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Stewart's widow. And it was said that infeftment not being taken H. L. (Sc.) till November, it could not apply to the April retour, because it was beyond six months after the date of the precept of infeftment by virtue of that retour, and, by the rule in force at that time, such infeftment would have been too late. And, notwithstanding this second retour, it will be found that many years afterwards Lord Erskine persisted in his claim to only half of the earldom.

Pursuing the inquiry as to the conduct of the Erskines during the period when no one held the dignity of Earl of Mar, it appears that after the retours of 1438, Robert, Lord Erskine, in two or three private charters styled himself Earl of Mar; but after a proceeding in 1457, to which I shall presently refer, there is no evidence of any of the Lords Erskine having assumed that title. But all of them, from Robert the first to John the sixth lord, sat in Parliament by their title of Lord Erskine, and not one of them claimed to possess the higher dignity.

After Sir Robert Erskine had, not improbably by means of the purchased assistance of the sheriff depute, succeeded in obtaining in 1438 a retour as heir to Isabella, he seems to have got possession of some part of the lands of Mar, for on the 10th of August, 1440, the King (being then under age) and his council, in order (as it was said) to preserve the peace of the kingdom, entered into an agreement with Sir Robert, then Lord Erskine, under which he was permitted to retain the castle of Kildrummy, holding it on behalf of the King until the King should come of age and then to be delivered to the King, and Lord Erskine was then to make and establish his claim before the King and the Three Estates. And it was further agreed that the fruits and revenues of one-half of the Earldom of Mar which Lord Erskine claimed as his property should be received by him until the judgment were had, he being accountable for them in case judgment should be given against him, and for the King. This agreement proves that the claim of Lord Erskine continued to be to one-half of the earldom only, notwithstanding the two retours of 1438, by which it was asserted he obtained service as heir to the whole. On the 22nd of May, 1449, the King, by letters under his privy seal, directed Lord Erskine and his son Sir Thomas Erskine to deliver up the castle of

H. L. (Sc.) Kildrummy to persons named, and it seems to have been delivered up accordingly.

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Nothing was done towards obtaining a judgment upon Lord Erskine's claim to one-half of the Earldom of Mar until the year 1457, when proceedings were taken against some of the jurors who sat upon the inquest of 1438 for an unjust deliverance of the retour upon such inquest. The delinquent jurors begged pardon of the King, and were pardoned. Then the following proceeding took place. The King with the Chancellor and Lords passed into the town-hall (of Aberdeen) for justice to be done to Lord Erskine with respect to his claim of the lands of the Earldom of Mar. An inquest was chosen. Lord Erskine alleged that the deceased Robert, Lord Erskine, his father, had last died vested and seised as of fee of half of the Earldom of Mar, and that he was the heir of his father. Issue was taken upon this allegation, the Chancellor answering that although Lord Erskine was heir of his father he was not heir to the said lands, and that the lands were in the hands of the King as his own property. Lord Erskine, in support of his claim, produced the charter of Isabella of the 9th of December, 1404, granted upon her marriage with Alexander Stewart; in answer to which the Lord Chancellor, on behalf of the King, publicly produced a certain charter of taillie of the deceased Isabella of a date preceding the date of the other charter" (being Isabella's charter of the 12th of August, 1404) "made to the deceased Alexander, Earl of Mar, her husband, and the heirs lawfully begotten or to be begotten of his body" (the true destination being "to the heirs to be begotten between them ") "whom failing to the lawful heirs of Alexander whomsoever." By virtue of that charter the Chancellor declared the King the true heir and lawful possessor of the said lands, Alexander having died a bastard vested and seised as of fee of the said Earldom of Mar, and the King being lawful heir by reason of bastardy. The jurors retoured that Robert, Lord Erskine, did not die seised of the half of the lands of the Earldom of Mar claimed by him, and that the said lands were in the hands of the King by reason of the death of the late King.

In this proceeding for questioning the claim of Lord Erskine to one half of the Earldom of Mar no mention is made of the charter of the 28th of May, 1426, under which the King became

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entitled to the reversion of the Earldom of Mar, and took pos- H. L. (So.) session of it on the death of Alexander Stewart, his son Thomas Stewart having died in his father's lifetime without issue. Whether this arose from any doubt as to the validity of this charter, or whether Lord Erskine, having relied upon the charter of Isabella of December, 1404, it was thought sufficient to shew that she had disabled herself from making it by her having granted the earlier charter of August, 1404, I am unable to form an opinion.

Thus matters stood for more than one hundred years, when, in the year 1561, Queen Mary revived the title of Earl of Mar by granting the earldom, together with the dignity, to her natural brother James (afterwards the Regent Murray) and his heirs male. He sat on the council as Earl of Mar; Lord Erskine, who was his uncle, sitting with him upon several occasions. He subsequently resigned the dignity and the lands of Mar, and was created Earl of Moray.

