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REPORT 
 
 OK 
 
 THE SPEECHES OF COUNSEL, 
 
 AKD OF 
 
 THE LORD CHANCELLOR AND LORD ST. LEONARDS 
 
 IN MOVING THE RESOLUTION, 
 
 UPON THE CLAIM OF 
 
 JAMES EARL OF CRAWFORD AND BALCARRES 
 
 TO 
 
 CREATED IN 1488:- 
 
EEPORT 
 
 or 
 
 THE SPEECHES OF COUNSEL, 
 
 AND OP 
 
 THE LOED CHANCELLOR AND LORD ST. LE0NAED8 
 
 IN MOVING THE RESOLUTION, 
 
 UPON THE CLAIM OF 
 
 JAMES EARL OF CEAWFORD AND BALCARRES 
 
 TO 
 
 Ztt Original Haufeetrom oi Montxo^t 
 
 (CREATED IN 1488), 
 
 AS EEFEEKED TO THE HOUSE OF LOEDS BY HEE MOST GEACIOUS MAJESTY THE QUEEN, 
 FOE THEIE ADVICE AND OPINION THEEEUPON : 
 
 PKECEDED BY AN 
 
 ADDRESS TO HER MAJESTY, 
 
 m HUMBLE REMONSTEANCE AGAINST THE OPINION REPORTED TO HER MAJESTY; 
 
 AND BY AN 
 
 ANALYSIS OF THE ARGUMENT 
 
 AS BETWEEN THE CLAIMANT AND THE OFFICEES EEPEESENTING THE CEOWN, WITH THE 
 OPINIONS OP THE COMMITTEE OF PEIVILBGES, POINT BY POINT, THEOUGHOUT : 
 
 AND FOLLOWED BY AN 
 
 APPENDIX, 
 
 CONTAINING THE LEADING DOCUMENTS ADDUCED AND EEFEEEED TO, AND THE 
 
 OEAL EVIDENCE DELIYEEED, 
 
 BY AND ON BEHALF OF 
 
 IN THIS CASE. 
 
 BY LORD LINDSAY. 
 
 " MAGNA EST VERITAS, ET PR^VALEBIT ! " 
 
 LONDON: 
 
 JOHN MURRAY, ALBEMARLE STREET. 
 
 1855. 
 
LONDON : PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STREET, 
 AND CHARING CROSS. 
 
ADVERTISEMENT AND INTRODUCTION. 
 
 IjST preparing this Eeport I have held two leading objects in view :— First, that the 
 Speeches of the Learned Counsel who represented the Claimant and the Crown before the 
 Committee of Privileges, and those of the Noble aiid Learned Lords who moved the 
 Kesolution upon the Claim, should be recorded exactly as they were uttered, without 
 amendment, abridgment, or alteration, as taken down by the Short-hand Writer of the 
 House of Lords, and furnished indifferently to the interested parties ;* and, secondly, that the 
 Header who may honour the subject with his consideration should have before him — gathered 
 into one volume, sufficient unto itself, without any necessity for ulterior reference — everything 
 essential and requisite, whether in the shape of argument or of evidence, in order to enable 
 him to form an impartial and just estimate of the merits of the Claim, as between the 
 Claimant, on the one hand, and those who have opposed his pretensions and reported 
 adversely thereupon to Her Majesty, on the other. 
 
 I might easily, indeed, have presented the marrow of the matter in a narrower 
 compass, and have reported the ' Montrose Claim ' in a pamphlet instead of a folio ; but, 
 apart from this fuller and more detailed record of the ipsissima verba of those Learned 
 Gentlemen who opposed my father, and of the evidence at large on which the Claimant and his 
 opponents respectively relied, I could not, as an interested party, expect that others should 
 feel satisfied with a Report, proceeding from myself, of such curtailed dimensions. The very 
 fact, moreover, that I cannot acquiesce in the Resolution reported to Her Majesty as a final 
 decision — that I have prefaced this Eeport by an Address to Her Majesty, remonstrating 
 against that Resolution, and appeahng to the Fount of Honour for redress against what I deem 
 an Opinion at variance with the evidence before the Committee who have furnished that 
 Opinion — this very fact renders it a matter of simple justice to all parties that I should adopt 
 the more onerous alternative ; and that, in preferring a complaint of so grave a nature, I 
 should at the same time furnish Her Majesty, and all others whom it may concern, with the 
 means of testing and verifying my representations. I know well the extent of error into 
 which the habit of hasty assumption and undue inference — of taking facts for granted without 
 examination, and of making those assumed facts a leaping-pole to a preconceived conclusion — 
 may betray men. I desire nothing, therefore, to be believed or taken for granted in this 
 matter except what stands established by legal proof in the present volume. 
 
 The very interest, indeed, of some of the questions discussed between Her Majesty's 
 Learned Counsel and the members of the Committee of Privileges during the consideration 
 of this claim, and the ability and reputation of those who engaged in that discussion, might 
 render any apology for such a detailed Report superfluous. But, independently of this, on 
 broad and national considerations, it is right and fitting that a Case, which must ever hereafter 
 
 * This does not, of course, apply to such slight verbal emendations as would have been inevitable in printing from any 
 similar manuscript, — as, for example, the substitution of the word ' documents ' for ' dockets,' of ' instrument ' for ' invest- 
 ' ment,' of ' cause ' for ' clause,' of ' resignation ' for ' recognition,' &c. &c. — all of them evidently mere clerical errors. Where 
 anything occurred less obvious to comprehension, the words have been allowed to stand, unaltered, as they appear in the 
 transcript, and occasionally with the addition of the word ' sic,' in order to draw attention to the difficulty presented. But I 
 may be allowed to testify, from close observation, to the extraordinary accuracy with which Mr. Gurney discharged his 
 duty on the late occasion. 
 
 a 2 
 
[iv] ADVEETISEMENT AND INTRODUCTION. 
 
 be cited and referred to as a dominant and leading case in Scottish Peerage Law, and which 
 marks in fact an epoch and revolution in the history of that Law, should be recorded with a 
 fulness and precision commensurate with its importance. And if the publication of this 
 Eeport shall deter one single aspirant, by the example of the present Claimant, from 
 prosecuting his pretensions to an ancient dignity in the manner hitherto adopted m parallel 
 cases (till, at least, the fundamental principles of Peerage Law have reasserted their ancient 
 force and supremacy)— if one such aspirant be preserved by the perusal of this volume, and 
 by the warning I now convey to him, from the expense, from the delay, from the vexation of 
 spirit, from the waste of time and energy, from the disappointment of not unreasonable 
 expectations grounded on the presumption that the landmarks of law are fixed and certain, and 
 that consistency prevails in high places— and, last, not least in consideration, from the shock 
 to the finer sensibilities of a gentleman attendant upon the prosecution of a Peerage claim in 
 the nineteenth century— if the salvation of such a man from such a position be secured by 
 the labour of which I now dismiss the perhaps otherwise unprofitable fruit and issue — that 
 labour will not have been undertaken in vain. 
 
 The ensuing pages consist (as indicated on the preceding Title, and as will further 
 appear on reference to the Table of ' Contents ' immediately subsequent to this ' Advertise- 
 ' ment and Introduction ') of an Address to Her Most Gracious Majesty — of an 
 Analysis of the Argument — of the Speeches, which form the text and substance 
 of this Report — of an Appendix of Evidence — and of a Gteneral Index. The 
 Address and Index will speak sufficiently for themselves ; but I have a few observations 
 to offer on the subject of the remaining portions of the volume, and especially with reference 
 to the Analysis of the Argument, just mentioned. 
 
 I would state, in the first place, that, owing to an anxiety entertained by the Claimant 
 to furnish the Committee of Privileges, while engaged in considering his claim, with the 
 Speeches of his Learned Counsel and of the Officers of the Crown in print — but which an 
 unwillingness to circulate the former before those on behalf of the Crown should be also 
 ready, and the peremptory and unexpected decision of the Committee (pronounced before 
 even the evidence had been printed and examined by the Committee), rendered ultimately 
 superfluous — the Speeches of Counsel, as presented in the present volume, were printed, as 
 they now appear, without any notes or comment. Such comment would have been most 
 useful, on many accounts ; and the detriment to the Claimant's interest arising from its 
 absence (an unfavourable Opinion having been come to by the Committee) suggested the idea 
 of the Analysis in question. 
 
 That Analysis exhibits the argument for the Claimant and the Crown respectively — 
 stripped of the innumerable but inevitable repetitions, the occasionally irrelevant but enforced 
 disquisitions, and the momentary slips and inconsistencies, attendant upon oral pleading, 
 especially upon so vast a scale — in a word, of everything that could disguise its leading 
 principles and broad proportions — as finally eliminated and brought out in the course of the 
 discussion, and thus presented, point by point, as advanced, impugned, defended, and decided 
 upon, to the judgment of the Eeader, — the argument reposing on the Claimant's ' Case ' and 
 ' Supplemental Case ' as its back -bone, but with every additional illustration struck out by the 
 acumen and learning of his English counsel while pleading his cause ; and the Objections of 
 the Crown being given in the actual words used, and in the strongest sense and force of those 
 words, insomuch as, by combining and concentrating their efiect, to give the argument 
 against the Claimant a prominence, a precision, a vigour, and a distinctness, even surpassing 
 
ADVERTISEMENT AND INTRODUCTION. [v] 
 
 (as I believe) that with which it was originally delivered, either by the Learned Counsel at 
 the bar or in the papers of the Noble Duke (His Grace of Montrose) from which they 
 borrowed the materials, and in many cases the actual language, of their opposition : — While 
 the Opinion of the Committee upon the separate points thus successively mooted by the 
 Claimant and the Crown closes the controversy in each particular instance. 
 
 I will not deny that I felt great anxiety in undertaking this Analysis, lest an 
 unconscious bias should pervert my judgment ; but, having kept this attendant risk steadily 
 before my eyes, I feel persuaded and secure that the Analysis in question presents a faithful 
 picture of the argument, pro and con, as laid before the Committee, in the manner above 
 stated, in this case. And if a doubt should arise on any point, I have (as premised) furnished 
 the means of inquiry and satisfaction ; and the doubtful point may be tested through reference 
 and cross-reference to the original sources of intelligence, the documents and oral evidence 
 included in the Appendix to this Report. If errors have escaped me or oversights have been 
 committed (as may well be the case where no less than seven Speeches were to be analysed, 
 and their warring and unruly members reduced into relative order, harmony, and connection), 
 the Reader will impute those errors and oversights to the difficulty of a task which no one 
 who has not attempted a labour of a similar nature can duly estimate. It is because I 
 think it impossible for Truth to be subjected to too severe an ordeal, that I have submitted 
 her in this instance to what I believe to be the most searching of all — an Analysis, cruel and 
 pitiless, such as that which precedes the text of this volume. 
 
 The Speeches of the Noble and Learned Lords (the Lord Chancellor and Lord 
 St. Leonards), who moved the Resolution submitted to Her Majesty, are annotated, as will be 
 seen, with reference to the views respectively maintained by those Noble and Learned Lords 
 on the subject of the present claim. 
 
 And, finally, the Appendix presents the leading Evidence adduced and founded upon 
 by the Claimant and the Crown — whether oral, as delivered by the respective witnesses at the 
 bar of the House of Lords, or documentary, as printed partly in the ' Minutes of Evidence ' 
 in this claim, and partly in the ' Acts of Parliament ' and other public records, published 
 under the authority of the Record Commission and of Parliament, and which published 
 ' Acts ' and records were referred to both by the Claimant and his opponents (under sanction 
 of the Committee, as in similar cases) as of sufficient authority, without production of the 
 originals. The more important of these documents, written in Latin, Norman French, or in 
 the older Scottish language, are accompanied in this Appendix by translations into English. 
 The ancient orthography has been preserved ; * words abbreviated in the original manuscript, 
 and so printed, in facsimile, in the ' Minutes ' and published records, have been extended to 
 their full length ; punctuation has been introduced, for the sake of intelligibility ; and Italic 
 and Capital letters are employed, in order to indicate the passages specially bearing on the 
 argument, alike on behalf of the Claimant and the Crown.f In a word, I have adopted 
 
 * With this exception, — that the Saxon 'h' — or, as it has been more recently (but erroneously) written, '?/' — is 
 printed ' tli ;' and the interchangeable letters ' u ' and ' v ' are printed according to the particular sound that each was intended 
 to express when used, — e. g., ' verity ' instead of ' uerity,' ' useful ' instead of ' vseful,' &c. 
 
 t I would observe here that, on the proofsheets of the ' Minutes of Evidence ' for the Claimant — in which Capitals and 
 Italics had been employed (as on former occasions) to indicate the passages relied on by the Claimant — being submitted to the 
 Agents for the Crown (and for the Duke of Montrose) in this case, those gentlemen objected to the use of such marks of 
 indication, and, on the Claimant demurring to that objection, applied to the proper authorities under such contingency, who 
 decided against their admissibility. The Claimant, of course, bowed in obedience, expunged the offensive lights to intelligence 
 throughout his portion of the ' Minutes,' and reduced the whole to one smooth unrippled sea of Roman uniformity. I 
 cannot, however, but remark, that the advantage of using Capitals and Italics would have been equally at the command of the 
 representatives of the Crown, — nor can I but infer some apprehensive misgivings on their part as the motive of their appeal to 
 the authorities, who have thus decided in favour of the " Cimmerian darknejs" in which all parties adverse to the Montrose 
 claim would appear to delight to dwell. Be that, however, as it may, I would call attention to the fact, that this decision is 
 (as in so many instances attending the present claim) at variance with past and familiar usage and precedent, — Capitals and 
 Italics having been employed, without objection being raised, and more or less frequently, in the ' Minutes of Evidence ' in 
 
[vi] ADVERTISEMENT AND INTRODUCTION. 
 
 every means in my power to place the evidence as accurately and comprehensibly as possible 
 before the Eeader. I have, especially, printed a series of ' Decreets,' or Judgments, delivered 
 in the matter of the Earldom of Glencairn and the relative precedency of the Earls of 
 Glencairn and EgUnton by the Supreme Civil Court of Scotland, and by the (rebel) Parlia- 
 ment, in the sixteenth and seventeenth centuries— a series bearing in the most pointed manner 
 (as will be perceived) upon the merits of the present claim— after an unwonted, although not 
 unprecedented fashion. Like other similar documents, they lie imbedded in the public 
 Register like fallen trees in a neglected forest— half visible .above the surface, half buried in 
 the soil— their dignity obscured, and their fair proportions veiled, to the passing stranger. It 
 is in this unseemly and repulsive shape, intelligible only to a professional or practised eye- 
 without punctuation— with vast capital letters, frequently misplaced and indicative of nothmg, 
 attracting only to disappoint the eye— without break or division into sentence or paragraph— 
 and with the errors of original inscription unrevised and uncorrected — that the Decreets m 
 question figure, necessarily and rightly, in the ' Minutes of Evidence ' in this, as in other 
 claims ; where every minor consideration is sacrificed to the expediency of preserving the 
 evidence adduced in its exact and primitive form and presentment. But they all follow a 
 uniform and consistent march and progress, full of formal grace, beauty, and propriety ; and 
 in printing them in this volume, for the satisfaction of all descriptions of readers, I have 
 arranged them in distinct and consecutive paragraphs and divisions, according to their natural 
 anatomy and structural development, after the fashion current in parallel cases in an earlier 
 and more scholastic age, but without (of course) taking the slightest liberty with their words 
 or language. I have subjoined, moreover, in each instance, a brief Analysis, conveying the 
 marrow of the document ; and which may serve as a ready guide and index to any portion of 
 its contents.* 
 
 The Decreets alluded to, and most of the leading documents founded upon in this 
 claim, and printed in the Appendix which is the subject of these observations, are given in 
 extenso. But this has not been the case universally. In some cases, where no possible con- 
 sideration existed to the contrary, the proofs have been abridged — every instance where that 
 occurs being, however, distinctly specified. The bulk of the volume would otherwise have 
 been greatly increased. For this reason, also, many of the pieces of evidence adduced by the 
 Officers for the Crown against the Claimant are not printed at all in this volume, inasmuch as 
 the Claimant admits, fiilly and distinctly, and has not only never denied, but actually in many 
 instances asserts and founds upon the very facts which that evidence is adduced to prove. 
 Moreover, while the Minutes of Proceedings and Evidence on behalf of the Claimant have 
 been conducted by him through the press (under the supervision of the agents of the Duke of 
 Montrose, as deputed for that purpose by the Officers for the Crown), the Minutes for the 
 
 my father's claim to the Earldom of Crawford (to which claim the strongest opposition was offered by the Crown) in 1848 ; 
 in the Perth claim, decided (ultimately) in 1853 ; in the Camoys claim, in 1838 ; in the Braye claim, in 1836; in the 
 Borthuik, Hastings, and Wharton claims, and in various others. In the ' Minutes of Evidence ' in the Crawford claim, for 
 example — in which some of the documents extend to eight, ten, and twenty closely printed folio pages — the Committee of 
 Privileges would have found considerable difficulty in discovering the passages relied upon by the Claimant — "rari nantes in 
 " gurgite vasto " — without the aid of Italics. The rule now laid down will occasion equal embarrassment to future Committees 
 of Privileges — unless indeed the precedent established in the present case of deciding without examination of the printed 
 ' Minutes of Evidence' be adhered to. 
 
 * I would here state, that occasional differences in point of orthography may be observed between the evidence, 
 especially the Decreets above mentioned, as printed in the Appendix from the official ' Minutes,' and the citations from that 
 evidence as given in the Speeches of Counsel, infra . The discrepancy is in the orthography only, not in the words or 
 phraseology, and it is therefore scarcely worth while adverting to the circumstances which occasioned it ; but I may mention 
 as the cause of this discrepancy, that the ' Speeches ' were printed off (as has been above stated) before the ' Minutes of 
 ' Evidence' were in type, and that the citations in those 'Speeches' were inserted from a series of separate sheets on which 
 the Decreets were hurriedly printed by the Claimant during the course of the discussion for the convenience of Counsel and 
 of the Committee — but which it was found impossible to correct as minutely as could be wished, owing to the pressure of time 
 and the exhaustion of the Claimant's professional friends and other assistants occasioned by the overwhelming labour and 
 anxiety imposed upon them. — It is to those separate sheets, thus hurriedly and gratuitously printed by the Claimant, that the 
 remark of the Lord Advocate applies, at p. 244, lines 28 sqq., infra. 
 
ADVERTISEMENT AND INTRODUCTION. [vii j 
 
 Crown have not as yet been communicated to him.* I have, however, inserted under the 
 proper heads, from the 'Minutes of Proceedings,' as furnished to me, in M.S., by the Short- 
 hand writer, the descriptions and purport of all the documents adduced by the Officers for 
 the Crown, as stated by their agents at the bar of the House, and the oral evidence on other 
 points, verbatim, as there delivered on their behalf, so that nothing may be wanting to the 
 comprehension and appreciation of the case for the Crown in this matter.f 
 
 Before closing these preliminary pages, I would avail myself of this favourable opportunity 
 to express my father's and my own most sincere acknowledgments to the able and learned 
 members of the English bar who assisted us in the exposition of my father's claim before the 
 Committee of Privileges. Even had the Opinion of that Committee been final and irremedi- 
 able, I could not deem a claim unfortunate which has bequeathed to us the friendship and 
 regard of Sir FitzKoy Kelly, Sir Richard Bethell, Mr. Stuart Wortley, and Sir John Bayley. 
 It is due to these gentlemen that I should state, that the present volume has been prepared 
 without their participation or knowledge. They might possibly dissent from not a few of my 
 comments, inferences, and conclusions. 
 
 Any acknowledgment to my friend and father in genealogy and peerage law, 
 
 would be, in truth, superfluous. I have no words to express the value of his advice and 
 assistance, or the zeal and kindness with which it has been rendered to me for years on all 
 matters bearing upon the history or honours of the Lindsays. But I may associate with his 
 name that of James Carnegie, Esq., Writer to Her Majesty's Signet, Edinburgh, as having 
 co-operated with Mr. Eiddell and myself throughout the claim with a friendly and unwearied 
 zeal, equalled only by his clear and acute intelligence, and extensive and accurate knowledge 
 of Scottish law. I would also record the name of George Melville, Esq., as of a gentleman 
 whose skill in deciphering, and accuracy and clearness in transcribing ancient Scottish records, 
 public and private, for the purpose of adduction and use in this claim, have been of essential 
 service to us. And I should add, that the firm of Messrs. Law, Holmes, Anton, and 
 Turnbull, of Fludyer Street, Westminster, have afforded us, as Parliamentary Agents — 
 and principally in the person of the senior partner, James Law, Esq. — a zealous and active 
 assistance throughout the proceedings connected with the claim. 
 
 To the public officers connected with Her Majesty's General Register House, and 
 with the Libraries of the Faculty of Advocates and of the Writers to Her Majesty's Signet, 
 as well as to the municipal authorities of many Scottish burghs — of Dundee, Arbroath, 
 Montrose, Forfar, Perth, and Brechin — whose archives held forth the prospect of information 
 and assistance, we have been indebted for unvarying and impartial courtesy and consideration. 
 Under this category I would especially note the names of David Dakers Black, Esq., of Ker- 
 gord. Town Clerk of Brechin, whose important oral evidence may be found in the Appendix 
 to this Report ; of George C. Myers, Esq., Town Clerk of Montrose ; of Christopher Ker, 
 Esq., and William Barry, Esq., joint Town Clerks of Dundee ; J of James David Haig, Esq., 
 
 * The Claimant, I would observe, does not consider it incumbent upon him to bestow upon the Evidence for the 
 Crown the same minute verbal and literal criticism which has been applied to his own by the agents deputed by the Crown. 
 The responsibility for the accuracy of the Crown evidence, as printed in the ' Minutes,' will of course rest with the agents 
 for the Crown exclusively. 
 
 t A Bibliographical catalogue of the various Cases, Abstracts, and other papers, which have been printed for official 
 or private distribution by my father, by his Grace the Duke of Montrose, and otherwise, in the course of the present claim, is 
 subjoined to this 'Advertisement and Introduction.' 
 
 t Messrs. Walker and Gloag, writers, Dundee, and James Condie, Esq., writer, Perth, also rendered most obliging 
 co-operation and assistance. 
 
[viii] ADVEETISEMENT AND INTRODUCTION. 
 
 Assistant Librarian of the Advocates' Library; of George Brown Eobertson, Esq., 
 Assistant Deputy Keeper of the Records— whose valuable evidence may also be found m 
 the ensuing pages ; and of David Laing, Esq., Keeper of the Library of the Writers to 
 Her Majesty's Signet. While, South of the Tweed, I would offer a similar and respectful 
 acknowledgment to that venerable and most courteous and accomplished gentleman and 
 scholar of the old school. Sir Henry Ellis, K.H., of the British Museum ; and to Sir Francis 
 Palgrave, K.H., Deputy Keeper of the Public Eecords of England, who, in the midst of his 
 vast and recondite labours, has more than once answered like an oracle to questions proposed 
 by myself in difficulty, and whose profound knowledge and graphic pen have already shed such 
 light, and will continue to shed more, on the early history and antiquities of our Saxon and 
 Norman progenitors. Among literary and antiquarian friends of this description, I have 
 been further indebted for many valuable hints and criticisms to James Maidment, Esq., 
 to Mark Napier, Esq., and to W. B. D. D. TurnbuU, Esq., Advocates— all of them the 
 editors or authors of well known works on Scottish history and antiquity, civil and eccle- 
 siastical—and to Robert Pitcairn, Esq., W.S., the learned and laborious editor of the 
 ' Criminal Trials of Scotland,' and author of the vast and accurate Digest of the Great Seal 
 Register, undertaken and executed under the Record Commission, and preserved in M.S. 
 in the national repository of the Scottish Records in Edinburgh. 
 
 I would here also express ourselves gratefully beholden to many noble peers, lesser 
 barons, and gentlemen of Scotland, who permitted their family repositories to be searched, 
 and their ancient charters and muniments to be made use of, with the view of elucidating 
 truth in this claim — and, in especial, to the representative of the graceful and refined Seytons 
 and of the chivalrous Montgomeries, with whose ancestral honours of Eglinton and Wintoun may 
 now be associated (through the discoveries recorded in the present volume) the additional style 
 of ' Earl of Montgomery -,' to the Earl of Strathmore, the heir of the house of Glammis, for 
 ages associated with the Lindsays either in amity or warfare ; to the Marquess of Tweeddale ; 
 to the Earls of Fife and Glasgow ; to him whom I hope to address ere long (through Her 
 Majesty's grace and favour) by his ancestral and restored title of Earl of Southesk ; to Sir 
 John Ogilvie, Bart., of Inverquharity, in whose remembrance the feuds of ancient times live 
 only as suggestive of cordiality and good will ; to Viscount Arbuthnot ; to Lord Kinnaird ; 
 to Lord Panmure— to whose care of the ancient ruins of Edzell, in Forfarshire, Scotland and 
 the Lindsays will be indebted for the preservation of much curious and interesting sculpture, 
 illustrative of early art in Scotland ; to Lord Torphichen ; to the Earl of Northesk — with 
 whose name I may associate in gratitude that of Father Theiner of Rome, who, at his kind 
 instigation, devoted laborious hours in the Vatican to the behoof of my father in the present 
 claim ; to John Guthrie, Esq., of Guthrie, whose ancestors and my own lived of old in close 
 feudal alliance; to the honoured memory of Patrick Chalmers, Esq., of Aldbar — whose loss 
 has been mourned so sincerely by Scottish antiquaries ; to the late William Burn Callender, 
 Esq., of Prestonhall ; to James Yeaman Milne, Esq., of Murie ; to James Dewar, Esq., of 
 Vogrie ; to Robertson Chaplin, Esq., of CoUiston ; to our hereditary friends John Smith 
 Cuninghame, Esq., of Caprington, the representative and heir of that very ancient and baronial 
 branch of the House of Glencairn, and Alexander Smith, Esq., W.S. ; to F. L. Scrymgeour 
 Wedderburn, Esq., of Wedderburn ; to Alexander Clayhills, Esq., of Invergowrie ; to John 
 Speid, Esq., of Ardovie; to William Fullarton Carnegie Lindsay, Esq., of Spynie and 
 Boysack, the representative of the Lindsays Lords Spynie, the history of whose ancient 
 barony exhibits niany singular points of resemblance to that of the Dukedom of Mon- 
 trose ; to Lord Douglas, of Douglas, the heir and representative of Archibald ' Bell-the- 
 'Cat,' Earl of Angus, the leader of that great revolution, in 1488, which forms the historical 
 background to the investigations comprised in this volume ; to Sir Alexander Grierson 
 Bart., of Lag, whose ancestor died gallantly on the field of battle in defence of his 
 
ADVERTISEMENT AND INTRODUCTION. [ix] 
 
 unhappy Sovereign, King James the Third; to the Hon. Mrs. Bellamy Gordon of 
 Kenmure, the heir of one of that monarch's most faithful and attached followers, as well as of 
 the " young Lochinvar " and of the " gay Gordons " of the Border ; to Lord Gray, of Gray, 
 the friendly representative of the successful rival and enemy of David Duke of Montrose, 
 — and also, as to a common friend, to Colonel Murray Belshes, the proprietor of the classic 
 and lovely domain of Invermay ; to the Fotheringhams of Powrie, the close and beloved 
 allies and kindred of the House of Crawford in earlier days, and whose ancestor, the contem- 
 porary of David Duke of Montrose, after rescuing him from captivity in childhood, and tem- 
 pering the bright flush of his early fortunes by the corrective shadow of his maturer experience, 
 stood faithfully by his side, firm as a rock, throughout the few and darker years that closed his 
 chequered career ; and lastly, to Robert Gray, Esq., the owner of the site and the relics of 
 the ancient palace of the Earls of Crawford and of the Duke of Montrose at Dundee, — as 
 well as to the agents and representatives of these noble peers and gentlemen, who kindly 
 aided and facilitated the concessions of their principals in our favour.* Nor must I omit to 
 record the less disinterested services and sympathy of many members of my own clan and 
 race, in various ranks of life, who have felt themselves individually and generically identified 
 with the success of this claim ; or the frequent and valued expressions of interest which have 
 reached me from absolute strangers, volunteering information or suggestions — for which I 
 may here express publicly my sincere obligation. 
 
 And, finally^ I would offer my acknowledgments to our professional opponents, 
 Scottish and English, in the recent claim, for having seconded and responded to my anxious 
 wish, that, whatever zeal and determination might be displayed, however sharp and uncompro- 
 mising might be the strokes exchanged, on either side, in vindicating the views respectively 
 maintained d Voutrance in the field of honour before Her Majesty, personal courtesy and 
 private good will might never fail between the combatants. That this aspiration has been 
 fulfilled (as I believe to have been the case on all sides) may be a gratifying reflection even 
 to an unsuccessful leader at the close of the well fought day. 
 
 * Among these gentlemen I may indicate David Cowan, Esq., W.S., who appeared and gave evidence before the 
 Committee of Privileges as representative of the Earl of Eglinton and Wintoun ; and David Welsh, Esq., W.S., who 
 appeared in like manner for the Hon. Mrs, Bellamy Gordon, of Kenmure. 
 
 Balcarres, ^Ist December, 1854. 
 
 Bibliographical Catalogue of the Cases and other papers printed, either for official or private distribution, in 
 the course oft.lie Montrose Claim. — (Referred to supra, p. [vii], note f.) 
 
 1. " Case of James Earl of Crawford and Balcarres, etc., claiming the Title, Honour, and Dignity of the 
 " original Dukedom of Montrose, created in 1488." — Folio. 
 
 2. " Abstract of the Case of James Earl of Crawford and Balcarres, etc., claiming the original Dukedom 
 " of Montrose, created in 1488 ; as drawn up by John Riddell, Esq., Advocate."^Octavo. 
 
 3. " Case for James Earl of Crawford and Balcarres, etc., claiming the Honour and Dignity of Duke of 
 " Montrose, derived from the Royal Burgh of Montrose, as created in 1488, with reference to the Petition and 
 " alleged Right of James Duke of Montrose to be admitted as a party in opposition to the said Claim." — Folio. 
 
 4. " Abstract of the Case drawn up by John Riddell, Esq., Advocate, for James Earl of Crawford and 
 " Balcarres, claiming," &c. &c., " with reference to the Petition and alleged Right of James Duke of Montrose 
 " to be admitted as a party in opposition to the said Claim." — Octavo. 
 
 b 
 
[xii] 
 
 CONTENTS. 
 
 Page 
 Montrose was moreover specially recognised by the Crown and enjoyed by 
 the Duke subsequently to the Act Rescissory and before the Regrant, 
 which the Earldom of Glencairn was not xxx sqq. 
 
 ii. Inasmuch as it has been, and i&, the gracious usage of the Crown to reverse 
 Attainders and Forfeitures incurred through Tkeason and Eebellion, 
 as in the recent case of the Reversal of the Attainders aiFecting the Earldom 
 of Perth, and others too numerous to specify ...... xxxvil. 
 
 And, 
 iii. Inasmuch as the Act, to which the effect of Attainder (although without 
 trial or conviction) has been now for the first time attributed, and by which 
 (as it is ruled) the Claimant's family have been excluded from their inherit- 
 ance for 350 years, was in punishment — not of Treason and Rebellion, but 
 (as by the very terms of the Act) of Devoted LoYALTr — as rendered by 
 David Duke of Montrose to his lawful Sovereign, King James the Third, 
 Her Majesty's ancestor, from whom She directly derives and inherits Her 
 rights as Queen of Scotland ......... xxxix. 
 
 For which causes, therefore, the Claimant prays Her Majesty, of Her Royal 
 Grace, to restore to him and to his family the Dukedom of Montrose, in the 
 manner indicated, per modum justitice — as in the case of the Earldom of Marr in 
 1555 and in that of the Barony of Stafford in 1824, Precedents strictly applicable to 
 the case of the Claimant ........... xl sqq. 
 
 Postscriptum to the preceding Address, (19th July 1854) 
 
 sqq. 
 
 APPENDIX TO THE ADDRESS. 
 
 I. Illustrations of the form adopted in Acts of Restoration per modum grati<£ against Attainder and 
 
 Forfeiture justly incurred through Rebellion, and of the form adopted in Acts of Restoration 
 per modum justitice against Attainder and Forfeiture unjustly incurred and inflicted — 
 exhibiting the contrast between such modes of Restoration : — 
 
 1. Act of Restoration in the case of the Earldom of Mair (as forfeited in 1716), per modum graticB . 
 
 2. Act of Restoration in the case of the Viscounty of Strathallan, per modum gratim 
 
 3. Act of Restoration in the case of the Barony of Stafford, per moiiiimyMsfeYiffi .... 
 
 II. Exposition of facts attendant upon the Perth and Melfort Attainders, Forfeitures, and Disquali- 
 fications, with further comments, rendered necessary by a conversation which took place in the 
 course of the recent (Montrose) discussion between the Lord Chancellor and Lord Lyndhurst 
 
 m. Acts of Restoration against Attainder referred to in the preceding Exposition, &c., — 
 
 1. Act of Restoration in the case of the Earldom of Perth 
 
 2. Act of Restoration in the case of the Barony of Herries 
 
 IV. Narrative and Inquiry, illustrating the origin and extent of the Jurisdiction of the Court of 
 
 Session in civil causes, including Peerages, previously to the Revolution of 1688 and the 
 Union ; the rights of the Court and of the Subject as affected by the Treaty of Union ; and 
 the origin, growth, and character of the intervention of the House of Lords (whether as an 
 Appellate Court or as acting on reference from the Crown) in Scottish Cases 
 
 V. Case of the Dukedoms of Dover and Brandon, in the Peerage of Great Britain, conferred upon 
 
 the Dukes of Queensberry and Hamilton subsequently to the Union — illustrative of the argu- 
 ment in the preceding ' Narrative and Inquiry,' and of various points mooted in the preceding 
 Address to Her Majesty 
 
 VI. Case of the Dukedom of Lennox, conferred, by Patent, 5th August 1581, on Esme Earl of 
 Lennox, personally, without any express limitation in the grant ; but which descended, not- 
 withstanding, under that Patent (exclusively), to heirs, to heirs male of the body, and, according 
 
 to Charles II. and the legal advisers of the Crown in 1675, to heirs male whatsoever the 
 
 grant being precisely parallel in language (so far) with that of the Dukedom of Montrose as 
 conferred " de novo " on David Earl of Crawford, the original patentee, by Act of James IV. 
 with advice of Parliament, 18th Sept. 1489 ; which Montrose Regrant is consequently like- 
 wise an hereditary grant, and descendible to heirs, to heirs male of the body, and under the 
 
 legal inferences from he statement of Charles II. in 1675, to heirs male whatsoever the 
 
 argument on this latter point being, however, altogether in favour of the House of Crawford 
 independently of any parallelism between the two cases ....... 
 
 VII. Extracts from the Deciding Speeches of the Lord Chancellor and Lord St. Leonards on the 
 Shedden Appeal from the Court of Session, 15th May 1854 
 
 XLVI. 
 XL VII. 
 XLVII. 
 
 XLVinsqq. 
 
 L. 
 LI. 
 
 MI sqq. 
 
 Lxxii sqq. 
 
 Lxxvi sqq. 
 
 Additional Postscriptum to the preceding Address to Her Majesty, (30th 
 
 March 1855) ^^^.jj^ 
 
CONTENTS. [xiii] 
 
 11. 
 
 ANALYSIS OF THE AEGUMENT 
 
 AS BETWEEN THE CLAIMANT AND THE OFFICERS REPRESENTING THE CROWN, 
 WITH THE OPINIONS OF THE COMMITTEE OF PRIVILEGES POINT BY POINT, ON 
 THE PRESENT CLAIM. 
 
 Page 
 Creation of the Dukedom of Montrose, in the person of David fifth Earl of Crawford, by Patent 
 18th May 1488, changing the Earidom of Crawford into the Dukedom of Montrose, in favour 
 of him and his heirs, in acknowledgment and reward of his loyalty and that of his ancestors, 
 and for future service to be performed to the Crown iii. 
 
 Admission by the Officers of the Crown iii. 
 
 Opinions of the Committee iii. 
 
 Observation by the Claimant iv. 
 
 ^r And so on — under the heading, generally, of " Objections by the Crown," " Replies " by the 
 Claimant, and " Opinions of the Committee " — point by point, throughout. 
 
 General Pkoposition : — That the Patent of the Dukedom of Montrose still subsists, and is valid 
 
 and effectual in law v sqq. 
 
 I. The Patent was duly executed .......... v. 
 
 II. The Patent thus conferred could only be annulled or superseded in one of three ways, 
 
 1. By Forfeiture or Attainder; 
 
 2. By Resignation ; or, 
 
 3. By some special Act or Intervention affecting it. 
 
 — If therefore (as is the fact) neither Forfeiture, nor Resignation, nor any such Act 
 
 or Intervention have occurred, the Patent must be still valid and effectual in law . vii. 
 
 III. The Act Rescissory, 17th October 1488 — alleged to have annulled the Patent: — 
 
 1. The Proclamation, issued on the 12th June 1488 — admittedly illegal . . viii. 
 
 2. The Act Rescissory, 17th October 1488 x sqq. 
 
 ®6e act Iftesttssorg. 
 
 Doubts (for reasons assigned) whether the Act Rescissory was a statute lawfully passed by King 
 
 and Parliament x sqq. 
 
 Assuming however, ^ro argumento, that the Act was a lawful statute, it must be construed 
 
 1. In accordance with the recognised principles of construction and interpretation appli- 
 
 cable to Acts of Parliament in judicial proceedings ...... xiv. 
 
 2. In accordance with the principles of natural justice which should have dictated it, sup- 
 
 posing it capable of receiving a fair construction in conformity thereto . . . xiv. 
 
 3. In that sense which the words most obviously suggest to the understanding ; that is, 
 
 according to the actual words used, and not according to the presumed intention of 
 
 those who used them xiv. 
 
 4. In accordance with the maxim in Scottish law that a law, however general, must not 
 
 be extended to any case to which the reason inductive of the law is in no degree 
 applicable xiv. 
 
 5. Most strictly and rigorously, in favour of the Claimant — the Act being a highly penal 
 
 statute, and d/orfe'ori as touching honours ........ xiv. 
 
 6. According to the rule, " In dubiis benigniora semper sequenda sunt " . . . . xiv. 
 
 7. In accordance with the principles established by the judgment in the parallel case of 
 
 the Dukedom of Norfolk, decided in 1425, viz., 
 
 i. That a dignity lawfully created by the Crown cannot be defeated by the 
 general enactments of an Act of Parliament, i.e. without special mention 
 and special revocation, either in the case of the grantee or his heirs ; and 
 
 ii. That when other honours or grants in pari casu have survived such an Act 
 
 of Parliament, the honour in question must be held also to survive it . . xv sqq.' 
 
 Applying these principles of construction and interpretation, the (penal) Act Rescissory was, and is, 
 null, void, and inoperative, and inapplicable to the Dukedom, 
 
[xiv] 
 
 CONTENTS. 
 
 I. As VIEWED GENERALLY, AND ex terminis : — 
 
 1. Inasmuch as the Act is qualified in its language, and directed solely against such grants 
 
 as " mycht be prejudiciale to our Soverane Lord," or to the existing regime ; whereas the 
 creation of the Dukedom caniiot be held to have been " prejudicial," and it is expressly 
 shewn, by the testimony of James IV., that he considered David Duke of Montrose 
 as having been always faithful not only to his father but himself, and that nothing in 
 his opinion yedounded so much to the honour and glory of the Crown as to raise a 
 deserving subject, such as Duke David, to higher honours, and actually to the very 
 Montrose Dukedom in question . . • 
 
 2. Inasmuch as the reason inductive of the Act Rescissory is in no degree applicable to 
 
 the patent 18th May 1488, inasmuch as the Duke was in no way an accessary to the 
 death of James III., but e contra; and it is against such accessaries only, and in 
 punishment for such accession, that the Act is directed ....•• 
 And, 
 
 3. Inasmuch as neither the Duke nor his heirs are specially mentioned in the Act, 
 
 and there is no such special recall of the dignity as is indispensable (by the Norfolk 
 judgment) in order to rescind it, — the Act being moreover too undefined and general 
 in its terms to aifect^er se the honours struck at by it, which by Scottish, English, 
 and British precedent could only have been affected by clear, distinct, and un- 
 mistakeable specification and application ........ 
 
 II. As VIEWED, PEACTICALLY, IN EEGAED TO GRANTS BY JAMES III. CON- 
 FERRED WITHIN THE PERIOD STRUCK AT BY THE ACT : 
 
 1. Inasmuch as the grants in question are either subsequently confirmed by James TV-, 
 
 precisely as any other genuine and unexceptionable charters, without the technical 
 non obstantibus to cure a defect, or the least cavil or exception — as in the case of grants 
 (adduced) to Collace of Balnamoon, Somyr of Balyordie, and Gordon of Lochinvar 
 — such confirmations being intended as, and equivalent to, an additional, more 
 solemn, or precautionary form of registration ; or else stood on their own ground, 
 perfectly secure, firm, and valid, without confirmation, in the face of the Act 
 Rescissory, which thus resolved into a dead letter, — as in the case of grants (adduced) 
 to the Cunningliams of Polmaise, to the Burgh of Brechin, and to Alexander Lord 
 Kilmaurs, creating him Earl of Glencairn ........ 
 
 2. Inasmuch as, of the instances produced by the Crown to prove the effect and validity of 
 
 the Act Rescissory, two are dated before the Act Rescissory (thus illustrating tlie 
 spoliation and oppression carried on at the time), and two several years after an Act 
 passed in 1493, which annuls the same subjects as the Act Rescissory, but omits 
 dignities. These two instances may therefore be ascribed to the later and unex- 
 ceptionable Act of 1493, although, at such a distance of time, and so many years 
 having intervened between the Act and the regrants, it is impossible to tell what circum- 
 stances may not have brought the property regranted into the hands of the Crown. 
 This however is unquestionable, that no instance whatever has been produced by the 
 Crown, or was discovered during eleven years' litigation in the Glencairn and 
 Eglinton case 1637-48, of the Act Rescissory itself taking effect between the date of 
 its enactment and 1493 •••■•...... 
 
 3. Inasmuch as, in the case of the Earldom of Glencairn, the question of the applicability 
 
 of the Act Rescissory to a patent granted under precisely the same circumstances as 
 that of the Dukedom of Montrose was decided in favour of the patent by the Court 
 of Session^ — a Court of exclusive jurisdiction in dignities, from which no appeal lay 
 to any higher tribunal, and which was acting moreover on reference from the Crown 
 — in 1648; a decision, not indeed on the very (Montrose) patent here in question 
 but on the very same Act, on a patent identical in circumstances and character with 
 the present, and on the very question now debated — the decision being a final one in 
 
 foro contentiosissinw, ruling and in force at the present moment 
 
 And, 
 
 4. Inasmuch as by the final ratio in the Norfolk judgment 1425, and otherwise the Act 
 
 Rescissory cannot be held to have affected the Montrose patent, — the patent of the 
 Earldom of Glencairn and the other grants of James III. within the proscribed period 
 not having been affected by it 
 
 III. As VIEWED, SPECIALLY AND PERSONALLY, IN REGARD TO THE GRANT 
 
 OF THE Dukedom of Montrose : — 
 1. Inasmuch as the Duke was repeatedly, fully, and legally recognised as such sub- 
 sequently to the Act Rescissory, — as proved, 
 
 [i. Instances relied on by the Claimant, in which David Duke of Montrose 
 asserted his rights both to lands and title under the Patent during tlie interval 
 
 Page 
 
 XX sqq. 
 
 xxvi sqq. 
 
 xxxii sqq. 
 
 sqq. 
 
 Ixlx. 
 
CONTENTS. 
 
 [xv] 
 
 between the Act Rescissory and the Regrant, and in which,, as contended by 
 the Claimant, those rights were allowed, and lie was recognised as Duke by the 
 Croum^ — but in which his pretensions are stated by tlie opponents of this claim 
 to have been disallowed by the Crwon.l 
 
 i. By the Duke's continued possession (with acknowledgment of the Crown) of 
 the Lordship of Kinclevin, if nut of the Customs of Montrose, solely in 
 right of the Patent 
 
 ii. By tlie King's unqualified Confirmation of the Duke's Charter, under the 
 designation of ' Duke,' to Margaret Carmichael 
 
 iii. By the King's acceptance from him as ' Duke,' eodemjure, of the hereditary 
 Sheriffdom of Forfarshire, as proved by the Duke's Procuratory of Resigna- 
 tion 1st November 1488, and by the Instrument of Resignation and Dona- 
 tion drawn up by the King's notary, 6th November 1488, the only 
 documents which by Peerage Law can furnish evidence as to the Duke's 
 true status and rank in the eye of the King himself, — the resignation on the 
 Duke's part being the stipulated condition by which he was to entitle 
 himself to the reception and benefit of a full and free Remission previously 
 executed by the King, and by which he remitted to the Duke his entire dis- 
 pleasure arising from the loyalty of the Duke to the late King, his father 
 — All, and in each instance, previously to the Regrant 18th September 1489 ; the 
 Recognition in question being precisely what we are led to expect as the fulfilment 
 on the King's part of the Contract alluded to 
 
 2. Inasmuch as the effect of such Recognition by the King would have been by Scottish 
 
 law and precedent, and indeed by feudal usage generally, full restoration and rehabi- 
 litation, even if the Duke had been attainted ; and must tell a fortiori when weighed 
 against the mere Act Rescissory .......... 
 
 3. Inasmuch as the Remission under the Privy Seal, delivered to the Duke after resigning 
 
 the Sheriffdom, w'as sufficient of itself (even had his loyalty to James III. been a 
 crime, which it certainly was not) to reinstate him ; and he figured publicly after the 
 transaction as Duke of Montrose without challenge or exception .... 
 
 4. Inasmuch as the Dukedom of Norfolk and the Earldom of Glencairn descended to the 
 
 heirs under the respective patents, unaffected by the Acts Rescissory of 1399 and 1488, 
 though unattended by the specialties which favourably distinguish the present case . 
 And, 
 
 5. Inasmuch as it is in keeping with the Recognition and Remission, and with the Con- 
 
 tract proved to have been entered into between the King and the Duke, that 
 James IV., in the preamble to the Regrant, by advice of Parliament, 18th September 
 1489, passes the highest eulogium upon the Duke as a loyal subject, both to himself 
 and his father ; while anything short of full recognition of the Dukedom would have 
 been a breach of faith on the part of the King, which is not to be presumed without 
 distinct proof ............. 
 
 [li. Instances relied on by the Crown, to shew that the Crown and the public 
 functionaries coasidered the Duhe to be simply ' Earl of Crawford ' during 
 the interval between the Act Rescissory and the Regrant, and held that the 
 Act Rescissory had annihilated the Patent \%th May 1488, — hut in which 
 instances the Claimant maintains that tlie nomenclature ' Earl of Crawford ' 
 is, by Peerage Law, either erroneous or innocuous. 1 
 
 1. Inasmuch as the instances alleged by the Crown, of David Duke of Montrose being 
 
 styled ' Earl of Crawford ' during the interval between the Act Rescissory and the 
 Regrant, were all " behind the back " of the Duke and the Crown, and in themselves 
 inaccurate and illegal — the rule in Peerage Law being (as is well known and has 
 never hitherto been disputed) that the signature or warrant of the Sovereign regulates 
 the interpretation of patents or charters granted in pursuance thereto, and not vice 
 versa, as maintained by the Crown .......... 
 
 2. Inasmuch as — it being acknowledged on all hands that no resignation of the Dukedom 
 
 took place on the part of the Duke of Montrose, and it being the rule in Peerage 
 Law, as laid down by Lords Mansfield and Hardwicke in the Cassillis case, that a 
 subsequent charter, whatever may be the form of its expression, cannot be held to 
 amount to a new grant unless it can be shewn that the antecedent right has been re- 
 signed — the Regrant, with advice of Parliament, 18th September 1489, followed by 
 the Litera 19th September 1489, asserted by the Crown to have been for Ufe, and to 
 indicate the Duke's acquiescence in the Act Rescissory, could only have been a 
 virtual Confirmation of the original patent, or, if otherwise, was (so far) null and 
 void, — the point being however a matter of complete indifference to the present 
 argument .............. 
 
 Pace 
 
 Ixxi sqq. 
 Ixxviii sqq. 
 
 Ixxx sqq. 
 
 Ixxxi. 
 
 Ixxxvii. 
 
 Ixxxviii sqq. 
 
 Ixx, xc sqq. 
 
 xcvi sqg. 
 
[xvi] CONTENTS. 
 
 3. Inasmuch as the resumption of the estates on the death of the Duke, alleged against 
 
 the Claimant by the Crown, if not the effect of the Act 1493, must have been by an 
 act of oppression similar to others which took place, as by the admission of the Crown, 
 at that period, and at all events cannot be attributed to the Act Rescissory ; while 
 such resumption could not affect the Dukedom, by the rule repeatedly acted upon, 
 then and afterwards, " reddendo singula singulis " . 
 
 4. Inasmuch as the lapse of time and non-claim, urged against the Claimant by the Crown, 
 
 is no bar, and is sufficiently accounted for ....... • 
 
 5. Inasmuch as the Earldom of Montrose, created in 1503-4, and alleged by the Crown 
 
 as shewing the extinction of the Dukedom, is derived from the private estate of Old 
 Montrose, whereas the Dukedom is from the Royal Burgh of Montrose ; and at all 
 events such creation is no bar .......... 
 
 And, generally, and with reference to the preceding objections of the Crown, 
 
 6. Inasmuch as, if the Act Rescissory did not per se cut down all the grants of James III. 
 
 without exception and without trial, and the grant of the Dukedom in particular, the 
 Dukedom exists at the present moment ........ 
 
 IV. As VIEWED WITH REFERENCE TO LATER STATUTES AND OTHER CIRCUM- 
 STANCES BEARING UPON THE VALIDITY OF THE ACT EeSCISSORY : — 
 
 1 . Inasmuch as the Act is contradicted and disowned, so far, by the pointed omission, 
 
 twice, of the cardinal words " creacion of new digniteis" in the statute 15th February 
 1489-90, which recites and endeavours to enforce it (an endeavour which nevertheless 
 proved utterly abortive) ; and is altogether superseded by the later statute 26th June 
 1493, which, while taking no notice whatever either of it (the Act Rescissory) or of 
 the intermediate or supplemental Act of 1489-90, rescinds ex tunc the same class of 
 grants that are struck at by those two statutes, but also omits dignities 
 
 2. Inasmuch as, the Act Rescissory never having been practically or legally enforced or even 
 
 alluded to in the quequidems of any subsequent charters or in any legal proceedings, it 
 is thus annulled, according to Scottish law and practice, through non-observance and 
 non-operation ab initio, or by Desuetude ......... 
 
 And, 
 
 3. Inasmuch as, even had the Act Rescissory been operative (which has been disproved), 
 
 it would have been legally revoked and annulled by the very same authority which 
 enacted it, viz. by the Act Revocatory 13th March 1503-4, — a statute to which no 
 doubt attaches, either as regards the actual words employed or the intention of those 
 who framed it ; and under the general provisions of which the Act Rescissory, with all 
 its consequences and dependencies (if it had any), must, for reasons given, be con- 
 sidered absolutely rescinded 
 
 Considering therefore that these pleas, though distinct, are uniform, consistent, and con- 
 current ; that, even though one might be contended not to be paramount and irresistible, it would be 
 fully compensated by others ; and that to rebut the Claimant's argument, it is indispensable to 
 refute them all, — 
 
 Considering that the Act Rescissory is the sole Act or Intervention which can be supposed 
 or is pretended to have affected the Patent of the Dukedom of Montrose, 18th May 1488, — And, 
 
 Considering that if the Act Rescissory did not, per se, by the mere force of its passing, and 
 without judicial process or application, cut down the Patent, it must still be valid in law, and every- 
 thing else of subsequent occurrence is pure matter of indifference ; while, viewed by recognised 
 Peerage Law, it is entirely in favour of the Patent and the Claimant, — 
 
 The Claimant submits that he has established the position that no legal Act or Inter- 
 vention TOOK PLACE SUBSEQUENTLY TO THE PaTENT, 18tH MaY 1488, WHICH IN ANY WAY 
 AFFECTED IT 
 
 Pace 
 
 cxn sqq. 
 
 cxv sqq. 
 
 cxix. 
 
 cxxiv sqq. 
 
 cxxvi sqq. 
 
 General Conclusion of the Claimant,— That, it being admitted that neither Attainder nor 
 Resignation took place, and it being proved (as the Claimant conceives) that no subsequent 
 legal Intervention took place to destroy the Patent — but e contra; the Claim is made out so far 
 as the validity and subsistence of the Patent is concerned 
 
 General Conclusions OF THE Crown on this First Head of the Case 
 
 General Conclusions of the Committee on this First Head of the Case 
 
 Impressions of Lord Redesdale, the Chairman of the Committee, as intimated during the 
 discussion ................ 
 
 Resolution of the Committee (as moved by the Lord Chancellor and Lord St. Leonards) 
 
 cxxxiu. 
 cxxxiv. 
 cxxxiv sqq. 
 
 cxxxvi. 
 exxxvii. 
 
CONTENTS. [xviij 
 
 Page 
 
 OriNiON OF LoED Brougham (as stated by Lord St. Leonards) cxxxvii. 
 
 Opinion of Lord Lyndhuest (as stated by Lord St. Leonards) cxxxvii. 
 
 Brief abstract of the Claimant's argument upon the concluding Heads of his claim (com- 
 prehending the limitation of the Patent), not entered into before the Committee — as given in 
 the Claimant's ' Case ' and ' Supplemental Case ' cxxxviii sqq. 
 
 Summary of the Claimant's entire argument — from the ' Case ' and ' Supplemental Case ' . . cxliii sqq. 
 
 III. 
 
 SPEECHES 
 
 OF COUNSEL FOR THE CLAIMANT AND THE CROWN, AND OF THE NOBLE AND 
 LEARNED LORDS WHO MOVED THE RESOLUTION, IN THE PRESENT CLAIM. 
 
 I. Speech of Sir FitzRoy Kelly. 
 
 Preliminary conversation on the appearance of Counsel representing the Duke of Montrose, and with 
 reference to the proceedings on the application of his Grace for permission to appear in opposition to 
 the present claim, which application was refused, on the 14th of April 1851 .... 3 
 
 I. The Patent, creating the Dukedom of Montrose, 18th May 1488 ...... 6 
 
 II. The Act (which has been called the Act) Rescissory, 17th October 1488 .... 6 
 
 1. Objections to its validity : — 
 
 i. The King does not figure in it personally ....... 8 
 
 ii. Many statutes have become null through Desuetude ab initio ... 8 
 
 2. If valid, it must be interpreted 
 
 i. According to the rules of construction applicable to Acts of Parliament in 
 
 judicial proceedings .......... 8 
 
 ii. Most strictly, against forfeiture, being a highly penal statute ... 8 
 
 3. The Act is expressed in general terms, qualified, and only directed against such 
 
 dignities as " might be prejudicial " to James IV. ; while the framers of the Act 
 could not know what lands or dignities might have been granted by James III. 
 during the period struck at, — a judicial process was therefore necessary to ascertain 
 and fix its application ............ 9 
 
 4. The question is — not what the framers of the Act may have intended, but the legal 
 
 interpretation of the language actually used 11 
 
 5. The Act is not an Act of Attainder, where the person to be affected by it is heard in 
 
 his own defence, but an Act working per se forfeitures in general terms ... 12 
 
 6. In the only two instances where the question has been raised, it has been decided that 
 
 such an Act cannot have the effect ascribed to it by the opponents of this claim : — 
 i. Case and precedent of the Dukedom of Norfolk — created by Richard II. in 
 1397 with assent of the two Houses of Parliament, which made the 
 creation (according to the judgment in the Cornwall or Prince's Case in 
 1605) an Act of Parliament, and an Act of that Parliament in particular — 
 struck at by a general Act Rescissory 1 Henry IV. (1399), which rescinded 
 the whole proceedings of the Parliament of Richard II. in question — not 
 assumed by the heirs of the grantee from 1399 till 1425 — but adjudged in 
 1425 not to have been affected by that Act Rescissory, 
 
 (1) Because the creation of dignities appertains to the King and not 
 to Parliament ; 
 
 (2) Because neither the Duke of Norfolk nor his heirs were specially 
 mentioned in the Act Rescissory, apart from which special 
 mention the Act could not injure them ; 
 
 (3) Because no special revocation of the dignity had taken place in 
 
 Parliament ; and, 
 
 (4) Because other peerages granted in pari casu with the Dukedom, 
 and equally struck at by the Act Rescissory, had survived un- 
 affected by it 13 sqq. 
 
 C 
 
[^"^"i] CONTENTS. 
 
 Page 
 
 ii. Case and precedent of the Earldom of Glencairn — created in pari casu with 
 the Dukedom of Montrose, by patent 28th May 1488, and struck at there- 
 fore in general terms by the Act Eescissory of I7th October 1488. The 
 patentee, Alexander Earl of Glencairn, fell with James III. at the Battle 
 of Stirling,, and the Earldom was not assumed by his son or grandson till 
 
 c. 1505 32 sqq. 
 
 Proof, that the Earldom of Glencairn was enjoyed under the patent 
 1488 (and no other) till the death of the late Earl of Glencairn 
 in 1796 :— 
 
 (i) Cuthbert Earl of Glencairn, grandson of the patentee, 
 was served heir to his grandfather Alexander Earl of 
 Glencairn, and infefted in the estates conferred (exclu- 
 sively) by the patent, with full recognition of the Crown, 
 in 1515-6. He was deprived of those estates by Decreet 
 of the Supreme Civil Court in 1516-7, not in conse- 
 quence of the Act Rescissory, but owing to the original 
 possessors not having been forfeited previously to the 
 grant by James III., and other technical causes ; while 
 the patentee. Earl Alexander, is fully recognised retro- 
 spectively in the Decreet 1516-7 as Earl of Glencairn 
 under the patent ....... 34 
 
 (ii) Subsequent Royal recognition of the patent 1488 in 
 
 1550 35 
 
 (iii) Contest for precedency between the Earls of Glencairn 
 and Eglinton — depending entirely on the question 
 whether the Glencairn patent was or was not rescinded 
 by the Act Rescissory — and decided in favour of the 
 patent in 1610 and 1648 36 sqq. 
 
 [1] Decreet of Ranking by the Privy Council, 
 under authority of James VI., in 1606 — Glen- 
 cairn misplaced in absence — his protest, &c. 36 
 
 [2] Decreet, in 1610, of the Court of Session or 
 Supreme Civil Court (to which, as the proper 
 tribunal, aggrieved parties were referred by 
 the Decreet of Ranking 1606) in favour of 
 Glencairn, proceeding on the patent 1488 . 36 
 
 [3] Ratification of the patent 1488 by Charles I. 
 
 in 1637 37 
 
 [4] Decreet of the Court of Session in 1617, 
 reversing the Decreet 1610, but on purely 
 technical grounds, not affecting the patent . 38 
 
 [5] Final litigation between Glencairn and Eglin- 
 ton, 1637-1648 39 sqq. 
 
 [i] Summonsl637,founded on the patent 39 
 
 [ii] Minutes of the process, proving, 
 1. That the same arguments were 
 used then against the Glencairn 
 patent as now against the Montrose ; 
 and, 2. That the whole matter was 
 narrowed to the question whether 
 the Act Rescissory cut down the 
 patent or not — on which question the 
 judgment exclusively went . . 40 sqq. 
 
 [iii] Decreet 19th Jan. 1648, adjudging 
 the precedency to Glencairn, on the 
 ground of the validity of the patent 
 1488 as unaflTected by the Act Re- 
 scissory ....._ ro 
 
 [6] Appeal by Eglinton to Parliament, and Par- 
 liamentary Decreets 2nd March and 9th March 
 1649, annulling the patent 1488 as having 
 been cut down by the Act Rescissory, and 
 the Decreet of 1648 itself as proceeding on 
 the patent ; from political considerations, lest 
 the maintenance thereof should condemn them- 
 
CONTENTS. [xix] 
 
 Page 
 selves in the recent struggle with Charles I. 
 
 and give effect to the patent of the Marquisate 
 
 of Montrose, which they wished to disallow, — 
 
 but which Decreets were invalid. Parliament 
 
 not being competent to judge in peerage or 
 
 precedency claims, and moreover being in 
 
 rebellion at the time ; while the Decreets in 
 
 question, with the whole Parliament in which 
 
 they passed, were specially rescinded, after 
 
 the Restoration, in 1661 .... .56 sqq. 
 
 [7] Proof that the Earls of Glencairn enjoyed 
 precedency over the Earls of Eglinton, in 
 virtue exclusively of the Decreet of 1648, 
 founded on the patent 1488, till 1796 . . 59 
 
 [8] The decision in the Glencairn claim in 1796-7 
 went on the question of heirs, and did not 
 involve that of the Act Rescissory: — With 
 comments on Lord Loughborough's deciding 
 Speech — which is full of inaccuracies — and 
 he could not have known the decision by the 
 Court of Session in 1648 .... 60 
 
 [9] The result is — a clear authority, in the ruling 
 decision of the Court of Session in 1648, that 
 the Act Rescissory did not destroy dignities . 68 
 
 7. The words of the Act Rescissory imply and necessitate an action of reduction — ^it 
 
 could only operate through such. If it was intended to cut down per se all the grants 
 of James III., without qualification, why did it not say so, why did it introduce a 
 qualification? ............. 69 
 
 8. Contemporanea expositio — unnecessary, because, unless the Act Rescissory cut down 
 
 the dignity by the simple fact of its passing, and without judicial process, the patent 
 
 stands — but it is quite in the Claimant's favour ....... 72, 104 
 
 i. Evidence that the Duke of Montrose held the Dukedom and the estates, 
 granted by the patent, during the interval between the passing of the 
 Act Rescissory and a Regrant of the dignity, 18th Sept. 1489, with full and 
 public recognition of the King ; which recognition would by Scottish law 
 have restored him even if the Act had applied to him .... 73 sqq. 
 
 ii. Evidence that the Act took no effect in other cases of grants made by 
 
 James III. during the proscribed period ....... 80 sqq. 
 
 9. If non-effective, the Act is abrogated by Desuetude ....... 82 
 
 10. If effective, the Act was rescinded by the Act Revocatory 13th March 1503-4, by 
 
 which James IV., with consent of Parliament, revoked all Acts and statutes and 
 other things done by him in times past, either hurting his Soul, his Crown, or Holy 
 Church — with proof (from a Bull of Pope Innocent VIIL, 5th July 1491, &c.) that 
 the Act Rescissory was, in his and their opinion, thus hurtful ..... 85 sqq. 
 
 1 1 . The Regrant of the Dukedom, by an Act of James IV. with authority of Parliament, 
 
 18th Sept. 1489, by which the Earldom of Crawford, as borne by the ancient Earls 
 of Crawford, is changed into a Dukedom and granted to David Earl of Crawford, 
 to be enjoyed " secundum formam et tenorem carte dicto David Duci de Motitrose 
 " super premissis conficiende," — thus granting the Dukedom hereditarily, although 
 without allusion to the original grant, — probably of the nature of a compromise, to 
 save the credit of James IV. and the government ....... 91 sqq. 
 
 i. By the preamble of this Act, 18th Sept. 1489, James IV. himself declares 
 
 that the Montrose Dukedom of 1488 was not prejudicial to him . . 92 
 
 ii. In this Act of Parliament, which is complete and entire, there is no recital 
 of a resignation of the prior title, no recital in the usual form that the 
 prior dignity had been annulled by Act of Parliament or otherwise . . 95, 96 
 
 iii. The "carta" ordained to be executed in conformity with this Act, is only 
 known by an imperfect abstract of a " Litera," bearing date the 19th Sept. 
 1489, of suspicious character, interpolated in the Great Seal Register . 97, 105 
 
 iv. This abstract of the Litera, or second patent, passed in obedience to the Act 
 18th Sept. 1489, bears to be for life, but is not inconsistent with the 
 supposition that the entire document may have contained a limitation to 
 heirs ; and this limitation must be presumed, there being no restriction 
 in the warrant, and no resignation having taken place of the right under 
 
 c2 
 
[xx] CONTENTS. 
 
 Page 
 
 the original patent, while the language of the warrant implies a 
 limitation ............ 98 
 
 V. The Regrant 18th Sept. 1489 confers the Dukedom anew on the line of 
 
 heirs succeeding to the Earldom of Crawford 100 
 
 vi. The Regrant is however wholly immaterial to the claim, for if the Act 
 
 Rescissory did not annul the original patent, the Regrant could not annul it 101 
 
 12. Answers to objections, — 
 
 i. If the Duke is styled ' Earl of Crawford ' during the interval between the 
 patent and the Regrant, it is paralleled by many similar cases of peers 
 entitled to higher being designated by lower titles, and it cannot prejudice 
 the honour ............ 101 
 
 ii. If there has been no claim since the death of the original grantee, it is 
 accounted for by the circumstances of the Duke's successors, by the jealousy 
 of the aristocracy, &c., — while non-user is no bar ..... 102 
 
 iii. If an Earldom of Montrose was granted to the Grahams fas is not denied) 
 in 1503, that dignity was derived from their private estate of Old Montrose, 
 whereas the Dukedom of the Lindsays was from the Royal Burgh of 
 Montrose. But this could not derogate from the legal validity of the 
 patent ............. 103 
 
 Determination of the Committee to consider the question of the validity of the patent, and 
 
 of the right to succession under the patent, if valid, separately .... 105 
 
 II. Speech of the Solicitor General. 
 
 I. The Patent 18th May 1488 109 
 
 The completion of the Patent, as shewn by the registration, is not questioned . . . 109 
 
 II. The Act Rescissory, 17th Oct. 1488 109 sqq. 
 
 1. General objections to its validity, — 
 
 i. It forms a chapter of the one collective Statute of the Session of October 
 
 1488 109 
 
 ii. That Statute is based on the enactment styled ' the Proposition of the Debate 
 ' of the Field of Stirling,' vindicating the Rebellion,— the King a minor, no 
 Regent, &c. ............ nO 
 
 iii. The rebels repented, as proved by the Bull of Pope Innocent VIII., 5th July 
 1491, and the Act 20th Feb. 1492, &c. The Act Rescissory is therefore 
 virtually abrogated •••■..... m sna 
 
 iv. A statute vindicating Rebellion and Regicide cannot be paid attention to in 
 
 ^^^^ 114 
 
 2. Particular objections to its validity, — 
 
 i. The Act Rescissory and the whole Statute of which it forms a chapter are 
 
 (1) Deficient in formality and sanction : — 
 
 (i) The King's authority is not sufficiently expressed with 
 
 reference to the entire Statute . . . . 127 
 
 (ii) While other particular Acts bear to be enacted by the 
 
 King and Three Estates, the Act Rescissory does not 128 
 
 (2) The Act Rescissory is not in the regular form of Acts of Forfeiture 1 28 
 ii. The Act Rescissory is discredited by the strong contrast existing between its 
 
 language and that of posterior Acts in pari materid, viz., 
 
 (1) The Act 15th Feb. 1489-90-which, reciting and endeavouring 
 to prop up the Act Rescissory, pointedly omits dignities ; and 
 
 (2) The Act 26th June 1493, conceived in the usual form for 
 rescinding improvident grants of Crown property, and which, in 
 rescinding ex tunc the grants struck at by the Act Rescissory, 
 likewise omits dignities.— By this Act the property granted with 
 
 the Dukedom of Montrose must have been ultimately resumed . 129 
 
 3. Assuming it however to be a lawful ordinance, the argument against the claim is 
 
 that it, per se, without more, from the moment that it passed, in some way or other 
 annulled the patent .... 
 
 ^ 119, 128 
 
 But, 
 
CONTENTS. [xxi] 
 
 Page 
 i. Whilst an Act of Parliament, however unjust, must, if valid, be obeyed, it 
 must be construed nevertheless according to natural justice, if possible, and 
 not according to the supposed intention of those who framed it . . . 153 
 
 ii. The Act Rescissory is expressed only in general terms — it could not operate 
 unless applied by a judicial process — it is not directed absolutely against all 
 grants, but only against such as "might be prejudicial" to James III.'s 
 successor. It was nothing therefore but an instrument laid up for use 
 hereafter, to annul anything brought within its reach ; and there is no trace 
 of that instrument having ever been used or applied ..... 117 sqq., 154 
 iii. Any argument that the grant of the Dukedom was prejudicial is at once 
 answered by the direct testimony of James IV. to the Duke's loyalty, and 
 to the fact that it is an honour to Kings to raise deserving subjects, like the 
 Duke, to higher dignities, in the preamble to the Eegrant of the Dukedom 
 18th Sept. 1489 117 sqq. 
 
 4. Contemporanea expositio : — Proofs that the Act Eescissory was never deemed to have the 
 
 force of law, and never W21S applied in law by any legitimate tribunal . . . 119 sqq. 
 
 i. In the case' of the Duke himself, who held the honours and estates, with 
 recognition of the Crown, during the interval between the Act and the 
 
 Eegrant 121 sqq. 
 
 ii. In the case of other grantees of James III., whose charters stood firm not- 
 withstanding the Act 130 sqq. 
 
 iii. In the case of the Earldom of Glencairn, — this and the Dukedom being the 
 
 only two dignities granted during the period struck at by the Act Eescissory 137 sqq. 
 
 (1) The patent 28th May 1488— still in existence .... 137 
 
 (2) No assumption till 1505 (Cuthbert Earl of Glencairn, grandson of 
 
 the patentee, being inaugurated in 1503 on the patent 1488) . 137 
 
 (3) The creation under the patent 1488 was recognised and acted upon ' 
 bytheCrownin 1515-6 and by theSupremeCivil Court in 1516-7 137,159 
 
 (4) Contest for precedency between the Earls of Glencairn and Eglinton 
 before the Court of Session, — that precedency depending entirely 
 on the question whether the Glencairn patent was or was not 
 
 rescinded by the Act Eescissory ...... 137 sqq. 
 
 (i) Decreet of Banking 1606 137, 147 
 
 (ii) Decreet 1610, &c. founded upon the patent . . . 137 
 
 (iii) Final Decreet 1648, in favour of the patent, ruling at 
 
 the present day . . . . . . .138 sqq., 155 sqq. 
 
 (iv) Eglinton appeals to Parliament, then in rebellion after 
 the death of Charles I. ; and the Parliament passes two 
 Decreets, 2nd and 9th March 1649, annulling the patent 
 1488 and the Decreet of 1648, as founded upon it. 
 But the appeal was illegal, even had the Parliament 
 been lawful, — the Court of Session was the only com- 
 petent tribunal, and there was no appeal to Parliament. 
 Parliament had on this ground in 1641 refused to take 
 up the Glencairn case, as not competent,— and the 
 whole proceedings of the rebel Parliament of 1649, 
 including the two Decreets just mentioned, were annulled 
 by a special Act in 1661, after the Eestoration . . 145 sqq. 
 
 (v) It thus appears, as matter of fact, 
 
 [1] That on the only attempt to use the Act 
 
 Eescissory for invalidating the grant of a 
 
 dignity before a competent tribunal, it was 
 
 decided that it had no application . . .146, 153, 166 
 
 [2] That the inapplicability of the Act Eescissory 
 
 is res judicata . . . . . . 166 
 
 If therefore the Act had no effect on the Glencairn 
 dignity, it could have none on the Montrose . . 1 43 
 
 (vi) 'Memorandum' for Eglinton in 1649, shewing the 
 grounds of the appeal to Parliament, — additionally 
 proving that the patent, as aflPected or not by the Act 
 Eescissory, was the subject of discussion and the ground- 
 work of the Decreet in 1648 154 
 
 (vii) Claim to the Earldom of Glencairn by Sir A. Fergusson 
 in 1796-7; and critical dissection of Lord Lough- 
 
[xxiij CONTENTS. 
 
 Page 
 
 borough's deciding Speech — its blunders and inac- 
 curacies, as proceeding on the several assumptions, 
 
 [1] That the reign of James III. was considered 
 to have ended, and that of James IV. 
 to have begun, on the 2nd Feb. 1487-8; 
 whereas he was always recognised as King till 
 his death, 11th June 1488, — 
 [2] That the Act Rescissory annulled the patent 
 
 1488,— 
 [3] That the " belting" of the Earl of Glencairn 
 in 1503 was, not his inauguration on the 
 original patent, but a new creation by " belt- 
 " ing " alone, — and, 
 [4] That the Decreet of the Court of Session in 
 1648 was not founded on the patent 1488, — 
 Whereas the present Claimant has shewn the contrary 
 on all these points, and Lord Loughborough could not 
 hare been aware of the proceedings in 1648 and 
 1649 155 sqq. 
 
 5. Answer to the objection, that David Duke of Montrose sat as ' Earl of Crawford ' in 
 
 the Parliament which passed the Act Rescissory ....... 133, lo4 
 
 6. Answer to the objection that the Duke's acceptance of the Regrant of September 1489, 
 
 which is contended to have been for life only, proves that he regarded the original 
 
 patent as annihilated by the Act Rescissory ........ 166 sqq. 
 
 i. Even if he believed that the Act had the effect ascribed to it, and acted on 
 that belief, his acquiescence or impression could not give validity to the 
 
 Act 167 
 
 ii. But the Regrant must have been hereditary: — The Act 18th Sept. 1489 
 operates a mere recognition of an existing thing, which it confirms in all its 
 integrity. For, 
 
 (1) No resignation of the right under the original patent took place,— 
 
 this is admitted ......... 1 67 
 
 (2) An honour, not resigned, as by the authority of Lords Mansfield 
 and Hardwicke in their Speeches on moving the resolution in the 
 Cassillis claim, cannot pass by rumdamus. There could be no 
 regrant (properly speaking) if no resignation . . . . 168 
 
 (3) The Regrant, 18th Sept. 1489, recognises the language of the 
 
 original patent, and (omitting the special cause of the grant as 
 painful to the existing King) substitutes still higher general praise, 
 and inserts an express reference to the House of Crawford, as having 
 held its honours hitherto by the title of " Earl," for which reason 
 the said (family) title is now changed into that of " Duke " . 169 sqq. 
 
 The Act 18th Sept. 1489 can therefore be only a recognition by way of 
 Confirmation of the existing dignity,, put again upon record, and which the 
 King recognises with pleasure, bestowing further praise and assigning addi- 
 tional reasons for the grant ..... ... 171 sqq. 
 
 iii. The Act 18th Sept. 1489 being a governing instrument and the warrant for 
 the Litera or patent, 19th Sept. 1489, the "Litera" ought to have been 
 worded in conformity with it, and if it departs from it, must, by Peerage 
 Law and practice (as illustrated), be corrected by it . .... 173,176,177 
 
 iv. The Litera only exists in a hurried and curtailed abstract, inserted in the 
 Great Seal Register — it purports to be granted " pro toto tempore vite 
 " sue," but reasons are assigned why a limitation (as in similar cases) may 
 have followed those words in the original, and it must be presumed to have 
 been there, in conformity with the warrant ...... 177 sqq. 
 
 7. The Act, never having been applied, is therefore null and void through Desuetude . 1 J 7 
 
 8. Even if the Act did apply, it was reversed and annulled ah initio by the Act Revocatory 
 
 13th March 1503-4; and everything on which it might have operated remains 
 
 unaffected by it . . . . . . . . . . . . . 134 ,;qq_ 
 
 9. Answer to objections, — 
 
 i. That the Duke is styled ' Earl of Crawford' after the Act Rescissory . .133, 134 
 ii. That there has been no claim since Duke David's death . . . . 179 
 
CONTENTS. [xxiii] 
 
 III. Speech of the Attorney Q-eneral. 
 
 Page 
 
 General observations :— It is the duty of the Attorney General and the Lord Advocate to offer an active 
 and strenuous resistance to the claim, as unfounded and one vphich ought not to be admitted. It is 
 startling, to say the least of it, that it should now be brought forward after 350 years ; and therefore 
 (without questioning that time is no bar to a claim to peerage) the lapse of time in this case induces 
 considerable distrust, requiring conclusive and satisfactory evidence on the part of the Claimant. But 
 the Claimant has not dealt fairly by the House, which has at present only one half of the facts 
 before it upon any part of the case ........... 181 
 
 1. The Patent, 18th May 1488 181 
 
 Doubts whether it was completed. . . . . . . . . . . 181 
 
 II. The Act Eescissory, 17th October 1488 182 
 
 1. Answers to objections against the validity of the Act, — 
 
 i. It stands on the Statute Book, and has always been treated as an act of the 
 
 legislature ............ 182 
 
 ii. The moment James III. died, James IV. became King ; the Parliament was 
 
 convened by lawful authority, and its statutes are binding . . . 182 
 
 iii. The Act and the whole statute of which it was a part may deserve the 
 detestation of loyal subjects, but if the Parliament were clothed with legis- 
 lative authority, it is nevertheless binding . . . . . . 183 
 
 iv. The general statute of the Parliament of October 1488 is enacted in the same 
 form as the majority of the general statutes of Parliament before and after 
 1488 183 
 
 2. Answers to objections against the effect of the Act, if valid, — 
 
 i. Looking at the circumstances of the time, it is clear what the object and 
 intention of the Act was— its effect is to assume that the dignities struck at 
 shall be taken to be prejudicial to James IV., and therefore they ought to 
 be annulled 184 
 
 ii. Only two dignities having been created during the proscribed period, they 
 would not have been struck at in terms by the Act Eescissory, unless, 
 there being but those two, it was intended to annihilate them . . . 184 
 
 iii. It could not have been a provision by way of precaution, owing to ignorance 
 
 as to what grants had been made by James III., for they had the Register 185 
 
 iv. The Regrant may prove that the Duke was in favour in 1489, but his own 
 Protest of the 29th October 1488 shews that it was the intention to degrade 
 him in 1488 185 
 
 V. The Norfolk ratio, that the Dukedom of Norfolk could not be destroyed by 
 the general terms of the Act Rescissory 1 Henry IV., unless specially 
 mentioned, only comes to this, that unless the Act of Henry IV. had, in 
 addition to annulling the proceedings of the Parliament of Richard IJ., spe- 
 cifically struck the dignity, it did not affect it. This does not touch a case 
 like this, where an Act is directed in express terms, not (it is admitted) 
 against the individual dignity by name, but against all dignities granted 
 within a given period. If the House be of opinion that the intention of the 
 Act Rescissory was to strike at the Dukedom of Montrose, it matters 
 nothing that the Dukedom is not expressly and specifically mentioned by 
 name. — The Norfolk Dukedom, it is to be observed, was created in Parlia- 
 ment, but not iy Parliament, not by an Act of Parliament. And the 
 judges in 1425 were having recourse to every ingenuity and subtilty to 
 find some reason for upholding the Dukedom, in order to get out of the 
 difficulty of deciding the precedency between two rival peers ; they shaped 
 the case accordingly, and succeeded in their object on what must be 
 admitted to be very fair and plausible grounds . . . . . 185 sqq. 
 
 3. Contemporanea escpositio is entirely against the Claimant : — For, 
 
 i. The Duke is uniformly styled ' Earl of Crawford ' by the Crown, by Parlia- 
 ment, and by public functionaries, during the interval between the Act 
 Rescissory and the Regrant 187 sqq. 
 
 ii. The cases in which the Duke is styled ' Duke of Montrose ' during the said 
 interval are in private documents, behind the back of the Crown ; and when 
 they came before the Crown, the Crown invariably corrected the style to 
 that of ' Earl of Crawford ' 189 
 
 iii. Even if the evidence afforded a basis for the urging of the Claimant's argu- 
 ment from the feudal law, that the King could rehabilitate against an Act 
 of Attainder, that doctrine has been seriously shaken and can no longer be 
 maintained as law. By the ' Report on the Dignity of a Peer ' it is laid 
 
[sxiv] CONTENTS. 
 
 Page 
 
 194 
 
 196 
 199 
 
 down that the King has no power to restore against attainder— it can only 
 be done away by Act of Parliament. But the Act Rescissory is not an Act 
 of Attainder, and when an Act of Parliament has annihilated a dignity, it 
 
 is not competent to the Sovereign to restore it 
 
 iv. The Eegrant of September 1489 195 sqq. 
 
 (1) Was a sort of compromise— the Earl had given in his adhesion, 
 and it was an object to conciliate him by granting him the Duke- 
 dom and estates anew for life 
 
 (2) The Act of Parliament 18th Sept. 1489 was to enable the King 
 to grant anew the title of Duke of Montrose— it says the King 
 may de nemo grant the Dukedom by a charter hereafter to be com- 
 pleted. It is conceded to the Claimant that this Act is capable 
 of a twofold construction 
 
 (3) The charter so to be granted is not forthcoming, but we have an 
 entry of it in the Great Seal Eegister,— it is abridged and some- 
 what compressed, but a genuine instrument .... 
 
 (4) This charter, or ' Litera,' is for life only— not a Confirmation but 
 a de now grant ...••■•••" 
 
 (5) The Act 18th Sept. 1489, which preceded the Litera or patent, 
 must be read and governed by the Litera and by the circumstances 
 which followed ; viz., by the non-succession to the Dukedom on 
 the part of the Duke's son and his successors, and by the resump- 
 tion of the estates by the Crown on the Duke's death— the estates 
 having only been held by the Duke by force or by a sort of com- 
 promise during the interval between the original patent and the 
 Litera, and being distinctly stated in the Exchequer EoUs, after 
 the Duke's death, to have been granted to him for life only— the 
 reason assigned by the Claimant in explanation of the non-assump- 
 tion and the resumption of the estates, &c., not being sufficient . 199 sqq. 
 
 V. The Glencairn case 209 sqq. 
 
 (1) The Earldom disappears till 1505— the son of the patentee sits in 
 the Parliament of October 1488 as Lord Kilmaurs, thus acknow- 
 ledging himself to be Lord Kilmaurs only, and takes that title in 
 other acts and on his seal — nothing can more strongly shew the 
 operation of the Act Rescissory 209 
 
 (2) The estates granted by the patent 1488 remained in the Crown 
 immediately after the Proclamation 12th June 1488, and were 
 never claimed till 1614, after the new creation of the Earldom in 
 
 1503 — which attempt was defeated 215 
 
 (3) Cuthbert Earl of Glencairn is inaugurated in 1503, and there 
 must have been a contemporary patent, that of 1488 having been 
 
 cut down by the Act Rescissory 211 
 
 (4) The decision of the Court of Session, 19th January 1648, though 
 of great authority, is not binding, because 
 
 (i) The Court was ignorant of the new creation in 1503, and 
 
 that the family were only Lords Kilmaurs previously . 213 
 
 (ii) The judgment did not go necessarily on the Act Re- 
 scissory ......... 214 
 
 (5) Parliament, on being appealed to, took a different view, and 
 decided in favour of the Act Rescissory and against the patent . 214 
 
 (6) The judgment of 1648 is not binding in this case, because mier 
 
 alios ........... 215 
 
 (7) Lord Loughborough's judgment in the Glencairn claim in 1797 
 has been unceremoniously treated by the Claimant — the Attorney 
 General is not disposed to go through the details of it — it is suffi- 
 cient that Lord Loughborough came to the deliberate judgment, 
 which the House adopted, that the Act Rescissory annulled the 
 patent. That decision binds the House . . . . . 215 
 
 Answers to the argument that the Act Rescissory is abrogated by subsequent statutes, — 
 
 i. Dignities were not included in the Acts 1489-90 and 1493, because the Duke 
 of Montrose had admitted the effect of the Act Rescissory by accepting a 
 life Dukedom, and the son of the Glencairn patentee by abstaining from 
 claiming the title and consenting to be served his father's heir as Lord 
 Kilmaurs; and it was unnecessary therefore to wound their feelings . . 219 
 
CONTENTS. [xxv] 
 
 Page 
 Ji. The Act Eevocatory 1503-4 was a mere salve to the King's conscience, is 
 vague and unmeaning in terms, and would not be applicable unless it contained 
 a special reference to the dignities or practically took effect upon them — 
 whereas, on the contrary, the King created the Earldom of Montrose in 
 that same year, as it were in derogation and defiance of the Dukedom. And 
 when it is said that the one dignity was from the Burgh of Montrose and 
 the other from Old Montrose, the Earldom was the Earldom of Montrose, 
 without any distinction of New or Old 219 
 
 5. Answer to the cases (other than the Montrose and Glencairn dignities) adduced by the 
 
 Claimant as proving the nullity of the Act Rescissory ; one or two of these were 
 cases of trifling moment, in which it was not thought worth while to divest the parties 
 of their estates. The Crown will produce other cases in which the Act Rescissory 
 d'id take effect on grants of James III. within the proscribed period . . . 219 
 
 6. The whole case of the Claimant rests on speculation, surmise, and hypothesis ; that of 
 
 the Crown on clear and distinct facts 221 
 
 rv. Speech of the Lobd Advocate. 
 
 r. The Patent 18th May 1488 223 
 
 Admission that it duly passed 224 
 
 II. The Proclamation at Scone, 12th June 1488, at once set aside the grants of James III., whicli 
 
 were resumed by the Crown and granted out even before the Act Rescissory . . . 223, 229, 231 
 
 III. The Act Rescissory, — its object to put the Proclamation into law, and, without specification 
 of particular grants, to annul them on the plain ground that the King was in the hands of the 
 enemies of the constitution ............. 224 
 
 1 . Answers to objections against the validity of the Act, — 
 
 i. It may have been the result of a successful rebellion, but if it passed regu- 
 larly and stands on the Statute Book, it has the force of an Act of Parlia- 
 ment. A much stronger declaration stands on the Statute Book, by which 
 a King de jure and de facto was declared by the Estates to have forfeited 
 the Crown and left it vacant ......... 224 
 
 ii. It is impossible to maintain that it is necessary to the validity of Scottish 
 
 statutes that they should begin with the consent of the Sovereign . . 225 
 
 2. Answers to objections against the effect of the Act, if valid, — 
 
 i. Whereas it is argued that a general Act could not take effect without a legal 
 
 process, this is a rescinding Act, which must take effect at once . . 226, 229 
 
 ii. The question is, what was the intention of the framers of the Act ? The 
 words " which might be prejudicial " are not words of limitation at all — 
 they express the reason of the statute, viz. that the grants vxre prejudicial. 
 And this is confirmed by the language of the Act 15th Feb. 1489-90, 
 which, in ordering the charters granted by James III. since the 2nd Feb. 
 1487-8 to be brought in and destroyed, describes the Act Rescissory as 
 having declared all alienations, &c. of none avail for certain causes. Parlia- 
 ment therefore, in 1489-90, considered that the Act Rescissory struck 
 against aU those alienations, and that the reason for rescinding them was, 
 that they were prejudicial to James IV. ...... 227 
 
 iii. The Act is not abrogated by Desuetude, because it was recognised as 
 effective in the Act 15th Feb. 1489-90. Moreover, the judgment in 
 the Glencairn process in 1648 does not cast any doubt on the operativeness 
 of the Act Rescissory. And Lord Loughborough's judgment in 1797, 
 whatever may be said against the accuracy of the facts on which it pro- 
 ceeded, was truly and substantially a finding of the House that the Act did 
 in fact take practical effect. The Act has therefore been always treated 
 as an Act practically operative ........ 227, 230 
 
 3. Gontemporanea eaopositio: — General proposition, that not one circumstance occurred 
 
 from 1488 to 1495 (the date of the Duke of Montrose's death) which was not a 
 necessary consequence of the Act Rescissory taking effect ..... 231 
 
 i. Evidence that Duke David never asserted or publicly claimed the Dukedom 
 during the interval between the two patents, and that on all public occa- 
 sions he is styled ' Earl of Crawford ' 231 sqq. 
 
 ii. To the suggestion that taking a lower title does not imply an abandonment 
 of a higher, and that it was by his own desire and choice that he was styled 
 
 d 
 
[xxvi] CONTENTS. 
 
 Page 
 
 ' Earl of Crawford ' and not Duke of Montrose, it is proved by the 
 Claimant's own evidence that he clung to the title, but, whenever he assumed 
 it, it was immediately corrected by the Crown . . . . . 231 sqq. 
 
 iii. It is admitted that the Duke had power to levy the rents of Kinclevin and 
 the customs of Montrose (granted by the patent) during the interval 
 between the Act Rescissory and the Eegrant — but this is not material, — the 
 important point is, What became of the estates after the Duke's death ? . 233 
 
 iv. The Regrant was not a Confirmation, but a new and original grant . . 233 sqq. 
 
 (1) The terms and substance of the Act 18th Sept. 1489 prove it was 
 an original grant — if the Act Rescissory had not taken effect, it 
 was unnecessary — it is granted to the ' Earl of Crawford,' and, 
 
 what is material, by the Parliament, not the King . . . 234 
 
 (2) The Litera, or patent, 19th Sept. 1489, is abridged in the Register 
 because it was the usage to abridge life-grants — it is granted " pro 
 " toto tempore vite sue," and the lands are granted as "now 
 " belonging to the King," proving that the Act Rescissory had 
 
 taken effect on those lands ....... 235 
 
 (3) The non-succession of the Duke's heirs, either to the honours or 
 
 the estates, proves it was a life-grant ..... 237 
 
 (4) The Exchequer Rolls expressly state that the estates had been 
 granted to Duke David only for life ..... 238 
 
 v. Cases adduced by the Crown in which the Proclamation and Act Rescissory 
 
 cut down the grants of James III. ........ 239 
 
 vi. Examination of the Claimant's cases to prove that the Act Rescissory did 
 
 not take effect 240 
 
 vii. The Glencairn case .......... 242 sqq. 
 
 (1) The Earldom disappears till 1505, and the estates reverted to the 
 
 Crown in consequence of the Act Rescissory ; in proof of which 
 the title-deeds of the estates have been put in, shewing their 
 progress till the present time ....... 242 
 
 (2) Inauguration in 1503 by the form of belting — no evidence of a 
 charter or patent, though one wa.s probably then granted . . 243, 254 
 
 (3) The decision of the Court of Session in 1648 not binding, 
 because, 
 
 (i) The question of precedency was a standing feud between 
 the families of Glencairn and Eglinton, which came 
 periodically before the Court of Session . . . 244 
 
 (ii) The Court sustained Glencairn's title as founded on 
 the patent 1488 and the Ratification 1637, but it was 
 not necessary to go into the question of the patent and 
 the Act Rescissory — the Court proceeded upon priority 
 of sittings in Parliament, and the result was, not a 
 declaration in support of the patent but a ratification 
 of precedency 245 sqq. 
 
 (iii) It was not a good period in the Court of Session, — 
 there was a considerable leaning on the part of the 
 Court 253 
 
 (iv) The judgment cannot apply here, because it is res inter 
 alios ; and the two cases are not parallel, inasmuch as 
 there was actual tenure and the Ratification (in 1637) 
 in the Glencairn case, and the Court had no evidence 
 then of the installation by belting in 1503 . . . 253 
 
 (v) Parliament was appealed to, and decided differently ; 
 but, being in rebellion, after the death of Charles I., 
 the whole proceedings of the Parliament were reversed 
 after the Restoration,— but still we have their opinion 
 on the merits of the case ...... 253 255 
 
 (4) The Claimant has attached undue importance to this case, and 
 asked the House to look at it as if it was now considering the 
 question of the Glencairn peerage ; whereas it is a mere prece- 
 dent, taken for what it is worth ; and unless the facts in the 
 Montrose case are on all fours with it, it has no materiality in the 
 
 matter 
 (5) Lord Loughborough's decision in the Glencairn claim in 1797 
 
 243 
 
CONTENTS. [xxvii] 
 
 Page 
 although exception may be taken to one or two of his statements, 
 holds that the Act Rescissory rescinded the patent ; and that is 
 decisive against the present claim 243, 255 
 
 V. Keply of Sir TitzRoy Kelly. 
 
 I. The Patent, 18th May 1488 257 
 
 Proof that it was duly completed 257 
 
 II. The Proclamation, 12th June 1488, could not avail to cut down the grants of James III. And 
 
 the disregard or resumption of such grants previously to the Act Rescissory was through mere 
 
 illegal tyranny 278, 279 
 
 III. The Act Rescissory, I7th October 1488 258 sqq. 
 
 1. Construction of the Act : — 
 
 i. Admission by the Crown — ^that if the patent 1488 was not destroyed by the 
 
 Act Rescissory, it remains in force at the present day .... 258 
 
 ii. The proposition of the Crown is, that the Act, ^e»- se, without more, anni- 
 hilated the dignity. The proposition of the Claimant is, that the Act is 
 qualified, so that it could not affect it unless by judicial process and appli- 
 cation 258 
 
 (1) Discordant views of the Crown — the Attorn^ General assumes 
 
 that the Act took effect, without argument ; the Lord Advocate 
 
 strikes out words and substitutes others 258 sqq., 268 
 
 (2) The Act must be read in the natural sense of the words used, not 
 according to the supposed intention of the framers of the Act ; 
 
 and must be strictly interpreted, being a highly penal statute . 259 sqq., 263 
 
 iii. The question is, can the grants of James III. be judicially held to have been 
 
 " prejudicial " to James IV. ? 268 
 
 (1) The Crown are bound to prove the grant of the Dukedom pre- 
 judicial, but they have not done so ..... . 268 
 
 (2) The evidence of James IV., in the preamble to the Regrant, is 
 
 conclusive, that it was not prejudicial ..... 270, 271 
 
 (3) The reason given in the Act Rescissory for the annulment, viz. 
 that the grants made were for the assistance and counsel which 
 occasioned the King's death, is not applicable to David Duke of 
 Montrose, who consequently, by Scottish law, cannot be affected 
 
 by it 273 
 
 iv. If the Act be construed according to these principles, this branch of the 
 case is ended, because, unless the Act at once, per se, annulled the patent, 
 the patent stands — and all else is legally immaterial 273, 274 
 
 2. Contemporanea expositio : — 
 
 i. Examination of the evidence adduced by the Crown to shew that the Act 
 
 took effect 273 sqq. 
 
 (1) Two of the cases are after 1493 — when they would be rescinded 
 
 by the unexceptionable Act 1493 ;...... 276 
 
 (2) Two are before the Act Rescissory, — the rescission is attributed to 
 the Proclamation, but the Proclamation could not legalise such 
 resumption — it was (as stated) mere oppression and tyranny . 277 
 
 (3) The Exchequer Rolls prove — 1. That the Duke held the estates 
 during the whole period between the two patents ; 2. That they 
 were resumed after his death. But that resumption may be 
 attributed to the Act 1493— there is no necessity to attribute it 
 to the Act Rescissory. Tyranny was rife at the period against 
 
 the followers of James III., and against the Duke . . . 279 
 
 ii. Vindication of the Claimant's evidence, shewing that the Act did not take 
 
 effect in the case of grants by James III. m pari cam with the Dukedom . 281 
 
 iii. Vindication of the Claimant's argument, that the Duke always insisted on 
 
 his right to the Dukedom, and never did any action except as Duke . . 283 sqq. 
 
 iv. The Regrant 290 sqq. 
 
 (1) There is nothing to preclude the Litera, or second patent, being 
 hereditarj', in conformity with the Act 18th Sept. 1489, on 
 
 which it proceeds 292 sqq. 
 
 d 2 
 
[xxviii] CONTENTS. 
 
 Page 
 
 (2) Whether for life or not, it could not derogate from the original 
 orant, which had been neither forfeited nor resigned. Except as 
 witnessing to the fact that the original creation was not " preju- 
 " dicial " to James IV., the Regrant (not proceeding on resignation) 
 is wholly immaterial to the present claim, which is based exclu- 
 sively on the original creation 290, 294 
 
 V. To the objection that the Duke is styled ' Earl of Crawford ' during the 
 interval between the Act Rescissory and the Regrant, the Claimant has 
 cited similar cases ; but the fact is, like all these later questions, immaterial 294 
 
 vi. The Norfolk case 29$ sqq. 
 
 (1) Vindication of its parallelism with the present case . . . 296 
 
 (2) It is strictly applicable and binding, as regards the strict construc- 
 tion of penal statutes and the impossibility of giving a general 
 Act the eflfect of an Attainder, without specification of the dignity 
 
 struck at, &c. .......... 297 
 
 vii. The Glencairn case 298 sqq. 
 
 (1) The judgments of the Court of Session were all uniform and con- 
 sistent—in favour of the patent 28th May 1488 .... 304 
 
 (2) Proof that the Court of Session was not only of competent but 
 
 exclusive jurisdiction in 1648 ....... 299 sqq. 
 
 (i) By repeated Acts of Parliament (i. e., as referred to, that 
 of 1457, constituting the ' Lords of Council and Session,' 
 and that of 1532, constituting and conveying to the 
 ' Court ' or ' Lords of Session ' the whole power and 
 authority of the ' Lords of Council and Session ') the 
 authority of the ' Court of Session ' was made final in all 
 civil causes, without appeal to King or Parliament . 300, 302 
 
 (ii) The Court of Session practically exercised this jurisdic- 
 tion without question or appeal till 1688, since which 
 time (the Claimant cannot at the moment say how, and 
 it is a matter of no relevance to the present argument) 
 the custom of appeal has been established — not to Parlia- 
 ment collectively, but to the House of Lords . . 303 
 
 (iii) As regards dignities, from the earliest times till the 
 Revolution two tribunals only exercised jurisdiction, 
 the Privy Council summarily and in the first instance, 
 whether on reference from the Crown or otherwise, the 
 Court of Session ultimately and inherently ; while, 
 practically, during all this time, peerage claims were 
 discussed and finally decided by the Court of Session, 
 alone — there being no instance of the decision of a 
 peerage claim by Parliament or by any other tribunal, 
 and no instance of an appeal from the Court of Session 
 to the Crown or Parliament except the appeal of 
 Eglinton to the rebel Parliament in 1649, which Parlia- 
 ment, with all its proceedings, including the Decreets 
 in consequence of that appeal, was rescinded in 1661 . 301, 302 
 
 (iv) In answer to a question by a Noble and Learned Lord, 
 ' On what then does the power of this House in peerages 
 ' rest ? '■ — the House of Lords has no power or jurisdic- 
 tion ; the House sits, not as a House but as a Committee 
 of Privileges on reference from the Crown, and no 
 appeal lies to it from the Court of Session . . . 300 
 
 (v) In answer to another question — there is no reason why 
 the Court of Session cannot entertain peerage questions 
 now — it has entertained them since the Union . . 300 302 
 
 (vi) But all this is irrelevant to the question of the authority 
 of the Court of Session in 1648. Whatever change 
 may have been introduced in 1688, the Court was com- 
 petent in honours in 1648, both by authority and 
 practice. And no objection was then taken to its com- 
 petency, when such objection would have been so relevant 303 
 (3) Proof that the effect of the Act Rescissory was the very point 
 
 decided in 1648 . . . on^ 
 
 304 sqq. 
 
CONTENTS. [xxix] 
 
 Page 
 
 (4) The judgment of 1648 is a decision, not on this very patent, but 
 on this very Act Rescissory, on a patent identical with this patent, 
 and on the very question now submitted to the Committee— a 
 decision pronounced after eleven years' inquiry, by the Supreme 
 Civil Court of Scotland, a Court of exclusive jurisdiction, and 
 which decision has regulated the Glencairn and Eglinton pre- 
 cedency ever since. The appeal to Parliament was, under any 
 circumstances, illegal, independently of the Parliament being then 
 (in 1649) in rebellion, after the execution of Charles I. And 
 the whole proceedings of that Parliament were specially rescinded 
 
 after the Restoration 305, 306, 307 
 
 (5) Lord Loughborough's judgment in 1797 was delivered in ignorance 
 of the ruling decision in 1648, and proceeds on ignorance, error, 
 
 and misapprehension throughout 307 
 
 viii. The Act Rescissory is rescinded by the Act Revocatory of 1503-4 . . 308 
 
 (1) The penitence of James IV. and the rebellious nobles is matter of 
 history 308 
 
 (2) The Act 1503-4 revokes acts and statutes hurtful to the King's 
 
 Soul, his Crown, or Holy Kirk 308 
 
 (3) To what other Act can it refer, if not to the Act Rescissory ? . 308 
 
 (4) If the Act Rescissory is to be interpreted by the intention of the 
 legislature, as gathered from the circumstances of the time, then, 
 in plain justice and consistency, the same rule must be applied to 
 the Act Revocatory of 1503-4, and it must be held that by this 
 
 Act of 1503-4 that of 1488 is repealed 308 
 
 ix. All that is asked is, that, reading these Acts, especially the Act Rescissory, 
 according to their natural interpretation, and in accordance with the rule of 
 strict interpretation in penal statutes, the House should construe them in 
 favour of justice, right, truth, and loyalty,- — the construction contended for 
 by the Claimant being the only one which will prevent the penal Act in 
 question from being an Act for the encouragement of disloyalty and wicked- 
 ness, and which will make it at least powerless to effect great and irreme- 
 diable wrong 309 
 
 VI. Speech of the Lord Chancellor. 
 
 I. The Patent, 18th May 1488 311 
 
 Its completion doubtful, but he will assume that it passed . . . . . . 311 
 
 II. The Act Rescissory, 17th October 1488 313 sqq. 
 
 1 . Whereas it is argued that the dignity could only be lost by Attainder or Resignation, it 
 
 could be destroyed by the Omnipotence of Parliament 312,314 
 
 2. Construction of the Act ............ 313 sqq. 
 
 i. If an Act of Parliament, and if the words " creacion of new digniteis " pro- 
 perly refer to the creation of the Dukedom, the Act destroyed it, and there 
 was no necessity for an Attainder — Parliament (as stated) was omnipotent 313 
 
 ii. Whereas the Claimant argues that the Act Rescissory is qualified, and the 
 words " which might be prejudicial " imply that such grants only shall be 
 annulled as shall be found to be " prejudicial " on due legal inquiry ; it is 
 impossible for language to point to the Dukedom more clearly, — all 
 creations of new dignities are abolished — the words " which might be 
 " prejudicial " are merely an inaccurate (if it be inaccurate) way of 
 explaining the motive of the legislature in annihilating those dignities — it 
 means that all the grants within the proscribed period shall be annulled 
 because they are or might he prejudicial to the King's successor . . . 314 
 
 iii. This is confirmed by the language of the Act 15th Feb. 1489-90, which, in 
 referring to the Act Rescissory, and ordering that the charters of James 
 III. should be brought in and destroyed, describes the Act Rescissory as 
 having annulled aU those grants. That there is no mention of dignities in 
 
 this Act 15th Feb. 1489-90 does not signify at all 314 
 
 But, independently of this second Act, 
 
 iv. Contemporanea expositio (which is pre-eminently admissible in a case like 
 this, involving all the difficulties of antiquity, and where all is in great 
 obscurity) testifies that the Dukedom was annulled : — . . . . 315 
 
 For, 
 
[xxx] CONTENTS. 
 
 Page 
 
 (1) Everything follows which might be expected to follow if it was 
 annulled— the Duke sits in Parliament as ' Earl of Crawford,' is 
 deprived by force or fraud of some of his possessions, then receives 
 a sort of pardon, and is restored to the Dukedom and estates for 
 life— but after his death the Dukedom expires and the estates 
 
 revert to the Crown ^^° 
 
 (2) Whereas it is argued that the Regrant in 1489 was not for life but 
 hereditary, the Act of Parliament 18th Sept. 1489 orders a charter 
 to be executed— the charter itself is not forthcoming, which is not 
 to be wondered at, but we have the registration, and persons con- 
 versant with the Eegister say that grants for life are inserted in 
 an abridged form— the Litera creates the Dukedom for life — the 
 Claimant asks that words should be imported into it to imply 
 a limitation to heirs; but all doubt is removed on con- 
 sidering what would be the circumstances if it were for life, 
 and what if it were hereditary,' — the non-succession of the Duke's 
 heirs to the Dukedom, the reverting of the estates to the Crown, 
 
 and the non-claim for 350 years, prove it was for life only . . 318 
 
 (3) Whereas it is argued that the Duke received the rents of Kin- 
 clevin during the interval between the passing of the Act 
 Eescissory and the Regrant, which could not have been if the 
 Act Rescissory had taken effect — doubts were felt and they were 
 solved by a compromise; but all this is immaterial — the only 
 important point is that the Duke's heirs never had a farthing . 319 
 
 (4) Whereas it is stated that the Duke never acquiesced in the 
 Act Rescissory, that is immaterial. If the Act Rescissory was 
 an Act of Parliament, whether he acquiesced or not was totally 
 immaterial. But, looking at the facts, all the instances in which 
 he called himself Duke were behind the back of the Crown, and 
 whenever the Crown had to speak, and in all public transactions, 
 
 he was called ' Earl of Crawford ' 321 sqq. 
 
 Whereas it is suggested that the Act Rescissory was not an Act of Parlia- 
 ment at all, it was enrolled, which is enough ...... 326 
 
 , Whereas it is argued that the Act Rescissory weis rescinded by the Act 
 Revocatory 1603-4, revoking all acts and statutes of Parliament and other 
 things hurtful to the King's Soul, his Crown, or Holy Kirk ; that Act 
 only revokes something which the Claimant (according to his own principle 
 applied to the Act Rescissory) must prove to have been hurtful to the 
 King's Soul, his Crown, and Holy Church. It was a mere flourish of 
 trumpets, which meant nothing at all. The language is too loose to have 
 the effect attributed to it. And, if effective, why did not the family take 
 back the estates and the Dukedom? ....... 327 
 
 i. The Norfolk case is not a precedent, because 
 
 (1) The Act Rescissory of 1 Henry IV. only annihilated the Acts 
 of the last Parliament of Richard II. And unless it be made 
 out that the creation of the Dukedom of Norfolk was an Act of 
 Parliament, it was not affected. That creation was by the King 
 alone, in Parliament but not hy Parliament — it was not an Act of 
 Parliament .......... 328 
 
 (2) The Duke of Norfolk (son and heir of the grantee) thought he 
 was struck at, and did not assume the title, which shews the 
 interpretation of the time. Parliament in 1425 (in order to get 
 out of a difficulty) informed him that in their opinion he was 
 Duke of Norfolk — he thereupon claimed the Dukedom, and it 
 
 was awarded to him ......... 329 
 
 (3) The Norfolk ratio in the judgment 1425, that the general Act 
 
 Rescissory of Henry IV. could not affect the Dukedom without 
 special nomination of the Duke and his heirs, cannot affect the 
 present case, in which the title is struck at by name— not the 
 title of Duke of Montrose, but all titles granted within the pro- 
 scribed period generally, nominatim ...... 330 
 
 ii. The Glencairn case is not a precedent, because 
 
 (1) Contemporanea expositio exhibits the same series of facts as attended 
 the Dukedom of Montrose. The [son of the] grantee sits as 
 'Lord Kilmaurs,'— a most extraordinary confirmation that the 
 honour was under tood to be annihilated by the Act Rescissory ; 
 and he designates himself on his seal as Lord Kilmaurs only . 331 
 
CONTENTS. [xxxi] 
 
 Page 
 
 (2) In 1503, on the marriage of James IV., according to contemporary 
 history (the narrative of the herald Young), he [i. e. the grandson 
 of the patentee], having made his peace, is created Earl of Glen- 
 cairn ; from which time the title continues in the family,^ — ^the 
 fact that the patent [of 1503] cannot be found is perfectly imma- 
 terial, — the inference is irresistible that he was then created Earl 
 
 of Glencairn .......... 332 
 
 (3) The Court of Session (after a series of discordant judgments, 
 creating a confused state of things, and after Charles I. had 
 taken upon himself to ratify the original Glencairn patent 1488, 
 which he could not legally do against an Act of Parliament, and 
 after a final litigation of eleven years) decided, in 1648, only a 
 few days before the execution of Charles I., that the original 
 Glencairn patent was still in force, and that the Earl of Glencairn 
 therefore took precedence of the Earl of Eglinton. Eglinton 
 (being, as the Lord Chancellor conjectures, on the other side in 
 politics) went before Parliament, and Parliament in 1649 reversed 
 what the Session had done ; and thenceforward Eglinton had 
 precedence, till, on the Restoration, the Act Rescissory of 1661 
 swept away the Act which reversed the decision of the Court of 
 
 Session, so that the Decreet of 1648 was set up again . . . 335 sqq. 
 
 (4) The Claimant's argument here is, that the Court of Session, being 
 a competent tribunal, decided in 1648 something which shews 
 that the Act Rescissory had not the effect of destroying dignities, 
 and that, if so, if the Act did not destroy the Earldom of Glen- 
 cairn, it could, not destroy the Dukedom of Montrose. Un- 
 doubtedly the Court of Session came to the conclusion that 
 Glencairn was entitled to precedence over Eglinton, and it 
 must therefore have come to the conclusion that the original 
 patent was in force. But it is difficult to understand the 
 principles on which the Court proceeded. There was no 
 evidence of sittings in Parliament except sittings which shewed 
 that Eglinton never sat as Earl of Eglinton till after the time when 
 Glencairn sat as Earl of Glencairn. There is no doubt that the 
 Act Rescissory was pressed on the Court in argument, but there 
 is nothing in the judgment which shews that they acted upon the 
 Act Rescissory at all. They might have said, ' We see that 
 ' Glencairn sat as Earl in Parliament before Eglinton, and that 
 ' gives him precedence,' — that might have been the ground of the 
 judgment .......... 338 
 
 (5) But no precedent can be drawn from the transactions of such times. 
 
 The Session having decided one way (in 1648), Parliament as a i 
 
 matter of course decided the other way (in 1649); and afterwards, 
 
 when the tables were turned again (in 1661, after the Restoration), 
 
 the new Parliament revoked what the former Parliament had 
 
 done 339 
 
 (6) The decision of Lord Loughborough, in the Glencairn claim in 
 
 1797, held that the Earldom had been granted, not under the 
 patent 1488 but under some lost patent, the presumption as to 
 which was that it must have been a grant, not to heirs general 
 but to heirs male, — that decision could proceed only on the pre- 
 sumption that the Act Rescissory was in force — there was nothing 
 to annihilate the original patent but the Act Rescissory. (The 
 arguments upon which Lord Loughborough came to that con- 
 clusion need not be adverted to— but he was distinctly of that 
 opinion.) That decision is a precedent on which the Committee 
 may rely with infinitely more satisfaction than on what took 
 place in the Court of Session and in Parliament in the troublous 
 times which occurred at the end of Charles I.'s reign . . . 342 
 
 ix. The Norfolk and Glencairn precedents do not therefore impugn the con- 
 clusion that the Act Rescissory, even if there were no authority on the 
 subject, must have annihilated the Montrose and Glencairn dignities ; while 
 all contemporaneous usage shews it was so understood at the time, every- 
 thing done since has been on the assumption of annihilation, and three 
 centuries and a half have elapsed without a claim to the Montrose Duke- 
 dom — which is a strong argument to shew that there was some reason why 
 no claim was made .......... 343 
 
[xxxii] CONTENTS. 
 
 Page 
 
 III. Eesolution proposed accordingly — the same as was ultimately adopted, with the exception of the 
 
 clause, subsequently introduced, relating to the Regrant 18th September 1489 ... 343 
 
 VII. Speech of Loed St. Leonaeds. 
 
 This case lies in the smallest possible compass, — -prima facie the Claimant had half-a-dozen facts almost 
 
 impossible to get over 344 
 
 Time goes for nothing — (the Devon case is not parallel, for there was nothing striking at that dignity ; it 
 was a question of the construction of a limitation) — but it would be wise to put a limitation of 
 time on claims to peerage, so as to prevent expense and loss of time to the House, to the 
 Crown, and to persons in a position similar to that of the Duke of Montrose, who may naturally 
 feel unwilling that claims which they think injurious to them shall be established unless with 
 full right on the part of Claimants. In the present case, if the investigation had been left to 
 the Crown alone — if the Crown had not thought proper to incur the expense of procuring evidence' 
 against the claim — and if the Duke of Montrose had not been aroused by the claim, and had not gone 
 to the expense of procuring that evidence of which the Crown has made use, the case would not have 
 been elucidated in the manner in which it has been elucidated ....... 345 
 
 I. The Patent, 18th May 1488 346 
 
 It admits of no doubt ............. 346 
 
 II. The Proclamation at Scone, 12th June 1488, annulled all grants by James III. since the 2nd 
 
 February preceding ; and all accounts lead to the conclusion that the reign of James III. was 
 considered by his successors and by Parliament to have ended on the 2nd February. The Pro- 
 clamation could not by law destroy the grants of James III., but it shews the intention of the 
 Crown to strike at those grants. Probably some of the property may have been resumed and 
 regranted before the Act Rescissory ; but this was after the Proclamation, with the intention of 
 the Crown and knowledge of the Crown that the grants of James III. would be defeated by 
 Parliament ............... 346 
 
 III. The Act Rescissory, 17th October 1488 346 sqq. 
 
 1. Construction of the Act — as to which the Noble and Learned Lord never from the first 
 
 moment could entertain the slightest doubt ........ 347 sqq. 
 
 i. Whereas it is argued that this was an Act of rebels directed against a loyal 
 subject, it signifies nothing whether the framers of it were loyal or disloyal 
 — loyalty to James III. was disloyalty to James IV. — David Duke of 
 Montrose was not considered loyal by James IV. till he restored him partly 
 to favour — the patent 18th May 1488 set forth the Duke's services to 
 James III. at the Battle of Blackness ; nothing could tell so strongly 
 against him with James IV. as that patent ...... 347 
 
 ii. Looking to the words of the Act, the grants rescinded are described as made, 
 not by the late King but by late " Our Sovereign Lord's father." Beyond 
 all possibility of doubt, the date that the successful party had assigned as 
 the real termination of the reign of James III. was the 2nd February. 
 Throughout these Acts, in all places where James III. is referred to, it is 
 as to the present King's father ; he is not described as King, — it is not till 
 a later period that they refer to him as King. They treat him therefore 
 as a person who made these grants without having the authority to do so . 348 
 
 iii. The words " which might be prejudicial" imply—' all grants which might be 
 ' so but for this Act, but for what we are now doing, but for this provision,' 
 because they were granted from bad motives against the Crown that now is. 
 All grants are struck at which might be prejudicial— therefore they are 
 struck at, because so they might have been if they had not been struck at . 349 
 
 iv. There can be no doubt therefore as to the construction of the Act ; but if 
 there had been any doubt, what are we to say after 360 years of acquies- 
 cence in this construction, and when every act entitled to any weight which 
 has occurred since is, when properly considered, consistent with this con- 
 struction ? ■••....... QKf) 
 
 For example, 
 
 (1) The Duke never sat in Parliament as Duke,— and he had no 
 opportunity of doing so o cq 
 
 (2) It is beyond all question that whenever the Duke had an oppor- 
 tunity of using the title in a way which could not be prevented, 
 he used it ; but when the Crown speaks, it calls him ' Earl of 
 
CONTENTS. [xxxiii] 
 
 Page 
 ' Crawford.' Nothing therefore tells with such wonderful efiect 
 against the title as the very attempts which the Duke made to set 
 it up ; because he never set up the title in the presence of the 
 Crown, he never did a single act with the title of Duke which 
 was not immediately repelled by the Crown. All these acts are 
 quite conclusive against the Claimant ..... 350, 352 
 
 (3) Whereas it is argued from the testimony of James IV. in the 
 Regrant 18th September 1489, that it is impossible to hold 
 that the Dukedom, as granted in 1488, was prejudicial to 
 James IV. ; the Duke's Protest 29th October 1488 shews the 
 terms on which he stood with the King— it shews he was pardoned 
 provided he resigned the hereditary Sheriffdom of Forfarshire to 
 Lord Gray — You see there what the feelings of James IV. were 
 towards the Duke ......... 350 
 
 (4) Whereas it is argued that the Regrant was hereditary, and that 
 it was a Confirmation of the original Patent ; it was not a Con- 
 firmation, but a mere grant for life, the consequence of the 
 partial restoration of the Duke to favour, obtained by his per- 
 mitting himself to be stripped of the Sheriffdom of Forfarshire . 353 
 
 For, 
 [i. The Act, I8th September 1489.] 
 
 (i) Comparing the original patent with the Regrant, while 
 the original patent is in the strictest' sense hereditary, 
 the Regrant (which is to be carried into effect by a 
 regular charter) is wholly silent as to heirs. On that 
 document (the Act 18th Sept. 1489) alone the Noble 
 and Learned Lord would be of opinion that the 
 Dukedom was regranted only for life. The same 
 estates and title are regranted without the former words 
 of limitation ; and, in making the regrant of the estates, 
 they are called the estates of the Crown — they could 
 only be such if the original patent had been annulled . 353 
 
 (ii) The consideration of the Regrant was services which 
 were to be performed, not to the dead monarch but to 
 the living monarch ....... 354 
 
 (iii) The grant is — not to the Duke of Montrose, but to 
 
 the ' Earl of Crawford ' 354 
 
 (iv) It is a mockery therefore to call such a grant a Con- 
 firmation — no man living, as a lawyer, can say it was 
 such. There is not a single word in that grant which 
 can be twisted into anything like a Confirmation — the 
 whole points to a new grant ..... 354 
 
 (v) But it is unnecessary to discuss whether the Act 
 18th Sept. 1489 implies a limitation to heirs, because 
 we know what followed, — ..... 355 
 
 We have 
 
 [11. The Litera, I9th September 1489.] 
 
 (i) The Litera, or charter, 19th Sept. 1489, recorded in the 
 Great Seal Register — which tells us in so many words 
 that the Dukedom was regranted for life, and also that 
 the estates were so granted — the grant of the estates 
 (which are not mentioned in the regrant of the dignity, 
 the Act 18th September) depending entirely upon the 
 Litera 355 
 
 (ii) Whereas an ' &c.' is pointed out in the registration, and 
 this ' &c.' is said to import, contrary to the words of 
 the Litera, that there was a limitation beyond to heirs, 
 and documents of all sorts have been produced to shew 
 that in Scotland there have been grants for life which 
 sometimes extended to heirs, and one to shew that a 
 grant to a man for life was followed by a limitation to 
 heirs in the tenendas clause, which is stated to be repre- 
 sented in this registration by the above ' &c.,' 
 
 [1] The Noble and Learned Lord never knew so 
 much weight laid on an ' &c.' 
 
[xxxiv] CONTENTS. 
 
 Page 
 
 [2] All these instances are inapplicable, for reasons 
 assigned. And, 
 
 [3] Such being the fact, this leaves the question 
 to stand on the construction of the Grant 
 itself (the Act 18th Sept. 1489) and on the 
 Litera ....... 355 
 
 (iii) The Noble and Learned Lord's opinion is clear that 
 
 the Regrant was for life only ; but, if there be any 
 
 doubt, contemporaneous usage must guide the House, 
 
 especially when the House is called on to supply words 
 
 in an ancient grant which are not there. — For example, 
 
 [1] The Dukedom dropped on the death of the 
 
 Duke, and there has been no claim for 350 
 
 years. 
 
 [2] While the Duke's widow continued to bear the 
 
 title of Duchess, his heirs were simply Earls 
 
 of Crawford. 
 
 [3] "Whatever difficulty there might be as to 
 
 assuming the title, there could be none as to 
 
 the estates ; but the Crown took possession on 
 
 the Duke's death, and the Duke's successors 
 
 never claimed them. 
 
 It is impossible therefore to have any doubt as to the 
 true construction of these documents — all men at all 
 times having put the same construction on them from the 
 first moment till now ....... 357 
 
 V. With respect to the Acts 15th Feb. 1489-90, 26th June 1493, and 
 13th March 1503-4, relied upon by the Claimant as repealing the Act 
 Rescissory — the two former on the alleged ground that, being in pari materia, 
 both of them pointedly omit dignities, and the third as absolutely revoking 
 the Act Rescissory, 
 
 (1) The Act 15th Feb. 1489-90 is perfectly conclusive against the 
 Claimant. The recital shews clearly that the Parliament treated 
 the Act Rescissory as an Act which had annulled the grants of 
 James III. It does not refer to dignities, but requires the 
 grantees of James III. to bring in their charters ; and the reason 
 is that, James III. having ceased to reign on the 2nd February, 
 those grants were of course not allowed to continue as real grants, 
 and were not treated as real grants by the monarch on the throne. 
 This Act, therefore, so far from being adverse to the Act Rescis- 
 sory, aided, confirmed, corroborated, and extended the powers of 
 the Act Rescissory. It did not refer to dignities, because only 
 two had been granted within the proscribed period, and both 
 grantees had acquiesced in the Act Rescissory — the Duke by 
 accepting the Regrant, limiting the Dukedom to his life, the Earl 
 
 of Glencairn by not claiming the Earldom .... 358 359 
 
 (2) The Act 26th June 1493 is for further annulling grants and 
 referring to resignations ; and it evidently does not at all touch 
 
 the question ........,_ ggQ 
 
 (3) The Act 13th March 1503 (the Noble and Learned Lord reading 
 the two Acts that precede and follow the Act founded on by the 
 Claimant as separate clauses of one and the same Statute or 
 enactment) deals wholly with the affairs of James IV. 's soul and 
 of his church — i. e. the chapel of Stirling. It is clear that to 
 bring the Act Rescissory within the operation of the Act of 
 1503-4, you must shew that that Act was hurtful either to the 
 King's soul, his crown, or his church. The Act of Parliament 
 1503-4 relates therefore wholly to the church and its possessions, 
 is to be confined to those matters, and has not the slio-htest 
 bearing on the Act Rescissory ...... ocn 
 
 vi. The Norfolk case — is not a precedent, because, on reference to the Rolls of 
 Parliament, it appears that the Dukedom was created in Parliament but 
 not by Parliament— which is a clear answer to the Claimant's argument . 362 
 
 vii. The Glencairn case— (in which the House have had a most unusual 
 difficulty thrown upon them, viz. that of trying the Glencairn peerage claim 
 
CONTENTS. [xxxv] 
 
 Page 
 which was decided in 1797, and travelling through a mass of evidence in 
 order to see how far the proceedings in that case can be brought forward as 
 a precedent in this) — is not a precedent, for the following reasons : — 
 
 (1) The case of the Earldom of Glencairn exactly tallies in all its 
 circumstances with that of the Dukedom of Montrose— it exactly 
 follows the same fate, shewing the truth of the transaction (i. e. of 
 
 , the view taken by the Noble and Learned Lord ?) . . . 362 
 
 (2) The patentee having fallen with James III. at the Battle of 
 Stirling, his son sits in the Parliament of October 1488 as ' Lord 
 ' Kilmaurs,' and executes many acts by that title. No one can 
 persuade the Noble and Learned Lord that if Lord Kilmaurs was 
 entitled to the Earldom of Glencairn, he would not have taken 
 
 that title 362 
 
 (3) Then comes the sitting in Parliament as Earl of Glencairn in 
 1505 ; and this House in 1797 positively decided that tiiat sitting 
 
 was not under the patent 1488 363 
 
 (4) In order to ascertain how that sitting took place, in order to draw 
 a presumption as to the limitation in a patent which cannot be 
 found, we have a right to look to history ; and Leland states that 
 on the marriage of James IV. in 1503 three noblemen were 
 created Earls, Arran, Montrose, and Glencairn — a clear creation, 
 wanting the patents [sio] 363 
 
 (5) Whereas it is objected that Lord Loughborough (who is always 
 spoken of with great reverence in the House of Lords) states 
 in his Speech on moving the Resolution in 1797 that the creation 
 in 1503 took place by " belting " alone, and it is urged that an 
 honour cannot be created without a written patent ; if Lord 
 Loughborough made use of that expression (" belting "), he was 
 only speaking in common parlance. The King, who created by 
 words the three dignities, finished the ceremony by belting them, 
 and therefore Lord Loughborough said they were created by 
 " belting," — and antiquaries are now perfectly shocked to think 
 that he should have used such expressions, and say it takes away 
 the whole weight of the decision. The Noble and Learned Lord 
 has read the Judgment more than once — it was perfectly right, 
 and Lord Loughborough was perfectly justified in putting an end 
 
 to that claim .......... 364 
 
 (6) The Ratification 1637, by which Charles I. thought fit to attempt 
 to confirm the original Glencairn patent, but which could not be 
 done by law, introduced an element into that case which does 
 
 not exist in this, and destroys it as a precedent .... 365 
 
 (7) Whereas it is stated that in 1648 the Court of Session alone had 
 the right of adjudicating in peerages, this is not made out to the 
 Noble and Learned Lord's satisfaction. Lord Karnes, as testi- 
 fying to the opinions of the day, to what was passing in men's 
 minds generally in regard to that supposed jurisdiction, con- 
 tradicts it. The jurisdiction was originally in the Lords of 
 Session, a Committee of Parliament, — whether there was an 
 appeal to Parliament, or not, is utterly unimportant. When the 
 later Court of Session was created by authority of Parliament, it 
 was created only with jurisdiction in civil actions — if cases of 
 honours were considered as civil actions, they would have juris- 
 diction in honours — but is it possible that a question so important 
 as dignities could be left to the Court of Session, and without 
 appeal ? It is said there was no appeal from the Court of Session 
 (the later Court) because there was no appeal from the Lords of 
 Session (the earlier). But the Lords of Session were a part of Par- 
 liament, and the Court of Session was a court of justice, and not the 
 proper forum to refer such matters to. Even if the Court of Session 
 were the proper forum, there is nothing to shew that there was not 
 an appeal to Parliament itself from the very necessity and nature of 
 the case, unless excluded by the express words of the Act of Parlia- 
 ment. No one has answered the Noble and Learned Lord's 
 question (put during the discussion). How did this House get 
 its jurisdiction in peerage matters ? If the Court of Session 
 possessed the jurisdiction before the Union, why does it not 
 possess that jurisdiction now ? But if this jurisdiction has passed 
 
 e 2 
 
[xxxvi] 
 
 CONTENTS. 
 
 IX. Opinion of Lord Lyndhurst, 
 
 AS STATED BY LORD St. LEONARDS. 
 
 Page 
 
 (as it ought to have passed) by authority of the Crown to this 
 House — if there is nothing (as is admitted) in the Act of Union 
 to deprive the Court of Session of the jurisdiction if they had it 
 previously — then the jurisdiction must have been in the Parlia- 
 ment, and not in the Court of Session, previously to the Union, and 
 in 1648. The exclusive jurisdiction claimed for the Court of 
 Session falls therefore to the ground ...... 365 sqq. 
 
 (8) But the matter has no important bearing on the case one vi'ay or 
 the other ; for the decision always went according to the power 
 that ruled at the moment, — the very Resolution of 1648 [i. e. the 
 Decreet by the Court of Session] was upset by a Eesolution of 
 the Parliament in 1649, and that Parliament itself was struck at 
 by a subsequent Resolution [i.e. by the Act Rescissory after the 
 Restoration, in 1661]. It amounts to nothing but a continual 
 uncertainty and fluctuation in the decisions on the subject, which 
 detracts from the weight due to any one of tliem or all of them 
 together ........... 369 
 
 (9) The thing therefore remains untouched, and the decision of Lord 
 Loughborough in 1797 comes in. There is no use in attempting 
 to retire from that decision, for it binds the House. It was as 
 follows : — • 
 
 (i) That the patent 1488 was destroyed by the Act 
 
 Rescissory ; 
 (ii) That the sitting in 1505 must not be referred to the 
 
 patent 1488, for it did not exist — but to some other 
 
 patent which you have not got ; 
 (iii) That the sittings being always in the succession of heirs 
 
 male, to the exclusion of heirs general, the presumption 
 
 of law is that the later grant must have been to heirs 
 
 male; 
 
 (iv) That the Claimant (Sir Adam Fergusson) had not 
 
 therefore made out his claim 371 
 
 (10) The Glencairn case is therefore no precedent for the Claimant, 
 but, on the contrary, taken as a whole, is against him, — and, while 
 brought forward simply as a precedent, the House has had to 
 travel through it day after day, as if retrying the Glencairn case. 
 If precedents are to occupy so much time, there is no reason why 
 a claim of this sort should not last as many months instead of so 
 many days 371 
 
 viii. The Noble and Learned Lord has looked at this claim with great anxiety, 
 with a desire to give it effect if just ; but with an equal desire to do justice 
 towards the Crown and the public, and to those persons who think them- 
 selves aggrieved by the claim ■••..... 372 
 
 VIII. Opinion of Lord Brougham, 
 
 AS STATED BY LORD St. LEONARDS. 
 
 Lord Brougham entirely concurs in the Resolution proposed by the Lord Chancellor 3179 
 
 Lord Lyndhurst concurs on the two points, 1. That the Act Rescissory was a revocation of the 
 dignities ; 2. That the construction of the Act is that pointed out by Lord St. Leonards. But 
 the Noble and Learned Lord gives no opinion upon any other part of the case, not having 
 heard the whole of the arguments, nor sufficiently followed the case in its subsequent bearings 372 
 
 X. The Resolution, 
 
 AS FINALLY AMENDED AND CARRIED . . . 370 
 
CONTENTS. [xxxvii] 
 
 IV. 
 APPENDIX, 
 
 CONTAINING THE LEADING DOCUMENTS ADDUCED AND EEFEEEED TO, AND THE 
 OEAL EVIDENCE DELIVEEED, BY AND ON BEHALF OF THE CLAIMANT AND THE 
 CEOWN, IN THE PEESENT CLAIM.* 
 
 Page 
 I. Deciding Speeches on the Preliminary Question of the right of .James Duke of Montrose (under 
 the later creation) to oppose in the claim ; with subsequent conversation, and the Resolution 
 14thAprill851 373* 
 
 II. Charter, or Patent, by James III., 18th May 1488, changing and elevating the Earldom of 
 
 Crawford into the hereditary Dukedom of Montrose ........ 375 sqq. 
 
 III. Proof' that David Duke of Montrose did not resign the dignity ...... 380 
 
 IV. The Act (which has been styled the Act) Rescissory, and later statutes in pari materia, : — 
 
 1. The Act Rescissory, 17th October 1488 — ordaining in general terms that such grants of lands, 
 
 offices, dignities, &c., made by James III. since the 2nd February preceding, as "might be 
 " prejudicial " to James IV., " be cassed and aimulled," because granted in reward of aid and 
 counsel rendered to the late King ; and which Act is held by the Officers of the Crown and by 
 the Committee to have cut down the Dukedom of Montrose, per se, without qualification, and 
 without inquiry or trial, although neither the Dukedom nor the Duke are named in it, although 
 the Act (as the Claimant contends) requires legal application to make it effective, and although 
 (as will appear) it was a dead letter, took no effect, and was null and void, ab initio . . 381 
 
 2. The later or Supplemental Act, 15th Feb. 1489-90, which, in reciting and endeavouring to prop 
 
 up the Act Rescissory, pointedly and twice omits dignities ; and which orders the charters of 
 
 James III. to be brought in and destroyed — :but which order was not obeyed .... 381 
 
 3. The Act 26th June 1493, conceived in the usual form for rescinding improvident grants of Crown 
 
 property, and which, in rescinding ex time the same classes of grants that are struck at by the 
 
 Act Rescissory, also (like the Act of 1489-90) omits dignities 382 
 
 V. Acts of Parliament and Documents bearing upon the present validity of the Act Rescissory : — 
 
 1. The Act styled " The Proposition of the Debate of the Field of Stirling," 17th October 1488 . 383 
 
 2. Bull of Pope Innocent VIII., 5th July 1491 — proving the excommunication, penitence, and 
 
 absolution of the rebel faction which dethroned James III. ....... 384 
 
 3. Act of Parliament, 20th Feb. 1491-2, virtually disowning the Act Rescissory .... 386 
 
 4. Act Revocatory, 13th March 1503-4 — contended by the Claimant to have repealed in general 
 
 terms the general Act Rescissory ........... 387 
 
 VI. Parallel case and precedent of the Dukedom of Norfolk — created in 1397, struck at by a general 
 
 Act Rescissory in 1399, not assumed by the heirs to the dignity, but decided in 1425 not to 
 have been affected by the Act, because not specially mentioned by name, and because other 
 grants in pari casu had stood, unaffected by the Act : — 
 
 1. Patent of the Dukedom of Norfolk, 29th September 1397 388 
 
 2. Narrative of the Inauguration of the Dukedom of Norfolk in Parliament 389 
 
 3. Act Rescissory, 1 Henry IV., 6th October 1399 391 
 
 4. Judgment in the Norfolk claim, 1425 391 
 
 5. Extracts from Sir Edward Coke's Report of the Cornwall or ' Prince's Case,' in 1605 . . 393 sqq. 
 
 6. Confirmation of the Norfolk patent, in 1444 398 
 
 VII. Instances relied upon by the Claimant to prove that grants made by James III. within the 
 period struck at by the Act Rescissory stood unaffected by it, — the Claimant's proposition 
 being, that in no one instance, as yet ascertained, did the Act Rescissory take effect : — 
 
 1. Instances in which James III.'s charters were confirmed in regular course hy James IV., 
 not in consequence of any flaw, hut in usual form, for the purposes of public registration, as 
 in the Qflse of other genuine and unexceptionable charters : — 
 
 i. Charters of confirmation of valid charters, for the purpose of registration — adduced to 
 
 shew the regular form of such confirmations 398 
 
 ii. Charters of confirmation containing a non-dbstante clause intended to salve flaws in the 
 charters confirmed — adduced to shew the peculiar form of such confirmations in the 
 case of invalid grants 399 
 
 * The titles are given here as briefly as possible. Fuller descriptions, as prefixed to the different documents, may be seen 
 on reference to the pages indicated. 
 
[xxxviii] CONTENTS. 
 
 Page 
 
 402 
 
 sqq. 
 
 404 
 
 sqq. 
 
 407 
 
 
 407 1 
 
 sqq. 
 
 410 
 
 
 412 
 
 
 412 
 
 
 413 
 
 
 413 
 
 
 414 
 
 
 415 
 
 sqq, 
 
 417 
 
 
 iii. The Kilgarry grant by James III. to Collace of Balnamoon, — Charter 17th May 1488, 
 and Confirmation 23rd March 1499-1500, conceived in the precise form of confirmations 
 
 of valid grants, as above illustrated 401 
 
 iv. The Kilgarry grant by James III. to Somyr of Balyordie, and Confirmation tliereof . 402 
 
 V. The Kenmure grant by James III. to Gordon of Lochinvar, and Confirmation thereof 402 
 
 2. Instances in which James Ill's charters {granted, as above, during the proscribed period) 
 stood, on their own ground, without Confirmation, in the face of the Act Bescissory : — 
 
 i. Grant of the Sheriffaom of Stirlingshire to the Cunninghams of Polmaise, 14th February 
 1487-8, viith relative proofs 
 
 ii. Grant of the Petty Customs of the Burgh of Brechin, 28th April 1488, to that Burgh, 
 with relative evidence ......•••■•• 
 
 iii. Grant of the Earldom of Glencairn— created in pari casu with the Dukedom of Mon- 
 trose : — 
 
 (1) The Glencairn Patent, 28th May 1488 
 
 (2) Evidence, adduced by the Crown, to shew that the lands of Drummond and 
 
 Duchray, granted by the Glencairn patent, were not enjoyed under it 
 
 (3) Evidence adduced by the Crown, to shew that the style of the son and grandson 
 of the Glencairn patentee was ' Lord Kilmaurs ' simply till 1 503 . 
 
 (4) Narrative, objected by the Crown, of the Inauguration of the Earldoms of Arran, 
 
 Montrose, and Glencairn, in 1503 .,....•• 
 
 (5) Evidence, adduced by the Crown, that " Cuthbert Earl of Glencairn" flourished 
 as such in 1505 . . ........ 
 
 (6) Evidence, adduced by the Crown, that the Earldom of Montrose was created in or 
 about 1503-5 
 
 (7) Evidence, adduced by the Crown, that the Earldom of Arran was created in 
 
 1503 
 
 (8) Evidence, for the Claimant, that the Glencairn patent 1488 was acted upon and 
 recognised by James IV., as conveying the dignity and the estates, in 1515-6 
 
 (9) Evidence, for ditto, that the Glencairn patent 1488 was recognised by the Lords 
 of Council and Session, the Supreme Civil Court, as conveying the dignity, 
 though not the estates, in 1516-7 ........ 
 
 (10) Further recognition, by Mary Queeu of Scots, in 1550, of the Glencairn patent 
 1488 
 
 (11) Decreet of Ranking of the Scottish Peerage, under authority of James VI. and 
 the Privy Council, 5th March 1606, — with reference of aggrieved parties to the 
 Court of Session, or Supreme Civil Court, for further proceedings and rectifica- 
 tion in case of error : — By which Decreet the Earl of Glencairn (through non- 
 appearance and non-production of bis patent) was postponed to the Earls of 
 
 Eglinton, Montrose, Cassillis, and Caithness ...... 418 sqq. 
 
 (12) Decreet of the Court of Session, 7th July 1610 — proceeding on the reference in 
 the Decreet of Ranking, independently of inherent jurisdiction in honours — 
 restoring Glencairn to his precedency over Eglinton and Cassillis in virtue of the 
 
 patent 1488 420 sqq. 
 
 (13) Decreet of the Court of Session, lUh Febr. 1617, reversing the Decreet of 1610 
 on the ground (alone) that the Earls of Montrose and Caithness had not been duly 
 
 summoned ........... 423 sqq. • 
 
 (14) Retour, penult. April 1630, of James seventh Earl of Glencairn as heir of his 
 ancestor Alexander first Earl of Glencairn, the patentee in 1488 . . . 425 
 
 (15) Ratification by Charles I., 21st July 1637, of the Glencairn patent 1488 . . 425 
 
 (16) Summons, James Earl of Glencairn against the Earls of Eglinton, Cassillis, 
 Montrose, and Caithness, 16th August 1637 — the initiatory step in the great and 
 
 final process for precedency decided in 1648 ...... 426 sqq. 
 
 (17) Deliverance of Parliament, 15th July 1641, on a petition from Glencairn, 
 declining to adjudicate in the precedency question, as not " competent " . . 431 
 
 (18) Concluding portion of the ' Minutes of Process * in the preceding question before 
 the Court of Session from 1642 to 1648 — proving that the whole question and 
 pleadings were gradually narrowed and reduced to the single and simple point, 
 whether or not the Act Rescissory had cut down the patent 1488 — which the 
 Court decided in the negative, with repudiation of the suggestion that a new 
 
 patent had been granted in or about 1 504 ...... 432 sqq. 
 
 (19) Decreet, 19th January 1648, by the Court of Session— the Supreme Civil Court, 
 from which there was no appeal — awarding the contested precedency to the Earl 
 
 of Glencairn, in virtue of the patent 1488 as unaffected by the Act Rescissory . 446 sqq. 
 
 (20) Petition to Parliament (then in rebellion) by William Earl of Glencairn, 3rd 
 January 1649, protesting against their (apprehended) interference in the matter 
 of the precedency question between himself and Eglinton, as finally settled by 
 
 the Decreet 19th Jan. 1648 ......... 458 sqq, 
 
 (21) " Memorandum for the Earle of Eglintone," illustrating the fact that the Decreet 
 19th Jan. 1648 proceeded fundamentally on the patent 1488 as unaffected by the 
 Act Rescissory, and the political motives which influenced the interference of 
 Parliament at this juncture ......... 4gi 
 
 (22) Decreet of Parliament ("then in rebellion, and possessing at no time any jurisdiction 
 in such matters), 2nd March 1649, annulling the Glencairn patent 1488 for poli- 
 tical reasons 452 sqq, 
 
 (23) Decreet of Parliament (then in rebellion, &c.) 9th March 1649, annulling the 
 Decreet 1648 as " maynelie proceeding and depending" upon the Glencairn 
 
 patent 1488 464 gqq, 
 
 (24) Act of Parliament, 9th Febr. 1661 (after the Restoration), annulling the Parlia- 
 ment of 1649 which passed the two preceding Decreets, (with all its proceedings, 
 
 without reservation,) as having " usurped " the lawful authority of the realm .' 434 
 
 (25) Proofs, from the records of Parliament, that the Earls of Glencairn enjoyed 
 
CONTENTS. [xxxix] 
 
 Page 
 precedence over the Earls of Eglinton, Cassillis, and Caithness, subsequently to 
 the Eestoration, till the Union, and till the death of the late Earl of Glencaim in 
 1796, in virtue of the final and ruling Decreet 1648, and of the patent 1488 on 
 which that Decreet proceeded ........ 486 sqq. 
 
 (26) Speech of the Lord Chancellor Loughborough (afterwards Earl of Rosslyn) in 
 
 moving the Resolution upon the Glencaim claim, 13th July 1797 . . . 490 sqq. 
 
 (27) Correspondence between Charles II. and the Court of Session, in 1674, 
 respecting Appeals from the Court of Session to Parliament ; and relative 
 
 Minutes ............ 495 sqq. 
 
 (28) Charter, by James IV., 7th Febr. 1507-8, of the lands of Hilton to Cuthbert 
 
 Earl of Glencairn .......... 502 
 
 (29) Charter, by James IV., 24th July 1511, to Cuthbert Earl of Glencairn, of the 
 lauds of the " Comitatus" and barony of Glencairn, which lands had been recog- 
 noseed in consequence of undue alienation without the royal permission ; and 
 erection thereof into a free " Comitatus " and barony . .... 503 
 
 (30) Proof, from the ' Acta Dominorum Concilii,' that Hugh first Earl of Eglinton 
 
 bore and subscribed by the alternate title of " Erie of Mungumry " in 1516 . 505 
 
 VIII. Instances, relied upon by the Crown, to prove that James IV. resumed the lands granted by 
 his father during the period struck at by the Act Rescissory, and regranted them — tlie pro- 
 position being, that this resumption and regrant prove that the Act Rescissory took effect and 
 necessarily destroyed the Dukedom : — 
 
 1. The Baky grant : — Charter, by James III., 13th May 1488, to Alexander Lindsay ; with sub- 
 
 sequent regrant to other parties by James IV., 2iid August 1488 507 
 
 2. The Walkmylton grant: — Charter, by James III., 24:th May 1488 ; and subsequent regrant to 
 
 other parties by James IV., 28th June 1488, &c 507 
 
 3. The Kilgarry grant, to Balnamoon — above adduced by the Claimant 508 
 
 4. The Kilgarry grant, to Balyordie — above adduced by the Claimant ..... 508 
 
 5. The Terrinzean grant: — Charter, by James III., 18th May 1488 ; and subsequent regrant to 
 
 other parties, 18th April 1497, &e 508 
 
 6. The Tarves, Balnageith, &c., grant: — Charter, by James III., 20th May 1488 ; and subsequent 
 
 regrant to other parties, 1st June 1501 509 
 
 XX. Instances, relied upon by the Claimant, to prove that David Duke of Montrose asserted his 
 rights both to the lands and dignity conferred by the patent 1488, and that those rights were 
 allowed and recognised by the Crown, during the interval between the date of the said original 
 patent and that of the Regrant in September 1489 — proving that the Act Rescissory, whether 
 aimed at the Duke or not, took no effect upon the patent ; the rule and practice in Peerage 
 Law here and afterwards being, that the Warrants or Signatures of Royal patents, charters, &c. 
 which pass under the King's own eye and possess his immediate and peculiar sanction, control 
 and govern the interpretation of the charters, or patents, executed in obedience to those 
 Warrants, but out of the King's presence and apart from his knowledge, and in the extension 
 of which the clerks of Chancery frequently took liberties unsanctioned by the Warrants ; and 
 that, where any question arises, the Charter or patent must be read, interpreted, and corrected 
 (if necessary) by the Warrant, so as to bring it into conformity with it — and not vice versa : — 
 
 1. Enjoyment of property granted with the Dukedom : — 
 
 i. Proof that David Duke of Montrose received the rents of the Lordship of Kinclevin, 
 granted by the patent 1488, during the whole interval in question, as proprietor — 
 and not ex gratia, or by indulgence of the Crown ...... . 509 sqq. 
 
 ii. Analysis of, and observations upon, the accounts of the Customs of Montrose, with 
 reference to the question whether David Duke of Montrose did or did not receive 
 the revenues of those Customs during the important interval 512 
 
 2. Enjoyment of the title of Duke of Montrose : — 
 
 i. Grant to Margaret Carmiehael by David Duke of Montrose as Duke ; and Royal 
 Confirmation thereof : — 
 
 (1) Charter by " David Dux de Montross," 20th Oct. 1488, to Margaret Cai-michael ; 
 and Confirmation thereof, by James IV., of the same date, — in the preamble 
 (merely) of which Confirmation the Duke is styled ' Earl of Crawford, but the 
 Charter is confirmed " in omnibus et per omnia," like any other valid charter, 
 
 audit is described in the contemporary title as the " carta Duels de Montrose" . 514 
 
 (2) Proof that Scottish peers were frequently designated by their inferior but older 
 titles : — 
 
 (i) Charter by " Johannes Comes de Levenax," 26th April 1489 ; and Confirmation 
 thereof, as of the charter of ' John Lord Darnley,' by James IV., 6th May 
 1489 — a case precisely similar to the preceding, John Earl of Lennox being 
 in full possession of his Earldom, as by recognition of Crown and Parliament, 
 at the time 515 
 
 (ii) Other similar charters and proofs 516 sqq. 
 
 (3) Proof that David Duke of Montrose was occasionally styled ' Earl of Crawford ' 
 
 (ordy) even after the Eegrant September 1489 518 
 
 ii. Resignation of the hereditary Sheriffdom of Forfarshire to James IV. by David Duke 
 of Montrose ; and the King's acceptance thereof from Duke David, as Duke : — 
 
[xl] 
 
 CONTENTS. 
 
 iii. ^^^f °°;^^^°^;j^™^«»" of George Melville, Esq., on the mode of inserting documents in 
 
 iv. Evidence and examination of William Eraser, Esq., on the same point 
 V. Charters, or 
 
 the words " pro toto tempore vite sue," or words" identical in Ymp"ortrfreque"ntlT prec"ede a 
 
 r!tiiii° it'':f.l^*^^ ?'ip°A»'.^^^ 
 
 vi. Charter, by Robert III., 2ud January 1390, to Sir David Lindsay of Glenesk a-rantino- 1,;™ 
 -to himself personally and alone-in consideration of homage a/d service to bf rendered to 
 the King individually " pro toto temjjore vite sue "-certain property ; and in wh?ch charter 
 the limitation to heirs appears only in the tenendas clause,- with inferences bearintT,™. 
 the abstract of the Montrose Litera 19th September 1489 . . "'^'""^^ Bearing upon 
 
 12. Entries, in the Exchequer Rolls, of the accounts of the Lordship of Kinclevin and of the Customs 
 of Montrose; and other evidence,-adduced by the Crown to prove that, on the death of 
 David Duke of Montrose ,n 1495, the Lordship of Kinclevin and the Customs of Montrose were 
 resumed by the Crown on the ground (as stated on the Rolls) that they had been granted 
 merely or hfe ; and th.t the Duke's successors did not possess those properties-the inference 
 being that the Act Rescissory had cut down the original patent, and that the Duke enjoyed the 
 sa.d Customs and Lordship under the later grant (the Litera, 19th September 1489) merely for 
 
 Page 
 
 (1) Notarial Protest by ' David Duke of Montrose,' 29th October 1488, against the 
 compulsory extortion of the Sheriffdom, narrating the circumstances which pre- 
 ceded and attended it ...... .... 519 
 
 (2) Procuratory by ' David Duke of Montrose,' signed and sealed by that title, 1st 
 November 1488, addressed to James IV., and empowering certain noblemen to 
 
 resign the Sheriffdom into the King's hands ...... 521 
 
 (3) Notarial Instrument, executed by Andrew MacBrek, notary to James IV., 6th 
 November 1488, recording the resignation of the Sheriffdom by 'David Duke of 
 ' Montrose,' as Duke (styled so throughout), through his procurator ; and the act 
 of donation and regrant to Andrew Lord Gray^at whose special and sole 
 
 request the Instrument was drawn up ...... . 522 sqq., 
 
 iii. Indenture between ' David Duke of Montrose' and the Franciscans of Scotland, 2nd 
 
 August 1489 525 
 
 Instances, relied upon by the Crown, to shew that the King and the public functionaries con- 
 sidered David Duke of Montrose to be only ' Earl of Crawford ' during the interval between 
 the first and the second grant of the Dukedom ; and that the Duke acquiesced, by non-assump- 
 tion of the title, in the annulment of the Act Rescissory : — 
 
 1, 2, .3. Notices in the Exchequer Rolls, in July and August 1488, of payments to ' David Earl of 
 
 ' Crawford ' 526 
 
 4. Entry of ' David Earl of Crawford ' on a Commission by James IV. and Parliament, 17th October 
 
 1488 526 
 
 5. Description of the Duke as ' Earl of Crawford ' in the Confirmation to Margaret Carmichael, 
 
 already adduced by the Claimant ........... 528 
 
 fi. In the matter of the Sheriffdom of Forfarshire, — 
 
 Charter by James IV., 14th December 1488, to Andrew Lord Gray, of the Sheriffdom, 
 which had been resigned by ' David Earl of Crawford,' — with the subsequent Precept 
 and Instrument of Seizin, of the same date, in which he is similarly described . . 528 
 
 7. Decreet by the Lords Auditors of Causes, 21st Jan. 1488-9, againts ' David Earl of Crawford ' . 529 
 
 8. Decreets by the Supreme Civil Court, 31st Jan. and 3rd Feb. 1488-9, against ' David Earl of 
 
 ' Crawford ' ............... 529 
 
 9. Act of Parliament, 4th July 1489, appointing the ' Earl of Crawford ' (in his absence) " to be of 
 
 " counsel" to the King " till the next Parliament " 530 
 
 10. Notice, in the Exchequer Rolls, 11th July 1489, of a payment to ' David Earl of Crawford ' . 530 
 
 11. The grant de novo of the Dukedom of Montrose, September 1489, to ' David Earl of Crawford ' 
 
 —maintained by the Crown and ruled by the Committee to have been for life only, and to prove 
 that the Act Rescissory had taken effect on the original patent ; but maintained by the Claimant 
 to have been, necessarily and ex terminis, an hereditary grant— while quite immaterial to the 
 present case, except in so far as it proves that David Duke of Montrose was, and had always 
 been, a loyal subject to James IV. as well as to his father ; and that the creation of the Duke- 
 dom of Montrose could not therefore, ex terminis of the Act Rescissory, have been " prejudicial " 
 to James IV. : — 
 
 i. Act of James IV with advice of Parliament, 18th September 1489, changing and elevating 
 the title of Earl of Crawford, as borne by the ancient Earls of Crawford and by David ' Earl 
 of Crawford (the grantee), into a Dukedom. [With the precisely parallel grant bv 
 James VI, 5th August 1581, of the Dukedom of Lennox] . . . ... 531 
 
 ii. Notice, interpolated in the Great Seal Register, of a Litera, 19th September 1489 nurnortinff 
 to create the 'Earl of Crawford' Duke of Montrose " pro toto tempore vite sue "-but 
 which the Claimant maintains to be a mere imperfect abstract or memorandum not irre- 
 conciIeaWe with the existence of a limitation in the unabridged document and which 
 under any circumstances, falls to be governed by its warrant, the preceding Act of the 18th 
 SeptemDerl489:-With a facsimile of the pages of the Great Seal Register in which the 
 Litera occurs ... o " uii^xi mc 
 
 Charters, or patents of creation of Scottish peerages, adduced by the Claimant to shew that 
 
 the words " nro toto tPmnnrf» v^fa eina " .r.^ ™«„^« :a — i.;_„i :_ ■ , r .-, ^" ,"'*^ 
 
 •t, frequently precede a 
 
 the patentee for life, and to his heirs after-him,3^-it'h"rn¥i:e;^^^^^^ 
 
 notice of the Montrose Litera 19th September 1489 :— auriagea 
 
 (1) Patent of the Barony of Altrie, 29th July 1587 
 
 (2) Patent of the Barony of Napier, 4th May 1627 ra 
 
 (3) Patent of the Barony of Cramond, ult. Febr. 1628 .' '^H 
 
 (4) Patent of the EarJdom of Home, 22nd May 1636 .' 
 
 532 
 
 533 sqq. 
 535 
 
 37 
 538 
 
 539 sqq. 
 
 541 sqq. 
 
CONTENTS. 
 
 [xli] 
 
 XI. Criminal Letters, 23rd April 1512, against John sixth Earl of Crawford (son and sucoessor 
 
 of David Duke of Montrose), and against the two sons of Sir Alexander Lindsay (the Duke's 
 younger brother and Earl John's successor as seventh Earl), viz. David, afterwards eighth 
 Earl of Crawford, arid Alexander Lindsay, accused of having murdered Alexander Lord 
 Lindsay, Master of Crawford, eldest son of the Duke, and Earl John's elder brother 
 
 XII. Report of the Speeches of Lords Marehmont, Mansfield, and Hardwicke, on moving the 
 Resolution on the claims to the Earldom of Cassillis and Lordship of Kennedy in 1762— with 
 the Cases of the respective claimants, &c. : — 
 
 1. The Case of Sir Thomas Kennedy, the heir male 
 
 2. The Case of William Earl of Ruglen, the heir female 
 
 3. Abstract of the Signature [1671] 
 
 4. Abstract of the Charter 1671 
 
 5. Speech of the Earl of Marehmont . 
 
 6. Speech of Lord Mansfield 
 
 7. Speech of the Earl of Hardwicke 
 
 8. Resolution .... 
 
 XIII. Case of the Barony of Spynie, created in 1590 — furnishing a singular and remarkable 
 parallel to that of the Dukedom of Montrose, and illustrating the Claimant's argument 
 throughout, both as regards the nullity of the Act Rescissory and the limitation of the Montrose 
 patent : — With notes of the Speech of Lord Mansfield in deciding the claim to that dignity 
 in 1785 
 
 Page 
 
 544 
 
 545 
 
 sqq 
 
 551 
 
 sqq 
 
 553 
 
 
 554 
 
 
 555 
 
 
 556 
 
 sqq 
 
 559 
 
 
 560 
 
 
 561 sqq. 
 
 V. 
 
 POSTSCRIPT. 
 
 Page 574. 
 
 VI. 
 
 GENERAL INDEX. 
 
 Pages 575 sqq. 
 
 Errata. 
 
 Address, infra, p. lv, line 23, lege " and of the Earldom of Rothes in 1685," &c. 
 
 Analysis, infra, p. x, nit. line, lege " % App., infra, p. 386." — P. xxvii, note ", lege " infra, p. 401." — P. xxxviii, line 23, lege " Infra, 
 " pp. 243, 254."— P. xlviii, line 10, lege " S. Case, p. 54."— P. Ixix, line 31, lege " Infra, pp. 81, 82 ; 104, 105 ; 130 sqq. ; 258, 274, 282," 
 &c.— P. ixxxix, line 15, lege "Infra, p. 189." — P. xcii, note f, lege "infra, p. 530." — P. xciv, line 38, lege "Supra, p. ix." 
 
 Speeches, infra, p. 5, last line, lege " James III." — P. 6, line 4, lege " heirs by a Charter," &c. — P. 11, line 6, lege " the question is 
 " not what," &c. — P. 22, line 10, lege " Cornwall, which I am," &c. — P. 34, penult, line, lege " Then there is another document of 1516-17," 
 &c. — P. 35, penult, line, lege " who was the second Earl." — P. 37, line 32, lege " that this Court of Session," &c. — P. 38, line 31, lege 
 " Decreet of the Court of Session in 1610," — line 39, lege " By the same tribunal, the Court of Session." — P. 39, line 7th from bottom, lege 
 " Then we find," &c. — P. 58, line 9th from bottom, lege " Stair's Decisions," &c. — P. 62, line 16th from bottom — the sentence, from " This 
 " charter is not" to " had been granted," should have been printed as a quotation from Lord Loughborough's Speech. — P. 63, line 19th from 
 bottom, lege " 1648 and the Decree of 1610," — and again, " the Decree of 1610." — P. 105, line 5th from the bottom, lege " the all-important 
 "point of the limitation of the patent." — P. 142, line 12, lege (?) " Judgment?" — P. 148, line 18th from bottom, lege (?) " in cases of trea- 
 " son ?" — P. 152, line 19th from bottom, lege " has been diverted," &c. — P. 153, line 7th, lege " refugiiim." — P. 159, line 6th from bottom, 
 lege "from the Earl of Glencaim." — P. 181, line 9th, dele " once."— P. 230, line 27th, lege " for a prescribed period." — P. 241, line 19th 
 from bottom, lege " resignation by the Erskines." — P. 248, line 20th from the bottom, lege " Archbishop of Glasgow." — P. 254, line 7th 
 from bottom, lege " mentioned in the Act 1587, cap. 39." — These are for the most part errors of the original MS. transcript from which 
 the Speeches were printed. 
 
