the  aid 
—"hard  tax  on  English  pride,"— to  travesty  ChurchilFs  noted  words' ^^^^l^P^f 
—were  thus  obliged,  first,  to  beg  and  solicit,  as  it  seems,  the  omnipotent  tice  in  honours, 
eountenanceand  protection  of  Irish  wisdom,  and  authority ;  and  second-  (independently 
ly,  of  their  "  poor  "  northern  neighbours, — before  the  shrine  of  whose  ^^  J^  w**t 
law — ^which,  in  England,  on  other  occasions,  has  been  attempted,  to  be  make  the  Soot- 
so  perverted  and  even  contorted  into  the  English,  they  devotedly  fell  tish,  contrary  to 
down  as  humble  supplicants,— nay,  glaringly  exaggerated,  and  now,  on  ^°?j|*^  rk^'th* 
the  other  hand,  made,  mfact,  as  unlike  their  own  as  possible,  to  suit  English  as  poe- 
the  Devon  object.^  sibie. 

^  English  lawyers  have  been,  at  the  sametime,  against  the  broad  construction. 
'  lo  the  "  Prophecy  of  Famine." 

'  To  English  legal  necessity,  and  destitution,  in  this  manner,  analogously  here 
also  with  ChorchiU'B  **  Cave  *'  of  *'  Famine,*'  the  notable  resource  and  expedi- 


1034  APPENDIX. 

Peculiar  mode  A  peculiar  method,  not  Tory  fioniliar  to  us,  of  construing  the  Haben^ 
^h^uiS^^"^  rfttm,  or  express  clause  of  destination  in  the  Irish  patent  in  1627,»— 
in  1627.  00  the  ^^^  much  apart  seeminglj,  and  distinct  from  the  preamble^ — ^wascoun- 
Devon  oecasion  tenanced,  and  inculcated  in  the  Devon  case,  though,  as  I  hare  viewed  the 
different  from  matter,  little  availing  the  claimant.  Because  the  words  "o  te(«re,"  or 
previous  intimation  of  the  intended  coUaterai  descent,  in  the  preamble, 
— ^upon  which,  nevertheless,  much  9tre9s  was  laid,  in  the  relative  argu- 
ment,— are  not  in  the  Habenduniy  they  were  held  to  operate  in  an  ap- 
parent anomalous  manner—rather  isolatedly, — and  notwithstanding 
the  reflected  advantage,  thus,  in/aety  attaching  to  the  iatter  dausey  (if 
it  could  be  further  enhanced,)  and  betidesy  distinctive,  and  irresistible 
force  of  the  several  remainders  it  contained,  &c.  this  Habendum  was  to 
resolve  simply,  into  a  limitation  to  ''  heirs-male,"  as  in  the  Devon  pa- 
tent;— while,  if  "a  latere**  had  been  also  therein,  then  its  repetition 
would  have  been,  at  once,  injurious  and  fatal  to  the  claimant,  as  creating 
a  specialty,  that  had  rendered  the  Irish  instance,  in  question,  foreign 
and  inapplicable;'  as  I  conceive  it  was,  at  any  rate.  The  above  nice-spun 
sabtilty,  and  ambiguous  distinction,  as  \i forcibly  to  carve,  and  adapt 
that  instance  to  the  Devon  purpose,  as  might  strike  one,  we  in  Scot- 
land may  not  precisely  comprehend.  All  the  words,  scope,  and  inten- 
tion, anywhere  transpiring  in  such  a  grant,  I  apprehend,  on  the  other 
hand,  we  would  take  into  general  practical  consideration,  wmd  ei 
simul,  as  founding  and  authorizing  the  relevant  conclusion ;  without 
eo  exclusively  resting  upon  an  individual  clause,  as  professed,  which 
nevertheless  was  not  wholly,  or  consistently  done.  The  noted  jet  of 
Conflicting        the  fable  of  the  body,  and  its  members,  would  here  apply.    Nay,  with 

"etat*in°^  *  o  *'*  ^^^^  ^®^»  ^®  ^^^^^  ^"^^^  "  ^^^^  "  ^^^^  ^^^  ^^^^*  ^  ^^  ^^^  ^^^^ 
construing  pa-   ^^  Redesdale  actually  did  in  that  of  the  Annandale  Peerage ;  so 

tents,  according  differently  again,  from  what  was  inculcated  in  the  Devon  case.'  In  his 
ford  ^  d  R  °"  ^P^^^  '^®'®*  *^  1826,  in  order  similarly  to  expiscate  the  meaning 
desdale.  ^^  ^^6  identical  words  "  heirs-male,"  as  in  the  Devon  instance,  his 

Lordship,  not  only  generally,  and  articulately  interpretated,  and  ex- 
plained the  main  Annandale  patent  in  1601,  which  was  directly  found- 

ent  in  the  text,  *<  shelter  at  once  for  man  and  beast  auppHed,** — to  render  the  iaai 

term,  as  the  Poet,  the  noted  detractor  of  the  Scots,  might  natarally  ba?e  done 

in  reference  to  them  at  least,  if  not  abo  to  the  Irish. 
*  See  pp.  1029,  1030. 
'  See  Chancellor  Brougham's  Speech  in  Devon  Report,  pp.  169, 170- 1*2,  ee* 

pecially  in  reference  to  that  of  the  Attorney-General's,  pp.  141-2,  ibid,  and  Sir 

Harris  Nicolas's  remark,  ibid,  p.  142,  n. 
Narrow  rule  of      '  Lord  Wyndford  laid  it  down,  there,  «  You  cwinot,  by  any  rale  of  law,  look 
Lord  Wynford  ^^  of  a  patent."   Devon  Report,  p.  119.     And  the  learned  Reporter  states,  that 
patent.  **  '^®  Counsel  (on  an  attempt  being  made  to  explain  or  illustrate  the  import  of 

the  main  Devon  patent,  in  1553,  by  another  to  the  lamily,)  were  infonned,  that 

'  it  appeared  to  their  Lordships,  that  one  instramentcookl  not  be  uaed  to  controul 

the  effect  of  another  instrument.' "  Ibid,  p.  66. 


APPENDIX.  1085 

ed  upon,  and  where  they  oceurred  inter  alia^  but  eren  further  reverted 
to  those  antecedently  conferred  upon  the  family,  in  a  different  reign, 
in  less,  and  1643.' 

In  leaving  this  subject,  I  may  allude  to  the  case  of  the  Viscounty  of  Case  of  the  En- 
Beaumount,  as  given  by  Selden«    John  Lord  Beaumount  was  created  glwh  VUcounty 
Viscount  Beaumount,  the  18th  of  Henry  VI.  (1440)  to  him,  and  the  ?[  i^^^^^^f 
"heirs-male  of  hU  body"    But  there  subsequently,  passed,  in  1445,  a  Henry  VI.. 
second  patent,  merely  to  fix  the  precise  precedence,  of  the  said  Viscount,  whereby  the 
and  his  heirs  ;  the  dignity  being  new  in  England  ;  and  which,  therefore,  mal^^outcrap- 
after  a  **  short  recital"  of  thefiret,  grants  it  next,  after  all  Earls,  and  pear  to  be  prov- 
"  supra  hseredes,  et  filios  omnium  Comitum.^eidem  Vicecomiti;"  but  «<!  synonymous 
simply, "  heredibus  iuis  maseulis;"  who  were  thus  to  rank.  Here  then,  ^^  the  bodron- 
though  the  very  words  of  the  Devon  limitation  be  latterly  employed,  ly. 
they  are  obviously,  I  should  infer,  only  used  synonymously  with  heirs- 
male  of  the  body,  the  honour,  with  the  precedence,  being  assuredly 
granted  to  the  same  heirs  ;  while  the  fiist  patent  appears  not  to  have 
been  intended  to  be  innovated  upon,  or  was  recalled.'    Of  course  I 
merely  quote  from  Sdden,  learned  and  experienced  though  he  be  in  such 
matters,  not  having  access  to  the  original  record,  or  authority.    Up-  The  Habendum 
on  the  previous  principle  of  construction,  however,  in  the  Devon  claim,  *°  ^^®  ^"*  Beau- 
bearing  upon  the  Habendum  in  the  patent,  apparently  at  variance  with  "ewed  awjord- 
Lord  Redesdale's,  it  is  observable,  that  the  Beaumount  limitation  in  ing  to  the  rule 
1446,  falling  operatively  to  rule  by  itself,  the  Viscounty  should  go,  like  *"  ***®   Devon 
the  Earldom  of  Devon  now,  to  heirs-male  whatsoever, — of  whom,  if  I 
am  not  mistaken,  some  still  exist. 

In  support  of  the  presumption  by  the  English  law,  of  honours  being 
merely  descendible  to  direct  heirs,  and  of  the  distinction  between  them 

1  «  The  first  question  (Lord  Redesdale  said,  on  the  occasion)  wUl  be  upon  Lord  Redes- 
the  true  construction  of  that  limitation,  (*  heredibut  nuueulis  in  perpetuum,*  in  P**®  •  mode  of 
the  firti  patent  of  the  Barony  of  Johnstone  in  1033).     In  the  law  of  Scotland,  ,l    ^  .     .  * 
it  is  clearly  laid  down,  that  those  words  are  to  receive  a  construction  according  to  nandale  patent 
the  eircunutanees  of  the  grant,  that  they  do  not  clearly  import  heirs-male  of  the  in  1 66 1,  in  the 
bodyy  (in  i^hose  favour  he  preiumes),  but,  according  to  circumstances,  may  receive  ^nnandalecase, 
an  interpretation  fVom  the  whole  of  the  instrument,  in  which  they  are  inserted,  ^^  ^^  ^^^  ^' 
and  that  they  may  be  considered  as  applying  to  heirs-male-general,  whether  of  vious  ones  to 
the  body,  or  not."   And  hence  '*  heirs-male,"  which,  as  I  remarked,  is  sometimes  the  family, 
fleuble,  would  be  construed  by  every  one  of  the  emerging  particulars,  weighed 
and  balanced  fully  together.  But  further  still,  his  Lordship  proceeded  to  the  next 
Johnstone,  or  Annandale  patent  in  1643,  discussing  it  in  like  manner;  and  finally,  to 
the  one  strictly  before  the  House,  that  in  1661,  whereupon  the  claimant  stood,  and 
under  which  he  could  alone  take, — all  the  former  being,  so  far,  foreign  to  him, — in- 
asmuch as  they  were  exclusively  to  **  heirs-mal^.,"  while  he  was  but  the  heir-fe- 
male.    The  above  is  derived  from  a  cotemporary  authentic  copy  of  Lord  Re- 
desdale's speech. 

'  Titles  of  Honour,  Edit.  1672,  pp.  631-2. 


1036  APPENDIX. 

Forther  evi-  and  lands,  I  may  furthet  add,  this  excerpt  from  the  Lords  Committees 
dence  of  the  Report  into  the  state  of  the  Peerage,  formerly,  but  barely  referred  to, 
fhe'E^glisiriaw  *°^  'w^hich  was  pointedly  founded  upon  by  the  Attorney-General  in  the 
iM  honours,  of  Devon  case  ; — that  a  grant  of  an  Earldom,  to  one  and  *'  his  Aetr^,*'  ac- 
their  deiceut     qording  .to  the  words  of  Justice  Doddridge,^  "being  confined  to  the 

thJhodj^even^^^^^'^^P^^^^P^^^^yf  ^^  ^°  truth,  a  grant  only,  to  him  and  the  heirs 
in  the  case  ofofAt«  &o(2j^,  and  therefore  does  not  resemble  a  grant  of  lands  in  fee- 
the  ^ore  en-  gimpje,  which,  according  to  the  law  of  England,  as  now  long  settled, 
Uon  unquudifi-  "^^^^^^^  ^T^  given  the  land  by  descent  to  any  heirs  of  the  grantee ;  an 
edly,  to* *A«tr«."  observation  which  marks  a  clear  distinction  between  the  grant  of  a 
mere  dignity  and  the  grant  of  lands."    With  respect  to  which,  the 
Attorney-General  most  naturally  remarked,  that "  unless  the  addition  of 
male,  (as  in  the  Devon  limitation,)  which  is  plainly  intended  in  a  case 
of  this  sort,  where  there  is  no  exclusion,  should  make  the  grant  more 
extensive,  when  certainly,  if  it  means  any  thing,  it  makes  it  less  so,  I 
cannot  conceive  why  this  axiom  of  law  should  not  be  found  applicable 
to  this"  (the  Devon  case. J*  The  Lords  Committees,  also,  in  their  Re- 
port elsewhere,  state,  that,  "  according  to  the  law  of  England,  at  least  as 
now  understood,  and  perhaps  as  always  understood,  a  dignity  simply 
cannot  be  granted  in  fee-simple ;  it  can  be  granted  only  to  the  person 
described  in  the  grant,  and  to  the  heirs  general  or  special  of  his  body. 
Farther  illustra-  he,  and  those  descended  from  him."  ■    What  little  real  stress  too,  can  bo 
Ume  a^unt  to  f^^^^  ^  *^®  clause  in  the  Devon  patent  carrying  the  old  preoedenoe^ 
be  paid  to  the  may  be  further  evident  from  the  patent  by  Charles  I.,  the  10th  of 
Devon  preee-  March  1640,  of  the  Scottish  Barony  of  Mordington,  (that,  in  effect,  of 
from^the  appo-  ^^^P^""***  constituted  as  far  back  as  the  reign  of  James  II.  in  the  15th 
site  Mordington  century,  though  under  another  name,)  in  favour  of  Anne  Oliphant,  the 
patent  in  1640.  heir-female  of  the  Lords  Oliphant,  who  had  many  collateral  heirs,  and 
may  be  held  then  the  true  heir,  bating  the  resignation  of  Lord  Lau- 
rence, her  father,  that  went  to  void  her  right,  and  was  in  pari  casu^ 
with  the  Devon  forfeiture  previous  to  1553, — which  again,  (the  ifor- 
dington  patent,)  also  carried  the  old  Oliphant  precedence, — hut  to  her, 
and  the  h^rs  of  her  body  only.*    Thus  the  carrying  such,  as  above,  may 
not  necessarily,  per  se,  amplify  the  words  of  limitation  in  a  patent,  as 
was  forcibly  contended  in  the  Devon  argument,  to  which  consideration 
they  are  properly  foreign.    Neither  can  the  above  precedent  be  reject- 

'  '*  If  a  man  be  created  earl  to  him  and  his  heirs,  all  men  do  know,  that  al- 
thongh  he  have  a  fee-simple,  yet  he  cannot  alien  or  give  away  the  inheritance, 
because  it  w  a  personal  dignity,  annexed  to  thepotteriiy,**  &c.  This  passage  was 
at  the  same  time  quoted. 

'  Devon  Report,  pp.  143-4-5. 

'  Fourth  Report  of  the  Lords  Committees,  (tcl  tup.  in  the  text,)  p.  283. 

*  Namely,  between  her  and  Sir  James  Douglas,  her  husband,  or  any  other. 
For  proof  of  these  facts,  tee  pp.  179,  180-1,  and  what  had  preceded.  For  other 
instances  of  grants  of  the  old  precedency,  in  later  patents,  to  the  same  purport, 
seep.  1028,  ti.  1. 


APPENDIX.  1037 

ed  or  discarded  fjrom  view,  in  tho  Devon  claim,  that,  as  has  been  seen, 
relied  so  eagerly  and  greatly,  on  Scottish  grants  of  honour,  in  the  same 
century  with  that  of  Mordington,  seeing  we  never  can  consistently  both 
approbate  and  reprobate  in  law,  which  would  be  the  inevitable  conse- 
quence of  such  rejection. 

Chancellor  BroughaiA,  in  the  Devon  claim,  it  is  observable,  curi-  Cfaancellor 
ously,  and  strikingly  closed  with  impressing,  (or  hoping  ?)  that  it  was  Brougham's 
the  **  only  case  of  an  English  dignity,"  of  the  kind,  ever  likely  to  be  fn°*hif  n^ech 
discussed,  and  to  enure  into  practical  rule  and  precedent,  by  way  of  af-  in  the  Dotoh 
fording  "  some  relief,"  he  said,  "  to  the  mind  "  of  the  Peers,  in  the  re-  claim, 
solution  they  might  come  too.* 

A  favourable,  and  rather  amiable  feeling  appears  to  have  been  dis- 
played towards  the  claim  in  question,  owing  to  the  antiquity,  chival- 
rous, historical  fame,  and  distinction,  and  pristine  nobility  of  the 
Couitenays — that  had  unfortunately  undergone  a  marked  and  undeserv- 
ed eclipse,  however  certainly  not  so  super-eminent! y  sprung,  as  con- 
tended, from  the  French  royal  family.' 

But,  whatever  there  may  be  in  my  preceding  remarks,  taken  along  The  decision 
with  this  very  striking  recent  Devon  judgment,  when  we  find  the  there,  however, 
high  legal  authorities  in  the  House  of  Lords  giving,  as  we  may  ga^^^r^^^j^^^j  *^Di-* 
from  their  speeches,  the  same  broad  construction  to  **  heirs- male,"  in  nioos  of  the 
the  Scottish  Annandale  claim, — ^the  former,  in  the  circumstances,  as  ^otda  in  the 
shewn,  even  telling  a /or/tori,  the  general  question  affecting  these  words  ciako^must  now 
just  becomes  identical,  in  a  measure,  in  its  character,  with  the  peculiar  practically  be 
modem  presumption  adopted   and   enforced  in  Scottish  Peerages,  l»®l^**atteching 
againsty^a/e  succession,  so  often  adverted  to.    A  counsel,  whatever  his      ^  ^^^  heirs- 
own  private  opinion  or  bias  may  be,  is  professionally  bound  to  affix  male'*  simply, 
weight  to  such  marked  prevailing  impression,  however  grounded,— at 
least   certainly    to    inform   a     client    having    a   claim,  by    colla- 
teral  male  descent,  to  a  Scottish  honour,  limited  simply  to  '^  heirs 
male,"  that,  in  the  event  of  its  being  pushed,  he  has,  now,  every 
chance  of  success  in  the  House  of  Lords ;  with  reference  to  whose  no- 
tions and  dictates,  such  claim  before  them,  must,  accordingly,  be  shaped 

'  Devon  Report,  pp.  165-6. 

'  See,  upon  this  head,  my  **  Refatation  of  the  asserted  Royal  origin  of  the  Eng  Question  of  the 
li»h  Courtenays,"  in  a  former  work,  entitled  **Remarks  upon  Scotch  Peerage  Law,"  orlRin  and  des- 
pp.  169—174,  inch  also  p.  867,  «.  of  the  present  performance.    There  is  every  *^/"r  q *^®.  f"" 
reason,  however,  to  believe,  that  i\ie  former  are  sprang,  as  cadets,  from  the  original  nays. 
French  Courtenay  stock,  so  long  extinct  in  the  direct  male  line,  whose  heiress  and 
representative  (like  the  Bourbon,)  married  Peter,  a  younger  son  of  Lewis  VI.  of 
France,  in  the  1 2th  century,  and  of  whom  came  the  Emperors  of  Constantinople, 
and  tho  French  Princes  of  Courtenay,  (Peter's  descendants  adopting  that  sur- 
name,) who  have  also  failed.  The  difference  of  the  label,  once  taken  by  the  English 
Courtenays,  in  their  arms,  the  same  otherwise,  as  those  of  the  French  Courtenays, 
after  the  higher  baronial  fashion,  evinced  in  the  cases  of  Sir  Edmund  de  Hastings, 
and  Walter  Stewart  Earl  of  Meneteth,  in  the  13th  and  14th  centuries,  (see  p. 
992,  n,  1,) — in  obviously  likewise,  technically  expressive  of  such  descent. 


1038  APPENDIX. 

and  modelled.  And  so,  I  think,  we  maj  fiiirly  di^ose  of  the  matter  ; 
for  my  likely  tediousness  and  dilation  upon  which,  I  ought  perhaps  to 
ofier  an  apology  to  my  readers. 

To  recur  once  more  to  Mr.  Sinclair,  and  not  altogether  to  abandon 
him  in  his  jeopardy,  as  he  did  his  Jedburgh  protege.*    In  refutation  of 
the  fabulous  surmise,  that  the  mother  of  William  first  Earl  of  Douglas, 
in  the  reign  of  David  II.  was  Dornagilla  Comyn, — (in  order  to  counte- 
nance a  supposed  preferable  right  in  him  to  the  crown  before  the 
Stewarts,  through  the  Baliol  family,  from  whom  the  Comyns  are 
stated  to  have  descended  in  the  female  line,)  I  adduced,  in  a  recent 
performance,'  an  original  charter  from  the  Torphlchen  Charter-chesty 
legally  proving  her,  on  the  other  hand,  to  have  been  **  Beatrix  DougUuy* 
Mr.  Sinclair**    as  she  is  there  explicitly  styled.    Mr.  Sinclair,  however,  questions  if 
doubt,  or  no-     g^e  was,  notwithstanding,^  in  fact,  a  Douglas,  and  hence  may  not  have 
trix  Dovglas  '  ^^^''^g^  to  another  family ;  though  I  have  fully  shewn,  and  could 
the  nnother  of  further  prove,  ex  ahundanii^  that  in  conformity  to  the  fiv  prevalent  and 
William  first    peculiar  custom  with  us,  even  still  observable  in  a  degree,  married  wo- 
las,  tn^tfae  rei^  ™^°  retained  their  maiden  appellation  both  during  their  marriages, 
of  David  II.      and  after  the  deaths  of  their  husbands  ;*   which  accordingly  Beatrix 

'  8ee  p.  1013.  '  *•  Tracts  Legal  and  Historical,"  pp.  216—223. 

'  Dissertation,  p.  140. 
Additional  to-        *  See,  among  others,  striking  instances  of  this  in  the  case  of  '*  Dame  Agnes 
stances  of  the  Keith,*'  a  daughter  of  the  noble  family  of  the  Keiths,  Earls  Marshal,  who  is  so 
wiSi  us    of^e  described  after  the  death  of  the  Regent  Moray,  her  first  spouse,  nay  even  aAer 
retention    by     ^^^  ^^^  re-married  Colin,  Earl  of  Ai^le,  in  1574,  and  that  of  the  seTeral  Dowager 
married  ladies    Countesses   of  Huntly  in  1526,  &c.    (pp.  768-9,  790-1,  &c.)     To  go  further 
odheir  maiden  ^^y^^  ;„  ^^  ]4(l,  century,  and  when  Beatrix  Douglas  lived,  the  deceased  wife  of 
<«•  marriage       Malisius  de  Strathern,  Earl  of  Strathern,  is  referred  to  by  her  maiden  name, 
**  Migorise  de  Muaco  Campo,  Comitissss  de  Stratherne,"  in  a  charter  by  Robert 
Bruce,  f  Rob.  Ind.  p.  11.)    In  the  same  way,  we  have  **  Margarete  de  Abemythy 
Comitissa de  Anegus,"  and  **Margarete  de  Saneto  Claro  (Saini  Ciair,)  Comittssae de 
Anegus,"  (whose  husbands  were,  respectively,  John,  and  Thomas  5Sfa0ar<«,  Earls  of 
*  See  Andrew  Angus,*)  in  1361,  and  1362.  (Reg.  Dav.  II.  pp.  28-9,  No*.  45, 51.)  Previous  to  this, 
Stuart's  Hist,  of  ^here  is  mention,  in  acharterby  David  II.  in  1367,  (in  the  Marr  Charter..chest,)  in  re- 
pp. 56-7.       '    ^^^^^  ^o  ^^®  l^ndM  of  Strongartney,  **  Johannis  de  Meneteih  et  Elene  de  Marr  spotue 
ejnsdem,**    Elen,  as  is  notorious,  was  daughter  of  Gratnay  de  Marr,  Earl  of  Marr ; 
in  right  of  which  lady,  thus  as  usual  adhering  to  her  maiden  name,  after  marriage, 
the  Erskines,  as  will  be  seen,  came  to  inherit  the  Earldom  of  Marr.     Nameroas 
such  examples  could  be  added,  establishing  the  rule,  with  one  or  two  accidental 
exceptions,  as  in  all  such^  cases.     It  was  deep-rooted — to  go  further  back  still. 
Dame  Christian,  of  the  distinguished,  subsequently  royal  house  of  the  Bruces  of 
Annandale,  wife  of  Patrick  de  Dunbar,  Earl  of  Dunbar,  who  figured  before,  and 
afler  the  middle  of  the  13th  century,  is  referred  to  in  a  writ  under  the  Privy  Seal 
in  1529,  as  **  cristiano  hruce  countcs  of  Dunbar  for  yat  tyme,  (who)  movit  of  de- 
votioue,  biggit  and  foundit  ane  house  of  religione  in  ye  toune  of  Dunbar,  and  gaif 
ye  samyn,  wytall  ye  rent  is,  ande  proffilis  yerof  to  god,  andtoyebreyer  of  yeordoure, 
and  religioune  of  ye  Trinite,  submiltand  ye  samyne  religiouse  house  to  ye  caire. 


APPENDIX.  1039 

must  be  likewise  presumed  to  have  done.'    The  worthy  gentleman  Mr.  Sinclair  Is 
would  cruelly  seek  to  detach  me  from  this  lady  of  the  house  of  °°*^^®.^^.""P* 
«  DaugUuy**  whom  he  yet  can  supplant  by  none.  But  I  intend  to  remain  ^°^^^  ^  f^°  ^^y 
hteraUy  faithful  to  hery  however  he  may  wish  to  fasten  upon  me  some  aoy  authority. 
ether  J  whom,  although  too,  curiously  '*  smitten,"  as  he  thus  happens  to 
be,  with  "  ether  charms," — ^to  use  his  own  words,'  yet  from  being,  at 
the  same  time,  quite  a  stranger  to  him,  he  can  neither  present  in  person 
or  attractions, — not  unlike  those  which  the  fervid  fancy  of  the  Knight 
of  La  Mancha  conjured  up  in  the  beau  ideal  of  his  mistress, — in  fact, 
equally  putative,  and  non-existent. 

In  oppositioa  to  the  rather  contrary  notion  of  mine,  Mr.  Sinclair  His  singular  pro- 
8p<»ts  the  original  theory,  that  "  widoussy  even  when  married  again^  or  po«»iion  or  fan- 
fl/?cr  becoming  widows  a9atn,^/26»  kept  thenatne  of  iheir first  husband^  in  ^)^  ^Jutwa  ^^''in 
those  remote  ttmes,"^ — such  prodigious  affection,  it  seems,  did  i^ie&d^*  remote  timet" 
excelloit  women,  Phenixes  of  wives,  so  unparalleled  out  of  Scotknd, 
and  so  oblivious  of  every  maiden  consideration,  bear  to  their  much 
envied  deeeased  first  mates ;  nay,  to  the  prejudice  of  all  others !    It  was 
actually  the  next  thing  to  dying  with  them,  on  the  funeral  pyre.    He 
from  thence  would  seem  to  infer,  though  he  does  not  very  distinctly 
bring  out  his  meaning,  that  such  may  have  been  the  case  also  with  the 
preceding  Beatrix  Douglas — a  mere  gratuitous  supposition,  I  need 
hardly  add,  on  his  part — whose  surname,  accordingly,  was  ahne  in- 
disputably her  first  husband's,  and  not^  m^denly,  her's.      But  in  His  instance  of 
support  of  such  notable  practice,  he  adduces  the  case  oi  "  Christian  de  Christian   de 
Keth,  spouse  of  Sir  Robert  de  Erskine,  (who)  was  by  birth  a  Menteith,  ^^'^^^^l^^''^^ 
and  widow  of  Sir  Edward  Keth.*'  *    He  here  gives  it  rather  negligently  support  thereof, 
again,  without  due  explanation  of  his  drift ;  which  we  may  gather  unfounded  and 
to  be,  that  Christian,  in  conformity  to  the  usage,  still  kept  the  sur-  *''''®'®^*°  * 
name  of  Sir  Edward  Keith,  her  first  husband,  after  being  married  to 
Erskine.    But  the  idea  is  palpably  unfounded.   No  flrskine  at  the  time, 
and,  I  believe,  I  may  safely  add  ever,  married  a  Christian  Menteith,  the 
widow  of  a  Keith  ;  who  only  figures  in  the  fancy  of  Mr.  Sinclair,  and 
the  **  Peerage  writers."    The  true  facts  are  these.    First,  Sir  Thomas 
Erskine  of  Erskine,  who  figured  towards  the  end  of  the  14th  century, 
the  ancestor  of  the  noble  family  of  Marr,  married  Janet  Keith, 
daughter  of  Bir  Edward   Keith,    by   Jits   wife   Christian    Menteith, 
daughter  of  Sir  John  Menteith,  by  Elene  de  Marr,  daughter  of  Gratney 
de  Marr,  Earl  of  Marr  ;  in  virtue  of  which  marriage,  the  Earldom  of 
Marr  came  iuto  the  Erskine  family,  as  is  proved  by  irrefragable  evi- 

and  saiU  (zealj  of  ye  minister  of  ye  place."  (Privy  Seal  Register.)  1  have  been 
the  longer  in  my  quotation,  out  of  duty  to  this  eminent  and  virtuous  lady,  so 
different  from  her  every  way  degraded  descendants  in  the  16th  century,  (see  pp. 
456 — 459),  whose  piety  and  liberality  may  not,  I  believe,  be  otherwise  known. 

'  She  has  married  a  husband  of  her  own  name  and  stock,  like  Isabella  Comyn  ; 
see  pp«  994  5 ;  but  there  is  no  proof  of  her  being  twice  married. 

'  See  p.  1011.  '  Dissertation,  p.  140.  *  Ibid. 


1040  APPENDIX. 

dence,  I  have  seen,  in  the  Marr  Charter-chest,  and  through  means  of 
the  same,  especially,  by  Lord  Hailes  in  the  Sntherland  case.*   Secondly, 
on  the  18th  of  January  1365-6,  there  past  a  royal  charter,  still  upon  re- 
cord,' of  the  lands  of  Kinnoul,  in  favour  of  Nicolas  de  Erskine,  the  son 
of  '*  Roberti  de  Erskyne  militis,  paths  predict!  Nicolai,  et  crUtiane  de  KM 
sponsesue,"  without  the  least  mention  of  the  parentage  of  the  latter^  wfto 
was  not  a  MenUUh^via  Mr.  Sinclair  states,  and  had  married  a  separate  and 
The  relative     ^^^i^i^  Erskine  than  the  former.  And  rather  curiously,  and  most  anoma- 
circttmsunces    lously  certainly,  by  irrelevantly  jumbling  the  above  authorities  together, 
he  here  asseru  ^^^  actiially  misstating  and  misrepresenting  them  individually,  has 
bibf  t  extraordi-  ^^^i^  ^^  vcLHisi  extraordinary  medley,  and  error,  that  can  be  fimded  in 
nary  coofaaion  a  point  of  pedigree,  by  which,  however,  Mr.  S.  attempts  to  establish  his 
wnceilable**  ^  wonderful  induction !    But  what  is  best,  the  real  authorities  noticed,  in 
a  point  of  pedi-  ^^^^  irviey  unvarnished,  and  authentic  character,  instead  of  supporting, 
gree.  utterly  destroy  it ;  for  it  is  moreover  proved,  by  evidence  in  the  Marr 

Nay,  the  tnu  Charter-chest,  that  ^*  Janet  Keith,"  though  married  to  an  Ersldne,  still 
t^wwlh^^e^!  retained  (in  further  illustration,  besides,  of  what  I  have  said)  her  maid- 
ludes,  are  ini-  ^  name of  "Keith;**  while  the  same  thingevidently happened  to  ^ Chris- 
mical  to  him,  tian  Keith,"  even  in  the  case  adduced,  though  partly  misrepresented  by 
oS^Ta*'  ^^  ^^'  Sinclair,  who,  as  fixed  by  the  charter  1365-6,  though  then  the  wife 
of  another  Erskine,  is  still  also,  as  formerly,  a  Keith,  which,  in  the  dr- 
cumstancesy  and  in  the  total  absence,  as  yet  known,  of  any  previous 
marriage,  or  opposing  fact,  must  be  inevitably  presumed  to  bo  her 
maiden  surname.     The  worthy  gentleman,  as  repeatedly,  has  been 
here  misled  by  his  venerated  oracles,  the  "  Peerage  writers,"'— although 
(according  to  his  summary  practice)  without  condescending  to  acknow- 
ledge the  valuable  information  he  thought  he  had  obtained  from  them. 
Doubt  of  Mr.      In  regard  to  the  Lennox  or  **  Levenax"  succession  in  the  15th  century, 
Sinclair,  as  to  j  ^ji^^^  ju  ^  former  performance,  to  a  service  in  the  year  1507,  on 

ine  service  of  '  — .*•»  ^-r^** 

Mathew  Earl  of  the  part  of  Mathew  Stewart  Earl  of  Lennox,  to  Duncan  de  Levenax 

Lennox,  to  Earl  of  Levenax,  (executed  in  1425,)  his  female  ancestor.*  Mr  Sincliur, 
Len^  ^  ^^  however,  thinks  it  may  not  have  been  to  the  latter,  but  to  John  Earl  of 
1507.   '  Lennox,  Mathew's  father,  who  died  in  1405.*    He  even  here,  goes  a 

step  further,  than  before ;  for  he  advances  this  opinion,  not  as  usual,  un- 
der the  Mgis  and  protection  of  the  "  Peerage  writers,"  but  merely, 
alas !  upon  his  own  hypothesis,  and  speculation.    In  such  emei^ney, 

« 

»  See  Chap.  V.  sect.  II.  pp.  43-4,  et  teq. 

■  Regist.  Dar.  11.  p.  50,  No.  150. 
Mr.  Sinclair  '  This  is  evident  from  the  following  excerpt  out  of  Wood's  Douglas's  Peerage, 

misled  again  l>y  under  the  head  of  Erskine  Earl  of  Marr,  published  Edinburgh  I8I3,  toI.  II.  p. 
his  treacherous  208.  ••  Ho"  (Sir  Robert  Erskine,  who  is  stated  to  have  died  in  1386,)  "  married— 
Pew*  TwriU  »««ondly,  ChrisUan,  daughter  of  Sir  John  Menteth,  relict  of  Sir  Edward  Keith," 
erf."  "    without  reference  to  any  authority  for  the  facts  1  deny,  and  that  are  unfounded. 

«  See  "  Additional  Remarks  upon  the  Question  of  the  Lennox,  or  Ruky  Re- 
presentation," p.  46. 

•  DisserUtion,  p.  108. 


APPENDIX.  1041 

tho  far  better,  and  obvions  course,  seemingly,  would  have  been  to  hare  Eten  ttni  mor« 
inyestigated  the  record,  that  I  explicitly  referred  to,  in  this  instance,  for  uoteiitble,  and 
my  position,  namely  the  Acta  DominorumConeiHi^YoL  xix.^  in  her  Majes- 1^.  t^^J^ority 
ty'i  General  Register  House,  Edinburgh,  that  is  patent  to  all  the  world ;  I  expUdtly  re- 
— and  where  he  would  have  at  once  found  an  end  and  fuietug  to  his  doc-  ^^  ^• 
time,  in  the  express  intimation  there,  that  **  ye  breves''  for  such  ser- 
Tice  in  1607,  were  then  <<  tmpetrat  (obtained J  be  matho  erle  of  leye- 
nax,"  not  as  heir  to  the  above  Earl  John,  his  father,  as  he  supposes,  but 
literally,  *^heje  dteetn  of,"  and  necessarily,  as  heir  to,  the  very  **  urn- 
quhile  "  nuKCAini  erle  ofknenax  **  in  question,— -just  as  I  contended. 

Indeed,  if  ICr.  Sinclair  had  been  a  lawyer,  or  thought  a  little,  he  FutQity  of  hit 
would  have  seen  the  futility,  and  irrelevancy  of  a  service  to  Earl  J'^^^*®"  ^  ^J 
John  in  the  emergency,  who  had  not  completed  his  title  to  the  Len-  ^^^  * 
BOX  succession,*— the  material  object  in  view  ;  for  his  former,  only 
service,  in  1473,*  to  this  Earl  Duncan,  in  the  principal  messuage 
and  superiority  of  the  Earldom  of  Lennox,  together  with  his  portion 
of  the  lands,  had  been  absolutely  easeed  and  annuUed  by  letters  of  James 
in.  in  1475,  at  the  suit  of  another  co-heir.*    In  order,  therefore,  (after 
an  antecedent  compromise,  as  is  notorious,  with  the  latter,)  properly  to 
vest  such  important  subjects,  identified  with  the  dignity,  and  higher 
s^gnorial  rights^  in  Earl  Mathew,  it  was  indispensable,  as  he  did,  to 
connect  himself  in  his  service  in  1507,  with  the  Uui  indisputable 
feudal  possessor  of  the  same,  as  well  as  of  the  entire  Lennox  Earldom, 
~^no  other  than  Earl  Duncan, — according  to  the  form  that  even  now  ob- 
tains in  parallel  cases  of  ordinary  succession.* 

Fully  aware  of  the  necessity,  in  illustrating  and  ascertaining  all  Scot-  ^h  oogeot  rea- 
tishpointsof  antiquity,  of  adopting  Lord  Hailes's  rigid  tests,  andmethod,  J!^^n°'\**"^" 
— so  indispensably  adapted  to  our  verypeeuliar  situation,  and  of  which,  the  Sinclair's  luco- 
longer  I  live,  I  descry  the  essential  benefits,  of  pointedly  adducing  the  brallom. 
best,  and  most  satisfactory  authorities  aitainabky  for  ev«ry  statement 
and  conclusion,  and  of  disregarding  and  rejecting  what  is  secondary 
and  trivial, — ^besides  proceeding  here  in  a  regular  and  precise  manner, 
I  have  been  thus,  in  principle,  led  to  notice  Mr.  Sinclair's  lucubrations;' 

^  See  my  performance,  «/  gyp.  p.  48.  '  Deceased. 

*  That  likewise  depended,  in  part,  npon  arrangements  with  the  other  female 
CO  heirs, — there  bein^;,  as  might  be  expected,  strife  and  contention  between  them, 
— that  wore  still  transacting  at  the  close  of  Earl  John's  life. 

*  In  the  Montrose  Charter-chest. 

*  The  original  is  the  Haldane  of  Gleneagle's  Charter-chest,  and,  together  with 
the  prerious  service  mentioned  in  1473,  is  specially  alladed  to  in  the  late  Lennox 
and  Rusky  controversy. 

*  Earl  Mathew,  who  was  prudently  bent,  every  way,  on  establishing  his  right, 
subseqaently,  on  the  25th  of  January  1511,  obtained  an  ample  royal  confirmation 
of  the  Comitaiuw  of  Lennox,  and  higher  feudal  prerogatives,  &c.  &c.  (Great 
Seal  Register.) 

'  What  tho  acute  Andrew  Stuart,  of  Douglas  cause  celebrity,  remarks,  as 
fellows,  nnder  tho  head  of  proof  of  pedigree,  may  equally  ftpply  to  Mr.  Sinclair's 

3u 


1042  APPENDIX. 

whefe,  independently  of  bis  legal  imperception,  such  advinible  eon* 
He  does  nol    duct  is  6^  no  mearu  discernible.*    The  former  is  the  tme  "  railway  "  to 
^opt  ^  ^ord      clear,  relevant^  and  speedy  induction  ;  baneful,  nay  destnicttye  oonse- 
(holl^  w  iJr^  quenees  thereto,  resulting,  if  we  go  off  "  the  line."    Nothing  certainly, 
commends  H)    18  easier,  or  less  operose,  than  to  write,  or  discuss,  after  Mr.  Sinclaii^a 
cNi  such  occa-    summary  fashion,  nearly  always  without  reference  to  any  authorities, 
ceeds  on^mera  ^'  P^per  Specification  of  dates  and  particulars ;  while  he  is  evidently 
secondary  au-  principally  guided,  in  fftct^  and  in  the  basis  of  his  Scottish  inferences, 
thorities,  which  jjy  «  Scottish  Peerages,"  and  id  genus  amne.    Yet  he,  neyertheless,  pre- 
erronT    '    °^  dicates,  nay  decides,  rather  amusingly,  in  abstruse  points^  like  a  lawyer 
or  eren  Chancellor,  with  an  esf  eathedra  air.    Qf  this,  a  curious  sample 
has  been  afforded  in  the  vejMta  queHio  of  the  Roxbuigh  and  Lothian 
precedency,  where,  though  obviously  wrong,  and  mistaken  in  a  moat 
weighty  particular,  (as  might  be  expected  from  his  mode  of  procedure) 
he  yet  there  makes  Charles  II.,  James  II.,  and  the  great  lawyers^'  and 
sage  advisers  of  government  in  the  17th  century,  signally  misled,  and 
ignoramuseB  ;  but  himself,  with  high  complacency,  and  wondrous  good 
lack,  alone  ckUr  voyani  and  right.'    Nay,  at  the  same  time,  besides  faU« 
ing  into  very  glaring  errors,  in  former  plain  points,  such  as  the  vitum^ 
ary  high  power  of  conveying  his  honours  to  heirs-female^  granted,  it 
seems,  by  (^ueen  Anne  to  the  Marquis  of  Douglas,  who  was  dead  at  (Jbe 
mom^n/,*  and  ruthlessly  heaping  treason  and  forfeiture  upon  the  loyal 
and  innocent  Earl  of  Forfar,  in  1715, '  who  only,  it  thus  happens^  craw- 
ly suffered,  and  died  for  his  country,  to  meet  sudi  a  return— ha  seema^ 
by  no  means,  accurate,  or  well-informed  in  palpable  more  important 
Mr.  Shiclafr's    Peerage  matters  in  modem  times.    He  represents  oAme  the  present 
▼ery  defective    Marchioness  of  Hastings,  qua  Baroness  Grey  of  Ruthyn,  as  having  a 
'^'^H^^t^'  ^^    olaim  to  the  ancient  Barony  of  Hastings,  as  direct  descendant  of  th« 
Barony,  a^fts  Lo^ds  Grey  of  Ruthyn,  to  whom  he,  moreover,y^%  gives  that  Ba- 
descent.  lony ;  and  which,  it  seem%  may  thus  be  united  with  her  noble  spouse^a 

hier  distinct  Barony  of  Hastings,  in  1461.'    This  all  turns  upon  an  old 

Andrew   Stu-    Peerage  and  genealogical  proofs,  that  **  no  Genealogical  Tree  u  desenring  of 

art  8  notion  as  credit,  or  can  he  considered  as  a  proof  of  facts,  without  specifyin^f,  and  referring  to 

to     Ti  ^°^ '°  the  proofs  from  which  the  Tree  is  made  out,**     *<  I,  in  common  with  many  othera, 

•the  present.        (^^  adds)  accustomed  to  legal  evidence,  and  correct  proofs,  have  the  misfortaoo 

of  not  being  completely  convinced  by  this  mode  (the  previoua  one)  of  stating  facU.** 

Sopp.  to  the  Gen.  Hist,  of  the  Stewarts,  &c.  with  Answers  toananonymoos  attack 

on  that  <*  History,"  &c  London  1799,  pp.  68,  n.  and  65. 

'  Yet  Bfr.  Sinclair  avows  himself  an  admirer  of  Lord  HaOes,  and  of  his  accurate 
mode  of  procedure,  and  inductions  in  rescuing  truth  from  fable,  fsee  DissertatioD» 
p.  140)  ;  but  practical  example,  in  the  case  of  us  poor  fallible  mortals,  is  always 
best,  and  better  than  mere  eulogium  of  others,  however  much  anthorixed,  if 
not  acted  upon. 

'  Chalmers,  the  author  of  Caledonia,  has  observed,  that  the  reign  of  Charles  11. 
like  that  of  Queen  Elisabeth,  in  England,  was  the  era  of  great  Scottish  lawyers. 
'  See  p.  1020,  n.  1.  *  See  p.  1018. 

*  See  p.  1022,  n.  ^  Dissertation,  139. 


APPENDIX.  1043 

exploded  notion.    The  MarchioneSB  in  question  happens  to  be  descend-  Trae  aoeoont  of 
ed  from  Eliiabeth  Hastings,  married  to  Roger  Lord  Grey  of  Ruthyn,  ^^  de!^ed*1n 
the  full  sister  of  John  Lord  Hastings,  son  and  heir  of  John  Lord  Hast- 1341 . 
ings,  ocHnpetitor  for  the  crown  of  Scotland  in  1291-2,  disponee  in  the 
half  of  the  Earldom  of  Meneteth  in  Scotland  in  1906,  and  elder  brother 
of  Sir  £dmnnd  de  Hastings,  00-paroener  of  the  same  Earidom,  in  right 
of  his  wife,  who  have  both  been  sufl&dently  adverted  toJ    But  al- 
though the  line  of  John  Lord  Hastings,  the  Jon,  failed  in  the  reign  of  The  half-blood 
Richard  II.,  innumerable  heirs  exist  descended  from  Hugh  de  Hastings,  |,°^^§^^d  hi 
his  younger  half  brother,  (the  competitor  having  been  twice  married),  i),^  defcent  of 
in  whom, — and  not  in  the  Marchioness,  as  would  follow  from  Mr.  Sin-  hcntmnt  m  in 
clair,--«xistB  the  true  exdusire  right  to  the  dignity.    If  he  had  made  5^ V^***  ^ 
but  ordinary  investigation,  he  would  have  found  that  it  was  decided  as 
£ur  back  as  the  1st  of  February  1640,  in  the  very  case  of  this  Barony 
of  Hastings,  on  the  claim  of  Charles  Longvile,  Esq.  (as  then  heir  of 
line  of  the  said  Elizabeth  Hastings,  through  the  Lords  Grey  of  Ruthyn, 
&c.)  that  in  England  the  doctrine  of  ^|XMjeMto/reUm,"  which  makes  a 
fidi  sister,  like  Elizabeth,  his  ancestrix,  and  her  descendants,  the  heir  in 
lands,  before  a  Aa(f  brother  and  his  descendants,  doet  not^  in  such  circum* 
stances^  and  inevitably  in  the  Hasting's  case^  which  we  are  considering, 
tipplp  to  hanouTB,***    Hence  it  was,  accordingly,  resolved  by  the  Lords,  Th«  youngett 
so  recently  as  last  year,  on  the  daim  of  Sir  Jacob  Astley,  Baronet,  and  ®**?*'^  d  to*he 
Henry  L.  S.  Styleman  Le  Strange,  Esq.  in  usual  form,  that  this  Barony  preceding  an- 
of  Hastings  was  in  abbeyance  between  them,  as  direct  descendants,  with  cient  Barony  of 
Mrs.  Browne  of  Elsing,  the  MsH  co-heir  of  all  ("  who  had  declined  to  ^^^^^  ^^JJ; 
appear  as  claimant,"')  of  the  said  Hugh,  younger  son  of  the  competitor,  of  sammons.— 
and  half  brother  of  John  Lord  Hastings,  and  Elizabeth,  his  full  sis-  and  descendible 
ter,  who  have  been  mentioned;  which  her  Majesty,  therefore,  has*®'*®*"«*'"^'**- 
terminated  in  favour  of  Sir  Jacob  Astley,  Baronet,  now  Lord  Hast- 
ings.   What  is  singular,  although  the  Baronet  happens  only  to  be  Difference  be- 
the  youngest  co-heir,*  he  has  yet  thus  been  preferred  by  a  power  in  the  tween  our  Uw, 
crown, — occasionally  in  the  same  manner  exercised  in  England, — that  ^^  y^^^^   °^' 
was  fairly  unrecognised  in  Scotland  in  such  a  case ;  and,  independently 
of  objections  that  have  been  urged  against  it,  shewing  how  much 
greater  the  royal  prerogative  in  honours,  sometimes  is  in  the  sister  king- 
dom, than  with  us.    I  need  hardly  add,  that  the  Mest  co-heir  or  co- 
heiress alone,  in  every  instance,  at  once  succeeds,  mjurii^  to  a  Scottisli 

*  See  pp.  990-1,  H  aeq. 

'  **  The  Judges  (of  the  above  date,  who  had  been  contalted)  delivered  their 
opinioBt "  onanimoosly,  **  that  there  cannot  be  a  possesdo  fratris  in  point  ofkon» 
vur  :"  and  this  in  answer  to  the  qaestion*  *<  whether  a  possessio  fratrii  can  be  upon 
a  barony  by  writ  ?"    Lords*  Journals. 

'  Minutes  of  Evidence  in  the  case. 

*  Younger  still,  tban  Henry  Le  Strange  Styleman  Le  Strange,  Esq.  who  was 
the  cider  of  thfir  common  stock,  though  again,  only  (he  next  afltr  that  of  Mrs, 
Xkowne,  the  Ms$i  of  all,  as  stated. 