I have thought it necessary to go fully into the history of the dignity prior to Queen Mary's charter, because it appears to me that it may materially assist in determining the question of the limitation of the dignity to which the Petitioner lays claim.

On the 5th of May, 1565, being about six weeks before Queen Mary's charter, and not improbably with a view to it, John, the sixth Lord Erskine, procured himself, by a general retour, to be served heir to his ancestor, Robert, the first Lord Erskine, who is styled Robert, Earl of Mar and Garioch and Lord Erskine. It has been already shewn that although Robert, the first Lord Erskine, in some private deeds called himself Earl of Mar, he never publicly assumed that title. And it is a significant fact that, although Queen Mary acted upon this retour and recited it in her charter, she did not adopt the description of Robert as Earl of Mar, but changed it to Robert, Lord Erskine, as if refusing to recognise his right to the higher dignity.

In examining Queen Mary's charter, which is dated the 23rd of June, 1565, it must be borne in mind that it does not relate in any way to the dignity of Earl of Mar, but only to the earldom or comitatus, which is described as containing the lands of Strathdone, Bramar, Cromare, and Strathdee, and is granted, together with the Lordship of Garioch, to John, Lord Erskine, his heirs and

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H. L. (Sc.) assigns. It is clear that this could not have been the ancient earldom or comitatus with which the dignity was originally connected, because it no longer existed in its entirety, part of the lands having been severed from it and vested in strangers, and other part having been annexed to the Crown by Act of Parliament.

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The charter contains recitals which if the slightest inquiry had been made would have been ascertained to be false. For instance, it is stated that John, Lord Erskine, was retoured as lawful heir of Robert, Lord Erskine, the heir of Isabella in respect of the earldom; whereas his service was a general service as heir, and of course without application to the lands; and if it had been a special service, he could not have been found heir to more than half of the earldom, which was all that Robert, Lord Erskine, ever claimed. Again, the charter recites, in strong terms, that John, Lord Erskine, had the undoubted hereditary right to the earldom, lordship, and regality, notwithstanding his predecessors were unjustly kept out of possession of the same. Now, in addition to the fact of the claim of the Erskines having been invariably confined to half of the earldom, if either the charter of the 12th of August, 1404, or that of the 28th of May, 1426, was valid (and there is nothing, apparently, to impeach either of them), the possession of the Crown was by title and not by usurpation. At this time, also, the solemn adjudication against the claim of Lord Erskine to one half of the earldom upon the inquest held in 1457 had not been in any degree impeached. And the alleged "undoubted hereditary right" had been allowed to slumber during the whole of the long period of the Crown's possession of the lands.

The charter, singularly enough, contains two distinct and separate grants of the earldom or comitatus. One founded upon the restoration of an inheritance of which the grantee's predecessors had been unjustly deprived, and also upon their good services to the Queen's predecessors; the other expressed to be "for good and faithful services," without more. An explanation of this double grant was suggested in argument founded upon what Lord Mansfield said in the Cassilis Case (1), viz., “Charters (1) Maidment, p. 53.

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pass periculo petentis. Many lands are inserted in charters to H. L. (Sc.) which the grantee has no title; nothing can pass by such right." Therefore it was said, that as the first grant in the charter was founded upon an allegation of a title which the grantee never possessed, it was liable to challenge on that ground, and out of abundant caution the grant on account of services alone was added.

As already observed, Queen Mary's charter contains nothing with respect to the dignity of Mar. This, I think, was not disputed in the argument, and it is proved by the fact that the charter being of the date of the 23rd of June, the grantee sat almost daily in the council from the 8th to the 28th of July as Lord Erskine, and appeared at the board for the first time as Earl of Mar on the 1st of August. He must, therefore, have obtained the dignity by creation in some other way than by charter before this day. The question arises when and how did this creation take place? There is no writing or evidence of any kind to assist us. It was suggested, with great probability, that Queen Mary's marriage with Lord Darnley having taken place on the 30th of July, and Lord Erskine having sat in the council by his old title of Erskine on the 28th of July, and as Earl of Mar on the 1st of August, he must have been created an earl upon the occasion of the marriage, and by a ceremony well known in those days called "belting." To this it was objected, that according to the remarks of Lord Hailes upon the Spynie Case (1), this ceremony could only take place in Parliament; and that, if this was the manner of the creation, some record of it would have appeared. But Lord Loughborough, in the Glencairn Case (2), proved that Lord Hailes was in error in limiting, as he did, the place of the ceremony of "belting," for he mentioned three cases of the creation of earls by belting elsewhere than in Parliament.

Whether Lord Erskine's creation was in this particular form and manner seems to me not to be very material. It is certain that he must have been created Earl of Mar about the time of the Queen's marriage; and as no record of the creation is in existence, the limitation of the dignity must be left to the ordinary presumption of law, unless there is something in the case to rebut this (1) Maidment, p. 11. (2) Maidment, p. 16.

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