H. L. (Sc.) 1875 MAR PEERAGE. concesse," which is not of any certain interpretation, appearing to me most likely to mean "surrendered." Margaret's son James calling himself Earl of Mar in her lifetime in the charter before referred to, was quoted in favour of a new creation; but his styling himself Earl of Douglas only in other charters is against it. The former is probably the latest in date, and he may have assumed the title if his mother had then surrendered the comitatus to him, which she may have done after her second marriage. John of Swynton is not Lord of Mar, as witness to the charter of James, but is so in the obligation in 1389 after his death. Margaret died in 1390, and was succeeded in the comitatus by her only daughter Isabella, and in the peerage earldom, if such was in existence. She was the wife of Malcolm Drummond. In November, 1390, probably after Margaret's death, he is Malcolm de Drummond, Knight, in a license from the Crown to build a tower at Kindrocht, in Mar. Probably, as John de Swynton was Lord of Mar in right of his marriage with Margaret, Malcolm was unable to assume that title till some arrangement was come to about it. In March, 1391, the King confirms a grant from Malcolm de Drummond, Knight, to John de Swynton, Knight (neither calling himself Lord of Mar in this transaction) of 200 marks annual rent, and in 1393 in a royal charter which granted £40 sterling annually to Malcolm, he is called Lord of Mar, and he bore that title till he died, before March in 1402. He is proved, therefore, to have been about twelve years husband to Isabella after her succession to the comitatus, and yet he never became Earl of Mar. He is Lord of Mar and Garioch, and she Lady of Mar, Garioch, and Liddisdale, in the important charter of the 19th of April, 1400, cited in the notarial copy of it, which is the only charter in evidence made by her in his lifetime. He evidently did not allow her to call herself countess, because she was not entitled to the peerage, which if she had been would have made him earl. He was nearly related to the King, who had married his sister, and was in favour, as is proved by the before-mentioned grant. Under these circumstances, the evidence afforded by the above-mentioned charter of 1400 is conclusive against a continuous succession to the peerage earldom. In the first charter after Drummond's death, she still calls In 1875 MAR herself Lady of Mar and Garioch. In a charter of the 13th ¦ H. L. (Sc.) of March, 1403, she is Countess of Mar and Lady of Garioch. the following year she and her castle were taken forcible possession of by Alexander Stewart, the natural son of the Earl of PEERAGE. Buchan, third son of Robert II., and brother to King Robert III. Without entering into particulars, with which the Committee must be familiar, on the 9th of November, 1404, she surrendered the comitatus to him, calling herself Countess of Mar and Garioch "in purâ et liberâ viduitate," and the same day gave him seisin thereof, and, no longer a widow "elegit in Maritum" in the presence, among others, of the Bishop of Ross, who probably was there for the purpose of performing the marriage ceremony. These charters were confirmed by the King calling her Countess of Mar and Garioch, and the succession to the comitatus was thereby settled on herself and her husband and the longest liver of them, and to the heirs to be then procreated between them, whom failing, to her heirs. These charters related to the territorial comitatus only. Many years after, in 1430, Alexander is shewn to have sat in Parliament as Earl of Mar. Did he assume that title immediately after his marriage? We have evidence before us that this was not the case. From the Forbes charter chest a receipt from him has been produced, dated the 2nd of January, 1405, as Lord of Mar and Garioch only, nearly a month after he had seisin of the comitatus. Soon after, however, he assumed the title of earl. But in order properly to understand this point, and others which follow it, it becomes necessary to enter into the history of Scotland at the time, which I am surprised was not more referred to than it was by the counsel on either side. Robert III. was a man of weak character, and a sickly constitution. His brother, the Duke of Albany, in fact ruled, and is charged with having imprisoned and starved to death the King's eldest son, with the purpose of acquiring the crown. Robert, in order to save his only remaining son James, then about nine years old, from a similar fate, resolved to send him to France, but the ship in which he sailed was taken by the English, and the child sent to London, and kept there by Henry IV., who refused to give him up. This caused his father great grief, and he died on the 4th 1875 MAR PEERAGE. H. L. (Sc.) of April, 1406, when the Duke of Albany became Regent, and the country fell into a sad state of anarchy. What evidence have we of Alexander's transactions during that period? The Regent was his uncle. On the 6th of April and the 6th of September, 1406, he had letters of safe conduct from Henry IV. as Comes de Mar, de Garioch, de Scotia, and on the 11th of December, in the same year, as ambassador, and on the 29th of December, on his return from France. Those documents prove how he was trusted and employed by his uncle, as arbitrary and unscrupulous a man as himself. That he should be allowed to call himself Earl of Mar and Garioch under such authority can be easily accounted for. The Regent was dead before the King's return to Scotland, but some evidence of the character of his acts is afforded by the memorandum from the Exchequer Roll in 1456, from which it appears that he had accepted a surrender of the comitatus of Mar from Alexander, whom the Chamberlain calls " Assertus Comes de Mar" (self-called Earl of Mar), and granted it to him and his natural son Thomas and his heirs. The King, on his arrival, summoned a Parliament in 1424, and