 ApPBBTDrx, p. 377, last line, lege " There is no complete testing Clause, but only a Reference," &c. — P. 378, top line, lege 
 " Mr. Sobertscm. — Yes." — P. 380, line 26th, lege " But there is no place of Registration." — P. 402, note, 6th line from bottom, lege " I am 
 " not prepared to answer that Question." — P. 418, line 17th, lege " Earls of Eglinton, Montrose, Cassillis, and Caithness."— P. 423, line 4th, 
 lege " Montrose and Cassillis." — P. 522, line 10th, lege "It has the Ducal Seal, with the Ducal Arms and Coronet."— P. 533, lines 31, 32, 
 lege " any charter under the date of 1489 ?" — P. 534, line 1st, lege " These abbreviated Forms are called ' Liters.' " — Ibid., line 7th, lege 
 "but it is not common at all throughout the Register." — Ibid., line 26th, lege "any Instance of an hereditary Grant." 
 
ADDRESS 
 
 TO 
 
 HER MOST GRACIOUS MAJESTY 
 
 THE QUEEN, 
 
 B 
 
TO 
 
 HER MOST GRACIOUS MAJESTY THE QUEEN. 
 
 ( DECEMBER 1853. ) 
 
 Madam, 
 
 It has been the usage in the case of leading Peerage claims, referred by the Sove- 
 reign to the House of Lords and by that House to the Lords Committees for Privileges, 
 and upon which the judgment of the Sovereign has been pronounced either in their favour 
 or against them, to publish to the world, in each particular instance, a Report of the 
 Speeches of Counsel, as representing the Claimant and the Crown before the Committee, 
 and of the Noble Lords who have moved the Resolution of the Committee upon the claim 
 submitted to them ; and also to accompany that Report with a narrative of the circum- 
 stances attending the claim, and an estimate of the influence the decision must have for 
 the future upon the principles and practice of Peerage Law. Such Reports have been 
 usually addressed to a comparatively limited circle, and it might seem presumptuous in 
 me to hope that the present volume would attract the notice of Your Majesty, were it 
 not that the claim of which it is the record is one of no ordinary character or importance, 
 either as regards its individual merits, or the effects which must necessarily flow from the 
 novel procedure adopted, and the hitherto unheard of views of Peerage Law which have 
 been allowed to predominate, in its discussion and consideration. Moreover, it is a 
 claim NOT yet decided, inasmuch as Your Majesty's award has not as yet been pro- 
 nounced upon it ; and it may therefore be important, no less to the cause of truth and 
 justice than to the interests of the Claimant, that the true nature of the claim, the 
 evidence and the arguments by which it has been supported and opposed, and the views 
 of the Noble and Learned Lords upon whose opinions and advice the Resolution of the 
 House of Lords has proceeded, should be fully and fairly made known to Your Majesty 
 before Your Royal pleasure shall be signified in the matter. To contribute to that end 
 is my object in laying this Report before Your Majesty, 
 
 I know well that a cause needs no recommendation to Your Majesty beyond its 
 intrinsic merits, and that Your subjects will, all and ever, receive from You equal 
 justice, irrespectively of social position or extraneous circumstances. I admit that, in 
 any ordinary Peerage case, an appeal to Your Majesty from the Report of those Noble 
 Lords to whom You may have graciously referred the consideration of the Claimant's 
 pretensions, might appear unseemly and ill-advised. But this is a case peculiar and 
 unprecedented in every respect, and altogether beyond the range of common rules 
 and conventionalities. It involves the claim to a dignity, not of modern but feudal 
 origin — a dignity conferred by a King, in the lawful and unquestioned exercise of his 
 prerogative, on a loyal and deserving subject, his prop and stay against an unnatural 
 rebellion, — and it has been held by a Resolution of the House of Lords that a 
 highly penal statute, passed at a period of the utmost violence and anarchy by the 
 successful rebels after the murder of their Sovereign, and directed in general terms 
 (only), without specification of the dignity or its holder, and accompanied by a distinct 
 qualification, against the loyal defenders of that murdered Sovereign, had power and 
 
 B 2 
 
IV ADDRESS TO THE QUEEN. 
 
 efficacy to cut down and annul that dignity ; in direct opposition, not merely to the 
 general principles of Peerage and Common Law, and to contemporary evidence that the 
 dignity in question was not affected by it, but to a special judgment of the Supreme Civil 
 Court of Scotland (acting by inherent authority as well as on reference from the Crown), 
 to the effect that the statute in question did not affect or annul the only other dignity 
 created at the same moment and under identically the same circumstances, and that the 
 dignity so struck at still survived notwithstanding the statute — a judgment final and 
 irreversible, which has been obeyed and enforced by Parliament ever since, and which 
 stands and rules at the present moment — but which, I repeat, has been completely 
 slighted and set aside in the consideration of the present claim. And when I add, 
 that — as regards the person of Your Majesty's Petitioner — my father, the Claimant in 
 this instance, James, twenty-fourth Earl of Crawford and seventh of Balcarres — whether 
 in his character of one of Your Majesty's most ancient peers, deriving his descent from 
 a race of feudal Barons holding uninterruptedly of the Crown as Magnates Scotice since 
 their settlement in Scotland at the commencement of the twelfth century — or as repre- 
 senting a line of Earls of Regality, invested with the authority and privileges of the 
 "four pleas of the Crown," analogous to those of the Counts Palatine of England and 
 the Continent — or as chief of a House which, (but for one short year,*) has never during 
 so many centuries been visited by attainder or forfeiture, except in the cause of Your 
 Majesty's martyred predecessor King Charles the First f — is, under either or all 
 of these characters, preeminently a vassal of whom Your Majesty, as a feudal monarch, 
 is presumed in feudal law to know the existence and to interest Yourself in the fortunes 
 — to take cognizance of his privileges and pretensions, his rights and wrongs ; I submit. 
 Madam, that in such a case, to such a monarch, and on behalf of such a vassal, I, that 
 vassal's eldest son and heir, Alexander William Crawford, styled, by the ancient law 
 and usage of Scotland, Master of Crawford and Lord Lindsay, and myself Your 
 Majesty's devoted vassal and servant, may venture, not merely without presumption 
 but with peculiar propriety, to appeal personally and confidently, as I do now 
 most confidently appeal to You, for redress and protection, as to my father's and my 
 own feudal superior and suzerain, and as to the supreme judge and ultimate resort in 
 honours, — laying this Report or Memorial with all submission at Your Majesty's footstool, 
 and beseeching You to hear and judge our cause and to maintain our just rights before 
 God and the People whom He hath committed to Your charge. 
 
 May it please Your Majesty : — 
 
 On the 25th day of February 1850, my father petitioned Your Majesty that the 
 title and dignity of Duke of Montrose, as created by James the Third, King of Scotland, 
 by charter or patent, on the 18th day of May 1488, might be awarded to him. The 
 Petition was referred by Your Majesty to the House of Lords for their Report upon its 
 merits. It was urged in opposition to that Petition, that the Patent had been cut down 
 and annulled by a general Act of revocation or rescission passed by King James IV. and 
 the Parliament of Scotland on the I7th October 1488, after the death of James III. 
 The arguments in support of the Petition, and in opposition to it, have been considered 
 by the Lords Committees for Privileges, and they have come to a Resolution unfavour- 
 able to the claim, which Resolution has been reported by the House to Your Majesty. 
 
 But, while the Resolution thus come to is entitled, as emanating from that 
 
 * On the occasion of the rebellion of Alexander, styled ' Earl Beardie,' or ' The Tiger Earl ' of Crawford, and of the 
 Battle of Brechin, fought between him and the Royal forces in 1452. The forfeiture was rescinded in the ensuing year, 
 t When Ludovic, sixteenth, or ' the Loyal Earl ' of Crawford, was forfeited by the rebellious Parliament in 1644. 
 
ADDRESS TO THE QUEEN. V 
 
 august assembly, to the highest prima facie weight and respect. Your Majesty is well 
 aware that You are not bound by it. It is not a Decision pronounced by the House in 
 a judicial capacity, (for the House possesses no innate jurisdiction in Peerage claims, and 
 Your Majesty may refer the consideration of such claims to any tribunal whatever,) 
 but merely an Opinion returned in reply to a gracious question propounded by Your 
 Majesty ; and Your Majesty, as the fountain of grace and honour, is free to act indepen- 
 dently of that Resolution, if it shall appear to You to have been arrived at on untenable 
 grounds, and to be such as the " two faithfull witnesses in matter of law, Authoritie and 
 " Reason,"* cannot recognise or approve, f 
 
 I proceed to narrate, for Your Majesty's information — with every respect for the 
 Noble Lords whose Opinion I impugn, but with an equal sense of justice to my father, 
 to my family, to Scotland, to Great Britain, and to Yourself — the circumstances under 
 which my father's claim lias been advanced and prosecuted ; I shall then invite Your 
 Majesty's attention to the points on which I venture to think that those Noble Lords have 
 
 * Sir Edward Coke's Preface to his Commentary upon Littleton. 
 
 t As an assumption to the contrary of what is above represented appears to be very prevalent at present, I mav refer 
 here to Mr. Cruise's valuable and standard Treatise on the Origin and Nature of Dignities : — 
 
 " The Resolutions of the House of Peers, in claims to dignities, upon a Reference from the Crown, are merely for the 
 " purpose of information, as appears from the manner in which such References are worded ; nor can they be considered as 
 '^judgments, in any sense of the word. And, though the Crown has generally acted in conformity to such Resolutions, yet it 
 " is clearly not bound by them. The fact is, the supreme jurisdiction in Peerage cases is, and has ever been deemed, part of 
 " the prerogative of the Crown ; and the authority of the Lords to proceed in the investigation of these cases is derived there- 
 " from. The usual language of the Reference implies that it is made only for advice or information — ' How the same shall 
 " ' appear to their Lordships ;' in which there is nothing ever expressed or implied that can be construed into a waiver of this 
 " prerogative on the part of the Crown. 
 
 " Where the House of Peers has entered into Resolutions of a general nature, as in the case of the Barony of Grey 
 " of Ruthyn, respecting the alienation of Dignities ; and in that of the Viscounty of Purbeck, respecting the surrender 
 " of Dignities to the Crown ; they cannot be considered as having the force of laws. So the proceeding of the House of 
 " Lords in the year 1694, respecting the descent of Baronies by Writ,, .was irregular, as is said in the protest against fit] ; 
 " and if the Resolution entered into by the House on that occasion had not been assented to and acted upon by the Crown, it 
 " would have had no operation." — On Dignities, &c., edit. 1823, p. 298. 
 
 In illustration of what precedes (which can otherwise be supported by an unbroken series of the highest legal 
 authorities) I may cite the Reference by King Charles I. to the House of Lords on the rival claims to the dignity of Earl of 
 Oxford and Lord Chamberlain of England in 1625, and the " Certificate " or Report of the Lords thereupon, bearing date 
 the 5th of April 1626:— 
 
 " Chakles R. 
 
 " Seeing these Petitions concern so great an honour and office of inheritance, and that it falls out so opportunely during the 
 " sitting of our High Court of Parliament ; we think it fit to take the advice of our Lords and Peers of our Higher House of Parlia- 
 " ment, who have the Judges with them for their assistance in any point of law which may arise : Therefore our pleasure is, that 
 " their Lordships call the competitors before them, and examine their titles, and certify us what they find, and their opinions thereof; 
 
 " WHEBECPON WE SHALL DO THAT TO EITHER PARTY WHICH SHALL BE JUST." 
 
 " IHe Mercurii, quinto die Apritis, 1626. 
 " 77(6 Certificate to be delivered the King touching the Earldom of Oxford, Ifc. and the office of Great Chamberlain of England," &c. 
 " May it please Your Most Excellent Majesty, 
 
 " Whereas, upon the humble Petition of Robert Lord Willoughby of Eresby, and Robert Vere Earl of Oxford, . . concerning 
 " the titles of the Earldom of Oxford, . . and office of Great Chamberlain of England, . . 
 
 " Your Majesty was graciously pleased, upon each of their Petitions, to make this answer, That," &c. &c. [Here the Reference 
 is recited.] 
 
 " According to Your Majesty's pleasure thus signified unto us, we called all the said Lords competitors, and at several days 
 " heard their Counsel learned on either side ; and, after long debate, we, finding there did arise some points of law of difficulty, 
 " worthy the considerations of the Learned and Reverend Judges, we desired their advice therein ; and they, taking these points of 
 " law into their serious considerations, after deliberation often days, returned unto us this answer, That," &c. &o. 
 
 " Upon which opinion of the Judges, and upon deliberate consideration of all which had been offered unto us on each party ; 
 " we offer unto Your Majesty odb homble opinions and advice, That the said Earldom may he declared by Your Majesty to apper- 
 " tain to the said Robert de Fere," &c. &c. 
 
 " All which WE humbly submit to Your Majesty's wisdom and judgment." (") 
 
 It will have been remarked that the language of the Reference by Charles I. implies that the King might have referred 
 the consideration of the claim to other tribunals. And in fact it is only in comparatively modern times, since the reign of 
 James I., that Peerage claims have been habitually or generally referred to the House of Lords. The Sovereign may still 
 refer the consideration of such claims to any tribunal he thinks fit. — Cruise on Dignities, pp. 249 sqq.(i>) 
 
 (") Collins' Proceedings, Sfc., on Claims and Controversies con- ciple and usage, of present acceptance (only), that claims to 
 
 cerning Baronies by Writ and other Honours, -pp. 174, 194. Scottish dignities behove to be advanced and investigated in 
 
 C") The above remarks proceed, I should observe, on the prin- the same general mode as claims to English and British dignities. 
 
YI ADDRESS TO THE QUEEN. 
 
 come to a Eesolution unwarranted by and at variance with the evidence before them, and 
 subversive of the established principles of Peerage Law ; and I shall finally submit to Your 
 Majesty that, whether as regards the general procedure during the investigation, the line 
 adopted towards the Claimant by the law officers representing Your Majesty, or the 
 principles of judgment which have been applied to the consideration of his case, the 
 Claimant has met with hard measure ; and that the circumstances, altogether, are such 
 as would justify Your Majesty either in acting independently of the Resolution there- 
 upon reported to You, or in adopting measures which would remedy the injustice and 
 wrong which by that Resolution have been inflicted upon Your vassal and his family. 
 
 Having come to the determination to advance his claim (as stated) to the ancient 
 dignity of Duke of Montrose, conferred upon the Lindsays in 1488, my father communi- 
 cated this determination, as matter of courtesy, to His Grace^ the present Duke of 
 Montrose — His Grace being the first person, beyond my father's immediate kindred, to 
 whom he made this communication, — coupling the announcement with the statement of 
 his intention, in the event of success, to apply for an Act of Parliament to change the 
 title of the Dukedom to that of ' Crawford,' in deference to the gallant and illustrious 
 race of whom the Noble Duke is the representative.* 
 
 My father then presented his Petition to Your Majesty, and, after reference 
 thereof, in the usual form and for the usual purpose, to the House of Lords, he laid on 
 the Table of the House, on the 10th of May 1850, his Original Case, in regular form^ 
 stating the pleas and the evidence on which he sought for Your Majesty's favourable 
 consideration of his pretensions. This Case contained everything necessary for the 
 appreciation of his claim ; and (while he has been enabled to strengthen and support it 
 by much evidence of subsequent acquisition) he has not had occasion to modify or retract 
 a single material statement or argument comprised in it. 
 
 The Case having thus been presented, my father was prepared to proceed before 
 the Committee of Privileges, when the Noble Duke above alluded to presented a Petition 
 to the House, on the 11th of June 1850, claiming permission to appear by his Counsel 
 as a party in opposition to the claim, on the ground of personal " inconvenience " from 
 identity of name, and loss of " precedency " to himself and the other Dukes of Scotland, 
 in the event of my father's success ; f and, further, requesting leave to lodge a Case in 
 refutation of the Case tendered on behalf of the Claimant, and praying that the pro- 
 ceedings in the claim "■ might be stayed till the next Session of Parliament " in order 
 that His Grace himself "and all other the peers interested " might have "full time " to 
 make such investigations as might be necessary in regard to it.J 
 
 My father responded, in February 1851, by a 'Preliminary Case,' dedicated to 
 this especial question, in which he demonstrated, by the evidence of the successive 
 patents and investitures of the Noble Duke's family, and by other legal proofs, that the 
 dignities of Earl, Marquess, and Duke of Montrose, as borne by the Noble Duke, were 
 
 * My father, I may add, never retracted this intention, as tlius expressed. 
 
 t The words of His Grace's Petition are as follows :— " That this claim, if successful, though it does not challenge the 
 " honours and dignities enjoyed by the present Petitioner, would manifestly be a matter of great inconvenience and injustice 
 " to him in many different ways; and it would alter the whole rights of precedency of that order of the Peerage in Scotland to 
 " which the Petitioner belongs" 
 
 t In a Petition, hastily put in by the Claimant's agents on the same day, without reference to himself or his Counsel, 
 he was made to state that, " without challenging the right of the said Duke to be heard in opposition to the Petitioner's 
 " claim and to lodge a printed Case therein," he submitted that "it was not necessary, expedient, or just, that the nroceed- 
 " ings in the claim should be stayed till the next Session of Parliament." These incautious and accidental expressions it is 
 but fair to state, may have justified the Noble Duke in the expectation that the Claimant would not oppose his presentation 
 of a Case, or his appearance in opposition against him. But an admission on the part of the Claimant could not constitute a 
 law for the House, nor, on the supposition that tliey were aware of it, justify the House in virtually admitting the Noble Duke 
 (as they subsequently did) to the position he sought for, after deciding that he had no right to that position. 
 
ADDRESS TO THE QUEEN. VII 
 
 derived, not from the Royal Burgh of Montrose, from which exclusively the Dukedom 
 of the Lindsays was derived, but from the private estate of ' Old Montrose,' appertaining 
 to the Grahams (insomuch that in some of the earliest deeds relating to the family the 
 Noble Duke's ancestor, the first Earl of Montrose, is designated " William Erll of Aid 
 " Montrose," and in all the subsequent investitures the Earldom is described as the 
 " Comitatus de Auld Montrois," as late even as 1665) ; and, moreover, that even if both 
 dignities had been derived from the same locality, such identity (as by precedent in 
 parallel cases) would afford no legal ground for opposition in the case of an absolute 
 stranger, who did not and could not claim the Dukedom here in question, who had not 
 the most remote right or pretension to any portion or pendicle of the Lindsay inherit- 
 ance, estates, or dignities, and who admitted that the success of the Claimant would not 
 affect his own dignities, — and lastly, that the Noble Duke's plea to oppose on the ground 
 of loss of precedency was quite unwarranted and novel in British Peerage Law, as 
 illustrated in the case of claims to Scottish, English, and Irish dignities, in none of which 
 had opposition ever been offered or tolerated on that ground; while the plea of the 
 Noble Duke, if admitted, would entitle every other peer whose precedency would be 
 affected by the success of the pending claim to come forward, equally with the Noble 
 Duke, and oppose it ; and, in another point of view, if the claim were for the premier 
 Dukedom of England instead of Scotland, the whole House of Peers would, by the 
 establishment of the above principle, be legally disqualified from considering it in conse- 
 quence of adverse personal interest. 
 
 In reply to this .' Preliminary Case ' of the Claimant, the Noble Duke lodged 
 a counter ' Preliminary Case ' in March 1851. The question came to be argued before 
 the Committee of Privileges on the 14th of April 1851 ; and, after a full statement of the 
 Noble Duke's plea by his learned and able Counsel, and when the Claimant was about 
 to reply to that statement in a manner which he believes would have exposed its utter 
 untenability,* the Committee interposed and delivered judgment, by the voice of 
 Lord Brougham and Lord Campbell, with concurrence of the Lord Chancellor (Lord 
 Truro), and of Lord Cran worth, to the effect that, if it had appeared to those Noble 
 and Learned Lords that admission of the Noble Duke's opposition would have contributed 
 to the advantage or convenience of the House in investigating the Claimant's case, the 
 House, in the exercise of the " large discretion " inherent in it, would have licensed 
 such opposition; but that under the circumstances, as the Noble Duke did "not allege" 
 in his Petition that he possessed " any peculiar means of information," it did "not 
 " appear " to the Noble and Learned Lords that there was " any peculiarity " in the " case 
 " which ought to call upon" the Committee "to exercise that discretion," or that there 
 was "any ground for recommending" the Committee "to grant the prayer of" the 
 " Petition," — and "that the case" was "likely to be better heard, without a Contra- 
 " dictor," by "leaving it in the hands of the Attorney-General and the " Claimant, "than 
 " by admitting the " interposition of an " amicus curice ;" — For which reasons they moved 
 " that no step be taken upon this Petition," as being a proceeding more courteous to the 
 Noble Duke than formally to reject it. Lord Campbell stated at the conclusion of his 
 address that he felt sure that the Noble Duke would "most willingly hand over" "any 
 "information" possessed by him "to the Officers of the Crown," and that, "with the 
 " greatest respect for the most learned and able Counsel retained by the Duke of 
 
 * The substance of this intended Reply — in vindication and additional support of the Claimant's Case upon this 
 preliminary question — may be found in a small octavo volume, privately printed, and entitled, " Analysis of the ' Case for 
 " 'James Duke of Montrose, Petitioner, upon his right to appear and be heard against the Claim of the Earl of Crawford 
 " ' and Balcarres to be Duke of Montrose :' And of the Remarks thereupon furnished for the consideration of Counsel by 
 " John Riddell, Esquire, Advocate." — This Reply of course never came before the Committee. 
 
VIII ADDEESS TO THE QUEEN. 
 
 " Montrose/' he thought that such evidence would "be brought before " the Committee 
 " as effectually as if a third party interposed." 
 
 The Noble Duke's Petition having been thus disposed of, His Grace's Counsel, 
 acquiescing in it as a decision that they should not be heard in opposition, besought, as 
 " a great concession," that their Noble client might be allowed to lodge the Case which 
 he had prepared in answer to that of the Claimant,— this request forming in fact, as they 
 represented, "part of the prayer" of the Petition. The Committee conceded this 
 request ; and, in doing so, a Noble and Learned Lord (Lord Brougham) took occasion 
 to remark to the Noble Duke's Counsel, " By this form we do not preclude the possi- 
 " bility of your ever being heard afterwards when we shall see the Case ; therefore that 
 " course of proceeding has the benefit of leaving it open," — an intimation which appeared 
 and appears to the Claimant to have been quite gratuitous, and emanating only from the 
 Noble and Learned Lord personally, judgment having been already pronounced on that 
 first and leading point of the Petition,— as in fact had been previously and pointedly 
 remarked by the Chairman (Lord Redesdale), who observed, "This" (the request to 
 be allowed to lodge a Case) "is A separate and distinct application from the 
 " application to be heard." The observation of Lord Brougham was destined to bear 
 fruit at a later day.* 
 
 My father offered no objection to the presentation of this Case on the part of the 
 Noble Duke, " provided it were done in conformity with the rules of" the " House and 
 " of the Committee." He devoted the ensuing year to the refutation of it, and on the 
 18th of May 1852 he laid his ' Supplemental Case,' extending to one hundred and eighty- 
 two folio pages, upon the Table of the House. Its bulk was inevitable. The House 
 having accepted the Noble Duke's Case, it was incumbent on my father, both out of 
 respect to the House and in justice to his cause, to meet fairly and fully all the Noble 
 Duke's objections ; and many of the objections started were of such a character that he 
 was under the necessity of vindicating the first and simplest principles of Scottish, feudal, 
 and Peerage Law — necessarily at considerable length, but, I venture to afiirm, without 
 prolixity or a single unnecessary proof or word — consideration being always had that he 
 was pleading before a tribunal comparatively unfamiliar with the law in question, and 
 which might be easily misled by bold assertions if unrefuted by the most explicit proof 
 as well as contradiction. My father had thought he had merited the thanks of the 
 House by this procedure. 
 
 I must state here, in due historical narration, that, previously to this period, the 
 Noble Duke had applied by Circular Letters to the Dukes of Scotland, inviting them to 
 join and assist in opposition to the claim, — an invitation which my father felt compelled 
 to remark upon and protest against, as an attempt to organize a conspiracy to defeat a 
 Peerage claim irrespectively of its abstract justice. I am convinced, however, that, if the 
 Noble Duke and such other noble peers as may have complied with his invitation had 
 been aware of the illegality and injustice of such a procedure, they would not have 
 resorted to it. 
 
 As Your Majesty will perceive on glancing over the ensuing pages, the precedent 
 of the Earldom of Glencairn, created by patent on the 28th of May 1488, and struck at 
 in general terms by the same Act of revocation which is contended to have annulled the 
 Dukedom of Montrose, forms a prominent feature in my father's claim ; and it was pointed 
 out and dwelt upon in the Noble Duke's Case as almost the test and turning-point of 
 the claim,— very much being made to depend in that Case on the question whether the 
 
 * For the Speeches of Lord Brougham and Lord Campbell, and for the subsequent conversation, see the 
 Appendix to this volume, infra, p. 373.— The pleading of the Noble Duke on this Preliminary question, viritli the Speeches 
 of the Noble and Learned Lords, &c., has been privately printed, from the notes of the short-hand writer, in a separate volume. 
 
ADDEESS TO THE QUEEN. IX 
 
 Glencairn patent was or was not a valid and subsisting instrument. Additional and 
 very important evidence elucidatory of the Glencairn case having come to light at this 
 juncture, including the ' Minutes ' of the proceedings in a litigation before the Supreme 
 Civil Court of Scotland, which, lasting from 1637 to 1648, ended in a decision that the 
 original Glencairn patent was a valid document and not affected by the Act of revocation 
 above mentioned (the only interventus which is maintained to have annulled that 
 Earldom and the Dukedom of Montrose), my father printed these ' Minutes ' and other 
 illustrative documents at full length in a paper which he entitled ' Addenda ' to his 
 Supplemental Case. He might have printed them in an abridged form, but conceived 
 that it would be more respectful and more satisfactory to the Committee to give them in 
 extenso ; and he therefore so presented them, adding elucidatory notes and illustrations 
 for the information of their Lordships, — although he might have spared himself the 
 trouble, had he apprehended that in this as in similar instances his efforts to furnish the 
 Committee with the most clear and explicit information on a case to which so much 
 importance had been ascribed by all parties adverse to him, would have been turned to 
 his prejudice, and that the proceedings in that case would have been stigmatised as 
 " sickening " in their extent by the highest legal officer in the land,* while its authority 
 and testimony were totally contemned or disregarded. 
 
 Having thus fully answered the Noble Duke's criticisms upon his Original Case, 
 my father was in hopes of being at last enabled to bring forward his claim ; but on the 
 12th of November 1852 the Noble Duke presented a Petition to the House, craving 
 leave to present yet another Case in answer to my father's Supplemental Case, — repre- 
 senting this new Case as an " answer " to the Supplemental Case, instead of what it 
 really was, a fresh attack by one in no way legally interested in the claim. This Petition 
 having been acquiesced in, and leave granted to lay this new Case on the Table, my father 
 subjoined a ' Postscriptum ' to the paper of ' Addenda ' then ready to be presented to the 
 House, in which he stated that, inasmuch as he would be entitled on every principle of 
 equity and justice to give in a further reply in " answer " to the Noble Duke's new Case, 
 if so advised— while on the same principle of indefinite licence to the Noble Duke and 
 of necessary self-defence on the part of the Claimant, Case might follow Case, in attack on 
 the part of the Noble Duke and in defence on that of the Claimant, ad nauseam and ad 
 infinitum, implying endless delay, vexation, and annoyance — a procedure to which no 
 Claimant had ever yet been subjected, he therefore protested against being dragged into 
 such an unseemly and superfluous conflict; affirmed that the character, quality, and 
 animus of the opposition offered by the Noble Duke, as exhibited in the juxtaposition of 
 the Noble Duke's objections and of the refutation of those objections in the Supplemental 
 Case, amply warranted his disregard of anything that might be alleged in the new Case 
 then about to be tendered to the House ; and added, that, standing on his Original Case 
 and Supplemental Case, and on the inferences derivable from the replies in the latter to 
 the Noble Duke's objections, he would answer no future attack from the Noble Duke in 
 
 * As in the Speech of the Lord Chancellor: — "And finally, having gone through such a course of litigation 
 " as it is sickening almost to look at, . . the Court of Session decreed in favour of the Earl of Glencairn," &e. Infra, 
 p. 337.— The extent of these documents is not after all so very formidable (as may be seen by reference to them in the 
 Appendix to this volume, infra, pp. 407 sqq.) ; and the ' Minutes' in particular are a model of conciseness and precision, 
 exhibiting the arguments of the contending counsel (among the ablest who ever flourished in Scotland), with the successive 
 interlocutors or judgments of the Court, preliminary to the final Decreet of 1648, &c., and furnishing moreover, in an historico- 
 legal point of view (as in the words of the Solicitor-General), "a very admirable model of the oral mode and form of pleading 
 " of those times, in which the different piopositions that were brought forward by the one and the other" of the " respective 
 " advocates" " are considered, and repelled, and finally resolved, until the case is reduced down by an exhaustive analysis of 
 " the different objections to the final point on which the Pursuer and Respondent rest, — which the Committee" (observed the 
 Learned Gentleman) " will remember was found to be " (in this instance) " the Patent of 1488, in answer to which Lord 
 " Eglinton" (the adverse party) " opposed, by way of a destructive weapon, the Act of 1488." Infra, p. 157.— The pro- 
 ceedings and papers in any ordinary Chancery suit are fifty times more voluminous than these. 
 
 c 
 
X ADDRESS TO THE QUEEN, 
 
 his new Case unless it were endorsed and urged against him at the bar of the House by 
 the Law Officers of the Crown. He ended this protest by an earnest appeal to their 
 Lordships— narrating the peculiar character of the opposition directed against him, 
 vindicating the exclusive intervention of the Crown as sufficient for the elucidation of 
 truth, the sole object, he presumed, in view, and throwing himself, as conscious of his 
 deserts, then and for the future, on the justice and protection of the House. 
 
 The 'Addenda/ with the ' Postscriptum ' in question, were laid upon the Table of 
 the House on the 30th of December 1852; the Noble Duke's Supplemental Case was 
 lodged on the 4th of April 1853; and, after much delay and postponement, the 
 Claimant's Case was opened on the 18th of July,— late in the Session, but on the earliest 
 day the Claimant could procure. The Committee sat on the 18th, 19th, 21st, 22nd, 
 26th, 28th, and 29th of July, and on the 1st and 2nd of August,— the proceedings being 
 hurried on by them with much precipitancy. The Counsel for the Claimant were Sir 
 FitzRoy Kelly (late Your Majesty's Solicitor-General), Your Majesty's Solicitor-General 
 (Sir Richard Bethell), the Eight Honourable and Honourable James Stuart Wortley, 
 Recorder of London, Sir John Bayley, Bart., and John Riddell, Esq., of the Scottish bar 
 — the father of this claim — well known and by general suffrage recognised as " the first 
 " peerage lawyer of this age in Scotland," " the first genealogical antiquary in Britain."* 
 Your Majesty's Attorney -General (Sir Alexander J. E. Cockburn), and the Lord 
 Advocate (the Right Honourable James MoncriefF), appeared on behalf of the Crown ; 
 and John Rolt, Esq., and James R. Hope Scott, Esq., Your Majesty's learned Counsel, 
 on behalf of the Duke of Montrose. Mr. Cosmo Innes, of the Scottish bar, the 
 learned author of the Cases presented by the Duke of Montrose in opposition to the 
 Claimant, appeared originally on behalf of the Noble Duke, but on the 29th of 
 July on behalf of the Crown, having been retained by the Ci'own (at some period) 
 during the interval between the 18th and that day.j A more brilliant assemblage of 
 legal talent and learning have seldom encountered in the lists of law,^ — and among the 
 members of the Committee sat the Lord Chancellor (Lord Cranworth), Lord St. 
 Leonards, Lord Brougham, Lord Lynd hurst, the Earl of Devon, and other lay peers, 
 presided over by the able and judicious Chairman of Committees, Lord Redesdale. The 
 Noble Duke's Counsel did not plead, but they acted throughout as junior Counsel, in 
 constant communication with the Officers of the Crown ; and they were during a portion 
 of the discussion the only parties in opposition present. The Duke of Montrose sat as a 
 member of the Committee during every day except one — which I only remark upon in 
 order to express my conviction that the Noble Duke was not aware of the irregularity he 
 was thus betrayed into, and to point out the fact that the lay members of the Committee 
 are not mere nullities, whose office is simply to " make a House," but, strictly speaking, 
 judges (in so far as the investigation made into peerage claims partakes, critically, of a 
 judicial character), and entitled to interfere and take part in the investigation, and to vote 
 on the Resolution, no less than the Law Lords associated with them in the Committee.^ 
 It is not certainly a frequent usage for lay peers to interpose in the discussion or to 
 
 * Quarterly Review, vol. Ixxvii. p. 468. 
 
 t The following; appears in the ' Minutes of Proceedings,' on the 29th July 1853 :-" Mr. Innes stated, in reply to a 
 " question from the Committee, that he held a brief on the part of the Crown." In that capacity the Learned gentleman pro- 
 ceeded to examine William Fraser, Esq,, who had collected materials for the Duke of Montrose's Cases, and to put in the 
 evidence-collected by the Noble Duke in opposition to the Claimant— on the part of the Crown, &c.— 1 cannot of course fii 
 with precision (nor does it matter) the period when Mr. Innes was specially retained by the Crown. Previously to the 
 putting in of the evidence he appeared comparatively in the background, in company with Messrs. Rolt and Hope Scott as 
 counsel for the Duke of Montrose. ' 
 
 % It may be mentioned in illustration, that in the Chandos case in 1803, fifteen peers voted against the claim and 
 seven for it; and in the Banbury case in 1813, twenty-one peers against the claim and thirteen in favour of it. And similar 
 instances could be given, if necessary. 
 
ADDRESS TO THE QUEEN. XI 
 
 vote on these occasions, but it is well that their proper and rightful character and function 
 should not be allowed to fall into disuse or oblivion. 
 
 The pleadings on the side of the Claimant and of the Crown, with the Reply of 
 the Claimant, and the Speeches of Noble Lords in moving the Resolution of the Com- 
 mittee, as reported verbatim by Mr. Gurney, the skilful stenographer of the House of 
 Lords, are printed at full length in the ensuing pages. 
 
 At the conclusion of what the Claimant had intended as the first portion of his 
 opening address it was announced by the Committee that they had determined to divide 
 the consideration of the Case into two parts : the first to be confined to the question 
 whether the patent under which my father claimed still subsisted as a valid instrument ; 
 the second to the question whether, on the supposition of its subsistence, the Claimant was 
 the heir under it. The reason for this arrangement, as stated by the Lord Chancellor 
 in his concluding Speech, was — that it would be more convenient to the House, foras- 
 much as an unfavourable decision on the first of the two preceding points might render 
 it unnecessary to go into the consideration of the second.* It was assumed that this 
 proceeding could be of no prejudice to the Claimant's interest. 
 
 It was also proposed by the Committee at this juncture to call upon the Counsel 
 for the Crown to take up the argument on the first of the two propositions in question, 
 and to proceed immediately, on that same day, to its discussion — to the dismay of the 
 Crown Officers themselves, and in disregard altogether (to all appearance) of the right 
 of the Claimant to address the Committee in summing up his evidence — which had not 
 of course been as yet put in — a right only casually adverted to by the Lord Chancellor 
 at the conclusion of the discussion — but which right was conceded to the Claimant (as it 
 could not be withheld) on the representation of Sir FitzRoy Kelly. 
 
 The Claimant's evidence having accordingly been put in — the Solicitor-General 
 having been heard to sum up and remark upon the Case — the learned Officers for the 
 Crown, the Attorney-General and Lord Advocate, having adduced their evidence and 
 urged their objections to the claim — and Sir FitzRoy Kelly having replied to those 
 objections, that Reply being concluded on Tuesday tlie '2nd of August — the Committee 
 adjourned till the ensuing Friday the 5th instant, on which day the Lord Chancellor 
 and Lord St. Leonards addressed the Committee and moved the Resolution now before 
 Your Majesty — having taken only two days to reflect upon the bearings of a case, as 
 finally completed and laid before them, of which one point only, the Glencairn Case, 
 had occupied the Supreme Civil Court of Scotland for eleven years; j and announcing 
 this decision before the evidence had been printed — a circumstance unparalleled in the 
 history of Peerage practice, and which I cannot but thinlv has been fatal (thus far) to my 
 lather's interest. I venture indeed to think that while, on the simplest principles of 
 Peerage Law — and in deference to judgments of the Supreme Courts of England in the 
 fifteenth and of Scotland in the seventeenth centuiy, the Noble and Learned Lords 
 might have reported in my father's favour without even hearing the Crown in opposition, 
 they ought at all events to have paused on their opinions, if disposed to think unfa- 
 vourably of the claim, J till they had fully examined it with the aid of the printed 
 
 * " Of course," said the Noble and Learned Lord, " the decision of that in one way might render any further 
 " inquiry unnecessary." Infi-a, p. 312. 
 
 t The following observation and answer occurred during the discussion : — " Lord LyndJmrst. — I do not know that the 
 " proceedings of eleven years secure a better judgment. Sir F. Kelly. — At all events it shews that the matter was not 
 " hastily determined." Infra, p. 67. 
 
 + " Why not.!'" was the reply of Lord St. Leonards to the expostulation of the Lord Advocate on being called upon 
 to proceed with the case immediately on the conclusion of the opening address of Sir FitzRoy Kelly, as cut short by the 
 Committee : — " What can he so plain as the case we have been listening to for days? It is a very simple case — nothing can he 
 " so simple. Nobody can have listened to it without being able to comprehend it." Infra, p. 106. — And again, in the Noble 
 
 C 2 
 
XII ADDEESS TO THE QUEEN. 
 
 evidence adduced in support of it and against it — evidence demanding the most careful 
 and patient scrutiny and investigation, and part of which, as orally delivered, could be 
 found in none of the Cases or other papers before their Lordships. I submit, Madam, 
 that it was their bounden duty to have defended my father in every way against any 
 possible prejudice arising from the haste with which they impelled him on.* And I 
 contrast that haste with the doctrine and jjractice of that learned, patient, and conscien- 
 tious judge, Lord Eldon ; who vindicated his slower but surer judgments on the principle 
 that in " deciding causes in the last resort " — or from which there is practically no 
 redress, as in the present instance — the House of Lords " cannot be too cautious ;" that 
 " caution . . is essential to justice in every court; and that, without it, the House of 
 " Lords would be the worst tribunal in the land." f 
 
 Having thus narrated the circumstances attending the progress of the Montrose 
 claim to the present moment, I proceed to point out to Your Majesty the effects which 
 the procedure and decision thus adopted and arrived at must necessarily have upon 
 the mode of hearing and determining Peerage claims in future times, — if, that is to 
 say, this Resolution go forth to the world and be acted upon as upheld and approved 
 by Your Majesty. 
 
 I must first invite Your Majesty's attention to an impression which appears to 
 have been of very extensive prevalence during the discussion of this case, viz., that the 
 establishment of a claim to a Peerage, however just and rightful in itself, is to be guarded 
 against and deprecated as injurious to the Crown, to the House of Lords, and to the 
 C ommon- wealth . 
 
 That such was the bias and impression on the minds of the Officers of the Crown 
 and of the Committee will be manifest, I think, from the Report of the discussion and 
 of the Speeches, now humbly laid before Your Majesty, as well as from the general 
 course of procedure adopted, with reference to the Claimant, in the present cause. J 
 
 Your Majesty needs not, however, to be informed that the views thus rather 
 betrayed than formally enunciated are of quite modern origin ; that the elevation of 
 meritorious individuals to higher dignities is both honourable and profitable to monarchs, 
 as established by the highest of all testimony, that of Your Majesty's Koyal predeces- 
 sors, Richard II. of England and James IV. of Scotland, adduced in this present 
 
 and Learned Lord's Speech on moving the Resolution, he alludes to the Act of Revocation l7th October 1488, or (as it has 
 been commonly termed) the Act Rescissory, as an Act upon which he had " never been able, from the first moment down 
 " to the present, during all the arguments day by day, to entertain the slightest doubt." Infra, p. 348. 
 
 * In illustration of the usual mode of proceeding as regards the printing of evidence, consideration of it by the Com- 
 mittee, &c., the following extract may be given from the Report in the ' Times' of the sitting of the Committee for Pri- 
 vileges oa the Grandison Peerage, 10th July, 1854: — 
 
 " A large amount of additional documentary evidence having been put in in support of the claim, 
 
 "Mr. Fleming said that that was all the testimony he proposed to offer to their Lordships in this matter, and he trusted that 
 " the Committee would be of opinion that the claim had been satisfactorily made out. Of course, the Committee would not, where the 
 " evidence was of so extensive a character and so voluminous, pronounce amj judgment until that evidence had been printed. Now, he had 
 " been informed that the whole of the evidence would be in print at the expiration of ten days. He would therefore ask their Lord- 
 " ships to adjourn the further consideration of the matter until the 20th. 
 
 " The Lord Chancellor said that that could scarcely be ; for, as the evidence would not have been printed until that day, the 
 '* Committee would not have had an opportunity of looking over it. 
 
 " The evidence was then ordered to be printed, and the further consideration of the case adjourned. Postponed sine die." 
 I cannot recognise equal measure in this as on other points on which I have commented in this Address. Practice 
 ought to be identical, although administered by different agents ; but what I remark upon here and elsewhere in this volume 
 is different practice in dealings with different individuals— the agents being (as in the case of the Lord Chancellor the 
 Attorney-General, and others) identical. 
 
 •f Life, by Twiss, vol. ii. pp. 468, 477. 
 
 % I do not lay any stress upon the question of a Noble and Learned Lord (Lord Brougham), whether there was not 
 " once an argument held in some former period of our history, to shew that the Crown was to a certain degree injured by any 
 " grant of Peerage" (infra, p. 265)— because that question was playfully put, intended, and understood. 
 
ADDRESS TO THE QUEEN. XIII 
 
 claim;* and that, while justice demands her own in despite of every conceivable 
 obstacle — " fiat justilia, ruat coelum " — the maintenance and establishment of the right 
 to an ancient dignity (and more especially a dignity of the highest grade below royalty), 
 so far from being the cause of detriment or injury to Your Majesty, would add grace 
 and strength to Your throne, and dignity to the Peerage of Great Britain — which can 
 shew but few parallels to the ancient Ducal dignities of Italy, Spain, and Germany. 
 The establishment of the present claim — to a Dukedom of the fifteenth century, the 
 earliest granted to a subject (not of the Royal family) in Scotland^ — would, I repeat, 
 have been, not an injury but an honour to Scotland, to Great Britain, and even to 
 Your Majesty. It was a matter of public concern and interest that that claim should 
 be carefully investigated, and with an anxious desire to recognise and maintain it, if 
 possible, consistently with justice ; and any hasty, inconsiderate, or unjust award could 
 not but be deeply injurious to the community, — and this on grounds totally independent 
 of any question of justice due to the Claimant. I notice the prejudice thus exposed, 
 inasmuch as I am willing to attribute much of the procedure which I here condemn to 
 a mistaken zeal for Your Majesty's honour and interest, as supposed to be involved in 
 the defeat of this claim. 
 
 It may possibly have been owing to the prevalence of these peculiar views, that 
 the time expended upon the consideration of my father's claim has been so repeatedly 
 alluded to and dwelt upon, in implied censure upon the Claimant, in the Speeches now 
 before Your Majesty, f I would venture to represent, in the first place, upon this point, 
 that the time that has been so spent is much less actually than has been bestowed upon 
 many cases of infinitely minor importance ; and that, if blame attach anywhere, it is to 
 the Committee itself, who, having decided that the Duke of Montrose had no interest in 
 this claim, accepted his Case for their own convenience, and admitted him (as will yet 
 further appear) by a side-wind to the full enjoyment of the advantages which they had 
 originally denied him,^ — thereby, and by a peculiar and unhappy ineptitude (which I 
 would fain regard as less their fault than their misfortune), imposing on the Claimant 
 the necessity of battling for truths and principles which had never before been questioned 
 by such an assenibly. But even if the time expended in the discussion had been thrice 
 as much, I assert fearlessly, on the authority of that antiquity which has been so lightly 
 alluded to by the luminaries of the present day, that the Peers of Great Britain have no 
 higher privilege than the duty conferred upon them by Your Majesty from time to time 
 of tendering their advice and opinion upon Peerage claims — than which more important 
 subjects seldom come under their consideration. 
 
 * The preamble of the Norfolk patent, by Richard II., in 1397, describes the elevation of deserving subjects to 
 honours and dignities as an act " <\\ioi potissime firmat regale solium" — a most powerful buttress to the throne of Royalty ;(") 
 and the preamble to the Regrant of the Dukedom of Montrose by James IV., with advice of Parliament, 18th September 
 1489 commences with a similar acknowledgment, — " Recognoscens quod cedit regibus ad gloriam et Iwnorem, dum persone 
 " preelari generis, preclaris exigentibus meritis, dignitatibus inclitis preferuntur, ut exinde, cum suos cernerint status et 
 " nomina majoribus titulis deeorari, ad grandiora virluosioraque peragenda magis ac magis, in suam laudem rcgnique et 
 " reipublice decorem et frugem, studeant se fervencius insudare " — " Acknowledging that it contributes to the glory and honour 
 " of Kings when persons of illustrious race, their illustrious merits exacting this, are preferred to exalted dignities, in order 
 " that, when they perceive tlieir rank and name decorated with higher titles, they may henceforward study and labour more 
 " and more fervently in doing noble and virtuous actions, to their own praise and the honour and profit of the realm and 
 " commonwealth." (See the Appendix, infra, p. 531.) Nothing is more common than such declarations in ancient patents of 
 honour. Vide Selden's ' Titles of Honour,' passim. 
 
 t I may refer to expressions which fell from Noble and Learned Lords at various points of the discussion, e. g. at p. 106, 
 and subsequently, in this volume ; and to the opening sentence of the Lokd Chancellor's Speech, p. 311, infra; but more 
 especially to the remarks and recommendations of Lord St. Leonards at pp. 346, 371. I am happy to add, in justice to 
 Lord Lyndhuest, that an apology of Sir FitzRoy Kelly lor dwelling upon the Glencairn precedent, in reply to an impatient 
 observation from Lord St. Leonards, was cut short by that Noble and Learned Lord with the announcement, " You must 
 " take the time necessary to establish your case." Jnfra, p. 302. 
 
 (°) Minutes of Evidence in this claim, p. 21, and Appendix, honours) as enumerated in the narrative of the inauguration 
 infra, p. 388.— Compare moreover the reasons assigned by King thereof, printed ibid., p. S89. 
 Richard for the creation of the Dukedom of Norfolk (and other 
 
XIY ADDRESS TO THE QUEEN. 
 
 But, if anything could illustrate more clearly than another the light esteem in 
 which the dignity of the British Peerage is now held in that court vyhere above all 
 others that dignity should be (as hitherto) most jealously upheld and vindicated, it is 
 this— that a Noble and Learned Lord has actually suggested for their Lordships' con- 
 sideration, " whether it would not be wise to put some limitation of time upon a claim 
 " to Peerage, in order to prevent such enormous expense and such consumption of time 
 " as must very often take place in regard to claims of ancient Peerages," — grounding 
 this proposition on the "mass of evidence, more or less bearing upon the case," which 
 their Lordships " have had to travel through " in the present instance, and on the con- 
 sideration that " if the investigation of the case had been left to the Crown alone, and 
 " the Crown had not thought proper to incur the expense of procuring evidence counter 
 " to the claim," and if " that claim " had not " naturally" "aroused one of" their " Lord- 
 " ships," His Grace of Montrose, to investigate it and to produce " a great mass of 
 "evidence," "no doubt at great expense," which "has been made use of by the Crown" 
 and has contributed to the elucidation of the question before the Committee — the Com- 
 mittee would not, apart from this foreign assistance, have been enabled to come to so 
 satisfactory a conclusion as that which they have now arrived at.* 
 
 I venture. Madam, to submit that this proposal^to introduce a statute of 
 limitation with respect to Peerage claims, is against all law and principle, as hitherto 
 accepted in this country. If I could evoke the shades of Coke, Crewe, Dodderidge, 
 Dugdale, and Selden, they would tell the Noble and Learned Lord, that, next to the 
 glory and virtue of the Royal line, there is no such source of honour and dignity to the 
 Crown and the nation as the ancient Peerages of Great Britain, every one of which is 
 the record, bequeathed to posterity, of some noble triumph in war, or policy, or both. 
 The law views them with anxious reverence and care, and guards them from extinction 
 by a peculiar and Royal privilege, that of immunity from the prescription which 
 attends on ordinary rights and privileges ; in order that, whenever it may be possible, 
 those ancestral landmarks of the national fame, those venerable monuments of the desert 
 of subjects and of the gratitude of Kings, may, in defiance of time, be preserved inviolate. 
 This cherished boast of our country a Noble and Learned Peer, once Lord Chancellor of 
 England, is now, for the first time, found anxious to annihilate ! | 
 
 * Speech of Lord St. Leonards, infra, pp. 345, 346. 
 
 f The suggestion of the Noble and Learned Lord above commented upon, that a bar should be put upon claims to 
 ancient Peerages, and the impressions upon which that suggestion is based, are, it is almost needless to say, rebutted and con- 
 tradicted at every point by the recorded dicta of the most eminent lawyers, and by practice — even in modern times. Not to 
 dwell on the recent and successful Devon claim, through which the princely race of Courtenay were restored to their ancient 
 lustre and honour, with the applause and gratulation of all true Englishmen, there could have been no such lurkino- bias 
 against ancient Dignities in the mind of the Chief Baron Shepherd when, as Attorney General, he even advised the Crown to 
 admit the claim of the representative of the gallant and noble line of Hastings to the ancient Earldom of Huntingdon, and 
 which claim was admitted accordingly by the Crown, without further inquiry— although difficulties and objections could be 
 pointed out in that case more weighty than any that the present Claimant had to grapple with in the Crawford claim. In 
 like manner the ancient Earldom of Waterford, created in 1446, so long dormant and generally believed to be extinct— with 
 the hereditary ofRce of Lord Steward of the Household for Ireland — was i'reely and even joyfully recognised and confirmed 
 (in 1832) in the descendant and heir of that great and valiant Captain 
 
 " Whom all France, with their chief assembled strength, 
 " Durst not presume to look once in the face." 
 
 And who is ignorant of the multiplicity of recent claims to old English Baronies— involving antiquarian and elaborate dis- 
 cussion, into which the Lords fully and most willingly entered, and that were nearly all crowned with success— by which the 
 honoured and historical names of De Ros, De Clifford, Camoys, De la Zouche, Beaumont, Berners, Vaux of Harrowden, and 
 others, have been rescued from oblivion, and perpetuated to ourselves and to posterity ? 
 
 But for the true, and noble, and constitutional view of these matters, as held by the " Dii majores" of Peerage Law, 
 in days when there were giants in the land, I would appeal to the memorable Speech of the Lord Chief Justice Sir Randolph 
 Crewe, when, in 1625, in concurrence with the Chief Baron Walter, and with Justices Dodderidge and Yelverton, he delivered 
 the Resolution in Parliament, advising King Charles I. to recognise the Earldom of Oxford as rightfully appertaining to 
 Aubrey de Vere, the heir-male and representative of that ancient and most illustrious House,— a Speech and a Resolution 
 fertile in illustration of the patience in inquiry, the veneration for the honours of the past, the loving zeal for their con- 
 servation and transmission to posterity, and the sense of the dignity, the privilege, and the responsibility o°f their office, which 
 animated the Peers on that august occasion : — 
 
ADDRESS TO THE QUEEN. XV 
 
 To these general impressions with reference to Peerages— that every grant of 
 Peerage trenches upon Your Majesty's dignity and prerogative, that it is the duty of 
 Your Majesty's legal officers to protect Your Majesty by opposing claims to Peerages 
 supposed to be either dormant or extinct, and that the Crown ought to be shielded 
 against expense, and the House of Lords against the loss of time attendant and consequent 
 upon the entertainment of claims to ancient Peerages, by the introduction of a new law to 
 prescribe such claims — (the mere proposition of such a law being in fact a direct attack 
 upon the prerogative of Your Majesty) — to this low generaL estimate of the public im- 
 portance and dignity of the Peerage of the United Kingdom, no less than to zeal for 
 Your Majesty's supposed interest and honour, I am anxious to attribute the attitude 
 adopted by the Officers of the Crown and by the Committee of Privileges in the recent 
 inquiry. Whether the mantle will sufficiently cover and excuse that attitude, Your 
 Majesty will be most competent to decide. 
 
 The facts I remark upon and the precedent they establish are as follows : — 
 Having observed during the proceedings subsequent to the decision of the 14th of 
 April 1851 that Your Majesty's legal advisers had devolved upon the Duke of Montrose 
 the whole conduct of the scrutiny into the present claim, my father took occasion (as 
 already briefly stated) to vii^dicate the exclusive intervention of those able and learned 
 Officers in the matter. He ventured to lay it down, in words which he has seen no 
 occasion to qualify, that " the duty of the Crown Officers in a Peerage claim is a calm, 
 " lofty, dispassionate, and public one — it is, not to oppose in the spirit of partisanship 
 " or private interest, but to investigate, on behalf of the Crown and the Peerage, with 
 " the view of ascertaining truth, whether it tell in favour of the Claimant or against 
 
 " Mj Lords," said the Lord Chief Justice, " this great and weighty cause, incomparable to any other that hath 
 " happened in any time, requires great deliberation and solid and mature judgment to determine it ; and therefore I wish all 
 " the Judges of England had heard it (being a case fit for all), to the end we all together might have given our humble 
 " advice to your Lordships herein. 
 
 " Here is represented unto your Lordships certamen honoris, and, as I may well say, illustris honoris, illustrious honour. 
 
 " I heard a great peer of this realm, and a learned, say, when he lived, there was no King in Christendom had such a 
 " subject as Oxford. 
 
 " He came in with the Conqueror, Earl of Guines — shortly after the Conquest made Great Chamberlain of England, 
 " above five hundred years ago, by Henry I., the Conqueror's son, brother to Rurcis — by Maud the Empress, Earl of 
 " Oxford — confirmed and approved by Henry Fitz-Empress, Henky II., Alberico Comiti — so Earl before. 
 
 " This great honour, this high and noble dignity, hath continued ever since in the remarkable surname of De Vere, 
 " by so many ages, descents, and generations, as no other kingdom can produce such a peer in one and the self-same name 
 " and title. 
 
 " I find in all this length of time but two attainders of this noble family, and those in stormy and tempestuous times, 
 " when the government was unsettled and the kingdom in competition. 
 
 " I have laboured to make a covenant with myself, that affection may not press upon judgment ; for I suppose there is 
 " no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name 
 " and house, and would take hold of a twig or twine-thread to uphold it : And yet Time hath his revolution — there must be 
 " a period and an end of all temporal thmgs,Jinis rerum, an end of names and dignities, and whatsoever is terrene ; and why 
 " not of De Veee ? 
 
 " For where is Bohun ? Where is Mowbray? Where is Mortimer? &c. Nay, which is more and most of all, 
 " where is Plantagenet .f They are entombed in the urns and sepulchres of mortality. 
 
 " And yet let the name and dignity of De Vere stand so long as it pleaseth God." 
 
 In conformity to which leaning and bias— a bias of principle, not of prejudice or favour— Sir Randolph being, in the 
 words of his Noble and Learned biographer. Lord Campbell, " a perfectly competent,'' " thoroughly honest," and " nobly 
 " independent" judge — he also advised that the Lord Chamberlainship of England should be likewise awarded to the heir 
 of the Earldom, in the following words : — 
 
 " Since they were thus joined together (and this only flower left in the garland of the Earldom), he could not by his 
 " advice divorce or put them asunder, but humbly submitted his opinion to their Lordships' great judgments ; and, in the end 
 " of his argument, prayed their Lordships, in respect the case was so great and weighty, of so noble a family, and was merely 
 " qucBStio juris of inheritance, that their Lordships would be pleased to take the opinion of all the Judges of England herein, 
 " all of them being assistants to this Court, and all their advices being (as he conceived) necessary to be had, in so important 
 " and so noble a case." Collins' Proceedings, pp. 176, 188. 
 
 Any additional comment would but weaken the effect of the noble words here recorded. 
 
 The material passages in the "Certificate" or Resolution which followed have been given supra, p. v; and I may 
 here additionally refer to them in proof of the " long debate " and " deliberate consideration " which were bestowed upon 
 the case, not only by Chief Justice Crewe and the Judges, but by the House of Lords in general, on the occasion. 
 
XVI ADDRESS TO THE QUEEN. 
 
 " him — it being as much the interest of the Crown and the Peerage that those possessing 
 " a right to honours should establish that right as that those who possess no such right 
 " should be excluded." * My father having, therefore, on this ground, as well as on that 
 of the attempt made by the Noble Duke to form a combination against him among the 
 Dukes of Scotland, appealed to the justice and protection of the House, I confess th^t 
 neither he nor myself were prepared to find the Crown Officers, for the first time in the 
 history of Peerage claims, frankly adopting the Noble Duke's Case as their own, retaining 
 the author of that Case as their fellow counsel and assistant at the bar of the House, and 
 bringing the Noble Duke forward with all the power and influence of the Crown, as if 
 the interest of Your Majesty and of the Noble Duke were inseparably united against my 
 father's success — degrading Your Majesty (as I humbly conceive) into a partisan f — and 
 pleading the Noble Duke's cause with the earnestness and passion of advocates con- 
 tending for victory in a private suit,J — the House having previously decided that His 
 Grace was not a party and had no right to appear in the matter : — And still less could 
 we have expected to find that Noble and Learned Lords, members of the Committee, 
 far from censuring them or reminding them of their true duty and position^ openly and 
 undisguisedly sanctioned their doing so,§ and allowed the learned counsel of the Noble 
 Duke to sit, as such, in association with them at the |;)ar, in expectancy of being 
 ultimately heard, throughout the proceedings — in the very face of their own decision 
 of the 14th of April 1851, — treating the claim of the Noble Duke to oppose in the case 
 as one still in dependency and " reserved " by that decision || — apologising for the 
 
 * See the 'Addenda' to the Supplemental Case, pp. 230, 231. 
 
 t The following conversation took place in the course of the discussion : — 
 
 " Lord Chancellor. — 7s this all stated in your Case 1 
 
 " Mr. Attorney-General. — Yes, my Lord, this is all stated in out Case, at page 18. . . . There is another instance of the kind 
 " about the same time. . . . It is in page 18 of our Original Case. 
 
 " Chairman. — You mean the Case of the Duke of Montrose, I suppose? 
 
 " Mr. Attorney- General. — Yes; I call it our Case, because the materials of the Case have been supplied by the Duke of Montrose. 
 
 " Lord Chancellor. — In truth, you are counsel for the Crown, or ' amicus curice,' and counsel for the Duke of Montrose. 
 
 " Mr. Attorney -General. — The Duke of Montrose has his own counsel here;" y\z. Mr. Rolt and Mr. Hope Scott "but we are 
 " addressing your Lordships on the part of the Crown from the materials which have been furnished by the Duke of Montrose" 
 — Infra, p. 187. 
 
 The statement by Mr. Cosmo Innes, the learned author of the Duke of Montrose's Case, " that he held a brief on the 
 " part of the Crown," has been already cited, supra, p. x. 
 
 Mr. Innes's examination of John Graham, Esq., on that gentleman appearing in order to produce evidence for the 
 Crown, commences as follows : — 
 
 " Mr. Innes. — You are a Solicitor in London? 
 
 " Mr. Graham. — I am. 
 
 " Mr. Innes. — And Agent now for the Duke of Montrose in this Case ? 
 
 " Mr. Graham.— The Firm in which I am a Partner has the honour of being Agents for the Duke of Montrose.'' 
 
 And it is on the same principle (I presume) that, since the termination of the proceedings before the House, the Crown 
 have devolved on Messrs. Maitland and Graham, the private agents of the Duke of Montrose, the duty of supervising the 
 printing of the Claimant's evidence as adduced in this claim. 
 
 I Independently of the evidence furnished by the Speeches themselves, passim, the Attorney-General commenced his 
 address by stating that he felt it, " ih common with " his " learned friend the Lord Advocate," his " duty to offer an active 
 " and strenuous resistance to this claim,"— adding undoubtedly, " under the firm conviction that it is one that is unfounded 
 " and ought not to be admitted by your Lordships,"— but having taken that impression (as shewn in the preceding note) 
 entirely from the papers of the Duke of Montrose. Vide infra, p. 18L 
 
 § See the dicta of the Lord Chancellou, as quoted in the penultimate note, and the Tie-port passim. 
 
 II At the commencement of the proceedings, on the first day of hearing, after a statement by the Attorney-General and 
 Lord Advocate in reply to a question of the Lord Chancellor, to the effect that they appeared on behalf of the Crown and 
 were "quite ready to take an active part if -that should appear to be necessary," the following questions and answers 
 followed : — 
 
 " Chairman.— Does anybody appear for the present Duke of Montrose 1 
 
 " Mr. Rolt.— There is a Petition also before your Lordships from his Grace the Duke of Montrose. 
 
 " Chairman.— Do you appear for the Duke of Montrose ? 
 
 " Mr. Rolt.— I have the honour to attend your Lordships for the Duke of Montrose. 
 
 " Chairman.— Has there been any order of the House upon that Petition i 
 
 " Mr.Rolt.-What was done was this: There was a Petition presented for liberty to his Grace to appear and be heard mi the 
 " matter, and an order _ was rnade upon that Petition that he should be at liberty to lodge a Case. That has been done No further order 
 " has been made upon it, and the Petition of the Duke of Montrose is «o» before your Lordships, together with the Petitionofthe Claimant 
 
ADDRESS TO THE QUEEN. 5VII 
 
 previous inaction of the Crown Officers on the ground (as it would appear) that inquiry 
 into the merits of Peerage claims is not obligatory but optional on their part — con- 
 gratulating themselves that the claim had in the natural course of things aroused up the 
 Duke of Montrose to incur the onus of providing the means of opposition to the claim — 
 and coupling their decision against my father with reflections upon him for having 
 occasioned themselves so much trouble and the Noble Duke so much expense :* — Facts 
 too eloquent to require any comment. 
 
 The general and practical result from this line of procedure is this : — That peers 
 who mislike the establishment of claims to Peerages of the same nominal designation as 
 their own may henceforward institute researches for the purpose of defeating such claims 
 (irrespectively of their abstract justice), in the confidence that, although their right to 
 oppose may be disallowed and denied, their lucubrations will be accepted with gratitude 
 by the Committee, their Counsel will be allowed to appear and assist as counsel and 
 assessors to the Crown at the bar, and the Crown Officers, with the implied sanction of 
 the Committee, will adopt and plead their cause. They may organize combinations 
 among their brother Peers to defeat a Peerage claim which may derogate from their 
 precedence^ or be in any way (as they may think) inconvenient to them ; and although a 
 Claimant may in such.case invite the attention of the House to the fact, they may proceed 
 on their course rejoicing, assured that the Committee will not interfere. And, lastly, 
 such Peers may henceforward sit as members of the Committee, judging the claim which 
 they have thus conspired to destroy. Surveying the whole of these proceedings and the 
 
 " But at the present moment I think there is no discussion necessary upon it. If your Lordships should think, in the course of the 
 " case, that it should be lawful that I should be heard, either to examine or cross-examine witnesses, or address the House, your 
 " Lordships will deal with the case as the necessity of the occasion may require : bat it will not be necessary at this moment to 
 " dispose of that question. 
 
 " Lord LyndhuTst. — We had better hear the opening first. We shall be better able to judge after we have lieard the opening. 
 
 " Sir FitzRoy Kelly,— Tins matter, of course, is altogether in your Lordships' hands ; but after what has this moment passed, 
 " / ought perhaps to remind your Lordships that upon a distinct application made on behalf of the present Duhe of Montrose, the 
 " Committee of Privileges was pleased to refuse that application for permission to the Duhe to appear as a party opposing this claim. 
 
 " Mr. Attorney- General. — Tliat was only temporary and provisional. Lord Brougham says, ' By this form we do not preclude 
 " 'the possibility of your ever being heard afterwards, when we shall see the case ; therefore that course of proceeding has the benefit of 
 " ' leaving it open.' 
 
 •• Sir FitzRoy Kelly. — Entirely so. I was about to add that when my learned Friend interposed. 
 
 " Lord Chancellor. — / think we had better hear what the case is. 
 
 " Sir FitzRoy Kelly.— 'Precisely so, my Lord: / only noticed what fell from my learned Friend on behalf of the Duke of 
 " Montrose, for the purpose of apprising your Lordships exactly how the case stands. It is, of course, quite open to your liOrdships 
 " to deal with the claim of any nobleman or gentleman to appear against this Claim, whenever an application shall be made to your 
 " Loi'dships." (") 
 
 The preceding conversation was renewed at the conclusion of the Claimant's opening, as follows : — 
 
 " Mr. Rolt. — My Lords, at this stage of the proceedings, / have to ask your Lordships that I may be heard on behalf of the 
 " Duke of Montrose, before the case is concluded. It will be for your Lordships to say when, after the Crown Counsel have addressed 
 " your Lordships. What your Lordships have decided upon the petition which has been presented was, that we should be at liberty to 
 " print papers and lodge them, and every thing else respecting the petition is reserved. 
 
 " Lord Brougham. — The question whether the Duhe of Montrose should be heard or not was reserved. 
 
 " Mr. Rolt. — Just so, my Lord. That was resei-ved. I should be most anxious in this long case not to occupy your Lordships 
 " unnecessarily. We have been engaged in this case from the commencement in getting up the papers, and unless it should appear 
 " to us that we can usefully address your Lordships, we certainly should not desire to trouble the Committee with any observations. 
 
 " Lord Redesdale. — The Committee cannot at present decide anything with regard to hearing counsel on behalf of the Duke of 
 " Montrose. They desire that the Attorney-General should now proceed on the part of the Crown. 
 
 " Lord Brougham. — (To Mr. Eolt.) Tf necessary you can make your application again if you should be advised to do so." C") 
 
 And, at the conclusion of the Addresses by the Attorney-General and Lord Advocate, the subject was again mooted 
 thus : — 
 
 " Mr. Rolt. — Having heard the arguments just addressed to your Lordships, L beg to say that my learned friends and I think that 
 " we exercise a sound discretion in not ashing your Lordships on this occasion to be heard. There may be some matters which have 
 " been opened, not directly made points in the case, that are met in the printed papers, but if there should be any other questions 
 " which your Lordships may think have not been fully opened, we shall be anxious to argue any point which your Lordships may 
 " think necessary." (") 
 
 What actually passed on the 14th April 1851 may be seen, as I have already stated, in the Appendix to this volume, 
 infra, p. 373. 
 
 * As shewn by the passages cited from the Speech of Lobd St. Leon aeds, supra, p. xiy, and infra, pp. 345, 346. 
 
 O Itifra, pp. 1, 2. (•>) Infra, p. 180. C^) Infra, p. 256. 
 
 D 
 
XVIII ADDRESS TO THE QUEEN. 
 
 sanction they have obtained in the House of Lords, I admit frankly, and in justice to the 
 Noble Duke who has been my father's opponent in this matter, that the surprise and 
 astonishment with which I have on former occasions contemplated proceedings on his 
 part which I had erroneously (it seems) been taught to think illegal, are now transferred 
 to a different quarter. 
 
 In conclusion upon this point, I submit to Your Majesty that Your legal advisers 
 have descended from their high position with respect to Peerage claims, and can no 
 longer be considered as calm and impartial investigators of truth for the public interest 
 and that of Your Majesty as involved in the protection of the rights of the Peerage of 
 Great Britain. And I submit that the Committee of Privileges have made themselves a 
 party to the views that I have here denounced ; and that the procedure adopted for the 
 first time in the present case, alike by the Officers of the Crown and by the Committee, 
 forms a very dangerous precedent for the future.* 
 
 Proceeding to the more direct effects of the recent decision on the principles and 
 practice of Peerage Law, I would observe, 
 
 1. That, whereas it has been held hitherto that a Scottish Peerage could only be 
 alienated by Kesignation, by Forfeiture, or by a duly expressed and duly 
 sanctioned Act of Parliament, it is now laid do^vn, generally and broadly, by 
 the Lord Chancellor of England, that it could be annulled by " the Omni- 
 " potence of Parliament," — that " Parliament can destroy a Peerage, or take 
 " a person's property, or do anything else " — that is, that the Scottish Par- 
 liament could do so, to the superseding of law, at the single impulse of its 
 autocratic will and pleasure, in the fifteenth as the British Parliament can now 
 do so in the nineteenth century.j I would humbly represent that this doctrine 
 was unheard of in the feudal ages, and that, although some unscrupulous men 
 have in later times, "by a figure rather too bold," J endeavoured to invest the 
 Parliament of England with the most distinctive attribute of Deity, it is 
 too much to assume (as appears to be assumed in regard to the present 
 case) that what can be done must necessarily be done lawfully, and that an 
 assembly which exists only cognately and concurrently with constitutional 
 government, is not bound by the existing and unrepealed laws of the land, as 
 well as by those higher conditions under which, only, power is delegated 
 from God to man.§ In a word, I deprecate the doctrine thus enunciated — 
 and more especially so in connection with expressions which have recently 
 fallen from Noble and Learned Lords, indicating an opinion (incredible as it 
 may appear) that Parliament (as distinguished from and discoimected with 
 
 * On a recent occasion, in the pending Grandison claim, the Committee were unable to proceed, owing to the absence 
 of the Attorney-General or of any representative of the Crown, and were obliged to direct Mr. Clark, one of the learned 
 Editorsof the Reports of Cases before the House of Lords, to watch the case on behalf of the Crown in fulfilment of the duty 
 of the Attorney-General— a duty which Mr. Clark has since fulfilled, and is still fulfilling, tU legitimate representative of the 
 Grown taking no part in the inquiry. The contrast between the zeal of 1853 and the indifference of 1854 is singular and 
 remarkable. 
 
 t Vide the Lord Chancellob's Speech, ivfra, pp. 312, 313, taken along with the subsequent reference to this pas- 
 sage at page 314, " As I have already stated. Parliament was omnipotent." 
 
 X Sir William Blackstone. 
 
 § It can hardly be necessary to quote here the well-known words of Lord Holt :— " The authority of Parliament is 
 " from the Law, and as it is circumscribed by Law, so it may be exceeded ; and if they do exceed those legal bounds and 
 " authority, their acts are wrongful and cannot be justified, any more than the acts of a private man."— Nor can it be requisite 
 to observe that feudalism was the earliest form of constitutional government in modern Europe. I do not of course deny that 
 Parliament can enact or repeal any law it pleases ; but it cannot set aside the law indirectly, or otherwise than by legisla- 
 tion,— and seriously to vindicate for Parliament the right to do so would be to lay down a doctrine worthy of the Reign of 
 Terror and of Robespierre. 
 
ADDEESS TO THE QUEEN. XIX 
 
 the Sovereign) can create, restrict, or (as above) annul a Peerage* — expressions 
 and doctrine dissociating Your Majesty from that august body of which You 
 are the head; and which, in arrogating to that body Your Majesty's peculiar 
 privilege of being the fount of honour, must tend directly and inevitably to the 
 degradation of Your prerogative and supremacy, — expressions and doctrine, 
 moreover, as I would further remark, closely connected with and akin to an 
 assumption, which pervades the recent discussion on the part alike of the 
 Officers of the Crown and of the Committee, that the House of Lords possesses 
 an inherent jurisdiction and right of decision in peerage matters, irrespectively 
 of reference from the Crown — in utter derogation from Your Majesty's 
 supreme and living prerogative, and in oblivion of the grace and confidence 
 reposed in that Most Honourable House by Your Majesty, — an assumption 
 only tardily, at the last moment, and, as it appears to me, imperfectly 
 abandoned by the Noble and Learned Lord who spoke last in moving the 
 Resolution, f and that in consequence of vindication of the truth by the 
 learned Counsel who represented my father.^] I only touch, however, upon 
 
 * Independently of the sweeping principle of the Omnipotence of Parliament, as laid down by the Lord Chanceli-ob, 
 by which Parliament "can destroy a Peerage," I would refer to pages 173 and 291 of the ensuing Speeches, where Lord 
 St. Leonards speaks of the Regrant of the Dukedom of Montrose by James IV., with consent and advice of Parliament, 
 18th September 1489, as an " Act of Parliament" which "enabled the Crown " to " grant " the Dukedom ; and of " Par- 
 " liagient" as coming "in aid of the King" in doing so — (a view consonant with that of the Attorney-General at page 196, 
 that "the Act of Parliament" in question, the Royal Regrant 18th September 1489, "says that the King may 'de novo' 
 "create the Dukedom," and with the language of the Lord Chancellor, who speaks of this Regrant as an " Act of 
 " Parliament" " indicating that the King was anxious thai he" — the Earl of Crawford — "should be a Duke, by the title of Duke 
 " of Montrose" infra, p. 318) — thus making the warrant by the Crown a warrant to and _/b)' the Crown, empowering it to grant 
 a dignity : — And see also the dicta of Lord Ltndhurst at pp. 174, 175, in reference to this very Regrant, — "There is a 
 " Regrant by Act of Parliament, which implies the power to alter it " {i. e. the title under the original grant) "as they thought 
 " proper." And again, " This is a Regrant by an Act of Parliament. . . . Does it therefore come within what was said by 
 " Lord Mansfield or Lord Hardwicke " (viz. that a peerage granted by the Sovereign and not resigned cannot bo regranted by 
 novodamus, and that a regrant under such circumstances must, as the Claimant contends, be a virtual confirmation) ? " It is not 
 " a Regrant by the Crown, but it is a Regrant by Act of Parliament." — The simple answer to this, as matter of fact, is, 
 that the Regrant is not by Parliament but by the King " cum avisamento maturaque deliberaeione Magni Concilii sui," that 
 is, of the Parliament in whose books it is recorded. But the principle, as laid down by the Noble and Learned Lords alluded 
 to, remains of course untouched by this explanation. (") 
 
 t See the Noble and Learned Lord's Speech, infra, p. 368. 
 
 I The following passages may illustrate this singular impression : — 
 
 " Lord St. Leonards. — . . . There cannot be any doubt but that the Court of Session did take upon itself at certain times 
 " jurisdiction over Peerages ; but nobody can dispute, 1 think, that Parliament did not lose its jurisdiction over Peerages ; and / can 
 " see nothing which authorizes the present practice of this House, and the power of this House over Scottish Peerages in common with 
 " other Peerages, except the law of Scotland as it stood before the Union. 
 
 " Mr. Attorney-General. — Just so, my Lord. . . . 
 
 " Lord St. Leonards. — . . . It is very material that we should understand exactly what the jurisdiction is as it is now exercised, 
 " and as it was then exercised, because a good deal turns upon it. 
 
 " Mr. Attorney -General. — Your Lordships are undoubtedly exercising in Scottish matters, by virtue of the Act of Union, the 
 "jurisdiction, and power, and authority which the Scottish Parliament exercised. 
 
 " Lord St. Leonards. — That is what I understand. . . The question of the right to a Peerage . . . is hardly a case which, under 
 " ordinary circumstances, would form the subject of determination by a Court of Justice, to whom u Parliamentary power was not 
 " expressly delegated." Q') 
 
 After which the Noble and Learned Lord quotes the Scottish judge Lord Karnes, as asserting that " to determine a 
 " right of Peerage is the exclusive privilege of the House of Lords," &c. infra, p. 220 (with reference to which I would refer 
 to the notes on Lord St. Leonards' Speech, p. 366), and enters into a discussion from which he infers that " it is only because 
 " the right was vested in the Parliament of Scotland that it can have devolved upon the Parliament of England since the 
 " Union." To which, after the response of " Clearly so, my Lord," from the Attorney-General, and an affirmative 
 
 (») Lord Lyndhurst similarly describes the "Act Rescissory" the case of the Montrose Regrant, it gives it (by the ruling 
 
 as " annulling a former Act " (infra, p. 195)— the annulled " Act " Cornwall decision) the subsidiary weight of a statute, insomuch 
 
 being the original Montrose patent granted by the King himself that it may he described, by a figure of speech, as created " by Act 
 
 on the 18th May 1488, when in the full exercise of his prerogative, " of Parliament." But the legal rule and principle, as applicable 
 
 and without the assent of Parliament— which was of course unes- to such grants, is laid down in the Norfolk judgment in 1425 in 
 
 sential to its validity,— this original patent, thus emanating from the conclusive words, " Creatio Ducum, sive Comitum, aut 
 
 the King himself, being described as a simple Act of Parliament, " aliarum Dignitatum, ad solum Eegem pbrtinet, bt son ad 
 
 annullable by a subsequent Act of Parliament ! Undoubtedly when " Parliamentum." Infra, p. 392. 
 
 the assent of Parliament is expressed in a grant of honour, as in (') Infra, p. 215. 
 
 D 2 
 
XX 'addeess to the queen. 
 
 these assumptions and opinions as indicative of the broad and pregnant 
 principle of the Omnipotence of Pai'liament from which they flow — and 
 against which I protest before Your Majesty, as utterly subversive, in its root 
 and its development, of British liberty. I need say nothing more on this 
 head, inasmuch as my father does not dispute that the honour he claims 
 might have been annulled by an Act of Parliament if so expressed as legally 
 to afffect it — IF, that is to say, expressed with due formality and specification 
 as regards the honour and the individual struck at — if sanctioned by the full 
 and particular concurrence of the Sovereign, without which, by the Peerage 
 Law alike of Scotland and of England, Parliament, by itself alone, is impotent 
 in honours — and if, too, not repealed, according to Scottish law and usage, 
 by non-effect and non-operation— or, as it is technically termed in Scot- 
 land, by Desuetude — ah initio. As matter of fact, the Committee have in 
 this case held, that the simple enrolment of an Act on the Statute Book 
 of Scotland — whether duly expressed and sanctioned or not — and whether it 
 took effect practically or not — is sufficient to make it law in perpetuity, 
 operative to cut down and annihilate a Scottish Peerage ! * 
 2. Whereas it is a rule, alike of Scottish and English law, that a statute must be 
 interpreted " in that sense which the words most obviously suggest to the 
 " understanding,"! — that is, according to the actual words used, and not 
 according to the presumed intention of those who framed it,J — every par- 
 ticular word being entitled to its full and due value, weight, and considera- 
 tion ; § while it is only where the words admit of two different meanings,|| 
 
 observation from the Lord Advocate, the Noble and Learned Lord added, " There is no doubt that this House has not usurped 
 " any power. It has exercised the power which properly devolves upon it in consequence of the Union.'' (°) 
 
 And in this opinion the Noble and Learned Lord appears to have remained until he put the question to Sir FitzRoy 
 Kelly (in the course of the Reply), " When you consider the power of this House, on what does it rest?" which elicited the 
 answer, " This House has no more jurisdiction as to honours and dignities than any individual peer would possess in his own 
 " drawing-room. Your Lordships are now considering this question ... by express and special reference from the Crown. . . 
 " This House is not sitting as a House now. . . . There is no jurisdiction in this House. . . This House, as one of the Estates 
 
 " of Parliament, has no more jurisdiction now upon matters of honour than any individual belonging to it : "C) An exposition 
 
 which (as I have observed) seems not to have been altogether without weight on the Noble and Learned Lord, as appears 
 from the more qualified tone with which he treats the question in his Deciding Speech, irifra, pp. 367 sqq. 
 
 LoBD Brougham's opinion may be gathered from the following passages in the discussion : 
 
 " Lord Brougham.— With respect to the jurisdiction of Parliament over questions of Peerage, the decision of which was 
 " certainly, generally speaking, vested in the Court of Session, the difficulty is this,— fl^ou, did this House after the Union obtain that 
 " which undeniably it has ever since the Union exercised without any dispute, namely, a jurisdiction in all matters of Scotch peerage 
 " precisely as it has in questions of English peerage ? . . . How do you account for our having it, except by the fact of our having succeeded 
 '* to the jurisdiction of the Scotch Parliament? 
 
 " Mr. Attorney- General.— Clearly that is the origin of it, my Lord. 
 
 " Z^rd Brougham. — There is nothing in the Act of Union about it ? 
 
 " Mr. Attorney-General.— No, my Lord, nor in any Act of Parliament. There is no legislative authority for it. It can only 
 " be derived from the fact that your Lordships are by the Act of Union the successors of the Scottish Parliament. 
 
 " Lord Brougham. — Can we succeed to an estate which they had not ? 
 
 " Mr. Attorney- General. — It is by no means certain that they had it not. We have an instance or two of it. 
 
 " Lord Brougham.— Our having it, if it were doubtful, would he a strong argument in favour of their having it. 
 
 " Mr. Attorney- General. — No doubt, my Lord." (°) 
 
 Neither the Lord Chancellor nor Lord Ltndhdkst expressed any dissent from the views thus assumed and laid 
 down by Lord St. Leokards and Lord Brougham throughout the discussion. 
 
 * The words of the Lord Chancellor were as follows :— " A suggestion was made that ... a doubt might arise 
 
 " whether it " (the Act Rescissory) " was an Act of Parliament at all This is an argument to which I can attribute no 
 
 " sort of weight, because it was one of the Acts of Parliament, it is enrolled among the Acts of Parliament, and it purports 
 '•tobean Act of Parliament." " Whether " the King was " present or not " is " utterly immaterial " Vide infra v 326 
 and note t- J > V- > 
 
 t Erskine's Institute (referring to ' L. 67 De Reg. Jur.'), Book I. Tit. i. § 51. Cited infra, p. 262 
 t In which case, if that intention be not expressed by apt and sufficient words, the rule obtains, Quod voluerunt non 
 fecerunt. 
 
 § According to the maxim Verba sumenda sunt cum effectu. 
 
 II " This principle of equitable construction is not to be carried beyond certain bounds ; and a judge is not at liberty 
 
 (■) Infra, p. 221 .-On all this vide the ' Narrative and Inquiry,' infra, pp. lii sqq. (k) Infra, p. 300. (') /„/„, p. 220. 
 
ADDKESS TO THE QUEEN. XXI 
 
 or where the effect of the statute is to work injustice,* that the words may 
 be departed from — although exclusively, under such contingency, in favour 
 of justice and mercy, f — and all this of course a fortiori in the case of penal 
 statutes, and of that most susceptible and shrinking of all subjects of which 
 the law takes cognisance, the matter of honours : — Whereas such has been 
 the rule and practice hitherto, the principle is now practically asserted and 
 adopted that statutes, however confessedly unjust, impious, or disloyal, are 
 to be interpreted and enforced according to the presumed intention of the 
 Parliament that pass them, and not according to the grammatical meaning 
 of the words actually used ; and that words may be either virtually expunged 
 from such statutes, or positively imported into them, in order to give that 
 presumed intention effect — against justice and mercy, in penal statutes^ and 
 in the matter of honours. J And this principle has been extended still further 
 in its application, in so far as to excuse illegality and injustice; to wit, 
 illegal confiscations, on the ground that the confiscators had reason to 
 believe that an Act of Parliament would be thereafter passed to legalise 
 those confiscations § — the illegal and unjust denial to a peer of his rightful 
 
 " in favour Of a supposed intention, to disregard the express letter of the statute, where, for anything that appears, the wording 
 " may correspond with the actual design of the legislature, — the maxim in cases of this description being that A verbis legis 
 " non recedendum est." — Stephen's Commentaries, vol. i. p. 73. 
 
 * " Statutes can in no case be explained into a sense which infers injustice or absurdity." Ershine's Institute, Book I., 
 Tit. i., § 50. — And, "When therefore the strict letter seems contrary to the spirit of law or to equity, judges ought not to 
 " regard the proper or received significance of the words so much as that meaning which appears most consonant to the design 
 " of the law," (iUd., § 52,) — the presumption here being, of course, that the statute under consideration has been framed 
 in conformity with the immutable principles of justice, and at a period when no disturbing influences of human passion per- 
 verted the mind of the legislature. 
 
 f By the rule In duhiis lenignicyra semper sequenda sunt, to be immediately noticed. 
 
 t The principle of interpreting by " intention " is urged throughout in the present case by the Attorney-General 
 (pp. 183, 186, ani passim}, and by the Lord Advocate (p. 223 and passim) — this principle being the basis of their 
 whole argument on the subject of the Act of Revocation, or Act Rescissory, by which it is contended that the Dukedom of 
 Montrose was annihilated and cut down. And in accordance with this principle the Lokd Chancellok interprets the words 
 '' which might be prejudicial to Our Sovereign Lord and to the Crown that now is," descriptive of the grants of James III. 
 the annulment of which is the object of the Act, as being " merely an inaccurate (if it be inaccurate) way of explaining 
 " the motive that induced the Legislature to annihilate " the grants struck at, &c. — asserting that the passage does not 
 " mean that such" only " of the alienations of lands and grants of new dignities as may he prejudicial to his" (James III.'s) 
 " successor shall ' be cassit and adnullit,' " but that it means " that all those alienations and creations of new dignities shall be 
 " annulled ' because ' they are or might be prejudicial to the successor :" — Or, in the phrase subsequently used by the Noble and 
 Learned Lord, " it was not to be a question in any case whether it was prejudicial ; but . . the reason why the legislature thought 
 " fit to interfere was because it was prejudicial," — the words ' which might be prejudicial' being thus replaced by or meta- 
 morphosed into ' which are prejudicial,' and the word ' because' transferred from one clause of the statute to the other (as may be 
 seen by reference to the Act, infra, p. 381), in order to give weight to that interpretation. — Infra, pp. 314, 315 : — While Lord 
 St. Leojiakds, on the other hand, lays it down, on the same principle, that the true construction of the grants of James III. 
 (including the Dukedom) and of the Act Rescissory is to be sought for by reference to the principle acted upon at the time, as 
 ascertained by the proceedings that took place — the principle being that James III. had ceased to reign from the commence- 
 ment of the rebellion ; that the defence made by his loyal defenders was the cause of his death, which consequently was 
 imputable to those loyal defenders, and not to the enacters of the Act Rescissory ; that loyalty to James III. was dis- 
 loyalty to his successor; that consequently the grants of James III. did not proceed from proper authority in the estimation 
 of those who enacted the statute ; and that the qualification in the statute, ' which might be prejudicial,' must therefore be 
 explained by .reading ' which but for this Act, but for what we are now doing, might be prejudicial,' — that is to say, by the 
 importation or interpolation of additional words doing away with that qualification, so as to make the statute strike at every one 
 of the grantees of James III. without exception, — all which may be seen by reference to the Noble and Learned Lord's 
 Speech, infra, p. 349. — It may be observed likewise that this construction by ' intention ' is diametrically opposed in this 
 instance to the Scottish principle, founded on by the Claimant, that " a law, though expressed in the most general terms, ought 
 " not to be extended to any case to which the reason inductive of the law is in no degree applicable." Analysis, infra, p. xxiv. 
 The reason inductive of the Act Rescissory is, that the persons struck at by the Act were the " cause of the slaughter of Our 
 " Sovereign Lord's father," in other words, the murderers of James III., — -it was against such only, and in punishment of that 
 particular crime, that the Act was directed ; but David Duke of Montrose was not the murderer of James III., — therefore the 
 Act cannot apply to him. The Crown and the Committee have taken no notice of this argument, which can only be evaded 
 by the principle of controlling the plain words of a statute by the intention attributed to the framers'of that statute. 
 
 § Lord St. Leonards (in accordance with the Lord Advocate's argument at p. 239 irifra) observes as follows, with 
 reference to grants of James III. resumed and regranted by James IV. before the Act Rescissory, and which resumption and 
 
XXII ADDRESS TO THE QUEEN. 
 
 title, on the ground that the enemies of that title had reason to believe that 
 it was intended to deprive himof it*— and the (alleged) illegal and therefore 
 (as presumed) unwarranted assumption of a title on the part of one not 
 entitled to it, on the ground that he had reason to believe that it was in con- 
 templation to grant it to hinj.f A melancholy departure from the spirit 
 which animated Sir Edward Coke when he penned his gracious sentence, 
 that " Acts of Parliament are to be so construed as no man that is innocent 
 " or free from injurie or wrong be by a literal construction punished or 
 " enda.maged"X— a dictum, indeed, of which the Claimant feels himself wholly 
 independent in the present case and question, where the clear construction 
 of the words is such as to have necessitated the expedients above remarked 
 upon in order to evade their distinct testimony in his favour. 
 
 3. That, whereas the maxim " In dubiis benigniora semper sequenda sunt/' a 
 
 generous and a just one, has hitherto been in observance, both in Scotland and 
 England,§ and especially so in honours ; this rule of charity has now been 
 practically superseded and set aside, and in a case where, by direct admission 
 on the part of one Noble and Learned Lord, and involuntary betrayal on that 
 of another, " all is in great obscurity/' || (an obscurity only arising indeed 
 from wilful abnegation by those Noble and Learned Lords of the wholesome 
 and cheering guidance of precedent and Peerage Law,) everything esteemed 
 doubtful has been interpreted to the disadvantage of the Claimant. 
 
 4. That, whereas it has been held hitherto (and it has not been denied by 
 
 my father's opponents in this claim) that penal statutes must be inter- 
 preted most strictly, and especially so in honours — with the most anxious 
 desire and effort to avoid attainders, forfeitures, and deprivations, and 
 
 regrant the Crown founds upon, although acknowledging their illegality — that illegality being moreover acknowledged by the 
 Noble and Learned Lord in question : — " The Proclamation " — a Proclamation which is said to have been issued the day after 
 the Battle of Stirling, but of which nothing is known — ' ' could not by law operate to destroy those grants. That I freely admit. 
 " But it shows the intention of the Crown to strike at those grants. It is probable that some of the property which had been 
 " granted to the Duke, or to others, had been resumed by the Crown, and had been granted away before the Act Rescissory. 
 " That was considered as impugning the authority of that Act ; and it was said, ' this was a mere act of violence and power ; 
 " ' for you find that this property was regranted by the Crown before the original grantee had lost his title to it.' That may be 
 " true enough; but it was granted after the Proclamation, with the intention of the Crown, and with the knowledge of the 
 " Crown, that those grants would be defeated by Parliament. And almost the first Act of the Parliament which met early in 
 " October 1488 was to pass the Act Rescissory." Infra, p. 346. 
 
 * The Attorney-General founds on entries of the Duke of Montrose as " Earl of Crawford " in the Chamberlain Rolls 
 and Treasurer's Accounts in July 1488, previously to the Act Rescissory, infra, p. 189 ; and the Lord Advocate likewise 
 describes "Lord Crawford" as " standing as Lord Crawibrd even before the Rescinding Act passed" — acknowledging at 
 the same time that his being so described, like the resumption and regrant of the grants of James III., was at that time illegal. 
 " But the truth is," he states, "that it was the Proclamation that set this" (one of the grants in question) " aside as well as 
 " the other grants. The King dealt with this matter as being in his own hand from the date of the Proclamation." Infra 
 p. 239. — And compare Lokd St. Leonards' Speech, as quoted in the preceding note. 
 
 t David Duke of Montrose being styled ' Duke of Montrose ' by the Franciscans of Scotland in an Indenture between 
 himself and them, dated the 2nd August 1489, "just " — according to the Lord Chakcelior — " before the re-creation "—that 
 is, just before the Regrant of the Dukedom 18th September 1489 (the Lord Chancellor holding that he was not then 
 entitled to the dignity, owing to the Act Rescissory having cut down the original grant),— the Noble and Learned Lord 
 
 accounts for the Duke's assumption (as he represents it) of the style of ' Duke of Montrose ' as follows : " It might well be 
 
 " that he had been told that he should be created Duke of Montrose anew, and therefore might have dime iV"— i.e. assumed 
 the title — " with reference to what he was about to be, and not to what he then was." Infra, p. 321. — A theory to which there 
 exists an independent and insuperable objection, not necessary to be here noticed, but which may be seen infra p. 321 n t. 
 
 t First Institute, S. 685. 
 
 § This maxim was specially founded upon in the great Glencairn and Eglinton process in 1637-48, as may be seen 
 infra, pp. 436, 439. And for other forms of the rule and its application, " especially where the matter is odious," as in penal 
 statutes, see Lord Stair's Institutions, B. iv. Tit. xlii. J 21. Compare also Sir M. Hale's ' Hist. Placitorum Corona' pp 300 
 509, edit. 1736. The principle of benign interpretation in doubtful cases is of universal acceptance in British law 
 
 II See the Lord Chancellor's Speech, infra, p. 316. He afterwards describes it as « a case involving all the 
 " difficulties of antiguiti/." Ibid. 
 
ADDRESS TO THE QUEEN. XXIH 
 
 to construe such statutes in favour of the persons who may be supposed 
 to be struck at by them — and this of course a fortiori where those 
 persons are innocent and undeserving of such infliction ; * it is now practi- 
 cally ruled by Noble and Learned Lords in this case, that — even where 
 innocence and desert are admitted on all sides — a penal statute is to be 
 strained to its utmost in favour of forfeiture and against mercy ; that, where 
 a qualification is introduced, limiting the application of the statute to a 
 particular class of persons, such qualification may be interpreted (and indeed, 
 if this precedent be followed, must be interpreted) as merely an incorrect mode 
 of stating that the persons generally alluded to are all struck at without quali- 
 fication — the words creating the qualification being thus (as above) virtually 
 expunged ;j and that words may, or must, be imported into the statute, which 
 are not there, in order to fix this application. J I humbly represent that such 
 a rule of construction has never hitherto been adopted in penal statutes, and 
 that its recognition and enforcement now will have the most serious effects, not 
 merely upon future Peerage claims (if referred to the House by Your 
 Majesty), but upon public security and confidence. It amounts in fact to an 
 introduction of the principle, abhorrent hitherto to the British heart and 
 mind, that an accused person is to be presumed guilty till proved innocent. 
 
 5. That, whereas it has been ruled in Peerage Law since (at least) the commence- 
 
 ment of the fifteenth century, and it has been the correspondent principle 
 and usage in all cases of attainder, forfeiture, and penal infliction down to the 
 present moment, that general words in a penal Act are insufficient per se 
 to affect individuals, but that the individuals (and their heirs) must be 
 specifically mentioned, and the honours intended to be annulled must be 
 specifically annulled, in order to give those general words effect ; this noble 
 rule — distinctly laid down in the weighty Norfolk decision in 1425 § — is 
 now reversed, and it is held that Peerages may be abolished by Parliament 
 in the aggregate, provided only that the period within which they have been 
 created is specified — the specification of that period being sufficient to 
 establish that the peerages struck at are mentioned expressly by name,|| — a 
 direct departure, I presume to think, from the broad presumption of inno- 
 cence and immunity which is cast as a shield over the life, property, and 
 fame of every individual British subject. 
 
 6. That, whereas it has been the rule and understanding hitherto, that remedial 
 
 statutes — statutes framed for the purpose of redressing wrong and expiating 
 iniquity — should receive the most large and liberal interpretation, in favour 
 of those persons whom, in the calm and contrite judgment of the legislature, 
 they may feel conscious of having injured;^ it is now practically established 
 
 * Vide infra, p. 8 oaA passim. And compare Blackstone, vol. i. p. 70, edit. 1770, and as cited infra, p. xxv. 
 t yide Speech of the Lord Chancellor, infra, p. 314, and n. §. 
 X Vide Speech of Lord St. Leoij ards, infra, p. 349, and n. f- 
 
 § Vide infra, p. 392. The opinion of Lord Chancellor Brougham on this point in 1832 may be seen at p. xxv, 
 infra. It is distinctly opposite to the rule to which he has now given his sanction in 1853. 
 
 II The ratio in the Norfolk judgment, establishing the principle that " special mention " must be made of a man and 
 his heirs in order to render a general statute available against them, is applied, or rather overruled, by the Lord Chancellor 
 as follows : — " This title " (the Dukedom of Montrose) " was struck at by name — not the title of Duke of Montrose, but the 
 " titles which had been created by the King subsequently to the preceding February were struck at nomiTiatim." Infra, 
 p. 330, and n. §. — And compare the argument of the Attorney-General, at p. 186 : — " If the Committee be of opinion that 
 " the intention of the Act Rescissory was to overturn the dignity in question, it matters nothing that the dignity was not 
 " expressly and specifically mentioned by name." 
 
 If The principle is thus enforced by Sir Edward Coke with respect to restitutions by Parliament, — " In cartis lenigna 
 " facienda est interpretatio ; in fundationibus domuum religiosarum, hospitalium, etaliorumoperumcharitatisfieMgrmbr; in testa- 
 " mentis magis benigna; in restitutionibus bbnignissima." Ihirdlnst., c. 106. Compare also Lord Stair, B, iv. Tit. xlii. § 21. 
 
XXIV ADDRESS TO THE QUEEN. 
 
 that remedial Acts are to be most strictly interpreted against the avowed 
 objects of those Acts and the expressed intention of the legislature ; and that 
 the specific mention of the individual, the strict legal proof that he falls 
 within the scope and intention of the Act, which is no longer to be required 
 in the case of a penal Act (even striking at honours), shall be imperative 
 henceforward in order to entitle him to the benefit of the remedial statute.* 
 
 7. That, whereas the judgments of the Supreme Civil Court of Scotland in 
 
 Peerage cases, pronounced before the Union, at the time when that Court 
 possessed supreme and ultimate authority, without appeal to King or Par- 
 liament, have hitherto been respected and obeyed as final and ruling deci- 
 sions, governing the existence, the descent, and relative precedency of many 
 ancient Peerages ;t it is now ruled that those decisions are not binding upon 
 the House of Lords at present or subsequently to the Union, | — a rule which, I 
 submit, must have a broad and searching influence on Scottish Peerage claims 
 in future, besides opening the door to re-discussion of many points and 
 subjects hitherto supposed to be settled for ever.§^And, finally, 
 
 8. That, whereas it has been hitherto ruled that the warrants and signatures 
 
 which pass under the eye of the Sovereign, and possess his sanction and 
 authority, govern the interpretation of patents or charters subsequently 
 executed out of the Royal presence in obedience to those warrants by the clerks 
 of Chancery ; and that if those patents or charters vary in any respect (as they 
 often do vary) from the warrants, they fall to be corrected by reference to the 
 warrants— the eye, cognisance, and authority of the Sovereign, as the fountain 
 of honour, being first, last, and everything in honours ; (| this rule is now 
 practically reversed, and it is held that the patents or charters are to govern 
 the warrants, and that if any discrepancy exist between the warrant and the 
 charter, the warrant is to be corrected by the charter and not the charter by 
 the warrant,^ — a principle which condemns more than one antecedent Resolu- 
 tion of the House of Lords, and which (if it possess any effect at all — if it be 
 not ipso facto null and void, as dealing with a matter above and beyond the 
 competence of the House) must supersede the will and authority of the 
 Sovereign from henceforward by the will and authority of the clerks of 
 Chancery — and not in Peerages only, but with regard to all property granted 
 by the Crown, whether in past, present, or future times. 
 
 I will not weary Your Majesty by going into the- minuter particulars of the 
 decision now before You — they are commented upon in the ensuing pages ; but those I 
 have pointed out will be sufficient to establish the fact, that this decision, in its prin- 
 ciples and in its application of those principles, has a direct tendency to revolutionise 
 
 * By the judgment of the Lord Chancellob on the Act Revocatory of 1503-4, infra, p. 327, and n. §. 
 
 t I would here refer to the ' Narrative and Inquiry ■ printed in the Appendix to this Address, infra, pp. mi sqq.— 
 See also Lobd Bkougham's dicta in the Waterford case, with relative observations, infra, p. 340, n. (»). 
 
 X By the setting aside of the solemn and final Judgment of the Court of Session in the Glencairn and Eglinton process 
 in 1648, while the Lord Chancellor and Lord St. Leonards hold that the (mere) Opinion of Lord Loughborough on the 
 Glencairn claim (by the heir female), pronounced in 1797, and apparently in ignorance of the Judgment of 1648 in question, 
 IS binding on the House of Lords at present. Infra, pp. 343, and n. ' ; 371, and n. '. 
 
 § Compare the warning conveyed to the rebel Parliament of 1649 by the Earl of Glencairn in the nine concluding lines 
 of his ' Supplication,' Appendix, infra, p. 461. 
 
 II Vide infra, pp. 172, 176, 177. See also pp. Ixx, civ. ; 325, and n. § ; 352, n. ' ; 353, n. || ; 356, n. § ; 551. 
 
 1 By the decisions on the question of the Procuratory and Instrument of Resignation and Donation of the Sheriffdom 
 of Forfarshire, 1st and 6th November 1488, as contrasted with the Charter 14th December 1488 infra pp 324- 325 and 
 n. § ; 352, and n. » ; and on that of the Regrant of the Dukedom of Montrose by James IV. with advice' of Parliament 
 18th Septemberl489, as contrasted with the abridged Litera, 19th September 1489, i«/'a, pp. 319; 353, and n || • 356 andn §* 
 
ADDRESS TO THE QUEEN. XXV 
 
 the whole system of Peerage Law, and indeed to innovate on other departments of law 
 hitherto sacred from such innovation. 
 
 I need scarcely add, that if my father had expected that ancient principle and 
 practice would have been thus reversed in his disfavour, he would have counted it folly 
 to bring forward his claim ; but he trusted in the permanence of the principles which 
 have hitherto regulated the proceedings of the House of Lords in Peerage claims. 
 
 I trust too that Your Majesty will give me credit for an anxious desire not to say 
 one syllable more than may be necessary in order to possess Your Majesty with the grounds 
 and reasons upon which I presume to hope that Your Majesty, as the ultimate resort, 
 and as foreseeing the consequences which must inevitably follow from such a step, will 
 pause before You deliberately sanction the Resolution now submitted to You. That, on 
 the one hand, I believe that fact has been misapprehended,* evidence misrepresented,]" 
 law misunderstood and misapplied,! precedent disregarded,^ and unjust and incon- 
 sistent measure liberally dealt out, by the Committee to which my father's claim has been 
 submitted by Your Majesty |] — every point in his argument being either misconstrued,^ 
 treated with contempt,** or overlooked ; jf and that, on the other hand, every hint or 
 
 * As in the statement by the Lord Chancellor and by Lord St. Leonards, that the creation of the Dukedom of 
 Norfolk in 1397 was not " by Parliament," that is, had not the force and sanction of an Act of Parliament, infra, pp. 329, and 
 n. * ; 331 ; 362, and n. \ ; whereas the contrary is the fact, as shewn at pp. 22, sqq. ; 30, sqq. ; Appendix, pp. 393, sqq. — 
 One proof may suffice here and in the notes immediately succeeding the present; but I may also refer, in illustration, to similar 
 misapprehensions at pp. 320, and n. {; 321, and n. || ; 326, and n. *; 352, and n. f; 353, — 340, and n. *, and sqq.; 
 365 sqq. ; 370, and n. §, — 342, and n. || ; 363, and n. §, — and elsewhere in this volume. Many of the passages here and 
 subsequently referred to illustrate more than one of the points of this remonstrance. 
 
 t As in the representation by the Lord Chancellor of the Instrument of Resignation and Donation of the Sheriffdom 
 of Forfarshire as proceeding from the Duke of Montrose and not from the Crown — the fact being precisely the reverse, infra, 
 pp. 323, and n. + ; 324, and notes § and ^ ; 325, and n. § ; 352, and n. ' ; and in his depreciation of this most solemn and 
 important instrument, the cornerstone of the subsequent right to the Sheriffdom in the Gray family, as a mere " proces-verbal," 
 a " memorial," or "memorandum," &c., irifra, pp. 324, and notes *, §, and ^; 325, and n. §. For further illustrations vide 
 infra, pp. 336, and n. || ; 338 ; 339, and notes J and § ; 369, and notes §, || , and ^ ; 370, and notes ', f , J, and §, — 360, and n. f . 
 
 t As in the utter disregard evinced, both by the Lord Chancellor and Lord St. Leonards, of the principle of 
 strict interpretation in penal statutes, and of the principle that charters fall to be controlled by their wanants, and not vice 
 versa, as above shewn, — and, generally indeed, of all the accepted rules and principles of law above commented upon in the 
 text. See also pp. 314, and n. *,— 314, and n. J,— 316,— 317, and n. f ; 319, and n. X ;— 322, and n. 1| ; 353, and n. f,— 330, 
 and n. §,—333, and n. ft I 342, and •.. t,— 359, and n. **,— 336, and n. ** ; 365, n. *,— 347, and n. J j 358, and n. ||,— 351 , 
 and n. J ; 353, and n. §,— &c. 
 
 § As in the cases of the Dukedom of Norfolk and Earldom of Glencairn, and in the subsistence of the other grants 
 by James III. within the period struck at by the Act Rescissory, which all survived unaffected by it. 
 
 II As evinced, generally, e. g., in the strict interpretation adopted by the Lord Chancellor and Lord St. Leonards 
 against the remedial Act Revocatory 1503-4, as contrasted with the broad and lax interpretation adopted in favour of the penal 
 Act Rescissory 1488. Vide infra, pp. 327, and n. § ; 360 ; 361.— And see also pp. 313 ; 316, and n. * ; 316, and n. || ; 346, 
 and n. **,— 315, and n. *; 359; 360,-323, and n. J ; 332, and n. f,— 326, and n. %; 361, and n. f,- 343, and n. * ; 364, 
 and n. %, — 349, and n. t ; 357, and n. *, — 365, and n. *, &c. 
 
 ^ As in the explaining away, by the Lord Chancellor and Lord St. Leonards, of the testimony of James IV. in 
 favour of the Duke's loyalty, by misrepresentation of the words, character, and legal bearing of the Duke's Protest 30th 
 October 1488, — representing the reconciliation with James IV. as only " to a certain extent " or " partial," whereas it was (by the 
 words of the Protest, on which the greatest stress is laid against the Claimant) absolute — basing the whole interpretation of the 
 Regrant on this interpretation — and omitting all notice of the solemn contract established between the King and the Duke, 
 with its inevitable consequences, as proved by the Protest and subsequent proceedings, &c. Vide infra, pp. 316, and n. %; 
 323, and n. f ; 348, and n. * ; 350, and notes •* and ft, &c. 
 
 ** As in the Lord Chancellor's description of the Act Revocatory 1503-4 as " a sort of flourish of trumpets that 
 " meant nothing at all," infra, p. 327, and n. J,— and in Lord St. Leonards' reference to " antiquaries," infra, p. 364, and 
 n. J ; as well as in the general tone of that Noble and Learned Lord's observations from the beginning to the end of the pro- 
 ceedings. 
 
 tt As by the Lord Chancellor and Lord St. Leonards in omitting all notice of the proof that the Glencairn 
 patent 1488 was fully recognised by the Crown and by the Supreme Civil Court of Scotland, as conveying the honcfur, in 
 1515-6 and 1516-7 ; and that the Court of Session was sitting under a reference from the Crown in 1648 when it decided in 
 favour of the Glencairn patent and against the Act Rescissory — that reference (in the Decreet of Ranking — for which vide 
 infra, p. 418) being sufficient to make the judgment a valid one, independently altogether of the inherent jurisdiction of the 
 Court (as demonstrated), — and also that Parliament itself had repudiated any interference in the matter, as not competent 
 
 E 
 
XXVI ADDRESS TO THE QUEEN. 
 
 suggestion thrown out by the Officers of the Crown or by his Grace of Montrose has 
 been eagerly picked up, assimilated, and reproduced,* to the prejudice of the Claimant, 
 in the Speeches which ushered in the Resolution ; while in more than one instance the 
 characteristic fearlessness of a Noble and Learned Lord has outstepped even the bounds of 
 modesty Mdthin which Your Majesty's learned Officers restrained themselves, and has 
 ventured on assertions and propositions which I maintain to be pregnant with error, and 
 utterly untenable in point of legal fact and truth,j — that I believe this to be the case 
 I cannot and will not deny ; and I affirm moreover, as the result of close observation 
 during the course of the inquiry, that, speaking generally, this claim has been throughout 
 thought lightly of, vilipended, and held cheap, especially by the Noble and Learned 
 Lord to whom I have just alluded.| But, nevertheless, Madam, far from being willing 
 to impute wilful blindness or perversion to the Noble and Learned Lords who have 
 honoured this claim with their consideration, I feel most sincerely anxious to attribute 
 — and- 1 am inclined to think that I may with truth and justice fairly attribute — the 
 Opinion to which they have come, and by which I contend that the interests of my 
 family have been (thus far) sacrificed, not to any even indirect moral obliquity, but to 
 haste, precipitancy, ignorance (perhaps not to be wondered at) of the Feudal and Peerage 
 Law, more especially of Scotland, which they behoved to administer — to light esteem, 
 if not disrespect, for the Supreme Civil Court of Scotland, whether as regards its func- 
 tional authority, its wisdom, or its judicial integrity in past times § — to an oblivion 
 of the great law of priority of obligation, by which antecedents govern || — and to a bias 
 against the present claim, which I believe to have been partly of unconscious growth, and 
 partly grounded on the erroneous views with respect to Peerages generally which I have 
 
 thereto, in 1641 ; and by the omission by both the Noble and Learned Lords of the fact that the grants of James III. continued 
 in the hands of liis grantees notwithstanding the Act Rescissory — while dwelling on contempwwiea expositio as decisive 
 against the Claimant. Vide infra, pp. 326, and n. %; 332, and u. §; 340, and n. *; .343, and n. f; 361, and n. f.— And see 
 also pp. 318, and n. "*; 353, and n. IT,— 322, and n. ** ; 353, and n. J,— 333, and n. T; 364, and n. {,—354, and n. f; 358, 
 and notes J, §, and || ; 370, and n. *, — &o. 
 
 * Reproduced often in almost the very same words — the Lord Chakcellok's speech echoing (for the most part) that 
 of the Attorney-General, and the speech of Lord St. Leonards that of the Lord Advocate, throughout. Compare the cor- 
 respondent views of the Attorney-General and Lord Chancellor, the Lord Advocate and Lord St. Leonards on the 
 validity of the Montrose patent, as visible in juxtaposition in the General Analysis of the argument, infra pp. v and vi and 
 ix (twice), — their views on the application of the Norfolk ratio establishing the necessity of special nomination of dignities in 
 Acts Rescissory, p, xxv,— on the argument from the seal of Lord Kilmaurs, as proving his correct rank, p. xxxvi,— on the 
 effect of the Decreet of the Court of Session in 1648 as regards the Glencairn patent 1488, and the grounds of the decision 
 pp. lii and Ixi, Ixii. ; liv, Ixii,— on the question of the enjoyment of the rents of Kinclevin during the interval between the 
 two Montrose patents, pp. Ixxvi, Ixxvii, Ixxviii,— on the matter of the charter to Margaret Carmichael and its confirmation 
 p. Ixxix (twice),— on the evidence derivable from the Duke's Protest, pp. Ixxxii, Ixxxvii, &c. &c. I look upon it that 
 the Duke of Montrose, as informing the Attorney-General and the Lord Advocate, and through them, respectively the 
 Lord Chancellor and Lord St. Leonards, has decided this claim. 
 
 t As, e.g., in the statement by the Noble and Learned Lord that the reign of James IIL was considered as having 
 ended and that of James IV. as having begun on the 2nd February 1487-8, and not on the 11th June 1488 the date of the 
 death of James IIL, with inferences therefrom, infra, p. 344, and n. ||,— which is quite incorrect, as proved infra pp 169 
 163 :-As m the proposition that the jurisdiction in Scottish Peerages was vested, not in the Court of Session but in the 
 Scottish Parbament, before the Union, infra, pp. 365 sqq.— which is quite erroneous, pp. 32, 57, 140 147 sqq 299 sqq and 
 Appendix to this Address, pp. mi. sqq. :— As in the assertion that the two Acts passed on 'the 13th March 1503 i'with 
 reference to the Chapel of Stirling, and the Act Revocatory passed at the same time, are merely three clauses of one statute 
 with inferences therefrom as to the object and effect of the Act Revocatory, &c., infra, pp. 360, 361 ■ refuted iUd n * - 
 each of these assumptions being pregnant with consequences inimical to the Claimant's interests, &c. &c.' ' " ' 
 
 t On this point I again appeal to the whole tenor of the Noble and Learned Lord's observations and speeches in the 
 recent clainfi. ^ 
 
 § Vide the remarks of the Noble and Learned Lords on the question of the Glencairn Earldom passim 
 II " It is " a -great and commor. interest,^' says Lord Stair, " tl^at men^s rights ought to be dctern^ined,' not alone hy the 
 ' laws standmg when he dcternnnat^on^s, hut hy the laws that werestanding when the rights were ae^uired, or the deeds done 
 " although thereafter those laws were abrogated.'^ Institutions, B. iv. Tit. i. § Ixi. For instances in which I have had to 
 regret that this golden rule has been overlooked, I may refer to pp. 317, and n. * ; 319, and n t ■ 359 and note ** • \fi5 
 andn.*; 369, and n f, ^«/r« ; as well as to the Noble and Learned Lords' Speeches ,aW,-\LhoVof S 
 proceedmg more or less upon modern views and contempt for legal antiquity, and in especial upon the broad, thou4 tacit 
 assumption that truth ,s to be ascertained by reference to law as existing, not at the period when the facts which ibrm the 
 subject of inquiry occurred, that is, m 1488, but at the moment when the inquiry takes place, that is, in 1853 
 
ADDRESS TO THE QUEEN. XXVII 
 
 already adverted to. I feel assured, in short, that if the subject of the late decision 
 had lain within any of the peculiar fields in which the native genius, the acquired 
 learning, and the large experience of tlie Noble and Learned Lords who have 
 pronounced this Opinion have on so many past occasions been ably and gracefully 
 exercised, the result would have been very different. And if I have ventured to 
 question the result actually arrived at, I may say with truth that it has been in vindi- 
 cation and defence of ancient and acknowledged law, of the competence and character of 
 the Supreme Civil Court of my native country, of Royal faith, of Your Majesty's 
 prerogative, and of national honour — all of which were, and are, involved, under the 
 peculiar circumstances of this case, in the recognition and maintenance of the dignity 
 now claimed by my father. 
 
 The Resolution come to as the result of the recent investigation is now before 
 Your Majesty — a Resolution, as I have already represented, possessed of no judicial or 
 authoritative character, but simply the Opinion of the House of Lords, submitted to 
 Your Majesty, to act upon or disregard, as Your superior wisdom may determine. 
 
 This Resolution is as follows: — " That the Charter, bearing date the 18th 
 " day of May 1488, by which James III. of Scotland granted the Dukedom of 
 " Mon'J'rose to David Earl of Crawford ' et hceredibus suis,' was annulled and 
 
 " MADE VOID BY THE ACT OF THE FIRST YEAR OF THE REIGN OF KiNG JaMES IY. OF 
 
 " Scotland, called the Act Rescissory. That the G-rant of the Dukedom made 
 " BY King James IY. to the said David Earl of Crawford in 1489 was a grant 
 
 " FOR the term of HIS LIFE ONLY. AxD THAT THE PETITIONER, JaMES EaRL OF 
 
 " Crawford and Balcarres, has not established any title to the Dukedom of 
 " Montrose (created in 1488)." 
 
 This Resolution therefore gives to the 'Act Rescissory ' (as it has been termed) the 
 effect of annulling and destroying the Dukedom of Montrose created in 1488 and claimed 
 by my father. And it further declares that the Regrant of the Dukedom by James IV., 
 Avith consent and advice of Parliament, on the 18th of September 1489, was only a life- 
 grant, not descendible to the heirs of the patentee. 
 
 It is proper that I should here inform Your Majesty that the clause referential 
 to the Regrant was not in the Resolution as originally proposed by the Lord Chan- 
 cellor at the conclusion of his Speech ; but was an after-thought, suggested to the 
 Lord Chancellor by the Noble and Learned Lord who subsequently addressed the 
 Committee, at whose instigation (after the conclusion of his own address) it was added 
 to the Resolution ; and in that form the Resolution was proposed and carried in the 
 Committee. The clause in question cannot therefore be understood to possess the sanction 
 of Lord Brougham and Lord Lyndhurst, who were not present on the occasion. And I 
 apprehend that that clause cannot be considered entitled even to the weight which may 
 be claimed for the remaining clauses of the Resolution, inasmuch as it is a decision upon 
 a patent under which my father had not asserted and did not assert any claim in the 
 Petition which formed the exclusive subject of Your Majesty's reference to the House 
 and of the Report of the House to Your Majesty.* While, over and above this, it is a 
 
 * Charles Knollys, claiming to be Earl of Banbury, having been indicted for murder by the name of Charles Knollys,Esq., 
 in 1694, pleaded before the Court of King's Bench that he ought not to be compelled to answer to this indictment, being Earl of 
 Banbury. The Attorney- General replied, that the said Charles Knollys, by the name of Charles Earl of Banbury, petitioned 
 the Lords Spiritual and Temporal in Parliament, and shewed that he was indicted, &c., and prayed to be tried by his peers. 
 Upon which the peers resolved that the said Charles had not any right or title to the Earldom of Banbury, and that his 
 petition should bo dismissed. But the Lord Chief Justice Holt laid it down upon this (among other points in the case) that 
 " The Lords had not any cause before them. This," said Lord Holt, " was only a petition of the Earl to be tried by his 
 " peers ; the which was a matter of privilege, of which they had conusance : but the right of Earldom never was before them, 
 " or submitted to their judgment. He, as Earl of Banbury, petitioned, as a member of the body of the peers of England, and 
 
 * E 2 
 
SXVIII ADDEESS TO THE QUEEN. 
 
 fact that much that would have thrown light upon the peculiar phraseology and import 
 of that patent, as bearing upon the question of its being an hereditary or a restrictive 
 grant, was necessarily, and had been by distinct declaration, reserved for exposition 
 under the second of the two heads or portions into which my father's (intended) argu- 
 ment was to be divided — apart from which exposition it was impossible that its full 
 merits and import could be appreciated.* 
 
 Such therefore being the nature and effect of the Resolution of the Committee — 
 a Resolution proceeding upon addresses so full of error and misconception, both of fact 
 and law, as to amount, if I mistake not, to a misdirection to a jury — a Resolution 
 moreover not final or binding upon Your Majesty, and consequently not such as to 
 preclude the hope of ultimate success, — it is impossible for either my father or myself to 
 acquiesce tamely or silently in what we cannot but consider gross injustice ; and we have 
 therefore cast our eyes around us in deliberation as to what course it may be expedient 
 to pursue under the circumstances.f 
 
 " being under an accusation for a crime, to be tried by his peers. This petition asserted him to be an Earl ; he did not put 
 " that question before them, and therrfore their sentence was more than they had before them to determine. He did not demand 
 " if he was an Earl or no, he supposed it by his petition ; and the title to the Earldom was not brought in judgment beibre 
 " them; and ihnehre adjudicatum est, consideratum est, et ordinaium est, was not founded upon any matter submitted to 
 " iheir conusance, but totally beyond the demand of the petition. He demanded to betried by his peers, and asserted himself 
 " to be a peer ; and they answered that he had not a right to the Earldom of Banbury ; the which was a thing out of the 
 ■' petition, and of which the Lords had not any jurisdiction." The indictment was abated accordingly. Vide Cruise on 
 Dignities, pp. 299 sqq. — In the same manner, in the present instance, and totidem verbis, the question of the second patent 
 or Regrant of the Dukedom of Montrose was not brought by the Claimant's petition — which was based exclusively on the 
 original patent of 1488 — before the Committee of Privileges ; their sentence upon it is " more than they had before them to 
 " determine ;" " it was a thing out of the petition, and of which " they " had not any jurisdiction " — of course through the 
 reference from Your Majesty ; and consequently their judgment or opinion upon it is " vox et prseterea nihil." 
 
 * The Claimant anxiously protested against any pre-judgment on this point, in the course of the discussion when 
 the following question and answer passed between Lord St. Lkou abds and Sir FitzRoy Kelly : — 
 
 " Lord St. Leonards. — The words" of the Regrant by James IV., with advice of Parliament, 18th September 1489 
 " are, ' Hence it is that our Supreme Lord the King, willing that the said David his cousin should shine with ampler dignity and 
 " ' changing the foresaid title of Earl into a greater and higher one, has . . . elevated, made, created, and anew raised the said David 
 " ' his cousin, Duke of Montrose, to a Dukedom, willing him to enjoy and possess the name and prerogative of a Dukedom 
 " ' according to the form and tenor of the charter of the said our Lord the King to be executed in favour of the said Duke of 
 " ' Montrose upon the terms premised.' Now that charter is not forthcoming, and we do not know what the enjoyment has been 
 "under it: but, the charter not being forthcoming, putting this document" (the memorandum of the ' Litera' 19th September 
 1489 in the Great Seal Register) " out of the question, what do you say is the true construction of that grant ? " 
 
 " Sir F. Kelly. — I should, without the least hesitation, contend before your Lordships, that if that Act of Parliament stood 
 " alone, it would confer the Dignity of the Dukedom of Montrose in the same line of succession as the Earldom of Crawford. 
 " But I do not wish to anticipate a part of the argument which will arise hereafter. I take it that if the Act of Parliament had stood 
 " alone, in which the title of Earl of Crawford, which was then settled upon the heirs male of the first Earl, was changed into 
 " a Dukedom, the Dukedom would follow in the same line of succession. And that if it stood alone, it would be a Dukedom 
 " with the same limitations as the Earldom. But to go now into that question would he anticipating the point arising upon the Charter 
 " itself" founded upon, viz. the Patent, 18th May 1488. — Infra, p. 100. 
 
 tember 
 
 Sir F. Kelly subsequently, in putting in the evidence, expressly stated " Tliat this Document" (the Litera, 1 9th Sep- 
 1489) "formed no part of the Case of the Claimant."— Infra, p. 533. (°) 
 
 t I may again here quote the treatise of Mr. Cruise on the subject of Resolutions of the House— described by him 
 in the margin of the passage about to be quoted as " Not generally conclusive in any case :" 
 
 " The Resolutions of the Lords, in cases of Peerage referred to them by the Crown, are either upon matters of 
 " fact or matters of law. In the first case, the Resolution is merely that the Petitioner has not made out his claim so that 
 " he is not thereby precluded from renewing it again and again, if he can discover additional evidence in its support' In the 
 " second case, the House has frequently adjudged and resolved that the Petitioner had no right to the Dignity claimed But 
 " still Resoluiions of this latter kind are not final and cokclusive ; for the King, in whom the 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, in assenting or not to their Resolutions; arul there are some instances where the Crown has granted a 
 " second reference, upon which the Lords have come to a Resolution directly contrary to their former one 
 
 " Thus ... in the case of the Barony of WiUoughby de Broke, the House of Lords, proceeding upon a re 
 
 upon a reference 
 
 («) While describmg the addition of the clause above discussed consideration of the claim to the patent of 1488 and the Act 
 
 as " an after-thought" on the part of the Lord Chancellor, I Rescissory-m 7namfest contradiction to the view am), understandim, 
 
 must also remark, that an intention of including the Regrant in of the Attorney General, of the Lord Chancellor of Lord 
 
 the decision would appear to have been lurking in Lord St. Brougham, and of tlw Chairman, Lord Redesdale -who 
 
 Leonards mind at a very early period in the proceedings. I appear to have been quite unsuspicious (as was the Claimant 
 
 would request reference to the conversation which took place at likewise) of what was germinating in the mind of the Noble and 
 
 the conclusion of Sir t itzKoy Kelly s address, infra, pp. 105, 106. Learned Lord. 
 Lord St. Leonards there repudiates the idea of confining the 
 
ADDRESS TO THE QUEEN. XXIX 
 
 The first and natural resource might be to present a Petition to Your Majesty, 
 claiming under the Regrant of the Dulvedom by James IV., with assent and advice of Par- 
 liament, on the 1 8th September 1489. That grant ex terminis transmutes the title of Earl, 
 as held by the Earls of Crawford from ancient times, into that of Duke, and grants it de 
 novo, so transmuted, to the holder pro tempore of the Earldom, David Earl of Crawford — 
 the grant being specially addressed " to all men, present and to be " — contemporaries and 
 posterity.* I believe that it would be impossible, except in utter violation and disregard 
 of the ancient and accepted maxims of Peerage Law and of the plainest principles of 
 common sense, to interpret that grant otherwise than as conveying the Dukedom to the 
 series of heirs succeeding to the Earldom. And this belief has been confirmed by 
 additional evidence bearing on the construction of that grant, which came to light at the 
 very moment when the recent discussion was in progress, and which has since, on inves- 
 tigation, approved itself directly pertinent and in point.j 
 
 The Noble and Learned Lord, above alluded to, has indeed attempted to foreclose 
 this resource by treading out any lingering vitality which might be inherent in the grant 
 in question — thus to preclude any further trouble arising to the House from a possible 
 claim founded upon that grant, the surviving head of the Hydra of his apprehension. 
 But (independently of the practice based on the rule of res novlter venientes ad notitiam) 
 I contend that the resource under consideration is, for the reason above assigned, still open 
 to the Claimant — even if Your Majesty be pleased to withhold all expression of Your 
 pleasure upon the Report of the Committee on the subject of the original patent. 
 Sensible, however, to the disadvantage at which he stands through the prejudgment of 
 
 " from the Crown, resolved that the Petitioner had no right to that Dignity ; upon the principle that where a Barony by 
 " writ descended to coheirs, it was in the power of the Crown to hold the same in suspense or abeyance, or to extinguish it. 
 " But the House having soon after resolved, that if a person summoned to Parliament, and sitting, died, leaving issue two or 
 " more daughters, who all died, one of them only leaving issue, such issue had a right to demand a summons to Parliament ; 
 " the King referred the case again to the House, where it was resolved, after a long debate, that the Petitioner should be 
 " heard upon the new matter." A " protest" against this resolution was entered, "... in which it was said, that it would 
 " tend infinitely to prejudice the judicature of the House if the Lords would permit judgments once given to bo reviewed. 
 " Sut this reasoning is fallacious ; for in cases of this hind the Lords have no judicature, and do not pronounce any judgment, 
 " hut only certify their opinion to the King. The Resolution of the Lords upon the second reference was directly contrary 
 " to their former one. 
 
 In like manner, " in the year 1711 the House of Lords resolved, but without any reference from the King, that 
 " the Crown could not, after the Union with Scotland, confer an English dignity on a peer of Scotland ; and upon that 
 " ground refused to admit the Duke of Hamilton, who had been created Duke of Brandon in England, to take his seat in 
 " the House by this latter title. In the year 1719, the House, upon a reference from the Crown, resolved that the Earl of 
 " Solloway, on whose father the English Dukedom of Dover had been conferred, and who had sat by that title, had no right 
 " to a writ of summons as Duke of Dover, upon the same principle upon which they had refused to admit the Duke of 
 " Brandon. But in 1782 the claim of Douglas Duke of Hamilton, the great grandson and heir male of the body of the 
 " Duke of Hamilton whose claim was rejected in 1711, having been referred to the Lords, the House, after consulting the 
 " judges, resolved that the claimant was entitled to the Dukedom — in direct contradiction to their former Mesolutions. 
 
 " It was argued by one of the counsel in this last claim, that there was a great distinction between the case of a 
 " judgment pronounced by the House of Lords on an appeal to them, or on a writ of error, brought in the ordinary course of 
 " the administration of justice, and the case of an original application to the Crown, referred to the Lords for their 
 " consideration and advice; as, in the one case, the matter must have been discussed in the courts below and before the 
 " House, on which several occasions it might justly be presumed that all evidence and argument had been exhausted, and 
 " that there must be an end to litigation ; whereas, in the other case, there could be no hearing before any other tribunal ; 
 " and unless the Lords should themselves review their former adjudication, a Peerage would stand distinguished from all 
 " other hei-editaments, hy being determinable unthout the possibility of revision, in any manner, and under any circumstances." 
 Origin and Nature of Dignities, &c. pp. 305 sqq. 
 
 Nothing can be more thoroughly recognised and incontrovertible than that the Resolutions of the House of Lords in 
 matters of Peerage " non transeunt in rem judicatam." And, in fact, Mr. Cruise sums up and concludes his treatise with the 
 assertion that " The Crown is in no case absolutely and finally bound by the Resolutions of the House respecting claims to 
 •' Dignities." Ibid., p. 322. 
 
 * The Regrant is printed, with a translation, in the Appendix, infra, p. 531. 
 
 t To wit, the grant by James VI., in 1581, erecting the Earldom of Lennox, as borne by Earl Esme in that year, into 
 a Dukedom— to be enjoyed " be him " accordingly — but (as in the Montrose Regrant) without express words of limitation : — 
 Under which grant, however, exclusively, the Dukedom descended in the family,— as shewn at full length, with illustration of 
 the parallelism existing between the grant and that of the Dukedom of Montrose, 18th Sept. 1489, in the Appendix to this 
 Address, infra, pp. lxxvi, sqq. See also infra, pp. cviii, n. f ; 353, n. If ; 531. 
 
XXX ADDRESS TO THE QUEEN. 
 
 his case (with reference to the Regrant) above adverted to, my father may well hesitate 
 before venturing upon so perilous a measure. 
 
 Another resource presents itself in the consideration that the Court of Session, 
 the Supreme Civil Court of Your Majesty's ancient Kingdom, is invested, alike by 
 principle and practice (varying in this respect from that of England), with the 
 inherent right of adjudging in claims of Peerage— irrespectively altogether of any 
 reference from the Crown. It possessed and exercised that right before the Union 
 —it has exercised it since the Union— the right of the subject to prosecute his 
 claim in that Court, and the right of the Court to adjudicate on that claim, are 
 (effectually) reserved to the Court and to the subject by the Treaty of Union— and, 
 although not exercised for many years, it is admitted by the Committee of Privileges 
 that nothing took place at the time of the Union to deprive the Court of its juris- 
 diction, if it really possessed it.* To the Court of Session, therefore, as emphatically 
 a proper and competent judicatory in a case of Scottish and feudal Peerage Law, 
 the Claimant might be tempted to resort, in full security that his rights would there 
 be duly recognised — were it not for the apprehension that a favourable decision 
 might induce a colhsion and misunderstanding between that venerable tribunal and the 
 House of Lords, prejudicial to the good understanding that prevails between the two 
 nations, and painful to Your Majesty as the common and beloved Sovereign of both. 
 
 A still higher resource might be found in Your Majesty's own person, as supreme 
 in honours. If Your Majesty, in Your wisdom, shall perceive that injustice has been 
 done on this occasion, and that my father is rightfully entitled to the honour which he 
 claims, it is in Your Majesty's power either to refer the Claimant's Petition a second time 
 to the House of Lords for further consideration, or at once, and without further reference, 
 to act independently of the opinion and advice now tendered to Your Majesty, and, in the 
 words of King Charles I. in referring the claim of Aubrey de Vere to the House of Lords 
 for their advice and counsel, to " do that . . which shall be just " in this matter .f It 
 is well that the high and holy prerogative of dispensing justice should from time to time 
 be exercised personally in the eye of the world by the arm of Kings. And yet my father 
 and myself could not entreat Your Majesty to exhibit that noble spectacle at the expense 
 of Your private feelings, and to the effect of appearing to pass a public censure upon one 
 of the Houses of Parliament. 
 
 There remains, therefore, but one course which would at once avoid contentions 
 and contingencies which I should much deprecate, and recognise and uphold the rights 
 which I feel assured it must be Your Majesty's anxious and gracious wish to uphold and 
 recognise, if possible. 
 
 Your Majesty may have already perceived that the whole argument in this case 
 turns upon the legal construction and interpretation of an entry upon the Statute Book, 
 which has, for the sake of convenience, been styled in this claim the 'Act Rescissory,' 
 and which passed in the Scottish Parliament on the 17th of October 1488, subsequently 
 to the defeat and death of Your Majesty's ancestor King James III. at the Battle of 
 Stirling, fought between that monarch and his rebel barons, headed by the Prince of 
 Scotland, afterwards King James IV. 
 
 The words of this Act are as follows : — 
 
 " Item, anent the Proclamacione maid at Scone, it is statut and ordanit that all 
 " alienacions of landis, heretage, lang takkis, fewfermez, officez, tailzeis, blance-ferm, 
 " CREACiON OF NEW DiQNiTEis, grantit or gevin to ony persone or persons, quhat estate, 
 
 * " There is nothing in the Act of Union to disturb the right and powers of the Court of Session, if that Court really 
 " had the exclusive jurisdiction." — Speech o/Lord St. Leonards, infra, p. 368.— On this point see, ut supra the ' Narrative 
 ' and Inquiry,' iifra, pp. lii sqq. f Vide supra, p. v. 
 
ADDRESS TO THE QUEEN. XXXI 
 
 " cohdicioun, or degre that ever thai be of, sene (since) the secund day of Februar last 
 " by -past, be umquhile our Soverane Lordis faider, quham God assoilze, quhilk (which) 
 
 " MYCHT BE PREJUDICIALE TO OUR SoVERANE LoRD AND TO THE CROUNE THAT NOW IS, be 
 
 " cassit and adnullit, and of nana effect nor force in ony tyme to cum, beoaus that sic 
 
 " ALIENACION, GIPTIS, AND PRIVILEGIS WAR GRANTIT, SENE THE SAID TYME, FOR THE 
 " ASSISTANCE TO THE PERVERST COUNSALE THAT WAR CONTRAR THE COMON GUD OP THE 
 " REALMS, AND CAUS OF THE SLAUGHTER OF OURE SovERANE LORDIS FADER." 
 
 It is contended by my father that this Act is ex terminis a qualified Act — not 
 directed against "all " the grants of James 111. without exception, but exclusively against 
 a certain class of them specified as being such as " might be prejudicial to Our Sovereign 
 " Lord and to the Crown that now is," that is, to James's successor and heir, King 
 James IV., — that a qualification would not have been introduced into the Act unless 
 intentionally, — that this qualification, thus introduced into a general Act of this descrip- 
 tion, points to and necessitates a legal Process of Reduction in regular form (as usual in 
 such Acts of rescission) before the Act could rescind any one grant, — that the Act was 
 thus in effect a mere precautionary measure, a weapon prepared and laid up for future 
 use as occasion might arise, but which those who enacted it were never bold enough to 
 use, — that the Act was never, in any one case, practically applied or enforced, every one 
 of the grants of James III. having survived as valid and unaffected by it, — and that, by 
 the rule of strict interpretation in penal statutes, especially in honours, by the rule " in 
 " dubiis benigniora semper sequenda sunt," by precedents directly in point, and by 
 adjudged Peei'age Law both in Scotland and England, the Act was, and is, legally in- 
 nocuous upon the dignity claimed by my father.* 
 
 But by the Resolution, now under Your Majesty's eye, the effect of an Act of 
 Attainder has been given to the Act in question — in other words, it has been decided 
 that that general Act cut down and annulled per se, by its own force alone, by the mere 
 fact of its passing, without trial or process fixing its applicability, and without individual 
 specification, the Dukedom of Montrose and all other grants without exception made by 
 King James III. within the limited period, — the annulment in question being, according 
 to this Resolution, absolute and unqualified, insomuch that not one grant made within 
 the period struck at escaped rescission, — the qualifying words " which might be preju- 
 " dicial "• being explained by the Lord Chancellor as an inaccurate mode of stating 
 that the grants of James III. were all of them prejudicial to the youthful monarch f — and 
 by Lord St. Leonards, as an imperfect expression, requiring the importation of addi- 
 tional words to give it effect, and which is to be read as " which, but for this Act, but 
 " for what we are now doing, might be prejudicial,"! — the Noble and Learned Lord, 
 last mentioned, further laying it down as a matter "beyond all possibility of doubt," and 
 grounding his argument in great measure upon this assumption, that the reign of James III. 
 was considered to have ended, and that of James IV. to have begun, on the 2nd of February 
 1487-8, the date from which the Rescissory Act professes to operate, and which was the 
 commencement of the rebellion — three months (that is to say) before the grant of the 
 Dukedom of Montrose and Earldom of Glencairn, and four months before the death of 
 the ex-King at the Battle of Stirling ; and that the King was treated " therefore " by the 
 rebels, and in the Act Rescissory, " as a person who made these grants without having the 
 " authority to do so :" § — And all this, moreover, in face of the facts urged by the Claimant, 
 
 * Vide the Analysis, infra, pp. xx sqq. f Vide infra, p. 314. J Vide infra, p. 349. 
 
 § Vide infra, pp. 344, 359. This grievous and fundamental error — fundamental, inasmuch as the Noble and Learned 
 Lord considers the (assumed) fact of the reign of James III. having ceased on the 2nd February 1487-8, and of his having Had 
 no authority to make grants of peerage or property subsequently to that date, as giving the key (o the principle acted upon at the 
 time, and to the intention of the legislature in passing the Act Rescissory — was first advanced by Lord Loughborough in his 
 
XXXII ADDRESS TO THE QUEEN. 
 
 That James III. was regarded as King dejure and de facto till the day of his 
 death, the 1 1th of June 1488, as proved by the direct testimony of James IV. 
 and of the very Parliament which passed the Act Rescissory, and by the 
 fact that the charters and acts of James IV- are dated (as in the first, second, 
 third, or later years of his reign) from the death of his father as the com- 
 mencement of his own sovereignty ; * 
 
 That James IV. himself bears witness that David Duke of Montrose, the patentee 
 of James III., had always been personally loyal to himself as well as to his 
 father, and (as already stated) that the elevation of deserving peers, such as 
 the Duke of Montrose in question, to higher dignities is, not merely not pre- 
 judicial, but profitable and honourable to the King and Commonwealth, — 
 inducing the inference that the creation of the Dukedom of Montrose cannot 
 be judicially held to have been " prejudicial " to James IV. and his Crown, 
 and therefore is not struck at by the Act Rescissory ; f 
 
 That David Duke of Montrose enjoyed the estates granted under the patent 
 during the interval between the Act Rescissory and the Regrant, and was 
 recognised as Duke by James IV. during that interval in the most solemn 
 manner, and so as by Scottish law to neutralize any possible effect accruing 
 from the Act ; J 
 
 That the patent of the Earldom of Glencairn^ granted almost at the same moment 
 and under precisely the same circumstances as that of the Dukedom of Alon- 
 trose, was acted upon and recognised by the Crown and by the Supreme Civil 
 Court of Scotland, as duly conveying the honour, in 1515-6 and 1516-7 ; and, 
 subsequently, in 1648, was decided by the Supreme Civil Court not to have 
 been affected by the Act Rescissory, in consequence of which decision 
 (exclusively) the Earldom of Glencairn is at present ranked above the 
 Earldom of Eglinton in the Union Roll of the Peers of Scotland — the 
 decision in question having been pronounced, not only on the authority of 
 the inherent and undisputed jurisdiction of the Court of Session in Peerage 
 claims, but actually on a reference from the Crown, precisely such as that 
 under which the Committee of Privileges have recently sat by command of 
 Your Majesty, and after a refusal by the Parliament to take up the case, as 
 not being " competent " thereto ; § 
 
 That in no one case whatever has the Act Rescissory been shewn to have taken 
 effect ; || 
 
 That the solitary instance of the Act Rescissory having been practically applied, with 
 the view of annulling a grant of James III. falling within the period against 
 which it was (in general terms) directed, occurred in the year after the judicial 
 murder of King Charles I. ; when Parliament, then in rebellion, and having at no 
 time any jurisdiction in honours, issued two Decreets, dated the 2nd and 9th 
 March 1649 — the first annulling the Glencairn Patent of 1488 on the o-round 
 that it had been struck at by the Act Rescissory, and for the express reason 
 " that it is of dangerous consequence and example in relation to the troubles 
 
 Speech on the Glencairn claim in 1797, from which it appears to have been adopted by Lord St. Leonards. I should observe 
 that a similar representation was incidentally made by one of my father's learned Counsel at the beginning of his Speech, and 
 before he had had time fully to possess himself of the whole facts of the case, as may be seen infra, pp. 114 sqq. ; but the mistake 
 was rectified and corrected by himself on the ensuing day, with distinct exposition of the actual truth as laid down in the 
 Claimant's Case and Supplemental Case, and proved by the testimony of James IV., the Parliament itself of October 1488 
 &c. &c. Vide infra, pp. 162, 163. 
 
 * See the Analysis of the argument, infra, p. iv ; with its references to the Case, S. Case, and Speeches, 
 t Vide infra, pp. xxi, xxii. ■]■ vide infra, pp. xxi sqq. 
 
 § Vide infra, pp. xxxv sqq. || Vide infra, pp. xxxii sqq. 
 
ADDRESS TO THE QUEEN. 
 
 XXXIII 
 
 " of this Kingdom, occasioned by evil counsel given to the King's Majesty " 
 (King Charles I.) "and assistance thereto, that the said gift and patent 
 " granted for evil counsel and assistance given to the King " (James III.) 
 " should be of any force or validity, or should be made use of," — the other 
 annulling the Decreet of 1648 "as maynlie proceeding and depending upon 
 " the foresaid patent" of 1488 — but both of which Decreets, independently 
 of their inherent incompetency and illegality, were specially rescinded after 
 the Restoration ; * • 
 
 That, independently both of the Dukedom of Montrose and Earldom of Glen- 
 cairn, my father has proved that the Act did not take effect, but that the 
 grants of James III. stood firm and valid in many particular instances ; f 
 
 That in an Act of Parliament, in pari materia, in 1489-90, the only subsequent 
 enactment that alludes to the Act Rescissory, and which enumerates the 
 different classes of grants struck at by it, and endeavours to enforce and 
 prop it up by commanding that the charters of James III. should be brought 
 in and destroyed, the words " creacion of new digniteis," as occurring in the 
 Act Rescissory, are twice, pointedly, omitted, — while the statute of 1489-90 
 itself was utterly impotent and disregarded, as appears from the simple fact 
 that the lands continued, and the charters (so far as they can be traced) are 
 still preserved uncancelled, in the possession of the representatives of the 
 grantees ; J 
 
 That in a still later statute, also in pari materid, in 1493, the same classes of 
 grants struck at in 1488 are again rescinded ex tunc, but (as in 1489-90) 
 without mention of dignities, and without the slightest notice of the Act 
 Rescissory or of the intermediate enactment of 1489-90, which are passed 
 over as if they had never existed ; § 
 
 That the Act Rescissory is never once mentioned or alluded to in the quequidem 
 or recital clauses of any subsequent charters or legal documents relating to 
 the lands granted by James III. — although there were numbers of such 
 documents, and although the Act (had it been effective) would necessarily 
 have been referred to and specified therein as the cause whereby the lands in 
 question had reverted to the Crown — as is the case with all other revocatory 
 statutes which have actually taken effect ; || 
 
 That under these unparalleled circumstances of disregard, silence, and contempt, 
 the Act Rescissory is absolutely annulled, according to Scottish rule and 
 doctrine, through non-observance and non-operation ab initio, or, to use the 
 Scottish phrase, by Desuetude ;^ 
 
 That the Act Rescissory was itself rescinded by an Act Revocatory, in 1503-4, 
 by which James IV., with consent of Parliament, revoked "all donations, 
 " giftis, Actis, Statutis of Parliament or Generale Consale, and all uther 
 " thingis done be him in tymis biganc, other (either) hurtand his Saule, his 
 " Croune, or Hali Kirk," — under which category my father contends that 
 the Act Rescissory, with all its consequences and dependencies, necessarily 
 fell, inasmuch as the rebels against James III. were actually under sentence 
 of excommunication from the Head of the Holy Catholic Church, Pope 
 Innocent VIII., at the moment when they passed the Act Rescissory, and con- 
 
 " Vide infra, pp. xlv, xlvi, xlvii. 
 X Vide infra, pp. cxxi sqq. 
 II Vide imfra, pp. cxxiv sqq. 
 
 t Vide infra, pp. xxvi sqq. 
 § Vide infra, pp. cxxiii sqq. 
 ^ Vide infra, pp. cxxiv sqq. 
 
 F 
 
XXXIV ADDRESS TO THE QUEEN. 
 
 fessed their guilt and received absolution subsequently on condition of 
 fitting penance, while James IV. wore an iron girdle till the day of his death 
 in token of his individual contrition— the Act Revocatory of 1503-4 being 
 a still further utterance of their combined and national repentance, and being 
 competent and effective a fortiori to rescind forfeitures if the Act Rescissory 
 could inflict forfeitures,* — And lastly, 
 That, in a case precisely parallel to the present, that of the original Dukedom of 
 Norfolk in England— created by Richard II. in 1397, with consent of the 
 two Houses of Parliament, and having therefore, by the Cornwall decision in 
 1605, the force of a statute— struck at in 1399 by an Act Rescissory, in 
 the first year of Henry IV., which annulled the whole proceedings and acts 
 of the Parliament of 1397 — and which lay dormant subsequently till claimed 
 by the son of the grantee in 1425 ; it was decided by the highest legal 
 authorities in England that the patent had not been affected by the Act 
 Rescissory and was still valid, because, i. The right to create honours belonged 
 solely to the King and not to Parliament; ii. Neither the Duke nor his heirs 
 were specially mentioned in the general Act Rescissory, apart from which 
 special mention the Act Rescissory could not affect their right to the honour ; 
 iii. The creation had not been specially revoked by Parliament otherwise, 
 either in the case of the Duke or his heirs (whose interests — and those of 
 ' heirs ' in similar cases — were, and are, thus ever to be favoured and held in 
 view) ; and, iv. Other honours created in pari casu with the Dukedom, 
 similarly struck at by the Act Rescissory, survived unaffected by it, — all of 
 which grounds my father has shewn to be exactly applicable to the case of 
 the Dukedom of Montrose — the Norfolk case thus forming, like that of 
 Glencairn, a complete precedent and res judicata in his favour : f — 
 
 Of which facts and proofs, adduced by my father, Your Majesty will perceive, if 
 You deign to glance over the ensuing pages, 
 
 That the testimony of James IV. and of the Parliament which passed the Act 
 Rescissory to the fact that James III. was King till the day of his death, the 
 11th June 1488, is entirely overlooked or disregarded by Loud St. Leonards, 
 — whose impression and assumption that the King ceased to reign on the 2nd 
 February 1487-8, it is but fair to observe, is not shared either by the Attorney- 
 General or the Lord Chancellor ; | 
 
 That the enjoyment of the estates granted with the Dukedom of Montrose, or at 
 least the receipt of the rents subsequently to the Act Rescissory in virtue of 
 the patent— the decision by the Supreme Civil Court of Scotland in 1648, 
 that the Glencairn Patent of 1488 was the valid and regulating grant of that 
 Earldom, as unaffected by the Act Rescissory— and the omission of the phrase 
 " creacion of new digniteis " in the two later Acts in pari maierid, (of which 
 the first attempted to support the Act Rescissory, and the second was passed 
 ex tunc, in entire disregard of it,) are admitted as facts by the Noble and 
 Learned Lords who have advised Your Majesty on this claim ; ^ 
 
 * Vide wfra, pp. cxxvi sqq. | Vide ivfra, pp. xv sqq. 
 
 t The Lord.Advocate seems to have hovered (at least) on the brink of this error, p. 224, infra; but elsewhere he 
 appears to admit the fact that James III. was recognised as King till the moment of his decease. 
 
 § By the LoED Chancellok distinctly (with the exception of the Act of 1493, which he overlooks entirely) -by 
 Lord St. Leonards, who followed him, negatively. As regards the rents of Kinclevin, vide infra, pp Ixxvii sqq'- the 
 judgment o( 1648, p. Ixi; the omission of dignities in the Act of 1489-90, p. cxxii.-LoRD St. Leonards admits that the 
 judgment of 1648— although he describes it as a Resolution of Parliament— ultimately stood. 
 
ADDRESS TO THE QUEEN. XXXY 
 
 That the recognition of the Glencairn Patent of 1488 by the Crown and the 
 Supreme Civil Court in 1515-6 and 1516-7 — the facts that (independently 
 of their inherent jurisdiction) the Court of Session were sitting under a 
 reference from the Crown in 1648, when they decided that the Glencairn 
 Patent was the valid and regulating grant of the Earldom ; and that the 
 Parliament had previously refused to take up the cause on the ground of 
 incompetency thereto — the fact of the continuance of the grants of James III. 
 in many particular instances in the families of the respective grantees, un- 
 affected by the Act which struck at them — and the fact that in no one 
 subsequent charter or legal proceeding is the Act Rescissory ever recited or 
 alluded to in the manner incidental to all other revocatory statutes — are 
 passed over mb silentio in the Speeches of the Lord Chancellor and Lord 
 St. Leonards, or in other words are not denied ; 
 
 That the inferences and argument arising from the attempt of the Parliament in 
 1649 to apply the Act Rescissory to the Glencairn patent, and to rescind the 
 ruling Decreet of 1648, are glossed over and evaded in the Speeches of the 
 Lord Chancellor and of Lord St. Leonards by confounding the legitimate 
 jurisdiction of the Court of Session (both as inherently possessing jurisdiction 
 in honours and as acting in the particular instance by reference from the 
 Crown) with the usurped and impotent tyranny of the rebellious Parliament 
 after the death of Charles L, — assigning to each an equal authority, and then 
 sweeping away and rejecting the decisions both of the one and the other as 
 having been influenced (in the opinion of the Noble and Learned Lords) by 
 political bias, so as to leave the question in debate, as open and still suhjudice, 
 to the decision of the House of Lords ; * 
 
 That the testimony of James IV. in favour of the loyalty of David Duke of 
 Montrose is only explained away by a misrepresentation of the words, 
 character, and legal bearing of a notarial Protest by the Duke (on which the 
 Crown and the Committee lay the greatest stress against the Claimant) 
 executed a year before that testimony was uttered ; f and by which it is 
 established that a contract was entered into between the King and the Duke, 
 by which the King covenanted to remit to the Duke his whole displeasure 
 ("omnimodam hujusmodi displicientiam") for the part he had taken against 
 him in his father's defence, on one sole condition, Avhich the Duke fulfilled — 
 the effect of that remission being to entitle him by Scottish laAv and usage to 
 absolute and uncompromising rehabilitation in all respects even against an 
 Act of Attainder, and a fortiori against the mere Act Rescissory, had it 
 applied to him — and which if the King had failed to carry out and enforce, 
 he would have been in mala fide and branded with treachery and dis- 
 honour ; X 
 
 That the recognition of the Duke as Duke of Montrose by James IV., in fulfilment, 
 as my father contends, of his (the King's) share in the contract, is denied 
 merely on the assumption that the document in which he so figures emanated 
 from the Duke himself, instead of the Crown § — the fact being precisely the 
 reverse, as proved, independently of other evidence, by the very words and 
 legal character of the document itself, (| — while this denial is further based 
 upon a reversal of the rule in Peerage Law that the warrant governs the charter 
 and not vice versa, ^ and it is suggested that the King and his advisers would not 
 
 • Vide infra, p. Ixi (twice). f ^'''s infra, pp. .^xii, xxiv, Ixxxvii. % Vide infra, pp. Ixxxi sqq. 
 
 § Vide infra, pp. Ixxxvi, ixxxvii. II Vide infra, pp. Ixxxiii sqq. 1 Vide infra, pp. Ixx, Ixxxv. 
 
 F 2 
 
XXXVI ADDRESS TO THE QUEEN. 
 
 be very scrupulous as to the Duke's titular designation when they had it in 
 view to secure for themselves the property the resignation of which con- 
 stituted the Duke's covenanted share in the transaction ; * 
 
 That, while omitting all notice (as has been stated) of the instances adduced by 
 the Claimant in which the grants of James III. stood valid and effectual not- 
 withstanding the Act Rescissory, and which Your Majesty's learned Attorney- 
 General merely notices, in order to dismiss them, as " one or two other cases 
 " of trifling moment, in which it was not thought worth while to divest the 
 " parties of their estates ; "f the Noble and Learned Lords do not point out 
 one single instance of the Act Rescissory itself taking effect, and only two cases, 
 which they admit to have been illegal, in which property granted by James 
 III. was seized and regranted by James IV. several months before the date 
 of the Act, and which they apologise for as having taken place in anticipation 
 and expectation of its enactment ; | 
 
 That the Act Revocatory of 1503-4 is represented by the Lord Chancellor as " a 
 " sort of flourish of trumpets that meant nothing at all," and " so loose " in 
 language that it is impossible that grants or title-deeds " could possibly be in 
 " any way afTected by it,"§ — while by Lord St. LEOisrARDS it is held that the 
 phrase " Holy Church " only refers to a private chapel founded by James IV. ; 
 in support of which he represents three distinct statutes, standing as such 
 upon the Statute-book, and each of them separately and specially enacted by 
 the King with consent of Parliament, as being three clauses of one statute \\ — 
 this expedient being after all quite insufficient to justify the interpretation 
 contended for : — And the Lord Chancellor adds that, in consistency with 
 my father's own argument that the grant of the Dukedom of Montrose must 
 be proved to have been prejudicial to James IV. before the Act Rescissory 
 can be held to be directed against it, he must prove that the Act Rescissory 
 was hurtful to the Soul and the Crown of James IV., and to Holy Kirk, before 
 he can entitle himself to the benefit of the Act Revocatory as rescinding 
 the ^ct Rescissory^ — my father's argument, here adopted by the Noble and 
 Learned Lord, and also urged against him by Lord St. Leonards in the 
 corresponding part of his Speech (although without any retrospective or per- 
 sonal reference),** having previously been overruled and rejected by them 
 both, ft — the strict interpretation, moreover, which had been disallowed in 
 the case of the penal Act of 1488, being thus rigidly enforced when applied 
 to the remedial Act of 1503-4, — And lastly. 
 
 That the Norfolk precedent is got rid of by the broad assertion that the Dukedom 
 of Norfolk was created in Parliament but not by Parliament, and that the 
 patent was not an Act of Parliament 1 1— thus in effect denying to the Royal 
 Charter under which Your Majesty's son and heir, His Royal Highness the 
 Prince of Wales, holds the Dukedom of Cornwall, the authority and sanction 
 of a statute, in the very face of the decision in the affirmative in the 
 celebrated ^ Prince's Case ' in 1605, reported by Sir Edward Coke, and which 
 is passed over without notice, although fully pleaded by the Claimant, H— 
 
 * " It is not very likely that when the Crown luxd got the Slieriffdom surrendered, the Crown wouU be very particular 
 
 as to the title bywhch the party chose to desigrmte himself who made the surrender." Speech of the Lord Chancellor, 
 
 infra, p. 324. •' ' 
 
 t Vide infra, p. 219. j Vide infra, pp. ix, xxxiii. § Vide infra, p. cxxix. 
 
 I Vide infra p. cxxix. ^ vide infra, p. cxxviii. ** Vide infra, p. cxxix. 
 
 tt Vide infra, pp. xx sqq. jj Vide infra, p. xix. 
 
 §§ Vide infra, pp. xviii, xix, and pp. 393 sqq. 
 
ADDRESS TO THE QUEEN. XXXVII 
 
 while the rationes derived from the necessity of special mention and of special 
 revocation are evaded in the manner already indicated, and the ratio founded 
 on the continued survival of other grants in pari casu with the Dukedom is 
 overlooked altogether : — 
 
 Whereas, Madam, I submit briefly — in accordance with the rule of strict inter- 
 pretation in penal statutes, with the ancient principles of Peerage Law, and with the 
 precedents and practice which have hitherto ruled alike in Scotland and England — 
 meeting the Noble and Learned Lords on their own premisses as to the interpretation of 
 the Act Rescissory — and sweeping all secondary considerations and difficulties out of 
 the way. 
 
 That if any one of the grants of James III. survived the Act Rescissory, all survived ; 
 That, if the Earldom of Glencairn in particular survived the Act Rescissory, the 
 
 Dukedom of Montrose also survived ; And, 
 That, as it is admitted, alike by the Crown and the Committee, that no resignation 
 of the Dukedom took place on the part of the Duke of Montrose, and as nothing 
 therefore could deprive him or his heirs of their legal right to the dignity 
 if only the Act Rescissory did not per se, and without trial or inquiry (as con- 
 tended), cut the patent down — every other consideration and difficulty, mis- 
 nomer, regrant, dormancy, resumption of property, &c., being quite secondary 
 and unimportant in law, — then, on these grounds — the rationes in the Norfolk 
 judgment, pronounced in 1 425, and the principle of strict interpretation of 
 penal statutes (especially in honours), falling ever to be kept in view in this 
 matter — the Committee (I submit) ought to have resolved in favour of the 
 patent of the 18th of May 1488, and against the Act Rescissory. 
 