1044  APPENDIX. 

The  eldett  co- dignity,  simply  descendible  to  heirs  female,  or  general,  howeTernumer-' 
heir  i«  preferred  ^,jg  ^y^^  other  oo-parceners  may  be, — among  whom  the  lands  wonld  di- 
alone,  'in''the  ^^^^>  ^^^  ^^^^  ^^®  exception  still,  of  the  chief  messuage  and  superiority, 
cue  of  efery  as  apr<rdptittm,  in  favour  of  the  former.    Nay,  it  is  curious  that  Edward 
diSr  to***h^?w- ^^^*  **^®  ^^^^  of  October  1339,  in  the  case  of  the  Earldom  of  Pembroke, 
femmie,  thejus^^^  ^^^  maturely  admitted  the  justice  of  our  rule.    In  the  patent,  or 
tice  of  which  royal  recognition  then,  of  the  dignity,  which  was  a  Palatinate,  in  fa- 
P*"*®***^®  ""?     ^^^'  ^^  Laurence  de  Hastings,  the  grandson  and  heir  of  John  Hastings, 
and  advisedly   the  competitor,  through  Isabella  de  Valence,  his  wife,  eldest  sister^and 
recognised  by  co-heiress  of  the  celebrated  Aymer  de  Valence,  Earl  of  Pembroke,  the 
^JJ*"^  ^^h'  •"  ^^°^  *®*®  forth  this  fact,  namely,  the  descent  of  Laurence  ** ex  ipsiaa 
stance  of  the   -^^^™^  *  sorore  seniore,"  and  next  pointedly  adds,  *^  et  m'c,  peritarum 
Earldom  of      assertione,  quo9  super  hoc  consulimusy  sibi  debetur  prerogativa  fwmnU  et 
Pembroke.        honoris/*  of  Earl  of  Pembroke  ;  wherefore,  and  upon  this  special  ground, 
as  **  causam  habensy*  he  confirms  Laurence  in  the  same,  and  that  he 
**  assumat  et  habeat  nomen  comitis  Penbrochie."    This  gnmt,  which 
however  contains  no  mention  of  heirs,  but  further  confirms  the  former 
privilege  of  a  Palatinate  over  the  lands,  was  adduced  in  the  Hasting'a 
claim.'    The  remaining  younger  sister,  and  Valence,  or  Pembroke  co- 
heiress, with  Isabella,  was  Johanna,  who  married  the  celebrated  Sir 
John  Comyn  of  Badenagh,  (the  younger  heir-male  and  representative  of 
English  connee-  William  Comyn,  who  married  Isabella  Comyn,  the  elder  representa- 
Irreat  ScotHsh   *'^®  ^^  ***®  original  Earls  of  Meneteth,')  by  whom  she  had  again,  two 
Family  of  Co-  daughters,  and  co-heiresses  ;  first,  Johanna*  the  Mesty  the  wife  of  David 
myn,  with  their  de  Strabogie,  the  forfeited  Scottish  Earl  of  Athol,  (who^  in  revenge  for 
wpreUnuTio^^^^  ^^^  desertion  of  his  sister,  by  the  hot-headed  Edward  Bruce,  «  King  of 
Ireland,''  brother  of  Robert  Bruce,  became  an  English  partisan  ;)  and 
in  consequence  of  which  alliance,  the  EarPs  family  and  descendants 
were  the  elder  heirs  of  line  of  the  Comyns,  besides  de  Valence  co-heirs  ; 
and,  secondly,  Elizabeth,*  who  was  married,  as  is  notorious,  to  Richard 

*  Aymer.  ^ 

*  See  Minutes  of  Eridence  in  that  case,  in  1840,  pp.  63-4,  from  whence  also 
most  of  the  preceding  relatife  facts  and  circnmstances  are  taken. 

*  See  p.  995-6. 

*  Thus  called  Johanna  again,  after  her  mother,  in  the  same  way,  as,  1  coneeife, 
Isabella  Comyn,  formerly  alluded  to,  after  her  mother  Isabella  Counteu  of  Mene- 
teth.    (See  p.  996.) 

'  These  facts  can  be  fully  established,  in  the  main,  inter  alia,  by  an  I$tqmaUio 
fo$t  mortem  in  1324,  (see  Min.  of  Evid.  ut  aup,  pp  347-8,)  by  which  these  noUe 
female  co-parceners  are  found  to  be  heirs  of  Aymer  de  Valence,  Earl  of  Pembroke, 
Superior  accn-  to  his  property  of  Tregayr  in  Wales,  and  where  the  relationship  and  deseent,  as 
t*?  ^f^E^^r^h  '^^^*  "^  stated.  IsabelU,  the  wife  of  John  de  Hastings,  is  here  also  styled  the 
retours  for  eldest  sister,  while  it  is  added,  that  Johanna,  the  wife  of  Athole,  (her  mother  ha?- 
'*  inqmeitionet  ing  deceased)  had  attained  the  age  of  26,  and  Eliiabeth,  her  younger  sister,  thai 
poaimcrtemt*)   of  20.     1  may  observe,  by  the  way,  how  much  more  carefbl  the  English  prac- 

^••k^*^"^*^*^       tice  was  than  ours,  in  thus  specifying  the  ages  of  such  co-parcencrs,  which  almost 
wita  ours.  ...  .  ...... 

never  obtains  upon  the  same  occasion,  m  our  M  inquisilioos  or  retoars,  though  a 


APPENDIX.  1045 

Talbot  of  Goderich  Castle,  ancestor  of  the  noble  family  of  Shrewsbury. 
Though  evidently  but  the  younger  co-heirs  in  question,  in  yirtue  of 
this  marriage,  owing  to  whatever  specialty  and  intervention,  they 
took  the  title  of  "  Lords  Comyn  of  Badenagh," — ^the  Comyns  having 
also  80  figured  in  the  sister  kingdom.^    Combining  the  marriage  of  Sir 
Edmund  de  Hastings,  younger  brother  of  John,  the  Scottish  competi- 
tor, with  the  preceding  Isabella  Comyn,  this  distinguished  family  of  There  was  a 
Hastings,  (Lords  of  Abergavenny,)  were  hence  much  connected  with  comiderible 
the  Comyns,  the  highest,  and  most  powerful  Scottish  house  at  the  tim&.  t^^en  the°ffreat 
Indeed,  as  I  can  besides  fully  prove,  similar  mutual  alliances  obtained,  families  of  Eng- 
more  or  less,  among  several  of  the  great  fEunilies  of  England  and  Scot- 1"»^  ."d  Scot- 
land, during  the  reign  of  Edward  I. — ^who  encouraged  them,  out  of  ftjratu^    and^ 
wise  policy — ^as  well  as  before  ;  but  they  appear  to  have  been  entirely  time  of  Edward 
subsequently  quashed  by  the  hatred,  and  heUa  intemeciruiy  of  which l**.^^ich  his 
that  monarch,  at  the  same  time,  hurried  on  by  his  reckless  ambition,  Sndesii™dly   ' 
was  the  mainspring,  between  the  two  kingdoms.  terminated. 

The  antecedent  obvious  errors,  and  crudities,  of  Mr.  Sinclidr,  how-  closing  remarks 
ever, — including  certain  others,  &c.  plainly  result,  with  misapprehend  on  Mr.  Sinclair's 
sions,  chiefly  legal,  from  undue  haste  in  compiling  and  concocting  his  "l>w»«rtation* 

matter  often,  of  considerable  importance.  This  has  been  owing,  in  part,  to  the 
principle,  in  law,  of  female  co-parceners  succeeding  equally,  even  without  a  pra^ 
cipnum,  formerly  with  us,  as  now,  though  the  eldest  was  allowed  to  choose  the 
principal  messuage,  under  the  burden,  however,  of  a  recompense  or  recompensatioa 
for  it,  to  the  others. 

'  The  last  fullest  notice  of  the  principal  male  Comyn  line  of  Badenagh,  the  most  Greatness  of  the^ 
powerful  family  in  Scotland  before  the  Douglases,   and  which  threw  off  so  many  Family  of  Co- 
distinguished  cadeU,  including  the  Comyns,  Earls  of  Meneteth,  the  Comyns,  Earls  JJjfl^Ji^^g^**" 
of  Buchan,  (afterwards  represented  by  the  English  Beaumonts,  who  took  the  title,  ^n),   q^^  ^q. 
and  (Vom  whom  Henry  IV.  sprung,)  the  Comyns,  Barons  of  Kilbryde,  who  had  also  thentic    notice- 
large  estates  in  England,  &c.  &c.  may  be  supplied  by  a  mandate  or  order  of  Ed-  o^  the  direct 
ward  II.  in  1315,  wherein,  upon  a  narrative  of  the  faithful  adherence  of  **  bone  J^jf^^J^^^the" 
memorie  Johannes  Comyn,  filius  Johannis  Comyn  dudum  defuncti,"  to  himself,  eldest  or  Bade- 
and  Edward  I.,  and  that  his  Scottish  lands  had  been  laid  waste  and  destroyed  by  naghline,  at  the 
the  "  r^beh"  in  Scotland,  he  in  consequence  extends  the  possession  of  certain  Eng-  ^''^^  of  their, 
lish  manors,  granted  to  the  former,   **qttamdiu  nobis  placuerit, — Margartte  qug    ^^°     * 
fuit  uxor  prefati  Johannis — in  suUdium  sustentationis  me,  et  Admorifilii  eorundem 
Johannis,  et  Margarete."     (See  **Rniulorum  OriginaHHm  in  Curia  Seuccarii  Ab" 
breviatio,"  vol.  I.  pp.  209-10.)   Both  Margaret  and  Admorus,  (evidently  Aymer{ 
after  Aymcr  de  Valence,  his  near  kinsman,)  are  new  characters  ;  while,  in  the- 
latter,  who  must  have  died  young,  also  expired  the  last  gleam  of  the  direct,   and 
once  redoubtable  male  Badcnagh   line,  whose  alliance  was  eagerly  sought  by 
tbo  first  Scottish  and  English  Barons, — (see  Winton,  Macpherson's  Edit.  vol.  M% 
pp.  54-5-6- 7,  60-1,)  and  who  at  length  paled  before  the  star  of  Bruce,  that  yet 
rose  somewhat  inauspiciously,  dimmed  by  their  blood.     They  thus  came  to  be 
wholly  stript  of  their  ample  baronial  Scottish  possessions,  and  were  at  length 
obliged  in  1315,  the  year  after  the  battle  of  Bannockburn,  as  refugees  in  a  foreign 
land,  to  take  a  charitable  but  uncertain  bequest,  *'  in  subsidium  tuiteniationis,**  &c. 


1046  APPENDIX. 

Difleertation.'  Of  conne,  omissionSy  or  misrepreBentations  by  him,  of 
material  facts  and  circuinstanoes,  while  what  seem  fayonrable  to  him  are 
mentioned,  either  proceed  from  these  causes,  and  the  want  of  proper  and 
thorough  investigation,  or  zeal  and  ardour  at  the  moment,  in  giving  vent 
to  his  thoughts,  which  have  partly  dazzled  and  blinded  him.  The 
latter  tendencies,  nevertheless,  including  **  amateurship,"  are  good,  and 
most  desirable  in  every  pursuit,  and  ought  certainly  to  be  enoouraged, 
instead  of  being  checked,  or  repressed.  Owing  to  his  not  being  a 
lawyer,  I  had  hitherto  desisted  from  noticing  Mr.  Sinclair's  perfor- 
mance ;  and  have  only  done  so  from  the  stem  unavoidable  necessity 
that  impels  me  in  these  matters,  of  being  little  scrupulous  in  correcting 
error,  so  far  as  I  may  be  able,  and  removing  the  obstacles  and  impedi- 
ments in  the  way  of  a  pursuit,  where  they,  unhappily,  so  greaify 
abound  ;  and  that  never  can  be  properly  elucidated  and  advanced,  with- 
out such  indispensable  course.  I  have  little  doubt,  however,  that  Mr. 
Sinclair,  with  a  little  poring  into  our  legal  Institutional  writers^  if  he 
will  condescend  to  the  task,  and,  especially,  occasional  visits  to  the  chil- 
ling atmosphere  of  her  Biagesty's  Greneral  Register  House,  by  a  fla- 
grant antithesis,  and  apparent  anomaly,  in  the  hot-bed  of  due  culture, 
and  antiquarian  maturity,  may  produce  better,  choicer,  and  more  ripen- 
ed fruits ;  that  will  be  still  more  acceptable  to  the  Peers  of  Scotland, 
whom  he  invokes  in  his  dedication,  and  justly  respects.  Nay,  they 
may  not  even  appear  to  inferior  advantage  among  those  ho  has  curious- 
ly culled  from  other  fields,  including  the  striking  and  diversified  topics 
of  "  exhausted — longevity,"  **  personal  security,"  "  massacre  at  Glen- 
coe,"  ^'  Hymen," — ^*  shoeing  a  horse  all  round,"'  (loAeretn,  I  must  with 
shame  confess  my  full  deficiency,  and  willingly  yield  the  palm  to  him,) 
— and  so  forth,  &c.;  for  which  interesting  topics,  I  must  refer  my  read- 
ers to  his  performance. 

'  They  are,  at  the  tame  time,  intenpertfld  with  lone  better,  and  jaster  rematlu 
«pon  tubtjectt  immediately ybreiyn  to  the  present,  which,  this  circamstance,  as  well 
as  the  limits  of  my  work,  may  predude  me  from  farther  canvassing ;  bat  still  la- 
bouring under  the  sad  want  of  proper,  articulate  support  and  corroboration  by  proof, 
in  the  way  I  conceiTe  indispensable.  On  this  account,  it  would  be  also  both  inTi- 
dious,  and  an  ungrateful  task  to  expatiate  more  upon  what  may  strike  me  as  objeo- 
ttonable  within  the  nearer  scope  of  the  discussion ;  while  what  has  been  premised 
may  chiefly  suffice  for  my  purpose. 

'  See  Dissertation,  Contentt,  pp.  ix.  ai.  xii.,  and  p.  6i. 


APPENDIX.  1047 


No.  vm. 

FVBXHKB  PBOOFy  THAT,  BY  THB   EVOLISB   LAW,  THX   RBSOLUTION   OF  THB 

L0BD6  Uf  17d3,  nr  txbics  of  thb  Bblhavbn  fatsnt,  ik  1675,  would 

HATS  BBBN  DIFFBBXNT,  AND  HAD  OIYBlf  THB  BxLHATBM  HONOUBS  TO  THB 
BLDKB,  niBTXAD  OF  THB  TOUMOBB  HBIR-MALB,  WHO  WAS  HOWBYEB  JUST- 
LY FBBFBRHBD,  IH  OOHFOSMITT  ALONB,  WITH  THB  SoOTIISH  LaW. 

(See  pp,  836-7,  845-6.) 

This  will  precisely  transpire  from  the  following  case,  and  opinion 
by  eminent  English  counsel,*  embodying,  essentially,  the  iacts  in  the 
Belhaven  case  in  17d3. 

Case, — **  A.  is  ennobled  under  a  patent  to  him,  and  the  heirs-male  of 
the  body ;  whom  failing,  to  his  heirs^male  whatsoever.  He  is  succeeded 
by  his  son,  and  grandson,  in  which  last  his  direct  male  issue  failed. 
But  A.  had  two  brothers,  B.  and  C, — ^B.  the  eldesty  and  C.  the 
youngest,  who  both  left  male  issue.  Query,  on  the  failure  of  the  direct 
male  line  of  A.,  the  ennobled,  whether,  by  the  law  of  England,  would  the 
heirs-male  of  the  body  of  B.  or  of  C.  be  preferred  1  Would  it  not  be  of 
B.  ?  But,  according  to  the  Scottish,  it  is  the  heir-male  of  the  body  of 
G. ;  and  so  it  has  been  found." 

Opinion, — **It  (the  final  limitation  in  question  J  would  take  effect  in 
favour  of  the  issue  of  the  ^der  brother.' 


9> 


ADDENDA. 

Pp,  589-90, 620,  and  936. — ^I  have  here  observed,  that  Lord  Erskine's 
peculiar  doctrine  of  a  Peerage,  once  attaching  to  the  blood  of  an  indiyi- 
dnal,  becoming  thereby  indefeasible  and  irreYocable,  in  favour  of  a  party 
so  ennobled,  and  his  heirs,  excepting  through  forfeiture,  was  rather  too 
poetical,  and  far-stretched ;  besides,  not  always  borne  out  in  England. 
In  further  proof  of  this,  I  may  appeal  to  the  following  instances,  evident- 
ly militating  against  such  an  idea,  that  are  adduced  in  the  Devon  Re- 
port, repeatedly  referred  to. 

*  I  have  not  an  opportunity,  at  present,  to  obtain  conaont  to  add  their  names— 
they  being  nnch  employed  in  forensic  dataes, — bot  hare  little  donbt,  that,  if  ne- 
cessary, they  would  not  be  disinclined  to  grant  me  permission ;  especially,  as  I 
rather  apprehend  the  matter  is  plain  enough  to  English  lawyers. 


t048  ADDEKDiu 

Authorities  ^  Edward,  eldest  son  of  Edmund  of  Langley,  Duke  of  York, 

proTing  that  a  then  (25th  Februaiy  ld90)  made  Earl  of  Rutland,  to  hold  and  enjoj 
gta^dSght  not  ^^^  <i>gnity,  *  during  the  lifetime  of  the  dtihe  hie  father.* "     « In  the  15th 
whoUj  riTot  in  Edward  lY.  1475,  Sir  Edward  Grey  was  created  Lord  L'lsle,  to  hia& 
the  blood,  ac-  and  the  heirs  of  his  body  by  Elizabeth  his  wife.  Lords  of  the  manor  of 
Enkine    and    •^*'i^^<>'^^'''^^>'' ('v^l^ch  last  possession  also  has  been  held,  as  illustrat- 
others,  hot  6«  od  by  another  similar  grants  to  be  a  necessary  condition).^    In  the  De- 
flaetuating  and  yon  chum,  likewise,  Sir  Harris  Nicolas  referred  to  the  case  of  the  Earl- 
me°rolyr°l2  its  ^^°*  ®^  Desmond,  which  was  « to  Sir  William  Fielding^  to  take  ^eet  on  the 
descent,  like    death  of  Lord  Preston,  if  Lord  Preston  died  without  heirs  male  of  his  body  /*' 
ours  occasion-  and  he  further  noticed  the  presumed  alternative  ai^ed  upon,  in  haneo^ 
our'patenu!'     ^^  Sergeant  Danby,  in  the  reign  of  Henry  VI. — ^**  of  a  man  being  created 
an  Earl  for  the  term  of  the  life  of  another,  ^  d  terme  d^ outer  vie^  "  from 
whence  he  inferred,  *^  that  such  an  estate  in  a  dignity  was  held  to  be 
legal.'^    In  the  above  precedents,  as  with  us,  occasionally,  honours  aro 
proved,  on  the  other  hand,  to  be  vaciUating,  and  though  duly  consti- 
tuted, to  be  by  no  means  certain,  or  fixed  in  their  descent,  while  ac- 
tual denudation  is  implied  ;  and  it  might  so  happen,  contrary  to  what 
Lord  Erskine  inculcated,  that  the  individual  who  was  a  Peer  to-day, 
and  accordingly  recognised  as  such,  would  cease  to  be  so,  and  retrograde 
into  a  commoner  to-morrow,  or  indeed,  at  any  moment. 
Another  origi-      Pp.  983-4. — There  is  au  original  charter  of  David  II.  in  the  Marr 
thi  Fa**1?  ^^'f  «^^*^'-«^cs*>  ^'^  ^'^  ^^  -^.pril  1357-8,  wherein  he  states  that  he  had 
Logyjin  Scot-  iii^<^ff<^d  ** qu/ondam  Johannem  de  loghi"  in  the  lands  of  Strongartnay, 
land,  with  a  eo-  in  Perthshire ;  but  being  subsequently  apprized  by  his  council,  that 
D't'dlfl^"  h    ^^  ***^®''  Robert  Bruce  had  formerly   granted  tlie  latter,  which 
husband  ofMar-  ^^  ^^^^  escheated  to  the  crown,  "  ex  forisfactione  quondam  Johannie 
garet  de  Logy,  de  loghy  militis,  patris  ejusdem  quondam  Johannis  de  loghi^* — *^  quon- 
n  ''^V^h'  **^**  ^^*™  Johanni  de  Meneteth  militi — et  Elene  de  Marr  sponse  ejusdem, 
h^'bandTduring^^P^  ^^»'  conjunctim,  et  heredibus  eorundem,"  he  now,  therefore, 
their  marriage,  recals  his  grant  alluded  to,  and  restores  the  lands  in  question  to  Sir 
John  de  Meneteth,  the  son  of  these  parties,  **  consanguineo  nostro ; 
from  whom  they  had  been  thus  taken,  **  per  suggestionem  quorundeml 
Holding  that  the  deceased  John  de  Loghi,  son  of  the  attainted  John, 
was  of  Logic,  which  also  lay  in  Perthshire,  as  is  not  improbable, 
and  hence  presumptively,  the  husband  of  Maigarct  Logic,  Queen  of 
Scotland,  she  necessarily  must  have  been  at  least  a  widow  in  1357-8^ 
the  date  of  the  above  charter,  that  is,  some  years  before  she  married 
David  II.,  (about  1363)  ;  whose  prior  benefaction,  thus  obliged  to  be 
recalled  on  l^;al  grounds,  in  favour  of  her  husband,  is  curious.    From 
thence  it  likewise  additionally  follows,  that  she  could  not  have  been  very 

'  See  Cruise  on  Dig.  p.  136, — as  to  the  Barony  of  Lisle  in  the  reign  of  Hen.  VL 

'  For  these  instances,  &c  see  Report  referred  to,  p.  90,  and  Appendii,  pp. 
Ixiii-if.  and  n^e  to  the  last. 

'  Here,  though  married,  agreeably  (o  our  custom,  Elen  (through  whom  the 
Erskines  succeeded  to  the  Earldom  of  Marr)  still  retains  her  maiden  appeUatioo. 

*  A  convenient  kingly  mode  of  excuse. 


I 


■1^ 


ADDENDA.  1049 

youngy  B8  is  transmitted  by  some,  at  the  epoch  of  her  second  marriage. 
The  fiather  of  her  conceived  first  husband  was  evidently  the  Sir  John 
de  Logy,  who,  according  to  Fordnn^  in  1320,  (in  the  reign  of  Robert 
Bruce,)  suffered  capitally,  as  a  traitor,  for  his  concern  in  the  SouHs,  or 
Countess  of  Strathem's  conspiracy  ;*  whose  husband's  estates  besides 
were  comprised  in  Perthshire. 

Pp.  d89-90.— The  Lords  Committees,  in  their  first  Report  on  the  Additional  Eng- 
Dignity  of  the  Peerage,  (p.  407,)  observe,  that  "  the  old  Earls  of  Pem-  f„rthir*  wtho. 
broke  were  frequently  called  Earls  of  Striguily  from  the  cattle  of  Stri-  riiing  the  ityle 
guily  their  ordinary  residence;  and  the  Earls  of  Derby  were  some- of  Earl  of  Dun- 
times  called  Earls  of  Tutbutyy  from  Tutbury  CastlCy  their  ordinary  resi-  ^  m]^*^!  ^^^* 
dence."  Here  then  are  additional  pointed  instances  of  such  peculiar  cus- 
tom, besides  those  of  Arundel  and  Gowran,  I  have  noticed  ; '  and  ao- 
oordingly,  as  I  have  observed,  the  Earls  of  Dunbar,  and  March,  natural- 
ly took  the  first  title  from  their  principal  and  usual  residence,  the 
Castle  of  Dunbar,  in  Lothian. 

P.  996. — Kirkintnlloch  was  possessed  by  the  principal,  or  Badenagh  Further  proof 
line  of  Comyn,  as  far  back  as  the  time  of  William  the  Lyon,  who  ^j.  ^^nija^'^ca- 
reigncd  from  1165,  to  1214,  during  whose  reign  there  is  an  absolute  con-  myn  of  Kirkin- 
veyance  by  "Willielmus  Cumin,"  their  ancestor,  of  the  lands  of  ^"Ho^^l*  ^d  Ma* 
Muchracht,  which  ''ego(WimelmusJ  dicebam  esse  de  Kerkentulacht;'  lUm  com^clf* 
(of  the  lattery  his  fief y)  to  the  See  of  Glasgow.'    There  is  further,  in  the  Badenagh,  the 
British  Museum,  an  original  Discharge  by  "  Willielmus  Comyn  Domi »-eldcr  brother  of 
fi^de  kirkintoloche;*  to  Sir  Hugh  de  Daliel,  Sheriff  of  Lanarkshire,  f^J^^^p^f^"^;^ 
upon  payment  of  a  certain  sum,  which  is  dated  at  his  residence  of  in  1291-2. 
**  Mauchan,**  in  that  county,  in  1289.    This  is  the  individual  mentioned 
in  the  above  page,  referred  to.    As  the  lands  of  Machan  came  to  be 
heritably  granted  by  Robert  Bruce,  the  dd  of  March  1315,  to  Walter 
Fitz-Gilbert,  the  ancestor  of  the  noble  family  of  Hamilton,  by  a  charter, 
still  extant,  which  states  that  they  had  belonged  to  **Sir  John  Comyny* 
evidently  of  Badenagh,*  who  was  then  forfeited,  these  several  cir- 
cumstances additionally  identify  the  preceding  William  Comyn  of 
Kirkintnlloch,  with  William  Comyn  of  Badenagh,  the  head  of  the 
Comyns  at  the  time,  by  whose  death,  without  issue,  as  shewn,' before  the 
3d  of  August  1291,  his  succession,— and  of  course  Mauchan, — undoubt- 
edly devolved  to  the  younger  Badenagh  male  line,  of  whom   Sir 
John  Comyn  was  representative  before  1315.  In  the  same  way,  again, 
there  is  a  charter  upon  record,  by  Robert  Bruce,  actually  of  the  ^  Bar- 
ony of  Kirkintolachy*  to  Maloom  Fleming,  which,  in  like  manner,  is 
stated  to  have  belonged  to  **  Sir  John  Comyn.**  *    The  three  garbs,  two 

'  Goodall's  Edit.  vol.  IL  p.  274.  He,  and  others,  were  then  **  eqoii  traeti,'* 
and  "  capite— puniti."  '  See  pp.  989-990. 

'  Original,  Chartulary  of  Glasgow,  vet.  f.  7.  formerly  penes  Bishop  Cameron. 

*  Original,  Hamilton  Charter-chest,  and  RrgisL  Rob.  I.  p.  H,  No.  72. 
'*  &Iaaehan  '*  and  **  Machan  *'  are  the  same. 

'  See  p.  995,  «/  tup,  *  Regiat.  Rob.  L  p.  15,  No.  80. 


1050  ADDENDA. 

Noted  arms  of  and  one,  have  long  been  the  noted  anna  of  the  Comyns.    One  garb 
tilth  ^M^wly  ^^y»'  ^  exhibited  on  the  shield  of  William  Comyn  Earl  of  Bueban, 
authority  for    ^ho  figured  in  1211,  and  for  a  period  afterwaids,  upended  to  his 
the  game.         original  grant,  (once  extant  at  the  Scottish  College  at  Paris,)  of  a  pound 
of  wax,  annually  to  be  burnt  at  the  tomb  of  Saint  Kentigem,  in  the 
Cathedral  of  Glasgow.'    As  is  well  known,  the  garb%  his  bearing,  (the 
aboTo  being  among  the  oldest  instances  of  arms  in  Scotland,)  became 
the  feudal  arms  of  the  Earldom  of  Buehan.  At  a  later  juncture,  the  prin- 
cipal line  of  Badenoch  strewed  the  field,  upon  which  the  gaibe  are  re- 
presented, with  cross  croaslets ;  as  firom  their  arms,  which  I  have  seen, 
both  after  the  middle  of  the  13th  century,  and  in  the  14th,  in  oonfdr- 
mity  to  a  not  infrequent  fashion  in  the  same  circumstance^  as  we  may 
presume,  from  their  having  distinguished  themselves  at  the  Cmsadea : 
which,  I  also  conceive,  were  the  chief  origin  of  armorial  insignia ^  audi 

^  Heraldry  sometimes  increased,  and  sometimes  lessened  sach  chaiges ;  a  re- 
markable example  of  which  last  practice  occurs  in  the  royal  arms  of  France,  tnb- 
sequently  composed  but  of  three  fleur-dolis,  instead  of  the  many  with  which  the 
field  was  formerly  decorated. 
Another  high        '  In  leaving  the  subject  of  the  Comyns,  I  may  further  add,  upon  the  authority 
alliance  of  the    ^f  ^he  Chronicle  of  Melrose,  that  this  truly  great  and  numerous  family,  in  the 
^^^'  person  of  John  Comyn,  before  the  middle  of  the  Idth  century,  had  nearly  also, 

come  to  represent,  and  inherit  the  possession*,  of  the  original  Earls  of  Angus.     It 
thence  transpires,  that  he  married  (Matilda*)  Countess  of  Angus  in  her  own  Hght, 
whereby  he  was  Earl  of  Angus,  and  by  whom  he  had  an  only  child,  Eari  Bataidmt. 
The   Umphra-  ^^^>  ^"^  ^^  himself  dying,  and  then  the  latter  (in  infancy),  the  widowed  Coob- 
Tilles,  Earls  of  tess  Matilda,  not  unmindful  of  her  rank,  like  her  contemporary,  Isabella  Coantess 
Angus.  Qf  Meneteth,   in  the  same  circumstances,  (see  p.  996)  remarried,  in  1243,  Sir 

Gilbert  Umfraville,  that  great  northern  chief,  sprang  from  a  kinsman  of  the  Coa- 
queror,  and  who  held  Redesdale  **per  Regaltm  potettaiem  ;**f  of  whom,  by  such  coo- 
neetion — ^were  the  UnfraTilles,  Earls  of  Angus,     This  additionally  illostratea  the 
Two  ancient     ■il>*°c^  then,  between  the  greater  Scottish  and  English  families.     In  an  old  loD 
confirmations  of  <>f  inrentory  of  charters  by  Alexander  II.  there  are  the  two  following :   *■  Carta 
the  Earldoms  of  WaUeri  Cwmyng  de  Cmmiaiu  de  Menteithe,  Carta  Patridi   Cmmyng  de  Graitlata 
Meoteith  and    jH^oHe."    The  first,  relatire  to  Walter  Camyn,  husband  of  the  above  Countes 
18th  centurr      iMhella,  who  figured  principally  before  the  middle   of  the  13th  centory,   u 
plain  enough  ;  but  the  second  is  not  so ;  for  no  Patrick  Earl  of  Athole*  in  that 
century,  is  yet  proved  to  hare  been  a  Comyn.     I  need  not  add,  that  both  grants 
or  confirmations  would  have  been  very  carious  and  instructivo  to  legal  anti- 
quaries, had  they  been  preserved. 

*   Her  Christian  name  is  aliunde  proved. 

f  See  Testa  de  Nevill,  p.  385.  Though  not  ennobled,  the  Comyns  of  Kflbrydo 
In  Lanarkshire,  were  a  distinguished  and  most  aflluent  family.  David  Conyn, 
their  ancestor,  is  proved  by  deeds  in  the  original  Chartulary  of  Glasgow,  to  have 
acquired  Kilbryde,  by  his  wife  Isabella  de  Valoniis,  an  heiress,  before  the  middle  of 
the  13th  century,  and  to  have  been  succeeded  by  William  Comyn  **  Domlnus  de 
Gillebrid,"  in  1261 .  The  subsequent  male  line  is  to  be  traced  down,  till  the  early 
part  of  the  14  th  century,  through  representatives,  who  had  acquired  by  alliancett 
and  otherwise,  the  Manor  of  Fakenham  in  Suffolk,  Neuham  in  Northumberland, 
the  Manor  of  Sankham  &c.  in  Middlesex,  and  Suffolk,  with  large  estates  besides, 


ADDENDA.  1051 

marks  and  distinctive  badges  being  incnmbent,  owing  to  the  vast 
military  assemblage  and  convocation,  under  different  chiefs  and  leaders, 
from  various  countries.  Nor  would  these,  on  their  return,  be  loath  to 
perpetuate  the  glorious  results  of  their  foreign,  though  fruitless  prowess^ 
in  tiie  above  fashion,  so  chivalrously  commemorative  of  it.  I  cannot  omit 
observing,  by  the  way,  what  a  fine  opportunity  there  was,  in  the  late  The  Ragman 
publication  of  the  Ragman  Bolls,  (in  129i-6,)  certainly  but  jejune.  Rolls  in  1291-6, 
and  meagre  too,  in  other  respects, — ^to  have  given,  through  the  addi-  by^the***Banna- 
tion  of  the  seals  of  the  Scottish  parties, — ^which  are,  or  were,  at  least  tyne  Club, 
lately  extant,  in  no  indifferent  condition,  together  with  a  few  more, 
easily  procurable,  in  the  early  part  of  next  century, — a  good  and  most 
interesting  specimen  of  pure  Scottish  heraldry,  at  a  juncture  when  arms 
were  becoming  fixed.  Seldom,  indeed,  have  we  such  a  document,  (that 
might  have  been  made  so  prolific  in  various  details,)  to  avail  our- 
selves of,  in  matters  of  Scottish  antiquity ;  and  while  there  are  neither 
any  notices  of  the  distinguished  subscribers,  their  characters,  political 
interests,  or  families,  &c. — ^so  elucidatory  and  important,  moreover,  in 
history, — ^there  are  evident  mistaJ^es  in  the  names  of  persons  and  places, 
that  oonld,  on  the  other  hand,  have  been  detected,  and  explained  by 
the  collation  and  scrutiny  of  those  versant  in  such  details.  Indeed 
I  have  the  same  remark,  more  or  less,  to  make  on  some  other  publi- 
cations of  the  kind. 

P.  841,  et  »eq. — In  respect  to  the  descent  of  honours  by  conquest,  the  Law  of  eon* 
ultimate  limitation  in  the  charter  of  the  dignity  of  Lord  Monymail,  &c  V^^*^  with  xu, 
the  10th  of  August  1627,  b  «  haeredibus  masculis"  of  Lord  Robert,  the  ^J^®"*  ^  ***'°" 
disponee,  **  gereralibus  vel  oonquestus"  &c.* 

Pp,  84-5,  8d3,  et  seq. — ^As  has  been  shewn,  the  remarkable  power  of  Instance  of 
nomination  to  honours,  upon  a  royal  r^;Tant,was  exercised  with  us,  from  P^J®'  of  nomi- 
1604^'  downwards ;  andas  might  be  expected,  we  findthe  same&cultyde-  oun  to  tubjecti, 
legated  in  France  by  the  monarch,  to  favoured  individuals,  in  the  same  exemplified 
century.    In  January  1638,  the  Duchi  Pairie  of  Aiguillon,  as  is  proved  ^^^  '^„^®  °/ 
by  the  constitution  given  verbatim  by  Anselme,'  was  bestowed  by  Aiguillon  in 
Louis  XY.  upon  Mary  de  Vignerot,  the  niece  of  Cardinal  Richelieu,  France,  in  1638. 
**  pour  enjouir  par  ladite  dame,  ses  heritiers  et  successeurs  tant  masles 
que  femelles,  tei*  qu*eUe  voudra  cAot«tr  perpctuellement,  et  k  tonjours," 
&&    And  what  is  farther  remarkable,  as  in  the  parallel  instance  of 
the  Barony  of  Rutherford,  in  1663,*  Duchess  Mary,  the  disponee,  is 

in  the  Coontiea  of  Hertford,  Eiiex,  and  Norfolk,  &c. — as  will  be  eaiily  seen  by 
|ierusal  of  the  English  records  for  the  time,  published  by  authority  of  Parliament. 
The  English  Hemgrares  were  female  descendants,  and  in  part  heirs,  on  the  fail- 
ure, apparently,  of  the  male-line.  The  above  further  exemplifies  the  mutual  con  • 
nection  of  the  Scottish  and  English  families  in  the  13th  century. 

'  Great  Seal  Register. 

'  See  patent  of  the  Barony  of  Hume  of  Berwick  in  that  year,  p.  84,  n.  4. 

"  Among  llio  other  authentic  "  Pieces  "  in  regard  to  the  Duchy  of  Aiguillon,  in 

Hut.  Geneal,  et  Chion.  dc  la  Maison  Rnyall  de  Francct  &c.  vol.  IV.  483  4. 

*  See  pp.  8D3-4. 


1052 


ADDENDA. 


Nomination 
here   imple- 
mented, as  in 
the   Scottish 
Rutherford  in- 
stance. 


Our  forms  be- 
sides, in  such 
grants,  borrow- 
ed from  France, 
further  go  to 
refute   Lord 
Mansfield. 


The  rcgrani  of 
the  Roxburghe 
honours  in  164(>, 
per  se  indefea- 
sible. 


Further  remarks 
as  to  the  pecu- 
liar nature  and 
limitations    of 


stated  by  the  above  authority,  to  have  died  the  7th  of  April  1675, 
**  apres  avoir  test^  en  faveur  de  Marie  Therese  de  Vignerot  sa  nieeOy  qui 
devint  duchesse  d'AiguiUon^  et  mourut  sans  avoir  ^t^  mari^  le  18  de- 
cembre  1704."  *  We  here,  as  in  other  instances,  trace  a  mutual  re- 
semblance between  our  practice,  and  that  of  France,  **  our  ancient 
Allies ; "  while  agiun,  as  with  us,  on  such  occasions,  l>y  the  preceding 
constituting  Aiguillon  grant  in  1638,  the  lands  and  "Seigneurie 
d'Aiguillon,  avec  les  terres  y  anex^,"  are  erected  into  the  Duche 
Pairie  in  question,'  the  dignity  being  carried  with  the  lands,  as  in 
many  Scottish  charters  of  both  subjects,  even  in  the  same  century, 
where  we  find  too  the  term  ereximu9y  or  erection,  thus  precisely  used. 

This  argues,  andsavours  of  the  far  later  continuance  than  imagined, of 
the  territorial  principle  in  honours, — ^which,  as  is  notorious,  still  pre- 
vails to  a  great  degree  in  France ;  and  over,  and  above,  exposes  and 
refutes  that  inconceivable,  and  ever  astounding  dictum  of  Lord  Man»« 
field,  so  often  alluded  to,  that  after  1214,  Scottish  Jionours  ceased  to 
retain  their  territorial  character,  and  became  thenceforward  entirely 
personal,  being  now  granted  after  the  present  form,  by  means  of  a 
modem  patent  by  themselves,  quite  distinct  from  the  *^  Comitatu***  and 
'^  Baronia*^  that  forsooth  had  nothing  to  do  with  them !  I  If  he  haA 
made  the  smallest  research,  especially  into  the  relevant  French  practice, 
joined  with  ours,  instead  of  the  foreign  English, — even  here  too,  but 
very  superficially  investigated  by  him, — he  would  indeed  have  been 
speedily  undeceived  in  such  follies.  James,  it  is  remarkable,  a  better 
historian  and  novelist  than  a  legal  antiquary,  in  his  late  interesting 
performance,  entitled  **  Life  and  Times ''  of  Louis  XIY.  calls  that  in 
the  Aiguillon  constitution  or  charter  referred  to,  *^  the  most  extraordi- 
nary clause  perhaps  that  ever  was  inserted  in  such  an  instrument.'*  * 
How  much  more  astonished  then  must  he  be  with  our  repeated  prac- 
tice to  the  same  efiect,  not  forgetting  the  notable  attempt  of  Lady 
Coupar,  about  1671>  under  its  shelter  and  authority.* 

Pp,  1011. — The  Earldom  of  Roxburghe,.&c.  though  not ^the  Barony 
of  Roxburghe — whose  limitation  is  unknown,  and  may  have  been  to 
heirs-male-general,  being  completely  taken  from  the  original  heirs  by 
the  regrant  in  1646,  upon  a  resignation,  could  not  be  affected  strictly 
in  law  by  any  supervenient  transaction.  This  obviously  renders  that 
of  the  ratification  by  Sir  Walter  Ker  of  Faudonside,  the  heir-male  in 
1663,  principally  in  reference  to  the 'estates  carried  with  the 
honours  in  the  charter,  immaterial,  and  as  the  result  of  private 
suggestion  merely,  at  the  most,  insufficient  to  counterbalance  the  main 
conclusion  I  have  drawn. 

Pp,  207-8. — I  have  here  alluded  to  the  remarkable  circumstance,  as 
might  seem,  of  the  royal  signature  of  the  patent  of  the  Earldom  of 
March,  &c.  dated  20th  of  April  1697,— as  is  proved  by  its  authentic 

»  Ibid.  p.  483.  «  lUd, 

•  Vol.  I.  p.  5,  n.  ;  See  p.  85,  et  teq. 


ADDENDA.  1053 

registration  in  her  Majesty's  State  Paper  Office, — beingboth  in  the  body,  the  Earldom  of 
and  the  docquet  by  the  Secretary  of  State,  intended  especially  for  the  March,  &c.  in 
eye  of  the  Sovereign,  as  a  prevention  of  undue  surreptitious  grants,'  ^^^^* 
without  the  important  closing  limitation  to  ^*  other  heirs  male,  and  of 
tailzie^  (entail Jy  contained  in  hx8  (the  patetUet^s)  infeftments  of  the 
lands  and  lordship  of  Neidpath," — de  facto^  at  least  that  which  now 
rules ;  and  under  which,  the  heirs-female,  and  the  Earl  of  Wemyss, 
the  present  noble  holder  of  the  honours,  can  alone  take.    This  certain- 
ly obtains,  although  there  be  a  blank  left  at  each  of  the  respective  Blanks  in  the 
places,  as  we  may  presume,  for  an  additional  insertion,  prefaced  in  the  'e^»tered    sig- 
last  instance  by  the  word  "  which,"  initiatory,  as  we  may  deem,  to  a  patent  in  Lon- 
further  substitution.    The  omission  appeared  the  more  remarkable,  don,  where  the 
and  deserving  of  notice  in  a  work  of  this  kind,  owing  to  luch  grants,  "^l**™**®  fn!'*' 
above  all,  requiring  in  both  countries,  but  chiefly  in  Scotland,  the 
express  sanction  and  approval  of  the  Sovereign,'  the  £Eict  of  the  House  of 
Lords  on  such  occasions,  in  Peerage  claims,  first  and  paramountly  de- 
manding production  of  the  signature  of  the  extended  or  consecutive 
patent,  to  ascertain  if  it  was  thus,  in  the  material  particular,  strictly 
warranted  and  authorized, — ^nay  affixing  the  chief  consideration  there- 
to, in  the  import  of  the  conveyance.     The  necessity  of  this  salutary 

'  See  what  transpires  under  the  case  of  Cassilis,  in  the  sequel. 

*  See  the  remarkable  case  of  the  Barony  of  Ochiltrie  in  1793,  pp.  813,  et  $eq. 
It  was  sustained  as  a  relevant  objection  to  a  charter  of  the  Earldom  of  Cassilis 
in  167 If  "  with  the  dignity,  and  precedency,  and  priority  of  place,"  in  fkTour  of 
the  heir-female — upon  the  Cassilis  cUim  in  1762, — that  *'  the  docket  subjoined  to  Precedent  of 
the  original  signature,  which  is  intended  as  a  check  to  prevent  grants  by  tubrep^  Earldom  of  Cas- 
Hon,  contains  a  special  description  of  the  whole  lands, — but  does  not  onee  mention  *^*  ^^  1762. 
the  title  of  honour  or  dignity."   This  evinces  too,  inter  alia,  by  the  pointed  adduc- 
tion of,  and  unflinching  conclusion  from  the  signature,  the  strange  freedoms  that 
were  here  sometimes  taken,  and  thus  prudently  guarded  against. 

'  As  essentially  illustrated  in  the  Cauilis  case,  ut  sup.    Moreover,  in  the  very  rn^     f  » 
recent  one  comparatively,  of  the  Dukedom  of  Roxburghe  in  1812,  the  late  Earl  burgh  in  1612, 
of  Lauderdale,  no  small  authority,  as  is  notorious,  in  such  matters,  first  and  point-  with  demand, 
edly  called  for  the  signature  of  the  charter  of  the  honours  and  estates  of  Rox-  ^'^^ .  <^urious 
bnrgbe  in  1646,  upon  which,  in  truth,  all  turned,  although  the  charter  existed,  ^JL  i^    n^i     ^ 
both  in  the  original,  and,  ex  facie,  implemented  state,  with  the  due  appension  of  Lauderdale, 
the  Great  Seal,  and  the  ordinary  forms  and  observances,  in  that  last  stage  of  the 
conveyance, — as  well  as  through  its  registration  in  the  Great  Seal  Record.     Un- 
fortunately, the  signature — ^like  various  other  similar  instruments— could  not  be 
recovered;  but  the  want,  as  regarded  the  charter,  was  at  length  held — though  not 
nntn  alter  keen  opposition  and  argument — to  be  compensated  for  by  other  con- 
siderations ;  there  being  nothing  at  the  same  time  to  impeach  its  terms  and  import. 
On  this  occasion  it  was,  as  imagined,  cleverly  replied  to  Lord  Lauderdale,  that 
the  signature  of  his  own  patent  could  as  little  be  found.     Oh,  rejoined  his  Lord- 
ship, that  weighs  nothing  with  me,  and  I  heartily  wish  yon  could  disprove  my 
right  to  my  Peerage,  as  it  has  been  a  mighty  encumbrance  in  my  way,  and  long  de- 
prived me  of  the  voice,  and  seat  1  otherwise  would  have  had  in  the  national  councils. 


1054  ADDENDA. 

Unjaatiflable  measure^  difieient  from  what  may  obtain  in  respect  to'ordinaiy  gnmta^ 
liberties  taken  ig  self-evident  and  imperative^  owing  to  the  removal  of  the  seat  of 
eranta  In^^ot-  government  to  England,  after  the  union  of  the  crowns^  and  the  strange 
land  after  the  &nd  unjustifiable  liberties,  not  however  to  be  wondered  at  in  the  emer- 
union  of  the  gency,  that  were  then  sometimes  taken,  by  gratuitous  and  unauthorized 
crownt.  additions  to  the  extended  patent  under  the  Great  Seal  in  Seoikmd, 

which  were  foreign  and  unknown  to  the  previous  signature  under  the 
Glaring  case  of  sign  manual,  and  royal  warrant,  elsetphere.  Independently  of  the  still 
?706  ^sh*  wi°  ^^^  flagrant  instance  of  the  Viscounty  of  Oxenford  in  1706,  that  even 
the  importance  exceeded  in  its  nature  and  extent  what  I  here  allude  to,i  as  well  aa 
of  ascertaining  of  Cassilis  in  1671.  I  may  again  refer  to  that  of  the  Marquisate  ot 
the  *^^  ^^  Annandale,  &c.  The  royal  warrant  or  ngnature  of  the  patent  of  this 
Peerage  con-  Marquisate,  the  24th  of  June  1701,  in  like  manner  with  the  March 
Teyance.  mentioned,  in  16979  is  recorded  in  the  appropriate  Register  in  her  Ma- 

Also  of  the  jesty's  State  Paper  Office,'  and  contains  a  limitation  simply  to  ^  heires 
Marquisate  of  male  whatsoever," — the  true,  and  regulating  one— of  which  we  have 
1 7<W°tarefer-  ^^^^^'^^  other  valid  and  effective  examples.  But  lo,  and  behold,  in  its 
ence  to  the  «^-  extension  under  the  Great  Seal,  as  is  established  by  our  Great  Seal  Re- 
nature  of  the  gister,*  we  first  meet  with  this  awkward  and  untoward  appendage, 
cord°of  such*'  ^^^^^^'^^  *°y  authority,  to  the  limitation,  namely  "itfi  ((he  d<meej  in 
granu  being  suis  prsediis,  et  statu  omni  tempore  future  succcssuris,"  that  have  oc- 
kept  in  Scot-  casioned  difficulty  and  perplexity,  and  if  admitted,  which  they  cannot 
^  '  be,  would  still  do  so,  in  no  small  degree,  under  tlie  circumstances.  Up- 

on this  case,  I  may  also  add  the  following  apposite,  just  remarks  of 
the  late  Sir  William  Grant,  Master  of  the  Rolls,  and  Mr  Tait,  the 
counsel  in  the  intended  Annandale  claim,  towards  the  end  of  last  cen- 
tury, by  Sir  William  Pulteney,  himself  an  able  lawyer,  as  they  appear  in 
the  printed  case.  **  Many  other  arguments  might  be  stated,  to  shew  that 
the  words,  added'after  the  limitation '  to  Heirs  Male  general,'  ftu  abowj 
could  not  prevent  the  honours  from  devolving  upon  the  Heirs  Male 
whatsoever ;  but  as  the  words  added  were  iingulary  the  Claimant  was 
desirous  of  inspecting  the  original  Signature  under  his  Majesties  Hand. 
The  Signatures  of  Patents  of  Honour  have  never  been  entered  in  any  Re- 
cord in  Scotland^  but  have  remained  in  the  Hands  of  the  Keeper  of  the 
Great  Seal,  as  his  Warrant  for  passing  the  Patent  under  that  Seal ;  and 
after  the  most  diligent  Enquiry,  the  Signature  could  not  be  found  in 

He  here  alluded  to  his  disability,  as  a  Scottish  Peer,  to  sit,  as  he  had 
vehemently  desired,  in  the  House  of  Commons,  at  the  exciting  and  stormy 
period  of  the  French  RcToIution,  and  close  of  last  century, — his  own  body  haTing 
withal,  rejected  him  from  their  representation ; — which  thus  reduced  him,  Uko  the 
late  Lord  Kinnaird, — with  equal  satitfuction, — from  the  unfortunate  peculiarity  of 
their  situation,  common  to  Peers  of  Scotland,  to  a  mere  blank  in  public  and  poUti* 
cal  life.  We  here  again  discover  the  destitution  in  the  case  of  our  signatures, 
of  which,  as  observed,  there  is  no  Scottish  record,  and  only  latterly,  in  England. 