commenced active proceedings in regard to the illegal acts done during his minority and absence. Murdo, Duke of Albany, son to the Regent, was tried by his peers and executed; and Alexander, no doubt apprehensive of the questions which might be raised as to the surrender and re-grant of the comitatus under the Regent, made terms with the King. Thus we come to the surrender and re-grant of 1426, when the King confirmed to Alexander and Thomas the comitatus which they surrendered to him (thus acknowledging the validity of what had been done under the Regent) and re-granted it to them, and to Thomas's heirs male, failing whom with remainder to the Crown. This latter condition was probably rewarded by a grant of a peerage earldom, with remainder to Thomas. The policy pursued by the King after his return from England, and which ultimately cost him his life, was to increase the territorial influence of the Crown, and to reduce that of the nobles, and this reversion to the lands of Mar on the death of a youth of perhaps a weak constitution, for he died before his father, was well worth a peerage concession. And we find the first and only proof of Alexander's sitting in Parliament in the charter of James I. in 1429. He died in 1435, and his natural son Thomas having died before H. L. (Sc.) him, the comitatus under the settlement of 1426 lapsed to the Crown. In considering what then occurred, we must again refer to the state of Scotland. James I. had so offended and alarmed the nobility by his acts, that some of them conspired against him, and he was murdered in 1437. His son was a minor, and there was a regency. In 1438 Robert, Lord Erskine, got himself served heir to Isabella in half the comitatus, and notwithstanding the remainder to the Crown in Alexander's settlement of 1426, got possession of that half, as will be hereafter shewn. In 1440 we find him calling himself Earl of Mar, but sitting in Parliament as Lord Erskine. Mr. Hawkins says, "The Crown kept him out of the earldom." Is it credible that a Regency, the result of a rising against the late King, whose acts against the aristocracy the nobles were determined to resist, could have prevented such a man as Lord Erskine from taking a seat in Parliament to which he had lawfully succeeded? If the ancient earldom was in existence as descendible to heirs general, he had a right to it as heir to Earl Gartney. Every peer had an interest in the question of such a succession, and late events had proved that they were not so weak, or the Crown so strong, as to render such a refusal possible. Lord Erskine was not the man, nor in the position, to be so treated. Look at the agreement in 1440, in which the King, with the advice of his council, delivers the castle of Kildrummy to him, and allows that "the revenues of half the Earldom of Mar, which Lord Erskine claims as his own, shall remain with him till the Crown allows him a sufficient fee for keeping the castle," or, in other words, gives him something in exchange for them. It is clear from this document that Lord Erskine was, under the retour of 1438, in possession of half of the lands of the comitatus which the Crown claimed under Alexander's charter, but which the Regency was unable to get from him, and which probably remained with the Erskines until the retour of 1438 was set aside in 1457. It must also be noticed that the ancient peerage, if in existence, descended to him independently of the comitatus as heir general of Gartney, and that the claim of the Crown to the comitatus was based on acts done in relation to it by Isabella and 1875 MAR PEERAGE. H. L. (Sc.) her husband, in no way to be affected by Lord Erskine's possession 1875 MAR PEERAGE. of the peerage. As regards the assumption by him of the title of Earl of Mar, we find that in all the documents in which he so styles himself he invariably adds Lord Erskine, evidently knowing that under the latter designation alone he could act legally. The charter of James II. is conclusive on this point. In it a charter is recited of Robert, Earl of Mar, Lord Erskine, granting certain lands to Andrew Culdane in 1440, which the King confirms in 1449, as a charter of Robert, Lord Erskine. In 1452 the ancient earldom was treated by the King as extinct, for he created his son Earl of Mar; and the royal power was similarly exercised on subsequent occasions, and Robert's successors, none of whom ever assumed the title of Earl of Mar, continued to sit as Lords Erskine, sometimes with newly created Earls of Mar, and sometimes without any such bar to their claiming the title. This undisputed admission of the extinction of the peerage by the Crown under six sovereigns, and by six Lords Erskine in succession, from the death of Alexander in 1435 to the grant by Queen Mary in 1565, a period of no less than 130 years, must be looked upon as a settlement of the question which it would be very dangerous to disturb. Our decision should be governed in a great degree by that which was held to be the law at the time, which appears to confirm the dictum of Lord Mansfield, and to have considered the ancient earldom to have become extinct on failure of heirs male. The argument in support of the grant of the earldom by Queen Mary in 1565 being a restoration, and not a new creation, must be next considered. The last preceding grant of the comitatus was by that Queen to her natural brother James by charter in 1562, in which a right to a seat in Parliament was specially provided, thereby proving (if it were necessary to do so) that the comitatus did not then confer a peerage. James surrendered both in the same year, sitting as Earl of Mar on the 10th of September, and as Earl of Moray on the 15th of October. on the 15th of October. On the 23rd of June, nearly three years afterwards, the Queen granted the comitatus to Lord Erskine in a charter in which she acknowledged him to be heir to Isabella, and that he and his ancestors had been |