 If, therefore, it should, on inquiry, be Your Majesty's gracious judgment that this 
 Resolution of the Committee of Privileges has been come to upon erroneous grounds, and 
 that a vitality has been thereby imparted to the Act Rescissory which it has never 
 hitherto enjoyed, insomuch that the dignity granted to my family is now singled out 
 from the host of grants by King James III., and exclusively struck at and annihilated, after 
 the lapse of more than three centuries and a half, those other grants having all legally 
 survived unaffected by the Act in question ; or even if, without entering into the question 
 of the merits of the Resolution, it should appear to Your Majesty that the Act itself, so 
 far from being a statute which deserves to be respected and perpetuated on the Rolls of 
 Parliament, is a cruel, a false, a dishonest, and a wiclced statute, hateful to God and man, 
 inasmuch as, by imputing the death of James III. to the advice and support of his loyal 
 defenders and visiting their loyalty with penalties, it offers a direct encouragement to 
 treason, rebellion, parricide, and regicide — a statute passed, as Your Majesty will perceive, 
 by men under sentence of excommunication, and which (with the rebellion that 
 engendered it) they subsequently ignored and repudiated — a statute which lay for 
 generations effete and harmless, existing but as a blot on the Roll of Parliament, which 
 was at once its cradle and its grave — a statute which revived indeed for a moment, to 
 enjoy a false, unreal, and vampirelike activity under the Great Rebellion — but which has 
 now been resuscitated in earnest, legally and effectively, to the affirmation of those 
 principles and views under which Your Majesty's Royal predecessors, James III. and 
 Charles I., perished in the field and on the scaffbld, — then, under either of these alterna- 
 tives, my father and I myself would most respectfully represent, that a^ remedy for the 
 great wrong thereby inflicted upon ourselves, upon Scotland, upon Your Majesty, and 
 upon public morality, might be found in the Reversal of the Statute to which the 
 
XXXVm ADDEESS TO THE QUEEN. 
 
 effect of an Act of Attainder has been now, for the first time, and (as we maintain) 
 erroneously, attributed, and for which the Officers of the Crown and the Noble and 
 Learned Lords who formed the Committee of Privileges have — with one exception — 
 declined to apologise, while they upheld its validity.* 
 
 I need not remind Your Majesty that, if there be one characteristic rather than 
 another which has preeminently graced the reigns of the recent Sovereigns of Great 
 Britain, and Your own, it has been the countenance afforded by Your Majesty and Your 
 
 * The following passages may be referred to in the ensuing Speeches — while the general tone of those Speeches may 
 also be kept in view : — 
 
 ** Atturney- General. — / am vot here for one single moment to vindicate the conduct of those who rose in arms against their Sove- 
 " reign, and through whose rebellious acts that Sovereign lost his life ; but there can be no doubt in the world that the moment that 
 " that Sovereign died, his son and successor became King of Scotland, and the Parliament, consisting of persons who had been rebels 
 " as regards the Sovereign who had recently died, were in reality loyal subjects, owing allegiance and giving allegiance to the then 
 " lawful Sovereign of the realm. . . Whatever may have been the conduct of those individuals who composed that Parliament, or who 
 " formed the leading members, with reference to the King that was gone, as regarded the King then upon the throne, the Parliament 
 " was a Parliament convened by his authority, was presided over by himself, — it was to all intents and purposes a lawful Parliament 
 " of the realm. . . But then . . it is said that, even if this were so, this statute in question forms part of a series of legislative Acts 
 " which are deserving only of the detestation and reprobation of all loyal subjects of the realm, — that they begin by maintaining the 
 " rightful character of the conduct which had led to the death of their late Sovereign; thai X)iey justified acts 0/ treason and 
 " REBELLION; and that this was one of a series of statutes which were intended to give effect to such perverse views. My Lords, 
 " THAT MAY BE SO," &c. But, " however UNJUST it might be " — " it might have been wrong ; the motive might have been bad," &c. &e. 
 Jnfra, pp. 182, 183, 222. 
 
 " £ord Advocate. — The Earl of Crawford, evidently a man of great ability, and enterprise, and power, a man who stood very 
 " high in the service of his Sovereign, at length rose to be the most powerful noble of his time. . . At the Battle of Blackness, 
 " unlike many of the peers who were with him on that occasion, he remained, almost alone, faithful to the monarch ; and, in consequence 
 " of that service, he was raised to a distinction unknown at the time among the subjects in Scotland, that of the Dukedom of Montrose. 
 " A very few days afterwards the Battle of Stirling took place. . . The monarch was killed, the son succeeded, and the victorious 
 " party commenced to put their victory to the uses and purposes which they desired ; not, however, with very great severity when 
 •' we consider the nature of the times, and the other examples of a similar kind that history furnishes. For they proceeded, first, by 
 " Proclamation, to deprive their rivals of those distinctions that the King had confeired upon them, and then to put that Proclamation 
 " into the force of law by this Act, which is called the Rescissory Act. . . It has been said that this was A rebellious Parliament, 
 " and that this was tse first act or A successful rebellion. It may be so. It is clearly an Act upon the Statute-Book. It may 
 
 " BE THE RESULT OF A SUCCESSFUL REBELLION," &C. Infra, pp. 223, 224. 
 
 A conversation which took place on the subject of the Act Revocatory of 1503-4, which rescinds " all Acts, Statutes of 
 " Parliament or General Council, and all other things done by him " (James IV.) " in limes bygone, either hurting his Soul, 
 " his Crown, or Holy Kirk," may illustrate the sentiments of Lord Si. Leonards : — * 
 
 " Lord St. Leonards. — How do you make out that that" (the Act Rescissory) " was hurtful to His Majesty's Soul, his Crown, 
 " or Holy Kirk ? 
 
 " Sir F. Kelly. . . I perhaps might be permitted to answer the question by another question. How is it to be made out that 
 " a reward conferred upon a loyal subject, and for long and meritorious services, is prejudicial to the Crown ? But passing that by, 
 " I answer your Lordship's question with the utmost confidence, appealing to the heart and conscience of every man who hears me. 
 " What was the Rescissory Act of Parliament ? It was an Act of Parliament, by which, if it has the construction contended for, 
 " the Duke of Montrose, a faithful and a loyal subject, was deprived of his property and of the dignities which had been conferred 
 " upon him as the reward of his faithful and loyal services— and to that Act the King was party. Is it not a crime, is it not hurtful 
 " to the soul of any King, or of any man ? 
 
 " Lord St. Leonards. — You mean that his being a party to the Act Rescissory hurt his soul ? 
 
 " Sir F. Kelly. — I conceive so. 
 
 " Lord St. Leonards. — I confess it is a crime that would have sat very lightly upon my conscience. 
 
 " Sir F. Kelly. — What, to have deprived a loyal and faithful subject of a dignity that had been conferred upon him for his 
 " services to the King's own father ? 
 
 " Lord St. Leonards. — Men take different views of particular acts according to the circumstances of the times." (") 
 — On which I need scarcely remark that it is not opinion but principle which is here in question. Responsibility and Guilt 
 vary ad infinitum, but Truth is fixed and immutable. 
 
 Lord Brougham, I regret to add, had previously observed, " You see different men form different opinions with 
 " respect to soul and conscience," Q') — but on Sir F. Kelly subsequently remarking that the Act Rescissory was " a disgrace to 
 " any Parliament that passed it," the Noble and Learned Lord replied, " No doiibt" {') — which may be sufficient for his 
 exoneration. 
 
 I would also accept the Lord Chancellor's acknowledgment that "confiscation" and ^^ force m- fraud" were 
 attendant as a matter " of course, . . as might naturally he expected," ('') upon the conduct and the legislation which produced the 
 Act Rescissory — in favourable interpretation of the Noble and Learned Lord's views in regard to the moral justice of that Act. 
 
 And I may subjoin, in conclusion, the opinion of Pinkerton with respect to the general character of the proceedings 
 which gave birth to the Act in question— and it may be remembered that if his History be, according to Lord Brougham, 
 " full of theory and full of prejudice," which "pervade the whole" work (infra, p. 211), his prejudices, where they exist, arc 
 those of an ardent Whig partisan, and therefore inimical to the cause represented by James III. and identified by the Scottish 
 Parliament in 1649 with that of Charles I.:—" The conduct of the rebellious peers, whose sanguinary lust of power and eagerness 
 " to continue their lawless rapine opposed the son in open combat against his father, that last infamy of civil war, cannot be too 
 " severely reprobated. They excite horror, while the monarch attracts a reverential compassion. . . James III. fell the victim 
 " of the ambition of others, not of his own." Hist. Scotland, vol. i. pp. 335, 337. 
 
 (») Vide infra, p. 87. (b) vide infra, p. 87. 
 
 C) Vide infra, p. 97. (J) vide infra, pp. 313, 316. 
 
ADDRESS TO THE QUEEN. XXXIX 
 
 immediate predecessors to the practice — which I had almost called the principle 
 — of rescinding the attainders and forfeitures incurred through misdirected loyalty 
 in the olden time* It may have been in Your Majesty's thoughts, as well as in 
 those of Your Royal predecessors, that loyalty might love too well to scrutinize 
 the shortcomings of the objects of its love; and that the attachment of a former 
 generation to the House of Stuart might be the surest pledge for the fidelity of the 
 present to the House of Este. But, whatever the motive, it was a generous action to 
 blot out the penalties of past transgression — a graceful dispensation of that dew of mercy, 
 which, descending from Heaven in the train of justice, is lodged, by Divine provision, in 
 the breast of Kings,^ — and Britain hails with joy the advent of the day when every one 
 of those penalties, entailing deprivation and shame on innocent and loyal subjects of 
 Your Majesty, shall be remitted and swept away for ever. 
 
 But, in approximating these cases of just attainder and just forfeiture (however 
 generously incurred) to the case which I now presume to lay at Your Majesty's footstool, 
 Your Majesty will pardon me for pointing out, with no unseemly pride and exultation, 
 that, while the forfeitures alluded to were incurred through aggravated rebellion and 
 disloyalty, brought home to the respective sufferers by fair and legal trial and con- 
 viction in each particular instance, this case of the Montrose deprivature (for, as confessed 
 on all sides, it is not a forfeiture f) stands preeminently distinguished from them by 
 the fact, that it was incurred — not through rebellion and disloyalty, but through 
 resistance to rebellion and disloyalty — not as the consequence of fair trial and legal 
 conviction, but, if this Resolution of the Committee be well founded, as the conse- 
 quence — absolutely without trial or conviction — of the broad and general denunciations 
 of a highly penal Act of Parliament. This then, I repeat, Madam, constitutes the 
 singular and privileged distinction between the case of the Dukedom of Montrose and all 
 others — that it is for the crime of having loyally adhered to Your Majesty's Royal 
 ancestor. King James III. — for having brought a contingent of eight thousand men to his 
 defence — for having fought gallantly at his side against his rebellious subjects in the 
 battle in which that unhappy monarch perished — for having, in short, anticipated the 
 part of his great namesake, the Marquis of Montrose, in the fearful conflict between 
 authority and anarchy which convulsed Scotland, and brought down the thunders of the 
 Vatican on the head of her rebels towards the close of the fifteenth century — for having, 
 I may even say, exhibited in that lesser sphere some measure of the valour and the wisdom 
 
 * The recent instance of the reversal of attainder in favour of the heir male of the Earls of Perth, the (titular) Duke of 
 Melfort is in the recollection of every one. And at the present moment (May ] 854) a Bill is passing through Parliament, 
 introduced by the Lokd Chancellor with the sanction of Your Majesty, rescinding the attainder of the notorious arch- 
 traitor Simon Lord Lovat, incurred in 1745. While the restoration of the Earldom of Doncaster by Act of Parliament, in 
 March 1742-3 to Francis Duke of Buccleuch, the grandson of James Duke of Monmouth and Buccleuch, attainted in 1685, 
 affords my father an a fortiori plea— the attainted peer having actually assumed the regal dignity himself, and thus sinned 
 against the Crown in a manner far more flagrant than the unfortunate followers of the Stuarts. — In the cases above alluded to 
 the rule is to reverse the attainder in consideration of the loyalty of the descendants of the attainted peer, either absolutely 
 restoring them to the forfeited dignity, or enabling them by rescission of the attainder to claim and make good their title 
 thereto. The Acts reversing the attainders in the case of the Earldom of Marr (as forfeited in 1715) and in that of the 
 Viscounty of Strathallan (as forfeited before the Union and in 1745)— passed on the 17th June 1824— are given, in 
 illustration of Acts of absolute restoration, in the Appendix to this Address, infra, pp. xlvi, xlvu. The Act reversing 
 the attainders in the case of the Earldoms of Perth and Melfort, and the Act reversing the attainder in the case of the 
 Earldom of Nithisdale and Barony of Herries, also there given {infra, pp. l, li), illustrate the second mode of restoration, 
 by which the alleged heir and representative is enabled to assert his claim and prove it, if in his power to do so. But in both 
 modes of restoration (as thus illustrated) the restoration is always a favour conferred in acknowledgment and reward of sub- 
 sequent loyalty. 
 
 I would refer to a Note at the conclusion of this Address {infra, pp. xlviii sqq.) for an exposition of the facts attendant 
 upon the Perth and Melfort forfeitures, rendered necessary by a conversation which took place between the Lokd Chan- 
 CELLOEand Lord Ltndhurst in the course of the Montrose discussion, reported infra, p. 195. 
 
 t This is matter of general admission— which renders the Claimant's present plea an a fortiori one throughout. " It 
 " is most important to observe," remarked the Lord Advocate, "that, while his " (the Duke's) "title is denied him, he is 
 " not in the position of a party forfeited or attainted in any way,— quite the contrary."— /nfra, p. 233. 
 
2^L ADDRESS TO THE QUEEN. 
 
 which have attracted the applause of nations to a Marlborough and a Wellington — it is for 
 demerits, for crimes, like these, that, according to the Resolution of the Committee of Privi- 
 leges in this claim, my family have for three centuries and a half been deprived of the 
 dignity vt^hich James III. bestowed upon them, almost with his dying breath, in guerdon of 
 their services : — While during those three centuries and a half, or at least the greater portion 
 of that period, the Earldom of Glencairn, bestowed by King James under the very same 
 circumstances upon an equally deserving subject and adherent, has been enjoyed by his 
 descendants and representatives, as by repeated recognitions of the Crown and Parliament, 
 and by the judgment of the highest judicial authority of Scotland, in the face of the 
 very same Act which is now ruled to have annulled the Dukedom of Montrose. 
 
 If ever therefore there was an occasion when Your Majesty might exercise 
 the most graceful attribute of Royalty, by rescinding an Act inflicting deprivation 
 and injury on an innocent man — whom I might even style meritorious if the simple 
 fulfilment of duty could constitute merit — and on his heirs and representatives — it is 
 this,^ — and it may be a consideration, although of meaner moment, that such act of grace 
 would establish no embarrassing precedent for the future, inasmuch as it is confidently 
 believed that no other case exists identical with the present.* 
 
 * Two remarkable precedents may be here cited, in which honours, unjustly withheld and forfeited, have been restored 
 to the rightful heirs ^er modumjustitice, by the direct interposition of the Sovereign. 
 
 The first is a Scottish case— that of the Earldom of Marr, in the noble family of Erskine. 
 
 Robert Lord Erskine having, in 1438, been served heir of Isabella Countess of Marr (in her own right), and having 
 assumed the title of Earl of Marr, to which he was de jure entitled, James II. nevertheless, in the arbitrary manner peculiar 
 to the Stuarts, obtained a reduction of that service in 1457 — not before Parliament (as the opponents of the present claim 
 would have supposed), but in a circuit or assize court at Aberdeen, before John Lord Lindsay of the Byres, the High Justiciary 
 — the King appearing in person to prefer his claim, attended by the Chancellor, the Constable, the Earl Marischal, and other 
 officers of state, and with a splendid train of nobles and courtiers — a scene of magnificence unparalleled under such circum- 
 stances in Scotland — but from which the venerable and saintly Ingelram de Lindsay, Bishop of Aberdeen, withheld the 
 sanction of his presence, as one of iniquity and injustice. 
 
 The Earldom of Marr was accordingly consolidated with the Crown, and the Erskines dropped the title and resumed 
 their ancient and inferior designation of Lord Erskine, by which they were exclusively designated till 1555. 
 
 During that interval the Earldom was four times seriatim, conferred upon strangers, — 1. Upon John Stuart, third son of 
 James II., who was put to death in 1479 ; 2. Upon John Stuart, younger son of James III., who died young and without 
 issue; 3. Upon Cochrane, the favourite of James III., who was hanged by the nobles over the bridge at Lauder ; and 
 lastly, 4. Upon James Stuart, illegitimate brother of Mary Queen of Scots, and Regent of Scotland. 
 
 But, in 1555, John Lord Erskine having proved and demonstrated before — not Parliament (be it still remarked) but an 
 Inquest, duly and legally constituted, that the reasons i'or reducing the service of his ancestor in 1457 were unfounded, and 
 having been regularly served heir accordingly, on the 5th May 1555, to the last lawful holder of the Earldom, who died 
 subsequently to 1404, he received thereupon a Charter of Confirmation of the Earldom from Mary Queen of Scots, in ordinary 
 course, under the Great Seal, dated the 13th June 1565, joer modumjustitice, in which Her Majesty admits its unwarrantable 
 detention from him and his ancestors, and expressly states that she was induced to grant the Confirmation in question by motives 
 of justice, after due investigation, and by the sole desire " lkgitimos hebedes ad sbas justas hereditates restitueke." 
 
 James Stuart, the de facto holder of the Earldom, was, in consequence and in compensation, created Earl of Moray; 
 and the Erskines — thus restored after 130 years' exclusion — have continued to hold their dignity to the present day, 
 uninterruptedly — except during the interval of attainder from 1715 till the rescission of that attainder by King George IV. 
 in 1824. 
 
 All the preceding facts are proved by authentic evidence in the Marr Charter-chest and upon record. 
 
 The other precedent above alluded to may be more familiar to the world, south at least of the Tweed, being that of 
 the reversal, in 1824, per modum jvstitiee, of the iniquitous attainder of William Lord Stafford in 1680 for concern in the 
 pretended Popish plot— in consequence of which reversal the Barony of Stafford, that direct witness in the land to the glory 
 and the misfortunes of the original House of Buckingham, has been redeemed from extinction. 
 
 The Act by which the Stafford attainder was reversed, and which will be likewise found in the Appendix to this 
 Address (ir>fra,p. XLVii), received the Royal assent and came into effect on the 17th June 1824— the same' day on which 
 the Acts reversing the Marr forfeiture (as incurred in 1715), and that of the Viscounty of Strathallan, were passed,— but 
 the terms in which it is conceived exhibit a remarkable contrast to those adopted in the sister enactments. The inductive words, 
 after recitation of the impeachment, trial, attainder, and execution of " William late Viscount Stafford " in 1680, are these, 
 " Whereas it is just and proper that the said Attainder should be reversed." There is no recital of subsequent 
 and personal loyalty, as in the Marr, Strathallan, Perth, and other similar Acts, on the part of the persons in whose favour, as the 
 reward of such loyalty, the attainders of their ancestors, justly incurred, are reversed ; but the attainder is reversed, simply and 
 without more, on the broad and honest principle that it was " just and proper" so to reverse it.(°) 
 
 I respectfully submit that this Act of Reversal in the Staflbrd instance, per modumjustitice, furnishes a paie precedent 
 
 (■) I subjoin the following passage from Mr. Macaulay's " panic excited by the fictions of Gates, the most signal had been 
 
 eloquent History :_ „ ^j^^ jajjciai murder of Stafford. The sentence of that unhappy 
 
 " Of the national crimes which had been committed during the " nobleman was now " (1685) " regarded by all impartial person 
 
ADDRESS TO THE QUEEN. XLI 
 
 I am aware, Madam, that the ancient privilege possessed by the Scottish 
 monarchs of remitting forfeiture and restoring against penal Acts of Parliament has 
 dropped into dormancy, if not extinction, since the close of the seventeenth century, and 
 that the rescission of a penal statute is novr effected by Your Majesty and the Estates of 
 Parliament conjointly. Grace, nevertheless, flows still, like justice, power, and honour, 
 from beneath the throne of Royalty ; and in addressing myself to Your Majesty — not 
 through the usual channel of such applications, but personally — as my ancestors 
 addressed the Plantagenets, styling themselves their kinsmen, and receiving that style 
 in return, unblamed — in appealing, I say, to the fountain-head, I would pray Your 
 Majesty to adopt an initiative which, known to be Your good pleasure, the Houses of 
 Parliament would be well pleased to follow — the Many in the land approving and 
 applauding, while the Few, to whose personal consequence the resuscitation of so high 
 and ancient a dignity might be ofiensive, would perforce and for very shame be silent.* 
 
 FOB A SIMILAR AcT KEVEBSiNG THE AcT RESCISSORY OF THE 17th October 1488 — in SO far as (by the Resolution of the 
 House of Lords in the present claim) that Act may be supposed to affect the Dukedom of Montrose, — and this a fortiori, inas- 
 much as there is no pretence of forfeiture in the Montrose case. 
 
 * I may subjoin a few passages illustrative of the feeling with which Bills for the repeal of sentences of Attainder and 
 Forfeiture for rebellion against " the powers that be " are viewed in the House of Lords — from the addresses of Lord Lind- 
 HUBST and Lord Brougham on the 7th June 1853, on moving the Bill for the " reversal of the attainder " — indeed of more 
 than one attainder — barring the succession of the (titular) Duke of MeUbrt to the Earldoms of Perth and Melfort : — 
 
 After eulogizing the ancient distinction and loyalty of the House of Drummond, Lord Lyndhurst observed that 
 " It was not to be supposed that a family so distinguished for their loyalty would, at the time of the Revolution, desert their 
 " ancient Sovereigns. They adhered to the fortunes of the exiled Stuarts — relinquishing their stations in some instances, and 
 " exposing their lives in the service of that unfortunate House. At the Battle of Culloden one of them vras severely 
 " wounded, and aftervi'ards escaped into France. A hundred years had now passed away since these events ; the differences 
 " of those times were now happily forgotten ; the line of princes to whom this family had so chivalrously adhered had become 
 " extinct ; and there was no longer any reason to doubt the allegiance of any member of the family to the reigning Sovereign.'' 
 
 After which "Lord Brougham expressed his entire approval of the Bill. He approved of it, he said, upon this 
 " ground among others — that in doing an act of justice to the Noble Claimant, it did no injustice to any other person. He 
 ' ' used the word justice — because, although it was true that it was an act of kindness and grace on the part of Her Majesty, 
 " he thought at the same time that it was nothing less than justice to that Noble individual. He could not help remarking, in 
 " one word, that there were other cases which stood precisely in the same situation as the present, in which a similar concession 
 " might justly be made:" — 
 
 From which Lord Campbeli-, although remarking upon "the Jacobite tone" of Lord Lyndhurst's speech, and 
 vindicating the loyalty of "the clans who supported the cause of civil and religious liberty, and helped to place the House 
 " of Hanover on the throne," did not dissent — expressing in fact his high admiration of " the chivalry " of those who had 
 adhered to the Stuarts, although " he could never forget that that family was rightly and justly dethroned :" — 
 
 While the Prime Minister, the Earl of Aberdeen, generally, expressed his " pleasure " in supporting the Bill : — 
 
 The Bill itself having been brought in by the present Lord Chancellob.(°) 
 
 These generous sentiments being thus concurred in by the representatives of every shade of political opinion in the 
 House of Lords, it is impossible that a proposal os the part of Your Majesty to reverse the Act of Parliament 
 
 WHICH HAS formed THE SUBJECT OF THE RECENT DISCUSSION, SHOULD BE VIEWED OTHERWISE THAN AS O. foHiori " AN ACT OF 
 
 " JUSTICE " as well as grace, which their Lordships would be eager to promote and facilitate. C") 
 
 " as unjust. The principal witness for the prosecution had been " accomplished. A law annulling the attainder and restoring 
 
 " convicted of a series of foul perjuries. Jt was the duty of the " the injured family to its ancient dignities was presented to Par- 
 
 " legislature, under such circumstances, to do justice to the memory " liament by the ministers of the Crown, was eagerly welcomed by 
 
 " of a guiltless sufferer, and to efface an unmerited stain from a " public men of all parties, and was passed without one dissentient 
 
 " name long illustrious in our annals. A bill for reversing the " voice."— History of England, vol. i. p. .^22. 
 " attainder of Stafford was passed by the Upper House, in spite (°) Hansard's Debates, Tliird Series, vol. 127, col. 1278 sqq. 
 
 " of the murmurs of a few peers who were unwilling to admit C") The laxity, it may be observed, with which the title of 
 
 " that they had shed innocent blood. The Commons read the " Duke of Melfort " was recognised throughout the proceedings 
 
 " bill twice without a division, and ordered it to be committed, in the case of Lord Perth — the Act of lleversal being entitled 
 
 " But, on the day appointed for the committee, arrived news " An Act for the Restitution in blood of George Drummond, 
 
 " that a formidable rebellion had broken out in the West of " Esquire, Duke de Melfort and Comte de Lussan in France," 
 
 "England. It was consequently necessary to postpone much "the said George Drummond" being described as "Duke de 
 
 " important business. The reparation due to the memory of " Melfort in France " throughout the body of the Act— and the 
 
 " Stafford was deferred, as it was supposed, only for a short time, title of " Duke de Melfort " being equally given him in the 
 
 " But the misgovernment of James in a few months completely proceedings in the House of Lords and in the recent discussion 
 
 " turned the tide of public feeling. During several generations (p- 195 in/ira)— contrasts strangely with the rigid and determined 
 
 " the Roman Catholics were iu no condition to demand repara- rule applied to the consideration of the Dukedom of Montrose in 
 
 " tion for injustice, and accounted themselves happy if they were the present claim, — the Lord Chancellor (iifra, p. 311) even 
 
 " permitted to live unmolested in obscurity and silence. At affecting to throw doubt upon the validity of the creation by 
 
 " length, in the reign of King George the Fourth, more than a James III. ! 
 
 "hundred and forty years after the day on which the blood of Your Majesty will scarcely believe that the Dukedom of Melfort, 
 
 " Stafford was shed on Tower Hill, the tardy expiation was thus recognised in speech by the Law Lords of England, and 
 
 G 
 
XLII ADDRESS TO THE QUEEN. 
 
 In seeking this great act of redress and favour at Your Majesty's hand, we have 
 nothing to throw into the scale, no vows of fealty to proffer, no promises of service to be 
 performed ; because all we own is Your Majesty's by right and love, — due to You alike 
 in chivalry and in loyalty as our liege lady and Queen. 
 
 And, whatever be the result, even if Your Majesty be pleased to withhold the 
 grace we seek for, You can lose nothing ; for we could not serve Your Majesty 
 with deeper loyalty as Dukes of Montrose than we shall continue to do (if ultimately 
 unsuccessful) as Earls of Crawford. 
 
 To this, in the name of my father, myself, and of our whole clan and people, 
 answering for their tongue, their pen, and their sword, I pledge myself, — being, 
 
 Madam, *" 
 
 With the utmost submission and reverence. 
 
 Your Majesty's most obedient, loyal, and devoted 
 
 vassal and servant, 
 
 Alexander William Crawfokd, Lord Lindsay, 
 Master of Crawford and Balcarres.* 
 
 * If (to conclude) it should be suggested (as may be anticipated from certain passages in the speeches of Noble and 
 Learned Lords in the recent claim) that the intervention as above prayed for would be inexpedient, for that it may be a question 
 whether the Dukedom of Montrose, created in 1488 in favour of David Earl of Crawford, with the limitation " et heredibus suis " 
 — " and to his heirs '' — be descendible to the heirs male or heirs general of the grantee, — in that case I would represent, 
 
 1. That, inasmuch as the term "heirs" is flexible in Scottish law, and governed in its interpretation by antecedent 
 family entails and collateral circumstances, especially in the feudal times wherein the question of succession 
 arises in the present case:(') — Inasmuch as the estates of the Cravford and Glencairn families uere exclusively 
 
 embodied and affirmed in a British Act of Parliament, which Chancellor only admits hypothetically and as matter of as- 
 
 styles the assumer of it " Duke de Melfort in France," is — not a sumption the Dukedom of Montrose, although created by a 
 
 French, but a ^seuio- Scottish Dukedom, attempted to be conferred King in lawful possession of his prerogative in 1488, and by a 
 
 6y James II., after his dethronement, i« 1692 — and merely through patent which duly passed the seals, as by the admission of the 
 
 an inchoate signature in that year, which never passed nor could Officers of the Crown, and by the testimony of the Register of 
 
 pass the sign manual or the Great Seal— standmy, in fact, pre- the Great Seal of Scotland, where it stands fully and lawfully 
 
 cisely on the same ground and authority as the Dukedom of Perth recorded — and which, moreover, James IV., the son and suc- 
 
 conferred on John Earl of Perth, the Dukedom if Marr conferred cesser of James III., distinctly recognised, as proved by the 
 
 on the Earl of Marr, the Dukedom of Powis on the Herberts, Ike Claimant ! 
 
 Marquisate of Seaforth on the Earl of Seaforth, and others equally It is impossible to deny that, while every favour was extended 
 visionary, and all of which would be equally entitled, with the to Lord Perth (and I rejoice that it was so), justice has been 
 Dukedom of Melfort, to recognition by Your Majesty and the restricted to its narrowest limits in regard to my father. 
 Legislature of this country— while, on that same principle, the (") The problem is, — To whom would the Dukedom have 
 Chevalier de St. George, Prince Charles Edward, and the Car- descended (supposing it to have been in being, and the right to it 
 dinal de York would be entitled to recognition by the British asserted) on tke death of John sixth Earl of Crawford in 1513— 
 Parliament as King James III., King Charles 111., and King when the collateral heir male, Alexander seventh Earl of Craw- 
 Henry IX. ! * And, while thus eagerly recognising the Dukedom ford, succeeded to the titles and estates, to the exclusion of the 
 of Melfort, conferred in contempt and defiance of the law by Duke's daughters, the direct heirs of line, or heirs at common 
 which Your Majesty holds the sceptre of Great Britain, the Lord law, of the family ? Would the limitation ' to heirs ' in the Duke- 
 
 * There were three classes of Dukedoms in France, and three only, 1 . The ' Dues-Pairs ;' 2. The ' Dues non-Pairs,'— both created 
 by erection through a written patent, with a limitation, and subsequently registered, from the date of which registration their pre- 
 cedence dated, and apart from which registration the dignity expired with the grantee ; and, 3. The ' Dues h brevet ' Dukes created 
 for life only, as a personal compliment, and whose dignity was not transmissible to heirs. But the Dukedom of Melfort belongs 
 to neither of these three classes. It was, as above stated, a merely pseudo-Scottish Dukedom, — nominally derived, not from any 
 place in France, but from Melfort in Argyleshire, and which was recognised ex comitate, as a foreign title, by the Kings of France, 
 on the same principle on which James II., his son, and grandson were recognised as Kings of Great Britain, and the other persons 
 above mentioned as British Dukes and Marquesses, by the hostile Court of the Tuileries. The title in question is on that principle 
 applied (as the Claimant believes) to the Dukes ' de Melfort' in certain ' brevets militaires," commissions, &c. by Louis XIV., 
 Louis XV., and Louis XVI., but always as a foreign or Scottish title,— that description could not have the effect constructively of creat- 
 ing a French Dukedom a brevet in the person of those so described,— no ' Due de Melfort ' appears in any list of the French ' Dues ^ 
 ' brevet ' up to the period of the Revolution,— and even if it could be shewn (as it cannot) that a Dukedom a brevet had been regularly 
 renewed (as behoved) in the person of the earlier representatives of the family, nothing of the sort has ever been asserted or 
 surmised in the case of its recent representatives, including the present Earl of Perth. That gallant gentleman and Scottish Peer is 
 therefore, under no possible point of view, a Duke " in France," as represented by the Lord Chancellor and by the British Par- 
 liament in 1853. The ' Earl of Perth'— as such, and as representing the illustrious House of Drummond— can well dispense with 
 such an ephemeral and unsubstantial title ; and he has dropped it accordingly since the recent award in his favour. 
 
ADDRESS TO THE QUEEN. XLIII 
 
 descendible to and strictly entailed on heirs male at the time when the Dukedom of Montrose and Earldom 
 of Glencairn were conferred upon the respective families, viz. in 1488 and for generations previously : — 
 Inasmuch as, on the death of Alexander tenth Earl of Glencairn in 1670, the Earldom of Glencairn, 
 granted by James III. in 1488 to Alexander Lord Kilmaurs " et heredibus suis " — tlie same limitation 
 as that of the Dukedom of Montrose, passed, in accordance with the above rule of interpretation, over the 
 head of Margaret {afterwards) Countess of Lauderdale, daughter and heir general of Earl Alexander, to go to 
 John eleventh Eail of Glencairn, his brother and heir male collateral — and this without cavil or dispute on the part 
 of the said heir female or of any one, but, as a matter oi' course, in right of the Patent of 1488 — that Patent being 
 then admittedly (by the Decreet of the Court of Session 19th January 1648 and the precedence in Parliament 
 held by the Glencairn family in consequence) in full recognition, force, and effect : — Inasmuch as grants and 
 rights conferred for the first time on David Duke of Montrose and (m his son John sixth Earl of Crawford 
 respectively, with the limitation " heredibus suis '' — precisely the same (again) as that of the Dukedom of Montrose 
 — passed ouer the daughters of the one and sisters of the other in repeated instances to vest in their heirs male col- 
 lateral — still in accordance with the preceding rule of interpretation : — Inasmuch as the said rule of interpretation 
 and construction is not of casual but unifokm prevalence in the Crawford family; and even so late as 1791, the 
 landed property of John twentieth Earl of Crawford, who died in 1748, was adjudged by the Court of Session to 
 descend to his hdr male collateral, George fourth Viscount of Garnock and twenty-first Earl of Crawford, by 
 virtue of the above rule of interpretation, passing over and to the exclusion of the sister of Earl John and her 
 descendants, — On these grounds, by themselves alone, as affecting the technical and practical construction of the term 
 " heredibus suis " (and my father has cited numerous parallel illustrations, including honours, from the history of other 
 noble families of Scotland), I apprehend that there can be no doubt whatever as to my father's right to the Duke- 
 dom of Montrose as 'heir' of David Duke of Montrose :(") — And this independently altogether of the arguments 
 arising from the phraseology and context of the Patent itself, by which the Earldom of Crawford is changed into a 
 Dukedom — necessarily to descend in the same line of succession as the Earldom (and a fortiori so to be held after 
 the Cassillis decision in 1762) ; and from theobject of the Crown, as avowed in the Patent, viz., while rewarding the 
 past, to secure the future services of the Crawford family — an object which could only be effected by the continuance 
 of the Dukedom in the line of the Earls of Crawford, on whom and on their heirs male whomsoever the estates of 
 the family, the source of their feudal power, were (as has been stated) exclusively settled and descendible — and to 
 whom estates granted for the tirst time, not to heirs male, distinctly specified, but to ' heirs ' simply, i. e. to the 
 AaV«o^</ie/a??K7y, actually and practically did descend, — And independently, moreover, of the argument arising 
 from the simple fact that, supposing by possibility that the Dukedom and the Earldom could have separated and 
 gone in different channels and lines of succession, there would have been, on the one hand, a ' Duke of Montrose,' 
 the premier Duke and peer of Scotland, with an income of some £80 or £90 a year and certain salmon (the 
 property conveyed with the Dukedom), and the feudal ' following ' in war of about the same amount as the con- 
 tingent of a small country squire — quite insufficient to qualify him for receiving the honour even of knight 
 banneret, — and, on the other, an 'Earl of Crawford' with above thirty great baronies and feudal lordships at his 
 back (to say nothing of lesser holdings), fui-nishing an army at his command, and with annual revenues in ready 
 money from many of the principal sea-ports and boroughs of Scotland, (including the greater part of the customs of 
 Montrose itself,) amounting by themselves alone, independently altogether of the landed property, to far more 
 than the whole revenues of the Dukedom put together, — a separation of interests, power, and fortune, which, in 
 the words of Lord Mansfield, as applied to the Earldom of Cassillis and Lordship of Kennedy in the claim above 
 alluded to, " it is not possible to believe . . could ever be intended : " — The result of which considerations is 
 simply this, — that an argument to the effect that the Dukedom of Montrose conferred in 1488 was descendible to 
 heirs general could in fact only be maintained in the face of law and practice, uniform and consistent (under the 
 given circumstances) from the date of the Patent till the present moment ; in utter disregard of precedent, as 
 established by the decision of the House of Lords in the case of the Earldom of Cassillis in 1762; and at the 
 risk of lapses into absurdity and extravagance at every stage of its progress-C") 
 
 2. That if, however, notwithstanding these facts and precedents, and after full consideration of them by Your Majesty, 
 doubt be still entertained as to the legal construction of the term " heredibus" in the present instance, and if that 
 doubt be made an apology by Your Majesty's advisers for opposing the prayer of this Address— then I would 
 further represent, that in cases where, on the eventual restoration of a patent to life and vigour through the Reversal 
 of an Act of Attainder affecting it, doubt may be reasonably entertained as to the right of the person in whosp 
 favour that Act of Reversal is passed to succeed under the limitations of the patent, it has not been the usage to 
 withhold such act of grace through any such doubt or consideration, but, on the contrary, it has been Your Majesty's 
 gracious pleasure and that of Your Royal predecessors to reverse the Attainder simplidter in favour of the Claimant, 
 so as to enable him — if justly entitled thereto — to establish his right to the dignity : — In example and illustration of 
 which I may cite, 
 
 i. The Stafford precedent, — in which, an Act of Attainder having passed in 1680 (as has been stated) 
 against William Viscount and Baron Stafford, and Sir George Jerningham, Bart., the heir female, having 
 a claim to the Barony (the Viscounty having become extinct in the person of William, the original 
 grantee) if only the Attainder were out of the way ; the Act of Reversal, already cited, was passed by 
 Your Majesty's Royal uncle King George IV. and by Parliament in 1824, annulling that Attainder, per 
 modum justitice, as iniquitous and unjust — but without more, — leaving it to Sir George to clear and 
 
 dom patent have then carried it to heirs at common law, or (as main- refer to the Analysis, infra, p. cxxxviii. And for Lord Mans- 
 
 tained by the Claimant) to the heirs succeeding to the estates and field's and the late Lord Redesdale's dicta on the male import of 
 
 honours ofthefamily of Crawford i "heredibus suis" "in early times," vide infra, pp. 557, 572. 
 
 (") In proof that the flexibility of the term 'heirs' is re- (•>) Vide the S. Case, p. 145 ; and iirfra, pp. cxxxviii. sqq. ; 
 
 cognised in Scottish law and practice at the present day, and 524, 525. See also the pedigree, facing the title, supra. 
 that even in England the like principle is not unknown, I would 
 
 G 2 
 
XLIV ADDEESS TO THE QUEEN. 
 
 establish his right before the House of Lords (under reference from the Crown) in the usual manner. 
 Sir George accordingly claimed, and adduced evidence in support of his claim ; which having been done, 
 the House resolved, on the 6th July 1825, "that Sir George Jerningham hath made out his claim to 
 " the Title, Dignity, and Honour of Baron' Stafford, under certain Letters Patent bearing date the 
 " 12 day of September in the 16 Year of the Reign of King Charles the First," (°)— i. e. 1640 : — 
 
 ii. The Herries precedent,— in which, an Act of Attainder having passed against William Earl of Nithisdale 
 and Lord Herries for accession to the Rebellion of 1715, Your Majesty *vas graciously pleased, quite 
 recently, in 1846, to reverse the Attainder in favour of William Constable Maxwell, Esquire, claimant 
 of the Barony of Herries— not absolutely restoring him to the dignity, as in the case of the Marr 
 and Strathallan Acts of Restoration (where ttiere was no doubt as to the descent and contingent right of 
 inheritance), but restoring him in blood so as to enable him to prefer his claim to the dignity — leaving 
 the question whether that dignity be descendible to himself, the heir female of the attainted peer, or to 
 the heir male of the House of Nithisdale (Mr. Maxwell of Carruchan), for consideration, under reference 
 from Your Majesty, by the House of Lords — before whom his (Mr. Constable Maxwell's) claim is still 
 depending : — 
 And, lastly, 
 iii. The Perth precedent, — in which, the honours having been forfeited, as above shewn, an Act of Resti- 
 tution has been just passed by Your Majesty in favour of "George Drummond, Duke de Melfort in 
 " France'' — not, as before, absolutely restoring him to the attainted dignity, but restoring him in 
 blood so as to enable him to prefer his claim to the dignity — which dignity has been allowed him 
 accordingly : — 
 Upon which precedents depending and founding, I submit, 
 3. That, in like manner — the cases of Stafford, Herries, Perth, and Montrose being so /ar completely parallel— if a 
 doubt be entertained as to the right of my father to the Dukedom of Montrose, setting aside the obnoxious Act 
 Rescissory of 1488, it would be consonant with usage, and my father and myself would humbly pray, that the 
 
 Act EeSCISSOBT may be rescinded so FAE as EEGAEDS the clause " CEEACION of new DIGNITEIS " GENBKALLY 
 
 — leaving the question of succession (whether by the male or female heir) to subsequent inquiry and deter- 
 mination : — Although we likewise submit that the uniform acceptance of the limitation " heredibus " as implying 
 heirs male under the given circumstances, and the peculiar language and context of the patent itself, with the 
 inferences arising from the expressed object of the Crown in granting the dignity, and other considerations above 
 pointed out, would justify Youe Majesty in eestobing us absolutely and by dieect intebvention to 
 THE Dukedom of Monteose — as in the case of the Marr and Strathallan families — my father being the heir 
 male of David Duke of Montrose by the decision of the House of Lords on the claim to the Earldom of Crawford 
 in 1848. 
 
 I may observe, in conclusion, that the annulment of the Act Rescissory, as above prayed for, will in no way shake a 
 Resolution which (it will hereafter appear) was reported to the Sovereign by the House of Lords on the occasion of the claim 
 to the Earldom of Glencairn by Sir Adam Fergusson, the heir general, in 1797. That Resolution is as iollows : — " That Sir 
 " Adam Fergusson has shewn himself to be the Heir General of Alexander Earl of Glencairn, who died in 1670, but hath not 
 " made out the right of such Heir General to the dignity of Earl of Glencairn." (Vide infra, p. Ixv.) In the event therefore 
 of the Act Rescissory being either ruled not to apply to dignities, or being rescinded, the Earldom of Glencairn will still go 
 10 heirs male, in exclusion of heirs general, quite in conformity with the Resolution of 1797, owing to the investitures of the 
 Glencairn family from 1399 down to the Union being uniformly to heirs male Q>) — in accordance with which fact and with 
 Scottish practice, as has been stated, the Earldom passed without dispute over the head of the heir female so far back as 1670 
 to vest in the heir male. JYo innovation ivill thus take place, nor will the rights of third parties be affected, nor will a standing 
 Resolution of the House of Lords be shaken, by the eepeal of the Act Rescissoey, thus prayed for. And the Earldom of 
 Glencairn and Dukedom of Montrose were the only two dignities granted urithin the period struck at by the Act in question. 
 
 POSTSCEIPTUM TO THE PEECEDINa ADDEESS. 
 (19th JULY 1854.) 
 
 Since venturing to address Your Majesty to the foregoing effect, and during the 
 present Session (of 1854), the Lord Chancellor and Lord St. Leonards have decided 
 a most important Scottish Appeal Case on a principle of interpretation, as applied to 
 Acts of Parliament, diametrically opposed to that on which their Opinion fundamentally 
 proceeded (as members of a Committee of Privileges) in the Montrose Case —the 
 principle in question, founded upon by my father as the basis of his whole plea and 
 argument, and rejected by those Noble and Learned Lords in 1853— to wit, that an 
 
 (•) Lords' Journals, vol. xxxvii. p. 12923. 
 
 (»■) The fact that such was the case from 1399 to 1488 has been hitherto unknown. Vide infra, p. cxl, n. 0>). 
 
ADDRESS TO THE QUEEN. XLV 
 
 Act of Parliament. must be construed according to its literal words in their plain and 
 obvious meaning, without excision or interpolation of words, and without reference to 
 the supposed intention of those who framed it — having been now, in 1854, expressly 
 founded upon, approved, and applied by those self-same Noble and Learned Lords, to 
 the quashing of the Appeal in question. 
 
 The case to which I allude is that of the Appeal to the House of Lords from the 
 judgment of the Court of Session in the case of Shedden v. Patrick, decided by the Lord 
 Chancellor, Lord BROuaHAM, and Lord St. Leonards on the 15th of May in the 
 present Session of Parliament. In their Deciding Speeches on that occasion the Lord 
 Chancellor and Lord St. Leonards lay it down, with Lord Brougham's general 
 assent and concurrence, that an Act of Parliament— viz. the Alien Act of George II., on 
 the construction of which the decision turned in the Appeal in question— must be inter- 
 preted by its "precise words," according to their " literal meaning," without regard to 
 and rejecting all reference to the "intention" of those who passed it— which they treat 
 as a " may " or " may not be," or as a matter of pure indifference and wholly immaterial 
 — the words of the Act falling to be taken as they stand, " and read exactly in the sense 
 " in which they strike the eye at first, which " (to Lord St. Leonards' apprehension) 
 " is exactly the sense in which the legislature meant they should be read," — Lord St. 
 Leonards, in particular, reprobating the idea of expunging words in order to give the 
 Act a broader or more favourable construction : — And all this in direct antagonism to 
 the facts of which the proof is before Your Majesty in the present volume, that those 
 Noble and Learned Lords had reported to Your Majesty adversely to my father's claim, 
 in the late Session of Parliament, on the ground that an Act of Parliament — viz. the Act 
 Kescissory of James III., on the construction of which the claim turned — fell to be 
 interpreted — not according to its " precise words " in their "literal meaning," as con- 
 tended by my father, but, avowedly, according to the " intention " of those who passed 
 it, as gathered from history and the circumstances of the time — in other words, as 
 broadly as ]iossible, — the Lord Chancellor expunging and Lord St. Leonards inter- 
 I)olating words in order to make the Act apply to the persons against whom — in the 
 face of a distinct qualification — they assumed that it was intended to apply, and whom 
 it was confessedly impotent to injure except through the abstraction or importation of 
 the words in question — and Lord Brougham, as in the Shedden case, acquiescing gene- 
 rally in the result at which his Noble and Learned brethren thus arrived : — The Alien 
 Act of George II., to which the narrow and strict interpretation was (as above) ascribed, 
 being moreover a favourable one in essence, spirit, and language, intended ex terminis to 
 bestow benefits on the loyal public, and therefore entitled to receive a large and liberal 
 interpretation ; while the Act Rescissory, to which the broadest signification was thtis 
 attributed, is a penal Act, directed against the loyal subjects of the Sovereign whom the 
 enacters of the Statute had themselves murdered, and which behoved therefore to be 
 most strictly and narrowly interpreted, in favour of those whose lawful rights were 
 attempted to be annulled by it. It is impossible, Madam, to conceive a more marked 
 and absolute contrast than between these two judgments, pronounced, on the self-same 
 point of principle, by the self-same judges, in two successive Sessions of the same Par- 
 liament. There cannot be a more striking instance of the strict and literal interpreta- 
 tion of a statute, to the exclusion of intention or of any other relative consideration, than 
 that of the Alien Act in the decision upon the Shedden Appeal Case. And the Noble 
 and Learned Lords, who decided thus in 1854, ought, I submit, on every principle of 
 equal justice and consistency, to have construed the Act Rescissory of 1488 in the same 
 manner, and necessarily in my father's favour, in 1853. 
 
 I can assure Your Majesty that I am loath to press upon You facts like these, 
 
XLYI ADDRESS TO THE QUEEN. 
 
 and inferences such as Your Majesty may possibly draw from them ; but the contrast 
 above remarked upon renders it imperative upon me to bring them under Your Majesty's 
 attention — and this on grounds affecting, not merely the judgment to be formed by 
 Your Majesty of the merits or demerits of my father's pretensions, but the security, as 
 regards life, fame, goods, and honour, of all other Your Majesty's lieges in the United 
 Kingdom — whose interest it is that those public servants to whom Your Majesty entrusts 
 such powers and confidence should act in due remembrance of their responsibility ; and 
 that the Ark of the Law, of which they are (under Your Majesty) the supreme pilots 
 and governors, should still, as heretofore, be steadied in her course by the keel of Prin- 
 ciple, guided by the rudder of Precedent, and impelled by the breath of Truth to the 
 port of Justice. — But, apart from public considerations, the simple facts — incredible as 
 they may at first sight appear, and which I again most humbly commend to Your 
 Majesty's scrutiny and consideration — that the principle of interpretation contended for 
 by my father and disallowed by the House of Lords in 1853 has been adopted and 
 enforced by that self-same tribunal in 1854, and that the ancient and constitutional views 
 which my father pleaded in vain during the last Session of Parliament are now in the 
 present once more in the ascendant, but too late for him to profit by — constitute, I sub- 
 mit, the strongest possible plea in apology for my humble Remonstrance against the 
 Opinion recently reported to Your Majesty, and in support of the Petition which forms 
 the prayer of the preceding Address, and Avhich I may now once more, with enhanced 
 emphasis and confidence, commend to Your Majesty's grace and justice, ^ — to wit : — 
 That, under these unparalleled circumstances, Your Majesty would be graciously 
 pleased to initiate such measures as may be requisite in order to neutralize the 
 ■wrong inflicted by that Opinion on my father and on myself, as representing Your 
 Majesty's and Your ancestors' faithful and loyal vassals of the House of Crawford.* 
 
 * For full extracts from the Speeches of the Lord Chancellor and Lord St. Leonards in the Shedden Appeal Case, 
 with reference to the interpretation of the Alien Act 4 George II., I would refer to the Appendix to this Address infra, 
 pp. xci, XCII. 
 
 APPENDIX TO THE ADDKESS. 
 
 Illustrations of the form adopted in Acts of Eestoration against Attainder and Forfeiture 
 
 JUSTLY incurred THROUGH EeBELLION, AND OF THE FORM ADOPTED IN ACTS OF RESTORATION per 
 
 modum justitice AGAINST Attainder and Forfeiture unjustly incurred and inflicted 
 
 EXHIBITING THE CONTRAST BETWEEN SUCH MODES OF EeSTORATION :— EeFERRED TO SUpra, 
 pp. XXXIX, XL. 
 
 ( I- ) 
 
 " An Act for the Restofotion of John Frauds Er shine of Mar to the Dignity and Title of Earl of Mar [249 anno 5 
 " Georgii IV.— 17th June 1824.] ' 
 
 " Whereas, by an Act j)assed in the first year of the Reign of His Majesty King George the First, intituled An Act 
 " to attaint John Earl of Mar, William Murray, Esquire, commonly called Marquis of TuUibardine, James Earl of Linlithgow, 
 " and James Drummond, Esquire, commonly called Lord Drummond, of High Treason, it was Enacted that, from and after 
 " the nineteenth day of January, in the year of Our Lord one thousand seven hundred and fifteen, the said John Earl of Mar 
 " should stand and be convicted and attainted of High Treason ; And whereas John Francis Erskine of Mar is the Grandson 
 " and lineal Representative of the said John Earl of Mar ;* And whereas the said John Francis Erskine hath upon all 
 " occasions conducted himself dutifully and loyally toivards your Majesty and your Royal Father, —May it therefore please 
 " your Majesty that it may be Enacted, and be it Enacted by the King's Most Excellent Majesty, by and with the advice and 
 " consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the 
 " same. That the said John Francis Erskine of Mar, and all other persons who would be entitled after the said John Francis 
 " Erskine to succeed to the Honours, Dignities, and Titles of Earl of Mar in case the said Act had not been made, be and are 
 
 * John Earl of Marr was the leader and chief of the Rebellion of 1715. 
 
ADDRESS TO THE QUEEN. XLVII 
 
 " hereby restored to the Honours, Dignities, and Titles of Earl of Mar, with all rights, privileges, and pre-eminences thereunto 
 "belonging, as fully, amply, and honourably as if the said Act had never been made, notwithstanding the said Act or 
 " corruption of blood thereupon ensuing, or of any Statute, Record, Conviction, Impediment, Judgment, Cause, or Matter in 
 " any [wise] to the contrary : — Provided always, and be it Enacted, that nothing in this Act contained shall enable, or be 
 " construed to enable, the said John Francis Erskine, or any other of the persons hereby restored in blood, to claim by virtue 
 " of this Act any real or personal property, or any other right, from which he and they is and are now barred or excluded by 
 " the said Attainder.'' 
 
 ( n. ) 
 
 " An Act for the Restoration of James Drummorul, Esquire, to the Dignity and Title of Viscount of StratJiallan." [Date as 
 the preceding, 17th June 1824.] 
 
 " Whereas, pursuant to and by virtue of an Act passed in the nineteenth year of the Eeign of His Majesty King 
 " George the Second, intituled An Act to attaint Alexander Earl of Kellie, William Viscount of Strathallan, Alexander 
 " Lord Pitsligo, David Wemyss, Esquire, commonly called Lord Elcho, eldest Son and heir apparent of James Earl of 
 " Wemyss, James Drummond, Esquire, eldest Son and heir apparent of William Viscount of Strathallan, Simon Eraser, 
 " Esquire, eldest Son and heir apparent of Simon Lord Lovat, George Murray, Esquire, commonly called Lord George 
 " Murray, Brother to James Duke of Athol, Lewis Gordon, Esquire, commonly called Lord Lewis Gordon, Brother to 
 " Cosmo George Duke of Gordon, James Drummond, taking upon himself the title of Duke of Perth," James Graham, late 
 " of Duntroon, taking on himself the title of Viscount of Dundee, John Nairn, taking upon himself the title or style of Lord 
 " Nairn, David Ogilvie, taking upon himself the title of Lord Ogilvie, John Drummond, taking upon himself the style or 
 " title of Lord John Drummond, Brother to James Drummond, taking on himself the title of Duke of Perth, Robert Mercer, 
 " Esquire, otherwise Nairn, of Aldie," &c. &c. &c.t " of High Treason, if they shall not render themselves to one of His 
 " Majesty's Justices of the Peace on or before the twelfth day of July, in the year of Our Lord One thousand seven hundred 
 " and forty six, and submit to justice, William Viscount Strathallan was declared to be attainted of High Treason ; And 
 " whereas James Drummond, Esquire, of Strathallan, is the Grandson and lineal representative of the said Viscount Strathallan ; 
 "And whereas the said James Drummond hath upon all occasions conducted himself dutifully and loyally towards your 
 " Majesty and your Royal Father : — And whereas a Decreet of Forfeiture was pronounced by the Parliament of Scotland, 
 " upon the fourteenth day of July, One thousand six hundred and ninety, against Sir John Drummond of Machany and 
 " others, who had been in arms with Viscount Dundee, whereby the blood of the said Sir John Drummond was declared to be 
 " tainted,! and notwithstanding that William Drummond, aforesaid son of the said Sir John Drummond, succeeded to, took 
 " upon him, and enjoyed the title of Viscount Strathallan, and was attainted as Viscount Strathallan, yet inasmuch as no 
 " evidence now at this distance of time appears upon the records or elsewhere of the rehabilitation or restoration of Blood of 
 '' the said Sir John Drummond, or his son the said William Drummond, attainted as aforesaid, and doubts may hence arise 
 " regarding the corruption of blood of the said James Drummond of Strathallan, and it is expedient and fit that such doubts 
 " should be removed and done away, — May it therefore please your Majesty that it may be enacted, and be it Enacted by the 
 " King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in 
 " this present Parliament assembled, and by the authority of the same, that the said James Drummond, and all other persons 
 ' ' who would be entitled after the said James Drummond to succeed to the Honours, Dignities, and Titles of Viscount Strathallan 
 " in case the said Act of Attainder and Decreet of Forfeiture had not been passed and pronounced, shall be and are hereby 
 " restored to the Honours, Dignities, and Titles of Viscount Strathallan, and the other dignities which the said William 
 " Viscount Strathallan, attainted as aforesaid, then enjoyed or might have enjoyed, with all rights, privileges, and preeminences 
 " thereunto belonging, as fully, amply, and honourably as if the said Act had never been made, and the said Decreet of 
 " Forfeiture had never been pronounced, notwithstanding of the said Act and Decreet of Forfeiture, or either of them, or 
 " corruption of Blood thereupon ensuing, or any Statute, Record, Conviction, Impediment, Judgment, Cause, or Matter, in 
 " anywise to the contrary : — Provided always, and be it further Enacted, that nothing in this Act contained shall enable the 
 " said James Drummond, or any other of the persons hereby restored in Blood, to claim by virtue of this Act any real or 
 " personal property, or any other right, from which he and they is and are now barred or excluded by the said Attainders." 
 
 ( in. ) 
 
 " An Act for reversing the Attainder of William late Viscount Stafford." [Date as the preceding, 17th June 1824.] 
 
 " Whereas William late Viscount Stafford, in the thirty second year of the Reign of His late Majesty King Charles 
 " the Second, having been impeached of High Treason by the Commons of the Realm of England in Parliament assembled, was 
 " thereupon arraigned and tried before the Peers in Parliament assembled, and by them convicted and in due form of Law 
 " attainted, of the same High Treason, and was adjudged to death, and was executed for the same ; And whereas it is just 
 " AND PROPER that the said Attainder should be reversed, — Be it therefore Enacted by the King's Most Excellent Majesty, 
 " by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, 
 " and by the authority of the same, that the said Conviction, Attainder, and Judgment, and all and every Attainders and 
 " Attainder of High Treason against the said William late Viscount Stafford, shall be, and the same are hereby, reversed, 
 " repealed, revolted, annulled, and made utterly void to all intents and purposes, as if the same had never been : — Saving always 
 " to the King's Most Excellent Majesty, His Heirs and Successors, and to all Bodies Politic and Corporate, and all other 
 " Persons whatsoever, all the rights, titles, interests, claims, and demands whatsoever, which they respectively have, or are 
 " entitled to, or could or might have had or been entitled to, of, in, to, from, out of, or upon, all or any part of the,ReaI 
 " Estates of the said William late Viscount Stafford in as full and ample manner as if this Act had not been passed." 
 
 * This is the accepted style, in accordance with which the late claimant of the Earldom of Perth ought to have been described 
 as " George Drummond, Esquire, taking upon himself the title of Duke of Melfort " in the Act reversing the attainders and forfeitures 
 aflfecting his family. 
 
 f A great number of other Jacobites are here enumerated. 
 
 X This, it is to be observed, is the case of the reversal of an Act of Attainder and Forfeiture, passed before the Union. 
 
XLVIII ADDRESS TO THE QUEEN. 
 
 II. 
 
 Exposition of facts attendant upon the Perth and Melfort Attainders, Forfeitures, and 
 Disqualifications, with further comments, rendered necessary by a conversation 
 
 WHICH TOOK PLACE m THE COURSE OF THE RECENT (MONTROSE) DISCUSSION BETWEEN THE LORD 
 
 Chancellor and Lord Lyndhurst : — Referred to supra, p. xxxix. 
 
 The conversation alluded to was as follows : — 
 
 " Lord Chancellor. — In the present Session there was passed an Act of Parliament reversing what cannot he called 
 " an Act of Attainder, but a Decreet of Forfeiture in Scotland. If that which is the law in England did not apply to 
 " Scotland, that Act of Parliament was unnecessary as far as that forfeiture was concerned. I allude to the case of the Earl 
 " of Perth. 
 
 " Lord Lyndhurst. — That was a Decreet of Forfeiture, and not an Act of Parliament. It is stated in the Act 
 " reversing the Attainder that it was a Decreet of Forfeiture by the Court in Scotland. That is a very different thing from 
 " an Attainder by Act of Parliament. 
 
 " Lord Chancellor. — A fortiori, if it was necessary to have an Act of Parliament here to reverse a Decree of 
 " Forfeiture of 1689 against the ancestors of tiie Duke de Melfort, it must be necessary to have an Act of Parliament in case 
 " of an Attainder by an Act of Parliament in Scotland. 
 
 " Mr. Attorney Genei-aL— Quite so, my Lord. It strikes me however, that, though it may fortify my position, it 
 " does not really affect the case. This is not the case of an Attainder, but it is the case of the annihilation of a dignity by an 
 " express act of the Legislature. 
 
 " Lord Lyndhurst. — It is not an Act of Attainder, properly so called. 
 
 " Mr. Attorney General. — Certainly not. 
 
 " Lord Lyndhurst. —It is annulling a former Act." — Lnfra, p. 195. 
 
 I regret to be obliged, here as elsewhere, to notice and rectify lapses of memory or attention, which, as proceeding 
 from such high authority as the Noble and Learned Lords in question, cannot be allowed to pass unrefuted without detriment 
 to my father's interest. 
 
 I may, in the first place, cite the words actually used by the Lord Chancellor and by Lord Lyndhurst on the 
 passing of the Bill for annulling the Perth and Melfort Attainders, alluded to, on the 7th June 1853 — little more than a 
 month previously to the conversation above recorded : — 
 
 " The object of the Bill," said the Lord Chancellor, " was to reverse the Attainder of the Earls of Perth, who 
 " were attainted inconsequence of the part they had taken in the rebellions of 1715 and 1745. . . A Decree of Forfeiture, 
 '^ equivalent to an Act of Attainder in England, was passed against" the ancestor of the Claimant "in Scotland. He 
 " went to France, and was there created Duke de Melfort,"- — that is, James II. attempted so to create him in 1692, after 
 his abdication, in the manner stated in a sub-note supra, p. xli. ^^ A question respecting the effect of the law of Attainder 
 " in Scotland having been raised" and carefully investigated, " all their Lordships were clearly of opinion that the Attainder 
 " was as complete a bar to succession in Scotland as in England. . . Her Majesty having graciously consented that the 
 " Attainder should be reversed, he" — the Lord Chancellor — '' had laid the present Bill on the table with that object. 
 " - . The measure would simply reverse the fact of the Attainder." 
 
 And Lord Lyndhurst stated, that " after a long argument Lord Cottenham and himself (Lord Lyndhurst) 
 " were clearly of opinion . . th3.t the claim of the Duke de Melfort was absolutely barred by the Attainder. . . He (Lord 
 " Lyndhurst) suggested, however, . . the propriety of an application to the Crown on the part of the Duke de Melfort, 
 " for the purpose of obtaining a reversal of the Attainder," &c. Sc." 
 
 Proceeding to the facts affecting the Forfeiture of the Earldom of Perth, they were as follows : — 
 
 The Earldom of Perth was never directly or expressly attainted. James fourth Earl of Perth, Lord Chancellor to 
 James II., died in France, unforfeited, on the Uth May 1716. 
 
 Ilis son and heir, James Lord Drummond, was forfeited or attainted by a British Act of Parliament on the 19th 
 January 1715, for concern in the rebellion of 1715. This Act virtually, as held in law, forfeited or attainted the Earldom of 
 Perth, though not specified. Lord Drummond having survived his father, and the succession to the Earldom having fully 
 opened to him, — a circumstance fatal to any possibility of succession. 
 
 John Drummond, younger brother and heir of James Lord Drummond, was in like manner forfeited by Act of Parlia- 
 ment in 1746, for his concern in the rebellion of 1745. 
 
 These were exclusively British Acts of Parliament, which, although legally effectual (virtually) to forfeit the 
 Earldom of Perth, are not alluded to in the conversation here commented upon. 
 
 The male line of the Chancellor James Earl of Perth having become extinct in our own times, the male representation 
 devolved on the line of Melfort, descended from John Earl of Melfort, younger brother of the Chancellor, and who had been 
 created Duke of Melfort (as stated) by James II. in France after his abdication. The (titular) Duke of Melfort, now Earl 
 of Perth, accordingly claimed the Earldom of Perth, but was unsuccessful, owing to the forfeitures and attainders which 
 barred the succession. 
 
 But, independently of the two Perth forfeitures by British Acts of Parliament, above noticed, there was another and 
 still more fatal forfeiture in the way ; viz., that os John Earl or Melitort himself by the King and Parliament 
 IN Scotland in 1695, which, at the same time that it directly forfeited or attainted the Earldom of Melfort, had the like 
 effect upon the Earldom of Perth, Earl John being younger son of James third Earl of Perth, and the Perth male succession 
 
 * Hansard, Third Series, vol. 127, col. 1279, 1280, 1281. 
 
ADDRESS TO THE QUEEN. XLIX 
 
 having opened to the Melfort line (as above observed) in the person of the late (titular) Duke of Melfort, father of the 
 present Earl of Perth, but which line was itself forfeited and incapable of succession. 
 
 This Scottish forfeiture in 1695 is the forfeiture exclusively alluded to in the conversation now under consideration 
 between the Lord Chanceixoe and Lord Ltndhurst, by whom it is represented as a mere " Decreet op Forfeiture," 
 
 which " CANNOT BE CALLED AN AcT OP ATTAINDER," — but which waS paSSed " BY THE CoUBT IN SCOTLAND," that is, 
 
 by a mere ordinary tribunal — and which was thus " a vert different thing prom an Attainder by Act or 
 " Parliament," — with further and A fortiori inferences in due time to be attended to. 
 
 It will appear, however, that this Decreet of Forfeiture — the only one that took place in the case of the Melfort 
 family, (the date assigned to it in the conversation, viz. 1689, being an error for 1695), was distinctly an Act of Attainder, 
 AND by Parliament. 
 
 The Decreet in question, bearing the title " Decreet of Forfeiture against the Earls of Melfort and Midleton and Sir 
 " Adam Blair of Carbery," and dated the 2nd July 1695, is recorded and enrolled in the ' Minutes of Parliament' of that 
 date, preserved in the General Register House, Edinburgh, and printed in the Appendix to the ' Acts of Parliament,' last 
 edition, vol. ix, pp. 112 sqq. And after recitation of " the process cf treason at the instance of His Majesty's Advocate " (the 
 Scottish form of procedure in the case of treason) against the persons above mentioned, it proceeds as follows : — " The 
 " King's Majestie and the Estates of Parliament, haveing considered the foresaid lybell and indytement for high 
 " treason, pursued at the instance of His Majestie's Advocat, against the three forenamed persons, defenders, with the 
 " depositions of the witnesses, &c., they fand and heirby finds the forsaid cryme of treason . . sufficiently verified and 
 "proven against the saidis John Earle of Melpobt, John Earle of Midleton, and Sir Adam Blair, . . and therefore 
 " our Soveraign Lord and the Estates of Parliament . . decerns and adjudges the said John Earle of Melfort, John 
 " Earle of Midleton," &c. "to be execute to the death, demained (mutilated) as traitours, and to undergo the pains of treasoun and 
 '' utter punishment appoynted by the laws of the realm ; and ordains their names, fame, memory, andhonor to be extinct, their 
 " BLOOD TO be tainted, and their armes to be riven furth and delet out of the Books of Arms, sua that their posterity 
 
 " MAY NEVER HAVE PLACE NOR BE ABLE HEREAFTER TO BRUIKE OR JOTSE ANY HONOURS, OFFICES, TITLES, OR DIGNITIES 
 
 " WITHIN THIS REALME IN TYME COMING :" — After which, Bs Stated in the body of the Statute Book, " the sentence and doom 
 " of forfaulture [was] read, noted, and approven, and touched with the sceptre by His Majestie's Commissioner, in the usual 
 " manner." — Acts, vol. ix, pp. 407 ; App., pp. 112 sqq. 
 
 It would scarcely be possible to adduce a more regular and solemn Parliamentary act and procedure than this. 
 
 The family of Melfort were thus indisputably both forfeited and attainted — not (as represented) by a mere ordinary 
 " Court,'' or tribunal, as distinguished from Parliament — but by Parliament itself, through a special sentence and judgment, 
 classed with the Acts of Parliament, and entered on the records of Parliament. 
 
 And if anything were required to confirm and clench this fact, it might be found in the quequidem clause of a charter 
 by William III., under the Great Seal, 12th March 1696,* of the lands of Lundin, in favour of James Lundin of that Ilk, the 
 eldest son of John late (as forfeited) Earl of Melfort : — " Jacobo Lundin de eodem, filio legitimo natu maximo procreato inter 
 "■ Joannem nuper Comitem de Melfort et Dominam Sophlam Lundin," the heiress of Lundin (whose name he thus adopted 
 and bore) ; " quaquidem terrse . . perprius pertinuerunt ad dictum Joannem . . hereditarie, . . et ceciderunt et devenerunt in 
 " manibus nostris, etad nostram donationem et dispositionem, ratione sententice forisfacturce lattB et pronunciatce contra dictum 
 " Joannem nuper Comitem de Melfort per Nos et Status Parliamenti nostri secundo die mensis Julii, anno Domini 
 " millesimo sexcentesimo nonagesirno . . . ," — being precisely the Act of Forfeiture of the 2nd July 1695 above cited from the 
 Acts of Parliament. This charter is printed in the ' Minutes of Evidence ' in the Perth claim in 1846, pp. 122-6. 
 
 Under the preceding circumstances, therefore, there being no subsequent rei interventus, it was imperative in the Perth 
 case, in order to get rid of this fatal judgment of Parliament which obstructed the succession, to have it reversed by Parliament 
 
 . which could only now be effected (since the Union) by a British Act of Parliament, — and a British Act of Parliament was 
 
 accordingly resorted to and passed on the 28th of June 1853, not three weeks before the opening of the proceedings on the 
 present claim to the Dukedom of Montrose. And in this Act, after due recitation of the two Perth Attainders, the " Decreet 
 " op FoBPAULTURB . . pTonounced in the Parliament or Scotland," distinctly so stated, "against John Earl of Melfort, 
 " on the Second Day of July, One thousand six hundred and ninety five," is expressly enumerated and characterised as an act 
 by which " the Earldom of Melfort and the other Honours vested in John Earl of Melfort became forfeited and his Blood 
 " attainted," and which, equally with the two British Attainders, " barred " the claim of " George Drummond Duke de 
 " Melfort in France " to the Earldom of Perth.t 
 
 And yet, in the face of what has been now demonstrated — the facts in the Perth claim being of the most recent 
 occurrence, and, as might be supposed, fresh in the remembrance of the Noble and Learned Lords who advocated the 
 restoration of the Perth family to their ancient honours, it has been denied (in the conversation here remarked upon) that the 
 preceding Forfeiture was an Attainder by Parliament ; it has been represented that that Forfeiture was a mere Decreet by an 
 ordinary Court ; and a broad distinction has been drawn between such a Decreet and an Attainder by Act of Parliament — 
 such as the Noble and Learned Lords appear to consider the Act Rescissory of 1488 to have been, as affecting the Dukedom 
 
 of Montrose I % 
 
 The inference of the Lord Chancellor, built upon the preceding basis, with reference to the case of the Claimant, is 
 expressed as follows : — " A fortiori, if it was necessary to have an Act op Parliament here to reverse a Decree 
 " op Forfeiture in 1689 " (1695) " against the ancestors op the Duke de Melfort, it must be necessary to have 
 " an Act op Parliament in the case of an Attainder by an Act op Parliament in Scotland :" — in other words, ' if 
 ' it was necessary to have an Act of Parliament to reverse the Decreet of Forfeiture passed by a mere ordinary tribunal, and 
 ' not by Parliament, in the Melfort instance, it must be still more necessary to have an Act of Parliament to reverse the Act 
 ' Rescissory passed, not by a mere ordinary tribunal but by Parliament, in 1488, in the case of the Dukedom of Montrose :'— 
 
 While Lord Lyndhurst, on its being represented by the Attorney-General that the distinction taken by the Lord 
 Chancellor and by the Noble and Learned Lord did " not really touch the case," and finding it necessary to admit (with 
 that Learned Gentleman) that the Act Rescissory was not an Act of Attainder against the Duke of Montrose, retired upon the 
 position that the Act Rescissory was an Act " annulling a former Act,"— that is (if I understand it rightly), representing 
 
 * Recorded in the Great Seal Register. 
 
 f This Act is printed in extenso at the conclusion of this Note, infra, p. L. 
 
 X Elsewhere, indeed, as at the close of the conversation here commented upon, and by the Officers of the Crown themselves, 
 it is distinctly admitted and enforced that David Duke of Montrose was not forfeited or attainted. 
 
 H 
 
LII ADDRESS TO THE QUEEN. 
 
 IV- 
 
 Naeeative ajtd Inquiry, illusteating the origin and extent of the Jurisdiction of the Court 
 OF Session in civil causes, including Peerages, previously to the Eevolution of 1688 
 AND THE Union; the rights of the Court and of the Subject as affected by the 
 Treaty of Union; and the origin, growth, and character of the intervention of the 
 House of Lords (whether as an Appellate Court or as acting on reference from the 
 Crown) in Scottish Cases : — Referred to supra, pp. xix, xxiv, xxx, sqq. ; Analysis, infra, 
 pp. xliii sqq., Ivi sqq. ; Speeches, pp. 365 sqq. 
 
 Having affirmed before the Committee of Privileges and in the preceding Address to Your Majesty, that the Lords of 
 Session, the Supreme Civil Court of Scotland, were invested with plenary authority in Peerage matters, by inherent right, 
 without appeal to King or Parliament, previously to the Union ; and that in that capacity they adjudged in 1648, finally and 
 conclusively, in favour of the Glencairn patent of 1488 as not affected by the Act Rescissory,— a judgment which stands and 
 rules at the present moment, and from which inferences of the highest importance in support of my fether's claim necessarily 
 follow — all of which was distinctly proved by evidence before the Committee in the recent claim : — (But in opposition to which 
 affirmation and proof the Committee have decided, on purely speculative grounds and without impeaching the Claimant's 
 evidence, to the effect — as gathered from the Speech of Lokd St. Leonards — that, as it is the usage in 1853 for claims to 
 Scottish peerages to come, somehow or other, before the House of Lords for decision, and as there is nothing in the Treaty 
 of Union to deprive the Court of Session of any jurisdiction which it may have possessed over peerages previously to that 
 Treaty, therefore, 1. The jurisdiction in question must be presumed to have been vested previously to the Union, not in the 
 Court of Session, as affirmed by the Claimant, but in the Scottish Parliament, from which the (British) House of Lords con- 
 sequently derive their present jurisdiction ; and, 2. The Court of Session had no authority to decide, as it is admitted they did 
 decide, in favour of the Glencairn patent in 1648, and the Committee is justified in disregarding that decision and refusing the 
 benefit of it to the present Claimant) :* — And, 
 
 Having further affirmed in the preceding Address to Your Majesty, that the ancient and hitherto unquestioned 
 right and privilege of the Court of Session of adjudging in peerage claims, irrespectively of reference from the Crown, as 
 enjoyed before the Union, was (effectually) reserved to the Court by the Treaty of Union, and has been exercised since the 
 Union ; that the right and privilege in question, although for some time dormant, is still inherent in that Court ; and that 
 the Court of Session is thus emphatically a proper and competent judicatory in cases of Scottish peerage law, — while the right 
 of the Subject to resort to that judicatory is moreover equally reserved by the Treaty of Union, — 
 
 I have therefore thought it expedient in itself, as well as respectful to Your Majesty, to gather into one succinct narra- 
 tive, to be appended to the preceding Address, for Your Majesty's convenience and behoof, the proofs on which I rely in 
 vindication of the preceding propositions, — proofs which, as regards the authority of the Court of Session previously to the 
 Union (all that concerns the Claimant's argument in support of the actual subsistence and validity of the Montrose patent), are 
 elsewhere to be found in the present volume, as (for the most part) adduced and urged before the Committee of Privileges ; 
 but which, as regards the authority of the Court of Session subsequently to that era, the legal position of the Court of Session 
 and of the Subject with reference to the Treaty of Union, and the origin, growth, and competence of the intervention of the 
 House of Lords in Scottish cases, are for the most part the result of subsequent inquiry. 
 
 I. Tlie Court of Session supreme, without appeal, in all civil actions till the Revolution of 1688. 
 
 The authority of the Court of Session as supreme in all civil actions, without appeal to King or Parliament, rests on the 
 following statutes, passed respectively in the reigns of James I., James IL, James III., James IV., and James V., Kings of 
 
 Scotland : 
 
 1. The Act of James I., 12th March 1424, " anent billis of complayntis, the quhilhis may not be determynU he tlie Par- 
 
 " liament,"— ordaining that they " be executand determynit be the Jugis and Officiaris of the Courtis toquham thai 
 " perten of law," that is, by the judges ordinary,— recourse to be had " to the King " " gif the Juge refusis to do 
 " the law evinly,"t or, in other words, pervert justice, for the purpose of punishment of such judge ; but without 
 any further redress or remedy in " dubious cases, where," to use Lord Stair's words, " just and rational men may 
 " be of different judgments."J 
 
 2. The Act of James I., 11 th March 1425, constituting the Lords of Session, or Lords of Council and Session, the 
 
 Supreme Civil Court, whose powers were afterwards transferred to the present Court of Session ; and which is to 
 consist ofthe Lord Chancellor and " certane discret personis of the Thre Estatis, to be chosyn ande depute he 
 " Oure Soverane Lorde the King,"— and who are empowered, as a court of last resort, to " knaw, examyn, 
 " conclude, and finally determyn all and sindry complayntis, causes, and querellis that may be determynit befor the 
 " KingisConsal."§ ^ 
 
 * y'^t 'f''' P; f ='' °- t- + Acts of Parliament, last edit., vol. ii. p. 8. 
 
 % I-nstttuttons of the Law of Scotland, B. iv. Tit. i. § 5. § Acts, vol. ii. p. 11. 
 
ADDRESS TO THE QUEEN. T^ni 
 
 3. The Act of James II., 6th March 1457, defining and enlarging the power of the Lords of Session ; and whereby, 
 
 after various provisions, it is ordained, that " all uthir causes pertenande to the knawlege of the saide Lordia 
 " sal be utterly deddyt and determynit he thame, but (without) ony bemeide of appei/LAcioke to the King 
 
 " OR TO the PaBWAMEHT." * 
 
 4. The Act of James III., 20th November 1475, "anentthe administracione of justice in civile actions and complantis," 
 
 by which " it is statut and ordanit that al partijs complenzeand sal first pass to thare Juge ordinar and persew 
 " justice, and that the ordinaris sal minister thaim justice without parcialite or sleuth ; and gif ony Juge failzeis in 
 " his oSice and ministracione of justice, than the partij sal cum and plenze (complain) to tfte King and his Counsall 
 " upone the Juge and in lik wis on the partij ; and in that case thai sal have summondis bath on the Juge and the 
 " partij to compeir befor tlie King and his Console and thare have justice and reformacione." f — By which, 
 observes Lord Stair, " it is clear that the establishment by the Session was altered, and returned to the King and 
 "Council: but there is no mention or provision of any remeid against sentences of the King and his 
 " Council."! 
 
 5. The Act of James IV., 20th March 1503, by which " ane Consale chosin be the Kingis Ilienes," and called the 
 
 Daily Council in distinction from the Privy Council, is ordained to " sitt continually in Edinburgh, or quhar the 
 " King makis residence, or quhar it plesis him, to decide all maner of summondis in civile materis, complantis, 
 
 " and causses, dayly, as thai sail happin to occur, and sail have the samin powee as the Lobdis of Sessiodn." 
 
 Acts, vol. ii, p. 249.—" And so," adds Lord Stair, " their decreets became tinal, without appellation to King 
 " or Parliament." § — And, lastly, 
 
 6. The Act of James V., 17th May 1532, constituting the College of Justice, or existing Court of Session, " for 
 
 " the doing and administracioun of justice in all civile actions," and by which it is decreed that their " processes, 
 " sentences, and decretis sail have the samin strenth, foecb, and effect as the deceeti8 op the Lobdis of 
 " Sessioun had in all tymes biganb," II — that is, that they should be final, " but (without) ony remeide of appel- 
 " lacione to the King or to the Parliament," ut supra. In addition to which the King further engaged, in his 
 Ratification of this Act on the 10th July, " that we sail not, be ony private writing, charge or command, at the 
 " instance of ony person, or desire them " (the Lords of Session) " to do utherwaies in ony mater that sail cum before 
 " them, bot as justice requiris ; or to do ony thing that may breake statutes maid be them, at our command, and 
 " doing of justice. Als (also) wee sail authorize, mainteine, and defende all the saidis Lordes their persones, landes, 
 " and gudes fra all harme, wrang, hurte, and injurie to be done to them be ony maner of person, — and wha that dois 
 " in the contrair sail be punished with all rigour. And because the saidis Lordes, chosen upon our Session, presentis 
 " our person and bearis our authoritie in doing of justice, wee sail have them, baith spiritual and temporal, in 
 " special honour and maintenance. And wee sail give na credence to ony man that will murmure them, or ony of 
 " them, be doing of wrang or inhonestie ; bot they sail be called before us, and gif they be foundin culpable, to be 
 " punished therefore after the qualitie of the fault and demerite ; and gif they be foundin cleane and innocent, the 
 " person compleening sail be punished with all rigour, and never to have credite with us again." ^f 
 
 The institution of the College of Justice, with the above-mentioned powers, by James V. and Parliament, was con- 
 firmed by the Pope, Paul III., in 1534. And its privileges were confirmed by all the subsequent Kings and Queens of 
 Scotland till the accession of James VII., in 1685. 
 
 That the authority and final jurisdiction thus conferred upon the Court of Session " in all civile actions " was practically 
 enjoyed and exercised by the Court till the year 1674, and afterwards till the Revolution of 1688, appears from the testimony 
 of Lord Stair, the highest authority in the law of Scotland, to the effect that " much more was established by express law for 
 " the Session than for any other judicature, their sentences being declared final, and without remeid by appellation to the King or 
 " Parliament,"** a statement which he repeats /JossiTO throughout his ' Institutions ;' and that, " by the institution of the Col- 
 " lege of Justice, . . the Senators of the College of Justice had the same power and authority that the Lords of Session and the 
 " Daily Council had before ; and so their final sentences were ultimate, without appealto King or Parliament, appeals then being 
 " in vigour and observance, but did absolutely become in desuetude and cease by the institution of the College of Justice : " tt 
 — While he states, in reference to an attempted but ineffectual appeal to Parliament in the year 1674, that " the Parliament never 
 " sustained an appeal from the Lordis" of Session, " neither was there ever any reduction of their decreets sustained, except as to 
 " the title of honour betwixt Glencairn and Eglinton, which, with that Parliament " — which reduced it, during the usurpation, 
 in 1649 — " is simply annulled and rescinded " — by a special Act passed after tlie Restoration — " without any reservation." JJ 
 And it is stated by Lord Bankton, that ^^ before" the " Claim of Right" in 1689, " neither appeals nor protestations for 
 " remedy of law were thought to be competent against tlie judgments of the Court of Session. And for insisting upon it," he 
 adds, " as the privilege of the subjects to have relief from the Parliament against the decrees of the Court of Session whereby 
 " parties thought themselves aggrieved, the most eminent lawyers of the last age " — that is, in 1674, the period above noticed 
 — " were debarred by the Lords of Session from the exercise of their office ; and which procedure was approved by the King; 
 " and the outed advocates were not readmitted till they made submission to the Lords, and obtained the King's consent to 
 " that purpose," §§ — with which the statement of Erskine, elsewhere quoted in this volume, |||| substantially agrees,1I"Il supersed- 
 ing the necessity of repetition. It may be added that the Parliament itself (except during the brief interval of the usurpation) 
 repudiated the character thus sought to be fixed upon it. In 1641, on being petitioned by the Earl of Glencairn to act judi- 
 cially in the case between himself and the Earl of Eglinton, the Estates declined to do so, and referred him " to anie judge 
 " competent." *** And Sir George MacKenzie, Lord Advocate to Charles II., states that " the Parliament in 1661 did, by 
 
 * Acts, vol. ii. p. 48. f I^^^-t P- HI- t Iristitutions, B. IV. Tit. i. §15. § Ibid., § 18. || Acts, vol. ii. p. 335. 
 
 ^ Acts, edit. Glendoick, p. 121. — This Act was misdated 1537 in the early editions of the Acts of Parliament, and is referred 
 to accordingly under that date in the early Scottish institutional writers. The true date is apparent from that of the ratification by 
 James V., " subscrived . . . with our hande at our castel of Striveling, the tenth day of Junij, and of our reigne the nineieene zeir." 
 
 ** Institutions, B. iv. Tit. i. § 61. ft Ibid., § 55. tt Decisions, vol. ii. p. 263. 
 
 §§ Institutes, vol. ii. p. 513, edit. 1751. |||| Vide infra, p. 254. 1111 Institute, B. I. Tit. iii. § 2. 
 
 *** Their 'Deliverance' is printed in the Appendix, infra, p. 431. 
 
LIV ADDRESS TO THE QUEEN. 
 
 letter to the King, ia " a case betwixt Sir Thomas Hamilton and Alrud, deelare that there could be no appeal from the 
 " Loids of Session."* 
 
 The Kings of Scotland had thus divested themselves of the prerogative of the personal administration of justice " in 
 " all civile actions " in favour of the Court of Session ; f and each successive monarch steadily maintained its independence.! 
 
 II. Civil actions included questions of peerage and precedency. 
 
 That the authority conferred upon the Court of Session of deciding finally and without appeal " in all civile actions" 
 included jurisdiction over questions of peerage and precedency, appears alike from reason, principle, and practice. 
 
 Independently of the fact that peerages and precedency are classed by Blackstone and other authorities under the civil 
 jurisdiction, and that there is no other general division of rights, either in Scotland or England, under which they can possibly 
 
 » Works, vol. i. p. 198. Vide infra, p. Ivi.— Erskine, the celebrated Scottish institutional writer, states in his Institute, that 
 " it may be doubted whether " the Parliament " had any original civil jurisdiction, for the decisions in Parliament mentioned in the Act 
 " 1587, cap. 39, are probably to be understood mly of decisions upon appeal." B. I. Tit. iii. § 2. This passage is cited mfra, pp. 221, 
 254, by the Lord Advocate, in support of his view that an appeal lay to Parliament from the Court of Session. And in a recent 
 Appeal case (Shedden v. Patrick), Lord St. Leonards observed, with reference to a particular point in that case, and in accordance 
 with his views and opinion expressed on the present or Montrose case, that "At the time of the Scottish Parliament"— \. e. before the 
 Union — "■ the Appeal would he from the Exchequer to that Parliament, and me succeed that Parliament " — To which the (Scottish) 
 Counsel for the Respondent replied, " Yes, the statute 1587, c. 39, seems conclusive on that point." Scottish Jurist, vol. xxvi. p. 423.— 
 It is perhaps unnecessary to make any comment upon these passages, after the exposition in the text ; but I may state succinctly, 
 /while protesting against Lord St. Leonards' assumption that the House of Lords does succeed the Scottish Parliament,) 
 
 1. That the Act 1587 {Acts, vol. ii. p. 443, last edition) does not prove, either directly or inferentially, that an Appeal lay 
 
 from the Exchequer, or from any other Court, to the Scottish Parliament previously to the Union, as affirmed by the 
 learned Counsel. 
 
 2. That the Act 1587 was passed with immediate reference to an Act of the 22nd May 1584 {Acts, last edit., vol. iii. p. 297), 
 
 and the two Acts relate solely to the criminal jurisdiction of Parliament, proceeding upon the narrative that it had been 
 the usage, since the death of James V. in 1542, for processes of forfeiture for treason pronounced by Parliament to be 
 annulled by the Courts of Law, or by what is called an " inferior judge," on proof of nullities in the processes, to remedy 
 which " abuse " the statutes in question are {inter alia) directed. (°) And in further proof that the Act ] 587 has exclusive 
 reference to the criminal jurisdiction of Parliament in forfeitures, I may refer to Sir George MacKenzie's ' Laws and 
 ' Customs of Scotland in Matters Criminal,' pp. 183 sqq., edit. 1699. While, the Act 1587 having been passed expressly 
 for the purpose of restoring " the anncient ordour, dignitie, and integritie," " the forme, honor, and majestic," of the 
 " Supreme Court of Parliament," it stands to reason that if Parliament had possessed any original ciW jurisdiction, the 
 restitution of that jurisdiction would have been provided for by such a statute. And, finally, 
 
 3. That, so far from Parliament reviewing the decisions of other judicatories on appeal, as supposed by Lord St. Leonards 
 
 and the learned Counsel, it thus appears from the Act 1587 that the decisions of Parliament itself in criminal cases (to 
 which they were undoubtedly competent) had been (practically) reviewed by the Courts of Law previously to that year. 
 
 The Claimant has elsewhere shewn, in the case of Kirkaldy of Grange, forfeited in 1546 and restored absolutely and un- 
 qualifiedly ;)»• modum justiti(B by Act of Parliament in 1564, that the Parliamentary restoration was insufficient to reinstate him in 
 his inheritance without a regular legal process or action before the Court of Session, based on the Act of Rescission 4th June 1564, 
 and ending in a Decreet 19th January 1564-5, by which he was reponed and restored in integrum, and an intermediate Royal grant 
 to a stranger annulled. The fiat of the Court of Session was thus actually necessary to give effect to an Act of Parliament, even in 
 a case involving forfeiture for treason and rescission of such forfeiture. — Supplemental Case, p. 109. 
 
 t The Court of Session accordingly, on the 13th June 1533, decided that every privy writing of the King, addressed to them, 
 that should be contrary to the administration of justice, or that " hinderis and postponis the samin," should be discharged, or rejected. 
 On the 15th December 1569, they found, by a concurrent judgment, that no attention was to be paid to " private writings" of the 
 Sovereign, addressed to the Lords of Council, in favour of an individual, commanding them to desist from proceeding in an action, 
 but that they should duly discuss and determine it, " because the administration of justice should not be stoppit be the Kingis privie 
 " writings." Balfour's Practicks, p. 267. All this was in due conformity with the Ratification 10th July 1532, cited supra. And in 
 ] 588 they entertained the litigation for the Earldom and honours of Angus, in ordinary course, at the instance of James VI., as a 
 common suitor against a counter-claimant ; and James, observes Mr. Kiddell, " by his actual presence at the decision, and deference 
 " to it, plainly admitted and recognised their jurisdiction." Peerage and Consistorial Law, p. 316. 
 
 % Charles II. indeed endeavoured to resume the original judicial cognisance of the Crown by an Act of Parliament passed 
 on the 16th September 1681, enacting that, notwithstanding former legislation, "His Sacred Majesty may by himself, or any 
 " commissionated by him, take cognizance and decision of any cases or causes he pleases." Acts, vol. viii. p. 352. — ^But this Act 
 was formally repealed after the Revolution {Convention of Estates, 1689, c. 13), in consequence of which things returned to their 
 original state {Erskine's Institute, B. i. Tit. iii. § 1 ; Biddell's Peerage and Consistorial Law, p. 320), — and, in the words of the latest 
 authority upon the subject of the Courts of (Scottish) law, " it is now unquestionable law, not only that " the King " cannot personally 
 " exercise the judicial power in the proper Courts of Law, but that he cannot, without the consent of the Estates in Parliament, 
 " delegate a jurisdiction to any Courts different from those which have been used and established." — Glassford's Constitution and 
 Procedure of the Scottish Courts of Law, p. 93. 
 
 (°) Both Erskine and the Learned Gentlemen above men- It is hardly necessary to observe that the words " na decisionis 
 
 tioned have probably been misled by the language of the Act. " past in Parliament betuix pairtie and pairtie," &c. relate ex- 
 
 The paragraphs referring to the matter here in question are as clusively to forfeiture or treason (which is the only subject or 
 
 follow : — matter of law specifically before mentioned), according to the 
 
 " Item, that na advocat nor preloquutor be onywayes stoppit principle that general words following a previous specification 
 
 ' ' to compeir, defend, and reasoun for onie persoun accusit in Par- fall to be controlled and explained by it : — While, in cases or pro- 
 
 " liament for tryssoun or utherwys ; but that quhatsumever pairtie cesses of forfeiture (to which Parliament was competent), the 
 
 " accusit sal have full libertie to provide himselff of advocattis Crown as pursuers, and the prosecuted individuals as defendei-s, 
 
 " and preloquutouris in competent number, to defend his lyff, were indubitably " pairtie and partie," or respective parties, 
 
 " honor, and land, aganis quhatsumevir accusatioun ; seingthe before Parliament, and hence clearly comprised in the relative 
 
 " intenting thairof sould not prejuge the pairtie of all lauchfuU words of the Act 1587. In proof of this, and that the form of 
 
 " defenssis, as gif it wer pro confesso that the accusatioun wer proceeding in criminal cases before Parliament was precisely the 
 
 " trew : — Annulling all actis maid in the contrair ieirof of befoir. same as in ordinary civil cases before the Court of Session, I may 
 
 " Na foirfaltoris lauchfullie and ordourlie led in Parliament, nor refer to the Decreet of Forfeiture of the Earldom of Dunbar, in 
 
 " na decisionis past in Parliament beiuix pairtie and pairtie be proces M^i, Acts of Parliament, vol. ii. p. 23 ; to the Process of For- 
 
 " efter cognitiounof the caus, sal be callit in questimm be ony inferior feiture of John Earl of Ross and Lord of the Isles, in 1475, ibid., 
 
 "juge." pp. 108 sqq. ; and to the Records of Parliament passim. 
 
ADDRESS TO THE QUEEN. LV 
 
 fall,* the principle is affirmed in the broadest manner by King Charles II., in his Letter to the Court of Session, 16th June 
 1679, respecting the dispute for precedency between the Earls of Lothian and Roxburghe; wherein he states that " all questions 
 " of Zflzo and ng'/ii" belong to their jurisdiction, including matters " of nohility and honour" and commands them to award 
 the precedence " to him who by law has right and ought to havb it." f Parliament itself, as has been partly stated, 
 refused to entertain the question of the Glencairn and Eglinton precedency in 1641, as not " competent " thereto. The Lords 
 of Privy Council, that arbitrary and despotic tribunal, in a letter to James VI., 18th May 1613, intimate their " refuisall " to 
 interfere in the matter of the succession to the Earldom of Eglinton, declaring that sucJi " disputationis " were neither "proper 
 " nor competent to be handlit in this judgment (judicatory/); hot behooffit to abtde be the course of law iu the 
 " ORDiN AR judgement OF THE Sessiojt " — i. c. the Court of Session.^ And by the Decreet of Ranking, by a Royal Com- 
 mission appointed by James VI., in 1606, for settling the precedency of the nobility, the precedency awarded is ordained to 
 " stand in full force and effect " in each individual instance, " ay and whill (until) ane Decreet before the ORDHfAiE Judge 
 " he recoverit and obteanit in the contrair," — in accordance with which the right of dissatisfied parties " to have recourse to 
 
 " THE OKDINAR REMKED OP LAW BE REDUCTIOUN BEFORE THE LoRDS OF CoUNSELL AND SeSSIOUN " is exprCSsly reserved tO 
 
 them. § 
 
 And, practically, from the first institution of the Court of Session till the Revolution, the Court of Session figures in all 
 cases of honours as the legal and correct tribunal, and the decisions of the Court, when pronounced, are obeyed throughout t/ie 
 land as final and conclusive — with not a single instance of the decision by Parliament of a peerage claim or of a question of 
 precedency. The cases of the Earldom of Morton in 1542, i| of the Earldom of Arran (as granted to Stewart) in 1586,1f of the 
 Earldom of Angus in 1588,** of the Earldom of Eglinton in 1613, ft of the Earldom of Lothian in 1631, JJ of the Earldom 
 of Strathearn in 1632-3, §§ of the Barony of Oliphimt in 1633, {|| of the Earldom of Home in 1633-4, ^% of the Glencairn and 
 Eglinton precedency in 1610, in 1617, and in 1637-48,*** of the Sutherland and Errol precedency in 1661 and 1671, fff 
 of the Barony of Coupar in 1671, JJJ of the Lothian and Roxburghe precedency in 1679, |||||| of the Earldom of Caithness in 
 1681, ^f^ and of the Barony of Lindores in 1685 **** — all of them decided or discussed in the Court of Session as 
 THE EXCLUSIVE, ULTIMATE, AND RULING JUDICATORY IN HONOURS — amply justify this proposition, tttf 
 
 * Vide infra, p. 366, n. 1|. 
 f Vide infra, p. Ivii. 
 
 t Vide infra, p. Ivii. — In like manner, on the 26th January 1682, the Privy Council remitted the claims of John Lord 
 Lindores and of Margaret Countess of Eothes to the Earldom of Rothes " to the Lords of Session, to be disgust by them as accordes 
 " OF THE law" (infra, -p. Ivii), — to " remit" implying technically in Scotland the handing over a cause to the competent judicatory, 
 as shewn infra, p. 1. See also Mr. Kiddell's ' Peerage and Consistorial Law,' pp. 37 sqq. — For a definition of the initiatory or 
 interim part occasionally taken in Peerage claims by the Privy Council, vide infra, p. Ivi. 
 § See the Appendix, infra, p. 418. 
 
 II The history of this case is given in the (Original) Montrose Case, pp. 76 sqq. / 
 
 «if Cited infra, p. Ivii. — See Riddell's Peerage and Consistorial Law, p. 7 sqq. 
 ** Litigated between James VI. and the heir-male, Douglas of Glenbervie, and awarded to the latter, who thereupon became 
 Earl of Angus. See Riddell's F. and C. Law, pp. 6, 322. 
 
 tt Vide infra, p. Ivii. ; and Riddell's P. and C. Law, p. 14. 
 XX Cited infra, p. Ivii. ; and see Riddell's P. and C. Law, p. 15. 
 §5 Cited infra, p. Ivii. ; and see Riddell's P. and C. Law, p. 16. 
 
 nil Cited infra, p. Ivii. ; and see the report of the judgment at p. 549 infra, and Riddell's P. and C. Law, pp. 17 sqq., 178 sqq. 
 ^^ Cited infra, p. Ivii.; and see also p. 538, n. *, and Riddell's P. and C. Law, p. 15. 
 
 *** Discussed at large infra, pp. xliii sqq. ; and seethe successive Decreets, &c. of the Court of Session in the Appendix, 
 pp. 420 sqq. 
 
 f tt Cited infra, p. Ivii.; and see Riddell's P. and C. Law, pp. 20, 143. 
 XX% Cited infra, p. Ivii. ; and see Riddell's P. and C. Law, p. 20. 
 mill Cited infra, p. Ivii.; and see Riddell's P. and C. Law, pp. 21 sqq., 77 sqq. 
 T^lf Cited infra, p. Ivii.; and see Riddell's P. and G. Law, pp. 29 sqq. 
 **** Cited infra, p. Ivii. 
 
 tttt Eor the exceptional instance of an (attempted and inept) prosecution of a Peerage claim before Parliament — that by David 
 Lindsay of EdzeU, claiming the Earldom of Crawford, in 1685— but which was peremptorily quashed and abandoned, insomuch 
 that not a vestige of it is to be found in the records of Parliament, vide infra, p. Ivii., and Riddell's Peerage and Consistorial Law, pp. 
 24 sqq., 967 sqq. 
 
 I may add that the Act of Parliament, 1587, " aganis querrelling for prioritie of place or vote in Parliament," cited by the 
 Lord Advocate, infra, p. 221, far from having the effect attributed to it by the Learned Gentleman, viz. that of " putting questions 
 ■" of peerage within the jurisdiction of Parliament," commands the discontented peers to abstain from controversy and " content 
 " thame with the ordor and directioun of His Hienes and his saidis Estaitis ay and quhill (until) thair finall decisioun of contraversie," 
 i. e. until the final decision of their controversies— noi by Parliament (according to the inference of the Learned Gentleman), but by 
 a tribunal which is not specified in the Act, but which is constituted by the statute immediately subsequent, entitled a " Commissioun 
 " anent prioritie of places and voiting in Parliament," and which practically refers the decision to the judgment of the Earl Marischal 
 (head of the Court of Chivalry and Arms), with the assistance of the Lord Lion King-at-Arms, and a few public dignitaries, &c. 
 Acts of Parliament, vol. iii. pp. 443, 444. It was doubtless considered expedient by Parliament to add legislative authority (as in 
 many other instances) to the Commission in question — but, singular to say, the Act of 1587 had reo resiiK w/rateer. No discussion 
 followed in terms of it, no ranking, no Decreet of Precedency — it proved a mere brutum fulm^n, null and void, ab initio ; and it was only, 
 at last, by resorting to the ordinary and approved legal course, through the celebrated Decreet of Ranking in 1606, issued by a 
 Commission appointed — not by Parliament, but by the King and Privy Council, with " the ordinair judge" or " the Lords of Comisell and 
 " Sessioun," alone, as legal umpires in doubtful or disputed cases, that the object of the legislature was, for the first time, put in due train 
 and execution— (/"'fo to *^^ exclusion of Parliament, who were absolutely ignored and disregarded, and had no voice or concern in the matter. 
 The Lord Advocate's view of the effect of the Act of 1687 is thus wholly erroneous and untenable. 
 
 The only cases in which matters connected with rights to peerage are alleged to have been dealt with by Parliament pre- 
 viously to the institution of the Court of Session in 1532, are those of the restoration of Lord Drummond to his forfeited dignity 
 by the Regent Albany, with advice of the Three Estates, in 1524 (Acts of Parliament, vol. ii. p. 284) ; the declaration of the right of 
 Sir Henry Sinclair to his grandfather's and his father's barony of Sinclair, in 1488 (ibid., p. 213) ; and the annexation of the Earldom 
 of Orkney to the Crown, in 1471 (ibid., p. 102). Duke of Montrose's S. Case, p. 8. — But the first of these instances is a case of resto- 
 ration by a Regent against forfeiture, in exercise of the prerogative of remission possessed by the Scottish sovereigns, as demonstrated 
 by the Claimant infra, p. Ixxxix ; the second is a mere confirmation to a party of the dignity of his ancestors, proceeding upon no 
 claim or question between parties, and occasioned probably by peculiar family circumstances ; and the third involved the fief and 
 lands, and there was no claim by any party. None of these cases were questions of peerage — no claim to the honours being raised or 
 
LVIII ADDRESS TO THE QUEEN. 
 
 " murmuring- against the Lords " — to point out and explain the several cases in which protestations are or are not competent 
 from the Court to Parliament, for the information and safety of such individuals. 
 
 The cases in which protestations are competent he states to be — 1. Those wherein the Lords may have determined 
 " beyond and without the authority given them by the King and Estates in Parliament — for they have but a limited juris- 
 " diction ;" * and, 2, Those wherein they may have reduced or altered " their own decreets in faro contradictorio upon 
 " iniquity, wherein," he states, " they have no jurisdiction, because they are fundi officio, — their decreets are declared final 
 " and ultimate, without any remedy by appellation to the King or to Parliament, appellation being then the ordinary remedy ; 
 " and if there be no appeal to the King or to the Parliament, but that their solemn sentences be final, there is no pretence 
 " for themselves to reduce the same." 
 
 Protestations, on the other hand, are " never to be allowed where an ordinary " remedy " is competent, and therefore" 
 are " never to be allowed where the Lords, by their authority, can give remedy of law." And '' that the meaning of the 
 " Estates in the Claim of Right should be understood to be that parties, in their humour, at their pleasure, might protest for 
 " remeid of law by the Parliament upon alledgance of injustice in matters proper to the Lords' jurisdiction, can hardly" 
 (he adds) " be supposed," and for these reasons : — 
 
 i. That " if protestations be admitted in this case to any one, it must be equally to all, seeing there is no ground of 
 " distinction, — and then farewell," he exclaims, " all honour, deference, or respect to that judicature which hath 
 " been in great reputation both by natives and strangers since the institutions of the College of Justice, — so that, 
 " in that case, no murmuring against them can be the least fault, albeit they represent the King's person and bear 
 " his authority, and have been acknowledged as the supreme judicature in all causes civil (Pari. 1661, cap. 23), 
 '' and the supreme judges under his Majesty in all causes civil (Pari. 1661, cap. 50)." 
 
 ii. That " if, upon pretence of iniquity, the sentences of the Lords be at all recognoscible in Parliament, it would 
 " require perpetual Parliaments: for all causes behoved to be pleaded of new before the Parliament, which 
 " yet have no fixed time of their sitting ; and if they should, would make an untollerable burden of expences upon 
 " the nation." 
 
 iii. That " the rights and interests of the nation will be more secured by the determination of judges who have 
 " devoted their lives and studies to meditate on and understand, not only material justice, the common rule of 
 " the world, but also the particular statutes of this and neighbouring nations, and who are censured if they go 
 " out of the bounds of discretion," than by that of " the Parliament, the greatest part of the members whereof 
 " (without the least derogation to their honour, natural abilities, and faithfulness) cannot be so qualified, nor are 
 " they censurable for anything they shall do." 
 
 iv. That " if the sentences of the Lords of Session be recognosced in Parliament," it will be "impossible to terminate 
 " pleas ; and so no one can say that any right he hath or can have may be secure," — for, whereas " all ordinary 
 " judicatures are at an end in determining rights, and are punishable if they bring the matter again in 
 " question," this " is not possible to be in the decreets of Parliament; because the Parliament can never 
 " exclude the full liberty of themselves or of their successors, no more than persons can by one resolution secure 
 " that they cannot resolve the contrary ; and therefore the same Session of Parliament may judge that to be 
 " unjust that it judged to be just, and contrarywise, as oft as they will, — and much more many different 
 " Parliaments ; for whatever a Parliament can do at one time in making of law or determining of causes may be 
 " at their pleasure abrogate or derogate." 
 
 V. That " such protestations upon account of injustice would at once unhinge the most solemn sentences of all the 
 "judicatures of the nation." — And, 
 
 vi. That, it being " a great and common interest, that men's rights ought to be determined, not alone by the laws 
 " standing when the determination is, but by the laws that were standing when the rights were acquired, or the 
 " deeds done, although thereafter those laws were abrogated," " therefore, seeing the sentences of the Lords 
 " of Session at the first institution were declared to be final, without appeal to King or Parliament, and the 
 " same power was given to the King's daily Council, and again the same power was given to the Senators of 
 " the College of Justice,'' " the sentences given conform to those laws " cannot be " altered or reduced while 
 " those laws are standing." \ 
 
 4. Such therefore being, according to this great authority, the nature and extent of the concession established by the 
 Claim of Right, it remains only to point out that the concession in question is checked and controlled by a most express and 
 stringent condition, protective of the Court of Session, viz., " Providing the same" — i. e. the protestations — " do not stop 
 " execution of tliese sentences" which are protested against, — a provision which may be held to detract from the force and 
 effect of such protestations, and which most certainly, under any point of view, could not he legally altered or departed from 
 without an express Act of Parliament, reciting and rescinding it — which, it will appear, never took place. 
 
 I may be permitted to commend the preceding observations and exposition (thus far) to Your Majesty's gracious 
 consideration, — the concession in the Claim of Right above commented upon being, as I have already stated, the sole 
 foundation and statutory authority that is alleged for the jurisdiction at present exercised by the House of Lords as an Appellate 
 Court in Scottish causes. 
 
 Matters continued in this undefined, chaotic, and unsettled state with regard to protestations, till the Union of the 
 Kingdoms in 1707 — no further intervention of Parliament having taken place during the interval. While, with respect to 
 peerages, the Court of Session continued to act as previously, with clear recognition of their jurisdiction on the part of the 
 Parliament, as illustrated in the case of the Earldom of Kincardine (presently to be mentioned), decided on the 28th March 1707. 
 And Lord Mansfield states explicitly, in his Speech on moving the Resolution in the Cassillis claim in 1762, that " in 1706 " 
 
 * On this ground, alone, his Lordship elsewhere states that " protestations for remeid of law . . were claimed " by the Claim 
 of Eight, and " very justly." For " there is no question the Lords of Session may exceed their jurisdiction, and there is no other 
 " judicature that can control the same, or warrantably judge therein, save only the Parliament. And therefore parties grieved 
 " may protest that they acquiesce not in such sentences, and may protest for remeid of law by the Parliament, albeit such pro- 
 " testations are never mentioned in our law before." — Institutions, B. iv. Tit. i. § 1. f Ibid., B. iv. Tit. i. § 52 sqq.' 
 
ADDRESS TO THE QUEEN. LIX 
 
 the year before the Union, when a question of precedency (alluded to by the Noble and Learned Lord) was discussed by 
 them, " the Court of Session had then most certainly a competent jurisdiction,"* — while he equally recognises their com- 
 petency at that period to " determine the pmnt" alluded to, in readverting to it in his Speech on the Sutherland claim 
 in 1771. And he otherwise, in the latter Speech, fixes the period fiom which the interference of the House of Lords in 
 ' peerages must date as '' since the Union."i 
 
 IV. The Treaty of Union (effectimlli/) reserves to the Subject his right to pursue his claim to all civil rights {without 
 exception and including dignities) hy Declarator before the Court of Session, and to the Court of Session 
 its entire authority and privileges as established by the laws of Scotland and existing at the time of the Treaty ; 
 which respective right, authority, and privileges — no statutory enactment having been made by the Parlia- 
 ment of the United Kingdom, neutralising or abrogating them — are hence inherent in the Court of Session 
 and in tlie Subject at the present day. 
 
 The Treaty of Union between the two nations and kingdoms of England and Scotland was ratified by the Scottish 
 Parliament on the 16th of January, by the English Parliament on the 4th of March, and received the assent of the 
 Sovereign on the 6th of March, 1707; and the Union was enacted to commence on the 1st of May in that year. The 
 Third, Eighteenth, and Nineteenth Articles of the Treaty of Union are as follows : — 
 
 " III. That the United Kingdom of Great Britain be represented by one and the same Parliament, to be styled 'the 
 " ' Parliament of Great Britain.' " 
 
 " XVIII. That the laws concerning regulations of trade, customs, and such excises, to which Scotland is, by virtue of 
 " this Treaty, to be liable, be the same in Scotland, from and after the Union, as in England ; and that all other 
 
 " laws in use WITHIN THE KINGDOM OF SCOTLAND DO, AFTER THE UnION, AND NOTWITHSTANDING THEREOF, REMAIN 
 
 " IN THE SAME FORCE AS BEFORE (exccpt such as are contrary to, or inconsistent with this Treaty), hut alterable by 
 " THE Parliament of Great Britain, — with this difference betwixt the laws concerning public right, policy, and 
 " civil government, and those which concern private right, "that the laws which concern public right, policy, and civil 
 " government may be made the same throughout the whole United Kingdom, but that no alteration be made in laws 
 " which concern private right, except for evident utility of the subjects within Scotland," 
 
 " XIX. That THE Coort of Session, or College of Justice, do, after the Union, and*otwithstanding thereof, 
 " remain in all time coming, within Scotland, as it is now constituted by the laws of that kingdom, and 
 " WITH THE SAME AUTHORITY AND PRIVILEGES AS BEFORE THE Union, suiject nevertheless to such regulations for tlie 
 " better administration of justice as shall be made by the Parliament of Great Britain ; and that hereafter none shall 
 " be named by her Majesty or her royal successors to be ordinary Lords of Session, but such who have served in the 
 " College of Justice as Advocates or principal Clerks of Session for the space of five years, or as Writers to the 
 " Signet for the space of ten years, — with this provision, that no Writer to the Signet be capable to be admitted a 
 " Lord of the Session, unless he undergoes a private and publick tryal on the civil law before the Faculty of 
 " Advocates, and be found by them qualified for the said office, two years before he be named to be a Lord of the 
 " Session, yet so as the qualifications made or to he made for capacitating persons to he named Ordinary Lords of Session may 
 " be altered by THE Parliament of Great Britain. And that the Court of Justiciary do also, after the Union, and 
 " notwithstanding thereof, remain, in all time coming, within Scotland, as it is now constituted by the laws of that 
 " Kingdom, and with the same authority and privileges as before the Union, subject nevertheless to such regulations as 
 " shall be rrMde by the Parliament of Great Britain, and without prejudice of other rights of justiciary. And that 
 " all Admiralty jurisdictions be under the Lord High Admiral, or Commissioners of the Admiralty, of Great Britain 
 " for the Time being ; and that the Court of Admiralty now established in Scotland be continued ; and that all reviews, 
 " reductions, or suspensions of the sentences in maritime cases, competent to the jurisdiction of that court, rtroain in 
 " the same manner after the Union as now in Scotland, until the Parliament of Great Britain shall make such 
 " regulations and alterations as shall be judged expedient for the whole United Kingdom ; so as there be alwise continued in 
 " Scotland a Court of Admiralty, such as in England, for determination of all maritime cases relative to private rights 
 " in Scotland competent to the jurisdiction of the Admiralty Court, subject nevertheless to such regulations and alterations 
 " as shall be thought proper to be made by the Parliament of Great Britain ; and that the heretable rights of 
 " Admiralty, and Vice-Admiralties in Scotland, be reserved to the respective proprietors as rights of property, subject 
 " nevertheless, as to the manner of exercising such heretable rights, to such regulations and alterations as shall be thought proper 
 " to be made by the Parliament of Great Britain. And that all other Courts, now in being within the Kingdom 
 " of Scotland, do remain, but subject to alterations by the Parliament of Great Britain. And that all inferior 
 " Courts within the said limits do remain subordinate, as they are now, to the Supreme Courts of Justice within the 
 " same, in all time coming. And tiiat no causes in Scotland he cognoscible by the Court of Chancery, Queen's Bench, 
 " Common Pleas, or any other Court in Westminster Hall ; and that the said Courts, or any other of the like nature, after tlie 
 " Union, shall have no power to cognosce, review, or alter the acts or sentences of the judicatures within 
 " Scotland ; or stop the execdtion of the same. And that there be a Court of Exchequer in Scotland, after the 
 " Union, for deciding questions concerning the revenues of Customs and Excises there, having the same power and 
 " authority in such cases as the Court of Exchequer has in England ; and that the said Court of Exchequer in Scotland 
 " have power of passing signatures, gifts, tutories, and in other things, as the Court of Exchequer at present hath ; 
 " and that the Court of Exchequer that now is in Scotland do remain, until a new Court of Exchequer be settled by the 
 " Parliament of Great Britain, in Scotland, after the Union. And that, after the Union, the Queen's Majesty and 
 " her royal successors may continue a Privy Council in Scotland, for preserving of publick peace and order, until the 
 " Parliament of Great Britain shall think fit to alter it, or establish any other effectual method for that end." % 
 
 It is thus provided, by the Third of the preceding Articles, that, whereas the Scottish and English nations have 
 hitherto been represented by two distinct Parliaments, those Parliaments shall cease to exist, and a new Parliament, to be 
 styled ' the Parliament of Great Britain,' and to be constituted in terms of the Treaty of Union, shall represent the United 
 Kingdom from the ensuing 1st of May 1707. 
 
 It is further provided, by the Eighteenth Article, that the laws of Scotland affecting "private right" shall 
 
 * See the Appendix, infra, p. 558. 
 
 f Vide infra, p. 365, n. §, and Mr. Maidment's Report of the Sutherland Claim, pp. 9, 10, U. 
 
 X Acts of Parliament, vol. xi. pp. 406 sqq., or 446 sqq. 
 
 I 2 
 
LX ADDRESS TO THE QUEEIST. 
 
 " remain" subsequently to the Union " in tlie same force as before" the Union, unless altered " by the Parliament of Great 
 "Britain;" and, by the Nineteenth Article, that the Court of Session (like the other Scottish judicatories) shall 
 retain " the same authority and privileges "which it possessed before the Union, as then " constituted by the laws of" 
 Scotland, " in all time coming" subsequently thereto, unless and until that authority and those privileges be modified or 
 affected by " regulations for the better administration of justice . . made by the Parliament of Great Britain .-"—The 
 " Parliament of Great Britain " being thus, in either contingency, the only legislature competent to effect any change in 
 the above particulars— nothing short of an express Act of the Parliament of the United Kingdom being competent to 
 innovate upon or change the state of things existing at the time when the Articles of Union were agreed to. 
 It thus necessarily follows, 
 
 1. That the right of the Subject to pursue his claim to all civil rights, without exception, before the Court of Session, 
 
 by Declarator and process, in the mode established by law and custom before the Union, is distinctly and effectually 
 reserved to him by the Treaty of Union. 
 
 2. That the entire "authority and privileges'' of the Court of Session, as established by the laws of Scotland before and 
 
 at the time of the Treaty of Union— that is, as supreme judges in all civil causes without exception, without appeal 
 to King or Parliament, and subject merely to a general right on the part of the subject of protestation for remeid 
 of law to the Scottish Parliament, expressly conditional upon the sentences of the Court taking effect in the interim 
 notwithstanding such protestation, and solely competent, according to Lord Stair, as " an extraordinary remedy " 
 in very peculiar cases, as above explained — are distinctly and effectually reserved, intact and intangible (except 
 under the conditions premised), to the Court of Session by the Treaty in question, the sentences of the Court 
 being thereby entitled to the same respect as formerly, without any review or counteraction by the English 
 authorities, or in England.* 
 
 3. That the reservation to the Court of Session of its entire " authority and privileges,'' as possessed before the 
 
 Union, necessarily includes the cognisance of the Court in peerage matters, as exercised in the due course of 
 their ordinary jurisdiction in civil causes up to the very moment of the ratification of the Treaty, and after- 
 wards. — And, 
 
 4. That any deprivation of authority or independence which the Court of Session may have sustained, whether by 
 
 usurpation of their cognisance in peerages or by indiscriminate allowance of appeals from their decisions in civil 
 causes generallyi'during the last 150 years, must have been without warrant, against law, and in violation of the 
 Treaty of Union ; and that the right of the Subject to pursue his claim to a peerage by Declarator before the 
 Court of Session, and the right of the Court of Session to adjudge upon that claim, must be inherent in the Subject 
 and in the Court of Session at the present moment, precisely as they stood established by law and custom previously 
 to the Union, and, although dormant, may still be lawfully exereis"d — unless " the Parliament of Great Britain," 
 the only competent authority, have interfered to limit or abrogate the respective rights under discussion. 
 
 The only question then that arises is a matter of fact, viz. Whether the independence of the Court of Session, as 
 constituted at the time of the Treaty of Union, and the jurisdiction of the Court in peerages, have been abrogated or affected 
 in any way by enactments of " the Parliament of Great Britain,'' in terms of the Treaty. The answer to this question is 
 simple and direct, — no such enactments have taken place. And therefore the independence and jurisdiction in question 
 remain now, in law, unaffected and entire, precisely as they stood on the 1st of May 1707. 
 
 This induction is additionally supported by practice in parallel cases, and in the identical case of the Court of Session. 
 While it is expressly provided (as above) by the Nineteenth article of the Treaty of Union, that the Court of Session, the Court 
 of Justiciary, the Court of Admiralty, and all other Scottish Courts existing at the time of the Union, shall " remain " 
 " in all time coming " " within Scotland " in the |)Ossession of their ancient "authority and privileges," and of national 
 and individual independence, as then enjoyed, unaltered and unalterable except by statutes of the Parliament of the entire 
 United Kingdom subsequently to be enacted — every privilege and cognisance enjoyed by them, one and all, standing and to 
 stand for ever, unless specially so annulled and superseded ; it is a fact of familiar notoriety that every successive modification 
 in the constitution of the Court of Justiciary, the Court of Admiralty, &c., and even of the Court of Session itself, has been 
 effected hitherto by legal and sufficient Acts of Parliament, in accordance with the above provision.f But so Act of the 
 British Parliament has either substituted a direct and indiscriminate appeal to the Bouse of Lords for the conditions under 
 which protestations for remeid of laiu to the Parliament were allowed in tlie Claim of Bight in 1689, or annulled the 
 ancient and inherent jurisdiction of the Court of Session in honours. And consequently, as nothing but express Acts of the 
 British legislature, specially annulling the previous rights of the Court of Session, could, as in the parallel cases adverted to, 
 have vested an Appellate jurisdiction in the House of Lords (exclusively of Parliament), and deprived the Court of Session of 
 its inherent jurisdiction in honours — ^the independence of the Court of Session in civil causes generally (except 
 as affected — if that shall turn out to be possible — by the conditions repeatedly above premised), and its jurisdiction ik 
 dignities, as exercised on the 1st of Mat 1707, remain, in every point of view — and cl fortiori as regards the 
 privileged and transcendent subject of honours — untouched and legally unimpaired at the present moment. 
 
 I need only observe, in conclusion, that the " omnipotence" of Parliament, to which weight has been attached by the 
 
 * Nothing, it is to be observed, is said or in the faintest degree hinted at or implied upon the subject of appeals in the 
 Treaty of Union, which is incomprehensible if, according to Lord St. Leonards and the Officers of the Crown who opposed my 
 father in the Montrose claim, it was in contemplation at the time to invest the Parliament of Great Britain with the power at 
 present claimed for it — but in reality exercised only by the House of Lords— of controlling, reviewing, and abrogating the procedure 
 and decisions of the Court of Session. Vide infra, pp. 220, 221 ; 365 sqq. 
 
 f As, for example, in the annulling of the Privy Council, a tribunal possessing very high powers in Scotland, by the Act 
 6 Aune, c. 6 ; in the modifications and extensions of the jurisdiction of the Justiciary Court by the Acts 6 Anne, c. 6 ; 10 Anne 
 c. 33 ; 20 George II., c. 43 ; 31 George II., t. ult. ; in the abolition, in a manner, of the Court of the Exchequer, of the Court of 
 Admiralty, and of the Commissary or Consistorial Court, from their amalgamation, as at present, with the Court of Session, by the 
 Act I William IV., c. 69 ; and in the new modelling of the Court of Session, as it at present stands, by the successive Acts 48 
 George III., c. 151 ; 50 George HI., c. 112; 55 George III., c. 42; 59 George III., u. 35; 6 George IV., c. 120; 1 William IV., 
 c. 69; 1 and 2 Victoria, c. 118; and the 13 and 14 Victoria, c. 36.— See Shand's Practice of the Court of Session, vol. i. pp. i. sqq. 
 
ADDRESS TO THE QUEEN. LXI 
 
 LoED Chakcelloe in his Speech in moving the Resolution on the Montrose claim, is insufficient to obliterate one jot or one tittle 
 of the law established by the paramount authority of the Treaty of Union. " The Parliament of Great Britain "—to use the 
 words of the promoters of the Union in the Scottish Parliament, as reported by De Foe, and which express the understanding 
 upon which the Treaty proceeded in both Kingdoms—-' being the creature of the Union, formed by express stipulations 
 " between the two separate Parliaments of England and Scotland," " it cannot but be unalterably bound by the conditions" 
 " stipulated," " upon which it has received its being, name, and authority." "The British Parliament " is " absolutely bound 
 " up by the stipulations of" the " Treaty "—it has " no other or farther power to act than was limited by the stipulations 
 " of both Kingdoms." — Parliament therefore can do nothing with respect to the subject-matter of the Treaty, but what the 
 Treaty has empowered it to do, and only in the manner, and to the extent, expressly prescribed or allowed by the Treaty. 
 It cannot dispense with one reservation, or supersede one provision, laid down in the Treaty of Union, except through warrant 
 or licence conveyed to it in the Treaty, and only then by express and formal acts of legislation — without committing at once 
 parricide and suicide.* 
 
 * In proof that the view I have here propounded, to wit, that the maintenance of the laws of Scotland affecting private rights and 
 the independence of the Court of Session were expressly provided for and protected by the Treaty of Union, I may refer to the 
 ' History of the Union' by Daniel De Foe, who had been sent down to Edinburgh by Lord Godolphin to assist and promote the 
 Treaty by his pen and genius, and who expressly states, after enumerating the propositions of the Lords Commissioners for 
 Scotland, afterwards embodied into the Eighteenth and Nineteenth Articles of the Treaty of Union, that " it was absolutely necessary 
 " to RESERVE the lawSf Courts of Justice, and civil and criminal judicatories, because, the respective Kingdoms bein^j governed by differing customs, 
 " rights, laws, and methods of justice, it would have infinitely embarrassed the Treaty now, and the Kingdoms afterward, to have made any 
 " alteration," — for which reason, he states, " the English Commissioners came readily into it," but with the necessary provision that 
 " the laws affecting public right should he alterable by the Parliament of Great Britain," — which, he adds, " I mention . . here, 
 " because in the tumultuary clamours raised afterwards against the Treaty, and against the Treaters, this was one of the great 
 " quarrels, That they had given up the laws and constitution of Scotland, and had subjected them to the arbitrary votes of a British 
 " Parliament; in which, it was alleged, the majority being so much English, the Scots could expect nothing but disadvantage. But 
 " it is apparent, and was at the time of the Treaty considered, that the leaving the laws of Scotland subject to alteration by the 
 " British Parliament, signified no more than leaving room for the Parliament in cases of necessity, or indeed on all occasions, to 
 " make laws for Scotland as should appear needful for the public advantage, always reserving their general form of law and proceedings of 
 "justice, as before ; and without this, Scotland must have been miserably left without a legislature, and have had no opportunity to 
 " have helped herself in cases contingent, or have obtained any more or other laws for the rectification of any of the common abuses 
 " of her government, which it seems these objectors did not think it worth their while to consider. 
 
 " And that this alone was the meaning of these words, ' Alterable by the Parliament of Great Britain,' and that it was under- 
 " stood so on both hands, is evident from the very words of the proposal of the Scots Commissioners, when they propose the 
 " alternative between public and private right, — ' With this difference betwixt the laws concerning public right, policy, and government, and 
 " ' those which concern private right, that the laws which concei-n public right, policy, and government may be made the sanus througlumt the 
 " ' whole United Kingdom ; but that no alteration be made in the laws which concern private right, except for evident utility of the subjects 
 " ' within that part of the United Kingdom now called Scotland.' 
 
 " The three next articles do also still more evidently confirm this, viz., ' That the Court of Session, or College of Justice, do, 
 " ' after the Union, and notwithstanding thereof, remain in all time coming, within Scotland, as it is now constituted by the laws 
 " ' of that Kingdom, and with the same authority and privileges as before the Union ; subject, nevertheless, to such regulations as shall be 
 " ' made by the Parliament of Great Britain. 
 
 " 'That the Court of Justiciary do also, after the Union, and notwithstanding .thereof, remain in all time coming, within 
 " ' Scotland, as it is now constituted by the laws of that Kingdom, and with the same authority and privileges as before the Union ; 
 " ' subject nevertheless to such regulations as shall be made by the Parliament of Great Britain, and without prejudice of other 
 ' ' ' rights of justiciary. 
 
 ' ' ' That all other Courts presently in being within the Kingdom of Scotland, do remain, but subject to alterations by the 
 " ' Parliament of Great Britain ; and that all inferior Courts within the said limits do remain subordinate, as they now are, to the 
 " ' Supreme Courts of Justice within the same, in all time coming.' 
 
 " Now it was thought most irrational to argue, that the laws and constitution of justice in Scotland was in this Treaty 
 " given up to the English ; when, as by these articles, the Courts of Justice, and the general form of administration, such as the Session, 
 ' ' Justiciary, and all other Courts, were to remain in force for ever, or in all time coming. 
 
 " And yet, as if this had not been enough to secure the Scots from this fear, the Commissioners for Scotland form the 
 " negative, and in it enter on the particulars, viz., ' That no causes in the Kingdom of Scotland be cognizable by the Courts of Chancery, 
 " * Queen's Bench, Comnvm Pleas, or any other Courts in Westminster Hall ; and that the said Courts, or any other of the like nature after the 
 " ' Union, shall have no power to cognize, review, or alter the acts or sentences of the judicatures within Scotland, or stop the execution of the same.' 
 
 " The Privy Council indeed was left to the Queen to dissolve or continue, as her Majesty might see cause, — but that was 
 " by the Treaty subject to Parliamentary determination ; and how the Queen referred it to the Parliament will appear in its 
 " course. 
 
 ' ' Nay, the Treaters were so tender of this general invading the particulars, that they took care to exempt private jurisdictions 
 " and properties from the power or cognizance of Parliament, which is what is not done in England, and which it has been thought, 
 " even in Scotland too, had been better left to the Parliament, in time, to have dissolved, giving satisfaction to the parties concerned ; 
 " I mean such as heritable offices, jurisdictions for life, &c. 
 
 " All these provisions were so exactly stated, and so forcible in themselves, and the Scots Commissioners had so shown both 
 " their capacity in the affairs of Scotland, and their candour in respect to Union, in the great affair before them, that tlie English 
 " Commissioners made no objection, but agreed to it, as tliey, the Scots Commissioners, had brought it in, without any amendment. 
 
 " And this formed the 18th, 19th, 20th, and 21st Articles of the Union, which were so clearly digested, that they admitted 
 " little or no debate afterwards in the Parliament of Scotland, where all the rest passed the strictest scrutiny, and almost a fiery trial." — History 
 
 of the Union, pp. W^ sqq. 
 
 I may also quote, in illustration of the absolute suhjection of the Parliament of Great Britain to the Treaty of Union, and their 
 incompetency to interfere with theprovisims of that Treaty in any manner or degree except in accordance with the allowances and stipulations 
 therein contained, the statement by De Foe (quoted supra in the text) of the argument and view urged by the promoters of the Union 
 in the Scottish Parliament on the discussion upon the Third Article of the Treaty, in answer to the objections advanced by the 
 opponents of the Treaty, -v'xz. " That whatever agreement is now concluded between the two Kingdoms will never be binding to the 
 " new Parliament" (that, viz. of Great Britain), and "That the two Kingdoms effectually subject themselves to the new Parlia- 
 " ment, all the conditions stipulated on either side to the contrary in any wise notwithstanding:"— 
 
 " To this it was answered. That the British Parliament were absolutely bound up by the stipulations of this Treaty; that they, being 
 " a subsequent power to the two respective Parliaments of either kinr/dom, had no other or farther potoer to act than was limited them by the 
 " stipulations of both Kingdoms. That all subsequent power is inferior in its extent to the power which it derives from. That the 
 « Parliament of Britain, being the creature of the Union, formed by express stipulations between the two separate Parliaments of England and 
 
IXII ADDRESS TO THE QUEEN. 
 
 V. Case of the Earldom of Kincardine in 1706-7, illustrating the procedure and understanding in the case of 
 Scottish peerage claims at the time of the Union. 
 
 The understanding as to the adjudication of peerage claims at the precise period when the Treaty of Union passed, 
 may be illustrated by the case of the Earldom of Kincardine, decided by the Court of Session on the 28th March, 1707,— 
 by which, and the proceedings in Parliament relevant thereto, it appears unquestionable that the Court of Session was 
 recognised on all sides as the competent and proper judicatory for the discussion of such cases, and that, whatever might be 
 the force or character of protestations for remeid of law, as admitted by the Claim of Right, it was not, in the estimation of 
 the Court of Session, by appeal to or interference by " the Parliament of Great Britain," (and still less, I would add, by 
 appeal to or interference by the House of Lords,) that that relief was to be afforded ; while, on the contrary, it would seem 
 from the expressions used by the learned Judge who reports the case, as well as from the language of the Treaty of Union 
 already remarked upon, and that of Lord Stair, as above cited, that some legislative enactment was in contemplation or expected 
 for the purpose of providing for the due entertainment of such protestations — but which, as I have before stated, was never 
 carried into effect. 
 
 The Earldom of Kincardine was limited by the original patent (upon record) in 1647, to " heirs male,'' under which 
 limitation Alexander Bruce, Earl of Kincardine, who died in 1705 without heirs male of his body, clearly took. 
 
 Earl Alexander however left an only sister, Lady Mary Bruce, wife of William Cochrane of Ochiltree, and his heir at 
 common law, who claimed the Earldom in virtue of alleged Procuratories of Resignation of the title and dignity executed by 
 Earl Alexander in her favour, — the Scottish peers (differently from those of England) having enjoyed the privilege of 
 resigning their honours to the Crown for regrant in favour of new series of heirs, thus excluding the heirs under preceding 
 patents or investitures — the only postulates being that the procuratories should be duly perfected by the resigner, and also 
 accepted personally by the Sovereign, without whose assent and co-operation the change could not be effected, — ^but which 
 postulates were denied to have taken effect in the instance at present under consideration. 
 
 In consequence of this state of things, Sir Alexander Bruce of Broomhall, the undoubted heir male and heir under 
 the patent 1647, assumed the title of Earl of Kincardine, and took his seat in Parliament accordingly, and was entered in 
 the Rolls as sitting in Parliament on the 8rd October 1706* — a circumstance to which, according to English practice and 
 authority, overwhelming importance would be attached, but which was reckoned comparatively unimportant in Scotland. 
 
 It would also be supposed by legal authorities of the present day that Lady Mary's remedy under the circumstances 
 would have been by an application to Parliament, as alone competent to matters of titles and dignity, and who, if applied to, 
 would have sustained their own competency in the matter, and discussed and decided the right as between the contending claimants. 
 But Lady Mary, correctly in point of law and in unison with acknowledged and fixed rule and practice, raised a process of 
 Declarator of her right before the Court of Session, and afterwards protested by Petition to the Estates of Parliament f against 
 their preceding recognition of Sir Alexander, her opponent; and Parliament, still as on former occasions declining to act or 
 discuss such a subject, restricted Earl Alexander's tenure of his seat among them to a merely temporary character, " reserving 
 " . . TO Lady Mary and hbk husband their eight and Declarator before the Lords of Session, as accords" J — in 
 other words, recognising tJie right and claim alluded to as alone determinable by the pending process and decision of the 
 Supreme Civil Court, the sole umpires in the case. The force of the words "as accords" — or, as more commonly written, 
 " AS accords OF THE LAW " § — cajinot be overlooked, as eviticing beyond controversy that the procedure authorised by the 
 Parliament itself in 1706 accorded and was in exact conformity with what had been held in law and practice before in 
 similar emergencies. 
 
 The case was fully argued before the Court of Session, both parties, the heir male and heir female, appearing and 
 joining issue in the case ; and judgment was jironounced on the 28th of March 1707, — to the effect that, in conformity with the 
 judgment in the case of the Barony of Oliphant, also decided by the Court of Session, in 1633,|-| and which was thus the rule, 
 the Procuratories of Resignation " did not become void or null by the death of Earl Alexander, the grantor, but that they may 
 " yet " (i. e. on the 28th March 1707) " be perfected in favour of Lady Mary and her heirs, if the Queen pleased to accept 
 " the same and confer the title on her :" t — A decision, it may be remarked, perfectly just and imexceptionable. As long as 
 
 " Scotland, cannot but be unalterably bound by the conditions so stipulated, and upon which it has received its being, name, mid authority. The 
 " foundation of a British Parliament is this Treaty ; to say they will not be bound by it, is to say, they will pull themselves up by the roots ; 
 " they die when the Union receives any mortal wound; they cannot infringe one article of the Union; they cannot put a question in the House 
 " as to any one article. 
 
 " As to the objection, That there was a surrender of sovereignty and constitution, and delivering Scotland, bound hand and 
 " foot, into the absolute disposal of the English, 
 
 "■ This was answered by way of question and answer, among other things, thus : — 
 
 " ' Q. What is it constitutes the Parliament of Britain^ 
 
 " 'A. Tlie Union. Let any man give another answer to it if he can.' 
 
 '.' ' Q. How is it constituted 'I' 
 
 " ' A. By Treaty between two Nations, by their heads and representatives, viz. the Queen and Parliament of each Kingdom.' 
 
 " ' Q. How do they bring it to pass ?' 
 
 " ' A. By mutual altering their respective constitutions, and forming one general constitution upon a Treaty of equalities and 
 " ' equivalents, the stipulations of which Treaty are agreed to by the constituent parts of the subsequent body.' 
 
 " ' Q. Upon what right doth the present respective Parliaments depend 1' 
 
 " ' A. The natural right of the freeholders of both kingdoms, which entitles them, by the possession of their lands, to have 
 " 'the free exercise and power of making the laws by which they are to be governed.' 
 
 " ' Q. Does this nev> constitution destroy that right V 
 
 " ' A. Not at all ; but, reserving that right, which indeed it cannot destroy, agrees to liniit the exercise of it by such and 
 " ' such forms, and on such and such conditions ; which conditions are the limitations of the power of the new Parliament, as being 
 " 'the act and deed of the old Parliaments, whose constitution was founded on original right.' "—Ibid., pp. 357, 358. 
 
 * Acts of Parliament, vol. xi,, p. 300. 
 
 t Ibid., p. 303. X I^'i'i-: PP- 305-7. 
 
 § As shewn supra, p. ly, in the reference by the Privy Council of the conflicting claims to the Earldom of Rothes " to 
 " the Lords of Session, to be discusi by them as accokdes of the law ;" and similarly in the Deliverance of Parliament, 15th July 
 1641, infra, p. 431. 
 
 II See the judgment in this case, as reported by Lord Durie, infra, p. 549, n. *. 
 
 •J Fountainhall's Decisions, vol. ii. p. 368. 
 
ADDRESS TO THE QUEEN. 3LXIII 
 
 the Queen lived, the honour was strictly in pendent i ^ but as the Queen died without acting or interfering, while there was 
 little doubt that Earl Alexander, the granter of the Procuratories, had been insane at the time of their execution, and could 
 not therefore legally graat them,* the original patent of 1647 ultimately stood, as well as the right of Sir Alexander Bruce, 
 the heir male — the direct ancestor of the present Earl of Elgin and Kincardine.! 
 
 That the Court of Session was in full exercise of its ancient jurisdiction in peerage claims on the 28th March 1707, 
 two months after the Treaty of Union had been ratified in the Scottish Parliament and just one month before the period at 
 which it was to come into operation, is thus clearly demonstrated. 
 
 The interlocutor or judgment of the Court did not however wholly please Sir Alexander Bruce, or, as he was styled, 
 the Earl of Kincardine ; and therefore, according to Lord Fountainhall, who has reported the case, " on the 29th March 1707" 
 (the following day), " Lord Kincardin gave in a protestation for remeid of law " — based of course upon the Claim of Right of 
 1689, all that can be urged in favour of appeals — " against the foresaid interlocutor, to the Queen and Parliament, and after 
 " the Ujiionto their next competent judicatory " —\. e. that might be appointed by Queen and Parliament — "for determining 
 " such ajopeaZs," — anticipative evidently (as remarked in the case of the language of the Treaty of Union and of Lord Stair) 
 of some legislative appointment by Queen and Parliament to meet the necessity originated by the concession in the Claim of 
 Right of 1689 — assuming, of course, that concession to be still in force and vitality. " But the Lords" (of Session), continues 
 Lord Fountainhall, " finding some indecent expressions and matters of fact wrong narrated " in Sir Alexander's protestation, 
 " they refused to admit it: whereupon he presented another, rectified in these particulars, which the Lords allowed the 
 " clerk to take in,'' but " not to insert in the Decreet. The Lords would not determine whetha' appeals now to the 
 " Parliament of Great Britain are legal or not ; for our Article " (evidently the Nineteenth Article of the Treaty of Union, 
 reserving the rights and cognisance of the Court of Session, and wherein there is no allusion to api)eals, but e contra) " could 
 " have, no such meaning nor prospect ; and the House of Commons have long debated if the Peers have such junsdiction and 
 "power, but left it wholly undecided and entire" — in which however the learned Lord understates the fact, inasmuch as the 
 House of Commons passed a Resolution in 1675, as by their Journals, " that there lies no appeal to the Judicature of the 
 " Lords of Parliament from Courts of Equity." % — " And some thought," concludes Lord Fountainhall, "that Broomhall" 
 (i. e. Sir Alexander Bruce, or Lord Kincardine) "might continue his possession of the title as Earl of Kincardine ay till the 
 " Queen accepted of the resignation on the last Earl's procuratory, and that he could not be fully divested till then." § 
 
 Sir Alexander Bruce proceeded no further in his appeal to Parliament — a mere threat, never followed up, and the only 
 instance on record qf a protestation for remeid of law to Parliament in a case of honours ; and Parliament still remained as 
 mute and inoperative as ever, — all that was judicially or legally accomplished in the matter having solely and competently 
 emanated from, and been authorised by, the Court of Session. 
 
 The conclusions derivable from the preceding case, as to the law and practice in Scottish peerages immediately before 
 and contemporarily with the Treaty of Union, are briefly as follows : — 
 
 1. That among the other laws aifecting private rights which were in force and vigour immediately before the Union, 
 
 and which were reserved to Scottish subjects by the Eighteenth Article of the Treaty of Union, under the express 
 stipulation that they were to undergo " no alteration " " except for evident utility of the subjects within Scotland," 
 and in that case only and exclusively " by the Parliament of Great Britain,^' the law or usage affording to 
 the Scottish peers the privilege of resigning their honours for new investiture and limitation, with consent of 
 the Crown, was clearly included. 
 
 2. That the mere fact of the Claimant of a dignity having been allowed to take his seat in the Scottj^h Parliament, 
 
 as entitled to that dignity, was not considered by the Parliament to create or establish any right i^ the said 
 Claimant — in contradistinction to the importance attributed to such sittings in Parliament by English practice ; 
 which sittings consequently ought not to weigh beyond their fair value in the case of Scottish peerages. || 
 
 3. That the right of the Subject to claim a peerage by action of Declarator before the Court of Session, and the right 
 
 and obligation of the Court of Session to adjudge in such claim, were both in viridi observantia at the moment when 
 the Treaty of Union passed, and were fully recognised by Parliament' — which then, as heretofore, disowned and 
 repudiated interference in the matter as beyond its province ; and that those respective rights are therefore equally 
 reserved to the Court and to the Subject by the Eighteenth and Nineteenth Articles of that Treaty. And, 
 
 4. That it was the understanding of the Court of Session at the moment when the Treaty of Union passed, that the 
 
 Nin:;teenth Article, reserving the full authority and privileges of the Court, did not imply that appeals to the 
 Parliament of Great Britain (and far less that appeals to the Hcjuse qf Lords, exclusively of the Commons, 
 a thing at that time unheard of in Scotland) were to be legal — although they declined expressins any opinion 
 on the subject, evidently (as appears, and as- has been already stated) in expectation of the appointment of a 
 judicatory, competent to such appeals, by the Sovereign and the Parliament of the United Kingdom, presently to 
 be assembled, — an appointment, however, which never took place ; and matters have remained, in law, precisely 
 as they were left by the Treaty of Union, from that day until now. 
 
 VI. Further illustration of the opinions and practice of the Court of Session immediately after the Union. 
 
 In illustration of the proceedings and sentiments of the Court of Session at the period immediately subsequent to the 
 Treaty of Union, I may cite, from the Reports of Lord Fountainhall, a statement that on the 28th February 1708, in a case 
 
 * According to Lord Fountainhall, Sir Alexander Bruce, the heir-male, contended that Earl Alexander, at the time when he 
 signed the Procuratories of Resignation, "was notoriously fatuous, furious, and mad; and condescended on. several passages of 
 " blasphemy and folly to a great degree," — Lord Fountainhall adding that " the allegiance of fatuity was so pregnantly circum- 
 " stantiate, such as his " (the Earl's) " fancies that he could fly in the air, and ought to marry his sister, and his fasting fourty days 
 " with Peter Poiret, the Burignionist (Bourignonist), &c. that it was impossible for any judicatory in the Christian world to repel 
 " them." Decisions, yol. ii. p. 368. 
 
 t Sir Alexander Bruce (the successful Claimant) admitted that until the Queen accepted the Procuratories the right was 
 " pendulous," and that it was an " embryo" Her Majesty might " ripen by acceptance;" but he contended that if she " shut the 
 " sluice" and refused them, then his patent must take effect. lUd., p. 367. 
 
 X Robertson's Reports of Cases on Appeal from Scotland, p. xi. § Fountainhall' s Decisions, ut supra. 
 
 II See Mr. Riddell's Peerage and Gonsistorial Law, pp. 931 sqq., and infra, p. 339, n. *. 
 
I^SIV ADDEESS TO THE QUEEN. 
 
 before the Court affecting Sir Hugh Campbell of Calder, " Sir David Forhes having offered a protest for remeid of law in 
 " Sir Hugh's name " (against an interlocutor of the Court), " the Lords asked him if he had a special mandate for that effect ; 
 " and, he replying that he was his ordinary advocate, and had letters from him in general, authorising him to manage his law 
 " affairs as if he were present, but no special warrant to appeal, the Lords rejected his protestation, and likewise gave him a 
 " reprimand, and called in the Dean of Faculty and Advocates, and advised them to be more cautious and wary in time 
 " coming." *_From which it appears that the Court acted with regard to appeals after the Union pretty much as their 
 predecessors in pari casu did subsequently to the Restoration, in 1674. 
 
 I may also quote the opinion of the celebrated Whig lawyer. Sir James Stewart, who held the office of Lord Advocate 
 for above eighteen years in the reigns of William and Mary and of Queen Anne, and till his death in 1713; and who 
 had thus seen and known the effect of the Claim of Right in 1689 and the Treaty of Union in 1707,—" It is in effect too much 
 " that Protestations fw remeid of law should bring civil causes to be reviewed in Parliament ; for our Parliament were at least 
 " far better constitute for settling general laws than for discussing the private rights of parties :"t — Further evincing that no 
 innovation on the ancient rule and practice had been effected through the Union, as otherwise he could not have failed to 
 notice it. 
 
 VII. The practice of Appeals from the Cmirt of Session to the House of Lords, as at present exercised, unwarranted 
 
 by any legislative authority, the result of usurpation, and resting solely upon custom and usage. 
 
 The question then here arises, and demands an explicit answer — On what authority does the practice of Appeals from 
 the Court of Session to the House of Lords, as at present exercised, rest ? My answer is, On none whateveb — except mere 
 custom and usage. 
 
 It has been assumed and asserted (as already stated) that the practice in question rests upon the right of protestation for 
 remeid of law to King and Parliament, as conceded by the Claim of Right in 1689. t But this assumption proceeds on a total 
 oblivion or ignorance of the essential circumstances of the case. 
 
 The Parliament held in view by the Claim of Right in 1689 was exclusively the Scottish Parliament, which was very 
 differently constituted from that of England or Great Britain. As already mentioned, the Three Estates all sat in one 
 chamber, and had each an equal and concurrent vote, the Commons being an indispensable element, equally influential with 
 the Peers, in everything ; and the Appeal provided by the Act of 1689 lay to them as well as to the Peers, although to 
 neither body apart from the other. As therefore the Parliament of Scotland, thus peculiarly constituted, died (like that of 
 England) at the Union, so did the Appeal to that Parliament, as established in 1689. Ex necessitate it could no longer be 
 carried into effect, — for it would have been anomalous, and not in terms of the Act of 1689, that Scottish Appeals should, after 
 the Union, be brought before the House of Lords and the House of Commons of the new British Parliament separately — nor 
 was it indeed ever proposed to submit them to such an ordeal. On the contrary, as already shewn, and as is evident from 
 the proceedings of the Court of Session in the Kincardine case, as reported by Lord Fountainhall, and from the language of 
 the Treaty of Union, it was not understood, either by the Commissioners who framed the Treaty, or by the Court of Session 
 itself, that Appeals were to be competent to the British Parliament — much less to the House of Lords — subsequently to the 
 Union. What they looked for was am Act of the British Parliament appointing, in terms of the Treaty of Union, a judicatory 
 specially to take cognisance of such Appeals — the sole intervention which could legally provide for the emergency — supposing, 
 that is to say, that Appeals were still to be entertained from the sentences of the College of Justice — an understanding which, 
 I am bound to admit, unquestionably prevailed at the period. But the expected Act never passed — the judicatory contemplated 
 VMS never appointed. The House of Lords, a mere component element of the British Parliament, and having no greater interest 
 or right than the Commons, tacitly assumed the cognisance over such Appeals, but not in virtue of the Claim of Riglit or the 
 Treaty of Union — on the contrary, in direct contravention of that Act and that Treaty ; and they have exercised this cognisance, 
 without further authority or commission, ever since. 
 The result is, 
 
 I. That the assumption, above noticed, proceeding on the hypothesis that the Appellate jurisdiction of the House 
 
 of Lords in Scottish causes is derived from the Claim of Right in 1689, is quite unfounded. 
 II. That no Act of " the Parliament of Great Britain " has ever passed, authorising the House of Lords, in terms of 
 
 the Treaty of Union, to entertain such Appeals. — And, 
 III That the system of Appeals, as at present exercised, from the Court of Session — not to Parliament, but to the 
 House of Lords, is, by inevitable consequence, wholly without proper warrant — a system based on injustice and 
 usurpation at the outset, in direct violation of a most solemn national treaty, and resting at the present day upon 
 mere assumption and usage. 
 It may be added here, that, on the above introduction of the Appellate system to the House of Lords subsequently to 
 the Union, the forms, then adopted for the first time, were those employed in appeals from the Courts of Equity in England 
 and thus purely exotic and foreign to the law and the tribunals North of the Tweed. 
 
 VIII. Order of the House of Lords in 1709, superseding on their own mere authcrity, and without any statutory 
 
 enactment, the rule that Appeals from the sentences of the Court of Session should not stop execution 
 of those sentences, — with inferences therefrom. 
 
 The new order of things may be held to have been inaugurated in the year 1709. 
 
 It will be in Your Majesty's remembrance that the article of the Claim of Right of 1689, concedino- the right of 
 protestation for remeid of law to Parliament, contained a provision protective of the Court of Session, forbiddino- that protesta- 
 tions should stop the execution of the sentences pi'otestcd against. The Nineteenth Article of the Treaty of Union additionally 
 (as has been shewn) protects the Court of Session by reserving to it its jurisdiction ■' as it is now constituted by the laws 
 
 " FountainhalV s Decisions, vol. ii. p. 438. 
 
 t Answers to Dirletm's Douits, p. 218.— Compare Glencaira's Supplication to Parliament in 1649, as analysed supra, p. lvi 
 note * ; and Lord Stair's opinion, supra, p. ltiii. ' 
 
 J By the Lord Advocate, ut supra, p. lvii. 
 
ADDEESS TO THE QUEEN. LXV 
 
 "of" Scotland, "and with the same authoi'ity and privileges as before the Union," — " subject nevertheless " — but subject 
 only — " to such regulations for the better administration of justice as shall be made by tlie Parliament of Great Britain;'' 
 and vcith a further provision " that no causes in Scotland be cognoscible by the Court of Chancery, Queen's Bench, 
 " Common Pleas, or any other Court in Westminster Hall ; and that the said Courts, or any other of the like nature, after 
 " the Union, shall have no power to cognosce, review, or alter the acts and sentences of the judicatures within Scotland, or 
 " stop the execution of the saTne." 
 
 Under these circumstances, and on the 19th April 1709, in a case affecting Mr. George Mackenzie and others, the 
 House of Lords made the following Order, recorded in their Journals : — 
 
 " The House having this day heard Counsel upon the Petition of Mr. George MacKenzie, son to George MacKenzie, grantee 
 " from her Majesty, in a Decree of Exchequer of North Britain pronounced against Sir Alexander Brand, relating to his Appeal in 
 " this House, as also Counsel on the Petition of Sir Alexander Brand, 
 
 " The following Order was made : — 
 
 " It is ordered by the Lords Spiritual and Temporal in Parliament assembled, ffiat, after an appeal shall be received by this House 
 " from any sentence or decree given or pronounced in any Court in Scotland, and an order made by this House for the Respondent to answer 
 " the said appeal, and notice of such Order duly served on the Hespondent, the sentence or decree so appealed against from such 
 
 " TIME OUGHT NOT TO BE CARRIED INTO EXECUTION BY ANY PROCESS WHATEVER." * 
 
 This Order, I submit to Your Majesty, was in still further infraction of the Claim of Right (if still, indeed, an clement 
 of consideration in 1709), and of the Treaty of Union. 
 
 In the first place, with reference to the Claim of Right, it is to be observed, that either the provision in that Act 
 protective of the Court of Session was in force or not in force in 1709. That it was not in force has been demonstrated (if I 
 mistake not) by the simple fact, that, the Parliament to which protestations for remeid of law were allowed by the Claim of Right 
 having ceased to exist in 1707, the right of protestation, with all its incidents and dependencies, must inevitably have ceased 
 to exist along with it; and the right in question could only have been legally renewed or perpetuated by a special enactment of 
 the new-born Parliament, the legislature of the United Kingdom — which never took place. But, even granting, 2>ro argumento, 
 that it was in force, as asserted by the Lord Advocate — granting that the Scottish Parliament continued to exist as an integral 
 part of the Parliament of Great Britain subsequently to the Union — waiving the objection that Appeals must have been 
 separately heard by the House of Lords and House of Commons subsequently to the Union, if the words and the intention of 
 the Claim of Right and Act of Union were to be regarded and adhered to — and assuming, still pro argumento (although 
 there can be no possible pretence for such assumption), that the protestation for remeid of law to the Sovereign and 
 Parliament of Scotland devolved to the House of Lords, exclusively of the Commons, after the Union — (and it is only, 
 as Your Majesty may remember, on this complicated and cumulative hypothesis that the intervention of the House of 
 Lords in Scottish cases is attempted to be justified), — admitting all this, the Order of 1709, tacitly superseding the 
 provision in the Claim of Right, with which the right of protestation was inseparably linked and associated, was equally, 
 under this latter alternative, ultra vires and unwarranted. Tlie provision in the Claim of liight (if still in force') 
 could only, upon every princif^le of law and justice, have been rescinded hy a special Act of Parliament, duly reciting 
 the Act and altering it accordingly — hut which never passed. And — extending the argument to what necessarily falls 
 within its scope and comprehension, viz. the similar provision in the Treaty of Union, above noticed, forbidding any 
 Court whatever to stop execution of the sentences of the Scottish Courts (including the Court of Session), and the general 
 provision in the Treaty that no alteration shall take place in the laws or usages of the Court of Session except by enactment 
 of " the Parliament of Great Britain ;" the collective and eloquent fact, which stands out confessed and unanswerable on all 
 sides, that no Act either of the Scottish Parliament between 1689 and 1707, or of the British Parliament subsequently to the 
 Union, had up to 1709 either rescinded the provision protective of the Court of Session in the Act of 1689, or instituted 
 " regulations for the better administration of justice " in that Court, as it stood constituted mi the \st of May 1707, when the 
 Treaty of Union came into operation — is conclusive on the matter here at issue, and sufficient to stamp the Order of 1709 
 with illegality and injustice. It was, in a word, not competent for any Court whatever — and still less for a body possessing 
 no original jurisdiction, like the House of Lords — to set aside at its arbitrary pleasure the clause in the Article of the 
 Treaty of Union above alluded to, forbidding such Court to "stop execution" of the acts or sentences of the Court 
 of Session " within Scotland." And yet, in the face of the living facts above enumerated, and wholly ignoring and 
 disregarding the Act of 1689 and the provision therein contained, as well as the Nineteenth Article in the Treaty of Union, 
 as if neither had ever existed, the House of Lords, acting ex proprio motu, and standing entirely alone, without concurrence 
 of the House of Commons or of the Sovereign, attempted to originate in 1709 — and effectively originated in practice — by a 
 mere Order of their own House, a direct innovation and aggression upon the Act in question (if still effective) and upon the 
 Treaty of Union, and after assuming to themselves, without warrant, an Appellate jurisdiction over Scottish cases, arbitrarily 
 deprived the Court of Session of the protection to which they were entitled both under that Act and that Treaty — to both of 
 which matters they were manifestly in law utterly incompetent.! 
 
 I may add here, that, according to Mr. David Robertson, the learned Editor of the ' Reports of Cases on Appeal fronj 
 ' Scotland decided in the House of Peers,' the preceding Order of the House of Lords in 1709, " though not particularly 
 " mentioned by our text-writers, was probably the foundation of what they state to be the law with regard to the effect of 
 " an appeal to the House of Lords." The immediate consequence of the new procedure was, according to the learned gentle- 
 man, that, " several instances of reversal having occurred. Appeals became so frequent at an early period after the Union, that 
 " Lord Fountainhall complains that ' they increased every year, to the great impoverishment and detriment of the nation.' " 
 " The old form," continues Mr. Robertson, "of taking a protest against the decision of the Court, and declaring the grounds 
 " of Appeal by an Instrument under the hand of a Notary Public, was continued for a considerable period after the Union." 
 But " when the effect of an Order of the House of Lords upon a Petition of Appeal came to be generally understood, the 
 " Protestations for remeid of law were gradually discontinued, and for many years have been wholly left off." 
 
 * Lords* Jowmals. 
 
 t By a subsequent order, on the 24th March 1725, the House of Lords limited the time of receiving petitions of appeal from 
 the sentences of the Court of Session to five years, — but to which they were equally incompetent as in the case of their Order of 
 1709 ; nothing short of an Act of " the Parliament of Great Britain " being sufficient (as has been shewn) to innovate in any manner 
 whatever in matters affecting the Court of Session. 
 
 J Reports, &c., p. xiv. 
 
 K 
 
I-^VI ADDEESS TO THE QUEEN. 
 
 IX. Gradual encroachments of the House of Lords upon the authority of the Crown in England, and of the Court 
 of Session in Scotland, in peerages — the former retracted, the latter persevered in — with continual extemion of 
 English principles to the consideration of Scottish peerage claims. 
 