*  See  pp.  61-2-3.  '  In  London,  of  course,  see  p.  1052-3  above. 

*  In  her  M^esty's  General  Register  House,  Edinburgh. 


ADDENDA.  1 055 

Scotland,  As  the  praetioe,  howerery  in  England^  had  been  difierent, 
and  that  Copies  of  all  Signatures  have  been  entered  in  a  Book  kept  at 
the  Paper  OfHce,  the  Claimant  had  recourse  to  these  Books,  and  there 
found,  that  the  Words  in  question  were  not  added,  after  the  Limitation 
to  Heirs  male  whatsoever,  in  the  original  Signature  under  his  Majesties 
Hand,  and  must  therefore  have  been  inserted  in  the  Patent,  without  any 
Authority  from  the  Crown,  The  consequence  is,  that  they  must  be  heidy 
pro  non  adjectisy  and  the  Limitation  must  be  taken  agreeable  to  the  Sig- 
nature or  Warrant  ;**  &c.' 

The  true  efiective  Annandale  limitation  accordingly,  but  justly  re- 
solves  in  law  into  one  nakedly  to  heirs-male  whatsoever. 

In  consequence  of  the  preceding  weighty  incidents  and  considerations^ 
I  added 'in  my  notice  of  the  March  case,  that  some  further  ^authentic 
^PJ/'  ^^  proper  exemplification  of  the  March  signature  in  1697  might 
be  incumbent  to  prop  up,  supply-— or  compensate  for — ^the  deficiency 
in  the  registration,  transpiring,  as  it  does,  in  the  highest  and  most  un- 
exceptionable quarter,  and  to  warrant  the  annexed  limitation  in  ques- 
tion, as  it  appeared  merely  in  the  extension  under  the  Great  Seal  of 
Scotland,  in  the  Scottish  Great  Seal  Register.'    Every  other  public 
accessible  channel  had  been  ransacked  without  success  in  the  above 
view.    As  is  notorious,  there  has  been  a  great  destruction,  through  the 
calamity  of  fires,  of  signatures  with  us,  while  no  record  of  signatures^ 
such  as  that  of  March,  has  been  kept.'    I  therefore,  as  a  last  resource, 
to  obtain,'  so  far  as  I  was  able,  every  information  in  this  important 
particular,  as  well  as  out  of  common  regard  to  justice,  and  for  avoiding 
any  hasty  misconception  or  misrepresentation,  had  applied  long  ago.  My  applicatiodi 
to  Hugh  Tod,  Esq.  W.  S.  the  agent  of  the  Earl  of  Wemyss.    He  hap-  owing  to  the 
pened  then,  and  indeed  until  the  twelfth  hour,  to  be  unable  here  addi-  P'®^*^"*  ''«*• 
tionally  to  enlighten  me ;  so  that  I  was  obliged  to  content  myself  with  to  the  Wemyss* 
what  I  had  written  :  *  but  it  gave  me  much  pleasure,  on  the  6th  of  May  agent  for  further 
last,  to  receive  from  that  gentleman  a  letter,  wherein,  after,  in  part,  al-  !v''^'Sr*''°J*  •*" 
luding  to  my  former  application,  he  intimated  to  me  that  he  had  just  stance,  and  re- 
been  apprized  "by  Mr.  Fraser,*  in  the  office  of  Mr.  Sands,  W.  S.  that  cent  fafourable 
when  lately  making  a  search  in  the  Marchmont  charter-room,  for  pa-  ^^'^^^^  '° 
pers  connected  with  that  Peerage,  he  had  discovered,  among  other  offi- 
cial documents,  the  original  warrant  for  the  March  patent,  in  which  the 
words  in  the  patent,  under  which  Lord  Wemyss  takes,  are  fully  insert- 
ed, and  are  not  left  blank,  as  you  (1  myself)  mention  they  are,  in  the 
warrant  preserved  in  the  State  Office  in  London."    He  also  added,  that 

*  See  printed  Case,  referred  to»  p.  24.  '  See  pp.  207-8. 

'  See  also  pp.  1064-6,  ut  np.  *  At  pp.  207-8. 

'  Mr.  Fraser  is  an  actite  and  promising  yonng  person  in  the  department  in  ques- 
tion, and  his  attention  having  been  directed  to  the  subject  by  my  application  and 
communication  to  Mr.  Tod,  in  whose  office  he  then  was,  he  providently  remember- 
ed and  kept  it  in  view;  and  thus,  after  much  unavailing  research  elsewhere,  through 
the  auspices  of  iho  former,  meritoriously  made  the  present  discovery. 


1056  ADDENDA. 

Mr.Fraser  had  sent  him  "a  certified  copy  ofthewarpant,"  of  which  heen- 
closed  me  a  transcript^  together  with  an  offer  of  an  inspection  of  the  origi- 
nal through  Mr  Fraser,  the  present  custodian^  Of  the  opportunity,  I,  of 
course,  ayailed  myself,  and  found  thatj  the  warrant  agreed  with  the 
registration  in  London,  as  ahove,  having,  like  tl,  the  suhscriptiou  of 
Relative  re-  the  Marquis  of  TuUibardin  (as  Secretary  of  State)  ;  but  with  the  va- 
marks.  ^^^  Spaces  in  the  latter^  literally,  or  truly  supplied,  or  closed  by  this  ad- 

junct to  the  limitation  in  favour  of  heirs-malo  of  the  Ixxly  in  the  first 
instance,  common  to  both,  ^^  which  failzleing,  to  his  (the  patentees  J 
other  airs  male  and  of  tailzie,  contained  in  his  Infeftmcnt  of  the  Lands 
and  Lordship  of  Neidpath,''  as  annexed  in  the  extension  under  the 
Great  Seal.    This  material  addition  is  in  difierent  ink,  and,  as  it  struck 
me,  in  a  difierent  handwriting ;  being  evidently  made  subsequent  to 
the  warrant  after  it  had  arrived  in  Scotland  ;  and  the  only  question 
remaining  is,  can  it  be  legally  presumed  to  have  been  properly 
authorized,  that  is,  directly  or  indirectly,  hy  the  Swereigny — ^thc  great 
Are  we  now,  and  indispensable  (fenderahifn  in  such  cases  ?   It  may  be  admitted,  that 
legally  to  pre-  he  (William  of  Orange)  could  not  have  seen  the  ultimate  limitation — 
sume  the  pro-  juu^jy  j^  embryo,  at  his  inspection  of  the  writ,  under  which,  the  prior 
nance  and  sane-  ^^^  to  heirs-male  of  the  body  being  now  spent, — ^the  heirs-female, 
tion   of   the     and  any  other  heirs,  can  alone  take ;  but  then  he  may  have  verbally, 
crown  to  the     ^^  ^^  ^ect,  be   held  to  have  authorized  it,  through  the  organ  of 
limitation  ?        ^^^  Scottish  government,  the  Marquis  of  TuUibardin  alluded  to,  who 
may  have  written  accordingly  to  the  Chancellor  of  Scotland, — if  even 
that  were  incumbent, — the  possessor  at  length  of  the  warrant,'  when  he 
transmitted  it  in  the  partly  defective  state.  For  I  suspect,  upon  further 
reflection,  and  observation,  that  in  this  March  instance,  and  certain  others, 
mare  was  intended  than  may  at  first  meet  the  eye ;  and  that  the  blanksi, 
originally  left,  were  constructively  understood  to  act  in  favour  of  the 
grantee,  in  reality  as  a  carte  blanche^  so  £&r  as  regards  completing  the  con- 
veyance, to  be  filled  up  ad  libitumy  as  he  might  incline ;  which  thereafter 
was  accordingly,  and  regularly  done.    Thb  is  a  very  important  &ct, 

'  This  document,  in  1697,  with  others  of  the  kind,  came  to  be  in  the  Mareh- 
mont  private  repositories,  owing  to  Patrick,  the  first  Lord  Polwarth,  afterwards 
Earl  ofMarcbmont,  being  Chancellor,  and  Keeper  of  the  Great  Seal,  at  the  time, 
and  thereafter.  See  p.  1054,  ut  tup.  I  could  not,  out  of  common  delicacy,  have 
applied  to  the  owner  of  the  Marchmont  charter-chest  for  the  relative  informatioD» 
as,  owing  to  the  pending  claim  to  the  Marchmont  honours,  and  asserted  possible 
results,  in  consequence,  it  must  be  at  present  prudentially  sealed  up  to  aU,  ex- 
cept legal  adrisers  and  agents,  through  the  instrumentality  of  one  of  whom,  ez- 
clusiyely,  (Mr  Fraser,)  the  discovery  alluded  to,  was  made.  Hence,  I  conceire, — 
while  I  also  gave  my  previous  statement  qualifledly, — (see  p.  207,)  no  blame 
can  attach  to  me  for  not  having  elicited  the  remaining  facU  from  the  above  quarter, 
— where  there  doubtless  may  be  even  yet  other  adminicles  of  importance. 

'  That  in  the  Marchmont  Charter-chest,  has  the  indorsation  too,  of  being 
**  sealed  (in  Scotland)  30  day  of  April  1697,"  of  course,  by  his  authority. 


-»»-■-- 


ADDENDA.  1057 

and  eooflideTatioiiy  to  be  kept  in  riew  in  praetiee,  as  it  may  at  the  same 
time  elucidate,  and  strongly  bear  upon  other  similar  precedents.  And,  no  Important  eon- 
doubt,  taken  with  the  concurring  circumstances,  the  word  "  which,"  fide^jjioo  ^®» 
prefacing  the  last  blank  in  the  docquet  of  the  authentic  royal  warrant,  ^^^w,  conceived 
as  it  stood  in  Londany^  and  that  the  king  may  be  held  to  have  seen,  constmctlTe  ef- 
indicates  that  a  further  substitution  was  intended,  quite  in  unison  '®*^.'  ^J  *SI"*'L 
with  my  conclusion ;  which  of  course,  too,  although  there  was  occasion-  ^*ent  &c. 
ally  irregularity  in  the  final  passing  of  such  grants  in  Scotland,— in  an 
age  not  so  scrupulous  or  correct  as  the  present, — ^must,  especially  at 
this  distance  of  time,  receive  support  and  countenance  from  the  clause 
in  question  being  Inserted  in  the  extension  of  the  warrant  under  the 
Great  Seal,  presumptiyely  again  under  proper  authority,  by  the  Chan- 
cellor its  keeper,  the  Earl  of  Marchmont.    So  things  may  relevantly 
rest,  there  bemg   only   one    possibly  conflicting,  or  unfavourable 
incident,  under  rather  a  narrow    and  rigid  interpretation,  to  be 
noticed  in  the  sequel, — ^though  again,  as  may  be  viewed,  not  unat- 
tended even  with  a  further  favourable  inference,  and  considerations. 
I  need  hardly  observe,  that  any  question  as  to  the  import  of  the  Any  question 
March  patent,  can  alone  date  from  the  death  of  William  fourth  Duke  of  regarding  im- 
Queensborry,  Eari  of  March  in  1810,  the  last  heir-male  of  the  body  S^aroh^fimUiT- 
of  the  patentee,  and  thus  having  an  undoubted  right,  in  virtue  tiom  can  only 
alike  of  the  warrant  as  it  stood  in  London,  and  as  filled  up  in  !>«  mooted  since 
Scotland,  the  corresponding  limitation,  as  premised,  appearing  in  both 
exemplifications.  There  is  this  striking  difierence  likewise,  between  the 
Leven  and  March  cases,  that  in  the  latter,  the  patent  actually  proceed- 
ed upon  a  signature  under  the  sign  manual,  while  in  the  other, 
the  charter  of  regrant  in  1664,  did  not,  but,  on  the  death  of  the  previ- 
ous  Earl  of  Leven,  expressly  upon  one  under  the  caschet^  as  in  a 
common,  nay  very  secondary  succession.  ' 

Independently  of  what  I  have  stated,  other  remarkable  procedure  Other  cotempo- 
and  occurrences  obtained  on  the  occasion  of  the  March  patent.    Al-  ^*'^,  ^.^  '®* 
though,  as  in  such  instances,  when  it  passed  the  Great  Seal,  it  bears  cedure  on  the 
the  date  of  the  signature,  namely  the  20th  of  April  1697,  yet  it  was  passing  of  the 
not  in  fact  seakd,  as  is  established,  even  on  the  30th  of  that  month; » ^^\^^^^^*^' 
when  the  Viscount  Teviot,  (Sir  Thomas  Livingstone,)  who  had  previ-  J^on  of  Tis- 
ously  (the  4th  of  December  1696,)  been  created  Viscount  Teviot,  count  Teviot. 
''Lard  Livingstone  ofPetMe^;*  *  objected,  upon  that  ground,  in  Privy  l^^j^^^^^  ""^ 
Council,  to  the  grant  of  the  dignity  of  "  Viscount  PeAkSy**  in  terms   *"  * 
likewise  of  the  March  patent,  whereby  it  is  also  carried,  in  £ftvour  of 

'  See  pp.  207-6. 

'  See  pp.  66-7,  ti  $tq.  It  may  perhaps  bare  been  intended  in  the  Leven  in- 
stance, to  obtain  the  royal  confirmation  and  anthority,  which,  owing  to  some  ne- 
glect or  other,  has  been  omitted ;  so  the  qaestion  may  be.  it  Iho  conceived 
want  there,  compensated  for,  o/tamic,  or  by  any  thing  of  which  1  am  unaware  ? 

'  See,  notwithstanding  notice,  1056,  «.  2,  what  is  stated  on  this  head,  1065,  n,  a. 

*  As  proved  too  by  the  Great  Seal  Register. 

3x 


1058 


ADDENDA. 


Letter,  inter 
alia,  of  King 
WilUam,  in 
1697. 


Lord  William  Douglas,  the  March  patentee.    By  express  injunction  of 
the  Lords,  therefore,  his  patent  was  stopped  until  the^king's  orders 
were  here  received.    But  further,  the  Earl  of  Lauderdale,  at  the  same 
diet  of  Privy  Council,  **  desired  to  he  excused  from  rotting  tlierein, 
in  respect  that  he  himself  is  heir  of  lyne  of  the  last  Earl  of  March,^ 
who,  altho  he  was  forcfaulted,  yet,  when  the  late  Earle  of  Lauderdale 
got  the  title  of  Duke  of  Lauderdale,  he  was  restored  to  the  said  title  of 
Earle  of  March  ;  whereupon  the  Earle  did  not  vote/'*    The  same  Earl 
thus,  besides,  in  his  turn,  demurred  to  the  granting  of  the  title  of  AforcA. 
Eventually,  however,  on  the  24th  of  May  1697,  King  William  wrote,  in 
answer,  as  follows,  to  the  Privy  Council: — "  Right  trusty,  &c. — ^Where- 
as we  are  informed  that  the  patent  of  honour  granted  by  us  in  favour 
of  Lord  William  Douglas  is  8iopty  by  your  wrdery  from  passing  the  sealls 
untill  our  pleasure  be  known,  and  that  this  is  done  upon  a  representa- 
tion made  to  you  by  the  Viscount  of  Teviot,  that  the  title  of  Peebles 
is  granted  by  us  to  Lord  William,  whereas  the  same  was  formerly 
granted  to  him  in  his  patent ;  we  liave  thought  fit  to  signify  to  yon, 
that  what  we  have  done  in  this  matter  was  on  proper  knowledge,  we 
having  formerly,  by  our  Secretaries,  acquainted  the  Viscount  of  Teviot, 
that  he  was  to  change  this  title.    And  having  declared  this  unwilling- 
ness to  do  the  same,  at  his  desire,  we  did  grant  a  second  patent  in  his 
favour.  It  is,  therefore,  our  will  and  pleasure  that  this  stop  be  taken  aff^ 
and  that  our  patent,  in  favour  of  Lord  William  Douglas,  be  past  (ashap-^ 
The  conclusion  pened)  and  expede  in  the  usual  manner,  without  any  cJterationJ**  The 
therefrom,  tho'  March  patent  was  thus  subjected  to  a  kind  of  ordeal  from  different 
an^Tndd^ntal    ^^^^^^j  which  may  render  an  undue  insertion  the  less  likely,  and 
scruple,  upon    further  obviate  the  objection  to  that  of  the  ultimate  limitation,  or  r&- 
the  whole  fur-  mainder.    It  had  certainly,  in  one  particular  especially,  caught  the 
to  th*^Tt™^*t  n^o^^^'c^'s  attention  ;  and  all  that  can  be  fancied  prejudicial,  would 
March  limita-  he  the  order  that  the  grant  should  pass  '^without  any  alteration," 
tion,  and  heir-    combined  with  the  king  having  only  seen  the  signature  a«  in  the  State 
Paper  Office,  to  which  it  solely  might  be  argued  to  relate, — hence  exdud- 


female. 


^  The  noble  family  of  Lauderdale,  though  female  descendants  of  the  ancient 
Dunbars,  Earls  of  March,  (here,  andrei^tedly,  alluded  to,  in  this  performance,) 
through  an  intermarriage,  were  not,  however,  as  thus  stated,  their  heirs  of  line. 
That  status  and  representation  assuredly  vested  elsewhere,  as  it  still  does. 

'  There  is  a  good  deal  of  inaccuracy  in  this  statement.  The  said  {John)  Duke 
of  Lauderdale  was  not  restored,  as  would  follow,  to  the  title  of  Earl  of  March. 
He  was  merely  created  by  patent.  May  1st,  1672,  Duke  of  Lauderdale,  Marquis  of 
March,  &c.  to  him,  and  the  heirs-male  of  his  body,  (Great  Seal  Register) ;  whOo 
moreoTcr,  the  Earl  in  the  text  was  but  his  collateral  heir-male,  and  the  former  (th« 
Duke)  had  left  female  descendants,  of  whom  innumerable  descendants  and  hein 
again,  still  exist.     The  previous  procedure  is  from  the  Privy  Council  Register. 

*  From  the  authentic  registration,  both  in  Her  Miyesty's  State  Paper  Oflbe, 
London,  and  in  the  Books  of  Privy  Council,  in  Her  M^esty*s  General  Register 
House,  Edinburgh.     The  letter  is  dated  near  **  Jemap,"  the  king  being  abroad. 


ADDENDA.  1059 

iDg  the  limitation  in  question.  Bat,  aa  premised,  he  may  be  presum- 
ed to  have  authorized  more,  and  consequently  the  latter ;  though,  under 
the  existing  law,  we  might  take  into  account  the  rigour  that  is  en- 
forced in  similar  respects,  as  evinced  by  the  Ochiltrie  case  in  1793.^ 
No  later  objection  than  that  noticed,  so  futilely,  on  the  part  of  the 
Earl  of  Lauderdale,  appears  to  have  been  made  to  the  title  of  March, 
among  the  others  in  the  patent  of  1697>  which  hence  stands  as  before. 

With  regard  to  the  intrinsic  legal  import  of  ^  other  Heirs  male  and  Additional  re- 
of  En  tail,  contained  in  his  (the  patentees)  infeftment  of  the  Lands  !"f'.^."P°°  ***® 

7i.       •■^▼.,       1.  ..  ^1        1.       .■»■-»  intrinsic  import 

and  Lordship  of  Neidpath,"  constitutmg,  as  stated,  the  ultimate  March  of  the  ultimate 
remainder,  I  still  adhere  to  my  doctrine,  as  shewn,'  of  its  including  March  limita- 

heirs-female,  and  being  in  reality,   equiponderant  to  "other  heirs- "^^l' f".^*""**^ 
'  o  jf^r  af  am  to  mclude 

male ;  as  voeilas  heirs  ^  besides,  generally)  of  Entail."  The  reference  here,  heirt-female. 

to  the  previous  regulating,  and  existing  entail  of  the  lands  in  question, — 

thatdated  the  12th  of  October  1633,  in  the  shape  of  the  marriage  contract 

of  the  Patentee,*  upon  which  a  charter  of  resignation  followed  in  1694,* 

is  upon  the  whole  intelligible,  and  undeceptive,— even  more  so  than 

often  on  such  occasions ;  while  further, the  same  identical  words,  ''heirs 

male  and  of  Tailzie'*  C  Entail  J— -to  "the  Lordship  of  Neidpath,"  are 

there  also  unquestionably  employed  as  descriptive  of  female  heirs  who 

were  eventually  to  take,  and  of  whom  there  are  many.  Neither  do  I  think  objection  from 

that  an  objection  can  arise  from  there  having  been  literally  no  anterior  the  term  *  |  in- 

^in/eqffrnents;'  repeatedly  at  least  of  Neidpath,  (to  the  heirs  of  entail,)  J^^^lJ^li^iiml,". 

thus  rather  at  txiriancey  or  not  explicitly  quadrating  with  the  description  ^qq  by  the  ex- 

in  the  extended  patent ;'  for,  as  already  obvious,  it  was  virtually  discussed  tended  patent, 

and  disregarded  in  the  case  of  the  Peerage  of  Napier  in  1793, — the  term  '"•  "i^®'®/^^. 

"  infeofamento^*  employed  in  like  manner,  having  received  in  that  in-  wg^  contentos  in 

stance — ^though  there  had  been  no  infeoffment  at  all — ^a  liberal,  and  not,  ejus  in/eo/a- 

as  would  here  obtain,  on  the  other  hand,  but  a  restricted,  or  judaical  "•^"f**  terrarum 
.       .,       ^  '        •*  et  dommii  de 

construction.*  Neidpath." 

The  broad  meaning  of  the  antecedent  material  phraseology,  as  argu- 
ed, however,  it  may  also  literally,  and  ostensibly  strike  one,  had  be- 
come fixed  and  technical— having  constructively,  after  the  fashion  of  other 
analogous,  and  certainly  rather  untoward  Scottish  diction,  been  received, 
and  stamped  with  such  peculiar  impress  and  force.  Indeed,  in  proof 
of  this,  I  need  only  further  appeal  to  the  first  authorities,  beside  me  at 
present,  namely  Stair,  and  Erskine,  our  legal  oracles,  respectively,  in 
the  17th  and  18th  centuries,  both  of  whom  evidently  employ  the 
words  "  Heirs  male  and  of  Tailzie  and  provision,"  and  "  heirs-male  and 
of  tailzie,"  as  a  general  descriptive  title  in  reference  to  heirs  in  entails, 
both  male,  and  whatsoever,  when  discussing  the  subject  of  entail,  and 
heirs  of  entail.^ 

»  See  pp.  813,  e«  teq.  •  See  pp.  205-6-7. 

'  Recorded,  lUh  of  Auguat  1781,  in  the  Register  of  Entails. 

*  Great  Seal  Reg.     •  ** In/eftmentt"  being  used  there,  ib.      •  See  pp.  816-17. 

'  See  Stair's  Institutes,  Ed.  1769,  p.  478,  §  12,  and  Erskine's,  Ed.  1805,  p.  641, 


1060  ADDENDA. 

Claim  of  the  It  could  alone  be  by  a  most  nanow  and  rigid  interpretation  indeed. 
Marquis  of  worthy  only  of  Lords  Mansfield  and  Rosalyny  in  their  insane,  reckless 
^G^Mard[  hoD-  ^^'^  ^^  female  succession,  and  arbitrary,  unfoanded  predilection  for 
ours  strictly  as  male  heirs,  that  the  female  heir,  and  consequently  their  present  noble 
heir-male,  and  holder,  oould  be  here  excluded  from  the  March  honours,  and  the  present 
comJaHv^^^'  Marquis  of  Queensberry,  the  helr-male  (whatsoever)  of  the  March 
though  far  re-  patentee,  and  heir  beHdeSy  es  terminii  of  the  entail  in  16d3,  though  a 
moter  in  tb«  last  f^  remoter  one,  come  to  be  preferred.  I  oonceive,  the  more  the  matter 
capacity.  .^  examined,  it  will  farther  still  turn  out  that  **  heirs-male  and  of  en- 

tail "  are  not,  ex  neceisitate^  to  be  rendered  copulativ^j  as  they  must  in 
the  latter  instance,  (that  can  neither  properly  receive  illustration  from 
the  Oxenford  decision  in  1735,*)  in  order  thus  to  favour  the  Marquis, 
but  disfunetivcy  in  the  way  I  contend ;  notwithstanding,  in  a  literal 
clear  sense,  the  superior  excellence — ^with  the  view  of  admitting  heira- 
female-^f  the  ultimate  ruling  remainder,  in  the  patent  of  the  Duke- 
dom of  Roxburghe,  &c.  the  25th  of  April  1707,  failing  **  Mfv  male  ofhU 
(the patentei^ 9 J  body,"  to  ^'  the  other  heirt  ('generally J  provided  to  suc- 
ceed to  the  title  and  dignity  of  Earl  of  Roxbuighe  by  the^brmcr  Patents 
of  Honour,"  &c'    And  accordingly,  the  present  Duke  of  Roxbuighe, 
solely  by  female  descent,  in  virtue  of  the  noted  Roxbuighe  charter  in 
1646,  so  often  referred  to,  implemented  by  a  nomination  of  certain  heirs- 
female,  as  resolved  by  the  Honse  of  Lords  in  1812,  is  duly  entitled  to  the 
Material  consi-  dignities  thus  carried.    It  must  always  be  remembered,  as  I  have  at- 
ftr'enco"  to^uUi-  *®™P^*^  repeatedly  to  inculcate,  that  we  formerly  often  were  not  Ay- 
mate  Bfarch  li.  l^rm^teoi  on  Sttch  occasions,  but  rather  slovenly  and  careless  convey- 
mitatioD.  ancers. 

That  I  may  impartially  state  every  thing  connected  with  this  sub- 
count  Teviot*,  J^  ^^^  le&ve  nothing  unnoticed  within  my  knowledge  and  appre- 
already,  in  part,  hension,  I  shall  add  this  other  striking  incident.    There  can  be  no 
referred  to.       doubt.  King  William  had  determined  by  the  eecond  Teviot  patent  men- 
tioned, to  Viscount  Teviot,  March  30,  1697,  to  give  him  a  new  fjalid 
Barony,  instead  of  that  of  ^  Lord  Livingstone  ofPe^ee^*  as  before ;' 
yet  it  so  happens,  notwithstanding  this,  that  in  the  warrant  of  the 
former,  also  preserved  and  registered  in  the  State  Paper  Office,  London, 
there  is  lUcewi^e  a  blank  at  the  place  where  such  title  fell  to  be  inserted. 
It  hence,  obviously,  was  to  be  voluntarily  filled  up  by  the  party,  under 
the  appropriate  name  and  epithet  he  might  choote^ — ^this  second  grant 
again  acting,  so  far,  as  a  carte  blanehe,  quite  in  unison  with,  and  in 

f  21 ;  also  President  Dundas*s  opinion  in  1737*  pp.  206*7»  whieh  a  farHori 
bean. 

*  See  pp.  376-7 » ei  seq, 

'  This  is  from  the  Registration  of  iu  signature,  also  in  the  State  Paper  Oflloe, 
London,  with  which  the  extended  exemptifieation  under  the  Great  Seel  in  Scot- 
land, in  the  Great  Seal  Register,  fully  corresponds. 

'  See  p.  1057,  «f  xeg.  ;  the  date  of  the  ieeond  patent  is  proved,  under  next  pige. 


ADDENDA.  1061 

'corroboration  of,  the  oonclasion  I  have  already  drawn.  I  will  here 
give  the  words  of  the  confirmatory,  corresponding  entry  too,  in  the  Re> 
cord.^  «  This  Patent  ('dated  30th  March,  1697)  was  past  and  recorded 
upon  the  4th  day  of  December  last  (1697),  but  was  altered,  because  of  the 
title  of  Lord  Pedtlesy  and  the  new  Patent,  of  which  this  is  the  dooquet,  was 
eent  down  blank  aa  to  the  titie  of  Lord^*^ — which  elucidates  the  construc- 
tive form,  or  right  in  question. 

The  latter  was  therefore,  as  to  contents,  in  pari  eaeuy  with  the  March  Blank  ligna- 
signature,  both  being  evidently  sent  down  to  Scotland  in  a  pa'tiftl  *"*^!i  ^^^nj'fn 
blank  state,  constructively  for  the  purpose  of  being  supplied  there,  in  j697,  with  the 
essential  relative  particulars,  ad  libitum  of  the  respective  patentees.  Nay,  relative  expla- 
this  in  the  Teviot  instance  is  besides  proved  to  demonstration  by  King  "*'*°"*  .^"*'""j. 
William's  letter,  wherein  he  states  he  had  ordered  Viscount  Teviot  our  anderstood 
himself,  "  to  change  "  his  title,' — ^the  act  accordingly,  involving  the  practice  as  to 
choice  of  style,  being  thus  quite  unfettered,  and  ultroneously  to  be  ?/**?*'*  *°the** 
implemented  by  him.'    Nay,  further  on  this  head  immediately.  March  insUnce. 

The  new  title  substituted  by  the  Viscount,  in  consequence,  and  au 
ulterior  proceeding,  are  transmitted  to  us  through  the  following  '^  Act" 
of  Privy  Council,  "  in  favours  of  the  Viscount  of  Teviot,"  the  19th  of 
July  1698. — **  Anent  the  Petition  given  in  to  the  Lords  of  his  Majes-  The  lame  to  be 
tie's  Privy  Council,  by  Thomas  Viscount  of  Teviot,  shewing  that  vbcounUn^w^ 
where  his  Majesty  was  pleased  by  his  Letters  Patent,  dated  the  fourth,  land,  in  respect 
and  sealed  the  twenty-fourth  days  of  December  jm.  vi^   nynty  six  to  the  new 
years,  to  confer  upon  the  Petitioner  the  Honour  and  dignity  of  Viscount  *.*  9««"^*»* 
of  Teviot,  with  the  quiescent,*  orsecundary  Title  of  Lord  Livingstone  (,{„,'  ^f  <•  Lord 
of  peeblee  ;  but  it  being  thereafter  agreed  that  the  Petitioner  should  Livingstone  of 

quUe^  the  Title  of  Lord  Livingstone  of  peeblee  for  ane  other  toheduuen  ^^yndfwrd;' 

with  Drecedency 
by  himy  it  pleased  his  Majesty  to  grant  a  new  Patent  upon  the  thirty  ^f  ^^^  older. 

of  March,  jm.  nynty  seven  years,  conferring  the  Honour  and  Dignity 
aa  before,  but  leaning  the  quiescent  Title  to  their  Petitioners  choice. 
And  seeing  that  their  Petitioner  hath  likeways  past  the  said  second 
Patent  creating  him  a  Viscount  as  before,  but  wUh  the  quieeeentf  and 
secundary  title  of  Lord  Livingstone  of  Htnbfoobd,  and  that  notwith- 
standing this  alteration  so  made,  it  was  always  understood  that  his 
right  of  precedency  as  a  Viscount,  was  to  stand  conforme  to  his  first 
Patent,  and  therefore  humbly  craving  to  the  eficct  underwritten,  as  the 
said  Petition  bears  ;  his  Majesties  High  Commissioner,  and  Lords  of 
Privy  Conncill  having  considered  the  above  Petition,  they  in  consi- 
deration that  the  altering  of  the  quiescent  title  was  the  only  reason  for 

'  In  1697,  and  subsequent  to  the  4th  of  December.  '  See  p.  1058. 

'  It  is  to  be  kept  in  view,  that  in  the  signature  of  the  Annandale  patent,  in 
1701,  (see  p.  1054,)  the  limitation  is  ftfHy  given  without  any  attendant  relative 
blank, — which  obviously  creates  a  specialty. 

*  This  technical  term  with  us,  is  not  ill  adapted  to  express  a  secondt  or  subaltern 
dignity  in  a  fkmily,  by  which  they  were  not  ordinarily  designated. 


1062  ADDENDA. 

the  second  Patent,  doe  lieirby  declare  that  the  Petitioner's  Precedency 
as  a  Viscount,  shall  stand  good  and  valid  with  the  forsaid  alteration, 
conform  to  his^r«^  Patent ;  and  ordains  this  Act  to  be  extracted  yempon 
for  his  furder  security  yeranent." '     The  Earl  of  Marchmont  Com- 
missioner, the  President  of  the  Court  of  Session,  Justice  Clerk,  Adro- 
cate,  and  various  noblemen,  attended  this  diet.'     The  better  plan 
might  have  been  for  the  Viscount  to  hare  obtained  a  Royal  grant  of  the 
new  title,  upon  a  resignation  of  the  former  "  quiescent"  one,  with  the 
old  precedency,  the  Viscounty  standing  as  before.    But  how  the  noble- 
man in  question,  thus  so  punctilious,  allowed  John  Lord  Carmichael, 
as  thereafter  happened,  the  25th  of  June  1701,  to  be  created  Eari  of 
Additional  at-  **  Hyndfoordy*  &c.' — there  being  thus  an  encroachment,  or  attack  again 
Uck  upon  bis  |2pon  his  ever  ill-treated  "quiescent**  dignities,  is  not  so  conceivable, 
Uile   wlth'^'re-  ^^  ^^^^^  surviving.    Nay,  what  is  further  remarkable,  on  the  Monument 
tentlon  at  the    erected  to  his  memory  at  Westminster  Abbey,  after  his  death  in 
sametime  by  the  January  1710,  as  thereby  intimated,  he  is  not  only  described  as  Vis- 
tormer!*^  ^^  ^^^  count  Teviot,  and  a  Baronet,  but  also  under  his  original  "Lordly**  styleof 
"  Baron  Livingston  e  of  Peebles  y '*  while  there  is  no  mention  of  the  later.  * 
Perhaps  owing  to  the  want  of  a  resignation,  he  might  not  be  thought  to 
be  fairly  denuded  of  the  former,  that  was  fully  constituted ;  which  con- 
clusion, however,  would  have  more  strongly  applied  to  the  *^  heirs-male 
of'  his  body,** — constituting  the  regulating  limitation, — ^if  there  had 
been  such, — ^through  default  of  whom  his  honours  expired  with  him. 

The  grant  of  the  Viscounty  of  Seafield,  &c.  in  1698,  may  beheld  among 
the  most  correct  and  unexceptionable  instances,— even  more  so  than  that 
of  Roxbnrghe  in  1707/— of  the  constitution  and  fixing  of  a  Peerage  des- 
cent by  a  patent,  through  reference  to  a  different  and  ruling  deed  or  settle- 
ment regarding  lands, — ^aftor  the  fashion  of  March  in  1697*  The  Seafield 
ViMoanty  of    signature  under  the  sign  manual,  dated  24th of  June  1696,  limits  the  hon- 
f fQft  tb'  *°   t  0*^*^*0*^*®  patentee,  and  the  "heirs-male  of  his  body ;  which  failing^io 
regular  and  un-  ^^  Other  hcirs  of  Taillie  C Entail J^  to  be  contained  in  the  Charter  of  his 
exceptionable    lands,  Baronics,  and  others,  conform  to  a  Signature  under  his  (the 

Pe'e*°*^e  ^\i  ^*''^'*>^  ^^^^  ***"^»  of  the  date  of  the»e  pweni*  ,•**— while  simul  et 
witha  r^cn-  'Cf?i«/,  such  charter  accordingly  passed,  in  virtue  of  which,  heirs-female^ 
tial  limitation,  as  is  notorious,  accordingly  take.*  Nothing,  therefore,  can  be  more 
M  ^  h***'ifiM7  methodical,  unequivocal,  and  clear ; — and  in  precise  terms  of  the  first 
'  signature,  the  limitations  in  the  extended  patent,  dated  as  above,  the 
24th  of  June  1698,  in  our  Great  Seal  Record,  are  thus  latinized, — ^^*in 

*  Act  Book,  or  Register  of  Privy  Council »  in  Her  Miyesty's  General  Register 
Home. 

"  Ibid. 

'  As  by  the  patent  of  that  date,  in  th'e  Great  Seal  Register. 

*  See  Dart's  Antiquities  of  Westminster  Abbey  in  1723,  vol.   II.  Plato  1SI» 
where  there  is  an  Engraving  of  the  entire  Monument  and  Inscription. 

*  See  p.  1060. 

*  From  the  respective  registrations  in  the  State  Paper  Office,  London. 


ADDENDA.  1063 

dictum  Dominum  Jacobum  Ogihfiey  (^the  Patentee  J  et  heredes  masculos 
de  ejus  corpora,  Quibns  deficientibus  alioe  ejus  heredes^talliie  continen- 
dos  in  carta  terrarum  ejus  et  prsdiorum,  secundum  Signaturam  Regia 
nostra  manu  muni  tarn,  datam  cum  prsesentibus."  To  our  honour,  in 
support  of  correct  conveyancing  eametimes  with  us,  I  hare  pleasure  in 
giving  this  instance. 

On  the  other  hand,  the  charter  of  r^^rant  of  the  honaure  of  Box-  On  the  other 
burgh,  with  the  lands,  dated  July  2,  1687,*  is  on  this  head  essentially})^^'  'and'*hon.^ 
defective,  and  lahours  under  the  vital  objection,  as  in  the  cases  of  oun  of  Rox- 
Cassilis,  and  Oxenford  in  1671,  and  1706.'    The  signature  under  the  burgbein  1687, 
sign  manual,  of  the  same  date,  carries  merely  the  Earldom  or  Comitatum  «.     g^f  ti^* 
of  Roxburghe,  and  lande,  to  which  the  former  term,  at  thcU  comparative-  regard  to  the 
ly  modem  period,  can  only  relate,  in  favour  of  "  Robert  Earl  of  Rox-  latter,   further 
burghe,  and  the  heirs-male  of  his  own  body,  which  failing,  his  heire-male  fo^^JJJ^,  '^nd 
ando/Tailzie  mentioned  in  the  infeftment  of  the  Earldom  of  Roxburghe,  impropriety  of 
granted  to  umqhiie*  Robert  Earle  of  Roxburghe,  his  Great  Grandfather,  <>«'  occasional 

and  in  the   nomination  and  designation  of  Tailzie  made  by  him.P'*?^*^?       ®' 

^  *  '  as  ID  Uie  casei 

conforme  to  the  said  infeftment,"  &c.*    But  in  the  extension  thereof,  of  Cassilis,  Ox- 
undcr  the  Great  Seal  of  Scotland,  through  the  charter  in  question,  we  enford,  &c. 
first  meet  with  these  Yery  unvrarrantable  interpolations  over  and  above 
the  lands, — "una  cum  titulo,  et  dignitate  Comitie  de  RoaHmrghej  cum 
omnibus  honoribuSy  dignitatilnie  et  immunitatibus  eidem  pertinentibus,"* 
that  are  there  in  such  guise,  nominally  carried, — ^in  consequence  of  which, 
the  conveyance,  so  far,  was  disregarded  and  held  to  be  effete  in  the 
claim  to  the  Roxburghe  honours  in  1812,  though  being  the  latest,  liter- 
ally, quadrating  with  the  material  reference  in  the  patent  of  the  Duke- 
dom in  1707,"  it  otherwise  might  have  ruled.    We  have  here,  another 
notable  and  praiseworthy  example  of  the  practice  I  have  repeatedly  ad- 
verted to,  since  the  union  of  the  crowns,  always  to  be  kept  in  view, 
and  shewing  the  great  wisdom  and  justice  of  the  Lords  in  their  de- 
manding, in  every  Peerage  claim,  production  of  the  signature  of  the  Specialty  that 
patent  or  charter,  when  it  exists.    There  being  no  hlanksy  regarding,  or  differences  the 
in  place  of,  the  absent  Roxburghe  honours,  in  the  Roxburghe  signature  **^°^®  Roxburgh 
in  1687, — ^to  be  afterwards  necessarily  or  presumptively  filled  up  ad  ft- fr'iJSi  "the**  in-"* 
hitum, — a  striking  specialty  is  here  again  evident,  pointedly  distin-  stances  of  Te- 
guishing  this  case,  from  those  of  Teviot  and  March,  where,  as  I  have  ^*®'»  March,  &c. 
remarked,  a  diiierent  and  favourable  conclusion  falls  to  be  drawn.'  Further  illustra- 
Nor  is  it  less  important  upon  another  vital  March  point  mooted,  that  tion  of  *<  Heirs- 
in  the  same  Roxburghe  conveyance  in  1687,  "Heirs  male  and  of "f^?;*"*^**^®"" 
Tailzie*  C  Entail  J  yTLTe  confessedly  used  to  comprise  heirs-/«mafe;  such  in-  Roiburghe  *int 
eluding  the  present  Duke  of  Roxburghe,  a  female  heir  of  entail,  taking  stance. 

^  Great  Seal  Register.  '  See  pp.  1053-4  ■  The  deceased. 

*  From  the  Registration,  ut  sup.  State  Paper  Oliice,  London.  ' 

*  Great  Seal  Register.  «  See  p.  1060. 

'  This  also  applies  to  the  proper  Annandale  limitation  in  1701,  see  p.  1054. 


1064  ADDENDA. 

under  the  noted  entail  and  nominationof  Robert  tint  Earl  of  Roxbniilfae, 
alluded  to,  authorized  by  the  Royal  charter  in  1646.    Indeed,  his 
Grace,  (a  mak  Innet)  bp  our  common  law,  is  only  an  heir  of  the  latter, 
and  not  at  ail  of  Earl  Robert,  the  disponee  in  16879  ^^o^  in  the  male 
aaim  of  Sir     line,  was  a  Drummond,  and  of  a  totally  different  lineage.    Upon  this 
m  nd  "f  Loffie-  8T0^Ja<i>  the  late  Sir  William  Dmmmond  of  Logie-almond,  his  heir- 
almond,  to  the  male  (collaterally,)  conceired  that  he  had  a  claim  to  the  Roxbuigfae 
RoxbargfaeHon-  honours,  &c ;  but  after  consulting  counsel,  who,  of  course^  dissuaded 
^^^  ^  ra^  ^"^  ^^  ^^  prudently  abandoned.*    His  plea  would  have  been  some- 
ported  by  the  what  strengthened  by  the  charter  1687,  under  a  Hriet^  eaeeluHve  inter- 
aboTe  charter,    pretation. 

I  may  perhaps  here  subjoin,  that  after  the  recent  diaoovery  of  the 
March  document  in  1697, — ^in  amanner,  1  may  say,  elicited,  or  prompt- 
ed by  me, — ^in  the  Marchmont  charter-chest,  and  notwithstanding  what 
I  had  written  upon  the  subject  baring  long  stood  without  demur  or 
challenge  from  the  same  quarter,  where  it  had  been  fully  imparted, — 
I  was  confidently  required  by  one,  no  doubt  impressed  with  a  lauda- 
ble desire  for  Lord  Wemyss's  interests  at  once,  de  piano,  to  quash  and 
cancel  my  remarks,  and  in  effect,  also  toleare  the  present  matter  and 
discussion  a  eompleU  hlanky  without  even  the  redeeming  oonsequeoce 
of  its  ever  being  obviated,  or  compensated  for,  as  in  the  case  of  signa- 
tures.   Of  course,  I  peremptorily  refused  to  adopt  such  step ; — which,  if 
I  had  done,  owing  to  whatever  inducement  and  consideration,  I  would 
have  been  guilty  of  the  grossest  obliquity,  undue  bias  and  inconsis- 
tency, and  hare  glaringly  deviated  from  the  vital  principle  that  has 
ruled  me  in  this  performance — as  announced  in  the  Pre£Bce — of  exptt- 
eating  the  truth  in  what  I  discuss,  ^  however  it  may  bear,  by  a  close;, 
strict  analysis ; "  * — without  which,  our  true  and  genuine  Peerage  law 
The  ffenenil     ^^^  practice  can  never  be  rightly  illustrated  and  matured.    For  I  need 
March  ea*e,  im-  hardly  add,  that  the  general  March  question,  in  its  different  features  and 
portaot  to,  and  complexion,  is  not  only  subtile  in  itself,  but  is  also  Erectly  ident^edy  in 
othcf^**^*  ^     *  ^^^^  view,  with  other  weighty  Peerage  cases,   as  affects  a  oorres* 
ponding  descent ;  but  especially  the  import  aliujide,  of  certain  consti- 
tuting signatures  of  existing  Peerage  grants  still  in  force,  which  are 
egtMliy,  as  above,  blank.    This  apparent  defect,  that  must  strike  all 
as  remarkable,  and  demanding  explanation,  I  am  now  obviously 
disposed — owing  further,  to  what  has  been  undeveloped  in  the  March 
instance,  taken  with  that  of  Teviot,  &o.-i-to  regard  with  a  more  fa- 
vourable eye  ;*<— «o  that  the  latter  may  serve  a  vital  and  benevolent 
purpose  in  respect  to  the  former.    As  my  general  conclusions^  besides, 

*  He  claimed  the  booours  by  reference  to  the  Lords  from  the  crown,  July  12, 
1606. — Lords'  Journals. 

'  See  pp.  XT.  xTi. 

*  As  constituting  (to  be  presumed)  a  kind  of  earfe  bUmehe  in  faronr  of  the  party, 
to  be  filled  up  by  bim,  as  he  inclined, — virtually  amounting  to  a  facolty  of  nomina- 
tion upon  a  regrant  of  honours,  as  repeatedly  shewn. 


ADDENDA.  1065 

in  respect  to  the  March  case,  are  also  favourabley—combiniDg  this  cir- 
cumstaDce  with  the  doubt  aod  dlstmst  that  has  hitherto  environed  it, 
from  the  terms  of  the  ultimate  limitation  in  1697,  in  the  minds  of  some 
lawyers, — by  whom  it  has  not  unseldom  been  mooted,*  I  am  not  alto- 
gether without  hopes,  if  I  be  well  founded  in  my  expositions  and 
doctrine,  that  their  publication,  based  and  grounded  as  they  are,  upon 
full  aod  unbiassed  inquiry,  may  not  eren  be  unacceptable  to  the  noble 
person  whom  they  chiefly  oonoem.  And  this  independently  of  the 
beneficial,  ntpfUemental,  or  compensating  result,  as  practically  evinced, 
from  my  original  scruple.  My  former  opinion  quaUfiedy  without  fore- 
closing the  point,'  and  impartially  divulged,  was  all  I  could  then  safely 
and  prop^ly  offer ;  while,  even  if  I  had  been  essentially  and  unpar- 
donably  compromised,  and  palpably  ignorant  in  my  fiicts,  it  would  have 
been  especially  incumbent  to  have  publicly  confessed  the  error,  instead 
0^  as  required,  at  once  abjuring,  or  stifling  discussion.  In  such  confes- 
sion of  ignorance,  I  would  always  glory ;  it  being  a  main  stepping-stone 
to  just  views,  and  due  advancement  of  the  legxd  subjects  I  profess  to 
discuss.' 

*  The  March  honours,  «t  notorioui,  have  never  yet  been  claimed,  so  the  qaes- 

tion  if  fully  open. 

'  See  pp.  207-6. 