 It is not to be wondered at that the spirit which animated the House of Lords in 1709 should have continued to 
 manifest itself in disregard for vested rights and justice. Their next aggression was not only against the Court of Session, as 
 the competent tribunal in Scottish peerage claims, but against what English practice has always esteemed to be a peculiar 
 prerogative of the Crown. Two years after passing the Order above commented upon, the House, acting upon the mere 
 strength of a casual rumour, and without any reference whatever from the Crown, which could alone (on English principles) 
 entitle them to interfere, originated of themselves ex propria motu, referred to a Committee of Privileges, discussed, and 
 decided, the case of the Scottish Barony of Dingwall, as claimed by the Duke of Ormonde, and which they ordained to be 
 inserted in the Union Roll (having been long dormant) immediately before that of Cranstoun.* It is scarcely necessary to 
 observe that, whether viewed by the principles of English or Scottish Peerage law, this was in pure and indefensible 
 assumption of a sovereign power and authority to which they were incompetent. And it would appear that, at a subsequent 
 and soberer moment, they felt that they had gone too far, for no similar instance has since occurred.f 
 
 In 1723, the claims to the Baronies of Somerville and of Colville, Scottish dignities, were investigated by the House of 
 Lords on reference from the Crown, according to the English rule and usage, — although the Sovereign might, by that usage, 
 have delegated the investigation to any other tribunal. J The case of the Barony of Duffus was similarly investigated in 
 1734. § And in 1748, in their consideration of the case of the Earldom of Stair, the House of Lords resolved that a nomi- 
 nation to a peerage executed after the Union, notwithstanding that it might proceed upon a resignation and a regrant validly 
 executed by the Sovereign he/ore the Union, and empowering the grantee in usual form to make the nomination in question, 
 was " not valid in law," || — in disregard of the peculiar privilege (already illustrated in the case of the Earldom of Kincardine) 
 
 * It appears from the Lords' Journals that, on the 2nd March 1711, "the House being informed ' that His Grace, James 
 " ' Duke of Ormond, hath the title of Lord Dingwall in the North part of Great Britain called Scotland, and therefore ought to be 
 " ' placed on the list of the nobility of that Kingdom immediately after the Lord Madderty," ' " It is ordered by the Lords Spiritual 
 " and Temporal in Parliament assembled" — {not by the Queen) — " ' that it be and is hereby referred to the Lords Committees for 
 " ' Privileges to consider thereof and report their Opinion thereupon to the House.' " — After which, and finally, it appears that, on 
 the 7th July 1714, the House " being informed that the title of Lord Dingwall in Scotland is in His Grace the Duke of Ormond, and 
 " that some papers relating to the precedency thereof are ready to be produced at such time as the House shall please to appoint," 
 " It is ordered by the Lords Spiritual and Temporal in Parliament assembled, that the consideration of this matter be aud is hereby 
 " referred to the Lords Committees for Privileges, to examine the same and report their Lordships' Opinion to the House." On the 
 next day, accordingly, the Lord Balmerino reported from the Lords Committees for Privileges, " ' That the Committee have con- 
 " ' sidered a Charter of Confirmation by King James the First of England and Sixth of Scotland, granted to the Lord Dingwall 
 " ' with the title and dignity of Lord of Parliament, bearing date the 8 of June 1609, and, having likewise considered the Lord 
 " ' Cranstqun's patent, bearing date the 19 of November 1609, are of Opinion that the Lord Dingwall " — i. e. the Duke of Ormonde 
 — " ' should be inserted in the Roll of the Nobility in Scotland immediately before the Lord Cranstoun.' Which Report, being 
 " read by the clerk, was agreed to by the House." — Robertson's Proceedings relating to the Peerage of Scotland from Jan. 16, 1707, to 
 April 29, 1788, pp. 52, 67. 
 
 The Barony of Dingwall had been dormant ever since the year 1621, and the Claimant's right necessarily behoved under the 
 circumstances to be deeply and maturely sifted and tested, and a fortiori in the case of a stranger to Scotland such as the Duke of 
 Ormonde — rendering such a hasty and summary procedure as the above quite indefensible ; while, as above shewn, the proceedings 
 of the House were in clear dereliction of English law and practice in honours, as they had no warrant or authority from the 
 Sovereign. 
 
 f In 1719 indeed — the same year in which (as will hereafter be shewn) the House of Lords unjustly denied his seat in Parlia- 
 ment to the Duke of Dover — they attempted a most remarkable aggression on the prerogative of the Crown, and, singularly, with 
 the countenance and concurrence, at least at the outset, of the King pro tempore, George I. On the 2ud of March that year, the 
 House having gone into Committee " to take into consideration the present state of the Peerage of Great Britain," the Lord Chan- 
 cellor read a message from the King, to the effect that His Majesty " has so much at heart the settling the Peerage of the whole 
 " Kingdom upon such a foundation as may secure the freedom and coniititution of Parliament in all future ages, that he is willing 
 ' ' that his prerogative stand not in the way of so great and necessary a work." Three days afterwards, on the 5th of March, a series 
 of Resolutions were " reported from the Committee of the whole House, appointed to consider of the present state of the Peerage 
 " of Great Britain,'' as " the opinion of" the " Committee," to the effect, briefly, " that, in lieu of the sixteen elective peers to sit 
 " in this House on the part of Scotland, twenty-five peers, to be declared by His Majesty, shall have hereditary seats in Parliament, 
 " and be the Peers on the part of the Peerage of Scotland " — this " hereditary right of sitting " to be " so limited as not to descend 
 ' ' to females " — and of the other Scottish peers, beyond the pale of the twenty-five favoured families, none to be admitted to seats in 
 Parliament except on failure of one or more of those families, when they should sevei'ally be eligible for promotion to that pri- 
 vilege—And " that the number of Peers of Great Britain on the part of England shall not be enlarged, without precedent right, 
 " beyond six above what they are at present ; but as any of the said present Peers, or such six new peers, in case they be created, 
 " shall fail, their numbers may be supplied by new creations of commoners of Great Britain" — " that no person be at any time 
 •" created by writ, nor any peerage granted by patent, for any larger estate than for the grantee and the heirs male of his body " — 
 and " that every creation of a peer, hereafter to be made, contrary to these Resolutions, shall be null and void to all intents and 
 ■" purposes," — provision being however made " that there be not any restraint on the Crown for creating any of the Princes of the 
 " Blood Peers of Great Britain, with right to sit in Parliament, nor for promoting any Peer, having seat in Parliament, to any 
 " higher rank or degree of dignity." — A Bill, entitled " An Act for settlipg the Peerage of Great Britain," and based upon these 
 astounding Resolutions, was prepared accordingly, and, after going through all the regular stages, passed the House on the 30th 
 November 1719. But it was thrown out, on the second reading, in the House of Commons, by a majority of 92 votes, the division 
 being " for the Bill 177, and against it 269." — Robertson's Proceedings, ut supra, pp. 74 sqq. The Commons thus vindicated the 
 j>rerogatlve of the Crown against the House of Lords and the King. 
 \ Lords' Journals. — Robertson's Proceedings, pp. 110, 114. 
 § Lords' Journals. — Robertson's Proceedings, pp. 112, 115. 
 
 II John second Earl of Stair, the celebrated Marshal, obtained from Queen Anne a power, in usual form, to nominate at any 
 time—" per scripturam sub ejus manu, quovis tempore vitoe suse, etiamsi in artioulo mortis "—whatever heirs he might choose to his 
 honours and estates, pi'ovided such were descended of the body of James Viscount of Stair, his grandfather. This power was 
 constituted by a Royal charter, recorded in the Great Seal Register, dated the 27th February 1707, proceeding upon his resignation, 
 and hence on the very verge of the Union. Earl John subsequently, by a writing dated the 31st March 1747, and duly subscribed by 
 his hand, in terms of the Charter, nominated and appointed to the succession John Dalrymple, son of George Dalrymple his third 
 
ADDEESS TO THE QUEEN. LXVII 
 
 possessed by the Scottish peerage when the Treaty of Union was concluded, and reserved to them by that Treaty, and more- 
 over in direct derogation from the prerogative of the Crown, as rendering a Royal regrant inept and ineffectual : — A judgment 
 expressly stated by Sir William Pulteney, a distinguished contemporary Scottish advocate and statesman, to have proceeded upon 
 " the footing of the English law," * which is commonly understood to be distinct from that of Scotland in the matter in question.! 
 
 X. Tlie Twenty-third Article of the Treaty of Union, extending to the Peers of Scotland the ^'privileges " then 
 possessed by the Peers of England, cannot justify the Order of 1709, and the enoroaohments subsequently 
 thereto, above commented upon. 
 
 It is scarcely to be supposed indeed that the important innovation involved in these unprecedented and foreign jjroceedings 
 with regard to Scottish peerages was attempted by the House of Lords, or submitted to by the Scottish peers, without some shadow 
 of reason or plausibility. But I am unable to discover any tangible pretext for it except an impression, which undoubtedly 
 existed during the latter part of the last century, that the Twenty-third Article of the Treaty of Union, by which "all" the 
 " privileges" enjoyed by the Peers of England are (with the exception of that of silting in the House of Lords) extended to 
 those of Scotland, J conveys to the latter, and to persons claiming to be Scottish Peers, the privilege of having their claims 
 
 brother, in exclusion of James Dalrymple, second son of the deceased William Dalrymple, his next or second brother, who had been 
 previously the heir, and the heirs male of his body, with further limitations, &c., in the same manner as if John and his lineal male 
 issue had been inserted nominatim in the charter in 1707. On the death of the Marshal, both John and James claimed the dignity 
 by Petition to the Crown, and their claims being referred to the House of Lords for consideration, the House resolved that the 
 nomination executed by Earl John in 1747 was " not valid in law," and that James Dalrymple, one of the Petitioners, " has a right 
 " and title to the honours and dignities of Earl of Stair, Viscount Dalrymple," &c. — Lords' Journals. — Hobertson's Proceedings, &c. 
 pp. 2G1 seqq. 
 
 * MS. Memorial, in the Westerhall Charter-chest. 
 
 t Various instances occur in England of the surrender of honours to the Crown, both absolutely and for new investiture ; 
 and in 1660 it was held by the Officers of the Crown in the case of Kobert Viscount Purbeck, that he might legally surrender his 
 dignities to the Crown, and a fine was accordingly levied by the Viscount of all his dignities to the King. But it had been 
 affirmed by a Resolution of the House of Lords in the case of the Barony of Grey de Ruthyn in 1648, " that no person that hath any 
 " honour in him, and a peer of the realm, may alien or transfer the honor to any other person ;" and " that no peer of the realm can 
 " drown or extinguish his honour, but that it descends to his descendants, neither by surrender, grant, fine, nor any other conveyance 
 " to the King."— Lords' Journals. And, in the case of the Viscounty of Purbeck, as claimed in 1675 by Robert Villiers, son of the 
 Robert Viscount Purbeck who had resigned his dignities to the Crown in 1660, and referred to the House of Peers, it was likewise 
 resolved, " That no fine now levied or at any time hereafter to be levied to the King can bar such title of honor, or the right of any 
 " person claiming under him that levied or shall levy such fine." — Ibid. — Upon which Resolutions Cruise remarks (in words which 
 I have already cited, supra, p. v), " Where the House of Peers has entered into resolutions of a general nature, as in the case of the 
 " Barony of Grey of Ruthyn, respecting the alienation of dignities ; and in that of the Viscounty of Purbeck respecting the 
 " surrender of dignities to the Crown, they cannot be considered as having the force of laws," — " the Resolutions of the House qf 
 " Peers in claims to dignities upon a reference from the Crown " being, as he had previously laid down, " merely for the purpose of 
 " information," and not to " be considered as judgments in any sense of the word." On Dignities, pp. 298-9. — And elsewhere he 
 states, with reference to the resolution in the Grey de Ruthyn case, " this Resolution cannot be considered as having the authority of 
 " a law; but it is now understood that dignities are absolutely inalienable." Ibid., -p. 111. — But whatever might be the understanding 
 in England, with reference to surrender and regrant of dignities, in 1748, Scotland, where such surrender and regrant were matters 
 of every-day occurrence up to the very moment of the Union, (") was specially protected by the Treaty of Union in the enjoyment 
 of her ancient privileges in this as in other matters of private right enjoyed previously to that Treaty; and the judgment in question 
 was in direct violation of the right and privilege in question— proceeding, as it did, in the words of Sir William Pulteney, " upon the 
 " footing of the English law " — which is conclusive in the matter. The affirmation in more recent times by Lords Mansfield, 
 Brougham, and others, (presently to be noticed,) that Scottish law is the rule in Scottish cases before the House of Lords, distinctly 
 condemns and repudiates the Resolution above commented upon. 
 
 It is further to be observed, that the decision in the Stair case could not have arisen from ignorance of the Scottish law and 
 usage on the subject, inasmuch as the Court of Session, in a Report to the House upon the state of the Scottish Peerage (hereafter 
 to be mentioned), in 1740, had fully informed the House of it in the following words: — "The practice of Scotland went still 
 further " (i. c. than the practice, previously adverted to, of resigning honours " for new grants of those honours to such a series of 
 " heirs as they " the "peers" of Scotland— "intended for their successors ") — "and it was usual to obtain grants of honours, not only 
 " to the grantee and his heirs male and of tailzie, referring to the particular entail then made, but also to his heirs of tailzie whom 
 " he might thereafter appoint to succeed him in his estate, and even to any person whom lie should name to succeed him in his honours at 
 " any time in his life, or upon deathbed." — Hobertson's Proceedings, p. 221. 
 
 It is unnecessary to add that, however inexpedient such law and usage might be in the estimation of the House of Lords, the 
 House were bound to advise the Crown according to that law and usage, and not according to their private opinion (if such was enter- 
 tained) as to that inexpediency, in 1748. Lord Eldon, as may be surmised from the passage cited sup-a, p. lvi, would have decided 
 very differently. 
 
 X The Article is as follows :— " XXIII. That the foresaid sixteen Peers of Scotland, mentioned in the last preceding Article, 
 " to sit in the House of Peers of the Parliament of Great Britain, shall have all privileges of Parliament which the Peers of England 
 " now have, and which they or any Peers of Great Britain shall have after the Union, and particularly the right of sitting 
 " upon the trials of Peers ; and in case of the trial of any Peer in time of adjournment or prorogation of Parliament, the said sixteen 
 " Peers shall be summoned in the same manner, and have the same powers and privileges at such trial, as any other Peers of Great 
 " Britain. And that in case any trials of Peers shall hereafter happen when there is no Parliament in being, the sixteen Peers of 
 " Scotland, who sate in the last preceding Parliament, shall be summoned in the same manner, and have the same powers and 
 " privileges at such trials, as any other Peers of Great Britain. And that all Peers of Scotland, and their successors to their honours 
 " and dignities, shall, from and after the Union, be Peers of Great Britain, and have rank and precedency next and immediately 
 " after the Peers of the like orders and degrees in England at the time of the Union, and before all Peers of Great Britain, of the 
 " like orders and degrees, who may be created after the Union, and shall be tried as Peers of Great Britain, and shall enjoy all 
 
 (•) As illustrated, for example, in the Kincardine case, and the heirs male of his body, whom failing, to his own nearest 
 
 already cited, supra, p. LXII.— In vindicating the legality of the heirs male whomsoever— under which latter limitation my own 
 
 usage above discussed I do so disinterestedly, my family having family, who had been the next heirs male by the preceding 
 
 been excluded from the Earldom of Crawford for two centuries settlements or entails of the dignity and estates in 1587, 1564, 
 
 by the intrusion of remoter heirs male, in consequence of the 1546, and 1541, and who were only postponed by the resignation 
 
 resignation of the Earldom by Ludovic 16th Eari of Crawford and regrant in 1642, ultimately succeeded, on the extmction of 
 
 to King Charies I. in 1642 for a new grant (with the ancient the intermediate or interpolated line of the Byres in the person 
 
 precedency and privileges) to himself and the heirs male of his of George 22nd Earl of Crawford, in 1808. 
 
 body, whom failing, to John lOth Lord Lindsay of the Byres 
 
 K 2 
 
LXTIII ADDRESS TO THE QUEEN. 
 
 investigated and decided upon by the House of Peers alone — whether on reference from the Crown, as stated by a compara- 
 tively recent authority, * or on the ground, as maintained at a period of nearer approximation to the commencement of the 
 innovation in question, f that the Peers are the only judges of their own privileges, and that questions of peerage appertain 
 exclusively to the jurisdiction of the House of Lords. Under any circumstances, indeed, the concession of a boon cannot 
 neutralise or supersede a pre-existing legal right ; and there have been many instances since the days of Cassandra in which 
 the introduction of a privilege has proved, like that of the Grecian horse within the walls of Troy, destruction in disguise. 
 But, independently of this — the Crown having divested itself in Scotland of all jurisdiction in civil causes, including peerages, 
 in favour of the Court of Session, and the jurisdiction over peerages exercised accordingly by the Court of Session at the time 
 of the Union, as well as the right of the Subject, as then enjoyed, to resort to that Court, having been legally reserved to the 
 Court and to the Subject by the Treaty of Union — under these circumstances the English principle by which ])eerage cognisance 
 is excepted from civil causes and reckoned inter regalia is inapplicable to Scottish peerages, and the submission of claims to such 
 peerages " to the arbitrary decision of the Crown " % under the first of the above theories, could be no " privilege " in the eyes 
 of Scottish peers ; while the latter theory, that the House of Lords possesses an original jurisdiction over peerages, is grounded 
 on a palpable and vital misconception. The peers of England previously to the Union had no innate cognisance in claims to 
 honours, nor any right distinctive from the community of having their claims adjudged upon either by themselves or by any 
 special tribunal. They possessed no such privilege ; the Crown alone decided upon such claims — the usual course being to 
 refer the claim to the law officers of the Crown, or, if of a complicated nature, to a court of law — the Crown being competent, 
 then as now and now as then, to refer it to any tribunal it might think fit, and the Crown deciding upon the report of that 
 tribunal. Tlie clause in the Treaty of Union conferring the "privileges " enjoyed hy the English peers upon those of Scotland 
 could not therefore convey u, right which the former did not possess. Moreover, it is against all legal rule and constitutional 
 possibility that the innate cognisance of the Court of Session and the correlative rights of the Subject could have been annulled 
 indirectly or by implication, as by the clause in the Twenty-third Article of the Treaty of Union now under consideration ; nothing 
 could suffice but a clear and distinct rescissory enactment, couched in most express terms — which never passed. But the fact 
 is, that, so far from there having been any idea or intention of construing the Treaty of Union favourably to the Scottish 
 Peerage during the earlier part of the last century, the Twenty-third Article and the Treaty in general were construed, or 
 rather disallowed, in the most strict and unjust manner, against the Scottish Peerage ; insomuch that Scottish peers who had 
 been created British peers subsequently to the Union were, by a Resolution of the House of Lords, in 1711, excluded as such 
 from Parliament, notwithstanding the remonstrance of the Sovereign, during the greater part of the century, — as in the case 
 of the Dukes of Hamilton, created Dukes of Brandon by patent in 1711, but who were not allowed their seats in Parliament 
 from that year till 1782, when the Resolution passed by the House of Lords in 1711 was rescinded by a counter Resolution of 
 the same assembly; and in that of the Dukes of Queensberry, similarly created Dukes of Dover in 1708, but whose right, 
 although after summons to Parliament and sitting in Parliament on the part of the original patentee (which had not obtained 
 in the case of the Dukes of Brandon), was also denied (in defiance even of English rule and principle, both precedent, 
 existent, and subsequent, as applicable in such a case) in the person of his son, " the good Duke " of Queensberry, in 1719, 
 with subsequent deprivation of that son's legitimate seat and dignity till the year 1778, when he died without issue and the 
 honour became extinct.§ The theory, or impression, therefore, on which the innovations of the House of Lords have been 
 sought to be accounted for, is consequently, in every point of view, quite groundless and untenable. 
 
 XI. Tlie Court of Session nevertheless assert and exercise their ancient jurisdiction in peerages, as in tlie Lmat case 
 in 1730, the Oxenfurd case in 1733, Sfc, subsequently to the Union, — although that jurisdiction gradually 
 becomes dormant, and has so continued till the present time. 
 
 But, during the unwarranted proceedings on the part of the House of Lords which I have, as above, detailed, the 
 Lords of Session by no means reckoned their jurisdiction in peerages abrogated or foreclosed. I have already stated their 
 proceedings and decision in the Kincardine case at the very moment of the Union, and at a period when, if ever, their 
 jurisdiction would have been questioned if not legally pertaining to them. They adjudged likewise in the claim to the Barony 
 of Lovat in 1730, when, after a formal argument iyi fmv contradictor io, they at once sustained their own competency and 
 decided in favour of the heir male, without the slightest cavil or exception in any quarter, whether North or South of the 
 Tweed ; and the successful competitor, Simon Lord Lovat, was tried, attainted, and executed as a peer, in England in 
 virtue of this decision, in 1745. || And the Court similarly sustained their competency in the case of the Viscounty of 
 Oxenfurd, or Oxfurd, in 1733, although, from the claimant removing his claim (by petition to the King) to the House of 
 Lords, no decision followed in the Court of Session upon the claim itself. 
 
 I may cite here the arguments advanced by the respective counsel in this latter case, as affording an interesting 
 contemporary illustration of the contending views with respect to the jurisdiction of the Court of Session which I have been 
 endeavouring to lay before Your Majesty, — and introductorily to which it is only necessary to premise, that, in order 
 to evade and delay the real point at issue between the claimants, the defender, who had assumed the dignity without 
 authority, did not attempt to join issue or to meet the pursuer upon the merits of the claim, but simply objected to the 
 competency of the judicature, the Court of Session, which seems to have been his sole resource. 
 
 The argument for the defender was as follows, as recorded in the Minutes of the process : — " That (he) the defender 
 " was in possession of the title and dignity of Viscount of Oxfurd ;T" that he was thereby entitled to the privileges of a peer 
 
 " privileges of Peers as fully as the Peers of England do now, or as they or any other Peers of Great Britain may hereafter enjoy 
 " the same, except the right and privilege of sitting in the House of Lords, and the privileges depending thereon, and particularly 
 " the right of sitting upon the trials of Peers." 
 
 * Wallace's Nature and Descent of Ancient Peerages, 1785, p. 398. — Vide infra, pp. lxx, and 368 n. **. 
 
 t Vide infra, p. lxix. j Wallace, ut supra. ' 
 
 § A Statement of the case of the Dukedoms of Dover and Brandon, with an enumeration of the results that flow from it 
 illustrative of the present argument and of other points advanced in the preceding Address to Your Majesty, will be found in the' 
 following Article, No. V, of the present Appendix, infra, pp. lxxii sqq. 
 
 II Xecords of the Co«ri,— Riddell's Peerage and Consistorial Law, pp. 285, sqq. and infra, pp. 366, 368.— The Act of Parliament 
 at present passing through the legislature, reversing the attainder of Simon Lord Lovat, so as to restore the dignity to the heir 
 male collateral of the family, the present Lord Lovat (by later creation, in the British peerage), will thus proceed on a distinct recoa- 
 nition of the decision of the Court of Session in 1730. 
 
 % But merely by assumption, and in virtue of an inept Exchequer charter, purporting to convey the honours with the 
 
ADDRESS TO THE QUEEN. LXIX 
 
 ' ' of Great Britain ; that it was a rule of the law of England that the House of Peers were the only judges of their own privileges ; 
 " that they could not be tried in bar of the courts of law in England, was fact in the Court of Session, and the defender 
 " offered to prove it ; and, 
 
 " Secondly, That it was one of the privileges of Peers, that the right of their Peerage could not he tried directly hut in 
 " tJie House of Peers ; that the ordinary courts of law at Westminster, when a cause came regularly before them, might try 
 " the question whether either party was a peer, as an incident in the principal cause, from the principle that every Court 
 " behoved to have a power to extricate its own jurisdiction ; and therefore it was necessary, in order to the decision of a cause 
 " brought into the court of law, to determine whether either of the partys was a Peer or not ; there, from necessity of the 
 " thing, the right to the Peerage [was discussed] in the same way that a Presbytery judged of a right of Patronage, or 
 " whether a party that voted in the call of a Minister was an heritor. But tJiat tlie Courts of law had no original jurisdiction, 
 " nor coidd they determine hetwixt two partys which of them was the Peer, or, upon an action brought, to declare any one person 
 "to he a Peer; that this question helonged exclusively to the jurisdiction of tlie House of Lords; that any Peer of Great 
 " Britain claiming his Peerage hehoved to apply to the House of Lords for ascertaining his right, and could not insist in a 
 " Declarator in a court of law." 
 
 To which the Lord Advocate — Duncan Forbes of Culloden, so celebrated for his learning and integrity, and afterwards 
 Lord President of the Court of Session— replied on behalf of the pursuer, — 
 
 " Prima, That there was a great difference betwixt the priviledge of Peers that were acknowledged to be such, and 
 " the right to the Peerage. That, however the House of Lords might reserve to themselves the sole right of judging wJuit 
 " was the privilege of Peers, yet it wduld not from thence follow that they luid the right of judgeing hy way of Declarator of 
 " the right to a Peerage, much less that they had the exclusive jurisdiction in such Declarator. On the contrary, it is certain 
 " that they had no origincd jurisdiction in any matter of right whatever, as should be noticed more fully afterwards. 
 
 " And, Secundo, That there was a great difference, in point of jurisdiction, betwixt the privileges of a Peer and the 
 " privilege of Parliament. That the House of Peers had always claimed, and been possest of, an exclusive jurisdiction with 
 "respect to privileges of Parliament. They had excluded all other courts from judging who had a right to be called to, 
 " or to sit in Parliament ; and where the question was with regard to a seat in Parliament, no other court in England had 
 " been in use to interfere. And in the same manner with respect to the privileges competent to Peers, in consequence of 
 " their seat in Parliament. But the decisions of the House of Peers with respect to privilege of Parliament had no influence 
 " neither upon the Peerage nor upon the other privileges competent to a Peer ; and for this he appealed to the noted case 
 " of my Lord Banbury, who was found by the House of Peers to have no privilege of Parliament, and yet by the courts of 
 "law he was afterwards found to be a Peer, and to have the privilege of Peers;* and it is well known, that the House 
 " of Peers had refused to give a seat in Parliament to two Peers of Scotland that had, after the Union, been created Peers 
 " of Great Britain, yet it was certain they were in all other respects Peers of Great Britain; and if by any accident the 
 " Peerage of Scotland should happen to be sunk, they would remain Peers of Great Britain, though they were excluded from 
 " the privilege of Parliament, f 
 
 " And, Tertio, That the House of Lords had no original jurisdiction in any cause whatever, and therefore no Declara^ 
 " tor of a right of Peerage could he hrought before them. That the only form in which they judged of the right to a Peerage 
 " was either by incident, in another question, or application was made to the Crown claiming a peerage, [when] the King was 
 "in use to refer the matter to the House of Peers /or aciwice, who therefore inquired into the case, and pronounced no 
 "judgment, but advised the King what was proper for him to do ;J and therefore the jurisdiction of the Court of Session 
 " could not be excluded upon the account that the House of Peers had an exclusive jurisdiction, for it is certain they had 
 " no jurisdiction at all in such a Declarator ; nor was it any better objection to the jurisdiction of the Court, that the courts 
 " at Westminster had no jurisdiction in such an action, for no Declarator of any right whatever was competent to them. They 
 " had no such form. But then, as by the law of Scotland every Subject was intitled to declare any right competent to him, 
 " whether a right to lands, to an office, jurisdiction, or a Peerage, so the Court of Session were the judges competent and the 
 " ONLY judges in such Declarator ; and accordingly many instances may be brought of Declarators of Peerage that have been 
 " carried on before the Court of Session, particularly the noted case in the 1633, Oliphant contra Oliphant, and in many 
 " other instances. And as, by the Articles of Union, the private rights of the Subject were reserved, and the jurisdiction of the 
 ' ' Court of Session, the same right of pursuing Declarators of any right competent to the Subject remained with them, and the 
 " power of judging in such Declarators remained ivith the Court of Session, after the Union. ^ And so it was adjudged in 
 " the mutual Declarators betwixt the two competing Lords of Lovat, where, after the Decreet formerly pronounced had been 
 " reduced, and when Simon Lord Lovat came to insist in his Declarator, tJie question concerning the jurisdiction of the Court 
 " ivas stated for the defender, and tlie Court, after reasoning on the point, sustained their jurisdiction, and the Declarator 
 " went on, and your Lordships decerned in favours of the Pursuer." |{ 
 
 The accuracy and soundness of these latter views, as respects the Court of Session and the House of Lords, and the 
 competency of the former to adjudge in claims to Scottish peerages, cannot, I venture to think, escape Your Majesty's 
 observation ; and upon these views the Court, as above stated, sustained its competency in 1733, — although, as I have premised, 
 the claim to the peerage of Oxenfurd was not further prosecuted before the Court of Session. 
 
 Matters indirectly although intimately connected with rights to peerage have frequently been investigated and decided 
 by the Court of Session subsequently to 1730 and 1733, as in 1745, 1746, 1764, 1790, and 1833 ; f and in 1740 the Court, 
 
 estates, hut not proceeding on the sign manual or warrant of the Sovereign, which was imperative in order to carry honours, — 
 furnishing an apt illustration of the loose and reprehensible procedure of the clerks of Chancery, elsewhere commented upon in 
 this volume. 
 
 * See an account of this very remarkable case, and Lord Holt's judgment, in Cniise on Dignities, pp. 281, sqq. 
 
 t This refers to the cases of the Dukedoms of Dover and Brandon (in England), adverted to in the preceding page. 
 
 % Reference is here made to English practice only. 
 
 § This is in full accordance with my argument, ut supra. 
 
 II First printed from the original, preserved among the m-its in tlie process in the Banheilour Charter-chest, in Mr. Biddell's P. and C. 
 Law, pp. 294 sqq. 
 
 H In 1745, when on a petition by John Earl of Breadalbane that the Court would grant a warrant to the Director of Chancery 
 and his officers to enroll the patent of his honours, dated the 13th August 1681, in the Great Seal Register, and afterwards to give 
 him an official "extract" or exemplification thereof — which the Court, after due consideration of the petition and the patent. 
 
LXX ADDKESS TO THE QUEEN. 
 
 at the request of the House of Lords themselves, presented to them a full and elaborate Report on the state of the Scottish 
 Peerage at that period — signed and probably drawn up by the Lord President, Duncan Forbes of Culloden — in which they 
 not only refer to the competency of the Court in honours previously to the Union, but cite their own decision in the Lovat 
 case in 1730, and assert the obligation the Court lay under to decide upon a peerage claim if duly brought before them.* But 
 a change of feeling had passed over the popular mind before the year 1783, when Mr. George Wallace published his treatise 
 on ' The Nature and Descent of Ancient Peerages,' in which, speaking of the jurisdiction of the Court of Session, he states 
 as follows : — " The Court of Session, the Supreme Judicature established in Scotland to determine in most questions of 
 " property, and invested with an exclusive authority to judge concerning landed estates, exercised a jurisdiction in compe- 
 " titions about peerages. Claims entered to them were held after, as well as before the Union,' to fall within its ordinary 
 " department. In 1730 that Court judged in the suit brought for ascertaining the person who had right to the Lordship of 
 " Lovat ; and a doubt seems not then to have been entertained, either on the Bench or at the Bar, concerning their power to 
 " take cognisance of the matter. It was mily lately that Scotch lawyers were taught to number among the privileges acquired 
 " to the Peers of Scotland by the Union, that of subjecting their legal pretensions to the arbitrary decision of the Crown" t — a 
 fallacy which I need not allude to further, having already disposed of it; but which undoubtedly prepared the way for the 
 impressions recently avowed and acted upon in the House of Lords with such fatal effect against my father's interest.f 
 
 The historical result is this — that no peerage case has been directly adjudged by the Court of Session since that of 
 Lovat in 1730, although the judicial decision by the Court in the Oxenfurd case, in 1733, in assertion of its own competency 
 in peerage claims, has stood conspicuous as a protest ever since, — ^the ancient jurisdiction of the Court in peerages has sunk 
 into dormancy, although not extinction — peerages have been claimed by Petition to the Crown, and the rights of the claimants 
 have been investigated by the House of Lords on reference from the Crown, and decided upon by the Crown after 
 consideration and approval of the Report of the House — and this has been the invariable usage for the last hundred years. 
 Usage, however, for even the most prolonged period, cannot derogate from or repeal an Act of Parliament of the United 
 
 granted by deliverance accordingly {Act and Decree Register of the Court of Session), — a proceeding involving inquiry into the 
 genuineness of the original patent and consequently the rights and purity of the peerage, and analogous to the warrant of the 
 House of Lords at the present day to the proper officers for entering a peerage, either dormant or merged at the time of the Union, 
 in the Union Roll, — a procedure admitted by lawyers to have been in virtue of the nohile officium possessed by the Session in civilibus 
 (Brown's Synopsis, art. Jurisdiction, vol. ii. p. 1126) ; and which the Court adopted, as by the testimony of one of the judges, Lord 
 Elchies, " because of a precedent, 26th November 1635, where the Court ordered a charter of doorkeeper of the Exchequer to be 
 " recorded" (Seports, vol. i. App., No. 3): — In 1746, when the Court of Session pronounced a decree of wakening and transference 
 of a declaratory action of the precedence of his dignity at the instance of William Earl of Sutherland against John Earl of Crawford 
 and Lindsay, — Sutherland charter-chest : — In 1764, when, on the 9th March that year, the Court, by their "Act and warrant," 
 authorised the registration of the patent of the Barony of Hollo of Duncrub, dated as far back as the 10th January 1651, in the 
 Great Seal Register — in the same manner as in the previous case of the Breadalbane patent (^Act and Decree Eegister of the Court, 
 and Great Seal Register) : — In 1790, when, on the 2nd February that year, the Court entertained the question of the right of Sir 
 James Sinclair of May to the Earldom of Caithness, allowing the freeholders of Caithness, who had on this account objected to his 
 continuing upon their EoU, to go into a peerage discussion for determining whether or not he was entitled to the dignity (Faculty 
 Seports, of that date) : — And in 1833, on the 2nd March that year, when the Court discussed and disposed of an action, at the 
 instance of the pretended Earl of Stirling, for proving the tenor of an asserted warrant, under the Privy Seal, of a regrant by 
 Charles I. of the Stirling honours and estates, 7th December 1 639, the former of which he had assumed in terms of the limitation ; 
 when the Court went into the nature and forms of such conveyances — although (undoubtedly) the process immediately related to 
 lands (Shaw's and Dunlop's Seports). — Siddell's Peerage and Consistorial Law, pp. 290 sqq. 
 
 * This Report is printed in the ' Acts of Sederunt' of the Court of Session, edit. 1790, pp. 335 sqq. ; and in Robertson's Pro- 
 ceedings, pp. 200 sqq. The passage above referred to is as follows : — " As the constitutions in most ancient cases do not appear, and 
 " the chief evidence of the titles being hereditary is the successors regularly possessing the predecessors' rank in Parliament, it is 
 " not possible, without hearing the allegations that may be made, and examining the evidence that may be brought by contending 
 " parties, to form any judgment of the limitations of such ancient peerages, as there is not, so far as they " (the Lords of Session) 
 " know, any maxim hitherto established in the law of Scotland, that can be applied universally to determine the descent of peerages 
 ' ' where the original constitution, or new grants upon resignation, do not appear ; and o/ the difficulty that occurs in settling such 
 " questions they lately had aii instance in the case of the peerage of the Lord Fraser of Lovat, which is undoubtedly subsisting. The last Lord, 
 " who sat in the Parliament 1695, dying without male issue, his eldest daughter, and, after her death, her eldest son, assumed the 
 " title, having obtained before the Court of Session, j'n absence of the heir-male, a decreet, declaring their right thereto : and, on the 
 " other hand, his nearest heir-male claimed it, insisting that the honours were descendible to heirs-male, and brought his action 
 " before the Court of Session, to have it so found and declared, and to reduce and set aside the foresaid judgment by default. The 
 ** Court, where actions of the same kind had been thoiight competent, and as such sustained before the Union, proceeded to hear the cause * and 
 " the parties having produced, of either side, all the documents they could, and having been fidly heard thereon, the Court reduced and set aside 
 *' the foresaid decreet in absence, and found the title in question descendible to heirs-male, and the Defender has hitherto acquiesced. But 
 " whether this judgment is of sufficient authority they humbly submit to your Lordships, having made mention of it chiefly to 
 " shew that, though, when the parties interested join issue, and furnish all the light in their power towards the determination of the cause, the 
 " Court must give their opinion ; yet, where no party that may be interested is bound to appear, and to produce or point out in the 
 " records, so far as they may be found there, the documents that are necessary to instruct their claim, it is next to impossible for 
 " any Court, or indeed for human industi-y, to make up a state of the interests of so many persons, as fall under this obsei-vation 
 " with any tolerable certainty." On which I would observe, that, while the words " But whether this judgment is of sufficient 
 " authority they humbly submit to your Lordships," taken isolatedly and by themselves, may be open to the construction that the 
 change of feelings and practice which undoubtedly prevailed during the latter part of the last century is foreshadowed in this 
 very Report itself; those words must be taken in connection with the remainder of the passage, both precedent and subsequent to 
 the words in question, and with the fact that the Court had sustained its own competency in the Oxenfurd case only seven years 
 previously, and that the decision in 1730 in favour of the Lovat heir-male was fully recognised in 1740 and afterwards till the trial 
 and execution of that heir-male, Simon Lord Lovat, for high treason, in 1745. The words in question have, in fact, primary 
 reference to the individual merits of the judgment in the Lovat case. 
 
 f Nature and Descent, &c., p. 398. 
 
 X For Lord Kames' statement in his ' Law Tracts' (p. 211) (as quoted by Lord St. Leonards), to the effect that " to deter- 
 " mine a right of peerage is the exclusive privilege of the House of Lords," and that " the Court of Session . . assumed a jurisdiction 
 " which they had not, when they sustained themselves judges in the dispute of precedency between the Earls of Crawford and 
 " Sutherland," and that " it was a still bolder step to sustain themselves judges in the peerage of Oliphant, mentioned in Durie's 
 " Decisions, and in the peerage of Lovat, decided a few years ago," I may refer to p. 220 infra., in this volume, — merely remarking 
 
ADDRESS TO THE QUEEN. LXXI 
 
 Kingdom, and especially an Act of such transcendant importance and dignity as the Treaty of Union ;* and the partial non- 
 user of its rights by the Court of Session, as secured and protected by that Treaty, cannot therefore be construed prejudi- 
 cially to those rights and interests— and the more so as it is owing to no acquiescence or dereliction of its own, but solely 
 to the practice of Claimants themselves, who are free agents in the matter, that that non-user (in the matter of actual 
 peerage claims) can be imputed to it. On the contrary, the dicta of Sir William Blackatone, " that the municipal " or civil 
 " laws of Scotland are ordained," by the Articles -and Act of Union, " to he still observed in that part of tlie island," i. e. 
 Scotland, " unless altered hy Parliament ; and as the Parliament has not yet thought proper, except in afeiv instances, to alter 
 " them, they still, with regard to the particulars unaltered, continue in full force," ■\ appear to be conclusive in favour of the 
 argument I have here submitted to Your Majesty. 
 
 XII. Dawn (it is to he hoped) of better days. 
 
 I have only to add that the recognition by the House of Lords, already alluded to, in 1782, of the injustice of the 
 Resolutions of the House in 1711 and 1719, by which it had excluded the Dukes of Hamilton and Qiieensberry from their 
 seats as Dukes of Brandon and Dover in the peerage of the United Kingdom, heralded the advent of a more just and impartial 
 course of proceeding towards Scotland in judicial matters ; and that during the last century, and mainly through the instru- 
 mentality of Lords Mansfield, Marchmont, and Loughborough, of Lord Eldon, and of Lord Brougham, the principle has 
 asserted itself in the House of Lords that in cases of appeal from the Court of Session, and in the consideration of claims to 
 Scottish jjeerages on reference from the Crown, the House is " a Scotch Court,, .attended by Scotch peers," and bound to 
 "judge'' and its "decisions" to be " regulated" " by the rules of the laws of Scotland." % A principle for which, how- 
 ever imperfectly as yet appreciated and applied (as evidenced by the fate of the recent Montrose Claim), Scotsmen may be 
 grateful as an instalment of justice. 
 
 The results of this Narrative and Inquiry may be summed up pretty nearly in the words with which it is prefaced, — to 
 
 wit, as follows: — 
 
 I. That the Lords of Session, the Supreme Civil Court of Scotland, were invested with plenary jurisdiction in 
 peerage cases, by inherent right, without appeal to King or Parliament, previously to the Union and specially 
 in the year 1648, when they adjudged in favour of the validity of the Glencairn patent of 1488 as not affected 
 by the Act Rescissory, — from which judgment my father infers, as claiming under the Montrose patent, granted 
 at the same time with that of Glencairn, that the said Montrose patent was equally unaffected by the said Act 
 Rescissory, and that he is consequently at this moment dejure Duke of Montrose. — And, 
 
 II. That the ancient and unquestioned right and privilege of the Court of Session of adjudging in peerage claims, 
 and the right and privilege of the Subject to resort to that tribunal in prosecution of such claims, as enjoyed 
 previously to the Union, were reserved to the Court and to the Subject by the Treaty of Union, and have 
 never been rescinded or modified ; that those rights and privileges have been exercised, with recognition on 
 
 that the first of these cases cited hy Lord Kames -was in 1706, when, according to Lord Mansfield, " the Court of Session had . . 
 " most certainly a competent jurisdiction" {supra, p. LViii) ; that the second, or Oliphant case, was as far back as 1633, even before the 
 Claim of Eight (infra, p. 549, n. *) ; and that the decision in the third or Lovat case, in 1730, was recognised as valid and binding, 
 not only by the unsuccessful competitor, but by the British Parliament (supra, p. lxvi), and is at this actual moment the basis (as 
 mentioned in a former page) on which the reversal of the Lovat attainder is now proposed to Parliament in favour of the heir male 
 and representative of Simon Lord Lovat — recognised as such, and thus the object of Royal favour in virtue of the decision in question. 
 For Lord Stowell's character of Lord Kames as a lawyer, vide infra, p. 366, n. *. 
 
 * " No custom can prevail against an express Act of Parliament." — Stephen's Commentaries, vol. i. p. 60. 
 
 f Blackstme's Commentaries, vol. i. pp. 98-9. — That by the " municipal " Sir WiUiam means the civil laws of Scotland is 
 clear from the analysis of the Treaty of Union which immediately precedes the passage quoted in the text, and from his definition 
 of the " municipal or civil law," earlier in the volume, as " the rule by which particular districts, communities, or nations are 
 " governed ; being thus defined by Justinian, 'jus civile est quod quisque sibi populus constituit.' I call it," he adds, " municipal law, 
 " in compliance with common speech; for though, strictly, that expression denotes the particular customs of one single municipium 
 " or free town, yet it may with sufficient propriety be applied to any one state or nation which is governed by the same laws and 
 ■" customs." Ihid., p. 44. 
 
 % For the dicta of Lords Loughborough, Mansfield, Marchmont, and Brougham, vide the Appendix, infra, p. 340, note (°). — But 
 no one has laid down the principle above contended for with such clearness, or acted upon it with such conscientious consistency, as 
 the late Lord Chancellor Eldon. " Some thought," he writes in his autobiographical memorials, " that in decision in Scotch causes 
 " I was too much influenced hy the principles of English lam. There was no one danger against which I guarded myself so anxiously as 
 " the danger that I might he so influenced. Whether all the pains I took to protect myself and the Scotch suitors against this danger 
 " were thoroughly effectual, I cannot determine ; I believe they were. But lui must know little of the operations of the human mind, 
 " wAo can be positively certain that lie can witlidraw, in the administration of Scotch judicature, wholly and absolutely from that mind the 
 *' influence which "may have been created in it by tlie daily and hourly contemplation of the rules and principles of English law through a 
 " long course of years." It was in consequence of this apprehension, he states, that he frequently " remitted" causes — in which 
 appeals from the judgment of the Court of Session were brought to the Lords— to the Court of Session again, for further considera- 
 tion, before the Lords proceeded to judgment. " But let it be considered," he adds, " that an English lawyer, placed at the head 
 " of a Court of Appeal from the judgment of Scotch Judges, is placed in a very awful and responsible situation when he feels himself 
 " disposed to reverse a judgment, an unanimous judgment, of Scotch Judges in a Scotch cause. If he cannot conscientiously confirm 
 " the judgment, he cannot be much blamed if he states his difficulties, and desires the Scotch Judges to state how they dispose of 
 " such difficulties." Zife, by Twiss, vol. iii. pp. 433, 434. — In accordance with which principles, and on a strict principle of reciprocal 
 obligation, his Lordship laid it down in his judgment in the case of Woolley v. Maidment, 6 Dow, 276, that " as it was the duty of the 
 " House of Lords, indeciding Scotch cases, to guard against the influence of English impressions, so it was the duty of the Lords of Session, in 
 "deciding questions of English law, to recollect and resist their natural bias of Scotch Judges to Scotch doctrines." And again, " If we 
 " oitght, in the administration of Scotch law, to recollect that toe are English Judges, . . when tliey " (tlie Lords of Session) " are dealing with 
 " questions of English law, they should recollect that they are Scotch Judges." — Ihid. p. 463 : — Than all which nothing can be more 
 equitable and just. 
 
LXXII ADDRESS TO THE QUEEN. 
 
 the part of the Crown and legislature, since the Union ; that those rights and privileges, although for the 
 moment dormant through non-exercise, are still inherent in the Court and legally appertain to the Subject ; 
 that the Court of Session is thus emphatically a most proper and competent judicatory in cases of Scottish 
 peerage Jaw ; and that the modern system of procedure in Scottish peerage claims, by Petition to the 
 Crown, reference of that Petition to the House of Lords, and subsequent decision by the Crown on the advice 
 or opinion tendered by the House, is of English origin, unwarranted by, and opposed to, the letter and spirit 
 of the Treaty of Union, and— whatever may be the authority gathered to it by the custom and usage of recent 
 years — is still liable to the grave objection that cases dependent on Scottish law are thus subjected to the 
 judgment of men whose ability and learning, however confessed and eminent in matters of English practice, 
 are insufficient to guard them from falling into grievous error when dealing with principles and practice 
 which they are necessarily unacquainted with, as being in effect practically a foreign judicature — a fact of which 
 the recent Report to Your Majesty upon the present claim furnishes a signal warning and example. 
 
 V. 
 
 Case of the Dukedoms of Dover and Brandon, in the peerage of Great Britain, conferred 
 UPON the Dukes of Queensberry and Hamilton subsequently to the Union — illus- 
 trative OF the ■ argument in the preceding ' Narrative and Inquiry,' and of various 
 
 POINTS MOOTED IN THE ' ADDRESS ' TO HeR MaJESTY : — REFERRED TO SUpra, pp. XXIX, 
 LXVIII. 
 
 The Dukedom of Dover was conferred by Queen Anne upon James second Duke of Queensberry, by patent dated 
 the 26th May 1708,* with limitation to his second son, Charles Earl of Solway, and the heirs male of his body — the Duke's 
 eldest son being passed over in consequence of mental incapacity. The patentee was duly summoned to Parliament as Duke 
 of Dover, and sat as such in Parliament, without objection or opposition, till his death, on the 6th July ]71I.t 
 
 Among other Resolutions of the House of Lords, after the first election of the Scottish representative Peers in 1708, 
 was the following, " That a Peer of Scotland claiming to sit in the House of Peers by virtue of a Patent passed under the 
 " Great Seal of Great Britain after the Union, and who now sits in the Parliament, had no right to vote in the election of the 
 " sixteen Peers who are to represent the Peers of Scotland in Parliament." In accordance with this Resolution the Duke of 
 Dover's vote in the election of the Scottish Peers in 1708 was disallowed ; and in consequence of this disallowance, and other 
 disqualifications, the Marquis of Annandale was ultimately found to have had more votes than the Marquis of Lothian, 
 and the latter consequently lost his seat.J 
 
 The Dukedom of Brandon was (in like manner to that of Dover) conferred by Queen Anne upon James Duke of 
 Hamilton, by patent dated the 10th September 171 1.§ 
 
 But, on the 12th December 1711, (as by the Journals of the House of Lords,) " notice being taken, that in the list of 
 " the nobility delivered in by Garter King at Arms the 7 instant, there is inserted James Hamilton, Duke of Hamilton and 
 " Brandon, among the Dukes," and the House being informed that a Patent is lately passed the Great Seal for creating the 
 said Duke of Hamilton Duke of Brandon, the House " ordered" "that on Thursday the 20 day of this instant this House 
 " will take the said Patent into consideration," and that the proper officer should lay "the Privy Seal Bill of the said Patent 
 " before this House ;" and, on the 18th December, they further " ordered that the Duke of Hamilton shall be heard by his 
 " counsel" on the 20th instant, " before this House takes into consideration the said Patent," and also, " That all the Judges 
 " do attend this House," to give their advice and assistance in the usual manner, on the day in question. 
 
 These, and subsequent proceedings, took place without any reference or authority from the Queen whatever. 
 
 On the 20th December " the said Privy Seal Bill, with a copy of the enrolment thereof," having been produced and 
 read, and the Duke of Hamilton having been heard by his counsel, " and after debate, and reading some proceedings out of the 
 " Journal in the Duke of Dover's case," || " the question following was proposed to be put to the Judges, videlicet, ' Whether 
 " ' the Queen be disabled by the Act of Union to grant a Peerage of Great Britain, with all the privileges depending thereon, 
 " ' to any person who was a Peer of Scotland before the Union ? ' — Which being objected to, and a debate arising thereupon, 
 " this question was stated, ' That the Judges do now deliver their Opinions to this House upon the said proposed question ? ' 
 " — After further debate, the previous question was put, ' Whether this question shall be now put? ' — It was resolved in the 
 " negative. Then, it being proposed, ' That no Patent of honour granted to any Peer of Great Britain who was a Peer of 
 " ' Scotland at the time of the Union can entitle such Peer to sit and vote in Parliament or to sit upon the trial of Peers ' it 
 " was resolved in the affirmative." 
 
 It thus appears that the House, after summoning the Judges to deliver their Opinion for their guidance, abstained from 
 demanding that Opinion. 
 
 The following nervous Protest was entered against this Resolution : — 
 
 " Dissentient. Buckingham P. 
 
 " 1. Because, as we apprehend, by this Resolution the prerogative of the Crown in granting Patents of honour, with 
 " all privileges depending thereon, to the Peers of Great Britain who tvere Peers of Scotlandat the time of 
 " the Union, as well as the right of the Duke of Brandon to sit and vote in Parliament, are taken away : 
 " And this prerogative of the Crown, and right of the Duke, depending upon the construction of an Act of 
 
 * Great Seal Eecjister. \ Lords' Journals. 
 
 i Robertson's Proceedings, pp. 42 sqq. § Great Seal Register. 
 
 II Those with reference to the denial of his right to vote on the election of Scottish representative peers. 
 
ADDRESS TO THE QUEEN. LXXIII 
 
 " Parliament, though counsel by order of the House were heard at the bar, and all the Judges were (yrdered 
 " to attend at the same time ; yet the Opinion, of the Judges was not permitted to be ashed toiiching the con- 
 " stmction of the said Act of Parliament. 
 
 " 2. Because the prerogative of the Crown, as we conceive, in granting Patents of honour, with the privileges 
 " depending thereon, ought not, on the construction of any Act of Parliament, to be taken away, unless 
 " there be plain and express words to that purpose in the said Act ; and we conceive there are no such plain 
 " and express words (or that purpose in the Act of Union. 
 
 " 3. Because by this Resolution all the Peers of Great Britain who were Peers of Scotland at the time of the Union 
 " are supposed to be incapable of receiving any Patent of honour from the Crovrn, by virtue whereof they 
 " may be entitled to the privilege of sitting and voting in Parliament and sitting on the trial of Peers ; which, 
 " we conceive, is repugnant to the Fourth Article of the Act of Union, which declares the privileges, that 
 " there shall be a communication of all rights, privileges, and advantages which do or may belong to the 
 " subjects of either Kingdom, except where it is otherwise expressly agreed in those Articles, — in which we 
 " apprehend there is no such provision. 
 
 " 4. Because the Duke of Queensberry, in all respects in the same case as the Duke of Hamilton, was introduced, 
 " sat, and voted in this Hwise in matteis of the highest importance, in two several Parliaments, as Duke of 
 ' ' Dover, by virtue of a Patent passed since the Union ; and in consequence of such sitting and voting, his 
 " vote in the election of the Peers of Scotland was rejected; and, as a further consequence thereof, the 
 " Marquis of Lothian was removed from his seat in this House, — which he had an undeniable title to 
 " if the Duke of Queensberry's Patent as Duke of Dover had not given him a title to sit and vote in 
 " this House. 
 
 " 5. Because by this Resolution the Peers of Scotland are reduced to a worse condition in some respects than the 
 " meanest or most criminal of subjects. 
 
 " 6. Because we conceive this Resolution may be construed to be a violation of the Treaty between the two 
 " Nations. 
 
 " Okmonde, Winchelsea, Rivbks, Clarendon, Poulet, Oxford 
 "and Mortimer, Harcourt, C.S., Mar, Home, Loudoun, 
 " Orkney, Roseberrie, Hay, Kilsyth, Osborne, Boyle, 
 " Hunsdos, Balmerino, Blantyre." 
 
 Nor did the Resolution in question pass without remonstrance from a higher quarter : — 
 
 On the 17th January 1712, the Lord Keeper acquainted the House "that Her Majesty had commanded him to deliver 
 
 "a message to the House under Her Royal sign manual," — which message contained the following paragraph, viz.: 
 
 " There is one thing in which Her Majesty's subjects of the North part of this Kingdom are extremely concerned • the 
 " distinction such of them who were Peers of Scotland before the Union must lie under if the prerogative of the Crown is 
 " strictly barred against them alone. This is a matter which sensibly affects Her Majesty, and she therefore lays it before 
 " this House, earnestly desiring their advice and concurrence in finding out the best method of settling this affair to the 
 " satisfaction of the whole Kingdom." 
 
 On the 18th of January an Address to Her Majesty weis agreed to by the Lords, recapitulating the greater part of 
 Her Majesty's Message, but taking no notice of the paragraph just cited. A Committee, however, having been appointed 
 to talte the paragraph into consideration, and having reported thereupon to the House, the House, on the 25th January, agreed 
 to the following Report of the Committee, — " That the sitting of the Peers of Great Britain who were Peers of Scotland 
 " before the Union, in this House, by election, is alterable by Parliament, at therequest of the Peers of Great Britain who were 
 " Peers of Scotland before the Union, tvithout any violation of the Union:" — Or, in plain English, that if the Queen and the 
 Peers of Scotland were dissatisfied with the Resolution above cited, they had their remedy — the Scottish Peers might, on their 
 Petition, and without any violation of the Treaty of Union, be deprived of their privilege of sitting in Parliament by their 
 representatives ; and the Queen might then elevate as many of them as she should think fit to the dignity of British Peers. 
 
 This was all the satisfaction afforded to Her Majesty and the Peerage of Scotland, — and, after two further orders " to 
 " take into further consideration that part of Her Majesty's said Message which relates to the Peers of the North part of 
 " Great Britain," followed by adjournments, the matter dropped.* 
 
 In consequence of the preceding Resolution of the 20th December 1711, the Dukes of Hamilton were not allowed their 
 seats, as Dukes of Brandon, in the British Parliament, from 1711 till 1782, when, as will appear, the Resolution of the House 
 of Lords was rescinded by a counter Resolution, proceeding, justly and legally, upon a proper reference from the Crown in 
 their favour. 
 
 It has been already mentioned that James second Duke of Queensberry and first Duke of Dover died on the 6th July 
 1711, after having been summoned to Parliament and sitting in Parliament, without objection, as Duke of Dover, under a 
 creation by the Queen subsequently to the Union. Charles Earl of Solway, his son, attained his majority In 1719, and claimed 
 his summons to Parliament as Duke of Dover, under the limitation in his father's patent of the 28th May 1708. The pro- 
 ceedings that then took place may be given in the words of Mr. Cruise : — 
 
 " The case was referred by the Crown to the House of Peers " — which, it will be remembered, had not been the case 
 in 1711, — and there (in 1719) " it was argued on behalf of the Claimant, 
 
 " [1]. That the difficulty arose from the Resolution of the House in the Duke of Hamilton's case. 
 
 " [2], That the Articles of Union affecting this question were the Fourth, Twenty-second, and Twenty-third. By 
 " the Fourth, it was enacted, ' That from the time of the Union there shall be a communication of all rights 
 " ' and privileges belonging to each Kingdom, except where it is otherwise expressly agreed by the Articles.' 
 
 * Soiertson's Proceedings, pp. 52 sqq. 
 
LXXIV ADDRESS TO THE QUEEN. 
 
 " By the Twenty-second it was agreed, ' that, by virtue of the Treaty of Union, sixteen shall be the number 
 " ' of Peers of Scotland, to sit and vote in Parliament.' And by the Twenty-third, ' that these sixteen 
 " ' Peers shall have all the privileges of the Peers of Parliament of Great Britain. Also that the rest of the 
 " ' Peers of Scotland shall have all the privileges of the Peerage of England, excepting only that of sitting 
 " ' and voting in Parliament.' 
 
 " [3]. That in these Articles it was difficult to find out words which could be thought to disable the King from 
 " granting to a Scotch peer a patent of peerage of Great Britain, with the privilege of sitting in Parliament; 
 " or which disabled a Scotch peer from accepting such a patent. Especially when the rule of law was (and 
 " it was a rule without exception) that the prerogative of the King, of which the law was so regardful, 
 " could not be taken away by any Act of Parliament without plain and express words; more especially so 
 " valuable a part of the prerogative, whereby the Crown was enabled to encourage the merit of subjects by 
 " bestowing on them honours and titles. 
 
 " [4]. That the words of the Articles seemed so far from importing any such disability, that there was not so much 
 " as a negative in any of the Articles. There was indeed what seemed to be the reverse of this construction, 
 " the Fourth Article saying, ' There shall be 'a communication of all rights and privileges between the 
 " ' subjects of either kingdom, except where it is otherwise expressly agreed by these Articles.' And there 
 " was nothing expressed to the contrary in any of the Articles ; so that the subjects of each Kingdom, without 
 " any preference, disadvantage, or discouragement, were to be equally capable of the Sovereign's favour; and 
 " surely the Scotch peers were subjects as well as others ; and it was the intention of these Articles to 
 " encourage the subjects to do their best service to their Sovereign. 
 
 [5]. That, while " it was admitted that by the Treaty of Union only sixteen were to represent the Peers of Scot- 
 " land," "yet this did not hinder but that, by letters patent, more peers might be created. It was sub- 
 " mitted whether it could be intended by the above-mentioned Articles of Union, that those Scotch peers 
 " should be in a worse condition than the meanest of their fellow subjects ; in a worse condition than those 
 " who are no subjects, but aliens, — nay, worse than criminals ; since by such construction of the Articles as 
 " would disable peers of Scotland from sitting in the House of Lords, by letters patent, ail those things 
 " abovementioned were implied. For it was in the power of the King, if it was his pleasure so to do, to 
 " make a servant of a Scotch peer a peer of Great Britain; and then it were pretty strange that the King 
 " should not be able to make the master so. It was in the power of the King, for such merits as he alone 
 " was the judge of, to bestow honours on the meanest of his subjects. It was in his power to make an 
 '' alien a denizen, and then a nobleman. It was in the Crown's prerogative to pardon a criminal ; and if it 
 " were the Royal pleasure, and such criminal should have done service to the Crown, of which the Crown 
 " alone was to judge, such criminal might be made a peer. And it seemed harsh to say that a nobleman of 
 " Scotland, by all the services of his life, could not make himself capable of becoming a peer of Great 
 " Britain, and of voting in Parliament, by virtue of a patent; but that if he were to commit treason and 
 " be attainted, by which he would forfeit his Scotch peerage, and then were to be pardoned, from the time 
 " of such pardon he would be capable of being a peer of Great Britain, with the full privilege of sittini' in 
 " Parliament." — And, 
 
 [6]. That, " upon the whole matter, as the patent under which the claim was made had been allowed in the time 
 " of the Claimant's father, who in two successive Parliaments did sit and vote; and no objection could be 
 " made to this claim but what likewise had been made against that of his father; so it was hoped the House 
 " would be of the same opinion as to the son's sitting among them as their Lordships had been of in the case 
 " of his father, it being upon the same patent their Lordships would admit him to his seat. 
 
 " It was resolved and adjudged that the Duke of Dover had no right to a writ of summons to Parliament." * 
 
 In consequence of this Resolution the Duke of Queensberry was not allowed his seat, as Duke of Dover, in the British 
 Parliament, from 1719 till the period of his death, without issue, sixty years afterwards, on the 22nd October 1778, when the 
 Dukedom of Dover became extinct. 
 
 " The doctrine established in the two preceding cases " (those of Brandon and Dover), adds Mr. Cruise, " was 
 " reluctantly submitted to for a long time. But a descendant of the Duke of Hamilton who had been created Duke of 
 " Brandon having claimed that Dignity " by petition to the Crown " in 1782, the House of Peers, after consulting the Judges" 
 —which their predecessors, Your Majesty will remember, had no* done in 1719 — "came to a Resolution in favour of the 
 " Claimant, which effectually overturned their former Resolutions on this point. 
 
 " Douglas Duke of Hamilton, being the great grandson and heir male of James Duke of Hamilton, who was created 
 " Duke of Brandon in 1711, claimed that dignity."— It is to be observed that no Simmons to Parliament, nor sitting in 
 Parliament, as in the Dover case, had ever taken place in that of Brandon, which was therefore much less privileged • nor had 
 
 any 'res noviter veniens ad notitiam' furnished a reason for a subsequent appeal to the justice of the Sovereign. " The case 
 
 " being referred by the King to the House of Peers, the Committee of Privileges put the following question to the Judges : 
 " — ' Whether, by the Twenty-third Article of Union, which declares all Peers of Scotland to be Peers of Great Britain, 
 " ' with all the privileges enjoyed by the Peers of England, except the right and privilege of sitting in the House of Lords, 
 " ' and the privileges depending therein, the Peers of Scotland be disabled from receiving, subsequently to the Union, a 
 " ' Patent of Peerage of Great Britain, with all the privileges usually incident thereto ? ' 
 
 " The Lord Chief Baron delivered their unanimous Opinion :— ' TJiat by the Twenty-third Article of the Act of Union, 
 " ' which declares all Peers of Scotland to he Peers of Great Britain, with all the privileges enjoyed hy the Peers of England, 
 " ' except the right and privilege of sitting in the House of Lords, and the privileges depending thereon, the Peers of Scotland 
 
 * Cruise on Dignities, (citing the Journals of the House of Lords,) pp. 91 sqq. 
 
ADDRESS TO THE QUEEN. LXXV 
 
 " ' are not disabled from receiving, subsequently to the Union, a Patent of Peerage of Great Britain, with all the privileges 
 " ' usually incident thereto.^ 
 
 " ' The. House reported to His Majesty, that, having consulted the learned Judges, and considered their answer, 
 which was unanimous, to a question of law which arose in the course of their examination, they certified their humble 
 " ' Opinion and Advice, that the Duke of Hamilton was entitled to his writ of summons.' 
 
 " A writ of summons was issued to him accordingly, and he took his seat as Duke of Brandon. 
 
 " Since the preceding decision a great number of Scotch Peers have had English" (corrlge 'British') " dignities 
 " conferred on them, which haye been admitted by the House of Lords."* 
 
 The results that flow from the preceding facts and circumstances are, briefly, as follows: — 
 
 1. That the proceedings in the House of Lords in the case of the Dukedom of Brandon in 1711 were originated by 
 
 the House ex propria motu, without reference from the Crown — as in the case of the Barony of Dingwall, 
 discussed by the House in the same year and afterwards ; but which particular encroachment on the Royal 
 prerogative was not subsequently persisted in. 
 
 2. That, whereas a summons to Parliament, even erroneously issued, was held to constitute a peerage descendible to 
 
 heirs-male of the body in the case of the Barony of Willoughby of Parham in 1680, and under this decision 
 that Barony was held, to the exclusion of the lawful heirs, till the year 1765, f after which the latter were 
 restored, on petition to the Crown and reference to the House, through a Resolution of the House ; and, in 
 1811, Lord Erskine, in the Banbury case, even laid it down " that when once the blood of a man is ennobled 
 " by sitting in that House " (the House of Lords) "as a Peer, nothing but delinquency can deprive his pos- 
 " terity of the same honour "J — the House of Lords, in 1719, at a moment when the decision in the 
 Willoughby of Parham case was in viridi dbservantia, and actually governing the descent of a peerage enjoyed 
 by one of their number, peremptorily overruled and disregarded the summons and sitting in Parliament in 
 the case of the Dukedom of Dover — creating an exception loith the object of excluding that Duhedom, — thus 
 vividly illustrating the animus towards the Scottish Peerage which prevailed in the House of Lords at that 
 period. 
 
 3. That the disallowance of the right of the Sovereign to confer British peerages on Scottish peers, as by the 
 
 Resolution of the House of Lords in 1711, was a direct attach upon the prerogative of tlie Croiun, and a 
 violation of the Treaty of Union, as by the protest of the dissentient peers on that occasion, by the 
 remonstrances of Queen Anne in 1712, and (in effect) by the subsequent Resolution of the House in 1782, — 
 the Souse having shrunk from demanding the Opdnion of the Judges on the subject, after summoning them to 
 pronounce that Opinion, in 1719, while the Judges gave it unanimously against the Resolution of 1719 in 
 1782. 
 
 4. That, the Twenty -third Article of the Treaty of Union having thus been construed by the House of Lords in the 
 
 most strict, rigid, and unjust manner against the Scottish Peerage in 1719, and subsequently to the Union, until 
 the year 1782, it follows inevitably (in addition to the like inference from the disregarding of the summons, 
 sitting, &c. of the first Duke of Dover), that the assumptimi by that body in 1711 and afterwards of the 
 jurisdiction formerly exercised by the Court of Session in Scottish peerages, was not luith the view of extending 
 a ' privilege ' to the Scottish Peers which they did not previously possess. 
 
 5. That, as by the protest of the dissentient peers, in 171 1 , in vindication of the principles subsequently recognised 
 
 by the House itself in 1782, " the prerogative of the Crown . . in granting Patents of honour, with the privi- 
 " leges depending thereon," cannot, as a general principle, " on the construction of any Act of Parliament " 
 " be taken away unless there be plaiit anb express words to that purpose in the Act : " — A dictum 
 which applies with equal force to the case of the Dukedom of Montrose — it being impossible (almost a fortiori) 
 that the honour granted by James III., in the undoubted exercise of his prerogative, to David Earl of Craw- 
 ford, could be " taken away," apart from attainder, by the Act Rescissory of James IV., " unless there " had 
 been "plain and express words to that purpose in tlie Act," (which, confessedly, there are not,) — as 
 repeatedly elsewhere pleaded and illustrated by the present Claimant. — And, finally, 
 
 6. That Besolutions of the House of Lords are not only possessed of no judicial authority, but are not final or binding 
 
 even upon the Bouse itself, — that, after the House has reported adversely to a particular claim, and although 
 no ' res noviter veniens ad notitiam ' have occurred to suggest a fresh reference to the House (for none such, as 
 stated, had occurred with respect to the Dukedom of Brandon in 1782), tliat claim may nevertheless be 
 referred by the Sovereign to tlie House for further consideration, and tlie House may resolve upon the 
 identical matter in question in direct opposition to their original Besolution, as they did in the case of the 
 Duke of Hamilton and Brandon in 1782. — Tlie Besolution of the House of Lords upon the claim to the Duke- 
 dom of Montrose, Bth August 1853, is therefore precisely of the same description and possessed of tlie like force 
 and authority as that possessed by the Besolutions upon the claims to the Dukedoms of Dover and Brandon 
 from 1711 and 1719 up to the moment of the counter Besolution in 1782 : — Or, as expressed in the words of 
 Mr. Cruise, elsewhere quoted (and substituting the singular for the plural number), tlie Besolution in question 
 is not a judgment in any sense of the word, and Your Majesty is at liberty to refer the claim a second time 
 either to the same or to any other tribunal at Your pleasure, if it shall so seem meet unto Your Majesty. 
 
 * Cruise on Dignities, p. 94. And see Bdbertsm's Proceediiigs, pp. 410, 413 sqq. 
 
 I Cruise on Dignities, p. 169. 
 
 X Sir Harris Nicolas' s Report of the Lisle case, p. 108. 
 
 ~~" L 2 
 
L5XVI ADDRESS TO THE QUEEN. 
 
 VI. 
 
 Case or THE Dukedom of Lennox, conferred, by Patent, 5th August 1581, on EsMfe, Earl of 
 Lennox, personally, without any express limitation in the grant.; but which descended, 
 notwithstanding, under that patent (exclusively), to heirs, to heirs male of the body, 
 
 AND, ACCORDING TO ChARLES II. AND THE LEGAL ADVISERS OF THE CROWN IN 1675, TO HEIRS MALE 
 
 whatsoever, — the grant being precisely parallel in language (so far) with that of the 
 Dukedom of Montrose as conferred " de novo " on David Earl of Crawford, the original 
 
 PATENTEE, BY ACT OF JaMES IV., WITH ADVICE OF PARLIAMENT, 18TH SePT. 1489; WHICH MON- 
 TROSE EeGRANT IS CONSEQUENTLY LIKEWISE AN HEREDITARY GRANT, AND DESCENDIBLE TO HEIRS, 
 TO HEIRS MALE OF THE BODY, AND, UNDER THE LEGAL INFERENCES FROM THE STATEMENT OF 
 
 Charles II. in 1675, to heirs male whatsoever — the argument on this latter point being, 
 
 HOWEVER, altogether IN FAVOUR OF THE HOUSE OF CRAWFORD, INDEPENDENTLY OF ANY PARAL- 
 LELISM BETWEEN THE TWO CASES. — REFERRED TO supra, p. XXIX. ; infra, pp. cviii, n. f ; 316, n. IT ; 
 353, n. 1[; 531, n. *. 
 
 I. The Dukedom op Lennox. 
 
 I. Constitution of the dignity of Duke of Lennox, hy patent 5th August 1581, and inauguration thereupon on 
 the 29th October 1581. 
 
 The dignity of Earl of Lennox (with the inferior title of Lord Darnley) having reverted to the Crown, and being 
 wholly at its disposal, through failure of the previous male heirs and other causes, was granted by James VI. to his cousin 
 and (prospectively) next heir male, Esme Stewart, Lord of Aubigny in France, by a patent which is no longer now known 
 to exist and of which no registration is preserved ; but which must have been granted between the 5th March 1579-80 and 
 the 29th March 1580.* 
 
 * The history of the Earldom of Lennox during the years immediately preceding and consequent upon this grant may be 
 gathered from the following evidence, — to which it need only be premised that the Earldom with its estates and dignities had 
 descended to James VI., as lineal male heir, on the death of his paternal grandfather, Matthew Earl of Lennox (father of Henry Lord 
 Darnley), in 1571 •■(°)— 
 
 1. Charter, under the Great Seal, by James VL, 18th April 1572, by which, "pro singular! amore et affectione quam 
 
 " haberaus et gerimus erga charissimum patrimm nostrum, Dominum Carolum Stewart," i. e. Sir Charles Stewart, 
 younger brother of the King's father, Henry Lord Darnley, and thus James's paternal uncle, " proxime suecessurum 
 " dicto Comitatui," i. e. of Lennox, the King grants and confirms " dicto Domino Carolo Stewart, heredibus suis et 
 " assignatis, totum et integrum dictum Comitatum de Levenax (Lennox), dominium," &c., with the dignities and 
 honours of Earl of Lennox, &c. ; " tenendum," &c. " dicto Carolo Stewart et heredibns suis." Great Seal Segister. — 
 Earl Charles died in 1576, leaving issue a daughter and heir of line, the unfortunate Lady Arabella Stewart, who 
 long survived, as familiarly known to history, and who did not succeed to the dignities through the limitation 
 " heredibus suis," for reasons illustrated in the Montrose Case, p. 44, and S. Case, p. 152. 
 
 2. Charter, under the Great Seal, by James VI., 16th June 1578, proceeding on the preamble that the King had granted the 
 
 lands and Earldom of Lennox " egregio quondam Domino Carolo Stewart, fratri germano dicti quondam nostri 
 " charissimi patris, heredibusque suis, ipso tunc existent! proximo nostri sanguinis, et de quo tunc optima erat spes 
 " heredes masculos de corpore mo procreaturos fore ; sed tamen, ipso domino Charolo decedente, nuUos hercdes masculos 
 " de corpore sno reliquit, ob quod status dicte domus de Levenax in eodem statu revertitur, defectu supremi capitis et 
 " rectoris ejusdem, sicuti ante infeodationem dicti quondam domini Charoli extitit ; sic quod nos non instanter 
 " minorem causam, pro bono regimine, continuatione, et defensione dicte domus providere quam antea habuimus," &c. 
 —and therefore conferring the fief and the dignity of Earl of Lennox on " Roberto Stewart, fratri germano dicti 
 " quondam nostri avi " (i. e. younger brother of his grandfather Matthew Earl of Lennox), and the next collateral 
 heir male, with limitation to himself " heredibusque suis masculis de corpore suo legitime procreandis," &c. Great 
 Seal Segister.— Subsequently to which, on the 11th November 1579, Earl Robert sat in Parliament and is described 
 as " Robert Erie of Levinax, Lord Dernlie," " dearest and onlie greit uncle " to the King, &c. Acts, vol. iii. p. 182. 
 
 3. Letter by James VI., 4th March 1579-80, legally revoking the preceding grant of " our landis and patrimony of the 
 
 " leaving (living) and Erldom of Lenox," as having been granted during the King's minority. Acts of Privy Council. 
 Subsequently to this revocation, and on " Robert ErU of Merche " (as stated by James VI. in the grant of the 
 Dukedom of Lennox 5th August 1581) " zeilding his place" (or resigning the Earldom), to be at the King's 
 disposal, he was created Earl of March in compensation (with the fief of March, &c.) by Royal charter, 25th October 
 1582, recorded in the Great Seal Register, with limitation to himself and the heirs male of his body. He died 
 without issue, and the dignity reverted to the Crown. 
 
 4. Disposition by James VL, 5th March 1579-80, (ratified by a subsequent Act of Parliament, 29th November 1581, which 
 
 recites it ad longum,) to " our cousigne Esme Stewart Lord Aubigny, and his airis maill lawfuUie gottin, or to be 
 " gottin of his bodie, quhilkis failzeing, to ws and our successouris to returne," of the " reversions of the Erldome 
 
 (°) For a pedigree of the Lennox family, vide infra, p. lxxx. 
 
ADDRESS TO THE QUEEN. LXXVII 
 
 The dignities thus granted may, in accordance with the general rule adopted by the House of Lords under such cir- 
 cumstances, be presumed to have been descendible to heirs male of the body, — a conclusion supported moreover in this instance 
 by the fact (presently to be noticed), that the ancient patrimony of the Earls of Lennox was granted to ' Esme Lord of 
 ' Aubigny ' at nearly the same moment with the Earldom, under that precise and specific limitation. I shall therefore assume 
 and reason upon the fact accordingly in the following inquiry, — although an hypothesis, hereafter to be submitted to Your 
 Majesty, might render it probable that the limitation of the missing patent of the Earldom was, in reality, to heirs male 
 whatsoever, or collateral — which would contribute to extricate a Committee of Privileges, or any other tribunal sitting in con- 
 sideration upon the present question under reference from Your Majesty, from a very perplexing and unpleasant dilemma. 
 
 The dignities of " Duk of Lennox, Erll of Dernelie, Lord of Aubigne, Torboltoun, and Dalkeith," were bestowed by 
 James VI. upon the foresaid Esmd Earl of Lennox by a grant or patent, 5th August 1581, on the recital and preamble that, 
 the Earldom and estates of Lennox having twice previously reverted to the King through failure of heirs male, a Royal 
 revocation, and the resignation of the last holder, the King had granted them to his cousin Esmd Stewart "and his aires,"* 
 in consideration of his " ernist desire of tlie standing of the said Sous of Lennox in tlie possessioun of his nixt cousingis maill 
 " of the same Hous and llude;" and that he (the King) was desirous still further " tohonoure and advance theHous quhairofhis 
 ' ' Majestie on the pairt [of his'] dearest father is descendit ;" — Wherefore, it is stated, the King has " maid, creat, erectii, and 
 " incorporat the said Erldome of Lennox in ane haill and free Dukerie, to he caUit the Dukerie of Lennox in tyme cuming ; and the 
 *' said Lordschip ofDerneley in ane haill and f re Erldome, to he callit the Erldome of Derneley in tyme cuming ; [and] the said 
 " Baronie of Torboltoun in ane haill andfre Lordschip, to be callit the Lordschip of Torboltoun in tym cuming," (these being 
 territorial erections of the fiefs, independently of the corresponding honours,) — " without prejudice of the unioun, annexatioun, 
 " [and] utheris previlegeis grantit in the infeftment maid thairupoun of befoir " (i. e. of the preceding Lennox patrimony to Esmd 
 and the heirs male of his body by charter 5th March 1579, presently to be cited) : — Andals (also) "iiES maid, constitdtb, 
 
 " NEMIT, AND OKDANIT IN TIME OTJMINa HIS SAID DEAKEST COOSINa ESMit DUK OF LeNNOX, FjELL OF DeBNLIE, LoRD OF 
 
 " AuBioNE, Torboltoun, and Dalkeith, all honoures, digneteis, prerogatives, richtis, rentis, previlegeis, 
 
 " proffites, com[modities], and deweties belangand thairto" — being the grant of the personal dignities: — " To be broukit, 
 " joisit, usit, occupeit, and possest be him " — that is, the entire grant, that precedes, of lands and honours — " siclike and als 
 " (as) frelie in all respecteis and conditionis as ony utheris hes broukit the title, richt, and possessioun of quhatsumevir 
 " Dukerie, Erldome, Lordschip, or Baronie within this realme in tyme bygane. And that Lettres be direct to mak publica- 
 " tioun heirof be oppin proclamatioun at the Mercat Croce of Edinburgh and utheris places neidfull. Chargeing all and 
 " sindrie Erlis, Lordis, Baronis, and utheris his Hienes' subjectis, to acknawlege and reverence his said dearest causing acoord- 
 " ing to the stile, place, and titiUis befoir specifeit. Ordaning him to be investit thairin with all solemniteis." 
 
 The grant is recorded in the Register of the Privy Council, and printed at full length in the Appendix to this volume, 
 infra, p. 531, note '. 
 
 The grantee, Esm^, was inaugurated Upon the preceding patent as Duke of Lennox, Earl of Darnley, &c., on the 29th 
 October 1581, as is proved by the following evidence: — 
 
 1. Statements by David Moysie, a contemporary and member of the Royal household, in his 'Memoirs of the 
 ' Affairs of Scotland' from 1577 to 1603,— 
 
 " of Lennox." Acts, vol. iii. p. 248. — A proceeding anticipative of the grant of the Earldom. A similar grant of 
 reversions preceded the re-grant or conveyance of the Earldom of Crawford to David Lindsay of Edzell, eighth Earl 
 of Crawford, in 1541, as shewn in the Crawford Case, p. 70. 
 
 5. Charter, under the Great Seal, by James VI., 5th March 1579-80, whereby, for the love borne by him " erga charissimum 
 
 " legitimum nostnim consanguineum Esmum Stewart, Dominum Aubignie," he grants to him, " et heredibus suis 
 " masculis, de corpore suo legittime procreatis seu procreandis," " totum et integrum . . Comitatum de Levenax " 
 — i. c. the Comital fief of Lennox, apart from any grant of the dignity. Great Seal Segister. (•) 
 
 6. Statement in a letter by Sir Robert Bowes, ambassador of Queen Elizabeth to the Court of Scotland, to the Lord Trea- 
 
 surer Burleigh, dated the " xxix Mareii, 1579 " (by palpable mistake for 1580, as natural on the fifth day of the 
 new year), to the following effect : — " It may please your good Lordship, At the last convention at Strivelinge, the 
 " Kinge, by his minoritye, revoked his former graunte of th' earldome of Lennox, given to the Bishop of Cathnes " 
 (the title originally borne by Robert Earl of Lennox), " and, in recompence thereof, gave to the said late Earle, then 
 " absent, th' earldome of March, continueing him still to be one of the Counsell, thereby to retay ne his vote in Counsell 
 " and Parliament, for the advantage of himself and his freinds. After, the Kinge made Monsieur de Aubigny Earle of 
 " Lennox, giveinge to him that Earldome and the custodie of the Castle of Dunbarton ; which D' Aubigny hath left 
 " in the keping of the Larde of Drumwhessell, former keper of the same. D' Aubigny is also called to be one of 
 " the Secrett Counsell, and carryeth the sway in Courte." Original, Cotton MS. Caligula, C. v. p. 116, Brit. Museum. 
 — This is all the evidence I have been able to discover of the creation of the Earldom of Lennox in 1579-80 ; and, 
 in the words of the well-known Andrew Stuart, " That first grant of the Earldom of Lennox " (viz. to Esm6 Stewart) 
 " remains to be discovered." Geneal. Eist. of the Stewarts, p, 257. 
 
 7. Notice of " Esme Comes de Lenax," in the Record of the Privy Council, under date 9th June 1580.— And lastly, 
 
 8. Similar notice, ibid., to the following effect,—" Esme Erll of Lennox electit Lorde Heich Chamerlane, 15th October 
 
 " 1580." 
 
 9. Subsequently to which follow the Patent of the Dukedom, 5th August 1581 ; the charter of the estates, 13th December 
 
 1581 ; the Revocation of that charter, 19th July 1583 ; and the final and ruling charter of the estates, ult. July 1583, 
 — all to be successively noticed in the text, infra. 
 
 " The flexible term " aires " must be understood here to imply the heirs under the investiture— whether heirs male of the 
 body, heirs male whatsoever, or heirs general ; according to Scottish understanding and practice, illustrated elsewhere, S. Case, pp. 
 145 sqq., and infra, pp. cxxxviii sqq. 
 
 C) Besides the above, four other charters of the same date of " Esmo Stewart, Domino Aubignie," and all with the same 
 are recorded in the Great Seal Register, granting various lands limitation, to the grantee and his heirs male of the body, 
 and properties, but without any mention of honours — all in favour 
 
LXXVIII ADDRESS TO THE QUEEN. 
 
 i. " Upone the day of August," (1581, as by the context,) " the Erldome of Lennox was creat in 
 
 " ane Deukrie, tlie Lordschip of Dernlie in a Erldome, and Tarboltoun in ane Lordschip ; and ther- 
 " after he was namit DuiK of Lennox, Erie Dernlie, Lord TarhoUoun, Ohynnie {Aubigny), and 
 ^^ Dalkeith, Lorde Chahnerlane, &c., and proclamatioun maid heirupone at the Mercat Croce of 
 " Edinburghe be sound of trumpet, heraldis, and utheris necessarie ceremoneis." — Edit. Bannatyne 
 Club, p. 34. 
 
 ii. " Upone the xxiiii day of October," 1581, " the Parliament was fensit in the tolbuithe of Edinburghe,* 
 "quhairethe King come upone the penult" (i.e. the 30th October), "accumpanied with his 
 " nobilitie in rich attyre. Onlie the Lordis of Artickelis wer chosen that day. Upone the Sonday, 
 " being the day preceiding " (i. e. the 29th October), "certane Erles wes belted in Halyroudhous, 
 " viz., Esme DniK of Lennox, Erie Dernlie, Lord Ohynnie, Dcdkeithe, Torholtoun, Aherdowre, 
 " Knycht of Cruikstoiin, Great Chalmerlane of Scotland ; James Erie of Arrane, Lord Hamiltoun," 
 &c. " The Duik had sex knychtis," — i. e. six knights were dubbed on the occasion ; an ordinary 
 incident to inauguration, as elsewhere shewn, infra, p. xxxvii. — Ihid. 
 
 2. Statement by Sir James Balfour, of Denmilne, Lord Lyon King-at-Arms in 1630, in his autograph MS. " De 
 
 " jure prelationis Nobilium Scotie," preserved in the Advocates' Library : — " The 29 October 1581, Johne 
 " Qeye Esme) Steuart ves first created Knight of Creuxtoune, then Lord Aubignie, Lord of Torholtoun, Lord 
 " of Dalkeith, Lord of Aherdour, and Baronne, Banerent, Lord of our Soverainge Lord's Parliament , Earll 
 " of Darlie, and DtrcK or Lennox, and Grate Chamerlaine of Scotland " — the latter office having been 
 previously granted to him on the 19th October 1580, as by proof given supra, p. Lxxvi, note *. 
 
 3. Entry in the Lord Treasurer's accounts for October 1581, preserved in Her Majesty's General Register House, 
 
 Edinburgh : — " Item, for expenses of tymmer, daillis, irne werk, and utheris necessaries thairto appertening, 
 " wrocht in the grete hall of the Palace of Halierudhous at the tyme of the creation of my Lord Duicke, the 
 " Erlis of Arrane," &c., — with further statement that the expences were remitted by His Majesty to "Esme 
 " DuiCKE OP Lennox, Erie Darnlie," — identifying the latter as " my Lord Duicke " in the preceding notice 
 — Lennox being the only Duke created (or inaugurated) on the occasion. 
 
 4. Entry in the Records of Parliament, under the heading of " Parliamentum . . tentum apud Edinburgh penultimo 
 
 " die mensis Octobris, anno Domini millesimo quingentesimo octuagesimo prime," i. e. the 30th October 1581, 
 to the effect that the Duke of Lennox, " Dux Lennocie," sat in Parliament as the head of the barons on 
 that day, the King being present (" Rege presente ") on the occasion. Acts of Parliament, vol. iii. pp. 
 194-5. 
 
 It is thus proved and demonstrated by the preceding evidence, that the Dukedom of Lennox (with its subsidiary dig- 
 nities) was fully constituted by the patent 5th August 1581, followed by due inauguration, or investiture, on the ensuing 29th 
 October ; subsequently to which, on the following day, the patentee sat in Parliament as Duke of Lennox. 
 
 No other patent or inauguration ever existed or took place. 
 
 And the Dukedom so created (with its accompanying dignities) descended to heirs, to heirs male of the body, and, 
 according to Charles II. and the legal officers of the Crown in 1675, to heirs male whatsoever, in Charles's own person, as 
 " heredi masculo," heir male, of Charles the last Duke of Lennox, who died in 1672. 
 
 II. Biding investiture of the Lennox patrimony, ult. July 1583. 
 
 The " Comitatus de Levinox et terre ejusdem," constituting the ancient patrimony of the Earls of Lennox, were granted 
 by James VI. to Esm^ Stewart, Lord of Aubigny, by charter under the Great Seal, 5th March 1579-80, with limitation to 
 himself " et heredibus suis maseulis de corpore suo legitime procreatis sen proereandis," — this charter being " the infeftment " 
 alluded to in the patent 5th August 1581, above adduced. No mention of the dignity or title occurs in the charter.t 
 
 Subsequently to the inauguration on the patent, and on the 13th December 1581, a charter was granted by James VI., 
 under the Great Seal, " Esmo Duci de Levenax," (thus clearly then possessed of the Ducal dignity,) of the " Comitatus de 
 " Levenax" and other landed estates of the Earls of Lennox — which are thereby (in conformity with the patent 5th August 
 1581) united, or erected, into the " Ducatum de Levenax,'' to be held by the said Esme Duke of Lennox " et heredibus suis 
 " de corpore suo," as before. Oreat Seal Eegister.X It is hardly necessary to remark that such erection into a " Ducatus " at 
 that later period could not carry the Ducal dignity, and only applied to estates, as can be shewn in parallel cases. § No 
 
 * Quite correct. The "prima dies Parliament!" was the "xxiv die Octobris, a.d. mdlxxxi," as by the 'Acts of Parlia- 
 • ment,' vol. iii. p. 193. 
 
 t The charter is described supra, p. lxxvi, n. *, No. 5. 
 
 X This charter of the " Ducatus," 13th December 1581, was mistaken by Lord Hailes, in his Supplemental Case on behalf of 
 Elizabeth, claimant of the Earldom of Sutherland, for the grant of the dignity of Duke ; but the error was corrected by Sir Robert 
 Gordon, the adverse claimant, as follows : — " The Lady Elizabeth" (the Claimant) " says the Dukedom of Lennox was created by 
 " King James VI. in favour of Esme Duke of Lennox, and to heirs male, which accounts for a female not taking the peerage. The 
 " charter she founds upon to prove this is dated 13th September (sic) 1581. . . All this is a mistake. Esme was created a Duke on 
 " the 5th of August preceding, by a creation entitled ' Constitution of the Earldom of Lennox in a Dukerie.' In consequence of 
 " this creation, he sat in Parliament as Duke of Lennox, 28th November 1581. But the charter founded upon by Lady Elizabeth is 
 " posterior to both these periods ; and, instead of being the creation of a peerage, is only the erection of the estate into a Dukedom." 
 — S. Case of Sir Robert Gordon claiming the dignity of Earl of Sutherland, p. 26. Sir Robert might evidently have strengthened his 
 argument by the Revocation of James VI. (presently to be mentioned), of which he does not appear to have been aware. 
 
 § As in that of the erection of the estates of the Lindsays of the Byres (in favour of John tenth Lord Lindsay, subsequently 
 seventeenth Earl of Crawford) into the " Comitatus " of Crawford, 1st March 1648 ; but which was admitted in the recent Crawford 
 claim not to carry the honours, — in the erection of the Annandale estates into the " Comitatus de Annandale," 3rd April 16G2 (subse- 
 quently to the patent granting the personal dignities of Earl of Annandale and Hartfell, 13th February 1661) ; but which was found 
 
ADDRESS TO THE QUEEN. LSXIX 
 
 Honours are mentioned in the charter ; and, what is conclusive in the matter, the dignify had been already or previously con- 
 stituted, as by the proof of creation, inauguration, and sitting in Parliament above given. 
 
 But the charter of the "Comitatus," or of the Lennox patrimony, 5th March 1579, and the erection of the same into 
 a " Dukerie " and a " Ducatus " by the patent 5th August 1581 and the charter 13th December 1581, ut supra, proved ulti- 
 mately null and void in consequence of a Revocatory Act executed by James VI. on coming of age, on the 19th July 1583, 
 recorded in the Books of Privy Council, and entitled " Revocatioun of certane landis dispouit to the Duke of Levenax ;" 
 whereby, in pursuance of " the priviledge of the commoun law, competent als weill to his Hienes as to all his subjectis," viz., 
 " to revock all thingis done be thame in thair minoritie and les aige in hurt and detriment of thair consciences, landis, rentis, 
 " possessionis,'' &c. " and, speciallie, all maner of alienationis be infeftmentis or any utherwise maid and grantit of ony heretages 
 " in his Hienes' non-aige," the King "revokis, cassis, and annullis" the preceding grants of "all and haill the Erldome of 
 " Levinox," the Lordships of Dalkeith, Aberdour, and other lands, granted by the King "to umquhile his derrast cousing, 
 " Esme Duke of Levenox, Erie Demlie, Lord of Tarboltoun, Dalkeyth, and Aubigny" (the very titles granted by the patent 
 5th August 1581, and thus still existing and fully recognised), "and his airis " (i. e. the heirs male of his body), " specifeit 
 " in the infeftmentis maid thairupoun :" * — Being a proper legal revocation, with all due specialties^, quite different from 
 the General Act Rescissory of 1488, and under which the charter 5th March 1579, the clause of erection of the Lennox fiefs 
 into a " Dukerie," an " Erldome," &c. in the patent 5th August 1581, and the charter 15th December 1581 — ^in other words, the 
 grant and erection of the " Comitatus " and territory of Lennox, exclusively and distinct from the grant of the personal digni- 
 ties, which are not in the slightest degree mentioned or alluded to in the Revocation — were completely rescinded and abrogated, 
 and became as if they had never been. 
 
 Shortly before the date of this Act Revocatory, on the 23rd May 1583, Esme Duke of Lennox, the patentee in 1581, 
 having quitted Scotland in consequence of having fallen into disfavour at Court, died at Paris, leaving issue Ludovic Stewart, 
 second Duke of Lennox, Earl Darnley, &c., a minor of nine years old,)- and his younger brother Esm^, afterwards his brother's 
 successor as third Duke of Lennox. 
 
 It is not to be supposed, however, that the Act Revocatory above mentioned was indicative of any hostile disposition 
 towards the Lennox family, or an intention to deprive them of their estates, — it was merely in accordance with accepted usage 
 in similar cases. And on the last of July thereafter, in the same year — "ultimo die mensis Julii," 1583, a Royal charter 
 was granted " nostro consanguineo Ludovico Stewart, filio legitimo natu maximo quondam carissimi nostri consanguinei Esmi 
 " Ducis Lennocie, Comitis Darnelie, Domini de Tarbolton, Dalkeith, et Aubigny" (the titles, as before, granted by the 
 patent 1581) — that is, to Ludovic, the eldest son and heir of the late Esme Duke of Lennox, the patentee in 1581,J conveying 
 the same lands as in 1579 and 1581, including the " Comitatus" of Lennox, with an erection of the same into the " Ducatum 
 " de Levenax," as before — but with no mention of honours ; specially reciting the Royal Revocation, the flaw which was to 
 be cured and obviated, in the guequidem clause, in usual form, and repossessing the family in the property in toto, under a 
 limitation more full and broad than before, viz. to the grantee " et heredibus suis masculis QUiBUSCtrHQUE " — that is, to his heirs 
 male whatsoeyeb, or collateral. 
 
 This charter, ult. July 1 583, which is enrolled at length in the Great Seal Register, was the only subsisting, the car- 
 dinal, and regulating investiture of the estates of the Dukes of Lennox ; and, in virtue of it and of its limitation, those estates 
 
 by the House of Lords in the Annandale claim not to affect the honours, — in the erection by charter 25th March 1707 of the estates 
 of Douglas into the " Ducatum de Douglas," shortly after the creation of the Dukedom of Douglas by personal grant 10th April 
 1 703 ; with limitation of the said estates or " Ducatus " to further heirs (failing the limitation to heirs male of the body in the patent 
 of the honour) ; under which charter the present Lord Douglas takes and is infeft in the same, but which does not make him Duke 
 of Douglas or Marquis of Angus, those dignities being alone affected and regulated by the relative personal patents in 1703 and 1633, 
 &c. Hence the " Ducatus " in the Lennox instance, independently of otlier con-oborations, only, at that comparatively recent period, 
 denoted the estate. In illustration of this, 1 may cite what follows, from Stewart's Answers to Nisbet's Doubts,— "N. Feuda nobilia 
 " sine nobilitate dari possunt, adeo ut aliquis ab Imperatore investiri potest in Ducatu aut Comitatu, nee tamen Dux aut Comes sit. 
 " Thes. Besold. in litera 1-18, mrho Innhabem, des. p. 428." On which Stewart observes, " This holds also with us. For though a 
 " creditor should adjudge a Dukedom or Earldom, that will not either make him Dake or Earl." Stevmrt's Answers, &c., edit. 1715, 
 p. 115. — And Lord Bankton, in like manner, inculcates that " the erection of lands into a Dukedom, Marquisate, or Earldom, did 
 " not extend the jurisdiction and privileges beyond those of a barony, which is called a feudal lordship " (of which there were innu- 
 merable instances in Scotland granted to commoners, who always continued such), " unless they were likewise erected into a 
 " regality." Institutes, edit. 1751, vol. i. p. 569. — All which distinctly shews that honours were out of the question, and not for a 
 moment contemplated, in such contingency. 
 
 * See again the note *, p. Lxxvir, supra. 
 
 t As by the testimony of Sir Robert Gordon of Gordonstoun, Commissioner for the affairs of the Lennox family, and a con- 
 temporary, to the effect that Duke Esme " seikened at Paris, wher he died 23 day of May 1583. Ludovick Duke of Lennox, 
 *' succeeding his father Esme, came to Scotland after the death of his father, and arryved at Leith the therteenth day of November 
 " 1 583, being then of the age of nine yeirs ; whom King James received gladlie and honorablie, as one who wes so tender of kindred 
 " and blood." Hist. Earldom of Sutherland (published from the original MS., at Dunrobin Castle), p. 125. 
 
 X Ludovic, although his father was dead, is not styled Duke of Lennox in this charter, owing to a feudal usage through 
 which minors did not assume their hereditary honours till full majority— though this was sometimes dispensed with, as was actually 
 the case subsequently with Ludovic Duke of Lennox. For example, in an " Inquisitio de tuteia," an appointment of tutory and 
 guardianship, which shortly afterwards followed, 10th October 1583, " Kobertus Comes de Marche," the late Earl of Lennox, was 
 served, accordingly, " propinquior agnatus, i. e. consanguineus ex parte patris, Ludovico Stewart, filio et heredi apparenti Esmi Stewart, 
 " Ducis de Levenax, Comitis de Damlie, Domini de Tarholtm, Dallteyt, et Ohignij, Magni Regis Scotie Camerarii," (°)— but, although thus 
 proved apparent heir of his father in all his titles (as granted by the patent 1581, which thus again were not struck at by the Act 
 Revocatory 19th July 1583), Ludovic, the pupil, is still styled " Ludovic Stewart, simply," as before. But five years afterwards, in 
 1588, when, on emerging from pupillarity at the age of fourteen, and entering the period of curatory, which lasts till twenty-one, he 
 chose curators, he no longer figures as eldest son and apparent heir (only) of his father, but, by an anticipation of more modern prac- 
 tice, has the title given him of " Ludovick Duik of Levenax, Erie Demelie, Lord Torbolton and Aubigny,"— i. e. the dignities inherited, as 
 before, under the patent 5th August 1581. C") Numerous instances could be given, if necessary, from the history of noble Scottish 
 families, of this delay in assuming family titles. 
 
 (") Secords of Chancery. (') Record of the Supreme Civil Court. 
 
LXXX 
 
 ADDRESS TO THE QUEEN. 
 
 ultimately devolved, on failure of the lineal male heirs, on Charles II., through regular Retour and Service, as heir male what- 
 soever of the last Duke of Lennox.* 
 
 III. Descent of the dignity of Duhe of Lennox under the sole and ruling patent 5th August 1581. 
 
 Reverting to the patent 5th August 1581, with the object of ascertaining the mode of descent of the dignity of Duke 
 of Lennox, as constituted by that patent, it will be found that the patent contains no express words of limitation. The dignity 
 is granted to Esme Duhe of Lennox, to he enjoyed " he him," personally, hut vjithout any mention of heirs. The only words 
 that could be contended to constitute a limitation are the following, " To be broukit, joisit, usit, occupeit, and possest be him 
 " siclike and als frelie in all respecteis and eonditionis as ony utheris hes broukit the title, richt, and possessioun of quhat- 
 " sumevir Dukerie, Erldome, Lordschip, or Baronie within this realme in tyme bygane." But this phrase or sentence is one 
 of constant occurrence in ancient patents, where it occurs independently of, and additionally to, the words of limitation, and 
 amounts simply to an affirmation that the subjects of the grant shall be enjoyed as fully and freely {reddendo singula singulis) 
 as such subjects can possibly be enjoyed by any grantee whatever.f Nor is there any instance (so far as I am aware) in which 
 a peerage has practically or actually descended in virtue of such a constructive limitation. It is manifest, moreover, that if 
 this sentence constituted a limitation, it would include the widest range of heirs that ever took or succeeded to any Dukedom, 
 Earldom, or Lordship whatever, — in other words, the limitation would be to heirs general for ever, of course including females. 
 But the Dukedom of Lennox did not so descend, as will appear hereafter ; and therefore, on this practical ground alone, inde- 
 pendently of any other, such construction would be untenable. The patent 5th August 1581 is thus a patent without 
 EXPRESS WOKDS OP LIMITATION ; and Consequently, if this fact alone were considered, without more, it might be supposed to 
 have been merely a grant for life, which must have expired at the death of the grantee. 
 
 It will be found, however, that the dignity of Duke of Lennox, created by the patent 5th August 1581, and according 
 to the form therein observed, was an hebeditabt dignity — an observation which applies, it may be added, to the inferior 
 dignities granted at the same time and in conjunction with it, but of which I shall for the most part take no notice, as merely 
 multiplying names and titles unnecessarily.]; 
 
 The Dukedom of Lennox, conferred by the patent in question, descended (as has been already mentioned), on the 
 death of the grantee in 1583, to his eldest son Ludovic, second Duke of Lennox. Ludovic died without issue in 1624, when 
 
 * Vide infra, p. Lxxxii ; and A. Stuart's Geneal. Hist, of the Stewarts, p. 261. — It is to be observed that there is no erection of 
 the Lordship of Darnley into an Earldom either in the charter 13th December 1581 or the charter ult. July 1583. The style of ' Earl 
 ' of Darnley ' held by Duke Esme and all the succeeding Dukes of Lennox is therefore, on this ground alone, exclusively attributable 
 to the original grant 5th August 1581. 
 
 f For example, in the charter by King and Parliament, 29th Nov. 1 58 1 , ratifying " to Robert Erll of Orknay " an infeftment 
 by Queen Mary, in 1564, to him and the heirs of his body, of the lands of Orkney and Zetland (annexed Crown property) — erectiog 
 the former into an Earldom and the latter into a Lordship— and creating the grantee " and his airis . . foirsaidis " " Erllis of 
 " Orknay and Lordis of Zetland" personally — the clause follows, " Gevand and grantand to thame the tit ill, honour, place, and pre- 
 " eminence of ane Erll and Lord in all parliamentis, counsallis, conventionis, and assembleis quhatsumevir, siclyk and als frelie as 
 " ony Erll and Lord of Parliament within this realms hes bruikit the honour, dignitie, and pre-eminence of ane Erll and Lord of Parliament 
 " of befoir." Acts Pari. vol. iii. pp. 254 sqq.— See also the ratification 29th Nov. 1581 to John (Maxwell) Earl of Morton of the 
 (forfeited) Earldom of Morton, with personal creation of the dignity, &c. — Ibid., p. 263. So too, again, in the patent of the Earldom 
 of Arran, 28th Oct. 1581, to James Stewart, with limitation to himself and the heirs male of his body, and after the words of personal 
 creation — the dignity, &c. is to be enjoyed " ita ut quilibet alius Comes seu Parliamenti Domimis habuit seu habere potest infra nostrum 
 " regnnm." Great S. Register. Conf., in much earlier times, the patent of cimfirmation of the Earldom of Oxford to Aubrey de Vere^ 
 Nicolas' Report of the Devon Claim, App., p. cxlii ; and see the ' Report on the Dignity of a Peer of the Realm,' passim, 
 
 X The following pedigree may be useful here : — 
 
 John 3rd Earl of Lennox. 
 I 
 
 I 
 
 Robert Earl of Lennox, 
 
 the patentee in 1578. 
 
 Matthew 4th Earl of Lennox, 
 t 1571. 
 
 John Lord of Aubigny. 
 
 Henry Lord Darnley, 
 m. Mary Queen of Scots. 
 
 Charles Earl of Lennox, 
 the patentee in 1572. 
 t 1576. 
 
 Esme 1 St Duke of Lennox, 
 the patentee in 1579 and 1581. 
 t 1583. 
 
 James VI. 
 
 Charles 1. 
 
 Lady Arabella Stewart 
 + 1615s.p. 
 
 I 
 
 Ludovic 2nd Duke of Lennox, 
 
 (created Duke of Richmond), 
 
 t 1624, s.p. 
 
 Esme 3rd Duke of Lennox, 
 
 m. Catherine, d. and h. 
 
 of Gervase Lord Clifton. 
 
 t 1625. 
 
 James 4th Duke of Lennox, 
 
 and Lord Clifton, 
 
 t 1655. 
 
 George Lord of Aubigny, 
 t 1642. 
 
 Charles II. Esme 5th Duke of Lennox, 
 
 I and Lord Clifton, 
 
 I t 1660, s.p. 
 
 Charles Duke of Lennox 
 and Richmond, 
 by creation 1675. 
 
 Mary, Countess of Arran, 
 (dejure Baroness Clifton,) 
 
 HEIR OF LINE, 
 
 t 1667, s.p. 
 
 Charles 6th Duke of 
 Lennox and 
 Lord Clifton, 
 t 1672, s.p. 
 
 Cath. Lady O'Brien, 
 Baroness Clifton, 
 (by Report of the House 
 of Lords, 1673-4), 
 HEIK OF LINE. 
 
 John S. Bligh, Earl of 
 Darnley and Lord Clifton, 
 
 HEIR OF LINE 
 
 OF THE House of Lennox. 
 
ADDRESS TO THE QUEEN. LXXXI 
 
 Esmg, Lord of Aubigny, his younger brother, succeeded as third Dulce of Lennox. Duke Esme died in 1625, leaving two 
 sons, James fourth Duiie of Lennox, and George Lord of Aubigny. Duke Esmd, it is to be observed, had married Catherine, 
 daughter and heiress of Sir Gervase Clifton, wlio had been created Lord Clifton of Leighton Bromswold by summons to Par- 
 liament, which had the effect (as familiarly known in English Peerage Law) of creating a Barony descendible to lineal heirs, male 
 as well as female. The Barony of Clifton consequently descended to her eldest son, James fourth Duke of Lennox. James fourth 
 Duke of Lennox and Lord Clifton died in 1655, leaving two children, Esme, his successor as fifth Duke of Lennox and Lord 
 Clifton, and a daughter. Lady Mary Stewart, afterwards wife of Richard Earl of Arran (younger son of James Duke of Ormonde), 
 and who died in 1667. EsmS fifth Duke of Lennox died without issue in 1660, and Us sister Mary then became his heir general, 
 and heir general of Esmi first Duke of Lennox, tlie patentee in 1581. But the Dukedom passed over her head, and vested in 
 Charles Stewart (Earl of Lichfield), her own and her brother Duke EsmiS's cousin german, the son of George Lord of Aubigny 
 (above mentioned), younger brother of James fourth Duke of Lennox, and who succeeded accordingly as the sixth Duke. 
 Duke Charles died in 1672, leaving an only sister and heir general, Lady Catherine Stewart, the wife of Henry Lord Ibrickin, 
 or O'Brien, eldest son of Barnabas sixth Earl of Thomond, and ancestress of the present Earl of Darnley (by creation in 1725), 
 the heir general of the House of Lennox ; hut who — although she claimed, and successfully, the Barony of QUfton, in 1673-4, 
 as heir general of her father, cmd of her father's mother, Catherine, daughter and heir of Oervase Lord Clifton, and Duchess of 
 Lennox — and although she made careful research into her rights as regarded the Dukedom and Scottish dignities — did kot 
 SUCCEED TO THE DuKEDOM. On the Contrary, it is affirmed by Charles II. (whether rightly or erroneously will be matter for 
 consideration presently) to have vested in himself, with the other dignities of the Lennox family— (to wit, the Earldom of 
 Darnley and Barony of Torbolton, nominatim — being those created by the patent 1581), as heir male — that is, heir male 
 whatsoever — of the last Duke of Lennox ; and, being thus merged in the Crown, it was regranted by Charles, with its sister 
 dignities, the Earldom of Darnley and Barony of Torbolton, by patent 9th September 1675, to his illegitimate son Charles, the 
 ancestor of the present Ducal House of Lennox and Richmond ; on whom he also subsequently bestowed the patrimony of the 
 House of Lennox, to which he had likewise succeeded as heir male whatsoever, in virtue of the regulating charter and inves- 
 titure, ult. July 1583, as has been stated. 
 
 That the dignity of Duke of Lennox, with its subsidiary titles, descended, as aforesaid, to heirs male, in exclusion of 
 heirs female — first in the person of Mary Countess of Arran, and a second time (if Charles II. 's statement be correct — but at 
 all events, to the exclusion of heirs female) in the person of Catherine Lady O'Brien — will appear from the following evi- 
 dence : — 
 
 1. Statement in the Report of the Attorney-General to Charles II., on the claim of Catherine Lady O'Brien to the 
 
 Barony of Clifton : — " That James Duke of Richmond and Lennox had issue, Esme Duke of Richmond and 
 " Lennox, and Mary, late Countess of Arran, both dead without issue." — Lords' Journals. 
 
 2. Special Retour, 8th August 1655, of " Esm6 Duke of Lennox and Richmond, Erie of Darnelie and March, Lord 
 
 " Torbolton, Methven, and Obigny,'' in the Lennox estates and patrimony, as heir male of James Duke of 
 Lennox, his father. — Records of Chancery. 
 
 3. Excerpt from the Register of Burials in Westminster Abbey : — " 1660. Esmd Duke of Richmond and Lennox 
 
 " was buried on the South side of K. H. 7th chapell, Sept. 21." — Collectanea Topographica et Oenealogica, 
 vol. vii., p. 370. 
 
 4. Statement by Sir William Dugdale, an exact contemporary, in his Baronage :^" This Duke" (James first Duke 
 
 of Ormonde) " hath issue three sons : first, Thomas, who beareth the title of Earl of Ossory ; secondly, Richard 
 " Earl of Arran, who first married tlie Lady Mary, daughter to James Duke of Richmond, sister and heie to 
 
 " Esm^ Duke of Richmond, — and, surviving that wife, married , daughter of John Ferrers of Tam- 
 
 " worth Castle," &c. — Baronage, vol. ii., p. 478 ; printed in 1676. 
 
 5. Statement by John Lodge, Deputy Keeper of the Records in Bermingham Tower, Dublin, (the great repository of 
 
 Irish records,) to the effect that "He" (the above Richard Earl of Arran) "married, in September 1664, the 
 " Lady Mary Stewart, only surviving child of James Duke of Richmond and Lenox, who died 30th March 
 " 1655, and heie to her brother Esme, who died in 1660, cetat. 10; but by her, who died 4th July 1667, at 
 " the age of 18 years, and was buried with all the pomp that her quality and the memory of her virtues 
 " deserved, the like solemnity having never been seen in Ireland, he had no issue ; and he married secondly, 
 " in June 1673, Dorothy, daughter to John Ferrers of Tamworth Castle," &c. — Peerage of Ireland, 1754, 
 vol. ii., p. 38. 
 
 6. Protestation in the Scottish Parliament, 18th January 1661, by " Sir John Fletcher, His Majestie's Advocat, in 
 
 " name of the Duke of Lennox," against protestations for precedency by the Marquis of Douglas and Duke 
 of Hamilton, " in regaird of his right and precedency, cONrOKMB To his patent," — i. e. the patent 
 5th August 1581. Acts of Parliament, vol. vii., p. 13. — This was confessedly Charles sixth Duke of Lennox, 
 who succeeded to EsmS, without a word or suspicion to the contrary, in exclusion of the heir of line, Mary 
 Countess of Arran, who survived, as has been shewn, till 1667, and whose husband's family, the Ducal 
 House of Ormonde, was too powerful to permit undue usurpation of any rights inherent in her. 
 
 7. Protestation in Parliament, 20th May 1661, " in name and behalff of Charles Duke of Lennox," &c. — Acts, 
 
 vol. vii., p. 223. 
 
 8. Special Retour, 24th April 1662, of " Carolus Lennocix et Eichmondise Dux, Comes de Darnlie, March, et 
 
 " Leitchfeild," (the two latter being English dignities,) " Dominus Torholtoim, Methven, et Ohynie," &c., as 
 " heres masculus et tallim Esmi Lennocice et Richmondioe Duds, Comitis de Darnlie et March, Domini Tor- 
 " bolton, Methven, et Ohynie, filii patrui " — that is, the son of his paternal uncle, viz. of James Duke of 
 Lennox — in the Lennox estates. Duke Charles not being heir at law of Duke Esmd, that status being vested 
 in 1662 in the then existing Lady Mary Stewart, afterwards (in 1664) Countess of Arran, it was necessary 
 thus to qualify the status of the former as heir of entail ; which formerly designated any one who took — such as 
 heir male only on this occasion — otherwise than by common law. — Records of Chancery. 
 
 M 
 
LSXXII ADDRESS TO THE QUEEN. 
 
 9. Excerpt from the Register of Burials in Westminster Abbey :— " 1673. Duke of Richmond and Lennox laid in 
 " the vault of the family, Sept. W."— Collectanea, &c. (ut supra), vol. vii., p. 377.— The Duke had died m 
 Denmark in the preceding year, 1672. 
 
 10. Proof that Lady Catherine Stewart, sister and heir general (as will be proved) of Charles sixth and last Duke 
 
 of Lennox, who died in 1672, and wife of Henry Lord Ibrickin, or O'Brien, made research, with the 
 sanction and assistance of King Charles II., into her rights both to the estates and honours of the House of 
 Lennox : — 
 
 i. Letter from Charles II. to the Commissioners of the Treasury, 14th January 1673, commanding them 
 to take possession of the Lennox charter-chest on his behalf, as next heir m&\e.— State Pa/per 
 Office. 
 ii. Letter from the same to the same, 15th August 1673, in favour of Lady Katherine O'Bryen, commanding 
 
 them to allow her to inspect the writs of the family of Lennox. — Ihid. 
 iii. Order to the same by Charles II., 8th July 1676, in favour of " Lady Catherine O'Brien, Baronesse 
 " Clifton, wife of Henry Lord O'Brien, and sister and heir generall to the deceased Charles, late 
 " Duke of Lennox and Richmond," that she should " have inspection of all writs, evidents, See. 
 " helonging to the said Buke or family, his or their honoues and estates, in your or any of your 
 " custodies," &c. — Ihid. 
 
 11. Claim of the said Lady Catherine Stewart, Lady O'Brien, sister and heir general of Charles sixth and last 
 
 BuJce of Lennox, who died in 1672, to the Barony of Clifton, (the only English honour, in the family, descend- 
 ible to heirs general), in 1673-4; and which, on reference by the Crown to the House of Lords, and after 
 consultation by the House with the Judges, was recognised hy Besolution of the JTouse, 7th February 1673-4, — 
 furnishing proof that the claimant was the heir general of her great-grandmother Catherine, daughter and heir 
 of Oervase Lord Clifton who died in 1618, and wife of her grandfather Esme third Bulce of Lennox, and 
 tliat she {Lady O'Brien) was thus heir general of the Souse of Lennox, and would have succeeded to their 
 honours had the destination leen to heirs general. Her descendant and representative, the Earl of Darnley, 
 holds the Barony of Clifton in virtue of this award in 1673-4. — Lords' Journals. Cruise on Dignities, 
 pp. 177-8. 
 
 12. Retour, 4th December 1678, of" Bondna Catharina Stewart, Domina O'Brien et Baronissa de Clifton," as 
 
 " H^HES Caroli Bucis Lennocim, fratris germani," i.e. of her brother Charles, who died in 1672 ; but 
 to whose Ducal and Scottish honours, as has been shewn, she did not succeed. — Eecords of Chancery. 
 
 13. Patent by Charles II., 9th September 1675, under the sign manual, duly warranted by the Sovereign, with all 
 
 legal solemnities, and necessarily under the supervision of the legal advisers of the Crown ; proceeding on 
 the preamble, "Et nos benigne cupientes et statuentes quod tituli honoeis POSTEA mentionati," — to wit, 
 the Buhedom of Lennox, Earldom of Barnley, and Barony of Torbolton (the same granted by the patent of 
 1581), — " AD Duces Lennocim pertinentes et spectantes, nunc vero nobis, tanquam heredi 
 " MASODLO NUPEK Ducis Lennoci^ cadentes ET DESCENDBNTES, minimi supprimantur et confundantur in 
 " regali nostra persona "—that is, through absorption and merging in the Crown — " sed erigantur, 
 " conservantur, et stabiliantur in persona cujusdam viri ex nostra propinqua relatione ;" and, therefore — 
 " igitur " — granting the said Dukedom of Lennox, Earldom of Darnley, and Barony of Torbolton, by this 
 new patent, to Charles, his illegitimate son. — Oreat Seal Register. — And, finally, 
 
 14. Special Service, 6th July 1680, of "Carolus Secundus, Dei gratia, Magnce Britannim, Erancice, et Siberniw 
 
 "Bex," as " H.aiRES masodlus et talli^e" — obviously under the charter ult. July 1583, "Caroli 
 " LENNOCiiE et BichmondicB Ducis, Comitis de Darnlie" &c., " atnepotis attavi," i.e. the great-great- 
 great-grandson of his (Charles II. 's) great-great-great-grandfather, " in Ducatu, Comitatu, Dominio, Baronid, 
 " et Begalitaie de Lennox," — with enumeration of a great variety of lands, being the entire patrimony 
 of the Dukes of Lennox, in which the King became infeoiFed through this Service and through the re- 
 mainder to heirs male whatsoever in the charter ult. July 1583; and which he thereupon bestowed 
 upon his natural son, as aforesaid, Charles Duke of Lennox and Richmond. — Records of Chancery. 
 
 It is therefore in proof, by the preceding evidence, that the dignity of Duke of Lennox, with its subordinate 
 dignities, confeiTed by the patent 5th August 1581 on Esme Earl of Lennox, personally, without any express words of 
 limitation, descended, notwithstanding, 1. To heirs; 2. To heirs male of the body of the patentee, excluding females, — and 
 3. and ultimately. To heirs male collateral — if the statement of Charles II. be correct — excluding females ; or, if that 
 statement be incorrect, became extinct, through females being incapable of taking : — Either of which alternatives, as will in 
 due time appear, would be equally favourable to my father, in the event of a claim to the Dukedom of Montrose as created 
 in 1489. 
 
 IV. Inquiry/ into the principles upon which the Dukedom of Lennox descended, as afwesaid, under the patent 
 5th August 1581. 
 
 It might be unnecessary here to do more than insist upon the facts above proved, and on the necessary legal inference, 
 that, if the grant of the Dukedom of Montrose, 18th September 1489, be conceived in terms parallel in all essential points 
 with those of the grant of the Dukedom of Lennox, the honour created and conferred by it must be also hereditary, and 
 descendible in like manner, — and this independently of any hypothetical explanation, accurate or inaccurate, which may be 
 offered of the facts in question. 
 
 Nevertheless, while laying unqualified and most just stress upon these facts and inferences, it may be inquired on 
 what principles of Scottish law (which must here rule) the dignity in question, the Dukedom of Lennox, descended 1. To 
 
ADDRESS TO THE QUEEN. LXXXIII 
 
 heirs (at all) ; 2. To heirs male of the body of the patentee ; and 3. To heirs male whatsoever— if so it did descend, as 
 asserted by Charles II. in 1675; or how such mistake was fallen into if the assertion be erroneous — under a patent merely 
 granting the dignity of Duke to the Earl of Lennox, personally, without any express words of limitation, as premised. 
 
 I. Bow descendible to heirs at all.—ihe fundamental and guiding rule here is undoubtedly that laid down by Lord 
 Stair, the great light of Scottish law, in the analogous matter of feudal landed investiture— to wit, that if in " charters or 
 " writs " of lands and fiefs, duly " completed by seising," * " heirs whatsomever . . are not . . exprest, they would he under- 
 " stood ; for that which is ordinary is presumed," t— or, in other words, that, even if heirs are not expressed, or that there 
 be no mention of heirs, as in the Lennox patent 5th August 1581, still the broad succession to heirs whatsoever, i.e. heirs 
 lineal and collateral, would yet legally obtain — the Duke being duly inaugurated or invested (as has been proved) in the 
 dignity, analogously to the infeftment in a fief under a charter. — In accordance with which principle Lord Stair subsequently 
 inculcates that, " as to benefit of heirs, they have right not only to obligements (obligations) conceived in favour of the 
 " defunct and his heirs, but though there he no mention of heirs ; unless, by the nature of the obligement, there be a specialty 
 " appropriating the same to the person of the defunct only, as in commissions, trusts, &c."t And the principle is summed 
 up as follows by Lord Stair in the title or rubric of the Section last quoted, " Heirs have interest in rights granted to their 
 " predecessors, tho' not mentioning heirs," and in the Index to the ' Institutions,' also drawn up by Lord Stair himself,§ 
 " Heirs are understood, though not expressed, unless the tenor or nature of the deed seclude them." 
 
 This rule depends ultimately, it is conceived, upon the principle in Scottish law, that the grants of Kings which infer 
 no prejudice to others — such as patents of dignity — fall to be interpreted as largely and liberally as possible, in accordance 
 with the munificence and grace which are the attributes of the Supreme power. |1 In accordance with which it falls to be noted, 
 as respects dignities, that, so far from a limitation being requisite in order to confer a peerage, so far from a limitation being 
 the expression of a privilege conferred, it is essentially, and in its very etymological signification, a restriction upon what 
 would otherwise be presumed to be the extent and i'ulness of the benefit— it is a narrowing, not enlargement of privilege 
 — a confining of the Royal munificence within certain defined boundaries or limits, beyond which that munificence, and the 
 dignity or privilege which is the sign and token of it, shall not overflow and expand, as would otherwise be the case : — And, 
 consequently, where no such restrictive limitation can be alleged, either literally or constructively, it is to be presumed that 
 none is in contemplation, and that the dignity conferred by the Sovereign is intended to descend as broadly as possible, that 
 is to say, to all the heirs, lineal and collateral — precisely as Lord Stair has laid it down ut supra — but subject of course to 
 such other rules or principles of law as may exert a modifying influence under contingent circumstances. 
 
 It is by no means to be wondered at, abstractly, that the principle in question should apply in cases of honours — 
 honours being originally feudal and connected with land, and it being natural and presumable (as by Lord Mansfield's dicta 
 in the Cassillis case in 1762) that family estates and dignities should descend together ; % but, in illustration of the applica- 
 tion of this principle to honorary or gentilitial rights in the sixteenth century, I may adduce a notable instance in the case of 
 the distinguished baronial family of Mowbray of Barnbougal, a branch of the illustrious Anglo-Norman and Ducal House 
 of Norfolk in England, and which had settled in Scotland at an early period, and attached great and deserved importance to 
 the perpetuation of its name and representation. 
 
 The last Mowbray of Barnbougal having no male issue, but only a daughter and heir apparent, and the son of Robert 
 Barton of Over or Uther Barton having been accepted as the young lady's suitor and future husband, and the respective 
 parents having agreed that in consideration of the marriage the bridegroom should adopt the surname of Mowbray, the King, 
 in 1527, intervened 1o give legal eifect and sanction to the treaty, and, acting " be avise and auctorite of Parliament," and 
 thus in the most solemn manner conceivable, he " creat and namyt Robert Bertoun, sone to Robert Bertoun of Ovir Bertoun 
 " to be of the surname of Mowbrayis, and will " (willed) " that he broke the said surname in tyme to cum, and he to be 
 " callit Mowbray commonly amangis all his liegis," conformably, as is stated, to an " appunctuament " or covenant, " maid 
 " betuix umquhile Mowbray of Bernbowgall and the said Robert Bertoun, eldar," the fathers of the bride and 
 
 bridegroom ; and on the recital and consideration, on the part of King and Parliament, " becaus the samyn has bene 
 " ane auld honorable hous, and done our Soverane Lordis predecessoris gud service in thair weris (wars) and utherwais ; 
 " and the said Robert Bertoun, yongar, is to mary Mowbray, the dochtir and air of the said Mowbray, and will 
 
 ■* " Charters, or writs in place of charters, tho' they never so fully comprehend the dispositive will of the superior, yet 
 " they never become a real right till they be completed by seisin," — that is, as subsequently stated, under " the attest of a notary," 
 on the principle nulla sasina nulla terra. — Institutions, Book in. Tit. iii. § 16. 
 
 t The entire paragraph is as follows : — " In the next place, what is not the express will of the vassal and the superior by the 
 ' ' tenor of the investiture, is regulated by their conjectured will, from the nature of the fee, and propinquity of blood : so, if the fee 
 " be originally granted to a woman, her issue female succeed, as well as the male ; or if the reddendo be not military service, but 
 " money, grain, or services competent to a woman, or manual services, wherein there is no choice of persons, as tilling, &c., and so 
 ' ' generally fees holden blench or feu, in all these women may succeed ; because they are not excluded by the nature of the service. 
 " 2. If the fee be granted to heirs whatsomever, not only doth the issue of the first vassal, but all other his lawful heirs, or the 
 " lawful heirs of the last deceasing vassal, whether of the issue of the first vassal, or not, do succeed ; and now fees being ordinarily 
 " acquired by sale, excambion, or the like onerous titles, feuda ad instar patrimoniorum sunt redacta; heirs whatsoever are commonly 
 " exprest, and if they were not, they would be understood ; for that which is ordinary is presumed." — Institutions, B. iv. Tit. iv. 
 § 21. 
 
 X The passage continues as follows : — " So heirs were found to have the benefit of a promise made to their predecessors, for 
 " disposing of lands to him acquired for his use, though it mentioned not heirs, Had. Feb. 22, 1610, Heir of Robertson contra Living- 
 " stone. The like of a reversion, not mentioning heirs, which was thought to be omitted by neglect, seeing it bore not redesm- 
 " able to that party during his life, as is ordinarily adjected when that is meaned, Jan. 9, 1662, B. Murray. The like of an annual 
 " rent, though it bore only to be paid yearly, and not perpetually, or heritably, or to heirs, Feb. 2, 1667, Powrie. And a substitution, 
 " mentioning only the person substitute, without mention of his heirs, was found competent to that person's heirs, Jan. 5, 1670, Junes." 
 — Jnstittdions, Book lii. Tit. iii. § 5. 
 
 § See the Preface to the Institutions. 
 
 II " Privileges which draw no consequential prejudice after them to others, must be largely interpreted for the grantees, 
 "agreeably to that munificence which is natural to the Supreme power, ?. 3, Oe const. princ." — Erskine's Institute, Book i. Tit. i. 
 § 55. 
 
 U Vide infra, pp. lxxxv, xc, and the Appendix, infra, p. 556. 
 
 M 2 
 
LXXSIV ADDRESS TO THE QUEEN. 
 
 " not " (i.e. they willed not) " that the said hous pas fra the surname." On which notarial instruments were duly taken by 
 the Lairds of Lestalrig, Niddrie, and others.* 
 
 The grant was thus to Robert Barton, personally and alone, without mention of heirs— precisely as the Dukedom of 
 Lennox was granted to Esme' Earl of Lennox, personally and alone, without mention of heirs, in the patent 1581. And 
 yet, although thus granted, it was by no means the intention or understanding of the King or Parliament that the surname 
 of Mowbray should die or become extinct in the person of the grantee ; and, on the contrary, it descended, as an exclusive 
 surname, that of Barton being entirely sunk, in the posterity of Robert Barton, or Mowbray, the subsequent Barons of 
 Barnbougal, down to their extinction towards the close of the seventeenth century — as could be fully proved by the 
 charter-chest of the family (now, with the estate, in possession of the Earl of Rosebery), — all of them being entitled to the 
 same privilege, although not specified in the Royal grant and Act of Parliament, by which it was conferred upon their pro- 
 genitor.f 
 
 The preceding thus furnishes a confirmation of the legal principle, as laid down by Lord Stair, and of its application 
 to honorary and gentilitial rights, and is strictly analogous to the case of the Dukedom of Lennox in 1581 and afterwards — 
 being indeed even stronger, a surname being a right more purely and abstractly honorary and unconnected with landed property 
 than a dignity, especially in those semi-feudal times ; while it was considered a privileged possession which no one might 
 intrude upon or appropriate. 
 
 It may have been observed that the very same words " creat " and " namyt " are used in describing the grant of the 
 surname of Mowbray to Robert Barton as in the Lennox patent in 1581. 
 
 A similar and more recent case, in which a dignity descended to heirs of the body on the above broad principle 
 inculcated by Lord Stair, may be cited in the instance of the Barony of Balfour of Burleigh, created by James VI., by 
 patent, 16th July 1607, granting " ipsilocum et sutfragia in omnibus regni nostri Scotie Comitiis publicis seu Parliamentis," 
 and all other privileges and immunities competent "ad Dominum et Baronem nostri Parliamenti . . omni tempore future," 
 &c. — but without any words of limitation: — Under which patent, notwithstanding, his daughter and heiress, Margaret 
 Lady Burleigh, duly succeeded to the dignity and transmitted it to her descendants, who enjoyed the title and were 
 designated Lords Balfour of Burleigh (as can be fully proved) till the attainder of their representative in 171 5.+ 
 
 The principle and practice, here illustrated, are not unknown even in England, where a mere writ of summons to 
 Parliament, without the slightest apparent indication or intention to grant an honour, and far less to heirs, has been held on 
 repeated occasions, when duly followed by a sitting in Parliament, to constitute a Barony descendible to lineal heirs, 
 including females. § 
 
 It is, however, on Scottish usage and principle, which must here primarily rule, that the question now under 
 discussion — to wit, ' How the Dukedom of Lennox, created by a patent without a limitation, came to descend to heirs at all,' 
 falls to be determined ; and the principle, laid down as above by Lord Stair, and the parallel usage illustrated in the case 
 of the Mowbrays of Barnbougal, and of the Barony of Balfour of Burleigh — Duke Esme being fully inaugurated and invested 
 in the Ducal dignity, as in a fief or subject at common law after infeftment — supply an answer to the question, and 
 account, it is submitted, for the fact that the Dukedom of Lennox did descend, as has been proved, to heirs of the patentee. 
 
 The fact of course remains the same, and the inference from that fact equally cogent and in point, in favour of the 
 Montrose grant 18th September 1489, whether the preceding explanation be considered to be satisfactory or not, as has 
 been premised. I have only to add that I am aware of no other explanation that can be offered to account for the fact in 
 question. 
 
 It is evident, therefore, from what has been established, that, if the patent 5th August 1581 had conferred the 
 Dukedom of Lennox, siraply and without more, upon Esme Earl of Lennox, the dignity would have heen transmissible, in 
 accordance with the doctrine of Lord Stair, and the usage above illustrated, to heirs general, and would have ultimately 
 descended, successively, to Mary Countess of Arran and Catherine Lady O'Brien, and would now vest in the heir and 
 representative of the latter, the Earl of Darnley. How it came to pass that it did Jlot do so, but passed over heirs female, 
 must be the subject of the next point in this inquiry. 
 
 II. How descendible to heirs male of tlie body, excluding females. — The fundamental and guiding principle here, 
 which checked the unlimited descent to heirs lineal and collateral in the Lennox case, is manifestly that on which my father 
 has laid most earnest stress in his argument on the interpretation of the limitation " heredibus suis" in the original Montrose 
 patent 18th May 1488 ; viz., that the term ' heirs ' — and of course the thing signified by that term — is flexible in its nature, 
 and governed by attendant and collateral circumstances ; or, as it is expressed by Erskine, " varies according to the nature 
 " of the subject, or of the security, or of other circumstances." || 
 
 * Acts of Parliament, 10th May 1527, vol. ii. p. 320. 
 
 t Robert Mowbray is on one subsequent occasion described as " Roberto Bertoun de Bembowgall," on the 17th August 1534, 
 in the Acts of Parliament, vol. ii. p. 338 ; but he figures as " Robertas Moubray de Barinbowgall " on the 16th August 1540, ibid. p. 
 362 ; thus additionally illustrating the indifferent usage of lower and higher titles and designations in Scotland, as proved and insisted 
 upon infra, p. xciv. And the family ever afterwards took the exclusive surname of Mowbray. Their last representative. Sir Robert 
 Mowbray, a spendthrift and prodigal, was living in 1685 in abject misery, dependent on eleemosynary and parochial aid, literally a 
 beggar. 
 
 J PiddeWs Peerage and Consistorial Law, pp. 100, 175. 
 
 § Many cases (those of De Roos, Grey of Ruthyn, Willoughby de Broke, Wentworth, and others) might be cited in illustra- 
 tion of this,— as well as the case of the Barony of Clifton, created by the simple summons to Parliament of Sir Gervase Clifton in 
 1608, and adjudged, in consequence of the preceding rule and understanding, to his heir general, Catherine Lady O'Brien, sister 
 and heir of Charles last Duke of Lennox, in 1673-4, as already shewn. The rule is thus stated by Cruise: — "Although writs 
 " of summons to Parliament, whether addressed to persons never summoned before, or to ancient barons, or their descendants, 
 " for in both cases the writs have in general been exactly similar, do not contain any words of inheritance, . . yet it appears to have 
 " been long settled that where a person was summoned to Parliament by the usual writ, and took his seat in the House of Peers under such 
 
 " writ, he acquired the dignity of a baron, not only for himself, but also for all his lineal descendants, both male and female." On Dignities, 
 
 p. 73. 
 
 II Institute, Book m. Tit. vii. § 47. Vide infra. Anal., p. cxxxviii, note f. 
 
ADDRESS TO THE QUEEN. LXXXV 
 
 1. In the first place, the context op the patent 1581 shews that it was the intention of the King that the heirs 
 
 succeeding to the " Erldome of Lennox, Lordschip of Derneloy, and Baronie of Torboltoun," that is, to the 
 fiefs and patrimony of Lennox, " with the honouris, richtis, and previleges pertening thairto," should be 
 " his nixt cousingis maill of the same Hous and Uude." Moreover, the personal Earldom of Lennox was 
 descendible, as may be presumed, at all events, to heirs male of the body. And the Earldom, or fief, being 
 erected into a Dukedom, still in favour of " the Bom" and its representative, Esme, and Esm6 himself being 
 created " Duk of Lennox, Erll of Dernelie, Lord of Aubigne, Torboltoun, and Dalkeith," personally, the 
 inference and presumption must necessarily be, that the dignities of Earl and JDuke of Lennox were intended 
 to descend conjointly and together (as, in fact, tliey practically did), and not to separate and descend m, 
 different channels of succession, — and this a fortiori after the judgment in the Cassillis case in 1762, where 
 it was held by Lord Mansfield that, the title of ' Lord Kennedy ' being descendible to heirs male, the Earl- 
 dom of Cassillis, of which the constitution was unknown, must likewise be descendible to heirs male — on the 
 principle that it could not be supposed that it could he intended that the Lordship should go one way (viz. to 
 heirs male) cwid the Earldom another (viz. to heirs female), — as elsewhere shewn in this volume.* 
 
 The context of the patent thus checks, controls, and in fact limits the broad destination of heirs 
 attributable to it, as a grant without express limitation, under the doctrine of Lord Stair — so as to confine the 
 descent (at least) to heirs male of the body. — And, 
 
 2. The investitures op the Lennox estates, at the time of the grant of the Dukedom, equally confirm the above 
 
 induction, — the presumption that honours and patrimonial estates must le intended to go to tlie same line of 
 heirs being a consideration not to he overlooked in the construction of a grant wliere the words from which the 
 limitation is to he inferred are legally susceptiUe of varied interpretation ; and this especially in feudal times, 
 when a peer without vassals and followers would have been a social anomaly. It is on this principle laid 
 down by Lord Mansfield in his speech on the Cassillis claim, as a rule for ascertaining the descent of dignities 
 of which the constitution is either lost or unknown, " that," as " most frequently there was a charter of 
 " erection of the lands at the time the title of honour was conferred," " if the lands were limited to heirs male, 
 " the title of Iwnour cannot he supposed to descend in a different channel from the lands im the charter," \ 
 which rule will be found to apply closely in the present instance. 
 
 It ha.s been already shewn that the grant of the estates or patrimony of Lennox was limited by the 
 charter 5th March 1579 to heirs male of the body of the grantee. And a subsequent charter of those estates, 
 with the erection into a "Ducatus," 15th December 1581, was limited to the same heirs. It is true that 
 both these grants were annulled by the Act Revocatory in 1583, and that the new charter of the " Comi- 
 " tatus " and erection thereof into a " Ducatus," ult. July 1583, conveyed them to heirs male whatsoever ; and 
 that Charles II., the collateral heir male, succeeded to the Lennox patrimony, in consequence, by Retour and 
 Service, under that limitation. But it is to the two former charters, of 1579 and 15th December 1581, and 
 not to that of 1583, that we must look for relevant contemporary evidence as to the intention of the Crown 
 in bestowing the Dukedom, in so far as the destination of the lands in those charters may be held to 
 explain the intended destination of the Dukedom ; and that destination must by this rule be inferred to be 
 — to heirs m^le of the body (all that concerns this second head of inquiry), excluding heirs general, or 
 females. 
 
 The investitures of the Lennox patrimony thus furnish an additional argument for inferring a descent 
 of the Dukedom to heirs male of the body, excluding females. And the Dukedom did practically so descend, 
 passing over females, as has been already shewn. 
 
 If, therefore, there had heen no further evidence — if, on the death of Charles last Duke of Lennox in 1672, the dignity 
 had simply ceased to exist and heen regranted by Charles II., I apprehend tliat the conclusion would Jiave heen inevitable that 
 the destination of the patent 1581 wa.s, constructively, to heirs male of the body of the patentee ; and that the Dukedom then 
 (in 1672) became extinct. But further evidence does exist, and has been adduced ; and the question, therefore, whether 
 the Dukedom was descendible still further than to heirs male of the body, viz. to heirs male whatsoever, remains to be 
 ascertained under the remaining head of this inquiry. 
 
 III. Whether or not the Dukedom was descendible to heirs male whatsoever. — The question here (as premised) turns 
 upon the accuracy of the statement made by King Charles II. in the patent of the Dukedom of Lennox, 9th September 
 1675, in which, as has been shewn, he recites that the Dukedom of Lennox, Earldom of Damley, &c., being the " tituli 
 " honoris . . ad Duces Lennociae pertinentes " — the titles of honour pertaining to the House of Lennox, and exclusively 
 created by the patent 5th August 1581 — had vested in himself" tanquam hekedi masculo ntjpek Ducis Lennoci^," as 
 the heir male — and, necessarily, heir male whatsoever — of Charles the sixth and last Duke of Lennox. 
 
 The question is, ' Is this statement accurate or inaccurate ? ' 
 
 It is to be observed, in the first place, that, according to this statement, the Dukedom of Lennox and its associated 
 dignities did not vest in the Crown through extinction, or in Charles II. as " ultimus hasres, jure coronae " (for in that case 
 — the King not taking by blood or succession, but by constructive right of heirship — it would have been simply stated, in 
 ordinary wise, that the honours had, through extinction and lack of heirs to the last possessor, reverted to the Crown by which 
 they had been granted J) ; but, on the contrary, it is expressly afiirmed by the King in this patent, that they had vested in 
 
 * " At any rate," said Lord Mansfield, with respect to a charter purporting to regrant the Earldom of Cassillis in 1762, " the 
 ' ' title of Kennedy is not in this charter. If therefore the charter was to operate as a new grant, the title of Lord Kennedy would go one 
 " way," i.e. to heirs male, " and that of Earl of Cassillis be separated, and go in a different channel," i.e. to heirs general. " But it is 
 " NOT possible to BELIEVE THAT THIS COULD EVER BE INTENDED."— Vide infra, Appendix, p. 559. 
 
 -(■ Vide infra. Appendix, p. 557. 
 
 X As, for example, in the charter of Queen Mary, under the Great Seal, 5th September 1552, recorded in the Great Seal 
 Eegister, to Alexander Lord Gordon, of the lands of Petty and Strathnairn, the quequidem of which states that they had belonged 
 to James Earl of Moray, " et nunc pertinent nobis ac in manibus nostris ratione eschaite devenerunt, ex eo quod diotus quondam 
 " Jacobus Moraviae Comes bastardus natus est, et bastardus decessit, absque legitimis heredibus de corpore suo procreatis," — i. e. 
 
LX5XVI ADDRESS TO THE QUEEN. 
 
 himself, personally, propria jure or en particuUer, as " heredi masculo " or ' heir male ' of the last Duke and of the House of 
 Lennox, through failure of nearer heirs male. 
 
 Assuming this to be correct, then it is evident, that — through a peculiar feudal principle, familiar also in England and 
 on the Continent, the Royal dignity eclipsing and absorbing any inferior status,* the King was at liberty to dispone the 
 Dukedom anew, like any other honour, by independent grant, to whomsoever he should choose ; and he did so, in this instance, 
 to his natural son, above alluded to, and to the exclusion of any collateral Royal male heirs of the House of Lennox, as, for 
 example, his brother James Duke of York, and other remoter heirs male,t who would have taken both the honours and the 
 estates of Lennox in a different emergency. 
 
 It is impossible therefore to deny that the statement in question — a pointed declaration by a Sovereign in a patent 
 under the Great Seal — accurately enumerating the honours respecting which the statement is made, as granted in the pre- 
 ceding century— and in a matter where there was no object whatever for fraud or misrepresentation — has every fair pre- 
 sumption of being a well considered one, proceeding on the advice of the Crown lawyers, entitled therefore to the greatest 
 weight, and such altogether as would command acquiescence in its truth and accuracy, unless upon very strong contrary 
 grounds. 
 
 The difficulty of admitting its accuracy I have already indicated, as arising from ignorance of the precise limitation of 
 the patent of the preexisting Earldom of Lennox, which consequently must be presumed, according to the rule adopted by 
 the House of Lords in similar contingencies, to be descendible only to heirs male of the body ; a conclusion which is 
 supported, moreover, as I have formerly intimated, by the fact that the contemporary grants of the estates are to heirs male of 
 the body likewise. 
 
 But this difficulty may be merely a superficial one, and, on the other hand, it may be argued, that the rule of inter- 
 preting Royal grants as largely and liberally as possible, in conformity with the munificence characteristic of the Supreme 
 power — the broad force and effect necessarily to be given to a grant conceived without limitation, as prescribed by Lord Stair, 
 and illustrated in the examples above adduced — and the expressed intention of the Crown to favour the male line of the 
 House of Lennox, controlling to a certain degree that unlimited force and effect in the particular instance, so as to qualify the 
 heirs lineal and collateral entitled to the succession as males, exclusively of females, (no restriction upon the male succession 
 being moreover indicated in the patent,) — may, severally and conjointly, in their paramount force, have justified the statement 
 under consideration ; and that that statement may be in effect correct ; and that the fact, as asserted, is to be acquiesced in, 
 viz., that Charles II. did actually succeed to the dignities of Duke of Lennox, Earl of Darnley, &c. as " heir male " — that 
 is, heir male whatsoever, or collateral — of Charles last Duke of Lennox, and of Esme the first Duke, under the patent 1581. 
 Moreover, it may be a consideration not altogether unworthy of notice, that the limitation and descent of the Earldom 
 of Lennox to heirs male of the body is not (as has been stated) a matter of absolute certainty, but simply of legal presump- 
 tion, contingent upon the loss of the patent, although strengthened and supported by the fact that the limitation of the estates 
 in the immediately antecedent charter 5th March 1579-80 was to heirs male of the body. Under this admitted uncertainty, 
 while giving its full weight and force to the legal presumption in question, still the outstanding and striking fact, that, mi the 
 final and deliberate regrant of the estates in 1583 (after the charter of 1579-80 had been revoked and abrogated), the limitation 
 in the charter was the broader one, to heirs male whatsoever, may suggest the possibility that the grant of the Earldom in 
 1579-80 may have likewise been to heirs male whatsoever, and that, possibly from a feeling of jeodtmsy and a wish to retain 
 power in the hands of the Crown on the part of the King's advisers (James VI. being then under age), the estates may have 
 been granted in the first instance with more reserve than the dignity — a reserve which, on the King's attaining his 
 majority, and after the fiefs had reverted to the Crown through the Sevocation, may have been, in 1583, finally abandoned 
 and departed from, and the broader limitation substituted, in conformity with the prescribed descent of the Earldom and of 
 
 that he died wholly without heirs, a bastard having, at common law, only succession of the body, and not collateral, in which event 
 the lands came to the Crown by the casualty of " ultimus hsEres," as in this case. Queen Mary here is not styled ' heir' of Earl 
 James, as Charles II. is of Charles Duke of Lennox in 1675, which marks the distinction. On the subject of " ultimus haeres " see 
 Erskine's Institute, B. III. Tit. x. § 2 ; Bell's Law Dictionary, p. 761, edit. 1808 ; and Dallas's Styles, vol. i, part 2, p. 84. 
 
 * This principle is illustrated as follows in Selden's argument for the Earl of Kent in the case of the Barony of Grey de 
 Euthyn in 1640 :— " So in the case of the Dutchy of Lancaster, Plowd. 214", it is agreed, H. IV. was son and heir of John of Gaunt, 
 " one of the sons of H. III. {jic], and he was also son and heir of Blanch, wife of John of Gaunt, daughter and heir of Henry Duke 
 " of Lancaster, so that the Dutchy came unto him by his mother; but after he had deposed Richard II., and assumed the regal 
 " state, not only his honors of Duke and Earl, ^e. were drowned, but the lands he held by his mother were in him in right of his crown • 
 " he could not be both Duke and King." Collins' Baronies, p. 205.— On the same principle, when the Orleans family succeeded to the 
 throne of France, their private estates merged and consolidated in the crown, as familiarly known to Europe. 
 
 t From the Edict by the Court of Session, previous to the 3rd January 1588, appointing curators to " Ludmick Duik of 
 " Levenax, Erie Demelie, lord Torboltoun and Aubigney, Heich and Greit Chalmerlane of this realme," it appears that, besides his 
 maternal kindred, " Hew Campbell of Tarrinzean, Thomas Stewart of Gaston, and Mathew Stewart of Barscube " were cited as " narrest 
 " of kin to the said Duik on the father syde," but failed to appear; whereupon the Earls of Huntley and Errol were appointed 
 curators. — Act and Decree Segister of the Supreme Civil Court. 
 
 Two or three points of interest claim notice here. In the first place, there were many heirs general, or female much nearer 
 of km to Ludovick Duke of Lennox on his father's side than the two Stewarts here cited ; and a curious fact (unnoticed by legal 
 writers) is thus illustrated, viz., that a great preference was still shewn, as late as 1588, to male heirs; who (as can be proved) were 
 frequently, as above, cited exclusively, passing over heirs general or female, on the father's side. 
 
 Again, it is remarkable that these male Stewarts are here described, simply, as "narrest of kin" to Ludovick Duke of Lennox 
 " on the father's syde "-which is tantamount to 'nearest heirs' on the father's side-without the addition of ma?<! that being 
 understood ; a fact which illustrates my father's argument on the subject of the flexibility of the term ' heirs ' in the ' S. Case ' pp 
 145, sqq. and infra, pp. cxxxviii sqq. ' ' 
 
 • .^T-rl' ^""S"' '"'f IT^ interesting fact also transpires here-one of much antiquarian and indeed historical importance, 
 VIZ., that Thomas Stewart of Gaston and Matthew Stewart of Barscube were the nearest male heirs of the House of Lennox and 
 Stewart m 1588. The Stewarts of Gaston (or Galston) were descended (as can be proved) from Alexander, second lawful brother 
 of John first Lord Darnley and first Earl of Lennox, who was alive in 1493; those of Barscube (it is said) from a younger son 
 of Sir Alexander Stewart of Darnley, who was dead in 1406. Both families retained their landed property for many generations 
 —the Stewarts of Galston till the Protectorate, those of Barscube till 1670, and indeed till the reign of Queen Anne • and produced 
 various younger branches possessing landed property, besides landless cadets. It is in the descendants therefore of these two houses 
 of Galston and of Barscube, if such exist, that the male representation of James I., Charles I., and all the succeeding Roval and 
 princely Stuarts, down to Cardinal York, must now reside. ° ' 
 
ADDRESS TO THE QUEEN. LXXXVII 
 
 tlyi Dukedom wliich had been founded or engrafted upon it, and to the effect (which otherwise would not have obtained) of 
 restoring tlie harmony between the descent of the estates and honours, which is always, as inculcated by Lord Mansfield in the 
 Cassillis claim, to be presumed in Peerage Law. I submit this merely as an hypothesis, and would distinguish it as such 
 from the arguments employed in the preceding paragraph ; but it has at least the merit of meeting and obviating the difficulty 
 which suggested it, of affording relief from the odium of throwing a doubt upon the accuracy of the King and the legal 
 officers of the Crown in 1675, and of enabling a claimant under the Montrose regrant of 1489 to accept and found upon their 
 statement, to the effect that the Dukedom of Lennox had descended to the King as " heir male," i. e. heir male wliatsoever, 
 of the last holder of the Dulcedom under the patent 1581, as accurate and consistent with fact and truth.* 
 The alternatives im hoc statu are therefore as follows : — 
 
 1. Either the Dukedom of Lennox devolved to Charles II., according to his own statement and that of the law 
 
 officers of the Crown in 1675, as hme male of the last Ddkb op Lennox,— m which case the patent 1581 
 carries the dignity to heirs male whatsoever, or collateral ; Or, 
 
 2. The Dukedom became extinct on the death of Charles last Duke of Lennox,— in which case Charles II. and the 
 
 Crown officers could only have been led into the inaccuracy in question hy interpreting the patent 1581 hy 
 tlie charter 1583, and presuming that the dignity was to descend in the same line of succession as the property, 
 viz. to heirs male whatsoevee, — an interpretation which deeper research might (under this view of things) 
 have disproved ; but which at all events establishes the fact, that tlie ruling investiture of the House of Lennox 
 was referred to in 1675 as tlie criterion of descent in the emergency. 
 
 It would undoubtedly simplify matters for my father, and save time and trouble to himself and the House of Lords, in 
 the event of a claim to the Dukedom of Montrose under the patent 18th September 1489, if he could absolutely and unre- 
 servedly found upon the former of these alternatives — his claim under that alternative being at once clear and unexceptionable ; 
 but, otherwise, it would be a matter of indifference to him which of the preceding alternatives be adopted by the Committee 
 of Privileges — inasmuch as his claim under the latter i-s equally demonstrable, — his case being quite independent of that of 
 Lennox as regards the succession of heirs male whatsoever — all that is doubtful and subject of dispute in the Lennox case 
 under this head being clear and ascertained in that of Crawford or Montrose. 
 
 II. Dukedom op Montrose. 
 
 I. Constitution of the Duhedom of Montrose by the grant I8th September 1489, as compared with that of the 
 Duhedom of Lennox by the grant 5th Auffust 1581. 
 
 The parallel between the case of the Dukedom of Montrose, as created in 1489, and that of the Dukedom of Lennox, 
 as created in 1581, may now be drawn in very few words. 
 
 The Crawford patrimony, with all its regalities, privileges, and feudal prerogatives, was limited to heirs male what- 
 soever, exclusively, without the slightest opening to females, at the time of the creation of the Earldom of Crawford in the 
 fourteenth century, and subsequently, without interruption, in 1489, and afterwards. This has been established in my 
 father's recent and successful claim to the Earldom of Crawford.f The Lennox patrimony, it will be remembered, was merely 
 granted for the first time to Esm§ Earl of Lennox in 1579, as a new taker, with limitation to himself and the heirs male of 
 his body. 
 
 The dignity of Earl of Crawford stood descendible to David fifth Earl of Crawford and his lieirs male whatsoever at 
 the time of the creation of the Dukedom of Montrose in 1489, and descended accordingly, passing over heirs female, the 
 daughters and heirs general of David Duke of Montrose, to the heir male whatsoever in 1513, and subsequently on several 
 occasions. This also has been established and recognised in the claim referred to.f 
 
 The presumption in favour of male heirs was so strong in the Crawford family that even nova feoda, granted for the 
 first time to individual Earls of Crawford with the limitation to the grantee " et heredibus suis," habitually went to the heirs 
 male whatsoever, or collateral, excluding females — with the obvious view of strengthening the interest and power of the House. 
 In proof of this I may refer to the Montrose Case, pp. 49, 50 ; the Supplemental Case, pp. 163, 164 ; and infra, p. cxlii. 
 
 Under these circumstances, the Dukedom of Montrose was bestowed upon David fifth Earl of Crawford by James IV., 
 " with advice and mature deliberation of his Great Council," or Parliament, on the 18th September 1489, by a Grant or Act 
 of that date, carefully and at full length registered in the Books of Parliament — proceeding on an acknowledgment of the 
 past loyalty of " David Earl of Crawford " and of " his illustrious predecessors," in other words, of the House of Crawford, 
 and in consideration of services to be rendered by himself, and inferentially by his successors, "in future times" — but further, 
 and as a climax, on the special and leading inductive preamble and ratio that " the phevious Eaels of Ckawfoed, his pre- 
 
 * It is in fact an application of the same process of reasoning, the same principle of hypothesis, by which the House of Lords 
 in the recent Montrose claim, founded on the patent of 1488, came to the conclusion that the Act Rescissory cut down that patent; 
 to wit, an arguing backwards from the practical non-succession to lands and titles, and from expressions used by officials of the 
 Crown subsequently to the death of the grantee, so as to infer a restriction of those lands and titles to the lifetime of that grantee, — 
 "but with this material difference between the two cases, that there were antecedents in that case — governing antecedents— which the 
 House were bound to pay deference to on the principle of priority of obligation, and which legally precluded (as 1 presume to think) 
 the conclusion come to by the House — antecedents which the Committee of Privileges entirely overlooked, ignored, and repudiated ; 
 whereas, in the present, there are no such antecedents, and the assumption that the Earldom of Lennox (on which the Dukedom 
 was founded) was descendible only to heirs male of the body stands solely on a presumption, susceptible of heing rebuked and controlled 
 by later evidence, if sufficiently relevant and in point : — And such, I conceive, the evidence of Charles II. and the Crown Officers in 1675 
 must necessarily (under the peculiar circumstances) be esteemed to be, whether the proceedings of the House of Lords in the recent 
 Montrose claim be regarded as a precedent in future or not. Still, however, I repeat, I submit what precedes to Your Majesty simply 
 as an hypothesis. 
 
 t As by strict entails and conveyances, duly confirmed by the Sovereign, during the reign of Robert II., i. e. in 1370-90, in 
 1421, in 1451, in 1474, in 1541, in 1546, in 1564, and 1587, respecting which see the Crawford Case, pp. 5, 42, 48, 55, 70, 76, 78. 
 
 J As by the decision, 11th August 1848.— See the Pedigree prefixed to this volume. 
 
LXXXYIII ADDRESS TO THE QUEEN. 
 
 " DECESSOBS " (" PEEDECESSOEUM SCOEUM, CeAUEUEDIE CoMITUM, DIGNE KECOLENDA PEIOEITAS "), HAD HELD THEIE FEUpAL 
 LOEDSHIPS, OE PATEIMONIAL ESTATES (" DOMINACIONBS "), BY THE TITLE OP BaKLDOM, OK EaKL (" TITULO CoMITATUS "), 
 
 " PEOM ANCIENT TIMES " (" AB ANTiQUis TEMPOEiBUS ") : — " Wheebfoeb " (" HiNc EST"), it is stated, the King, with 
 consent as aforesaid, " changino the afobesaid title of Bael into a gebatee and higher one " (" Comitis titulum 
 
 " SUPRADICTUM in MAJOEEM BXCELSIOREMQUB MUTANS "), " has . . elevated, made, CKEATED, and anew EAISED " (" SUBLI- 
 " MAVIT, fecit, CBEAVIT, ET DE novo EEBXIT ") " THE SAID DaVID, HIS COUSIN, DUKE OF MONTEOSE " (" DICTUM 
 
 " David, suum consanguineum, Ducem de Montbose "), " to the dignity of Duke" (" in Ducatum"), — willing him, 
 imxhar, to enjmj the SKiSS and prerogative of Dukedom {^' Ducatusque nomine et prerogativa" — thus personally conferred 
 upon him as " DcrOEM de Monteose ")— " according to the form and tenor" — that is, in technical language, according to 
 the /tere&'tor-j/ limitations or conditions — " of a charter thereafter to be drawn up " by the clerks of Chancery "upon the 
 " terms premised " (" secundum formam et tenorem carte . . super premissis conficiende "). This Grant is addressed " to all 
 " men, as well present as to he " (" tarn presentihus quamfuturis ") — to contemporaries and to posterity. It is thus expressed in 
 even stronger language than that of the Dukedom of Lennox, while parallel in all substantial points, as shall now be shewn.* 
 
 The charter alluded to in the final clause of this grant, if ever extended (which the Crown have considered doubtful 
 in the recent Montrose claim), is, by acknowledgment of the Committee of Privileges, " not forthcoming ;"t and the mere 
 suspicious abstract of it, fully discussed at pp. xcvi sqq. infra, of the present volume, and which my father has shewn to be not 
 unsusceptible of an interpretation implying an hereditary limitation, can have no weight in comparison with the solemn Act, 
 or grant, by the King himself, with consent of Parliament, 18th September 1489, which has (by the Cornwall judgment) the 
 force of a statute, J which is preserved in extenso in the Books of Parliament, and hy which the charter, if extant, would fall to 
 lie interpreted and controlled as hy its ride and warrant ; insomuch that, if the charter subsequently drawn up in Chancery 
 had been actually and distinctly to the Duke for life only, excluding heirs, tlie restriction would fall, hy Peerage Law, and hy 
 the practice of the House of Lords established hy numerous precedents in point, to he exscinded and erased, as contrary to the 
 expressed intention of the Crown, and a mere interpolation (frequent in such cases) hy the clerks of Chancery,^ — and this on 
 grounds wholly independent of the argument here for the first time advanced from the descent and history of the Dukedom of 
 Lennox. 
 
 Duke David sits as Duke of Montrose in the Parliament of 1489-90, subsequent to the preceding grant.|| I believe 
 that he was not inaugurated upon it, as being already Duke, de jure and de facto, under the former, or original, patent 18th 
 May 1488. But if the Act Rescissory cut down that patent, as affirmed by the Resolution of the House of Lords, 5th 
 August 1853, then, sitting in Parliament as he does as Duke of Montrose in 1489-90, he must have been inaugurated under 
 the grant now in question, because in no other way could he, under such contingency, have taken his seat under that title. 
 The fact of the due completion of the grant in all respects is not matter of dispute, but is a leading argument of the Crown and 
 the Committee of Privileges against my father as claimant of the Dukedom under the original creation, 18th May 1488.^ 
 
 II. The Montrose grant 18th September 1489 an hereditary grant, by inference from comparison of its language 
 and phraseology with that of the Dukedom of Lennox, 5th August 1581. 
 
 Reverting therefore to the language and phraseology of the Ducal grant 18th September 1489, it is clear that, as in the 
 Lennox patent 5th August 1581, there are no express words of limitation. The intention of the King to reward and favour 
 the House of Crawford — to change and exalt the title of Earl (" Comitis titulum "), as home hy the previous Earls of Craw- 
 ford, the predecessors of the patentee (" predecessorum suorum, Cravfurdie Comitum, digne recolenda prioritas"), from 
 ancient times {" ah antiquis temporibus"), Tsio that of Duke — and that those enjoying the ancient " dominaciones," m' 
 landed estates, of the Crawford family should henceforward continue to enjoy them under the higher title of Duke, in reward 
 for past services and in consideration of service to be performed in future times (" futuris temporibus ") — is clearly 
 expressed ; but {as stated) there are ko express wobds or limitation. 
 
 The Montrose grant 1 8th September 1489 is therefore essentially parallel in its phraseology and attendant circum- 
 stances to that of Lennox in 1581. The only difference between the two cases is this, — that, whereas the ancient Earldom 
 of Lennox, having lapsed to the Crown, had.been re-bestowed in 1579-80 on Esme Earl of Lennox himself (the Ducal grantee 
 of 1581), and (presumably— if this view be adhered to) with limitation to the heirs male of his body— being in truth and 
 effect a new creation and a neiv Earldom ; the Earldom of Crawford had never lapsed to the Crown, was inherited and 
 enjoyed by the Ducal grantee of 14^9 by transmission from a long line of ancestors, and was descendible at that very moment 
 as it stood in his person, to his heirs male whaxsoevek. But this difference is manifestly in my father's favour. 
 
 My proposition therefore is, that, if the patent of the Dukedom of Lennox in 1581, conceived without express words 
 of limitation, but constructively implying an hereditary descent, conveyed the honour, nevertheless, 1. To heirs ; 2. To heirs 
 male lineal, or of the body ; and, 3., if the statement of Charles II. in 1675 be correct. To heirs male whatsocyer,— the patent 
 of the Dukedom of Montrose in 1489, similarly expressed, without a limitation, but with constructive words equally cogent 
 and unmistakeable, must convey the honour in like manner, 1. To heirs ; 2. To heirs male lineal, or of the body ; and 3.— 
 whetlier the statement of Charles II. be correct or not (of which my father is wholly independent), still, on the principles 
 luhich guided Charles II. in that statement, and on independent a/nd satisfactory evidence— To heirs male whatsoevee— in 
 other words, to my father, James Earl of Crawford and Balcarres. 
 
 I. The Dukedom of Montrose descendible under the grant 18th September 1489 to heirs.— That this should be the ca.'^e 
 can admit of no doubt and should create no surprise after the illustration of the fact in the parallel case of the Dukedom 
 of Lennox. The reasons accounting for such descent may or may not be those assigned in the preceding discussion upon that 
 case-but the pact (all that is material) remains indisputable, that the Dukedom of Lennox and the inferior titles associated 
 therewith descended to heirs under a grant conceived in exactly the same terms as that of the Dukedom of Montrose-and 
 therefore the latter must, on every principle of fair interpretation, be likewise so descendible. The fact that the Montrose 
 grant actually changes the old and hereditary title of Earl borne by the Earls of Crawford (and which had not been resigned) 
 
 * This Act, 18th September 1489, will be found, with a translation, in the Appendix, infra, p. 531. 
 
 t Vide m/ra p^ 318. t Vide infra, pp. xviii, 393 sqq. § Vide infra, pp. civ, cvii. 
 
 II Acts of Parlmment, vol. u. pp. 216, 217, 220., t Vide ir^fra, pp. xcvi sqq. 
 
ADDRESS TO THE QUEEN. LXXXIX 
 
 into that of Duke, is an additional proof, from the context of the grant, that the Dulcedom must descend to heirs— the two 
 dignities being thenceforward, in fact, amalgamated and inseparably identified. 
 
 The Dukedom of Montrose, as conferred by the grant 18th September 1489, was therefore, as premised, descend- 
 ible to HEIRS of the grantee. 
 
 II. Tlie Dukedom of Montrose descendible under the grant 1489 to heirs male lineal, or of the hody of tlie grantee.— 
 This appears equally demonstrable, 
 
 1. From THE CONTEXT OP THE GRANT — which, as in the Lennox case, and as above stated, does not confer a (strictly 
 
 speaking) additional honour, but changes and transmutes tlie previously existing Earldom of Crawford into 
 a Dulcedom ; the inevitable inference from which is, that tlie Dukedom must descend in the same line of 
 succession as the JEarldom — or, rather, that the transmuted Earldom must still descend, in its modified but 
 essential character, as before — to wit, as by the recognised rule of descent in the Crawford family, to heirs 
 male whatsoever of that grantee — and of course d fortiori to his heirs male lineal, or of the body, excluding 
 females — all that is in view under this second head of argument. — And, 
 
 2. From THE LIMITATION OF THE FAMILY ESTATES — which, as has been stated, were then, and had from the first 
 
 creation of the Earldom of Crawford, and long before, been settled on heirs male whatsoever, and were of 
 course, a fortiori (as before), descendible to heirs male lineal, or of the body, of the grantee in 1489 — 
 excluding females, as in the case of Lennox. 
 
 The anomalous and absurd practical effect that would follow from a contrary interpretation, viz. from a descent of the 
 Earldom of Crawford, with all its fiefs and revenues, to heirs male, and that of the Dukedom of Montrose to heirs general, 
 has been remarked upon in respect to the original Ducal creation at p. xliii, supra. While the legal presumption in favour 
 of patrimonial estates and honours being intended to descend together to the same succession of heirs is enforced (as has been 
 shewn) by Lord Mansfield in the Cassillis decision — the foundation of so much that is recognised as existing Peerage Law by 
 the House of Lords. 
 
 Hitherto, therefore, the parallel between the Dukedom of Montrose and Dukedom of Lennox, as created by the 
 respective grants in 1489 and 1581, has been precise and identical — both of them being descendible under the respective 
 grants to heirs male lineal (at least) of the grantee ; while the argument is altogether d fortiori on the Montrose side, the 
 descent of the Earldom and patrimony of Crawford being to the heirs male whatsoever of the patentee in 1489. And 
 it will be found that even under the Third point of consideration and comparison, involving the question whether or not the 
 Dukedom of Lennox was descendible to heirs male whatsoever under the patent 1581, the Lennox case continues to exercise 
 a cogent and conservative influence on the fate of its sister dignity. 
 
 III. Hie Dukedom of Montrose descendible under the grant 1489 to heirs male whatsoever. — That the Dukedom was 
 thus descendible is, in fact, deducible under either of the two Lennox alternatives, i. e. Whether Charles II. really succeeded 
 to the Dukedom of Lennox as heir male whatsoever of the last Duke under the patent 5th August 1581, or whether the 
 statement to that effect by the King and the legal advisers of the Crown in 1675 was merely the consequence of misappre- 
 hension and error. For, 
 
 1. If the Dukedmn, with the other Scottish dignities appertaining to the Lennox family (" ad Duces Lennocice 
 
 " pertinentes ") in virtue of the patent 1581, went to Charles II., according to his own statement in the patent 
 1675 — not as "ultimus hseres " or through mere extinction, but, m due and regular legal succession and 
 devolution " tanquam hceredi masculo nuper Duds Lennocios," as heir male of the late Duke of Lennox — 
 the patent of 1581 thus carrying the Dukedom and its associated dignities to heirs male whatsoevbe (in 
 support of which view arguments not unmeriting consideration have been suggested supra, pp. Lxxxv sqq.), 
 — THEN, the Dukedom of Montrose, granted by the patent 1489, must likewise, by parity of reasoning, go, 
 at once and without further discussion, to the heir male whatsoevek of the patentee in 1489, my fatlier : — 
 And this, independently of all reference to investitures or collateral considerations, by the simple force and 
 virtue of the identity of the two cases. And, on the other hand, 
 
 2. If the Dukedom of Lennox became extinct on the death of Charles Duke of Lennox in 1672, in consequence of 
 
 the contemporary limitation of the Earldom of Lennox in 1579-80 (as inferred) and in 1581 being to heirs male 
 of the body only— Charles II. and his advisers being led into this error (on the hypothesis of its being one) 
 by resorting to the investiture of the Lennox patrimony, ult. July 1583, viz. to heirs male whatsoever, as 
 furnishing the ratio or criterion for ascertaining the descent of the dignity, and not going far enough back in 
 their investigation, viz. to 1581 and 1579-80 (a reference and research perfectly, in itself, legal and correct in 
 point of principle, but possibly, as has been suggested, under this alternative, too limited and easily satisfied 
 in its application), — then — applying that ratio and criterion, thus practically affirmed, pointed out, and 
 prescribed by the sanction of the Crown officers in 1675, to a parallel emergency, to wit, the ascertainment 
 and fixing of the constructive limitation of the Montrose grant of 1489— and taking the following facts into 
 consideration, 
 
 i. That the Earldom of Crawford and the estates or patrimony of Crawford, as enjoyed in 1489 and for 
 generations previously by the Earls of Crawford, were (differently from those of Lennox) exclusively 
 descendible to heirs male whatsoever : — 
 
 ii. That tlie context of tlie Montrose grant 18th September 1489, associates tlie enjoyment of the Crawford 
 patrimcmy (or " dominaciones ") with the enjoyment of the title of Earl (" titulo Comitatus," 
 " Comitis titulum") by the Earls of Crawford, tlie predecessors of the grantee — including his grand- 
 father, the common ancestor of David Duke of Montrose and of my father— /rom ancient times ; 
 and changes that title of Earl, as borne by tlie House of Crawford, into the higher title of Duke, in 
 reward of the services rendered by the previous Earls of Crawford, and in consideration of service 
 to be rendered by the chief of the House and holder of the Earidom pro tempore, and, inferentially, 
 
 N 
 
XG ADDRESS TO THE QUEEN. 
 
 by his successors, in future times — the grant itself moreover being addressed, not to the present 
 only, but to all future generations, — 
 
 lli. That in a case where " tlie lands " or patrimmy of a family are " limited to heirs male," as in the case 
 of the Souse of Crawford, a " title of honour," of which the constitution is to he discovered, " cannot 
 " he supposed to descend in a different channel from the lands in the charter," — as laid down by 
 Lord Mansfield in his speech on moving the Resolution in the Cassillis and Kennedy claim in 
 1762,* — which necessarily prescribes the descent of the Dukedom of Montrose, along with the 
 Crawford patrimony (the " dominaciones " of the grant), to heirs male whatsoever, — 
 
 iv. That in a case where two dignities are originally centered in one and the same individual, as, for 
 example, the Earldom of Crawford and the Dukedom of Montrose in the person of David fifth Earl 
 of Crawford, the grantee in 1489 ; and where the suggestion is or may be made that the one title 
 " must go one way '' and the other " be separated and go in a different channel " — i. e. the one to 
 heirs male, and the other to heirs general ; in such case " it is not possible to believe that this could 
 " ever be intended," and therefore the title of which the descent is ascertained must govern the descent 
 of the title which is not ascertained, — as similarly laid down by Lord Mansfield in the Speech just 
 cited; in consequence of which rule that Noble and Learned Lord held that the Earldom of 
 Cassillis must (under a certain contingency) be descendible to the heirs male succeeding to the 
 previously existing dignity of Lord Kennedy ; f and which rule must in like manner prescribe a 
 descent of the Dukedom of Montrose to the heirs succeeding to the Earldom of Crawford, and 
 a fortiori, the Earldom being actually clianged into, and inseparably and for ever amalgamated loith 
 the Dukedom, which was not the case with respect to the honours of Kennedy and Cassillis, — 
 And, lastly, 
 
 V. That it is a principle of Scottish and feudal Peerage Law, as laid down by Lord Bankton in his 
 Institutes, that " if the old rights of tlie Barony or Lordship belonging to tlxe family have always gone 
 " in a perpetual channel to heirs male, then all titles of honour thereon founded ivill he understood 
 " to go in the same manner to the heie male," J which exactly applies in the Montrose case ; 
 the ancient Earldom of Crawford and its " dominaciones," or Lordships, constituting " the old 
 " rights" of the family, having " always gone in a perpetual channel to heirs male," — and the 
 Dukedom, which was (in the strictest sense of the expression) ^'■founded" or erected thereupon, 
 being consequently likewise so descendible, — a circumstance and peculiarity in which the Montrose 
 case transcends and has the advantage over that of Lennox, — 
 
 — THEN, I repeat, taking all these facts, circumstances, and rules of legal interpretation into consideration, the inference, I 
 submit, as flowing from the second Lennox alternative in 1675, is inevitable, — viz. That the Dukedom op Montrose, as 
 
 CREATED IN 1489, WAS INTENDED TO DESCEND IN THE SAME MANNER AS THE EaRLDOM OF CRAWFORD, WITH WHICH IT WAS 
 
 IDENTIFIED, AND FROM WHICH IT WAS INSEPARABLE — SO long, that is to Say, as a single heir male of the House of Crawford 
 should siu'vive to serve the Kings of Scotland under the transmuted title — to wit, to lieirs male whatsoever. 
 
 HI. Results of tlie preceding comparison and argument. 
 
 The results, therefore, of the preceding comparison between the Dukedoms of Lennox and Montrose, as created by the 
 grants of 1581 and 1489, are as follows, — 
 
 1. That the grant of the Dukedom of Lennox, 5th August 1581, to Esme Earl of Lennox, proceeding on the 
 
 preamble that the King had granted the Lennox patrimony, with its honours, &c. to him (Esme) and his 
 heirs, with the view that ttie House of Lennox should continue to stand in the male line, and therefore 
 erecting the Earldom of Lennox into a Dukedom in his favour, and creating him, personally, Duke of 
 Lennox — but without any express limitation — was an hereditary grant, and conveyed the Dukedom to the 
 heirs male of the body of the patentee, excluding heirs general — and even, if the assertion of Charles II. in the 
 patent 1675 be correct, to heirs male whatsoever. 
 
 2. That the grant of the Dukedom of Montrose, 18th September 1489, to David Earl of Crawford, proceeding 
 
 on the preamble that the previous Earls of Crawford, the predecessors of the grantee, had held their 
 " dominaciones," or patrimonial lordships, by the title of Earl from ancient times, and therefore, and in order 
 to reward the loyalty of the House, and in consideration of services to be rendered in future times, changing 
 the aforesaid title of Earl (borne, as premised, by the chief of the House) into the higher title of Duke — but 
 without any express limitation — is conceived in tlie same terms, and is precisely parallel in every respect with 
 the grant of the Dukedom of Lennox in 1581 ; the reference in the context of tlie Montrose grant, as in that 
 of tlie Lennox grant, being to the existing constitution and limitation of tlie previously existing dignities and 
 estates of tlie House or family on which the new honour is conferred — which constitution and limitation fall 
 therefore to govern the descent of tlie new honour, or Dukedom, in each case. And, 
 
 3. That consequently — the principles on which the Dukedom of Lennox, conferred by the patent 1581, descended to 
 
 heirs male of the body, and possibly to heirs male whatsoever, equally applying to the Dukedom of Montrose — 
 the Dukedom of Montrose, as conferred by the patent 1489, must also be an hereditary dignity, and must de- 
 scend, so far as the cases are parallel, to the like succession of heirs, viz. to heirs male of the body, in the first 
 instance, and, if the assertion of Charles II. in the patent ] 675 (to the effect that he succeeded to the dignities 
 as heir male whatsoever of the House of Lennox) be correct, to heirs male whatsoever, in the second ; while, 
 even although that assertion be considered incorrect, the Dukedom of Montrose must still be held to descend to 
 heirs male whatsoever under the rule and ratio resorted to in 1675 for determining the descent of the 
 Lennox Dukedom — that rule and ratio being just and applicable in itself, and the Crawford investitures 
 being uniformly to lieirs male whatsoever — whatever may be doubtful in the Lennox case under this head 
 being clear and indisputable in that of Montrose. 
 
 * Vide infra, p. .557. f Infra, p. 559. J Institutes, vol, i. p. 52, and infra, p. cxl, n. f. 
 
ADDRESS TO THE QUEEN. XCI 
 
 IV. Concluding Observations. 
 
 I need only add, in explanation of the non-claim under the grant 18th September 1489, which may possibly be 
 objected (however futilely), that, wliile the Lennox family, as the next heirs male of the Royal House, and the special objects 
 of the King's favour, stood high above envy and opposition — in times, too, comparatively tranquil and peaceful, and when the 
 power of the nobles was by no means so unlimited as a century previously ; the Earls of Crawford, while equally loyal 
 subjects, were nevertheless disabled from asserting their rights as Dukes of Montrose through the turbulence of the times, 
 through Royal disfavour, through personal crimes and family misfortunes, and th:;Dugh the jealousy of their brother peers 
 against the especial title of Duke — as has been abundantly proved by my father.* 
 
 I would also repeat here, that the Resolution on the preceding Montrose grant, 19th September 1489, introduced 
 by Lord St. Leonauds under such very peculiar circumstances (remarked upon supra, p. xxvii, and infra, pp. 343, and 
 n. § ; 372, and n. §; 373, and n. *, f), can be no bar to a claim by my father under the grant, if he should ultimately 
 be obliged to have recourse to such a claim : — For, 
 
 1. There was no relative Petition to the Crown, and no reference ly the Crown to the House, upon the subject of 
 
 the yrant ; and the House therelbre, in resolving and reporting to Your Majesty that the grant was merely 
 for life, resolved and reported on a matter which Your Majesty {the sole umpire in the matter) had never 
 placed before them or under their cognizance — in a word, wholly gratuitously j and acted (on the plainest prin- 
 ciples of law) idtra vires, f 
 
 2. Such decision, moreover, is not a judgment in any sense of the word ; while even an adverse Eesolution of the 
 
 House of Lords (upon a claim duly brought before the House by Petition and Reference — which this was 
 not) can he voided or opened up by afresh claim, proceeding on sufficient grounds. % 
 
 3. The evidence now adduced is strictly res noviter veniens ad notitiam — my father being, till quite recently, 
 
 wholly unaware of the bearing of the Lennox case upon the import of the Montrose grant of 1489 ; and, in 
 fact, having treated and considered the grant of 1489 simply and solely with reference to the grant of 1488, 
 on which he has exclusively founded hitherto. § 
 
 4. The Claimant had not even the opportunity of discussing the hereditary and peculiar character of the second 
 
 Montrose grant, of 1489, before the Committee of Privileges — a discussion which was necessarily reserved 
 and postponed, by the decision of the Committee, to the consideration of the second point or division of the 
 Claimant's argument on the original patent, viz. the question who were the heirs under that patent, if 
 still subsisting unaffected by the Act Rescissory, || — notwithstanding which, the Resolution here commented 
 upon, and elsewhere protested against, was introduced at the very last moment, and almost smuggled through 
 the Committee, and (apparently) without the knowledge or concurrence of Lobd Bkougham or LoKD Ltnd- 
 HUEST. — And, finally, 
 
 5. The Resolution as regards the grant 1489 proceeded on misconception and misdirection by the Noble and Learned 
 
 Lords who advised the Committee as regards the rule by which grants of dignity are interpreted by Peerage 
 Law — those Noble and Learned Lords having in the present instance actually made — 1 do not say a charter, 
 hut a mere abridged, imperfect, interpolated, and altogether suspicious entry or memorandum of a charter 
 in the Cheat Seal Register, govern and control an Act of the King and Parliament, its warrant — instead 
 of vice versa, as on all previous occasions.^ 
 
 VII. 
 
 Extracts from the Decidixg Speeches of the Lord Chancellor and Lord St. Leonards on 
 THE Shedden Appeal from the Court of Session, 15th May 1854. — From the 'Scottish 
 ' Jurist/ vol. xxvi., pp. 425 sqq. — Referred to supra, p. xliv. 
 
 I. Frcmi the Lord Chancellor's Speech. 
 
 " It was . . enacted in the reign of Queen Anne, that persons born out of the allegiance of Her Majesty shall be 
 " deemed and judged to be natural born subjects. Then there being a doubt upon the construction of that statute, and it 
 " being clear that it went further than was intended, the statute, upon which reliance must necessarily be placed, and which is 
 " the governing statute upon the subject, the 4 Geo. II., was passed, and that statute enacted, 'That all children born out of 
 " ' allegiance to the Crown of England or of Great Britain, or which shall hereafter be born out of such allegiance, whose 
 " ' fathers were or shall be natural born subjects of the Crown of England or of Great Britain at the time of the birth of such 
 " ' children respectively, shall be deemed and judged to be natural born subjects.' The language of that statute is very 
 " PRECISE. In order to come within its provisions, the party must make out that at the time of his birth his father was a 
 
 " natural born subject. 
 
 " Now conceding, for the purpose of the argument, that the Appellant's father was domiciled in Scotland, although 
 " living in America, and conceding, for the purpose of the argument, that a marriage in America would have had the same 
 " operation as a marriage would have had if he had been in Scotland, what then ? What this Appellant must make out is, 
 " that at the time of his birth his father was a natural born subject. But at the time of his birth Mr. Shedden was not his 
 '^father. He was a natural son, and he was, in the eye of the law, filius nullius. The consequence of that was, that 
 " alienage attached upon him, and, in my opinion, attached upon him irreversibly. He was an alien when born, and, what- 
 " ever be the operation of the law in respect of such of Her Majesty's subjects of Scotch origin, as contradistinguished from 
 
 * Vide infra, pp. cxvii sqq. t Vide supra, p. xxvii, n. *- t Vide supra, p. xxviii, n. f. 
 
 § Vide swpra, p. xxviii, n. *. || Ibid. t Vide mpra, p. xxiv, and infra, p. Ixx. 
 
 N 2 
 
XCII ADDEESS TO THE QUEEN. 
 
 " those of English origin, it never can be that incapacities of alienage are taken away. The results would be most anomalous 
 " and inconvenient, and there certainly cannot be such a thing as a person an alien in England and not an alien in Scotland. 
 " But this person, the moment he was born, was an alien in England — he was not a natural born subject. How can it be 
 " that because he is rendered legitimate according to the law of Scotland, he can be made in invitum a subject of Her 
 "Majesty? What strange consequences would follow! This person might, if we were unhappily engaged in war with 
 " America, lawfully take up arms against Her Majesty, and yet can it be that his parents, by choosing to marry, could make 
 " him a traitor ? But that consequence must inevitably follow. Again, he says that he can succeed to this estate of lands in 
 " Scotland. But he is incapable of holding lands in England ; and if his father, by his will, had given him lands in England, 
 " and left him to succeed to lands in Scotland, upon office found, the Crown would have been entitled to the lands given to 
 " him in England. Could that right of the Crown be afterwards divested by a subsequent marriage ? The consequences are 
 " so anomalous, that it appears to me to be perfectly clear that it is not the legitimate construction of the statute ; and I am 
 
 " NOT AT ALL CLEAR, THAT SUCH A CASE AS THIS MIGHT KOT HAVE BEEN IN THE CONTEMPLATION OF THE LEGISLATURE 
 
 "when they passed THAT STATUTE. The first Statute wos pussed immediately after the Union of Scotland. It is in very 
 " loose language ; it evidently ivent further than was contemplated ; and it may be, that when that statute was set 
 
 " ASIDE, AND A NEW ONE PASSED SOME 20 OR 30 YEARS AFTERWARDS, ONE OBJECT OP IT MAY HAVE BEEN FOE THE VERY 
 " PURPOSE OF DEFEATING SUCH A CASE AS IS NOW ATTEMPTED TO BE SET UP. It MAY BE THAT IT WAS NOT SO, hut the 
 
 " language which was used would accurately carry out that intention, if such were the intention of the Legislature. Be 
 " THAT AS IT MAY, it Seems to me, that as your Lordships can only determine this question on the construction of 
 " THE PRECISE words OF THIS STATUTE, it is quitc clear that this gentleman was not, at the time of his birth, the son of a 
 " person who was a natural born subject of the Crown of Great Britain ; and, being so, it is impossible for him to succeed to 
 " the estate in question " 
 
 II. From Lord St. Leonards' Speech. 
 
 " Assuming the House to have decided this case on the question of alienage, my very clear opinion is, that they 
 " decided it properly on that point alone. I entertain as clear an opinion as I ever did upon any point, that this gentleman, 
 " the Appellant, is an alien by birth. The only question is — whether he is saved hy the Statute of Geo. II., opierating hy 
 " means of the marriage? Now, when you come to contrast the Statute of Anne with the Statute of Geo. II., you will see 
 " in what very opposite directions they went. The Statute of Anne desired to add to the population of the country, and let 
 " in a flood of persons as natural born subjects, stating that the wealth of the country depended on its population. That was 
 " found to be exceedingly inconvenient, and then came the Act of Geo. II., which is a restrictive Act as regards the benefits 
 " conferred upon the children of natural born subjects, who would otherwise be aliens.* It is important to observe the 
 " alteration in the language. The Statute of Anne speaks of parents generally — both of them ; but the Statute of Geo. II. 
 " confines it to the father, and says nothing whatever about the mother. Therefore you are forced to look at the status of the 
 " father without reference to that of the mother. Then tlie words are free from all amhiguity of any sort or kind, that the 
 " child, in order to have the benefits of a natural born subject, must at the time of his birth he the child of a natural horn 
 " subject. Now that clearly was not accidental, for it happens that there are several provisoes in this statute providing for 
 " different events, and that in every single instance the same term is used. I think in subsequent parts of the statute the time 
 " of the birth of the child is referred to no less than seven times with reference to different objects of the statute, and it is 
 " utterly impossible, as a matter of law, to read the vmrds upon which reliance has been placed hy my noble and learned friend, 
 " in any other sense than that in which they must he read in the subsequent passages. If you were not to give the same 
 " SENSE — tliat is, THE LITERAL SENSE — to them in the subsequent passages, you would render the whole Act of Parliament an 
 " absurdity and a mdlity, so that you might strike it out of the Statute-Book as being simply an absurdity. Now observe 
 " what it says. After having declared, that in order to enable an alien to be treated as a natural born subject, he must, at the 
 " time of his birth, although a foreigner born, be the son of a father who was a natural born subject, it goes on to say, 
 " ' Provided always, that nothing in the said recited Act of the 7th year of Her said late Majesty's reign, or in this 
 " ' present Act contained, did, doth, or shall extend, or ought to be construed, adjudged, or taken to extend, to make any 
 " ' children born or to be born out of the liegiance of the Crown of England or of the Crown of Great Britain to be natural 
 " ' born subjects of the Crown of England or of Great Britain, whose fathe.rs, at the time of the birth of such children 
 " ' respectively, were or shall be attainted of high treason by judgment,' and so on. There are many other provisions, which 
 " it is not necessary to enter into ; but those words are repeated no less than seven times in subsequent passages. Now take 
 " that one case. Tou cannot possibly give anything but A literal meaning to these words. If, at the time of the birth of 
 " the child, the father had been adjudged guilty of high treason, the child was not to be a natural born subject. Nothing 
 " could be more reasonable than that. You must take the words as you find them, and you must read them exactly 
 
 " IN the sense in which they strike the eye at first : AND that, I APPREHEND, IS EXACTLY THE SENSE IN WHICH THE 
 
 " Legislature meant they should be read. 
 
 " Consider what would be the effect as regards a legitimate and illegitimate child. Nobody will dispute that under 
 " that Act a legitimate child, the child of a natural born subject, becomes a natural born subject from the moment of his 
 " birth, — that is beyond all doubt. Supposing his father at the time to have been guilty of high treason, then he remains an 
 " alien. That is the case of a legitimate child. Now look at the case of an illegitimate child. If you strike out the words 
 " ' at the time of the birth,' and you look to the time of the subsequent marriage, you then place him upon a different 
 " footing from the moment of his birth ; for although his father at the time should have been guilty of high treason, the child 
 " would not lose the right which the statute gave him; and therefore, if at any subsequent period the father married the 
 " mother of the child, fo that, by the effect of the law of Scotland acting retrospectively, the child became legitimate, he 
 " would gain the benefit given by the Act," &c. 
 
 * Restrictive, however, only with reference to the former Act of Queen Anne, so far as regards the persons admitted to its 
 benefit, excluding the children of traitors, &c. ; but otherwise, and in itself, beneficial in its scope and tendency, and falling to be 
 interpreted largely and liberally in favour of loyal subjects. If, however, viewed by Lord St. Leonards as restrictive and 
 deprivatory, and therefore to be interpreted strictly and rigidly by its literal words, a fortiori ought that Noble and Learned Lord 
 to have interpreted the penal Act Rescissory of 1488 most strictly and rigidly, and hy its literal words, and necessarily in favour of 
 the Claimant. 
 
ADDITIONAL POSTSCRIPTUM 
 
 TO THE PEECBDING ADDEESS TO HEE MAJESTY. 
 
 (30th Makch 1855.) 
 
 I would here remark, at the conclusion of this Address — and with reference to my 
 observations at pages xx, xxii supra, and in the Postscriptum, pages xliv sqq., on the 
 subject of the peculiar principles of interpretation on which, as applied to the Act 
 Rescissory of 1488, the Committee of Privileges came to the resolution that that penal 
 Act (although expressed in general terms, without specification, and with a distinct 
 qualification) annulled the Dukedom of Montrose — that, in a recent debate, 1st and 6th 
 of March 1855, upon the construction of the Act of Parliament 10 Geo. IV., c. vii, § 26, 
 prohibiting Roman Catholic processions, the two rules of law on which my father rested 
 the main stress of his argument in the Montrose claim in 1853, to wit, that penal statutes 
 must be construed " very strictly," and that statutes should be interpreted according to the 
 plain, literal, and " grammatical construction " of the words, were distinctly recognised 
 and affirmed by the Lord Chancellor, Lord St. Leonards, and Lord Lyndhurst — the 
 sole difference of opinion between those Noble and Learned Lords, as expressed in the 
 debate, being on the subsidiary point of the grammatical meaning of the Act in question ; * 
 
 * The following are the opinions of the Noble and Learned Lords, as reported in the ' Times ' of the 2nd and 
 7th March 1855 :— 
 
 LoED Chancellor (1st March). — " As this was a highly penal statute, the rule of law was that it should he construed 
 " very strictly," — that is, in favour of Roman Catholic priests, who, the Noble and Learned Lord contended, were not to be 
 prohibited from " wearing " their " ecclesiastical habits in going through the streets," there being " no prohibition " in express 
 terms against their doing so. 
 
 LoED Ltkdhcest (6th March). — " I understand that my Noble and Learned friend on the woolsack on a former 
 " evening stated that this, heing a penal statute, mtcst be strictly construed. Tfiat maxim of law no man will attempt to 
 " controvert. There is another maxim, that every statute is to be construed according to its grammatical constrtiction." A 
 " Right Reverend Prelate " (the Bishop op Exetee) had " quoted on this subject an opinion of great eminence,'' that of 
 " Mr. Baron Alderson, who has stated in the most distinct and precise terms, that an Act of Parliament, whether of a 
 " beneficial or penal character, must be construed according to its grammatical canstruetion, wnless that construction leads to 
 " some inconsistency, or is directly and obviously at variance with the object to which the statute is directed. (") Tliat is cm 
 " authority above all exception :" — Whereupon the Noble and Learned Lord proceeded to criticise the language of the Act, in 
 support of his view that that language did prohibit the licence which the Loed Chakcellob vindicated and claimed for the 
 priests of the Roman Catholic Church. 
 
 Loed St. Leonards (6th March). — " There must be strong reasons for deciding against the grammatical construction 
 " of the language of an Act; but in the present instance the grammatical construction, the intention of the existing laws, and 
 " everything else, tend to confirm that the Act applied to all Roman Catholic ecclesiastics," &c. &c. 
 
 (") The passage of the Bishop of Exeter's Speech in which " v. Locktcood, reported in 9 Meesom and Wekby, page 398, 
 Baron Alderson's opinion is quoted is as follows : — " It was true, " Baron Alderson expressed his opinion on the construction of 
 
 " as the Noble and Learned Lord (the Lord Chancellor) said, 
 " that, this being a penal statute, the rule of law was that it be con- 
 " stmed very strictly; but he, the Bishop of Exetee, held that 
 " the interpretation to be put upon the words ' construed very 
 " ' strictly ' was, that the terms of the statute should be construed 
 " strictly according to the plain, literal, and grammatical meaning 
 " of the words. He found that, in the case of the Attorney-General 
 
 ' statutes in these words : — ' The rule of law, I taie it, upon 
 ' ' the construction of all statutes, and therefore applicable to 
 ' 'this, is, whether they be penal or remedial, to construe them 
 ' ' according to the plain, literal, and grammatical meaning of the 
 words in which they are expressed, unless that construction leads 
 ' ' to a plain and clear contradiction of the apparent purpose of the 
 ' ' Act, or to some palpable and evident absurdity,' " 
 
XCIV ADDITIONAL POSTSCRIPTUM. 
 
 and that the Noble and Learned Lords alluded to thus applied a rule of construction 
 and interpretation to the Act of George IV. in 1855 different in toto from the rule of 
 construction and interpretation which they applied to the Act Rescissory of James IV. 
 in 1853— and the application of which rule of construction to the Act Rescissory in 1853 
 would have necessarily led to a recognition of those rights, which by a contrary and 
 altogether exceptional view and course of procedure were negatived and denied,— the 
 adverse Resolution then come to having proceeded, as I have elsewhere repeatedly shewn, 
 on an interpretation of the Act Rescissory by its presumed intention against its actual 
 language, and by interpolating and abstracting words, in order to force its language mto 
 conformity with that presumed intention— the Act Rescissory being moreover a penal 
 statute, and thus requiring, under any circumstances, to be read and construed m the 
 strictest manner in favour of the accused party, and a fortiori in a case like that of the 
 Claimant, where, by the acknowledgment of every one, the object of the statute was to 
 punish loyalty and perpetrate injustice. 
 
 I beg. Madam, to append the testimony of the Loud Chancellor, Lord St. Leonards, 
 and Lord Lyndhurst, in 1855, to that of the Lord Chancellor, Lord St. Leonards, and 
 Lord Brougham, in the Shedden Appeal case, as already cited, in 1854 ; and to invite 
 Your Majesty's attention to the fact, that every one of the four Noble and Learned Lords 
 who concurred, more or less fully, in the Resolution on the Montrose claim in 1853, has 
 thus condemned and repudiated the interpretation of the Act Rescissory on which that 
 Resolution proceeded by his recorded dieta and opinions expressed during the two years 
 that have elapsed since that Resolution was reported to Your Majesty. 
 
 Even subsequently to the debate just cited, on the 27th March 1855, in a recent 
 Appeal case — that of Ogilvie v. the Earl of Airlie, from a judgment of the Court of 
 Session, and in which the question was whether or not the irritant clause in an 
 entail of the Airlie estates in 1716 was expressed in terms sufiiciently definite to bar 
 alienation of the estates, which the Court of Session had decided in the negative — the 
 Lord Chancellor and Lord St. Leonards (following a previous judgment of Lord 
 Brougham) affirmed the judgment of the Court in favour of the Respondent ; on the 
 principle that a " similar " " canon of construction" applies to " criminal statutes " and to 
 " deeds of entail," and that where words are "ambiguous or uncertain," the strict inter- 
 pretation "in favour of freedom and against fetters," and " which does not give effect to 
 " the fetters," i. e. to the intention of the entailer, " is to be preferred ; because freedom 
 " of alienation and freedom of dealing with property is to be presumed" — the basis of 
 this decision being the judgment of Lord Brougham in the case of Lang v. Lang several 
 years ago. * 
 
 * The following are the material passages in the judgment, as reported in the ' Caledonian Mercury,' 2nd April 
 1855 :— 
 
 " The LoED Chancellor, in moving judgment, said that this question was one of a class of which there had been a 
 " great many in their Lordships' House of late years, viz., the construction which their Lordships ought to put upon the 
 "prohibitory, irritant, and resolutive clauses — hut here on the irritant clause — in a deed of entail. . . . What their Lordships 
 " were to search for was the principle of construction. . . . Now he took the rule to be perfectly clear, which was laid down 
 " by Lord Brougham in Lang v. Lang, that the construction was to be in favour of freedom and against fetters. This he 
 " took to be a canon of co^istruction similar to that applied in criminal statutes. In Acts of Parliament imposing penalties, 
 " enacting certain acts to he crimes, you construe them strictly ; and so with these irritant clauses, — if there are two modes of 
 " reading, one of which is to give effect to the fetters, that which does kot give effect to the fetters is to he preferred, hecause 
 "freedom, of alienation and freedom, of dealing with property is to he presumed. That being the canon which had influenced 
 
ADDITIONAL POSTSCRIPTUM. XCV 
 
 The strict interpretation of penal, statutes is thus founded upon by the Lokd 
 Chancellor and Lord St. Leonards more forcibly and peremptorily than ever — and, 
 what is more, applied and extended also to civil barring or deprivatory acts or instru- 
 ments—in additional contrast, day by day, to their unhappy Resolution upon the 
 Montrose claim in 1853. 
 
 " the Courts in construing clauses of the kind in deeds of entail, the question was, how was the rule to be applied to the 
 " present case?" &c. &c. 
 
 ' ' Lord St. Leonards entirely concurred in the opinion which had just ieen delivered hy his Noble and Learned 
 " friend," he. "He confessed he had not had the slightest doubt, from the time the case was opened, as to what the 
 " decision of their Lordships should be. If words were used in an ambiguous or uncertain sense, their Lordships could not 
 " fix upon them a sense which would talce away from the owner the freedom of alienation, which the other parts of the entail 
 '' may have given him," &c. 
 
ANALYSIS OF THE ARGUMENT 
 
 AS BETWEEN 
 
 THE CLAIMANT AND THE OFFICERS REPRESENTING 
 
 THE CROWN, 
 
 WITH 
 
 THE OPINIONS OF THE COMMITTEE, 
 
 POINT BY POINT, 
 
 ON THE PEESBNT CLAIM. 
 
 B 
 
ANALYSIS, 
 
 ETC. 
 
 Upon the 18th of May 1488, David, fifth Earl of Crawford and Lord Lindsay, Master of the 
 Household, and Great Chamberlain of Scotland, obtained a Charter, or Patent, from King James III., 
 CHANGING and elevating the previously existing title and dignity of Earl of Crawford into that of hereditary 
 Duke of Montrose, and conveying other subjects (according to the prevailing custom of the age), including 
 the capital messuage, castle-site, and burgh of Montrose, with the great and small royal customs of 
 Montrose ; the capital messuage and castle-site of Kinclevin, with the demesne lands, the seignorial rights, 
 and the rest of that " dominium " or fief, &c. ; all of which are erected into the Dukedom of Montrose, to 
 be held " in libera regalitate," or as a Palatinate, and under a general limitation to the grantee " et 
 " heredibus suis." 
 
 This wa§ on account of the Duke's steady loyalty and eminent services hitherto, and especially, as 
 the King states in the preamble to the Patent, " quod liberaliter, ut debebat, personam suam, suosque 
 " nobiles et vassallos, pro persone nostre et corone tutamine et defensione, nostro etiam honore conservando, 
 " frequenter exposuit periculis cum effectu, et precipue ac novissime contra nostros infideles ligeos, qui se 
 " contra nostram majestatem et vexillura in campo bellico apud Blaknes opponebant ; et pro suo servitio 
 " nobis in futurum impendendo." — The King was then in arms against a rebellion of his barons, who had 
 placed at their head his eldest son, the Prince of Scotland, afterwards James IV. ; and the Duke and his 
 family had brought a force of two thousand horse and six thousand foot to the royal standard. It need 
 scarcely be observed that James III. was at the date of the Patent THE LAWFUL and duly becognised 
 MONARCH OF SCOTLAND, which is Conclusive in the matter of dignities, which derive their origin and being 
 exclusively from the Crown, the sole fountain of honour, as much in Scotland as in any other country. 
 — Vide Case, p. 1 ; Supplemental Case, p. 2 ; and the present volume, infra, pp. 6 s qq. ;109 sqq.* 
 
 Admission by the Officers of the Crown.! 
 
 That James III. was lawful monarch at the time when he granted the Montrose Patent is fully admitted by the 
 Attorney-Generai,, and also by the Lord Advocate (infra, p. viii., and passim) — except in so far as, 
 in commenting upon a statute presently to be mentioned, by which the first Parliament of James IV. attempted 
 to rescind certain grants (including the Dukedom) made " be our Soverane Lordis fader, quham God assoilzie" 
 (King James III.), the learned gentleman last mentioned calls upon the Committee to " observe " that " he," (the 
 King) " is not called ' the late King,' — he is called ' our Sovereign Lord's father ' " in that statute. — Infra, p. 224. 
 
 Opinions of the Comjiittee. 
 
 The Lord Chancellor recognises the duration of James III.'s reign till the period of his death. — Infra, p. 313. 
 
 Lord St. Leonards. — "All the accounts we have of those times would lead to this conclusion — that the reign of 
 " James III. was considered by his successor and by the Parliament to have ended really upon the 2nd of February, 
 " although he did not die till the latter end" — the Noble and Learned Lord should have said, till 'the 11th 
 ' June ' — '• of that year."— "The 2nd day of February " 1487-8 "is the date which, beyond all possibility of 
 " doubt, they had assigned as the real termination of the reign of James III." "Throughout these Acts of Par- 
 " liament, in all the places in which he is referred to, he is spoken of as the ' present King's father,' and not as the 
 " ' late King ;' it is not till a later period that they refer to him as the ' late King ;' they treat him therefore as a 
 " person who made these grants " (the grants above alluded to, including the Dukedom) "without having the 
 " authority to do 60."— Infra, pp. 344, 348. 
 
 * The Patent is printed in the ' Minutes of Evidence,' p. 12, and (with a translation) in the Appendix, infra, p. 375. 
 
 ■f It is hardly necessary to premise that where ' the Crown ' is spoken of in this Analysis and elsewhere, as an opposing party, 
 the Claimant of course alludes to the ' Officers of the Crown,' the Attorney-General and Lord Advocate — without reference to 
 or compromise of Her Majesty, as the ultimate judge in the matter. 
 
 B 2 
 
IV ANALYSIS OF THE AEGUMENT. 
 
 Observation by the Claimant. 
 
 The inaccuracy of Lord St. Leonards' statement may appear from the fact that on the 14th October 1488, James IV. 
 describes himself, with reference to the period between the 2nd February and the 11th June, the day of the Battle 
 of Stirling, as " nos tunc existentem Priiscifxm," — that is, Prince of Scotland — the constant title of the Royal 
 heir apparent during the lifetime of his father. — Acts of Parliament, yol.n. p. 204. And in the statute entitled 
 " the Debaite and Cans of the Feild of Sterviling (Stirling)," passed on the same day as the statute above referred 
 to by the Lord Advocate, and on which Lord St. Leonards is commenting (and which latter statute has been 
 called in this cause the ' Act Rescissory'), viz. on the 17th October 1488, it is stated that " umquhile James King 
 " of Scotland, quham God assolze, faider to our Soverane Lord, happinit to be slane" in that battle, Acts, vol. ii. 
 p. 210.* So too in the Act for suspending the holders of hereditary offices, passed on the same day, the opponents 
 of the faction which had placed James IV. at their head are described as " the caus of the slauchter and deces of 
 " umquhile the King his faider," &c. Ibid., p. 207. And see also the testimony of the Pope, infra, p. 384. 
 Moreover, James IV.'s subsequent charters are all dated, as in the first, second, third, or later years of his reign, 
 from the death of his father as the commencement of his own reign. f The Noble and Learned Lord's position is 
 therefore quite incorrect and unwarranted ; and James III. was lawful monarch of Scotland and in full possession 
 of his Royal prerogative at the time when he granted the Montrose patent.^ 
 
 The Lord Chancellor, on the other hand, does not hold Lobd St. Leonards' views. He recognises James III. as 
 King to the moment of his death at the Battle of Stirling, states that his son " afterwards became James IV.," and 
 admits that the Earl of Crawford was "then " — on the day of the battle — " Duke of Montrose." Infra, p. 313. 
 
 For the extent of the concurrence of Lord Bbougham and Lord Ltndhubst in the opinions of the Lord Chancbllok 
 and Lord St. Leonards, and in the Resolution come to, in this claim, see the Speech of Lord St. Leonards, 
 infra, pp. 372, 373. 
 
 The Claimant would refer here, generally, to his Notes upon the Speeches of the Lord Chancbllob and Lord St. 
 Leonards, infra, at the pages indicated in the respective points of this Analysis. 
 
 The Claimant, in bringing his claim forward, proposed to establish the three following pro- 
 positions, — 
 
 I. That the Patent of the Dukedom of Montrose, 18th May 1488, still subsists, and is valid 
 
 and effectual in law, — 
 II. That the general limitation in that Patent to " heirs," a term of confessed flexibility in 
 Scottish law and practice (even much more so than is generally apprehended), especially 
 in the fifteenth and sixteenth centuries — does in the said Patent denote and signify 
 " heirs male," — 
 III. That the Claimant is the heir male of the first grantee : — 
 
 — Which would have sufficed, as he apprehends, to make out his case. {Case, p. 1 ; S. Case, p. 2.) 
 But at the conclusion of Sir FitzRoy Kelly's argument on the question of the subsistence of the Patent, 
 and when he was about to enter upon the subject of the limitation of that Patent, it was unexpectedly 
 announced by the Committee that they had determined to consider the two leading points of the claim, 
 viz. 1., the subsistence of the Patent, and 2., the right of the Claimant as heir under it, separately; inas- 
 much as a decision unfavourable to the Claimant on the first point " might render any further inquiry 
 " unnecessary." Lord Chancellor's Speech, infra, p. 312. The Speeches and Resolution here printed 
 are consequently confined to the question of the subsistence OF the Patent. 
 
 On this, 
 
 THE FIRST HEAD OF THE ARGUMENT, 
 
 the Claimant maintained the following 
 
 * The Act entitled ' The Debaite and Caus of the Peild of Sterviling ' is printed in the Appendix, infra, p. 383. 
 
 t In proof of this the Claimant may cite the following evidence from his Original Case, p. 64 : 
 
 Charter to Thomas Culace, 23rd March 1499, bearing to be granted in the 12th year of James IV. Fi'rf« Appendix, 
 
 infra, p. 401.— If James IV.'s reign had begun on the 2nd Feb. 1487-8, it would have been granted in his 13th year. 
 Charter to John Blare, 10th March 1500, bearing to be granted in the 13th year of James IV. Register of the Great 
 Seal. 
 
 Charter to Robert Master of Erskine, 26th February 1506, bearing to be granted in the 19th year of James IV. Ibid.— 
 
 Infra, p. 404. 
 Charter to John Eamsay, dated 13th May 1510, and Charter to John Earl of Crawford, dated 24th May 1510— both 
 
 bearing to be granted in the 22nd year of the reign of James IV. Ibid. ' 
 
 And see the Appendix, infra, pp. 399, 401, 502, 503, 515, 516, 540. 
 Practice is in fact universal on this point. The year, it must be recollected, ended then on the 24th of March. The 23rd March 
 1499, would now be the 23rd March 1500 ; the 10th March 1500, the 10th March 1501 ; the 26th Feb. 1506, the 26th Feb. 1507, &c. 
 
 t The above position (borrowed, as will appear, from Lord Loughborough, i^fra, p. Ixiii) has been fully refuted in the Case, 
 p. 63, and S. Case, p. 62. And vide infra, pp. 162, 163. 
 
ANALYSIS OF THE ARGUMENT. V 
 
 GENERAL PROPOSITION :— 
 
 That the Patent of the Dukedom of Montrose, 18th May 1488, still subsists, and is valid and 
 EFFECTUAL IN LAW.— Case, p. 2 ; S. Case, p. 3 ; Infra, p. 6, and passim. 
 
 Preliminaey Observation. 
 
 From this point the present Analysis proceeds in the present tense, as reporting an argument in progress — in fact, still 
 svbjudice, for reasons elsewhere assigned (pp. v, xxvn sqq. supra). 
 
 1. The Patent was duly executed. The ariginal parchment has been lost, but it was recorded in 
 the usual manner in the Great Seal Register, and the Register is produced in evidence.— Case, p. 2 ; 
 S. Case, p. 3 ; Infra, pp. 6, 109, 375 sqq. 
 
 Observation. 
 
 The registration, when adduced in evidence at the conclusion of the Claimant's opening address, was admitted as 
 sufficient. 
 
 Objections by the Attorney-General. 
 
 1. The time being one of " constant turmoil, war, and confusion," the Patent, " although entered on the Register,". . . 
 
 may " never " have " passed the Great Seal at &\\."— Infra, pp. 180, 181. 
 
 2. " Two individuals " appear to have held the Great Seal " within the short period of a month or two before the death 
 
 " of James III."— /n/ra, p. 181. 
 
 3. " Although it may be perfectly true . . . that the practice at a later period was " that a charter should only be 
 
 registered " after "it " had passed the Great Seal," there is " no evidence " that such was the Custom in 1488. — 
 Infra, p. 181. 
 
 4. " Only ... a week or two after the grant of this Patent," the patentee is styled ' Earl of Crawford ' by a 
 
 bailiff " acting under . . . the authority of the " patentee himself as " hereditary Sheriff of Forfarshire." — 
 Infra, p. 181. 
 
 5. " The entry upon the Register is . . . out of its place in order of date and time." — Infra, p. 181. 
 
 6. The testing clause in the registration, " Testibus ut in aliis cartis similibus date precedentis," refers " to the previous 
 
 " charter,* in which the Earl of Crawford himself is . . . one of tfie attesting witnesses." — Infra, pp. 182, 378. 
 
 7. Unless the original Patent had been invalid, the Duke would "not have accepted " a Re-grant, as he did, " for life " 
 
 only, in 1489.— /w/ra, p. 180. 
 
 Replies. 
 
 1'. The Great Seal was appended to the Patent of the Earldom of Glencaim, granted ten days later and still existing ; 
 and which was received in evidence and without dispute by the Committee of Privileges in the Glencairn claim in 
 1796-7 ,S'. Case, p. 4. 
 
 2. Of the alleged contemporary Chancellors, one (the late Chancellor) acted merely as locum tenens during the absence 
 
 of the other, gone on embassy to England. — S. Case, p. 6. 
 
 3. It was the invariable rule and practice, from the earliest period down to an Act passed in 1672, to seat patents 
 
 before registering them, — as proved, 1. By that Act itself; 2. By Acts in 1621 and 1584 (the latter stating 
 that the registration of writs " is ane griter solempt act nor (than) the seling thereof" f ) ; 3. By the testimony of 
 Sir Thomas Hope, Lord Advocate to Charles 1., a great practical authority ; t and 4. By entries in the Register of 
 
 * The " previous charter " in question is a charter to Thomas Turnbull, granted on the same day as the patent of the Duke- 
 dom of Montrose, the 18th May 1488. It is printed in the ' Minutes of Evidence,' p. 9 ; and in the Appendix, infra, p. 378. 
 
 f This is in accordance (so far) with ancient French usage — so frequently illustrative of that of Scotland in law, manners, and 
 language. The due passing in every respect of a patent erecting a Dukedom, whether a ' Duchg-Pairie ' or a ' Duchi5 non-Pairie,' in 
 favour of a man and his heirs, was not sufficient to transmit the dignity to those heirs unless the patent was also registered in the 
 Books of Parliament — apart from which ceremony the dignity expired with the patentee. (") In like manner the peers of France 
 only ranked from the date of the registration of their patents. (•■) The Claimant by no means intends to imply that this was the case 
 in Scotland. But the fact adds weight and strength to the registration of patents in the case of Scottish peerages when the originals 
 are missing. (°) 
 
 X Sir Thomas Hope's testimony is as follows ; — He is describing— of course previously to 1672 — the forms that took place 
 subsequently to the ' signature ' or warrant in the case of a royal charter or grant : — " The party . . carries the same " (the precept 
 or mandate upon the signature) " to the Writer to the Privy Seal," (the regular official person employed for the purpose,) " who 
 " thereupon draws up a new Precept in Latin, direct to the Chancellour, Keeper of the Great Seal ; and this Precept bears at the end 
 " thereof Datum sub nostro Seereto Sigillo;' . . and this Precept is commonly written in parchment, . . and is subscribed by the 
 " Writer to the Privy Seal ; . . and, after it is sealed, it is returned to the Writer to the Privy Seal, to the e^ffect it may be regis- 
 
 (') " On s^parera les pairies dont les lettres d'e'rection ont either of Scotland or England, resolved in great measure into a 
 
 " ^te registries dans les Cours Souveraines de celles qui, n'ayant Court of Registration — the registration of such patents being 
 
 " pas ^te' revStues de cette formalite, se sont eteintes dans la per- exclusively warranted by edicts of the Sovereign, and the Par- 
 
 " Sonne m§me de ceux qui en avaient ^t^ d&or&." Hist. Qin€al, liament acting merely as passive or ministerial instruments in 
 
 et H^raldique des Pairs de France, tom, i. p. 51. fulfilling his will. Very many Scottish patents, it may be added, 
 
 C") " Quoique Ton place ces Pairies" (speaking of the ' Duches- were formally registered in extenso in the records of the Scottish 
 
 ' Pairies') "enl'anneedeleur (Srection,ilfaut pourtant remarquer Parliament and of the Privy Council — but that neither implied 
 
 " qu'elles ne prennent rang que du jour de leur enregistrement." nor involved any authority on the part of Parliament or Privy 
 
 Etat de la France, 1727, tom. iii. p. 3. Council. The general place of record was the Great Seal Ee- 
 
 C) It is scarcely necessary to remark that the French Par- gister. But every Court in Scotland was formerly a Court of 
 
 liament, being very different iu its public capacity from that Registration. 
 
VI ANALYSIS OF THE ARGUMENT. 
 
 the Privy Seal at the very period here in question, the close of the fifteenth century, and which Privy Seal 
 Register bears a relevant testimony on the subject which the Register of the Great Seal does not. Royal charters 
 of honours with lands passed both Seals successively. — S. Case, p. 5 ; Infra, p. 379.* 
 
 4. Lord St. Leonards in the course of the discussion suggested the same answer which the Claimant had already, in 
 
 his Supplemental Case, made to this objection, viz. that the warrant under which the bailiff acted had probably 
 been executed before the Grant of the Dukedom. Infra, p. 181. But while this is probably the truth, it may 
 also have been in consequence of the Duke not having been then inaugurated on his patent — a ceremony which 
 only took place in his case, as by the testimony of an ancient writer, " paucis diebus ante mortem Regis." f The 
 date of a patent, it is to be remembered, is not that of the appending of the Great Seal (which often was delayed 
 for weeks or months), but that of the warrant or signature hy the Sovereign, on which the patent proceeded, and 
 by which it is in all respects governed ; and, although the patent was undoubtedly the valid constituting right, 
 fixing the descent of an honour, grantees did not, by practice, formerly, use or receive their titles till after their 
 formal inauguration or investiture — which also was frequently delayed for a considerable time after the patent 
 was completed, — of all which full proof is given in the S. Case, pp. 7 sqq.f 
 
 5. The Attornet-Generai, himself furnishes the answer to this Objection by stating in apology for the registration 
 
 of the ' Litera,' or regrant, 19th Sept. 1489, that charters were registered, not in order of date and time, but as 
 they were brought in. — Infra, p. 197. § 
 
 6. The fact here objected not unfrequently occurs, as by proof given in the S. Case, p. 4, and n. t ; and infra, p. 878. 
 
 7. This is a mere petitio principii. 
 
 Registrations of patents are received in Peerage claims, the originals being lost, as by precedents referred to, both 
 Scottish and English (those of Colville, Kirkcudbright, Rutherford, Kellie, and Polwarth in Scotland, those of 
 Winchester and Devon in England — besides other authorities), in the S. Case, pp. 4, 187 ; Infra, p. 258. The 
 case of the Claimant is identified here with the validity and authority of the public records. 
 
 A merely abridged, admittedly " unartistic," and (as the Claimant submits) suspicious entry of a charter in the Great 
 Seal Register (the ' Litera' or second patent of the Dukedom of Montrose, 19th Sept. 1489, hereafter to be noticed) 
 is insisted upon by the Crown as conclusive against the Claimant in the present case. — Infra, pp. 196, 235. 
 
 Admissions by the Lord Advocate. 
 
 A question " has been raised, viz. whether this grant which was made was ever truly completed by having passed the 
 " Great Seal. But it does not appear to me that upon that subject there is now any necessity for my saying a 
 " word." Infra, p. 224. The Lord Advocate afterwards admits that David Duke of Montrose " was seized 
 " in " the estates granted with the Dukedom " just as much as he was seized in the Sheriffdom of Forfar " — that 
 " they did belong to the Earl of Crawford, and he held them heritably," — that is, previously to the Act Rescissory, 
 presently to be mentioned. Infra, p. 234. The principle nulla sasina nulla terra is well known ; the Duke 
 could only have held them upon a completed title ; and the Lobd Advocate therefore distinctly understands that 
 the original patent did pass the Great Seal. 
 
 Opinions of the Committee. 
 
 The LoED Chancellor speaks of the patent as " an alleged grant," and states that " some doubts were raised as to 
 " whether any such charter ever existed," — but " for the purpose of the motion " he " shall assume that it did 
 " exist." — Infra, p. 311. 
 
 Lord St. Leonards. — " The first document, the Charter, admits of no doubt." — Infra, p. 346. 
 
 Resolution of the House of Lords, 5th August 1853. 
 
 The Charter, or Patent, is held as having been duly " granted " in the Resoltjtion, as adopted and reported to Her 
 Majesty on the joint proposition of the Lord Chanoellob and Lord St. Leonards. — Infra, p. 373. || 
 
 " TRATE in his looks, who writes on the ^ck thereof (Written to the Privy Seal and registrate such a day ;) and also the Keeper of 
 " the Privy Seal, when he appends the Privy Seal thereto, retains the Precept under the signet for his warrant, and writes on the back 
 " of his precept (Sealed such a day,)— thereafter delivers the said Precept to the party, who takes it to the Director of the Chancellary, 
 " who writes out a charter in Latin, in the ordinary fonn of charters in Latin, . . and this has in the end (Datum sub Magno Sigillo,) 
 " but bears nothing under it, but allenarly (only) has the Great Seal appended by the Chancellour, who, or his Deputes, writes on 
 " the back thereof (Sealed such a day ;) and, after that, it is returned to the Director, who registrates the same in the Register 
 " of the Great Seal, and writes on the back {Registrate tali die.)" Minor Practichs, or Practical Observations upon divers Titles of the 
 Law of Scotland, pp. 293-295,— edited in 1 734 by John Spotiswood of that Ilk, Advocate. The editor, Mr. Spotiswood, adds in a note 
 to the above passage the following comment :-" This Order is altered by Act 7th Pari. 1672, which statutes that all charters, 
 " infeftments, commissions, gifts, and other writs which pass the Great and Privy Seals, shall be insert in the Registers of these 
 " Seals, respectively, before the Seal be appended to them,"— thus putting things upon an entirely new and opposite footing.— 
 S. Case, p. .5. 
 
 * In reference to this, the Claimant may refer to the oral evidence of George Brown Robertson, Esq., Assistant Deputy Keeper 
 of the Records, MinHto o/iJyjrfence, p. 11 ; and Appendix, jn^m, p. 377. 
 t S. Case, p. 9 ; and infra, p. 160. 
 
 X And see also Mr. Robertson's testimony, iit supra, p. 379. 
 § See Mr. Robertson's evidence, p. 378. 
 II See also confirmatory evidence, recently discovered, supra, p. 530, n. *. 
 
ANALYSIS OF THE ARGUMENT. Vu 
 
 II. The Patent, thus conferred, could only be annulled or superseded in one of three ways, — 
 
 i. By Forfeiture or Attainder in the person of the grantee or his heirs, — 
 
 ii. By Resignation on his or their part, — Or, 
 
 iii. By some subsequent legal Act or Intervention affecting it. 
 
 —Case, p. 2 ; ^. Case, p. 12 ; Infra, pp. 104, 179. 
 
 Admission by the Crown. 
 
 It is admitted by the Cbown that the dignity could only be destroyed by Attainder, Resignation, or Act of Parliament. 
 — Infra, passim. 
 
 Opinion of the Committee. 
 
 LoED Chancblloe.— " A Peerage, it was said, can only be lost by Attainder or some other acts, none of which, it is 
 " said, have been shewn to be applicable to the present case, and therefore that grant must remain in force. But, 
 " on the other hand, it is said that, although by no ordinary course can a Peerage end, except by Attainder, or 
 " some other mode in Scotland, yet there must be one exception to the rule so defining the mode in which a Peerage 
 " may become alienated, for it may be put an end to by what we sometimes call the Omnipotence of Parliament. 
 " Parliament can destroy a Peerage, or take a person's property, or do anything else."* — " I take it to be a matter 
 " that can admit of no controversy, that if it " (the Act Rescissory in 1488, presently to be mentioned) " was an Act 
 " of Parliament, . . the effect of it was to destroy that creation. It was not necessary that there should be any 
 " Attainder or any other Act of Parliament. As I have already stated, Parliament was omnipotent." Infra, pp. 
 312 sqq.t 
 
 If therefore neither Forfeiture, nor Resignation, nor any such Act or Intervention have occurred, 
 the Patent must be still valid and effectual in law. — Case, p. 2 ; S. Case, p. 12 ; Infra, pp. 104, 179. 
 
 1. No Forfeiture or Attainder took place. Other adherents of James III. were attainted at 
 the period (as by the evidence of the Acts of Parliament) — the Earl of Buchan, 
 Ramsay Lord Bothwell, Sir John Ross of Montgrenan, &c., but not the Duke of 
 Montrose.— Ca«e, p. 3 ; S. Case, pp. 12, 104, 111 ; Infra, pp. 11, 48, 179. 
 
 Observation. 
 
 This is admitted by the CkoWn and the Committee. — " It is most important to observe," says the Loed 
 Advocate, " that while his" (the Duke's) " title is denied him, he is not in the position of a party 
 " forfeited or attainted in any way, — quite the contrary.'' Infra, p. 233. — " It was not necessary," 
 observes the Loed Chancellob, "that there should be any attainder." Infra, p. 313. And see also 
 p. ix, irtfra. 
 
 2. No Resignation took place. — Case, p. 3; 5". Case, p. 12 ; Infra, pp. 42, 179, 380.| 
 
 * The Claimant is unable to discover any passages containing this sweeping doctrine in the argument of the Crown in this case. 
 
 t On this point the Claimant would refer to his observations in the Address, supra, pp. xviii sqq. 
 
 t Kesignations were invariably specified, when they had taken place, in the quequidem clauses of subsequent charters pro- 
 ceeding on those Resignations. This has never been disputed, and is admitted on all hands. The Claimant subjoins the following 
 remarks on the subject of Resignations, as affecting Peerage Law, from his Supplemental Case, pp. 12, 13 : — 
 
 " The Claimant has not perhaps sufficiently pointed out " (in his Original Case) " the FEnnAi, importance and absolute 
 INDISPENSABILITV OF A RESIGNATION, in Order to Void previously existing rights, and the necessity of the clearest and minutest 
 
 EXPRESSION AND SPECIFICATION OF THE INTENTION OF THE ReSIGNBR. 
 
 " Nothing could be more solemn and effectual than the resignation of a vassal, by which, with the formal sanction and 
 authority of the superior, strikingly and symbolically expressed, and not easily obtained, an important fief, dignified or otherwise, 
 was completely diverted from its former descent and transferred to strangers or to different heirs. The act of resignation constituted 
 an alienation and new right or title, and without it no such alienation and new right or title could be constituted. The form or act 
 therefore never passed sub silentio, nor is it to be presumed without direct and explicit evidence, — on the contrary, it is not only formally 
 and solemnly recorded and exemplified, but invariably set forth and recited in the subsequent feudal grants hy the superior, of which it 
 was the cardinal basis and warrant. This is fully established by the following instances and authorities, — and proofs to this effect 
 might be multiplied indeed to any extent : — " 
 
 " i. Instrument of Resignation of the Earldom of Ross by John of Ila, formerly Earl of Ross and Lord of the Isles, into the 
 hands of James III., on the 10th July 1476 : — ' Quo die idem Johannes de Ila, personaliter constitutus coram eodem 
 ' Domino nostro Rege et Tribus Regni St3.tib\is, Comitatum Rossensem cum pertinentiis,' &c., &c. ' sua merft et spon- 
 ' taneS voluntate, ac omne jus, clameum, proprietatem, et possessionem eorundem, quod et quas idem Johannes aut sui 
 ' predecessores habet, habuit, aut habuerunt, a ae et heredibus suis et assignatis imperpetuum eidem Domino nostro Regi 
 ' et suis successoribus . . sursum reddidit, pureque simpliciter et sponte renunciavit.' — Acts of Pari., vol. ii. p. 113. 
 
 "ii. Instrument of Resignation of the regality of Cavers by William Douglas of Cavers into the hands of James III., on the 
 29th January 1487-8," for which see the Acts, vol. ii. p. 181, and the S. Case, loco citato. 
 
 " iii. And even in the case of abbreviated registrations of grants, — as for example the following in the Privy Seal Record 
 10th Feb. 1510:— 'Preceptum carte Willielmi Comitis Erolie super officio Vicecomitatus de Aberdene, cum feodis, 
 ' devoriis, et pertinentiis ejusdem: — Quodfuit Johannis Comitis Craufurdie, et per suos procuratores in manibus Regis 
 • resignatum, &c : — Tenendum sibi et heredibus suis de Domino Rege, &c: — Faciendo servicium in dicto officio, &c:' (") — 
 A very summary entry, and yet the fact of the resignation, too important ever to be omitted, is carefully stated. 
 . " iv. And, 
 
 (') This is given in evidence, and is printed in the ' Minutes,' p. 119 ; and in the Appendix, infra, p. 380. 
 
viii ANALYSIS OF THE ARGUMENT, 
 
 Observation. 
 
 This is admitted by the Ckown and the Committme.— Infra, passim, 
 
 3. No legal Act or Intervention took place subsequently to the Patent 18tk May 1488, which 
 in any way affected it.— Case, p. 4 ; S. Case, p. 14 ; Infra, passim. 
 
 Observation. 
 
 This is denied, and the contrary asserted, by the Cbown and the Committee.— /«/ra, passim. 
 
 III. James III. having been defeated and slain at the Battle of Stirling, 11th June 1488, by his 
 rebel nobles, headed by his son, their tool and instrument, who thereupon became King of Scotland by the 
 title of James IV., the successful party issued a Proclamation at Scone, on the following day, the 12th 
 June, of which the terms are unknown ; and, meeting in October of the same year, passed on the 17th of 
 that month an enactment which has been called (in this claim, for convenience) the Act Eescissory, and 
 which is as follows : — 
 
 " Item, anent the Proclamacione maid at Scone, it is statut and ordanit that all alienacions of 
 " landis, heretage, lang takkis, fewfermez, officez, tailzeis, blanceferm, creacion of new digniteis, 
 " grantit or gevin to ony persona or personis, quhat estate, condicioun, or degre that ever thai be of, sene 
 " (since) the secund day of Februar last by-past, be umquhile our Soverane Lordis faider, quham God 
 " assoilze, quhilk (which) mycht be prejudioiale to our Soverane Lord and to the Croune 
 " THAT NOW is, be cassit and adnullit, and of nane effect nor force in ony tyme to cum, becaus that sic 
 
 " ALIENACION, GIFTIS, AND PRIVILEGIS WAR GRANTIT, SENE THE SAID TYME, FOR THE ASSISTANCE TO 
 " THE PERVERST COUNSALE THAT WAR CONTRAR THE COMON GUD OF THE REALME, AND CAUS OF THE 
 " SLAUGHTER OF OURE SoVERANE LORDIS FADER." — ActS, vol. ii. p. 211. — Infra, p. 381. 
 
 This, if a legal act, is the sole act or intervention which can in any manner have affected the patent 
 
 of the Dukedom of Montrose.— Ca«e, p. 4 ; S. Case, p. 14; Infra, pp. 6 sqq. ; 109 sqq. ; 258 sqq.,— and 
 
 passim. 
 
 General Historical Statement by the Lord Advocate. 
 
 " The monarch was killed, the son succeeded, and the victorious party . . proceeded, first, by Proclamation, to deprive 
 " their rivals of those distinctions which the King had conferred upon them, and then to put that Proclamation into 
 " the force of law by this Act which is called the Rescissory Act ; and, without specification of particular persons 
 " or grants, they annulled and set aside all the grants which had been made since the 2nd February preceding, on 
 " the plain ground that at that time the King was in the hands of the enemies of the constitution, that he was in the 
 " hands of those who were of the perverse opinion instead of tliose who were called of the better opinion, and on 
 " the ground that those acts were therefore prejudicial both to the King himself and to the good of the 
 •• commonwealth." — Irifra, p. 223. 
 
 I. ^Tfte ^rodamation. 
 
 Of this Proclamation, of its terms and of its very existence, nothing is known except from the 
 opening words of the Act Rescissory just adduced. It could not, by itself, justify resumption of the 
 grants of James 111.-5. Case, p. 78 ; Iifra, pp. 121, 161, 278, 279. 
 
 " iv. And, again, in the abbreviated entry, in the Privy Seal Eecord, of a grant of the Sheriffdom of Stirling, 26th February 
 1 506, to Sir Robert Erskine — the warrant of a charter under the Great Seal, recorded ad longum in the Great Seal Register : 
 — ' Preceptum carte Roberto Erskine super officio Vicecomitatus de Strivelin, quod prius fuerat Alexandrii Cimynghame 
 ' de Polmais, militis, et Roberti Cunyngham, ejusfilii et apparentis heredis, in vitali redditu, et per ipsos renunciatum' — 
 the same as ' resignatum.' (*) 
 
 " Further, whatever may have been the intention of the resigner, it is unavailing unless clearly and articulately expressed ; every 
 single right and subject must he formally and technically carried, otherwise they remain just as before, quite unaffected by the regrant of 
 which the resignation is the warrant. This is illustrated in the case of the Marquisate of Queensberry, which was decided by the 
 House of Lords in 1812 to go strictly to the heir under the original patent of the dignity in 1682, and quite apart from the Dukedom 
 of Queensberry and the Queensberry estates and leading family titles, on the ground that the possessor, James, second Duke of 
 Queensben-y, in resigning his honours (along with his entire patrimony and estates) in 1705 and 1706, did not specifically resign the 
 Marquisate ; and your Lordships accordingly conceived the original limitation of that honour not to be affected, through want of such 
 resignation,'* &c. &c, &c. 
 
 " The above precedent will evince how strict the rule of construction and interpretation is in the case of resignation, and 
 generally in honours — in which, as well as in penal statutes, nothing can be admitted unless precisely and indisputably enforced so 
 that he who runs may read, — while the party against whom such penal acts or adverse incidents may be supposed to strike has the 
 benefit of every doubt." 
 
 (') The charter for which this was the warrant, and a pre- " versal practice in Scotland to specify the Resignations." — 
 
 vious charter in the same matter, of 1501, elsewhere given, were Min. Evid., p. 116; Appendix, infra, pp. 403, 404. See'also 
 
 specially pointed out to the Committee as illustrating the principle pp. 402, 515. 
 ' that when grants proceeded on Resignations it was the uni- 
 
ANALYSIS OF THE AEGUMENT. ix 
 
 Admission by the Attorney General. 
 
 Attorxet General.—" I believe it is admitted on all hands that there is no trace of it."~Tnfra, p. 121. 
 
 Objection by the Lord Advocate. 
 
 Lord Advocate. — " We have no copy of" the Proclamation. But there is "a reference to" it in an Act of 
 Parliament, l7th October 1488, " anent the gudis takyne efter the Kingis Proclamacioun made the twelfth day of 
 " Junij last by-past," * and the Lord Advocate could satisfy the House that the coronation of the King took 
 place on that day — proving " that the rescinding statute was part of a deliberate system which it was the intention 
 "»of the legislature to carry out.'' — The LoRr> Advocate, in the general historical statement above quoted, admits 
 that the Proclamation depriving the grantees of James III. had in itself no legal validity. He states, however, 
 that what he considers " the unquestionable fact that the Earl of Crawford sat as Earl of Crawford in the 
 " Parliament that passed the Rescissory Act" proves that " the Proclamation . . set aside this honour:" — And 
 further, " It is impossible to doubt that from the date of the Proclamation at Scone, and still more from the date of 
 " the Rescissory Act, the Dukedom of Montrose had sunk :" — And again, in stating that James IV. resumed a 
 grant of lands made by James III. and regranted those lands at a period " prior to the date of the Rescissory 
 " Act " — " The truth is, that it was the Proclamation that set this aside as well as the other grants. The King 
 " dealt with this matter as being in his own hands from the date of the Proclamation." " Lord Crawford " thus 
 appears " as Lord Crawford even before the Rescinding Act passed." — Infra, pp. 229, 231, 233, 239. 
 
 Eeply. 
 
 It is admitted by the Crown (as contended by the Claimant) that the Proclamation had not, in itself, " the force of 
 " law," and was, in other words, illegal; and, such being the case, the (alleged) resumption of the grants of 
 James III. and disallowance of the Dukedom of Montrose under colour of the Proclamation, as founded on by 
 the Crowk, were mere brigandage and robbery. — Infra, pp. 278, 279. 
 
 Opinion of the Committee. 
 
 Lord Chancellor. — After the Battle of Stirling "of course what followed, as might naturally be expected, was 
 " confiscation." " The Proclamation " was " made by James IV. in favour of the Lords who adhered to him and 
 " against those who had taken part against him." — Infra, p. 313. 
 
 Lord St. Leonards. — A " Proclamation " was issued by James IV., " annulling all grants which had been made by his 
 " predecessor from the 2nd of February, which date overreached the date of the grant of this Dukedom." — 
 " That Proclamation, as has been truly stated at the bar, could not by law operate to destroy those grants. That 
 " I freely admit. But it shews the intention of the Crown to strike at those grants. It is probable that some of 
 " the property which had been granted to the Duke, or to others, had been resumed by the Crown, and had been 
 " granted away before the Act Rescissory. That was considered as impugning the authority of that Act ; and 
 " it was said, ' this was a mere act of violence and power ; for you find that this property was regranted by the 
 " ' Crown before the original grantee had lost his title to it.' That may be true enough ; but it was granted after 
 " the Proclamation, with the intention of the Crown, and with the knowledge of the Crown, that those grants 
 " would be defeated by Parliament. And almost the first Act of the Parliament which met early in October 
 " 1488 was to pass the Act Rescissory." — Infra, pp. 344, 346. 
 
 General Admission by the Lord Chancellor. 
 
 Lord Chancellor. — " There was nothing to annihilate the first Patent but the Act Rescissory." — Infra, p. 342. f 
 
 Final Observation. 
 
 For proof (recently discovered) that the Lords of Council and Session, or Supreme Civil Court, in 
 1490, recognised and enforced a charter granted and subscribed by David Duke of Montrose, as 
 Duke, on the 18th June 1488, six days after the Proclamation, see the Appendix, i«/V-B, p. 530, n. *. 
 
 * This Act which the Claimant had overlooked, proves that the Proclamation, had been made the excuse of plunder and 
 confiscation. It is as follows: — " Item, anent the article of the gudis, landis, and housis takyne befor the feild of Sterviling be 
 " Lordis and personis that war with cure Soverane Lord that now is ; oure Soverane Lord, movit of piete, with the counsall of his 
 " Lordis, has avisit that all the gudis movabill belanging to the pure (poor) unlandit folkis be restorit and deliverit agane. And 
 " becaus thar wes divers one his opinzeone (faction) reft (plundered) he the personis of the uthir opinzone, that tharfor his Hienes 
 " gef eomand to tak of (plunder) the gret men being in his contrar, sic as Lordis of Parliament and Baronis, that thay (those) gudis, 
 " sene (since) thay wer takyne in sic tyme of trubile, be nocht restorit. And anent the gudis takyne efter the Kingis Procla- 
 " macioun maid the xij day of Junij last by-past, that all thay be restorit agane to the persons t/iay wer takinfra. And that the housis 
 " and landis forsaid be deliverit to the awnaris elikwis (in likewise), at the emplesance of the King." — Acts, vol. ii., p. 207. — But 
 this is a mere reference or allusion — from which nothing transpires as to the terms of the Proclamation, so that the Claimant's argu- 
 ment remains substantially unaffected by it. 
 
 t This is stated of the patent of the Earldom of Gleneairn 28th May 1 488, subsequently to be adduced ; but applies equally to 
 that of the Dukedom — the attendant circumstances being " exactly" the same in both cases, as by the testimony both of the Lord 
 Chancellor and Lord St. Leonards, infra, p. xxxvi. 
 
 
 
X ANALYSIS OF THE ARGUMENT. 
 
 II. ^\)t ^tt i!atein£(0orp, I7tft d^ftober 1488. 
 
 a. Preliminary (^imsTios -.— Granting that an Act of Parliament, however unjust, must, if a 
 lawful Act and legally effectual, be obeyed— Has this Act Rescissory the legal effect of an Act 
 of Parliament ? 
 (a) The Act Rescissory, as it has been called, forms a chapter of the one collective statute 
 of the Session of October 1488. Parliament, having assembled, passed an Act 
 entitled 'The Proposition of the Debate of the Field of Stirling,' justifying the 
 murder of the late King, and attempting to give a stamp of legality to the rebellion 
 —on which Act, as on their foundation, proceed the ensuing enactments, including 
 the Act Rescissory ;" all form one series, and the Act Rescissory is thus part of a collective 
 statute justifying rebellion and regicide, passed by a Parliament held by the successful 
 nobles in the name of the Prince, without any Regent or any proper delegate of the Royal 
 authority. But a change of feeling took place, the nation were struck with horror— the 
 nobles, who had been excommunicated by the Pope, sued for pardon, confessing 
 their guilt, and it was granted them by Innocent VIII., by a Bull dated the 5th July 1491, 
 on condition of due penance;! and on the 20th February 1491-2 an Act was passed 
 offering a reward for the discovery of the murderers of James III., and denouncing his 
 "ded (death) and slauchter" as an " odious and cruell deid."t Taking the Act Rescis- 
 sory, the Bull, and the Act of 1491-2 together, the Claimant submits that the whole col- 
 lective statute of October 1488 must have been regarded as a dead letter, and that the Act 
 Rescissory, a part of that statute, was thereby disowned and rescinded. — And, even apart 
 from the Bull and the Act 1491-2, considering the terms of the Act Rescissory — an Act 
 vindicating rebellion and regicide, and which, while defining nothing in terms, appUes a 
 rule founded on the allegation that resistance to James III. and the slaughter of that 
 monarch were justifiable, and that his loyal subjects were traitors to the commonwealth — 
 it cannot be held that such an Act has the force and authority of law. — Infra, pp. 110 sqq. 
 
 Objections by the Crown. 
 
 Attoenby-Geserai,. — He will not " vindicate the conduct of those who rose in arms against their 
 " Sovereign, and through whose rebellious acts that Sovereign lost his life ; but . . . the moment 
 " that that Sovereign died, his son and successor became King of Scotland, and the Parliament, 
 " consisting of persons who had been rebels" to James III., " were in reality loyal subjects, 
 " owing allegiance and giving allegiance to" James IV. No one has ever said that the Acts of 
 the Parliaments which deposed Edward II. and Richard II. were illegal or not inherently 
 binding. And in this case, James IV., who was de facto and de jure King, having presided over 
 the Parliament of October 1488 and given it the authority and sanction of his regal presence, 
 " that Parliament was a legitimate Parliament of Scotland, and its Acts were binding upon all 
 " persons and all estates." It may be that the statute " forms part of a series of legislative Acts 
 " deserving only of the detestation and reprobation of all loyal subjects" — but, if "clothed with 
 "legislative authority," neither the "motives," nor the "character,'' nor the "conduct," of 
 the enacters of the statute can affect its validity; " and, whatever may have been its justice or 
 " its injustice, . . its righteousness or its iniquity, it is a binding Act of the legislature.''—" It 
 " stands upon . . . the Acts of the Scottish Parliament, . . . has never been rescinded or repealed 
 " — certainly not by name, certainly not by any express enactment, . . . and it has been . . . 
 " treated as an Act of the Scottish legislature . . . and binding " ever since. — Infra, pp. 182, 183. 
 
 LoKD Advocate. — The Parliament may have been "rebellious," and the Act Rescissory "the first 
 " act" and "the result of a successful rebellion ;" but if all Acts of Parliament passed by successful 
 rebels "were to be treated, not according to their legal effect, but to the opinion which might 
 " be entertained of the loyalty of those that passed them, such a principle would have a very 
 " extensive application." It has been the " uniform system " for successful parties to rescind the 
 acts of their predecessors in power. For example, " in Charles II. 's time there are many of these 
 " annulling and rescinding statutes ; and again, after the Revolution, there was a statute rescinding 
 " the forfeitures of Charles II. in the strongest possible terms." — Parliament has more than once 
 made such declarations in regard to the acts of Sovereigns ; and " there is a much stronger 
 " declaration standing on the Statute Book of this country, by which a monarch unquestionably 
 " dejure and de facto too " (viz. King James II.) " was declared by the Estates of this country, in 
 " respect of certain acts done by him, to have forfeited the Crown and to have left it vacant." — 
 " The question is, Is this the law of the land ? Does it stand upon the Statute Book? Is it 
 " regularly passed ?" " If so, the fact that it was passed by what is called a rebellious Parliament 
 
 See Appendix, infra, p. 383. f Printed (with a translation) in the Appendix, infra, p. 384. % App. infra, p. 383. 
 
ANALYSIS OF THE ARGUMENI. Xl 
 
 " makes the construction of the Act perfectly certain " — pointing its application to the defenders 
 of James III., whose " perverse counsel " led (as the Act says) to the King's dedith.— Infra, 
 pp. 224, 225, 230. 
 
 Opinion of the Committee. 
 
 Vide infra, p. xiii. 
 
 {h) The Scottish Parliament had no jurisdiction in honours, and were not competent 4;o strike 
 at them — except in cases of treason and forfeiture, which do not here apply. This Act 
 Rescissory and the Act Rescissory of Henry IV. (presently to be mentioned) are the sole 
 instances of the legislature of either Scotland or England pretending either directly or 
 indirectly to strike at the creation of a dignity by a general provision of this nature. 
 And in both cases the respective Acts have been disregarded. — S. Case, p. 20 ; Infra, 
 pp. 8, 140. 
 
 Objection by the Crown. 
 
 LoED Advocate. — "The effect" of the Act "does not depend in any way whatever upon the 
 " question whether the Scottish Parliament had jurisdiction in matters of honour " or not. They 
 were not acting in a judicial but legislative capacity when they passed the Act Rescissory; they 
 were not deciding " as to what was law," but enacting "what should be the law." — It is denied 
 that the Act Rescissory of Henry IV. failed in its effect. — Irifra, p. 229. 
 
 Opinion of the Committee. 
 
 Vide irifra. 
 
 (c) The Act Rescissory is deficient in the usual and due formality and sanction attendant upon 
 valid Acts of Parliament. That the young King, James IV., is stated to have been 
 present, although a minor, in the Parliament which passed the Act Rescissory, is not 
 denied. But, whereas the formula introductory and enactive of the collective statute 
 passed by each of the several Parliaments which preceded and succeeded that particular 
 Parliament uniformly expresses the special concurrence and approval of the Sovereign, 
 the formula in question, as prefixed to and enactive of the collective statute of October 
 1488 (including the Act Rescissory), is deficient in this respect, as may appear from 
 comparison of the respective phraseology, as follows : — 
 
 In 1485 : — " Vicesimo sexto die predicti mensis Maij, viz. decimo septimo die 
 " dicti parliamenti, anno Domini M"" cccc"" octuagesimo quinto," (1485,) 
 " presente eodem die Domino nostro Rege et Tribus Statihus suj regnj, hec 
 " acta que immediate sequuntur facta fuerunt et approbata PEE EOSDEM in 
 " parliamento prescripto." — Acts, vol. ii. p. 170. 
 
 In 1487 : — " Decimo tercio die mensis Octobris predicti, ac parliamenti immediate 
 " prescripti, anno Domini, etc. octuagesimo septimo, . . presentibus Domino 
 " Rege et Tribus Regnj Statubus, hec acta que immediate sequuntur facta 
 " fuerant et approbata in eodem parliamento PEE D. S., D. N. Eegem et Tres 
 " Status antedictos, et proclamata et publicata vicesimo tercio ejusdem mensis." 
 —Ibid., p. 176. 
 
 In 1487-8 : — " Et eodem die " (29th January 1487-8) "acta et statuta subscripta 
 " promulgata et prelecta fuerunt, et pee dictum supremum Dominum nostrum 
 " Regem solemniter approbata et covfirrRata." — Ibid., p. 180. 
 
 In 1488 — the parliament which passed the Act Rescissory : — " Hec sunt acta et 
 " statuta facta et confirmata in parliamento prescripto," — Without ANY 
 mention whatevee of the King oe Theee Estates. — Ibid., p. 206. 
 
 In 1488-9 :— " XXVP Januarij, anno Domini etc. Ixxxviii"," (1488-9,) " hec acta 
 " que sequuntur facta fuerunt et confirmata in prefato parliamento PER 
 " S. D. N. Begem et Tres Regnj Status."— Ibid., p. 212. 
 
 In 1489 : — " Quarts die mensis Julij predicti, anno Domini etc. Ixxxix", . . in 
 " parliamento immediate prescripto, presentibus Domino Rege et Tribus Regnj 
 " Statubus, hec acta que immediate sequuntur facta fuerant et approbata in 
 " eodem parliamento pee S. D. N. Eegem et Tres Status antedictos, et 
 " proclamata et publicata eodem die, &c." — Ibid., p. 214. — And, 
 
 C 2 
 
XU ANALYSIS OF THE AEGUMENT. 
 
 In 1489-90 : — " Hec sunt acta et statuta facta in parliamento prescripto, et 
 " confirmata PEE supremum Dominum nostrum Eegem, decimo quinto die 
 " " mensis Februarij, anno Domini etc. Ixxxix"," (1489-90,) " presentibus ibidem 
 " Tribus regnj sui Statubus." — Ibid., p. 218. 
 
 —The material and regular form expressive of the enactment and confirmation of the collective 
 statute of the Session, passed by the King nominatim and by the Three Estates, was thus, in 
 October 1488, for the first and only time omitted, that statute, and above all, the Act 
 Rescissory, being the most important it is possible to conceive, and especially requiring 
 the articulate fiat of the Sovereign personally, as touching honours. — Moreover, the Act 
 Rescissory itself, although undoubtedly part of the same general statute, and although 
 separate Acts are constantly framed in a similar manner, does not begin, as many do 
 that passed for very ordinary purposes in the same Parliament, vi'ith ' Our Sovereign 
 ' Lord, of his Royal authority,' or ' It is statute and ordained by Our Sovereign Lord,' 
 &c., or as in the creation of the Earldom of Bothwell on the same day, the 17th 
 October 1488, " Idem supremus Dominus noster Rex, in eodem parliamento, presentibus 
 "suis Tribus Statubus, et cum eorundem consensu, favore, etconsilio," «S;c. {Ibid., p. 206), 
 but simply thus, — " Item, anentthe Proclamation," &c. On this ground alone, therefore, 
 the King's authority is not adhibited to the Act Rescissory itself in the special and marked 
 manner usual in the case of even less important enactments than a most weighty statute 
 striking for the first time, like the Act Rescissory, at the privileged and transcendent 
 subject of honours. It cannot be forgotten that, from the peculiar juncture when the 
 Act Rescissory passed, everything must be viewed with suspicion as regards the Sove- 
 reign — a mere tool in the hands of a rebellious faction ; and this makes explicit proof of 
 his directly sanctioning that Act the more imperative, — while, in the absence of that 
 explicit proof, the Claimant submits that the Act must be legally considered as of ques- 
 tionable validity and effect as regards the dignity now claimed. — Case, p. 74 ; S. Case, 
 pp. 20 sqq.; Infra, pp. 7, 8, 127. 
 
 Objection by the Ceoww. 
 
 Attoeset-General. — The Act Rescissory is as fully sanctioned as "the great majority" of the 
 enactments of the Scottish Parliament of that time. " Generally," after the entry of the persons 
 present, who constituted the Parliament, " they proceed at once to say — ' Here follow the Acts 
 " ' and Statutes of this Parliament,' and then, ' It is statute and ordained,' and so on, exactly 
 " as we find it in" the case of the Act Rescissory. — Infra, p. 184. 
 
 LoBD Advocate. — It is not " necessary to the validity of Scottish Acts of Parliament that they should 
 " begin with the consent of the Sovereign. The Sovereign was there personally present," as 
 shewn by the general heading of the proceedings for the l7th October, " coram . . Rege ibidem 
 " personaliter sedente." " The Acts are introduced with the narrative or statement, ' These are 
 " 'the Acts of Parliament,' — and that is quite sufficient to give them validity," as by the authority 
 of Lord Stair, cited. — Infra, p. 226. 
 
 Reply. 
 
 The King's direct concmrence and sanction, clearly and distinctly expressed, is absolutely requisite by 
 Peerage Law in the peculiar and privileged subject of honours. The Claimant's argument from 
 the omission of the King's name and authority in the formula preceding the Acts of this par- 
 ticular Parliament, and in the initiatory words of the Act Rescissory, has not been answered.— 
 Infra, pp. 16, 17, 296. 
 
 Opinion of the Committee. 
 
 Vide infra. 
 
 {d) The Act Rescissory is not in the regular form of an Act of Forfeiture, in which the King 
 distinctly figures, as in that of the Earldom of Dunbar, Uth January 1434. Acts, 
 vol. ii. p. 23.— This is to be held in view when it is said that the Act Rescissory, by 
 itself alone, without judicial proof or application, put down the Dukedom of Montrose. 
 — Case, p. 75; Lfra, p. 128. 
 
 Observation. 
 
 No direct answer is made to this by the Crown or the Committee. But it is admitted (as already 
 stated) that the Act Rescissory was not an Act of Attainder or forfeiture. 
 
ANALYSIS OF THE ARGUMENT. Xlii 
 
 (e) The Act is contradicted and corrected by the language of two later statutes in pari materia^ 
 —the former, of the 15th February 1489-90, (and which the Claimant has occasionally 
 styled the Supplemental Act,) reciting and attempting to enforce the Act Rescissory, 
 clause by clause, and ordering the grants of James III. to be brought in and destroyed — 
 but, twice, and in the most marked manner, omitting the clause "creacion of new 
 " digniteis," — and the latter, of the 26th June 1493, rescinding absolutely, and ex tunc, 
 and without a qualification, the same class of grants thafwere rescinded mth a qualifica- 
 tion in the Act Rescissory ; but still, like the Supplemental Act, omitting dignities, and 
 in fact completely ignoring both the Act Rescissory and the intermediate or Supplemental 
 Act as if they had never existed. These Acts and the argument they furnish will 
 however be reverted to, infra, pp. cxxi sqq. 
 
 (/) By Scottish law an Act, even although standing on the Statute Book, is considered null 
 and void unless proved to have been practically effective, — if not effective, it is ipso facto 
 repealed by Desuetude. This, it will further appear, was the case with the Act 
 Rescissory. — Case, p. 18 ; S. Case, p. 30 ; Infra, pp. 8, 82. 
 
 Observation. 
 
 The fact that Scottish statutes are repealed by Desuetude is admitted by the Loed Advocatb, 
 infra, p. 230 ; but the fact asserted, that the Act Rescissory was ineifective ab initio and is 
 therefore repealed, is denied by the Crowk and the CoMMiTTBfi. Vide infra, pp. cxxiv sqq. 
 
 General Opinion of the Committee on this Preliminary Question. 
 
 Lord Chancellob. — The Act Rescissory " was one of the Acts of Parliament, it is enrolled among 
 " the Acts of Parliament, and it purports to be an Act of Parliament." Whether the King 
 was " present or not" when it was enacted " is utterly immaterial." — Infra, p. 326. 
 
 LoKD St. Leonards does not notice the question at all. 
 
 Resolution, as reported to Her Majesty. 
 
 The Act Rescissory is treated as a valid and effective Act of Parliament in the Resolution. — Infra, 
 p. 373. 
 
 b. Propositions of the Claimant — assuming the Act Rescissory to he a valid Act of Parlia- 
 ment : — 
 
 (a) That, unless the Act Rescissory destroyed the Patent 1488 at once, per se, by force of its 
 terms, and by force of passing into a law, without any judicial proceedings — although 
 a qualified Act, the Patent subsists in force and in valid effect at the present day. 
 —Case, pp. 74, 75; S. Case, p. 25 ; Infra, pp. 8, 104, 105, 118, 119, 258, 272, &c. 
 
 Observation. 
 
 This does not appear to be questioned either by the Ceown or the Committee — with the exception 
 that the alleged qualification is denied. 
 
 (i) That, applying the well known and recognised principles of construction and legal inter- 
 pretation to the Act Rescissory, the Act has not the effect of at once annulling the 
 Patent in the manner stated.— Jw/m, pp. 8 sqq. ; 264, 268, 269 sqq. 
 
 Observation. 
 
 This is the matter at issue between the Claimant and the Crown in this case. 
 
 (c) That the question mainly and principally depends on this first and great question, inde- 
 pendently altogether of evidence on one side or the other as to contemporary usage or 
 construction, — while the Claimant maintains that that evidence, interpreted according to 
 the recognised rules of Peerage Law, is decisive in his favour as to the contemporary 
 construction of the Act in reference to the Patent.— /w/m, pp. 104, 105, 258, 267, 
 274, 284, &c. 
 
XIV ANALYSIS OF THE ARGUMENT, 
 
 Obsbevation. 
 
 The Ceown and the Committee admit the real and great question to be, whether or not the Act 
 Rescissory cut down the Patent.— Infra, passim. 
 
 c. Pbinciples of Interpretation presumed by the Claimant: — The Act Rescissory must be 
 construed, 
 
 {a) In accordance with the recognised principles of construction applicable to Acts of Parlia- 
 ment injudicial proceedings. — Infra, pp. 8, 11, 259 sqq., 267, axid. passim. 
 
 {b) In accordance with the principles of natural justice that should have dictated it — if capable 
 of receiving a fair construction in conformity thereto. — Infra, p. 153. 
 
 (c) " In that sense which the words most obviously suggest to the understanding," according 
 to the maxim of Erskine, Institute, B. I. T. i. § 51 ; that is, according to the actual 
 words used, in their ordinary and natural signification (unless such a construction would 
 lead to obvious and great absurdity or injustice) — and not (except in such cases) 
 according to the presumed intention of those who have used them. Apt words must 
 have been used in order to give effect to such presumed intention. Words must not be 
 obliterated in an Act of Parliament, and other words introduced, because the words 
 obliterated would limit the infliction of penalties, and the words introduced would make 
 that infliction general. — S. Case, p. 81 ; Infra, pp. 9, 11, 262, 264 sqq-, 269.* 
 
 {d) In accordance with the Scottish maxim that " a law, though expressed in the most general 
 " terms, ought not to be extended to any case to which the reason inductive of the law 
 " is in no degree applicable." Erskine, B. I. T. i. § 54. — Case, p. 5; S. Case, p. 81 ; 
 Infra, p. 273. 
 
 (e) Most strictly and rigorously — the Act Rescissory being a highly penal statute, working 
 forfeitures without trial and without conviction, and in the present case without crime 
 (admittedly) on the part of him subjected (as is contended) to the forfeiture ; and this 
 a fortiori as touching the preeminent and privileged subject of honours; the Act falling 
 to be construed, according both to Scottish and English law, with the utmost severity and 
 anxiety against forfeiture and not in favour of forfeiture, in favour of justice and not of 
 injustice, and, if capable of receiving such construction, in such a manner as to avoid any 
 unjust forfeiture being imposed on an innocent man. " For it is inhuman," says Erskine, 
 " to wrest or torture laws to the distressing of society." While patents of honour, as 
 conferring " privileges which draw no consequential prejudice after them to others, must 
 " be largely interpreted for the grantees agreeably to that munificence which is flatural 
 " to the supreme power," and must therefore have effect given to them if by law effect 
 can be given to them. Institute, B. I. Tit. i. § 55.t — Case, p. 54; S. Case, p. 167; 
 Infra, pp. 8, 10, 259, 262, 263 sqq., 268, 270, 272, 309, &c. 
 
 (./■) According to the legal maxim, "In dubiis benigniora semper sequenda sunt." | — Case, 
 p. 4 ; S. Case, pp. 12, 13, 19 ; Infra, pp. 161, 309 ; and vide Appendix, pp. 436, 439. 
 
 Observation. 
 
 The third of the preceding- Principles of Interpretation is denied by the Crown, who hold that the 
 
 assumed "intention" of the legislature is to govern the interpretation of the enactment. Infra 
 
 pp. 186, 224. The others are not formally denied but (as the Claimant conceives) are practically 
 disregarded by the Crown. While the Committee, admitting that the Act is not one of 
 Attainder or Forfeiture, give it (as will appear) the broadest interpretation in favour of forfeiture, 
 correcting the words of the Act hy the supposed intention of theframers, as being inadequate to 
 express that intention, infra, pp. 314, 349, and tacitly rejecting the strict i-ule of interpreting pemd 
 statutes, imperative even in ordinary cases and a fortiori in honours, — and, as regards the rule 
 
 * The Claimant would refer here to his observations in the Address, supra, pp. xxi sqq. ' 
 
 t Sir Edward Coke even goes further than the Claimant has urged in this case. " Acts or Pabliament," he says, " are to 
 
 " be so construed as no man that is innocent or free from injubie or wrong de by a literal construction pc'nished or 
 
 " ENDAMAGED." — First Institute, § 685. 
 
 t Otherwise occasionally written " In dubiis benigniora preferenda sunt," or " In dubiis benigna facienda interpretatio." 
 
ANALYSIS OF THE ARGUMENT. XV 
 
 " In dubiis,'' holding that there is nothing doubtful in any part of the case, whether as regards 
 the Dukedom itself or the illustrations cited by the Claimant in support of his argument,— 
 as may be seen infra, p. exxxv. 
 
 {(f) According to the principles established by the Judgment in the parallel case of the Dukedom 
 of Norfolk, decided in 1425.* This case is one of great importance to the argument : — 
 
 Norfolk Casie. 
 
 Richard II. of England, on the 29th September 1397 — being then, like James III., in 
 full and admitted exercise of his regal power and authority, and acting " de assensu 
 " Prelatorum, Ducum, Magnatum, et aliorum procerum, et Cbmmunitatis, Regni nostri 
 " Anglie, in instanti Parliaraento nostro apud Westmonasterium convocato existencium," f 
 created the Dukedom of Norfolk and five other Dukedoms, one Marquisate, and four 
 Earldoms. The respective creations are set forth under the above date in the Rolls of 
 Parliament. The grantees received their charters or patents from the King's hands, and 
 were afterwards belted by the King or inaugurated into their dignities. The patents are 
 fully recorded in the appropriate Register for the time. They bear to be granted by the King 
 and Parliament, and have explicit words of limitation, — from which it follows that these were 
 the substantive and cardinal constitutions of the respective dignities, exclusively fixing how 
 they were to be held or descend — while the " belting," " cinctura gladii," or inauguration, 
 which followed, was a mere accessary to honours, analogous in nature and form to the 
 seisin or infeofiinent which followed both in Scotland and England upon a grant of lands, 
 agreeably indeed to feudal practice everywhere. % 
 
 The same phasis occurred in political events in England almost immediately after the 
 preceding grants, as did in Scotland after the creation of the Dukedom of Montrose in 1488. 
 A rebellion broke out against Richard II., headed by his next heir-male, Henry Duke of 
 Lancaster. As in the Scottish instance, the rebellion ended in the downfall of Richard and 
 the violent accession of the Duke to the throne, under the title of Henry IV., in 1399. 
 An Act Rescissory was immediately passed, in Henry's first Parliament, held that same 
 year, repealing and annulling the whole proceedings of the Parliament of Richard II., " with 
 " all the circumstances and dependents thereupon," in which, and by the assent of which Par- 
 liament, the honours in question were created. There was no such qualification in the English 
 Act Rescissory as in the Scottish — it was broad, sweeping, and comprehensive ; and ordained 
 " qe mesme le parlement, ove (avec) I'auctorite susdite, et touz les circumstances et 
 " dependences dicelle, soient de tout reversez, revokez, irritez, cassez, repellez, et adnullez 
 " pur touz jours." § The honours therefore, above alluded to, conferred in that Parliament 
 and with the assent of that Parliament, must be considered to have been annulled by it 
 peremptorily and without any exception. There is precedent and authority too in England 
 (from the well known case of the Dukedom of Cornwall conferred upon the Black Prince 
 in 1337) to prove that the grant of a Dukedom with consent or " assent " of Parliament 
 gave it the force of a statute, so that the Dukedoms created by Richard II. in 1397 were 
 brought with peculiar force within the English Act Rescissory. 
 
 Of the honours in question, conferred as above, one expired before King Richard's 
 deposition, another either before or immediately after it ; one merged in the Crown in the 
 person of Henry IV. ; one fell by attainder in the first year of Henry's reign ; and five 
 
 * Of the admissibility of this ancient English precedent there can be no doubt, nor indeed -was any doubt started by the Com- 
 mittee. In the Devon claim, in 1830-1, Scottish Peerage practice and precedents were expressly and repeatedly founded upon, it 
 being the opinion alike of the Chancellor (Lord Brougham) and of other parties, that there was great similarity in the state and 
 condition of honours and dignities in both kingdoms in ancient times, which they thought were originally governed by the same 
 rules. For example : " Our own early law," observed the Chancellor, " as your Lordships are aware, mas the same in its original viith 
 " that of Scotland."— Seport, by Sir H. Nicolas, p. 184. And again, " The Scotch law touching honours is probably the same as our nwst 
 " ancient law in this country; though that law differs from ours in this respect, that what has here undergone many important 
 " changes in the course of ages, remains there in viridi observantid up to the very period of the Union."— /6a., p. 158,— Of course 
 English law takes precedence in an English case, and vice versa— the House of Lords being, as elsewhere shewn by Lord Brougham 
 {infra, p. 341), the EngUsh, Scottish, or Irish House of Lords according as the claim it is discussing (on reference from the Crown) 
 is a claim to an English, Scottish, or Irish honour. t Preambles of the Patents, as recorded in the Charter Eolls. 
 
 t For the Norfolk patent, and the narrative of the inauguration in the Rolls of Parliament (with a translation), vide the 
 Appendix, infra, pp. 388, 389. 
 
 § For this Act see the " Statutes of the Realm," last edition, printed by authority, vol. ii., p. 112 ; from which, with the 
 English translation there given, it is reprinted in the Appendix, infra, p. 391. 
 
XVI ANALYSIS OF THE ARGUMENT. 
 
 were annulled, not through the Act Rescissory, but through a special process and con- 
 demnation for political offences and the murder of Thomas Duke of Gloucester during 
 the preceding reign. But three — the Earldoms of Worcester and Westmoreland, and the 
 Dukedom of Norfolk — survived, notwithstanding the Act Rescissory* 
 
 The Earldom of Worcester, conferred on Thomas Percy, brother of the Earl of Northum- 
 berland, was fully recognised and admitted subsequently to the Act ; and the grantee might 
 have continued to enjoy it till his death, had he not joined in the celebrated insurrection of 
 his family against Henry IV., for which act alone he was attainted and beheaded. 
 
 The Earldom of Westtnoreland, bestowed on the Sire de Neville, was similarly recog- 
 nised from the first, and continued in the family for several generations till it was forfeited 
 in the reign of Queen Elizabeth. 
 
 But the Dukedom of Norfolk remained dormant for a period, and was then revived 
 under very remarkable circumstances, — furnishing (as the Claimant conceives) irresistible 
 arguments and precedents applicable to his own claim —although less privileged, owing to 
 specialties, hereafter to be noticed, attaching to the latter. 
 
 Thomas Mowbray, Duke of Norfolk, the grantee, was banished by Richard, and died 
 at Venice shortly afterwards, leaving two sons. The eldest, Thomas, never assumed the title, 
 but contented himself with the style of Earl Marshal or Lord Mowbray, the ancient titles of 
 the family. He joined in a conspiracy with Archbishop Scrope, and was executed, in the 
 sixth year of Henry IV., 1405, being still under age. He was succeeded by his only 
 surviving brother, who never claimed nor assumed the Dukedom down to the year 1425 — 
 being known, like his brother before him, by the simple title of Earl Marshal.f 
 
 In that year a contest arose between the Earl Marshal and the Earl of Warwick for 
 precedency in Parliament. And the Commons at length, wearied with the prolixity of the 
 discussion, interposed, and, stating that they had learnt from common report that the Earl 
 Marshal was entitled to the Dukedom of Norfolk, suggested that, if he would assume it (of 
 course under due authority), a termination would thus be put to the dispute. He claimed it 
 accordingly by petition to the Crowu,| in virtue of the royal charter or patent of Richard II. 
 in 1397. The claim was investigated by Parliament with the assistance of the Chancellor, 
 the Lord Chief Justice of the King's Bench, the Sergeants at Law, the Privy Councillors,§ 
 and all that England then possessed of talent, erudition, and wisdom in the legal profession ; 
 and their decision is delivered in the following judgment — which goes minutely into the 
 details and the rationes decidendi, and is invaluable as affording an insight into the legal views 
 and doctrine on the points comprised in it at the period : — 
 
 " Quaquidem Petitione in Parliamento predicto lecta plenius et intellecta, ac habita 
 " inde, cum Justiciario, et Servientibus Domini Regis ad Legem, ac aliis peritis de Consilio 
 " ipsius Domini Regis, matura et diligenti deliheratione ; consideratoque quod, licet prefatus 
 " nuper Rex Ricardus in dicto Parliamento suo || Thomam nuper Comitem Notyngham 
 " in Ducem Norffolk in forma predictalT creaverit ; ac idem Parliamentum, cum suis 
 " circumstantiis et dependentiis quibuscumque, postmodum in Parliamento Domini Henrici 
 " nuper Regis Anghe, avi Domini Regis nunc, apud Westmonasterium, in festo Sancte Fidis 
 " Virginis, anno Regni sui primo tento, generaliter revocatum extiterit, et penitus adnul- 
 
 " latum,** — PRO BO TAMEN QUOD HUJUSMODI CKEATIO DUCUM SIVE COMITUM aut aliarum 
 
 " Dignitatum ad solum Regem pertinet, et non ad Parliamentum ; prefatusque nuper 
 " Dux diu ante dictum festum Sancte Fidis diem suum clausit extremum, prout per diversas 
 " inquisitiones, post mortem ejusdem nuper Ducis, virtute quorumdein brevium ipsius nuper 
 " Regis Henrici captas, et in Cancellaria sua retornatas, ac in presenti Parliamento, de 
 " avisaraento Dominorum Spiritualium et Temporalium predictorum, exhibitas et ostensas, 
 
 * As in the case of the Earldom of Glenoairn— struck at, like the Dukedom of Montrose, but without eflFect, by the Act 
 Rescissory, 17th October 1488 — and of other grants in pari casu, as will hereafter be shewn. 
 
 t Non-assumption equally obtained in the Glencairn case, as will be hereafter illustrated. 
 J For this Petition, see the 'Minutes of Evidence,' p. 23, and the Appendix, infra, p. 391. 
 
 § Or, rather, perhaps, the Council then recently appointed by Parliament as a check upon the Dukes of Bedford and 
 Gloucester, Protector and -vice-Protector of the realm, during the minority of Henry VI. 
 II Anuo xxi Rich. II. — that is, in 1397. 
 
 TI By the Royal charter of creation, 21 Rich. II., entered also ad lonrjum in the Rolls of Parliament, vol. iv. p. 273, 
 »« Clearly by the Act Rescissory, 1 Henry IV., i, e. 1399. 
 
ANALYSIS :.0F THE ARGUMENT. XVU 
 
 " plenius poterit apparere, — sicque eetocatio dicti Paeliamenti ipsius nuper Regis Ricardi 
 
 " PREFATUM NUPER DUCEM, AUT HeREDES SUOS, ABSQUE SPECIALI MENTIONE DE EIS FACTA 
 " IN EADEM, NULLATENUS LEDEEE POTUIT, NEC STATUM EORUM ALIQUALITER ENERVARE, — ac 
 
 " etiam pro eo, quod, inspecto Rotulo ejusdem Parliament! prefati nuper Regis Henrici, 
 
 " NULLA FIT MENTIO in eodem DE ALIQUA SPECIALI REVOCATIONE SIVE ADNULLATIONE Still, 
 
 " Tituli, Nominis, vel Honoris ipsius nuper Duds, VEL dictorum Heredum suorum, — necnon 
 " pro 60, quod QUAMPLURES ALII, quorum quidam in Comites, quidam in alios status sive 
 " dignitates per prefatum nuper Regem Ricardum in dicto Parliamento suo modo consimili 
 
 " ORE ATI fuerunt, SUIS STILIS, TITULIS, NOMINIBUS, ET HONORIBUS EX TUNC CONTINUE USI SUNT 
 
 " ET GAVisi, ac eis in presenti gaudent et utuntur, dicta generali eevocatione et adnul- 
 " latione Parliamenti ipsius nuper Regis Ricardi, in dicto Parliamento prefati nuper Regis 
 " Henrici, ut preraittitur, facta, NON OBSTANTE, — aliis quoque quampluribus notabilibus de 
 " causis tunc ibidem diligenter attentis : — Tandem, per Dominum nostrum Regem, de 
 " avisamento et assensu Dominorum Spiritualium et Temporalium predictorum, ac Com- 
 " munitatis Regni Anglie, in dicto presenti Parliamento existentiuni, necnon Justiciarii et 
 " Servientium Domini Regis ad Legem, et aliorum peritorum de Concilio ejusdem Domini 
 " Regis predictorum, Declaratum fuit et unanimiter Concordatum, Quod prefatus 
 " Johannes, Comes Marescallus, ut filius predicti Thome Duels, et frater et heres predicti 
 " Thome filii Thome, virtute carte et successionis predictarum, de cetero Dux Norffolk 
 " REPUTETUE ET TENEATUR, ac stllo, tltulo, nomine, et honore Duels Norffolk gaudeat et 
 " utatur juxta tenorem carte supradicte. Quamquidem declarationem et concordlam prefatus 
 " Dominus Cancellarlus, auctoritate Regia, postmodum, videlicet xllii die Julii, ultimo die 
 " hujus Parliamenti, de avisamento Dominorum Spiritualium et Temporalium predictorum, 
 " in pleno Parliamento predicto, in presentia Domini nostri Regis publice declaravit. Super 
 " quo, prefatus Johannes ut Dux Norffolk homagium ligeum eidem Domino nostro Regl 
 " tunc ibidem immediate fecit ; quo facto, idem Dominus noster Rex, de avisamento et 
 " assensu predictis, ipsum Ducem inter Pares Parliamenti predicti in loco competenti sedere 
 " demandavit ; quod Idem Dux gratanter fecit ibidem." * 
 
 The groundwork of this Decision is evidently as follows : — That, whatever might be the 
 Intention or virtual import ex terminis of the Act Rescissory in regard to the creations of 
 Richard — (and that it had been thought to affect them seems evident from the Decision 
 taking the Act in immediate connection with the charter of the Dukedom of Norfolk) — 
 still there were specialties in the case of the Dukedom that fully saved it from the influence 
 of the Act, and flaws too in the Act Itself that struck at its very root, and rendered it in law 
 wholly inoperative as to honours. And these flaws and specialties are thus enumerated : — 
 
 I. That the right to create honours belongs solely to the Crown, and not to Parliament — 
 inducing the conclusion that Parliament had no right to interfere in the matter, 
 or pass the Act Rescissory annulling the creations In question, Including that of the 
 Dukedom. 
 
 II. That Thomas first Duke of Norfolk, the grantee, had predeceased the date of the Act 
 Rescissory, and hence was unaffected thereby. 
 
 III. That, as neither the Duke nor his heirs were specially mentioned in the Act — which 
 
 mention was imperatively necessary to bring them within its Influence — they were 
 not affected by it. The force and import of the term " aut," prefixed to " heirs," 
 clearly evinces that they were to be equally favoured with the Duke. 
 
 IV. That no special Parliamentary revocation or nullification of the creation by Richard II. 
 
 had taken place, either as respected the grantee or his heirs, — thus founding the 
 important principle, that such special Act was a sine qua nan in order to affect a 
 dignity previously created, apart from which special Act it inevitably stood firm and 
 valid. — And, lastly, 
 
 V. That, notwithstanding the general revocation and nullification of the patent by the Act 
 
 Rescissory, other persons who had been created Earls and raised to dignities under 
 
 * Rot. Pari., vol. iv. p. 274, — See also the ' Minutes of Evidence,' p. 23 ; and the Appendix, infra, p. 392, where a translation 
 is also given, 
 
 D 
 
svm ANALYSIS OF THE ARGUMENT. 
 
 the Parliament struck at by it had continued to enjoy those dignities' subsequently 
 thereto, unaiFected by it, — within which category come the Earldoms of Worcester 
 and Westmoreland. And therefore of course the Dukedom of Norfolk could not 
 be affected by it.* 
 
 John Mowbray, Earl Marshal, was in consequence of this solemn decision duly held and 
 recognised to be Duke of Norfolk, sitting repeatedly in Parliament, and otherwise, during 
 the remainder of his life. He died in 1428, and was succeeded by his son and heir John 
 fourth Duke of Norfolk. And on the 11th March 1444, there eventually passed a Con- 
 firmation by Henry VI. of the original patent, reciting and ratifying it, for the purpose of pre- 
 serving and upholding the future precedency of the family, on the principle accumulandi jura 
 juribus, in the manner of which such innumerable instances occur in Scotland.f — John fourth 
 Duke of Norfolk was succeeded by his son and heir, of the same name, the fifth and last 
 Duke ; in whom, on his death, the male line wholly failed and the Dukedom became extinct. 
 — Case, pp. 68 sqq. ; S. Case, pp. 14 sqq. ; Infra, pp. 13 sqq. ; 296 sqq. 
 
 Objections by the Crown. 
 
 Attornky-Genbral. — " When the words " of the Rolls of Parliament " come to be looked at, . . all that 
 " took place . . was, that for . . greater solemnity the King conferred the Dukedom . . in the 
 " presence of . . Parliament. No Act of Parliament was passed; . . and it is clear that those who 
 " gave the decision" in 1425 " did not consider that the Dukedom of Norfolk had been conferred 
 " by a Parliamentary charter, . . because the very groundwork of their decision . . was, that 
 " Parliament had had nothing whatever to do with the matter, and that . . the " Act Rescissory 
 " did not annul the " Dukedom " because it . . emanated solely and simply from the Crown, 
 " to which the assent of Parliament was unnecessary, and to which the assent of Parliament 
 " could not be considered to have been given." And whereas the decision in 1425 states " that, 
 " because . . the Dukedom of Norfolk is not expressly referred to in the Act of Parliament," 1 
 Henry IV., " therefore that dignity could not be affected by " it, " when " that " comes to be con- 
 " sidered, all that it amounts to is this : — The Dukedom " being " created, not by Parliament but by 
 " the King," and the Act Rescissory annulling the Parliament but not the Dukedom, " because the 
 " creation of the Dukedom was not part of" that Parliament's " proceedings '' — " therefore, unless 
 " the Act " 1 Hen. IV. "had, in addition to annulling the proceedings of that Parliament, distinctly 
 " and speciiically struck at the peerage " of Norfolk, " it did not touch the particular case in question." 
 It must be remembered too " that those who gave that decision . . were having recourse to everything 
 " that ingenuity and subtlety could suggest, to find some reason for upholding the Dukedom of Norfolk, 
 " in order to relieve the Parliament from the extreme difficulty into which it had got of having to 
 " decide between the conflicting claims of the Earl Marshal and the Earl of Warwick " for precedence. 
 The Commons had suggested that the former should assume the Dukedom ; " and thereupon these 
 " learned persons, considering in what way they can so shape the case as to give effect to the desire of 
 " the Commons, succeed in giving effect to that desire, and . . on what one must admit to be very 
 " fair and plausible grounds." The ratio that special application was imperative, &c. does not touch 
 the present case. Infra, pp. 185, 186. 
 
 The Lord Advocate takes no notice whatever of the Norfolk case. 
 
 Eeplies. 
 
 The objection of the Crown proceeds on a mere reference to the Roll of Parliament containing the 
 narrative of the inauguration in Parliament, and not to the charter or patent of creation, mi which the 
 question turns. That charter bears to be granted by the King with assent of hoth Houses of Parlia- 
 ment, and had that assent and authority d fortiori from the precedent of the Dukedom of Cornwall, 
 created by charter in 1337 and adjudged in 1605 (by the Lord Chancellor, assisted by Lord Chief 
 Justice Coke, by Fleming, Chief Baron of the Exchequer, and Williams, one of the Judges of the 
 King's Bench) to have the force of a Statute, although not bearing to be granted with assent of the 
 Commons, and not on the Rolls of Parliament. 
 
 The main points of the Cornwall decision, or ' Prince's Case,' ruling at the present day, are as follows, so 
 far as they bear on the present question : — 
 
 That by the clause " de communi assensu " &c. " it appears that the charter " (of the Dukedom of 
 Cornwall) " was made hy authority of Parliament :" — 
 
 " That Acts of Parliament do go in the form of the King's Charter," as by " many examples in 
 " law," amongwhich is cited the clause at the conclusion of Magna Charta, which " proves it 
 " by implication to be an Act in form of a Chartei'," and others : — 
 
 * Each of these rationes (with the exception of the second) applies directly to the Montrose case, as will appear hereafter. 
 
 + In this the Norfolk case is parallel to that of Glencairn, as shewn infra, p. xliv. The Norfolk Confirmation is printed in 
 the ' Minutes of Evidence,' p. 22; and in the Appendix, irfra, p. 398. 
 
ANALYSIS OF THE ARGUMENT. xix 
 
 " That these words in an Act or Charter, ' By authority of Parliament,' are sufficient to make it 
 " cm Act of Parliament :" — And, 
 
 That " if an Act of Parliament he penned ' By assent of the King, and of the Lords Spiritual 
 " ' and Temporal, and of the Commons^ . . it is a good Act ;" — 
 
 " Wherefore it was resolved by the Lord Chancellor and the Lords Justices, that the said 
 " Chaetee hath the authobity and foece of an Act of Pabliambht," — and " Of such Acts 
 " THE Judges ought to take notice." " And it was resolved, that this Act, which concerns the 
 " King and the Prince, who is the first begotten son of the King, and heir apparent to the Crown 
 " for the time, being ' perpetuis futuris temporibus,' is such an Act whereof the Judges and all the 
 " Kingdom ought to talce notice." — Coke's Reports, vol. iv., p. 168, edit. Fj'aser.* 
 
 The Norfolk creation being thus a creation by an Act of Parliament, that is, by those words in a Charter 
 which Sir Edward Coke and the rest of the Court held in 1605 in the 'Prince's Case' to make it 
 an Act of Parliament — being, in a word, a creation hy Parliament as well as in Parliament,t and 
 having the force of a statute — necessarily fell under the general terms of an Act Rescissory 
 which (being duly passed, with the sanction of the Sovereign and validly in all respects) rescinded 
 in every particular and with all its acts and dependencies the Parliament with whose consent it was 
 granted. And, practically, the Judgment actually takes the Act in immediate connection with the 
 grant of the Dukedom (as by the words introductory to the rationes on which the judgment proceeded — 
 " Licet . . Rex Ricardus in dicto Parliamento suo Thomam . . Comitem Notyngham in Ducem 
 " Norffolk . . creaverit ; oc idem Parliamentum, cum suis circumstantiis et dependentiis quibuscumque, 
 '^ postmodum, in Parliamento Domini Eenrici . . Begis . . generaliter revocatum extiterit, et penitus 
 " adnullatum, — pro bo tambu quod," &c.) — which of itself is sufficient. 
 
 But, under any circumstances, whether the Norfolk Charter was an Act of Parliament or not, the broad 
 and general principle established by the decision, in 1425, viz. that a dignity lawfully created by the 
 Crown cannot be defeated by the general enactments of an Act of Parliament, that is, without special 
 mention and special revocation, either in the case of the grantee or his heirs, remains unaffected and 
 binding. The Crown itself distinctly admits that specification would have been necessary in order to 
 destroy the honour if struck at by an Act of Parliament. 
 
 Even by the Crown's shewing (although the Claimant cannot admit what appears to him in the light of an 
 imputation on the integrity of the Judges in 1425, and for which there is not a vestige of proof or 
 authority), the principle of strict interpretation -vi^ adopted in deciding the Norfolk Case, exclusively 
 touching honours, in 1425. 
 
 The rationes respecting special application do apply to the present case, as will appear hereafter, 
 infra, p. xxv. — Infra, pp. 26 sqq. ; 296, 297. 
 
 OpiNiojsr OF THE Committee. 
 
 Lord Chancellor. — " All that was annihilated by the first Parliament of Henry IV. was the Acts and 
 " dependencies of the former Parliament," the last of Richard II. " Nothing that had been done by 
 <' the King proprio vigore was affected. . . Unless it can be made out that the creation of the Earl 
 " of Nottingham to be Duke of Norfolk was an Act of Parliament, it was not to be affected. But was 
 " it an Act of the Parliament ? It is true that, for greater solemnity, . . Richard II., who, we know, 
 " was exceeding fond of show and pomp, . . created " the Dukedom and the other dignities " in the 
 " presence of the Parliament ; but it was an Act of the King and not of the Parliament. Whether 
 " that be right or wrong is not material now to consider, because this is quite clear, that that was the 
 " interpretation put upon it at the time. But . . the Duke of Norfolk . . thought that he was struck 
 " at, and did not fake the title. . . Then, some 25 years afterwards, . . a dispute arose as to the 
 " precedency, . . and the Parliament . . considered . . what was to be done about it. Finding 
 " themselves in a difficulty, . . they said, . . ' Why should we have to decide this at all ? . . We 
 " ' have come to the conclusion that you are Duke of Norfolk.' A Petition was presented by the Earl 
 " Marshal on the subject, and they came to this Resolution," (t. e. the preceding judgment, the first 
 part of which is recited :)— " And therefore they come to this conclusion, ' We need not say whether 
 " ' the Earl Marshal takes precedence of the Earl of Warwick ; we get over that by saying, that you 
 " ' are clearly still Duke of Norfolk.' But . . this appears to me to have no bearing upon the case before" 
 the Committee ; "all the indicia referred to there as proving that the Dukedom of Norfolk was not 
 " annihilated, are wanting here," &c. Infra, pp. 328 sqq. 
 
 Lord St. Leonards.— Referring " to the Rolls of Parliament, . . the creations in question were not by 
 " Parliament, but, . . as clearly as words can make them, by the King being in Parliament, 
 " There is not a single word there of Parliament assisting in the creation. . . They were created in 
 " Parliament, but they were not created by Parliament. That . . is a clear answer to the Duke of 
 " Norfolk's case." — " Both " the Claimant's " precedents " (this of Norfolk, and that of Glencairn, 
 hereafter to be cited) " are easily disposed of." Infra, p. 362. 
 
 * The Arguments, Resolutions, &c. may be seen at greater length in the Claimant's S. Case, pp. 171 sqq., and infra, 
 pp. 393 sqq. 
 
 t The phrase adopted in the discussion is here used — not, of course, as holding that Parliament could, by itself alone, apart 
 fi-om the Sovereign, create a Dukedom, — an idea undreamt of till laid down by Lord Lyndhubst in the present case. Vide 
 supra, p. xix; infra, pp. 173, 174, 175, 196, 291. 
 
 D 2 
 
XX ANALYSIS OF THE ARGUMENT. 
 
 Obseevation. 
 
 The mode in which the Lohd Chancellok applies the judgment on the necessity of special nomination to 
 the Montrose Case will appear hereafter, infra, p. xxv. Neither of tJie Noble and Learned Lords take 
 notice of the ratio grounded on the fact that the other grants of Richard II. stood unaffected by the Act 
 Rescissory; nor of the ruling Cornwall judgment.* 
 
 Recapitulation of Principles of Interpretation, Sfc. 
 
 The Act Rescissory falls therefore to be interpreted, 1 . In accordance with the recognised principles 
 of construction applicable to Acts of Parliament in judicial proceedings ; 2. In accordance 
 with natural justice, if possible ; 3. According to the words actually used, in their natural 
 sense, and not according to the supposed intention of the framers of the Act ; 4. In accordance 
 with the maxim, that a law, however general, must not be extended to any case to which the 
 reason inductive of the law is in no degree applicable ; 5. Most strictly and rigorously, 
 as a penal Act, especially in honours ; 6. According to the rule in dubiis benigniora semper 
 sequenda sunt; and 7. In accordance with the principles established by the Norfolk Judgment, 
 as above shewn, viz. that Dignities are created by the King alone and not by Parliament, 
 — that a Dignity lawfully created by the Crown cannot be defeated by the general enactments 
 of an Act of Parliament, that is, without special mention and special revocation, either in the 
 case of the grantee or his heirs, — and that when other honours or grants struck at by such a 
 general Act have survived unaffected by it, any particular honour in pari casu (as regards its 
 apparent liability to the effect of the Act) must be held also to survive unaffected by the Act. 
 
 Observation. 
 
 Every one of these Principles of Interpretation are disregarded, and the contrary propositions practically 
 affirmed, in the Opinions of the Committee on this claim. 
 
 The Claimant will now proceed to demonstrate that the (penal) Scottish Act Rescissory has always 
 been, and must still be held to be, null, void, and inoperative, 
 
 I. As viewed generally and ex terminis, — 
 
 II. As viewed practically in regard to grants by James III. conferred within the period struck 
 at by the Act, — 
 
 III. As viewed specially and personally in regard to the grant of the Dukedom of Montrose, — 
 
 And, lastly, 
 
 IV. As viewed with reference to later statutes bearing upon the validity of the said Act 
 
 Rescissory : — 
 
 The result being, as he conceives, the complete establishment of the position that no legal Act or 
 Intervention took place subsequently to the patent of the Dukedom of Montrose 18th May 1488, which 
 in any way affected it. — Case, pp. 4 sqq. ; S. Case, pp. 117 sqq. ; Infra, passim. 
 
 I. 
 
 The (penal) Act Rescissory proved null, void, and inoperative, 
 
 I. As VIEWED GENERALLY AND 'EX TERMINIS,' — THE PROPOSITION BEING, THAT, THE ACT RESCISSORY 
 BEING DISTINCTLY QUALIFIED, m SUCH A MANNER AS NOT TO STRIKE AT ALL GRANTS MADE BY 
 
 James III. within the proscribed period, but only at such as should be found by a 
 
 JUDICIAL process TO BE "PREJUDICIAL" TO JAMES IV., IT DID SOI per se, BY THE MERE FORCE OF 
 ITS PASSING, AND WITHOUT JUDICIAL INQUIRY, CUT DOWN THE PATENT OF THE DuKEDOM OF 
 MONTKOSE : — And that, if it had not that effect, nothing subsequently done COULD OR CAN 
 
 IMPAIR THE VALIDITY OF THE PATENT.— Ca«e, pp. 4 sqq. ; S. Case, pp. 19 sqq. ; Infra, pp. 8 sqq. ; 
 117 sqq. ; 259 sqq. 
 
 1. While the only constitutional mode of annulling a dignity is by an Act of Attainder, which 
 affords to the party to be affected by it the opportunity of trial and defence, the Act Rescissory is 
 
 * For LfjRD Chancellor Bbocgham's opinion on the necessity of special nomination in an Act of Parliament in order to 
 affect a dignity, as expressed in 18.32, vide infra, p. xxv. 
 
ANALYSIS OF THE ARGUMENT. XXi 
 
 (admittedly) not an Act of Attainder, but an Act by which grants of a certain description, and of such 
 only, can be contended to be annulled ; and the question is, whether the grant of the Dukedom can be 
 legally and judicially held to come within that description. In the only similar case, that of the Duke- 
 dom of Norfolk, the idea that a Peerage could be destroyed and the effect of an Attainder be given 
 without a Bill of Attainder through a general Act of this nature was at once rejected. The words here 
 are clear and intelligible, viz. that such grants of James III., made within a specified time, as " might be 
 " prejudicial" to James IV., shall be quashed and annulled,* — and for this reason, because they were granted 
 to those who had aided and abetted in his, that is, James III.'s slaughter. Some ulterior proceeding, or, as 
 it is called in Scotland, an Action of Reduction and Declarator, would therefore be necessary and requisite 
 in order to make the Act operate. It cannot be otherwise, — for, if the Act meant to say that at once all 
 the late King's grants were voided, why did it not say so ? Why did it introduce a qualification, which 
 necessarily puts the Court which has to construe the Act upon the inquiry whether the particular grant 
 before it is " prejudicial " to the Crown or not? In a later Act in pari materia, of the 26th June 1493, 
 already alluded to and which will be given hereafter, annulling the same class of grants as the Act 
 Rescissory (but omitting dignities), the words are those of absolute rescission : — Why are they not so 
 here ? It is a question of words, and of the fair and legal interpretation of words ; the words used must 
 be taken as they stand ; and to extend them beyond their natural construction, so as to destroy at once 
 without inquiry or proof, would be to construe against justice and truth, and to expunge words from an 
 Act of Parliament. The Act Rescissory could therefore only operate by an Action of Reduction before a 
 Court competent to ascertain whether such or such a grant could be legally held to be " prejudicial " to 
 James IV.\ It was thus nothing but a weapon provided to be used as occasion should arise — but which the 
 Claimant maintains that those who prepared and laid it up never dared actually to produce or use ; nothing 
 but one of those Acts, familiar to Scottish lawyers, which have in effect the character of a commission or 
 authority to Courts of Justice to inquire into grants sought to be avoided, and, upon process, by an Action 
 of Reduction, to decree for their reduction accordingly. But, practically, no such Action was ever 
 brought, no step was ever taken, either in the case of Duke David or the other grantees of James III., in 
 order to dispossess them of their property ; and, on the contrary, they were allowed to retain possession.^ 
 It was, in fact, a mere instrument for the purposes of a faction, never applied, never carried into effect . 
 
 It may be asked too, upon what principle could the firamers of the Act Rescissory, who could not 
 have known what acts had been done, what grants been conferred, either of " lands, heritage, long leases, 
 " feu-firms, offices, tailzies, blench-firms," or even of " dignities," by James III. during the latter part of his 
 reign, the period embraced by the Act Rescissory — upon what principle could the Parliament have said 
 without further inquiry that all those acts and grants should be at once, and by force of the passing of this 
 Act, annulled ? They could not have said so — and, it is submitted, they did not say so. 
 
 Viewing the question with reference to the Dukedom of Montrose, it cannot be contended that 
 increase of dignity, the reward of loyalty, is " prejudicial " to the Crown generally ; nor that a grant to 
 David Earl of Crawford for defending and protecting James III. was "prejudicial" to his successor, 
 James IV. ; nor that James IV., when placed at their head by the rebels, James III. being still alive, 
 became thereby King of Scotland. The loyalty and service due and paid to James III. by the Duke of 
 Montrose became on the King's death, and then only, due to James IV. as part of his inheritance ; and, 
 as it will appear, it was paid to him from that time, and acknowledged by him. There was no break in 
 the Duke's loyalty from first to last. The testimony of James IV. is here in point, as given in the 
 
 * The word " be," occurring in the Act Kescissory as follows — It is " ordanit that all alienacions of landis '' &c. " be umquhile 
 " our Soverane Lordis faider, . . quhilk mycht be prejudiciale to our Soverane Lord and to the Croime that now is, be cassit and 
 " adnuUit " — is distinctly in the future and prospectiTe sense (independently altogether of the inference necessarily flowing from the 
 preceding words " quhilk mycht be prejudiciale "), as may be shewn by comparison with the language of other statutes where the 
 enactment is peremptory and ex tunc; as, for example, in the Revocatory Act of 1493 presently to be mentioned, rescinding the 
 grants of James III. (with the exception of dignities) from the same date as the Act Rescissory — where it is provided that " our 
 " Soverane Lord and all utheris persounis that was hurt within the said tyme sal he and is be vertew of this Act restorit in integrum ;" 
 " and oassis and annuUis all donatiounis, giftis," &c., " and decemis thame to be of nane avale, force, nor eSect, in jugement nor 
 " without, in tyme to cum." — Acts, vol. ii. p. 235. And see infra, p. 260. 
 
 t The Claimant would refer here to his application of this argument, infra, p. Ixxiv. See also p. xlvii, third paragraph. 
 
 t In a legal Information, or pleading, in the question of the Glencaim and Eglinton precedency before the Court of Session in 
 1617, preserved in the Glencairn charter-chest, it is argued that " the Reason" (that is, the plea of Eglinton) " and Act of Parlia- 
 " ment are disconforme, seeing the principal words of the Act of Parliament is omitted in the Reason, viz. ' which might be pre- 
 " ' judicial to Our Sovereign Lord and his Crown.' Neither is it so found " (that is, by a judgment of the Court) " that the creation 
 " of the Earl of Glencaim was prejudicial to the King and his realm. And therefore the Reason, neither being opponed nor sub- 
 "sumed" (i.e. opposed in the later part of the Summons) "to the Act of Parliament, it cannot stand," or be sustained. — 
 This tallies with the Claimant's argument, and shows that the views maintained in this claim are not broached now for the first 
 time, but are of old familiarity in Scottish law. See also the testimony of the supporters of the Act Rescissory in 1649, infra, p. 
 xlvii. The Glencairn patent, it will appear hereafter, fully stood and stands at the present day, notwithstanding the Act Rescissory. 
 
XXU ANALYSIS OF THE AEGUMENT. 
 
 preamble to a Regrant of the Dukedom, with advice of Parliament, to the original grantee, 18th 
 September 1489, in the following terms : — • 
 
 " The same day of September, and year foresaid, our Supreme Lord, James IV., . . . Acknow- 
 " ledging that it contributes to the glory and honour of Kings when persons of illustrious race, their 
 " illustrious merits exacting this, are preferred to exalted dignities, in order that, when they perceive their 
 " rank and name decorated with higher titles, they may henceforward study and labour more and more 
 " fervently in doing noble and virtuous actions to their own praise and the honour and profit of the realm 
 " and commonwealth : — Be it known therefore to all men, as well present as future, that the said our 
 " Lord the King, considering the actual obedience* and the grateful and commendable promptitude which 
 " his faithful cousin David, Earl of Crawford and Lord Lindsay, and his illustrious predecessors, have 
 " exhibited towards the predecessors of the said our Lord the King, Kings of Scotland, and towards the 
 " same our supreme Lord the King, uraoeariedly and in many modes ; On account of which, and other his 
 " condign merits, and his services to be rendered in future times, the same our supreme Lord the King 
 " being willing, from the debt of his regal magnificence, to pursue the said David with still ampler favours 
 " of grace and honour ; And since, moreover, the previous Earls of Crawford, his predecessors, worthily to 
 " be held in worship, have held their foresaid lordships from ancient times by the title of Earldom, — Hence 
 " is it " — that by the grant (as elsewhere given) the King changes " de novo " the said title of Earldom 
 into that of Duke in favour of the grantee.f 
 
 David Duke of Montrose is thus declared by the best and highest authority to have been as loyal 
 and faithful to James IV. and to "the Crown that now is" as to James III. ; his status to have never at 
 any time been injuriously compromised ; and himself to be, in the estimation of the existing Sovereign, a 
 person whom it was honourable and profitable for the latter, and for the Crown, to raise to higher dignities. 
 The creation under the patent 1488 could not therefore and camiot be legally considered ^^prejudicial" to the 
 Croion ; and, even without the aid of strict interpretation (however imperative in this case), it is thus 
 impossible, ex terminis of the Act Rescissory, to bring the Dukedom within its category .| — Case, pp. 74, 75 ; 
 S. Case, pp. 25 sqq. ; Infra, pp. 11 sqq. ; 69, 70, 71, 72, 92 sqq. ; 117 sqq. ; 259 sqq. ; 273. 
 
 Objections by the Crown. 
 
 Attorney-General. — Looking " at the circumstances of the time, it is perfectly clear what the object and inten- 
 " tion of this Act of Parliament was." Its " eifect . . is to assume that the dignities conferred by James III., . . 
 " which they assert in distinct terms had been granted for the advancement of the perverse counsel which had 
 " led to the civil war and to the death of the Sovereign — shall be taken to be prejudicial — not to the Crown 
 " generally, but to ' the King that now is,' that is to say to the King and the party by which he was sup- 
 " ported," the party in power. They assume that " these dignities were such as would be likely to be 
 " prejudicial to the King, in other words, to the King and the party, . . and therefore . . ought to be annulled." 
 —The Act could not, as suggested by the Claimant, have been a " general provision . . by way of precaution, 
 " because they did not know what dignities might have been created. . . They were in possession of the 
 " government; they had the records and the archives of the government in their possession; they were in 
 " possession of the Register, which . . contained a record of these very grants of the Dukedom of Montrose 
 " and the Earldom of Glencaim ; and it is to be supposed that they, with all these means in their power of 
 " ascertaining what dignities had been conferred by the King in the latter days of his reign, had not present 
 " to their minds the fact that this Dukedom of Montrose and Earldom of Glencaim had been conferred, 
 " within the period in question, upon two nobles who had stood by the late King throughout that civil war, 
 " who had been known at that period to be endeavouring to upset, and were likely again to endeavour to 
 " upset, the party which was then in possession of power ! . . Of course it was an object to them, and 
 " they would naturally use every means they could, to reduce the powers and to diminish the dignity and 
 "authority of those two great nobles." — As regards the argument from the Regrant, 18th September 1489, 
 although James IV. "may have . . acknowledged" the Duke's "loyalty and his merits . . in 1489, . . that 
 " very remarkable document" the Duke's own Protest, 30th October 1488, presently to be noticed, " in which 
 " he . . complains and . . in terms of bitterness " of having " been compelled to purchase immunity from 
 " punishment and the King's favour by allowing himself to be stripped of almost all his offices and 
 " possessions," proves that in 1488, on the accession of James IV., " it was the desire, object, and design 
 " of the party in power, who had the King in their hands and used him as their instrument, . . to lower the 
 " Duke, . . and to deprive him of" his new dignity. Infra, pp. 184, 185. 
 
 Lord Advocate.—" We must read the Act in the language of the times. It is a question of construction, not . . 
 " of impression. The question is— What did these words ' prejudicial to the King and to the common good 
 " 'of the realm- . . intend when they were used? " They are not " words of limitation at all." They 
 
 » The word " actualeni " (one of mere surplusage) occurs in the first patent, as well as in the Eegrant, which follows it for the 
 most part (except where greater praise is introduced or necessary alteration made) verbatim. 
 
 \ For the Eegrant see the ' Acts of Parliament,' vol. ii. p. 215 ; and the Appendix to this volume, infra, p. 531 
 
 I Moreover, if the Duke was loyal and innocent, the Act Rescissory ought, according to Sir Edward Coke, " to be so construed 
 
 that neither he nor the Claimant " be by a literall construction punished or endamaged." — Vide supra, p. xiv 
 
 ■ as 
 
ANALYSIS OP THE ARGUMENT. xxui 
 
 " rather" express "the ground and reason of the statute, viz. that the alienations of lands, &c. . .were 
 " prejudicial." And " the more " so that in an Act I5th Feb. 1489-90, " ordering " the deeds " to be brought 
 " in, to be destroyed, . . they are described as deeds granted since the '2nd February 1488 : — ' Item, it is 
 " ' thought expedient that, because there was a statute made in our Sovereign Lord's Parliament, &c. 
 " ' declaring all alienations of lands, heritages, long leases, feu-firms, offices, tailzies, blench-firms lands made 
 " ' of ward, of none avail after the second day of February,' &c. ' for certain causes contained in the said 
 " ' Act and statute.' "—" Therefore the Parliament in" 1489-90 ''certainly considered that the Act 17th 
 " October 1488 struck against all those alienations ; and that the ground and reason for rescinding those 
 " alienations was this, that they were prejudicial to the then King and to the common good of the realm. 
 " There can be no doubt," therefore, " that the . . Dukedom fell under those terms, and was necessarily 
 " annihilated by those terms." No Process of Reduction was necessary to give effect " to a rescinding Act 
 " of Parliament,'' which " must fake effect at once and immediately." Infra, p. 227. 
 
 Eeplies and Observations. 
 
 If the words of the (penal) Act Rescissory are to be construed strictly, against forfeiture— if according to the legal 
 construction and interpretation of the words acluaUy used (those words being plain and unambiguous), and 
 not according to the supposed intention of the framers of it ; the Committee cannot assume, with the 
 Attorney General, that, although this Act applies in terms to a particular class of grants only, it must 
 be held therefore to apply to all grants of all descriptions ; nor, with the Lord Advocate, can it obliterate 
 the words used and substitute other words, which, unlike the words actually used in the Act, would have the 
 effect of inflicting penalties and forfeitures. The Claimant submits that it is impossible to hold that the Act, 
 qualified as it is, and proceeding on the causes assigned, and falling to be strictly interpreted as a penal 
 statute and striking at honours, could per se cut down the Dukedom without an action or process fixing its 
 applicability. If 'prejudicial,' seme prejudice must be pointed out. The grant might have been to an 
 unworthy recipient, or impolitic in itself, or improvident and extra vires as alienating property held, not in 
 the King's own right, but jure coroncB, and therefore, on all or any of these grounds, ' prejudicial ' to 
 James IV. No such cause of prejudice, however, is suggested by the Crown — but it is urged that the Act 
 is to be construed, not according to its terms and subject to the established rules of interpretation, but accord- 
 ing to what the Committee may believe to have been the motives and views of the framers of the Act. 
 There is no semblance of authority for thus dealing with an Act of Parliament, and a penal one, and in a 
 case of peerage, like this. And " it is inhuman," as by Erskine's dictum, " to wrest or torture laws to the 
 " distressing of society." It is not, in a word, what the framers of the Act meant, but what they actually 
 said, the judicial interpretation of the Act, which is here in question. Whatever their intention, if they 
 have not expressed that intention by apt, suflacient, and express words, the rule applies, Q^od voluerunt non 
 fecerunt. It is even doubtful whether the Committee can safely at this time put any construction upon the 
 Act Rescissory without having the Proclamation before it — for who can tell whether the Proclamation did 
 not specify the particular descriptions of grants intended by the subsequent Act to be struck at and to be 
 rescinded, and whether the very grant of the Dukedom might not have been exempted from that specifica- 
 tion ? But the Proclamation is not in existence — nothing is known of it. This therefore furnishes an addi- 
 tional reason for putting such a fair construction upon the Act as not to work penalties and forfeitures without 
 having the Proclamation before the Committee to guide it as to what were the descriptions of property or 
 grants intended to be struck at. — As to the reply of the Attoeney-Gekeeal to the argument from the 
 improbability that the framers of the Act should have accurately known the nature and attendant circum- 
 stances of all the grants of every description made by James III. during the period generally referred to by 
 the Act Rescissory — but which reply is restricted to the single item of Dignities and based upon the pos- 
 session by the government of the Great Seal Register, which is stated to have contained the patents both of 
 the Dukedom of Montrose and Earldom of Glencairn, it may be sufficient to remark that the Learned 
 Gentleman himself states shortly afterwards as a " very curious " fact that the Glencairn patent was " never 
 " entered upon the Register." Infra, p. 214. The Claimant's argument depends of course upon the aggre- 
 gate improbability in question. — With respect to the reference in the Act 15th Feb. 1489-90, and the in- 
 ference drawn from it, such an inference cannot be drawn from a general reference only, which cannot be 
 expected to contain attendant qualifications, and which moreover, on looking to the Act itself referred to, 
 is found to be incorrect — while the later Act, as has been observed, omits dignities altogether — which 
 speaks for itself. No notice is taken of the marked distinction between the phraseology of the qualified Act 
 Rescissory and of the absolute Act of 1493, but it is assumed that both mean the same thing — the qualified 
 words being discarded from the Act Rescissory in order to inflict an indiscriminate forfeiture from which 
 the Act itself abstains. And the Act 1493 likewise omits dignities. See the two Acts infra, pp. cxxi, cxxiii. 
 
 With respect to the Regrant, the Protest referred to (and founded on by the Crown no less than by the Claimant) 
 proves that James IV. had executed a free and unlimited Remission in favour of David Duke of Montrose 
 of aK displeasure — " omnimodam hujusmodi displicientiam " — conceived by him against the Duke on account 
 of his loyalty to his father — the sole condition being the surrender of the hereditary Sheriffdom of Forfarshire 
 — which condition the Duke duly implemented.* It is impossible to infer from this any intention of depriving 
 the Duke of his Dukedom ; and it will appear that the King subsequently accepted the Sheriffdom from him 
 as Duke of Montrose^recognking him as such. Nor can it be inferred from the King's temporary displeasure 
 (during a few months of political disgrace) that the Duke was disloyal subsequently to the death of 
 James III. — all that is in question. But nothing can detract from the legal force of the clear and 
 unqualified testimony of James IV. in the Regrant 18th Sept. 1489, that Duke David had been and was as 
 loyal to himself as to his predecessors, and that the elevation of a Peer to higher dignity for loyal service 
 was honourable and profitable to the Crown— from which the inference is irresistible that the grant of the 
 
 * For this Protest, see the ' Minutes of Evidence,' p. 86 ; and the Appendix, infra, p. 519, where a translation is also given. 
 
sxiv ANALYSIS OF THE ARGUMENT. 
 
 Dukedom by James III. to David Earl of Crawford in 1488 could not be " prejudicial" to the Crown, in 
 the person of James IV. — If it were so, an Act of Parliament passed in 1821, declaring that all grants of 
 dignity or lands made by George III. which might be in prejudice of his successor, George IV., should be 
 null and void, would have annulled the Dukedom of Wellington — or any other dignity granted to a meritorious 
 subject for good service during the war ! * And even supposing the Regrant were, as contended by the 
 Crown, merely for life, maJMS et minus non variant speciem; and if the grant by James III. was "prejudicial" 
 to James IV., the Regrant of the same honour by James IV. cannot be judicially held to be otherwise than 
 an act to his own prejudice. — Infra, pp. 259 sqq. ; 267 sqq. ; 270 sqq. ; 273. 
 
 Opinions of the Committee. 
 
 Lord Chancelloe.— " Not only it " (the Act Rescissory) " may point to . . the creation of the Dukedom of 
 " Montrose, or any other creation of a similar sort, but it is impossible for language to do so more 
 " clearly. All the creations of new dignities, alienations of lands, &c. are abolished. It is true that it goes 
 " on to say, ' which might be prejudicial to our Sovereign Lord and to the Crown that now is.' But this is 
 " not a qualification which must be proved to apply, but merely an inaccurate (if it be an inaccurate) way 
 " of explaining the motive that induced the Legislature to annihilate those gifts." It means "that all those 
 " alienations and creations of new dignities shall be annulled because they are or might be prejudicial to the 
 " successor. . . And if there were any doubt upon that subject, . . all possible doubt is removed by the 
 " statute . . 15th February 1489-90," by which " the Legislature . . have put their own construction upon 
 " the former statute," — they say " that there had been a statute passed, declaring all those alienations of 
 " lands of none avail ; and they therefore called upon the persons to surrender their title-deeds, clearly 
 " shewing that it was not to be a question in any case whether it was prejudicial, but that the reason why 
 " the Legislature thought fit to interfere was because it was prejudicial. . . I am aware that in this Act " 
 (of the 1 5th February 1489-90) " there is no mention of titles and dignities," &c.t — Infra, pp. 314, 315. 
 
 LoED St. Leonaeds. — The question of the Duke's loyalty " cannot receive the slightest attention indisposing 
 " of this matter. It signifies not whether" the Duke was "loyal or disloyal, . . loyalty to one Sovereign 
 " was disloyalty to another. He who was loyal in his last moments to James III. was disloyal to James 
 " IV." The Duke was not " esteemed by James IV. 'a loyal and excellent subject' . . till he restored 
 " him partly again to his favour, as proved by the Duke's own Protest of the 30th October 1488." " Nothing 
 " . . could have operated so strongly against the Duke with James IV." as the " services upon the field of 
 " Blackness" which were the cause of the grant of the Dukedom by his father. " Then comes this Act of 
 " Parliament, upon which I have never been able, from the first moment down to the present, during all the 
 " arguments day by day, to entertain the slightest doubt," — and with respect to which it is to be remembered 
 that "beyond all possibility of doubt" the 2nd February "is the date which" the successful party " had 
 " assigned as the real termination of the reign of James III." " The true construction of" this Act " admits 
 " of no doubt. All grants are struck at ' which might be prejudicial to our Sovereign Lord and the Crown 
 " ' that now is,' . . that is to say, which, but for this Act, hut for what we are now doing, might hepre- 
 " 'judicial, because they were granted from bad motives against the Crown that now is.' It would have 
 " been a totally different thing if they had said ' which may be prejudicial,' . . but" we must " take the 
 " words as they actually are. All grants are struck at ' which might be prejudicial ;' therefore they aee 
 " struck at, because so they might have been ip they had not been struck at," &c. — Infra, pp. 347, 348, 349. 
 
 Observation. 
 
 The fundamental error of Loed St. Leonaeds, in supposing that the reign of James III. ended on the 2nd February, 
 has been exposed supra, p. iv. He also repeatedly represents the restoration of the Duke to favour as only 
 a "partial" restoration, disregarding the testimony of the Protest (otherwise so much relied on) that the 
 remission was absolute — of " omnimodam displicientiam." For other remarks upon the peculiar view taken 
 by the Lord Chanoellob and Loed St. Leonards of the Act Rescissory vide infra, pp. 314, n. J ; 349, n. f. 
 
 2. The Act Rescissory cannot affect the Patent, on the Scottish principle that " a law, though 
 " expressed in the most general terms, ought not to be extended to any case to which the reason inductive 
 " of the law is in no degree applicable." ErsMne's Institute, B. I. T. i. § 54. The reason inductive of 
 the Act is in no degree applicable to the Patent, the Duke having been in no way an accessory to the 
 death of James III., but e contra ; and it is against such accessories only, and in punishment for such 
 accession, that the Act is directed. If it be otherwise, to oppose rebels and traitors is " contrary to the 
 " common good of the realm," and to defend a man with one's best blood is to be the " cause of his 
 " slaughter." — Case, p. 5 ; S. Case, p. 81 ; Infra, pp. 10, 11, 273. 
 
 Observation. 
 
 This argument does not appear to be noticed by the Ceown or the Committee, except in so far as it is overruled 
 by the doctrine that the presumed motive and intention of the framers of the Act, and not the words of the 
 Act itself, are to govern its construction. 
 
 * This argument ex absiirdo is slightly varied from the mode in which it -was urged at the bar, for a reason which will be 
 self-evident on referring to the passage, at pp. 269, 270. 
 
 f For the Loed Chancelloe's explanation of this difference between the two statutes, vide infra, p. cxxii. The Act of 
 1489-90 will appear to have been a mere brutum fulmen, never acted upon, &c., like the Act Rescissory. 
 
ANALYSIS OF THE ARGUMENT. XXV 
 
 3. Moreover, the Act Rescissory cannot affect the Patent, inasmuch as the Dukedom is not 
 specially mentioned in the Act, and there is no such special recall of the dignity as was indispensable in 
 order to rescind it, whether as regarded the Duke himself or his heirs, in accordance with the rationes 
 in the Norfolk' Judgment 1425 : — " Sicque revocatio dicti Parliamenti ipsius nuper Regis Ricardi prefatum 
 " nuper Ducem, aut heredes suos, absque special! mentione dE eis facta in eadem, nullatenus ledere 
 " potuit, nee statum eorum aliqualiter enervare ; ac etiam pro eo, quod, inspecto Rotulo ejusdem Parliamenti 
 " prefati nuper Regis Henrici, nulla fit mentio in eodem de aliquA speciali kevocatione sive 
 " adnullatione STiiii, TiTULi, NOMiNis, VEL HONORIS ipsius nuper Ducis, vel dictorum heredum suorum." 
 It is moreover an universal principle in Scottish and English law that a general law inflicting punishment 
 must be applied and brought home to the individual before he can be affected by it. ' The Act is, in 
 short, altogether too undefined and general in its terms to affect the honours struck at by it, which could 
 only be affected by clear, distinct, and unmistakeable specification and application, in accordance with 
 unvarying Scottish, English, and British precedent, as illustrated in the Claimant's S. Case, pp. 25 sqq. ; 
 Infra, pp. 17, 23, 32, 296. 
 
 Objections by the Crown. 
 
 Attoenet General. — " There were but two newdignities created " during the proscribed period, " the Dukedom 
 "of Montrose and the Earldom of Glencairn" — it will be shewn that "the Earldom of Glencaim was 
 " intended to be struck at and was struck at by " the Act Rescissory (for at present the House has " only 
 " one half of the facts" before it " upon any part of the case") — "there were but these two dignities " — 
 " therefore, why should the new dignities . . have been struck at in terms by the Act Rescissory unless, 
 "there being but those two," the "intention had been to aifeet those two?" That the Act " meets the 
 " case in its terms is perfectly clear, because it strikes in terms at all new dignities which had been created 
 " within that time." The Norfolk ratio " does not touch a case where we have an Act of Parliament 
 " directed in express terms — not against, I admit, the individual dignity by name — but against all dignities 
 " passed within a given period. If" the Committee is "of opinion . . that the intention of the Act 
 " Rescissory was to overturn the dignity in question, . . it matters nothing that the dignity was not expressly 
 " and specifically mentioned by name." — Infra, pp. 186. 
 The LoBD Advocate takes no notice of the preceding argument. 
 
 Eeply. 
 
 Majus et minus non variant speciem,—w\A as the ActJRescissory does not specify the Dukedom of Montrose by 
 NAME, it cannot have repealed it, as by the Norfolk ratio, which remains a binding authority, strictly 
 applicable to the case. — Infra, p. 296. 
 
 Opinion of the Committee. 
 
 Lord Chanceleor. — "This title" — that of the Dukedom of Montrose — "was struck at by name — not the 
 " title of the Duke of Montrose, but the titles which had been created by the King subsequently to the 
 " preceding February were struck at nominatim. . . Therefore . . the case of the Dukedom of Norfolk is no 
 " precedent at all in this case." — Infra, p. 330. 
 
 Lord St. Leonards (like the Lord Advocate) takes no notice of the preceding argument. 
 
 Observation, — and Doctrine of Lord Brougham in 1832. 
 
 In the claim to the Earldom of Waterford (created in 1446), decided by the Lord Chanoeelok Brougham 
 in 1832 — on the OflBcers of the Crown urging that that Earldom " was taken away by the Act of 
 " Parliament 28th Henry VIII.," commonly called the ' Act of Absentees,' and that Sir Edward Coke and 
 two other judges, in an opinion furnished by them to the Privy Council in 1612, afiirming the effect of that 
 Act in cutting down the dignity, stated " the opinion of the judges " in the Duke of Bedford's Case, 17th 
 Edward IV., " to have proceeded upon the like words " to those in the Act of Absentees then in question, 
 LoED Brougham commented upon that statement as a "departure from the fact," inasmuch as "in the 
 " Act of 17 Edward IV. there are express words of degradation, it being enacted ' that from henceforth 
 " ' the same creation and making of the said Duke, and aU the names of dignity given to the said George, or to 
 " ' John Nevill his father, be from henceforth void and of no effect.' If such words," observed Loed Beouqham, 
 " had occurred here, the cases would have been similar. But no such words are found in this Act :" — And, 
 although the Noble and Learned Lord's ultimate decision in favour of the Claimant (the Earl of Shrewsbury) 
 proceeded mainly on the distinction that the word " honours " in the ' Act of Absentees ' did not imply 
 dignities, but merely bore the signification of " a collection of manors," the Noble and Learned Lord's 
 observations were understood at the time by the learned editors of the Reports of the Decisions of the 
 House of Lords, and are so stated in the Summary prefixed to their Report of this particular case of 
 Waterford, to imply the affirmation of the principle that " A Dignity ob Title of Honoue cannot be 
 " taken away (whebe there is no deficiency oe coeetjption of blood) except by express woeds in an 
 "Act of Parliament." And it was "held therefore,'' they add, " that the Irish Act 28 Henry VIII. 
 " c. 3, vesting in the King in right of the Crown of England all honours, manors, castles, seigniories, 
 " jurisdictions, and all other possessions and hereditaments held by certain persons, or by any person, to the use 
 " of any of them in Ireland, did not take away from any of them a personal dignity ; and that the opinion of 
 " Lord Coke and other judges that it took away the Earldom of Waterford (12 Rep.) was erroneous in fact 
 
 E 
 
XXVI ANALYSIS OF THE ARGUMENT. 
 