'  In  reference  to  the  actual  sealing  of  the  March  patent,  1  may  more  explicitly  Further elucida- 

add  this  order  by  the  Privy  Council,  though  not  until  the  Qik  of  June  1697,  after  tion  in  respect 

receipt  of  the  King's  letter,  (the  24th  of  May  1697,)  whereby  they  do  'UaAe  of^V^^^E  otthe 
.       ^    .'L^  ^\      *  .     ««>  .     ..  .^*v-  ,  ..    March  patent  in 

the  itop  putt  on  by  them,  of  the  date,  30  April  1697,  upon  the  patent  granted  by  jggy   ^^  f^. 

his  Majesty  in  favour  of  Lord  William  Douglas,  to  be  Earle  of  March,  etc.,  andlative  practice, 
ordain e  the  said  patent  to  pass  the  sealls,  (truly  but  only  then,)  and  to  be  given 
out,  as  if  the  sealf  had  heen  appended  thereto,  when  it  was ^r«^  presented,  before 
the  stop  was  laid  thereupon."     Privy  Council  Register,  ut  sup.     This  accounts 
for  the  indorsation  referred  to,  of  the  Bfarch  signature,   with  the  latter  legal 
date,  (see  p.  1056,  n.  2.)     These  particulars  and  others  respectively,  are  impor- 
tant, as  elucidating  our  understood  forms  and  procedure  in  passing  patents  and 
grants  of  honours.     It  is  of  little  real  importance  to  the  March  question,  whether 
the  filling  up  and  completion  of  the  Signature  in  1697,  which  is  in  a  different  ink, 
was,  or  was  not,  in  a  different  hand, — this  evidently,  as  in  the  Teviot  instance,  hav- 
ing been  effected  in  Scotland.     In  respect  to  the  Cassilis  case,  (see  p.  1053,  «.)  1 
may  add,  that  notwithstanding  the  interpolation  of  the  honours  in  the  extended 
and  incompetent  charter  in  1671,  it  likewise  transpires  from  the  Registration  of  Registered  copy 
its  signature  in  the  State  Paper  Office,  that  they  are  not  there  included  in  the  re-  of  Cassilis  sig- 
gulating  conveyancing  clauses.     I  say  regulating,  or  legally  effective  ones,  be- P^^"*^®  ^°  1671, 
cause,  according  to  our  notable  practice  again,  and  as  exemplified  in  the  other  in-  p  -  .   r\(^  ^ 
ept  instance  of  the  charter  of  the  lands  of  Mclvill  in  1686,  (see  p.  897.  ».)  there  has  a  similar  in- 
is  elsewhere  iueidentalfy,  a  condition  that  the  husband  of  the  heir-female  succeed-  ®pt  clause,  as  in 
ing,  whether  a  Kennedy  or  not,  and  their  heirs,  shall  take  the  **  arms  and  dignity  ^^®    Melvill 
of  the  Family  of  Cassilis, "  &c.     This  empty  arrangement  as  to  the  dignity,  has  been  ^**"*®'  »n  1 686 . 
copied,  per  ineuriam,  from  the  previous  draft,  into  the  Cassilis  signature. 


1066  ADDENDA. 


Remarkable  I  observe  in  the  Lords'  JourDals,  under  date  December  23, 1G40,  an 

^h™L*"dJ    of  order, «  That  the  consideration  of  F&reign  Nobility  of  Scotland  and  Ire- 
]640  renrdioff  ^^°^»  ^^^  ^^®  Creation  of  Baronets  of  Nowi  Scotia,  be  referred  to  the 
the  **  foreign  "  Committee  of  Priyileges^'*  with  a  ^  Memorandum  **  there,  subsequent- 
Sco"»h  NobU-  ly  in  the  same  year,*  "  Tliat  Mr.  Attorney  General  is  to  inquire  of  the 
cedence^°of''(^e  ^^  Chief  Justice  of  the  Common  Pleas  for  the  Papers  and  Directions 
latter  in  Enp^  which  he  received  from  the  Lords  Committees,  concerning  Foreign  No- 
land,  before  the  bility,  and  Baronets  of  Nova  Scotia,  to  debar  them  of  any  place  in  this 
kinffdomi.         Kingdom**    Perhaps  some  of  the  legal  Antiquaries  of  the  sister  king- 
dom  might  still  recover  the  relative  papers,  which  may  be  curious,  and 
£ftvour  us  with  their  publication.    By  the  hitherto  conceived  practice, 
e  contra,  after  the  union  of  the  crowns,  and  before  that  of  the  kingdoms, 
Scottish  PeerS)  in  England,  ranked /rom  those  of  the  same  degree ;  and 
the  English  Peers,  in  Scotland,  eddem  wee.    The  Duke  of  Lennox  and 
Marquis  of  Hamilton,  Scottish  Lords,  in  IGST^  are  both  ranked  ai 
Whitehall,  before  the  Earl  Marshall,  Earls  of  Northumberland,  Dorset^ 
&c.  (see  Rush  worth's  Historical  Collections,  Part  II.  pp.  462,  471.) 
Vernon,  in  a  letter  to  the  Duke  of  Shrewsbury,  July  18, 1699,  alludes 
to  a  duel  between  "  Lord  Wharton,  (only  then  an  English  Baron,)  and 
Lord  Cheyney,*'  because  Lord  Wharton  had  sat  "  on  the  rigfu  hajid  of 
the  Chairman  "  at  the  Buckingham  Sessions,  **  which  he  (Lord  Chey- 
neyj  pretends  belongs  to  him,  as  a  Scotch  viscount"  (Vernon's  Let- 
ters, vol.  II.  p.  324.)  The  latter,  in  virtue  of  a  patent.  May  17, 1681,  Vis- 
count Newhaven,  and  "  Lord  Cheyn"  in  Scotland,  (Great Seal  Register,) 
liad  apparently  as  good  a  right  to  such  precedence,  as  the  Duke  of  Len- 
nox, and  Marquis  of  Hamilton  to  theirs  in  1637. — I  had  intended  to 
add  some  remarks  upon  the  import  of  the  term  "Heirs"  in  the 
seventeenth  century,  but  must  postpone  them,  with  various  remaining 
matter,  &c.  to  another  occasion. 

'  Feb.  17,  1640.  February  being  then  subieqaent  to  December  in  the  Galea* 
dar  of  the  year.  It  is  liogalar,  that  neither  by  the  Artidei  of  Union,  or  any 
specific  enactment,  is  the  precedence  of  Baronets  of  Nora  Scotia,  properly  defined 
and  settled. 


INDEX, 


(including  miscellaneous  matters,  &c.) 


Abereom,  Eari,  case  of,  as  a  British  Peer, 
in  1793,  819. 

Ahemethy  of  Attehincloich,  and  his  male 
heirs,  their  claim  under  ^he  later, 
and  ciisting  British  practice,  to  the  Ba- 
rony of  Salt  on,  independent  of  that  in 
the  Erasers,  as  heirs-female,  by  our  pure 
original  Scottish  law,  187,  189,  946-7. 

Abeyance  unknown  to  us,  in  the  usual 
English  sense,  in  the  case  of  a  dignity, 
but  may  obtain,  in  substance,  otherwise, 
114,  et  Meq.  Does  it  thus  apply  to  the 
Barony  of  Jedburgh,  and  Viscounty  of 
Oxenford?  118-119,  380-1.  It  may, 
in  the  case  of  the  Dukedom  of  Rothe- 
say, created  in  1398,  163,  n.  1,  262-3- 
4,  380,  n.  3,  692,  n.  By  abeyance  in 
England,  a  dignity,  in  respect  to  coheirs, 
is  ad  arbitrium  corone;  but  for  a  fair  excep- 
tion to  the  rule  even  there,  tee  case  of  the 
Earldom  of  Pembroke  in  1339,  1044. 

Aboyne^  Vueounty  of,  (tee  Melyum.J 

Act  of  Creation  ;  see  Creation,  Ad  of 

Actiones  injvriarum,  in  the  Consistorial 
Court,  446. 

Ads  of  Parliament  in  Idth  and  16th  cen- 
turies, illustratiTe  of  the  female  succes- 
sion, 174.  Act  1592,  c  13,  with  Lord 
Mansfield's  inconceivable  objection,  662. 
Acts  of  Parliament  regarding  prescrip- 
tion, 1617,  c.  12,  137,  d  seq — 1617, 
c.  13,  140.  d  seq.  Act  of  Parliament, 
(private)  with  us,  in  the  1 7th  century,  un- 
able to  cure  a  defect  in  a  grant  of  hon- 
ours, 558-9;  see  also  185  6,  667-8.  Acts 
1600,  c.  29;  1563,  c.  10,  and  1581,  c. 
7,  in  respect  of  adulterers  and  their 
marriages,  390-1,  «<  seq.  Act  1663,  c. 
19,  specialty  thereby,  in  treason,  754. 
Act  1690,  c.  104,  as  to  forfeiture.  Does 
it  bear  upon  honours  ?  1 27-8,  762,  766. 
Justice-Clerk  Macqueen's  opinion,  762- 
6.  Analogy  between  the  latter  Act,  and 
English  ttotute  de  Vonis,  763. 


Adamt  the  late  Mr,  (English  barrister), his 
opinion  in  Forfeiture,  respecting  an  * 'Es- 
tate tail-male  general,"  723-4. 

Admiralty  Court,  under  control  of  the  Ses* 
sion,  and  further  illustrative  of  their 
general  cognizance  in  civitibus,  325  to 
332.  Original  notices  of  the  former, 
first  styled  by  us,  the  "  Ferde  Coud," 
including  its  proper  constitution  in  1509, 
with  the  relative  early  cognisance  and 
practice,  326  to  331. 

Admiral,  high,  hereditary  office  of,  its  con- 
stitution in  the  Hepburns,  Earls  of  Both- 
well,  in  1511;  with  right  of  Admiralty  in 
private  families,  including"  wrak,  wauch 
le  wattiU,*'  &c.  326-7,  notes.  Question 
of  precedence  between  the  Earl  of  Both- 
well,  as  Admiral,  and  the  Earl  of  Errol, 
as  Constable,  in  1585,  166-7. 

Admiraltyuid  Orkneyduesin  16th  century; 
see  **  fFrak,  haif  wreck,"  &c. 

Adultery,  divorces  a  vinculo  for,  only  truly 
competent  with  us  after  the  Reformation, 
435-6-7-8,  d  seq. 

Adulterers  divorced  a  vinculo,  case  of  mar- 
riages between,  after  the  Reformation, 
391  to  411. 

Affidavits  not  admitted  in  the  Wigton 
Peerage  claim,  in  1782,  635. 

Aiguillon,  Duchy  **  Pairie*'  of,  in  France, 
in  1638  ;—see  Viynerot,  Mary  de. 

Ailesbury  Family  in  England,  254-5,  n. 

Aitiie,  Earl  of,  bis  precedency  in  J  643, 81. 

Airlie  Earldom,  limitations  of,  by  patent 
1639,  204,  IV.  2.  Important  case  of 
forfeiture  affecting,  in  1812,  and  other- 
wise, 724  to  730,  848. 

Airth  Earldom,  claim  to,  between  the  co- 
heirs, and  at  present,  646,  n.  3, 920,  w.  5. 

Albany  Dhhedom,  creation  of,  in  1398, 
163,  ».  1,  262-3. 

Albany,  Alexander,  Duke  of,  and  the  Lady 
Catherine  Sinclair,  their  case  in  1477, 
475-6.  (John,)  Duke  of^  his  coronet 
and  heraldic  attributes,  fixed  by  the 
Session  exclusifoly,  in  1515,  4-5. 


1068 


INDEX. 


Albany,  Dukedom,  conttituting  charter 
of,  io  1565,  in  favour  of  Henry  Lord 
Darnley,  with  Act  of  Creation,  176,  n. 
5,  570,  R.  4,  689 See  also  Sardinia. 

Alexander  ;  see  Humphryt  or  Alexander, 
also  SHrling  Peerage,  &c. 

Alexander,  William,  the  American  Gene- 
ral ;  see  Stirling,  Earldom  of. 

Alienage  in  Forfeiture,  718,  720 — 722. 

Alimonia  in  Forfeiture,  to  family  of  traitor, 
after  attainder,  did  not  infer  with  us,  full 
pardon  or  restitution,  753-4. 

AUardice,  Robert  Barclay,  Esq.  9f  Urie, 
646-7,  n.  3. — See  also  under  Strathem, 
and  StewarU,  Legitimacy  of,  &c. 

Ambastadore,  (foreign)  how  lodged  in 
Scotland  in  1496,  267,  ». 

Angus,  Archibald,  Earl  of.  See  Marga- 
ret  Tudor,  Queen  ofJame§  IK 

Angus,  Earldom  of,  in  the  14  th  century, 
and  downwards,  claim  to  the  highest 
precedence  in  its  behalf,  after  being  in 
the  Douglasses,  in  virtue  of  their  as- 
serted right  of  first  rote  in  Parliament, 
&c.  155  to  162.  Ranked,  in  conse- 
quence, as  the  first  Earldom  in  1606, 
159  ;  though  the  Earldoms  of  Marr  and 
Sutherland  are  the  oldMt  by  original  con- 
stitution. — See  also  under  Douglass, 
fFilUam,  Earl  of,  and  Douglasses,  &e. 

Angus  Earldom,  remarkable  case  oP,  be- 
fore the  Session,  in  1588,  with  refuta- 
tion here,  of  Craig  and  Erskine,  6,  7, 
321,  el  seq Claim  to,  in  1762,  649-50. 

Annandale  Marqidsale,  limitation  of,  by 
patent  1701,  contrasted  with  the  signa- 
ture, 6 1 ,  205,  1054-5.  See  too  Cassilis, 
Earldom  of,  Oxenford  Viscounty,  and 
1063,  &c. 

Annandale  Honours,  claims  to,  920,  n.  5. 
See  especially,  as  respects  the  Earldom 
of  Annandale,  and  Hartfell,  667-8. 

Annandale,  James,  Marquis  of,  his  settle- 
ment in  1 709,  as  bearing  upon  the  con- 
ceived non-efiect  of  the  Union,  as  to 
regrants  of  honours,  27 1. 

Appeals  from  Session  to  the  Scottith  Par- 
liament  discharged  before  1689,  and 
however  the  law  justly  stood  thereafter, 
never  properly  or  fully  admitted, —of 
course,  too,  as  respects  honours,  12-13, 
20-21,  31,  et  seq.  See  also  Stair, 
Lord,  and  Stewart,  Sir  James. 

Appeals  to  Home,  in  Consistorial  cases, 
frequent  with  us  before  the  Reforma- 
tion, 449-50,  and  Append.  981,  et  seq. 

Arbroath  Abbey,  erection  of,  into  a  tem- 
poral Lordship,  with  the  dignity,  in 
1608,  245. 

Arde,  Alexander  de,  the  female  heir  of 
line,  to  the  Earldoms  of  Strathern  and 
Caithness,  in  the  14th  century,  562-3,  n. 


Archbishops  of  St  Andrems,  and  Glaagosa 
bad  apper  vassals,  who  held  of  them 
qua  "  Barons,"  89,  it.  1. 

Argyle,  Earl  cf,  question  of  precedence 
between  him  and  Earl  of  Sutherland, 
before  the  Session  in  1693,  31.  Baaed 
upon  his  high  hereditary  offices  of  Jus- 
ticiar of  Scotland,  and  Master  of  the 
Household,  162. 

Argyle,  attainted  Earl,  head  of,  to  be  taken 
down  by  order  of  James  II.  in  1688, 
from  the  Tolbooth,  where  it  had  been 
fixed  since  1685,  126,  n.  3. 

Argyle,  noble  Family  cf,  held  also  rather 
singularly,  the  hereditary  office  of  the 
Commissariat  of  Argyle,  435. 

Argyle,  Jean  Stewart,  Countess  of,  sister 
of  Queen  Mary,  her  singular  matrimo- 
nial case,  with  original  particulars,  547. 
et  seq.  See  Divorce  for  wilful  desertion. 

Armorial  bearings  properly  owing  to  the 
Crusadet.  Older  instances  of  Scottish 
arms,  1049,  1050-1,  350,  n. 

Armour-bearer,  hereditary  office  of,  274. 
n.  1.    See  also  under  heritable  Offices. 

Arran  Earldom,  case  of,  before  legitimate 
Tribunal  of  Session  in  1586,  7-8,  et  seq, 

Arran,  James  Stewart,  Earl  of,  the  un- 
worthy favourite  of  James  VI.  Hid. 
Degraded  state  of  his  descendants,  by 
his  equally  abandoned  spouse.  See  un- 
der Stewart,  Dame  Elizabeth,  after- 
wards Countess  of  Arran,  &c 

ArrhiB,  obtained  with  us  also,  in  respect 
to  the  marriage  ceremony,  480. 

Arundel,  territoried  Earldom  of,  contrasted 
with  the  territorial  Barony  of  Torphi- 
cben,  or  **  Saint  John,"  in  Scotland,  94. 

Assignatis,im};>orlo(,  in  limitations,  208,  et 
seq. ;  221 ,  289,  n.  See  also  (of  old)  693. 

Aston  Barony,  case  of,  in  1713,  1751,  and 
1816,  776-7,  n. 

Athole  Earldom,  case  of  in  1629,  177-8. 

Athole  Dukedom,  case  of,  owing  \o  forfeit- 
ure, from  1715  to  1733,  202,  958;  im- 
portant one,  also  under  Forfeiture,  in 
1764,  730,  etseq. 

Andley  Barony,  in  fee- simple,  case  of  for- 
feiture affecting,  in  1631,  737. 

Avendale,  Barony  of,  in  the  15th  and  16th 
centuries,  808-9,  n.  1. 


B 


Balcarras,  Earl  of,  lineal  heir-male  and  re- 
presentative of  the  Earls  of  Crawford,  &c. 
and  their  heir  under  patent  1642,  976-7. 

Baif our  of  Burleigh,  Barony  of,  constituted 
in  1607,  without  mention  of  heirs,  100, 
see  also  10 1 ;  yet  descends  to  heirs-ge- 
neral, in  conformity  to  our  genuine  legal 
^resamptioni  or  understanding,  175*6. 


INUEX. 


1069 


BaffaWt  ColoneU  Important  case  affecting,  I 
nnder  international  law,  in  1582, 414*15. 

Balturmoch  Abbacy^  erection  of,  into  a 
temporal  Barony,  with  dignity»  in  1603 
_1607,  245,  248. 

Balmerinocht  John  Lord  of^  rehabilitated, 
and  restored  to  the  Family  honours, 
against  a  forfeiture,  by  the  exclusive  act 
of  the  king,  in  1613,  129,  760. 

Bandonbridge,  Irish  Barony  of^  created  in 
1627,  case  of,  under  Devon  claim, 
1029-30. 

BanJkton,  Lord,  account  by,  of  the  Lovat 
case  in  1729-30,  371,  n.  3. 

Banneret,  or  Baronent,  title  of,  given  to 
oar  noblemen  on  their  creation,  572. 

Baptie  v.  Barclay,  case  of,  in  1665,  under 
Consistorial  law,  504. 

Barpeny,  Barony  cf,  now,  and  long  since, 
extinct,  897»  n.  1. 

Barpeny  dedaion  in  1738,  199,  859,  et 
$eq.  ;  see  also  Mordinyton,  Barony  cf, 
&c.,  and  case  of  Johnstone  Goodinge  v. 
Johnstone,  in  1839,  &c. 

Baronent,  see  Banneret, 

Baronetcies  of  Nova  Scotia,  or  Scottish, 
right  to,  may  be  affected  by  Act  1617» 
c.  13,  enacting  the  vicennial  prescription 
ofretours,  143; — see  also  1066. 

Baronetcies  of  Nova  Scotia  older,  joined 
to  grants  of  lands  there,  limitations  of,  in 
the  warrants  of  their  constitution  to  **heirs 
male  and  assignees,'*  contrasted  with  the 
iubsequent  extensions,  208.  For  unique 
instance  of  a  Scottish  Barony,  together 
with  a  regality,  and  lands  in  Nova  Scotia, 
instead  of  a  Baronetcy,  see  Netehurgh, 
Barony  cf» 

Baronies,  two  kinds  of,  with  us,  a  higher  and 
lower,  besides  a  third,  in  the  case  of 
higher  feudal  vassals  of  the  Archbishops 
of  Saint  Andrews  and  Glasgow,  89,  m. 
1 ;  102  ;  see  also  Prelates.  For  a  deroi- 
clerical  and  civil  higher  Barony,  see 
«•  Saint  John,  Lord  of.*' 

Bastards,  had  they  a  right  formerly  with 
ns,  to  test?  416. 

Battle,  leading  the  vanguard  of  the  army, 
on  the  day  of,  asserted  heritable  office 
in  the  family  of  Douglas,  157-8. 

Beaton,  Cardinal,  murder  of,  when  Chan- 
cellor, in  1546,  treason  by  our  laW|  and 
relative  procedure,  740. 

Beaumount,  Viscounty  of,  in  England,  in 
the  reign  of  Henry  VI.,  its  limitations, 
1035. 

Belhaven  and  Stenton  Baronies,  patent  of, 
in  1675,  opinion  by  English  counsel  as  to 
the  import  of  limitation  therC)  according 
to  the  English  law,  i047. 

Belhaven  and  Stenton  Baronies,  case  of,  in 
1790-d,  1795-9,  where  an  extension  of 


the  principle  of  conquest  was  rejected 
in  succession,  and  the  law  of  England 
peremptorily  discarded  for  that  of  Scot- 
land, 635  to  847.  See  too  Append.  No. 
Vlll.,  1047.  Absurd  pleas  of  unsuccess- 
ful Belhaven  claimant  here,  prompted  by, 
and  under  countenance  of  Lords  Mans- 
field  and  Rosslyn,  equally  disowned,  846. 

^* Belting,"  or  "  cinctura  gladii,"  a  mere  ac- 
cessory In  the  act  of  creation,  49,  60. 
Preposterous  idea,  and  halluGination  of 
Lords  Mansfield  and  Rosslyn,  in  regard 
to  it,  573,  629-31,  699,  700,  772,  n.  6, 
822,  n.  3,  (nnd^  Creation,  Act  of,  which 
also  see)  ;  full  refutation  of  former,  680 
to  695.  Lord  Mansfield  here  ambidex- 
ter, 683-4, — analogy  between  **  belt- 
ing "  and  feudal  investiture,  both  with 
us,  and  in  England,  681-2, — some  such 
accessory  rite,  or  inauguration  held  in 
all  cases  of  instalment  or  possession ;  in 
the  induction  of  a  Parish  Clerk  into  his 
Office,  before  the  Reformation,  682,  i». 
2.  Specialty  in  belting,  from  its  some- 
times preceding  written  grants  of  hon- 
ours, which  misled  Lords  Mansfleld^d 
Rosslyn,  &c.  692-4.  InsUnces  of**  belt- 
ing," from  1404  downwards,  together 
with  relative  written  grants,  690,  et  seq. 

Bibles,  Family;  see  under  Evidence, 
English. 

Birtwhistle  against  Vardill,  recent  impor- 
tant case  of,  and  opinion  by  12  Judges, 
seemingly  at  variance  with  that  of  th« 
Countess  of  Lennox,  and  Henry  Lord 
Damley  her  son,  in  England,  424-5. 

Bishop,  Thomas,  a*  singular,  and  public 
personage  in  the  16th  century,  his  gro- 
tesque adventures,  and  connection  with 
the  heiress  of  Cadder,  &c.  412,  n. 

Bisset,  case  of,  in  1562,  under  Forfeiture, 
as  to  corruption  of  blood,  759. 

Blank,  partial,  In  signature  of  honours,  con- 
structive effect  of;  see  Signature,  Carte 
Blanche,  and  NomintUion  to  Honours. 

Blantyre  Barony,  creation  of,  in  1606, 359. 

£/oocf,  under  Forfeiture;  see  Corruptionqf. 

Bolingbroke  Fiscounty,  case  of,  under  For- 
feiture, and  conceit  once  entertained  as 
to  same,  715,  783. 

Bonamfidem,  or  ignorantiam  legitimation 
per,  repudiated  In  England,  420  ;  but 
clearly  holds  with  us,  446  to  475.  See 
Legitimacy, 

Books  printed,  credit  of;  see  Hietorieal 
Evidence,  under  Evidence, 

Borthwiek  Barony,  claims  to,  in  1762, 
1808,  and  1812,  involving  latterly,  with 
descent,  remjudicatam,  and  illegitimacy, 
from  exception  of  naturalie  {tetntum,) 
backed  by  a  legitimation,  (see  Natural 
too),  579  to  594,  and  847.     See  also 


1070 


INDEX. 


932-3.  Claim  to  the  said  Barony  in  1 774, 
650. 
Barthwick,  William,  of  SoUray,  forfeited 
for  theft,  &c.  in  1604,  in  tcrmi  of  Act 
1587,  c.  50,  129-30. 
Dothwellf  JTepbums,  Earls  of,  constitution 
of  office  of  hereditary  Admiral  in  their 
fafour,  in  151 1  ;  old  iculptaral  decora- 
tions expressive  of  the  office,  on  their 
fine  Castle  of  Crichton,  327-8,  n.  (See 
also  Admirttl  of  Scotland,) 
Bothwell,  Jame$  Hepburn,  the  noted  Earl 
of,  *'  quietly,"  and  hence  illegally  mar- 
ried to  the  celebrated. Lady  Buccleugh, 
427-8,  «. — his,  and  his  Countess's  re- 
markable  divorce    cases   in    1567,  af- 
ter partial  restoration  of  the  old  Con- 
sistorial  Court,  which  bears  likewise  upon 
Queen  Mary's  conduct,  433,  et  §eq. 
Bowes  British  Barony,  case  of,  in  1821, 

644,  848. 
Brandon  Dukedum,  case  of,  in  1711,  and 

1782,591. 
Breadalbane  and  Holland,   Earldoms  of, 
,  with  the  respective  titles,  singular  quali- 
fied conveyance  of,  in  1681,220-1. 
Breadalbane  Patent,  registration  of,  exclu- 
sively, by  the  Session  in  1745,  290-1. 
Brodie,  George,  Esq,  Advocate,  524. 
Brougham  Lord;   see  Lyndhttrst,  Lord, 

also  Preface,  x.  n.  &c. 
Bruce,  Christian,  Countess  of  Dunbar,  her 
exemplary  piety,  &c.  in  the  13th  cen- 
tury, 1038.  n. 
Bruges,     Chapelainry    founded    at,    with 
duties,  from  every  Scottish  ship  going 
to  Flanders,  327-8,  •». 
Bruntisland,  Barony  of,  granted  for  life,  in 
1672,  to  the  husband  of  the  Countess  of 
Wemyss,  in  her  own  right,  110-11. 
Buecleugh,  the  noted  Lady  of;  see  Both- 

well,  James  Hepburn, — Earl  of. 
Buecleugh  Dukedom,  case  of,  after  1685, 

under  Forfeiture,  765-6. 
Buehan,  Earl  of,  question  of  precedency 
between  him  and  Earl  of  Caithness,  in 
1661,  14.     Earldom  unduly  ranked  at 
present,  163. 
Buehan  Earldom,  case  of,  in  1698,  32. 
Buehan  Earldom  borne  by  the  courtesy,  by 
James  Erskine,  previous  to  1640,  112; 
see  also  as  to  the  law,  and  practice  of 
the  courtesy,  (even  later)  ib.  Ill — 113. 
Buehan,  Henry  David,  Earl  of,  claim  by, 
under  sole  authority  of  the  Lords,  in 
terms  of  their  resolution,  in  1822,  851-2. 
Bury'sCue,  (Eng.)  under  impoteney,  544. 
Bute,  Island  of,  the  refuge  of  all  rebels 

and  malefactors  in  1588,  225,  n.  1. 
Butler,  his  character  of  Lord  Mansfield  as 
a   lawyer,  707r    ».  ;    see   also    Stuart, 
Andrew. 


"  Cair  "  **sponsal  elaith,"  or  nuptial  ** pal- 
lium,** material  attendant  ceremony  oft 
with  us,  in  the  case  of  subsequent  matri- 
monium,  478-9,  n.  4.    Illustrative  cases, 
ib.  485-6,  ft.  4,  496,  524,  it.  5. 
Caithness,  ancient  or  original  Earldom  of. 
See    Strathem,   original  Earldom  of; 
and  Arde,  Alexander  de. 
Caithness,  Earldom  of,  in  1452, — its  con- 
stitution and  act  of  creation,  693. 
Caithness  and  Orkney,   William  Sinclair, 
Earl  of,  before,  and  after  the  middle  ti 
the  15th  century;  question  of  seniority 
of  his  noted  otTspring,  608-9,  it.  3. 
Caithness  E<irldom,    constitution   of,   in 
1476,  and  subsequent  descent,  in  signal 
and  reiterated  refutation  of  Lord  Mans- 
field, 604-5,  608-9-10.    See  alto  here, 
inttr    alia,    Methven,  Barony  of,   and 
under  ComiiaJtus, 
Caithness,  Earl  of,  question  of  precedence 
between  him  and  Earl  of  Buehan  in 
1661,  14. — his  Earldom  unduly  ranked 
at  present,  163. 
Caithness  Earldtnn,  case  of,  from  1677  to 

1681,  29,  30,  72 Cases  of,  in  1768, 

1771-2,  1787,  1790,  1793,  608  to  622, 
curious,  and  unexampled  nature  of  the 
claim,  affecting  two  parties,  in    1768, 

1787,  and  thcreaOer,  611  to  621 In 

last  Caithness  claim,  **  natural "  applied 
to  progeny,  found  to  mark  and  fix  their 
bastardy,  583, — Case  of,  before  the  Ses- 
sion in  1790,  292.  See  also  620-1,  816. 
Caithness,  John  Earl  of,  who  died  in  1789, 
his  singular  fate,  as  well  as  that  of  bis  op- 
ponent James    Sinclair,    the    righteous 
Caithness  heir,  previously,  615  to  619. 
Calender  Earldotn,  regulating  conveyances 
of,  under  competent  royal  authority,  io 
1647,  1657,  1672,  &c.  219,  260. 
Camden,  Lord,  his  strange  depreciation  of 
the  Sutherland  case,  or  legal  informa- 
tion by  Lord  Hailes,  191. — Hismiscon-  * 
ceptions  and  errors,  604-5-6. 
Campbell,  Colonel,  his  action  of  Exhibi- 
tion of  patents  and  important  deeds, 
against  Lady  Mary  Lindsay  Crawford, 
in  1823-6.     See  Exhibition, 
Campbell,  President,  account  by,  of  Lovat 
case  in  1730,  372,  n.-^Uis  disapproba- 
tion of  strange  Macadam  decision,  487. 
Campbell  of  Lawyers  ;  see  Loudon,  JSa- 

rony  of. 
Canon  Law,  Romish,  under  ceitain  modi- 
fications, a  great  rule  with  na,  both  be- 
fore and  after  Reformation,  449,  et  seq, 
Cardross  Barony,  constituted  in  17th  cen- 
tury, rather  curious  case  of,  208-9,  etseq, 
**  Carnal,*'  before  the  Reformation,  some- 
times interchanged  with  ** natural"  by 


INDEX. 


1071 


ui,  io  reference  to  ipnrious  progeny, 
450>  n.  836,  n.  2  ;  see  also  Natural. 

Cttniwath  Baromy,  curious  old  jocular  te- 
nure of,  by  the  Lords  Somerville,  350, 
n. 

Carrcu  against  Johb,  remarkable  case  of, 
in  1576,  shewing  the  necessity  of  publi- 
city in  the  marriage  ceremonial,  479-80. 

Cartt  Blanche  f  see  Nomination  to  Hon- 
ourg, 

dutilit  EarkUmt  case  of,  in  1760-2,  556 
to  579.  Glaring  contradictions  and  mis- 
representations of  Lord  MansiielU,  561, 
et  seq.;  see  also  668-9-70.  Cassilis 
charter  in  1671,  disconform  to  its  sig- 
nature ;  hence  former  inept  as  to  the 
honours,  559,  1053  et  aeq.  1065,  n.  2. 

Caetleetewartt  Barony  of,  in  Ireland,  809. 

Catheartj  David,  Eaq.  (Lord  Alloa,)  jus- 
tice of  his  notions  as  to  constitution  of 
marriage  with  us,  461,  495,  n.  2  ;  his 
pertinent  remarks  here,  that  struck 
Lord  Stowell;  with  misconception  of 
the  latter,  502. 

**  Caupes  "  taking — a  Gallowidian  custom, 
574-5 ;  see  KenkynoU 

Celebration  and  Ceremonials,  8tc,  in  mar- 
riage.    See  Marriage. 

Ceremoniet,  Matter  of.  See  Justice"  Clerk. 

Chalmers  against  Lumsden,  case  of,  in 
1560,  (under  Consistorial  Law),  427. 

Chalmer  the  Solicitor,  his  crude  and  mis- 
taken impressions  in  Peerage  matters, 
384,  n.  3.     See  also  as  to  him  aliunde, 

578,  622-3,  707,  n His  report  of  the 

modem  Strathallan  case  in  1790,  746. 

Chancellour,  Lord,  Keeper  of  the  signa- 
tures or  warrants  of  grants  of  honours, 
ex  officio,  with  us,  1064,  1056,  n.  1. 

JOharles  J.  attends  the  discussion  by  the 
Session  of  the  Oliphant  Peerage  claim 
in  1633,  with  authentic  notices  of  his 
movements  then,  in  palpable  refutation 
of  Lord  MansBeld,  18,  ».  1,  19,  &c. 

Charter  of  Honours,  dated  at  Edinburgh, 
809,  812-14.     See  also  Dignity. 

Chastelherault,  Regent  Duke  of,  important 
transaction  between  him,  and  Mary  of 
Lorraine,  in  1553,  197,  n. 

Chemys,  or  Messuage  chief,  dignity  con- 
nected with,  92. — Former  did  not  ori- 
ginally go,  as  now,  911a  pnedpuum,  to 
the  eldest  co-heiress,  recompensation 
here,  being  due  to  the  younger,  998,  n.  2. 

Chenes,Alexander  and  Patrick,  remarkable 
case  of  legitimacy  between,  with  appeal 
to  Rome,  and  its  final  settlement  there, 
by  compromise  in  1513,  449-50,  n,  2. 

Chettry,  a  Shetland  or  Orkney  tax ;  see 
fFrak. 

Chief  Messuage  among  co-heiresses ;  see 
Chemys. 


Christenius,  repeatedly  quoted  by  Sir  John 
Nisbet ;  his  strict  doctrine  as  to  marriage 
celebration,  506-7. 

Christians  opinion  as  to  effect  of  an  £n- 
glUh  Act,  312. 

Church  property,  curious  situation  of,  af- 
ter the  Reformation  ;  its  secularization, 
and  anomalous  grants  thereof,  with  dig- 
nities, to  laics.  237  to  255 Seised  by 

hypocritical  laics,  who  instigated  the 
Reformation,  but  oddly  assumed  the  for- 
mer ecclesiastical  styles,  239-40-49-50. 

Cinctura  gladii  in  act  of  creations;  see 
*»  Belting." 

Civil  cognizance  in  Consistorial  questions 
after  the  Reformation,  justified  by  that 
at  present  in  Papal  countries,  429,  n.  4. 

Civiliter  mortuus,  plea  of,  under  forfeiture, 
in  reference  to  a  convicted  traitor,  747- 
8.     See  also  Airlie  Earldom,  case  of. 

Claim  to  Dignity  (Scottish)  in  a  remoter 
heir,  or  the  qualifying*  any  interest,  en- 
titles a  party  here,  to  object,  and  to  be 
heard,  607-8,  830-1.  See  also,  in  re- 
gard to  Peerage  claims,  under  Exhibi- 
tion, King,  Dignity,  Evidence,  Succes- 
sion, Retourst  Services,  &c.,  and  644-5. 

Claim  to  Dignity,  (English).  See  English 
Procedure  in  Peerage  claims. 

Clergy,  reformed,  or  Knoxite,  even  usurp- 
ed the  Consistorial  cognizance,  with 
higher  powers  than  during  Papacy,  be- 
fore, as  well  as  after  the  Reformation, 
but  here  effectually  checked  by  the 
Commissary  Court,  430  to  433,  442-3. 
— The  former  outwitted  by  the  Lords 
of  the  Congregation,  after  the  Reforma- 
tion, who  strangely,  in  a  manner,  stepped 
into  the  shoes  of  the  church,  239,  et  seq. 

Clerical  Office,  popular  election  in  case 
of,  before  the  Reformation,  682.  n.  2. 

Clerk,  John,  Esq.  Advocate  (Lord  Eldin). 
See  Romilly,  Sir  Samuel.  His  notions 
as  to  constitution  of  marriage  with  us, 
481.  His  disapprobation,  with  other 
high  authority,  of  the  Macadam  deci- 
sion, 487. 

Clerk,  see  Parish,  as  to  that  clerical  office 
during  Papacy. 

Clerkington,  Lady,  case  of,  under  succes*' 
sion,  840,  n. 

"  Cleworth,'*  or  "  C/enw,"— English  Ba- 
rony, original  patent  of,  in  1689,  to 
John  Earlof  Melfort,  discovered  by  Mr. 
TurnbuU,  963-4. 

Clifford,  English  Barony,  case  of,  936. 

Cockbum,  case  of,  in  1 543,  exemplifying 
the  seemingly  great  effect  of  legitima- 
tion, per  rescriptum  Principis,  151. 

Cockbum  of  Langton,  case  of,  in  1747, 
important  in  regard  to  hereditary  offices, 
850. 


1072 


INDEX. 


Coffnizanee ;  tee  Semtm,  Privy  Council, 

Parliament,  Admiralty  Court,  Ste. 
Co'heire$ae9  or  co-paTcenen,  UDgul&r  aod 
not  always  warranted  mode  of  succession 
in  their  instance,  so  different  from  ours, 
in  the  case  of  dignities,  in  England.  See 
under  Hasting*  Barony,  recent  case  of. 
Collateral  suceeMsion  in  Dignities,  Lords 
Hardwicke  and  Talbot's  adverse  notions 
regarding,  382,  n.  3. 

Cohill  of  Culro*t  Barony,  (it  should  have 
been  that  of  "Culross"  alone)  remarkable 
ease  affecting,  in  1723,  289-90,  354  to 
369,  701  to  707,  922  to  926  incl.  See 
also  Spynie  and  Lindorea  Baroniea, 

Colvifl  of  Ochiltrie,  Barony  of,  claim  in 
1784,1788,  777,11. 

Comitaa,  or  International  law,  formerly 
with  us,  including  cases,  413  to  419 ;  ad- 
mitted in  England,  as  to  a  Scottish  par* 
ty  domiciled  there,  though  in  a  point  in* 
volving  the  highest  English  succession, 
in  the  16th  century,  420  to  424. 

Comitate*,  import  of,  as  carrying  a  dignity, 
even  as  late  as  1692,  in  striking  refuta- 
tion of  Lord  Mansfield,  44-5.  See  also 
instance  of  grant  of  Comiiatits  of  Marr, 
in  1565,  259,  n.  1,  133.  Other  iden- 
tical  illustrations  in  1551,  1564,  and 
before,  135,  532,  n.  1,  565,  n.  4,  568, 
598-9,  603-4-5,  608,  610,  688-9,  690, 
191,  et  $eq,  792,  &c.  including  striking 
self-contradictions  by  Lords  Rotslyn  and 
Mansfield,  &c. 

Comiiatue,  efi*ect  of  grant  of,  in  17th 
century,  784, 806 ;  repudiation  of  it  then, 
as  carrying  honours,  better  grounded,  t6. 

CommiMary  Court,  full  consistorial  cognix- 
ance  devoWed  to  them,  under  control  of 
the  Session,  after  1563,  notwithstanding 
attempted  usurpation  thereof,  by  the 
Knoxite  or  reforming  clergy,  before,  as 
well  as  after  the  Reformation,  429 — 433, 
443.  **  Commissariat"  of  Argyle,  sin- 
gularly hereditary  in  Afgyle  family,  435. 

Comyna,  Earls  of  Meneteth,  and  Lords  of 
Badenagh,  notices  of,  991  to  997-8; 
with  others,  of  that  once  great  and  nu- 
merous family,  1044-5,  1049,  1050. 

Comyn,  Isabella,  heiress  of  line  of  the 
original  Earls  of  Meneteth,  994,  et  teq. 
See  under  Meneteth  original  Earldom. 

Con/lrmation  or  ratijication,  whether  by 
royal  regrant,  or  Act  of  Parliament,  of 
a  former  grant  superseded  in  the  limita- 
tion, peculiarity  of,  with  us,  661,  782. 

Confirmation  of  a  nomination  to  honours, 
upon  a  royal  regrant,  not  incumbent, 
260-1 ,  768,  n.  5. 

*'  Congregation,  Lordeof,"  fairly  outwitted 
the  Knoxite  clergy,  their  tools,  at  the 
Reformation,  and  stepped  into  the  shoes 


of  the  old  cbarcb,  with  their  possMsions, 
ludicrously  taking  their  stylea,  &e.  to 
the  bitter  disappointment  of  the  former, 
239,  240,  242-3-4,  249,  &c. 

Conquest,  Law  of,  with  us,  and  its  na- 
ture, as  opposed  to  heritage,  illttstrated 
by  original  authorities,  837  to  841 .  Did 
it  apply  to  honours?  841*2-3. — See 
case  of  Monymail  Barony  in  1627,  1051. 
— Can  it  now?  843-4. 

Consanguinity,  forbidden  degrees  of,  dur- 
ing Papacy  ;  see  (under  Divorce,^  453. 

Consistorial  Law,  our  ochoikr  origi- 
nal, 390  to  556. 

Consistorial  eognixanee  ;  see  Ctml  co^iz- 
anee. 

Constable,  Scottish,  high  hereditary  oiBee, 
(see  also  Errol,  Earl  of,)  its  rankiiig 
and  condition  innorated  upon  since  the 
Union ;  nature  of  the  oifiee  and  funetioos 
formerly,  with  late  strange  degradation 
of  this  EKgnitary,  and  his  undue  postpone- 
ment to  the  English  Marshal,  an  olBce 
everywhere  inferior  to  that  of  Constable, 
276-279,  334  to  338.  Scottish  badges 
of  the  office,  334-5,  e.  I. 

Coronation  of  Anne,  Queen  of  James  VI. 
157,  n.  1.  359-60,  n.  2.  572,  ».  1. 

*•  CorpsPresent,"ot**Herezeld;"  ttutureot 
such  Papal  **  Provent  '*  at  the  Reforma- 
tion, 415,  N.  1. 

Corruption  of  blood  in  Forfeiture,  did  it  <m- 
ginally  hold  with  us  ?  757,  et  seq.  also 
764,  765-6.  Justice-Clerk  Macqueen's 
opinion  here,  766-7.     i  i.  0 

Coupar  Abbacy,  erection  of,  imo  a 
ral  Barony,  &c,  in  1607,  245. 

Coupar,  James  Lord,  curious  and  ludi- 
crous case  of,  as  to  projected  nomina- 
tion and  succession  to  his  bononrsr 
through  agency  of  his  wife,  &c.  before 
the  Session,  in  1671,  20,  85  to  87. 
Singular  affair  between  him  and  Lord 
PItsligo  in  Parliament,  in  1662, 87,  e.  4. 

Couper,  English  noble  Family  of;  see 
Dingwall,  Barony  ef 

Courtenays,  English,  not  descended  of  the 
Freneh  Royal  Family ;  notice,  and  ex- 
planation of  epithet  **  Floms,"  given  to 
their  alleged  fandfbl  ancestor,  867,  «. 
1037,  n.  2. 

Courtesy,  honours  earrled  by,  with  os, 
as  late  as  1640,  and  thereafter,  I ]  I-I2. 
Case  of  Damley  in  reference  thereto, 
112-13.  Illustration  of  courtesy  in  1 527, 
796,  and  further,  anciently,  at  926-7. 

Craig  and  Sinclair,  case  of,  in  1628, 
under  Consistorial  law,  503-4. 

Craig  the  Feudist,  his  unaccountable  in- 
accuracy, even  in  the  case  of  cotempo- 
rary  Scottish  law,  and  facts,  321  and  n,  2, 
322,  n.  1,  416,  n,  2,  484,  n.  2,  840,  m. 


tempo- 


i^'vy^;^    iv    uv^         y ''    »Vv  ifcwr^^^ 


:-<:    /; 


LTV 


INDEX. 


1078 


&e.  See  in  particular,  ander  SSraqn//, 
Robert  Master  of. 

Craiffie,  Robert,  Prendent  of  the  Court  of 
Sasion,  his  decided  opinion  in  1754,  for 
the  female  descent  in  Peerages,  1 92 '3. 

Cramond  Barony,  patent  of,  in  1626, 
with  its  peculiar  limitation,  1032. 

Cranston,  Mr,  his  objectionable  proposi- 
tion in  the  case  of  Riddell  v.  Brymer, 
as  to  private  marriages,  476 — his  opi- 
nion  on  the  nature  of  our  entails,  as  bear- 
ing upon  treason  law,  711,  n. 

Crawfvrd  Earldom,  its  constitution  in 
1398,  and  precedence,  163,  n.  1,  262- 
3. 

Crawford,  Earl  of,  had  a  sitfnifer,  or 
herald,  in  1464,  whose  name  became 
the  family  motto,  265. 

Crawford  Earldom,  case  of,  in  1541,  and 
thereafter,  104,  121-2.  Question  re- 
fifarding  it,  between  David  Lindsay  of  £d- 
zcU,  and  William  Earl  of  Crawford  and 
Lindsay,  irrelevantly  attempted  to  be 
mooted  in  Parliament,  t»  prima  instan^ 
iia,  in  1685,  967  to  977,  with  remarks, 
^ew  and  regulating  regrant  of  Earldom 
of  Crawford,  in  1642,  972,  976-7.  See 
also  Lindsay,  Earldom  of. 

Crawford,  Wiliiam  Earl  of,  curious  inci- 
dent respecting  the  same  Peerage  ques- 
tion, between  him  and  the  said  David 
Lindsay  of  Edzell,  in  1685,  28. 

Crawford,  Earl  of,  question  of  preced- 
ence between  him  and  Earl  of  Suther- 
land, before  the  Session  in  1693,  31. 

Crawford,  Earl  of,  and  Earl  of  Errol, 
allowed  to  be  heard,  for  their  interest  in 
the  Sutherland  claim,  in  1767,  and  1771, 
on  account  merely  of  their  right  of  pre- 
cedence, 607. 

Crawford,  curious  and  important  case  cf, 
in  1 564,  regarding  law  of  marriage,  and 
strict  relative  forms,  478,  488-9,  496-7. 

Creation,  Act  of,  in  dignities,  independent 
of  the  written  grant,  with  the  due  forms, 
&c.  46-9,  60,  573,  626-9-30;  see 
"  Belting,"  and  «•  Herald  Court,"  also 
under  Spynie  Barony,  including  relative 
specialties,  656-  7,  &c.  692-4, — creation 
oi  Earldom  of  Marr,  in  1^1, 684,  n.  2, 
&c. ;   see  also  Banneret, 

Crichton  Castle,  see  Bothwell,  Hephurns, 
Earls  of 

Crichton  of  Sanquhar,  Robert  Lord, 
bung  for  murder  in  England  in  1612, 
instead  of  being  beheaded,  as  with  us, 
130.  Import  of  a  legitimation  of  his 
natural  son,  as  expounded  by  James  VI. 
in  1614,  138  ;  see  also  416,  n.  2. 

Cromarty,  Earldom  of,  its  limitation  by 
patent  in  1701,  202. 

Cromarty  Entail,   In    1714,  as    bearing 


upon  the  conceived  effect  of  the  Union 
in  respect  to  our  honours,  270. 
**Culross,  Barony"  of,  see  CclviU  ofCulross 
Barony, 

D 

Damages  (in  Consistorial  Law),  see 
Seduction, 

Damley,  Henry  Lord,  his  case  in  England 
in  the  reign  of  Elizabeth  (as  to  succes- 
sion), 420-1,  et  seq.,  see  also  Albany 
Dukedum,  and  Ross  Earldom,  &c. 

Davphin,  title  of,  given  to  the  Prince  of 
Scotland  at  the  union  of  the  crowns, 
264— the  Prince's  general  style,  both 
previously,  and  thereafter,  ibid. 

David,  Earl  of  Moray,  (hitherto  unknown) 
younger  son  of  James  11.,  780,  n.  3. 

*•  Daughter,  eldest,"  legal  import  of,  1 95-6. 

Denmetrk,  Anne  of,  see  Coronation  of  Anne, 
Queen  of  James  VI, 

Desertion,  wilful,  see  under  Divorce, 

Devon,  Earldom  of,  uniqne  English  case  in 
1830-1,  statement  of  it,  with  remarks, 
&c.  &c.  1027  to  1038  ;  see  alsocorrela- 
tivdy,  1006  to  1027. 

Dignities,  see  King — Claim  to  Dignity — 
Election  of  Sixteen  Peers — Confirmation 
— Resignations  and  regrants — Nomina' 
tion,  &c. 