 " and in law." Clark and Finnelly's Reports, vol. vi., pt. 1, pp. 133 sg^c[. — The Claimant rejoices to 
 find that Loed Beotjgham was of the preceding opinion (as Lord Chancellok) in 1832, — and he need 
 scarcely observe that it is strictly in accordance vi'ith the decision in the Norfolk case in 1425, and with rule 
 and practice subsequently down to the year which will form an epoch henceforward in Peerage Law, 1853. 
 
 It may be added, that the ' Act of Absentees' expressly and specifically mentions the non-residence of the Earl 
 of Waterford and other peers as the reason why their " honours, manors, castles, seigniories," &c. &c. are to be 
 enjoyed henceforward by the King and his heirs " as in the right of the Crown of England," — so that it can 
 hardly be said that ' special mention ' is not made of those peers within the Act. And, after enacting these 
 penalties and deprivations against the peers in question, the statute expressly saves their rights "to all and 
 " every person and persons, the King's natural subjects dwelling in this land, other than the Duke" [of 
 Norfolk], . . '■'■ the said Earle" [of Waterford], &c. And it concludes by specifying 6y Kame various other 
 psfrties whom the Act is not to aflFect. All this proves how carefully, even at that remote period, persons 
 to be affected by a penal or deprivatory Act were pointed out and identified — and even with express and 
 special exemption of persons not to be touched by it. 
 
 The preceding is a new precedent and authority, only recently discovered, and not previously adduced.* 
 
 General Conclusion of the Claimant on this First Point of the Argument : — That the 
 Act Rescissory could not and did not per se, by the mere force of its passing, cut 
 down the Dukedom, — and that, if it had not that effect, nothing done afterwards could 
 impair the validity of the Patent. — Infra, passirn. 
 
 General Conclusion of the Committee : — That the Act Eescissory could and did per se cut 
 down the Dukedom, and that all that followed was in conformity with this fact. — Infra, passim. 
 
 II. 
 
 The (penal) Act Rescissory proved null, void, and inoperative, as viewed 
 II. Practically in regard to grants by James III. conferred within the proscribed period, 
 
 AND STRUCK AT BY THE ACT, AND WHICH FURNISH FAIR COntemporarwa expoSltW THAT THE ACT 
 
 Rescissory was a dead letter, — the Claimant's proposition here being that m no one 
 
 INSTANCE AS YET ASCERTAINED DID THE ACT RESCISSORY TAKE EFFECT. AND THE CLAIMANT 
 
 CHALLENGES THE Crown TO PRODUCE ANY SUCH INSTANCE. — Case, pp. 15 sqq. ; S. Case, pp. 34 
 sqq. ; //;/ra, pp. 72 sqq.; 130 sqq. 
 
 Admission by the Lord Chancellor. 
 
 " If such a principle," as contemporanea expositio, "is in any case admissible, ... it is preeminently so in a case of 
 " this sort, where all is in great obscurity, not only from the lapse of three centuries and a half and more, 
 " but from the troubles of the times, and from other causes, ... a case involving all the difficulties of anti- 
 " quity." Infra, p. 316.t 
 
 1 . The grants in question, so far as they can be traced, are either subsequently confirmed by 
 James IV. tw ordinary form, precisely as any other unexceptionable charters, without the least cavil or 
 objection ; or else stood on their own ground, perfectly secure, firm, and valid, without confirmation, in 
 the face of the Act Rescissory, which thus resolved into a dead letter. — Case, p. 15 ; S. Case, p. 34 ; 
 Infra, pp. 81, 132. 
 
 Of the First of these classes, the Claimant adduces 
 
 i. Charter by James III. of half the forest of Kilgarry, with vert and venison, in favour of 
 
 Thomas Collace of Balnamoon, conveying royal rights, and struck at by the Act 
 
 Rescissory, 1 7th May 1488 ; and Confirmation thereof by James IV., in ordinary form, 
 
 23rd March 1499-1500.— Case, pp. 15 sqq. ; S. C, pp. 34 sqq. ; Infra, pp. 81, 130, 131.^ 
 
 * In farther illustration of the rigidity applied to the interpretation of penal statutes inadequately or loosely worded, see 
 Blackstone, vol. i. p. 70, edit. 1770. Honours surely require to be specified a fortiori above " mere sheep" and such 'small deer.' 
 
 t The Lord Advocate observes as follows with reference to the contemporanea expositio, that it is " quite unnecessary to 
 " consider whether this Eescissory Act took effect as to the other cases, . . because, if the Act was regularly passed, and compre- 
 " bended the honours and estates, if it took effect at the time, . . if it was changed afterwards into a life-rent grant during the life 
 " of the Duke of IVTontrose, I do not think that what took place as to other grants can affect the nature of this argument. But . . 
 " so far is it from being the case that the Act Rescissory did not take effect upon other grants in the same position, the very reverse 
 " is the fact."— Infra, p. 2.39.— The Claimant also maintains that, unless the Act Eescissory had the effect of cutting down per se all 
 the grants of James III., including the Dukedom, without trial or process, those grants must stand, and investigation into their fate 
 is in strict truth superfluous. But, under the circumstances of opposition which have attended this claim, that investigation has 
 been imperative, — and it is most triumphantly in favour of the Claimant. 
 
 I See the ' Minutes of Evidence,' pp. 94, 95, and the Appendix, infra, p. 401, where they are printed in extenso. 
 
ANALYSIS OF THE ARGUMENT. xxvil 
 
 ii. Charter by James III. of the other half of the forest of Kilgarry to Thomas Somyr of 
 Balyordie ; and Confirmation thereof by James IV., both of the same date as the preced- 
 ing :* — S. Case, p. 35 ; Infra, p. 131. 
 
 iii. Charter by James III., 23rd March 1487-8, in favour of Alexander Gordon, son and 
 apparent heir of Sir John Gordon of Lochinvar, erecting the lands of Kenmure into a 
 barony, to be held blench — that is, free of the heavy feudal duties previously paid to the 
 Crown ; and Confirmation thereof by James IV., 28th July 1489 — thus even before 
 the Supplementary Act 15th February 1489-90 — proving per se that the Act Rescissory 
 was then inoperative. — S. Case, p. 35.t 
 
 Objection by the Crown. 
 
 LoBD Advocate. — These Charters were "not confirmed by regular progress of confirmation,"... 
 " but shnply. . .as requiring confirmation, — and "as " being grants that otherwise would have 
 " been affected by the" Act Rescissory. Infra, p. 239.f 
 
 . Eeply. 
 
 The fact is directly the reverse. The Confirmations are precisely in the form of ordinary confirma- 
 tions for the purpose of pvMic registration, as shewn by a comparison of these identical Con- 
 firmations with others of the ordinary description in the Claimant's Original Case, pp. 15, 58, 59. 
 Confirmations of this nature abound in Scottish conveyances, — they are, in point of fact, ordinary 
 charters of progress ; they confirm and propel the title ; they carry on the right of the antecedent 
 owner, — and it was the custom in Scotland to obtain them from time to time merely as recogni- 
 tions, acknowledgments, and declarations of existing rights. It is impossible therefore to repre- 
 sent the preceding Confirmations to Collace, Somyr, and Gordon, as amounting to new grants on 
 the part of the Crown, because they proceed, as in all other similar instances, upon recital of the 
 existing grant and the recognition of the validity tJiereof Had the preceding Confirmations, on the 
 other hand, been for the purpose of salving a flaw through the Act Rescissory, the flaw would have 
 been specially recited in a non obstante clause, as by universal practice in such cases. The Claimant 
 has illustrated in the Supplemental Case, pp. 35 sqq., the distinction between ordinary Confirmations 
 for the purpose of registration or progress, and those for salving flaws through a revocatory or hostile 
 Act of Parliament.§ And he adduces before the Committeb, in illustration of this distinction, j 
 
 * ' Minutes of Evidence,' pp. 97, 98 ; Appendix, infra, p. 402. 
 t ' Minutes of Evidence,' pp. 100, 101 ; Appendix, infra, p. 402. 
 
 X This observation is made with reference to the two Charters of KUgarry , but the objection (if valid) equally applies to that 
 of Kenmure, which stands in the same category, and of which the Crown othenrise takes no notice. 
 
 § The importance of this distinction is so great that the Claimant is induced to subjoin the greater part of his exposition on 
 this point in the Supplemental Case — to which, however, he would refer for various subsidiary illustrations and proofs, here, for 
 brevity, omitted : — 
 
 " m. 1. That, while the Claimant agrees with the Noble Duke [who maintained] that Confirmations or Eattfications were occa- 
 sionally granted for the purpose of salving defective titles, (though only in very peculiar and clamant cases,) he will presently shew 
 that such Confirmations were of a very different form and strmture from, those obtained hy Collace of Balnamoon, Somyr of Balyordie, and 
 Gordon of Lochinvar, at present in question. The latter belong to a class numbering its hundreds and thousands, to be met with in 
 almost every page of the ancient records of Scotland, — sequent and ancillary in ordinary official routine to the most valid and unex- 
 ceptionable grants of the Scottish Kings. They amount, in short, to nothing mare than precautionary registrations, more fully and validly 
 to transmit rights, as they existed merely at the moment, to heirs. This is known to all Scottish antiquarian lawyers. To appeal to 
 Erskine: — " Eatifications . . carry no new right ; they barely confirm that which was formerly granted, without adding any new strength to 
 " it by their interposition." — Institute, Lib. I. Tit. i. § 39. He speaks here generally of Eatifications, though with immediate reference 
 to private Acts of Parliament. These, as admitted by the House of Lords in the Cassillis case in 1762, " passed" (in the Scottish 
 Parliament) " of couYse, and were cmsidered as matter of mere form. They were neither read in Parliament, or passed as other Acts, 
 " nor do they contain any more than a general confirmation of the charters themselves." {') These dicta apply d fortiori to the Confirmations 
 in question out of Parliament, — and in either case the object was the same — to obtain a fair and public registration. 
 
 " The Claimant may cite in illustration of this fact the very ancient and unexceptionable authority of Sir James Balfour of 
 Pittendriech, President of the Court of Session, who figured before and after the middle of the sixteenth century, and who writes as 
 follows in his ' Practicks,' the oldest Institute of the law of Scotland :— " Thair is alswa ane certain form of Confirmatiounis that passis 
 " upon Actis of Parliament or Decretis of the Lordis of Counsal and Sessioun ; namelie, quheu a partie has ane Act of Parliament or 
 " Decrete that concemis him as an evident, quhilk necessarlie wald be lang and weill hept, the samin Act or Decrete being authentiquelie 
 " subscrivit be the Clerk of Register, he writes abone the heid thairof ' C ' ad cancellariam,' and swa it is presented at the Chancel- 
 " larie, quhairupon ane Confirmatioun is gevin out in thir tennis, ' Sciatis nos quoddam actum Parliamenti nostri, sive decretum per 
 " 'dominos nostri Consilii et Sessionis, inferius descriptum, datum et provulgatum utique intellexisse, sub hdo forma:' — efter the quhilk the 
 " Act or Decrete is insert word be word, — ■' quodquidem actum parliam^enti, sive decretum, suprascriptum, omniaqite et singula in eodem 
 " ' CONTENTA, IN OMNIBUS et per omnia, FORMA PARITER ET EFFECTU, ut premissum est, approbamus, ratificamus, ac, pro nobis et succes- 
 " ' soribus nostris, pro perpetuo confirmamus. Datum sub testimonio nostri magni sigilli,' — the day that the Decrete is gevin; and 
 " ' for warrand thairof the Decrete is kept in the Chancellarie." — Practicks, ed. 1754, pp. 650, 651. (•>) 
 
 " Upon which the Claimant may remark — 
 
 " 1. That the Confirmation thus described is the confirmation either of an Act of Parliament or Decreet of the Supreme 
 Civil 
 
 (*) See the Appendix to this volume, infra, pp. 551 sqq. of the 2nd August 1453 — from the Arbuthnot Charter-chest; ii. 
 
 (i>) In illustration of the above the Claimant cites in the Confirmationby James II., under the Great Seal, 28th March 1454, 
 
 S. Case, i. Confirmation by James II., under the Great Seal, of an Act and Decreet of the Lords Auditors of Causes, 26th March 
 
 10th August 1453, of an Act and Decreet of the Lords of Council 1454 — also from the Arbuthnot Charter-chest ; iii. Confirmation 
 
 E 2 
 
xxviii ANALYSIS OF THE ARGUMENT. 
 
 I. Specimens of ordinary Confirmations of valid Charters : — 
 (1) Charter of Confirmation by James III., 24th October 1481, of a Charter by Patrick 
 Haithwy, 18th October 1481.* 
 
 * Printed in the ' Minutes of Evidence,' p. 116, and in the Appendix, infra, p. 398. 
 
 Civil Court, and hence of a still more important matter than a charter or grant like those of CoUace of Balnamoon, 
 Somyr of Balyordie, Gordon of Lochinvar, &c. 
 " 2. That it is very evident that the party in Sir James Balfour's view only wished for an effectual record or registration 
 of the Act in which he was concerned," that it should be " lang and weill kept " against any chance of loss and 
 destruction. — And, 
 " 3. That the Confirmation intended for this mere and simple purpose, without being able in the circumstances to bestow 
 greater effect or force ex terminis upon the Act in question, yet employs the same confirmatory words as those employed in 
 the Collace of Balnamoon and Somyr of Balyordie Confirmations under the Great Seal in 1499, — which words in the latter 
 and in similar instances fall therefore a fortiori to be interpreted in the same manner and to the same effect — that is, 
 as simply registering the grant, against the chances of time and accident — not as making it inherently stronger, or adding any 
 new or greater force to it. This evidently tallies with the ordinary import of Ratifications or Confirmations in Scot- 
 tish law, as above inculcated by Erskine — the latest as Balfour is the earliest institutional authority of Scotland. 
 " It must never be lost sight of, that the Royal Confirmations or Ratifications of grants hy James III., supposed by the Noble 
 Duke to be voided by the Act Rescissory, 17th October 1488, are precisely and identically similar to those on record of rights and subjects 
 unquestionably valid and unexceptionable, (as may be seen inter alia hy reference to specimens of ordinary, valid, unexceptionable Con- 
 firmations, which the Claimant has printed in the Appendix to his original Case, pp. 58, 59) ; (") and that in the instance of Collace of 
 Balnamoon and Somyr of Balyordie they were natural, if not imperative in Scottish practice, on the mere exclusive ground of their 
 carrying the Royal privileges of vert and venison, equally prized by the Sovereigns of both kingdoms, and which could never be too 
 fully exemplified or recorded in reference to a subject. C") While, on the other hand, had they been intended to saj.ve or cure a defective 
 TITLE owingto the Act Rescissory in 1488, both the flaw and the King's intention to remedy it vfould infallibly have been 
 STATED AND SET FORTH IN THE CONFIRMATION in the usual manner, as will be presently shewn. 
 
 ***** * 
 
 " III. 2. That the Confirmation of Collace's charter by James IV. intimates, in the usual form, that the original charter of 
 James III. had been *' de mandate nostro visam, lectam, inspectam, et diligenter examinatam, sanam, integram, non rasam, non cancellatam., 
 nee in aliqud sui parte suspectam, ad plenum intellexisse " — an inquisition and criticism not likely to have been bestowed on what, if the 
 Act Rescissory had applied, would have been waste paper,— on a charter too, which, if the Supplementary Act 15th February 1489-90 
 had had any effect, ought to have been given up to James IV. and destroyed. 
 
 " III. 3. That if, as the Noble Duke" — and as the Crown at the bar — "assumes, the Act Rescissory had annulled the right 
 of Collace under the charter 17th May 1488, and James IV. had intended to purge the- flam arising from that annulment and restore 
 him, there were only two modes in which he could have done so, — in the one case by a Confirmation or Ratification specially directed to 
 that end; in the other, by a charter ex tunc, as already stated by the Claimant, — and in both of these alternatives, the peccant point, the 
 flaw attaching to the original grant, would have been pointedly and distinctly set forth, in accordance with invariable practice, in the preamble 
 or quequidem of the new charter. — The Claimant will now shew, by practical instances, the manner in which such restoration was 
 legally effected. 
 
 " 1 . As examples of a Confirmation or Ratification, peculiar and different from an ordinary one, and intended for the purpose 
 of salving a flaw through an Act Revocatory or Rescissory, the Claimant may cite the following, from the Fife 
 Charter-chest : — 
 
 "i. James, iTe the grace of God King of Scottis, to all and sindrie oure liegis and subditis, [to] quhais knaulege 
 " thir oure lettres sal cum, Greting. Fforsamekle as we grauntit to oure lovet familiare knicht and coun- 
 " saloure, David Guthre of that Ilk, our Justice, heretably in few-ferme, oure landis of Balnabreich, lyand 
 " within oure Scheriffdome of Forfare,- nochtwithstanding that, now of late, we, being of perfite aige of 
 " xxi yeris, revokit in generale all charteris maid in oure tender aige that mycht be ony skaith (injury) or 
 " prejudice to us ; nevertheless, considering the gude hartly service done to us be oure said knicht at all 
 " tymys, and, in speciale, in recompense of pert of his gret laboure and expensis sustenit be him in our 
 " chargis and ambaxeate (embassy) to oure derest bruther the King of Fraunce — we have ratifyit and 
 " apprevit, and be thir oure lettres ratifies, confermis, and apprevis the said charter of few-ferme maid to 
 " our said knicht of the said landis and premices be ther (thir) oure lettres, that the said Revocatioime, nor 
 " nane uther to be maid in tyme oummyng be ws or oure successouris, sal be prejudiciale or scaithful (hurtful) 
 " in na wise to the said Schir David or his airis in tyme cumming. — Gevin under oure Prive Sele at Edinbursh 
 " the xviii day of October, the yere of oure Lord a thousand foure hundreth sevinty and thre yeris," 
 (1473,) " and of our regne the xiiii yeire." 
 
 This Confirmation is signed ' James'— in the autograph of James III., and is entituled " Litera Ratifi- 
 "cationis," &c. 
 
 "ii. Charter by James IV., 8th May 1509, recorded in the Great Seal Register,— which must be prefaced by 
 citation, 1 . Of proceedings of Parliament, 4th August 1455, whereby, in virtue of the first Act then passed, 
 " the haill lordschipe of Galloway wyt sik fredomes and commoditeis as it hais thir dayis, togidder wyt the 
 " castell of the Treife," are, inter alia, " annext to the Crown perpetualy to remane " (Acts, vol. ii. p. 42) — 
 and, 2. Of a later Act by James III. and his Parliament, 131h October 1487, by which, inter alia,'." tote et 
 "integre terre dominii de Annanderdale (Annandale) cum pertinentiis," "nobis et successoribu's nostris, 
 " Scotie 
 
 by James II., under the Great Seal, 5th May 1457, of a Decreet the Lords of Council and Session, or Supreme Civil Court would 
 
 of the Lords Auditors of Parliament in favour of the Abbey of not of themselves have stood and been fully and legally binding 
 
 Scone -from the Chartulary of the said Abbey; iv. Confirma- The respective confirmations and ratifications cited were merelv 
 
 tionby James II.,under the Great Seal, nth October 1459, of an for the purpose assigned by Sir James Balfour as above of 
 
 Act and Decreet of Parliament, 9th October 1459— from the registration and greater security as regarded eutiretv and nre- 
 
 Great Seal Register,— and others— including, v. Confirmation, servation." ^ ^ F'e- 
 
 by James IV., Uth August 1506, of a Decreet in a process before (») For these, see the Appendix to this volume infra r> 398 
 
 the Lords of Session, &c.— from the Lauderdale Charter-chest. (>>) So too in the case of the charter of Kenmure bv whiph 
 
 -On which he observed;— heavy feudal duties, payable to the Crown, were for the first 
 
 " It cannot be maintained that these Acts and Decreets of time remitted in favour of the grantee, 
 the highest judicatories, the ParUament, the Lords Auditors, and 
 
ANALYSIS OF THE ARGUMENT. xxix 
 
 (2) Charter of Confirmation by James IV., 29th June 1489, of a Charter by James II. in 
 favour of Robert Bruce of Stenhouse, 26th December 1451,* 
 
 * ' Minutes of Evidence,' p. 117. Vide infra, p. 399. 
 
 " Scotie Kegibus, et juri corona nostre regio, perpetuis futuris temporibus uniantur, incorporentur, et 
 " annexentur." — Ihid., p. 179. These Acts evidently constituted an objection and bar to future alienations 
 o other parties of the lands comprised in Galloway and Annandale — which last district was anciently a part 
 of the former. It appears from the charter now to be cited, that part of this property had been alienated 
 by James IV. ; and it will be seen how the flaw arising from the previous Acts of Annexation was 
 obviated: — 
 
 " Jacobus, Dei gratis, Kex Scotorum," &c. " Sciatis nos in nostro Parliamento tento et inchoato apud 
 " burgum nostrum de Edinburgh, in pretorio ejusdem, die Martis, octavo mensis Mail, anno Domini millesimo 
 " quingentesimo nono, nobis in propria person^ unacum Tribus regni nostri Statibus presentibus, et de 
 " eorum expresso consensu et assensu," &c., " illas nostras cartam, donationem, et concessionem, factas et 
 " concessas dilecto nostro Johanni Murray de Cokpule, militi, de terris et baronia de Cokpule, cum annexis 
 " et pertinentibus suis, secundum formam et tenorem dicte nostre carte sub nostro magno sigillo sibi Johanni 
 " desuper confecte et inferihs inserte, de data, apud Edinburgh, decimi quinti diei mensis Februarii, anni 
 " Domini millesimi quingentesimi septimi, et regni nostri viceslmi, de mandato nostro visas, lectas, inspectas, 
 " et diligenter examinatas, sanas, integras, uon rasas, nou cancellatas, nee in aliqua sui parte suspectas, ad 
 " plenum intellexisse, sub hie formS.," — after which the original royal charter is inserted ad longum and 
 verbatim, — " ' Jacobus, Dei gratis. Rex Scotorum,' &c. 'Sciatis nos dedisse,' &c., 'dilecto nostro Johanni 
 " ' Murray de Cokpule, militi, omnes et singulas terras subscriptas, viz., terras de Cokpule,' &c., ' jacentes in 
 " ' SenescalliS, nostra Vallis Anandie,' &c., with lands also ' infra Senescallatum nostrum de Kirkcudbright,' " 
 (also incontestably in Galloway, and thus, as well as the former, struck at by the Acts of Annexation in 1 45 5 
 and 1487,) &c. — " ' In cujus rei testimonium,' " &c. — " ' Testibus,' " &c. — " ' Apud Edinburgh, decimo quinto 
 " ' die mensis Februarii, anno Dommi millesimo quingentesimo septimo, et regni nostri vicesimo.' Quasdem 
 " [sic] cartam, donationem, et c<mcessionem predictas, in omnibus suis punctis, et articulis, conditionibus, et modis, 
 " et circumstantiis suis quibiiscunque, in omnibus et per omnia, approbamus, ratifioamus, et pro nobis et successoribus 
 " nostris, ac heredihus nostris, omnibus melioribus Tnodo, forma, et effectu, de consensu et deUberacione Trium regni 
 " Statuum predictorum, ut premissum est, pro perpetuo confirmamus, — NON OBSTANTIBUS AiiQuiBCS Annex- 
 " AciONiBXjs SEU Unionibus quieuscunqce Dominii Galvidie cokone nostbe per nos aut predecessores 
 " nostros quoscunque in cONTRARitJM FACTIS SEU "EXPEDITIS, prout in actis nostri Fai^liamenti predioti desuper 
 " confectis plenius continetur. Salvis nobis et successoribus nostris serviciis et devoriis in prefatS. nostra cart4 
 " superiils expressatis et contentis. In cujus rei testimonium presente carte nostre Confirmacionis, de 
 " consensu et deliberatione dicti nostri Parliamenti facte, magnum sigUlum nostrum, unacum appensione 
 " sigillorum nonnullorum dominorum, prelatorum, baronum, et burgorum commissariorum, regni nostri," 
 &c. " apponi precepimus. Apud Edinburgh, predicto octavo die mensis Maii, anno Domini millesimo 
 " quingentesimo nono." (*) 
 
 The special and express clause, " Non obstantibus," &c., added to the preceding Confirmation in order to 
 obviate and void the effect of the Acts Revocatory of 1455 and 1487, being utterly wanting in the Con- 
 firmations of the charters granted to CoUace of Balnamoon and Somyr of Balyordie by James III. in 1488, 
 proves that no flaw or even cavil attached to the latter through the penal Act Rescissory 17th October 1488, 
 for, if so, such flaw required a fortiori to be thus voided and obviated ; and hence the Act Rescissory was, 
 with respect to them, a mere brutum fulmen. 
 
 " iii. Charter, by James IV., 8th May 1509, the same date with the preceding, recorded in the Great Seal Register, 
 reciting a grant 10th March 1508, of the lands of Strathern, Petty, and Brackley, within the Sheriffdom or 
 Lordship of Inverness — which Lordship and lands had been annexed to the Crown by Act of Parliament, 
 4th August 1455 {Acts,rol. ii. p. 42) ; and confirming the same, with the necessary salving clause (in order 
 to obviate the bar occasioned by the Act of Annexation) as follows : — " Quamquidem cartem et donationem," 4-o., 
 " in omnibus, in omnibus " [sic] " suis punctis, et articulis, conditionibus, et modis, ac circumstantiis suis quibuscunque, 
 " in omnibus et pjer omnia, approbamus, ratificamus, et, pro nobis et successoribus nostris, omnibus melioribus modo, 
 "forma, et effectu, de consensu et deliberatione Trium regni nostri Statuum predictorum, ut premissum est, pro 
 " perpetuo confirmamus, — NON obstantibus quibuscunque Annexationibus, Unionibus, aut aliis quibus- 
 " CVNQ,XJE priiis per Tios aut nostros predecessores quoscunque in contrarium factis et 'kxp'editjs, prout in 
 " actis nostri Parliamenti predicti desuper confectis pleniiis continetur. Salvis nobis et successoribus nostris 
 " summis feodiferme et devoriis in prefata nostra carta superiiis expressatis et contentis. In cujus 
 " rei testimonium," &c. C") 
 
 The same remarks apply here as before, — and in both these cases the concurrence and sanction of Parlia- 
 ment was further resorted to and obtained. . 
 
 " 2. As examples of a Royal Charter ex tunc, intended for the same purpose as the preceding Confirmations, viz., to salve a 
 
 flaw arising through an Act Rescissory, or forfeiture, but effecting it in a diflerent manner, the Claimant may 
 
 adduce, 
 
 " i. Royal charter by James IV., 24th October 1489, recorded in the Great Seal Register, in favour of Sir John 
 
 Boss of Montgrenan, who had been forfeited, as stated in the Claimant's Case, p. 13, in consequence of 
 
 attainder by Parliament 14th October 1488 — reponing him ex tunc, with a quequidem stating that the lands 
 
 " per processum super eodem Johanne in nostro Parliamento deductum, in manibus nostris devenerunt," and 
 
 stating that he should now hold them " adeo liberfe et quietfe sicut dictus Johannes Ross predictas terras . . 
 
 " de quondam patre nostro" (James III.), "cujus anime propitietur Deus, tenuit, &c., ante prefatam 
 
 " forisfacturam." — And, 
 
 " ii. Royal Charter, by James IV., registered in the Great Seal Record, immediately after another dated 
 penult. May 1498, reponing Sir John Ramsay, formerly Lord Bothwell, and who had been attainted in 
 October 1488 (Acts, vol. ii. p. 203), in a tenement and lands in the Cowgate of Edinburgh, on a special 
 quequidem that the same " nobis pertinent et in manibus nostris existunt ratione forisfacture super ipsum Johan. 
 
 " nem 
 
 C) ' Minutes of Evidence,' p. 109 ; Appendix, infra, p. 399. 
 
 (') ' Minutes of Evidence,' p. 106. Vide Appendix, infra, p. 400. 
 
XXX ANALYSIS OF THE ARGUMENT. 
 
 -With which the preceding Charters of Confirmation to Collace, Somyr, and Gordon precisely 
 correspond :— And, secondly, 
 
 II. Specimens of Confirmations intended to salve flaws or invalidity in the Charters 
 confirmed : — 
 
 (1) Charter of Confirmation by James IV., 8th May 1509, of a Charter by himself in favour 
 
 of Sir John Murray of Cockpule, 15th February 1507.» 
 
 (2) Charter of Confirmation by James IV., 8th May 1509, of a Charter by himself in favour 
 
 of William Ogiivy, 10th March 1508.t 
 
 (3) Charter of Confirmation by James VI., 27th December 1580, of a Charter by Robert 
 
 Commendator of Dunfermline to Colin Earl of Argyle, 4th April 1579 : % 
 —With which the Charters of Confirmation, here in question, do not correspond.— Case, pp. 15, 58, 59 ; 
 S. Case, pp. 35 sqq. ; Infra, p. 132. 
 
 Opinion of the Committee. 
 
 The preceding proof from the charters to Collace, to Somyr, and to Gordon, with the respective Con- 
 firmations, and the distinction upon which it applies, have been entirely overlooked and passed 
 over by the Committee. 
 
 Of the Second of the above classes (including Charters of James III, which stood on their own 
 merits, without confikmation), the Claimant adduces, 
 
 i. Charter by James III., 14th February 1487-8, (recorded, in abstract merely, in the 
 Great Seal Register,) granting the Sheriffdom of Stirling (previously possessed by 
 Thomas Lord Erskine and his eldest son, and which they had resigned to the Crown) to 
 the Cunninghams of Polmaise, father and son, for their joint lives,— together with the 
 following proof that the Sheriffdom, although an " office," and thus struck at by the Act 
 Rescissory, continued in the family without any confirmation, as if the Act Rescissory 
 had never passed, — 
 
 (1) Confirmation by James IV., 13th October 1501, to the Burgh of Stirling, of the 
 office of Sheriff of Stirling, within the borough, which the magistrates had obtained 
 
 * ' Minutes of Evidence,' p. 109 ; and see Appendix, infra, p. 399. 
 t ' Minutes of Evidence,' p. 106. Vide infra, p. 400. % ' Minutes of Evidence,' p. 104 ; and Appendix, infra, p. 400. 
 
 " nem prius deductum, ac ratime prefate nostre generalis remcationis, ut premittitur, facte, revocantis, 
 " cassantis, et adnuUantis omnes alias donationes per nos tenera in etate cuicunque persone vel quibuscunque 
 " personis desuper faotas," — the revocation being also pointedly set forth in the preamble ; and with this 
 additional clause, — " Insuper nos de novo revocammus, cassavimus, et adnullavimus, et hdc presenti carta nostra " 
 ^■c. " specialiter adnuUamus, omnes alias donationes per nos tenerd in etate nostra de dicta tenemento et orto," (the 
 same property in the Cowgate,) " cum domlbus, edificiis, mansionibus," &c. " cuicunque persone vel quibus- 
 " cunque personis prius, ut premittitur, factas ; quas donationes volumus esse nullius vigoris, efficacie, vel momenti in 
 " futurum," 
 ' III. 4. That, such being the case, it follows, from the above and former considerations, 
 
 1. That the subject of the several grants to Collace of Balnamoon and Somyr of Balyordie, viz. half the forest of 
 
 Kilgarry, with the rights of vert and venison, was of a high and transcendent nature, and reckoned inter regalia, 
 
 far superior, for example, to the property in the Cowgate, or that granted to Sir John Boss or Sir David 
 
 Guthrie. i 
 
 2. That both Collace of Balnamoon and Somyr of Balyordie possessed the forest of Kilgarry for several years sub- 
 
 sequently to their several grants and the Act Rescissory in 1488, without any cavil or challenge on the part of 
 the Crown down to 1499-1500, or indeed at any time. 
 
 3. That if, on the contrary, the Act Rescissory had taken effect, the forest of Kilgarry would in each several case 
 
 have escheated to the Crown ; and either a Confirmation specially directed to salve the flaw in question, like 
 that to Sir David Guthrie, or, as in the Cokpule and Strathern instances, with a clause of non obstantibus and 
 perhaps the additional concurrence of Parliament, or else a new charter ex tunc, like those to Sir John Ross 
 and Sir John Ramsay, would have been imperative in order to repone Collace and Somyr, whose respective 
 escheats and the grounds of them would have been recited either in the preamble or quequidem of the charter, 
 according to invariable usage. — And, 
 
 4. That as the Confirmations, 23rd March 1499-1500, of the charters to Collace and Somyr in 1488 are absolutely 
 
 silent as to any flaw or disability, and on the contrary are exactly parallel and identical in phraseology with the 
 innumerable multitude of Confirmations of perfectly valid and unexceptionable grants, with which (as above 
 stated) the records of Scotland abound — they must necessarily — and not only they, but the charter to Gordon 
 of Loohinvar, and others— be viewed in the same light, as perfectly valid, and obnoxious to no cavil or impu- 
 tation, whether from the Act Rescissory or otherwise, — the Confirmations being, as premised, merely intended 
 as a more solemn and precautionary registration, for the purpose of preserving and perpetuating rights in the 
 respective families in case of loss or accident." — S. Case, pp. 35 sqq. 
 
ANALYSIS OF THE AEGUMENT. xxxi 
 
 through a special resignation by the Cunninghams, father and son, as holding under 
 the above charter 14 th February 1487-8, which is expressly referred to in the 
 Confirmation. 
 (2) Confirmation by James IV., 26th February 1506, to Sir Robert Erskine, of the 
 Sheriffdom of Stirling without the borough, proceeding on a resignation of the 
 Sheriifdom into the hands of the King by Sir Alexander Cunningham and his son 
 Robert, holding under the above Charter 14th February 1487-8. — Case, pp. 17, 
 18 ; S. Case, pp. 40 sqq. ; Infra, p. 131.* 
 
 Objections by the Ceoww. 
 
 Attorney-General. — This, which is one of the "cases" relied on by the Claimant "in which 
 " Charters of Confirmation were granted by the Crown," is " not a case coming within the Act 
 " Rescissory ; it was a case in which the Erskines had an hereditary right to the Sheriffdom of 
 " Stirling, and by a grant in . . 1488 they assigned it for a period of years to the Cunninghams. 
 " The King was a party, by the Charter of Confirmation, to that grant ; but it was one of those 
 " things that had been granted by the King in respect of what the Act Rescissory was pleased to 
 " term the perverse counsel of his party," and therefore destroyed by the Act Rescissory. 
 Infra, p. 219. 
 
 Lord Advocate. — This case has been " brought forward from a misapprehension of the nature of the 
 " transaction. It was not an alienation or gi-ant by the Crown, but . . a transaction between " the 
 Erskines, the original possessors of the Sheriffdom, and the Cunninghams, " for the transfer of 
 " the Sheriffdom,"., "a private transaction." The Charter proceeds upon the resignation by 
 Lord Erskine " in favour of" the Cunninghams. " It was not a grant of Crown property, and 
 " not properly a grant by the Crown at all. It was simply completing the title of the party in 
 " whose favour the resignation was made." " The Crown comes in to confirm the grant, . . not 
 " in virtue of its royal prerogative, but simply as a superior to confirm a contract between two 
 " individuals, which in point of fact the Crown could not refuse to do." " ' The . . Claimant 
 " ' denies that the resignation by the Erskines was in favour of the Cunninghams, but the words 
 " ' of the charter fully bear out the Duke of Montrose's original statement, although it is possible 
 " ' that the resignation may not tave been in terminis in favour of the Cunninghams,' " but only, as 
 was then usual, " ' upon an obligation, express or implied.' " f The grant, therefore, being 
 "simply a contract between two parties," cannot be considered " prejudicial to the Crown," and 
 did not fall under the Act Rescissory. Infra, pp. 240, 241, 242. 
 
 Eeply and Observation. 
 
 Both the Attoenet-Genebal and Lord Advocate take the charter of James III. to the Cun- 
 ninghams in 1488 to have been a Charter of Confirmation. It was no such thing. There 
 was no Confirmation at all in this instance — it is one of the cases adduced by the Claimant to 
 shew that the original grants of James III., struck at by the Act Rescissory, stood firm and valid 
 even without Confirmation. The criticism of the Crown on this document proceeds throughout on 
 a modern misconception. The following is the abridged registration of the Charter in the Great 
 Seal Register — all that is preserved of it : — " Data fuit litera sub magno sigillo Alexandre Cunyng- 
 " hame de Polmayis, militi, et Roberto Cunynghame, suo filio et apparenti heredi, et eorum alteri 
 " diucius viventi, conjunctim et divisim, de ofiicio Vicecomitis de Striveling, tam in burgo quam 
 " extra burgum, pro toto tempore vite dicti Alexandri, et Roberti : — Quodquidem officium Vice- 
 " comitis Thomas Dominus Erskin, et Alexander Erskin, suus filius et heres apparens, prius habue- 
 " runt, et ex suis propriis motibus et spontaneis voluntatibus, unanimi consensu, resignaverunt et 
 " sursum reddiderunt : — Etc., cum omnibus feodis et proficuis dicti oflScii, pro toto tempore vite dicti 
 " Alexandri et Roberti : — De datS,," &c.t It thus appears that it was not " a private transaction," 
 as represented — the resignation of the Erskines is absolute, not " in favour " of the Cunninghams — 
 and the notice of that resignation is precisely such as would be found in the case of any charter 
 proceeding on the resignation of a previous possessor, by which the property, the subject of that 
 charter, had come into the absolute possession of the Crown. The Charter 14th February 
 1487-8 is therefore an original grant by James III. of an ofliice appertaining to the Crown, and 
 as such struck at by the Act Rescissory, notwithstanding which it stood, valid and firm, 
 unaffected by that Act, although never (as has been stated) subsequently confirmed by the 
 Crown. — Infra, pp. 241, 242; and see the S. Case, p. 41. 
 
 Opinion of the Committee. 
 
 This proof is entirely overlooked in the Speeches of the Lord Chancellor and Lord St. Leonards ; 
 but in the course of the discussion it was observed by Lord St. Leonards that " it was a transfer," 
 and by Lord Brougham that "it was a grant by one private individual to another, though it 
 " might require a Confirmation " — and that " the Crown in the case does not grant ; it is the mere 
 " channel of conveying from the one party to the other." Possibly indeed these observations 
 might have been in a tone of query (addressed to the Ceown) rather than affirmation. Vide 
 irifra, p. 241. Both the Crown and the Noble and Learned Lords in question appear to have 
 
 * For the above and other illustrative evidence, see 'Minutes of Evidence,' pp. Ill sqq., and Appendix, infra, pp. 402 sqq. 
 t Bead by the Lord Advocate from the Duke of Montrose's S. Case, p. 32. J; Vide infra, p. 403, note ". 
 
XXXU ANALYSIS OF THE ARGUMENT. 
 
 been insuperably persuaded that the Charter 14th Feb. 1487-8 was not an original grant, but a 
 Charter of Confirmation. 
 
 Observation. 
 
 The Noble Chairman, in the course of the discussion,- observed that " Sir Alexander Cunningham 
 " and his son held " the " property under a Charter that ought to have been destroyed by the Act 
 " Rescissory,^' — and that " it was not a private transaction, — it was a grant from James III. on 
 " the 14th February 1487-8 of the office of Sheriif of Stirling,' infra, pp. 240, 241,— which the 
 Claimant conceives to be precisely the truth. — The Claimant believes that the Lord Advocate's 
 mistake in holding that the resignation of the Erskines was " in favour " of the Cunninghams, the 
 basis on which he builds his theory that it was " a private transaction," originated from reading the 
 clause " Quodquidem officium . . Thomas Dominus Erskin et Alexander Erskin, suus filius et heres 
 " apparens, . . resignaverunt et sursum reddiderunt "' in connection with the clause that follows, 
 " Etc., cum omnibus feodis. ., pro toto tempore vite dicti Alexandri et Roberti," — as if it was all one 
 sentence, and Lord Erskine and his son had resigned the office expressly for the whole term of the 
 life of the two Cunninghams ; whereas the former clause represents the quodquidem clause, and 
 the latter, beginning with the " etc.," the tenendas- — which latter could merely have repeated, 
 according to ordinary usage, the dispositive clause at the beginning of the charter, viz. that the 
 King granted the Sheriffdom, which the Erskines had resigned, to the two Cunninghams for 
 their joint lives. 
 
 ii. Charter by James III. to the Burgh of Brechin, 28th April 1488, of the Small Customs 
 of the burgh, royal " heritage," (and thus struck at by the Act Rescissory,) and which 
 the burgh has ever since enjoyed, without confirmation, in virtue of the grant. — S- Case, 
 p. 42 ; Infra, pp. 132, 282.* 
 
 Objections by the Crown. 
 
 Attoenet- General. — " There are one or two other cases of trifling moment, in which it was not 
 " thought worth while to divest the parties of their estates."— /n/ra, p. 219. This is the mdy 
 notice taken by the Attornet-Generai, of the Brechin grant, and would appear to include also 
 the grants of forestry to CoUace and-Somyr, and of blench tenure to Gordon of Lochinvar. 
 
 Lord Advocate.— " The charter" to the Burgh of Brechin " was never registered. That the 
 " burgh . . might continue to levy customs contrary to law, and until the mere usage had made it 
 " law, . . is not in the slightest degree wonderful. The attention of the Crown was probably 
 " never called to the effect of this charter."— /ftz'^^. p. 240. And see the Appendix, infra, p. 405. 
 
 Eeplies. 
 
 It was a notorious grant, made at the critical time to a public body, bearing on its face for services at 
 the Battle of Blackness—yet never questioned (although the whole public had a clear right and 
 interest to dispute it, if invalid) : and the property conveyed by it (which was by no means 
 trivial or insignificant, but i contra, especially at a time when money was scarce and bore a high 
 value) has been enjoyed ever since, without any subsequent confirmation—as by the evidence of 
 David D. Black, Esq., of Kergord, the Town Clerk of Brechin, given in the ' Minutes of Evidence,' 
 pp. 17 sqq., and Appendix, infra, pp. 405-6. With regard to the objection hinted by the Lord 
 Advocate, many most important charters and patents were never registered ; and the Crown at- 
 taches the highest importance in this ease to a supposed patent of the Earldom of Glencairn in 
 1503-5, although expressly stating, in apology for its non-existence, that it was never registered. 
 Infra, p. 214. See the ' Observation ' at p. 405, infra. 
 
 OpmiON OF THE Committee. 
 
 This proof is entirely overlooked and passed over both by the Lord Chancblloe and by Lord St. 
 Leonards. 
 
 — Besides 
 iii. The Patent by James III. of the Earldom of Glencairn, 28th May 1488, adjudged by 
 the competent and paramount Court of Scottish law, the Court of Session, in 1648, not 
 to have been affected by the Act Rescissory— and which has been valid and in force, 
 with its relative precedence, ever since :— To be separately considered. 
 
 2. The following cases are adduced by the Crown, in answer to the Claimant's challenge, to prove 
 that the Act Rescissory did take effect : — 
 
 i. Charter by James III, 14th May 1488, to Alexander Lindsay, for good service at Blackness 
 and otherwise, of part of the lands of Baky, duly followed by Precept and Instrument of 
 
 * Printed in the ' Minutes of Evidence,' p. 114, and in the Appendix, infra, pp. 404, 405. 
 
ANALYSIS OF THE ARGUMENT. xxxiil 
 
 Seisin in his favour ; and Charter by James IV., 2nd August 1488, regranting the same 
 lands to John Lyon of Glammis. " It is true," observes the Lord Advocate, " that this is 
 " a grant prior to the date of the Rescissory Act. . . But the truth is, that it was the 
 " Proclamation that set this aside, as well as the other grants. The King dealt with this 
 " matter as being in his own hands from the date of the Proclamation." — Infra, p. 239.* 
 
 ii. Charter by James III., 24th May 1488, to James Innes of Innes, for good service at Black- 
 ness and otherwise, of the lands of Walkmylton, the Halch of Depil, &c. ; and Charters by 
 James IV., 28th June 1488 and 1st June 1490, to John Mawar and James Douglas of 
 Pittendriech, of the respective properties. In this instance, according to the Lord 
 Advocate, " the grant by James III." is treated simply as a nonentity. The feudal title 
 is "held not to have been in the grantee at all." — Infra, p. 240.t This resumption was 
 also, like the preceding, before the Act Rescissory. 
 
 iii., iv. The two grants of Kilgarry, in reward of good service at Blackness, already cited by the 
 Claimant, — the property being held by the Loud Advocate to have been regranted by 
 Confirmation in 1499-1500, subsequently to and in consequence of the Act Rescissory, 
 which otherwise would have affected it. — Infra, p. 239. 
 
 V. Charter by James III., 18th May 1488, to Sir Thomas Turnbull, for good service at Blackness 
 and otherwise, of the lands of Terinzean ; and Charter by James IV., 27th April 1497, to 
 Sir John Ramsay, for life, of the said lands, — as also a Charter by James V., 11th April 
 1534, to Ramsay of Balmain, of the same property : — " A clear and unquestionable illus- 
 " tration," observes the Lord Advocate, " of the effect of the Rescissory Act, because 
 " those very lands remained in the Crown till 1497," when they were regranted by James 
 IV., " shewing clearly that the other " (the grant of James III.) " was treated as an 
 " absolute nulhty."— /n/m, p. 240.$ 
 
 — And lastly, 
 
 vi. Charter by James HI., 20th May 1488, to James Dunbar of Cumnock, for good service at 
 Blackness and otherwise, of the lands of Tarves and Balnageith ; and Charter by James IV., 
 1st June 1501, to Janet Kennedy, for life, of the said lauds. In this instance also, 
 observes the Lord Advocate, " the grant " of James III. " is treated simply as a 
 " nonentity." — Infra, p. 240.§ 
 
 Replies. 
 
 In the case of the two grants of Baky and Walkmylton, Sec., lands granted by James III. a month before 
 his death are confiscated and regranted to other parties in June and August 1488 ; and these regrants 
 are adduced in proof of the operation of the Act Rescissory, passed in October that year! They 
 merely shew the exercise of power against law. The Proclamation, to the operation of which the 
 resumption is attributed, could not give legality to such spoliation, — and the Lokd Advocate him- 
 self admits this, as shewn supra, p. ix. — In the case of the two Confirmations (not regrants) of 
 Kilgarry, they have been shewn to be mere ordinary Confirmations, in recognition of the original, 
 valid, and subsisting rights. — With respect to the grants of Terinzean, Tarves, &c., it is impossible, 
 at this distance of time, to tell whether those lands may not have come regularly and lawfully into 
 the hands of the Crown between 1488, the date of the Act Rescissory, and 1497 and 150] , the date 
 of the regrants ; the continued subsistence of the two grants of Kilgarry and others (as proved) 
 confirms this presumption ; and at all events there is no necessity to resort to the Act Rescissory 
 under the circumstances. The rule In duhiis here applies. And, considering the injustice and 
 oppression which were admittedly rife at the period, it is equally possible, especially under the 
 circumstances casting such doubt on the operativeness of the Act Rescissory, that the lands in ques- 
 tion may have been simply seized by the Crown — the Act remaining invalid or non-applied. While 
 at all events, if these alternatives be rejected, the resumption, if such, must, on the argument of the 
 Crown, be attributed, not to the Act Rescissory, but to the later and intermediate Act (already 
 partly founded upon, supra, p. xiii) passed in 1493, by which all grants of lands (but not of dignities) 
 made by James III. within the proscribed period were absolutely, in express terms, and without 
 qualification, declared null and void — an enactment which would have been a work simply of super- 
 erogation unless the Act Rescissory had (as the Claimant contends) proved inept and inefliective, 
 
 * ' Minutes of Evidence,' Nos. 76 sqq. — See the Appendix, infra, p. ,507. 
 t ' Minutes of Evidence,' Nos. 85 sqq. — Appendix, infra, p. 507. 
 X ' Minutes of Evidence,' Nos. 80 sqq. — Appendix, infra, p. 508. 
 § 'Minutes of Evidence,' Nos. 83 sqq.— Appendix, infra, p, 509. 
 
 F 
 
xxxiv ANALYSIS OF THE AEGDMENT. 
 
 and which enactment would thus fully and naturally (so far) account for the resumption in the 
 case of the lands of Terinzean, Tarves, &c. here under discussion. 
 
 The result is, that, in answer to the Claimant's challenge to the Ckown to produce an example of the Act 
 Rescissory taking etfect on a grant of James III., they have produced two (or as it is contended, four) 
 subsequent to the unexceptionable Act of 1493, and two p?evious to the Act Mescissory — but not onb 
 
 BETWEEN THE DATE OF THE AcT ReSCISSOKT AND THE POSTEEIOR AcT OF 1493 nOt One wHch 
 
 fairly answers the Claimant's challenge, or in which the evidence supports the proposition of the 
 Crown that the Act Rescissory per se cut down all the grants of James III. If all fell, if any fell, 
 the fact must have transpired from the queguidems o? n&yi grants, in which the operation of rescissory 
 or revoking Acts is invariably and distinctly stated and set forth,* — but not one instance has been 
 discovered during the long and anxious researches recently made by the opponents of this claim. 
 Nor were any discovered during the eleven years' litigation, presently to be mentioned, between 
 the Earls of Glencairn and Eglinton in the seventeenth century. While, on the other hand, the 
 Claimant has proved (and the Crown has not ventured to deny) that grants made by James III. 
 under precisely similar circumstances to the Dukedom of Montrose did survive, unatfected by the 
 Act. He submits therefore, 
 
 (i) That if the Act cut down per se, by the mere force of its passing, all the grants of James 
 III., as contended by the Ckown, not one can have survived ; and, conversely, 
 
 (ii) That if any one can be proved to have survived, the Act cannot (by the concluding and 
 decisive Norfolk ratio, and otherwise) have taken effect on the others, and on the Dukedom 
 of Montrose in particular, in the manner asserted. 
 
 The Crown, finding itself bound in consistency to choose between these two alternatives, has chosen the 
 former ; but in so doing it admits on the one hand that in some instances it was not considered " worth 
 ^^ while to divest the parties of their estates," (which of itself implies a process of Reduction or 
 denudation, as necessary to give effect to the Act,) and on the other, as above observed, it is 
 reduced to found upon resumptions that required {by its own confession) to be subsequently legalized, 
 and upon grants made several years subsequently, not only to the Act Rescissory, but to the 
 unexceptionable Act o/'1493.f — Infra, pp. 276 sqq. 
 
 Observation. 
 
 As with respect to the Balnamoon, Balyordie, Lochinvar, Polmaise, and Brechin proofs adduced 
 by the Claimant on the present head, neither the Lord Chancellor nor Lord St. Leonards 
 take the slightest notice in their Speeches of the preceding evidence tendered by the Crown 
 — except in so far as they admit, generally, that the Proclamation could not legally destroy 
 the grants of James ;III. — apologise for the illegal resumption of the Baky and Walkmylton 
 grants before the Act Rescissory as having taken place " after the Proclamation, with the inten- 
 " tion of the Crown and with the knowledge of the Crown, that those grants would be defeated 
 " by Parliament" — admit by taciturnity (that is, by entirely ignoring the remaining cases alleged 
 by the Crown, in which property granted by James III. in 1488 was regranted by James IV. in 
 1497, 1499-1500, 1501, &c.) the Claimant's argument from the existence of the intermediate Act 
 of 1493 — and admit moreover (by taking no notice of it) an argument, to be more particularly 
 enforced hereafter by the Claimant, arising from the absolute and utter silence as to the Act 
 Rescissory in the quequidems of contemporary or later charters, a silence quite unaccountable except 
 on the Claimant's view, that the Act was a dead letter ab initio. 
 
 (glenraiin Case. 
 
 3. Case of the Earldom of Glencairn, granted, with the lands of Drummond and Duchray, by- 
 James III. to Alexander Lord Kilmaurs " at heredibus suis," by patent 28th May 1488, and thus infiari 
 casu with the Dukedom of Montrose, although unattended by the specialties which favourably distinguish 
 the latter. The Earldom and the Dukedom were the only peerages granted by James III. 
 WITHIN THE PROSCRIBED PERIOD. And the Claimant's proposition is, that the Earldom descended 
 de jure and de facto IN THE Glencairn family in virtue of this Patent, unaffected by the Act 
 Rescissory, being especially recognised by the Crown and the Supreme Court of Scotland as existing in 
 virtue of the patent in 1515-6 and 1516-7, and by the Crown in 1550, in 1630, and in 1637 ; that the 
 
 * Vide infra, p. cxvi. 
 
 t There is this further observation to be made with respect to the two grants of Kilgarry, to the grant of Tarves and Balna- 
 geith, and to that of Walkmylton, &c., that these grants were only conditional on continued fidelity on the part of the gi-antees and 
 their vassals to James III. during the remainder of the civU war. The words of provision in the Kilgarry charters are as follows — 
 " Vummodo diotus Tlumas ncbisfideliter deserviat, et qwd nobiscum cum suis senitoribus durante toto tempore instantis discordia commoretur 
 " et remaneat,"—m the charter of Tarves and Balnageith, " Tarn proviso etiam quod diotus Jacobus Dunbar nobis fideliter deserviat 
 •' et quod nobiscum," &c.,— and in that of Walkmylton, " Proviso etiam quod dictus Jacobus Innes nobis fideliter " &c— the con' 
 eluding words being the same in both cases as in the Kilgarry grants.-Even more might be said on the subject 'of some of these 
 grants— especially on that of the grant to Innes of Innes— but it is unnecessary under the circumstances. 
 
ANALYSIS OF THE ARGUMENT. 
 
 XXXV 
 
 VERY QUESTION OF TirE EFFECT OF THE AcT RESCISSORY (as now before the Committee) was raised and 
 
 COMPETENTLY DECIDED IN FAVOUR OF THE GlENCAIRN PaTENT IN THE SEVENTEENTH CENTURY ; and that 
 
 THE Earls of Glencairn held precedence over the Earls of Eglinton upon that decision and 
 IN virtue of that Patent till the year 1796, when the late Earl died and the dignity 
 became dormant.— Case, pp. 63 sqq. ; S. Case, pp. 43 sqq. ; Infra, pp. 7, 33 sqq. ; 136 sqq. ; 298 sqq.* 
 
 General Proposition and Objection by the Crown. 
 
 Attobney-Genebal. — " The Glencairn Peerage, like the Montrose Peerage, was struck at and struck down by 
 " the Act Rescissory, and . . it was only revived by a subsequent and bntibely new gbant. Here again the 
 " facts have been most imperfectly and insufficiently brought before " the Committee, and the Ceown will 
 " have to supply a body of testimony on this subject."— /n/)-a, p. 209. 
 
 1. The Glencairn Patent, 28th May 1488, is still in existence, although ordered to be brought in 
 and destroyed by the Supplementary Act 15th Feb. 1489-90, already mentioned. It was produced (from 
 the Glencairn charter-chest) and received in evidence without question in the Glencairn claim in 1796-7.t 
 —Case, p. 63; S. Case, p. 43; Infra, pp. 33, 137, 407, n. t- 
 
 Observation. 
 
 No objection is raised either by the Ceown or the Committee to the fact that the Glencairn Patent was duly and 
 validly granted. On the contrary, Earl Alexander is always spoken of as Earl of Glencairn. — The only 
 exception to this occurs in a parenthesis of Loed St. Leonaeds' Speech, in which he speaks of the original 
 grant — " if there was such a thing" — being ratified by Charles I. — Infra, p. 365. 
 
 2. Earl Alexander, the patentee, was killed at the Battle of Stirling, before his inauguration, and 
 
 (as in the Norfolk case, which is parallel to that of Glencairn throughout) his heirs did not bear the title of 
 
 Earl for several years. Cuthbert Earl of Glencairn, his grandson, appears as Earl in an Act of the Lords 
 
 of Council and Session 12th May 1504, and in a Sederunt of Parliament 18th November 1505. It was not 
 
 the usage, as the Claimant has proved, to assume a title till after the inauguration by belting and its 
 
 attendant ceremonies, which frequently was delayed for months and even years. — S. Case, pp. 44, 62 sqq. ; 
 
 Infra, pp. 33, 41, 137. 
 
 * Pedigree. 
 
 .Alexander, 1st Earl of Glencairn, the Patentee in 1488. 
 
 Robert 2nd Earl of Glencairn. 
 
 Cuthbert, 3rd Earl of Glencairn, served heir to Earl Alexander, his grandfather, in 1515-6. 
 
 William, 4th Earl of Glencairn. 
 
 Alexander, 5th Earl of Glencairn. 
 
 William, 6th Earl of Glencairn. 
 
 I 
 James, 7th Earl of Glencairn, obtamer of the Decreet 1610 (reduced 1617), and of the Eetour in 1630. 
 
 I 
 William, 8th Earl of Glencairn. 
 
 William, 9th Earl of Glencairn, obtainer of the Eoyal Ratification in 1637, and of the Decreet 1648. 
 
 I 
 Alexander, 10th Earl of Glencairn. 
 
 Margaret, Countess of Lauderdale, 
 
 HEIR OF LINE, 
 
 m. John, 5th Earl of Lauderdale, 
 and t 1740. 
 
 John Lord Maitland. 
 
 Jean, only child, m. Sir James Fergusson, Bart. 
 
 of Kilkerran. 
 
 I 
 Sir Adam Fergusson, Bart, of Kilkerran, 
 
 Claimant (as heir female) in 1796 ; 
 
 great-grandfather of the present 
 
 Sir James Fergusson, Bart., 
 
 of Kilkerran, 
 
 IIEIE OF LINE. 
 
 John, 11th Earl of Glencairn, 
 
 HEIE MALE, 
 
 successor to his brother under 
 the limitation " heredibus suis " 
 in the patent 1488. 
 
 William, 12th Earl of Glencairn. 
 
 I 
 William, 13th Earl of Glencairn. 
 
 I 
 
 James, 
 14th Earl of Glencairn, 
 + s. p. 
 
 I 
 John, 
 
 15th Earl of Glencairn, 
 
 t s. p. 1796. 
 
 Andrew Cunningham, 
 ancestor of the 
 House of Corsehill. 
 
 Sir Walter Montgomery 
 Cuninghame, Bart, of 
 Corsehill, heir male, 
 and opponent as such, 
 in 1797; uncle to the 
 present Sir Thomas 
 Montgomery Cuning- 
 hame, Bart., 
 
 HEIR MALE. 
 
 t The Patent is printed in the ' Minutes of Evidence,' p. 26, and in the Appendix, infra, p. 407. 
 
 F 2 
 
sxxvi ANALYSIS OF THE ARGUMENT. 
 
 Objection by the Ceown. 
 
 Attoknet-Gbneeal. — Robert, the " son and heir " of the patentee, "sat in the Parliament which passed the 
 " Act Rescissory, . . not . . as Earl of Glencairn " but "as Lord Kilmaurs." He is " served heir to his 
 " father . . in the lands and barony of Reidhall . . on the 24th November 1488," " immediately after the 
 " passing of the Act Rescissory," shewing that " the acknowledged operation of that Act upon his own title 
 " was considered to leave him with the inferior title of Lord Kilmaurs."* " He continues in the Rolls of 
 " Parliament, and in the various records of that period, to be styled Lord Kilmaurs," and "never in atsingle 
 " instance Earl of Glencairn," " till his death, which took place in 1492." — And, in like manner, Cuthbert, 
 eldest son and heir of Robert Lord Kilmaurs, is styled Lord Kilmaurs and not Earl of Glencairn till the 13th 
 March 1498 and the 19th July 1503 inclusive. All this is proved by a series of legal documents, some of 
 them subscribed ' Cuthbert Lord Kilmaurs,' and others with the seal appended, bearing the legend ' S. Cuth- 
 ' berti Domini Kylmaurs.' f — Nothing can shew more strongly the operation of the Act Rescissory. The 
 son and heir of Alexander Earl of Glencairn, the patentee in 1488, thus "acknowledges himself" to be 
 " Lord Kilmaurs" only.— Infra, pp. 209, 211, 242. 
 
 Reply. 
 
 The Claimant in no wise questions the preceding evidence as adduced by the Ceowk, inasmuch as the /act of non- 
 assumption from 1488 to 1503, which it is adduced to prove, is part of his own case, as proving that non- 
 assumption by the heirs of David Duke of Montrose — as in the Norfolk and other innumerable instances — is 
 no bar to the present claim. Non-user is not of the slightest weight in Peerage Law. — There is no proper 
 proof that Robert Lord Kilmaurs sat in the Parliament of October 1488 — but on this point, and the inferences 
 drawn from it by the Crown, vide infra, p. 410, n. ' and f ; 526, 527. At best the point is of minor 
 importance. There is no doubt that the family sat as Lords Kilmaurs, only, in later Parliaments. 
 
 Opinion of the Committee. 
 
 LoEi) Chajtoellok. — " Exactly the same series of facts occurred " in the Glencairn ease " as those which occurred 
 " with regard to the Dukedom of Montrose." The fact of non-assumption, alleged and proved by the Ciiowif 
 (as above), affords " a most extraordinary confirmation of the suggestion that everybody understood that the 
 " Earldom of Glencairn was annihilated by" the Act Rescissory. Why did Cuthbert always "describe 
 " himself as Lord Kilmaurs, if it was not understood that the Earldom of Glencairn had been abolished and 
 " annulled, cassez et adnullezf And what is " not . . at all an unimportant thing is this, . . that he had 
 " a seal engraved by that title, — it could not have been his ancestors' seal, for Robert was his father and 
 " Alexander his grandfather, but he must himself have had a seal engraved . . a large seal, as big as a crown 
 "piece . with the title 'Sigillum Cuthberti Domini Kilmaurs.' J Under that title he sat in Parliament, 
 " executed deeds, and in short did every act that could be done." — Infra, pp. 331, 332. 
 
 LoBD St. Leonards. — The Earldom of Glencairn " exactly " tallies " in all its circumstances with the Dukedom of 
 " Montrose, . . it exactly follows the same fate." The son of the patentee " sat in that very Parliament of 
 " 1488, and he sat by the title of Lord Kilmaurs. Can any one persuade me that if he was entitled to the 
 " Earldom of Glencairn, he would not have taken that title ? He . must have known that he had no right 
 " to it.'' " He never affected to assume the title of Earl of Glencairn.'' — Irfra, p. 362. 
 
 Observation. 
 
 The Noble and Learned Lords overlook the fact that it was not the usage to assume a title till the inauguration by 
 belting and its attendant ceremonies had been completed,§ and also the argument arising from the parallel 
 non-assumption in the case of the Dukedom of Norfolk. The non-assumption was probably owing to dread 
 of James IV. and tlie ascendant faction, precisely as in the case of the Mowbray heirs between 1399 and 
 1425.11 With respect to the Loed Chanoblloe's argument that the seal of Lord Kilmaurs, as adduced, is 
 evidence that his true title was Lord Kilmaurs and not Earl of Glencairn, the same (if so) applies d /ortt'on" 
 to David Duke of Montrose, who, it will appear, took the style of Duke on his seal, and appended that seal 
 to a document addressed to the King himself, which seal was inspected by the Crown officers in presence of 
 the King, and acknowledged to express his true rank and to give authority to the document it was appended 
 
 * This Eetour is cited in the Duke of Montrose's Case, p. 22, but, so far as can be judged of from the extract there given 
 Robert Cunnmgham, the son, is not even styled ' Lord Kilmaurs ' (the title to -which he had undoubted right) offer being served his 
 father's heir. The document, although founded upon as above by the Crown, has not been adduced in evidence. 
 
 t ' Minutes of Evideuoe,' Nos. 88 sqq.— They are enumerated in the Appendix to this volume, infra, pp. 410 sqq. 
 
 % The Lord Chancellor observed upon this, in the course of the Attorney-General's Speech, " Is it not worthy of 
 " observation, that though a person might designate himself, or be designated by others, by an inferior title, it is not likely that 
 " having a seal engraved, it should bear anything else but the proper title ? "_To which the Attorney-General replied " That is v,.rv 
 " true, my Lord."— /n/ra, p. 211. ^ ' ^^''^"■"'-rj 
 
 § It is remarkable that the original Glencairn Patent, which was only seen by the Claimant at the last moment fthe Claimant 
 having depended upon the 'Minutes of Evidence' in the Glencairn claim 1796-7, where it is inserted), is endorsed in a hand of thp 
 sixteenth century, " The priucipall Charto' of Drummond and Duichraye to auld Alex^ Erie of Gle,ioam, dyed before saistn'' 
 —that is, before feudal inauguration,— thus conarming the Claimant's argument. 
 
 II This is asserted, as fact, in the Norfolk case, by Dr. Lingard, in his History of England, as quoted infra, p. 329, n. §. 
 
ANALYSIS OF THE ARGUMENT. xxxvii 
 
 to, and on which document, so "munitum"or fortified, the King subsequently acted. The seal of Lord 
 Kilmaurs, appended merely to private documents and not coming before the Crown, is of much inferior 
 consideration. On this point vide infra, p. 332, n. f. 
 
 3. It is said to have been stated by a subordinate English herald, named Young, in a MS. printed 
 in the last edition of Leland's ' Collectanea,' that Cuthbert Lord Kilmaurs was belted as Earl of Glencairn 
 at the marriage of James IV. in 1503. The passage is as follows :— 
 
 " At the offrynge wer assembled three noble Lords to be maid Erles in the Qwene's Presence ; 
 " and when the Masse was done, they wer presented to the King by Marchmont, Herawld. 
 " Fyrst, they promysed to hold ther Othes, and then the Kinge gyrdled them with the 
 " Swerd abouife their Schoulder, and gaffe them their Lordschips to them and to their 
 " Heires. 
 
 " Then Mercheniont, Herauld, togeder with his Companions, cryed Largesse in the self place ; 
 " and, 
 
 " Fyrst. Largesse, Jamys {_Conte] D'Arene, Lord of Hamylton, Baron, Banerett, and Lord 
 " of Parlement. 
 
 " 2ndly. Largesse, William Conte de Montros, Lord of Granne \_Grame], Baron, Banerett, 
 " and Lord of Parlement. 
 
 " 3rdly. Largesse, Cuthberd Conte de Glencarne, Lord de Kylmarres, Baron, Banerett, and 
 " Lord of Parlement. 
 
 " At the hour customed," " after Dynnar," " the Kyng and the Company beforesaid went 
 " to Even Song, and sum Knights, to the nombre of xxvi, should have been maid, bot 
 " for that that the Qwene was not there, they wer put off to the next day for the Luffe 
 " of hyr." * 
 
 — This statement having been misunderstood and misrepresented by the Lord Chancellor Loughborough, 
 in his speech on moving the Resolution in the Glencairn claim in 1797 — Lord Loughborough having 
 inferred from it, and asserted as a fact, that the Earldom of Glencairn was constituted in 1503, for the first 
 time, by the act of ' belting,' simply, without a patent — and inferences being now drawn from the said state- 
 ment (as will appear) prejudicial to the present claim — the Claimant protests against its admission as evidence, 
 and for these reasons : — That it is only known from a book published as late as 1774, where it is stated to be 
 printed " From a Manuscript late in the possession of John Anstis, Esquire, Garter King at Arms," — 
 there is no proper evidence (whether by signature or assertion in the printed copy or otherwise) that the MS. 
 was by the person to whom it is ascribed, — neither the MS- nor the printed book was adduced as evidence 
 before the Committee of Privileges in 1796-7, who had therefore no opportunity of testing or expressing their 
 opinion upon it, — it was first adduced, andargued upon, and turned to account, by the Lord Cliancellor himself. 
 Historical evidence infinitely superior was disregarded in the Marchmont claim, and in the recent Crawford 
 claim. The Claimant has a right to expect equal measure, and that what was denied him when to his advan- 
 tage in the Crawford claim will be denied to the Ceown when alleged to his detriment now. Rut having 
 made this protest in self-defence, he cheerfully accepts the preceding statement as an historical narrative of 
 what may possibly have taken place, viz. the inauguration or investiture of Cuthbert Lord Kilmaurs in 1503 as 
 Earl of Glencairn in right of the original and only patent 28th May 1488. The Claimant has proved 
 in his Case, and it is not denied, that a title was not assumed formerly till after the inauguration or (as it 
 was called) the " Act of Creation," — that the expression " maid Erlis " is the technical phrase to express 
 that act of inauguration, — that the words " gaffe them their Lordschippis " (a word constantly applied to 
 an Earldom as well as a Barony) " to them and their heirs " imply the delivery of the patents, or 
 charters, containing the hereditary limitation, apart from which patents that hereditary limitation could 
 not transpire or be known — and which patents were always given into the hands of the grantees as one of 
 the ceremonies of inauguration,! — that, while the Patents of the Earldoms of Montrose and Arran are extant 
 in the Great Seal Register,:f there is no registration there of a Glencairn Patent of that date, the original 
 
 * Collectanea, edit. 1770, vol. iv. p. 300. — And see the Appendix, infra, p. 412. 
 
 t The delivery of the patent was in fact the last and crowning act of investiture — it appears as such in everyone of Selden's 
 numerous descriptions of the inauguration of dignities; and the engravings of peers in their robes and coronets of inauguration that 
 accompany his text all represent the patent as held iu the hands of the inaugurated peer. The same fact is proved by the Certificate, 
 16th September 1605, of the inauguration, or " act of creation," of the Marquisateof Huntley in 1599, as printed in theS. Orise, p. 154. 
 
 I For the Montrose and Arran patents, as adduced by the Crown, see the Appendix, infra, p. 413. 
 
xxxviii ANALYSIS OF THE ARGUMENT. 
 
 Patent 28th May 1-4SS being the only one in existence or that has ever been heard of, — and lastiy, that 
 the creation of knights (as noticed in the above narrative) was a ceremony invariably attendant on the 
 inauguration of dignities.— >§. Ca.se, pp. 59, 63 sqq. ; Infra, pp, 60, 61, 158, 163. 
 
 Objections by the Ceown. 
 
 ATTORNEr-GENEEAL.— The Committee are "asked to dismiss" this evidence of the herald Young "as if it 
 " were merely a legend of romance." It is not " quite certain that" it "can be asserted in absolute terms" 
 " that belting is not a mode of creating an Earldom in Scotland." " Belting is expressly referred to . .in 
 " an Act " of Parliament " of June 1592 . . as one of the most solemn forms of the creation of an Earl." 
 But even though the ' belting' of the Earl of Glencairn " may be considered as a form of investiture only," 
 still, finding the Earldom of Glencairn assumed immediately afterwards, "in 150,5," "the fair inference 
 " would be" that "at that time he was created Earl, and that there must" have been " a contemporaneous 
 " charter, which accounts for the belting of a man who had up to that time never claimed the title of Earl," — 
 that "in the interval between 1503 and 1505 something had been done by the Crown which created" 
 Cuthbert Lord Kilmaurs " Earl of Glencairn." " The charter has been lost, and, what is very curious, the 
 " charter never has been entered upon the Register."— J^z/T-a, pp. 211, 212. And see the Appendix, infra, 
 p. 412. 
 
 Lord Advocate. — " On that occasion" . . " the Earl of Arran gets the charter the day before the date that the 
 " Somerset herald attributes to the belting," — " the Earl of Montrose's charter . . was granted in March 
 " 1504, and then Lord Glencairn, though he does not get a charter at that time, gets a charter," the Lord 
 Advocate thinks, " in 1507, of certain lands, under the title of Lord Glencairn." And again, — " We have 
 '■ evidence — not of a charter — but evidence conclusive that Glencairn was Lord Kilmaurs down to 1503, and 
 " then he was belted Earl. Whether a charter was granted or not at that time " the Lord Advocate does 
 " not know. Probably there was. It was the occasion of the installation of his dignity." — Infra, p. 243. 
 
 Eeplies and Eemaees. 
 
 The Act 1592 affected merely the peerage of Spynie, not an Earldom but a Barony, and which had already been 
 constituted by a regular charter or patent, containing the limitation, dated the 6th May 1590, and on which 
 belting had taken place in Parliament. Vide the S. Case, Addenda, pp. 217'^ sqq. ; and iiifra, p. 159.* The 
 Claimant agrees with the Crown in considering ' belting' " one of the most solemn forms of creation," but it 
 was a mive form, accessary to the written patent, as will be more fully shewn in its proper place {infra, p. Ixiv). 
 
 The Ckown, it is to be observed, admit that the ceremony described by Young was the "investiture," the 
 " INSTALLATION," of the dignity — grant that it must have proceeded upon a Patent — and, being persuaded 
 that the Patent of 1488 had been destroyed by the Act Rescissory, argue by " inference" and as Ol proba- 
 bility that a contemporary patent must have been passed in 1503 — but which is not preserved in the family 
 charter-chest, which is not enrolled in the Great Seal Register, of which there is no notice or memorial what- 
 ever, and of which (in a word) the Lord Advocate confesses there is no "evidence." — While the same 
 " inference," on its being mooted two centuries ago, was repudiated bj' the Supreme Civil Court of Scotland, 
 as will appear presently. — Infra, pp. xlv, Ix, Ixvii.f 
 
 • The Act alluded to, of the 5th June 1592, " concerning" (as by its title) " the erectioun of Kirk-landis and teyndis in 
 " temporall Lordschippis," " deelairis " such erections as had taken place since the Act of Annexation 29th July 1587 " to be null 
 " and of na effect" — but with the reservation, " Exceptand alwayes, lykas our said Soverane Lord and Estaittis abone writtin 
 " expreslie exceptis and reservis, all erectionis, charteris, and infeftmentis grautit " (that is, in the past sense) " be his Hienes of sic 
 " pairtis and portionis of the Kirk-landis already erectit in temporall Lordschippis and Baronies to sic persoun or persounes as hes 
 " already sen (since) the said lait Act of Annexatioun" (that is, since the Act 1587) " ressavit the honoris, ordouris, and estaittis of 
 " Lordis of Parliament he the solemprie forme of beltinrj and utheris ceremonies ohservit in sic caissis, and lies sensijne enterit and sittin in Par- 
 " liament as temporal Lordis, voitit in Parliament and Articles, ressavit and admittit to that effect," {Acts, vol. iii. p. 544,) — within which 
 category, as Above mentioned, fell the Barony of Spynie, as created by patent 6th May 1590 — and which was in fact the only case 
 of an erection of Church lands into a temporal Lordship which had taken place since 1587. — It is remarkable that the Spynie patent, 
 erecting the Bishopric of Moray into the temporal Lordship of Spynie, thus respected and excepted by the preceding Act, was 
 granted in the face of and in direct opposition to an Act (that of 29th July 1587) annexing the temporalities of all Bishoprics to the Crown 
 and prohibiting their alienation ; and was thus more unfavourably circmnstanced than the Montrose patent \ith May 1 488, which had nothing 
 of the kind to struggle with when it passed, the Act Eesoissory having only been enacted five months afterwards. Nevertheless inaugu- 
 ration duly followed upon the Spytiie patent, necessarily including the usual ceremony of belting or ' cinctura gladii,' on the 4th No- 
 vember 1590, as by contemporary evidence, and Lord Spynie took his seat in Parliament under it on the 6th August 1591, being then 
 ranked as lowest of the hereditary Lords of Parliament, under the specific title of ' Spynie.' The Act of Annexation 1587 was thus 
 inoperative, like the Act Eesoissory 1488. See 'Concluding Observations,' infra, p. cxlii, and ' Case of the Barony of Spynie' in the 
 Appendix, infra, pp. 561 sqq. 
 
 f The charter of 1507, cited by the Lord Advocate, is a grant, dated the 7th February 1507-8, " Cuthberto Comiti de 
 " Glencarne, Domino Kilmairis" of the lands of Hilton, formerly belonging to the Glencairn family, but which had been 
 recognosced in consequence of alienation of the lands without the Koyal permission, — it had nothing whatever to do with the creation 
 of the Earldom of Glencairn. The Lord Advocate may possibly have intended to refer to u, charter, dated the 24th July 1511, 
 described in the schedule of evidence in the Glencairn and Eglinton Decreet 19th January 1648, as " Carta," &c. " of the Erledmfie 
 " and Baronie of Glencairne, quhilh Erledome was recognoscit and be the said new charter is of new uneit and erectit in ane frie Erledome," 
 {infra. Appendix, p. 452). This charter, however, distinctly proves the previous existence of the Earldom. It is a Regraut of the whole 
 Glencairn patrimony, under the Great Seal, to Cuthbert Earl of Glencairn upon a Decreet of Recognition of the same in favour 
 of the Crown for unlicensed alienation of lands, &c. It runs as follows: — "Jacobus . . &c. . . Sciatis nos dedisse . . Cuthberto 
 " Comiti de Glencarne etMariote Douglace, ejus sponse, in vitali redditu, et . . Willielmo Cunynghaim, filio et heredi apparent! dictorum 
 " Cuthberti et Mariote, in feodo et hereditate, omnes et singulis terras Comitatus et baronie de Glencarne, viz.," &c. &c. " Quequidem 
 " terre . . in manibus nostris recognite fuerunt oh alienationem majoris partis earundem per ipsos et eorum predecessores absque 
 " consensu, licenti^, aut confirmatione nostri aut predecessorum nostrorum desuper obteutis ; . . Et quasquidem terras dictorum 
 
ANALYSIS OF THE ARGUMENT. xxxix 
 
 Opinion of the Committee. 
 
 Lord Chancellor.— " We know that there is a charter" creating the Earldom of Arran in 1503. " We have 
 " also contemporaneous history to guide us " — the herald Young's narrative ; " we cannot entirely reject the 
 " information we gain from antiquarian books" — but, supposing "this for a moment to be but doubtful 
 " evidence, that is, doubtful whether it is what we could legally accept,'' still it " says that three noblemen 
 " were created" — Arran, Montrose, and Glcncairn. "We know" also "that the ancestor of the present 
 " Duke of Montrose was then created Earl of Montrose. We then find that from that time . . Lord 
 " Kilmaurs,'' always previously so called, "is again designated Earl of Glencairn ;" and " from that time 
 " downwards all his descendants" have been " called Earls of Glencairn." " What is so extremely natural 
 " as to imagine that if he had made his peace again with the Grown, the King would give him back his title 
 " of Earl of Glencairn and create him Earl of Glencairn ? The fact that we do not find the grant," that is, 
 the charter or patent assumed to have been granted in 1503, " seems to me perfectly immaterial. We all 
 " know very well that we should be thrown into difiiculties as to many of our possessions, if the circumstance 
 " of a grant 350 years ago not being forthcoming were considered important. We should be acting upon 
 " principles which, in fact, do not guide us in the ordinary circumstances of life. Therefore . . what 
 " happened to the Earl of Glencairn after the passing of the Act Rescissory is just exactly what you would 
 " have anticipated. He is always called from that time Lord Kilmaurs ; he has none of the property ; . . 
 " he sits in Parliament as Lord Kilmaurs ; he has his seal engraved as Lord Kilmaurs, — and so he continues 
 " down to a period just after the time at which nothing could be so probable as that he should be again 
 " created Earl of Glencairn. From that time we hear him called Earl of Glencairn. Is not the inference 
 " almost irresistible that . . Lord Kilmaurs was . . then . . created Earl of Glencairn ?" — Infra, pp. 332 sqq. 
 
 Loed'St. Leonards. — " We have a right here to look at history. We find in Leland a most elaborate account 
 " of the solemnities upon the marriage" of James IV. " He tells you that the King called three persons to 
 " new dignities,'' &c. . . " Here was a clear creation, wanting the patents." " Lord Kilmaurs," who had 
 been Lord Kilmaurs only till 1503, " when created Earl of Glencairn, at once takes his title,'' &c. — 
 Infra, pp. 363, 364, 365. 
 
 Observation. 
 
 The Chairman remarked in the course of the discussion, " Would it not be possible that this was the case? 
 " There can be very little doubt that Parliament intended the Act Rescissory to strike at those titles. The 
 " question is, whether, the Act having struck at those titles. Lord Kilmaurs might not have kept his patent in 
 " his pocket, and declined to take his seat under it, because he knew that, if he produced it, it would be 
 " destroyed by that Parliament which had passed the Act Kescisswy? The patent might have been kept 
 " hack till he could produce it safely and take his seat upon it. There is no reason why a person sitting 
 " under an inferior title should not have a right to a higher one." Infra, p. 213. — This is precisely what 
 the Claimant believes to have been the fact. 
 
 4. Cuthbert Earl of Glencairn was, on the 15th January 1515-6, at Dumbarton, served heir of " um- 
 " quhile (the deceased) Alexander Erle of Glencarne, his grandtschire," or grandfather, the patentee 
 in 1488, both in the superiority and feu-farm right of the lands of Drummond and Duchray, granted with the 
 dignity (for the first and only time) by the patent 28th May 1488. And the ' Liber Responsionum,' or record 
 of the official proceedings of the Scottish Sheriffs, attesting the fees and casualties they drew on behalf of the 
 
 " Comitatus et baronie de Glencarne . - univimus, annexavimus, incorporavimus, creavimus, et ereximus, et hllc present! carta 
 " nostra unimus, annexamus, incorporamus, creamus, et erigimus in liberos Comitatum et baroniam, omnibus futuris temporibus 
 " Comitatum et baroniam de Glencarne nuncupandos." — Upon which two things are to be remarked : — 
 
 i. That the term ' Comitatus ' denoted, by technical Scottish usage, the estate belonging to a famihj of Earls,- even although 
 that estate had not been erected into a ' Comitatus ' — as for example in the case of the Crawford family, whose estates are 
 always described as the ' Comitatus ' of Crawford, although their principal fief (Crawford) always remained a barony ; 
 in the case of the Douglasses Earls of Angus, and in others. In this manner the mere fact of Kilmaurs and the com- 
 ponent parts of the estates of the Cunningham family belonging to an Earl would annex the Comital appellation to 
 those estates without any erection ' in Comitatum.' 
 
 ii. That in the Glencairn case, the estates (appertaining to Cuthbert Earl of Glencairn and his predecessors) are, in precise 
 accordance with this ztsage, described as the ' Comitatus de Glencarne' at the very outset of the preceding charter, before 
 the quequidem clause of novodamus and incorporation of those estates " in Comitatum," — which previous mention proves 
 per se the anterior existence of the Earldom — from which alone under the circumstances the epithet ' Comitatus' could have been 
 
 — Neither the charter of 1507 nor that of 1511, therefore, was the constituting patent or charter of the Earldom of Glencairn. 
 There is no trace of any such charter or patent except that of 1488, which ex necessitate was the true and regulating one. The charters 
 in question are printed in the Appendix, infra, pp. 502, 503. 
 
 It may be added, that the family of Glencairn were in full possession of their estates in 1503, when Earl Cuthbert was 
 inaugurated, and when, if the patent 1488 had not been the groundwork of that inauguration, he might, and would necessarily 
 indeed, have received a second patent. His right to the estates was only questioned afterwards, when James IV. raised actions of 
 recognition, for state reasons, recommended by Henderson of Fordell, the Lord Advocate, against almost all his vassals (as proved 
 by innumerable notices in the contemporary records) — which actions were however not pushed to extremity, hut soldered up, as in 
 the case of Glencairn, doubtless (as in similar cases) for pecuniary considerations. The circumstance of the recognition moreover 
 additionally proves that the charter 1511 was not the constituting Glencairn patent, because the recognition is the only inductive 
 cause assigned for granting the charter — there is not the slightest allusion to the marriage of James IV. with Margaret of England, 
 as in the Arran patent of 1503, and far less to the Act Rescissory as having cut down the original grant, or to any new creation 
 of the Earldom (since 1488) — which thus cannot he nresimied under the-circumstances, and is actually disproved. 
 
xl 
 
 ANALYSIS OF THE AEGUMENT. 
 
 Crown, (produced by the Claimant,) bears that infeofFment was given " Cuthberto Comiti de Glencarne, 
 " Domino Kilmawris, de eisdem," under date 20th January 1515-6 * No trace of the Act Rescissory 
 therefore is discoverable with reference to the Earldom of Glencairn at this ancient epoch, from 1488, the 
 date when it passed, to 1515-6 inclusive— hnt e contra. And if the Act Rescissory had been operative, 
 (as contended by the Crown,) the title of Earl of Glencairn would not have been sanctioned for a 
 moment in the case either of Earl Alexander, retrospectively, or Earl Cuthbert {both holding under the 
 rescinded patent of 1488) ; nor would Earl Cuthbert have been entered in the lands in question. A 
 summary and conclusive objection would have 6een taken on the part of the Crown, or public officers, viz. 
 that the Act Rescissory had annulled the grant of 1488, both as respected estates and honours; and this 
 objection, if relevant and good, would have barred and precluded any future proceedings, and have con- 
 solidated the entire property in question in the Crown. It may be added, that it was a matter of the 
 greatest difficulty to obtain brieves from the Chancellor, as witnessed in the instance of John Earl of 
 Lennox, who, in reference to his portion of the Earldom (or patrimony) of Lennox, vainly endeavoured to 
 obtain them froni 1469 to 1473.t The very fact of Earl Cuthbert's infeoffment under the patent 1488 
 proves that he had sat under that patent, and no other, from his inauguration in 1503 to 1515-6. 
 
 Having, however, discovered certain flaws and exceptions attaching, as it was conceived, to Earl 
 Cuthbert's Retour and investiture in the above lands, an action of reduction of them was raised in 1516-7 
 at the instance of the Sovereign, James V., and of Lord Drummond and Dormond MacPherson, having 
 an antecedent interest as vassals, before the Supreme Civil Court ; and the record of the procedure deserves 
 special attention as bearing materially upon the present question. % 
 
 The summons of reduction or "of error" (as it is called) is raised against the acting Sheriffs 
 and members of the inquest for " serving of ane breif of inquest in the Tolbuth of the burgh of 
 "Dunbertane" (15th January J 515-6), "apoun the landis of Drummond and Duchra," " impetrat be 
 ^^ Cuthbert Erie of Glencarn" "be the deceiss of umquhile Alexander Erlb of Glencarne, his 
 " grantschir." 
 
 It is evident, and will be admitted by all versant in the ancient style and practice of Scottish legal 
 procedure, that, if the least doubt or scruple had been entertained as to Earl Alexander s right to the 
 Glencairn dignity, he never woiild have been so broadly, fully, and unqualifedly designated or admitted as 
 Earl, especially on such an occasion. The knoion technical qualification, in that event, of " allegit " Earl, 
 or who '■'■ pretendit " to be Earl, or who was " callit " or " sty lit " Earl of Glencairn, would infallibly have 
 been added, as corroborated by a subsequent entry in the process, presently to be noticed. § 
 
 From the grounds of the Action of Reduction in question, it is clear that every effort was made 
 and legal exception urged, whether justly or unjustly founded, to effect the main object and dispossess 
 Earl Cuthbert (the defender) of the properties into which he had been at once entered, and of which (as 
 can be proved) he had drawn the rents. These grounds were, 
 
 i. Because Andrew Galbraith and John Lyon, "allegit" Sheriffs Deputes, were not competent 
 or legally authorised to act as Sheriffs or judges in the service. Here, in confirmation of 
 what has been just remarked, the very term " allegit " is applied to these persons, owing 
 to their right in such capacity being questioned and denied. 
 
 ii. Because John Earl of Lennox, Sheriff Principal of Dumbarton, who officially sanctioned or 
 put "his auctorite" to the procedure, was "present," and might himself have acted as 
 Sheriff, — whereas it is notorious, that in the case of hereditary offices in great families, 
 such as sheriffships, the functions of the office were almost always entrusted to substitutes 
 by delegation, the principals not being lawyers, and hence unable to act correctly. This 
 might be illustrated in the instance of the Sheriffdom of Forfar in the sixteenth and 
 
 "^ For proof of the Eetour, and for the statement in the ' Liber Eesponsionnm,' &c. &c., see the ' Minutes of Evidence,' p. 27, 
 and the Appendix, infra, pp. 414, 415. 
 
 + Authentic evidence of this is adduced by the celebrated legal and genealogical antiquary, Andrew Stuart, in his History 
 of the Stewarts, p. 185. 
 
 X For the Decreet, as recorded in the ' Acta Dominorum Concilii,' or of the Supreme Civil Court, see the ' Minutes of Evi- 
 ' dence,' p. 27, and the Appendix, infra, pp. 415 sqq., where an Analysis of it is also given. 
 
 § For further example, reference may be made to a Charge by Queen Mary, 13th December 1542, to " James Lord Ogilvie, 
 " James Maister of Ogilvie, and David Lyndesay , sone to umquhile Alexander Lyndesay , callit Maister of Crawford "—the ' Wicked 
 Master,' eldest son of David eighth Earl of Crawford, forfeited in 1531 for constructive parricide—" to deliver up the place and 
 " castle of Finhaven." Crawford Case, p. 167.— And as regards the remaining epithet mentioned in the text, an illustrious and 
 unhappy example of its application during the last century will recur to every one. It was not originally applied to the exiled 
 Stuarts in derision. — And see note t in the next page to this. 
 
ANALYSIS OF THE AEGUMENT. xli 
 
 seventeenth centuries, when held by the Lords Gray. And, in like manner, the office of 
 Justice General of Scotland came to be executed by the mere clerk, and hence the origin 
 of the office of Justice Clerk, or Lord Justice Clerk, of Scotland. 
 
 iii. Because the Sheriffs "procedit apoun the serving of the said brelf" from Chancery in 
 respect to the " lands of Drummond and Duchra " (those retoured to) as Sherifis Deputes 
 of Dumbarton, to whom the brief was directed to take inquisition of what lands and annual 
 rents, with the pertinents, " umquhile Alexander Erie of Glencarne, grantschir to the said 
 " Cuthhert " (Earl Cuthbert), " deit last vestit and seisit as of fee, within the said 
 " Scherefdome of Dunbertane, — howbeit the saidis landis of Drummond and Duchra lyis 
 " within the Scherefdome of Striveling, and therfor the said allegit Schereffis had na juris- 
 " dictioun to proceid apoun the servyng of the said breiff, without sufficient commissioun." 
 Here again, while "allegit" is prefixed to the mention of the Sheriffs, no such qualification 
 is attached to Earl Alexander and his title. 
 
 iv. Because the said " allegit " Sheriffs proceeded in the service without warning being given 
 to the Sovereign for his interest forty days previously. — And lastly, 
 
 V. Because the inquest retoured that "umquhile Alexander Erie of Glencarne, grantschir 
 " to the said Cuthbert Erie of Glencarne" died last vested and seised in the lands in 
 question, though in point of fact James III. did so, and they were afterwards held by 
 James IV. and the pursuers. — The gist of this ratio would appear to be, historically, that 
 the lands of Drummond and Duchray had belonged to Lord Drummond and Dormond 
 MacPherson, who, although hostile to James III. and stripped of those lands, yet had never 
 been forfeited. The King therefore (James III.) had no right ah initio to give them to 
 Alexander Earl of Glencairn, — such concession could only have been validated by a 
 Parliamentary attainder, which never took place. This may have afforded a sound and 
 valid argument for reducing the service and seisin. All this however is immaterial to the 
 question in which the Claimant is here interested. 
 
 Upon these grounds and reasons, therefore, the service or retour affecting " umquhile Alexander 
 " Erie of Glencarn, Lord of Kilmawris," thus again explicitly mentioned — and " Cuthbert Erie of 
 " Glencarn"— was reduced, on the 12th January 1516-7. 
 
 Two most important considerations and results follow from the above process — inducing and 
 corroborating one and the same conclusion : — 
 
 i. If the Act Rescissory 1488 had been valid or legally applicable, why was it not brought to bear 
 upon Earl Cuthbert on this occasion, when every argument and exception, good, had, and 
 indifferent, was urged against him ? The Act Rescissory would in such event, AT ONCE, 
 simply, and most easily, have compassed the object IN TOTO, and, upon the construction of the 
 Crown, and as in numerous instances cited by the Claimant of valid penal acts being applied 
 and enforced against individuals,* would have fairly reduced any title in Earl Alexander 
 and dispossessed his grandson. The utter omission of it as a plea in such circumstances, 
 when it would have been at once so available, and the adoption of lesser and secondary 
 arguments, can only be explained by what the Claimant has all along maintained, viz. thaf 
 the Act was ab initio inoperative in law and a dead letter — a conclusion perfectly in 
 keeping with the invariable silence that prevails with regard to it in all subsequent writs 
 or deeds, in which, if valid and effectual, it could not but have been noticed or alluded to. 
 
 ii. The free and formal designation or recognition hy the Crown, by the Supreme Civil Court, 
 and on all hands, of Earl Alexander, the patentee in 1488, as Earl OF Glencairn — 
 and this in an adverse legal process, can only be accounted for on the same ground of the 
 confessed nullity of the Act Rescissory ; for if there had been eoen the slightest pretence for 
 maintaining its applicability to the dignity, the qualification of "allegit" or " callit" would 
 have been adjected to his style, as in every similar emergency, and as is actually proved in 
 reference to the questionable Sheriffs in the same process in 1516-7. -[- The distinction 
 thus established is of the very highest importance and value. 
 
 * See the Supplemental Case, pp. 25 sqq. ; and infra, p. cxxiv, note f . 
 
 "I* The Claimant may refer to the style of ' olim,' ' quondam,' ' tunc,' applied to the title of John Ramsay Lord Bothwell 
 after his attainder in 1488, as proved in the S. Case, pp. 114, 115, to illustrate the manner in which Earl Alexander would have beeii 
 designated in 1515-6 had his title under the patent 1488 been matter of doubt or question. See also the Appendix, infra, p. 534. 
 
 G 
 
xlii ANA.LYSIS OF THE ARGUMENT. 
 
 Fairer and more impartial evidence than the preceding — the evidence of the legal opponents of the 
 family of Glencairn, including the Croion—c&Txaoi be conceived in support of the Claimant's argument, — 
 and, vrhatever doubt or impediment there might exist to the conveyance of the lands in 1488, a matter 
 obviously immaterial to the main question of the dignity, which was fully recognised as derived from the 
 patent of 1488— the Glencairn family did not abandon, but still asserted their right to the lands after the 
 Reduction in 1516-7, as will be proved. 
 
 It will be remembered moreover that all these proceedings took place within thirty years after the 
 passing of the Act Rescissory, and when the whole circumstances attending the grants of James III. and 
 the Act Rescissory, as well as the inauguration of Earl Cuthbert in 1503, must have been within the 
 living memory of many persons who were parties to them ; and it is impossible therefore to suppose that 
 if the Act had cut down the patent, the patent would have been recognised by the Crown in the first 
 instance in 1515-6, or that the Act Rescissory would not have been opposed to the Retour, and to the 
 patent on which that Retour proceeded, in 1516-7. The point however was never taken, and the Retour 
 was quashed upon other and independent grounds, the title itself (as derived from the patent) being 
 recognised by the very judgment of the Lords of Session, as just shewn. — Case, p. 64 ; S. Case, pp. 44, 
 67, 68 ; Infra, pp. 34, 35, 137, 159, 160. 
 
 Objections by the Crown. 
 
 Axtokset-General. — A grant of lands " always" accompanied " the creation of Scottish peerages." "The 
 " lands of Drummond and Duchray were united with " the peerage of Glencairn, and it is " important to see 
 " whether in the period between the Act Rescissory and the new creation of the Earldom in 1503, those 
 " lands were ever enjoyed by the noble grantee of the original Earldom. It is quite clear that they were 
 " not." " Immediately after the accession of James IV. and the Proclamation at Stirling," the lands of 
 Drummond and Duchray " remained in the Crown, and were never claimed by Lord Kilmaursfrom that time 
 " . . till theyear 1514, after the new creation of the Earldom of Glencairn ;" when " in the confusion that fol- 
 " lowed Flodden . . the then Earl of Glencairn . . obtained a service," &c., as stated by the Claimant. 
 But " without delay the seizin %o obtained was challenged," and "the Lords [of Council and Session] decreed 
 " the retour, seizin," &c. to be " annulled, as obtained on false grounds. From the Drummonds the lands 
 " of Drummond and part of the lands of Duchray have come by a regular progress of titles into the possession 
 " of" the Duke of Montrose and Mr. Graham Stirling of Duchray — and the title-deeds of both estates are 
 adduced as evidence of the fact that " the lands . . which were the corpus upon which the honours of the 
 " Earldom attached in the original grant " of 1488, did not descend in the Glencairn family in virtue of that 
 original grant, but that both title and lands were cut down by the Act Rescissory. — Infra, pp. 216-7.* 
 
 LoKD Advocate. — " The estates of Drummond and Duchray, which had been granted in 1488 to the first Earl of 
 " Glencairn, reverted to the Crown, and were granted to other parties." The Crown has " put in evidence 
 " . . the full titles of both those estates, which were granted to other parties altogether, and they never 
 " went back to the Glencairn family." f " The estates were resumed by the Crown and granted to other 
 " parties" through " the Rescissory Act . . having taken effect." " In regard both to the honours and 
 " the estates (which by the way were not mentioned in the pleadings in the Court of Session " in 1637-1648), 
 " the same result . . happened to the Earldom of Glencairn that happened to the Dukedom of Montrose. 
 " The patent was annulled by the Act of 1488, the title and honours perished, and the estates reverted to 
 " the Crown."— /n/ra, pp. 243, 256. 
 
 Reply and Observation. 
 
 The Claimant appeals to the evidence on this point. The non-enjoyment of the estates of Drummond and 
 Duchray is part of his own argument, as proving that rights to a peerage may descend apart from rights to 
 lands granted along with that peerage, on the rule reddendi singula singulis. Vide S. Case, pp. 75, 137, 
 and infra, p. cxiv. And the Claimant has himself adduced a Decree by the Lords Auditors, 17th February 
 1489, in favour of Lord Drummond against certain parties " for dampnage, scatis (injuries), and expensis 
 " sustenit be the said Johnne Lord Drummond in the schering of the said comes," previously mentioned, 
 &c. , " and laying waste of his landis of Drummond," — which proves ^er se all that the Crown has undertaken 
 to do by adducing the full titles of the Drummond estates. Ibid., p. 68. The Crowk has not accounted 
 for Earl Alexander the patentee being styled Earl in the Decreet 1516-7, nor for the absolute silence there 
 preserved regarding the Act Rescissory. The Ckows, in short, has not met the Claimant on any point of 
 his argument on this head. 
 
 Opinion of the Committee. 
 
 The whole of the preceding facts and arguments are passed over without notice by the Noble and Learned Lords. 
 Lord St. Leonards does not state the cause to which he attributes the resumption of the estates, but the 
 Lord Chancellor would appear to think that that resumption was through the Act Rescissory, infra, p. 332. 
 
 * The greater part of the above was read by the Attorney-General out of the Dute of Montrose's Case, — no notice being 
 taken of the reply to the Noble Duke's statement in the Claimant's Supplemental Case, pp. 67, 68. 
 
 I A list of the Drummond and Duchray titles, as adduced and described by the Crown, may be seen in the Appendix, 
 irifra, pp. 407 sqq. They will be printed at length in the ' Minutes of Evidence ' on behalf of the Crown. 
 
ANALYSIS OF THE ARGUMENT. xliii 
 
 5. In conformity with the preceding recognition of the original dignity of Glencairn in 1515-6 
 and 1516-7, a grant passed under the Privy Seal of Mary Queen of Scots, 28th April 1550, to William 
 Bishop of Argyle, of the non-entries of the Glencairn estate, including Drummond and Duchray, " be 
 " resoun of non-entres sen (since) the deceis of umquhile Egbert Erle of Glencarne, Cuthbert, or 
 " William, Erlis of Glencarne, or ony of thaim, or ony uther last lauchfull possessour of the foirnemit 
 ■' landis." * This is an additional Royal recognition of the right to the Earldom of Glencairn, as in 
 Robert, the son of the patentee, commonly called Lord Kilmaurs, and who died in 1492, but de jure, and 
 here, in a Royal writ, styled retrospectively, ' Earl of Glencairn ' — which he could only have been in virtue 
 of the Patent 1488, as unaffected by the Act Rescissory. — Case, p. 64 ; S. Case, pp. 44, 69 ; Infra, p. 35. 
 
 Observation. 
 This piece of evidence, and the recognition established by it, are not noticed either by the Crown or the Committbb. 
 
 6. The question as to the validity of the Glencairn Patent 28th May 1488, as affected or not affected 
 by the Act Rescissory, was discussed and finally decided in foro contentiosissimo IN favour of the 
 Patent by the Court of Session, the Supreme Civil Court in Scotland, and which adjudicated in honours 
 and in other causes by inherent right without appeal to King or Parliament, in 1637-48, — the 
 Court also aeting in this instance (independently of its inherent jurisdiction) by SPECIAL reference from 
 the Crown. The circumstances were as follows : — 
 
 i. The question of precedence, always keenly debated between the Scottish nobles, having risen 
 to a great height in the reign of James VI., a Royal Commission was appointed by King 
 James and the Privy Council in 1606 to investigate and settle the matter; and the nobles 
 were cited to appear before it and produce evidence in support of the relative antiquity 
 of their dignities. The result was the publication of the celebrated ' Decreet of Ranking,' 
 5th March 1606.t James seventh Earl of Glencairn, not having the requisite evidence 
 and proof at hand, and moreover not being lawfully summoned, did not appear ; and the 
 consequence was that his precedence was unjustly prejudiced, and that he was ranked after, 
 instead of before, the Earls of Eglinton, Montrose, Cassillis, and Caithness. 
 
 ii. Power, however, having been reserved by the Decreet of Ranking to all peers unduly ranked 
 to recover their due precedence by " recourse to the ordinar remeed of law be Eeductioun 
 " before the Lords of Counsell and Sessioun," Glencairn, in consequence of this Royal 
 reference, and acting in conformity to the universal understanding and practice in Scotland 
 previously to the Union, pursued an Action of Reduction and Declarator in the Court of 
 Session against the Earls of Eglinton and Cassillis, and obtained a Judgment and Decreet 
 in his favour, 7th July 1610, affirming his precedence over them in virtue (exclusively/) of 
 the Patent 28th May 1488, which was then produced, and in consideration of which the 
 Lords of Session rescinded the Decreet 1606 in so far as he was postponed to the said 
 two Earls. At this earlier period not the slightest doubt was expressed in any quarter as 
 to the validity and force of the Patent.* 
 
 iii. Owing, however, to an oversight on the part of Glencairn's advisers, only two defenders had 
 been cited to the Action of Reduction in 1610, viz. the Earls of Eglinton and Cassillis, 
 against whom exclusively the judgment went ; whereas the Earls of Montrose and Caithness 
 ought also to have been cited, as having been ranked after Eglinton and before Glencairn 
 in the Decreet of 1606. A strange anomaly or dilemma hence arose, inasmuch as by the 
 Decreet of 1610 Montrose and Caithness would t\iViS, ex ter minis of the Decreet 1606, 
 which had not been rescinded in their regard, still precede Glencairn, — although Eglinton, 
 by the same Decreet of 1606, equally in so far unrescinded, would still precede Montrose 
 and Cassillis, while himself postponed by the Decreet 1610 to Glencairn.g Upon this plea 
 
 * Printed in the ' Minutes of Evidence,' p. 30, and in ahstract in the Appendix, infra, pp. 417, 418. 
 
 t For this Decreet see the 'Minutes of Evidence,' pp. 35sqq.; and Appendix, m/ra, pp. 418 sqq.; -where an Analysis is also given. 
 X For the Decreet of 1610 vide ' Minutes of Evidence,' pp. 77 sqq. ; and Appendix, infra, pp. 420 sqq., where an Analysis is given, 
 § As may thus be seen : — 
 
 1606 
 
 1610 
 
 Eglinton 
 
 
 Montrose 
 
 Montrose 
 
 Cassillis 
 
 
 Caithness 
 
 Caithness 
 
 Glencairn 
 
 Glencairn 
 
 
 Eglinton 
 
 
 Cassillis. 
 
 The 
 
 G 2 
 
sliv ANALYSIS OF THE ARGUMENT. 
 
 of incongruity the Earl of Eglinton brought an Action of Reduction of the said Decree of 
 1610, and obtained a Decreet in his favour, 11th February 1617, proceeding on the 
 reductio ad ahsurdum above indicated, and on a statement that the parties interested 
 (Montrose, Cassillis, and Caithness) had not been lawfully summoned in 1610, — but 
 zvifhout at all broaching the merits of the question between himself and Glencairn, as depending 
 on the Patent 1488, which were not in the slightest degree alluded to, the decision resting 
 entirely on the legal specialties and technical informalities above mentioned.* 
 
 iv. Matters having been thus restored to their primitive position as settled by the Decreet of 
 Ranking 1606, the question as to the Glencairn precedence rested in hoc statu for a 
 considerable time till again investigated a,nd finally decided in foro contradictorio in favour 
 of the Earl of Glencairn in 1637-48. 
 
 V. During the interval, and in conformity with the successive recognitions of the Glencairn 
 Patent in 15i5-6, in 1516-7, in 1550, and in 1610, James Earl of Glencairn (the same 
 who obtained the Decreet in his favour in 1610) was retoured heir, on the penult. April 
 1630, to " Alexander Comes de Glencaime," the great-grandfather of his great-grandfather, 
 ("proavus proavi nobilis et potentis Comitis, Jacobi, nunc Comitis de Glencairne,") the 
 patentee in 148 S,t — a proceeding which may be considered as the initiative in an attempt 
 to recover his just right, but which he was prevented from prosecuting through his death 
 almost immediately afterwards. He left a son and heir, William eighth Earl of Glen- 
 cairn, who is stated to have died in the following year 1631, and had certainly deceased 
 before the 29th September 1635, when his son William ninth Earl of Glencairn is served 
 his heir in the family estates in Renfrewshire. And on the 21st July 1637, William, the 
 said ninth Earl of Glencairn, grandson and heir of Earl James, obtained a Ratifica- 
 tion from Charles I., under the Royal sign manual, after full inquiry, and on the principle 
 accumulandi jura juribus (as illustrated in the precisely analogous cases of the Marquisates 
 of Hamilton and Huntly in 1606, of the Earldom of Arran (as created in 1503) in 1621, 
 of the Dukedom of Norfolk in 1444, and others cited in the Claimant's Supplemental Case, 
 pp. 37, 38), though, strictly speaking, unnecessary, of the original Glencairn patent of 
 1488, granted to Alexander (first) Earl of Glencairn, explicitly so designated, — a document 
 of importance — not in itself as conferring any title, (for, according to Scottish usage, a rati- 
 fication of that kind is only important where the title exists before, in recognition of that 
 title,) — but as a recognition by the Crown, under the sanction of the legal officers of the Crown, 
 that Earl Alexander, the patentee in 1488, and his successors had continually possessed the 
 Earldom of Glencairn in virtue of the patent, and de jure, till that present day.X 
 
 vi. At last, in that same year 1637, the question of the relative precedence of the Earl of 
 Glencairn on the one hand, and of the Earls of Eglinton, Caithness, Montrose, and 
 Cassillis on the other, was again and finally brought before the Court of Session — acting 
 therein and throughout, it is to be remembered, on special reference from the Sovereign, 
 King James VI., (precisely as the House of Lords acts at the present day,) while also 
 ea\i\\eA. propria jure so to act, — William Earl of Glencairn pursuing an Action of Reduc- 
 tion, duly opened by Summons, dated 16th August 1637,§ against the four Earls in 
 question (who were all duly cited, the proceedings being conducted with the most regular 
 and technical accuracy throughout),— Earl William adducing in that Summons, and in the 
 subsequent Action, and specially founding his claim to precedency on the Patent 28th 
 May 1488, and distinctly alleging and putting it in issue that Cuthbert Earl of Glencairn, 
 
 The dilemma in question is stated as follows in the Decreet 1617, presently to he mentioned: — " Becaus the said Erll of 
 " Glencarne, in respect of the said Decreit of Secreit Counsall" (1606) " standing in favoris of the said Erllis of Montrois and 
 " Caithnes, man (must) be in place posterior to thame, and the said Erll [of] Eglintoun haveing the prior place to haithe the faidis 
 " Erllis of Montrois and Caithnes, quha ar prior to the said Erll of Glencarne, as said is, man (must) also have prioritie of place 
 " to the said Erll of Glencarne ay and quhill (until) he he preferrit to the saidis Erllis of Montrois and Caithnes, quha ar posterior 
 " to the said Erll of Eglintoun, as said is ; otherwayis, gif it sould happin all the saidis four Erllis to meit in Parliament the said 
 " Erll of Eglintoun sould be postponit to the saidis Erllis of Montrois and Caithnes, quha, be vertew of the said Decreit of Counsale 
 " standing, hes the precedenaie of place befoir the said Erll of Glencarne, — quhilk -was ane heavie prejudice to the said Erll of 
 " Eglintoun." — Infra, p. 424. 
 
 * For the Decreet of 1617 vide ' Minutes of Evidence,' p. 38 ; and Appendix, infra, pp. 423 sqq., where an Analysis is given. 
 
 t For this Eetour see the ' Minutes of Evidence,' p. 32 ; and Appendix, infra, p. 425. 
 
 % Printed in the ' Minutes of Evidence,' p. 33 ; and Appendix, infra, p. 425. 
 
 § The Summons is printed in the Addenda to the S. Case, pp. 187 sqq., and in the Appendix, infra, pp. 426 sqq., where an 
 Analysis is also given. Its contents are fully recited in the Decreet 19th January 1648. 
 
ANALYSIS OP THE ARGUMENT. 
 
 xlv 
 
 who sat as such in Parliament in 1505, sat, not by virtue of any subsequent creation in 
 or about that time, but as grandson and heir of Alexander Earl of Glencaim, the patentee 
 in 1488 : — And, after eleven years' discussion by the ablest lawyers that ever flourished 
 contemporarily in Scotland* — and after the points in dispute had been reduced by exhaustion 
 to the simple question whether the Patent 1488 had or had not been annulled by the Act 
 Rescissory ; or, in other words, as by the declaration of the Earl of Eglinton's counsel, 
 recorded in the ' Minutes of Process ' and quoted also in a subsequent Decreet of Parlia- 
 ment 9th March 1649, that " he dispute only against the Ressoune fotjndit 
 " UPONE THE Patent and the Act of Parliament against the samyne "f — and 
 after the question had been raised whether the cause should be " remitted to the Parlia- 
 " ment " or not, which the Court (in accordance with law and practice, and with the 
 Decreet of Ranking in 1606) decided in the negative, thus rejecting the authority of Par- 
 liament in the matter J — and also after Eglintons counsel had in despair and at the last 
 moment offered to prove that Cuthhert Earl of Glencaim liad received a new patent in 1504, 
 but which plea he withdrew) § — the result of this process was a solemn Decreet and 
 Judgment, IQth January 1648, founding on the Patent 28th May 1488 as valid 
 and effectual notwithstanding the Act Rescissory, and holding that it suflBciently 
 proved the precedence in question, and consequently rescinding the " pretendit " Decreet of 
 1617, above mentioned, on the ground that, " the not summonding " of the Earls of 
 Montrose, Cassillis, and Caithness in the process of 1610 " being the only ground and cause 
 " of the reduceing of the said Decreit " by the Court in 1617, the fact that the three 
 Earls in question had " now " (in 1648) been summoned " elydis, removis, and takes away 
 " the foirsaid pretendit ressoune and caus of Eeductioun contenit in the said Erie of 
 " Eglintoune his pretendit Decreit of Reductioune in anno 1617 yeers afoirsaid; and 
 " consequentlie randeris the samyne pretendit Decreit and ressoune foirsaid thairin 
 " contenit, meerlie null, voyd, and extinct," — restoring consequently the Decreet 1610 {which 
 went solely, as has been stated, upon the Patent 1648) to full weight and validity. || The 
 Earls of Glencairn have ever since had precedence over the Earls of 
 Eglinton solely in virtue of this solemn and final Decreet in foro contra- 
 dictorio, and of the Patent 28th May 1488, on which it is founded. 
 
 vii. This decision was, however, too distasteful to the Earls affected by it, and to the rebellious 
 faction who were then in the ascendant and shortly afterwards came into absolute power, 
 to be quietly acquiesced in. The strongest sympathy existed between the Parliament that 
 sat in 1649 and the Parliament which passed the Act Rescissory in 1488. The one 
 Parliament by their enactments had declared that it was lawful to oppose the King in arms 
 and then to put him to death. The other was composed of men who had actually sold their 
 Sovereign for the purpose of his being put to death on the scaffold. The Act Rescissory of 
 1488 offered what was conceived, in 1649, to be a wholesome precedent for those particular 
 times. Eglinton accordingly appealed {illegally') to Parliament, and he and the Procurator 
 of Estate, or public prosecutor, pursued separate actions before Parliament — the Procurator 
 with a special view to the annulment of the Patent 1488, and avowedly on the political 
 motives just indicated — Eglinton with the view of rescinding the Decreet 19th January 
 1648, grounded on the Patent 1488, which postponed him to Glencairn, The result of 
 these processes was the promulgation by Parliament — not as a legislative, but in the 
 (assumed) character of a judicial or appellate body in civil causes — of two Decreets, dated 
 the 2nd March and the 9th March 1649 respectively, — the former entitled a " Decreet at 
 " the instance of the Procurator of Estate against the Earle of Glencarne, annulling the 
 " said Earle his Patent of Earledome dated 18 {sic) Mali 1488,"— the second entitled a 
 " Decreet at the instance of the Earle of Eglintoun aganst the Earle of Glencarne," annulling 
 the Patent 1488, the Decreet 1610, the Ratification 1637, and the Decreet of 1648 : — 
 
 * Among these were Sir Lewis Stewart, the first legal antiquary of his time ; Sir John Gilmour, afterwards Lord President 
 of the Court of Session ; the celebrated Sir Thomas Hope, Lord Advocate ; Sir Thomas Nicolson, and the younger Nioolson, both 
 most able lawyers, and the latter eventually Lord Advocate ; Sir John Nisbet, afterwards Lord Advocate and better known by his 
 title of Lord Dirleton, &c.— See the S. Case, Addenda, p. 190. " The reign of Charles IL," says Chalmers, " was the period of 
 " great lawyers in Scotland, as the reign of James I. had been the age of learned lawyers in England." Caledonia, vol. i., p. 884. 
 
 t Vide Appendix, infra, pp. 442, 477, 482. % Ibid., p. 442. § Ibid., pp. 443, 444, 445, 446. 
 
 I For this Decreet of 1648 see the ' Min. Evidence/ p. 40 ; and Appendix, infra, pp. 446 sqq., where an Analysis is given. 
 
xlvi ANALYSIS OP THE AEGUMENT. 
 
 (1) The Decreet 2nd March 1649, after narrating that Glencairn had produced in the 
 recent process before the Lords of Session the Patent 1488, " quhairupon tfw Lords 
 " of Sessioun pronounced interloquutor and sentence," rescinds, casses, and annuls the 
 said Patent for these causes, viz., that the Act Rescissory had annulled the grants 
 of James III., because granted for perverse counsel and assistance given to that 
 King by the grantees, which was against the common good of the realm and 
 was the cause of the King's death ; that the Patent granted to the Earl of Glen- 
 cairn was for his assistance and counsel given to James III., and therefore fell 
 under ihe Act Rescissory ; and " that it is of dangerous consequence and example in 
 " relatioun to the troubles of this Kingdome, occasioned hy evil counsall given to the 
 " King's Majestie" (King Charles I.) "and assistance thairfo, that the said gift and 
 " Patent, granted for evill counsall and assistance given to the King " (James III.), 
 " should be of any force or validity, or should be made use of," — the Decreet ending 
 with a declaration that if the Earl of Glencairn or his successors shall at any time 
 hereafter make use of the said Patent in any manner of way, they shall forfeit their 
 Earldom for ever afterwards.* 
 
 (2) The second Decreet, 9th March 1649, at the instance of the Earl of Eglinton, com- 
 mences by reciting, 1. The injustice done to the Earl by the Decreet of 1610, 
 obtained " be productioun of the pretendit Patent underwritten," of 28th May 1488, 
 and by the Decreet of 1648, also /o!(nrfe</ " maynelie" upon that Patent; 2. The 
 Summons of the Earl of Glencairn to appear before Parliament and produce the 
 pretended Decreet of Reduction and Declarator 19th January 1648, the "pretendit 
 " Lettre of Patent dated the 28 day of May 1488 yeris," the Decreet 1610, the 
 Ratification 1637, and " all other chartoris, evidents " &c. on which he founded, in 
 order that they may be reduced ; and 3. The " reasons," or legal pleas for reducing 
 the documents in question, as enumerated seriatim, viz. : — 
 
 (i) The Patent 1488, as having been granted for counsel and assistance to 
 James III., and therefore " revocked and annulled " by the Act Rescissory, — 
 and also on the ground that Cuthbert Lord Kilmaurs, grandson of the 
 patentee, sat from 1488 to 1499 as Lord Kilmaurs, by which he " acknoio- 
 " ledged that he was onlie Lord Kilmawris, and not Earle of Glencarne, and 
 " acquiesced to the revoking and annulling of the said pretendit patent," — 
 
 (ii) The Decreet 1610 in favour of Glencairn, because, inter alia, it "was pro- 
 " nounced upon a rea.'ioxm founded upon the for said pretendit Patent graunted 
 " be umquhill King James the Thrid in May 1488," and on which, as a 
 " more auncient and authentik evident," precedence was awarded him over 
 Eglinton — whereas it was revoked by the Act Rescissory, — 
 
 (iii) The Ratification by Charles I., 21 July 1637, of the Patent 1488, as 
 having been obtained on erroneous and private information, to the effect that 
 the Act Rescissory had not taken effect on the patent, &c., — And 
 
 (iv) The Decreet 1648, on the narrative that, whereas in the "Summons 
 " quhairupon the said pretendit Decreit of Reductioun . . proceeded" "it was 
 " lybelled," as Glencairn's reason of reduction, " That Alexander Lord 
 " Kilmawris . . was creat Earle of Glencarne upon the 28 day of May 1488 
 " . . be a Patent of that date," and that his grandson Earl Cuthbert sat in 
 Parliament in 1505 in right of this Patent; and whereas Eglinton alleged 
 in reply that the Patent 1488 had been annulled by the Act Rescissory— 
 still, " notwithstanding " this " relivant alledgeance" or argument on Eglinton s 
 part, " the forsaid reasoun of reductioune " advanced by Glencairn " was 
 
 " SUSTAINED, and the pretendit Patent found a good and a valide evident 
 
 " quhilkin justice " (it is stated) " could not have been done :"— To which it 
 is added that " in all the disputis " there was no " alleadgeance proponed for the 
 " Earle of Eglintoun hot allenarlie {only) aganst tlie said reasoun of reductioun 
 
 ^ * For this Decreet see the ' Minutes of ETidence,' pp. 54 sqq, ; and the Appendix, infra, pp. 462 sqq., where an Analysis is 
 given. Compare also the Memorandum for the Earle of Eglintone,' with reference to the process before Parliament, infra, p. 461. 
 
ANALYSIS OF THE ARGUMENT. xlvii 
 
 " as it was founded upon thci said pretendit Patent, but, by the contrarie, 
 " Mr. T/wmas Nicolsoun, procurator for the Earle ofEglintoun, the tyme of the 
 " dispute, viz., upon the eight and ellevint dayes of Januar 1648, did declare 
 " that lie disputed only the nullitie of the Patent," &c. ; and that the same 
 *' appeares by the Minutis of Proces, quhair no reason was dispute bot onlie the 
 "first reasoun, founded upon the said pretendit Patent ; and where there was 
 " not any alleadgeance proponed, nor any dispute made aganst any of the 
 " wryts produced, bot allanerlie{(mly) aganst the Patent^ And, lastly, that, 
 setting the Patent 1488 out of view, the earliest evidence produced by 
 Glencairn in the process was an Act of Session in March 1504, whereas 
 Eglinton produced a Sederunt in which his ancestor sat as Earl of Mont- 
 gomery on the 25th March 1503, which "was sustained be the Lords of 
 " Secreit Counsall in the Decreet anno 1606 " as valid evidence, and must 
 now, it is argued, give him the pas before Glencairn, the Patent 1488 being 
 rescinded : — 
 
 — Upon which " reasons," pleas, and considerations the Estates finally pronounce judg- 
 ment, reducing, 1. The Patent 1488; 2. The Decreet, 1610, "seeing thecaus 
 " OF THAT Decreet was onlie the pretendit Patent above mentionat ;" 
 3. The Ratification 1637 ; and 4. The Decreet of Reduction and Declarator 
 19th Jan. 1648, "as maynelie proceeding and depending upon the forsaid 
 " pretendit Patent, quhilk is reduced and declaired null, as said is," — and further 
 declaring that Eglinton is entitled to the precedence over Glencairn in virtue 
 (fundamentally) of the Sederunt 25th March 1503.* 
 
 The preceding (the Claimant would observe) is the only instance in which the Act 
 Rescissory has been attempted to be specially applied, or has been appealed to as a 
 means of adjudication, by any tribunal whatever. And it afibrds the actual testimony of 
 the supporters and advocates of the Act Rescissory in 1649 to the fact, that a special applica- 
 tion of the Act by legal process was indispensable in order to affect any title that it might be 
 thought to touch or affect. 
 
 viii. The importance of these Parliamentary Decreets lies solely in this, that they prove dis- 
 tinctly, by the most unexceptionable testimony, that the Decreet of the Lords of Session, I'dth 
 Jan. 1648, went fundamentally on the Glencairn Patent 1488, which the Lords decided to 
 be " A GOOD AND VALiDE EVIDENT," and unafifectcd by the Act Rescissory ; and that they 
 both, moreover, recognise the Patent 1488 as the source of the honour, and both endeavour 
 to get rid of that Patent by the application of the Act Rescissory. They are otherwise 
 utterly null and void, as being wholly unwarranted and illegal, and the Decreet 1648 
 stands firm in law, for the following reasons : — 
 
 (1.) The Decreet of the Court of Session, 1648, was a competent and final decision, 
 
 (i.) Because the Court of Session or Supreme Civil Court were competent judges 
 in cases of precedence, as well as in Peerage matters generally — which is 
 matter of notoriety in Scottish law : — 
 
 (ii.) Because the Court of Session acted also in the case by special reference from 
 the King and Privy Council, and in accordance with the provisions of 
 the Decreet of Ranking in 1606, pronounced under their authority, and by 
 which liberty and power were expressly reserved to " suche persoun or 
 " persons as sail find thameselves interest and prejudgit be thair present 
 " ranking, to have recourse to the ordinar remeed of law, be Reduc- 
 
 " TIOUN BEFORE THE LORDS OF CoUNSELL AND SeSSIOUN of this present 
 
 " Decreit, for recoverie of thair owne dew place and rankis, be productioun 
 " of mair ancient and authentick rights (writs) nor (than) hes beene used in 
 " the contrair of this processe," — the Lords " summoning thairto all suche 
 " persouns as they sail thinke wrangouslie rankit and placeit before thame, — 
 " and in this meantyme this present Decreit and determinatioun to stand in 
 
 * For this Decreet see the ' Minutes of Evidence,' pp. 56 sqq., and the Appendix, infra, pp. 464 sqq., where an Analysis is given. 
 
xlviii ANALYSIS OF THE AEGUMENT. 
 
 " full force, strenth, and effect, ay and quhill (until) the pairtie interest and 
 " prejudgit obteane lawfullie A Decreit before the saids Lords of Counsall 
 " and Sessioune, as said is.' 
 (iii.) Because the Decreit 1648 was pronounced in foro contradidorio, and was 
 therefore, by Scottish law, (there being no appeal from it,) conclusive and 
 
 FINAL.* 
 
 — While, on the other hand, 
 (2.) The Parliamentary Decreets, 1649, were null and inept, 
 
 (i.) Because the Scottish Parliament, as has been shewn by the Claimant in his 
 S. Case, p. 541, had no original or proper Jurisdiction in honours,^they could 
 not at any time have taken up or discussed such a question on their own 
 authority without a reference from the Crown ; and they were acting in this 
 instance without the indispensable concurrence and authority of the Sovereign, 
 (Charles I. having just been executed, and Charles II. being an exile, and 
 the Parliament and country in rebellion,) and, moreover, avowedly on 
 motives of political expediency, alleging that the patent 1488 would be " of 
 " dangerous consequence and example in relatioun to the troubles of this 
 " kingdome, occasioned by evil counsall given to the King's Majestie, and 
 " assistance thairto," — thus (as has been already shewn) pointing the 
 parallel between James III. and Charles I., the rebel faction in 1488 and 
 themselves in 1649. 
 
 (ii.) Because Appeals from the Court of Session to the Parliament (even whed a 
 lawful one and unexceptionable, which was not the case in 1649) were 
 incompetent in law then and down to the Revolution of 1688, — in support of 
 which the Claimant refers to the case of the Earl of Dunfermline contra 
 the Earl of Callendar and Lord Almond, 5th February 1674, reported by 
 Lord Stair, the highest authority in Scottish law, then Lord President of the 
 Court of Session, — and in which mention is moreover incidentally made of 
 the very appeal of the Earl of Eglinton in the present case : — 
 
 " The Lord Almond presented an Appeal in writ, appealing from that 
 " Interlocutor to the Parliament ; which Appeal being this day considered 
 " by the Lords, all being present, they found that there was never an 
 " Appeal from the Lords given in in writ ; and though in the Process 
 " BETWIXT Glencairn AND Eglinton IN ANNO 1648, mention was made 
 " verbally t of an Appeal, yet it was never entered in writ ; and that by the 
 " Act of Parliament 1537, cap. 39, it is declared that the Sentences of the 
 " Senators of the Colledge of Justice" (the later or present Court of Session) 
 " shall have the same strength and effect as the Sentences of the Lords of 
 " Session " (or what was commonly called ' the Session,' the civil tribunal 
 " antecedent to the Court of Session) " had in time by-gone, which is declared 
 " by the 63 " {lege 62) "Act Pari. 14. K. Ja. 2, to be final, without any 
 " REMEiD BY Appellation to King and Parliament ; $ which hath 
 " been in constant observance ever since. For the Parliament never 
 " sustained an Appeal from the Lords" (of Session, the Court of Session), 
 " neither was there ever any reduction of their Decreets sustained, except as 
 
 " TO THE TITLE OF HONOUR BETWIXT GlENCAIRN AND EgLINTON, WHICH, 
 
 " WITH THAT Parliament, is simply annulled and rescinded, 
 " without any reservation. Therefore the Lords declared they 
 " would proceed in this case " (and thoroughly determine it) " notwith- 
 
 * The contrast between Decrees in absence and those in foro contradidorio is thus drawn by Erskine : " Decrees in absence 
 
 " of the Defender have not the force of res judicatce against him, for where the Defender does not appear, he cannot be said to have 
 " referred his cause to the decision of the Court in virtue of the contract implied in litiscontestation, . . which is the true gi'ound 
 " upon which a decisive sentence becomes final." — Institute, B. iv. T. iii. § 6. — And such was the Decree 19th January 1648. 
 
 + This tallies with what is stated in the ' Minutes of Process,' Appendix, infra, p. 442, and in the Decreet of 9th March 1649 
 infra, p. 482. 
 
 X See the words of the Act, infra, p. Ivi. 
 
ANALYSIS OF THE ARGUMENT. xlix 
 
 " standing the Appeal, and would suffer nothing thereof to remain upon 
 " record, or any instrument to be given thereupon, and that they would 
 " represent to the King the whole matter, that such preparatives might be 
 " prevented in time coming." — Decisions of the C. of Session, vol. ii. p. 263. 
 
 In pursuance of this determination, the Lords represented the matter 
 to the King — stating the facts of their own decision and the appeal — which 
 last they characterise as " ane act without any former precedent," and 
 reciting the statutes above mentioned by Lord Stair, declaring " that the 
 " processes, sentences, and decreets of the Senators of the Colledge of 
 " Justice" (the Court of Session) " shall have the same strength, force, and 
 " effect, as the decreets of the Lords of Session had formerly ; whereby it 
 " appears that the sentences of the College of Justice are ultimate 
 " decisions, from which there can he no appeal,"- — and in due course they 
 received a reply from Charles II., dated the 17th February 1674, to the 
 following effect : — 
 
 " Charles R." &c. " Wee have receaved your letter of the 7th of 
 " Februarie instant, concerning the two papers given in to you by the Lord 
 " Almond, containing Appealles from you to the Parliament. And by what 
 " you wryte upon that subject, we are fully convinced both of the illegality 
 " and of the dangerous and inconvenient consequences of such Appeales, as well 
 " in regard to our authoritie and honour, as the authority and reputation of 
 " our Colledge of Justice and the interest and securitie of our subjects in 
 " that our ancient Kingdome. And therefore ?oe cannot but have a great 
 " dislyke of and displeasure against such proceedings. And we doe assure 
 " you that we will, according to the example of our Royall predecessors, 
 " maintaine you in all your privileges and in the reputation of your 
 " persons and sentences against all indignities, reproaches, and Appeales. 
 " And therfore we do require you to take exact tryall who were the 
 " contryvers of this Appeale, in the strictest maner which is consistent with 
 " the law, to the end that we may receave a full accompt, and then declare 
 " our further pleasure." — And in a later letter, of the 19th May, the King 
 states, " upon full consideration of that whole affaire," that " as we cannot 
 *' hut declare our dissatisfaction with and abhorrence of these Appealls, so it 
 " is our express pleasure that speciall care be taken to prevent the like practices 
 "for the future." * 
 
 Things continued in this state — exclusive of appeals — till the Revolu- 
 tion ; when it was contended by some, that, in the Convention of Estates in 
 1689, a modification or alteration took place in this respect, which however 
 is denied by Lord Stair (Institutions, B. iv. Tit. i. § 52-61), — a matter, indeed, 
 of no importance to the present argument, for which the irrelevance and 
 incompetence of appeals to Parliament from the Supreme Civil Court 
 between 1457 and the Revolution in 1688 amply suffice.f 
 
 The Decreets of the Parliament de facto in 1649, proceeding upon an 
 appeal from the Court of Session, were thus, for the reasons just stated, 
 quite null and void in law upon this ground alone, independently of any 
 other, 
 (iii.) Because Parliament Imd themselves, as far back as the year 1641, repudiated 
 all interference as judges in the matter of the Glencairn and Eglinton 
 precedency, and referred the Earl of Glencairn to the Court of Session as 
 the legitimate tribunal. — It appears in the Records of Parliament under date 
 the 15th July 1641, that the Earl of Glencairn (irregularly) presented a 
 
 * The correspondence between King Charles and the Court of Session, as adduced from the Books of Sederunt of the Court, 
 is printed in the ' Minutes of Evidence,' pp. 75 sqq., 145 sqq., and Appendix, m/ra, pp. 495 sqq.— Even Parliament itself, in 1661, 
 declared against the competency of an Appeal to them from the Court of Session. Vide infra, p. Ivi, note §. 
 
 t On this subject see the ' Narrative and Inquiry,' supra, pp. LH sqq. 
 
 H 
 
1 ANALYSIS OF THE ARGUMENT. 
 
 Petition to the Estates of Parliament, setting forth his grievance through 
 the loss of precedency in consequence of the Decreet of Ranking in 1606, 
 and of the Reduction in 1617 of the Decreet pronounced in his favour 
 in 1610 ; and entreating them " as the onlie, proper, and most com- 
 " petent judges thereto," to ordain him to " be restorit and reponit in in- 
 " tegrum againes the saidis Decreitis," or otherwise to take such course 
 that neither the public business should be interrupted nor himself prejudiced. 
 To which Parliament replied by the following finding or Deliverance :— 
 
 « Apud Edinburgh, 15 Julii 1641. 
 " The Estaittis of Parliament, haifing takin the desyre of this bill to 
 " thair consideratioune, findis and declairis, that Williame Erie of Glen- 
 " cairne his sitting and voyting in Parliament at this tyme shall no wayis be 
 " prejudiciall to him in the right of his place whensoever he shall intend 
 " persute " (pursue an action) "/or the same hefoir any judge competent ; 
 " and siclyke, that this answer or reference shall not in any sort prejudge 
 " these other noblemen, or any of thame, in thair richtis or possessioun, and 
 " just defensses of the same, as accordis of the law." — Acts, vol. v. p. 337. 
 
 From which it appears that the Estates of Parliament, justly, legally, and 
 constitutionally, would not themselves entertain the case on the merits, or 
 go into them, but actually referred the Petitioner (while they protected his 
 rights and kept them open against the Decreet 1617) to a " competent " 
 Court — and incontestably to the Court of Session or Supreme Civil Court, 
 as such both in practice and law, and by the express Royal reference and 
 provision in the Decreet of Ranking 1606 — to which Court he betook 
 himself accordingly. The unbounded weight and sanction attached to the 
 Decreet 1648 by this pointed reference from Parliament at a period of con- 
 fessed loyalty is evident.* — And lastly, 
 
 (iv.) Because the proceedings of the rebellious Parliament in 1649 were solemnly 
 annulled and rescinded by a special Act, passed exclusively for the purpose, 
 on the 9th February 1661 — they being so peculiarly flagrant and unjusti- 
 fiable ; and the Decreets of 2nd March and 2th March 1649 are necessarily 
 included in that rescission — there being no reservation. The Act of 1661 
 moreover declares that there was " no law nor lawfull authority " for the 
 Parliament of 1649 ; " but that the persones melting therin did, without 
 " any lawfull warrand, and in contempt of His Majestie's authority, usurpe 
 " the power to themselves," f — which quite suffices in a matter of honours. 
 And if any further testimony be requisite, it may be supplied by that of 
 Lord Stair, the great luminary of the law of Scotland, a contemporary and 
 the most competent judge in the matter, who explicitly states in the passage 
 already quoted, that the Parliamentary reduction of the Decreet of the 
 Court of Session " as to the title of honour between Glencairn and Eglinton," 
 "is," "with that Parliament," "simply annulled and rescinded, 
 " WITHOUT RESERVATION," — referring without question to the very Par- 
 liamentary Decreets against the Earl of Glencairn, which form the subject 
 of the preceding animadversions. — Decisions, ut supra. 
 
 * The -word " reference," as above used, merely implies the handing a matter over to the true and " competent" jurisdic- 
 tion. This may be evident from the context of the Deliverance above cited. In precisely the same manner, with regard to the 
 analogous words ' remit' or ' remittance,' one Janet Kennedy having presented, on the 19th July 1566, abrief to be served heir to 
 Elizabeth Cairns, her mother, before the Stewart of Kirkcudbright, and an adverse party objecting bastardy, the Stewart " remitted 
 " the case to the judge competent," that is, indisputably, to the Commissary Court, which had the sole radical cognisance in cases 
 of legitimacy and illegitimacy. — Acts and Decreets, &c. — See Mr. Kiddell's Peerage and Consistoridl Law, pp. 37, 1003, n. 1. 
 
 ■f Acts, vol. vii. pp. 30 sqq. ; and see the Appendix to this volume, pp. 484, 485.— Sir George MacKenzie, Lord Advocate to 
 Charles II., similarly states in his " Observations on the (Scottish) Acts of Parliament," that " the Parliament 1649 is by this Act" 
 (the " special Act." 9th February 1661) " absolutely rescinded, and that without a general salvo; and, although by the Act Rescissory" 
 (the "general" one in 1661, rescinding the Parliaments of 1640, 1641, 1644, 1645, 1646, 1647, and 1648) "there is a general salvo 
 " in favours of the rights and private securities past in other Parliaments, . . yet there is iione subjoined to this Parliament " of 1649 
 the one in question. — Observations, &c., edit. 1687, p. 391. 
 
ANALYSIS OF THE AEGUMENT. H 
 
 ix. The Earls of Glencairn were accordingly ranked in the Rolls of the Scottish Parliament after 
 the Restoration, down to the Union, and in the Union Roll itself (standing and ruling at this 
 moment) — before the Eaels of Eglinton,— in vietue, exclusively, of the final 
 Decreet op the Court of Session in 1648, solely grounded upon the Patent 
 28th May 1488, and in utter disregard of the Decreets of Parliament in 1649, which 
 attempted to annul the former, pronounced by the legitimate tribunal, and which Decreets 
 were themselves rescinded, as above shewn, in 1661. On one occasion onl)', in a single diet 
 of Parliament, in 1667, did the Eglinton family obtain a momentary precedence ; but it 
 elicited on that same day a proteU and appeal by Glencairn to the Decreet of the Court of 
 Session in 1648, which the Parliament obeyed and enforced against Eglinton — thus 
 clenching the Claimant's argument on this point. In proof of all this the Claimant may 
 refer simply to the Rolls of the Scottish Parliament and to the Union Roll.* The Earls 
 of Glencairn retained this precedence till the death of the last Earl in 1796, since which 
 year the Earldom has been dormant. 
 
 X. To conclude : — The Decreet of the Lords of Session in 1648 having thus been doubly 
 warranted — 1. By express reference from the King, the Privy Council, and even (if the 
 expression may be used) from Parliament in 1641 ; 2. By the fact that the Court which 
 pronounced it was the only competent tribunal, possessing an inherent jurisdiction in the 
 matter, and from which there was no appeal, while the decision given was in foro con- 
 tradictorio and therefore final,^ — and the said Decreet, moreover, having been legally 
 obeyed and acted upon by Parliament and otherwise ever since, till the death of the last 
 Earl of Glencairn in 1796, and being in viridi observantid at the present moment (for if a 
 claimant should make good his right to the Earldom of Glencairn, he would immediately 
 and from that moment enjoy the precedence awarded to the Earldom by the Decreet 
 1648 in virtue of the Patent 1488) — the Claimant submits that the Decreet in question 
 IS a final and conclusive judgment in the cardinal matter at issue, entitled 
 (to say the very least) to as much weight and effect, and as binding in all 
 respects, as a Resolution of the House of Lords on a Peerage claim in the present 
 day, — the House of Lords, as is well known, not having the ordinary or radical jurisdiction 
 in Peerage matters, but discussing (although not deciding) them solely by special reference 
 from the Sovereign ; precisely as the Court of Session (although the competent judicatory 
 by the law and practice of Scotland before the Union) discussed the question between 
 the Earls of Glencairn and Eglinton by reference from James VI. (thus accumulating 
 jura jurihus in their favour) in 1610 and 1648. Unless therefore the Decreet of the l^th 
 January 1648, thus doubly grounded and warranted, could be reduced in law, and competently 
 set aside, (which is now utterly impracticable,) it must stand and rule, as it confessedly 
 does at the present moment.^ 
 
 Under the preceding circumstances, as William Earl of Glencairn distinctly grounds and 
 pursues his right of precedence on the original Glencairn Patent by James III., 28th May 
 1488, and it is awarded to him by the Supreme Civil Court in 1648 in virtue of that 
 Patent in foro contentiosissimo ; it is clear that THE CoUKi fairly and clearly adjudged in 
 behalf of the force and validity of THAT PATENT — as is indeed over and over again 
 expressly stated and enforced by the rebel Parliament in 1649. It is impossible to deny that 
 (except during the brief period of the usurpation) the Patent in question has exclusively regu- 
 ' lated the precedence of the Earls of Glencairn ever since 1648, and that it has all along been 
 
 legally held to be the true grant and constitution of their dignity, without the least glimpse or 
 suspicion of any other, -^-axiA perhaps no patent has ever been submitted to so keen an ordeal 
 or test, or so explicitly proved to have been so long in observance and constantly acted upon. 
 
 * See the ' Minutes of Evidence,' p. 83, and the Appendix, infra, pp. 486 sqq., with the concluding Observation, p. 490. 
 
 t The Claimant would refer here to his observations on the Speech of Lord St. Leonards, infra, pp. 370 sqq. It is 
 manifest that the argument from reference by the Crown, however irresistible according to English notions and conclusive in the 
 Claimant's favour, is not to be put in comparison with that derived from the original and inherent jurisdiction of the Supreme Civil 
 Court of Law in Scotland. The House of Lords, or any other tribunal to whom the Sovereign may think fit to refer a Peerage 
 claim, advises the Crown — furnishes an Opinion — but nothing more; the Court of Session, at the time under consideration, adjudged 
 finally, without appeal to King or Parliament. See the Claimant's Replies, infra, pp. Iv sqq. ; and also the full ' JNarrative and 
 ' Inquiry ' in the Appendix to the Address, supra, pp. lii sqq. 
 
 H 2 
 
lii ANALYSIS OF THE AEGUMENT. 
 
 The Claimant maintains therefore that the important matter, in question, the validity of 
 the Glencairn Patent 28th May 1488 as unaffected by the Act Rescissory, is ees judicata, — 
 that any attempt at the present day to challenge or set it aside on the ground of that Act 
 is barred and impossible, — and that such attempt, if in the slightest degree countenanced, 
 would be a most dangerous precedent, compromising and tending to shake the most im- 
 portant and sacred private rights and civil interests of individuals, which are much less 
 strongly guarded and protected.* 
 
 If therefore the Glencairn Patent, 28th May 1488, be still valid (as 
 proved), notwithstanding the Act Rescissory, the Patent of the Dukedom of Mon- 
 trose, 18th May 1488, likewise conferred within the period struck at by the Act 
 Rescissory, and in pari cam (so far) with that of Glencairn, must equally (by 
 the concluding Norfolk ratio, and otherwise) be held to be valid, and to convey 
 
 THE honour to THE HEIRS OF THE DuKEDOM, NOTWITHSTANDING THE ACT RESCISSORY .j 
 
 The Montrose Dukedom and Glencairn Earldom, as already mentioned, were the 
 
 ONLY DIGNITIES CONFERRED WITHIN THE PROSCRIBED PERIOD. 
 
 While even were the Glencairn Earldom held to have been rescinded by the Act 
 Rescissory, the Claimant would still prevail on the ground of specialties hereafter to be 
 mentioned, proving that on the Dukedom of Montrose, at least, the Act Rescissory had 
 no effect whatever. — S. Case, pp. 44 sqq. ; Infra, pp. 36 to 60, 137 to 157, both inclusive. 
 
 Objections by the Crown. 
 
 By the Attobnet-General. 
 
 1. " The decision of" the Court of Session in 1648, though " of great authority," " is . . not binding " under the 
 
 peculiar circumstances. The " Court had " not " the means of forming a judgment which " the Committee 
 " now have,'' for " all the important facts " that the Crown " have brought under" the " attention " of the 
 Committee " were unknown to them in the course of that discussion." The Court was ignorant, 
 
 i. That there was a " new creation in 1505 ; " 
 
 ii. That up to 1503 the title had always been that of Lord Kilmaurs, and not Earl of Glencairn. 
 
 — Finding Glencairn sitting as Earl in 1505, " they assumed that he must have sat by virtue of the first title 
 " of 1488, and that therefore the Act Rescissory was not intended to apply to his case. On the other hand, 
 " they did not deny the validity of the Act of Parliament . . because it had been passed by a Parliament 
 " of rebels," only its applicability " to the particular " case. Eglinton " had a very distinct notion that " a new 
 grant had been made, but he " could only suggest it. The charter has been lost and " it was " never . . 
 "entered upon the register." "The result therefore was, that there was nothing to produce." "A 
 " profound conviction'' existed that such a charter must have passed, "but there was no evidence of the 
 " fact." " It came at last to this, that," as Glencairn shewed a sitting in 1505 " anterior to the grant of the 
 " Earldom" to Eglinton, { the Court said, " ' We will take that as a basis upon which we can found our 
 " ' judgment, and we need not go back to see how the title was acquired.' " § 
 
 2. The Decision of 1648 " was at once appealed from to Parliament, and Parliament took a different view. There 
 
 " then arose the great conflict as to whether there was any right of appeal to Parliament, which is now a 
 " matter of history. We know the unpleasant results which it led to between the Court of Session and the 
 " Advocates practising in these Courts. Thus the matter stood till the King interfered and denied the right 
 " of appeal to Parliament, the Parliament nevertheless asserting it. And it is a striking fact that in the 
 " Scottish Bill of Rights we find a distinct and express declaration that there is an appeal to Parliament 
 " from the Court of Session, . . a distinct and emphatic declaration . . that it is the right and privilege of the 
 " subjects of the King to appeal to Parliament 'against sentences pronounced by the Lords of Session, pro- 
 " ' vided the same do not stop the execution of those sentences.' " . . If there was an appeal " to Parliament " 
 —that is, in 1648, " that appeal was made, and the decision of the Court below was reversed by Parliament, 
 " though afterwards . . the King interfered and put a stop to the whole controversy." || 
 
 3. " But . . the Judgment of 1648 is not a judgment binding upon " the House, because " inter alios, and not in 
 
 " any way conclusive upon the present case."11 
 
 * This warning having been disregarded in the Opinions pronounced and Resolution come to by the Committee of Pri- 
 vileges upon the present claim, the Claimant may refer to his remarks upon the subject in his Address to Her Majesty, supra, p. xxiv. 
 
 + The only ground on which this could be questioned would be on a distinction which was attempted to be set up in the 
 pleadings in the Glencairn and Eglinton process in 1637-48, viz. that "creacion of new digniteis" implied dignaies not previously 
 granted to subjects, suoh as Dukedoms, under which category therefore the Dukedom of Montrose would fall, but not the Earldom of 
 Glencairn. Vide infra, pp. 42, 43, 68. But this ground and distinction were rejected by the Lord Chancellor in his Speech on 
 moving the Eesolution, as may be seen, infra, p. 338.— That the caaes of the Earldom of Glencairn and Dukedom of Montrose are 
 "exactly" parallel is distinctly admitted and enforced by the Loud Chancellor and Lord St. Leonards, as may be seen in 
 the passages quoted as the ' Opinion of the Committee,' supra, p. xxxvi. 
 
 t This is on the assumption (by the Ckown) that the Sederunt of the ' Earl of Montgomery,' 25th March 1503 did not prove 
 an Earldom in the Montgomeries, and that the earliest proof of that Earldom was subsequent to 1505. ' 
 
 § Infra, pp. 213 sqq., 228. || Infra, p. 214. TJ f^fra, p. 215. 
 
ANALYSIS OF THE ARGUMENT. Hii 
 
 By the Loud Advocate. 
 
 1. The Claimant asks the House " to look at the Glencairn case as if" it was " considering the question of the 
 
 " Glencairn peerage, — . . it is a mere precedent, taken for what it is worth. . . Unless the facts in the 
 " Montrose case are on all fours with it, it has no materiality in this matter." But the Claimant says it is 
 res judicata, while he sets " aside altogether . . a more recent judgment of a more unquestionable tribunal " — 
 that of the Committee of Privileges in the Glencairn claim in 1796-7 (infra, pp. Ixii sqq.). " The real pith 
 " of the Glencairn case . . is . . What were the grounds of" the " two judgments " in 1648 and 1797 ? " On 
 " what grounds did those judgments proceed ? " And " to what extent are they valuable in this inquiry ? " * 
 
 2. " This question of precedency . . came periodically before the Court of Session — it was a standing feud." 
 
 " Cuthbert and Eglinton were rivals as far back as 1503 " — Eglinton is ranked before Glencairn in the 
 Decreet 1606 — Glencairn reduces it in 1610 — Eglinton reduces the Decreet 1610 in 1617 — Glencairn the 
 Decreet 1617 in 1648 — Eglinton appeals to Parliament, and Parliament again, in 1649, sets the Decreet 1648 
 aside — and in 1661 Parliament reverses the Decreet of 1649. " Each time it was tried," it was " with 
 " a different result." + 
 
 3. With respect to the Decreet 1648, 
 
 i. There were two clear distinctions between the position of Glencairn and that of Eglinton : — 1. 
 " Glencairn sat in Parliament from 1505 ; " 2. "Glencairn obtained a Ratification from Charles I. 
 " in 1637," and " after getting that Ratification," he thought himself " in a better position to try 
 " the question with his old rival." J 
 
 ii. In Gleucairn's Summons, 1637, he grounds his title to sue for reduction of the Decreet 1617, and for 
 declaration of precedency, on the Patent 1488 and the Ratification 1637,— the two therefore are 
 connected. § 
 
 iii. " The Court in 1648 sustained that title as sufiicient," — . . " and to that extent it is impossible to 
 " deny that Lord Loughborough's" statement in his Speech on moving the Resolution of the House 
 of Lords in 1797 " is not altogether . . consistent with fact when he said that the Judgment . . 
 " 1648 did not go upon the patent of 1488 ; because . . the Judgment" does sustain the title, and 
 unquestionably finds, "as between the Patent of 1488 taken along with the Ratification of 1637, 
 " that these combined were a sufficient title to pursue this action of precedency." {| 
 
 iv. " But" the Committee will find, on coming " to the ultimate judgment, . . that it" was "not in the 
 " least necessary for " the Court " to go into the Patent at all, or do more than consider the right of 
 " Lord Eglinton."— For, 
 
 (1.) " It is clear . . that, independently altogether of the Patent 1488," . . Eglinton " had no 
 " claim whatever to precedency, . . because . . Glencairn sits in Parliament as Earl of 
 " Glencairn before . . Eglinton sits in Parliament as Earl of Eglinton." 
 
 (2.) It is true that Eglinton founded on " ' ane Sederunt of Parliament, 25th Merche 1503, 
 " ' bearing Hew Erie of Montgomerie to sitt in Parliament.' " But the " answer made in the 
 " discussion^ seems to be absolutely conclusive," viz. that Eglinton is on that same day and 
 repeatedly afterwards entered as "Lord Montgomery" only. The Claimant "says, 
 " perhaps there was an Earldom of Montgomery afterwards," and he cites a Contract in 
 1516, recorded in the Register of the Supreme Civil Court, in which Hew (first) Earl of 
 Eglinton signs as "Erie of Mungumry." But the Loud Advocate does "not know 
 " whether that is the signature of the Earl of Montgomery. Peers generally signed by 
 " their title, and the signature should have been 'Mungumry.' Apparently it is only a 
 " statement of the clerk or writer as to who the witnesses were. . . The signature is 
 " apparently only a part of the testing clause, . . it does not seem " to the Lord Advo- 
 cate " to be the signature of Lord Montgomery at all." " He never was Earl of Mont- 
 " gomery." " If that is all the evidence of the Earldom of Montgomery, . . it is not of the 
 " slightest weight whatever." ** 
 
 (3.) Setting aside therefore the Sederunt 25th March 1503, and remembering that "this was 
 " entirely a question of precedence, and it was not necessary for the Court to decide on 
 " what title Lord Glencairn sat in Parliament, if in point of fact he had sat with a good 
 " title," " the argument went upon this, that, as there was nothing to shew on what other 
 " title Glencairn sat in Parliament in that capacity " — (they being "quite ignorant of the 
 " existence of any other right in Glencairn," viz. of the new creation in 1503) — "it might be 
 " in some way or other referred back to the Patent of 1488, as the sitting in Parliament 
 " in the interval must be held according to the lapse of time to have worked out the " Act 
 Rescissory. While, " independently of that, . . the mere fact that . . Eglinton could 
 " shew no right before the sitting . . of . . Glencairn would have been of itself suflScient 
 " ground so far as the precedency was concerned." Or, as subsequently stated by the 
 LoED Advocate, " the ratio of the argument . . was this, — Glencairn has sat as Earl for 
 " 150 years — that must be referred to some title or other — there is no title shewn before 
 " 1488 : and therefore it must be referred to that. And if the Act Rescissory is pleaded, 
 
 ♦ Tnfra, pp. 243, 244. t ^^fra, pp. 248, 253. t Infra, p. 243. 
 
 § Infra, p. 246. || Infra, p. 246. 
 
 H As recorded in the ' Minutes of Process,' infra, p. 444. ** Infra, pp. 246, 249, 
 
liv ANALYSIS OF THE AEGUMENT. 
 
 " . . the Act Rescissory has been taken away by tacitus consetisus" on the part of " King 
 " and Parliament " for 150 years.* 
 
 (4.) " In the end," accordingly, the Lords " ' repel the exception and duply,' " that is, Eglinton's 
 plea and argument, " 'in respect of the reason and reply,'" that is, in support of Glen- 
 cairn's, " ' which they found relevant and proven by the writs produced,' " — so that they 
 expressly sustain, among other reasons, Glencairn's argument that tacitus consensus had 
 taken away the effect of the Act Rescissory. The Lord Advocate " will not discuss 
 " that question. . . If it had been a question of lands, if forty years had gone over, not- 
 " withstanding the Act of Parliament, there must have been a good deal to say that 
 "prescription would wipe off the effect of a statute." " Glencairn had a plausible 
 " argument upon this ground, and, being quite ignorant of the proceedings in 1503, the 
 "Lords sustained it." That, substantially, "is the ground and ratio upon which the 
 " Court ultimately repel" Eglinton's "reasons" and "give the precedency to . . 
 " Glencairn." t 
 (5.) Accordingly, the Court reduce the Decreet 1617, and the Decreet of Ranking 1606, so far 
 as Glencairn is concerned, and declare " the right of precedency " in Glencairn " ' for the 
 " ' rossounes and causses abovewrittin : — Becaus the saidis Lordis, haveing first heard, con- 
 " ' siddered, and advysed the alledgances and objectiounes proponit in proces for the pairt of 
 " ' the Erie of Egllntoune and Lord Montgomrie againes the purseweris interes and title 
 " ' abovewrittin, and the purseweris answeris made thairagaines in fortificatioun of his said 
 " ' intres and title foirsaid ' " — This "properly concludes the Decree" — " the Decree 
 " stops there " — the rest is mere narrative " of the grounds on which they went, but that 
 " does not form a part of the judgment. . . It goes on to say that the Court ' susteaned 
 " ' the purseweris ' " (Glencairn's) " ' interes and title above-mentioned, as the samyn standis 
 " ' lybellit and instructit ' " (proved) " ' be the writtis foirsaidis produced be the pursewer for 
 " 'that effect, notwithstanding of the said alledgances maid thairagaines' " by Eglinton, 
 " ' whilk ' (allegiances) ' they repellit in respect of " (in support of) " ' the foirsaid interes 
 " ' and title lybellit, and instructiounes ' " (proofs) " ' thairof, and answeris proponit in forti- 
 " 'ficatioun of the samyn, extant in proces.'" ' So . . that in truth the pursuer's first title 
 " was sustained, but sustained altogether to sue the action and try the question, — but when 
 " the question comes to be tried, the Court reduce the Decrees 1617 and 1606 and declare the 
 " precedence, but there is no judgment that the Act of 1488 had no operation or effect — 
 " there is no judgment that the Patent 1488 was a valid and subsisting patent." It was 
 " unnecessary for the Court to go into the vexed question of the Act Rescissory of 1488. "J 
 V. " The result " of the matter is this,—" that, upon the whole, the Court did not hold the Rescissory 
 " Act of 1488 to be fatal to the Patent, and did not find that the Patent was reduced. On the 
 " other hand, they did not find that the Act" Rescissory "never had effect; but, in the mass, 
 " sustained the grounds of reduction to the effect of giving precedence to . . Glencairn. But amongst 
 " those grounds was . . the fact of the Ratification 1637, . . the sitting in Parliament by . . 
 " Glencairn" in 1505 " without any known title to ascribe it to, . . and . . the fact that . . 
 " Eglinton had shewn no prior right to an acknowledged sitting in Parliament to . . Glencairn. 
 " And the result is this— not a declaration in support of the Patent of 1488, but a simple ratification 
 " of the order of precedency."— A view, however, considerably modified in the notice of the Judg- 
 ment of 1648 as contrasted with that of Lord Loughborough in 1797, at the conclusion of the Loed 
 Advocate's speech (^infra, p. 253), where he states that " the Court of Session came to the con- 
 " elusion . . that his " (Glencairn's) " sitting in Parliament after 1503 must be ascribed to the old 
 " Patent " — i. e. of 1488 ; in which the Claimant cordially agrees with him.§ 
 vi. Although "the names that appear in" the process 1637-48 " are great names in the law of Scotland, 
 " . . the period was not so good a period as regards the Court of Session." Glencairn was then 
 " Lord Justice General. He had taken astrong part . . in favour of the King in 1648, and accordingly 
 " it is not surprising if we find that there is a very considerable leaning on the part of the Court 
 " of Session at that time."|| 
 
 4. Parliament, being "appealed to" by Eglinton, "issued a Decree "—being " the fifth " since the question was 
 mooted, " adjudicating upon the matter, and . . reversing the judgment of the Court of Session, upon the 
 " ground that the Act " Rescissory " was fatal to the Patent." 1 
 
 i. It is not necessary to go into the question of " the power of Parliament to adjudge in matters of 
 " appeal ;" but, whereas the Claimant asserts " that the Court of Session was the only Court that 
 " could entertain such an action," "and that there never was a right of appeal at all to Parliament," 
 
 ♦ Infra, pp. 247-252.— The Lord Advocate grounds this explanation upon arguments of Glencairn's Counsel (infra, 
 p. 441), recorded in the ' Minutes of Process,' printed by the Claimant in the ' Addenda ' to his S. Case and infra, pp. 432 sqq. ; 
 and on which the Attorney-General lays great stress and weight, at the same time that he remarks that " the faith to be given to " 
 them " is doubtful," because they seem " to be nothing but notes taken, probably by the agent of Lord Eglinton, during the 
 " discussion." Infra, p. 251.— They bear, however, a much higher character, being public Minutes, taken down under authority 
 of the Court of Session, on which the ruling Decreet 19th January 1648 subsequently proceeded, and which are quoted, referred to, 
 and reduced in the subsequent Parliamentary Decreet 9th March 1 649, — the passages quoted (in support of the cause of Eglinton and 
 
 the Parliament) corresponding accurately with those in the transcript discovered in Lord Eglinton's archives the repository, it is 
 
 to be remembered, of the unsuccessful competitor. 1 1 is scarcely necessary to observe that if weight is attributed to these ' Minutes ' 
 by the Crown and the Committee against the Claimant, weight ought equally to be attributed to them where they support his 
 argument. 
 
 t Infra, p. 252. J Infra, pp. 250, 251. § Infra, p. 253. || Infra, p. 253. f Infra, p. 253. 
 
ANALYSIS OF THE ARGUMENT. Iv 
 
 citing Lord Stair's statement to this effect,— Erskine, wlio is " the greatest authority in this matter, 
 
 " (because Lord Stair . . was on the bench at the time of the quarrel between the Court of Session 
 
 " and the Advocates" in 1674, " and was thus himself made a party to it,) states that ' it admits of 
 
 " ' no doubt that the Parliament of Scotland, as a Court of Appeal, was in use to determine all 
 
 " ' causes in the last resort — unless where the judgments of any Court were hy special statute 
 
 " ' declared final,' "—but that " ' it may be doubted whether it; " (the Parliament) " ' had any 
 
 " ' original civil jurisdiction, for the decisions in Parliament, mentioned in the Act 1587, cap. 39, 
 
 " ' are probably to be understood only of decisions upon appeal,' " — that the sentences of the Court 
 
 of Session " ' are subject to the review of no Court but the House of Lords, that High Court of 
 
 " ' Appeal which is common to both parts of the United Kingdom'" — that " 'it was warmly 
 
 " ' disputed whether the decrees of the Session were, before the Union of the two kingdoms, subject 
 
 " ' to the review of the Parliament of Scotland,' " — that " ' on the one hand, instances occur in the 
 
 " ' Books of Sederunt,' " in 1555 and 1561-2, . . " ' of parties protesting for remedy of law, i. e. 
 
 " ' of their appealing from the sentences of the Session to the King and Parliament,' " but 
 
 " ' on the other, the Court of Session disallowed this right of appealing, because their sentences 
 
 " ' are declared to have the like force as those of the Old Court of Session, 1537, cap. 39 ; and 
 
 " ' that old Court had a power of judging finally, without appeal to Parliament, 1457, cap. 62,' " 
 
 — " that ' when therefore an appeal was offered to Parliament in 1674 against a decree of the 
 
 ■' ' Session,' " . . the Privy Council, at the instance of the Court, debarred the Advocates 
 
 who had " ' advised it . . from the exercise of their offices,' " and " ' banished them . 
 
 " ' from Edinburgh,'" till . . restored by the Court at " 'the King's desire upon their dis- 
 
 " ' claiming the right of parties to appeal,' " — and that " ' the Convention of Estates in 1689, c. 18, 
 
 " ' declared that the banishment of those Advocates without a trial was a grievance,'" " ' and . . 
 
 " ' asserted it to be the right of every subject to appeal to Parliament against the decrees of the 
 
 " ' Session.'" The Claimant is therefore not justified in maintaining " that such an appeal was 
 
 " never heard of in Scotland, when in truth it is one of the fundamental articles in the settlement of 
 
 " the constitution at the Revolution " — being moreover not "a new enactment, but a declaration of 
 
 " law by the Estates of Parliament."* 
 
 ii. " If that," therefore, " were the only objection to the . . Parliamentary Decree of 1649, it would 
 " be conclusive; . . but it is more a matter of curiosity than anything else, because undoubtedly 
 " the proceedings of that Parliament were reversed " by the Rescissory Act of 1661. " Therefore 
 " it is impossible to say that that judgment " of 1649 " stands." + 
 
 iii. But the Committee have the opinion of Parliament " upon the merits of the proceeding'" in 1648, 
 " though that Parliament was swept away by the Rescissory Act of 1661,"— and the Loed Advocate 
 does " not think that there was much force or weight remaining with the judgment on the Glen- 
 " cairn precedency ease in 1648. "J 
 
 5. But the Judgment 1648 " cannot possibly . . apply to the present case," — because, 
 
 i. " It is res inter alios, and to plead it as res judicata is altogether absurd. There is no such thing 
 
 " as res judicata in the matter of honour." 
 ii. " If . . pleaded as a precedent," the cases must be "similar." But, 
 
 (1) In Glencairn's case there was actual tenure of the Earldom, and the Ratification 1637. 
 " There is neither . . in the present case," " no recognition, no ratification, but, on the 
 " contrary, the whole position was quite the other way." 
 
 (2) " The argument" in 1648 was, " ' Either the patent 1488 is good or the Earldom is bad.' 
 " They were completely ignorant " . . that " a most material proceeding . . in regard 
 " to the Earldom " had taken place " in 1503." Eglinton must have had " some intima- 
 " tion " of it in 1648, because he " offered at a venture to prove that . . Glencairn had " 
 received "a charter in 1504. He did not succeed, . . because he had not the materials 
 " of proving it, and the Court accordingly will not sustain it. But now we have evidence 
 " — not of a charter — but evidence that is conclusive, that . . Glencairn was Lord 
 " Kilmaurs down to 1503, and then he was belted Earl. Whether a charter was granted 
 " or not at that time," the Lord Advocate does "not know. Probably there was. It 
 " was the occasion of the installation of his dignity." If these facts had been "before the 
 " Court," they would have cut up by the roots the ratio of the judgment," and " the deci- 
 " sion would in all probability have been very different. But . . it was appealed to 
 " Parliament, decided by Parliament, and reversed by Parliament." § 
 
 6. The Judgment 1648 is therefore neither applicable as res judicata nor as a precedent to the present case. 
 
 Eeplies. 
 
 1. It is impossible fairly to point out any distinction between the two cases of Glencairn and Montrose, except 
 in favour of the latter. A proceeding began in 1637, which, terminating in the decision 1648, raised and 
 settled the question whether the grant of the Earldom of Glencairn was rescinded by the Act Rescissory. 
 The Claimant has therefore two propositions to establish against the Crown : — 
 
 i. That the Court of Session was not only of competent but exclusive jurisdiction at the time when it 
 
 issued the decision in question, 1648, — 
 ii. That the effect of the Act Rescissory was the very point decided in 1648. || 
 
 * Infra, pp. 254, 255. f Infra, p. 255. I Infra, p. 253-255. § Infra, pp. 253, 254. A^a. PP- 299 sqq 
 
Ivi ANALYSIS.' OF THE ARGUMENT. 
 
 2. FlEST Proposition,— TAa^^Ae Cmrt of Session wai.not only of competent but exclusive jurisdiction in 1648 : — 
 i. By the Act of Parliament 1457'; constituting the ' Lords of Council and Session,' and by the Act 
 1532, constituting and conveying to the 'Court' or Lords of ' Session' the whole power and 
 authority of the ' Lords of Council and Session,' the authority of the Court of Session was made 
 " FINAL, without appeal to King or Parliament : — 
 
 (1) The words of the Act 1457 are as follows :— " Gif ony accione pertening to the saide 
 
 "Lordis knawlege be continewit" (i.e. by a different authority and tribunal) "in the 
 " tyme of the said Sessione in the schyr quhar the Sessione sittis be ony personis, thay 
 " (those) persons to be arestyt furthwithe w^t a masare, and justice to be done therapone 
 " as efferis; and all uthir causes pertenande to the hnawlege of the saide Lordis salbe 
 
 " UTTERLY DECYDIT AND DETERMYNIT BE THAME, BUT (witkout) ONY EEMEIDE OP 
 " APPELLACIONE TO THE KiNG OK TO THE PARLIAMENT." * 
 
 (2) The words of the Act 1532, constituting the College of Justice or modern Court of 
 
 Session, "for the doeing and administracioun of jv slice' in all civile aciiraes," and " to sitt 
 " anddecyde upon all actiouns civile," areas follows :— " Quhais processes, sentences, and 
 " decretis sail have the samin stbehth, force, and effect as the deceetis or the 
 " Lordis of Sessioun had in all tymes bigane.'' t 
 ii. The Court of Session practically exercised this jurisdiction, without question or appeal (as may 
 appear from the very evidence of Erskine, cited by the Crown— the protests in 1555 and 1561-2 
 having been mere words, impotent and ineffectual) till 1688,1— since which time, the Claimant 
 cannot at present say how, the custom of appeal has been established— not to Pariiament collectively, 
 but to the House of Lords. § 
 iii. As regards dignities, from the earliest times till the Revolution two tribunals only exercised juris- 
 diction, the Privy Council and the Court of Session— the Peivt Council summarily and in 
 the first instance (without going into the merits), whether on reference from the Crown or other- 
 wise—the Court of Session ultimately and by inherent right, as the Supreme Cowrt in all civil 
 cmtses— as the Claimant has shewn by the following (among other) practical illustrations in his 
 Supplemental Case, pp. 22 sqq. : — 
 
 (1) Act of James VI., dated " Drumfries," 12 July 1592, " with advise of the Lordis of his 
 " Secreit Counsale," declaring " that, albeit Johnne Lord Maxwell be nominat and styleit 
 " Erie of Mortoun in the lait act and ordinance of Secreit Counsall, be the quhilk he wes 
 " constitute Wardane of the West Marche of this realme," &c., " yit the same nominatioun 
 " and stile sail nowayes hurte nor prejuge the rightis and titlis quhilkis Williame 
 " Douglas Erie of Mortoun hes and pretendis to have as air of taillie to the Erldome 
 " of Mortoun, nor yet impair him in honnour, style, dignitie, pre-eminence, and 
 " privilegeis," &c. " bot that he sail brouke and posses the said Erldome," &c. " als frelie 
 " as he usit and enjoyit [it] at ony time bigane,'' &c. : — Adding " £e it always under- 
 " stand (understood) that thir presentis sail nawayes hinder nor prejuge the foirsaidis 
 ' ' personis of ony actioun quhilkis they have or may have toucheing the decisioun of other 
 
 * Acts of Parliament, vol. ii. p. 47. t Ibid., p. 335. — The above is the true date, not 1537. Vide supra, p. liii, u. f . 
 
 J The Claimant would refer here to the Correspondence between Charles II. and the Court of Session in 1674 (already 
 referred to supra, p. xlix), as adduced in evidence and printed in the Appendix, infra, pp. 495 sqq. ; to the very able and learned 
 Petition of the Earl of Glencairn to Parliament in 1649, remonstrating against the appeal to Parliament from the Court of Session, 
 printed in the ' Addenda ' to the S. Case, pp. 209 sqq., and in the Appendix, infra, pp. 458 sqq. ; and to the testimony of Lord Stair, 
 given supra, p. xlviii. Erskine's authority, however deservedly high and important, cannot be put in comparison with that of Lord 
 Stair, the great luminary (confessedly) of Scottish law ; but his statement actually supports the Claimant's assertions and argument. 
 What took place in 1688 had nothing •whatever to do with the state of the law in 1648 and previously. See also the ' Narrative and 
 ' Inquiry,' supra, pp. LII sqq. 
 
 § Reference was made by Lord St. Leonards in the course of the discussion (pp. 220, 301) to the 'Law Tracts' of Lord 
 Karnes, as proving that an appeal lay to Parliament from the Court of Session. On this point, on the character of Lord Kames as a legal 
 critic, and on the worth of his testimony, the Claimant would refer to his notes on the Speech of the Noble and Learned Lord, 
 infra, ^. 366, note "". But he may subjoin here the statement of Bankton, in his 'Institutes,' published in 1751, as giving a clear and 
 comprehensive summary of the historical facts here brought under discussion : — 
 
 " This Court has jurisdiction in all actions civil, and their sentences and Decrees are declared, by the original institution, to 
 " have the same force and effect as the Decrees of the Lords of Sessi(m had iit times bypast. Now the Lords of Session, to whom reference 
 " is made in this Act, were in ancient times a Committee of Parliament, and were vested with authority to judge finally, and without 
 " ANY remedy by appeal to the King or Parliament from their sentences. ' And by our Claim of Eight, it is only declared to be the 
 " privilege of the subjects to protest for remeid or remedy of law to the King and Parliament against the sentences of the Court of 
 " Session, provided the same did not stop execution of those sentences. Before which period neither appeals nor photesta- 
 
 " TIONS FOR remedy OF LAW WERE THOUGHT TO BE COMPETENT AGAINST THE JUDGEMENTS OF THE CoURT OF SESSION. And for 
 
 " insisting upon it as the privilege of the subjects to have relief from the Parliament against the Decrees of the Court of Session 
 " whereby parties thought themselves aggrieved, the most eminent lawyers of the last age were debarred by the Lords of Session 
 " from the exercise of their oflice ; and which procedure was approved by the King, and the outed Advocates were not re-admitted 
 " till they made submission to the Lords, and obtained the King's consent to that purpose. The whole proceedings upon that 
 " occasion are recorded among the Acts of Sederunt. But since the Union there lies an Appeal to the House of Peers of the Parlia- 
 " ment of Great Britain from the Judgements of the Court of Session, whether interlocutory or definitive; and serving the Writ of 
 " Appeal stops execution till the Appeal is discussed or deserted, as is before observed." (On which latter point, however, 
 the Claimant would refer, as above, to the 'Narrative and Inquiry ,' rajjra, pp. lii sq({.)— Institutes, B. iv. T. iv. § 15; vol. ii.p. 513, 
 edit. 1751. 
 
 On the subject of the Act 1587, o. 39, cited, after Erskine, by the Lord Advocate, but misunderstood, as I conceive, by both, 
 vide supra, p. Liv, u. *. 
 
 The Claimant may also cite the statement by Sir George MacKenzie, Lord Advocate to Charles II., (as given in the Supple- 
 mental Case, p. 55,) that " the Pariiament in 1661 did by letter to the King, in a case betwixt Sir Thomas Hamilton and Alrud, 
 " declare that there could be no appeal from the Lords of Session." — Works, vol. i. p. 198. 
 
ANALYSIS OF THE. ARGUMENT. Ivii 
 
 " of tJiair 7-ichtis and- titlis pretendit be thame to the said Erldome befoir the Jugeis 
 
 "< COMPETENT THAIKTO, AS ACCOBDIS OP THE I,AW." * 
 
 (2) Decreet oi'Ranking of the Nobility (already 'cited), 5th March 1606, by Royal Commission, 
 
 under authority of the King and Privy Council,— by which the precedency awarded 
 by the Commissioners is ordained to " stand in full force and effect ay andwhill (until) 
 " ane Decreet before the Obdiitair Judge be recoverit and obteanit in the contrair ;" and 
 by which, accordingly, reservation is made "to suche persoun or persons as sail find^ 
 " thameselves interest and prejudgit be thair present ranking, to have recourse to the 
 
 " OHDINAB BEMEED OP LAW, BE BEDUCTIOUN BEFORE THE LoHDS OF CoDNSALI, AXD 
 
 " Sessiodn"— i. e. the Court of Session or Supreme Civil Court.t The successive 
 processes and Decreets in the question of precedency between the Earls of Glencairn 
 and Eglinton are all grounded on this reference to the Lords of Session, — a reference 
 by the King himself, which is per se sufficient, independently altogether of the inherent 
 right and jurisdiction of the Court of Session. 
 
 (3) Original Letter of the Lords of Privy Council to James VI., 18th May 1613, on the 
 
 subject of the succession to the Earldom of Eglinton, which had then come into question 
 — disclaiming all interference in the matter, and declaring that such " disputationis " 
 were neither " proper nor competent to be handlit in this judgement (judicatory); bot 
 " BEHOOFEiT to abyde be the course of law in the obdinab judgement of the 
 "Skssion'' — clearly the Court of Session, as premised; owing to which consideration 
 ■they apologise to his Majesty for " oure befuisaill to tak upon ws the decisioun 
 " of a mater now ayes fitting nob competent to cube placeis," — with a further 
 reference to the Session, where the question should be " formalie " and " orderlie 
 " prosequuted."J — And this, though they had issued a mandate just before, on the 28th 
 April 1613, against Sir Alexander Seyton for (uiiauthorisedly) assuming the title of 
 f Earl of Eglinton. The Privy Council appear in this and other cases to have acted in a 
 
 summary, interim, or initiatory way ; but in all cases of discussion or judgment in honours 
 the Court of Session or Supreme Civil Court acted as the proper tribunal, without inter- 
 ference of Parliament or of any other authority. 
 
 And, finally, towards the close of the century, 
 
 (4) Letter from Charles II. to the Court of Session, 16th June 1679, signed " By his Majestie's 
 
 " command," and countersigned "Lauderdale" — concerning a dispute as to precedency 
 between the Earls of Lothian and Roxburghe, in which he says : — ' 'And, seeing all ques- 
 " tions of law and right do properly belong, and ought to be remitted unto you for your 
 " decisions, wee have thought fitt hereby to signify to you that it is, and always was, our 
 " resolutione to rule according to our laws; and that though wee are graciously pleased to 
 " gratify our subjects, yet wee never intended to wrong others, nor to take from them the 
 " meanest right or interest that is theirs by law. Upon all which considerations, wee do 
 " not doubt but that when any question shall come before you concekning that 
 " place and pbecedency, either as to right or possessione, you will judge it according to 
 " law, and will not consider our interest in it further than that, wee being the undoubted 
 " fountain of honour, it is our royall concerne and desyre that the streams of nobility and 
 " honour, which are derived hy patents and grants from us and our Royall predecessors, 
 " be so ordered as there may be no subverting of the same, nor incroaching of one upon 
 " another, and that by your justice and decision the precedency may be adjudged to him 
 " who by law has right and ought to have it." § 
 
 (5) Decreet of the Privy Council, 26th January 1682, by which — after a Petition had been 
 
 presented to them by John Lord Lindores, praying that he " may be acknowledged as 
 " Earle of Rothes, and that he may assume and enjoy the' said title, . . aAd that all other 
 " persones may be discharged (forbidden) to assume or use the said title in time comeing,'' 
 and after an answer had been given in by Margaret Countess of Rothes (in her own right), 
 the other party interested — the Privy Council, having summarily heard both parties, de 
 piano, or at once, " doe eemit || the said mater in debate to the Lords of Session, to be 
 " DiscrsT by^them as accordes of the law." % 
 
 * Acts of Privy Council, 12th July 1592. + See the ' Minutes of Evidence,' pp. 35 sqq., and the App., infra, pp. 418 sqq. 
 
 X MS. Collections of Thomas first Earl of Haddington, Lord President of the Court of Session, and Lord Clerk Register. Adv. Library. 
 
 § Acts of Sederunt, Tail's edition, pp. 142-3. || On the import of this word vide supra, p. 1, note *. 
 
 f Privy Council Register. — Besides the above, the Claimant might have cited the cases of the Earldom of Morton in 1542, of the 
 Earldom of Arran (as granted to Stewart) in 1586, of the Earldom of Lothian in 1631 (noticed in the S. Case, p. 23), of the Earldom of 
 Strathearniu 1632-3 (-S". Case, p. 23), of the peerage of Oliphantin 1633, of the Earldom of Home in 1633-4, of the Sutherland and 
 Errol precedency in 1661, of the peerage ofCoupar in 1671, of the Earldom of Caithness in 1681, and others— in all of which the Court 
 of Session figures as the legal and correct tribunal in cases of honours, and their decisions, when given, as final and conclusive— with not a single 
 instance of the decision by Parliament of a peerage claim or of a question of precedency. The only attempt made was by IJavid Lindsay 
 of Edzell, in 1685, who insisted before Parliament for reduction of the right to the Earldom of Crawford in William seventeenth 
 Earl of Crawford, with a declarator of his own right to the dignity ; but, after a citation and mutual informations, all at once the 
 process closed, as it must be presumed, from its irregularity and incompetency ; and not a trace of it is to be found in the Books of 
 Parliament, — while the High Commissioner is stated to have put his veto upon it, as in duty bound to do. Crawford Case, pp. 139, 
 195, 196; and Eiddell's Peerage and Consistorial Law, pp. 967 sqq. The facts stated in this note are supported duly by authorities 
 in the public records and private charter-chests. See also the ' Narrative and Inquiry,' supra, p. lv. 
 
 Even in 1587 it was expressly provided by two statutes of Parliament, that disputes for precedency should be tried and 
 
 I 
 
Iviii ANALYSIS OF THE ARGUMENT. 
 
 — While, practically, during all this time, peerage claims were discussed and finally decided by the Court 
 of Session, and by the Court of Session alone — there being no instance of the decision of a Peerage 
 claim by Parliament or by any other tribunal, and no instance of an appeal being actually made 
 from the Court of Session to Crown or Parliament, except the illegal and incompetent appeal of 
 Eglinton to the rebel Parliament in 1649, which Parliament, with all its proceedings, including the 
 Decreet in consequence of that appeal, was rescinded in 1661, as admitted by the Lobd Advocatje. 
 And Parliament, as has been shewn, had refused to entertain the question of the Glencairn and 
 "" Eglinton precedency in 1641, as not "competent." 
 
 iv. To a question by a Noble and Learned Lord, On what then "does the power of this House" in 
 peerages " rest," if (according to the context) it be not inherited from the Scottish Parliament? — 
 the Claimant replies. That tlie House of Lords has no power or jurisdiction whatever in peerages — 
 the House sits, not as a Court of Justice but as a Committee of Privileges, on express and special 
 reference from the Crown, and no appeal lies to it from the Court of Session.* 
 
 V. To a question by the same Noble and Learned Lord, " How has the Court of Session lost, if it has 
 " lost, its jurisdiction ? " And " Do you contend that the Court of Session has now the power of 
 " deciding upon the right to a peerage ? " the Claimant replies. That nothing that occurred either at 
 the Revolution or the Union has deprived the Court of Session of the jurisdiction which it exercised 
 in dignities, — that it has exercised that jurisdiction since the Union in the case of the peerage of 
 Lovat, so late as 1730, and others, — and the Claimant cannot admit that it does not possess jurisdiction 
 now. But the jurisdiction has long been disused ; and the cause of that disuser would merely be 
 matter of historical speculation. f 
 
 vi. All this, however, is ibkelevant, and leaves the question of the authority of the Court of Session in 
 1648 untouched. Whatever change may have been introduced in 1688, thk Codbt was competent 
 IN HONOURS IX 1637-48, both by authority and practice. And it is most remarkable that no objection 
 was taken to the authority of the Court in 1648 by the learned and able counsel engaged on the side 
 of the Earl of Eglinton, when such an objection would have been so relevant.:]; — And lastly, 
 
 vii. Whereas the expressions of the ATTORNEY-GEXEaAi, are calculated to create the impression that the 
 conflict as to the right of appeal to Parliament arose out of the interference of the King and was the 
 concluding phase of the Glencairn case, that these events all related to one transaction, and that the 
 dates were nearly consecutive ; it may suffice to say, as may indeed have become sufficiently apparent, 
 that the Glencairn decision was in 1648, and had nothing whatever to do ivith the later case of the 
 Advocates in 1674, or with the Claim of Right at the Revolution in 1689. The Claimant must also 
 thoroughly dissent from and protest against the view of the Lord Advocate, that, although the 
 Decreets of the rebellious Parliament in 1649 were rescinded, with the whole proceedings of that 
 Parliament, after the Restoration, the opinion of that Parliament on the merits of the case is of 
 weight as opposed to the judgment of the Court of Session in 1648. It is impossible to maintain 
 such a view on any principle of loyalty or law.§ 
 
 3. Second Proposition, — That the effect of the Act Rescissory was the very point decidedin 1648 : — 
 
 i. Whereas the precedency question is represented as having come periodically before the Court of 
 Session — as exhibiting a succession of decisions, first one way, then another — and as being, in fact a 
 vexata qucestio, this was not the case. The decision by the Royal Commission in 1606 was a mere 
 process of ranking, in the absence of Glencairn and the Patent 1488, with a reference for ulterior 
 proceedings in case of error or dissatisfaction to the Court of Session. The second, in 1610, was 
 by the Court of Session at the instance of Glencairn, who produced his patent and obtained 
 precedence accordingly. The third, in 1617, also by the Court of Session, rescinded the second, or 
 preceding one, merely on technical grounds, and restored things to their former state and order. 
 Then came the fourth and last proceeding, in 1637-48, by which Glencairn was restored to his 
 
 finally decided — not by Parliament itself, but by a Commission, of whom the Earl Marischal was always to be one, and who were to confer 
 with the Lord Lyon Kiag-at-Arms, &c. {Acts, vol. iii. pp. 443, 444),— statutes, however, which proved mere bruta fulmina, and nothing 
 was effected till the appointment of the Eoyal Commission, in 1606, which issued the Decree of Ranking above founded upon. Vide 
 supra, p. I.V, n. tttt- 
 
 It is to be observed that notices of peerage proceedings ai-e but meagre previously to the middle of the sixteenth centuiy ; 
 but in the only case, earlier in point of date, of a contested claim to a dignity, that of the Earldom of Marr, in 1457, the proceedings 
 
 (as already mentioned, supra, p. xL, note *) took place, tiot before Parliament, but in a Circuit Justiciary Court held at Aberdeen 
 
 clearly shewing that it was the ordinary civil tribunal, and not Parliament, which had cognisance of and determined a right to an honour. 
 
 * Infra, p. 300. 
 
 t Infra, pp. 300 sqq.— For more on this point see the notes to the Noble and Learned Lord's Speech, infra, pp. 367 sqq. 
 
 X With regard to some incidental observations of the Noble and Learned Lord above alluded to, to the effect that " You can 
 " hardly say that the question of the right to a Peerage was a question in a civil case. No doubt it is not a criminal case, but it is 
 " a case of jurisdiction, power, pre-eminence, and authority, and is hardly a case which, under ordinary circumstances, would form 
 
 " the subject of determination by a Court of .Tustice to whom a Parliamentary power was not expressly delegated," infra p 215 
 
 and, " If civil cases in the words of the Act of Parliament," i. e. of 1532, " included dignities, then" the Court of Session " had 
 " the power, and used the power, beyond all question," infra, p. 301,— the latter observation indicating a doubt upon a subject which the 
 Claimant believes to be self-evident, and the more especially after the evidence just adduced— the Claimant would refer to his note 
 upon a passage in the Noble and Learned Lord's Speech on moving the Resolution, in which that doubt is argued upon as a 
 certainty, infra, p. 366. The Claimant would also again refer, with regard to this particular point, to the able Petition presented 
 by Glencairn to Parliament in 1649, protesting against its interference, printed in the S. Case, pp. 209 sqq., and in the App., infra, 
 pp. 495 sqq. 
 
 § Infra, pp. 139, 140 ; 147 to 150 ; 299 sqq. On the whole question here discussed, the Claimant would refer to the ' Nar- 
 ' rative and Inquiry,' subjoined to the preceding Address, supra, pp. lii sqq. 
 
ANALYSIS OF THE ARGUMENT. 
 
 lix 
 
 precedence in virtue of tlie Patent 1488, as in the former Decreet 1610. Tliere was no such 
 
 alternation of decisions as is represented ; and from the beginning to the end the decisions ly tlie Court 
 
 of Session, the only Court competent to judge m the matter, were uniform and consistent, so far as 
 
 the Patent 1488 was concerned. 
 
 ii. Whereas it is urged that in the final process of 1637-48 the question of the Patent and of the operation 
 
 of the Act Rescissory on the Patent was not necessarily determined, there were two ways in which 
 
 the right to precedence could be determined : 1. By production of the patents of the two Earls, in 
 
 which case the older patent would prevail ; 2. By resorting to sittings in Parliament, or other 
 
 equivalent legal evidence, in which case the earlier vouchers would determine the precedence. I he 
 
 Eglinton patent not being forthcoming, and it not being recorded in the Great Seal Register, they 
 
 were obliged to have recourse to sittings. Glencairn proved a sitting in 1 505, Eglinton one in 
 
 1503 as " Comes Mungumry." * The original creation of the Earldom as granted to the Mont- 
 
 gomeries not being extant, it may be doubtful what the proper title was ; but it is certain, and the 
 
 Claimant has proved it in his Supplemental Case by legal evidence, and it is not disputed except 
 
 by incidentally ignoring it, that the title of ' Earl of Montgonnery ' vjas occasionally and duly 
 
 applied to every one of the early Earls of Eglinton (^v/ilh the exception of the fourth Earl, who perished 
 
 within a few months after his accession to the title), viz. to Hugh the first Earl — signing himself 
 
 " Erie OP Mungumry" in 1516; to "Dame Marioun Setoun, Countess or Muntgumry," the 
 
 wife of Hugh second Earl of Eglinton, in 1551-2; to " Hew Earl op Montgomery," the third 
 
 Earl of Eglinton, in 1567; to Hugh " Erie op Mustgomery," the fifth Earl, in 1590, — and to 
 
 Alexander " Erlkof Montgomebie," the sixth Earl, and first of the Winton or Seyton line of the 
 
 family, in 1619.t While, with special reference to the Contract 12th April 1516, adduced by the 
 
 Claimant from the ' Acta Dominorum Concilii,' if and in regard to which the Lord Advocate states 
 
 that he does " not know whether" the signature appended to it, " Eule op Mungumry," " is the 
 
 " signature of the Earl of Montgomery," — adding, that " peers generally signed by their title, and the 
 
 " signature should have been ' Mungumry,' " — that " apparently it is only a statement of the clerk 
 
 " or writer as to who the witnesses were," — that " the signature is apparently only a part of the testing 
 
 " clause," and that " it does not seem " to the Learned Gentleman " to be the signature of Lord Mont- 
 
 "gomeryatall" — the Claimantreplies, that the Contract in question, so subscribed, is solemnly recorded, 
 
 by authority, in the records of the Supreme Civil Court, — that it was the custom for Scottish peers at 
 
 that time, and even till the close of the reign of James I., (in accordance with French and Continental 
 
 >.. usage,) to sign with the prefix of their title, as in the Contract adduced, i. e. as " Erie ofMungumry " 
 
 and not " Mungumry " simply — a practice of comparatively modern origin, — that the " Erle or 
 
 " Mungumry " signs at the foot of the document, being a principal in the transaction, andfnot as 
 
 one of the witnesses, whose names are separately recorded in the testing clause, — and, in conclusion, 
 
 that, such being the case, the evidence in question, proving that Hugli first Earl of Eglinton bore 
 
 the title of ' Earl of Montgomery ' interchangeably with that of Eglinton in 1516, establishes and 
 
 vindicates the authority and correctness of the insertion " Comes Mungumry" in the Sederunt 25th 
 
 March 1503.§ The Sederunt 25th March 1503 was also held "a good and valid evident" by the 
 
 Royal Commission which issued the Decreet of Ranking in 1606, as appears both from the statement 
 
 in the Parliamentary Decreet 9th March 1649 and from the contemporary MS. account of the 
 
 " Productions maid be the nobilmen anent the precedencie in Council and Parliament " on that 
 
 occasion, by Sir James Balfour, afterwards Lord Lyon King at Arms, and who moreover describes 
 
 the Earl of Eglinton who produced it under the very appellation here under discussion, — " Compirit 
 
 " Comes Montgomery," &c.,|| — in conformity with the alternate or, as the Parliamentary Decreet 
 
 just cited calls it, " promiscuous" practice above proved.^ — If therefore the matter had rested thus — 
 
 Olencaim sitting as Earl in 1505, and Eglinton as Earl on the 26th March 1503, Eglinton must 
 
 have been preferred ; but to countervail the sitting in 1503, Olencaim resorted (and had no other 
 
 resort) to the Patent 1488 — #ie very patent said to have been voided by the Act Bescisswy. To the 
 
 Patent thus opposed to him, Eglinton then opposed the Act Bescissory, and contended (as the Crown 
 
 now contends against the present Claimant) that that Act annulled the Patent. It was indeed 
 
 insisted that Glencairn 's sitting in 1505 was attributable to some other and later patent, granted 
 
 between 1503 and 1505 ; but, on the Court ruling that Eglinton must either produce the supposed 
 
 patent or put Glencairn on his oath as to its existence, and Eglinton being unable to do the one and 
 
 * The Sederunt of 1503 was not, strictly speaking, a Sederunt in Parliament, but in the Court of the ' Lords of Council 
 ' and Session,' or Supreme Civil Court. It amounts, however, to precisely the same thing as a sitting in Parliament, inasmuch as 
 the Lords of Council and Session were selected by the King from among the members of Parliament exclusively, as by the Act 
 1425, quoted supra, p. LII, and no one could sit as a Lord of Council and Session who was not at the same time sitting in Parlia- 
 ment,— owing to which they are frequently, although incorrectly, described as a Committee of Parliament. Vide infra, p. 366, and 
 n. f . Sittings in Parliament are not, however, imperative in the case of Scottish peerages, the constitution of which may be proved 
 by other equivalent legal evidence, as by acknowledged practice and precedent. See the ' NaiTative and Inquiry,' supra, pp. lxii, 
 Lxiii. The evidence of the Sederunt 1503 was received without question (as will appear) by the Koyal Commission who issued 
 the Decreet in 1606. 
 
 t Supplemental Case, pp. 71, 72. X Ibid. Addenda, p. 214. 
 
 § For this Contract (which, the certified copy having been mislaid, was not given in evidence) see App. infra, pp.505, 506. 
 
 II Preserved in the Advocates' Library, and quoted in the S. Case, p. 45. 
 
 f In additional illustration, (having only fallen under his notice while revising the present Analysis,) the Claimant may cite 
 the following passage in a letter from Randolph (Queen Elizabeth's Ambassador in Scotland) to Sir William Cecil, dated the 
 20th March 1564-5,—" My Lord Argile has taken into his defence in all his just actions the Earl op Montgomery, alias Eglin- 
 " toun, and inteudeth to make a mariage between the Earl of Cassills and the Duke's daughter," &c. &c.— i>om the original in the 
 Cottonian Library, Keith's Church History, edit, folio, p. 272. 
 
 I 2 
 
h. ANALYSIS OF THE ARGUMENT. 
 
 refusing to do the other, that point was removed altogether from the consideration of the Court.* 
 
 And thus, at the last moment, at the moment of decision, the only question submitted to this Court of 
 competent jurisdiction for decision was this, 'Did tlie Act Rescissory annul the Patent ? ' It a/ppea/ri 
 hy the Decreet that they held it did not, and they adjudged in favour of Olencairn ; which couid only 
 have proceeded on the validity of the Patent 1488 notwithstanding the Act Rescissory. And this 
 decided, and made res judicata the decision, that the Act Rescissory did not repeal the patent.f 
 
 iii. That the decision in 1648 proceeded alone on the Patent 1488 appears also from the appeal to 
 Parliament and the two Parliamentary Decreets given in evidence, the one, of the 2nd March 1649, 
 expressly annulling the Patent (shewing that it was the only matter in question), the other, 9th 
 March 1649, calling for the Patent and annulling the Decreet 1648 as " maynelie " proceeding upon 
 it. The more these two Decreets are considered, the more clearly is the fact demonstrated that 
 the decision of the Court of Session proceeded alone on the ground that the Act Rescissory did 
 not invalidate the Patent 1488. 
 
 iv. It being admitted that the Parliamentary Decreets of 1649 were rescinded in 1661, the Committee 
 have therefore now before them, in the Glencairn case, 1. The decision of the Court of Session in 
 1648 on the very point that the Act Rescissory did not annul the grant of a dignity standing in 
 precisely the same position as the Dukedom of Montrose ; and 2. The fact, that this decision was 
 acted on, against the opposition of adverse and dissatisfied parties, from 1648, or at least from after 
 the Restoration, till 1796, when the late Earl of Glencairn died. % 
 
 4. Whereas it is urged by the Cbown, that, although the Glencairn case is of great authority, it is not binding 
 under the peculiar circumstances now, because, 1. It h a. ]nAgment inter alios ; 2. The cases are not parallel, 
 — there was actual tenure on the part of the Earl of Glencairn in 1505, and the circumstance of the Ratification 
 in 1637, whereas there was neither tenure nor recognition in the present case ; and 3. The Court in 1648 
 were ignorant of the fact of the new creation in 1503, and did not know that up to 1503 the title had been 
 Lord Kilmaurs and not Earl of Glencairn, — the Claimant answers, 
 
 i. That, although inter alios, the point in question was substantially the same as regards the two patents, 
 and absolutely the same as regards the Act Rescissory. 
 
 ii. That he will presently prove that the Dukedom and estates granted by the Montrose patent were 
 enjoyed subsequently to the Act Rescissory and before the Regrant 18th September 1489, and that 
 the Regrant must have been a Confirmation or Ratification, although uncalled for except on the 
 principle accumula/ndi jura juribus — while even if there had been no enjoymeiit^o Ratification, the 
 Norfolk case and this very Olencairn case preclude any prejudice to him, and unless the Act Rescissory 
 cut the Patent down hy its own force, no disuse or non-claim can impair its validity.^ With respect to 
 the Ratification 1637, it gradually in the process 1637-48 sank into insignificance, the whole question 
 concentrating itself on the respective validity of the Patent 1488, standing alone on its own merits, 
 and the Act Rescissory.]] 
 
 iii. That the Court of Session in 1648 were ignorant of nothing that it was essential to them to know in 
 order to come to a right decision : — 
 
 (1) The alleged creation of 1503, as narrated by the herald Young (if admissible as evidence), 
 amounts to nothing more, by the admission of the LoED Advocate, than a narrative of 
 the "installation" or inauguration of the dignity through "belting;" and the suggestion 
 by the Attorney-General that there must have been a (strictly) contemporary charter, 
 and that something must have been done between 1503 and 1505 to create the Earldom, is 
 precisely the theory (neither more nor less) which was started by Eylinton, and ultimately 
 withdrawn by himself as untenable, in 1648. The Attorney-General says of that theory 
 in 1648, "A profound conviction " existed that such a charter must have passed, "but 
 " there was no evidence of the fact :" — The Claimant submits that there is no more proof 
 now than then of a new or original creation in 1 503. And the indisputable facts that, 
 while the patents granted to the Earls of Montrose and Arran, and on which they were 
 
 * " An Interlocutor in pmsentia (that is, of the Court), if it be not either reclaimed against within the limited time, or if it 
 " be affirmed by a second Interlocutor upon a reclaiming bill, has, even before extract, the full effect of a res judicata as to the Court 
 
 •• of Session"— the tribunal of last resort, as judges, in the question of precedency. — Erskine's Institute, Book iv. Tit. iii. § 5. The 
 
 decision or interlocutor of the Court in 1648, to the effect that Eglinton's suggestion should not be entertained " wUess it be instantlie 
 " verified by productioune of the patent quherupme the samyne is foundit, or referred to the perseweris" (Glencairu's) " oath"— not 
 having been reclaimed against and being hence final, has thus the force of res judicata on the point in question. 
 
 + The Claimant need hardly remark that the Decree does not properly stop at the point indicated by the Lord Advocate, 
 and that the " reasons " assigned in the passage that follows (which the Lord Advocate did him the justice to quote) are necessarily 
 a " part of the judgment." 
 
 t Infrf't PP- 304 sqq.— With respect to the Lord Advocate's description of the Decreet, as given, supra, p. Iv, paragraph (5), 
 the Claimant would earnestly request a reference to his Analysis of the Decreet, as given in the Appendix, infra, pp. 446 sqq., and 
 to the Decreet itself — from which its true and full bearing and interpretation will at once appear. 
 
 § Neither was there any recognition in the Devon case, decided in 1831. 
 
 II On the subject of the Eatification, the Claimant would refer to his note on a passage in the Lord Chancellor's Speech, 
 infra, p. 336. He there Observes, after vindicating the power of the Scottish Kings, including Charles 1., to restore against Acts of 
 Parliament, that "in point of fact Charles I. did no such thing" in the case of the Ratification 1637,—" he merely acted in accord- 
 " ance with the Decreet of the Supreme Civil Court, the Court of Session, in 1610, in recognition of the Glencairn Patent (which 
 " recognition stood clear and imimpeachable notwithstanding the Reduction of that Decreet on distinct and technical grounds 
 " in 1617), and also in conformity with the previous recognition by the Supreme Civil Court in 1516-7," &c. " The Claimant 
 " does not found except in a very secondary degree on the Eatification of 1637— although it makes the Glencairn case identical with 
 " that of Norfolk, as confirmed by Henry VI. in 1444."— See also Lord St. Leonards' Speech, infra, p. 365, n. *. 
 
ANALYSIS OF THE AKGUMENT. 
 
 Ixi 
 
 inaugurated in 1503, are duly recorded in the Great Seal Register, no such Glencairn 
 patent is there recorded, and that no other patent whatever except thai of 1488 exists in 
 the Glencairn archives, or lias ever been heard of, suffice to negative the presumption. 
 
 (2) The fact that the son and the grandson of Alexander Earl of Glencairn, the patentee in 1488, 
 did not (as in the Norfolk instance) assume the title for many years after the death of the 
 patentee, was proved and dwelt upon before the Lords of Session in 1648, — the only 
 difference being that the proof extended only from 1488 to 1499, instead of to 1503 
 — which is manifestly unimportant.* 
 
 — The objections of the Crown to the relevance of the Glencairn case as a ruling precedent in the present 
 claim are thus fully refuted.t 
 
 5. The Glencairn case, although not res judicata in this particular instance, is therefore a precedent — A decision, 
 
 not on this very Montrose patent, but (what comes to tlie same thing) ON THIS vert Act Eescissort, on a 
 
 PATENT IDENTICAL WITH THE MONTROSB PATENT, AND ON THE VERT QUESTION NOW SUBMITTED TO THE 
 
 Committee — a decision arrived at, after eleven years' inquiry, by a Court not only op competent but 
 OP EXCLUSIVE JURISDICTION, after argument by the ablest counsel who ever flourished contemporaneously in 
 Scotland, and at a time nearer by 150 years to the reign of James III. — a decision accompanied by every- 
 thing that can add weight to the decision of any legal tribunal. While, independently of this, it proceeded 
 
 ON REFERENCE FROM THE CrOWN, AND HAS BEEN ACTED UPON EVER SINCE.J 
 
 6. And, finally, whereas an imputation is cast by the Lord Advocate on the Court of Session as partial judges, 
 
 influenced by the ruling powers, &c. &c., the Claimant has merely to remark that at the time when the 
 decision was pronounced in favour of Glencairn, Charles I. was a close prisoner in Carisbrooke Castle, in the 
 Isle of Wight, the most remote corner of the distinct kingdom of England, and was then as little capable of 
 influencing the Court of Session as of melting the hearts of Cromwell and his enemies. — But the character of 
 the Court of Session needs no defence at the Claimant's hands.§ 
 
 Opinions of the Committee. 
 
 Lord Chancellor. — " The only thing which appeared to me to raise the semblance of any fair doubt upon the 
 " subject" of the present claim, " was the decision in what has been called the Glencairn case. But . . that 
 " also entirely fails as a precedent, and ought not to have any influence . . in this case.'' 
 
 " A dispute having arisen . . in the Scottish Parliament as to precedence, a Decree of Ranking . . was 
 " made . . by the Parliament itself," in which Glencairn was classed " below Lord Eglinton and . . others. In 
 " 1610, Lord Glencairn, being dissatisfied with this, instituted a proceeding in the Court of Session, to have 
 " it corrected. . . The Court of Session came to the conclusion that he was right. . . Against that decision there 
 " was a further appeal on the part of" Eglinton; "and in 1617 the Decision of 1610 was reversed, and 
 " the old order restored. And then . . a further proceeding was instituted . . by Glencairn. In this con- 
 " fused state of things, there having been, first, a Decree of Ranking in one way, corrected afterwards by the 
 " Court of Session in another way, . . Glencairn . . having made great favour with Charles I., . . in the year 
 " 1637 King Charles I. took upon himself to issue letters patent confirming the original grant of 1488 '" — 
 which the King could not legally do ; " and, in consequence of that, Glencairn again applied . . to the 
 " Court of Session. And, finally, . . in January 1648, only a few days before the execution of Charles I., the 
 " Court of Session decreed in favour of the Earl of Glencairn: that is to say, it decreed that the original 
 " charter was still in force, and that he therefore took precedence of the Earl of Eglinton, who had only been 
 " created some time after the original grant had been made to . . Glencairn." " Eglinton, who, I suppose, 
 " was on the other side in the politics of the day, went before the Parliament of Scotland, and in the following 
 " year Parliament reversed what the Court of Session had done. . . Then came the Commonwealth, and then, 
 " in 1660, the Restoration ; and in 1661 the Act of Parliament which had revoked the Decree of the Court 
 " of Session was swept away ; so that the Decree of 1648 was set up again." 
 
 " Now what is said " by the Claimant " is this, . , that the Court of Session, being a competent tribunal, 
 " decided in 1648 something which necessarily shews that the Act Rescissory had not the effect of destroying 
 " dignities ; and that, if that was so, if it did not destroy" the Earldom of Glencairn, " it could not have 
 " destroyed" the Dukedom of Montrose. 
 
 Undoubtedly " the Court of Session came to the conclusion that the Earl of Glencairn took precedence of 
 " the Earl of Eglinton : they must have come to the conclusion therefore that the original Patent was in force. 
 
 * Among the charters adduced by Glencairn in the process 1637-48, were " Ane Charter, daittit in anno 1492, granted be 
 " the Kingis Majestic to Cuthbert Lord Kilmawris, of the landis of Drumalbane, and utheris thairin-contenit ; and aue uther Char- 
 " tor, in anno 1498, under the Great Seall, to William Conynghame, appeirand air to William [Cuthbert] Lord Kilmawris, of the 
 " landis of Kilmawris, and utheris thairin-contenit," (^Schedule of evidence. Decreet 1648) : — On which the Lord Advocate and 
 Nicolson, counsel for Eglinton, plead, as in the ' Minutes of Process,' that " Cuthbert, sone to Alexander, satt in Parliament that 
 " same yeir, in anno 1488, as Lord Kilmaweris, when the Act Rescissorie was voited, [and] in anno 1492 and 1498 resavit infeft- 
 " mentes under the Great Seall as Lord Kilmaweris, quhilk most imply ane direct passing from the patent and acquiescing to the 
 " rescissing therof." — To which Glencairn replied, that, " albeit Cuthbert sat in Parliament in the trublsum tymes efter King 
 " James 3. deceis'' as Lord Kilmaurs, " that could not debar him from assumeing that dew place quhairto he had a richt quhill 
 " [quhen] he pleisit," — " any intromissioun (intermission) " being " onlie in respect of the tymes." — S. Case, Addenda, p. 19!) ; and 
 Appendix, infra, pp. 433, 434, 454. + Infra, pp. 299, 304, 305. 
 
 X 8. Case, pp. 57, 58 ; infra, pp. 306 sqq. The statement of the Lord Advocate {supra, p. Iv) that it is " absurd " to plead 
 the Glencairn case as " res judicata, and that there is no such thing as res judicata in the matter of honours," does not at all apply 
 to the Supreme Civil Court, where decisions on peerage claims were final and res judicatee as much as in any other matter of which 
 the law took cognisance. Compare Glencaim's Petition, infra, p. 458. § Vide infra, p. 337, and n. §. 
 
Ixii ANALYSIS OF THE AEGUMENT. 
 
 " But . . it is very difficult .'. to be certain that one understands exactly the principle upon which the Court of 
 " Session proceeded in that case.".. "There was .. no evidence of sittings in Parliament except sittings 
 " which shewed that . . Eglinton never sat as Earl of Eglinton until after the time when it is admitted on 
 " all hands that . . Glencairn sat as Earl of Glencairn." If therefore the Court of Session AMnot attach value 
 to the Sederunt of the ' Comes Mungumry,' 25th March 1503, " it was not necessary for the justice of their 
 " decision that they should have said a word about the Act Rescissory. No doubt the Act Rescissory was 
 " pressed upon them in argument, but there is nothing in the judgment which shews that they acted upon the 
 " Act Rescissory at all. It may be that they said, ' We can only see in what order these parties have sat in 
 " ' Parliament, and we see that the Earl of Glencairn sat as Earl in Parliament at a time which must have 
 " ' given him the precedence.' That might have been the ground upon which they decided." 
 
 " But . . it is idle not to see that to derive any precedent . . from the transactions of those troublous times 
 " would be . . to shut your eyes to what must have been the truth of the case. The Court of Session decided 
 " one way, and as a matter of course Parliament decided the other way. And afterwards, when the tables 
 " were again turned, the new Parliament revoked what the former Parliament had done." 
 
 That " we have better means of judging of the truth of the case after the lapse of 350 years than " the 
 Court of Session " had after the lapse of 150 years," appears from the " great quantity of documents illus- 
 " trating and throwing light upon this subject, now before" the Committee—" which were not before the 
 " Court of Session ; because all the documents which they had are referred to " the Committee, and the 
 Committee has " now many which they had not the advantage of consulting." 
 
 The Noble and Learned Lord is therefore " of opinion, that that which can only be looked at as a pre- 
 " cedent is not a precedent which can or ought to be looked at as a precedent guiding " the Committee " in 
 " this case." On the contrary, it " entirely fails as a precedent." — Infra, pp. 331 sqq. 
 
 LOBD St. Leonards. — " Lord Kilmaurs, when created Earl of Glencairn," that is, in 1503, "at once takes his 
 " title, and he goes on enjoying it for years. He gets into great discussions with Lord Eglinton about 
 " precedence, and King Charles thinks fit, in 1637, to attempt to give to the Earl thebenefit, by Confir- 
 " mation, of the original grant of 1488 — if there was such a thing ; but which could not be done by law. 
 " It introduced, however, an element into that case which is not to be found here. Therefore to attempt to 
 " make that a precedent here would be impossible." 
 
 Whereas it is stated " that in 1648 the Court of Session in Scotland alone had the right to adjudicate upon 
 " peerages, that proposition . . is not made out at all to" the Noble and Learned Lord's " satisfaction." — 
 " If " that right " existed before the Act of Union, why should it not exist now?" "There is nothing in 
 " the Act of Union to disturb the right and powers of the Court of Session if that Court really had the 
 " exclusive jurisdiction." But that jurisdiction " has passed entirely . . by the authority of the Crown to this 
 " House. Therefore " the exclusive jurisdiction of the Court of Session falls to the ground. But I do not 
 " myself see that this matter has any important bearing upon the argument either one way or the other. . . 
 " Exactly as either the one power or the other preponderated, so was the decision. If you will tell me the 
 " date of the Parliament, and want to know the decision, I will tell you what it was; because, knowing who 
 " was in power, I should know what the decision was. The decision always went according to the power 
 " which at the moment ruled, — and that very Resolution of 1648 was upset by a Resolution of Parliament in 
 " 1649 ; and that Parliament itself was again struck at by a subsequent Resolution " — i. e. by the Act Rescissory 
 in 1661, after the Restoration. " But what does it all amount to? Only that thei-e is a continual uncer- 
 " tainty, a continual fluctuation, in the decisions upon the subject, which detracts from the weight which 
 " otherwise might be given to any one of those decisions, or to all of them taken together. 
 
 " The thing," therefore, " remains untouched." — Infra, pp. 365 sqq. 
 
 Observation. 
 
 The points suggesting remark in the preceding passages are so numerous that the Claimant abstains from offering 
 any in this place, and would refer to his notes upon the passages in question, infra, pp. 331 sqq., and 365 
 sqq. — He may add, however, that the Chairman observed, in the course of the discussion, in answer to an 
 objection by the Cbown, to the effect that Cuthbert Earl of Glencairn "takes a new title of Earl of Glen- 
 " cairn as from a posterior period" to 1488 — " That is the point which the Couet of Session decided ; 
 " he took the title in 1503, BUT HE TOOK IT UPON THE PATENT OF 1488." And subsequently, " The 
 " CouET OF Session found that tiiebe was nothing in the Act Rescissory preventing his 
 " assuming the title." And, " Whether they were right or wrong, they accepted the Patent op 
 " 1488."— /«/ra, p. 214.— With which the Claimant need hardly say that he cordially agrees. That the 
 judgment thus pronounced by the competent and exclusive Scottish tribunal in 1648 is binding on the 
 House of Lords now and subsequently to the Union, is manifest (independently of any other argument) 
 from Lord Brougham's decision in the Waterford claim in 1832, as quoted infra p. 340 n. ('). 
 
 7. It only remains to notice the Resolution by the Committee of Privileges in the Glencairn claim 
 in 1797. 
 
 On the death of Alexander tenth Earl of Glencairn in 1670, the Earldom passed over his 
 daughter, Margaret (afterwards) Countess of Lauderdale, who died in 1740, to Earl Alexander's younger 
 brother, John eleventh Earl of Glencairn.* The male descendants of the latter failed in 1796, when Sir 
 
 " " Joannes Comes de Glencairn" is served nearest and lawful heir male to Alexander Earl of Glencairn, his brother 
 german, on the 29th September 1670. — Seoords of Chancery. See the Pedigree, supra, p. xxxv. 
 
ANALYSIS OF THE ARGUMENT. Ixiii 
 
 Adam Fergusson, the heir-of-line of Margaret Countess of Lauderdale, and heir-general of her father Earl 
 Alexander, claimed the Earldom— founding on the Patent 28th May 1488, granted to Alexander Lord 
 Kilmaurs " et heredibus suis." It was decided against him in 1797 by tlie Chancellor Lord Loughborough, 
 afterwards Earl of Rosslyn. His argument was as follows, as abridged from his Speech, which was taken 
 down on the occasion and afterwards corrected by himself:* — 
 
 That by " the presumption of law," as in the Cassillis claim (in 1762), and in the Spynie claim 
 (in 1785), in which last case "the creation of the title was.by the form of belting," a title 
 must go to the heirs male by the force of " belting " alone, "when no limitation can be dis- 
 covered, — 
 
 That the question was whether the Glencairn title be referable to the Patent 1488 or " some 
 " other, and what other, mode of creation ? " — 
 
 That Glencairn first sits in Parliament as Earl in 1505, — 
 
 That the lands of Drummond and Duchray, granted with the Earldom, being " never mentioned 
 " in any of the posterior deeds of the family," the Patent 1488 cannot have had any 
 effect so far, — 
 
 That David Earl of Crawford, who had been created Duke of Montrose on the 18th May 1488, 
 witnesses the Glencairn Patent merely as Earl of Crawford, — 
 
 That there were two contemporary Chancellors, and the oflSce may have been used by both the 
 contending parties, — 
 
 That " the only period" during which the Patent " could have had any effect was from its date 
 " the 28th May 1488, till the death of the grantee ; for, on the 12th June, . . the youno- 
 " King made a Proclamation, which was followed up by an Act of Parliament annulling 
 " every grant made by his father from the 2nd of February preceding," — 
 
 That James III. " was not held to be King from the 2nd of February " 1487-8 till his death, 
 as appears from the designation given to him as " ' our Sovereign Lord's fader,' " and not 
 King, in the Act Rescissory, — " they took that day as the commencement of the new reign, 
 " from which all grants made by the late King were to be deemed null," — 
 
 That " under the circumstances of those times we would not expect to find a person claiming 
 " under a Patent like that now in question," and accordingly the son and grandson of the 
 patentee sat in Parliament as Lords Kilmaurs simply till 1505, — 
 
 That the narrative of the herald Young, coming " accidentally " to the rescue, describes " the 
 " creation of three Earls 6y belting " — Arran, Montrose, and Glencairn — at the marriage 
 of James IV. in 1503, — 
 
 That, the Parliament of 1505 being held by Commission, and Earl Cuthbert being one of the 
 Commissioners, the Earl of Bothwell, created in 1490, takes precedence of Glencairn in 
 the Commission, and therefore Glencairn did not sit by virtue of the Patent 1488, — 
 
 That it was impossible therefore to found on the Patent by itself, and the Claimant (Sir Adam 
 Fergusson) called in aid the Ratification by Charles I. in 1637 ; but this Ratification " is 
 "not in the form of an inspeximus," and "it is clear the King was deceived" — the 
 King could not " give effect to the former Patent, which had been done away by Act of 
 " Parliament," — 
 
 That, whereas Sir Adam Fergusson states that the Patent 1488 was produced in the Action of 
 Reduction 1637-48, Lord Loughborough has "looked into the Decree pronounced" on 
 that occasion (the Decreet 19th January 1648) — this Patent is " among the productions 
 " but the Decree is not founded upon it. The contest in fact was only with the Earl of 
 " Eglinton, and to prevail against him there was no necessity for recurring to the Patent 
 " 1488," Eglinton's claim to precedency being founded on the erroneous entry of ' Comes 
 ' Montgomery ' in the record, — 
 
 That " the creation therefore cannot be referred to the Patent 1488, but to Young's account of 
 
 * As borne witness to by the venerable, learned, and respected after his former appearance in the Glencairn claim in 1796-7, 
 
 Mr. David Robertson, of George Street, Westminster, -who drew with all his faculties clear and fresh, naturally excited deep 
 
 up the Report in question ; and whose appearance at the bar of interest in those present. The Speech of Lord Loughborough is 
 
 the House of Lords on the recent occasion, nearly sixty years printed in the Appendix to this volume, infra, pp. 490 sqq. 
 
Ixiv ANALYSIS OF THE ARGUMENT. 
 
 " its origin ;" and if the " question be brought to this point, and the creation referred to 
 " the date of 1503 and the mode of creation then observed" (viz., as above, "Sy belting "), 
 " the presumption of law" in favour of heirs male " must prevail," — And, 
 
 That tliis induction is further supported by " collateral circumstances " — the family entails, 
 settlements, and " investitures " all being to heirs male, and having so continued " till 
 " 1670, when the second son of " William ninth Earl of Glencairn, the same who had 
 obtained the Decreet 1648, "took up the title in prejudice of his granddaughter" — that 
 is, when, on the death of Alexander tenth Earl of Glencairn, leaving no male issue, the 
 title passed, over the head of his daughter and heir of line Margaret Countess of Lauder- 
 dale (as above stated), to his brother John eleventh Earl of Glencairn, the ancestor of John 
 the fifteenth Earl, who died in 1796.* 
 
 But, admitting Lord Loughborough's principle of reference to collateral investitures as sound and 
 good, the Claimant represents, in answer to his other statements,! — 
 
 That the lands of Drummond and Duchray were taken away (as already shewn, supra, pp. xxxix 
 sqq.) by the prior and undefeated right of the original proprietors, not by the Act Re- 
 scissory ; and that to argue that the Earldom of Glencairn could have been affected by the 
 resumption of those lands under such circumstances would be to overlook the rule reddendo 
 singula singulis, and would be tantamount to arguing that the recovery by an adverse 
 title of an estate or of a portion of an estate included in a patent of peerage granted to 
 any member of the Committee would annul his right to the dignity, — 
 
 That (as elsewhere shewn) Duke David's witnessing the Glencairn Patent as Earl of Crawford 
 is accounted for by his not having been at that time inaugurated, — 
 
 That one (the late) Chancellor merely acted as locum tenens for the other, who had gone on 
 embassy to England, — 
 
 That Lord Loughborough's assumption, " for on the 12th June the young King made a Pro- 
 " clamation," &c., is a mere petifio principii; and the Proclamation could not legally cut 
 down the Patent, — 
 
 That the reign of James IV. was dated, not from the 2nd February, but from the day of his 
 father's death, as by proof given supra, p. iv, — 
 
 That the non-assumption of the title previously to 1503 was evidently in consequence of non- 
 inauguration, which however would appear to have taken place in that year, after which 
 the head of the family is invariably designed Earl of Glencairn ; while such non-assumption 
 could not prejudice the heirs under the Patent, as is evident from the Norfolk case and 
 others, — 
 
 That Young's alleged evidence (as relied upon but never adduced before the Committee in 1797, 
 or now) is legally inadmissible, but, if admitted, is merely a narrative of the inauguration 
 by belting and other ceremonies ; while Lord Loughborough's idea that a Peerage could 
 be created by " belting " alone, without a Patent, is a palpable fallacy, quite unwarranted, 
 and against fact and law— the notion having never been started or heard of till the 
 Cassillis claim in 1762, when it was stated by Lord Marchmont " that the Counsel in 
 " arguing in this case, had been 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 :" — By Lord Mansfield, that " there was no creation of any Earl or Lord of 
 " Parliament without some charter or writing :" — And by Lord Hardwicke " It 
 " IS agreed that there was no creation of superior peerages, such as Dukes or 
 " Earls, without some writ limiting the descent,"^— this being in conformity with 
 existing law and practice, both in Scotland and England, and .generally throughout 
 
 * See the pedigree supra, p. xxxv. 
 
 t For the answers at large to the several points in Lord Loughborough's Speech, see the Supplemental Case, pp. 62 sqq. 
 
 t The Cases and Speeches in the Cassillis claim are printed at full length in the Appendix, infra, pp. 545 sqq. See especially 
 pp. 555, 557, 560. Notes of Lord Mansfield's Speech on the Spynie claim, deciding against the Claimant on the ground of the- 
 peerage having been created exclusively by " belting" without any written patent, in direct departure from his earlier opinion in 
 1762), with remarks upon that peerage, &c., will also be found in the Appendix, infra, pp. 568 sqq. 
 
ANALYSIS OF THE ARGUMENT. 
 
 Ixv 
 
 Christendom, as familiar to all legal antiquaries ;*— while Lord Loughborough's leaping 
 to a conclusion, and to such a conclusion, on such evidence is quite unwarrantable, — 
 
 That in the same Commission in 1505, in which Bothwell is named before Glencairn, Bothwell 
 has precedence over the Earl of Lennox, who was of senior creation, proving that pre- 
 cedence was not thought of in the enumeration, — 
 
 That the mode of ratifying charters in Scotland was not by " inspeximus," as in England, while 
 the words used in the Ratification 1637, viz. "nos compertum habentes," were equivalent 
 thereto ; and the Scottish Kings had the power of restoring against Acts of Parliament, as 
 proved by the Claimant in the S. Case, pp. 104, sqq. — And lastly, 
 
 That Lord Loughborough's statement that the Decreet 1648 is not founded upon the Patent 
 1488 cannot be reconciled with the statement that he had " looked into " it — unless on the 
 supposition that he had been shewn some imperfect and inaccurate extract from it, — for 
 the fact is that it is founded on nothing else, — while the argument from the supposed 
 error in the designation " Comes Montgomery " has been already answered. 
 
 It appears, therefore, that not one paragraph in Lord Loughborough! s Speech, bearing on the subject 
 of the Glencairn Patent and the Act Rescissory, will bear the test either of historical examination, legal 
 inquiry, or examination of the documents to which he refers. These inaccuracies utterly destroy such autho- 
 rity as might otherwise have attached to his Opinion.! 
 
 It is to be observed that the question of the Act Rescissory was not argued before Lord Lough- 
 borough — he took its effect for granted — it is only casually adverted to — and the Resolution does not directly 
 proceed upon it. The Resolution was simply as follows : — 
 
 " Die Jovis, 13° Julii 1797. 
 " The Lord Walsingham in the Chair. 
 
 " Proposed to resolve, — that Sir Adam Fergusson has shewn himself to be the 
 " Heir General of Alexander Earl of Glencairn who died in 1670, but hath 
 " NOT MADE OUT " — that is, in hoc statu — " the right of such Heir General to the 
 " DIGNITY OF Earl of Glencairn. 
 
 " The same was agreed to, and Report thereof was ordered to be made to the 
 " House." t 
 
 — A decision which leaves the claim open for consideration at any future time by the aid of res noviter 
 venientes ad notitiam, such as the evidence now brought forward, — and which, most certainly, forms no 
 bar to the pretensions of the present Claimant to the Dukedom of Montrose, who stands, as will be seen 
 hereafter, on far loftier and more privileged ground than any claimant of the Earldom of Glencairn, 
 and would equally be entitled to the Dukedom of Montrose (under specialties peculiarly attaching to it) 
 had the Act Rescissory taken effect upon the said Earldom. 
 
 Lord Loughborough moreover, by his own confession, was not aware that the nullity of the Act 
 Rescissory, as affecting the patent 1488, was res Judicata in foro contradictorio by the final judgment 
 1648, pronounced by the legitimate tribunal, from which there was no appeal, and which acted besides, 
 and independently, on a reference from the Crown precisely such as the Committee of Privileges was in 
 1796-7, and is now, sitting under— and which Judgment was ACTUALLY RULING AT THE MOMENT when he 
 ga^'E his decision, and which rules at the present moment. For even if it be held (as it cannot be held 
 legally) that the Resolution in 1797 afiirmed the absolute annulment of the Glencairn Patent of 1488 by the 
 Act Rescissory, such Resolution must be necessarily null and inept as being at variance with the decision 
 of the Court of Session in 1648, the question at issue having been then and by that paramount tribunal 
 legitimately and finally adjudged in favour of the Patent 1488 and against the Act 
 Rescissory. The Claimant presumes therefore that the House will willingly defer to that decision in point 
 of reason and authority.— Case, pp. 60 sqq. ; S. Case, pp. 58 sqq. ; Infra, pp. 60 sqq. ; 155 sqq. ; 307.§ 
 
 * For further proof see the S. Case, pp. 64 sqq. 
 
 •]■ For Lord Loughborough's character as a lawyer, as drawn by Lokd Campbell, vide infra, p. 364, n. J 
 
 I Lords' Journals. — See the Supplemental Case, p. 76. 
 
 § The Claimant would again refer here to the dicta of Lord Brougham in the Waterford Case, as cited infra, p. 340, n. (•). 
 The present case is one in which, in the words of Lord Eldon, advising the House of Lords on a Scottish Appeal case, a competent 
 " decision has removed out of the way all argument and all principle, so as to make it impossible to apply than to the case before the House." — 
 Zife, by Twiss, vol, iii. p. 445. 
 
 K 
 
Ixvi ANALYSIS OF THE ARGUMENT. 
 
 Objections by the Crown, 
 
 Attorney- General. — In 1797 " a very different view was taken . . from that which had been taken by the 
 " Court of Session " in 1648. The Attorney-General " is not disposed to go through the various points of 
 " the Lord Chancellor's opinion," which has been " treated . . in a somewhat unceremonious way " by the 
 Claimant, — it suffices " that upon a point upon which the Lord Chancellor was competent to form an opinion, 
 " viz. as to the effect of the Act Rescissory, he came to the deliberate judgment, which the House adopted, 
 " that the Act Rescissory was an existing, valid, and binding statute." — " That judgment is most important 
 " with a view to the present case." All, however, the Attorney-General will ask the House to do is " fo 
 " look at the " Glencairn " case as though there had been no judgment at all, either " in 1G48 or 1797 ; 
 inasmuch as " neither the Court of Session " in 1648, " nor the Committee " of Privileges in 1797, " had 
 " before them the facts now laid before " the Committee ; and, if so, the House " will be of opinion that the 
 " Act Rescissory did apply to this title of Glencairn, and that it took away the title " till 1503, and " the 
 " lands altogether, which were not regranted at the time of the new creation." — Infra, pp. 215, 217.* 
 
 Lord Advocate.- — " If Lord Loughborough had not the advantage . . of seeing the proceedings at length " in 
 1648, (the ' Minutes of Process,') " he had the . . advantage, which the Court " of Session " had not, of 
 " knowing that in 1503 . . Glencairn was belted " Earl " of Glencairn on the . . King's marriage. . . 
 " Though there may be exception taken to one or two of the statements in that judgment," it does " not 
 " deserve the criticisms that have been made upon it." " Lord Loughborough's ratio is good and sound. . . 
 " It is this,- — that the Act Rescissory did take effect — . . that in consequence he continued to be Lord 
 " Kilmaurs, and not" Earl of " Glencairn, till 1503, — that . . Glencairn is unable, and has been always unable, 
 " to produce his charter of 1503 " — but the Committee has " contemporaneous evidence of a new creation at 
 " the time, followed by possession — but no possession before, and clear possession afterwards: — And from 
 " that he drew the natural, legal, and sound deduction that the patent of 1488 had fallen under " the Act 
 Rescissory. " Instead of coming to the conclusion of the Court of Session that his sitting in Parliament 
 " after 1503 must be ascribed to the old patent, he says it must be ascribed to anew creation, of which we have 
 " undoubted evidence in a contemporaneous writing," " to some subsequent grant." — " Whatever maybe said 
 " against the accuracy of the facts on which it proceeded, . . Lord Loughborough's judgment . . was truly 
 " and substantially a finding in this House that the Act of 1488 did in fact take practical effect, and must of 
 " necessity be given effect to." It was " a sound judgment" — a "judgment . . directly in point" — and 
 " one which, if the question were again to arise " — " if Loi-d Glencairn was now a claimant at " the " bar " 
 of the House of Lords — the House " would repeat " now. — Infra, pp. 228, 243, 254, 255, 256. 
 
 Eeplies. 
 
 i. Without disrespect to Lord Loughborough, any judge may err. Tlie judgment of 1648, all-important to be 
 referred to and considered by the Committee, was not hrought under their consideration in 1796-7. Although 
 mentioned in Sir Adam Fergusson's Case, it was not produced, and is not in the Minutes of Evidence. Kor 
 were any of the proceedings, that then took place, hefore the Committee. His Opinion was therefore delivered 
 in utter ignorance of what had been decided hy the Court of Session in 1648, and of the documents which were 
 before the Court and on which the Court proceeded. And when Lord Loughborough, not being aware of 
 this decision, what it amounted to, and on what grounds it proceeded, assumes that it went entirely on the 
 prior sitting proved on Glencairn's part, whereas it went entirely (as has been proved) on the Patent 1488 
 as unaffected by the Act Rescissory, and when he is found to treat the ' belting,' per se, as the original 
 creation of an Earldom, it is impossible to hold that it was a judgment which ought to (even if it could) 
 countervail the judgment of 1648. 
 
 ii. As previously stated, there is nothing in the Resolution of the House in 1797 that affects the present question. 
 
 iii. If the judgment of 1648, in favour of the Claimant, is not binding because ititer alios, as urged by the Ceown 
 
 (supra, pp. Iii, Iv), the Resolution of 1797 cannot for the same reason be dwelt upon to his prejudice. But if 
 
 either he cfweujht, the earlier must take precedence, — and it cannot be discarded or got rid of being in viridi 
 
 dbservantid at the present moment. The Attorney-General, in fact, with more consistency than the Lord 
 
 Advocate, invites the Committee to look at the Glencairn case as if no judgment had passed at all, either in 
 
 1648 or in 1797, on the ground that neither the Court of Session in 1648 nor the Committee of Privileges in 
 
 1797 had before them the facts now before the House. But on this the Claimant would observe 
 
 (1) That the Court of Session in 1648 were aware of the non-assumption of the title from 1488 to 1499 -f 
 
 of the re-appearance of the Earldom in 1505; of the inference therefrom (as drawn by the 
 
 opponents of the Glencairn family) that the Earldom must have been created shortly before 1505 ; 
 
 of the fact that no evidence of such (new) creation was forthcoming, or of any other Glencairn 
 
 Patent except the one in 1488 ; of the fact that the Patent 1488 was acted upon in 1515-6 in the 
 
 Retour of Cuthbert Earl of Glencairn to the lands of Drummond and Duchray, exclusively conveyed 
 
 thereby, and of which he received the rents in consequence, and that the Decreet of Reduction 
 
 1516-7, depriving him of those lands, proceeded on grounds in no-wise connected with the Act 
 
 Rescissory, while " Alexander Earl of Glencairn," the patentee in 1488, is fully and repeatedly 
 
 * The Claimant may allude here to a passage in the Attorney-General's Speech, infra, p. 217, in which he quotes a state- 
 ment hy the Claimant's valued and learned friend, Mr. Eiddell, in one of his works on Peerage Law, to the effect that the Act 
 Eeseissory did take effect upon the Glencairn patent of 1488. The simple answer to this is, that such was the belief of the learned 
 gentleman at that time (in common with other legal antiquaries), but that subsequent and special inquiry and research have induced 
 a different opinion. Mr. Eiddell might reply to this, as he did on a similar occasion to the Duke of Montrose {8. Case, p. 134) that 
 such an argument "would tend to deprive the votaries of truth of their dearest privilege, the correction of ' inadvertent "' error." 
 
 f Vide supra, p. Ixi, note *. 
 
ANALYSIS OF THE ARGUMENT. Ixvii 
 
 recognised retrospectively as such in that hostile Decreet under the Patent 1488,_which could not 
 have been if the Act Rescissory had cut the title down,* &c. And, 
 (2) That, although the Committee of Privileges in 1797 were aware of the non-assumption of the title 
 from 1499, the close of the period of non-assumption proved in 1648, till 1503, (which is 
 comparatively unimportant,) and of the (alleged) inauguration by belting and other ceremonies in 
 1503 — they were not aware of any charter or patent of creation in that year, on proof of which the 
 whole of this question depends, — Lord Loughborough merely, and most ineptly, assuming a creation 
 hy helting, alone, without a patent ;f while, if he looked, as he says he did, into the Decreet of 
 1648, or had the entire Decreet before him (which is doubtful), he must have been aware also of 
 the acting validity of the Patent 1488 in 1515-6 and 1516-7, when "Alexander Earl of Glencairn," 
 the Patentee, is recognised as such under it. 
 
 — The House THEREroRE is at pbesent awake op no one fact of the slightest importance anterior 
 
 IN DATE TO THE DeCKEET 19tH Jan. 1648, WHICH THE CoURT OF SeSSION WAS NOT AWARE OF WHEN THET 
 ISSUED THAT DECREET, WITH THE SINGLE EXCEPTION OF THE INAUGURATION (if the CvidenCe of YoUUg bc 
 
 admissible) in 1503 — and which inacguratiok proves nothing — the fact of a new or contemporary charter 
 having leen then granted being by the acknowledgment of the Ckown mere inference, surmise, and con- 
 jecture — precisely as itivas when brought forward by the opponents of the Glencairn family in 1648. While, 
 on the contrary, the House has at present before it, 
 
 (1) Evidence of the Retour 1515-6, as founded upon in 1648 — affording the testimony of the Crown to 
 
 the fact that Cuthbert Earl of Glencairn had sat from 1505 to that date under the Patent 1488, and 
 not under the imaginary one of 1503, — 
 
 (2) Evidence of the Seizin of Earl Cuthbert, under the Retour 1515-6, in the lands conveyed by the 
 
 Patent 1488 — from the ' Liber Responsionum,' — 
 
 (3) The Decreet of Reduction 1516-7 — proving the recognition of the Patent 1488 as validly conveying 
 
 the honour, although the lands were (from a distinct specialty) resumed, — 
 
 (4) The Decreet of 1610, founded " onlie," or exclusively, on the Patent 1488, — 
 
 (5) The Decreet of 1648, founded " maynelie " on the Patent 1488, and restoring the Decreet of 1610 to 
 
 full validity, — 
 
 (6) The ' Minutes of Process,' &c. in 1642-1648, from the charter-chest of the unsuccessful competitor, 
 
 detailing the proceedings, arguments, and interlocutors from day to day, and additionally proving 
 that everything was reduced ultimately to the simple question of the Act Rescissory versus the (only 
 existing) Patent, — 
 
 (7, 8) The Parliamentary Decreets, 2nd March and 9th March 1649, rescinding the Patent 1488 and the 
 Decreet 1648 as " maynelie " proceeding upon that Patent, — 
 
 (9) The Act 1661 annulling the Parliament of 1649, which had attempted to rescind the Patent 1488 and 
 
 the Decreet 1648, — And, 
 
 (10) The proofs adduced from the Records of Parliament, shewing that Parliament in 1C67, subsequently 
 
 to the Restoration, obeyed and enforced the Decreet 1648 as assigning the precedency to Glen- 
 cairn over Eglinton, and that they have continued to maintain that Decreet, and the precedency 
 awarded by it in virtue of the Patent 1488, without intermission, ever since, — 
 
 none of which facts and piroofs were before Lord Loughborough and the Committee of Privileges in 1797 ; and 
 Lord Loughborough's ignorance of which — and especially of the Parliamentary Decreets in 1649, so pointedly 
 proving that the decision in 1648 went fundamentally on the Patent 1488,J forming emphatically new 
 EVIDENCE in the present claim — furnishes his best excuse for the errors he fell into in the Speech already 
 commented upon. The Committee have therefore every reason for deciding in conformity with the ruling 
 Decreet of the Court of Session in 1648, — for of course the Claimant cannot acquiesce in the request of the 
 Attorney-General that not only the judgment of 1797 but that of 1648 should be rejected — the earlier 
 decision, that of 1648, being, as the Claimant submits, binding on the Committee. — And, finally, 
 
 iv. Even were a favourable decision in the present case to reawaken the Glencairn claim, as apprehended by the 
 Lord Advocate, the reconsideration of a claim by an ancient and honourable family, demanding that to 
 which they by law conceive themselves entitled, is not a consequence to be deprecated of any Opinion 
 that maj' be pronounced by the Committee. In the present case the Claimant reposes with confidence on 
 the justice of the House of Lords.§ — Case, pp. 75, 76 j 8. Case, pp. 58 sqq. ; Infra, pp. 60 sqq. ; 157 sqq. ; 
 306, 307, 308. 
 
 Opinions of the Committee. 
 
 LoED Chancelloe. — " Taking the whole of the Glencairn Case,|| it is a precedent against and not for the " 
 present " Claimant." " The Claimant" in 1797 " certainly made out that he was the heir general of the 
 
 * See the pleadings in the ' Minutes of Process,' 8. Case, pp. 197, 203 ; and infra, pp. 435, 439. The preceding facts are 
 also proved by the statements in the Decreet of 1648, and even the rebel Decreet of 9th March 1649, infra, pp. 446 sqq. ; 464 sqq. 
 
 t Such is the fact, as may be seen by reference to his Speech, — the Lord Advocate's statement that Lord Loughborough 
 inferred a creation by a " charter of 1503" which cannot be produced being quite erroneous. 
 
 % The volumes of the Scottish Acts of Parliament containing these Decreets have only recently been discovered in MS. in 
 the State Paper Office, from which they have been transferred to Her Majesty's General Register Office, Edinburgh. 
 
 § The limits and conditions of the intervention of the House of Lords in peerage matters must not be overlooked here, as 
 stated supra, pp. xxviii, n. f, and lxxv, concluding paragraph. 
 
 II This applies of course solely to a claim by the Glencairn 'heir female, — a claim by the heir male is still open, unaffected in 
 any manner by the decision in the present case. 
 
 K 2 
 
Isviii ANALYSIS OF THE ARGUMENT. 
 
 " original Earl of Glencairn," but he was held not to have made out his title to the Earldom for this reason, 
 " that the House held that the Earldom of Glencairn had been granted, not under that Patent of 1488, but 
 " under some lost patent, the presumption as to which was, that it was not a grant to heirs general but to 
 " heirs male. . . That decision could proceed only on the principle that the Act Rescissory was in force; 
 ' ' there was nothing to annihilate the first Patent but the Act Rescissory. That was the judgment of my 
 " Lord Loughborough, who entered into the case in a very elaborate manner." The Loed Chancellob 
 does " not feel it necessary to advert further to the arguments upon which that Noble and Learned Lord came 
 " to the conclusion that the original grant had been annihilated, — but he was distinctly of that opinion." 
 " The Glencairn decision in 1797 " is a precedent " upon which " the Committee " may rely with infinitely 
 " more satisfaction than upon what took place in the Court of Session and in Parliament in the troublous 
 " times which occurred at the end of the reign of Charles I." — Infra, p. 342, 343. 
 
 LoED St. Leonaeds. — " The thing" remaining " untouched" by the decision of the Court of Session in 1648, 
 " Sir Adam Fergusson, a gentleman highly competent to consider this case, set up his claim in 1796, "as heir 
 " general, to the . . Earldom of Glencairn. . . What was the decision ? It is of no use attempting to retire 
 " from that decision, for . . it binds your Lordships. The decision distinctly was, first of all, that the Patent 
 " of 1488 was struck at and destroyed by the Act of 1488. And the decision further was, that, finding a 
 " sitting of the Earl of Glencairn in 1505, you must not refer that sitting to the Patent of 1488, for it did not 
 " exist, and that therefore you cannot infer a limitation to heirs general, but you must refer it to some other 
 " patent which you have not got. And then, on looking to see how the sitting was, and finding that it was 
 " always in the succession of heirs male, to the exclusion of heirs general, the presumption of law is, that the 
 " last grant " — that is, the supposed patent granted in 1503 — " must have been to heirs male. And the Claimant 
 " was therefore held not to have made out his title." 
 
 " Exceptions have been taken to Lord Loughborough's Opinion. . . It is stated that there was great igno- 
 " ranee on the part of that Noble and Learned Lord, of whom we always speak with great reverence, for that he 
 " spokeof the creation of those Earldoms" (those of Arran, Montrose, and Glencairn) "by 'belting.' Suppose 
 •' he did make use of that expression, he was only speaking in common parlance. The King, who created 
 " by words these different dignities in the presence of all his people upon this grand occasion, finished the 
 " ceremony by belting them ; and, therefore, the Lord Chancellor of the day, when this matter came before 
 '' the House in 1797, said that they were created by ' belting ;' and antiquaries are now perfectly shocked to 
 " think that the Noble Lord in 1797 should have described the creation of Earls by 'belting,' and they say 
 " that it takes away the whole weight which otherwise would have been due to that decision. My Lords, 
 " I have read more than once or twice that Noble Lord's judgment, and I think that it is perfectly right. 1 
 " think he was perfectly justified in the case then before him, in putting an end to that claim." — Infra, pp. 
 364, 371. 
 
 Observations. 
 
 For comment upon the above representation by the Loed Chancellor and Loed St. Leonaeds, viz. that Lord 
 Loughborough's opinion in 1797 proceeded — not upon a supposed creation by ' belting,' but upon the 
 hypothesis of a second or later patent having been granted, with a limitation to heirs male, and which has 
 been since " lost," the Claimant would refer, as before, to his notes upon the Speeches of the Noble and 
 Learned Lords, infra, loc. cit., and to the Speech of Lord Loughborough in 1797, as corrected by himself, 
 and printed in the Appendix, irifra, pp. 490 sqq. 
 
 He would also observe (although appertaining properly to the Second Head of this case, the question of ' heirs ') that, 
 while Lord Loughborough is correct in tlie/ac< that the Earldom of Glencairn passed over the heir female to 
 go to the heir male in 1670, his statement that that heir male " took up the title in prejudice of" the said 
 heir female conveys am erroneous impression, as if that succession had been irregular and an usurpation. So 
 far was this from being the case, that John eleventh Earl of Glencairn, younger brother of Alexander the 
 tenih Earl, succeeded to the dignity duly and regularly, with every legal formality of special retour, sitting 
 in Parliament, &c. &c. in 1670 and afterwards — without tlie slightest cavil, challenge, or opposition, on tliepart 
 of tM heir female, his elder brother's daughter and heir — and this in virtue exclusively of the Patent 28ft May 
 1488, then (in 1670) in fuU recognition and fwce through the Decreet of the Court of Session 19th January 
 1648 and the appeal to that Decreet by Earl Alexander in 1667, when the momentary precedence in Parlia- 
 ment obtained by Eglinton, the solitary instance that occurred subsequently to the Restoration, was corrected 
 by Parliament, to the restitution of his rightful position, in virtue of the Decreet, as shewn supra, p. li. 
 It is true that Sir Adam Fergusson's claim proceeded on the allegation that his ancestress Margaret Countess 
 of Lauderdale ought to have succeeded in 1670, and that the succession and enjoyment on the part of Earl John 
 and his successors was illegal and intrusive — but this was the mere dream of his fancy in 1796 — an hypothesis 
 grounded on misunderstanding of the legal import of the limitation " heredibus " in the Patent. The Court of 
 Session in 1648 and the Parliament of 1670 understood it differently. It is clear, in short, that if the Earldom of 
 Olencairn went to heirs male without dispute in 1670, at a time when tJie Ea rldom was unquestionably attributed 
 to the Patent of 1488, of which the limitation was to ' heirs,' " heredibus," tlien it must have so gone on the under- 
 standing andprinciple (contended for and amply illustrated by the present Claimant in his Case and S. Case) 
 that ' heirs ' is a flexible term in Scottish law, governed by antecedent and collateral entails and investitures. And, 
 in accordance with this principle, it practically appears that the Olencairn estates loere settled in 1488, and from 
 the close of the preceding century, exclusively upon heirs male whomsoever {-viie infra, p. cxxxix) — which heirs 
 male whomsoever were therefore necessarily and emphatically the ' heirs ' of the family in 1488. Tliefact of the 
 Earldom of Glencairn, granted under the Patent 1488 to " heirs " simply, liaving descended under that 
 Patent to the heirs male, excluding heirs female, evidently affords a most cogent practical illustration in 
 support of the Claimant's argument in the present case, viz. that the idestical limitatiok "heredibus 
 " STJis" IN THE Montrose Patent must be likewise intkkpreted as to the ' heirs' of the Crawford 
 
 FAMILY, who were EXCLUSIVELY, BY THE ANTECEDENT ENTAILS, HEIRS MALE WHOMSOEVER. 
 
ANALYSIS OF THE ARGUMENT. 
 
 G-ENERAL Conclusion of the Committee on the Glencaien Argument. 
 
 Ixix 
 
 LoED Chancellor. — " The Gleneairn case . . entirely fails as a precedent, and ought not to have any influence 
 " with your Lordships in this case." — The Gleneairn " precedent . . does . . not at all touch the" present 
 " case." Infra, pp. 331, 342, 343. 
 
 LoED St. Leonards. — " Your Lordships have had a most unusual difficulty thrown upon you. You have 
 " really been for days trying the Gleneairn peerage, which was decided in this House in 1797. You have 
 " been trying the Gleneairn peerage day after day, travelling through a great mass of evidence, in order to 
 " see who was entitled to the Gleneairn peerage, and that not for the purpose of its having the slightest effect 
 " upon that peerage, but in order to see how far the proceeding in that case can be brought forward as a 
 " precedent in this." — And again, " This is brought forward simply as a precedent ; and your Lordships have 
 " had to travel day after day through the case, . . as if you really were re-trying " it, " when it is quoted 
 " only as a precedent. If precedents . . are to occupy so large a portion of time, there is no reason why 
 " a claim of this sort should not last as many months instead of so many days.'' The precedent is " easily 
 " disposed of." Infra, pp. 362, 371. 
 
 General Conclusion of the Claimant on this Second Point of the argument : — All 
 the preceding grants by James III. within the proscribed period — to Collace of Balnamoon, 
 to Somyr of Balyordie, to Gordon of Lochinvar, to the Cunninghams of Polmaise, to the 
 Burgh of Brechin, and to Alexander Lord Kilmaurs, creating him Earl of Gleneairn — having 
 taken due eiFect notwithstanding the Act Rescissory, it necessarily follows, 
 
 1. That the Act Rescissory caknot have cut down the grants of James III. by 
 
 THE MERE FORCE OF ITS PASSING, AS CONTENDED BY THE CbOWN, BECAUSE, IF SO, 
 
 IT CUT DOWN All, and None could survive ; and, 
 
 ii. That the Act CAiraoT have applied to the Dukedom of Montrose, in accord- 
 ance WITH THE Norfolk ratio grounded on the fact that other grants of 
 Richard II. struck at by the Act Rescissory of 1 Henry IV. had taken 
 effect notwithstanding that Act, which consequently could not apply to 
 THE Norfolk Dukedom. 
 
 — While the Claimant maintains (as elsewhere stated) that this ' CONTEMPORANea expositio ' 
 
 IS IN TRUTH superfluous — AT THE SAME TIME THAT IT IS TRIUMPHANTLY IN HIS FAVOUR. — 
 
 5. Case, p. 77 ; Infra, pp. 81, 82 ; 130 sqq. ; 241, 282, 284, sxid. passim. 
 
 General Conclusion of the Committee : — That contemporama expositio is decisive against the 
 Claimant. — Infra, pp. 316, 326, 361, a.nA. passim. 
 
 Final and General Observation on this head. 
 
 The Claimant must again remark here, that while the Lord Chancellor and Lord St. Leonards lay 
 the strongest weight on contemporanea expositio as decisive against the Claimant, they do not cite 
 if completely — omitting all notice of the survival of the Balnamoon, Balyordie, Lochinvar, Polmaise, 
 and Brechin grants, notwithstanding the Act Rescissory and its Supplemental enactment 15th February 
 1489-90, as proved by the Claimant, — of the fact that the lands asserted by the Crown to have 
 been resumed by virtue of the Act Rescissory, and regranted, were either illegally seized by 
 James IV. before the Act Rescissory, or had been resumed after the absolute and (in law) 
 unexceptionable Act of 1493, — of the fact that, although challenged to the proof, the Crown has 
 not produced one single unexceptionable instance of the Act Rescissory itself taking effect ; while 
 the Claimant has produced instances, on the contrary, in which the grants did stand notwithstanding 
 the Act Rescissory, — of the fact that not one instance of the Act Rescissory having taken effect was 
 discovered during the long litigation between the Earls of Gleneairn and Eglinton in the seventeenth 
 century, — of the fact (to be more particularly enforced hereafter) that there is not a vestige in the 
 qiiequidem of any contemporary or subsequent charter, of the Act Rescissory having taken 
 effect (which is absolutely inexplicable on that hypothesis), — of the fact that the Gleneairn 
 Patent was recognised and acted upon by the Crown and the Supreme Civil Court, as valid and 
 subsisting with respect to the dignity of Gleneairn, within thirty years after the original creation, 
 &c. &c. : — While at the same time with all this, and in the face of what the Lord Chancellor 
 acknowledges to have been the judgment of the Supreme Civil Court of Scotland (a final and a ruling 
 one) in 1648 in the Gleneairn case, to wit, that the Gleneairn patent was not cut down by the 
 Act Rescissory, they affirm, broadly and unqualifiedly, that contempm-anea expositio is decisive 
 against the present claim. — Vide infra, pp. 326, n. % ; 361, a. f . 
 
Ixx ANALYSIS OF THE AEGUMENT. 
 
 III. 
 
 The (penal) Act Rescissory proved null, void, and inoperative, as viewed 
 
 III. Specially and personally, as regards the grant of the Dukedom of Montrose 1'8th 
 May 1488,— the Claimant's proposition being, That the Duke was repeatedly, fully, and 
 legally recognised as such subsequently to the Act Rescissory and previously to the Regrant 18<A 
 September 1489,— ^^af during that time he received the rents of the property granted under the 
 Patent 1488, in right of the Patent,— that James IV. executed Letters Patent under the Privy 
 Seal in favour of the Duke, granting him a full Remission of the displeasure he had conceived 
 against him on account of his loyalty to his father King James III., — that the Duhe fulfilled the 
 sole condition imposed on him by James IV. as pre-requisite in order to entitle him to the benefit of 
 this Remission, — that the transaction established a solemn contract between the King and the Duke, 
 — tJiat on the Duke fulfilling the condition imposed on him as his share of that contract, James IV., 
 the other party to that contract, in presence of and with the concurrence of the leaders of the successful 
 faction, recognised the Duke as Duke of Montrose in the most solemn manner it is possible to conceive^ 
 — that the effect of that recognition loouJd have been sufficient by Scottish and feudal law to 
 rehabilitate the Duke in toto even had he been attainted, which was not the case, and a fortiori 
 against the effect of the mere Act Rescissory, — and generally, that nothing has passed subsequently 
 to October 1488 to prove by Peerage Law that the Act Rescissory destroyed the Patent 18th May 
 14:88,— {Case, pp. 6 sqq. ; S. Case, pp. 79 sqq. ; Lfra, pp. 72 sqq. ; 122 sqq. :)— Opposed to 
 which stands the proposition of the Crown, — that everything follows upon the Act Rescissory 
 which might have been expected, — that the Duke never adopted or asserted, and in fact never publicly 
 claimed the dignity of Duke of Montrose betiveen the Act Rescissory in October 1488 and the Regrant 
 in September 1489, — that when he did assert his right to the Dukedom, the style assumed was 
 invariably corrected by the Croion, — that the Dukedom and estates were regranted to him by a new 
 Patent in September 1489, but only for life, — that the lands so regranted were resumed by the Crown 
 on the Duke's death in 1495, and the title expired and has never been claimed since ; while the title 
 of Earl of Montrose was granted subsequently to the Grahams, — and, generally, that not one circum- 
 stance took place with reference to the Dukedom and the estates between 1488 and 1495 which icas 
 not a necessary consequence of the Act Rescissory having cut down the Patent 18th May 1488: — 
 Infra, pp. 187 sqq. ; 228 sqq. — The proofs under this head fall therefore into two classes : — 
 
 i. Instances relied on by the Claimant, in which David Duke of Montrose asserted his rights 
 both to lands and title under the Patent during the interval between the Act Rescissory 
 and the Regrant, and in which, as contended by the Claimant, those rights were, allowed 
 and he was recognised as Duke by the Crown, — but in which his pretensions are stated 
 by the opponents of this claim to have been disallowed by the Crown ; And, 
 
 ii. Instances relied on by the Ckown, to shew that the Crown and the public functionaries con- 
 sidered the Duke to be simply ' Earl of Crawford ' during the said interval, and that the 
 Act Rescissory had annihilated the Patent 18th May 1488, — but in which the Claimant 
 maintains that the nomenclature '- Earl of Crawford ' is either erroneous or innocuous. 
 
 The Claimant need only premise that the rule which governs inquiry under this Section of the 
 argument is that established 'alike by general principle and by special practice in Scottish peerage claims, 
 viz. that THE Warrants or Signatures of Royal Patents, Charters, and Conveyances, which 
 
 PASS UNDER THE KiNG's OWN EYE, AND POSSESS HIS IMMEDIATE AND PECULIAR SANCTION, CONTROL 
 THE INTERPRETATION OF THE CHARTERS OR PATENTS EXECUTED IN OBEDIENCE TO THOSE WARRANTS, 
 
 BUT OUT OF THE King's PRESENCE AND APART FROM HIS KNOWLEDGE, and in the extension of which 
 (as is notorious) the Clerks of Chancery frequently took liberties unsanctioned by the Warrants, — Or, in 
 other words, that if any question arises either as to the true rank and status of a grantee, or as to the limi- 
 tation of the honours or estates granted to him, the Warrant falls to be referred to as the regula 
 reyulans in the matter, by which the Charter or Patent must be read, interpreted, and 
 CORRECTED, SO AS TO BE BROUGHT INTO CONFORMITY WITH IT — and not vice verso, ; the Charter or 
 Patent being the mere mechanical conveyance or expression of the Royal pleasure by the officials, of 
 Chancery, and the personal sanction and cognisance, the eye and tongue of the King being first, last, and 
 
ANALYSIS OF THE ARGUMENT, 
 
 Ixxi 
 
 everything in honours. In proof of this rule and accordant practice, vide the S. Case, p. 93, and infra, 
 pp. 172, 173, 176, 177* 
 
 Observation. 
 
 The principle and rule insisted upon by the Claimant is entirely overlooked and disregarded alike by the Crown 
 and the Committee — who have in every instance made the Charter executed iy the Clerks of Chancery 
 
 GOVERN THE WARRANT. 
 
 r. Instances relied on by the Claimant, in which David Duke of Montrose 
 
 ASSERTED HIS RIGHTS BOTH TO LANDS AND TITLE UNDER THE PATENT 
 DURING THE INTERVAL BETWEEN THE AcT RESCISSORY AND THE ReGRANT, 
 AND IN WHICH, AS CONTENDED BY THE CLAIMANT, THOSE RIGHTS WERE ALLOWED 
 AND HE WAS RECOGNISED AS DuKE BY THE CrOWN, — BUT IN WHICH HIS PRE- 
 TENSIONS ARE STATED BY THE OPPONENTS OF THIS CLAIM TO HAVE BEEN DIS- 
 ALLOWED BY THE Crown. 
 
 1. By the Patent 28th May 1488, the Lordship of Kinclevin and the Customs, Great and 
 Small, of the Burgh of Montrose, were granted for the first time to David Duke of Montrose. It is 
 proved hy the Exchequer Rolls that the Duke continued to possess and draw the rents of the most valuable 
 part of this property, the Lordship of Kinclevin, during the interval between the Act Rescissory and tJie 
 Regrant l^th September 1489. He could not have received one penny of those rents if the Act Rescissory 
 had cut the Patent down. It appears probable that he received the Great Customs also. The Small 
 Customs he did not receive. 
 
 i. As respects the Customs of Montrose, the evidence afforded by the Rolls is somewhat 
 ambiguous. The amount of the Great Customs accounted for during the two years 
 between 10th July 1486 and 21st August 1488 is £65 5s. 5d. Of this sum total, 
 £53 6s. 8rf. were paid to the Duke " ad manus proprias," in consideration of an hereditary 
 pension of forty marks per annum appertaining to the Earls of Crawford since the fourteenth 
 century, and then due for those two years. The remaining £4 Qs. Id., which was the 
 whole amount receivable by the Crown for those two years, was paid to the Compotator. 
 The half of £4 6s. Id. being £2 3s. ^hd., this latter amount constituted the whole additional 
 annual sum by which Duke David was benefited as regards the Great Customs by the 
 Ducal grant — besides, as will be presently shewn, a still less sura from the Petty Customs. 
 The sum to which the Duke was entitled from the Great Customs for the three months 
 between the 18th May, the date of his Patent, and the 21st August 1488, amounted to 
 10s. IQ^d. This sum, it would appear, was not made over to him — it is included in the 
 £2 3s. 2>id. retained for the Crown by the Compotator as the revenue for the year ending 
 on the 21st August. But at that time it is probable, from obvious reasons, that the Duke 
 may not have obtained full possession under his Patent, and so small a sum was not worth 
 claiming or contending for. On the other hand, there is nothing to sheio that the Great 
 Customs were not levied by the Duke between the 21st August 1488, that is, from three 
 months after the date of his Patent, and the 1 9</i September 1489, the date of the Regrant. 
 From the 21st August 1488 to the 7th July 1490 there is no positive evidence as to who 
 drew the Great Customs ; but as they were not accounted for in Exchequer, the presumption, 
 to say the least, must he, thai, having been granted to the Duke by -the first Patent, they were 
 drawn by him, — on that supposition there is nothing extraordinary ; but it would surely be 
 very extraordinary, if the Customs were drawn for the Crown, that there should be no trace 
 of them in the Exchequer Rolls. — The " firmse burgales," or Petty Customs, on the other 
 hand, would appear not to have been paid to the Duke till after the second Patent. They 
 amounted, after due deductions, to £1 2s. Sc?., a sum so insignificant that the Duke would 
 hardly be disposed to go to the expense of a legal process for its recovery. It appears 
 indeed that the Duke did not receive the Small Customs for the first ten months after the 
 Regrant, when by general acknowledgment he was entitled ,to them. These petty 
 
 * See also Lord Mansfield's Speech in the Cassillis Claim, infra, p. 559, and p. 553, n. %. — Even in regard to ordinary charters 
 of lands, it is incidentally observed by that able and learned conveyancer and legal antiquary, Andrew Stuart, that " it is u-cU known 
 " to every man of business that the descriptions in Crown Charters of persons and places are regulated by the descbip- 
 " TIONS IN THE WARRANTS OE THESE CHARTERS." — Hist, of the Stewarts, p. 354. 
 
Ixxii ANALYSIS OF THE ARGUMENT. 
 
 anomalies are not of much importance, and at this distance of time can hardly be 
 accounted {ov.*—But if, however, notwithstanding these considerations, it be held that the 
 Customs were indeed withheld from the Duke, this may readily be accounted for by the 
 fact that the Customs were part of the annexed property of the Crown, and held (the Great 
 Customs at least) to be inalienable without the consent of Parliament^— which consent certainly 
 had not been given,— a. specialty which would enable the Crown and its accountants to 
 demur at first as to the payment,— though this could not (from parallel precedents hereafter 
 to be cited by the Claimant J) detract from the validity of the patent 18th May 1488, 
 reddendo singula singulis, as regarded the grant of Kinclevin— which was not annexed 
 property, and fully within the power of the King to bestow on whomsoever he chose— 
 which furnishes therefore a fair and unexceptionable criterion and test of the application of 
 the Act Rescissory— and with regard to which the Claimant will immediately shew that the 
 patent did actually take effect, 
 ii. As respects Kinclevin, the evidence and facts are as follows :§ — 
 
 (1.) " Compotum" {or account), inserted in the Exchequer Rolls, " Thome Wardropar, 
 " Receptoris" {or collector) "firmarum" {of the rents) "dominiorum de Kinclevin, 
 " Strathbrawn, Glenlyon," and other lands, " redditum, apud Linlithgow, quarto 
 "die mensis Julii, anno Domini etc. nonagesimo primo" (4th July 1491), " de 
 " omnibus receptis suis et expensis per firmas et redditus eorundem a die vicesimo 
 " sexto mensis Junii, anni nonagesimi " (1490), " usque in diem hujus compoti, et sic 
 " de duobus terminis infra hoc compotum"— i.e. from the 2Qth June 1490 down to 
 the date of the compotum, and including its two terms of Martinmas and Whitsunday. 
 Hence the compotum is restricted to the period between the 2Qth June 1490 and the 
 ithJuly 1491. 
 
 " Et non onerat se de grassumis" {certain payments by tenants) " dominii 
 " de Kinclevin, quia compotans asserit Dominum Ducem de Monthrose levasse 
 " firmas dictarum terrarum, una cum grassumis earundem, ad manus proprias " — 
 ■proving that the Duke possessed the property. 
 
 This is followed by the " summa expensarum" or payments by the compotator, 
 extending to " ij= Ixv" xvi" iiii^. Et sic restant" {as an overplus or balance from the 
 receipts) " vii'= Ixxxi" viii'^, ii° Ixxxiiii salmones, Ivii marte.]! De quibus pendent'' 
 &c., {in which overplus are included, as pendent or in a suspense account, though for 
 the most part not due to the Crown but to others, but with which however the 
 accountant charges them, the following sums, viz.) " Super Nigellum Stewart, 
 " capientem ad manus proprias de terris de Rannauch " (for taking to his own hands 
 of the lands of Rannoch, evidently as property), " de anno compoti et tribus annis 
 " ante hoc compotum, Ixxx", — Et super Dominum David Ducem de Montross, 
 " similiter capientem ad manus proprias de terris de Kinclevin, preter viginti 
 " marcatas terrarum de Erntuly in manibus Episcopi Dunkeldensis," {a separate 
 charge upon Kinclevin, with which the Duke had nothing to do,) " de anno compoti 
 " ET DUOBUS ANNIS PRECEDENTiBus HOC COMPOTUM, j"^ Ixxvi^', j° v"" viii salmones," 
 — 2W other words stating that, independently of the immediate compotum, Duke David 
 had also drawn the Kinclevin rents {ivhich he could only have done as proprietor 
 under the Patent 18th May 1488) for two years previously to the 26th June 1490, 
 and thus from as far back as the 26th June 1488 — a few weeks only after the date of 
 that patent, and immediately after the close of the Exchequer account current when the 
 patent was granted. What related to the Bishop of Dunkeld is clearly (as admitted 
 on all hands) a detached independent matter ; and that the two years extra in 
 question exclusively related to Duke David will be corroborated in the sequel. 
 
 * For an Analysis of, and observations upon, the accounts of the Great and Small Customs, granted by the patent 1488, 
 with reference to the question whether David Duke of Montrose did or did not receive the revenues during the important interval, 
 (from the S. Case,) vide the Appendix, infra, pp. 512, 513. 
 
 t See the Supplemental Case, p. 43, 
 
 J Infra, p. cxiv ; and see the Supplemental Case, pp. 75, 137. 
 
 § For the passages at large see the ' Minutes of Evidence,' pp. 91 sqq. ; and the Appendix, infra, pp. 609 sqq. 
 
 II Oxen killed at Martinmas for winter's consumption. 
 
ANALYSIS OF THE AKGUMENT. Ixxiii 
 
 (2.) " Compotum Thome Wardropar, Receptoris " {and collector) " firinarum dominiorum 
 " de Kinclevin, Strathbrawn," &c., " redditum apud Edinburgh, decimo tertio die 
 " mensis Julii, anno Domini etc. nonagesimo secundo " (1492), " de omnibus 
 " receptis suis et expensis per firmas et redditus terrarum suprascriptarum et infra, 
 " a die quarto ejusdem mensis, anni Domini etc. nonagesimi primi " (1491), " usque 
 " in diem hujus compoti, et sic de duobus terminis infra hoc compotum," — i.e. from 
 the 4th July 1491 dovm to the date of the compotum, including its two terms of Mar- 
 tinmas and Whitsunday. 
 
 " Idem onerat se, in primis, de ii° lii" vii' iiii^ Ixxxxvi salmonibus, Ivii martis, per 
 " arreragia ultimi compoti sui, — preter pendentias restantes in pede ultimi compoti 
 " sui, et SUPER QuiBus CONSULENDUS EST HEX, ut patct in eodem " — that is, 
 respecting which the King was to be consulted, as being claims concerning which the 
 Collector was still in a state of suspense and uncertainty when he closed his account — 
 but among which pendentice it will immediately appear that he now no longer 
 reckoned the rents of Kinclevin. 
 
 " Expense ejusdem " (his disbursements') : — " Allocatur compotanti " &c. Et 
 " EiDEM PER SOLUTIONEM FACTAM " (by payment made) " dicto magistro Hugoni 
 " (Martyne)" &c., " et Episcopo Dunkeldensi in excambium pro terris suis de Abber- 
 " come de anno compoti xiii" vi' viii*, — et " (per soltjtionem factam, as above) 
 " Domino Duci de Monthrose" {all question of his right as proprietor being at 
 once quashed and fully admitted and recognised) " de firmis terrarum de Kin- 
 
 " CLEVIN DE TRIBUS ANNIS ANTE HOC COMPOTUM, QUE PENDEBANT IN ROTULO 
 
 " ANNI PRECEDENTis " {which had been in the suspense account in the roll of the 
 preceding year above quoted — but were now no longer considered pendent) ; " et " 
 {and also, being a different reckoning or transaction) "de termino Sancti Martini 
 " HUJUS compoti," {of the half-year's rent due an the Wth November 1491, the 
 first term of the current compotum extending from the ith July 1491 to the 13th 
 July 1492), — " ex eg quod Dominus Rex in consilio mandavit allocationem 
 " fieri de precedentibus " — {because the King in Council had ordered that tlm 
 preceding three years rents, which had been in the suspense account, and the 
 Martinmas term of the fourth year, should be allocated or admitted in the account as 
 paid to the Duke) * — " preter terminum Penthbcostes ultimum," {except, or 
 refusing him, the last Whitsunday term, due on the 15th May 1492) — after which 
 the half-year's rent, due at Martinmas, paid to the Duke by the accountant's own 
 hands out of the monies in his possession (over and above the three years' rents 
 already uplifted by the Duke himself), is stated in the accounts thus : " De dicto 
 " termino Sancti Martini, xxix" vi" viiii'^." 
 
 This last and extra arrangement is immaterial, only relating to matters within 
 the compotum, that is between the 4th July 1491 and 13th July 1492. As however 
 it has been suggested f that the Crown withheld the half-year's rent due at 
 Whitsunday 1492, as an equivalent to the rents accruing at Martinmas 1488, the 
 first term after the original charter was granted, and which the Duke had drawn 
 without due authority, that original charter being invalid — then, it must be observed, 
 on this principle, the Crown would have withheld, not the rents for one term only, 
 but for two terms and four months, constituting the interval between the first and 
 second grant of Kinclevin, which it certainly did not do. 
 
 But this, as above stated, is quite immaterial. The cardinal and weighty fact 
 
 * The Claimant may here refer to Ducange : — " Allocabe, admittere rem ut veram et prohatam, vox forensis .... Edictum 
 " Johannis I. Kegis Franc, torn. ii. Ordinat. Keg. p. 449, ' Nihil in contrarium faciatis, aut fieri permittatis, vel solvatis, aut scribatis, 
 " 'vel in solutionum compotis allocetis.' " — And again: — " Solvere,, .possessionem alimjus rei dimittere." — " Solutio, ahdicatio," — 
 Glossarium, in vocibm. The statement in the Exchequer Koll is thus to the following legal effect : — The Duke's claim to the rents 
 since the date of the original patent having been recognised by the King in Council as "true," or " just," and as " proved " {veram 
 et prdbatam), the King in Council ordered the rents uplifted by the Duke in virtue of that claim, and the rents still due to him, to 
 be " admitted " (allocationem fieri) into the account (compotum) as " paid " (per solutimem factam — literally, by ' abdication ' or 
 ' dimission ' of any counter-claim on the King's part) to the Duke— and necessarily of right and not exgratid, or of favour. See also 
 further illustrations, infra, p. 512, n. '*. 
 
 + Diike of Montrose's Case, p. 28. 
 
 L 
 
Ixxiv ANALYSIS OF THE ARGUMENT. 
 
 is this, that by the above unqualified " Solutionem fagtam,'"— words of the highest 
 importance — and by what follows, DuKE DAVID IS DIRECTLY admitted and proved 
 
 TO HAVE BEEN LEGALLY ENTITLED TO THE RENTS OF KiNCLEVIN ON AND AFTER 
 
 THE 26th June 1488, and necessarily in virtue of the Ducal Patent of the 
 PRECEDING 18th May— which, owing to the previous anarchy, the violent death of 
 James III. on the 11th June, and the Duke having been captured by the rebels, 
 together with the requisite forms of feudal entry, may be as soon as he can reason- 
 ably be supposed to have become possessed of the property. It is scarcely necessary 
 to observe that there can be no pretence to suggest an indulgence or ex gratia 
 concession from the Crown — which will be otherwise immediately disproved. The 
 simple facts before the Committee are these, — that the Corapotator (in the natural 
 scrupulosity of his office, especially at such a juncture, and, as will be hereafter 
 shewn, of his personal position and interest) consulted the King as to the justice ol 
 the Duke's pretensions — that the King in Council, and consequently the advisers of 
 the Crown, recognised the validity of the Patent as not affected by the Act Rescissory, 
 and sent orders to the Corapotator accordingly- — and that the Compotator in conse- 
 quence dropped at once all claim on the part of the Crown to the sums levied by the 
 Duke, and respecting which he had at first hesitated. The matter figures in the 
 Exchequer Roll as a " solutio facta " and finished transaction. 
 
 (3.) There is besides this material consideration, that nulla sasina nulla terra. Duke 
 David m that feudal age could only legally or properly draw the rents 
 after having been feudally entered or infeoffed upon the charter which 
 conferred them upon hlm. When the Earls of Crawford, for example, made up 
 titles to their predecessors, if there was any delay in so doing, the non-entry duties 
 fell to the Crown. But here the whole rents and duties are acknowledged to have 
 belonged to the Duke legally from the first. He must therefore inevitably have been 
 
 REGULARLY AND DULY INDUCTED INTO THE POSSESSION OF KlNCLEVLST, which COuld 
 
 only have been under and in terms of the Patent l%th May 1488 — though the precise 
 time of entry may be uncertain, owing to the fact (as will appear) of his having been 
 in temporary captivity after the battle of Stirling. 
 
 (4.) The more in fact the subject of the Duke's possession of Kinclevin is investigated, 
 the more it will be found to tell in favour of the Claimant. For, 
 
 (i.) Had the Crown at the critical period conceived itself to have the slightest 
 pretence of right to Kinclevin through annulment of the Patent by the Act 
 Rescissory, it would have brought an Action of Reduction and 
 Declarator (through the Lord Advocate) before the Supreme Civil 
 Court, calling upon Duke David, as defender, to produce the Royal Charter 
 l^th May 1488, and insisting on the ground of the (general) Act Rescissory 
 (thus specially applied) that the said Charter should be gassed, annulled, 
 AND reduced, and that the Crown should in consequence be declared (by 
 the Court) the only and true possessor. This was the form invariably 
 adopted on identical occasions, as, for example, on the attempt in 1649 to 
 reduce the Glencairn patent 28th May 1488, and as the Claimant has 
 otherwise illustrated in his Supplemental Case, pp. 25, 26. The Govern- 
 ment, moreover, were at that very moment pressing a similar action 
 against the Duke of Montrose, grounded on an annexatory and prohibitory 
 statute of James II., 4th August 1455, for recovery of the Lordships of 
 Brechin and Navar, and in which they were successful, as elsewhere 
 shewn.* But in the case of Kinclevin no such step was taken and the 
 Duke was quietly allowed to retain possession — which is wholly incompatible 
 with the supposition that the Act Rescissory took effect upon him. And, 
 
 (ii.) It could not have been as a matter o/" favour and indulgence that Duke 
 
 * 8. Case, p. 26 ; Infra, p. xci, and Appendix, p, 529. 
 
ANALYSIS OF THE ARGUMENT. Ixxv 
 
 David enjoyed the firms or rents of Kinclevin between the 2&th June 1488 
 and 18iA September 1489, — because, 
 
 (a) He was little likely from his situation, and from being in disfavour 
 with government, to have experienced such indulgence. 
 
 {b) There is no trace of such indulgence in the Exchequer Roll. 
 And, 
 
 (c) If such indulgence had been extended to him, it would certainly 
 have been stated there, and Duke David entered as having received 
 the rents " ex gratia Domini Regis," " ex favore et gratia 
 " Domini Regis," or " ex tollerantia Domini Regis," in the 
 technical form exclusively used on such occasions, — in support 
 of which the following examples may be given : — 
 
 " Et non onerat se de firmis terrarum de Kingedward que 
 " fuerunt in manibus Domini Regis in warda per spatium 
 " trium mensium, que extendunt se ad quingentas marcas 
 " per annum, cum tenandriis ejusdem, ante sasinam 
 " datam Johanni Comiti Rossie, quia ex gratia 
 " Domini Regis in minore etate constitutus intravit in 
 " eisdem." Compot. Aberden, 1453 to 1456. Exchequer 
 Boll. 
 
 " Expense," &c. " Per solutionem factam " &c. " de firmis 
 " tertie partis terrarum de Petcokkis, concessis per 
 " Dominum Regem Elizabethe de Dunbar, relicte 
 " quondam Patricii de Dunbar, ex favore et gratia 
 " Domini Regis." Compotum Roherti Lidale et Simonis 
 Salwar, ballivi et receptoris firmarum Comitatus Marchice, 
 Edivh. 1 July 1460, dating from 5th July 1459, in Ex- 
 chequer Boll, 1460. 
 
 " Expense," &c. " De firmis de Sonachard in dominio de 
 " Strathdone, occupato per David Scrimgeour, licet male, 
 " EX tollerantia Domini Regis." Exchequer Boll, 
 1449. 
 
 " Expense/' &c. " Per remissionem factam Johanni Scot, 
 
 " cursori Regis, ex gratiI et elemosina ejusdem, de 
 
 " ordeo debito de terra quam habet ad firmam de anno 
 
 " compoti," from the 29th August 1448 to the last of 
 
 June 1449, " 1 bol. 1 f. ordei." Exchequer Boll, 1449. 
 
 — While in the case otpendentice or doubtful claims, which were 
 
 ordered to be enforced against parties, notices occur such 
 
 as the following : — 
 
 " De qua" (a sum of money) " pendet super Dominum 
 " Georgium de Crechtoune, olim vicecomitem de 
 " Linlithgow, iiii^' iiii^ vi*, que restabat in pede 
 " ultimi compoti sui ; et mandatur compotanti quod 
 " disteingat Jacobum de Creichton, filium et 
 " heredem dicti Domini Georgii." Compotum of 
 Archibald Dundas, from 2nd July 1453 to lith 
 July 1455, in Exchequer Boll for 1455.* 
 
 — And such instances could be multiplied ad infinitum. 
 
 (5.) The Claimant submits therefore that there is no room left for uncertainty or doubt 
 in the question. It is clear that if the grant 18th May 1488 had been invalid, Duke 
 
 * Taken from the published Exchequer EoUs. 
 
 L 2 
 
Ixxvi ANALYSIS OF THE ARGUMENT. 
 
 David could not have had the slightest shadow of pretence to Kinclevin or any part 
 of the rents, nor could such a pretence have been entertained or even listened to for 
 a moment by the Crown, — which notwithstanding it certainly was — besides being 
 ultimately admitted and allowed. Even a prescriptive or plausible pretence would 
 not have satisfied the Crown. And hence, there being no other conceivable Kinclevin 
 right or title in Duke David, the grant by Patent 18th May 1488 is by the strictest 
 evidence proved to have been in legal force and effect, not only on the accession of 
 James IV. but down to the date of the Regrant 18th September 1489— the Act 
 Rescissory of the 17th October 1488 taking no effect upon it whatever. In other 
 words, Duke David was fully and legally recognised by James IV. and the successful 
 party to have been in lawful possession of Kinclevin from the 26th June 
 
 1488, AND TO HAVE RETAINED IT FROM THAT PERIOD TILL THE ReGRANT IStH 
 
 September 1489, unaffected by the Act Rescissory — which consequently 
 DID not apply to IT. And if the Patent was thus vahd and effectual in respect 
 to Kinclevin at so unsettled and arbitrary a juncture, most unfavourable to Duke 
 David, who stood confessedly exposed to every cavil and objection, it must inevitably 
 and a fortiori be legally valid and effectual in regard to the Dukedom of Montrose. 
 
 (6) The preceding argument forms a marked specialty in the Claimant's case, to which 
 there is nothing parallel in that of Glencairn or any other. 
 
 iii. But even if both Kinclevin and the Customs had been withheld, that fact would not (by the 
 Glencairn precedent and others to be further alluded to hereafter) have affected the descent 
 
 of the DIGNITY. 
 
 iv. And if it really be the case that a distinction was established between the Customs of Montrose 
 and the Lordship of Kinclevin on the ground of the Customs being annexed property of the 
 Croicn, which the Lordship of Kinclevin was not — the Customs being withheld from the 
 Duke while the Lordship was allowed to him in consequence of this distinction — then, in 
 such case, the distinction is favourable to the Claimant, inasmuch as it shews that the 
 attention of the Crown was called to the legality or the illegality of the Patent 18th May 
 1488, and that the Patent was held to be a valid grarit, notwithstanding the Act Rescissory — 
 the Act being at that time new and fresh, and in every on£s remembrance. — Case, p. 7 ; S. 
 Case, pp. 83 sqq. ; Infra, pp. 78 sqq. 
 
 Objections by the Crown. 
 
 Attohnet-Genebai,. — On analysing the accounts of the Great Customs, the receipts from the 10th July 
 1486 to the 21st August 1488 are received by the Customer, the Duke merely receiving his annual 
 pension of forty marks. But "from the year 1490 the Earl of Crawford, or rather the then Duke of 
 " Montrose, the second grant having then been made, took into his ovpn hands the receipts of the Burgh, 
 " and he continued to do so from . . 1490 to . . 1495, when he died." — As respects the " Small dues," 
 or Petty Customs, " the case . . is, if possible, still stronger." The dues are received, are paid to the 
 Crown " up to and through the year 1489, up to therefore and through the time when the first grant of 
 " the Dukedom took place, which was afterwards annihilated by the Act Rescissory. But .f. from July 
 " 1489, that being the year which followed the Regrant of the Dukedom, from that year the accounts of 
 " the Burgh dues entirely disappear . . till the year 1496, . . the customer or baillies no longer " 
 accounting " to the Crown . . but to the Duke, who was entitled to claim the dues under the recent 
 " grant from the Crown. They did not account to him for the year 1488-9, but . . to the Crown . . ; 
 " but for the year 1489-90, and from that time to the year 1496, we lose all trace of these accounts in 
 " the Rolls of the Exchequer ; they are not to be found. . . The Crown having no longer an interest in 
 " the matter, the baillies account with the grantee of the Crown, the Duke of Montrose." — As respects 
 Kinclevin, " Mr. Wardroper," the accountant for Kinclevin, ■' in his account for . . 1492, after 
 " charging himself with the rents, . . makes a note that there is a matter of dispute, and that, though he 
 " charges himself, he has not, in point of fact, received the amount; for the Duke had taken the same 
 " into his own hands." " The Duke,'' in 1492, "claimed . . the whole rents accruing since the term 
 " of Martinmas 1488 inclusive. It is apparent that the Duke's claim was founded upon his original 
 " charter of 18th May 1488." " The matter " however " having been brought under the attention and 
 " cognizance of the King in Council, he was allowed only one half year." " He had claimed those rents 
 " from the period of his original Dukedom — the collector had disputed it, and . . it came before the 
 " King — and, inasmuch as the Duke, having received his new grant in September 1489, would have been 
 " in strictness not entitled to anything, still, if the Act Rescissory was considered to apply, as there was 
 " an amount which would still accrue to him, the King makes a sort of compromise with him, and he is 
 " allowed half a year instead of the whole. Perhaps it leaves the matter very much where it was." But 
 
 " the pith and marrow of this inquiry is — What became of the estates " after the Duke's death? Infra, 
 
 pp. 205, 206, 207. 
 
ANALYSIS OF THE ARGUMENT. Ixxvil 
 
 LoED Advocate.—" In regard to . . Kinclevin and the Customs of Montrose," the Lobd Advocate does 
 " not think it necessary to go in detail into those accounts."—" It is proved incontestably " by those 
 accounts " that between 1488 and 1489 Lord Ciawtbrd, who brought some six or eight thousand men 
 " into the field, had still power to levy the rents of Kinclevin and the Customs of Montrose. As to 
 " Kinclevin, when the account came to be settled between the Earl of Crawford and the Crown, they 
 " allowed him one half of the rents . . but disallowed the other." No account is preserved of the 
 Montrose Customs, — " but it is not in the least material to this inquiry whether the Duke did or did not at 
 " his own hand levy them— it is possible that he may have done so,— the material " point is, " What 
 " became of those rents upon " his " death ?" — Infra, p. 233. 
 
 Replies and Eemaeks. 
 
 i. With reference to the Great Customs, — the Attobney-Genbbal, after tracing the accounts to August 1488, 
 till which time they were taken by the Crown, and in pursuing his narrative after that year, entirely shvps 
 over and omits the important year from August 1488 to August 1489 — in which there is no account of the 
 Great Customs,— the legal presumption being that they were, like Kindevi-n, draion by the DuJce of 
 Montrose. The Lord Advocate, on the contrary, admits that the Duhe received them. 
 
 ii. With reference to the Petty Customs, — the Attobney-Geseeal states, that from the date of the regrant 
 of the Dukedom the Petty Customs entirely disappear from the accounts of the burgh, as being paid to 
 the Duke, — whereas in the accounts rendered on the Wth July 1490 the £\. 2s. M. are paid, not to the 
 Duke hut to the Compotator — proving (as already mentioned) that even under the second patent itself 
 the Crown collectors withheld the Customs for the first ten months after its date, i. e. from the 19th 
 September 1489 to the 10th July 1490, which Customs were not paid to the Duke. 
 
 iii. With respect to Kinclevin, — it is fully admitted loth hy the Attoenet-Geneeal and the Loed 
 Advocate tliat the Duke deew and eeceived the eents of Kinclevin dubing the inteeval 
 between the two Patents, claiming them undee the oeiginal Patent, notwithstanding the 
 Act Eesoissoey.* But, in noticing the dispute and reference to the King, the Attobney-Gbneeal 
 omits the cardinal words " pee solutionem factam," f and the egually pregnant fact that tlie payment 
 was made, kot " ea; gratia " or " ex tollerantia " according to the invariable phrase, iut as of eight. 
 The Attoenby-Geneeal also admits " a sort of compromise," — which could not have taken place 
 unless the application of the Act Rescissory had been doubtful — in which case the rule of strict interpre- 
 tation, applied to the Act Rescissory, and the maxim "in dubiis benigniora semper sequenda sunt," must 
 of course determine the question in favour of the Claimant. But if it was a compromise, it was a most 
 unequal one — the Crown contenting itself with six months only, and allowing the Duke ten in virtue of 
 the original grant. Moreover, in that case, there cannot be a doubt that the fact would have been entered 
 in the Exchequer Rolls im, such a mamner as to save the credit and self-esteem of the accountant amd the 
 Crovm. But the Claimant submits that it could not have been a compromise, and that IF the Duke 
 
 HAD acted without AUTHOEITY, AND TAKEN THE BENTS BY AN EXERTION OP HIS FEUDAL POWEE, as 
 
 suggested by the Lord Advocate, the claim against him would not have been dropped, but he would 
 
 HAVE BBE;J PEOSBCUTED IN THE USUAL MANNEE BEFOBE THE LOEDS OF COUNCIL AND SESSION FOB 
 
 eecoveey OF THE BENTS UNDULY UPLIFTED BY HIM. Such was the usual course at the time, as 
 witnessed passim in the records of the Supreme Civil Court and in the case of the Duke himself (as the 
 Ceown itself urges in relation to another property, as already stated |) at the very period in question. 
 
 iv. The Claimant must protest against the importance of this tenure and possession of Kinclevin being 
 undervalued or considered immaterial, as by the Attoeney-Gbnbeal and Loed Advocate, in con- 
 sideration of the property having been withheld from the Duke's heirs after his death. Tliat is a 
 totally distinct consideration from the present, which is confined simply to the imquiry whether the 
 property granted by the Patent \Sth May 1488 was or was not enjoyed by the Duhe during the interval 
 between the date of the Patent and the Regrant 18th September 1489, notwithstanding the Proclamation 
 and the Act Rescissory. It is admitted that no resignation took place either of the Dukedom or the 
 estates — the contention is that both were cut down at once by the Act Rescissory — and such being the 
 case, if the Duke held the estates under the Patent (as has just been proved), tlie Patent must have been 
 effective notwithsta/nding the Act Rescissory, — and nothing that has since taken place, however mysterious 
 or difficult of explcmation it may appear in the eyes of the Ceown or the Committee, can in the slightest 
 degree impair the Claimant's right under that Patent.% — S. Case, pp. 83 sqq. ; Infra, pp. 280, 281. 
 
 Opinion of the Committee. 
 
 Loed Chancelloe. — Whereas the Duke " had taken to his own use all the rents " of Kinclevin from 
 July 1488, the Customer still charging himself with those rents and reporting to the Crown accordingly ; 
 
 * It may be observed that the Lord Advocate has elsewhere admitted distinctly that David Duke of Montrose " was seised 
 " in " the estates granted with the Dukedom, that is, in the Customs of Montrose and the Lordship of Kinclevin, " just as much as 
 " he was seised in the Sheriflfdom of Forfar" — that "they did belong to the Earl of Crawford, and he held them heritably" — of 
 course premously to the Act Rescissory, which the Learned Gentleman holds to have annulled the grant. — Infra, p. 234. 
 
 t These words occur in the Attorney-General's Speech, at p. 206, infra,— hut not as in the passage founded on by the 
 Claimant— only in an account of 1496. It is evident, of course, that if " per solutionem factam" express an absolute payment to 
 the Duke in right of the second Patent in 1495, they must express an absolute payment in right of the original Patent in 1488-9. 
 
 J Vide infra, p. xci ; and Appendix, infra, p. 529. 
 
 § It will hereafter appear that the resumption of the estates may be accounted for by the Act 26th June 1493, which rescinds 
 and resumes ex tunc the grants of estates made by James III. within the period struck at by the Act Rescissory, and which, although 
 not pushed against the Duke himself, may have been effective against his heirs after his death, as shewn infra, pp. cxxiii, cxxiv. 
 
Ixxviii ANALYSIS OF THE ARGUMENT, 
 
 and whereas, when the accounts came to be settled in July 1492, " the Duke would have been entitled to 
 " have kept" the "rents" " for /oMf years" "if the original grant had been in operation'' — " but if, 
 " on the other hand, the Duke was only entitled from the date of the Regrant in the next year, he would 
 " have been entitled to three years only " — " it appears that there were disputes and doubts as to what 
 " was to be done on this subject. The times were not very quiet, and what was done by order of the 
 " King was this : three and a half years were paid to the Duke of Montrose— or rather allowed, not 
 " paid, because he had received them himself. It is suggested in some of the papers before me, and I 
 " cannot help thinking with some degree of probability, that this was a sort of compromise.* The 
 " Duke at that time had become reconciled to the Court. And the question arose, was he to be charged 
 " with this, or was he not ? " He had taken four years, being only entitled to three—" What is to be 
 " done? Let him take three and a half years. . . . That obviously was a sort of compromise. But 
 " whether it wa? or not " is " quite immaterial. The important point is this, that after his death none 
 " of those that came after him had a farthing. . . . That is the only important point. It was just the 
 " same thing with regard to the Customs of Montrose and the burgh rents of Montrose." — Infra, 
 pp. 317, 319, 320, 321. 
 LoBD St. Leonaeds takes no notice whatever of the argument on this head. 
 
 Observation. 
 
 The LoED Chancelloe, like the Attoeney-Gbnheal, entirely overlooks the force of " pee solutionem 
 " FACTAM," the absence of any statement in the Roll of " ex geatiI," " ex tolleeantiS," &c., and 
 the fact that no Action of Reduction and Declarator was brought against the Duke, for recovery of the 
 rents alleged to have been unduly appropriated by him, in application of the Act Rescissory. And he 
 goes beyond the Learned Gentleman in representing the rents as " allowed, not paid," to the Duke, 
 &c. On this point the Claimant would refer to note ' at p. Ixxiii., supra, giving Ducange's definition 
 of the terms "solutio " and " allocare," and also to note * at p. 512. — Moreover, the Lobd Chancellor's 
 statement that the Duke would have been entitled to four years' rents if the original patent were valid, 
 but to three only if his rights exclusively dated from the Regrant, is incorrect as to the latter alternative, 
 — the Duke would have been only entitled to one year and not quite ten months, viz. from the 18th 
 September 1489 to the 13th July 1492. With respect to the Loed Chancblloe's admission that 
 " disputes and doubts" existed as to the Duke's right, and that a "compromise" took place, &c., the 
 Claimant may refer to his notes on the Noble and Learned Lord's Speech, infra, p. 320. 
 
 2. On the 20th October 1488 " David Dux de Montkose, et Comes Craufurdie," so designating 
 himself, and thus distinctly asserting his right to the Dukedom, -j- granted a charter of an annual pension of 
 160 marks out of the Great Customs of Aberdeen to his wife Margaret Carmichael. This was followed on 
 the same day, three days only after the Act Rescissory, by a Royal Confirmation, reciting it verhatim, and 
 ratifying it " in omnibus suis ■punctis et articulis," Sfc. "forma pariter et effectu, in omnibus etper omnia.''^ 
 In the preamble, before the confirming clause, the Duke is styled " Comitem Craufurdie," but the 
 contemporaneous title of the grant is " Carta confirmationis Margarete Carmycliell super carta Ducis 
 " DE Montrose," which may obviate the objection. The very fact of the confirmation proves the 
 recognition, and that the Dukedom was not affected by the Act Rescissory. Moreover, as the Claimant 
 will presently shew, peers were frequently designated in Scotland by their inferior titles, as the Duke is 
 in the preamble in question.^ And he cites an instance precisely parallel to the present, in which 
 James IV., in the Confirmation, 6th May 1489, of a charter dated 26th April 1489 by " Johannes Comes 
 " de Levenax et Dominus Dernly," then and previously sitting in Parliament and legally recognised 
 by the title of Earl of Lennox, describes the charter in the preamble of the Confirmation as being the 
 charter, not of John Earl of Lennox but of " Johannis Domini Dernlie," his second or lower title — 
 precisely as James IV. in the above Confirmation describes the charter granted by " David Dux de Mon- 
 " trose " as having been granted by " David Comitem Craufurdie." \ The Claimant having adduced in his 
 Original Case a similar instance in which a charter of ' John Earl of Lennox,' dated 16th August 1477, is 
 confirmed by James IV., 25th June 1489, as the charter (so described in the preamble) of ' John Lord 
 ' Darnley,' and the Duke of Montrose having objected to it that the title of Earl of Lennox was considered 
 questionable at that time (in 1477),1[ the Claimant (although neither admitting the fact nor the weight of 
 this objection) adduced in his ' Supplemental Case' the preceding new instance, which is in all respects 
 unchallengeable, the Earldom having been fully recognised and allowed by James IV. and by Parliament 
 (necessarily under his authority) as in the Lennox family in 1488 — the year before both the charter 26th 
 
 * It is not so stated in any of the papers or cases — merely by the Attornet-General. 
 
 t For notice of a gi-ant by ' David Duk of Montross,' as Duke, I8th June 1488, and its recognition by the Supreme Civil 
 Court, (evidence only recently discovered,) see the Appendix, infra, p. 530, n. *. 
 
 \ Printed in the 'Minutes of Evidence,' p. 84, and the Appendix, infra, p. 514. 
 
 5 Vide infra, p. xciv ; and see the Appendix, infra, pp. 515 sqq. 
 
 II For this charter see the ' Minutes of Evidence,' p. 122, and the Appendix, infra, p. 515. 
 
 «lf This charter also is printed in the ' Minutes of Evidence,' p. 120. And see the Appendix, infra, p. 516. 
 
ANALYSIS OF THE ARGUMENT. 
 
 Ixxix 
 
 April 1489 and the Confirmation 6th May 1489 took place— as by the testimony of the public records* 
 and by the acknowledgment of the Noble Duke himself. — Case, p. 7 ; S. Case, p. 83 ; Infra, pp. 73, 74,' 
 123, 124. 
 
 Objections by the Crown. 
 
 Attoeney-Genekal. — " Although the instrument came under the cognizance of the Crown, it is still more or less 
 " of the nature of a private grant, . . and it was a matter, therefore, upon which the Crown would not be 
 " particular as to the precise terms in which the instrument was framed. But . . all the effect . . is done 
 '■ away by the " charter of Confirmation, in which the donor " is styled . . simply ' Earl of Crawford.' " It 
 was (in answer to a question of the Loed Chancelloe) " as though it had not been deemed worth while to 
 " refuse to ratify an instrument of a private nature between him and his Duchess in the terms in which it was 
 " executed, but at the same time taking care to guard the Crown against any possible supposition of having 
 " confirmed the title in confirming the grant, by being particular to style him by his designation of ' Earl of 
 " ' Crawford' in the charter of confirmation." The answer to the Lennox illustration is given "at p. 20 of 
 " the Case of the Duke of Montrose. The facts are fully stated, and the authorities given," in that " Case." . . 
 The title of Earl of Lennox was a very doubtful title ; it was resisted by Parliament His power enabled 
 him to sit " in Parliament under the title, but it was at all times questioned, and at one time repudiated by 
 " Parliament.t . . The King, therefore, . . called him by his inferior instead of his higher title." — Infra, 
 pp. 191, 204. 
 
 Loed- Advocate. — " He " (the Earl of Crawford) " makes a grant to the Duchess, as Duchess, calling himself 
 " Duke ; but it was necessary to have a charter upon that, and . . in Chancery X ■ ■ Ae Duke is styled 
 " 'Eai-1 of Crawford,' — proving . . first, that he endeavoured to take the title, and secondly, that it was never 
 " conceded to him." — Infra, p. 232. 
 
 Replies and Remarks. 
 
 i. The Duke's charter to Margaret Carmichael is not only an assertion of the title, but a solemn act done, in reference 
 to the Great Customs of Scotland, in the name and dignity of Duke — a solemn deed sent into the official 
 place, executed under his name and title. It cannot be supposed that the law officers of the Crown would 
 permit the Crown to confirm a charter in which a man is styled Duke, if he had been deprived of the 
 Dukedom by Act of Parliament as being prejudicial to the King himself. It is possible that, owing to 
 the pension from the Great Customs having been part originally of the Crown property, before it vested 
 hereditarily in the Crawford family, it may have been prudent to take a charter of confirmation from the 
 Crown, as stated by the Lobd Advocate ; and if so, it of course gives greater weight to the Ducal recognition. 
 But it certainly was not necessary — any more than it was necessary to take a charter of confirmation for any 
 subinfeudation of lands held in capite of the Crown. At the same time a Confirmation was also expedient for 
 the purpose of registration, for the security of the Duchess, the party interested in the preservation of the 
 grant, in accordance with the usage explained supra, p. xxvii, and n. §. 
 
 ii. The ATTOENEr-GBNEBAL grounds his objection against the Lennox precedent on the illustration originally 
 brought forward by the Claimant and impugned in the Noble Duke's Case, and he refers to that original 
 illustration and its (presumed) refutation, entirely overlooking and passing over the later and in every respect 
 unexceptionable instance adduced by the Claimant in his ' Supplemental Case,' in which instance both the 
 original Charter and the Confirmation of that charter passed in 1489 — the year after the fuU and final recog- 
 nition of the Earldom of Lennox, — since which time the Earls of Lennox sat continuously as such in Parlia- 
 ment. Nor does the Loed Advocate, although coming after the Attoenet-Geseeal, rectify this oversight. 
 It is clear and undeniable that hy parity of reasoning the Crown would he bound to deny the existence of 
 the Earldom of Lennox in 1489, and, by consequence, down to near the close of the sixteenth century. \ 
 
 iii. The Confirmation of Duke David's charter to Margaret Carmichael is therefore a clear recognition of the 
 Dukedom in the patentee, subsequently to the Act Rescissory and before the Regrant in 1489. Infra, pp. 73, 
 74, 123, 124. 
 
 Opinion of the Committee. 
 
 Loed Chancelloe. — The grant in question " required the Confirmation of the Crown in order to be valid. . . 
 " No doubt the Crown did confirm it, but . . by his title of ' Earl of Crawford ;' so that the most it amounts 
 " to is this, that, an instrument having in all human probability been prepared before the passing of the Act 
 " Rescissory, (for it bears date only three days after,) and he in that calling himself Duke of Montrose, the 
 " Crown confirms it to him by an instrument . . describing him as ' Earl of Crawford.' " This is " an 
 " intimation in the strongest way that the Crown, though it did not mean to question the grant he was 
 
 * See the Acts of Parliament, vol. ii. pp. 200, 208, 212, 213, 217, 218, 220; while the important office of Governor of Dum- 
 barton Castle was granted, 10th October 1488, by James IV, " Joanni Comiti de Levenax," as proved by the Great Seal Register. 
 The Boll of the Parliament which met on the 6th October 1488, and a Charter by James IV. to ' John Earl of Lennox,' are given 
 in proof of the above in the ' Minutes of Evidence,' pp. 124, 125. And see the Appendix, infra, p. 517, and remarks there. 
 
 t All this is misapprehension. There is no Parliamentary notice or entry to the effect affirmed by the Attokney-Generai.. 
 
 % Thus, in fact, admitting that the alteration to the Comital style was the mere work of the ckrh of Chancery, in conformity 
 with more than one similar explanation by the Claimant. Vide p. Ixx, supra. 
 
 § A learned Scottish antiquary and genealogist, Mark Napier, Esq., has decisively proved that there was no new creation (as 
 was formerly supposed) of the Earldom of Lennox in 1488 ; but that Lord Darnley's right, as heiy of line of the ancient Earls, 
 which had been previously in question, was in that year recognised (although, as the learned author contends, unjustly) by King and 
 Parliament. — History of the Partition of the Lennox, pp. 82 sqq. — For further proof of the right of John Earl of Lennox to his Earldom 
 in 1488 and 1489, from the public records, see the Supplemental Case, p. 121, note t- 
 
Ixxx ANALYSIS OF THE AEGUMENT. 
 
 " making in favour of his wife, in effect said, ' We confirm it to you, not in the title you have chosen to 
 " ' appropriate to yourself; but in your true title of Earl of Crawford.' "—Infra, p. 322. 
 LoBD St. Leonards.—" The Duke . . never set up his title in the presence of the Crown, with the exception 
 "of" this charter, " in which it might have passed without observation, and it amounts in reality to nothing."— 
 " The grant to his wife . . required the confirmation of the Crown. There he called himself Duke, and 
 " what does the Crown do ? The Crown, in confirming the charter, takes care to prefix to it his proper title, 
 " calling him ' Earl of Crawford,' and confirming the grant by that title." This, with other similar acts, is 
 " quite conclusive as regards the question." — Infra, pp. 352, 353. 
 
 Observation. 
 
 The Noble and Learned Lords take no notice of the Lennox illustration, so precisely parallel and in point, nor of 
 the fact that Duke David's charter is described in the contemporary title of the Confirmation as the " carta 
 " Ducis DE Montrose." 
 
 3. It is proved by a series of legal docunients, now adduced, that, subsequently to the battle of 
 Stirling, James IV. passed Letters Patent under the Privy Seal in the Duke's favour, whereby he " remisit 
 " etindulsit sibi OTwwmorfam hujusmodi displicienciam," on account (as explained) of the part the Duke had 
 taken against him in defence of his father King James III., (the Duke's loyalty subsequently to that father's 
 death not being disputed), — that he qualified the delivery of this Remission to the Duke by the condition 
 that he should first resign the hereditary Sheriffdom of Forfarshire in favour of Andrew Lord Gray, the 
 High Justiciary, and one of the leaders of the rebel faction, — that he placed the Letters Patent in the 
 hands of Lord Gray, to remain there till the Duke should have resigned the SherijflPdom ; and that the 
 Duke was threatened with death and deprivation of his lands and property unless he complied, — that the 
 Duke found himself obliged to comply, but, previously to doing so, solemnly protested by a legal Notarial 
 Instrument against the injustice of this proceeding, " pro remedio juris tempore opportune," — that he 
 then executed a Procuratory, or power of attorney, subscribed and sealed with his seal as Duke of Montrose, 
 empowering the Earl of Bothwell, Alexander Lord Home, and others, (leaders of the successful faction,) 
 to resign the office into the hands of James IV., — and that Lord Home, acting as procurator for the 
 Duke in his absence, did accordingly so resign it in the Duke's name, as Duke, into the King's own 
 hands, in public, in the King's chamber at the Earl of Bothwell's castle of Hailes, whereupon the King 
 bestowed it hereditarily (" dedit, donavit," &c.) upon Lord Gray, — in consequence of which compliance 
 the Duke entitled himself ex contractu to the delivery of the Remission, and, it must be presumed, did so 
 receive it, — the whole of the above proceeding being of the most solemn character — rigid inquisition being 
 made into the validity of the Procuratory, and especially of its seal, to which the greatest importance was 
 attached — the right of Lord Gray to the office being identified with that of the resigner to the Dukedom 
 — and the Duke being neither present himself, nor having any friend present to attend to and protect his 
 interests, which were exclusively in the hands and at the mercy of his enemies ; notwithstanding all which, 
 
 THE TITLE OF DuKE IS, WITHOUT THE LEAST SCRUPLE OR HESITATION, GIVEN AND APPLIED TO HIM BY 
 
 ALL PRESENT (the Duke's enemies) AND BY THE KiNG HIMSELF, James IV., the fountain of honour — 
 and this subsequently to the Act Rescissory and before the Regrant 18th September 1489. — 
 The documents proving the preceding facts are, 
 
 i. A Protest, drawn up, at the request of " David Dux de Montrose, Comes Craufurdie et 
 " Dominus Lindesay," by Henry Barry, a notary, in the usual legal form in which Acts and 
 proceedings of the highest importance were at that time embodied and exemplified in 
 Scotland as well as in foreign countries ; narrating the circumstances under which the Duke 
 was compelled to resign the Sheriffdom, and protesting against the extortion, as above 
 stated, — dated at the Duke's " manerium " or residence at Dundee, on the 29th October 
 1488.* 
 
 ii. A Procuratory, Proxy, or Power of Attorney, executed by " David Dux de Montross ac 
 " Comes Craufurdie," and addressed directly to the Sovereign, empowering the Earl of 
 Bothwell, Lord Home, Sir Alexander Lindsay of Ochtermonzie, and others, to resign the 
 Sheriffdom of Forfarshire into the hands of the King, — dated at Dundee 1st November 1488 , 
 subscribed in the Duke's own autograph, " D. Doic off Montross," and with the Duke's 
 original sea! of arras appended, exhibiting the Ducal coronet, with an escutcheon or surtout 
 in the centre of the shield, charged with a rose, according to heraldic rule, for the dignity of 
 
 "■ Printed in the ' Minutes of Evidence/ p. 86, and the Appendix, infra, pp. 519, 520, where a translation is also ^ven. 
 
ANALYSIS OF THE ARGUMENT. 
 
 Ixxxi 
 
 Duke of Montrose— and with the legend " Sb- (Siglllum) ©abflj BUCl'Si ^t MonttO^ 
 
 " . . itis CraufurU." * 
 
 iii. A Notarial Instrument, executed by Andrew MacBrek, " presbyter," a most distinguished 
 
 ecclesiastic, Chancellor of the diocese of Dunblane, closely attached to James IV. as his 
 
 protonotary, or chief notary, and almoner, and high in the confidence of the successful 
 
 faction — narrating, (1.) The appearance of " nobilis et potens dominus, Alexander Home 
 
 " de eodem, f procurator irrevocabilis ad infrascripta magnifici et potentis domini David 
 
 " Ducis DE Montrose ac Comitis Craufurdie," before James IV., " in camera regia 
 
 " apud Castrum de Halis," on the 6th November 1488, — (2.) Lord Home's production of 
 
 the preceding Procuratory, " sigillo propria dicti Ducis dgillatum, roboratum, et munitum, 
 
 " prout mihi, notario publico subscripto, meis intuentibus oculis,evidenti constabat documento, 
 
 " viz. ad resignandum . . nomine et ex parte dicti David Ducis . . . suum officium Vice- 
 
 " comitatus de Forfar," — (3.) His subsequent resignation of the SherifiFdom and the acceptance 
 
 of it by James IV., — and (4.) The Donation of it by the King to Lord Gray — at whose 
 
 request and for whose interest the Instrument (as will appear) is executed — the resigner being 
 
 styled throughout (thus under Royal authority) Duke of Montrose : — " Quoquidem Pro- 
 
 " curatorio viso, lecto, et in presentia Domini Regis totaliter intellecto, virtute, vigore, et 
 
 " potestate prefati Procuratorii, dictus Alexander Home, Procurator et nomine Procura- 
 
 " torio quo supra, coram celsitudine dicti Domini Regis, . . . genibus flexis, ut decuit, 
 
 " sedens, totum et integrum dictum ofScium Vicecomitatus de Forfar . . in manibus 
 
 " prefati Domini Regis .... resignavit, . . . ac dictum Dominum Ducem et suos 
 
 " heredes de dicto officio . . exoneravit," &c. — " sic quod dictus Dominus noster Rex de 
 
 " eodem officio . . ad sue proprie libitum voluntatis licite disponere valeat ; Quibus- 
 
 " quidem donatione, resignatione," &c. . . " sic factis, receptis, et admissis, prefatus 
 
 " Dominus noster Rex . . dictum officium . . Villielmo Liddale, . . actomato . . nobilis 
 
 " et potentis domini Andree Domini le Gray, . . hereditarie et imperpetuum dedit, donavit, 
 
 " ac per fustem . . assignavit et libere deliberavit, . . secundum vim, formam, . . et 
 
 " tenorem Carte Regie dicto Andree Domino le Gray et heredibus suis desuper conficiende. 
 
 " Super quibus, omnibus et singulis, dictus Villielmus Liddale, . . ex parte dicti Andree 
 
 " Domini le Gray, a me, notario publico subscripto, sibi fieri petiit unum vel plura, publicum 
 
 " vel publica, instrumentum vel instrumenta." — After which follows MacBrek's formal 
 
 attestation, to the effect that he had been present and an eye and ear witness to the whole 
 
 proceeding : — " Presens interfiii, eaque omnia et singula sic fieri vidi, scivi, et audivi, ac 
 
 " in notam cepi," &c. J 
 
 On which the Claimant need only observe, that a contract of the most solemn kind having thus been 
 entered into between the King and the Duke of Montrose — the surrender of the Sheriffdom being the 
 sole condition prescribed by the King, which condition the Duke fulfilled, as proved by the Procuratory and 
 Instrument of Resignation just cited — that surrender having necessarily sprung from an adequate motive, 
 which motive the Protest supplies — the Recognition in question, as above proved, is precisely 
 
 WHAT we are led TO EXPECT AS THE FULFILMENT ON THE King's PART OF THE CONTRACT INTO 
 
 WHICH HE HAD COMPELLED THE DuKE TO ENTER. Had such Recognition been withheld, the King 
 would have been in mala fide. But such Recognition, as is proved, was not withheld, — while the Duke 
 (as the Claimant contends) was moreover fully entitled to Recognition, independently of the Contract. — 
 Case, pp. 8 sqq. ; S. Case, pp. 88 sqq. ; Infra, pp. 74 sqq. ; 124 sqq. 
 
 Objections by the Crown. 
 
 i. The Protest. 
 Attoenby-General. — " It is entirely a private instrument. ... It professes to be so. . . . It is witnessed by 
 " private adherents and retainers of the Duke himself." "It could neither come to the knowledge of, nor 
 " challenge the observation of the Crown, nor of any of the public authorities." — Infra, pp. 189, 191. 
 
 * For this Procuratory, for proof of the Duke's handwriting, and for proof that the seal corresponds with the coat of arms 
 assigned to " Lindesay Duke of Montross " in the original MS. Matriculation Book of Sir David Lindsay, Lord Lyon King at Arms 
 in the reign of James V., see the ' Minutes of Evidence,' p. 87, and the Appendix, infra, pp. 521, 522, where the Seal is engraved, as 
 also in the Supplemental Case, p. 11. 
 
 t Lord Home is so styled, although " a noble and potent Lord," or peer, (having been so created in 1473,) according to a 
 Scottish usage elsewhere illustrated, S. Case, p. 121, and infra, p. xcv. 
 
 t For this Instrument see the ' Minutes of Evidence,' p. 87, and the Appendix, infra, pp. 622, 523, where a translation is given. 
 
 M 
 
Ixxxii ANALYSIS OF THE ARGUMENT. 
 
 Lord Advocate. — The Protest cannot prove the recognition contended for. But it is most important against 
 the Claimant,— for " what can prove more clearly that the Earl of Crawford was at that time suffering under 
 " the power of his enemies, . . that he was struck at by the Rescissory Act," and "that the power of the 
 " Crown was against him," than this very document, conveying his own testimony to the fact? He says he 
 was " obliged to give up the Sheriffdom of Forfar,— and so he was, against his will, and obliged to give up 
 " the Dukedom of Montrose against his will too." There is no " more significant comment on the whole 
 " of these proceedings than the terms of this Protest, . . which speaks in every line the fact that he was 
 " unwilling to surrender the honours he had achieved, and that they were only wrung from him by a superior 
 " force."— /nfra, p. 231. 
 
 ii. The Procuralory and Instrument of Resignation and Donation. 
 
 Attoknbt-Gekekal. — The Claimant has not " dealt fairly" by the Committee in laying this matter before them. 
 " Five writs were necessary to constitute a complete resignation and a complete regrant," two proceeding 
 " from the party resigning the office, and the other three from the superior who is granting it anew. . . 
 " All these instruments, forming part of one common process, ought to have been put before the Committee." 
 The Claimant produces "only one" of these writs (the Instrument of Resignation, &c. — the Attoenby- 
 General omitting all notice of the Procuratory), and " the one of least importance, . . because it proceeds 
 " from the party resigning and not . . from the Crown." " That is the only instrument with respect to the 
 " Resignation which is before the Committee." The Attoeney-Genbeal has " no doubt," as coming " from 
 " the proper custody, viz. from the charter-chest of Lord Gray," that " it is an authentic instrument." But, 
 while it bears that the Resignation was made by the procurators of ' David Duke of Montrose' at Hailes 
 Castle on the 6th November 1488, "the charter itself" to Lord Gray, dated the 14th December 1488, 
 " which is produced from the charter-chest of Lord Gray,'' bears that it was made by the procurators of 
 ' David Earl of Crawford ' " at Perth on the 14th December of that year." This " evidently shews that 
 " the Instrument which has been produced before" the Committee " was not the real Instrument of Resig- 
 " nation." " The fair inference," " the probability," "is, that" the Instrument produced " was prepared, 
 " not as a record of what had actually passed, . . but of something which was expected to take place," 
 stating the Resignation as at Hailes and by David Duke of Montrose, and that it was " rejected by the 
 " Crown because it gave him the title of Duke," and that " some other Instrument " was prepared, bearing 
 his proper title of Earl of Crawford. The Precept of Seizin which follows on this charter, dated the same 
 day and at the same place, Perth, similarly "designates" the Duke "as Earl of Crawford," and not as 
 Duke of Montrose.* " It is" thus " only in the instrument emanating from the Duke, as he was pleased to 
 " call himself, that" the Committee " find any assumption of the title of Duke ; . . the moment the Crown 
 " has to act, in the instrument which proceeds from the Crown, . . the title is cut down to . . that of Earl 
 " of Crawford." " It is clear that the Charter did not proceed upon" the Instrument of the 6th November 
 1488 ; " and therefore that Instrument is without power or authority . . on this occasion." — So far therefore 
 from this being a recognition, it is " a repudiation" of the title. — l-nfra, pp. 192-195. 
 
 LoED Advocate. — -"A Procuratory" or "mandate" to resign the Sheriffdom of Forfarshire, and "the 
 " Instrument of Resignation," have been " produced on the other side," and the Claimant " mdntains it to 
 " be a pure transfer of the Sheriffdom. . . No doubt at all that Resignation was made . . in the presence of 
 " the King at Hailes; but . . a Procuratory of Resignation and an Instrument of Resignation proceeding 
 " upon that Procuratory do not constitute a title in any sense whatever. The title is the Charter. . . In 
 " feudal strictness, the Procuratory and the Instrument proceeding on it are not parts of the title at all — they 
 " are swallowed up in the Charter, which from that time becomes the only title. f The Charter bears that 
 " resignation was made indeed, but made, not by the Duke of Montrose but by the Earl of Crawford," and 
 " not at Hailes but at Perth. What the explanation of the discrepancy may be, it is not in the least 
 " necessary to inquire — but this is certain . . that the Earl of Crawford endeavoured to call himself Duke of 
 " Montrose without success . . and that the resignation in point of fact was made at Perth. The statement 
 " in the Charter is conclusive ; and the probability is . , that the Instrument had been extended by the 
 " notary employed by the Duke or Earl of Crawford, and when it came to be used, the Crown officers 
 " refused to receive it and corrected the charter accordingly." — Infra, p. 232. 
 
 Eeplies and Remarks. 
 
 i. The Protest. 
 
 The Claimant does not adduce the Protest as (directly) proving the Royal Recognition, but as establishing a. 
 conteact, compulsory so far as the Duke was concerned, between himself and the King, and the terms of that 
 contract— v/hich the Duke fulfilled on his part, though protesting against the injustice which compelled him 
 to it, — the fulfilment entitling him to free remission of every particle of displeasure on the King's part ; to 
 the reception of the Letters Patent of Remission, proved by the Protest to have been already executed and 
 placed in Lord Gray's hands ; and, generally, to absolute and complete recognition by his Sovereign as Duke 
 of Montrose. The argument of the Ceown (here and elsewhere) is, in plain words, this — that, because the 
 
 * The Attorney-General does not here mention the Instrument of Seizin, of the same date as the Precept and Charter, 
 14th December 1488, but which, like them, is adduced in evidence by the Crown. See the 'Minutes of Evidence,' MSS., Nos. 
 70 siiq., and Appendix, infra, pp. 528, 529. 
 
 t The Claimant's argument, as will appear (infra, p. Ixxxv), does not depend in any manner upon the question of the feudal 
 title to the Sheriffdom, here introduced into the discussion. At the same time, the Claimant must dissent from the view propounded 
 by the Lord Advocate — for, apart from the resignation of David Duke of Montrose, as expressed and recorded in the Procuratory 
 of Resignation and Instrument of Resignation, the Charter by James IV. would have been worthless and invalid as a nan habente 
 potestatem. Accordingly, in all the subsequent controversies regarding the Sheriffdom, the Duke's Procuratory of Resignation, 
 1st November 1488, is founded upon by the Gray family as the basis of their right to the office. Vide p. Ixxxiv, infra. 
 