DlGNlTlSS,    COOKIZAyCK    IN,    BKFORB  THX 

Skssion,  3  to  40,  (see  also  Ses- 
sion,) Arraa  thk  Union,  268  to  338. — 
Law  and  Practick  or,  siroax  thc 
Union,  40  to  267.     Law  and  Prac- 

TICC     BUB8EQUKNTLT,        268      tO     389, 

556  to  927,  &e.  King  in  Scotland, 
differently  from  in  England,  had  re- 
nounced the  c(^izance  in  honours  in 
the  16th  century,  which  afterwards  duly 
vested  hi  the  Session,  316  to  325. 

Dignities  formerly  territorial  with  us, 
172-4;  see  also  561-4,  Territorial  prin- 
ciple, and  under  Comitatus,  &c. 

— ^-~—  see  besides.  Creation,  Act  of — 
Belting,  and  under  Edinburgh, 

Dignity,  Scottish,  even  granted  under  re- 
version, and  redeemable  on  a  contin- 
gency after  Testing,  215-16 — sometimes 
formerly  taken  both  by  the  liferenter 
and  fiar,  in  further  refutation  of  Lord 
Mansfield,  114,  161— has  also  been 
taken  by  the  heir  apparent,  114.  A 
dignity,  besides  being  resigned,  might  be 
disclaimed,  disused,  and  alienated  with 
us,  123,  120-1-2,  &c.  See  also  Posses- 
sion, interim.  Are  dignities  subject  to  the 
law  of  conquest?  841,  et  seq.  1051. 
After  sittings  and  full  recognition,  might 
be  challenged,  and  right  to  them  re- 
duced. 7  to  10,  16,  932.  Dignities,  and 
subjects  requiring  royal  sanction  and 
3  Y 


1074 


INDEX. 


authority,  (tee  46,)  unduly  carried  in 
grants  after  the  union  of  the  crowns, 
61-3,  205,  208,  706,  n.  1063,  (see  alto 
Charter  of  Honours.^  Awkward  and  fu- 
tile way  in  17th  century,  of  incidentally 
bringing  them  into  conveyances  and 
settlements,  897.  Dignities  to  laics, 
carved  out  of  high  ecclesiastical  liefs 
after  the  Reformation,  with  their  strik- 
ing peculiarities,  &c.  237  to  255.  In- 
stance of  such  constitutions  in  1591, 
and  their  anomalous  and  diversified 
character,  245-6-7 — see  also  under 
JLindores  Barony,  Culrost,  Barony  of, 
&c.  Dignity  on  death  of  ancestor,  dif- 
ferent mode  of  establishing  right  to,  in 
the  two  countries,  640, 644-5  ;  (see  also 
Retovrtf  and  Succestion.)  No  petition  to 
4ing  with  us,  as  in  England,  on  a  claim 
to  dignities,  t5.  Undue  assumption  of 
dignities  and  surnames  in  modern  times, 
and  form  originally  authorizing  the 
•taking  of  the  latter,  293-4,  n.  Descent 
of,  see  under  Contents,  xaiv.  et  seq. 
Dignities,  case  of,  descendible  to  heirs- 
female  simply,  in  the  event  of  forfeiture, 
770- 1 .  To  fix  unquestionably  the  state 
and  condition  of  our  dignities,  as  well  as 
the  relative  cognizance,  an  A^ct  of  Par- 
liament might  be  incumbent,  959. 
Dignity,  English,  no  possessiofratris  in, 
or  preference  here,  of  the  full  to  the  half 
blood,  1042-3.  See  also  under  Prejcnp- 
fion  and  Non^eiaim,  Signature,  Patent, 

frc. 

Dignitiee,  Jaeobile,  Scottish,  in  18th  cen- 
tury, 978-9.  Dignity  or  title  "  quies' 
cent,"  what?  1061-2. 

Dingwall  Barony,  anomalous  case  of,  in 
1711,-1714,288.  Title  now,  with  the 
Ormond  representation,  in  the  noble 
family  of  Cowper,  but  for  the  forfeiture, 
289,  n.;    see  also  348. 

Divorce  ot old eimplicUer, on  original  nullity, 
from  consanguinity,  with  bastardy  of  is- 
sue, 452, — from  affinity,  466 — from  a 
precontract,470-l — from  im  potency,  be- 
fore, and  after  the  Reformation,  531  to 
546.  Laxity  in  divorces  according  to 
Major,  during  Papacy,  467. 

Divorce,  sentence  of,  then  held  '*non  tran- 
sire  in  rem  judicatam,"  and  could  be 
opened  up,  473,  n.  2. 

Divorce  a  vinculo,  for  adultery,  only  com- 
petent after  the  Reformation,  435  etMeq. 
—Divorce  ob  senitium,  in  pari  caeu  with 
that  for  adultery,  during  Papacy  ;  both 
then  authorized  but  mere  separation, 
437-8.  Mode  of  effecting  the  former 
coliusively,  under  a  matk,  in  cases  of 
adultery,  before  Reformation,  412, 
n.  1.      Remarkable    divorce    between 


the  notorious  James  Earl  of  Bothwall 
and  his  Countess,  433-4,  437,  «.  3. 
Divorce  a  vinculo  for  "  wilful  desertion** 
only  after  the  Reformation,  in  Tirtoe  of 
Act  1 573,  c.  1 ,  547.  Singular  case  hero, 
ofJean  Countess  of  Argyle,  natural  sister 
of  Queen  Mary,  547,  et  seq, 

Dumieil,  present  law  of,  411 — 416. 

Dominium  et  Baronia,  import  of,  with  oa, 
in  1 7th  century,  670,  n.  3. 

Dornoch,  uninstructed  Barony  of,  claimed 
by  Sir  Robert  Gordon,  together  with 
the  Sutherland  Earldom,  in  1769,  608. 

Douglas  cause,  see  under  Hailes,  Lord, 

Douglas,  late  Lord  (Archibald),  see  &el- 
land,  crown  if, 

Douglas,  MarjwMaftf  of,  its  creation,  and  in- 
auguration, in  1633,  48-9,  657,  685-6. 

Douglas,  William,  Earl  of  Angus,  dead  in 
1611,  notices  of;  styled  and  held  to  be 
first  Earl  in  Scotland,  157-8,  weeAngtu, 
Earldom  of, 

Douglases,  certain  high  hereditary  offices 
in,  156 — 159.  Did  they  properly  resign 
their  asserted  right  of  first  vote  in  Par- 
liament, &c.  in  1633?  159—161.  Qae§- 
tion  as  to  the  adjudging,  or  eviction  by  m 
creditor,  of  (heir  "first  place,  in  the  front 
of  battles,"  158,  n.  4.  See  also  Sami 
Germain  des  Prex, 

Dover,  Dukedom  of,  English  or  British  case 
in  1724,  inconsistent  with  that  of  Wil- 
loughby  of  Parham,  589  H  seq, 

Doumshire,  Marchioness  of,  her  petition  in 
1832,  in  the  matter  of  the  Stirling  hon- 
ours, 852-3. 

Drummond  Barony,  see  Perth,  Earldom  of, 

Drummond,  John,  or  Lord  John,  case  of* 
in  1750,  under  Forfeiture,  747-8. 

,  Sir  William,  of  Logiealmond, 

claim  by,  to  the  Roxburghe  honours,  in 
1806,  1064. 

Duff  us  Barony,  case  of,  in  1734,  375. 
Claimed  by  Sir  Benjamin  Dunbar,  BarL 
the  direct  heir-male,  both  in  terms  of 
the  Lords'  order  in  1822,  and  upon  a 
reference  from  the  crown,  respectively, 
in  1832,  and  1838,  918  to  920.  Peti- 
tion  by  the  Reverend  Eric  Rudd,  the 
heir-female,  to  the  Lords,  against  right 
of  the  former,  in  1832,  919;  see  also 
933,  n.  4. 

Duguid  of  Anchinhuif,  case  of,  in  1565, 
under  Consistorial  law,  394. 

Dukedoms,  most  of  our  existing,  limit- 
ed to  heirs-female,  944-5,  n, 

Dumfermling,  Earl  of,  eont.  Earl  of  Cal- 
ender, case  of,  in  important  matter  of 
Scottish  Appeals  in  1674,  13,  n.  I. 

Dumfries,  Earldom  of,  213*14,  cannot  be 
united  with  that  of  Stair,  387-8. 

Dunbar  against  Adair,  weighty  contistorial 


INDEX. 


1075 


cam  of,  in  1573,  in  reipect  (o  plea  of 
ignorantia  and  bona  Jidet  in  behalf  of 
legitimacy,  456,  et  seq, 

Dunbart  original  Earlt  of,  tee  March  and 
Dunbar,  original  Earls  of. 

Dunbar  (of  Westfield)  case  of,  aboat  the 
•  middle  of  15th  century,  as  to  import- 
ance of  celebration  in  marriage,  500. 

DundasMf  Pretident,  his  opinion  in  1733 
upon  the  import  of  limitation  to  **  heirs- 
male  of  entail  and  proTision,"  206-7. 

DundaSf  case  of,  in  1705,  see  Impotency. 

Dundee,  Viscounty  of,  its  present  state, 
(under  Forfeiture),  771-2. 

Dundee,  Constabulary  of,  ^c,  how  acquir- 
ed by  the  first  Viscount  Dundee,?  72,  n.  1 . 

Dun/ermiiny,  Earldom  of,  its  present  state, 
(under  Forfeiture),  772. 

Duplin,  Viscounty  of,  its  limitation  by  pa- 
tent, in  1697,  202. 


Earldoms,  all  our  old,  (besides  later,)  went 
to  heirs-general,  in  striking  refutation 
of  the  glaring  misrepresentations  of 
Lord  Mansfield ;  together  with  new 
evidnnce  here,  561  to  566 ;  see  also  un- 
der Moray,  Earldom  of,  before  and  after 
the  middle  of  the  15th  century. 

Edgeworih,  Francis,  ancestor  of  talented 
family  of  that  name,  before  1 632, 8 1 0,  n. 

Edict  ff  Marly,  in  1711,  by  Louis  XIV. 
as  to  descent  of  honours,  956. 

Edinburgh,  Castle  of,  in  law,  the  principal 
castle  or  chemya  of  the  kingdom,  extra- 
parochial,  and  a  privileged  site,  where 
infeoffment  was  taken  for  grants  abroad, 
and  the  royal  moveables  kept,  236. 

Edinburgh,  Provost  and  Baillies  of,  remit 
a  case  of  service,  about  1582,  to  the 
Commissaries,  393,  n.  2. 

Edinburgh,  date  of  a  charter  at,  legal  ef- 
fect of  such  in  honours,  after  union  of 
the  crowns,  46-7,  558-9,  813-14-15. 

Eglinton,  Earldom  of,  case  in  1613,  evin- 
cing the  cognizance  of  Session  in  hon- 
ours, 14,  15.  See  also  46,  138;  and 
under  Glencaim,  Earldom  of,  as  to  con- 
tested precedency  of  these  Earldoms. 

■        present  noble  Family  of.     See 

under  Winton,  Earldom  of,  and  Family, 
the  honours  and  representation  of  both 
being  now  conjoined. 

Election,  popular,  of  clerical  or  spiritual 
office  of  parish  clerk,  before  the  Refor- 
mation, 682,  n.  2. 

— — of  Sixteen  Peers,  Toting  at,  can- 
not strengthen  an  illegal  claim  to  a  dig- 
nity, 779  ;  see  alsoPeer^. — Lords'  reso- 
lution in  1822,  regarding,  850-1.  Dif- 
ference here,  between  Scottish  and  Irish 
Peers,  851-2. 


ElphinUone,  Barony  tf,  its  constitution  at 
the  beginning  of  the  16th  century,  and 
descent,  including  new  evidence,  952, 
et  seq. 

Elphinstone,  noble  Family  of;  see  Kil" 
drummie  Barony  ;  and  643,  n, 

England,  patents  of  Scottish  Baronies  of 
Hume  of  Berwick,  and  Kinloss  in  1604, 
there,  passed  the  English,  as  well  as  the 
Scottish  seals,  84,  n.  4^  251-2.  In  that 
country,  Comitas  held  in  reference  to  a 
connection,  only  valid  by  the  law  of 
Scotland,  upon  the  ground  of  Legits- 
mationper  bonafidem,  and  ignorantiam, 
in  the  reign  of  Elizabeth,  420—424. 

**  English  Ireland,"  meaning  of  that  term 
with  us  in  1561,  414,  n.  1. 

English  Law  and  Practice  in  regard  to 
style  and  designation  ;  see  Style.  Does 
legitimation  per  ignorantiam  et  bonam 
fUUm,  in  the  case  of  an  illegal  marriage, 
obtain  in  England  ?  420. 

English  Lawyers,  striking  fallacy  of  some, 
as  to  invariable  strictness  of  Lords  in 
evidence  in  Scottish  Peerage  claims, 
832-3,  and  what  precedes.  See  also  un- 
der Evidence  in  Scottish  Peerage  claims, 
and  Pref.  x.  xi.  n.  nho  passim. 

English  Procedure  in  Peerage  claims,  with 
resolutions  of  the  Lords,  957-8.  Crown 
here,  differently  from  in  Scotland,  re- 
tained the  appropriate  cognizance,  in- 
stead of  relinquishing  it.  as  in  the  latter 
country  ;  see  under  King. 

Entails,  Scottish,  nature  of,  and  English 
remainders,  7 1 0- 1 1 ,  e<  seq.  Latter  not 
known  originally  to  us,  766-7  ;  see  also 
under  Forfeiture. 

Errol,  Earldom  of,  case  in  1797,  819 

85 ;  260-1 .  See  also  under  Forfeiture, 
768  to  770.  Nomination,  regulatings  Er- 
rol  one,  in  1674,  its  terms,  768,  and  n. 
6.  As  to  invalid  Errol  charter  of  the 
honours  in  1674,  see  814,  n.  3. 

Earl  of,  his  question  of  precedency, 

with  the  Earl  of  Sutherland,  before  the 
Session  in  1661.  1671,  20:  and  see  fur- 
ther  under  Sutherland,  Earl  of.  The 
Earls  of  Errol  claimed  a  higher  preced- 
ency among  the  nobility,  than  due  to  the 
Earldom,  by  reason  of  their  hereditary 
office  of  Constable,  162.  Asgument  in 
support  of  such  preference  in  167 1,  with 

rejoinder  by  Earl  of  Sutherland,  164 

166.  Dispute  for  precedency  in  Parlia- 
ment, between  the  Earl  of  Errol,  as  Con- 
stable, and  the  Earl  of  Bothwell,  as  .Ad- 
miral, in  1585,  f6.  and  167.  Constable 
must  always  be  a  transcendant  digni- 
tary, ex  offidOf — qua  such,  and  at  Coro- 
nations, &c.  166.  See  also  **  Constable^ 
Scottish,"  office  of 


1076 


INDEX. 


Errd,  Earl  of ^  with  the  Earl  of  Crawford, 
allowed  to  be  heard  for  his  intereit  in 
regard  to  hit  right  of  precedence  in  the 
Sutherland  claim  in  1767—1771,  607. 

Erskine  of  Balgonie  Barometey,  unea- 
tended  lignatare  of,  in  1674,  67. 

Ertkine,  Dean  of  FaoHlty^  his  juit  notions 
in  constitution  of  marriage,  495t  n.  2. 

— ChaHcellor,  bis  di^um  as  to  the 

effect  of  a  Mitling,  not  borne  out  even  in 
England,  590;  and  Addgmda,  1047. 

ofDirleton^  Baromy  of  868,  n.  2. 


Evidence,  quettion  of,  in  Oxenford  claim  in 
1734-5,  385.  Evidence  in  Borthwick 
Peerage  claim  taken  by  eommission, 
693.  House  of  Peers  often  lax  in  mat- 
ters of,  directly  contrary  to  what  some 
English  lawyers  would  inculcate,  832- 
3,  and  what  precedes.  See  also  Kelfy, 
and  Huntly  cases. — Wretched  copy  of 
an  apparently  fabricated  instrument  re- 
ceired  in  Huntly  claim,  872-3,  n.  884-5 ; 
while  what  may  ha?e  been  better  was 
rejected  in  that  of  KelHe,  915,  n.  2. 
Hearsay  eridence,  or  of  reputation,  R76, 
Lord  Redesdale's  estimation  of  it,  880- 
I.  Newspapers,  CTidence  of,  883-4. 
That  of  services,  see  Retoure^  and  908- 
9,  et  Meg,  Evidence  of  taciturnity  in 
extinctions,  910,  e^  seq, 

Historical f  by  printed  books,  even 

of  latest  date,  and  of  a  lax  kind,  admit- 
ted and  founded  upon  by  Chancellor 
Rosslyn  in  the  Glencairn  claim,  822-3, 
631-2-3.  Our  notions  as  to,  834-5,  n. 
Hntorical  evidence,  higher  class  of, 
with  us,  835,  n.  Evidence,  English, 
remarks  on,  833-4-5,  n. ;  942-3,  n.  3. 
Evidence,  matter  of,  in  Borthwick  case 
in  1810, 693.  English  lawyers,  repeat- 
ed opinions  by  them,  even  from  the 
Union  downwards,  that  the  Scottish  law 
rules  in  Scottish  Peerage  claims,  929- 
30.  Erroneous  impressions  of  some,  as 
to  the  invariable  strictness  of  the  House 
of  Peers  in  Scottish  Peerage  claims, 
refuted,  832;  831-2-3,  835;  566, 
578,584,613-14,621,870-1,  891,  &c. 
&c.  &c« 

Exchequer  Baront,  or  Lords  of, — Peerage 
resignations  often  into  their  hands,  in 
refutation  of  a  modem  heresy,  61-2, 
817-18.  &c. 

Exhibition  of  Patents,  or  important  deeds, 
can  it  be  legally  enforced  against  a 
party  in  a  Peerage  claim,  or  otherwise  ? 
635 — 642.  Disallowed  in  Wigton  claim, 
in  1782,  635.  Action  with  this  view, 
by  Colonel  Campbell  against  Lady  Mary 
L.  Crawford,  before  the  Session  and 
House  of  Peers,  in  1823-6,  with  re- 
marks, 636,  et  teq. 


Expedteney,  irrelevant  pretext  of,  by 
Lord  Mansfield  and  Rosslyn,  to  deter- 
mine descent  of  Scottish  Peerages,  with 
opposite  doctrine  of  Nisbet,  945,  954- 
5,  and  n.  \,  et  seq. 

Extinctions,  our  law  of,  stricter  in  the 
16th  century,  871,  «.  4.  How  Tiewed 
in  17th  century,  41-2.  Fixed  by  service 
in  cases  of  Cassilis,  Borthwick,  Caifth-' 
ness,  before  the  Lords,  (which  see),  and 
others,  &c.  Relative  presumption  in 
the  Belhaven  claim  in  1799,  846-7. 
Lax  and  very  slender  proof  in  regard  to, 
in  the  Keliy  and  Hmntly  cases,  (which 
see,)  otherwise  in  the  Rutheifard  claims 
in  1833-5,  1837-9,  (which  also  see.) 
Upon  the  whole,  practice  unsettled 
here ;  for  evidence  of  tacitmmUy  in  ex- 
tinctions, 910,  et  seq,  914,  &c.  see  abo 
Eoidence, 


Falsa  designatio,  under  Forfeiture,  by  Bri- 
tish law,  744,  et  seq. 

Family  illtutration  and  importance,  how 
proverbially  said  to  be  enhanced  in  Soot- 
land,  867,  n. 

Felony,  if  applicable,  under  Forfeiture,  to 
a  Scottish  honour,  737. 

Females,  see  Witnesses. 

Female  succession  in  Dignities ;  leefMUsm. 

Fenton,  Viscounty  of  created  in  1606,  the 
premier,  in  Scotland ;  see  under  KelUe, 
Earldom  of.  Two  Viscounties  of  Fentoo 
may  exist  at  present,  ibid, 

**  Ferde  Cortrt,"  original  name  of  the  Ad* 
miralty  Court,  (which  see),  with  ex- 
planation of  the  epithet,  326,  n.  I,  326- 
9. 

Fergusson,  Sir  Adam,  hb  intimation  in  re- 
gard to  Cassilis  claim,  578,  and  pointed 
allusion  to  Lord  Mansfield,  707,  n. 

of  Pitfovr,  Dean   of  Faenlty, 

his  account  of  Lovat  case  in  1 730, 372-3. 

Fergusson,  James,  Esq,  Advocate,  his  ob- 
jections considered  to  divorces,  a  vineuiot 
for  adultery,  being  only  with  us,  (as  stat- 
ed) after  the  Reformation,  438,  et  seg. 

Ferrers  Earldom,  case  of,  734,  ».  4. 

Filiation ;  see  Gestation, 

Findlater  Earldom,  rather  remarkable 
case  of,  in  1641-3,  and  1665,  65-6» 
80-1 .  See  also  under  Lothian  EarUom, 
and  Sinclair,  Barony  of,  &c.  Lamitatioa 
of  the  dignity  by  patent  1638,  *Mo 
heirs-male  of  the  body,  succeeding  in  the 
patrimony  and  estate,"  204,  n.  2.  See 
here,  in  refutation  also  of  Lord  Mans- 
field, under  Kitkcudbright  case,  623-4. 

Fleming  Barony,  creation  of,  in  1452,  631 . 

Flemings,  Barons  «>^67ane,inlrcland,iiotice» 


INDEX. 


1077 


of,  and  their  oonnection  with  the  Scot- 
tish Lord  Flemings,  and  Earls  of  Wig- 
ton,  642,  n.  3. 

'*  FliuU  merke,**  in  reference  to  Admiralty 
Court,  and  certain  Fish  open  to  the  com- 
munity within  the  same,  in  1549,  &c. 
326,  ».  1. 

FoUett,  Sir  William^  Pref.  x.  n. 

Forbttf  Arthur^  disposition  of  Salton  hon- 
ours to,  in  reign  of  Charles  II.  947, ».  3. 

Foreipneri,  when  litigating  in  our  courts, 
subject  to  what  law?  419. 

Forfar  Earldom,  patent  of,  in  1664,  re- 
ferring to  pref  ious  grant  of  Earldom  of 
Ormood,  67-8,  n.  3. 

Forfeihare  with  us,  could  be  purged  and 
rescinded  by  the  sole  act  of  the  king, 
129,750,  752,  758,  n. 

FoaraiTuai,  Law  op,  708  to  776.  Prt' 
viouM  Scottiih  Law  (suptraeded  by  Queen 
Annet  Act,  1708,  c.  21 J  710,  125  to 
130,  738  to  742,  749  to  769,  771  to 
773.  See  Law,  Roman.  For  extreme 
sererity  of  our  ancient  law  here,  757-8, 
H  paaiim.  See  too,  Corrvption  of 
Blood,  &c.  Justice- Clerk  Macqueen's 
interpretation  of  Act  1690,  c.  104,  and 
his  repudiation  originally  of  the  English 
effect  of  remainders  in  our  entails,  766- 
7. 

Fornication  ly  9^  female  cO'heiress  in  ward, 
penalties  of,  by  our  old  law,  130-1. 

Forrester  of  Corttorphin,  Barony  of,  cur- 
ious case,  from  1633  downwards,  105, 
114,  123  to  125. 

France,  connection  formerly  of  Scotland 
with,  and  still  existing  indications  there- 
of, 447-8 ;  see  also  Vignerot,  Mary  de. 

French  Honourt :  see  Edict  cf  Marly, 
and  AiguHlon,  Ducky  **  Pairie**  of,  in 
1638,  exemplifying  power  of  nomination 
as  with  us,  and  other  mutual  coinci- 
dendes. 

Eyff  Comitaiua,  charter  of,  in  1224,  568. 

G 

Galhraith,  Mr  Robert,  a  Lord  of  Session, 
murder  of,  in  1543,  with  relative  pro- 
cedure, *738,  eteeq. 

Gardin,Agne»,  action  of  damages  in  Consis- 
torial  Court,  for  her  seduction,  against 
Lammye  of  Duncanny  in  1543,  446. 

Gestation,  legal  term  of,  as  affecting  filia- 
tion, maturity  of  child  concluded  from 
certain  presumptions  with  us,  552,  et 
seq.  Presumptions  here,  in  England, 
&c.  553,  n.  1. 

Gillies,  Adam,  Esq.  (Lord  Gillies)  his 
corroborative  notions  as  to  legal  con- 
stitution of  marriage,  495,  n.  3.  His 
just  opinion  of  Craig  the  Feudist  s  in- 
accuracy, 463,  n. 


Qhtrnmia,  Lady,  set erity  of  her  fate,  in 

1537,  onder  Forfeiture,  758,  ». 
Glasgow,  Archbishopric  of,  its  erection  into 
a  temporal  Lordship  in  1641,   upon  a 
royal  signature,  244.      See  also  under 
Archbishops, 

Glasgow,  George,  present  Earl  of,  969,  fi.2. 

Glassford,  Barony  of,  granted  for  life  in 
1685,  to  husband  of  Baroness  of  Semple 
in  her  own  right,  110-11. 

Glencaim,  Earl  of,  his  entail  in  1708,  as 
bearing  upon  the  effect  of  the  Union 
quoad  our  honours,  271. 

Glencaim  Earldvm,  case  of,  in  1796-7, 
with  strange  misrepresentations,  irrele- 
vant doctrine  again,  and  lax  procedure  of 
Lord  Rosslyn,  &c.  819  to  833.  New  evi- 
dcoce  in  respect  to  case,  825,  etseq.  Lord 
Rosslyn  unaware,  inter  alia,  that  king 
alone  could  restore  a  Peerage,  827,  n. 
3  ;  see  also  666,  185  ;  and  Question  of 
Glencaim  Precedenqf,  with  the  E<irl  of 
Eglinton,  and  others,  from  1610  to 
1648,  &c.  11  to  13. 

**  Good-men,"  import  of,  in  both  kingdoms, 
980-1,  n.  4 — by  the  Roman  usage,  t6. 

Gordon,  Barony  of,  ancient,  created  be- 
fore 1437,  and  how  descendible?   274,  . 
n.  1  ;  see  also  349,  n.  I . 

Gordons  in  the  North,  sprung  from  the 
Family  of  Gordon  or  Huntly,  before  di- 
rect line  of  the  latter  ended  in  the  not- 
ed heiress,  595,  n.  1 .  Also  Gordons  of 
Lochinvar,  or  Viscounts  Kenmure,  &c. 
in  the  south,  ib. 

Gordon,  Sir  Robert,  his  claim  to  the  Earl- 
dom of  Sutherland,  and  Barony  of  Dor- 
noch in  1767-9,  606,  et  seq, 

Gordon  of  Park,  important  case  of,  in  For- 
feiture, giving  our  substitutions  the  con- 
structive effect  of  English  remainders, 
709-10,  n.  718-19,  720-1,  886-7. 

Gordon  against  Dalrymple,  noted  case  of, 
under  consistorial  law,  in  181 1,388, 505. 

Govane,  case  of,  in  1588,  illustrating  law 
of  conquest,  838,  n.  2. 

Grahams  of  Duntroon,  heirs-male  of  noble 
Family  of  Dundee,  and  heirs  to  their 
honours  but  for  attainder,  notices  of, 
771-2. 

Gray  Barony,  tokd  Estates  of,  case  in  16th 
century,  as  to  succession,  861-2,  n.  4. 

Grief,  case  of,  in  1562,  in  regard  to  the 
law  of  extinctions,  871,  n.  4. 

H 

Habit  and  repute,  legal  effect  formerly  of, 
in  marriage  ?  509,  et  seq.  When  di- 
vided and  contradictory,  most  absurd 
and  untenable,  510, 

Haddington  Earldom,  case  of»  taken  with 
that  of  Rothes,  213. 


1078 


INDEX. 


Hailetf  Lord,  his  merits,  and  indispensable 

test  in  antiquarian  dtsqaisition,  708,  n. 

1041 ;  see  also  Sutherland  Cage,  or  /»> 

formation.     His  prophecy  in  regard  to 

the  noted  Doujj^las  case,  556. 

Hamilton,  Anne  DuchetM  of,  her  case,  after 
1643,  as  regards  succession,  857 >  etteq. 

ffamilton  Barony,  hereditarj  and  Parlia- 
mentary, constitution  of  by  charter,  in 
1 445,  the  oldest  similar  grant  extant,  1 03. 

Hamilton  Dukedom  of,  granted  in  1660, 
to  husband  of  Ann  Duchess  of  Hamilton, 
in  her  own  right,  for  his  life,  110*11. 

Hamilton,  Duke  of;  see  Scotland,  Crown 
of 

Hardwieke,  Lord,  his  original  admission, 
that  there  was  great  obscurity  in  the  de- 
scent of  our  dignities  at  common  law, 
341,  353-4.  His,  and  Lord  Talbot's 
notion  as  to  collateral  succession  in  hon- 
ours, 382,  n.  3.  Sensible  and  just 
remarks  of  Lord  Hardwieke  in  the  Ox- 
enford  case,  382-3.  His  error  and 
misrepresentation  in  respect  to  the 
descent  of  our  old  Earldoms,  565. 
Other  misconceptions,  569,  et  $eq. 
His  amusing  interpretation,  of  the 
Scottish  term,  <*  Kenkynol,"  574. 

Hastings,  Sir  Edmund,  curious  miscon- 
ception of  his  style  in  1301,  with  original 
particulars  regarding  him,  and  Isabella, 
his  noble  spouse,  990,  et  teq.  ;  see  also 
nnder  Meneteth,  oriffinal  Earldom,  and 
Nicolas,  Sir  Harris,  &c. 

John,  the  Competitor,  in  1291- 

2,  Sir  Edmund's  brother,  991,  et  teq. 

Haatings  Barony,  recent  case  of,  in 
England,  1042-3. 

Heir^male  nf  the  Body,**  import  oT,  195- 
6.  **  Heir  female  eldest,"  ib.  **  Heir- 
male,"  in  the  singular,  force  of,  in  a 
patent  in  1703,  898,  n.  2..  "  Heirs- 
male,"  in  the  plural,  import  of,  196, 
and  see  Appendix,  No.  VH.  1006  to 
1037 ;  including  statement  of  the  recent 
English  case  of  the  Earldom  of  Devon, 
with  comments  and  remarks,  &c.  Great 
misrepresentations  and  error,  as  to 
**  heirs  male,"  in  Scottish  grants  of 
honours,  in  the  Annandale  and  Devon 
Peerage  claims,  1026-7,  1033.  Phrase 
*<hcir  male,"  by  English  lawyers,  and 
theirdiction,has  only  denoted  heirs-male 
of  the  body,  1024,  n.  2,  1029.  How 
to  be  rendered  in  the  Beaumont  Vis- 
county case  ?  1035.  **  Heirs  male," 
coupled  with  *' successors,"  or  in  refer- 
ence to  the  destination  of  the  estate, 
204-5,  et  teq.  "  Heirs  male  and  of  en- 
tail," and  "Heirs  male  of  entail  and  pro- 
▼ision,"  import  of,  206-7,  1059—1063. 
Heirs/*  or   « Heirs  male,"  coupled 


<« 


«« 


with  oMngnatU,  208-9.  "  Hein,"  or 
**  successors  "  individually,  often  ased 
to  denote  heirs  general,  211-12. 
**  Heirs,"  import  of,  according  to  Lord 
Mansfield,  at  variance  with  the  Polwarth 
decision,  672-3,  et  teq.  See  also  Li- 
mi  tationt.  Heir  of  the  last  in  possessicm, 
whoever  that  be,  question  as  to  prefer- 
able right  or  interest  of,  653-4,  ei  »eq. 
and  see  also  under  Bargeny  deciskm. 
Heirs-female,  a  greater  class  of,  capable 
of  succeeding  to  our  honours  than  heirs- 
male,  944 ;  see  partly  here  under 
Dukedomt.  Heirs,  remoter  interest  of, 
in  Peerage  claims,  607-8,  830-1. 
"Heirs,"  limitation  to,  in  England,  1023» 
n.  2,  1036. 

Henry,  Prince,  eldest  son  of  James  VI.  ; 
see  Rothetay,  Dukedom  of 

Herald  Court  in  Scotland ;  seeLjrcn  Lard, 
Judex  Pedaneut,  &c.  Old  form  of  re- 
gistering patents,  and  acts  of  creation, 
in  the  Lyon,  or  Heralds  Books,  629- 
30.  Heralds  attended,  and  had  fees 
of  old,  at  creations,  684,  n.  2. 

Heralds  or  tignifcri  of  our  nobility,  in  the 
15th  century,  265. 

Herezeld,  see  Corpt  Present. 

Heritable   Officet ;   see  under   Offices  of 
Armour-bearer,     Constable,     Marshal, 
Scotland,  crown  of,  and  King's   Usher, 
ftffice  of,  &c. 

Heritage,  Law  of,  and  as  opposed  to  that 
of  conquest,  837-8-9, 840,  &c.  See  also 
Conquett,  Law  of,  in  reference  to  hon- 
ours. 

Highland  Chief,  full  Celtic  habiliments,  or 
dress  of,  in  1438,  exRegia  munifieemiia, 
266. 

Historical  Evidence,  see  Evidence  ;  Hear- 
say, or  that  of  Reputation,  also  i5i<f. 

Holland,  Earldom  of,  see  Breadalbame 
Earldom,  for  curious  qualified  settle- 
ment of  both  in  1681. 

Holyroodhonte  Abbacy,  erection  of,  intom 
temporal  Lordship,  &c.  in  1607,  245. 

Holyroodhonte,  Barony  of,  in  1704,  141, 
claim  to,  in  1734,  385. 

Honourt,  see  Dignity,  King,  Setsion,  j-c. 

Hope,  Sir  Thomas,  Lord  Advocate,  notioo 
of,  in  1600,  his  asserted  conduct  ia 
a  case,  in  1633 ;  his  filiation,  and  Hopes 
of  Amsterdam,  &c.  18.  n. 

Hume  Earldom,  case  of,  before  the  Ses- 
sion in  1633,  15,  16. 

Baron,  his  opinion  as  to  our  entails 

bearing  upon  forfeiture,  711,  n.  His 
unsupported  notion  as  to  corruption  of 
blood  with  us,  765. 

Hume  of  Berwick,  Barony  of,  in  1604,  the 
earliest  instance  of  power  of  nomina- 
tion in  honours,  84,  n,  4.     Though  m 


INDEX. 


1079 


Scottish  BaroDy,  it  psiied  both  the 
English  and  Scottish  seals,  85,  ib,  ac- 
cording^ to  the  form  in  case  of  the 
Barony  of  Kinloss  in  1604,  251-2. 

Humphreytt  ot  Alexander  Alexander^  late 
criminal  trial  of,  before  the  Justiciary 
Court  in  1839.  Errors  and  misapprehen- 
sions there,  as  to  our  honours  and  grants, 
in  the  parole  proof  led,  yet  singularly  ad- 
mitted as  matter  of  fact,  and  argued  up- 
on, 343  to  348 ;  see  also  292-3. 

Huntfy  Earldom,  original  date  of,  fixed, 
873, ». 

Suntfy,  George  Earl  qf,  and  Annabella, 
daughter  of  James  L,  his  divorced 
spouse,  in  1471,  case  of;  legitimacy  of 
their  offspring,  and  of  subsequent  line 
of  the  noble  family  of  Huntly,  can  be  only 
saved  by  the  exception  of  ignorantia^ 
which  it  may  variously  illustrate,  526, 
et  seq.  See  Legiiimacy,  and  Moray,  EU- 
xabetk  Countese  of, 

Earl  of,  '*  threatened  to  raise  his 

title  above"  the  Regent  Moray's,  if  latter 
made  a  Duke,  113. 

■Marquiiateof,\U  act  of  restoration. 


in  1651,  873-4,  1032-3. 

in  case  of,  in  1837-8, 


great  misapprehension,  undetected,  as  to 
our  honours,  and  their  mode  of  convey- 
ance, 341-2,  n.  Same  case  involv- 
ed points  of  extinction,  and  primogeni- 
ture, where  the  procedure  was  by  no 
means  strict,  but  lax  and  indulgent  in 
the  extreme,  in  opposition  to  what  is 
laid  down  by  some  English  lawyers  in 
such  cases,  872  to  893.  Point  of  form 
fixed  there,  892-3.  New  evidence  as 
to  Lord  Henry  Gordon,  891 ,  n.  4,  etteq. 
See  also  Rutherford  Barony  claim,  and 
Evidence,  &c. 

Huntly  Estate,  rental  of,  in  1664—1667, 
891,  n. 

HuMsy  Barony,  an  English  dignity,  case  of, 
in  1680,  lately  printed  by  Mr.  Turnbull, 
with  illustrations,  963. 

Syndfoordf  see  under  Livingstone  of 
Hyndfoird  Barony, 


Idiots,  king  in  1497  had  the  custody  of,  in 
conformity  to  the  Regiam,  and  the  Eng- 
lish law,  38. 

IgnorafUiam  ob,  et  bonamfidem,  exception 
in  behalf  of  legitimacy,  446  to  475. 
See  also  Legitimacy.  Did  it  hold  in 
England  ?  420. 

Impotency,  Law  of,  before  and  after  the 
Reformation,  531  to  546.  **lnspection,*' 
when  allowed,  533  et  seg.  Trial 
*<  per  eeptimam  manum,"  when  com- 
potent,  with  other  relative  particulars. 


and  distinctions,  534  et  ieq.  Parties, 
though  divorced  for  impotency,  might 
yet  marry  aliunde,  543.  If  one  be  er- 
roneously divorced  for  impotency  ?  544. 
Blarriage  of  a  woman  aciene,  with  a 
castratus,  545.  Impotency  when  iolli^ 
tur  ope  demonis — held  in  law  to  be  per- 
petua,  545,  n.  3.  Singular  case  of  Dun- 
dassin  1705,  ib.  n.  4.  Peculiar  trial  in 
impotency,  noticed  by  Sir  John  Lauder, 
546,  n. 

Inauguration,  see  "  Belting." 

Inchemacholmok,  lake  of,  the  same,  as 
Lake  of  Menteith,(with  reference  to  the 
old  Earldom  of  Meneteth),  991,  eteeq, 

' '  Infeoffments  of  Honours  "  in  Pee  rage  con- 
veyances even  in  the  17th  century,  fur- 
ther refuting  Lord  Mansfield's  rejection 
of  the  territorial  notion  since  1214,  211. 
See  also  159,  160-1, 841-2,  n.  4.  See 
also  under  Comitatua,  and  598-9,  &c. 

Infeoffinent,  see  Edinburgh  Cattle, 

In  perpetuum,  force  of,  in  patents,  1028, 
R.  1. 

**  Inspection*  in  impotency,  when  compe- 
tent, see  Impotency^ 

Instrument,  copy  of,  see  Evidence, 

Investiture,  Feudal,  see  Belting. 

Ireland,  «*  Engluh  Ireland"  in  1561, 
what?  414,  A.  1. 

Irish  Peers,  difference  between,  and  the 
Scottish,  in  regard  to  proving  succes- 
sion, and  right  to  vote  at  Elections, 
851,  n.  2,852 — As  to  their  precedency, 
and  that  of  the  Scottish,  before  union 
of  the  kingdoms,  see  1066. 

Itles  Lordship,  or  Barony,  case  of,  in  1476, 
in  refutation  of  Lord  Mansfield,  57 1-2. 


James  I,  of  Scotland,  his  heart  sent  abroad 
to  the  Knights  Hospitallers,  but  restored 
to  his  tomb  at  Perth  in  1443,  261; 
original  notice  of  James,  his  illegitimate 
son  in  1458, — 1460,  262,  ». 

James  I.  of  Great  Britain,  expedient  of,  to 
sustain  his  spendthrift  favourites,  870, 
n.  1. 

James  the  Historian  and  Novelist,(\n  refer- 
ence to  the  Duchy  of  Aiguillon,')  1052. 

Jedburgh,  Barony  of,  singular  usurpation 
of  that  title  by  individuals,  including  Sir 
John  Ker  in  1613,  with  his  apology,  242 
— 244. — Rather  curious  constitution  of, 
in  1670,  but  not  legally  capable  of 
being  in  abbeyance,  118-19. 

Jocular  Tenures  rare  in  Scotland ;  for  in- 
stance of  one,  in  the  case  of  the  Barony 
of  Camwath,  see  350,  n, 

Johnstone,  case  of,  in  1574,  illustrative  of 
law  of  heritage,  at  opposed  to  conquest, 
388-9, 11.  2. 


1080 


INDEX. 


Joknttotu  Goodinge  ▼.  Johnttone,  ease  of, 
in  1839>  as  to  luccession,  865,  «.  1. 

Johnstone,  John,  son  of  the  Laird  of 
Johnstone,  convicted  of  stoathrief,  and 
constraetiTe  treason,  in  1603,  129-30. 

Judex  pedaneMM,  or  Lord  Lyon,  see  Lyon, 
Lord. 

Jndgee,  Scottish,  their  partial  inadvertence 
and  misconception  of  our  old  law,  in  case 
of  Riddell  v.  Brymer,  464^469,  530. 

Jurisdiction,  opinions  of  Scottish  writers 
on  this  head,  313-14. 

Justice- Cierk,  ex  officio.  Master  of  the  Ce- 
remonies,  from  the  16tb  century  down- 
wards, he,  and,  as  such,  in  1565,  or- 
dered proclamation  of  the  marriage  be- 
tween Damley  and  Queen  Mary,  4. 


Kamet,  Lord,  his  just  remark  as  to  the 
darkness  and  confusion  of  our  modem 
Consistorial  law,  507. 

Kelly  Earldom,  Viscounty  of  Fenton,  &c. 
case  of,  in  1830-5,  iuTolving  a  point  of 
extinction,  with  lax  or  indulgent  proce- 
dure also  there,  868  to  872. 

«  Kenkynol,"  "  Coupes,"  &c.  peculiar  old 
Scottish  terms,  574-5,  with  amusing  at- 
tempt of  Lord  Hardwieke  to  unraTel 
them,  t'MdL 

Kenmure,  Fieeonnts,  see  under  Gordons 
in  the  North,  ^e, 

Kennedy,  Barony  of,  claim  to,  in  1760-2, 
577-8. 

Kennedy,  John,  Laird  of  Dunure,  his  re- 
markable compact  in  the  reign  of  Da- 
vid II.  with  Margaret  Logic,  Queen  of 
the  latter,  and  her  son,  982-3. 

Kennedy  and  RUel^ie,  Consistorial  case  of, 
in  1601,  398. 

Ker,  Sir  John,  see  Jedburgh,  Barony  of, 
— also  under  Whytlaw  ▼.  Ker, 

Ker  V,  Martin,  important  case  of,  in  1840, 
see  under  Marriage,  subsequent. 

King  with  us,  had  originally  the  custody  of 
fatuous  persons  and  idiots,  38.  Held  to 
be  infeofled,  jure  corone,  in  all  lands, 
and  hence  could  pursue  an  action,  as  a 
party,  without  service  or  infeoffment, 
759.  Sir  John  Lauder's  opinion  here, 
on  an  exception  in  the  Lennox  instance, 
11. 766.  King  Pater  Patrue  and  heir  w  hen 
there  was  none  to  take,  1 16-1 7,  but  see 
practical  exception  to  this,  117-18,  (see 
also  Dignity.) — Enforces  in  1615,  ex- 
press forms  in  conveyances  of  dignities, 
257.  Though  with  us  the  fountain  of 
honours,  yet  their  judicial  cognizance, 
differently  from  in  England,  by  his  re* 
linquishment,  came  to  be  in  the  Session, 
958,  n.  314  to  324,  including  the  re- 


markable  case  of  the  Earldom  of  Angus, 
in  partial  exemplification,  in  1688,  tMc£. 

King,  or  Crown  in  England,  see  Bngfisk 
procedure  in  Peerage  daims.  Latter 
contrasted  with  Scottish  forms  in  sac- 
cession  to  dignities,  &c.  644-5,  n,  2. 

King  alone  with  us,  differently  from  the 
English  practice,  could  pardon  treason, 
and  annul  attainder,  128,  750-52,  758. 
Royal  act,  however,  roust  be  explicit,  and 
cannot  be  implied,  750,  et  seq.  King 
could  grant  qualified  pardons,  or  restitu- 
tions, secundum  quid,  755,  n.  1,  &c.  761. 

Kildrummie,  Barony  cf,  apparently  a  ter- 
ritorial Peerage  in  the  noble  Family  of 
Elphinstone  before  1626,  and  as  bear- 
ing upon  prescription,  134-5.  The 
son  took  the  title  during  the  lifetime  of 
his  father.  Lord  Elphinston,  134,  n.  S. 

Kineardin,  Earldom  of,  in  1706-7,  dis- 
cussed by  the  Session,  33-4. 

Kinclevin,  Barony  of,  in  1607,  constitated 
without  mention  of  heirs,  101. 

Kinloch  v.  King's  Advocate,  case  in  1751, 
under  Forfeiture,  719,  n.  774,  n.  2. 

Kinloes  Abbacy,  its  erection  into  a  tempo- 
ral Lordship,  with  dignity,  in  1601, 
1608,  and  relative  particulars,  &c. ;  also 
original  patent,  (first  adduced  A-om 
the  Rolls  Chapel,  London,)  in  1604,  of 
personal  dignity  of  Lord  Kioloss,  under 
both  the  English  and  Scottish  seals, 
249  to  255. 

Kinnaird,  Lord  {Charles,)  and  his  lady, 
case  of,  in  1747-8,  in  regard  to  suppo- 
sititious issue,  556,  and  what  precedes. 

Kinross,  Sir  John,  his  appeal  to  Rome  in  m 
Consistorial  case  in  13th  century,  961. 

Kintttre  Earldom,  case  of,  in  1761,  and 
1778,  under  forfeiture,  713,  etseq. 

Kintyre  Barony,  limitation  of,  by  patent 
in  1626,  204.  n,  2. 

Kirkcudbright  Barony,  claim  to,  in  1779, 
622,  to  627.  Previous  competition  for 
the  honour  in  1737,  and  1741,  with 
peculiarity  in  the  procedure,  627-8. 


Ladiet,  noble  or  dignified,  even  when 
married,  took  formerly,  their  simple 
maiden  appellation,  a  fact  of  which 
Lord  Rosslyn  was  ignorant,  and  hence 
drew  most  erroneous  conclusions  in  im- 
portant matters,  788,  et  seq,  1038,  n.  A. 

**  Late,"  legal  import  of,  after  forfeiture, 
mistaken  by  shallow  modem  practition- 
ers, 877,  et  seq. 

Lauderdale  Duchees,  notices  of,  215- 
16,  n.  4. 

Lauderdale,  Duke  of,  (John)  curious  ori- 
ginal letter  by,  after  his  downfall,  with 


INDEX. 


1081 


hia  anxiety  to  have  a  pardon,  for  crimes 
*•  the  highest  and  greatest,"  &e.  216- 
1 7,  R.  I .  Anecdote  r«/a<iWt  of  an  Earl 
of  Lauderdale,  21 7i  n. 

LauderdaieEaridomMc.  curious  regrant  of, 
in  1667  ;  a  qualified  fee  thereby  consti- 
tuted. Right  to,  redeemable,  and  hence 
recalled,  and  voided  in  the  sequel,  after 
vesting,  215-16. 

Lauderdale^  Earl  nf,  his  futile  objection 
to  patent  of  Earldom  of  March,  in 
1697,  1058. 

Lauderdule,  Jatnet,  late  Earl  of,  his  forci^ 
ble  and  Just  reply  to  an  absurd  and  futile 
pretence  of  Chancellor  Rosslyn,  in  the 
Moray  case,  in  1 793,  796-97  ;  see  also 
601. 

his  Just  demand  in  1812,  for 

the  signature  of  the  Roxburghe  charter 
of  honours,  in  1646,  and  characteristic 
rejoinder  to  a  reply,  1053,  n.  3. 

Law,  CodrsisToatAL,  ona  gkmuinx  ori- 
ginal, from  390  to  555. 

— —  OF  FnarEiTURE,  before,  and  after  the 
Union,  708  to  776. 

■■  International,  see  Comitate  and  un- 
der Search  and  Capture. 

-._  iMngobardic^  see  Longohardie. 

m  Roman,   our  original    treason  law 

mainly  based  thereon,  740,  753-4,  757- 
8,  760,  766. 

Scottish,  by  the  repeated  authority 

of  English  lawyers,  &c.  from  the  Union 
downwards,  must  rule,  as  might  be  ex- 
pected, in  Peerage  claims,  929-30. 
of  Conquest  and  Heritage,  see  under 


these  heads. 

**  Lawful,'*  standing  alone,  meaning  of, 
anciently,  5)9,  520, — when  coupled 
with  natural,  its  import ;  see  Natural. 

Lawyers,  English,  see  English,  and  under 
Law,  Scottish. 

Legitimacy,  salving  exception  in  favour  of, 
ob  ignorantiam  et  bonam  Jidem,  in  refer- 
ence to  a  void  and  illegal  marriage,  with 
apposite  Scottish  cases,  and  authorities, 
before,  and  after  the  Reformation,  446 
to  475,  527-8-9,  530.  To  admit  the 
plea,  the  marriage  (de  facto)  must  have 
been  public,  and  not  clandestine  or 
*'qiiiettg, '*  475,  et  seq.  Could  ignorantia 
and  htma fides  legitimate  incertuous  issue 
by  concubinage,  of  relations  within  the 
forbidden  degrees,  who  afterwards,  on 
discovery  of  the  impediment,  lawfully 
married,  in  virtue  of  a  Papal  dispensa- 
tion ?  This  the  true  case  of  the  Stew- 
arts, upon  which  their  legitimacy,  or 
illegitimacy  may  depend,  511  to  518  ; 
see  also  before,  136-7.  If  their  legiti- 
macy sustained,  it  can  only  be  by  the 
exception  of  bona  fides  and  ignorantia. 


yet  rejected,  tdiunde,  by  half  our  Bench 
in  1811,  518,  516-17,  452-3;  see 
also  as  to  Stewart  cue,  135-6-7,463-4, 
474,  and  Pref.  xvi.  Other  remarks 
connected  with  the  Stewart  case,  518- 
1 9,  520.  Whether  the  son  of  an  iU 
legal  and  anmilled  marriage,  celebrated 
in  facie  Eccletie,  through  favour  of  his 
mother's  ignorance,  of  the  attaching  im- 
pediment thereto,  would  succeed,  in  exp 
elusion  of  a  younger  brother,  the  law- 
ful offspring  of  the  common  father,  by  a 
later  unexceptionable  marriage  ?  525  to 
528,  530- 1 ,  n.  Baneful  e fleets  from  un- 
due rejection  now,  of  the  exception  of 
bona  fides  and  ignorantia,  in  favour  of 
legitimacy,  474-5,  628;  legal  conse- 
quences to  the  parent,  in  mala  fide,  529. 
Further,  as  to  legitimation,  per  bonam 
fidem,  see  English  Law  and  Practice. 

Legitimatim,  (per  rescriptum  Prindpis) 
qualified  import  of,  in  the  1 7th  century, 
138.  In  1 6th  century,  ostensibly  would 
strike  us  to  have  imparted  full  legiti- 
macy, 150-1  ;   see  also  416,  n.  2. 

**  Legitimvs  et  prapinquior  hares,"  formerly 
not  always  expressive  of  genuine  lawful 
blood  descent  and  relationship — even 
applied  to  singular  successors,  1 50- 1  -2. 

Leiyh  v.  Kent,  m  1789,  English  case  of, 
311. 

Lennox,  original  Earldom  of,  claims  to,  in 
1768-9,  especially  including  that  of 
William  Lennox  of  Woodhead,  with 
original  relative  notices,  650,  et  seq. 

Lennox,  f^'tV/iam,  of  Woodhead,  in  1768; 
see  Lennox,  vt  sup. 

Lennox,  Earl,  title  of,  taken  both  by  the 
father  and  son  upon  the  feudal  princi- 
ple, in  1490,  reluting  L.  Mansfield,  1 J 4. 

Lennox,  Margaret  Douglas,  Countess  of. 
Lord  Darnley,  her  son,  &c.  remarkable 
case  of,  in  regard  to' the  succession  to 
the  Crown  of  England,  in  the  reign  of 
Lltzabeth,  420—424,447-74,  564,  n.  2. 
Their  case  seemingly  at  variance  with 
Judge's  opinion  in  that  of  Bin  whistle  and 
Vardill,  424,  et  seq.  ;  see  alsu  469-70. 

Lennox,  or  Darnley,  collateral  Ducal 
branch  of,  question  of  their  right  to  suc- 
ceed to  James  VI.,  or  Crown  of  Scot- 
land, in  a  contingency,  19b-7,  854,  el 
seq.  and  see  also  under  Snccension, 

Lennox,  or  Darnley,  House  of,  their 
curious  aspiring  device  and  motto  in  the 
16th  century,  265. 

Lennox  Dukedinn,  constituted  in  1581, 
case  of,  99,  100,  176-7. 

Duke  of,  and  Marquis  of  Hamil- 
ton, their  precedence  in  England  in 
1637,  before  English  Peers  of  a  subor- 
dinate degree,  such  as  Earls,  &c.  1066. 

3z 


loss 


INDEX. 


Leven  Earldom,  inattgaration  of»  in  1641, 
49,58,  n.  ]. 

-  peculiar  ease  of,  in  the 

reign  of  Charles  II.  and  subsequently, 
66  to  70,  1067,  n.  2. 

*  ■  Succession  to,  case  of,  and  its  state  of 
ahbeyance  after  1 677 ,115-16.  At  Tari- 
anee  with  case  of  Rosebaugh,  see  117- 
18. 

LimUatioms,  certain  odd  and  uncouth  ones 
with  us,  194-5.  Various  limitations  of 
honours,  also  with  irritant  and  resolu- 
tive clauses,  and  power  of  nomination, 
193-4-5-6,  etseq,  212.13-14,218-19, 
220,  &c.  84-5, — Importing  also  a  qua- 
lified and  rcTOcable  right  to  a  dig- 
nity, 215-16 Flexible  and  perplexing 

nature  of  the  relative  terms  and  ad- 
juncts, 222.  See  also  under  ProcreaH- 
dis,  and  Procreatis,  and  Heirs-male  oj 
the  Body,  et  seq.,  Sucetssion,  he.  &c. 

Lindores  Barony,  case  of,  in  1790-3,  777- 
8-9. 

Lindsay,  David,  nfEdzeH,  Earl  of  Craw- 
ford, case  of,  in  reference  to  sitting  in 
Parliament,  and  general  public  recogni- 
tions, before,  and  after  the  middle  of  16th 
century,  104,121-2. 

Lindsay,  David,  of  Edtell,  (simply)  in 
1686.  See  under  Crawford  Earldom, 
Question  of,  &c.  in  that  year. 

■■ Sir  David,  of  the  Mount,  later 

Lord  Lynn  of  that  name,  in  the  reign  of 
James  VI.  356,  n.  2. 

Lindsay  Earldom,  and  Barony  of  Lind- 
say of  the  Byres,  existing  state  of,  977, 
It.  2.  Original  grant  of  Byres  to  the 
main  stock  of  Lindsay  of  Crawford,  in 
1 3th  century,  t6. 

— Sergeant  David,  son  of  a  com- 
mon soldier,  heir- male  of  the  Earls  of 
Lindsay,  and  Lord  Lindsays  of  the  Byres, 
and  claimant  in  1808,  of  their  honours, 
with  his  striking  fate,  618,  n.  2. 

Lindsays,  Lives  of  the,  by  present  Lord 
Lindsay,  977,  n.  1. 

*'  Livingstone  of  Hyndfoord  Barony,**  a 
**qwescent"  title  hitherto  unknown,  and 
curiously  chosen  by  Sir  Thomas  Living- 
stone, Viscount  Teviot,  In  169S,  in  lieu 
of  a  former  one,  1061 ;  see  also  Teviot, 
Viscmnty  of, 

Lochteven  Castle,  Stewarts  confined  in, 
in  the  reign  of  David  II.,  964,  n.  7. 

Lockhart  v.  McDonald,  case  of,  July  24, 
1840,  fafflrmed  in  1842,)  857,  k.  2,864, 
n.  4,  866-7. 

Logic,  Margaret,  (the  only  Queen  of  Scot- 
land, whoso  parentage  is  unknown,) 
wife  of  David  II.  her  divorce,  and  ap- 
peal to  Rome,  with  original  notices  and 
particulars  regarding,  9Si,  etseq.  1048.  ' 


Logic,  Family  of,  (that  of  Mwrgtrut\  Aral 

hvsbandj  982-3,  1048. 
Longobardie  Law,  561,  566-7,  577. 
Lords,  House  of,  their  resolutions  in  182S» 

respecting  Scottish  Peers;   see   EUe* 

tions  of  Sixteen  Peers, 

see  also  PecrSf  House  of. 


Lords,  Scottish,  style  of;  see  Session,  Lard» 
of  Every  one  so  entitled,  with  us,  for- 
merly, was  not  a  nobleman  or  Peer,  aa  in 
the  modern  sense,  349,  n.  1  • 

Lorraine,  Mary  of;  see  Chastelhcramlif 
Duke  of 

Lothian  Earldom,  case  of,  in  1631,  farther 
evincing  cognisance  of  the  Session  in 
honours,  15. 

patents  of,  in  1606, 163I» 

and  1678,  73-4-5-6,  et  seq,  235. 

remarkable  case  of,  op« 


on  the  general  merits,  from  1624  down- 
wards. 73  to  83.  Two  Earldoms  of,  ae^ 
cording  to  present  understood  law,  now 
existing,  the  original  one,  in  terms  of  the 
patent  lt>06,  and  a  later,  under  that  of 
1631,  backed  by  the  patent  1678,  and 
both  dilTerently  descendible,  as  by  evi- 
dence now  adduced,  ib, 

Lothian  and  RoThurghe,  Earls  of,  their 
keen  and  almost  personal  contention  for 
precedency  from  before  1679  to  1695, 
with  a  relative  opinion  of  Sir  John  Mis- 
bet,  21  to  24,  77-8.  et  seq, 

Lothian  Marquisate,  limitation  of,  by  pa- 
tent 1701,  204,11.  2. 

L'tudon  Bartmy,  negociations  concerning, 
hi  1619,  1623,  by  James  Campbell  of 
Lawers,  for  confirming  a  prior  resigna- 
tion of  the  honour  in  favour  of  his  son, 
53-4.     Original  creation  of,  360. 

Lovat,  Simon  Lord  Fraser  of,  bis  action 
of  reduction,  in  the  Session,  in  1630,  of 
precedency  of  certain  Lords,  333. 

Lovat  Barony,  case  of,  before  the  Session 

in   1702,32-3,   190 Case  before  the 

Sesbion  in  1730,  285  to  287,  and  370 
to  375.  Erroneous  and  contradictory 
account  thereof,  by  Lord  Mansfield,  373- 
4-5.  Those  of  other  lawyers,  371,  »• 
3,,372.  Present  claim  to  Barony  of  Lo- 
val,  920,  n.b, 

Lumley  Bar*my  iir*%ie-8imple,  case  of,  in 
1723,  under  forfeitDiv,  736. 

Lyle  Baronial  Fi*f^  strange  limitations  of, 
to  Roliorl  Lord  Lyle,  &c.  in  1406, 194-5. 

Burtynyof,  taken  by  the  heir- female  in 

1 7  2 1  -2,  3  70.  Claim  of  the  heir-female 
to  the  dignity  in  1790,  818,  m.  5. 

Lyndhvrst,  Lord,  and  Lord  Broughmn, 
their  relevant  conclusions  on  a  point  of 
Scottish  succession,  inadvertently  mis- 
taken by  Scottish  authorities,  856-7. 
Lyon^  Lord$  Judex  Pcdaneus,  and  Herald 


i 


INDEX. 


1088 


Court,  moH  righteoutfyf  under  control  of 
the  Session,  3,  4,  5.  Kept  Bookt  of 
BUsonry,  7.     See  also  under  PatentM, 

M 

Macadam  dtcmon  in  1806,  radically  irre- 
concilable, and  questionable,  482  to  490. 

Macalzeane  v.  Mae^heane,  consistorial 
case  in  1582,  393,  461-2. 

Maedonald,  ji/exander,  younger  of  Glen- 
garry, case  of,  in  1692,  under  forfeiture, 
752. 

Macdowal  of  Logan,  case  of,  in  1840, 
418,  M.  1.  Question  of  chieftaincy  or 
senior  male  representation  of  the  Mac- 
do  wals,  so  keenly  mooted  last  century, 
by  new  evidence,  may  be  further  in  fa- 
vour of  Family  of  Logan,  i5. 

Maelauehlan  ▼.  Dohtoui  important  ease 
of,  in  1796,  487-8,  505,  m.  2. 

Madeau,  Murdoch^  ofLoeMwy,  legal  im- 
port of  his  legitimation  in  1 538  ?  1 50- 1 . 

iliac9«eeji,  JusHce- Cierk,  his  opinion  in 
respect  to  Act  1690,  c.  104,  in  forfeit- 
ture,  corruption  of  blood,  and  as  to 
the  import  here,  of  our  entails,  762-3, 
766-7.  His  just  notions  in  respect  to 
marriage,  and  its  due  constitution,  &c. 
with  us,  481,  490-1. 

Mfaidmtnt,  James,  Esq,  Advocate,  962-3. 
8e«  also  598,  m.  1,  63-4,  n.,  138,  n.  2. 
662,  A.  2,  &c. 

Major,  see  under  Divorce  ofcid, 

Man,  hie  of,  Scoitieh  Bartmjf,  constitut- 
ed in  1324,  with  a  regality,  and  duty 
of  attendance  on  Parliament,  as  a  con- 
dition of  tenure,  102*3. 

Manefield,  Lord,  including  his  various  er- 
rors, inadvertencies,  crudities,  devices, 
misconceptions,  and  striking  contradic- 
tions, &c.  &c.  5,  9,  n.  2,  18,  19,  20, 
24,  43-4,  72,  and  n.  3,  135,  139,  161- 
2,  174,  178,  182-3-4,  199,340-1,  352- 
S-4,  373-4-6,  384,  n.  3,  3rt5-6,  557, 
660  to  567,  569  to  673,  577  to  580. 
685-6,  592,  597  to  605,  610,  613-14, 
618  to  622,  623  to  627,  645,  n,  652-3, 
655.  661-2,  671  to  674,  677-8,  680  to 
700,  702,  705  to  708,  781-2,  835,843, 
«.  1 ,  846,  9*29,  M.  944  to  952,  954-5, 
957,  959,  962-3,  1051-2,  &c  ;  tee  too 
114. 

March  and  Dunbar,  original  Earls  nf,  their 
original  designations  in  reference  to  re- 
marks of  Sir  Harris  Nicolas,  968,  et 
seq.  ;  see  also  1049. 
March,  Robert  Stewart,  Earl  of,  his  case 
of  impotency,  in  1580-1,  531,  et  seq. 
See  also  Stewart,  Dame  Elizabeth,  af- 
terwards Countess  of  Arran. 
*. —  later  Earldom  of,  its  limitation,  by  the 
signature  and  patent,  in  1697,  207-8. 


How  descendible  accordingly  ?  with  a 
new  apparent  objection,  206-7-8.  But 
see  also,for  more  here  r«/a/}W,including 
the  effect  of  signatures  originally  Llanh, 
\Qb2'Z,etseq,iic.  Teviot,  Viscohntyof, 
Lauderdale,  Earl  of,  and  Qweensberry, 
Marqnis  of. — March  patent^in  1697,  at 
what  time  de facto,  and  dejure,  sealed  ? 
1065,  n.  3. 

Marchmont,  Earl  of,  his  pertinent  expo- 
sure in  1761-2,  of  the  strange  modem 
fallacy,  afterwards  inculcated  by  Lords 
Mansfield  and  Rosslyn,  as  to  **  Belting," 
50,  694.  See  also  for  his  just  remsfki 
and  impressions  as  to  female  succession^ 
with  us,  372,  577. 

Magdalens  de  Vahjis,  the  young  and 
beautiful  Queen  of  James  V.  Epita* 
phium  on,  or  original  coteroporary  ver- 
ses to  her  lamented  memory,  with  rela- 
tive notices,  448,  r. 

Margaret,  Princess,  the  unfortunate  sister 
of  James  III.  educated  at  the  Abbey  of 
Haddington,  a  fashionable  semmary 
during  Papacy  of  the  female  nobility, 
267,  ». 

Tudor,  queen  of  James  IV.  her 

divorce  upon  original  nullity,  from  the 
Earl  of  Angus,  her  second  husband,  but 
with  legitimacy  of  Margaret  Countess  of 
Lennox,  their  daughter,  ob  ignorantiam 
et  IhMamfidem,  469-70.  Material  con* 
sequences  thereby,  in  England,to  Coun* 
tess  Margaret  and  her  issue,  420-1,  cf 
seq.  See  also  529,  654,  H  seq.  Ori- 
ginal notice  regarding  the  Queen,  470, 
M.  1 .  Other  conceivable  consequences 
turning  upon  the  Queen's  marriage  with 
Angus,  and  thirdly,  with  Lord  Methven, 
&c.  473-4. 

Marquisate  of  Ormond,  constituted  in 
1487,  apparently  the  oldest  Marquisate 
with  us,  873,  n.  1. 

Marriage,  publicity  \n,  with  form  and  cere- 
monial, &c.  originiJly  exacted  by  us,  477 
to  505,  &c.  As  to  forms  here,  and  on 
the  prior  occasion  of  sponsalia,  460, 
482,  486.  492,  n.  2,  493,  n.  1,  494,  n. 
1,  509,  &c. 

Marriage  after  the  Reformation,  still  held 
a  "  holy  institution,"  487.  Could  it  be 
contracted  on  deathbed  ?  463-4.  Main- 
tained formerly  that  it  could  be  only 
proved  scripto,  488,  et  seq.  What  facta 
might  compensate  for  direct  proof  of 
celebration  of  marriage  ?  507-8.  Effect 
of  habit  and  repute  ?  509- 10-11.  Could 
celebration  of  marriage  be  enforced  at 
the  instance  of  a  party,  upon  a  precon- 
tract with  copula  f—on  a  precontract 
without  copula  9  including  relative  inci- 
dents, 471.  ».  2.    Marriages  by  force* 


1084 


INDEX. 


or  between  papfU,  by  oar  old  law,  445-  { 
6.      Marriage  objected  to  after  the  Re- 
formation between  a  man  and  a  woman, 
because  latter  had  kept  '^company"  with 
hiK  nephew,  451,  n. 

Marriage^  iuhaeqnent  ;  see  *'  Cair,**  or 
**SpnnMal  C/aiM,"( Nuptial  p'lHinm,  »ee 
478-9,  n.  4. )  and  as  contrasted  with  Pref. 
XTt.  and  497-8-9.  ^s  illustrated  in  late 
important  case  of  Ker  and  Martin  in 
•1840,  involving  certain  specialties,  and 
legal  effect  of  the  legitimating  principle, 
620  to  625.  Relative  plea  in  the  case  of 
Blacalxeane  in  1582,  623. 

I between  parties,  in 

virtue  of  a  dispensation  before  the  Re- 
formation, who,  ignorant  of  their  rela- 
tion within  the  forbidden  degrees,  had 
procreated  coneuhinowi  incestuous  issue, 
as  bearing  upon  the  status  of  the  latter  ; 
neeLeffitimacy,  andSteioartithgitimaejfo/. 

Marriage  putatioe  and  nif//,  salving  effect 
to  the  issue  thereof,  through  bona  fides  et 
ign'trantia^  of  parent,  or  parents,  with 
specialties,  452-3,  et  leq.  525,  ei  aeq. 

Marritigef  Morganatic^  or  of  a  qualified 
kind,  if  formerly  known  to  us,  or  if  such 
can  now  exist  ?  488  to  490. 

— ~-^—  See  also  Divorce. 

Marr,  original  and  existing  Earldom  of, 
the  premier,  strictly  by  constitution,  in 
Scotland,  167—170. 

Earldom^  grant  of,  in  1404,  to  Al- 
exander Stewart,  690- 1 .  Original  Earl- 
dom, case  of,  (as  regards  prescription,) 
in  1565, 1587, 133*4.  Marr  and  Suth- 
erland Earldoms,  the  most  remarkable 
in  the  Empire,  would  they,  under  For- 
feiture, be  fully  tR  pari  casu,  with  Eng- 
lish dignities  in  fee  simple  ?  737. 

Marshal,    Scottish,   hereditary  office   of, 
decision  respecting,  in  1682,  24.     Infe- 
rior in   its   functions,    (with    us,   and 
'■oUuude,)  to  that  of  Constable,  335,  et 
seq.      See  also  under  Heritable  Offices. 

Marshal,  Earldom  of,  (both  now  forfeited 
and  extinct,)  its  precedence  in  right  of 
the  above  attaching  office,  162. 

**  Master,"  in  respect  to  the  nobility,  title 
•of,  with  us,  114.    Conferred  *c/)arati'm, 
as  a  "dignity,*'  by  a  patent  in  1651,  t&. 
See  also  869.  n.  2. 

Matricide,  Law,  and  striking  case  of,  in 
17  th  century,  222,  et  seq, 

Matutinale  Donum,  see  Momingaba, 

Maxwell,  SirGeo.  ofPollok,  &c.  947-8. n  3. 

Melfort,  John,  titular  Duke  of,  remission 
to,  by  James  II.  in  1694,  964,  n.  3. 
Patent  of  the  Dukedom  in  his  favour  in 
1692,  ihid.  Father  Hay'i  character  of 
this  noted  personage,  695,  r.  See  also 
ander  Ferth  titular  Dukedom,  ^c» 


Mdfort  Earldom,  ease  of,  (under  Forfolt* 
ure,)  in  1095,  761-2. 

Melgum  and  Abttgne  Viscounties^  constitut- 
ed in  1 627  and  1632,  cases  of,  in  palpa- 
ble refutation  of  Lord  Mansfield's  special 
ratio  in  the  Kirkcudbright  claim,  6i4- 
5-6,  and  Append.  102U-1. 

Melrose,  Abbey  of,  erection  into  a  tempo- 
ral Lordship,  &c.  in  1619,  &45. 

Meloill  Earldom,  &c.  can  its  union  with  the 
Earldom  of  Leven  l>e  affected  by  the  ro- 
grant  in  1664,  if  valid  ?  69.  70. 

Meneieth,  original  Earldom  of,  curious  coo- 
tention  for,  between  two  brothers,  bo- 
fore,  and  in  1213,  1 72,  n.  1.  Later  ap- 
parent contention  for,  in  1237,  t6. 
and  Earls,  descent  and  re- 
presentation of,  after  the  middle  of  tho 
13th  century,  including  Isabella  Coun- 
tess of  Meneteth,  Isabella  Comyn,  her 
daughter.  Sir  Edmund  de  Hastings,  her 
husband  ;  and  curious  misconception  in 
England,  as  to  Sir  Edmund's  style  in  her 
right,  with  other  relative  original  particu- 
lars, &c.  990  to  1002. 

Earldom,  grant  of,  in  1306,  to 

Sir  John  de  Hastings,  the  Competitor, 
brother  of  the  above,  and  its  singular 
fate  down  to  our  time,  991 — 1002. 

Uike  of,  comprising  Islands,  with 


principal  Messuage  of  the  Earldom,  &c. 
called  also  **  Inchemacholmok,"  991. 

or  Strathem  representation  of 

the  Stewarts;  see  Strathem  Earldom, 

'  SAd  Airth  Eearldams,  recalled 

conveyance  of,  in  1680, 47,  214.  Claim 
to,  at  present,  646,  r.  3,  920,  n.  5. 

Meneteth,  titular,  or  the  *'beggar  Earf  ef^ 
in  1 744,  and  thereafter,  with  nature  of 
bis  claim,  &c.  646-7,  r.  3. 

Messuage,  chief,  among  coheiresses ;  too 
Chemys, 

Methven  Barony,  charters  of,  in  1551  and 
1664,  strikingly  refute  Lord  Mansfield*a 
preposterous  ante -territorial  doctrine, 
as  well  as  a  fortiori,  his  construction  of 
Comitatus  anciently,  532,  r.  1 .  See 
also  Caithness  Earldom,  constitution  of, 
in  1476,  and  under  Comitatus,  &c.  &e. 

Middleton,  Earldom  of,  case  in  1656  and 
1660,  47-8,  59.  Forfeited  at  present, 
772-3. 

Modena,  House  of;   see  SartUnia, 

Montrose,  old  Dukedom  of,  in  1488,  limited 
to  heirs,  176,  r.  5. 

granted  in  1489  for 

life  only,  108. 

Montrose,  present  Dukedomqf,  its  singular, 
questionable  situation  hereafter,  failing 
heirs- male  of  the  body,  in  terms  of  the  pat- 
ent in  1707,  owing  to  an  apparent  inad- 
vertency, or  clerical  error,  200—202. 


INDEX.. 


1085 


Montr0»e  Marquitate,  case  of,  in  1644, 
1660.  48,  69,  6a.  Limitalioo  of  the 
diffoitj  in  1706,  195,  n.  4. 

JdonvmcHtal  Ingcriplion*  ;  see  under  Evi' 
dence,  EnglUh. 

Monnmait  Barony,  grant  of,  in  1627, .  in 
reference  to  law  of  conqueit  in  honours, 
1051. 

Moray  Earldom,  rather  conflicting  succes- 
sion to,  before,  and  after  the  middle  of 
the  15th  century,  with  new  evidence  as 
to  the  then  senior  representation,  866- 
7,  n.  2. 

-— -  Elizabeth  (de  Dvnbar)  Counteu  of, 
in  her  own  right,  second  wife,  in  1455,  of 
George  Earl  of  Huntty,  who  divorced 
her,  and  remarried  Prindess  Annabella, 
daughter  of  James  1.,  whom  he  also  sub> 
•equently  divorced,  526-7.  See  also 
Huntly,  George  Earl  of, 

—  Earldtfttt,  previously  unknown, 
granted  to  David,  younger  sun  of  James 
li.  about  1456,  780,  n.  3. 

(in  the  Regent  Moray,) 


il 


case  of,  in  1790-3,  wtth  flagrant  inad- 
vertencies, errors,  and  gratuitous  pre- 
tences, and  conclusfons  of  Chancellor 
Rosslyn,  including  new  evidence,  780  to 
808.  See  also  926-7,  934-5,  and  what 
precedes,  and  in  reference  to  the 
Waterford  Irish  claim,  933-4. 

— i—  Repent,  (ut  svp.J  see  Huntly,  Earl 
of  in  allusion  to  contemplated  elevation 
of  the  former  to  a  Duke. 

Morden,  Britith  Barony  of  \n  1770,  pa- 
tent ineflectual,  from  not  passing  the 
Great  Seal,  68. 

Mordington,  Lord,  question  between  him, 
and  Lord  Sempill  as  to  precedency,  in 
1661,  14. 

Mordington  Barony,  limitation  of,  in 
1640,  unknown  to  Lord  Mansfleld,  180- 
1,  198.  Remarkable  case  of,  in  1746, 
385-6,  866,  948  to  952.  Glaring  error 
regarding  the  Mordington  descent,  with 
unfounded,  nay,  most  baneful  conclu- 
sion of  the  former, — here  as  tuectuful  as 
ever;  s|)ecimen  of  his  mode  of  rea- 
soning, &c.  &c.  t6.    See  also  979, 1036. 

Momingaba,  or  Matviinale  donum,  with 
us,  its  nature  and  legal  eflfect,  489,  n. 
2. 

Morton  Earldom^  case  of,  in  1540,  6. 

case  of,  in  1592,  shewing  import  of 

Cumitatui  even  then,  as  carrying  the 
dignity,  strikingly  in  opposition  to  Lord 
Mansfield,  44-5  ; — further  illustrates  the 
question  of  our  cognizance  in  honours, 
as  stated,  45-6. 

Munro  v.  Munro,  recent  important  case  of, 
(under  legitimacy)  in  1840,411,417-18. 

Murder,  by  our  common  law,  of  a  Chan- 


cellor, or  supreme  Judge,  at  any  time, 
was  treason,  instead  of  being  restricted, 
as  by  Act  of  Queen  Anne,  in  1708,  with 
relative  notices  and  remarks,  738, 
et  seq. 
Murder  under  trust,  formerly  by  Act  1587, 
c.  51,  (but  subsequently  rescinded,) 
treason  ;  and  viewed  in  respect  to  hon- 
ours,  224,  230-1. 


N 


Nairn  Barony,  limitation  of,  by  patent 
in  1681,  202. 

Napier  Barony,  234*5,  661,  n.  case  of,  in 
1790-3,  involving  regrants  ami  a  cleri« 
cal  error,  with  a  new  intimation,  t65-6» 
815—818. 

*'  Natural,**  in  reference  to  progeny, 
sometimes  interchanged,  and  identical 
in  Scotland,  with  **  carnal,*'  before  the 
Reformation,  450,  n.  636,  n.  2.  Tech- 
nical opposite  meaning  of  **  naturalis, 
when  standing  alone,  and  when  coupled 
with  legitimuM,  450,  n.  ;  for  **  naturalis  " 
thus  alone,  or*'  tantum,"  see  also  under 
Borthwick  case,  581,  and  n.  2.  ib.  In 
the  Caithness  claim  in  1791,  M{«<iira/i« 
was  further  found,  in  repeated  instances, 
by  the  Lords,  to  denote  illegitimacy, 
and  four  extinctions  in  16th  and  17th  cen- 
turies, were  thereby  disposed  of,  583. 

** Natural  and  lawful,'*  applied  to  progeny; 
see  above. 

Nelson  against  Cochrane,  important  case 
of,  in  1837,  and  1840,  fixing  indefeasi- 
ble force  of  the  Act  of  Vicennial  Pre- 
scription of  Retoursor  Services,  140-2, 
916  ;  but  as  to  Honours,  see  ib.  917,  &c. 

Newark  Barony, euB  of,  in  1790-3,  779-80. 

Newbattle  Abbacy,  erections  of,  into  a 
temporal  Lordship,  in  16tb  century,  with 
peculiarities,  247-8. 

Newburgh  Barony,  unique  case  of,  consti- 
tuted in  1628,  with  regaliiy  and  lands  in 
Nova  Scotia,  23  V,  et  seq. 

Newburgh,  Earlditm  of  claim  to,  in  1784, 
650.  Case  of,  under  alienage,  720, 
under  law  of  Forfeiture,  77 1. 

Newhaven,  Scottish  Viscount,  his  duel  in 
1699,  with  Lord  Wharton,  an  English 
Baron,  on  account  of  disputed  preced- 
ency of  former  in  England,  1066. 

Newspaper,  see  Evidence. 

Nicolas,  Sir  Harris,  his  remarks  and  mis- 
conception as  to  the  style  of  the  old 
Earls  ot  March,  or  Dunbar,  as  well  as  that 
of  Sir  Edmund  Hastings,  in  1301,  involv- 
ing more  important  facts  and  results, 
&c.  988  to  1(J02.  See  also  under  Mene- 
teth,  original  Earldom  of 

■  as  to  a  specialty  in 


1086 


INDEX. 


EnglUh  precedence  formerly,  156,  n.  2. 
See  aim  1047-8. 

Nubet,  Sir  John,  of  Dirletoun,  Lord  Advo- 
cate to  Charles  II.  his  notion  as  to  a 
point  of  succession  in  conquest,  836,  n.  i. 

see  also  under  Ex- 
pediency, and  23,  ».  1 .  Hii  high  charac- 
ter by  cotemporaries,  26,  n.  2. 

Nithadale,  Earl  of,  question  as  to  his  pre- 
cedence in  1620,  13,  14. 

Nobile  offieium  of  Court  of  Session,  3. 
Church  also  under  Papacy  claimed  a 
nohUe  offieinm,-\'l%,  n.  1. 

Nobilitjf,  or  rather  perfect  family  def- 
cent,  when  matured.  192,  n.  2. 

Nobility,  Jacobite,  created  in  18th  ceo- 
tury,  979. 

Nomination  to  honoura,  by  guhjectM,  ear- 
liest example  of  power  granted,  accord- 
ingly, by  the  crown,  in  1604,  84,  n.  4. 
Critical  fate  of  that,  to  the  Earldom 
of  ErrnI,  with  remarks,  84  to  87. 
See  Rut  he/ford  Barony,  case  of,  and  Cou" 
par,  Jamett  Lord;  also  Regranta  and 
Rengnationa ;  and  Aiguillon,  Duchy 
Pairie  of,  in  France,  (shewing  the  prac- 
tice in  question  to  havebeen  alsoFrench,) 
under  Vigernot,  Mary  de.  Nomina- 
tion to  honours,  in  effect,  («/  avp.  as 
conceived,)  in  virtue  of  o  carte  blanche 
by  the  sovereign,  1056-6,  et  teq. 

Non-claim,  in  the  case  of  a  dignity,  and 
when  there  is  counter  possession  or  as- 
sumption, t369,  629,  830. 

Northumberland  Earldom,  case  of,  in  the 
reign  of  Elizabeth,  under  forfeiture, 
716. 

Northumberland,  Counteaa  Dowager,  her 
petition  to  the  Lordfc,  in  1672,  853. 

Nova  Scotia,  see  Baronetcies  of,  Newburgh 
Barony,  and  1066. 

Numero  non  pondere,  this  "  mtlick  "  test 
attempted  to  be  pressed  into  his  ser- 
vice by  Lord  Mansfield,  in  support  of 
his  arbitrary^of  of  the  unnatural  misre- 
presented male  descent  in  honours,  945. 

Nuncupative  testament,  effect  of,  in  Scot- 
land, 426,  tt.  1. 


Ochiltrie  Barony,  case  of,  in  1790-3,  808 
to  816. 

Offices,  Heritable,  24,  274,  n.  I,  850,  &c. 
Rather  unlikely  question  of  the  adjudg- 
ing or  eviction  by  a  creditor,  of  '*  the 
first  place  in  the  front  of  battles,'*  an 
office  in  the  Douglas  family,  158,  n.  4. 
Others  in  the  latter,  1 56  to  1 59.  He- 
ritable offices  weighed  in  the  ranking  of 
our  nobility,  162-3.  For  high  heredi- 
tary office  of  Constable  of  Scotland,  see 


Errol,  Earl  of,  and  Constable:  tor 
those  (including  their  precedency)  of 
Justiciar  of  Se.ttland,  Master  of  th^ 
Household,  High  Admiral,  Marshal,  tea 
1623,  J66-7,  24. 

Ogihie  and  Chesholme,  CMe  of,  in  1573-4, 
in  reference  to  plea  of  ignorantia  and 
honafidfs  in  legitimacy,  460. 

Oliphant  Peerage  case  before  the  Session, 
by  the  ordinary  routine  of  their  cogniz- 
ance, in  1631-3,  in  palpaltle  refutation 
of  Lord  Mansfield,  17,  18,  n.  1,  19,  20. 
Decision  important,  as  exemplifying  and 
fixing  the  descent  of  our  honours:  ex- 
position of  the  glaring  inadvertencies 
and  misrepresentations  here,  of  Lord 
Mansfield,  ut  sup.  and  175, 178  to  184. 
Equitable  manner  in  which  Charles  I. 
dealt  with  the  Oliphant  title,  1 81 -2. 
— New  relative  evidence,  with  remarks, 
960-1,  n.  2. 

Oliphant  of  Gash,  James,  E^.  undoubted 
male  descendant  and  representative  of 
the  Lords  Oliphant,  and  of  that  ancient 
and  distinguished  House,  with  correc- 
tion of  a  former  manifest  error  in  res- 
pect to  the  origin  of  his  family,  182, ». 

Oliphant,  striking  case  of,  under  Iklatricids, 
in  the  17  th  century,  223  et  seq, 

Orkney,  original  Eat  Idom  vf,  see  ^frafAcns, 
original  Earldom  of. 

Earldiim  of,  at  the  middle  of  tb» 

15th  century,  608-9. 

Earldrtmof,  in    1581,   and  1600, 


in  refutation  of  Lords  Mansfield  and 
Hardwieke,  571 ,  n.  2.  '*  Belting"  and 
inauguration  of,  in  1581,  691. 

Ormond,  Marquisate  of,  in  1487,  may  bo 
oldest  Marquisate  with  us,  873,  n,  I. 

Earldom  of,  signature  of  the  pm* 

tent  in  1651  incomplete,  67,  n.  3.  Se« 
also  Forfar  Earlfli^m. 

Osborne  of  Dumblain,  Viscounty  of,  its 
constitution  in  1673,  and  regrant  upon 
a  resignation  in  1674,  shewing  the  un- 
derstood import  of  a  resignation,  71, 
123. 

Oxenford,  or  Oxford  Viscounty,  curious 
case  of,  and  unwarranted  attempt  in 
1 706,  and  thereafter,  in  behalf  of  the 
titular  and  putative  Christian  **  Viscount- 
ess Oxenfurd,"  and  "Viscount  "William, 
her  son,  (in  her  shoes,)  61  to  63,  1054. 
Case  of,  before  the  Court  of  Session  in 
1733,  with  important  argument  (they 
being  now  first  adduced)  as  to  compe- 
tency of  the  latter  in  dignities,  290,  294 
to  303.  Case  of,  before  the  Lords  in 
1734-5,  376  to  385.  Is  the  Viscounty 
now,  in  one  sense,  in  abbeyance  ?  380-1. 
Irrelevant  arguments  that  had  their 
weight  upon  this  last  occasion,  with  quA« 


INDEX. 


1087 


Hfled,   and  but  interim  nature  of  the 
Lords'  resolution,  381-2-3-4. 


Fui^ey  Ahhactft  erection  of,  after  the  He- 
formation,  into  a  temporal  Lordship, 
with  pecuh'arities,  245,  ef  %eq. 

Pallium,  Nuptial t  or  **  Cair  claith;  "  see 
Marriage^  $ubsequent. 

Pardon,  full,  not  qualified,  with  restitu* 
tion  secundum  quid,  under  Forfeiture  ; 
see  King. 

Parish  Clerk,  popular  election  to  that  spi- 
ritual or  clerical  office  before  the  Re- 
formation, 682,  n.  2. 

Parliament,  Scottish,  its  peculiar  composi- 
tion, forroinfi:  but  one  Chamber,  1U2, 
979,  980,  967-8,  n.  4,  9t>9,  &c.  Sum- 
mons  to,  979-80.  Effect  of  sittinir,  in 
case  of  honours,  104  et  seq.  Parlia- 
ment never  properly  discussed  question 
of  honours,  but  admitted  here,  cogniz- 
ance of  the  Session.  See  Chapters  I. 
and  //.,  also  Session,  and  under  Appeals. 

Parliament,  Roll  nf,  see  under  Union  Roll. 

Parricide,  or  Matricide,  by  Act  1594,  c. 
224,  not  assimilated  with  us  to  treason, 
223-3.  Case  of  Oliphant.  Relative 
English  law.  Whether  ^rime  can  affect 
honours,  ib.,  et  seq.  Crime  still  go- 
verned by  our  original  law ;  above  Act 
1594  contrasted  with  the  English  Sta- 
tute de  {ionist  741-2.  See  also  Afatri- 
eide. 

Patents  of  Peerages  given  by  James  I.  to 
spendthrift  favourites,  to  be  bartered  for 
their  support,  to  others,  870,  n.  I. 

Patents,  Scottish,  carelessness  and  remis- 
ness  in  iheir  registration,  255-6, — with 
the  Acts  of  Creation,  formerly  recorded 
in  the  Lyon's  Books,  629-30.     Mode 
of  construing  or  interpretating  them  by 
English  laviyers,    1034-5.      With  res- 
pect to  patents,  see  also  635,  Exhibit 
tifm.    Signatures,     Chancellor,    Blank, 
Carte  Blanche,  and  as  to  forms  In  pass- 
ing, 46  et  seq.     Instance  of  a  Scottish 
patent  recorded  in  the  Rolls  Chapel, 
London,  only,  251-2.     Patent,  date  of, 
that  of  the  previous  signature,   1057. 
Patents  on  warrants  partly  blank,  1056, 
€t  seq.    See  loo  Hume  of  Berwick  Barovy. 
Pattison,  George  11.,  Esq.  Advocate,  965. 
Peebles  Viscounty,  and  Barony  of  Living- 
stone of  Peebles,  demur  about  the  hitter, 
&c.   in   1697,  1057,   et  seq.     See  also 
William,  King,  his  letter  in  1697. 
Peerage  Writers,  Scottish,  their  perpotu^ 
and  glaring  errors  and  misrepresenta- 
tions, 38,  n.  3,  57-8,   182,   n.  527-8, 
notes,  532,  n.  1 ,  557,  n.  2, 760,  n.  3,  870, 
M.  2,  890,  n,  3,  948,  n.  1,  1006-7,  &c. 


kc.  yet  confidently  referred  to,  and  ad-^ 
duced,  not  only  by  some  solicitors  and 
inferior  practitioners,  but  even  by  Eng- 
lish lawyers,  890,  n.  3,  948,  n.  1,  and 
990,  &c. 

Peers,  British  House  of,  their  unsuccessful 
attempts  in  1761  to  have  a  correct  Roll 
of  the  Scottish  Peers,  643,  et  seq. 
See  Union  Roll.  Their  orders  in  1 76 1  -2, 
discharging  certain  persons  from  taking 
Scottish  titles,  646-7.  Principle  oo 
which  they  here  interposed,  with  re* 
marks,  648-9.  Have  innately  no  judi- 
cial power  in  dignities  by  the  English 
law,  or  enactments,  957-8.  Their 
salutary  rule  in  regard  to  signatures  of 
Scottish  grants  of  honours,  208,  1053-4. 

misconception  as  to  , their 

supposed  invariable  strictness  in  Scot- 
tish Peerage  claims ;  see  under  English 
Lawyers. 

Peers,  Sixteen^  disputed  case  at  Election 
of,  649,  n.  1.  See  also  Election  of 
Sixteen  Peers, 

Peers,  English  House  of,  their  remarkable 
order,  and  severe  notions  in  1640,  re- 
garding Scottish,  and  Irish  Peers,  and 
Baronets  of  Nova  Scotia,  1066. 

Pembroke,  Gilbert  Marshal,  Earl  of,  grant 
to  him  of  Feodvm  of  Haddington  in 
13th  century,  977,  n.  2. 

Pennicuik  v.  Grintoun,  &c.  case  of,  in 
J  752,  under  Consistorial  Law,  505. 

Pepys,  Sir  Lucas,  case  of,  with  respect  to 
the  courtesy,  927,  ».  1. 

Perth  titular  Dukedom,  when  created,  and 
its  effect  or  weight  abroad,  965,  n. :  see 
also  Melfort,  John,  titular  Duke  of. 

James,  titular  Duke  of,  case  of,  in 

1749,  under  Forfeiture,  746. 

Earldom  of,   and  Barony  of  Drum- 

mond,  Stc.  forfeited  at  present,  748,  n, 
2, 774-5,  n.  3.  Claim  to,  in  1792, 1796, 
819.     Present  claim  to,  920,  n.  5. 

Estate,  question  of  attainder  of,  in 

1750,  its  specialties,  and  different  from 
that  of  the  Duchy  of  Somerset,  in  1750, 
773  to  776. 

Philibeg,  that  worn  by  a  highland  chiefs 

in  1438,  266. 
Pitlard,  Francis,  Herald  to  the  French 

king,    obtains     a    pedigree,    or    birth 

briete  from  our  Supreme  Civil  Court,  5. 
Players,  Scottish,  in  1448,  267,  n. 
Polwurth  Baiony,   case  of,  in  1835,  177, 

673  to  678,  with  remarks,  as  contrasted 

v^iththe  Spynie  case,  (which  see,)  also 

688,  698,  706,  853-4,  et  seq. 
Popular  Election,  see  Parish  Clerk. 
Pohsession,  interim,   in  dignities,   allowed 

by  us,  30-2-3-4,  45,  &c. 
Precedence  of  our  Peers,  peculiarities  in 


1088 


INDEX. 


their  rankiog,  &c.  1 55—1 7 1 .  Claim  of 
Earlff  of  Anjji:us  to  precedence  before  a 
Duke  or  Marquis,  159,  and  n.  2.  As  to 
legal  interest  iu  regard  to  precedence, 
see  607. 

Precedence  of  Scottish  nobility,  &c.  in 
England^  aflter  the  union  of  the  crowns, 
and  before  that  of  the  kingdoms,  1066. 

■        of  EngiishfiheD,  in  Scotland,  ib. 

See  also  Peers,  English  House  nf. 

Precedency,  clauses  of,  their  effect  in  re- 
grants,  1028,  n.  I  ;  see  also  under  /^o- 
thian  Earldom,  and  Sinclair  Barony. 

Precontract,  see  Marriage. 

Prelates,  Scottish,  sat  in  Parliament  in 
right  of  their  Baronies,  980. 

Prescription,  chiefly  in  respect  to  a  sub- 
stantive  right  of  Peerage,  including  the 
effect  of  Act  1617,  c.  12,  130  to  140. 
Vicennial  Act  of  Prescription,  in  1617, 
ib.  et  seq.     See  also  on  this  head,  after 

the  Union,   369,  779,    829,  830 In 

respect  to  an  abstract  Peerage  preced- 
ency, where  with  us,  as  in  England,  a 
distinction  has  been  drawn,  152  to  155, 
et  seq.  Vicennial  Act  of  Prescription, 
16I7,c.l3,now,  and  formerly,  as  bearing 
upon  ServicesAud  Retours,  and  argument 
in  the  matter,  in  the  case  of  precedency 
between  the  Earls  of  Sutherland  and  £r- 
rol,  in  1671,  &c.  140  to  152;  see  also 
916-17.  Baronetcies  of  Nova  Scotia, 
right  to,  may  be  thereby  affected,  143. 

Primrose  Viscounty,  limitation  of,  in  1 703, 
898,  n.  2. 

Privy  Council  had  no  cognizance  in  hon- 
ours, but  fully  admitted  that  of  the  Ses- 
sion, 14,  15,30,  937  to  940,  n.  2.  Their 
jurtsiliction  defined,  in  answer  to  a  pre- 
tence to  the  contrary,  939,  n, ;  see  also 
Session. 

"Procreandis,'*  and  **procreatis,"  their  im- 
port in  a  Scottish  patent,  425. 

Procurator  Fiscal,  nature  of  the  OflSce,  in 
the  Consistorial  and  Commissary  Courts, 
before,  and  after  the  Reformation,  and 
strange  proceedings  affecting  that  oflScer 
in  1813,  1002  to  1005. 

'^Provent,"  Papal,  or  **  Herezeld ;'*  see 
•  *  Corps  present. 

Pulteney,  Sir  WUliam,  Advocate,  his  inti- 
•nation  as  to  the  Stair  casein  1748, 
282. 

Purbeck,  English  Viscounty,  case  of,  732, 
n.  4. 

Purves  r,  Chesholme,  international  case  of, 
in  1611,416. 

Pyet,  (or  Magpie,)  "nickname"  or  sur- 
name of,  discharged  by  an  Act  of  Par- 
liament, in  1707,  adverse  to  voluntary 
change  of  surnames,  by  some  now,  293- 
4,  n. 


Queensberry  Dukedom,  limitation  in  ra* 
grant  of,  in  1706,  199,  200. 

Queensberry,  William,  Duke,  case  of,  io 
1793,  as  a  British  Peer,  819. 

Queensberry  Marquisate,  case  of,  in  I8IS9 
668-9,  847,  contrasted  with  that  of  Mar- 
quisate of  Huntly,  875,  n.  4,  946,  n.  3. 

Queensberry,  Marquis  of,  his  supposed 
claim  to  the  Earldom  of  March,  con- 
sidered, 1060;  see  also  Mcurch  later  Earl^ 
dom  of,  (in  1697.) 

**  Quiescent  "  tiUe  or  dignity,  1061-2. 

Qnhintyne,  case  of,  in  1578,  (in  Consisto- 
rial Law,)  603. 

Quhite  and  Ewinston,  Consistorial  case  ia 
1541,  shewing  the  legitimating  effect  of 
ignorantia  and  6011a  fides,  452-3. 

Quoi/kiam  attachiamenta,  singular  coinci* 
dence  between,  and  the  English  statato 
de  donis,  upon  a  point,  842. 


Eagman  Rolls,  in  1291-6,  recent  meagre 
and  inadequate  publication  of,  1051. 

Ranking  of  our  Peers,  peculiarities,  &c.  so 
far,  with  us,  155  to  171^ 

Recompensation,  law  of,  in  matters  of 
adultery,  before,  and  after  the  Reforma* 
tion,  444.5. 

Records,  older  Scottish,  lamentable  and 
defectire  state  of;  see  Reformation. 

as  to  those  in  the  17  th  century  ; 

see  Registers. 

Redesdale,  Lord,  Mr  Adam's  just  encomium 
on,  707,  n. — contrasted  with  Lords 
Mansfield  and  Rosslyn,  ib.  ;  his  doctrine 
in  forfeiture,  710-11,  722,  724,  732. 

Refer,  for  meaning  of  term,  see  Remit. 

Reformation,  the  main  cause  of  the  lamen- 
table destruction  of  our  Records,  Pre- 
face ti.,  and  240,  242,  &c. 

Registers,  Scottish,  careless,  and  defectiTe 
manner  in  which  they  were  kept,  and 
adjusted,  in  the  17ih  century,  especially 
as  legards  patents,  255-6. 

Regrants  of  Dignities,  upon  a  resignation, 
43,  51,  et  seq.  with  power  of  nomina- 
tion ;  and  effect  of  a  royal  carte  blanche, 
84-5,  260-1,  768,  n.  5,  893,  \056,et  seq. 
After  Royal  confirmation  not  incumbent, 
ib. ;  see  Resignations, 

Reid,  case  of,  in  1 567,  proving  the  dis- 
tinction between  heritage  and  conquest 

•  in  succession,  839,  n. 

RsMAaxs  AND  Inductions  closivg,  in 
this  work,  928  to  966. 

**  Remit  "and  **  /2e/er,"  judicial  import  of, 
with  us,  37,  39,  1003,  fi.  1. 

Reputation,  evidenee  qfs  see  Evidence, 


INDEX. 


1089 


Ret  ncviter  vtuieiu  ad  nUitiam,  plea  of, 
with  us,  687. 

R^ttgnationa  of  Di^itiet,  often  with  us, 
into  the  hands  merely,  of  the  Barons  of 
Exchequer,  or  Privy  Council,  in  refu- 
tation of  a  modem  heresy,  5 1  -2.  When 
a  dignity  ''pendulous,"  34.  Curious 
intriguing  in  the  matter  of  resignations 
and  regrants,  with  relative  remarks,  83- 
4,  et  Mtq,  RegranC  without  any  resig- 
nation, legal  effect  of,  659,  667-8, 
Resignation  most  duly  obtain,  to  annul 
the  right  of  the  original,  heirs,  669. 
^fi  HegrantM.  Resignations  of  honours 
a^er  the  death  of  the  resigners,  could 
they  then  be  accepted  and  implemented, 
according  to  approved  form  ?  62 — 66. 

i2e<oiir«,and  «erotce«, (which  last  see,)  con- 
trary to  Lord  Gifford,  and  some  English 
lawyers,  were  repeatedly  and  fully  receiv- 
ed in  proof  of  pedigree,  and  extinctions, 
from  1723,  (see  cases  of  Somerville, 
ColvUl,  &c.  &c.)  and  downwards,  inde- 
pendent of  previous  corroboratory  prac* 
tice,  639-40,  n.  See  also  644-6,  n,  2, 
&c.  In  Rutherford  claim  in  1839,  two  ser- 
vices in  1737,  with  the  above  view,  were 
rejected,  though  such  evidence  was  ad- 
mitted in  the  modem  Kellie  and  March - 
mont  claims,  as  well  as  before,  902-3*4-6, 
907-8,  942, 11.4.  Matter  here  rather  un- 
settled. Untowardness  too,  of  vicennial 
Act  of  Prescription,  in  respect  to  hon- 
ours, 916-17.  Further  on  this  nice 
point,  941-2-3, 

RiddeU  v.  Brymer,  remarkable  case  of,  in 
Consistorial  law,  in  1811,  447,  et  Mtq. 

Riding  to  Parliament,  privilege  according- 
ly carried  by  our  patents,  60-1. 

Robertson  v.  Abemethy,  important  Consis- 
torial case  of,  in  1664,  441, 

-^—  Mr  David,  bis  account  of  Scot- 
tish Appeals,  and  early  history  of  per- 
sonal succession,  &c.  13,  n.l,  417,  n.  1. 
Robert,  Esq.  Advocate,  524. 


**Rodis'Hede,  honse  o/,"  (see  Torphichen) 
the  same  likewise  in  high  repute  in 
Scotland,  and  remunerated  by  the  so- 
vereign, 261. 

Rohan,  curious  French  case  of,  under  sup- 
posititious offspring,  666. 

Roll  i  see  Union  Roll, 

of  Parliament  in  1694,  171. 

RoUo  Barony,  patent  of,  in  1661,  act  and 
warrant  for  its  registration  by  the  Ses- 
sion in  1764,  292.  Orthography  of 
"  RoUo  "  (instead  of  •*  Rollock,"}  en- 
forced in  the  patent,  t6.  n.  4. 

Roils  Chapel,  London,  instance  of  a  Scot- 
tish patent  in  1604,  recorded  there  only, 
261-2. 

Roman  Law  ;  see  under  Lav. 


Rome;  see  Appeals  to  Rome. 

RomiUy,  Sir  Samuel,  420.  Reply  to,  by 
John  Clerk,  Advocate,  620,  n. 

Roscommon  Peerage  claim  in  1828,  880-1, 
884,  888-9.  Important  as  enhancing 
materially,  tacitumity  in  extinctions,914. 

Raseberry^EarU  his  resolution  in  1822,  re- 
garding the  Scottish  Peerage,  646-6, 
860*1.     See  also  Election, 

Rosehavgh  estate,  succession  to,  curious 
case  of,  in  1708,  and  thereafter,  117. 
At  variance  with  that  of  Leven,  see  115- 
16 English  case  of  Burdet,  1 18. 

Rosst  Dukedom  of,  granted  in  1603,  for 
iife,  108, 

.-  original  Earldom  of,  claim  to,   in 

1777,  660,  663-4. 

.  Earldom,  jfc.  in  1666,  its  constitu- 
tion, and  act  of  creation,  in  favour  of 
Henry  Stewart  Lord  Daraley,  687-8-9. 

old  Barony  of,  descendible,  accord- 
ing to  President  Craigie,  to  heirs- 
female,  192-3.     See  abo  960,  n.  2. 

and  Melvill,  Baronial  fief,  charter 

of,  in  1686,  with  incidental  mention  of 
honours,  according  to  occasional  inept 
custom,  897,  n.  1. 

Alexander,  solicitor,  bis  intimation 

as  to  Stair  case  in  1748,  284. 

Ross  of  Balgowan,  his  settlement  at,  and 
after  the  Union,  as  illustrating  its  con- 
ceived effect  upon  our  honours,  272-3. 

Rosslyn,  or  Loughborough,  Lord,  including 
his  various  defects,  crudities,  devices, 
misconceptions,  contradictions,  &o.  &c. 
9,  n,  2,  60,  174,  184,  et  seq„  268-9, 
363-4,  374,  384,  n.  3,  673,  678,  602, 
623,  626-7,  630-1,  668,  680  on  to 
696,  700, 702,  706—708,  n.  781-2,  784, 
n.  2,  786  to  801,  603,  806-7-8,  822 
—826,  827,  II.  3,  829—833,  836,  846, 
929,  n.  931-2,  ».  944,  964-6,  968,  n, 
962-3,^  &c.  &c. 

Rothes  Earldom,  case  of,  in  1469,  shew- 
ing the  efficacy  of  the  plea  of  ignoran- 
tia,  &o.  in  legitimacy,  463-6. 

.._ case  of,  under  the  regu- 
lating regrant  in  1663,  206,  212-13. 
Competition  for  the  honours,  in  1682, 
between  the  heir-male  and  heir-female, 
before  the  Privy  Council,  with  argu- 
ment, and  reference  of  parties  to  the  Ses- 
sion, the  competent  tribunal,  937,  k.  2, 
et  seq.     See  also  Haddington  Earldom, 

Rothesay  Dukedom,fiOMi\i}X\xou  of,  in  1398, 
descendible  to  eldest  sons  of  the  Kings 
of  Scotland,  and  may  be  in  abbeyance 
in  one  sense,  262—264,  380,  n.  3.  In- 
vesture  of  Henry  infant  Duke  of  Rothe- 
sayt  in  the  dignity,  in  1694,  being  then 
also  knighted,  &c.  692,  n.  See  also 
Scotland,  Prince  of. 

4  A 


1090 


INDEX. 


Raxfmrffhe  Dukedom,  and  Earldom,  ffe. 
case  of,  in  1812,  847  ;  tee  aUo  for  re- 
lative merits,  and  particulars,  46,  51  •2, 
77,  96,199, 201, 218,  668,  n.  1, 729-30, 
814-15,  1031.  See  also  Wkytlaw  v. 
Ker,  1053,  n.  3.  1060,  and  1063-4. 

Roxburgh  Earldom,  act  of  creation  of, 
in  1616,630,  n.  4. 

Earl  of;  Cor  question  between 

him  and  Earl  of  Lothian,  touching  their 
precedence,  &c.  see  Lothian  and  Rox- 
burgh, Earh  of» 

>  honourt,  4*c.  inept  conveyance 
of,  in  1687,  1063.  See  also  Drum-^ 
mond.  Sir  William,  of  Logtealmond. 

Barony,  case  of,  in  1812,  847-8. 


Rudd,  Erich,  the  Reverend,  hts  petition 
to  the  Lords  in  1832,  as  heir-female, 
against  the  assumption  of  the  Duffiis 
honours  by  Sir  Benjamin  Dunbar,  Bart, 
the  heir-male,  &c.  919. 

Rutherford  Barony,  claims  to,  in  1833-5, 
1837-9,  involving  an  extinction,  and  evi- 
dence of  Relours,  where  a  new  rule,  was 
laid  down,  693  to  917.  As  to  power 
of  nominating  to  honours  in  Rutherford 
patent  in  1661,  and  its  execution,  see 
Errol,  Earldom  of,  and  (in  reference 
to  France)  under  Vignerot,  Mary  de, 
frc. 

-^—  V.  Stewart  of  Tracquair,  case 
of,  in  1556,  in  reference  to  plea  of 
bona  fides  et  ignorantia,  455*6. 

co-heireee,  severe  penalty  in  con- 


sequence  of  her  fornication   when  in 
ward,  about  1502,  130-1. 
Ruthven,  case  of,  in  1612,  exemplifying 
-aeverity  of  our  treason  law,  760. 


S 


Stevitiam  ob,  **  divorces,"  or  mere  eepara- 
Hone,  before,  and  after  the  Reformation, 
437-8. 

Saint  Andrew*,  erection  of  Archbishopric, 
and  Priory  of,  into  temporal  Lordships, 
with  dignity,  in  1593,  and  1611,  244. 
See  under  i4rcA5i«Aop«. 

Saint  Germain  dee  Prez  Abbey,  Douglas- 
es buried  in  their  Chapel  there,  158. 

*•  Saint  John,  Lord  of,'*  or  "  Prior,** 
««  Matter,"  "Preceptor,"  &c.  before  the 
Reformation,  sat  both  among  the  higher 
Barons,  and  Abbots,  and  Priors,  figures 
as  premier  Baron  in  1489,  88.  See 
also  Torphichen,  and  Rodie  Hede,  house 
of,  A  Knight  Hospitaller  of  Saint  John 
of  Jerusalem,  brought  heart  of  James 
I.  to  Scotland,  in  1443,  261. 

Salton  Barony  in  1670,  141.  Its  striking 
original  and  later  state,  186—189, 
849,  n.  946-7.    Original  notices  of  the  ( 


family  in  1664,  and  thereafter,  947, 
fi.     See  also  962,  and  Forbea,  Arthur, 

Sardinia  Royal  House,  heirs  of  line  of« 
through  that  of  Modena,  take  in  terms 
of  the  limitation  of  the  Dukedom  of  Al- 
bany to  Henry  Lord  Damley  in  1565» 
176-7,  n.  5.     See  also  689-90. 

Scotland,  Crown  of  its  descent,  and  as  re« 
gulated  in  1292,  necessarily  an  impor- 
tant rule  also  in  the  relevant  descent  of 
Scottish  dignities,  1 73. 

succession  to,  after  middle 

of  16th  century,  197,  it.  854,  et  §eq. 
See  also  Succession,  and  under  Lennox, 
or  Damley,  collateral  Ducal  branch. 

hereditary  office  of  bear* 


ing,  at  Parliaments,  does  it  extend  to 
coronations  ?  See  claims  to  this  right 
and  privilege,  by  the  Duke  of  Hamilton, 
and  late  Lord  Douglas,  in  1822-3,  with 
reference,  as  formerly,  to  the  Session 
by  the  Privy  Council,  849-50.  Se« 
also  Heritable  Offices, 

Prince  of,  his  styles  in   1600, 


and  1603,  264 ;  had  the  title  of  Danphin 
also,  after  the  union  of  the  crowns,  t&. 

Scottish  Law, — repeated  opinions,  even  of 
English  lawyers,  from  Union  down- 
wards, that  the  Scottish  law  and  practice 
must  rule  in  Scottish  Peerage  claimi, 
929-30. 

see  under  Zmw, 

Peers,  upon  the  whole,  lukewarm 


in  matters  of  Peerage  after  the  Union, 
303-4.  Their  precedence  in  England 
after  union  of  the  crowns,  and  before 
that  of  the  kingdoms.  See  Preeedemct 
of  our  Peers,  et  seq. 

Peerage    Writers;    see   Peerage 


Writers,  ScoUish, 

Seafield  Earldom,  limitation  in  patent  of, 
in  1701,  205,  n. 

Viscounty,  limitation  of,  in  1698, 

forms  the  best  and  most  unexception- 
able instance  of  a  limitation  of  hononn, 
by  reference  to  another  deed,  1062-3. 

Search  and  Capture,  competent  with  us,  in 
1550,  of  ships,  though  belonging  to 
foreign  friendly  powers,  having  goods 
of  enemies  on  board,  414,  n,  2, 

Seduction,  damages  for,  by  our  law, 
before  the  Reformation,  and  case  of 
Lammie  of  Dunkennie  in  1543,  446. 

Selkirk,  Earl  of,  question  of  precedence 
between  him  and  Earl  of  Tweedale  in 
1689,  30. 

Earldom,  case  of,  in  1688,212-13. 


Limitation  of,  in  1646,  624. 
Sempil  Barony,  case  of,  in  1685»  62-3. 
Preamble  of  patent  in  1685,  in  favour 
of  female  representation  in  dignitiee, 
190.     Remarks  on  descent  of,  978-9. 


INDEX. 


1091 


JftcobUo  Lord  Sempill  after  the  Union, 
ib. 

SempiU,  Lord,  qoettion  as  to  his  prece- 
dency with  Lord  Mordington  in  1 66 1 , 1 4. 

_.  Robert,  Matter  of,  his  case,  (after 
the  middle  of  16th  century,)  indading 
the  ideal  Jean  Hamilton,  under  Consis- 
torial  law,  singularly  misrepresented  by 
Craig,  484,  n.  2. 

*'  Senye,  the,"  great  ecclesiastical  jurisdic- 
tion of,  before  the  Reformation,  240*1. 

Septimam  manvm,  trial  or  probatio  per, 
in  ifflpotency,  and  when  competent;  see 
Impotency. 

Service,  or  Retour,  on  the  occasion  of,  any 
one  formerly,  could  oppose  by  qualify- 
ing an  interest,  without,  as  now,  a  com- 
peting brief,  37  and  n. ;  see  also  under 
Retoure  and  Extinctiont. 

Seuion,  Court  of,  or  Supreme  Civil  Tri' 
bunal,  their  unbounded  cognisance  in 
eivilibue,  including  honours,  and  even 
aliunde,  in  dubio — ttiam  in  rebue  deride, 
wften  there  happened  to  be  no  legal  re- 
dress, or  existing  privative  judicatory, 
d  to  39,  427 — 429.  See  also  Admiral- 
ty Court,  AppeaU,  Parliament,  Privy 
'  Coundl,  Lord  Lyon,  jfe.  Even  in 
tpiritualihut,  during  Papal  times,  to  ea- 

\  tricate  their  own  jurisdiction,  427-8.  n. 
The  Session  in  1 5 1 5  fix  coronet  of  Dulie 
of  Albany,  with  his  heraldic  attributes, 
and  in  1510  gave  a  birth-brieve  to  a 
French  herald,  4-5.  Only  authority 
to  whom  the  Court  of  Session  thought 
themselves  any  way  liable  before  the 
Reformation,  was  the  Pope,  36,  a.  1. 
They  had,  ex  neeeseitate,  immediate 
cognixance  in  consistorial  matters  upon 
the  Reformation,  427.  Seeeion,  sorry 
state  of,  in  their  circumstances,  &c. 
about  the  middle  of  16th  century,  739, 
n.  1.     See  also  Stuart,  Dr,  Gilbert, 

Lorde  of,  in  Scotland,  peculiar 

custom  of  general  assumption  by  them 
of  the  style  of  Lords,  with  an  amusing 
remark  in  consequence,  by  an  English 
writer,  253,  n.  1. 

Shipe,  Fordgn :  see  Search  and  Capture, 
Signature  of  a  grant  of  honours  alone, 
though  under  the  sign  manual,  insuffici- 
ent, when  uneatended  under  the  Great 
Seal,  and  incompleted,  65 — 68,  631, 
632. 

date    of,    in   the    case  of   a 

patent,  its  date  also  when  extended,  un- 
der the  Great  Seal,  1057,  1062,  1063; 
when  partly  blank  in  the  limitation, 
effect  of,  1052-5,  also  1056-7,  et  eeq. 

Signatures,  no  record  of,  in  Scotland,  but 
only  latterly,  in  England,  1054-5,  et 
teq.     See  also  Annandale  Marqtdiate, 


limitation  of ;  Oxenfordt  ViMcoumty  of; 
March  later  Earldom;  Peers,  Britiih 
House  of;  Chancellor,  Lord,  ^e, 

Signifer,  see  Heralds — of  our  Nobility, 

Sinclair,  Alexander,  Esq.  remarks,  &o. 
on  a  late  pamphlet  by  him,  1006,  et 
seq, 

Sinclair  Barony  in  1677,  case  of,  in  re- 
ference to  the  precedency,  somewhat 
peculiar,  54-5,  78;  with  that  of  the 
Earidom  of  Lothian  in  1678,  appears 
unfavourable  in  this  respect,  when  con- 
trasted with  the  case  of  Findlater  in 
1641,  and  thereafter,  78 — 83 ;  but  may 
be  supported,  in  part,  by  the  grant  of 
the  Earldom  of  Argyle  in  1663-79-80» 
and  some  authorities. 

under  patent  1677,  ques- 
tion of  its  due  ranking,  if  precedency  of 
the  original  Lords  Sinclair  be  thereby 
carried,  609,  n. 

case  of,  in  1723,  and  1782, 


under  Law  of  Forfeiture,  712-13. 

James,  the  true  heir-male  of  the 


Earls  of  Caithness,  and  unjustly  exclud- 
ed from  their  honours  by  the  undue 
precipitancy  of  Lord  Mansfield — singa** 
lar  fate  of,  61 1  to  618 ;  also  that  of  the, 
in  fact,  intrusife  John  ^ar/ of  Caithness, 
(in  consequence),  ib.  and  619. 

Sir  James,  of  May,  claim  by,  to 


Earldom  of  Caithness  in  1790-3, 620-1. 

Sittings  in  Scotti»h  Parliament,  as  a  noble- 
man, what  effect  had  they  ?  1 03-4,  et  seq. 
Distinction  here  between  the  practice  of 
England  and  Scotland,  ibid,  931-2 ; 
see  also  Erskine,  Chancellor, 

Skattis,  a  Shetland  tax  ;  see  fFrak. 

Skene,  Sir  John,  Clerk-Register  to  James 
VI.,  his  opinion  as  to  precedence  of 
the  Douglases,  Earls  of  Angus,  over 
the  rest  of  the  nobility,  1 59,  n.  2. 

Smyth  and  Napier,  case  of,  in  1 542,  under 
Consistorial  law,  shewing  the  legitimat- 
ing effect  of  ignorantia,  453. 

Solidtors,  see  under  Peerage  Writers, 
Scottish, 

Somerset  Dukedom,  curious  case  of,  in 
1750,  under  forfeiture,  with  notices  as 
to  Protector  Somerset,  &c.  715,  et  seq, 

Somerville  v.  Abernethy,  action  by,  in 
1547,  for  celebration  of  marriage  upon 
affidatio,  (among  innumerable  such,  be- 
fore, and  after  Reformation),  499,  500. 

Somerville  Barony,  case  of,  in  1721,  289. 

Somerville  Barony,  claim  to,  in  1 723,  part- 
ly refuting  Lord  IMansfield,  348  to  354. 
The  honour  ancient,  and  ranked  too  low 
in  the  Union  Roll ;  possibly  the  next  in 
antiquity  after  Gordon  Barony,  among 
our  oldest  of  the  kind;  earliest  in- 
stance perhaps,  of  a  Scottish  armorial 


1093 


INDEX. 


bearing  in  case  of  the  SomertiUet.  Cu- 
rious and  Jocular  tenure  by  tbem,  of  the 
Barony  of  Carnwath,  349-60,  n. 

Spontliapura,  or de pteaenti,  and  defuturCt 
with,  and  without  eoptila^  including  the 
striking  forms  and  solemnities  on  such 
occasions,  491,  n.  3,  492-3-4,  &c. 
471,  n.  2,  479,  n.  1,  482,  n.  2.  Case 
of  Wardlaw  in  1546,  if  q9otMa/tade/»re- 
«eii/t  even,  could  legally  warrant  neces- 
sary celebration  of  marriage  ?  505*  n. 
1,  In  that  of  Wauchope  v.  Dundass, 
in  1 574,  the  question  mooted,  what  was 
the  effect,  in  the  same  view,  of  first 
copmlat  then  promise,  but  not  again  with 
copula  f  ib. 

Spynie  Barony^  claim  to,  in  1784-5,  in- 
cluding glaring  misconceptions,  contra- 
dictions, and  misrepresentations  of 
Lords  Mansfield  and  Rosslyn,  654  to 
707,  also  contrasted  with  the  anomal- 
ous Colril  case,  701,  et  »eq.  925-6. 

Stair  Earldom,  under  the  regulating  grant 
in  1707,  213-14.  Case  of,  in  1748, 
bearing  upon  state  of  honours  after  the 
Union,  280  to  284,  366*7-8.  Henry 
late  Earl  of  Stair — marriage  case  be- 
tween, and  Miss  Joanna  Gordon,  388, 
and  in  the  sequel,  601-5,  &c. 

Stair  Earldom^  claim  to,  under  Lords' 
(order  in  1822)  in  1841,  917-18. 

5/atr,  Lord  (President)  supports  female 
descent  in  dignities,  1 75.  His  opinion 
after  1689,  as  to  appeals  from  the  Ses- 
sion to  Parliament,  31,  36. 

Statute  de  donit,  13  Edw.  I.  c.  1.  under 
Forfeiture,  722*3,  732.  Statute  Henry 
VIIL  c.  13.  ib,  727,  731,  et  »eq. 
&c.  as  to  statute  de  doni$;  see  also 
Parricide, 

Stevenson  and  PoUok,  Consistorial  case  of, 
in  1565,  392. 

Stewarts,  Legitimacy  of,  question  so  much 
mooted,  &c.  136-7,  511-16—518,  452, 
463-4,  474,  519-20,  Pref.  xvi.  ;  see 
also  Legitimacy,  and  under  Strathem. 

Stewarts,  male  representation  of,  question 
about,  810,  n. 

Stewarts  of  Castelmilk,  their  futile  claim 
here,  and  unascertained  origin,  ib, 
811. 

Stewarts  ofjedworth,  or  the  noble  Family 
of  Galloway  ;  that  also  of,  810. 

Stewart,  Annabella,  Princess,  daughter  of 
James  L,  her  fate;  see  Huntly,  George 
Earl  of 

— — ^  Arabella,  Lady,  cousin  of  James 
VI.,  her  case  in  England,  in  reference 
to  the  English  royal  succession,  turning 
upon  international  law,  423-4. 

Stewart,  ddme  Elizabeth,  afterwards  Coun- 
tens  sfArran  in  1566, 10, ».  1 ,  her  action 


of  impotcncy  in  1580-1,  agaioat  Robert 
Earl  of  March,  her  first  husband,  53 1 « 
ei  9eq, — equally  abandoned  with  Janes 
Earl  of  Arran,  her  neat  husband ;  subse- 
quent downfal,  and  degradation  of  their 
descendants,  632,  640,  n.  1,  81 1,  w.  5 ; 
see  also  Arran,  James  Stewart,  Earl  of. 
For  James  Stewart,  Lord  Ocbiltrie,  their 
son,  another  unprincipled  adT«ntarer, 
see  10,  n.  1,  609-11. 

dame  Janet  Commteu  of  Suikcrhmd, 


&c.  (of  the  iame  family  with  the  above 
dame  Elisabeth,)  her  profligacy,  and 
several  marriages,  &c.  532,  n.  1. 

James,  natural  son  of  Jamea  I., 


hitherto  unknown,  262,  «. 

Sir  James,   as  to   appeals  aAer 


1689,  from  Session  to  Parliament,  31 — 
36. 

of  Garlies,    or    noble  fasmUy  of 


Galloway  ;  see  ut  sup, 

Stewart,  John,  case  of,  under  forfeiture,  in 
1621,  761. 

^— . —  Margaret,  case  of,  ib.  in  1622, 
754. 

Stewart  of  Tracquair  family,  questions  af- 
fecting their  legitimacy,  from  1502, 
downwards  especially,  as  set  forth  in  a 
curious  Consistorial  process  in  1556, 
130 — 133 ;  see  also  501 . 

Stirling,  Earldom  of,  claim  to,  in  1761,  by 
William  Alexander,  the  American  Gen- 
eral, with  relative  notices,  646*7  •  n.  3. 

StirlUtg  Peerage  case^  or  action  for  prov- 
ing the  tenour  of  an  asserted  Sovoda- 
mus,  upon  a  resignation,  of  the  Stirling 
honours  in  1639,  before  the  Session  in 
1833,  with  remarks,  292-3;  see  also 
Downshire,  Marchioness  of,  and  further, 
in  reference  to  the  Stirling  honours,  &c 
Humphrys  or  Alexander,  &c  including 
his  trial  for  Forgery,  before  the  Justiciary 
Court  in  1839,  &c.  &c 

Stirling  of  Keir,  family  of,  867*8,  a. 
412,  n. 

Slormont,  Zror</,  case  of,  in  House  of  Peers, 
in  reference  to  succession  to  a  dignity, 
&c.  645,  n. 

Stourton  Barony,  an  entailed  honour,  case 
of,  under  Forfeiture,  in  1557,  736. 

Stowell,  Lord,  388,  misconception  of;  see 
Cathcart,  David,  Esq,  502.  Partly  mis- 
led on  the  subject  of  Scottish  marriages, 
505. 

Strange  English  Barony,  case  of,  936. 

distinction  in  regard  to  the  Barony 

of  Strange,  in  1 736,  between  the  colla- 
teral matter  of  precedency,  and  main  or 
substantive  right  to  a  dignity,  may  be 
maintained  also  with  us,  152. 

Strathallan  Viscounty t  case  of,  1787-90, 
under  forfeiture,  742  to  757,  763-4. 


IN0EX. 


1093 


Straikimt  origiual  Emrldom  of^  new  par- 
Ucolari  coDeeraing,  as  well  as  those  of 
Orkney  and  Caithness,  further  evincing 
the  female  descent  aiid  representation 
in  our  Peerages,  &c.  561  •2,  tt  *eq. 

Strathem,  Earldom  oft  (granted  to  Walter 
Stewart,  Earl  of  Athole,)  in  1427,  for 
life,  108. 

SiratkerH  E&Hdom  (in  the  Stewarts  and 
Grahams,)  before  1427  and  in  1631,  &e. 
as  bearing  upon  prescription,  135,  136. 
Question  of  descent  of  latter  from  the 
Stewarts,  contrasted  with  that  of  the 
direct  royal  line,  136-7.  See  also  Stew- 
art*, Legitimacy  of,  and  566,  51 6,  et  *eq. 

iUrathem  or  MetUeith  representation  of 
the  Stewarts,  see  vt  »up.  and  AUardice 
Barclay t  Robert,  Esq.  &c. 

Stratkem  Earldom,  case  of,  before  the 
Session  in  1633,  16,  17. 

Strathmore  Earldom,  recent  case  of,  in 
1821,  418,  848.  Earldom  by  our  old 
treason  law  might  have  been  forfeited 
in  1715,  758,  n.  See  also  Bowes 
BritUh  Barony,  csise  of. 

Stuart,  Andrew,  his  impression  of  Lord 
Mansfield,  707»  ».  See  also  under 
Butler, 

Dr.  Gilbert,  his  virulent  and  un- 

founded  charge  of  usurpation  of  cog- 
nisance by  the  Session,  9,  n.  2. 

Style,  extreme  accuracy  in  that  of  no- 
blemen by  the  English  law,  at  variance 
with  the  loose,  and  exceptionable  reso- 
lution and  judgment  in  1723,  in  case  of 
Colvill,  or  Culross,  367-8,  n.  2. 

of  heirs  to  dignities  early  in  the  I6tb 

century,  before  infeoflTment,  further  re- 
futing Lord  Mansfield's  unterritorial 
absurdity,  598-9 ;   see  also  692-3-4. 

maiden   and  simple,  of  Countesses, 

Peeresses  in  their  own  right,  and  wives 
of  noblemen,  in  the  16th  century,  and 
before,  refuting  Lord  Rosslyn  in  Moray 
case,  788,  et  seq.  1038,  n. 

Sueceseion,  preference  in,  by  our  origi- 
nal law,  of  the  heir  of  the  last  in  pos- 
session,— though  not  of  the  first,  or 
original  taker,  854  to  859,  et  seq.  See 
also  Scotland  Crown,  descent  of,  in  16th 
century.  Holds  in  case  of  feudumfor- 
nintum,  &c.  854_863. 

■  —  opening  to  a  Scottish  Peerage, 

old  method  of  establishing  right  under, 
640- 1 ,  644-5.  See  also  under  Diynity, 
Claim  to  a  Peerage,  King,  Retour,  ^e. 
case  of  Lord  Stormount  in  the  House 
of  Commons  in  1840,645,  n.  and  Rose- 
bery,  Lord^  ^c. 

collateral,    see    Lord     Hard 


^u€Mt,   Heritage,  Legitimaey,   Limita- 
tions, JBetrs-mah,  Dignity,  ffc. 

Summons  to  Scottish  and  English  Parlia- 
ments diiTerent  in  effect,  101-2, 979,980. 

Supposititious  Births  ;  see  Kinnaird  and 
Rohan  cases. 

Surttame,  undue  modem  assumptions  of, 
and  forms  originally  authorizing  such 
under  a  better  system,  293-4,  n. 

Sutherland,  Earl  of,  his  question  of  pre- 
cedence with  the  Earl  of  Krrol  before 
the  Session  in  1661  and  1671,  20.  Also 
with  the  same,  and  other  Earls  before 
the  Session  in  1693,  1704-6,  and  1746, 
31-2, 153-4,  190-1-2,  292.  Argument 
as  to  import  of  the  Act  of  the  Vicennial 
Prescription  in  1617,  in  previous  case  of 
Earls  of  Sutherland  and  Errol  in  1671, 
143,  etseq. 

Earldom,  though  dating  from 

sometime  between  1222  and  1245,  not 
nearly  so  old  as  Earldom  of  Marr,  (which 
see,)  the  latter  being  the  premier  by 
constitution,  and  the  former  the  second; 
while  both  the  existing  Earls  are  the 
heirs  of  line  of  the  original  holders, 
167^170.  Further,  as  to  Earldoms  of 
Marr  and  Sutherland,  see  precedency  of 
our  Earls,  1 55-7,  et  seq. 

claims  to,  in  1767 


wicke.^-Female,  see  passim,  and  fur- 
ther generally,  on  this  head,  under  Con- 


— 1771,  by  the  heir-female.  Sir  Robert 
Gordon,  and  George  Sutherland  of 
Forse,  594  to  608.  In  Sutherland 
case,  remoter  heir  allowed  to  be  beard 
for  her  interest,  even  Earls  of  Craw- 
ford, and  Errol  there,  for  their  mere  right 
of  precedency,  607-8;  see  also  830-1. 
Sutherland  cast,  or  Information,  by  Lord 
Hailes,  its  universally  admitted  merits, 
with  strange,  ignorant  depreciation  of 
it  by  Lord  Camden,  191. 


TadtfOTtity,  evidence  of;  see  Evidence, 
Extinctions,  Retours,  and  Roscommon 
Peerage  claim. 

Talbot,  Chancellor,  his  notions  in  Oxen- 
ford  case,  in  1 734-5,  including  collate- 
ral succession,  369,  382 ;  laid  stress  up- 
on a  non-claim,  though  in  itself  insig- 
nificant, and  comparatively  but  of  short 
duration,  t&.  304,  369,  381-2. 

Tarras,  Earldom  of,  granted  for  life  in 
1660,  to  husband  of  Countess  of  Buc- 
cleugh  in  her  own  right,  1 10-1 1.  Sub- 
sequent peculiarities  in  the  title,  111, 
n. 

Tartan  or  *•  Tiretaine,'*  266. 

Tenures  ;  see  Jocular  Tenures. 

Territorial  principle,  later  traces  of,  quite 
in  refutation  of  Lord  Mansfield;  see 


^,a? 


1094 


INDEX. 


under  Infeafmtmi  of  H<momra,  Comtla- 
iu9f  and  597-8,  &c ; — as  to  hit  absurd 
proposition  on  this  head,  and  manifest 
contradictions,  see  also  601-3,  696-7-6, 
&c. 

Tutament  i  see  Nunenpative. 

Teatimff,  prifilege  of.     See  Battardg. 

Tetioit  yiacounU  (Sir  Thonuu  Living^ 
gtoue,  so  created  in  1696,)  his  opposi- 
tion to  a  title  carried  by  the  patent  of 
the  Earldom  of  March,  in  1697,  with 
remarkable  procedure  in  his  regard,  in- 
volving his  "quieteetU  title,"  and  ques- 
tion of  a  signature  in  part  blank,  1067-8, 
1060,  et  §eq.  His  later  '*  quiescent"  title 
of  *<  Lord  Livingstone  of  Hyndfoord," 
taken  by  htm  in  1698,  &c.  1061-2. 

Tkirlegtone  Baronyt  its  constitution,  and 
act  of  creation,  with  the  forms,  at  the 
coronationof  Anne  of  Denmark,  in  1590, 
157,  «.  I,  359,  n.  2,  360,  572,  n.  1. 
For  more  of  this  Family,  see  under 
Lauderdale  Duke,  and  Earldom,  ^e, 

ThomMon,  Thomae,  Esq,  Advocate,  error 
and  misconception  by,  in  bis  evidence 
as  to  regrants  of  honours  in  the  trial  of 
Humphrys  or  Alexander,  (in  1839,) 
845-347, 976,  n.  3 ;  objection  to  his  pro- 
position regarding  Craig,  in  the  case  of 
Riddell  v.  Brymer,  462,  n.  4.  Disagree- 
ment with,  and  reply  to  part  of  his  ar- 
gument and  allegations  there,465-6-7-8. 

Title  of  Honour  ;  see  Dignity, 

Tod,  Hugh,  Eeq,  W.  S.  1055. 

Toiseheuach  daraeh,  office  of,  574. 

Torphiehen,  Lord,  or  Preceptor  of,  jfc. 
see  Saint  John,  Lord  of.  Letter  of 
admission  by  James  IV.  in  1508,  to 
the  Temporality  of  the  Preceptory  of 
Torphiehen,  upon  a  provision  by 
*<  ye  Hede  House  of  ye  Rodis,"  88. 
n.  2.  A  right  of  sanctuary  in  the  Pre- 
ceptory of  Torphiehen,  97,  n.  4.  For 
other  notices  of  Knights  Hospitallers  of 
Saint  John  of  Jerusalem,  &c.  of  whom 
the  former  was  the  head,  see  261. 

Treaeon,  with  us,  757  etteq,  ;  see  Murder. 

Ikidor,  Margaret,  wife  of  James  IV.  see 
Margaret  Tudor. 

TulUbardin  Earldom,  case  of,  in  1628, 
where  resignation  by  a  deceased  party 
was  implemented,  56. 

TuWyeh,  Peter,  legitimation  of,  in  1520, 
new  important  case  as  to  constitution  of 
marriage,  and  perhaps  question  of  legiti- 
mation by  subsequent  marriage,  in  Con- 
sistorial  law,  497-8-9,  and  Pref.  xvi. 

Tumbull,  Willinm,  E»q.  Advocate,  963-5. 

Tweeda/e,  Earl  of,  question  for  prece- 
dence between  him, and  Earl  of  Selkirk, 
in  1689,  SO. 

Tytler,  Mr,,  too  indiscriminate  in  his  ao- 


count  of  the  remarkable  dtvoroei  be- 
tween the  Earl  of  BothweU  and  his 
Countess  in  1567,  434,  n.  2.  Hit 
amusing  misconception  and  anaehion- 
ism  elsewhere,  t6. 


U 


<7iitois  Boll  of  the  Peers  of  Scotland,  171. 
643.  Roll  of  the  Parliament  in  1694, 
and  Chamberlayne's  Ibt  of  Scottish 
Peers  at  the  Union,  171-2.  Efforts  of 
Lords  in  reference  to  the  Scottish  Roll, 
and  Scottish  Peerage  aspirants  in  1761, 
and  thereafter,  643-7. 

Unione  of  Scotland  and  Ireland,  r^ula- 
tions  in  that  of  the  latter  as  to  estabiuh- 
ing  a  right  to  vote  at  Elections  of  Repre* 
seotative  Peers,  not  enacted  in  the  for- 
mer, 851-2. 

Usher,  King^s,  hereditary  office  of,  and  re- 
lative case  of  Cockburn  of  Langton  in 
1 747, 850 ;  see  under  Heritable  Offices. 


Faloit,  see  Magdalene  de.  Queen  of  Jamet 
V.  and  original  cotemporary  verses,  or 
Epitaphinm  on  her. 

Vignerot,  Mary  de,  grant  of  the  French 
Duche  Pairie  d' Aiguillon  to  her  in  Janu- 
ary 1638,  with  power  of  nomination  as 
with  us,  and  other coincidencies  between 
French  practice  and  ours,  in  refutation 
partly  of  Lord  Mans6eld,  1051-2. 

"Viscounty,  premier  Scottish,  see  Fenian, 
Viscounty  of 

W 

Wallace,  (George,)  Advocate,  his  retailed 
notion  of  the  existence  of  **  hairy  men,*' 
with  ihe  "  ornament  of  tails,*'  520. 

Wardlaw,  singular  case  of,  in  1546,  in 
Consistorial  Law;  see  under  Sponsalia. 

Warrander,  Sir  George,  case  of,  in  1835, 
411. 

Waterford,  Irish  Earldom  of,  important 
Peerage  case  in  1832,  especially  as  bear- 
ing upon  that  of  Moray,  843,  920,  933- 
4. 

JFattUl;  see  Wrak—Wauche,  &c. 

Wauchope  V.  Dundas,  case  of,  in  1 574,  in- 
volving important  point  in  Consistorial 
law  ;  see  under  Sponsalia. 

Wauchope,  case  of,  in  Forfeiture,  in  1 596, 
as  illustrative  of  corruption  of  blood, 
769. 

Wemyss  Eatldom,  case  of,  in  forfeiture, 
726-7.     See  also  Mareh  later  Earldom. 

Westmoreland,  Earldom  of,  temp.  Jac.  I. 
case  of,  under  Forfeiture,  722. 


INDEX. 


1095 


Whart<mt  Lord  i  see  Ntwhaptn,  ScoUiah 
Fiseount. 

White  ▼.  Boot,  English  case  of,  in  1788, 
in  reference  to  Act  of  Parliament,  31 1. 

Whyttaw  ▼.  Ker,  remarkable  Cousistorial 
case  in  1398,  and  thereaAer,  involving 
the  marriage  of  divorced  adulterers,  and 
legitimacy,  and  possibly  the  eventual 
Roxburgho  succession,  395  to  405. 

Wigtou  Earldom,  case  of,  in  1370,  and 
thereafter,  120-1 ;  constitution  of,  in 
1606,  and  descent  accordingly,  628,  et 
•eq,  Unextended  signature  of  regrant 
of  the  dignity  to  different  heirs,  in  1669, 
631.  Claim  to  the  Wigton  honours  in 
1762,  1777,  and  1781-2,  633-5.  See 
also  under  Fleming  Barony,  and  Flem- 
inge,  Barone  of  Slane  in.  Ireland,  in- 
cluding original  notices,  &c. 

William  IL,  King,  his  letter  in  1697,  in 
reference  to  the  dignities  of  the  Earl  of 
Blarch,  and  Viscount  Teviot,  1058. 

Willoughbg  cf  Parham,  English  Barony, 
case  of,  contrasted  with  that  of  Borth- 
wick,  588-9,  apparently  inconsistent 
with  the  Dover  case,  &c.  ib,  589,  590, 
932,  n. 

WintoH  Earldom,  solemn  inauguration  of, 
in  1600,  with  attendant  peculiarity,  49. 
Complete  case  of  denudation,  from  alien- 
ation of  the  honours  by  Robert  the 
tecond  Earl,  in  1606-7,  and  thereafter, 
when  he  forthwith  dwindled  to  the  mere 
state  of  a  commoner,  122,  696,  n.  1. 


Winion  case  in  1710,  in  consistorial  law, 
510. — For  Winton  Family,  now  con- 
joined with  f'^/mroH,  their  high  alliance! 
and  branches,  including  those  of  the  ducal 
Gordon,  and  Sutherland  Houses,  &e.  see 
49,  n,  2,  274,  n.  1,  595,  n.  1,  &c. 

Wiehart  Baronetcy,  in  1700,  incomplete 
signature  of,  67. 

Witneuei,  Female,  not  admitted  formerly 
by  our  law,  and  with  diflBcuUy  in  1567, 
even  in  puerperio,  554,  n.  2. 

Wrak,  haif  wreck,  wattehe,  le  waitill,  chef' 
try,  ekatti*.  Admiralty,  and  Orkney  or 
Shetland  dues  and  taxes  in  the  16th 
century,  327,  n. 


Young,  a  subordinate  English  herald, 
admitted  through  a  modem  printed  copy 
of  his  narrative  merely,  to  prove  a  cardi* 
nal  fact  in  1503,  in  the  Glencairn  claim, 
822-3,  et  seq,  833,  n.  I,  834,  n.  1. 

Young  V.  Drummond,  consistorial  ease  in 
1547,  as  to  putting  to  silence,  891.  n. 
1. 


Zatius,  Canisius,  Covarruvicu,  and  other 
Canonists,  their  corroboratory  opinion, 
in  the  case  of  Ker  v.  Martin,  with  us,  as 
decided  in  1840,  622. 


POSTSCRIPT. 


In  order  to  prevent  any  misconception,  I  may  remark,  that  there 
are,  as  obviously  evinced  in  my  present  performance,  some  things  in 
which  I  differ  from  what  is  contained  in  the  "  History  of  the  Earl- 
doms of  Strathem,  Monteith,  and  Airth,"  (turning  upon  the  succession 
to  the  whole,)  and  with  report  of  the  claim  to  the  last, — ^so  recently 
published  this  year  by  Sir  Harris  Nicolas.    I  feel  it  incumbent  to  state 
this,  though  doubtless  beholden  to  the  professional  reference,  and  com- 
pliment paid  to  me  in  the  Preface.    I  cannot  coincide  in  the  extrava- 
gant and  untenable  view,  so  unqualifiedly  taken  by  a  gentleman,  (not 
Sir  Harris  Nicolas,)  of  the  exclusive  landed  import  only,  with  us  an- 
ciently, in  legal  deeds,  of  the  term  **  Earldom*^  or  ^  Comitatus^*^  capable 
of  such  ample  refutation.    I  have  often  been  amazed  at  the  manner  in  Late   miicon- 
which  Lords  Mansfield  and  Rosslyn  sought  to  meet  Lord  Hailes's  ir- ceived  import  of 
refragable  instances  originally,  (in  the  Sutherland  case,)  of  a  grant  oi^^j^xy^  ^^ 
Comitattu,  carrying  the  honours  with  the  lands, — ^that  there  may  have  irrelevant  mode 
been,  besides,  a  personal  grant  of  the  former, — and  to  a  diflPcrent  series  of  ^'^  **^k'"t°*^ 
heirs, — than  those  to  the  Comitatus  ; — ^a  most  likely,  and  to  be  presumed  Mansfield   and 
arrangement  certainly,  in  feudal  times,  in  such  a  country  as  Scotland,  Rosslyn. 
where  power  and  landed  possession,  and  feudal  dominion,  were  every- 
thing.   But  the  plain  answer  here  is, — ^before  entitling  you  to  the 
benefit  of  the  argument,  you  are  bound  to  shew  first,  that  there  was 
such  actual  extra  grant  in  question  ;  which  you  have  not  done,  even 
in  the  faintest  manner.    And  secondly,  the  very  notion  of  its  existence 
then, '  is  a  mere  fallacy  and  fantasy,  exclusively  grounded  upon  mo- 
dem conception,  the  bane  to  legal  antiquarian  discussion,  which  would 
transfer  the  era  of  such  abstract  concessions,  or  modem  patents,  as  they 
might  be  called,  to  a  period,  when,  as  every  Scottish  antiquary  should  be 
aware,  they  were  unknown.  I  rather  think  I  could  plec^e  myself, both 
by  what  Lord  Hailes  has  adduced,  and  what  I  farther  could,  in  corrob- 
oration,— as  partly  indeed  evinced  in  this  performance,  in  the  event  of  a 
discussion,  to  substantiate  what  I  thus  maintain  ;  and  such  being  the 
fact,  and  granting  it,  I  submit  to  the  legal  profession  in  both  countries,  in 
this  more  enlightened  age, — ^whether  the  above  notable  method,  by  which 

*  See  Hist,  ut  tvp.  Append.  No.  XIX. 
4  B 


1098  POSTSCBIPT. 

Lords  Mansfield  and  Bosslyn  meet  my  eonclnsiony  can  in  law  be  at  all 
palliatedy  or  permitted.  It  is  a  most  ontrageons  begging  the  qnestioD, 
—and  at  this  rate  all  argument  would  be  infinite. 

Although  counsel  in  the  recent  Airth  claim,  I  neither  suggested  or 
was  consulted  on  the  institution  of  that  to  the  Earldoms  of  Strathem 
and  Menteith  by  the  same  party,  so  am  not  responsible  for  the  step 
and  procedure.    And  I  regret  to  observe,  in  the  History  of  these,  &e. 
alluded  to,  while  reference  is  made  to  those  most  secondary,  and  wretch- 
ed authorities,  f  my  old  horrors  and  antipathiet^J  Douglas's  and  Wood's 
DeSdency  of   Peerages,'  the  due  descent  from  the  Stewart  stem  of  Strathem, — ^upon 
legal  proof  of    -^hich  all  vitally  depends  at  the  mer«  outset,  is  not  legally  documented 
«eotStnthern  ^^^  established ;  however  susceptible  it  may  be  of  adequate  and  in- 
claim,  &e.        dispensable  probation  aliunde^  though  unknown  in  the  same  quaiier. 
Neither  is  the  question  of  the  legitimacy  of  the  Stewarts,  (also  intro- 
duced in  the  above  work,)  fully  brought  out,  the  striking  and  material 
aggravation,  owing  to  the  special  bar  to  the  legitimation,  per  mbse^uenB 
matrimoniumy  through  the  incests^  escaping  notice.'  This,  no  doubt,  may 
be  ascribed  to  Sir  Harris  Nicolas,  however  eminent,  and  laudably  assida- 
ous  as  an  English  Peerage  lawyer,  being  naturally  not  altogether  imbued 
in  our  peculiar  l^;al  notions,  and  practice,  in  Consistorial  points^  oompris- 
Sir  Harris  Ni-  ing  legitimacy. — ^At  the  sametime,  I  admits  the  representation  by  Sir 
^    art"       -  ^^™^   ^^  ^^^   general    law  of  legitimation,  per  eubeequene  mafyri^ 
tioQ.  numium,  after  the  era  of  the  14th~century,  as  '*  in  a  state  of  traneUion  ** 

from  the  English,  to  what  it  now  is,"  to  be  happy  and  relevant,  under 
my  later  construction  of  the  remarkable  ease  of  TuUoch  in  1620, 


Scottlib  Peer-       *  See  p.  990,  and  Index,  under  Petrage   Writen,  SeaUUh,     The  initances, 

age   wnten  a   howeyer  glaring,  alluded  to  there,  of  the  faults  and  errors  of  the  latter,  whom 

class    and  far    ^^^°*®'**  ^ho  like  myself,  had  such  multiplied  occasions  to  test  their  veracity,  not 

inferior  to  Dug-  iiuptly  identifies  with  "  JTefton,"  (see  pp.  1006-7,)  are  in  fact,  but  a  mere  drop 

dale.  in  the  bucket, — rara  nantes  in  gwgite  vasto, — compared  with  what  can  be  iemlcs, 

elsewhere  exposed  in  their  lucubrations.     And  by  the  way,  the  appealing  to  them 

by  the  English  learned  authority  in  question,  is  again  an  admirable  illastratioii  of 

the  necessity  of  **  evidence  of  the  Hricteti  kinds  in  matters  "  of  Scottish  Peerage, 

according  to  another,  by  the  existing  professional  understanding  and  praotiee» 

(see  p.  832.)    Our  English  neighbours,  good  easy  people,  may  perchanee  ben«* 

volently  think  that  otcr  Peerage  writers — ^rather  &  peatHar  class— are  on  9k  pew 

with  Dngdale  I     If  so»  they  must  be  lamentably  mistaken,  as,  I  repeat*  coold  hm 

illnstrated  and  proved  in  a  very  singular,  and  possibly  surprising  maimer  to  the 

public ;  and  even,  as  ordinarily  admitted  in  Peerage  Uw,  Dugdale,  however  trana- 

eendently  superior,  cannot,  at  the  most,  be  relevant  or  conclusive  proofs — certainly, 

M  the  exietenee  of  better,  or  strict,  which  is  always,  or  should  be,  ante  OMiua, 

preferred,  as  really,  in  the  Strathem  emeigency,  adverted  to  in  the  text. 

'  I  may  mention,  I  first  broached  the  Stewart  question,  essentially  as  stated  in  the 
present  Work,  so  far  back  as  1835,  in  my  *'  Tracts  Legal  and  Historical ;" 
ib.  pp.  162—205. 

*  History  of  the  Earldoms  of  Strathem,  Monteith,  &c.  ut  rap.  p.  6,  note, 

*  See  Pref.  xvi.,  also  pp.  497,  et  seg. 


P0ST8CBIPT.  1099 

which,  howerw,  it  ib  difficult  to  reconcile  with  our  other  autho- 
rities.*   In  respect  to  the  Begiam  Majeatatem^  by  which  the  former  ap-  Dubious  natore 
positely  bolsters  his  conclusion,  I  elsewhere  shewed,  from  its  ^^-jl^^^J^l' 
fessed  bifarm  structure  and  nature,  that  it  is  but  a  dubious  auxiliary,  leg^i    practical 
and  difficult  to  be  trusted  in  a  critical  l^gal  emergency.'  authority. 

I  need  hardly  add,  that  in  remaining  respects.  Sir  Harris's  Report  of 
the  Airth  discussion  has  no  inconsiderable  attraction,  and  must  be  per- 
used with  due  interest  and  attention  by  the  profession  ; — while  it  is 
most  agreeable  to  find  him  in  this  manner--singularly  enough,  un- 
known to  me  till  after  the  time  of  publication,  thus,  in  part,  compen- 
sating for,  and  supplying  the  material  deficiency,  before  so  pointedly 
regretted,  and  adverted  to  by  me  in  my  Preface.*  In  regard  to  the 
merits  of  the  Airth  claim,  owing  to  the  matter  being  still  wb  judiee, 
or  rather  not  pushed  after  the  argument, — independent  of  the  pre- 
sumption on  mj  part, — ^I  regret,  I  cannot  weU  attempt  at  present 
further  to  broach  or  discuss  them. 

But  I  cannot  resist,  once  more,  adyerting  to  the  modem  heresy  enter-  Modern  error  as 
tained  by  some,  (including  our  old  friends  the  solicitors,)  who  have  been  peerage  resiff- 
regarded,  nay  consulted  as  authorities  in  such  matters,  of  resignations  of  nations,  with  in- 
honours,  in  order  to  their  efifectnal  conveyance, behoving  indispensably  to  j^'i^'"  ^^  °°' 
be  into  the  hands  of  the  crown,  and  not  merely  into  those  of  the  Barons  ^"'^j^^H"^' 
of  Exchequer,  the  reverse  being  so  directly  and  palpably  refuted  by  the 
Roxbuighe  and  Rothes  cases,  besides  various  others,  &c. — ^the  first  as 
solemnly  determined  by  the  Lords  in  1812 ;  while  the  second,  as  has 
been  seen,  was  the  subject  of  unavailing  cavil  and  objection,  however 
keen,  in  1682.*    I  need  hardly  observe,  that  both  the  existing  Duke  of 
Roxburghe,and  Earl  of  Rothes,  as  well  as  their  predecessors,  exclusively 
come  to  take  their  corresponding  dignities,  through  such  identical  Ex- 
chequer resignations,  that  cut  off  the  previous  heirs,  under  a  totally 
different  character  and  right,  followed,  of  course,  by  unexceptiona- 
ble regents  from  the  Sovereign. 

It  is  the  adhibition  of  the  royal  sanction  and  consent,  through  the  Approved  form 

r^grant,  upon  a  sign  manual,  that  forms  the  true  cardinal  test,  and  by  *"  ^^^^^^? 

retrocession,  in  our  Exchequer  resignations,  as  well  as  extunc,  renders  gion,  and  what 

all  good  and  valid.    The  mere  adhibition,  on  the  other  hand,  of  the  i*  here  ouU  and 

efiete. 

'  Further  here,  what  may  we  nj  to  the  Parliamentarj  Declaration  in  1616, 
that  Alexander  Stewart  was  bastard  son  of  Alexander  Duke  of  Albany,  and  by  the 
"  Lawis — and  constitutiouns  of  yis  realme, — unlegitHtnate  be  <my  manage"  which 
inTolves  and  presupposes  the  notion  of  legitimation  by  a  tubtequeut, — talien  with 
our  great  leaning  to  the  Romish  Canon  Law  ?  (See  Acts,  last  Edit.  vol.  11.^ 
p.  283.)     Yet  in  dvUo,  law  leant  to  legitimacy. 

'  See  my  former  Remarks  on  Peerage  Law,  52,  n.  1,  and  Tracts  Legal  and 
Hist,  ui  tup.  pp.  193-5. 

'  See  pp.  vii,  ▼iii,  ix. 

*  See  p.  937,  n.  2,  eiteq.  The  talid  and  effectual  Rothes  regrant  in  1663,  under 
the  sign  manual,  was  also,  as  can  be  prored,  upon  a  resignation  in  the  hands  of  lh« 
Barons  of  Exchequer. 


1100  POSTSCRIPT. 

caschety — ^without  consequently  the  knowledge  of  the  crown,  (which 
is  imperoHvey)  in  the  emergencyy  as  the  warrant  of  the  regrant, 
— indifferently  from  the  case  of  any  ordinary  subaltern  oonTeyance, 
— would  again  render  things  here,  indisputably  efibte. 
NeceMity    of        Without  specific  reslguation,  the  right  of  former  heirs  to  honours 
proper  specific  cannot  legally  be  held  to  be  defeated  ;  and  whether  a  naked  grant  de 
Dattons*  (foT^"  ptono,  or  as  we  might  in  a  certain  manner  say,  a  regrant  of  a  digniip^ 
lowed  by  a  re-  in  that  event,  identically  bestowed,  with  the  M  precederuse,  ex  figura 
^*"J)  ^o  <»"T  verborum,  upon  one  not  the  heir,  but  an  absolute  stranger,  (as  has 
precedence.*"  '  ^PP^^^d  de/aetOf)  or  having  little,,or  an  extremely  distant  blood  con- 
nection in  his  person,  with  the  firmer  takers,  can  legally  carry,  to  the 
prejudice  of,  or  collision  with  the  still  existing  heirs  of  the  latter,  or 
independent  parties  having  conflicting  vested  interests  aliundey  the 
abovey  especially  the  old  precedence,  pariter,  et  reiteratim,  may  receive 
Newandiropor- some  elucidation  from  the  pointed  case  of  the  Earldom  of  Findlater, 
Sndlater  i^     ^"  1641-3,  and  1666,  which  I  may  again  recommend  to  notice,*  and  was 
17th  century;    hitherto  unknown, — hqpever,  though  partly,  but  in  a  degree  only,  the 
and  if  rebutted  less  satisfactory,  and  forcible  instance  of  the  Barony  of  Sinclair,  after 
by  that  of  Sin-  1577^  under  its  tater  aspect,  may  be  supposed  to  weigh  otherwise."   As  I 
formerly  suggested  too,  in  the  case  of  the  two  possible  identical  Bara» 
nies  of  Salton,  under  the  old,  and  modem  law,  the  very  existence  of 
See  pp.  946-7.  two  such  conflicting  honours,  with  the  same  title  and  precedence,  in- 
dependent of  the  injustice  of  the  act,  is  a  rank  incongruity,  nay,  utter 
natural  and  moral  imposability,  and  cannot  be  countenanced  or  su9- 

'  See  pp.  65-6, 80-1 ,  et  teq.  The  double,  or  later  conceuion  in  1641,  of  the  ori- 
ginal Findlater  precedence,  with  the  title,  to  Sir  Patrick  Ogihie  and  Am  *<heirt-male** 
only,  was  strikingly  declared  by  Charles  I.  in  1643,  to  be  contrary  to  **  equUiennd 
reason,'*  and  **  to  be  void,  null,  and  ineffectual,**  (see  p.  81,)  which  dedaratioo 
was  confirmed  in  1665,  by  Charles  II.  This  Sir  Patrick  OgiWte  of  Inchmartior 
the  husband  of  the  daughter,  and  heiress  of  James  OgHvie  first  Earl  of  FIndlater» 
and  who  was  eventually  to  be  benefited  by  the  above  void  and  repudiated  grant  of 
the  precedence  ex  ierminie,  happened  also  to  be  of  the  same  common  and  anctent 
stem  of  Ogilvie,  however  not  of  the  special  Findlater  branch.  His  sifnatiati 
too,  though  there  was  no  resignation  in  the  matter,  yet  proved  the  most  favoormblo 
of  the  kind,  the  original  Findlater  patent  in  16S8  being  merely  to  Earl  James, 
and  the  "  heirs  male  of  A»  body*  &c.,  of  whom,  as  there  was  none,  no  previous  in- 
In  CAM  of  <$*      ^®r®s^>  so  f^f  or  Jut  qtuuitum,  ever  vested  in  heirs. 

clair,  if  no  re-  '  ^^^  PP-  78-9, 81-3.  As  far  as  I  yet  know,  and  I  believe,  as  generally  held, — 
signation,  the  though  I  am,  of  course,  here  open  to  correction, — there  was  no  resignation  in  th« 
original  Barony  case  of  this  Sinclair  Barony,  nor  has  the  question  of  its  precedence  been  yet  fairly, 
Caithness  •  '^  ^  ^'  legally  tested.  Query,  then  is  not  the  original  and  proper  Barony  of  Sinclair,  that 
the  present  ''"  ^^^  original  Lords  Sinclair,  opposed  to  the  later,  held  by  the  Sinclairs  of  Hermis- 
Lord  Sinclair  toun,  a  distinct  family,  in  terms  only  of  the  patent  in  1677,  in  the  present  Earl  of 
"loyi  by  our  Caithness,  the  undoubted  heir-male  of  the  former,  by  reason  of  his  male  d^fc«n( 
law,  only  ronk,  jy^^,^  ^^^j  representation  of  their  common  ancestor  William  Earl  of  Orkney  and 
a^/vcorresDond-  Caithness,  ••  Lord  Sinclair  ;"  who,  by  a  solemn  Act  of  Parliament  in  1488,  is  ex- 
ing  title,  by  the  plicitly  shewn  to  have  possessed  the  title  of  Lord  Sinclair,  (see  Acts  of  Pari,  last 
patent  in  1677.  Edit,  vol  II.   p.  218,}  and  that  devolved  from  him,  to  the  same  original  Lords 


POSTSCRIPT.  1101 

tained  by  our  law.*    The  precedent,  moreover,  of  the  Earldom  of  Lo-  Case  of  the 
thian,  under  the  jarring  patents,  in  their  limitations,  of  1606,  (the  ori-  ^^^^  **"  ^  7th' 
ginal,)  and  1631,  and  1G78,'— as  I  have  also  first  set  forth  in  this  per-  century,  also 
formance, — goes  to  shew,  in  its  legal  history  and  progress,  the  conceived  here,   mo«t 
inefficacy  of  stuih  later  grant  of  an  original  dignity  and  precedence  con-  ™**®"  • 
templated,  even  to  the  nearest  blood-heirs,  though  new  takers — ab- 
stracting/ram the  preliminary  or  essential  warrant  of  a  competent  ex- 
press resignation.'    What  Lord  Mansfield  or  such  authorities  may 
chance  to  predicate  upon  this  head,  from  what  has  been  so  repeatedly 
shewn  in  their  case,  and  without  proper  illustration  and  proof,  accord- 
ing to  their  usual  fashion,  we  cannot  altogether  trust  to.  The  preceding 

Sinclair,  as  his  then  preferable  hein-male  ?     In  cotemporary  and  authentic  deeds, 
also  now  before  me,  the  title  of  Lord  Sinclair  is  given  to  the  above  William  Earl 
of  Orkney  and  Caithness.    From  the  case  of  Flndlater,  and  what  is  set  forth  under 
the  present  article,  the  precedence  of  the  thus  comparatively  modern  and  new  Ba- 
rony of  Sinclair,  in  the  Hermistoun  family,  (though  stated  in  the  patent  in  1677,  to 
be  that  of  the  prior  Lords,)  should  only  be  from  the  latter  year.    If,  again,  the  old  Earlier  date, 
precedence  literally,  is  thereby  carried,  it  should  clearly  be  much  earlier  than  the  ^^^ .  '."I'P^J!?^^* 
date  1488,  that  taken  by  the  Hermistouns.    See  as  to  this,  and  partly  what  is  pre-  .  .     QMced-  * 
mised,  pp.  608-9,  including  note,     I  conceive,  however,  that  before  1677  the  ence. 
old  Barony  of  Sinclair  may  have  devolved  to  the  Caithness  branch,  in  whom  it  le- 
gally is,  as  above — always  holding  there  to  have  been  no  previous  resignation. 

*  By  the  way  too,  as  I  also  remarked  at  pp.  82-3,  this  is  the  case  of  two  Peer- 
ages, to  use  the  English  phrase,  "  sitting  on  the  lap  of  the  other,'*  which  is  viewed, 
I  am  informed,  in  the  same  light  by  the  House  of  Lords. 

*  See  pp.  73-5.  Sir  William  Ker,  who  married  the  Lothian  heiress,  afterwards 
Earl  of  Lothian,  was  the  son  of  Sir  Robert  Ker  of  Ancrum,  a  great  favourite  of 
Charles  I.,  who  may  have  arbitrarily  stretched  things  in  his  favour. 

*  As  palpable  evidence  inter  alia,  that  there  was  no  valid  resignation  of  the  Proof,  inter 

Lothian  honourt  in  favour  of  the  heirs-female,  &c.  by  Robert  second  Earl  of  Lo-  **'*?•  ^^  f®  ^'^^^ 

thian,  I  may  appeal  again  to  the  letter  of  James  II.  to  the  Scottish  Lord  Com-  L^^[^^e  ° 

missionorin  1685  (in  the  SUte  Paper  Office),  in  which  he  affirms  that  Charles  II.  *>         v  ui    ' 
.... ,         .  ^        ,»,      -  .,,,  tiemarKaoie 

had     been  informed,  — of  course,  by  his  legal  counsel,  and  advisers— that  the  Letter  here,  of 

original  Earldom  of  Lothian,  (that  in  Mark,  the  first  Earl,  and  his  son  Eari  Ro-  James  II.  (for- 
bcrt,)  whose  patent  in  1606  has  ever  been  on  record,  was  «•  provided  to  heirs  of  ""®'*y  referred 
his  body,"  tnd  therefore  "  extinct."     Now  this  could  not  have  been,  on  the  con-  ^^  *^  ^'      ^^ 
trary  supposition  of  such  actual  resignation — of  which  neither  is  there  the  tlightett 
vestige, — because,  by  our  legal  understanding,  (combined  with  a  proper  regrant, 
which  is  as  little  to  be  found,)  the  Earldom  had  still,  on  the  other  hand,  thereby 
existed  in  the  heirs-female, — instead  of  being  thus  extinct.      Added  to  this,  there 

is  the  striking  fact  of  the  after  Lothian  line,  in  the  person  of  Sir  William  Ker, 

who  married  Ann,eldest  daughter  and  coheiress  of  Earl  Robert,by  whom  hehad  heirs, 
(as  likewise  proved  by  the  preceding  letter),  having  in  1631,  long  subsequent  to 
Earl  Robert's  death  in  1624,  "  acquiesced  in  the  extinction  of  the  former  honours,  Full  proof  by 
and  procured  a  new  patent"  (in  that  year),  on  which  they  thereafter  legally  stood.  It  Lothian    case, 
also  follows,  that  the  limitation  to  "heirs  male  "  (simply),  in  the  original  Lothian  *^**  "   **®'"* 
patent  in  1606,  could  only,  as  in  the  instances  of  the  ViscounUes  of  Melgum  and"**'  i^  S®" 
Aboyne,  in  1627  and  1682,  (see  pp.  1020,)  have  been  held  to  denote  heirs-male  of  toTdenoto  hdn- 
the  body,  there  having  been  in  the  same  century  many  collateral  heln-malo  of  themalt  of  body. 


1108  P06TBCBIPT. 

Qatttion    may  is  a  carious  and  important  point,  inyitinglj  ooniiing  tnd  lequiriag 
^^lYtT^i^'  ^^^^^^^^^  ^^  ^^  7^^  being  perhaps  so  fally  or  satisfactorily  fijced, 
'  in  practice,  in  all  its  aspects,  as  might  be ;  and  whatever  may  other- 
patentee,  (of  whom  f ome  still  preiumptively  exist)  an  interpretation  too  ezpreie- 
ly  given  to  the  previous  identietd  words  by  the  first  lawyers  at  the  time.     There 
conld  not  possibly  have  been  any  mistake  as  to  the  limitation  in  1606,  the  patent 
not  only  being  all  along  upon  record,  but  fully  examined,  aind  referred  to,  as  con- 
eeived  lUeraVy  hut  to  "  heirs  male,"  under  the  correct  date,  both  by  Charles  It. 
James  II.  and  their  advisers,  &c.  (See  further  here,  Letter  of  Charles  II.  in  1679, 
Further  proof  in  the  Lothian  and  Roxburgh  matter.  Acts  of  Sed.  Edit.  1790,  p.  142.)    For  re- 
of  no  Lothian   naining  conclusive  proof  of  the  absence  of  any  resignation  of  his  honoars  by 
tha?"w°'Lo.^  ^^^^'^  ^^^"^  ^^  ^^  Lothian,  the  last  direct  heir-male,  and  that  the  new  line 
thian   Family     ^^^  ^^  death,  in  Sir  William,  husband  of  his  eldest  daughter,  and  their  heiis, 
could  only  claim  could  only  strictly  ground  their  right  to  their  dignity  of  LotkUm  upon  the  patents 
the  old  preced-  153]^  and  1678  (de  facto,  though  unayaiUng  as  to  the  original  precedence) ;  see 
in  1678  pp*  73  to  78.     Nothing  can  be  truer  than  the  above  ae^ide»cing  in  the  extituium 

of  the  first  Earldom  of  Lothian,  as  intimated  in  1685 ;  for,  by  the  Rolls  of  Ps^r* 
liament  from  1633  to  1670,  Sir  William  Ker  mentioned,  husband  of  Ann,  b  proTed 
to  rank  only  according  to  his  abstract  creation,  as  Earl  of  Lothian  in  1631,  and  is 
poitponed  not  merely  to  Roxburghe,  but  to  Earls  created  in  1619,  1623,  1624, 
and  1628.  Then  again,  as  to  Earl  Robert,  their  son,  the  heir-female,  down  even  to 
the  26lh  of  June  1678,  he  is  alone  restricted  to  the  same  precedence,  and  is  stUl 
after  Roxburghe.  And  it  was  not  until  the  last  Lothian  patent,  23d  of  October 
1678,  (Great  Seal  Register,)  de  facto  giving  the  precedence  in  1606,  and  the  bone 
For  more  here,  of  contention,  that  the  case  was  altered,  and  he  had  ostensibfy  a  leg  to  stand  upon, 
*^^  ^*  '       euhieyuemt  even  to  which,  however,  he  is  ranked  but  as  according  to  1631.     (For 

the  above  facts,  see  Acts  of  Pari,  last  Edit.  vol.  V.  pp.  8,  405,  464,  491 ;  toI. 
VII.  3,  368;  vol.  VIII.  214,  452,  576,  &c)     The  same  thing  U  exemplified  by 
See  also  further  the  ranking  of  our  nobility  in  Books  of  Blaxonry  I  have  seen,  by  the  Heralds  at 
too,  t6.  1106.     th^  ^Q,^^     If  (]jg  ^^^  Lothian  Earldom  had  gone  by  resignation,  &c.  to  Ann, 
daughter  of  Earl  Robert,  then  Sir  William,  her  husband,  by  the  covrteiy,  would 
have  been  Earl  inetatUer;  which  title  had  descended  to  his  son  withont  any  no- 
Forcible  fllus-  cessity  for  the  irfter  patents.     And  here,  in  contrast,  how  strikingly  the  case  of 
tratfon  in  point  Roxburghe  tells,  where  there  toae  a  proper  resignation,  followed  by  a  proper  re- 
afTord^?'^  ^"^^'  ^^^^  '°  \^^^)t  and  hence  the  Earldom,  with  the  original  precedence  m 
Roxburghe         1616,  at  once  went  to  the  new  heirs  (female),  who  by  the  Rolls  of  Parliament  (toe 
case,  to  that  of  citat,  jfc.Jare  proved  to  have  unexceptionably  held  it,  without  any  new  patent,  or 
Lothian.  subsequent  repeated  jarrings  and  interrentions,  as  in  the  Lothian  instance,  con* 

fessedly  to  cure  a  vital  defect.     To  descend  to   lesser  evidence, — ^the  cotem- 
porary  Lord  Lyon,  Sir  James  Balfour,  (the  noted  antiquary,)  so  constituted  In 
*  See  p.  1105,   ]S3o,«  but  a  for  better  authority  than  Young,  the  subordinate  Englkh  herald, 
the   sheet-anchor  of  Lord  Rosslyn  in   the   Glencaim  case,    (see    pp.    832- 
Concorrcnt  evi-  3,  831 — 833,  n,  I,  et  eeq.J, — ^be  simply  states  in  bis  Lothian  Genealogy,  among 
dence   of    Sir   the  other  descents  of  our  nobility,  (in  a  MS.,  Ad  Lib.) — ^that  the  Anne  in  qnes- 

L^lnTL^^^^T'  ^°°'  ^^^™  ^*  ^^^  °^^  '^^^^  Countess,  daughter  of  Earl  Robert,  married  the 

1630  above  Sir  William  Ker,  ipAo  "  was,"  by  Charles  /.,  to  quote  his  actual  words* 

"  created  Earl  of  Lothian,  and  Lord  Newbattle,  by  letters  patent,"  thos  shewing 

whence  the  right  proceeded,  withomt  notice  of  any  resignation  or  reigrant,  which, 

if  it  had  obtained*  be  would  have  undoubtedly  known,  and  weBtton€d»  ■  aithongh 


TOvrscRiPT.  1103 

wise  be  thought  to  bear,  in  the  course  of  this  performance,  yet  confess-  Nbbet  decided- 
edly  Sir  John  Nisbet,  Lord  Advocate  to  Charles  II.,  a  great  authority,  1^,^^*'^^.^^^^ 
whose  noted  "  DoubU^*  in  law,  an  English  lawyer  obserred,  were  better  ^  honour '  or 
than  most  men's  reo/MtM,*  sided,  as  has  been  seen,  with  English  no*  subject,  in  pre- 
tions,  and  was  clearly  against  the  regrant  of  the  precedence  in  ques- J"**^®'^^  ?"/*" 
tion.    Nay,  he  even  thus  generally  expresses  himself,  that  the  royal  ^^1,.,, 
prerogative,  whose  extension  he  honestly  deprecates,  should  fwt  be 
carried  to  the  excess  of  affecting  the  fu9  qtuBsitum  of  original  heirs  to 
an  honour  and  precedence,  '^or  any  thing  else,"  by  a  regrant  thereof,  to 
another,  or  stranger.    He  here,  too,  has  in  view  the  Lothian  and  Rox- 
burgh case.'    This  may  further  relevantly  tell  against  the  present  noble  The  doctrine 
holder,  defaeto  at  least,  of  the  Earldom  of  Buchan,  in  hU  person,  how-  may  bear  upon 

ever  defended,  or  accounted  for, — so  peculiar  and  anomalous,  even  admit-  ^^  pre«f  nt  Bu- 

*  cnan  ciaioa. 

ting  it, — and  that  is,  at  anyrate,  expressly  contended  to  be  different  from 

the  propeTy  and  originaiy  in  the  remarkable  pending  Buchan  Peerage 
claim  ;  as  to  which  I  can  becomingly  say  no  more  at  present,  from 
having  first  profesmonally  started,  and  developed  it  upon  the  merits.' 
Sir  James  Stewart,  Lord  Advocate  likewise  (to  Queen  Anne,)  a  paral- 
lel high  authority  to  Nisbet,  it  is  observable,  by  no  means  contradicts, 
but  rather  sides  with  him,  in  his  answer  to,  or  comment  upon  the  im- 
portant question  mooted  and  discussed  by  the  other ;  for  he  admits 
that  Nisbet  here  "  thinks  Juetiy  that  the  Prerogative  (compassing,  in  coincident  opi- 
effect,  the  right  of  granting  a  dignity,  with  the  old  precedence,  inher-  nion  of  Stewart, 
ent  in  previous  heirs,  that  under  view,)  should  keep  within  the  boundary 
ofkLWy  and  that  it  can  only  be  measured  by  the  particular  constitution, 
and  the  lawsy  and  customs  of  every  kingdom  and  State,  and  the  true 
Principles  and  Reasons  thereof :  But  to  define  if  s  extent,  is  too  deli- 
cate a  point  to  be  farther  insisted  on."  * 

he  BpecifiGaHy  noticei  Earl  Robert*!  death  «  at  Newbattle,  15  July  16S4,"  and  hif  Present  state  of 
interment  there.     As  to  the  present  state  of  the  original  Earldom  of  Lothian,  in  origtHol  Earl- 
conseqaence  of  the  recent  Devon  decision,  and  the  law  as  mow  understood,  con-  ^^^  ^^  Lothian 
struing  "  heirs-male  "  not  as  of  the  body,  bat  as  heirs-male  general^  see  p.  82.     ^^  modern  Uw. 

'  See  in  the  matter,  p.  26,  and  n.  1,  ib. 

'  See  his  Doubit  and  Quettioma  in  our  Law,  &c.  p.  137  ;  also  referred  to  by 
me,  at  p.  23,  n.  1.    Nisbet*s  literal  words  will  be  given  presently. 

'  I  cannot  yet  reiVainm  /tmtiM,  from  remarking  again,  that  sittings  in  Parliament, 
and  taking  or  eierdsing  the  dignity,  &c  npon  an  undue  and  vitious  title,  or  a  pub- 
lic inUrim  sanction,  as  in  the  modem  Buchan  or  Cardron  instance,  always  here  at  Other  material 
the  same  time,  without  any  authority  fVom  the  only  true  and  competent  tribunal,  considerations 
has  been  repeatedly  shewn,  as  I  humbly  conceive,  in  the  course  of  this  perform-  ^^^^g    Qpoo 
ance,  even  further  when  backed  by  prescription,  not  with  wt,  to  homologate,  or  ^i^     "c***" 
obviate  a  lurking  and  inherent  flaw  and  defect,  that  could  still  be  pleaded  in  bar, 
in  law,  and  prove  fatal.     And  this,  independent  of  the  other  arguments  on  this 
head  in  the  Buchan  claim. 

*  His  Answers  to  Nisbet's  Doubts  and  Questions,  pp.  222.  The  literal  words 
of  Nisbet,  at  the  place  before  quoted  (in  this  page),  and  considered  by  Stewart, 
are,  «  It  is  thought,  that  his  Mi^estie*s  Concnriont,  whattter  the  subject  be,  should 


1104 


POSTSCRIPT. 


Value  of  Nit- 
bet'i   DottbU 
and  Stewart's 
Answers. 


Sir   George 
Mackeniie  also 
sides  with  Nis- 
bety  yt  supra. 


I  most,  par  parenthitey  here  bid  adieu  to  these  endeared  profeauonal 
heir-looms — ^Nisbet's  Doubts  and  Questions  in  Scottish  Law,  and  Stew- 
art's Answers  to  them, — ^while  thus  beneficial,  so  unique,  I  believey  in 
their  character,  and,  as  would  appear,  unprecedented,  and  unam- 
bitioned  ;  in  which  two  great  lawyers,  dUcincti,  and  withdrawn 
from  the  bustle  and  turmoil  of  the  J^orum,  after  the  fiishion  of  Scipio, 
and  LaeliuB,*  devoted  their  leisure  to  exchanging,  with  the  view  of 
wholesome  recreation  and  benefit,  not  imitated,  it  is  to  be  deeply  la- 
mented, in  later  times, — and  under  the  influence  mitii  sapientuB,  their 
private  and  unbiassed  opinions  upon  the  nicer,  and  most  interesting 
portions  of  our  law. 

Far  be  it,  however,  from  me,  at  the  sametime,  to  overlook  our  other 
ootempon^ry  Coryph^us,  Sir  Greorge  Mackenzie,  founder  of  the  Ad« 
vocates*  Library,  whom  Chalmers  styles  an  author  of  '*  multifaiious 
learning," '  and  who  also  combined  general  literature  with  law.  He 
was  likewise  Lord  Advocate  to  Charles  II.  and  although,  as  notorious, 
sufficiently  arbitrary  in  his  notions,  and  disposed  to  Hretch  the  royal 
power  and  prerogative,  yet  fully  coincided  in  the  matter  we  have  pre- 
viously discussed  with  Nisbet.  He  starts  the  question,  in  his  treatise 
on  Precedency,  which,  in  fact,  essentially  may  resolve  into  the  cases  of 
Lothian  after  1631,  or  rather  1678,  and  Sinclair  in  1677,  that  he  likely 
had  in  view,  **  Whether  can  the  King  create  now  a  new  Earl,  and  ordain 
him  to  precede  all  the  former  Earls,  or  any  such  number  of  them  as  he 
pleases,"  and  preferably  answers — while  noticing  the  arguments  e  con- 
tray — *^  It  would  seem  that  the  King  cannot ;  for  there  being  a  Preced- 
ency acquired  (thejW  qtueHtum  of  Nisbet)  to  the  former  Earls  by  their 
flret  gift,  the  King  cannot,  by  any  new  gift,  prejudge  third  parties ;  and 
this  were,  in  effect,  U>  forfeit  them  of  their  Precedency."* 


Nisbet's  cha- 
racter. 


be  judged ^'vre  communi  ;  and  that^'ut  ^tttfnVtcm,  whether  as  to  Honour  and  prece- 
dency, or  amf  thing  the,  cannot  be  taken  away  upon  any  such  pretence."  And 
this  after  starting,  <*  If  the  Question  between  Roxburgh  and  Lothian,  should  be 
determined  with  respect  to  his  Mnjestie's  Prerogative  being  the  Fountain  of  Hon- 
our ?"  It  is  yet  singularly  remarkable,  that  there  is  one  error  in  Nisbefs  statement 
of  the  Roxburghe  and  Lothian  case,  in  supposing  a  resignation  by  the  second 
Earl  of  Lothian,  which  has  been  evidently  obvious  to  Stewart,  and  has  according- 
ly induced  him  properly  to  demur  to,  and  (partially)  question  that  accounL  See 
Nisbet  s  Doubts,  p.  136,  and  Stewart's  Answers,  p.  219. 

'  Lord  Hafles,  himself  a  scholar,  and  good  judge,  to  whom  I  must  so  often  re- 
levantly appeal,  represents  Nisbet,  upon  due  cotemporary  authority,  as  **  a  man 
of  great  learning,  both  in  law,  and  in  many  oMer  things,  chiefly  in  the  Greek 
learning."  (Notes  on  Catalogue  of  the  Lords  of  Session,  of  whom  the  latter 
was  one,  p.  22.)  He  thus  also  combined — abstracting  from  the  vague  metaphy- 
sical fantasies  of  certain  judicial  successors,  like  sand-hills,  only  reared  that  they 
may  vanish  in  turn,  not  forgetting  the  edifying  Monboddo  doctrine  of  men  with  tails 
— the  same  redeeming  classical  accomplishment  that  distinguished  the  latter, — cu- 
riously indeed,  as  well  as  Scipio,  &c.  and  some  more  of  our  legal  authorities. 

'  Caled.  vol.  1.  p.  560,  n.  x.  '  Works,  vol.  II.  p.  570. 


I, 


POSTSCBIPT.  1105 

It  is  further  remarkable,  that  Sir  Geoi^  entertained  much  the  same  CorroboratioD 
impression  with  the  modern,-^  illustrated  in  the  Cassilis  case  in  1762»*  likewise  by  Sir 
and  asy  in  like  manner,  is  relevantly  contended,  in  that  of  Buchan  at  ep^Ms'uid  ^n- 
present^  upon  the  l^gal  ineptness  and  indgnificanee  of  private  Farlia-  dgniAcance 
mentaay  Ratifications  ;  for ''  since,"  he  states,  such  '<  Ratifications  pass  ^^  ^  ^|^P"- 
wUhout  ObMrvation^  and  o/terUifne$  vnthout  reading^  it  may  be  doubted,  mentaryRattfi- 
whether  such  a  Ratification  should  prejudge  even  thoeej  who  were  Mem-  cations  of  Peer- 
bers  of  Parliamant,*  but  much  more  soeh  as  were  not  preeent^  or  such  H^  conveyaD- 
as  were  created  thereafter,  these  Ratifications  not  being  properly  pulh-  i^'c^^^n- 
Ikk,  and  UgMUine  Statutee,  and  so  can  bind  only  such  as  consented." '  due  maDner  in 
He  here  also  lets  us  into  other  important  information, — strikingly  evin-  ^^^ch  they  past, 
cing  the  extreme  laxity  and  inefiectiveness  of  the  relative  procedure.  Ihe^denchbiF^ 
But  over  and  above,  the  Acts  Saiw  Jure  cuju$libet,tlaki  besides  followed  Acts,  Salvo  Jure 
the  private  Ratificationson  the  Cassilis  and  Buchan  occasions,  keep  every  cuj\tlibet,  &c. 
thing  material  open  and  entire  to  third  parties^  having  then,  or  even- 
tually an  interest 


Not  only  in  1678,*  but  much  further  down,  in  1696-1696,  nay  in  Farther  as  to 
1700  and  1701,  the  later  Lothian  line  were  ranked  in  Parliamenl^  accord-  *™®  .  ^^\  ©^ 
ing  merely  to  the  patent  in  1631, '—that  is,  until  the  very  date,  in  1701,  J;^^^^!^^  ^^oie 
of  the  grant  of  the  Marquieate  of  Lothian  in  their  favour,"  to  extricate  extricated  from 
and  sublimate  them  from  their  sad  irremediable  condition,'  and  to  re-  the  fatal  attach- 
duce  their  Earldom  to  a  ^quiescent "  title,"  in  return  for  its  inadequate,  I^^^aWed°to 
and  unavailing  services.    And  what  I  have  stated  in  regard  to  Parlia-  precede  Rox- 
ments,  obtained  also  on  the  occasion  of  solemn  processions ;  for  instance,  ^orgh,  by  their 
at  that  of  Charles  I.  into  Edinburgh  in  1633,  previous  to  his  Corona-  ^^^^^^^^ 
tion,  where  Sir  William  Kcr,  then  Earl  of  Lothian,  (so  long  after  the  Lothian,  in 
death  of  Earl  Robert  in  1624,)  figures  but  as  the  youngeet  Earl,  and  is  post-  ^  701. 
poned  to  the  Earls  of  Lauderdale,  Annandale,  Seaforth,  and  Roxburgh,* 

^  See  pp.  658-9. 

'  Here,  (obTiously)  eren  sitting,  and  in  the  House  at  the  moment. 

'  See  Sir  George's  Works,  under  last  quotation.  *  See  p.  1 102,  n. 

*  See  AcUof  Pari,  last  Edit.  toI.  X.  pp.  3,  113,  196,  247. 

'  See  p.  204,  under  ».  2. 

'  See  p.  23.     Owing  to  which,  to  use  the  words  of  Sir  James  Stewart,  **  that 
Contett  (the  Lothian,  &c.)  is  ended"     Answ.  to  NUbet,  p.  219. 

>  See  pp.  1061-2. 

'  See  Official  Statement  and  Account  of  the  Procession,  including  all  the  com-  Sir  James  Bal- 

mnnity  who  walked,  &c.  by  Sir  James  Balfour,  then  Lord  Lyon,  Works,  toI.  IV.  p.  four,  Lord  Lyon 

364.     By  the  way,  there  is  an  entry  in  the  Priry  Counca  Register,  "  anent  the  ?  1630,  and 
*       f  f.      J      J  .      .  »»  ,         ,L  /-.**,      ^,^-        I  form  of  Lyons 

Lyon  s  crowne,    under  date  at  Holyroodhouse,  17th  of  March  1630.  where,  upon  <«  crowning  "  in 

the  petition  of  the  said  Sir  James,  to  hare,  911a  Lyon,  a  **  crown  of  gold,"  certain  1661. 

persons  are  ordained  to  make  the  same.     I  hate  too,  an  original  ooteroporary 

account  by  a  Herald,  of  the  form  and  ceremonial  of  the  **  crowning,"  robing,  and 

installation  of  Sir  Alexander  Durham,  as  Lyon,  in  1661,  (the  procession  going 

from  the  Exchequer,  to  the  Parliament  House,)  which  it  curious,  and  imposing, 

4  c 


1106  POSTSCRIPT. 

who  then  attended  and  walked.    Now,  even  supposing, — ^what  is  how- 
.  ever  unfounded,*  that  the  resignation  and  r^grant  in  question, — hj  the 

gument  that '  ^^  Robert^  second  Earl  of  Lothian  in  1621,'  did  carry  the  honours,  but 
appHet  to  Lo-  at  the  same  time,  by  some  strange  unusual  exceptioi^  not  the  old  pre- 

te!r*^-S?  '"^d  ®®^®"^  5  ^^^^  **^®  ^^^>  ^'  "^  *^*  "*  ^®^>  ^^  consequence,'  ought  to 
rpgnmt  bad  oot,  ^^^®  ^^  ^^  P^  ^^  least,  (as  he  has  not,}  of  the  above  Earls  of  Lander- 
<as  yet  with  as»  dale,  Annandale,*  and  Seaforth,  whose  creations,  as  proved  by  their 
obtained  to  the  patents  in  the  Great  Seal  Register,  were  thereafter^  and  not  respsetive- 
ried'ha'^iieii^^^^  ^7*  ^^^^^  ^^®  years  1623^  and  1624.  This,  of  itself,  clearly  evinces  there 
ca/ original  pre-  was  no  Lothian  resignation  or  r^grant,  such  as  has  been  pretended,  and 
cedenoe.  represented,  the  now  Earl  in  1633, 1  repeat,  and  his  heirs  until  1678,  only 

Special  eoncar-  gtimding  upon  hio  patent. '  In  support  of  the  exact  corresponding  rank- 
rent  tettiroooy  .  ?,  *1  ,     ,.    i.^^.  ▼    ^i_.       i.        ^     f-     x»      • ,    . 
of  our  Heralds,  ^^%i  ^  1  before  remarked,'  of  the  new  Lothian  line,  by  the  Heralds  in 

(before  gener-  their  original  Books  of  Blazonry,  in  the  17th  century,  X  may  appeal  to 
fn  ^hi"  L^othS^  *^*  ®^  ^^^^  Sawers,  Herald  Painter  to  Charles  I.,  in  the  Advocates' 
matter.  Library,  containing  the  arms  of  our  nobility,  fully  and  finely  illumin- 

ated ;  as  well  as  to  an  autograph  Indtx  (penee  me)  of  the  matricula- 
tions, with  description  of  the  arms  both  of  the  latter,  and  our  gentry, 
begun  by  Robert  Porteous,  **  Snaddoun  Herald"  previous  to  1661,  and 
continued  thereafter  by  Joseph  Stacy,  Ross  herald, — ^more  curious  and 
valuable  than  any  thing  in  the  Lyon  Office,  in  its  modem  destitute  and 
jcijune  state,  without  any  attempted  compensation  for, or  rescuing  from 
its  lamentable  laountg,  by  its  recreant,  and  unrequiting  noble  heads  in 
our  days.    In  both  these  MSS.  William  Earl  of  Lothian  is  ranked,  in 
right  of  his  Earldom,  after  the  following  Earldoms,  viz.  Kelly  creaieii 
March  12, 1619 ;  Buccleugh,  March  16, 1619 ;  Haddington,  March  20, 
IrreButibte  eon*  1619,"  Galloway,  September  19,  1623  ;  Seaforth,  December  3, 1623  ; 
w*^?^'*b'*ihe  -A-nnandale,  March  13, 1624 ;  Lauderdale,  March  14, 1624 ;  and  Carrick, 
Earldom  of      created  even  so  f&r  back  as  1628.^    Nay,  the  former  is  postponed,  in  like 
Roabarghe —    manner,  to  Roxburghe,  which  dated  by  the  original  creation,  in  1616,  and 
^«r  its  new    has,  farther,the  precedence  accordingly,  of  otftA«o6ow,  even  latterly,  after 
•et  forth.  ^^®  death  of  Robert  first  Earl  of  Roxburghe,  in  1660,  through  the  imper- 

a  mock  imitattOD,  as  it  were,  of  the  Royal  Coronation, — a  termon  being  deli- 
Tered,  with  psalms,  music,  **  Tiotles,'*  sounding  of  Trumpets,  &e.  including  too» 
a  Largtue,  and  other  peculiar  rites  and  observances. 

^  The  actual  fatal  want  here,  of  Earl  Robert's  resignation  of  the  honours,  due 
regrant,  and, the  effects,  &c.,  may  obviously  again  tell  in  the  Buchan  claim. 

'  See  pp.  76-7,  and  what  precedes. 

'  Through  the  Courtesy. 

*  John  Murray,  also  Viscount  Annand,  &c.  This  was  before  the  Earldom  of 
Annandde  bad  been  granted  to  the  Johnstones. 

*  Seep.  1102,  ». 

^  Retrospeetifely  of  that  date,  by  patent  in  16S7,  through  referenee  to  the  pre- 
vious patent  of  the  Mdrote  Earldom,  a  title  latterly  relinquished  by  the  Farafly. 

'  Proved  by  their  patents,  in  the  Great  Seal  Register, — the  Privy  Council  Re- 
gister, Parliamentary  Records,  &c.  &c. 


POSTSCRIPT.  1107 

ative  force  of  his  effectual  resignation,  and  the  regrant  to  him  in  1646, 
&c  in  favour  of  his  subsequent  and  present  heirs— those  entireh/  new, 
and  who  exclusively  took  thereby,— namely,  the  heirs/emo^, — in  pari 
casu  othertDisey  with  the  Lo^ian,^  Sawyers'  MS.  besides,  alluded 
to,  (comprising  a  large  (^uarlo^J  has  a  regular  authentic  list  of  the 
whole  nobility  at  the  outset,  in  precise  conformity  again,  with  the 
order,  (as  given,)  in  the  respective  consecutive  iUuminations,  and  de- 
picted blazonry  of  their  arms. 


Upon  reconsideration,  the  patent  of  the  Earldom  of  Ai^le  in  1663,  The  patent  of 
elsewhere  referred  to,*  is  not,  in  its  nature  and  import,  to  be  assimilated  J^^ln  16^ 
to  that  of  the  Barony  of  Sinclair,  in  1677,  (abstracting  from  a  resigna-  elsewhere  re- 
tion,)  as  bearing  upon  the  matter  discussed  as  to  precedency;*  for  which  ferred  to,  can- 
reason,  owing  to  its  irrelevancy  in  fact,  I  have  not  latterly  noticed  it  in  Jatd    to"the 
thePostscript.  By  our  law,  then,  as  shewn  under  the  head  of  Forfeiture,*  case  of  Sinclair 
the  sole  act  of  the  king^  (differentlyfrom  in  England,)  without  the  aid  of  in    1677,  ab- 

Parliament,  could  rehabilitate  and  restore  against  treason,  the  excep-  »^'»«*»n?  ^^^  * 
'  ~o  »  x-   resignation,  nn- 

tion  in  the  Argyle  instance  ;  so  that  the  Argyle  grant  in  question  truly  der  the  matter 
resolves  into  an  ^ective  restoration  of  Archibald  Campbell,  Lord  Lorn,  of  precedence, 
the  patentee,  (as  it  declares,)  to  all  the  honours  in  the  person  of  the  un- 
attainted  Earl  of  Argyle,  his  grandfather,  or  any  of  his  predecessors, 
thus  putting  him  entirely  in  their  shoes,  and  things  in  (heir  original 
state.  It  is  to  be  observed,  that  there  is,  at  the  same  time,  in  this  giant 
in  1663,'  a  epecial  rehabilitation  of  the  noble  party  to  ** entire  fame" — hon- 
ours, dignities,  and  the  hereditary  armorial  insignia,  &c  with,  inter  alia, 
full  power,  **  gaudere,  possidere,  et  frui,"  the  same  ;  and  added  to  this, 
there  was  even,  though  not  indispensable,  a  subsequent  Parliamentary 
confirmation  of  the  grant,  or  Diploma,  as  it  is  styled,  in  1669.*  The 
former  being  undoubtedly  the  lineal  male  Argyle  representative,  and 
the  heir,  under  their  descent,  to  the  honours— thus  rehabilitated,  and 
puiged  of  the  tadie  attaching  to  his  status,  as  fully,  nay  more  so,  than 
in  the  instance  of  a  valid  modem  Parliamentary  restoration,  whose 
efiect,  so  far,  has  not  been  questioned  in  such  circumstances,' — ^the  Ar- 

^  Proved  by  the  Tarious  deeds  and  authorities  upon  Record,  all  dnly  adduced 
and  admitted  in  the  Roxbnrghe  Peerage  claim  in  1812. 

*  See  pp.  79-80,  761-2.  *  See  pp.  1100-2. 

*  See  Index,  under  Kimg,  1080,  h, 

*  See  Registration  of  same,  in  the  Great  Seal  Record. 
■  AcU  of  Pari,  last  Edit.  toL  YII.  p.  582. 

'  Nay,  it  was  actually  had  recourse  to,  and  fuUy  admitted  in  the  restoration  of 
Frands  Duke  of  Bucdeugh,  in  1743,  to  the  Earldom  of  Doncaster,  inetudimg  the 
old  jprte^denty^  forfeited  by  James  Duke  of  Monmouth,  Earl  of  Doncaster,  &c. 
his  grandfather,  (see  p.  766,  ».  2.) ;  although  Tarious  Earls  created  in  the  in- 
terral,  in  like  manner,  were,  so  (ar,  deteriorated,  and  postponed  in  their  ranking 
and  precedence.     We  have  besides,  many  other  such  undisputed  restorations. 


1108  POSTSCRIPT* 

gyle  eaae,  in  its  distinciiYe  pUaseSy  eannot  be  identifi«d  with,  or  iliastmte 
— ^what  was  in  view, — ^the  point  of  a  oonTeyanee  aliunde^  of  an  old  exist- 
ing honour,  including  its  ancient  preoedenoe,  in  favour  of  a  Hranger^  to 
the  pnyudiee  of  true  existing  heirs.  Both  by  his  Boyal  'and  Parlia- 
mentary restoration,  Archibald  Lord  Lorn,  md  Earl  of  Aigyle,  was 
sknul  et  semel^  diYested  in  htw  of  the  latter  f^wraeter  retroBpectiYely, 
as  far  as  regarded  the  Earldom,  in  totOy  &c— now  fiurly  his,— as  well  as 
ejptunc, 

I  may  merely  now  add,  that  the  Lothian  Parliamentary  Ratifica- 
tion, and  relative  charter  in  1621,  long  ago  alluded  to,  (see  p.  76,)  are 
the  latest  and  only  grants  of  the  kind — as  fiir  as  I  am  enabled  to  dis- 
cover,—so  that  the  original  honours  unresigned,  and  thereby  unafiect- 
ed,  behoTod,  of  course,  to  be  exclusively  regulated  by  the  first  Lothian 
patent  in  1606.  As  things  stand,  this,  I  conceive,  (at  present  at  least,) 
must  be  the  l^al  conclusion. 


CORRIGENDA. 

Page  82,    line    10,  dele  Buchao. 

1054,  21,  for  have  read  has. 

Ibid,  22,/or  they  rea<f  it. 


JAMKS  BUHHXT,  PRIKTES,  KAST  TBISTLZ  STBKET  LAM. 


3  bios  ab3  lOQ  ass