ANALYSIS OF THE ARGUMENT. Ixxxiii 
 
 Duke was cruelly oppressed and injured by the rebellious and successful faction, as proved by the Protest here 
 in question, therefore the Act Rescissory and all that that faction did is to be interpreted in the most rigid 
 manner in favour of the vievps of that faction, and against the Duke and the Claimant ; and that the pre- 
 sumption is, that all that they did was legal and effectual against the Dukedom — although it is admitted that 
 in other parallel and identical cases they acted illegally. But the Claimant draws from these facts, and from 
 others proved by the Protest but overlooked by the Ceown, a very different conclusion. He would represent, 
 in the most emphatic terms, appealing to the document itself which is thus opposed to him — and premising 
 that the extreme eagerness with which this Protest has been accepted and dwelt upon hy the Cbown, and the very 
 great weight assigned to it hy the Committee in the progress of the discussion, as shewing hy the Duke's own 
 testimony the cruelty and injustice exercised against him, entitle the Claimant to the full benefit of the facts 
 recorded by it, as correctly stated amd appreciated — he would represent, he repeats, that it was not a paetial 
 but a COMPLETE restoration to favour — a remission of " omnimodam hujusmodi displioientiam," that is, of 
 the entire displeasure occasioned by the Duke's loyalty to James III., which was effected by the transaction 
 in question — a restoration which had in strict fact and in law been effected, even previously to the dale of the 
 Protest and to the resignation of the Sheriffdom, by the Letters Patent of Remission when executed by the 
 King and placed in the hands of Lord Gray. The Remission was unqualified ; but a condition was subsequently 
 imposed, which the Duke implemented, and thereby fulfilled his share of A conteact, into which he entered, 
 not voluntarily but compulsorily, in order, as he expressly says, to save his life and property, and in the confidence 
 that the King and his advisers would keep faith with him. — It is in no wise improbable, and it is in fact part of 
 the Claimant's own case, that every attempt was made by the Duke's enemies, the rebellious faction, then in 
 possession of the King's person and influencing almost all his actions, to crush the Duke and deprive him of 
 his estates and honours. That they did not succeed to the extent of their endeavours or wishes was the 
 result, not of their forbearance, but of the Duke's legal rights and of a righteous Providence which will not 
 suffer the just to be wholly overridden and cast down. The Claimant will recur to this point hereafter. — 
 S. Case, p. 92 ; Infra, pp. 283, and passim. 
 
 ii. T%e Procuratory and Instrument of Resignation and Donation. 
 
 i. The Claimant freely admits that five documents were necessary to make up Lord Gray's title to the Sheriffdom 
 of Forfarshire — to wit, 1. A Procuratory by the Resigner; 2. A Notarial Instrument recording the Resig- 
 nation by the original owner and the new Donation by the King ; 3. A Charter, issued from the Royal 
 Chancery under the Great Seal, proceeding upon the aforesaid Procuratory and Instrument as upon its proper 
 and exclusive warrants, and giving written expression to the same — as in the case of the patent of a peerage 
 proceeding upon and controlled by a previously subscribed Royal warrant or signature ;, 4. A Precept of 
 Seizin addressed to the local oflScials, commanding that the grantee should be duly infeoffedi in the grant ; and, 
 5. An Instrument recording that the infeoffment had duly taken place. The Claimant did not adduce the 
 three latter documents in this instance, because they are, by Peerage Law,* wholly irrelevant to the question 
 here at issue, viz. the correct and proper designation of David Duke of Montrose — the two former, the 
 Procuratory and Instrument, being the only documents that can by that Law afford any evidence respecting it. 
 
 ii; The proposition of the Ceown is as follows : — That, inasmuch as the Charter to Lord Gray 14th December 
 1488, the third in the above series, states the resignation on which it proceeded to have taken place, not by 
 ' David Duke of Montrose,' but by ' David Earl of Crawford,' not at Hailes but at Perth, not on the 6th 
 November but on the 14th December 1488 ; therefore the Procuratory and Instrument, the first and second in 
 the series, in which the Resigner figures as Duke and which were prepared by his (the Duke's) notary, are 
 not the documents actually used, but were rejected by the Crown, and some other writs were prepared and 
 acted upon in which the resignation was narrated as faking place by ' David Earl of Crawford ' at Perth — 
 which resignation is thereby proved to have actually taken place in the manner, at the place, and under the 
 designation of ' Earl of Crawford,' objected to the Claimant. 
 
 iii. To this proposition the Claimant answers, — 
 
 (1) That, in point of fact, it is not stated in the Charter to Lord Gray, or in the two subsequent 
 
 documents executed on the same day as the Charter, the 14th of December 1488, that the resig- 
 nation by ' David Earl of Crawford ' took place on that day — no day is specified — the statement 
 is quite general.f 
 
 (2) That, while the Procuratory of Resignation 1st November 1488 proceeded undoubtedly from the 
 
 Duke, and was drawn up by his notary (its Royal sanction and authority in this argument being 
 derived, as will be shewn presently, from other and subsequent transactions), the Crown errs 
 grievously in representing that the Instrument of Resignation and Donation 6th November 1488 
 emanated from the Duke, and that it was executed by his notary, (viz. by Henry Barry, who drew 
 up the Protest,) — it is impossible to conceive a more distinct misstatement : — The Duke had no 
 control over it in any way — it emanated peom the Ceown itself, and was deawn dp, at the 
 special request of Loed Gray, by the King's chaplain, almoner, and protonotary, Sir Andrew 
 MacBreh, Chancellor (as already stated) of the Bishopric of Dunblane, a most distinguished public 
 official, whose history then and subsequently the Claimant has traced by a most anxious and laborious 
 inquiry through records and charter-chests innumerable — the result of which, as shewn at large in 
 the S. Case, pp. 95, 96, 97, is, that he was a man high in the confidence, not of David Duke of 
 Montrose, but of the Earl of Bothwel! (more especially) and of the ringleaders of the successl'ul rebel 
 
 * And even by ordinary Scottish practice, as shewn by the testimony of Andrew Stuart, supra, p. Ixxi, n. *. 
 t This may be seen hy reference to the Charter, as printed in the Duke of Montrose's Case, App. p. i ; in the ' Minutes 
 ' of Evidence,' No. 70 ; and in the Appendix to this volume, infra, p. 528. 
 
 M 2 
 
Ixxxiv ANALYSIS OF THE ARGUMENT. 
 
 faction, and that he figures as exemplifying and witnessing (for behoof of the King) other RoyaF 
 transactions of precisely the same nature, and which have never been challenged, in favour of the 
 rebel leaders at the time, — a man therefore incapable of misunderstanding or misrepresenting the 
 facts he was called upon to exemplify, and least of all in favour of and for the benefit of Duke 
 David, whom he would have sought to degrade rather than unduly elevate — a man, finally, whom 
 the King delighted to honour, as may be further concluded from his promotion of him ultimately 
 to the Provostship of the richly endowed Collegiate Church or Abbey of Lincluden. The Instrument 
 therefore to which his name is attached, has every fair and possible presumption of correctness and 
 accuracy— being (as the Claimant must again repeat) the pboduction of the Grown itself, and 
 executed at the bequest (as it bears in gremio), not of the Duhe but OP the Duke's aech-ejiems- 
 LoBD Geat,— and this Instrument, based upon and deriving its validity from the Procuratory of the 
 Duke (eo momme) of the 1st November 1488, was the exclusive wabeant for the "carte regie - 
 " dicto Andree Domino le Gray et heredibus suis desuper conficiende " — that is, for the Charter to 
 Lord Gray, 14th December 1488, thus expressly ordained to be in conformity with the Instrument — 
 and, generally, fob all that followed. 
 
 That, in a case where an instrument referring to a prior instrument states that prior instrument to 
 have been executed at a certain place and by a' certain person, if a doubt is started as to whether that 
 statement is correct or incorrect, the proper and natural way of settling the question is to produce the 
 instrument itself. The Claimant has done this in the present instance. The Instrument of Resig- 
 nation and Donation, 6th November 1488, states the resignation to have been made by, and to 
 have been accepted by the King from, " David Duke of Montrose " at Hailes Castle, — the Charter 
 14th December 1488, referring to the resignation, states it to have been made by "David Earl of 
 " Crawford " at Perth, — a doubt is started ; the Claimant produces the Instrument of Resignation 
 referred to, and it turns out that the reference in the later document, the Charter, is a mistake, — such 
 a mistake as he has proved in the S. Case, pp. 101 sqq., in answer to this very objection, frequently 
 took place in charters with reference to the circumstances attendant on resignation — the only 
 important fact, viz. that resignation had taken place, being always duly recorded. No other and 
 later Procuratory and Instrument of Resignation are produced by the Obo wir, and therefore it cannot 
 be presumed that such exist, or have ever existed. 
 
 Itis admitted, as it cannot be denied, that the whole five instruments, adduced by the Claimant and 
 the Ckowu respectively, come from Lord Gray's Charter-chest. If any later Procuratory and In- 
 strv/ment of Resignation had existed, they would have been preserved d fortiori in that Charter-chest. 
 Andrew Lord Gray was no friend or partisan of Duke David, and had no interest in preserving the 
 memento of the dignity in his person ; he was taking the Sherifiyom under circumstances in which 
 at some distant time (as actually occurred) he might have to defend his title ; and as no grant of the 
 Sheriffdom could have been maintained unless it proceeded on a real and true Resignation by the 
 Duke, the last lawful holder, it was most essential to possess himself, not only of the King's grant but 
 of the Resignation itself, which alone could give validity to that grant — not of the (presumed) rejected 
 Resignation, but of the actual, true, and undoubted Resignation on which his charter proceeded. 
 But of what did he possess himself? Of the Procuratory and the Instrwment in which David Earl 
 of Crawford figures as Duke of Montrose — and of these only — the actual two instruments produced 
 by the Claimant. If these were not the foundation of the grant, he thus introduced a fatal defect 
 into his title. The right to the Sheriffdom was actually litigated between the Earls of Crawford 
 and the Lords Gray for nearly a century afterwards, and during all that time these identical docu- 
 ments were subject of argument, but no doubt was ever started as to their being the real and actual 
 instruments upon which the rights to the Sheriffdom fundamentally depended. It is stated by 
 Patrick Master of Gray, in an autograph Memorial in the Gray charter-chest, dated " Att Huntlei, 
 " this 18 July 1594," that " the D. of Montroise . . delyverit to Andro Lord Cray all the auld wrytis 
 " therof," i.e. of " the Scherifschip," " quhilk we have in our handis," — in another autograph Me- 
 morandum he states that " the Duk of Montroise' Rbnunciatiodn " (otherwise shewn to have 
 been his Procuratory, 1st November 1488) " is sufficient, ane evident autentik; and with it he 
 " delyverit the haill auld evidentis of all who haid the Scherifschip since Robert Stewart," — and in 
 yet another autograph Memorial, " agenst the Instrument proponit twitching (touching) the D. op 
 " Montroise' Revocation," (viz. the Protest 30th October 1488, then founded upon as the basis of 
 the argument of the Crawford family,) he argues on this especial and fundamental plea, that " His " 
 (the Duke's) " Revocatioun is of that quhilhfor the tym he had not done ; for, efter the dait of the 
 " said Instrument, he, be his Prooubatobie, seallit and subscbyvit, eesignit the Soheref- 
 " SOHIP without compulsion in the K. hcmdis in favouris of Androu Lord Gray; ajw^EFTEE this 
 " Resignation, quhilk ves in anno 1488, primo die mensis Novembbis, apud Dundie, efter 
 " quhilk Resignation he never made revocatioun," — which argument is expressed also as follows in an 
 anonymous " Informatioun ffor my Lord Gray concerning the Scheriflfschip of Forfar," also, with 
 the preceding papers, in the Gray charter-chest, as follows,—" Hecause the Resignation maid be 
 " the Duk of Montbois in favouris of Andro Lord Gray, ande autenticlie seilld and subscrivit with 
 " his hand, is posterior to the allegit Revocatioun." "■ 
 
 The Claimant has also proved that the Procuratory and the Instrument of Resignation in ques- 
 tion are recorded at full length in three authentic inventories, the only inventories of the Gray 
 charter-chest ; and that in neither of these three inventories is there any Procuratory or Instrumient of 
 Resignation or Donation inserted, or in any loay alluded to, other than those founded upon by the 
 Claimant. And, further, that these identical instruments, alone, were adduced, together with the 
 
 * See the Supplemental Case, pp. 98", 98*. 
 
ANALYSIS OP THE ARGUMENT. Ixxxv 
 
 subsequent investitures, hy the then Lord Gray in 1747, when claiming compensation for the here- 
 ditary Sheriffdom of Forfarshire, in compliance with the provisions of the Act 20th George II. for 
 abolition of the heritable jurisdictions in Scotland. No other and later Procuratory and Instrument 
 of Resignation (the Claimant must again repeat) are produced by the Crown, after a most anxious 
 and laborious search by the agents of the Duke of Montrose, either from the Oray charter-chest, the 
 proper custody, or elsewhere. And the Crown have themselves stated in evidence, at the bar of the 
 House, through the agents of that search, that " no documents . . touching the resignation and regrant 
 " of the Sheriffdom of Forfarshire" on this occasion, in 1488, "other" than those produced by the 
 Claimant and by the Crown, exist in the Gray repositories.* 
 
 (4) That the Claimant conceives himself therefore warranted in the conclusion that the Procuratory by 
 David Duke of Montrose, and the Instrument of Resignation and Donation 6th November 1488, in 
 which the King accepts the resignation from David Duke of Montrose as Dukb, are the actual 
 Procuratory and Instrument on which the Charter \4th Dec. 1488 and the subsequent Documents 
 proceeded as on their warrants ; and that the reference in the Charter 14th December 1488 to the 
 resignation as having been made by ' David Earl of Crawford ' is a mere misstatement or mistake. 
 
 iv. Having vindicated his evidence and argument thus far, the Claimant has to remark that the objection and argu- 
 ment of the Ceown (as above stated) proceed throughout on a confusion of two things quite distinct and 
 different. The question here is not a question of the feudal title to the Sheriffdom of Forfarshire, in which 
 point of view no doubt the Royal charter is of great, though not of dominant, importance + — the question at 
 issue is not as to the relative importance and weight of the five writs adduced as writs in .the progress of titles 
 to the SherifiFdom — the question is, What effect the title taken by Duke David and given to Duke David in 
 the transactions to which the writs relate axid in the writs themselves has and shall have infixing his proper 
 raink and status at the time ? In that point of view the Procuratory and Instrument of Besignation and 
 Donation, being the only documehts which passed under the eye and with the personal cognisance 
 OP the Sovereign, can alone, by Peerage Law and practice (as enunciated at the beginning of this Sec- 
 tion,t and which the Cbown Aos entirely lost sight of), furnish the evidence required as to the King's 
 PERSONAL recognition OF THE DuKEDOM. The Claimant consequently founds on the Procuratory and 
 Instrument in question, exclusively of the later documents, which are wholly irrelevant in the matter. 
 
 V. It appears accordingly from these documents — the primary and only warrants of the investiture of the Sheriffdom 
 of Forfarshire in favour of Andrew Lord Gray — that the Procu/ratory — duly expressed in Duke David's style 
 as Duke, and corroborated and fortified (" roboratum et munitum") with his seal, bearing his Dncal insignia 
 and legend, which a man in his peculiar position could not be presumed to put forward as he did unless 
 unexceptionably entitled to it — and with his signature — was fully examined and scrutinized, the seal espe- 
 cially, in -the presence of the King ; who then, and thereupon, accepted the Besignation from him as 
 Duke of Montrose, through his (hostile) proxy, Lord Home, and made the regrant, — and this passed, not 
 in the Duke's presence, but is his absence, in the very den of his enemies, who were not likely to shew him 
 favour or connive at any undue designation, and who yet, notwithstanding, do actually themselves, in the 
 Instrument of Resignation drawn up at the request of Lord Oray and by the Notary of the King, give him 
 
 REPEATEDLY THE TITLE OF DuKB, without qualification, WHILE USING HIM AS THEIR TOOL AND INSTRUMENT 
 
 — and hence supply the most impartial and indeed unparalleled evidence of the fact contended for. It cannot 
 be too strongly represented by the Claimant, that it was a compulsory transaction as rega/rds the Duke from 
 first to last ; and he submits that it is utterly inconceivable that Duke David, acting throughout in dread of 
 his life, should have assumed the Ducal title, or that the opposite party, including James IV., should have 
 — not merely tolerated, but repeatedly acknowledged and given it to him, at such a juncture, and, as above 
 observed, without qualification, if the Act Rescissory had told against it. Words disallowing his title (such 
 as "callit," "allegit," or "pretendit," "olim," "quondam," " nuper,'' or "dudum") would infallibly have 
 been adjected to it, if given him at all, had that title been questionable, — according to the universal usage 
 of the time, as the Claimant has already shewn in the case of the Sheriffs of Dunbarton in the Glencairn 
 litigation in 1516-7,§ and has otherwise fully proved by apposite instances in the Supplemental Oase.\\ The 
 Procuratory and Instrument of Resignation and Donation, or Royal regrant, are thus the only deeds in 
 
 THE SERIES WHICH CAN GIVE EVIDENCE AS TO THE RECOGNITION OH NOT OF THE TITLE OF DuKE BY JaMES IV. 
 
 PERSONALLY. Ths King's personal connection, cognisance, cmd interference, on which everything depends, 
 TERMINATED with the Instrument Qth November 1488 — the subsequent deeds, the mere mechanical steps of 
 the conveyance of the Sheriffdom, however important as title-deeds appertaining to the Sheriffdom, 
 were all executed by the Chancery Clerks out of the personal view a/nd without tlm personal interposition or 
 necessary knowledge of the King, who (so far as concerned the Dukedom) was then legally functus, and 
 could not undo what he had already done — and are of not the slightest consequence to the question here at 
 issue. The Duke moreover was in no way a party to or concerned with those subsequent deeds. The very 
 Instrument of Resignation and Donation, itself, in which he is styled Duke, was, to adopt a phrase which has 
 been repeatedly used in this discussion, executed " behind his back," or in his absence — and a fortiori the 
 Charter which proceeded on the Resignation was so also. Lord Gray or his agents necessarily applied for the 
 Charter to the King's Chancery, and the clerks of Chancery, at the instigation of Lord Gray and the successful 
 faction, and " behind the back " alike of the King and the Duke, might have called him " Sir David Lindsay,'' 
 or anything else they chose, for all that either he or the King knew. The Instrument or Resignation 
 executed at Lord Gray's request by the Kinfs own notary in the King's presence, and proceeding on the 
 Duke's Procuratory, calls him Duke.^T 
 
 * ' Minutes of Evidence,' MSS. — Given in the Appendix, infra, p. 524. + Vide note t, p. Ixxxii, supra. 
 
 X Vide supra, p. Ixx. § Vide supra, pp. xl, xli. || See the S. Case, pp. 114, 115. 
 
 IF The Instrument moreover (as already shewn) expressly prescribes that the Charter which proceeded on that instrument 
 as its warrant, the Charter 14th December 1488, should be " desuper conficiende " — that is, executed in conformity with it. If, there- 
 
Ixxxvi ANALYSIS OF THE AEGUMENT, 
 
 vi. It may be added that, the Lobd Chincellob having in the course of the discussion attributed great importance 
 to the fact that the son and heir of Alexander the first Earl of Glencairn describes himself on his seal as 
 ' Robert Lord Kilmaurs,' such description on the seal in question — altlwugh appended merely to private 
 documents, not coming before the Grown — being apparently considered by his Lordship as full and sufficient 
 evidence of the true rank and title of the owner, and that he is thus proved to have been Lord Kilmaurs only 
 and not Earl of Glencairn ;* the like weight crught in justice and a fortiori to he attributed to the seal of David 
 Duke of Montrose as appended to the Procwratory now adduced by the Claimant — the Procuratory, it will be 
 remembered, being addressed directly to Ja/mes IV., while the seal, as appears from the subsequent Instrument, 
 was anxiously scrutinised by the Crown officers in the King's presence ; and on its heing found correct, and 
 then only, the resignation was proceeded with. 
 
 vii. The Claimant concludes therefore that the title of Duke was not " repudiated " on this occasion, but legally 
 recognised by the King, and even by the successful faction who surrounded him ; and that, under the circum- 
 stances—the question being whether the title of Duke, legally conferred upon the grantee in May 1488, had 
 or had not been taken away by an indefinite and general Act of Parliament, to wit, the Act Rescissory — this 
 recognition by the King who is affirmed to have passed that Act of Parliament, is conclusive against the 
 hypothesis (for it is nothing more) that that title had been annulled by the Act in question : — While the 
 Claimant may repeat, what he has already observed, that the Becognition in question is precisely what we are 
 led to expect as the fulfilment on the King's part of the contract into which he had compelled the Duke to 
 enter, — that if that Recognition had been withheld, the King would have been in mala fide and a traitor 
 to his word as a King and a gentleman, which is not to be presumed, — but that such Recognition (as, the 
 Claimant believes, has been sufficiently proved) was not withheld, — and the Duke, on the contrary, was fully 
 recognised as such and restored to full favour by James IV. — S. Case, pp. 88 sqq. ; Infra, pp. 74 sqq. ; 
 124 sqq. ; 177 ; 283 sqq. 
 
 Opinions of the Committee. 
 
 Lord Chancellor. — " If the dignity was annihilated, what would you expect to happen ? I should state that it 
 " is not very improbable that there was a sort of pardon granted to every body, or almost every body, for 
 " having been in arms against the party of the new King. It would have been inconvenient to have acted 
 " upon any other principle. . . The Duke of Montrose made his peace to a certain extent with the successor 
 " of King James III. ; the successor took from him, either by force or by fraud — at all events made him 
 " surrender some of his valuable possessions ; and these were granted away by the successor elsewhere. 
 " Having done that however, having stripped him of a good deal of what he had before, he allowed him to 
 " make his peace," &c. — Infra, p. 316. And again : — 
 
 " Of course James IV. had a number of hungry followers. . . Amongst these was Lord Gray, and it 
 " was arranged between Lord Gray and the Crown that the Sherifl!dora of Forfarshire should be taken away 
 " from the Duke of Montrose and conferred upon Lord Gray. How was that to be accomplished ? Why, 
 " the King agreed that he would give a sort of pardon to the Duke of Montrose as the price for which he was 
 " to surrender the Sheriffdom. It is quite clear that he had no discretion in the matter. He was in the 
 " hands of his enemies, and he was obliged to do it. Therefore what he did was this : — He made, first of all, 
 " a solemn Protest " (the Notarial Instrument 30th October 1488) " that what he was doing he was doing by 
 " compulsion. , . Undoubtedly he came before the notary . . by the title of 'Duke of Montrose,' and he 
 " protested against the arbitrary act that was being forced upon him. Nevertheless he makes the surrender." 
 In the " Procuratory of Resignation " (1st November 1488), " which was . . an instrument made behind the 
 " back of the Crown, he calls himself ' David Dux de Montross.'" — " The next document . . is a. sort o( proces- 
 " verbal," a " memorial," a " memorandum " (the Notarial Instrument of Resignation and Donation, 6th 
 November 1488), "stating what was done on that Procuratory of Resignation" — "an account of what is 
 " alleged to have taken place, drawn up by the notary," . . and " great reliance has been placed upon this, 
 " that this memorial states that Alexander Home, as the procurator of ' David Duke of Montrose,' came and 
 " surrendered [the Sheriffdom] into the hands of the King, — but that again is not an instrument drawn up by 
 " the Crown. And it is not very likely that when the Crown had got the Sheriffdom surrendered, the Crown 
 "would be very particular as to the title by which the party chose to designate himself who made the 
 " surrender. — But when you come to the act that the Crown itself has to do " (the Charter to Lord Gray, 
 14th December 1488), " you " will "observe how very differently the party is designated." — As to the day 
 and place when and where the Resignation took place " there is some inaccuracy somewhere or other, — 
 " whether it was an intended deception at the time, or whether it was an inaccuracy, is a matter we cannot 
 " now solve, but certain it is that the surrender was made somewhere, — according to" the Instrument of 
 Resignation and Donation 6th November 1488 " it appears to have been made at Hailes, the seat of Lord 
 " Bothwell, but according to what followed" (the Charter 14th December 1488), "it would seem to have 
 " been made on a different day and . . at Perth. I do not think it is material where the event really 
 " happened — made it certainly was. — The surrender having been made into the bands of the Crown, what is 
 " the next process? Why, the Crown, reciting what has been done, makes the grant to Lord Gray" (the 
 Charter 14th December 1488), " for whose benefit the surrender is intended ; and what is the representation 
 " of that transaction when the Crown is the person that is to speak?" It describes the office as having 
 
 fore, on this ground alone, that Charter styled Duke David simply ' Earl of Crawford,' it is in so far invalid, as disconform to its 
 ■warrant — while the style, by an inferior though older and familiar style, is not unexampled at the period, as the Claimant has 
 proved in his S. Case, p. 121, with respect to which see also infra, p. xcv. — It may possibly indeed be, that the style of ' Earl of 
 ' Crawford ' was simply copied by the clerk (without any ulterior view or intention) from the original charter of the Sheriffdom to 
 ' David Earl of Crawford,' 19th October, 1466, which the Duke (as above proved) had given up to Lord Gray, and which the Charter 
 14th December 1488 for the most part (mutatis mutandis) follows. The matter is legally, however, of no importance whatever. 
 * Yide infra, p. 211. 
 
ANALYSIS OF THE AKGUMENT. Ixxxvii 
 
 belonged to and been resigned by " David Earl of Crawford." — And again, in the " Precept . . of Seizin," 14th 
 December 1488,* " he is described " in the same terms. " Now . . this appears to ine to illustrate the whole 
 " course which the parties were taking. I dare say that the Duke of Montrose resisted, as far as it was 
 "(Possible to resist, the operation of" the Act Rescissory — " but it was an Act of Parliament. . . When it is 
 " a mere private transaction he chooses to call himself ' Duke of Montrose,' " but " in public transactions he 
 " is only called by his own title . . of ' Earl of Crawford.' "—Infra, pp. 323, 324, 325, 326. 
 
 Lord St. Leonards. — The Duke " was received partially into favour. . . If we want to know the terms upon 
 " which James IV. and the Duke were, we have only to turn to the Protest, which the Duke of Montrose 
 " executed at his own place, . . behind the back of his Sovereign (for which I do not blame him)," by which 
 it appears that "the King, by his Letters Patent, indulged and remitted to him ' his displeasure of every sort 
 " ' in this manner conceived against him.' In short, he was pardoned provided he renounced and resigned 
 " this Sheriffdom in favour of Lord Gray, who was to hold that Pardon in his own possession until the former 
 " Duke had resigned this hereditary oflBce." " He was compelled to give it up — there is no doubt about 
 " that." " What follows upon that? . . A Procuratory of Resignation, which comes out of Lord Gray's 
 " Muniment Room, and which for the purpose I will take to be a genuine instrument,! . . purports to be a 
 " resignation by the Duke, calling himself by that name, of the office to the Crown," . . stating it "to have 
 " been at Hailes " and " in the King's presence.'' But " when the Crown comes to act upon it, . . it 
 " regrants the office to Lord Gray as having been surrendered by the 'Earl of Crawford." Then that is 
 " followed by another document of the Crown, a Precept of Sasine ; and that . . is in precisely the same 
 " terms.'' " So that, as far as this goes, there is nothing which tells with such wonderful effect against the 
 " title as the very attempts which the Duke made to set up his title as Duke, because . . he never did one 
 " single act by which he attempted to set up his title as Duke which was not immediately repelled by the 
 " Crown." In this very case " the Crown called him by his proper title of ' Earl of Crawford,' and in effect 
 " rejected his title as ' Duke of Montrose.' Therefore . . that in itself is a thousand times more strong than 
 " any assertion of his title by the Duke himself, which he could not maintain. . . Surely . . all these acts are 
 " quite conclusive as regards the question." — Infra, pp. 350, 351, 352, 353.J 
 
 Observation. 
 
 It was suggested by Lobb Bkougham in the course of the discussion, that, as " Scottish Acts of Parliament were 
 " not, like those in England, made public immediately upon their passing," the Act Rescissory, 
 !' which is dated on the 17th of October, may not have been made public until the end of the Session, or at 
 " any rate not till after the 6th of November " — in other words, not till after the execution of the Instrument 
 of Resignation and Donation in favour of Lord Gray, — the inference being that this would account for the 
 style of ' Duke ' applied to the Earl of Crawford. But, even on the Noble and Learned Lord's assumption as 
 regards the date of promulgating Scottish statutes, the facts that the Act Rescissory was passed on the last 
 day of the Session, that the transactions at Hailes took place in the presence of Peers of Parliament, and in 
 the presence of and under the auspices and authority of the King himself, and that the Instrument 6th 
 November 1488 was drawn up by the King's notary, not the Duke's, render it impossible but that all parties 
 to the Instrument must have known of the Act Rescissory — while they notwithstanding recognised the title 
 of Duke of Montrose throughout the proceedings. Vide infra, p. 77. 
 
 4. The Claimant having thus estahlished — not merely through the documents whose authenticity 
 and ruling import he has just vindicated, but by other and indisputable proof — the full and public Royal 
 Recognition of David Duke of Montrose in virtue of the Patent 28th May 1488 — the Duke holding both 
 the lands and the title subsequently to the Act Rescissory 17th October 1488, and previously to the 
 Regrant in September 1489 ; he may further plead that the effect of the preceding Recognition by the 
 King would have been, by Scottish law and precedent, and indeed by Continental feudal usage, full 
 restoration and rehabilitation even if the Duke had been actually attainted, and must tell a fortiori when 
 weighed against the mere Act Rescissory. — Case, pp. 12, 13; S. Case, pp. 103 sqq. ; Infra, pp. 76, 78, 125. 
 
 Objections by the Crown. 
 
 ArroBiTEy-GENERAL.- — The doctrine of the feudal writers, founded on by the Claimant, " that it is com- 
 " petent for the King to rehabilitate an individual who, by attainder, has lost a dignity or honour," by simple 
 recognition — proceeding "upon the ground that the King" is "the sole fountain of honour and " possesses 
 " the great prerogative of pardon," " has been seriously shaken, and . . can no longer be maintained as law." 
 It is "laid down . . in a book of the highest authority,'' the " ' Report on the Dignity of a Peer,' " that 
 " the Crown has no power to restore " a dignity forfeited by attainder — " ' it can only be restored by Act of 
 
 * As also in the Instrument of Seizin, 14th December 1488, which followed on the Precept — adduced in evidence by the 
 Cbown, although omitted in the address of the Attorney-General to the Committee— as remarked supra, p. Ixxxii. 
 
 t Lord St. Leonards having thrown a doubt upon the genuineness of the Procuratory of Resignation adduced by the 
 Claimant — after the Claimant had so fully vindicated that genuineness that the Duke of Montrose himself and the Crown have 
 acknowledged it— the Claimant would refer to his note upon this passage in the Speech of the Noble and Learned Lord, infra, p. 351. 
 
 % The Claimant would refer to his notes upon the Speeches of the Lord Chancellor and Lord St. Leonards, infra, pp. 
 323 sqq., 350 sqq. 
 
Ixxxviii ANALYSIS OF THE AEGUMENT. 
 
 " ' Parliament.' " But " even granting the doctrine . . as applicable to . . attainder, it would not apply to 
 " the present case. . . Where an Act of Parliament has annihilated a dignity, it is not competent to the 
 " Sovereign to restore it . . ea ab initio."— Infra, p. 194, 195. 
 
 Eeply. 
 
 The question whether or not the King had the power to rehabilitate against an Act of Parliament is a simple ques- 
 tim of fad — not of English hut of Scottish law and usage — not of law as existing in th£ nineteenth hit as 
 prevalent and practically accepted and acted upon in the fifteenth amd succeeding centwies ; * and the Claimant 
 has given contemporary and other proofs (as in the case of Ross of Montgrenan, for example) in the Case 
 and S. Case, which have not been questioned, of the rehabilitation of persons distinctly forfeited by Act of 
 Parliament through the simple recognition of the Scottish Sovereign.f The tendency of the present day 
 may be to exalt the omnipotence of Parliament and depress the Royal authority— but such was not the case 
 in 1488, the period the Claimant has exclusively to deal with ; and to reason from existing to past usage, to 
 quote authorities as to the present state of the law in confutation of contempora/ry authorities as to the past state 
 of the law, is scarcely logical or admissible. The Claimant's argument is an a fortivri one — it not being 
 pretended by the Crown that the Act Rescissory has the effect of an Act of Attainder. — 8. Case, pp. 104 sqq. 
 
 Observation. 
 
 Neither the Lord Chancellor nor Lord St. Leonards make any observation on this argument in their respective 
 Speeches. A suggestion and doubt expressed by the Lord Chancellor during the discussion may be seen 
 infra, p. 125. And a subsequent conversation, on the subject of the Attainders and Forfeitures affecting the 
 Earldom of Perth, with inferences with regard to the Dukedom of Montrose, may be found infra, p. 195, for 
 his observations on which the Claimant would refer to the Appendix to the Address, supra, pp. xlviii sqq. 
 
 5. Moreover, the Remission under the Privy Seal, to the delivery of which the Duke had thus 
 entitled himself by the Resignation of the Sheriffdom, would have been sufficient of itself (even had his 
 loyalty to James III. been a crime, which it certainly was not) to reinstate him in toto against an Act of 
 Attainder, and a fortiori against the Act Rescissory, had it applied to him. Under the preceding circum- 
 stances of complete Recognition and Remission all further penal proceedings or attempts to deprive him 
 of his titles and estates were legally barred and foreclosed. And that his Ducal status was considered 
 good and unexceptionable in law subsequently to the transactions above related and commented upon — 
 that he bore the title unchallenged, and that it was given him by others on the most solemn religious 
 occasions in connection with sacred Catholic rites — is proved by an 
 
 Indenture between " a rycht noble and mychtti Prince, David DuK OF Montros and Erie of 
 " Craufurde," " and his humile bedmen and oratouris, Frer Jhon Yhare, Minister 
 " Provincial of the Freris Minoris " or Franciscans " of Scotland," — by which the Duke 
 founds a daily mass for ever in the Abbey-Church of St. Francis at Dundee, to "be 
 " opynly callit the Dukis mess of Montrose," and other services, for his own soul, his wife's, 
 
 * " Men's rights ought to he determined, not alone hy the laws standing when the determination is, but by the laws that were standing 
 " when the rights were acquired, or the deeds done, although thereafter those laws were abrogated." — Stair's Institutions, B. IV. Tit. i. § 61. 
 
 t The feudal rule is, " Princeps . . si feudum concesserit sciens incapaci, videtur cum ejus incapacitate dispensare." See 
 the Case, p. 12, and S. Case, pp. 103, 105. The Claimant may repeat here from the 3. Case, as a familiar example, the following decision 
 of the Supreme Civil Court, 1st February 1612, reported by Lord Haddington, a well-known antiquary and most distinguished judge, 
 and Lord President of that identical Court in the reign of James I. of Great Britain : — 
 
 " Damned" (condemned) " posteritie or forfeited person cannot be reahled" (rehabilitated) "but be the Kingis perfyt knowlege. 
 
 " The umquhile " (deceased) " Laird of Freeland having left ane legacie of ane thousand merkis to the bairnis of Alexander 
 " Euthven his brother," who had been attainted and forfeited by Parliament, along with his brother John Earl of Gowrie, on the 
 15th November 1600 (Acts of Parliament, vol. iv. p. 199), "the relictand executrice of Frieland excepted aganis the bairnis persute" 
 (against the action before the Court for payment to them of the legacy), " that, their father being forfalted, his posteritie declared 
 " be Parlement disabled, they could have no action. It was replyed, that the King had gevin thame ane tutoor, acknowledging 
 " thairin that thair father be his forfaltour was unhabile to governe thair persones or gudes,"— from which his knowledge of the 
 forfeiture was inferred or collected. " The Lords, considering that the tutorle was passat under the caschet "—or warrant of 
 Exchequer, " and that those who wer desabled be Parlement could not be rehabled bot be the King of his certain knowledge refused 
 " to grant any proces at thare instance, primo Februar, 1612." — S. Case, p. 106. 
 
 It is obvious that the only point here falling to be discussed, and to which the Court addressed themselves, was whether the 
 King, who nominally granted the tutory, actually knew that the children in question were the issue of an attainted parent, and hence, 
 by the old law of Scotland, implicated and dishabilitated by his crime ; for, if so, such Eoyal Ftecognition of them, precisely according 
 to the law premised, removed the dishability and operated tacite as a restoration in their favour. But, as it transpired that the 
 tutory grant was mt, as behoved, under the sign manual, or with the King's knowledge, but only under the caschet, or mere warrant 
 of Exchequer, no such important consequence could obtain as otherwise would have been the case; and the children remained dis- 
 habilitated and incapable of taking, as before. The distinction here recognised is precisely that by which a patent of honour, to 
 make it effectual, must be under the sign manual, and not under the mere " caschet"— the King being the sole fountain of honour- 
 while mere lands, on the other hand, can go by an Exchequer charter under the " caschet." It is further proved, and implied too^ 
 by this judgment of Court in foro contradictorio, that the King alone, without Parliament, (who again are not in the least alluded to,) 
 could obviate and annul the penalties of forfeiture. 
 
ANALYSIS OF THE ARGUMENT. 
 
 Ixxxix 
 
 and for that of his late monarch, James III., " of hall (holy) memor,"— dated the 2nd August 
 1489; "the quhilk day," it is added, "this said mychtti Prince and Lady Margret, 
 " Princes, his spouse, was rasavit in the Provincial Cheptour to the confraternite of the 
 " ordour of Sanct Francis, and to the suffrage therof."— This is still, it will be remarked, 
 anterior to the 18th September 1489.*— Case, p. 14 ; S. Case, p. 115 ; Infra, pp. 126, 127. 
 
 Objections by the Crown. 
 
 i. The Remission. 
 
 Attoenet-Genebal. — A denial of the power of the Scottish King to rehabilitate by Remission against 
 forfeiture is involved in the preceding Objection to the power of the King to restore by simple 
 Recognition. See especially the last sentence of that Objection. 
 
 ii. The Indenture. 
 
 Attoenbt-Gbnebal. — " The monks undoubtedly style him Duke," — but this is " clearly a private document, 
 " which never was known in public, and never came to the knowledge of the King." That the monks, 
 " the objects of the . . Earl's bounty, . . should be perfectly willing to confer upon him that title of 
 " Dukedom does not . . affect the question." — Infra, p. 109. 
 
 LoED Advocate. — The Indenture " is the strongest circumstance, for it shews this, that the Duke was 
 " anxious in some way to perpetuate the recollection and memory of his title, and . . he established 
 " what was to be called the ' Duke's mass,' to bear his name in perpetuity." " The Friars accord- 
 " ingly take the endowment, and are willing to fulfil the conditions. But " that is no " recognition by 
 " any authority of the title."— Zw/m, p. 233. 
 
 Replies. 
 i. The Remission. 
 
 As regards the effect of Royal Remission against attainder and forfeiture, the Claimant has cited various 
 illustrative cases — as those of Lord Balmerinoch in 1609 ; of James Marquess of Montrose in 1660 ; 
 of Walter Earl of Tarras in 1686 and 1687 ; of MacDonald of Glengarry, by William and Mary, in 1690, 
 &c., in the Case, p. 13, and Suppkmental Case, pp. 108, 109. In the case of Lord Tarras, for example, 
 the King (alone) restored him to his peerage, as he had held it previously, by a writ under the Great 
 Sea], 28th June 1687, recorded in the Great Seal Register, — the attainder, both by the Justiciary 
 Court and under the authority of the Act of Parliament 16th August 1685, being thus completely 
 rescinded by the sole will and prerogative of the Sovereign. Even Sir James Stewart, the Whig 
 Advocate under Queen Anne, inculcates that " the King, granting a remission after forfaulture, restores 
 " the person forfaulted entirely." Answers to Dirletoun, p. 127. So too Sir James Balfour, President 
 of the Supreme Civil Court in 1546, the oldest Scottish institutional writer, states that the whole property 
 of one "convict of tresoun pertenis to the King allanerlie (alone), without recovery of ony air, except 
 " Je the King's special grace tlie said tratom's air he restorit." Practicks, p. 506. Or, as in the 
 Leges Malcolmi, cap. 12, § 1, 2, (enacted in the twelfth century,) "Statutura est de proditoribus et 
 " falsis traditoribus contra Regem, quod de illis Rex habebit omnia quae illi habent, tarn terram quam bona, 
 " sine recuperatione alicujus heredis, — 2. Nisi specialis gratia Regis intervenerit." Upon which Skene, 
 in his edition of the Acts and the Regiam Majestatem, &c., 1597, p. 56, here referred to, observes 
 " Damnato laesae majestatis Rex potest crimen remittere, si ipsi ita videatur. Nam exuli, bannito, vel 
 " damnato ad mortem, solus Princeps, et non alius, crimen remittere potest." — Case, p. 13, n.* ; 8. Case, 
 pp. 105, 108, 109. The power of remission possessed and exercised by the Scottish Kings before the 
 Union is in fact notorious, and will not admit of dispute. 
 
 ii. TTie Indenture. 
 
 The Indenture, from its very nature, might not come under the notice of the King — to whose knowledge 
 importance is thus rightly (however inconsistently) attributed by the Attokney-Geneka l. But the 
 recognition of the Franciscan Order in the Indenture implies (under the circumstances) that of the whole 
 Roman Catholic Church and of the Pope himself — the successful faction being at the moment when it 
 passed under sentence of excommunication (as will appear) by Innocent VIIL, for their rebellion 
 against James III. and against the principles of loyalty and duty which the Duke upheld and represented. 
 —S. Case, p. 116. 
 
 Opinions of the Committee. 
 
 i. The Remission. 
 
 It is admitted by the Loed Chancelloe that the Duke received "a sort of pardon " from James IV. ; 
 but the present argument, like the preceding, is quite ignored and overlooked in the Speeches of the 
 Noble and Learned Lord and of Loed St. Lbonaeds. 
 
 * For this Indenture see the ' Minutes of Evidence,' p. 90, and the Appendix, infra, p. 525. 
 
XC ANALYSIS OF THE AEGUMENT. 
 
 ii. The Indenture. 
 LoHD Chancbllok. — This again was "behind, the back of the Crown." And being "just before the 
 " re-creation, . . it might well be that he had been told that he should be created Duke of Montrose 
 " anew, and . . therefore might have done it with reference to what he was about to be, and not to what 
 " he then was." * — Infra, p. 321. 
 
 Observation. 
 
 The Claimant would refer to his 8. Case (pp. 103 sqq.) for full and elaborate exposition and proof of the feudal 
 and Scottish rule and practice of rehabilitation by the Sovereign, whether through simple recognition 
 or special remission — on which he dwelt comparatively slightly before the Committee, conceiving him- 
 self independent of it, and knowing the opposition and prejudice so unpalatable a doctrine would excite 
 in the present century. 
 
 6. General Conclusion, thus far : — Duke David has thus been proved to have been fully 
 recognised by the Sovereign, which would have sufficed of itself fully to restore him by the Feudal Law, 
 even had the Act Rescissory taken eflPect upon him — which, however, it has been proved not to have done. 
 The retention of Kinclevin under the Patent 18th May 1488, and the recognition of his Ducal style by 
 James IV., are broad, palpable, intelligible facts, fraught with inevitable conclusions in favour of the 
 Claimant, and affording the fairest contemporanea expositio as to the merits of the case, — although, in a 
 matter of legal right, at a time of such confessed violence, injustice, and oppression by a rebellious and 
 successful faction, and especially at so remote a period, such contemporanea expositio could scarcely have 
 been expected. 
 
 The case of Duke David and the Claimant is far stronger here than that of the Dukedom of 
 Norfolk, so parallel in other respects, — for, after the English Act Rescissory, Thomas and John Mow- 
 bray never took the Ducal title, obviously through prudential motives, till 1425, using meanwhile their 
 inferior titles of Earl Marshal and Lord Mowbray, — whereas Duke David publicly asserted his title in 
 the face of the Act Rescissory, the usurping faction, and their tool, the young King ; and was legally 
 recognised as Duke, and held Kinclevin, as premised. 
 
 Nor are there any specialties in the case of the Earldom of Glencairn, of exemption ex terminis 
 from the operation of the Act Rescissory and of formal Royal recognition subsequently thereto, such as 
 have now been shewn (together with the retention of the lands granted along with the dignity) to have 
 obtained in the case of the Dukedom of Montrose. If therefore the patent of the Earldom of Glencairn, 
 28th May 1488, stood firm and valid, unaffected by the Act Rescissory, under such circumstances, (as 
 has been fully proved,) much more a fortiori must the original patent of the Dukedom of Montrose, 
 18th May 1488, stand firm, backed as it is by the specialties in question. And these two grants, as is 
 acknowledged on all hands, were the only patents of honour conferred by James III. during the period 
 proscribed by the Act. 
 
 Lastly, it is in keeping with the Recognition and Remission, and with the Contract proved to have 
 been entered into between the King and the Duke, that James IV. in the preamble to the Regrant 
 18th September 1489 passes the highest eulogium upon the loyalty of ' David Earl of Crawford ' while 
 creating him " de novo " Duke of Montrose ; and on which the Claimant has already founded as an act 
 by which James IV. himself put a construction on the Act Rescissory, and declared that the original grant 
 of the Dukedom was not and could not be " prejudicial " to him. — S. Case, p. 117 ; Infra, passim. 
 
 The Claimant will now enumerate and reply to the 
 
 II. Instances relied on by the Crown, to shew that the Crown and the public func- 
 tionaries CONSIDERED THE DuKE TO BE SIMPLY 'EahL OF CraWFORD' DURING THE 
 INTERVAL BETWEEN THE AcT RESCISSORY AND THE ReGRANT, AND HELD THAT THE 
 
 Act Rescissory had annihilated the Patent 18th May 1488, — but in which 
 
 INSTANCES THE CLAIMANT MAINTAINS THAT THE NOMENCLATURE ' EaRL OF CrAWFORD ' 
 IS EITHER ERRONEOUS OR INNOCUOUS. 
 
 1. Instances of David Duke of Montrose being styled ' Earl of Crawford ' during the said interval. 
 
 * With reference to this suggestion, see the note on the passage in the Report of the Speech, infra, p. 321 ; and the Address to 
 Her Majesty, supra, p. xxii. 
 
ANALYSIS OF THE ARGUMENT. XCi 
 
 i. By the Attorney-General : — " The late Duke of Montrose . . was present, and is styled 
 " the ' Earl of Crawford ' " in " the very Parliament which " met in October 1488 and 
 " passed the Act Rescissory." " He is appointed upon a Commission of the greatest 
 " importance," to whom the " functions of Parliament" are committed during the recess.* 
 The Claimant has " suggested that he was not himself actually present," — this at best is 
 " matter of very secondary consideration," the important point being " the style applied to 
 " him by the Parliament which had just passed the Act Rescissory." — Infra, p. 187. 
 
 By the Lord Advocate :— " The Earl of Crawford . . sat in the Parliament which 
 " passed this Rescissory Act. . . That he was present in that Parliament . . there can be no 
 " doubt, because he was appointed one of the council of the King, with this proviso, that if any 
 " of the council, who were not very numerous, should leave Edinbiu-gh, they should appoint 
 " some party to act in his place ; therefore it appears to be conclusively made out upon this 
 " question of evidence (for it is entirely a question of evidence), that in that Parliament, 
 " upon the very day of the rescinding of the title, the party who should have sat in Pariia- 
 " ment as ' Duke of Montrose ' if he intended to assert his right to that title, appears 
 " and acquiesces in being denominated by his old title of ' Earl of Crawford.' " 
 
 The Lord Advocate does " not know . . a stronger or clearer instance of the position in 
 " which he stood — that the Proclamation had set aside this honour " — than " the unquestion- 
 " able fact" — that "he appears in Parliament, . . the very Parliament that passed the Act, 
 " under his former designation of the ' Earl of Crawford.' " " It is most important to 
 " observe that, while his title is denied him, he is not in the position of a party forfeited or 
 " attainted in any way, — quite the contrary ; but the title is not allowed him — nor does he 
 " seem to assert it."— /n/m, pp. 223, 228, 231, 233. 
 
 ii. By the Attorney-General : — " In a subsequent Parliament, on the 26th June " 
 [4th July] " 1489," the late Duke was appointed a member of a Commission to " be of 
 " council to his Highness till the next Parliament," in the list of which he is entered as 
 ' Earl of Crawford.' This is of " great importance, . . because . . from the moment of 
 " the Regrant Parliament no longer dealt with" him "as 'Earl of Crawford' but . . as 
 " ' Duke of Montrose.' ''—Infra, p. 187. 
 
 By the Lord Advocate. — " On the 4th of July 1489 the ' Earl of Crawford ' is again 
 " named one of the council to the King." — Infra, p. 233.t 
 
 Observation by the Attorney-General. 
 
 The preceding "are the only two Parliamentary entries which occur prior to the Kegrant." In "other 
 " entries," however, in the records "of great official bodies," " not perhaps quite so important as the" 
 preceding, but worthy of very great attention and consideration, he is similarly (as will now be shewp) 
 styled ' Earl of Crawford.' — Infra, p. 187. 
 
 iii. By the Attorney-General : — Earl David having " obtained from the late King a grant 
 " of the Lordships of Brechin and Navar," and those Lordships being " annexed property 
 " of the Crown," and their alienation consequently illegal, "these Lordships . . were 
 " given in appanage by Parliament to the King's " (James IV.'s) " brother, the young 
 " Duke of Ross ; but inasmuch as the Earl of Crawford had got possession of them and 
 " . . refused to give up that possession, it was necessary to have recourse to judicial pro- 
 " ceedings, . . and accordingly he was cited before the Lords Auditors, and a process is 
 " there carried on against him, ending in a Decree," 21st January 1488-9, "that he shall 
 " restore the lands. Now throughout the whole of these proceedings, from the commence- 
 " ment to the close, before the Judicial Committee of Parliament, he is invariably styled, 
 " not the ' Duke of Montrose ' but the ' Earl of Crawford.' " Infra, p. 188. And conf. the 
 Lord Advocate's Speech, infra, p. 233.J 
 
 iv. By the Attorney-General : — In a process before the Lords of Council and Session, 31st 
 January and 3rd February 1488-9, regarding the occupation of the lands of Dunbog, which 
 
 * The Commission alluded to is printed (from the Acts of Parliament, vol. ii. p. 211) in the Appendix, infra, p. 526. 
 t This second Commission is printed (from the Acts, vol. ii. p. 215) in the Appendix, infra, p. 530. 
 % See for this Decree the Appendix, infra, p. 529. 
 
 N 2 
 
xcu ANALYSIS OF THE ARGUMENT. 
 
 also was given against him, he is " throughout those proceedings " styled ' David Earl 
 ' of Crawford,' and never ' Duke of Montrose.'— 7w/ra, p. 187 ; and Lord Advocate's 
 Speech, infra, p. 233. * 
 V. By the Attorney-General : — In the accounts of the Customer of Aberdeen in the 
 Exchequer Rolls, 11th July 1489, there is a payment to 'David Earl of Crawford,' on 
 account of an hereditary annual rent of 160 marks to which he was entitled from the 
 customs of that burgh ; but in 1490 he is styled ' Duke of Montrose and Earl of Craw- 
 ' ford.' — Infra, p. 188 ; and Lord Advocate's Speech, infra, p. 233.t 
 
 vi. Br THE Attorney-General : — In the accounts of the Customer of Dundee, 6th July 1488, 
 there is an entry of the payment of another hereditary annual rent of 100 marks to ' David 
 ' Earl of Crawford.'— /w/ra, p. 188 ; and Lord Advocate's Speech, infra, p. 233.| 
 
 vii. By the Lord Advocate : — So too, in the accounts of the Customer of Montrose, 21st 
 August 1488, the payment of a similar hereditary annual rent of 40 marks to ' David Earl 
 ' of Crawford.' — Infra, p. 233. § 
 
 viii. By the Attorney-General. — So too in the Treasurer's Accounts, of July 1488, a pay- 
 ment is made to a herald despatched with a letter of the King " to summon the Earle of 
 " Crawford," &c. " to their compts in the Chequer in Stirling." — Infra, p. 189. || 
 
 ix. By the Attorney-General and Lord Advocate : — Besides these are to be reckoned 
 under this head the description of the Duke as ' David Earl of Crawford ' in the Con- 
 firmation of the Duke's charter to Margaret Carmichael ; and in the charter of the 
 Sheriffdom of Forfarshire to Lord Gray, 14th December 1488, and in the posterior 
 documents ; and the similar description of him in the Regrant with advice of Parliament 
 ISth September 1489, and the ' Litera ' 19th September 1489, both presently to be men- 
 tioned.— 7w/ra, pp. 191, 232 ; 193, 232 ; 199, 234. 
 
 X. By the Attorney-General : — Whereas " there is an ingenious hypothesis thrown out 
 " that " the Duke during the interval between the two creations, and the Duke's " heirs . . 
 " after his death, . . were actuated in not assuming the title by a proud feeling which 
 " has influenced certain " families in Spain and France " who were in possession of an 
 " inferior but more ancient title, to adhere to it, although . . a title of a higher dignity " had 
 been " engrafted and superadded upon " it,1I " we do not know the precise circumstances 
 " of these cases," and grandeeship or peculiar privileges may have been " attached " to the 
 inferior titles so as to account for the preference given to them. " But . . these cases do 
 " not apply here," for the evidence proves that the Duke of Montrose was most " jealous 
 " of his title, most desirous to retain it " and to " assume it, and he did assume it when 
 " he could." These instances " are strongly against " the Claimant, because in " his 
 " private instrument " (the Protest) he styles himself Duke, and again " in instruments 
 " which he executes in reference to transactions with the Crown," — '' this shews he was not 
 " neglectful of the title, and . . not desirous to postpone the higher title of Duke to the 
 " inferior title of Earl."— Jw/m, pp. 203, 204. 
 
 By the Lord Advocate : — The Claimant suggests that " taking a lower title does 
 " not imply an abandonment of the higher ;" he has adduced " a few examples — a very few 
 " — of what" he says " are instances of this,"** — the Lord Advocate " may examine 
 " one of them before concluding ; but . . one thing is unquestionable, and that is, that the 
 " Earl of Crawford at any rate did not take a lower title from choice," and the Claimant 
 cannot " dispute " it. " If there be anything clear, . . it is . . that, while the King 
 " and Parliament refused . . to receive him as Duke, and refused to allow his estates to 
 " remain with him, the Duke clung most tenaciously to the title ; and in every document " 
 the Claimant has "put in, with the view of proving a very desperate and hopeless 
 " statement, that the Duke continued to enjoy the honour," he has " established that it 
 " was not from choice, but necessity " — " that it was against his will, and only in conse- 
 
 * Printed in the Appendix, infra, p. 529. f See the Appendix, infra, p. 189. X See the Appendix, infra, p. 526. 
 
 § See the Appendix, infra, p. 526. || See the Appendix, infra, p. 526. 
 
 «J Seethe Case, pp. 30, 67 ; 8. Case, pp. 121, 122; 215, 216; infra, pp. 101, 102; 294. 
 
 ** See the Case and S. Case, he. ait., ' Minutes of Evidence,' pp. 120, 122, and the Appendix, infra, pp. 515, 516 518. 
 
ANALYSIS OF THE ARGUMENT. xciu 
 
 " quence of compulsion," " that he adopted the title of ' Earl of Crawford ' in public 
 " proceedings."— /w/to, pp. 231, 233.— And lastly, 
 xi. By the Attorney-General : — Whereas the Claimant has adduced evidence to prove 
 that David Duke of Montrose was occasionally styled ' Earl of Crawford,' simply, eveu 
 after the Regrant in September 1489, as by statements in the Exchequer Rolls that pay- 
 ments had been made " Comiti Craufurdie " — to the ' Earl of Crawford ' — on the 5th July 
 1491 and 29th July 1492 ;* these instances are " of the most trifling and unimportant 
 " character," — the grants having been originally to the ' Earl of Crawford,' " nothing 
 " would be more likely than that the Customer would go on making the entry in the 
 " manner in which he had been accustomed to do it before." — Infra, pp. 200, 201. 
 xii. The result is, as laid down 
 
 By the Attorney-General : — " That . . while, on the one hand, the instances 
 " of the assumption of the title by the Duke of Montrose " are either in " private instru- 
 " ments of which the Crown had no knowledge, or have been, practically speaking, 
 " repudiated by the Crown ; on the other hand, the Parliament, the Lords of the Privy 
 " Council, and, . . assuming this to amount to a repudiation on the part of the Crown, the 
 " Crown itself invariably, . . between the passing of the Act Rescissory and the period 
 " of the Regrant, refused him the title of Duke, and when they spoke of him or treated 
 " with him, treated him as ' Earl of Crawford.' " — Infra, p. 195 : — And 
 
 By the Lord Advocate : — That while " the Earl of Crawford had no desire to 
 " assume his lower title if he could help it, and he did assume the higher title," " and 
 " tried to assert it whenever he could behind the back of the Crown," " on every occasion 
 " where he could do it without challenge ; he never did it on any occasion where he came 
 " into contact with the Crown or Parliament, — on the contrary, whenever that occurred, the 
 " title was refused."— /H/ra, p. 232, 237. 
 
 Replies. 
 
 i. First, and as a general answer to all the cases objected by the Crown, as above stated : — Afteb what 
 HAS BEEN LEGALLY PROVED AND ESTABLISHED — (the Contract between the King and the Duke — the 
 fulfilment of the conditions of the Contract on the Duke's part — the Royal Recognition of the Duke subse- 
 quently to the Act Rescissory — the Royal Remission — the legal nullity of the Act itself, especially as 
 proved in the case oF the Earldom of Glencairn, where it is res judicata — -and the law affecting the Act 
 and this present case as laid down in the judgment upon the Norfolk Case and elsewhere, establishing the 
 insufficiency of a mere General Act to annul a grant of honours, and the necessity of Special Applica- 
 tion to make even a valid General penal Act operative against such a grant) — after all this, as 
 
 ABOVE PROVED, THE AcT RESCISSORY CAITNOT BE CONSIDERED AS HAVING THE SLIGHTEST WEIGHT, 
 
 AND MD3T BE ALTOGETHER DISMISSED FROM THE ARGUMENT — whatever dcsiro may be felt to resort 
 to it as a cause or element in explanation of any circumstance which may appear at first sight difficult or 
 mysterious. This mvst he remembered and kept in view throughout the remainder of this discussion. 
 And, so dismissed, the Claimant submits that he must, de piano, prevail, so far as the present subsistence 
 and validity of the Patent are concerned, on the simple and legal ground that the Duke and his represen- 
 tatives could only he denuded hy forfeiture or resignation, neither of which (it is admitted on all hands) 
 ever took place. Every minor incident, evert conceivable objection, evert supposed 
 
 DIimCDLTT, MUST TIELD TO THIS PRIOR, PARAMOUNT, AND RULING CONSIDERATION. — Case, p. 24 J 
 
 S. Case, p. 120 ; Infra, pp. 101, 104, 179 ; 294. 
 
 i. ii. Supposed Sittings in Pa/rliament. — The name of the ' Earl of Crawford ' undoubtedly appears in the 
 two Commissions adduced by the Crown — Commissions appointed on the last day of the respective 
 Sessions of October 1488 and July 1489, and consisting in each ease of nearly the whole body of 
 Parliament. But the ' Earl of Crawford ' is not enumerated in the list of peers who attended the 
 Farliarfient of October 1488, and which is prefixed to the proceedings in the Rolls of Parliament.t 
 He loas therefore not present at the commencemen t (at least) of that Session. X — Again , after the nomination 
 of the Council appointed on the 4th July in the succeeding year, 1489, and the mention of the names 
 of the Earl of Crawford and the Earl of Huntley, it is immediately added " quhen thai cum " — 
 proving that the Duke did not attend that Parliament, at least ; and it is not likely therefore that he 
 attended the convention of the enemies of the late King and of himself in the preceding and disastrous 
 year 1488. § — The provision cited by the Attobsey-Genebal from the Commission ] 7th October 1488 is 
 
 » See the Case, p. 29, n. f ; 5". Case, p. 120 ; ' Minutes of Evidence,' pp. 129, 130 ; and Appendix, infra, pp. 518, 519. 
 
 t For this list see the ' Minutes of Evidence,' p. 124, and the Appendix, infra, p. 526, note *. 
 
 X It is remarkable too that the names of the Earls of Huntley, Athol, and Buchan were not in the list of peers as originally 
 made up at the commencement of the Session, but are inserted in the list by interlineation, evidently as they arrived and took their 
 seats, subsequently to the commencement of the proceedings. But (as above stated) the name of the ' Earl of Crawford ' is not 
 there at all,— from whence the Claimant infers that he never took his seat during that Session. 
 
 § In illustration of this the Claimant may cite the words of the learned Andrew Stuart :— " The first Parliament of .Tames IV., 
 
XCIV ANALYSIS OF THE ARGUMENT. 
 
 not very clearly expressed— but, after all, the Claimant agrees with the Learned Gentleman that it is not 
 very important whether the Duke was present or not— there being no question that he is called in the 
 Parliamentary Commission ' Earl of Crawford.' Even, however, if he did attend and was present, 
 there can be little doubt that he asserted his rights then, as he consistently did on every occasion which 
 presented itself subsequently to the death of James III. But it by no means follows that the party in 
 whose hands the control of the Rolls of Parliament lay would recognise those rights or insert his name 
 as Duke of Montrose. And the denial of those rights could in no way legally prejudice him, or his 
 heirs. While even " acquiescence " on his part (however impossible to presume such a thing) could not 
 give legal validity to an Act inherently deficient in such validity, or supply the defect of non-application, 
 if valid, against the Duke, and still less as against his heirs. The probability, indeed, is, to the 
 Claimant's apprehension, that the placing the Duke's name on the Commission, both in October 1488 
 and in July 1489, was a mere form, for the purpose of appropriating to the actions of the rebel 
 leaders the credit of his name, but without his presence, knowledge, or sanction. And there is no 
 evidence that he ever acted under either Commission. — S. Case, p. 10; Infra, pp. 133, 134, 294. 
 iii. " The whole of the proceedings " during which, according to the Ckown, the Duke is styled ' Earl of 
 ' Crawford' in the process for recovery of Brechin and Navar before the Lords Auditors, consist of me 
 paragraph recording the judgment, on the 21st January 1488-9. Those Lordships were granted to the 
 Duke of Ross— not by the Parliament of October 1488, as stated by the Attorkby-General, but by 
 James IIL, by charter 23rd January 1480-1, and confirmed by Parliament 12th April 1481 ; so that 
 the suit probably began in the reign of James III. and against tlie ' Earl of Crawford,' before the 
 creation of the Dukedom, in which case the termination might naturally be recorded in the same style of 
 designation.— & Case, pp. 10, II. 
 
 iv. All that is preserved of the lawsuit respecting the lands of Dunbog, are two brief paragraphs in the 
 ' Acta Dominorum Concilii,' under date the 31st January and 3rd February 1488-9 — which equally 
 appear to be the mere termination of a long-standing lawsuit. — S. Case, p. U. 
 
 v. An answer to the notice in the Exchequer Rolls 11th July 1489 may be given in the words of a Noble 
 and Learned Lord (Lord St. Leonards), who, to the objection that the deputy of the Duke as Sheriff 
 of Forfarshire styles him ' Earl of Crawford ' in a precept dated " a week or two after the date of the 
 " patent," observed, that the authority " under which he acted " was " probably " dated " before the 
 " Dukedom was granted." — Infra, p. 181. The family revenues from the Customs of Aberdeen, 
 Dundee, Montrose, and other burghs, were undoubtedly paid to the Duke in virtue of grants to the 
 earlier Earls and Barons of Crawford. — Crawford Case, p. 42. And the Attorney-General's argument 
 against the instances adduced by the Claimant, in which the Duke of Montrose is styled ' Earl of 
 ' Crawford,' simply, subsequently to the Regrant, equally applies to the notice here in question. 
 
 vi. vii. viii. In these three instances the Duke is styled ' Earl of Crawford ' previously to the Act Rescissory, 
 and, according to the Crown, in consequence of the Proclamation at Scone, which they assume to have 
 deprived him and the other grantees of James III. of the estates and honours granted by him since the 
 2nd February. Such designation was manifestly and confessedly illegal. — Supra, p. ix. 
 
 ix. X.* The objection of the Crown to the Claimant's argument from the varying designation of Scottish 
 peers proceeds on a total misconception of that argument, and represents the Claimant as contending that 
 the Duke never adopted the title of Duke when in actual contact with the Crown, or in public proceedings, 
 but was actually "desirous" to take, and did take of his own accord and " by choice," the lower designa- 
 tion of Earl, — whereas the Claimant contends, and has proved, that on all occasions, whether in the face of 
 the Crown or not, the Duke claimed and used the title, and, what is more, did actually receive it from the 
 King and the successful faction, and that on no one occasion did he ever adopt the title of Earl or 
 " acquiesce " in its being given him. The Claimant's argument, as actually put forward, is as follows : — 
 That nothing is more common than the designation of peers by their inferior titles — many French and 
 Spanish peers use their lower but more ancient and historical titles in preference to higher but modern 
 ones ; f and in Scotland, where a peculiar and lingering affection has always existed and still exists for 
 ancient names and associations, the older though inferior titles of peers were frequently applied to them 
 in public records and private instruments instead of their higher but more modern ones. The Crown has 
 apparently understood the Claimant to assert that in these Scottish instances the peers in question 
 actually took these lower titles in preference, and that the Duke of Montrose adopted the style of 
 ' Earl of Crawford' " by choice" likewise. But he never intended this, and did not say it — although 
 he admits that his citation of the French and Spanish examples as an a fortiori illustration may have 
 
 " in the year 1488, . . it is believed, was not attended by those who had supported the cause of the deceased sovereign James III. : 
 " it was attended by those who had espoused the cause of the Prince and of the confederate Lords." — Geneal. Hist, of the 
 StewaHs, p. 190. 
 
 * With respect to the documents noticed under No. ix, {supra, p. xcii,) see also siipra, pp. Ixxviii, Ixxxv, and infra, pp. ci sqq. 
 
 t Among the instances cited in the Claimant's Case and the S. Case, he overlooked that of the illustrious house of Egmout in 
 the Low Countries, who always took the style of Count in preference to their other titles, and of whom Madame de Crdquy speaks 
 as follows in her Memoirs: — " Mademoiselle de Richelieu devint done Comtesse d'Egmont et tout ce qui s'ensuit, c'est-a-dire une 
 " des sommites aristocratiques les plus flevees de TEurope, ainsi qu'on a la bonne grace et la simplicity de s'exprimer aujourd'hui ; 
 " c'est-k-dire Princesse de Cloves et de I'Empire, Duchesse de Gueldres, de Julliers, d'Agrigente, et Grande d'Espagne ^ la cre'ation 
 " de I'Empereur Charles-Quint, cote h cote avec les Duchesses d'Albe et de Medina-Celi, qui sent les deux plus grandes dames de 
 " I'Europe. On remplirait quatre pages avec la titulature et la liste des majorats de cette grande et puissaute maison d'Egmont, qui 
 " descendait en ligue directe des Souverains-Ducs de Gueldre, et que la haute noblesse de tous les pays a eu la contrariite de voir 
 " s'^teindre." — Souvenirs, &c. vol. ii. p. 158. See also the ' Nobiliaire des Pays Bas,' and other similar authorities. So too the Duke 
 of Penthievre, grandfather of the late Duchess of Orleans, was frequently styled ' Comte de Toulouse ' in preference, owing to the 
 high antiquity and celebrity of that title. But such illustrations would be endless. 
 
ANALYSIS OF THE AEGUMENT. xcv 
 
 misled the Crown. The proofs cited in the case of David Duke of Montrose, and the illustrations of 
 indifferent nomenclature in the case of Scottish peers, are entirely the other way. The Claimant's plea 
 is simply this — that the style of ' Earl of Crawford ' which is objected in the case of the Duke of 
 Montrose may be satisfactorily accounted for by the instances and illustrations adduced — independently 
 of the supposition of studied misnomer, however probable and obvious. The Claimant has already 
 cited an apposite instance of fhis indiiferent nomenclature in the case of an exact contemporary of Duke 
 David, viz. John Earl of Lennox, who is designated by James IV. as " Lord Darnley,' simply, at a 
 time when he was sitting in Parliament, fully acknowledged as Earl ; * and to which may be added the 
 well-known historical fact that Lord Darnley, the husband of Queen Mary, continues to be styled so 
 long after he was created Duke of Albany, and even, popularly, till his death. The Claimant has 
 shewn moreover instances of the first and the second Lord Home being designated as commoners on the 
 6th November 1488, the 23rd October 1490, the 18th March 1490-1, the 3rd February 1491-2, the 
 8th June 1504, and in 1533 ; t of William Lord Graham, the first Earl of Montrose, so created in 1503, 
 being described as ' the Lord Grahame,' simply, in a protest by his brother before the Lords of 
 Council on the 17th November 1505; J of the Earls of Glencaim and Eglinton being styled ' Lord 
 ' Kilmaurs ' and ' Lord Montgomery,' simply, when indisputably entitled to their several Earldoms, in 
 1517, long after 1503,§ &c. &o. — He also represents that, although Thomas and John Mowbray, who 
 were fully recognised as Dukes of Norfolk in 1425 and afterwards in virtue of the original creation in 
 1397, were styled by their inferior titles of ' Earl Marshal ' and ' Lord Mowbray ' between 1399 and 
 1425, this was not found to be of any prejudice to the Norfolk heir subsequently. He has also shewn 
 that the fact that Robert and Cuthbert Lords Kilmaurs, although lawfully Earls of Glencairn between 
 1488 and 1503, were styled ' Lord Kilmaurs ' only during that interval, was similarly innocuous to 
 them. II A fortiori, therefore, the fact of the designation of Duke David hy his inferior title, his higher 
 and lawfid one heing otherwise fully recognised, must he innocuous to the present Claima/nt. No legal 
 argument can he hased upon it. 
 
 The substance therefore of the matter is this : — When the Ceown objects that, in documents 
 executed (as the Claimant contends) " behind the back " both of the King and the Duke, the latter is 
 styled ' Earl of Crawford,' the Claimant replies — it may be so, but this cannot prejudice him even if 
 unaccounted for, while it may be accounted for by the fact that Scottish peers entitled to higher titles 
 were frequently styled merely by their inferior ones — as by proof given ; which proof the Crown has 
 not ventured to question except in the case of the Earldom of Lennox, where (as already shewn) they 
 have entirely overlooked the document produced by the Claimant in order to meet in the most unexcep- 
 tionable manner a plausible objection advanced by the Duke of Montrose. — Neither the Attornet- 
 Genekal nor the Lord Advocate question the illustrations of such nomenclature adduced by the 
 Claimant from the history of the Home, Montrose, Glencairn, and Eglinton families. And the 
 Lord Advocate's partial pledge to examine one of these instances in the sequel of his speech was not 
 fulfilled.— Case, pp. 30, 67 ; S. Case, pp. 121, 122 ; 215, 216 ; Infra, pp. 101, 102, 294. And, finally, 
 
 xi. Of the instances, adduced by the Claimant, in which David Duke of Montrose is styled ' Earl of Crawford,' 
 simply, subsequently to the Regrant in September 1489, and to which the Attorkbt-Geneeal has 
 replied ut supra, p. xciii, the notice in the Exchequer Roll, 29th July 1492, describes the payment of a 
 sum of money to the ' Earl of Crawford,' " Comiti CRADFtrEDiE," with special reference (as a voucher) 
 to the Earl's acquittance, or receipt, then hefore the Accountant's eyes, which he liad of course care- 
 fully examined and tested, and which he describes as hearing the Earl's seal and signature — which 
 seal and signature were unquestionably those of " David Ddke or Montrose " in 1492.— Jn/ra, pp. 
 294, 519. 
 
 To conclude : — 
 
 xii. The result of the Claimant's criticism on the preceding objections of the Crown is therefore this, — 
 that every one of these misappellations was " behind the back " of the Duke, — that the presumption 
 is against the Duke having been present in the Parliament of October 1488, while, even if he had been 
 present and had " acquiesced " in the rescission of the Dukedom, it could not have given legal force 
 to the Act Rescissory, as against himself or his heirs, — that the proceedings before the Law Courts relied 
 upon by the Crown were adverse judgments, the result of proceedings presumably commenced before 
 the Ducal creation, — that the payments in the Exchequer Rolls proceed on warrants previously granted 
 to the Earls of Crawford, — that the instances in which the Duke is styled ' Earl of Crawford,' only, 
 previously to the Act Rescissory were, if intentional, illegal, — that the designation of peers by their 
 inferior titles was of familiar usage in Scotland, and the designation of the Duke as ' Earl of Crawford' 
 cannot therefore prejudice the Claimant, — that the Duke is styled ' Earl of Crawford ' even after the 
 Regrant in September 1489, when he was undoubtedly Duke of Montrose in the estimation of those who 
 styled him so, — and, generally, that IP the Act Rescissory did not per se destroy the Patent, 
 NO mode in which the Duke may have been designated afterwards could apfect or impaib 
 ITS VALIDITY.' — Infra, p. 294, and passim. 
 
 Opinion of the Committee. 
 
 Lord Chanoelloe. — " If the dignity was annihilated, what would you expect to happen ? . . You would 
 " expect that one who had received a grant of a dignity, the Dukedom of Montrose for example, would 
 
 * Vide supra, pp. Ixxviii, Ixxix ; ' Minutes of Evidence,' pp. 120, 122 ; and Appendix, infra, pp. 515, 516. 
 t S. Casei pp. 121, 122, Addenda, pp. 215, 216 ; and Appendix, infra, pp. 521, 522. 
 X S. Case, p. 122. Printed in the ' Minutes of Evidence,' p. 127, and in the Appendix, infra, p. 518. 
 § S. Case, p. 67.— In the endorsation of a Contract, ' Minutes of Evidence,' p. 127 ; and see the Appendix, infra, p. 618. 
 , pp. xvi, XXXV, xxxvi. 
 
XCVl ANALYSIS OF THE ARGUMENT. 
 
 " thenceforward appear, not under the title of Duke of Montrose, but under his former title. That is 
 " exactly what happens." — " The Duke of Montrose, after the Act Rescissory, sat in Parliament as 
 " ' Earl of Crawford ' upon one occasion. After the grant to him of the Dukedom he sat in Parliament 
 " as ' Duke of Montrose.' " The argument " that the sittings of these noblemen " (Montrose and 
 Glencairn), " one as ' Earl of Crawford' instead of Duke of Montrose,' and the other as ' Lord 
 " ' Kilmaurs ' instead of ' Earl of Glencairn,' might be regardedaccording to the custom prevailing among 
 " foreign nobility, who often take, not their highest title, but their oldest or some other title, and that 
 " therefore " Glencairn might have " called himself in society ' Lord Kilmaurs ' instead of Earl of 
 " Glencairn," and Montrose ' Earl of Crawford ' instead of Duke of Montrose, did not make much 
 " impression upon my mind." For " the sitting in Parliament and getting ranked as a Baron " or as an 
 Earl, when there existed " a higher title, is not an act which a Scotch nobleman would have done unless 
 " he had been compelled to do so. I cannot think therefore that that is entitled to very great weight." 
 —Infra, pp. 316, 317 ; 334, 335. 
 
 Lord St. Lbonabds. — "It is clear that the Duke never sat in Parliament upon that title "of Duke of 
 Montrose — " and he had no opportunity of doing so." " The Duke insisted as much as any man could 
 " do upon his title as Duke. Whenever he had an opportunity of making use of the title in a way 
 " which could not be prevented, he did use that title,— that is beyond all question." — Infra, p. 350. 
 
 2. By the Attorney-Genekal and the Lord Advocate : — Whereas it is argued by the 
 Claimant that the Regrant of the Dukedom of Montrose on the 18th and 19th September 1489, was the 
 result of a Compromise and of the nature of a Confirmation,* and that it conveyed the Dukedom anew to 
 David Duke of Montrose — not for life only, but hereditarily, f so as to save James IV. and the successful 
 faction from the humiliation and aimoyance of having to recognise a grant of James III., the reward of 
 opposition to their rebellion, — 
 
 i. It was not a Compromise in the sense in which the Claimant uses the expression, for the Duke 
 had nothing '■' in point of legal right " to " throw into the scale " — the Act Rescissory had 
 cut down the honours and the estates, which were then vested in the Crown — he had 
 " nothing but power and might to allege in regard to his share of the " supposed " com- 
 " promise." J 
 
 ii. It was not a Confirmation, for the same reason — there was no Dukedom to confirm. A 
 charter of confirmation confirms to the individual already in possession something his title 
 to the possession of which it is intended to prolong. It does not profess (as the Regrant in 
 the present instance does) " to give it him de novo, as if he had never had it before ; and if" 
 the present " had been a mere charter of confirmation confirming the title to the Dukedom, 
 " it would have confirmed to David Duke of Montrose the Dukedom of Montrose. But it , . 
 " does exactly the reverse ; it gives it to him as David Earl of Crawford."§ " There are 
 " no words of confirmation ; they are words of creation of a very precise and specific nature ; 
 " and whatever may have been the nature of the matter conveyed, . . it was conveyed for 
 " the first time by this statute." " Its entire character is the reverse of confirmatory." || 
 
 ilL It was therefore a grant entirely de novo.'i 
 
 — The truth is, that " circumstances had . . very materially altered — the King's government was . . 
 " very firmly established, but . . not altogether beyond the reach of attack " — there had been " a 
 " formidable insurrection " which the Earl of Crawford had not joined, " and by his remaining quiet , . 
 " he may be considered as having given in his adhesion to the new Government ; . . he had been stripped 
 " of his appointments, . . he had resigned the Sheriffdom of Forfar — they were disposed . . to conciliate 
 " him ; and as his pride would be naturally much mortified at having to resign the character and title of 
 
 * In his Case and Supplemental Case, and in his Replies to points pressed upon him in the course of his addresses to the 
 Committee. His views will appear more fully hereafter under the Reply to the objections of the Crown grounded on the Regrant. 
 The slight awkwardness that attaches to this partial anticipation of the Claimant's reasoning arises, unavoidably, from the attempt of 
 the Crown to place him at disadvantage with regard to the Regrant — but which the Claimant will not allow to disconcert or interrupt 
 the natural and original course and development of his own argument— a course, indeed, which gives every possible advantage and 
 prominency to the reasonings of the Crown in opposition to him. The Claimant has repeatedly stated that he founds upon the 
 Regrant solely as proving that the original grant of the Dukedom was not " prejudicial" to James IV.,—tlie Regrant being otherwise wholly 
 immaterial to the argument. It is only in reply to objections urged against him that he considers the Regrant in the light of a grant of 
 honour. See the Address, supra, pp. xxvii sqq. ; and pp. 91, 101, 166, 290, infra. 
 
 •j- See the Lord Advocate's Speech, infra, p. 234. J Lord Advocate, infra, p. 234. 
 
 § Attorney-General, infra, p. 199. || Lord Advocate, infra, pp. 235, 236. 
 
 ^ Lord Advocate, infra, p. 234. 
 
ANALYSIS OF THE ARGUMENT. xcvii 
 
 •' Duke which he had previously enjoyed, a species of compromise took place, hy which he should be 
 " created a Duke, not in perpetuity, but only for his own life."* The Act of Parliament 18th September 
 1489 accordingly " contained the terms on which the Earl of Crawford . . made his peace and gave in his 
 " allegiance to the Government on the one hand, and the Crown " rewarded " him on the other," viz. by 
 a regrant of the estates and honours for life.j 
 
 This arrangement was carried into effect by two instruments, — i. An Act of Parliament, 18th 
 September 14<89, conferring the Dukedom upon ' David Earl of Crawford,' to be enjoyed by him 
 " secundum formam et tenorem carte super premissis conficiende ;" and ii. A Charter, or ' Litera,' 
 19th September 1489, granting the Dukedom to ' David Earl of Crawford ' " pro toto tempore vite sue." 
 
 i. The Act of Parliament, 18th September 1489, is as follows: — 
 
 " Eodem xviii die Septembris, anno quo supra, Supremus Dominus noster. Jacobus 
 " Quartus, Dei gratia Scotorum Rex, cum avisamento maturaque deliberacione Magni 
 " Consilii sui antedicti, Eecognoscens quod cedit regibus ad gloriam et honorem, dum per- 
 " sone preclari generis, preclaris exigentibus meritis, dignitatibus inclitis preferuntur, ut 
 " exinde, cum sues cernerint status et nominis [sic] majoribus titulis decorari, ad grandiora 
 " virtuosioraque peragenda, magis ac magis, in suam laudeni regnique et reipublice 
 " decorem et frugem, studeant se fervencius insudare : — Pateat igitur universis, tam 
 " presentibus quam futuris, eundem Dominum nostrum Regem, pensantem obedienciam 
 " actualem gratamque obsequendam gratificandam promptitudinem, quas fidelis suus 
 " consanguineus, David Comes Crawfurdie et Dominus Lindesay, et sui predecessore [sic] 
 " incliti, predecessoribus dicti Domini nostri Regis, Scocie Regibus, ac eidem Supremo 
 " Domino nostro Regi, indefessa intencione exhibuerunt multis modis, propter que, et 
 " alia ipsius condigna merita, et suis serviciis futuris temporibus impendendis, idem 
 " Supremus Dominus noster Rex, ex debito sue regalis magnificencie, volens ipsum 
 " David amplioribus prosequi favoribus gratie et honoris, — Cum itaque predecessorum 
 " suorum, Crawfurdie Comitum, digne recolenda prioritas titulo Comitatus suas domina- 
 " clones supradictas ab antiquis temporibus tenuerunt ; Hinc est, quod Supremus 
 " Dominus noster Rex eundem David, suum consanguineum, volens ampliori fulgere 
 " dignitate, et Comitis titulum supradictum in majorem excelsioremque mutans, dictum 
 " David, suum consanguineum, Ducem de Montross, ex suis certa scientia, potestatis 
 " plenitudine, et gratia speciali, sublimavit, fecit, creavit, et de novo erexit in Ducatum, 
 " Ducatusque nomine et prerogativa volens ipsum gaudere et potiri, secundum formam 
 " et tenorem carte dicti Domini nostri Regis dicto David, Duci de Montross, super 
 " premissis conficiende." | 
 
 (1.) The object of this Act was to " enable the King to grant anew the title of Duke 
 " of Montrose." The Act " was not perhaps altogether necessary — for . . upon 
 " the constitutional theory it would have been competent to the King not to 
 " revive the original Dukedom but to create a new one ; but still, as the annulling 
 " of the former Dukedom had taken place by virtue of an Act of the Legisla- 
 " ture, it was . . thought more decent and proper towards Parliament that the 
 " new creation by the King should be preceded by an Act of Parliament." 
 " That Act of Parliament says that the King may de novo create the 
 " Dukedom of Montrose by a charter hereafter to be completed." § The 
 terms, words, and substance of this Act are " conclusive " of its being " an 
 " original grant." || For, 
 
 (i.) " If the Act Rescissory did not affect the " Dukedom of Montrose, 
 " there was no necessity for any further proceeding," — " the Duke 
 " had " only to " take his seat." But " if the Act Rescissory had 
 " taken effect, then nothing but a new grant could give him the 
 " honour." IT 
 
 * Attorney-General, infra, pp. 195, 196. t Lord Advocate, infra, p. 234. 
 
 % For the Regrant see the Acts of Parliament, vol. ii. p. 215, and the Appendix, infra, p. 531, where also a translation is given. 
 § Attorney-General, infra, pp. 195, 196. II Lord Advocate, infra, p. 234. 
 
 ^ Lord Advocate, infra, p. 234. 
 
 o 
 
XCVIU ANALYSIS OF THE ARGUMENT. 
 
 (ii.) " It is material to observe that Parliament grants this new honour, not 
 " the Crown/' — "the reason" being " that Parliament had" already 
 " interposed to set aside the former honour, and it was thought 
 " right that legislative authority should be brought in to renew it in 
 " its limited terms." * 
 
 (iii.) It is granted, not to the " Duke of Montrose " but " to the Earl of 
 " Crawford," upon the express narrative that " it is desirable to raise 
 " his dignity " — words " totally inconsistent " with the idea that this 
 can be " a grant confirming the dignity already held' by the Duke 
 " of Montrose." t 
 
 (iv.) It is to be enjoyed (as stated) " according to the form and tenor of a 
 " carte super premissis conficiende," X which brings us to 
 
 ii. The Litera, Idth September 1489 : — " The Litera itself . . is no longer forthcoming " §— the 
 only indication of it is the following abridged notice on the Great Seal Register : — 
 
 " Data est litera Comiti Craufurdie, creando ipsum Ducem de Montrose pro toto 
 " tempore vite sue, et concedendo sibi capitale messuagium et locum castri de Montrose, 
 " vulgariter nuncupatum le Castelstede, necnon totum et integrum burgum et villam de 
 " Montrose, cum redditibus, firmis burgalibus, magnis et parvis custumis, ac libertatibus 
 " et commoditatibus earundern, nunc Regi de eisdem burgo et villa pertinentibus, ac 
 " portum et stacionem navium ejusdem burgi, cum pertinentibus, cum firmis aquarum et 
 " piscationibus Regi de eodem burgo pertinentibus et infra libertatem ejusdem existen- 
 " tibus, jacentibus infra vicecomitatum de Forfar ; ac etiam capitale messuagium et locum 
 " castri de Kinclevin, ac terras dominicales ejusdem, quas quondam Joneta Fenton, 
 " sponsa quondam Willielmi Haket, ad vitam prius habuit, ac omnes et singulas alias 
 " terras dominii de Kinclevin, cum molendinis, multuris, et piscariis earundern, ac cum 
 " omnibus aliis pertinentibus, tenentibus, et tenandriis, Regi etiam de dicto dominio 
 " pertinentibus, jacentibus infra vicecomitatum de Perth ; creando omnia predicta in unum 
 " merum et liberum Ducatum de Montrose nuncupandum, ac tenendum in libera 
 " regalitate : — Etc., cum omnibus clausulis secundum formam carte, ac cum itineribus 
 " et curiis justiciarie et camerarie : — Etc. : — De data xix™' diei mensis Septembris, anno 
 " regni Regis secundo." |1 
 
 The Claimant objects " that this " is " not a genuine but a spurious document, 
 " interpolated . . at some after period by a hostile party, . . inserted in the 
 " Register in haste, and in an abridged form," — and then " turns round and 
 " says " that " it does not contain all it ought to have contained ; it has omitted 
 " something which" the Committee " is to supply, and then it will become a 
 " perfect instrument and one upon which " he " may take his stand in his asser- 
 " tion of this claim." T[ But, 
 
 (i.) Admitting that the entry is found " at the foot of a page of tlie Register," 
 having " the appearance of being somewhat compressed into a small 
 " space," " not in its exact order," and conceived in " a somewhat 
 " unartistic" manner, " it appears from numerous instances that those 
 " instruments . . were recorded as they were brought in, and not 
 " always in their order of date," and to hold that it is " spurious and 
 " interpolated " on such grounds is " a purely gratuitous assumption." 
 It " was not introduced at any subsequent period, and no one can 
 " suggest a motive why it should have been so introduced." " No 
 " one to the present hour," since " the death of the first Duke of 
 " Montrose," " has ever dreamed of asserting a claim to the Duke- 
 " dom— it could not have been inserted as a grant for life at any 
 
 * Lord Advocate, infra, p. 234. f Lord Advocate, infra, p. 234. 
 
 J Lord Advocate, infra, p. 235. § Attorney-General, infra, p. 196. 
 
 II For the abridged ' Litera' see the ' Minutes of Evidence,' p. 15, and the Appendix, infra, p. 532. 
 f Attorney-General, infra, p. 196. 
 
ANALYSIS OF THE ARGUMENT/ xcix 
 
 " posterior period with a view of meeting such a claim ; it must have 
 " been inserted therefore at the period to which it relates, and the 
 " best proof of that is, that the handwriting is the handwriting of 
 " that epoch." " It is preposterous to suppose that any one would 
 " insert a fraudulent misrepresentation " of an instrument, knowing 
 that the original could " be produced " to refute such a misrepre- 
 sentation. The Litera is, in short, " a genuine instrument, and it is 
 " an instrument containing a grant for life, and for life only." * 
 
 (ii.) While charters under the Great Seal, when extending to heirs, were 
 entered at full length in the Great Seal Register, with the quequidem 
 and tenendas clauses (which " were absolutely essential to " their 
 " validity ") — narrating the manner in which the property came into 
 the King's hands, and the mode of descent and limitation — inserted 
 at full length ; it is stated in evidence that life-rent grants were 
 " almost uniformly " recorded in mere abstracts like the present,t 
 only one instance being produced by the Claimant to the contrary ; 
 and this is the reason why the Litera is merely in the curtailed form 
 before the Committee. If indeed this Litera had been a " Carta," 
 it would have been different, — " a full Charter could, if necessary, 
 " have been expede and prepared " upon this " Letter from the 
 " Crown," " but it does not appear that in cases of this kind, where 
 " the grants were for life, it was considered necessary to have that 
 " Charter prepared, and certainly it was not considered necessary to 
 " register the Charter ; and the Litera accordingly contains simply 
 " the head of the matter, — it would have entered the Charter " in 
 this instance " if it had been prepared." | 
 
 (iii.) " If anything could prove more than another that " the Regrant was not 
 a confirmation, " it would be this, that the terms of the grant " — " if 
 " this Letter " (the Litera) " do truly denote the title " — " are 
 " varied." § " The grant of 1488 was " to the Duke and his heirs — 
 the words in the Litera are to the Duke " pro toto tempore vite sue " 
 — " and there it stops." || And whereas the Claimant argues that 
 there are many grants of title and estate to persons in liferent, with 
 a limitation afterwards to heirs ; and that the subsequent limitation 
 may have been omitted (whether designedly or otherwise) by the 
 clerk who abridged the Litera, — and also that the tenendas clause in 
 particular is omitted in the abstract of the Litera, and an " etc." 
 substituted for it, and that the limitation might have been there in 
 
 * Attorney-General, infra, pp. 196, 197, 198. 
 
 t See the ' Minutes of Evidence,' pp. 10 and 1 5 ; and the Appendix, infra, pp. 379, 534, 535. The -words " almost uniformly " 
 are those of the Crown, not the -witnesses. The Claimant -would request reference to the evidence in question, 
 
 % Lord Advocate, infra, p. 235. — It -will appear presently {infra, p. cxii) that in the Exchequer Rolls of 1496 the estates are 
 stated to have been granted to the Duke for life " per literas Domini Regis." This, observes the Lord Advocate, furnishes " con- 
 " temporaneous and indisputable evidence . . that at the time of the date of that entry in the Register (") . . the Letter " is referred to 
 " by the officer of Exchequer as a life-rent grant;" and " that the rents of Kinclevin were dealt with and accounted for to the 
 " Cro-wn, as upon a life-rent."— /re/ra, p. 238. — The Lord Advocate has overlooked, however, the words that express the same fact 
 -with reference to the Petty Customs — " per literas Domini Regis suh private " — " under the Privy Seal," — the significancy of which 
 had escaped the Claimant's observation till now. These words would appear to support the Lord Advocate's assertion that the 
 " Carta," or Charter under the Great Seal, ordered hy the Act \ith September 1489 to he executed, was never executed, bat that a mere 
 Litera, or Letter under the Privy Seal, was ismed an the occasion. The Claimant, however, draws a totally different inference from this 
 fact (if it should turn out to be such), viz. : — i. That it furnishes additional reasons for refusing to interpret the Act l&th September 1489 
 by the mutilated Litera ; and ii. That the Duke considered the Regrant as so much waste paper as regarded his legal rights to the Dukedom, 
 and took no pains to have the ' Carta ' expede or extended. While the fact, if true, that the Regrant only passed the Privy Seal would 
 not impeach its validity, as is sufficiently clear from the parallel case of the patent of the Dukedom of Lennox, presently to be men- 
 tioned, which also does not appear in the records as having passed the Great Seal. 
 
 § Lord Advocate, infra, p. 236. || Attorney-General, infra, p. 197 ; Lord Advocate, infra, p. 235. 
 
 (") This would imply that the entry or memorandum of the at the time of^ his death, and necessarily by interpolation. But 
 Litera -was inserted, in the opinion of the Lord Advocate, not in perhaps this is more than the Learned Gentleman intended to 
 or about 1489, -when granted to the Duke, but in or about 1496, admit. 
 
 O 2 
 
; ANALYSIS OF THE ARGUMENT. 
 
 the original had the transcriber done justice to it;* the Crown 
 admits that there is " nothing inconsistent in giving a title subject to 
 " one man for his life, and to his heirs in perpetuity, . . it did not 
 " require any argument, . . but" — t " it is clear in all those cases 
 " they do expressly state that there is to be a remainder ; in this 
 " case it is not stated " f— " unfortunately this grant" (the Litera) 
 " contains no such words, . . and the legal construction of the 
 " words is exactly the reverse." § The Claimant seeks " to get 
 " over the difficulty " by importing " words which are not there, and 
 " which make all the difference." " If, indeed, . .upon the death of 
 " the grantee under " the " Litera, his heirs had succeeded to the 
 " title, if there had been a long course of posterior enjoyment,, .it 
 " might be that you might do violence to the language of the charter 
 " by importing into it words which possibly might have been omitted 
 " from it by inadvertence ; but . . the facts are exactly the other 
 " way." II " It is not necessary to discuss that hypothesis— it is a 
 " mere conjecture, — it is quite enough to say that " the phrase 
 " heredibus suis is not there," and the Committee " cannot find it 
 " there."1I The " etc." in the tenendas of the entry of the Litera 
 probably " refers, not to the . . destination— which ought to have 
 " been found in the dispositive clause," ** . . but to matters " of 
 " jurisdiction," baronial privileges, &c., — " it was to save the neces- 
 " sity of repeating all those terms " that the " etc. " was introduced. 
 " But, . . whatever might have been its meaning," the Claimant 
 " is quite unable to point out " in the Litera " anything that conveys 
 " the Dukedom to heirs." Jt Lastly, 
 (iv.) " By the then existing practice in Scotland, when an honour was created, 
 " it was granted upon territorial estate, connected with it, united with 
 " it, and formed upon it. There was no such thing in those days as 
 " what one may term . . a title in gross. It was made appendant 
 " to, and inseparably united and incorporated with, a territorial 
 " possession.":]: t Now the estates granted by the Litera, and created 
 into a Dukedom, and which are not conveyed by the Act of Parlia- 
 ment 19th September 1489, §§ are " there referred to . . in this 
 " instrument, which is called a charter of confirmation, . . as being in 
 " the hands of the Crown . . ' nunc Regi pertinentibus.' " || || The 
 Duke had "held these estates heritably" by the first Patent — " he 
 " was seized in them just as much as he was seized in the Sheriffdom 
 " of Forfar." If that seizin " were good, and his former title stood, 
 " the King could no more have made a fresh grant to him or any 
 " one else than he could " have done so in regard to " the Sheriffdom 
 " of Forfar — without a resignation " on his (the Duke's) part. But 
 
 * Attorney-General, infra, p, 198. — The following are the words used by the Attorney-General on this point: — " They say 
 " that it " (the limitation to heirs) " may be considered as implied in the ' etc.' Yes, my Lords ; but the ' etc' is in the wrong place. 
 The ' etc' is at the end of the instrument ; and the tenendum, as far as regards the term for which the dignity is to be enjoyed, is at 
 " the commencement, — ' Litera data est,' conferring the dignity ' pro toto tempore vite sue ;'— there it stops. If there had been 
 " an ' etc' there, I could have understood it ; but the tenendum of this somewhat unartistic instrument is divided into two portions. 
 " That which relates to the thing to be held is at the end of the instrument ; that which relates to the time for which the thing is to 
 " be held is at the commencement. There it is where you would look for the ' etc.,' if any ' etc' could be held to include and com- 
 " prehend the all-important terms which you do not find in the instrument." — The Claimant does not quite understand this. He 
 would refer to pp. cvi sqq., infra, for his own views on the subject. He will only remark, that the regular and distinct form in which 
 the successive clauses of a Royal Charter follow each other, and which was never departed from, may be seen by reference to the 
 original Montrose patent, Appendix, infra, p. 37.5. 
 
 f Lord Advocate, infra, p. 236. % Attorney-General, infra, p. 198. 
 
 § Lord Advocate, infra, p. 236. || Attorney-General, infra, p. 198. 
 
 If Lord Advocate, infra, p. 235. "'* Quite wrong. Vide infra, p. civ, u. %• 
 
 ft Lord Advocate, infra, p. 236. 
 
 XX Attorney-General, infra, p. 199. This, it may be observed, is not exactly the case. There was sometimes no erection into 
 a ' Comitatus ' or ' Baronia,' although lands might be granted simul et semel, as in the Glencairn patent in 1488. 
 §§ Lord Advocate, infra, p. 235. |||{ Attorney-General, infra, p. 199. 
 
ANALYSIS OF THE ARGUMENT. Ci 
 
 no resignation took place — (" there was nothing in the Duke to 
 " resign ") — and the estates are described as in the King's hands 
 already. If so, if in the hands of the King at that time, it proves 
 incontestably that they had come there, " not in ordinary feudal 
 " course by resignation, but simply from the operation of the Act " 
 Rescissory;* it shews that "the Act Rescissory had annihilated the 
 " property of the Dukedom," and that the property " had reverted 
 " to . . the Crown." f 
 
 lii. Such being the facts of the case, the Act 18th September 1489, " which is as it were made uno 
 " et eodemfiatu with" the Litera, " being capable of a two-fold construction " (" a concession 
 " to " the Claimant), the Committee " must look at it with reference to the facts which pre- 
 " ceded and followed it." The Duke is styled Earl of Crawford " in all public proceedings " 
 till the Regrant — after it he is styled Duke of Montrose ;| the title expires and the estates revert 
 to the Crown after his death, and no claim is made to the title for three hundred and fifty 
 years. § " The real state of the matter is this : — Beyond all question the title . . and the 
 " lands had reverted to the Crown ; and an Act of Parliament is passed, with a view to a 
 " new creation, not to confirmation, . . giving him a title in the terms of the Charter" (i. e. 
 " secundum formam et tenorem Carte . . super premissis conficiende"), " and that appears 
 " to have been made, as the Letter appears to have been made, on the 19th September 
 " 1489 ; and in that Letter " (as distinguished by the Lord Advocate from the " Carta " 
 or " Charter," which he elsewhere, as above, contends was never executed) " we must look 
 " for the terms of this creation. . . It is a grant of the same subjects, but only for life." 
 And " it may be a plausible speculation that, the Duke's eldest son, Alexander Master of 
 " Crawford, having been slain by his younger brother John, afterwards sixth Earl of 
 " Crawford, and John having attached himself to the rebellious faction and been in open 
 " conflict against his father at the field of Stirling," the Duke, " disappointed in handing 
 " down his dignity to his eldest son, may . . very naturally " have been " not unwilling that 
 " it should not descend to the son by whose hand that elder brother had been killed" — he 
 may have been " content to take the Dukedom to himself" for life only, " and exclude that 
 " son who had done so little to deserve his favour." || 
 
 iv. The fair inference, in conclusion, from what has been proved and from the whole circumstances 
 attending the Regrant, is this, — that the Duke " admitted the effect of the Act " Rescissory 
 as annihilating " his original Patent;" that it was the confessed invalidity produced by 
 that Act which caused him to " ACCEPT" a new grant; and that the acceptance of this 
 Regrant implies that he " acquiesced " in the Act Rescissory. '^ 
 
 Replies and Remarks. 
 
 1. The Claimant's leading reply to the preceding objections of the Cbown, founded on the Regrant, is very 
 
 simple. The Begrant by James IV. with advice of Parliament, 18th September 1489, affords most important 
 evidence as regards the applicability of the Act Rescissoky to the okiqinal Dukedom Patekt and to 
 David Duke of M.O'ST'ROS^— proving that the grant of the Diikedom to the individual in question could not 
 he " pbejudioial " to James IV., and could not therefore he affected hy the Act Rescissory. And it is also 
 highly important on the subject of the limitations in the Patent. But in evbby other bespect it is quite 
 immatebial to the case ; for if the Act Rescissoey did not annul the Patent 1488, the Regeant 
 1489 cannot have annulled it.** 
 
 2. It is admitted by the Ckown that the Regrant by James IV. "with advice and mature deliberation" of 
 
 Parliament, forming the statutory creation 18th September 1489, has ''a twofold construction," and that the 
 Committee must look to what preceded as well as to what followed it in order to ascertain which construction 
 Is the true one. But the CaowN does not adhere to the practice thus proposed to the Committee. Instead 
 of starting and proceeding (as is incumbent in any inquiry like this) from the earliest ascertained facts, as 
 governed and interpreted hy the acknowledged principles of antecedent and existing Peerage Law (facts and 
 
 * Lord Advocate, infra, pp. 234, 236, 231. — Whereas the Claimant argues " that vrithout the resignation of the honour the 
 " honour must remain in the person of the Duke ;" " there is," according to the Lord Advocate, " a clear and manifest fallacy 
 " running throughout . . that argument. The resignation would only have been available if the Act Rescissory had not taken 
 " eflFect."— /«/ra, p. 231. 
 
 t Attorney-General, infra, p. 200. + Not invariably so, as shewn supra, pp. xciii, xcv. 
 
 § Attorney-General, infra, pp. 200, 201. II Lord Advocate, infra, pp. 237, 238. 
 
 t Attorney-General, infra, pp. 180, 209, 211, 219; Lord Advocate, infra, p. 228. 
 ** Vide infra, p. 104. 
 
Cll ANALYSIS OF THE AEGUMENT; 
 
 principles already repeatedly enunciated and illustrated by the Claimant), and interpreting all subsequent 
 and necessarily secondary facts hy those acknowledged antecedent, prmarry, and governing facts and prin- 
 ciples, in ohedience to the great moral law of priority of obligation — instead, in a word, of arguing (as the 
 Claimant does) from the past to the present — the Crown starts from the wrong end, and argues backwards 
 from the present to the past — the comnion object before the Grown and the Claimant being the ascertainment 
 of the precise character, limits, and legal bearing of a point of historical truth in the year of Our Lord 
 1488-9, viz. the effect of the Act Eescissory upon the Montrose Patent Wth May 1488. Or, to point this 
 out more specially : — The Cbown — entirely disregarding the principles of Peerage Law and the rules 
 generally applicable to the construction of legal documents — assuming it as proved that the Act Rescissory 
 took effect at once and per se, that Duke David was never recognised as Duke during the interval between the 
 Act Rescissory and the Regrant, and that, on the contrary, his title of Duke was invariably repudiated by 
 the Crown, and cut down to that of Earl of Crawford — argues from the Duke's subsequent style as Duke of 
 Montrose, and from the cessation of the title and the resumption of the estates after his death, that the Regrant 
 was for life only, and partook neither of the nature of a compromise nor of a confirmation, in the strict sense 
 of those words. Now it is evident that the whole force of this argument rests on the assumption that tlie Act 
 Eescissory did take effect. If it did, the Claimant of course admits that the Regrant was not a Confirmation, 
 but a grant entirely de novo — although he still contends, from the language of the grant, that it was a grant 
 in perpetuity. But if the Act Rescissory did not cut down the Patent — ir, as the Claimant believes he has 
 conclusively established, the Act Rescissory, qualified as it is, and interpreted strictly and in accordance with 
 the Norfolk judgment and the general rules of construction applicable to such documents, could not and did 
 not per se annul the honour, — if none of the other grants of James III. within the proscribed period were 
 defeated by it, — ir David Duke of Montrose, who, it is admitted by the Ckown, held the estates heritably 
 under the original patent, and was seized in them, just as much as he was seized in the Sheriffdom of Forfar- 
 shire, up to the passing of the Act Rescissory, was recognised as Duke by James IV., subsequently to that 
 Act, held the estates conferred by the Patent subsequently to that Act, and was actually holding them and 
 receiving the rents on the very day and at the very moment when the Regrant- was issued, — ir, so holding 
 the estates, and so recognised by the title, he could only (as is admitted) be denuded of them by Forfeiture 
 or Resignation, — and if (as is also fully admitted) neither Forfeiture nor Resignation took place* — then, in 
 conformity with the principle of Peerage Law as laid down by Lord Mansfield and Lord Hardwicke in the 
 Cassillis case in 1762 — where the question was whether it was competent in law to give to a new charter the 
 denomination of a new grant when it was impossible to shew a resignation of the old one, and where it was 
 laid down by those Noble and Learned Lords that it is impossible to hold any subsequent charter, whatever 
 may be its form of expression, as amounting to a new grant unless it can be shewn that the antecedent right 
 had been resigned f — in conformity with that principle, the Claimant submits that tJie Regrant, as it has been 
 called, of the Montrose Dukedom, 18th September 1489, was not a regrant in ant sense which can 
 DEROGATE FROM OR IMPLY A DERELICTION OF THE ORIGINAL HONOUR, and that it could in fact have been 
 nothing else legally than A charter virtually (and he has never said more than virtually) or Confirma- 
 tion, PROCEEDING UPON A RECOGNITION AND ACKNOWLEDGMENT OF THE VALIDITY AND SUBSISTENCE OF 
 
 THE ORIGINAL TITLE ; and that WHAT OCCURRED suBSECiUENTLY, the non-succcssion & /acto of the heirs of 
 the Duke, cannot impair that subsistence and validity. In fact, no other conclusion can be arrived 
 at ; because, if the Dukedom was not legally in the hands of the King, it could not be the subject of a 
 Regrant, properly so called. J 
 
 And that this was the actual fact appears still more clearly on comparing the Regrant 18th September 
 1489 with the original Patent. The Regrant follows that original Patent step by step, omitting only the allu- 
 sion to the Battle of Stirling, fought by James III. against his rebellious son, but reciting all the other reasons, 
 augmenting them in eulogy, and /or the reason omitted substituting another — and a reason particularly striking, 
 to wit, that the ancient Earls of Crawford, the predecessors of the grantee, had held their 
 
 FAMILY possessions (" DOMINACIONES ") HITHERTO BY THE TITLE OF EaRL (" TITULO CoMITATUS '') ; 
 
 WHEREFORE THE KiNG CHANGES THAT TITLE OP Earl (" CoMiTis TITDLUM "), as held by the representative 
 pro tempore of the family, into a higher, viz. that of " Ducem " or Duke — a clause sufficient by itself to 
 fix that the grant was in perpetuity, and not for life as contended by the Croion.% 
 
 * Such, as in all similar instances, would inevitably have appeared in the quequidem clause of the Eegrant, had it taken place. 
 
 t The words of Lord Mansfield were, " It is clear the King could grant nothing but what was resigned. Here 
 " the honours were not resigned, and therefore COULD not pass:"— And of Lord Hardwicke, " As the peerage was not 
 " resigned, it COULD NOT BE GRANTED. The Crown COULD NOT GRANT IT BY THE NovoDAMUS." — Speeches in the Cassillis Claim, 
 printed in the Appendix, infra, pp. 558, 560. 
 
 X Compare the regrant, by way of recognition, of the Earldom of Home, in 1636, infra, p. 538, and n. *. 
 
 § The phraseology of the respective documents may be best compared (as in the S. Case, p. 131, referred to infra, p. 170) by 
 
 exhibiting them in parallel columns, as follows, — the words and expressions common to both of them being printed in Italics: 
 
 Patent, 18th May 1488. Eegrant, with advice of Parliament, 18th Sept. 1489. 
 
 " Jacobus, &c.~Cedit namque regibus ad gloriam et honorem, " . . /aco^HS Qnartus, &c. . Recognoscens quod ce&'i recite 
 
 " dum persone preclari generis, suis preclaris exigentibus meritis, " ad gloriam et honorem, dam persone preclari generis preclaris exi- 
 •' dignitatibus inclitis preferuntur, ut exinde, cum suos cemerint status " gentibus meritis, dignitatibus inclitis preferuntur ut exinde cum suos 
 " et nomin» majoribus titulis decorari, ad grandiora virtuosiora " cemerint status et nominis [sic~\ majoribus titulis decorari ad qran- 
 " peragenda, magis ac magis, in suam laudem, regnique reipuhUce '' diora virtuosioraque peragenda,magis aomagis,in suam laudemreg- 
 " decorem et frugem, stiideant se ferveniius insudare ; Hinc est quod " nique et reipvhlice decorem etfntgem, studeant sefervencius insudare ; 
 " Nos, sedula meditatioue pensantes obedientiam actuakm, gra- " Pateat igitur universis, tarn presentibus quam futuris eundem 
 " t'-iinqtie obsequendam gratifcandam promptitudinem, quas fidelis et " dominum nostrum Segem, pensantem obedienciam actualem, gra- 
 " carissimus consanguineus noster, David Comes Craufurdie et " tamqm obsequmdam gratificandam prmiptitvdinem quas fidelis suus 
 " Dominv^ Lindesay, nobis indefessd intentione exhibuit multis rmdis ; " oonsanguineus David Comes Crawfurdie et Dominus Lindesay, et sui 
 " Et perspectatius attendentes, quod liberaliter, ut debebat, " predecessores incliti, predecessoribus dicti domini nostri Kegis 
 " personam suam, suosquenobiles et vassallos, pro persone nostre " Scocie Regibus, ac eidcm supremo domino nostra Eegi, indefessd 
 
ANALYSIS OF THE ARGUMENT. cm 
 
 It must be remembered too that by the evidence of the Duke's Protest, admitted by the Crown and urged 
 against the Claimant, James IV. had remitted to the Duke "omnimodam hujusmodi displicientiam " — the 
 ■WHOLE displeasure incurred through the Duke's opposition to his rebellion — and had received him, not parti- 
 ally, but absolutely into favour, on the sole condition of resigning the Sheriffdom of Forfarshire. And the Duke, 
 by that solemn contract between himself and the King, which he had duly implemented, was entitled on every 
 ground of law and equity (the contract being moreover compulsory so far as he was concerned) to the removal 
 of all displeasure on the part of the King, and to full and complete recognition of his Dukedom. James IV., 
 as has been proved, did recognise him as Duke, and in a manner which would have legally restored him had 
 he been affected by the Act Rescissory, — this action over, the King M'as functus, and could not undo what he 
 had done, — in accordance with this recognition and with the abjuration of displeasure stipulated by him as his 
 part of the contract, he bestows the highest [traise on the Duke's loyalty both to his father and himself in the 
 Regrant of the 18th September : — It is clear then (as already partly urged) that if the grant thereby made, 
 and which fell to be extended and expressed by the clerks of Chancery in the " carta super premissis con- 
 " ficienda," was merely for life, as contended by the Crown, the King and his advisers were completely in 
 mala fide, and the praise bestowed in the Regrant was a bitter mockery, while the restriction attempted was, 
 from the want of a resignation, quite legally innocuous. 
 
 The ONLY HYPOTHESIS therefore which can possibly reconcile the facts antecedent to the Regrcmit, as 
 proved, {on which antecedent and dominant facts everything depends, mid from which facts, on the principle 
 of priority of obligation, the point of view falls to be exclusively taken,) with the existence of that liegrant, is 
 this — that the King and Parliament, unable to resist the justice of the Duke's claims, and feeling the recogni- 
 tion of those claims unpalatable as condemning themselves, adopted the ' mezzo termine' — the compromise, as 
 it may be termed — of granting to him, as Earl of Craivford, u. new Patent of the Dukedom amd the estates, 
 proceeding from James IV. instead of James III., and bearing a statement of the reason for conferring the 
 dignity different from that in the original Patent, while it occupied its place in the eye of the world and 
 continued to the grantee and his heirs the same rights and p>rivileges — a Patent bearing no recital, on the one 
 hand, that the Dukedom was in existence, and none, on the other, that it had been granted by James III. 
 and annulled by Act of Parliament or otherwise, and, in short, leaving it open to the construction that it was 
 in furtherance and confirmation of the grant of the dignity which had been made by James III., — a Patent, 
 the granting of which was probably a matter of indifference to the Duke, as it could not legally derogate from 
 the original grant or affect his precedence, which was the same under the second Patent as under the first.* — 
 If this be an extraordinary procedure, the circumstances were extraordinary — and no other expilanation can 
 be discovered which does not brand the King and the Parliament with injustice, treachery, and folly. But 
 the Claimant, as throughout this point of the argument, merely suggests this as an hypothesis, taken for what 
 it may be worth. He takes his stand on facts, and on the strict legal interpretation of those 
 FACTS, and on those facts, alone, asks for the favourable report of the Committee. 
 
 It may be a consideration too, that the insurrection in which the Duke had not joined, and which the 
 Attorney -General represents as having been suppressed before the Regrant of the Dukedom, was actually at 
 that moment unsuppressed and in activity .f so that it is not likely that the King or the Parliament would have 
 dared to mock him with a life-grant at such a moment — he, as every one is agreed upon, firmly insisting upon 
 his rights under the original grant. Crippled as his power had been by the deprivation of his public offices, 
 the thirty territorial baronies which he still possessed might have contributed a formidable reinl'orcement to 
 the insurgent rebels. — And as for the conjecture of the Lord Advocate that he may have been induced to 
 acquiesce in a life-grant from the death of his eldest son by the hand of the younger, it may be sufficient 
 to say that the death of that eldest son took place, as by evidence in the Claimant's charter-chest and cited in 
 the 8. Case, p. 135, at the Castle of Inverquiech, North of Perth, on the feast of St. Ninian the Confessor, 
 
 " et corone tntamine et defensione, nostro etiam honore con- " intencione exhibuerunt multis modis ; propter que, et alia ipsius 
 " servando, frequenter exposuit periculis cum effectu, et pre- " condigna merita, et suis serviciis futuris temporibus impejidendis, 
 " cipufe ac novissime contra nostros infideles ligeos, qui se contra " idem supremus dominus noster Eex, ex debitosue regalis mag- 
 " nostram majestatem et vexillum in campo bellico apud Bfak- " nificencie, volens ipsum David amplioribus prosequi favoribus 
 " ness opponebant, — et pro suo servitio nobis in futunim impen- " gratie et honoris ; Ciim itaque predecessorum suorum, Craw- 
 " deudo ; Bundem David, nostrum consanguineum, ampliori volentes " furdie Comitum, dignS recolenda prioritas titulo Comitatus suas 
 " fulgere dignitate, et Comitis titulum supradictum in majorem ex- " dominaciones supradictas ab antiquis temporibus tenuerunt ; 
 " cellensioremgue mutantes, dictum David, consanguineum nostrum, " Hinc est, quod supremus dominus noster Bex eundem David; suum 
 " Ducem, ex TWstris certd scientid, potestatis plenitudine, et gratia " consanguineum, volens ampliori fulgerc dignitate, et Comitis titulum 
 " speciali, subliTnavimus, fecimus, et creavimus^* &c. " supradictum in majorem excelsioremque ^nutans, dictum, David, 
 
 *' suum consanguiiieitm, Ducem de Montros, ex suis certd scientid, 
 " potestatis plenitudine, et gracid spatiili, svhlimavit, fecit, creavit, 
 " et de novo erexit in Ducatum," &c. 
 
 * Compare (on this latter point) the argument by the counsel for the Earl of Glencaim in 1637-48, in the ' Minutes of Process,' 
 Appendix, infra, pp. 443, 444. — 'The Noble Chairman of the Committee suggests a vievr of the Regrant strongly resembling that in 
 the text, as may be seen infra, p. cxxxvi. It will be remembered, however, that the descriptien of 'Earl of Crawford' may have 
 been simply copied by the clerk from the original patent, which was his necessary and sole authority and warrant for the estates con- 
 veyed with the Eegrant. 
 
 t This is proved by a letter of James IV. to Sir Robert Arbuthnot of that Ilk, preserved in the Arbuthnot Charter-chest, 
 dated the 22nd of September 1489, four days after the Regrant of the Dukedom. It is expressed as follows :— " James, be the grace 
 " of God, King of Scottis, to owr lovit Robert of Arbuthnot of that Ilk, greting. Forsamekle as we suppos ze knaw the grete 
 " tressoun and usurpatioun made agains ws and oure autorite be Wilzame Erie Marchall, Alexander Master of Huntle, and Alex- 
 " ander Lord Forbess, and thair complices, in the making of certane ligs and bands at owr Castell of Dunbertane," &c. And a little 
 below, the King enjoins him, " Surely and sikkerly ger observe and kepe zour howsys and strenthis, to zour behuf and owrs, and ze 
 " sal report singler thank and rewarde of ws yerfore, and be mantenyt be ws as owr thankfuU and trew liege," &c.— This is dated 
 at " Strivelin, the 22 day of September, and of owr regne the secund zeu:."— Cited from Nisbet's System of Heraldry, tom. ii. App., 
 p. 83. 
 
CIV ANALYSIS OF THE AEGUMENT. 
 
 that is, on the 16th September, 1489, and thus only two days before the Regrant 18th September 1489. 
 Judging by the distance from Stirling, where the Parliament then sat, and other probabilities, the news could 
 hardly have reached the Duke, the King, or the Parliament, till the second day afterwards — that is, till the 
 18th September, the very day when the Regrant passed. The Lobd Advocate's conjecture is therefore 
 quite untenable.* 
 
 3. Addressing himself to the actual text of the Regrant 18th September 1489 and the Litera 19th September 
 1489, the Claimant would observe, 
 
 i. That the Regrant or Act does not proceed from the Parlicmtent exclusively of the Crown, as stated (a 
 thing unheard of hitherto), hut from the King,jpersonally, as the fountain of honour, "cum avisamento 
 " maturSque deliberacione Magni Concilii," with the advice of Parliament, as in the Oornwall and 
 Norfolk creations ; and that it does not state that the King may create the Dukedom de novo (that 
 being a matter within the King's sole prerogative), but does create it, absolutely and without 
 reference to any future act of the Sovereign ; the King, James IV., commanding and ordaining the 
 Dukedom then and thus created — or rather, literally, the family Eaeldom as changed thereby 
 INTO A DnKEDOM, to be held by David Duke of Montrose " secundum formam et tenorem carte 
 " super premissis conficiende" — according to tJie limitations of the ch. ,ter to he extended (of course 
 by the clerks of Chancery) in conformity to the oosditions pbemised. 
 
 ii. That, by Peerage Law and practice, as already explained and illustrated, this Act 18th September 
 1489, as proceeding directly from the Sovereign, the all-important point in honours, is A governing 
 instrtjmbnt or warrant, by which the "Carta" ordained to be executed by the 
 ctERXs OF Chancery falls to be construed and interpreted. The " Carta " is bound to be 
 in conformity with the warrant, — it must contain and carry out all that the warrant ordains and 
 contemplates, and nothing that is inconsistent with it ; and, if it deviates from the warrant, the Com- 
 mittee are bound to correct and construe it accordingly. The Act, for example, changes the title 
 OF Earl, as borne from ancient times by the Earls of Crawford, into that of Duke, 
 implying that the Earldom is still to subsist in a transmuted form as a Dukedom, and descend as it 
 descended previously ; and in accordance with this, the words " secundum formam carte " are added, 
 corresponding with "per formam doni " in England, and implying technically, as in the English 
 phrase, a limitation to heirs. The "Carta" to be executed — "super premissis conficienda" — 
 MUST therefore be an hereditary e,raji\, — and if otherwise, it is AT variance with its warrant, and 
 so far null and void. It is impossible to overrate the importance of this cardinal rule of Peerage 
 Law — which the Crown have entirely overlooh-d, as well in construing the Regrant and the Litera 
 as in construing the Procuratory and Instrument of Resignation of the Sheriffdom of Forfarshire and 
 the charter of wliich the Procuratory and Instrument were the warrants. To interpret the warrant 
 hy the mere formal instrument ordained to carry it into effect is to put the cart hefore the horse, 
 and entirely lose sight of the principle (above all others to be here observed) of priority of obligation. 
 
 iii. The question then arises. Have we the " Carta," the Patent which was " super premissis conficienda" 
 — and is it conformable to the luarrant ? — Now, 
 
 (1) It is admitted that the " Carta " is not " forthcoming " — there is nothing but a memorandum 
 or abstract of it in the Great Seal Register. — And this memorandum is, according to the 
 Lord Adyooate, a memorandum — not of the "Carta" — for the "Carta," although 
 ordained to be executed by the Act 18th September, was never extended — but of a 
 " Litera," or Letter, proceeding from the King, and which the Crown contend to be, 
 even in its abridged state, the governing instrument in this claim. Moreover, in this 
 abstract or memorandum the whole tenendas clause of the Litera is leit out. 
 
 (2) It is further admitted that this memorandum is " somewhat compressed," or, as the 
 Claimant expressed it in more homely language in his Case, " crammed " into the Register, 
 — that it is inserted at the foot of the page, not in its exact order in point of date, on a space 
 which had been left blank, and that the Litera is altogether (in the shape in which it comes 
 before the Committee) a " somewhat unartistic instrument'." But when it is contended 
 that the reason why it does not appear in its exact order of date is, that instruments were 
 recorded in the Register as they were brought in, and not always in their order of date, the 
 Claimant replies, that this particular memorandum or abstract was not recorded as broughtin, 
 whether in or outof orderof date — for if so, it would have been found in regular sequence in the 
 Register ; whereas, as proved by the Claimant, (independently of the internal evidence fur- 
 nished by its appearance,) the registration of the charter which succeeds it, at the top of the 
 succeeding page, states that the witnesses to that charter were the same, with one specified 
 exception, as those in the " carta precedenti," which " carta precedeus," evincing it was 
 a charter that immediately preceded, is now, since the insertion of the memorandum in 
 question, the penultimate. The insertion is therefore, on this ground alone, an ex post 
 
 facto interpolation in the Great Seal Register, — and as such, as occupying and entirely 
 filling up one of the spaces usually left blanh at the bottom of the page (which of itself 
 suggests that it must have been inserted after the entire volume in which it is found had 
 been filled and completed),! and as exhibiting omissions, et ceteras, and marginal additions, 
 
 * Vide infra, pp. 92 sqq. ; 168 sqq. ; 291 sqq. 
 
 t To the question of a Noble and Learned Lord (Lord St. Leonards), addressed to the Attorney-General, " Is there any 
 " other instance in that book" (the volume of the Great Seal Register, produced) " where there is so large a blank as there 
 " must have been in that particular place before this Litera was inserted?" infra, p. 197 ; the Lord Advocate replies— repeating 
 
ANALYSIS OF THE ARGUMENT. CV 
 
 as well as from its extremely slovenly appearance, as shewn in the facsimile of the two 
 pages of the Register in the Claimant's Original Case * and as appears from the original 
 Register itself, produced before the Committek, the Claimant contends that it cannot be 
 received as evidence and argued upon to his prejudice, — and the more especially so after 
 the scepticism evinced by the Crown with reference to the full, regular, and unexcep- 
 tionable registration of the original Montrose Patent 18th May 1488. 
 
 (3) Being so interpolated, the Claimant maintains that the entry is suspicious — for why insert 
 it in such a manner if all was above-board and fair ? There must have been a motive — it 
 could not have been one favourable to the Duke — and, when the Committee reflect on the 
 bitterness and intrigues of his enemies and on the violence of the times, an unfavourable 
 one may be easily surmised — with the view of anticipating and forestalling any possible 
 claim which might have arisen at or shortly after the Duke's death, either to the estates or 
 honours. At all events, it is not for the Claimant to apologise for this memorandum. 
 The fact is sufficient, that it is an interpolation, and such as, the Claimant submits, 
 could not be received in evidence as an insertion in a parish register. 
 
 But, even giving the insertion the credit due to honest intentions, (and the Claimant is 
 anxious to presume such of every one — unless where facts demonstrate that it would be 
 false charity in principle and treason to his own cause to do so,) he must represent that the 
 desperate effort to save luords in the insertion of a document of which some account was to 
 be (literally) crammed into the Register, where there was no sufficient space for its recep- 
 tion, might naturally lead to the omissimi of important words such as he maintains existed 
 in the original. At best then, the memorandum in question mu^t be considered as a hasty, 
 perfunctory performance, utterly unworthy to be seriovMy taken as evidence even in its 
 positive parts, while it woidd be absurd to found upon its omissions as evidence agg,inat 
 the tenor of other documents. Nothing can, indeed, be founded upon the Litera until pro- 
 duced in extenso before the Committee. 
 
 With respect to the explanation given that life-rent grants were usually recorded 
 merely in abbreviate, and only grants in perpetuity at full length, this, as the Claimant has 
 proved and as is stated in the evidence,f was not invariably the case ; while several instances 
 of contrary usage are given in theiS. Case, p. 129, and one (an abridged entry of a grant in 
 fee) precisely in point, and which was discovered in the course of the discussion in the 
 volume of the Great Seal Register which contains the Montrose Patent, is adduced in 
 evidence before the Committee. J But, whatever may have been the usage as regards 
 ordinary grants, this is unquestionably the first and the only instance of a Patent of 
 peerage being so abridged. The Lord Advocate in fact makes a distinction (as already 
 observed) between the "Litera" and the " Carta," and holds that no "Carta" was 
 executed at all. If so, the reference to the " Carta " in the abstract of the " Litera" — 
 " cum omnibus clausulis secundum formam carte " — must necessarily refer (as the Claimant 
 has all along maintained) to the original hereditary " Carta" or Patent, which, being 
 engrossed at full length in the Register, might render a full registration unnecessary, — 
 while the command of the King and Parliament, that a "Carta" should be "super 
 " premissis conficienda," i. e. in the terms premised in the Act or warrant, not having 
 been obeyed, it is rendered impossible to argue from the mere abridged " Litera " in 
 question. § 
 
 (4) But, accepting the Memorandum as genuine and unexceptionable, for the sake of argument, 
 the Claimant submits that, while, if restrictive, the Litera was and is to that extent null 
 and void in law, it may be held ex terminis, even as abridged in the Register, a reissue 
 of the original Patent, in precisely the same terms, and of the nature of an ordinary 
 Confirmation, so common in feudal times, — which indeed would appear to be implied, as 
 above intimated, by the words " de novo " in the Act or warrant of the 18th September : 
 —For, 
 
 (i.) The Memorandum exactly re-echoes (so far as it goes) the original Patent 18th 
 May 1488, and concludes as follows, — " Etc., cum omnibus clausulis secundum for- 
 " mam carte " — not " litere," as above remarked, — the import of which is, that the 
 original ' Litera,' thus abridged, contained all the clauses in the original " Carta," 
 or Patent : — Now, 
 
 the question as " whether there were other blanks in the book?" — " There are a variety of others . . quite as large and quite as 
 " important as this," infra, p. 235. But the Claimant would remark that the important point is, wluither such blanks are filled np 
 in the manner in which ffie blank that existed previously to the insertion of tlie Litera has been fitted up by that insertion. There is no 
 other scch instance. — It was pertinently observed, too, by the Chairman, in the course of the discussion — " Everything else 
 " HAS A HEADING TO IT ; BUT THIS " (the memorandum of the Litera) " appears to have been written so as to leave no room fob 
 " A HEADING AT ALL." — Infra, p. 98. 
 
 * The two pages may also be seen in facsimile in the Appendix to this volume, infra, between pp. 530 and 531. They 
 also exemplify the description of blank that was left by usage between the charters registered, and one of which blanks has been 
 subsequently filled up, as above stated, by the memorandum of the Litera. 
 
 t ' Minutes of Evidence,' pp. 15, 141, and Appendix, infra, pp. 533 sqq. 
 
 I 'Minutes of Evidence,' p. 141, and Appendix, infra, pp. 534, 535. 
 
 § In reference to a question of Lord Lyndhiibst, " In England it was not unusual to grant peerages for life in old times ; 
 " was that so in Scotland?" and the reply of the Attorney-General, " I am told it was so," — the Claimant may answer that the 
 only case preceding that of the Dukedom of Montrose (if a life-rent grant) was the creation of the Earldom of Strathearn in favour 
 of Walter Earl of Athol, for life, 22nd July 1427. Life-peerages were extremely rare at that early period. 
 
 P 
 
CVl ANALYSIS OF THE ARGUMENT. 
 
 (ii.) The intimation thus conveyed for the benefit of the public, by this concluding 
 phrase, could not imply that the Litera contained other clauses according to 
 the form or contents of the Litera, i. e. of itself. This would have been to 
 explain obscurum per dbicwrius, or by what was perfectly ignotwm. On the 
 contrary, it must be understood to refer to the previous unexceptionable " Carta," 
 the Patent of 18th May 1488, the only " Carta" in existence referring to the 
 subject, and of which, as observed, the Litera (so far as it goes) is an echo. 
 This would afford at once a clue or reference to fill up from an accessible 
 authority in the same record the deficiencies and blanks in the meagre abridgment 
 in question.* 
 
 (iii.) Coupling therefore, as is legally incumbent, the phrase " pro toto tempore vite 
 " sue," in the abridgment of the Litera, with the concluding phrase, " cum 
 " omnibus clausulis secundum formam carte," the limitation to heirs in the 
 ' Carta,' or patent referred to, must necessarily be understood as included in the 
 ' Litera.' 
 
 (iv.) This will be more readily acquiesced in when it is stated, that by Scottish legal 
 practice the words "pro toto tempore vite sue," or words precisely identical in 
 meaning, frequently preface a limitation to the heirs of a patentee in honours, — 
 as, for example, in the Charter or Patent of creation of the Barony of Altkie, 29th 
 July 1587, limited to Robert Keith, the patentee, '■'■pro omnibus sue vite disbus 
 " TASTUMMODO" (a remarkable adjunct), and, subsequently, " Georgio Comiti 
 " Mariscalli, suisque heredibus masculis," &c., — in the Charter or Patent, 4th 
 May 1627, of the Barony of Napier of Mebchiston, " Domino Archibaldo 
 " Nepare de Merchingstoun, militi, pro toto tempore vite sue, mt heredibus suis 
 " masculis," &c., — in the Charter, or Patent, ult. Feb. 1628, granting the Barony 
 of Cbamond to Elizabeth Lady Richardson "pro toto tempore vite sue," and to Sir 
 Thomas Richardson and " suis heredibus masculis," — in the Patent, 22nd May 
 1636, of the Earldom of Home, to the grantee " pro toto sue vite tempore, 
 " suisque heredibus masculis,'' and many others.f — While in very many early 
 charters the destination is to the grantee solely (without mention of heirs) in the 
 dispositive clause, and the limitation appears only in the tenendas clause ; J and 
 in one of these charters, adduced by tlie Claimant, of the 2nd January 1390, a 
 property is granted to the grantee for homage to be done to the King '' pro toto 
 " tempore vite sue" — the same words as those used in the abridged Litera — 
 with a limitation to heirs in the tenendas.^ — Now, 
 
 [1] Supposing the Litera,- or second Patent, in its entire state, to have 
 been conformable to the first class of these instances — in other words, 
 supposing the grant in the dispositive clause to have been to David 
 Duke of Montrose "pro toto tempore vite sue, et heredibus suis," 
 the clerk, in abridging the Litera, so expressed, into the Register in 
 the hasty and slovenly manner in which it appears there, may have 
 omitted the words "heredibus suis," and thus given it, in the Memo- 
 randum, the appearance of having been for life only. And, 
 
 [2] Supposing the entire Litera to have been conformable to the second 
 class of instances, in which the limitation appears only in the tenendas, 
 in that case the limitation may have been omitted through the fact 
 that in this (as the Attobney-Geneeai, rightly characterises it) 
 "somewhat unartistic" document the tenendas is omitted altogether, 
 and only represented by an "etc."|| — While, 
 
 * The abbreviated precepts of grants of baronetcies of Nova Scotia end after such identical form in the record, " Et cetera, in 
 -" communi formS cartarum baronettis concessarum," — thus referring to other charters fully recorded (like the Montrose creation in 
 1488) at the institution of the order, and serving as a formula and criterion for supplying the necessary clauses, certainly including 
 the precise limitation of the dignity. — Case, p. 26; 8. Case, p. 124. 
 
 t See the Case, pp. 26, 27 ; S. Case, p. 124 (where many other instances are enumerated) ; the ' Minutes of Evidence,' pp. 
 131 sqq. ; and the Appendix to this volume, infra, pp. 536 sqq. 
 
 J Instances of this are given in the Appendix, infra, pp. 539 sqq. The Claimant might have put it still stronger, for, as 
 Erskine says, " In this clause" (the Dispositive) " is also inserted by our present style the order of succession and the limitations 
 " upon the fee, which by our ancient forms were inserted in the clause of ' tenendas.' " — Institute, B. ii. Tit. iii. § 23. 
 
 § This charter, which was unduly apologised for by the Claimant in the hurry of the discussion, in consequence of an objec- 
 tion being started which at the moment appeared relevant and sound, but which had been duly adduced in evidence before the 
 Committee, is printed in the ' Minutes of Evidence,' p. 140, and also in the Appendix to this volume, infra, pp. 539 sqq. with 
 requisite remarks and illustration of its bearing. The conversation which took place on the subject of the charter may be seen at 
 pp. 295, 298, infra. See the concluding paragraph of note §, p. 356, infra. 
 
 II The charter of 1390 and two others of this second class of instances are given in an abridged form, on the same principle 
 as the Litera 19th September 1489, in the Appendix, infra, pp. 540, 541, in order to shew that, so abridged, they would alt be held, 
 on tlie principle of construction adopted by the Committee, to be mere liferent grants. The Claimant stated this with reference to the 
 Charter 1390 before the Committee, as may be seen infra, p. 293. None of this second class of grants (with the exception of the 
 Charter 1390) were cited or adduced in evidence before the Committee for this special purpose. Nor was any argument founded 
 upon them, with the exception indicated. 
 
ANALYSIS OF THE AEGUMENT. CVii 
 
 [3] In either case, the deficiency, as in analogous instances, is fully made 
 up by the intimation at the conclusion, immediately after the " etc.," 
 " cum omnibus clausulis secundum formam carte " — according, that is 
 to say, to the Patent, or " carta," * 18th May 1488, from which the 
 destination falls therefore to be supplied, — the words " secundum 
 " formam carte," analogous to the English " per formam doni," corrobo- 
 rating the interpretation contended for.f 
 
 (5) The Litera therefore resolves itself collectively into a grant or Confirmation to the Duke of Mont- 
 rose for life, and to his heirs after him, in terms of the original Patent.| 
 
 (6) The Crovtn, it is to be observed, admits that the above explanation would be satisfactory, were it not 
 for the fact, that, looking to the charter or Litera, the words that the Claimant wishes to import into it are 
 " not there." Of course, they are not ttere— because there is nothing before the Committee but a 
 meagre memorandum— the charter or Litera itself is (by general admission) " not forthcoming ;" but the 
 words ought to have been there, in conformity with the warrant for the document thus abridged — the 
 Claimant shews how by Scottish practice they may have been there— and he contends that by the 
 accepted rules and practice of Peerage Law they must be peesumed to have been there • and 
 that, hy filling up the omissions and et ceteras of the memorandum with words such as a/re found in 
 entire documents of a similar description, and such as are pkesceibed in the warrant and neces- 
 sitated BY the ANTEOEDEKT CONDITIONS UNDER WHICH ONLY A RBGRANT COULD TAKE PLACE IN 
 THIS INSTANCE — that is, by introducing in the place of the "etc." which represents the entire 
 tenendas clause in the memorandum of this Litera, the limitation which must have existed in the 
 tenendas of the Litera itself, if conceived in conformity with the warrant, and which limitation was 
 frequently omitted (as has been shewn) in the dispositive clause of ancient charters — by doing this, 
 hy thus presuming in favour of the integrity and correctness of the original and its accordance with 
 its warrant, as the Committee are bound to do — the document, as it appears before the Com- 
 mittee, MAY become consistent WITH TRUTH INSTEAD OP FALSEHOOD, WITH JUSTICE INSTEAD OF 
 
 injustice and INEPTITUDE — to the Saving of the credit of the Great Seal Register, of the clerks 
 of Chancery, of James IV., and possibly of other parties — whose reputations are all imperilled — the 
 matter being to the Claimant himself substantially a matter of indifference. Both the Attobney- 
 Gbneeal and the Lord Advocate argue throughout as if the Litera were, not a mere memorandum, 
 hut an entire document, and as if they knew from the abstract of the Litera its whole contents.^ 
 
 (7) But, even independently of the rule in Peerage Law that a Patent is to be controlled, interpreted, and 
 corrected (if necessary) by the warrant, a simple reference to the Act 18th September 1489, as if 
 in ordinary matters, must dispel all doubt as to the hereditary character of the Litera — the Act 
 existing in extenso, the Litera only in abridgment. Had it been intended to restrict the honour to 
 the Duke's lifetime (which the Crown was not competent arbitrarily to do), such intention would 
 naturally have been expressed in that Act. But no such intention there transpires, — there is no 
 restriction, no rescission — on the contra/ry, the tone and tenor of the Act express the most unqualified 
 praise and approbation of the man whom, under the adverse interpretatvm, it would be intended to 
 •II 
 
 (8) Moreover, in " carte conficiende," ordained to be executed by warrants of regrants of honours 
 " de novo,'' as in the Actor warrant in question, the limitation and mode of tenure are ahvays (so 
 far as the Claimant is aware) heritable, and never confined to the grantee for life, On that suppo- 
 sition the Litera would be unparalleled. And in such "carte conficiende," proceeding on reserved 
 powers in the warrants that preceded them, the substitutions are more copious and full than in the 
 usual patents of honours, standing alone, without such further accompaniment. The phrase 
 "secundum formam et tenorem carte" in the Act, equivalent, like the corresponding phrase 
 " secundum formam carte" in the Litera, to the English " per formam doni," implies a limitation to 
 heirs. And if so, the warrant implying a grant to heirs, the Litera, passed in order to efl%ctuate 
 more fully the intentions of that warrant, cannot be supposed to have excluded heirs — or, if it 
 attempted to do so, it must have been in so far incompetent and illegal.^ 
 
 * This is the express description of the Patent in the title prefixed to it in the Great Seal Register, Appendix, infra, p. 375. 
 
 t The argument has been stated more fully here than in the Claimant's Case and before the Committee in so far (only) 
 as the Charter 1390 is described as one of a class of charters in which the limitation is exclusively found in the tenendas clause. But 
 these charters are familiar to every Scottish antiquary, and are to be met with in almost every page (for example) of the volume of 
 the Great Seal Register printed under the Record Commission. The very patent of the Dukedom of Montrose 18th May 1488, 
 illustrates the prevalence of the early tendency and usage, inasmuch as, although David Earl of Crawford personally is created 
 Duke of Montrose " hereditarie " in the dispositive clause, the only exact and formal words of limitation, viz. " heredibus suis," are 
 found in the tenendas clause exclusively.' — To the question of Lord Ltndhurst, at p. 179 infra, and which the pressure of time, the 
 fact of the evidence not being in print, and the consequent confusion afforded no opportunity for answering, it may be replied 
 here, that in the first class of instances above cited " the tenendum sets out the estate a second time " in each instance, as may be 
 seen by reference to the documents as printed in the Appendix, infra, pp. 536 sqq. — To a subsequent question of Lord St. 
 Leonards, whether the Claimant has any case "of an estate for life by express words, and then a tenendum to heirs or heirs of the 
 " body? " the Claimant alleges the Charter 1390 and the other charters above mentioned, — referring the reader moreover to the 
 explanation of the Claimant's Learned Counsel on the ground of time, the non-printing of the evidence, &c., at p. 297 infra. The 
 Claimant can only congratulate himself that under such adverse circumstances his Learned friends should have succeeded in laying 
 his case so clearly and distinctly before the Committee as it actually and ultimately was, in its leading facts and broad features. 
 
 X Case, p. 27 ; S. Case, pp. 124, 125; Infra, pp. 96 sqq.; 172 sqq., 291 sqq. § Infra, pp. 172, 173. 
 
 II Case, p. 27; S. Case, p. 125; Infra, pp. 170, 171. If Case, p. 28; S. Case, p. 125. 
 
 P 2 
 
cvm ANALYSIS OF THE ARGUMENT. 
 
 (9) The subjects conveyed with the Dukedom in the " de novo" creation are not specified in the Act or 
 
 warrant,— thus implying and necessitating a reference to and homologation of the previous patent 
 of 18th May 1488, where almie they were to he found. This is illustrated by the analogous instance of 
 the creation of the Dukedom of Ross by James III., 29th January 1487-8, in favour of Prince 
 James, his second son, as recorded in the Books of Pariiament : — " Eodem die . . Rex creavit 
 " filium suum Jacobum secundo-genitum Ducem Rossie, Marchionem de Ormond, Comitem de 
 '' Edirdale, alias nuncupatum Ardmanach, Dominum de Brechin et Nevare, &c. et concessit sibi 
 " terras dominiorum predictorura cum pertinentibus, cum tenentibus, tenandriis, et liberetenencium 
 " serviciis, et omnibus aliis pertinentibus, secundum tenorem cartarum et evidenciarum sibi dbsuper 
 " PEius confectarum, et nunc etiam conficiendarum." The fief or Comitatus of Ross and the other 
 lands here mentioned had been granted heritably by two charters in 1480 and 1481, and those 
 previous grants here served as the test or criterion of descent in the creation of the new honour in 
 1487-8 ; while they fell necessarily to be either verbally or tacitly referred to and homologated in the 
 new charter "nunc etiam . . conficienda," or conveyance to be executed in fulfilment of the King's 
 intention thus announced. And in the Montrose instance, in precise accordance with the above, 
 the words " secundum formam et tenorem carte super premissis conficiende " in the Actof Parliament 
 18th September 1489 — (following immediately upon the statement that the King ' ' de novo erexit " the 
 grantee " in Ducatum " — the subjects conveyed with the Dukedom not heing spjecified in the Act, and 
 only falling to be ascertained by reference to the Patent 18th May 1488) — must be understood to 
 imply (as in the Ross precedent) ' ' according to the form and tenor of the charter formerly executed,'' 
 that is, of the Patent 18th May 1488, " and now again to be executed in conformity with what has 
 " been stated." This intention may be presumed to have been carried into eftect in the Litera of 19th 
 September 1489, of which we have merely an imperfect notice in the Register.* 
 
 (10) The Act, or Royal and Parliamentary warrant in question, furnishes moreover, as already partly 
 stated, and especially when compared in its phraseology with that of the patent 1488, a strong and 
 special argument in favour of the view thus taken of the Litera. All the alterations made are in 
 
 favour of Duhe David and of the Claimant. The omission of the Duke's good service at Blackness 
 and of the epithet of personal affection " carissimus " is not to be wondered at, and of no legal 
 importance. But the " ampliori volentes fulgere dignitate, et Comitis titulum supradictum in 
 " majorem excellensioremque mutantes " of James III. swells into " volens ipsum David amplioribus 
 " prosequi favoribus gratie et honoris " in the Act of September ; and the following entire additional 
 clause is then first introduced — " Cum itaque predecessorum suorum, Oraufurdie Oomitum, digne 
 " recolenda prioritas titulo Comitatus suas dominaciones supradictaa ah antiquis temporibus 
 " tenuerant ; Hinc est, quod supremus Dominus noster Rex eundem David, suum consanguineum, 
 " volens ampliori fulgere dignitate, et Comitis titulum supradictum in majorem excelsioremque 
 " MUTANS," &c. — in which the fact of the Duke's predecessors having held their possessions by the 
 title of Earl is alleged as a cause for changihg their Earldom into the higherdignity of a Dukedom 
 — which Dukedom must of course have been intended to descend heritably, as the Earldom did 
 before. It is impossible to overlook the weight of these expressions — rendering the Regrant, if 
 possible, even stronger and more explicit than the original Patent ; and the reason assigned is incom- 
 patible with the idea of the Litera grounded upon such a basis being a restrictive one for life ; while, 
 on the contrary, it very strongly confirms the view taken of the Litera in the present argument.f 
 
 * Case, p. 28 : S. Case, p. 125. 
 
 t The Claimant may observe that the grant of the Dukedom of Lennox, or, as it is entitled, the " Constitutioun of the 
 " Erldome of Lennox in a Duikrie," 5th August 1581 — which he had intended to bring forward in the discussion on heirs— is con- 
 ceived in precisely parallel terms ; the King reciting his former creation of his cousin Esmfe Stuart as Earl of Lennox to him and 
 his " aires," in consequence of his " earnist desire of the standing of the said Hous of Lennox in the possessioun of his nixt cousingis 
 " maUl of the same Hous and Blude," — and then proceeding, " And now his Majestic, having bre to honoure and 
 
 " advance the Hous quhairof his Majestie on the pairt [of his] dearest father is desoendit, for the memorie of his noble and worthie 
 " of his stok and familie, and for the gude and worthie desei-ving of the said [Earl] of Lennox, his dearest cousing, 
 
 " toward his Majestie, . . . hes thairfore maid, creat, erect, and incorporat the said Erldome of Lennox in ane haill and fre Dukerie, to he 
 " callit the Dulterie of Lennox in tyme miming, . . and als hes maid, constitute, nemit, and ordanit in tyme cuming his said dearest cousing 
 " Esme Duk of Lennox, Erll of Dernelie, Lord of Auhigne, TorloUoun, and Dalkeith, . . to be broukit, joisit, usit, occupeit, and possest 
 " be Mm siclike and als frelie in all respecteis and conditionis as ony utheris hes broukit the title, richt, and possessioun of quhat- 
 " sumevir Dukerie, Erldome, Lordsohip, or Baronie within this realme in tyme bygane,'' &c. — but without any express limitation of the 
 Dukedom, or allusion to heirs, whatever. According to the argumsnt of the Ceown, this ought to have been a mere life-rent grant, — and yet 
 the Dukedom descended under it till the failure of the direct male line in the reign of Charles IT., when that monarch succeeded as 
 collateral heir male, and was retoured accordingly in the whole Lennox succession ; after which he regranted the Dukedom to his 
 illegitimate son on the 9th September 1675, stating in the Patent of that date, that the dignity belonged to him (the King) " tanquam 
 " heredi musculo nuper Duels Lennoxie"— the Duke being the male descendant of the patentee in 1581, to whom Charles II. was 
 solely collateral heir male. The inference of the Cbown from the non-mention of heirs is therefore quite unwarranted in the case of 
 the Montrose Regrant 18th September 1489.— There are other curious parallelisms here also,— the words " in ane haill and fre Dukerie, 
 " to be callit the Dukerie of Lennox in tyme cuming," are exactly the " creando omnia predicta in unum merum et liberum Ducatum, de 
 " Montrose nancupandum " of the Litera, coupled with the King's address " Pateat igitnr universis, tam presentibns quam futuris," and the 
 reference to the tenure " ab antiquis temporibus " of the " Comitatus" now " changed" into a " Ducatus," coupled with the stipulation for 
 service " futuris temporibus," in the Regrant 18th September, the warrant for the Litera, and by which that Litera falls to be ruled 
 and governed. For a full history and investigation of the Lennox case, in itself and in its parallelism with that of the Dukedom of 
 Montrose as re-created in 1489, see the Appendix to the Address, supra, pp. lxxvi sqq. It may be sufficient to state here, generally, 
 that the absence of a distinct limitation, as in the Montrose Regrant and the Lennox creation, is in fact rm proof that a peerage is granted for 
 life only, especially if there be a collateral reference, as in the Lennox creation and Montrose Regrant, rendering a more specific limitation 
 superfluous. The Lennox patent is recorded in the Register of the Privy Council of Scoaaud, and will be found in the Appendix, 
 infra, p. 531, u. *. 
 
ANALYSIS OF THE ARGUMENT. cix 
 
 (11) The Claimant's view of the Regrant, viz. that, the Act Rescissory not having cut down the Dukedom, 
 the Regrant could only be of the nature of a Confirmation, and passed in order to save the credit ot 
 the rebel faction — a view founded on the proofs of Royal recognition of the honour and of the 
 actual enjoyment of the estates at the moment when the Regrant was executed — is further supported 
 by the most remarkable fact (to be hereafter noticed) that no recital is given in the qiiequidem, either 
 oftlie Act or the Litera, of tlie mcmner in which the lands granted with the Dukedom and described {in 
 the Litera) as "nunc Regi pertinentibus " had come into the Royal hands — such recital being never 
 omitted, even in abbreviates of charters, as has been proved by the Claimant ; * and if the estates in 
 question had reverted through the Act Rescissory, the fact would infallibly have been stated, as in oil 
 similar instances where Acts of Revocation have so taken effect. The Claimant submits therefore 
 that, taking the admitted facts, that the Duke had been duly inducted into the estates, that he was 
 in receipt of the rents of Kinclevin at the time of the Regrant, that he did not resign the estates, 
 and that there is no mention in the quequidem of the estates having reverted to the Crown through the 
 Act Rescissory — all together, as testifying to the truth of the matter at the moment of the Regrant 
 — the statement in the Litera that the estates purporting to be granted thereby then belonged to 
 the King, and not to the Duke, is (whether the expression of a compromise on the part of the 
 Crown, or not) erroneous, and cannot be insisted upon to his (the Claimant's) prejudice.f 
 
 (12) Moreover, as admitted, and as the Claimant must again repeat and enforce, the Litera does not 
 proceed upon a Resignation ; which was indispensable if it were intended to void or annul the 
 original Patent 18th May 1488 — that Patent (as already abundantly proved) being in no wise 
 affected by the Act Rescissory. On the contrary, the Claimant conceives (in accordance with the 
 Cassillis decision already cited) that whenever a subject previously granted is granted " de novo " by 
 the Sovereign without any statement that the original grant has been resigned or annulled, the new 
 grant can only be considered as a confirmation or renewal of the old one, to stand along with, and 
 not to supersede it. Moreover, the circumstances already stated prove that the original Patent, 18th 
 May 1488, was still carefully consulted and kept in view. 
 
 (13) Finally, it may be submitted whether the difficulties attendant upon the Litera (holding the 
 notice of it to be genuine) can be reconciled on any other hypothesis than the one now proposed, — ■ 
 hy which (if it be not too much to assume) every thing is rendered clear and consistent. No expla- 
 nation, it may be added, can be legally admissible, which does not combine and reconcile the two 
 phrases " pro toto tempore vite sue " and " cum omnibus clausulis secundum formam carte," which have 
 been the subject of the above discussion, according to the admitted principles of law and justice, 
 which require that every document shall be taken in its integrity, and not in part or in piecemeal : — 
 And none, either, which interprets the Litera otherwise than in conformity with the warrant on 
 which it proceeds, the Act of Parliament 18th September 1489. 
 
 iv. The conclusion the Claimant comes to from the preceding considerations may be expressed in the three fol- 
 lowing propositions : — 
 
 (1) That the' Litera' of the Dukedom of Montrose (even supposing an accurate account is transmitted, 
 
 and not a garbled entry or interpolation) was either, with the relative Act, a virtual con- 
 firmation or regrant, in terms of the original Patent of 18th May 1488, after a manner of frequent 
 occurrence in feudal times — perfectly valid and effectual, cmd, like it, including the Claimant : 
 —Or, 
 
 (2) That if, notwithstanding the explanation above given, the Litera is to be understood as re- 
 strictive or for life only, it must be considered as a brutum fulmen, absolutely null and void 
 in law, 
 
 (i.) As not proceeding on the indispensable preliminary and legal requisite of a Resignation, 
 which per se is sufficient ; and, 
 
 (ii.) As at variance so far, and not properly in conformity with the tenor of the Act of the 
 preceding day, on which it proceeds, as its warrant, and which we possess in extenso : — 
 
 "While, 
 
 (3) Under actual or existing circumstances, 
 
 (i.) The original Patent 18th May 1488 being legally unaffected by the Act Rescissory ; and, 
 
 (ii.) Matters being completely fixed and foreclosed in law by the Royal Remission and 
 Recognition, the Litera, or Second Patent, whether confirmatory or restrictive, can 
 
 NEITHER ADD TO NOK DEROGATE FROM THE VALIDITY OF THE SAID ORIGINAL PATENT 
 
 — on which therefore the Claimant confidently rests his claim.J 
 
 4. Lastly, and to terminate this argument : — Even if the Duke " acquiesced" in the Act Rescissory (of which 
 there is not a scintilla of proof) — if even he was under the impression that it was effective and cut down his 
 
 * Vide S. Case, pp. 12 sqq. ; 28 sqq., — Supra, p. vii ; and Infra, p. cxxv. 
 
 t Statements, such as the above, in royal charters granted in times of turbulence and political struggle are not always impli- 
 citly to be depended upon, as has been shewn incidentally in the case of the Glencaim patent 28th May 1488, in which James III. 
 describes as his own property and makes a grant of lands which were in reality and legally the property of other parties who 
 had not been legally denuded of them, as decided by the Supreme Civil Court (with simultaneous recognition of the dignity) in 
 1516-7. Vide supra, p. xli, and Appendix, infra, pp. 407, 416. — The probability, however, is (if so easy an explanation can be 
 ventured upon), that the words asserting this property on the part of the Crown were (like the designation of David ' Earl of Craw- 
 ' ford ' at the beginning alike of the Act and the Litera, and the description of the estates, as to which the Act is silent) simply 
 copied by the clerk from the original patent or " carta," in which those words occur in precisely the same order, sequence, and effect. 
 
 t Case, pp. 24 sqq. ; S. Case, pp. 122 sqq. ; Infra, pp. 91 sqq. ; 166 sqq. ; 290 sqq. 
 
ex ANALYSIS OF THE ARGUMENT. 
 
 Dukedom— and "accepted" a new and restrictive Patent— as supposed and suggested by the Ceowk, smcA 
 acquiescencs, impression, or acceptance on his part could fwt {as elsewhere observed) gime legal validity to 
 the Act, or defeat his rights, or those of his heirs, under the Patent 18th May 1488, so long as there was neither 
 Mesignation nor Forfeiture, arad so long as the Act Rescissory did not legally a/pply to the Patent. 
 
 And even had be actually agreed with the King, as suggested, to restrict the Dukedom to his lifetime and 
 exclude his younger son and his heirs, that could not, by the Norfolk judgment, have affected those heirs, there 
 being no special revocation in their case,— oi-, as expressed in the original Latin, "pro eo quod nulla jit 
 " mentio in eodem. de aliqud speciali revocatione stili, nominis, vel hmoris ipsim nwper Duds VBL dictobtjm 
 " HEEEDUM suoEUM." Vide supra, p. xvii. 
 
 The Claimant therefore submits that, by exhaustion of all other possibilities, and by its own internal evi- 
 dence, the Regrant could be nothing but a virtual Confirmation of the original Patent ; that the Litera falls to be 
 interpreted by the Act 18th September 1489, its warrant ; and that that Act being, by the admission of the 
 Cbown, " capable of a twofold construction," the construction proposed by the Claimant is the only one con- 
 sistent with the antecedent facts, and admissible under established Peerage Law,— the legal principles of strict 
 interpretation in penal statutes and " in dubiis benigniora semper sequenda sunt," especially as affecting honours, 
 falling always to be kept in view. The Claimant merely urges this inasmuch as the point has been pressed 
 so much against him ; for he must again repeat that the Eegrant is, in fact, wholly immaterial to the present 
 claim, as exclusively hosed on the original Patent ISth May 14:88— except, under the first Head of the 
 argument, as affording the testimony of James lY. himself to the cardinal fact that the original hereditary 
 creation could not be, and was not actually, "prejudicial'" to him, and, under tJie second, as illustrating the 
 import of the m-iginal limitation. The Claimant has advanced no claim undee the Eegbant.' 
 
 Observation. 
 
 To a question pointedly put to the Claimant by a Noble and Learned Lord (Loed St. Leonaeds) during 
 the opening, as to what he considered to be " the true construction" of the Regrant by James IV. 
 with advice of Parliament, 18th September 1489, he replied that " it would confer the dignity of 
 " Duke of Montrose in the same line of succession as the Earldom of Crawford. But," said the 
 Claimant's able and learned representative, " I do not wish to anticipate a part of the argument 
 " which win arise hereafter. I take it that iftJie Act of Parliament had stood alone, in which the 
 " title of Earl of Crawford, which was then settled upon the heirs male of the first Sari, was changed 
 " into a Dukedom, the Dukedom would follow in the same line of succession. And that, if it stood 
 " alone, it would he a Dukedom with the same limitations as the Earldom. But to go now into 
 " that question would he anticipating the point arising upon the Charter itself," i.e. the Patent, 
 founded upon, of the 18th May 1488. Infra, p. 100. — The Claimant need scarcely add that he has 
 claimed exclusively (hitherto) under the original Patent, and that, with respect to the hereditary 
 character of the Regrant, he said much less on the subject than would have been necessary had he 
 not reserved such expose for the second part of the discussion, on the question of the limitation. 
 
 For LoED Redesdale's view of the Regrant, reference may be made to p. cxxxvi, infra. 
 
 Opinions of the Committee. 
 
 LoED Chanoelloe. — "The dignity" having been "annihilated" by the Act Rescissory — the Duke of 
 Montrose having been deprived " either by force or fraud" of some of his possessions, and, by submitting 
 to this, having "made his peace, to a certain extent, with" James IV., the King "granted him anew the 
 " Dukedom, but granted it to him only for the term of his life." In proof of this, " we have an Act of 
 " Parliament, 18th September 1489, which says, ' Be it known . . that . . our Lord the King, considering 
 " ' the obedience and . . promptitude . . which David Earl of Crawford . . and his predecessors . . have 
 " ' exhibited towards the predecessors of the said our Lord the King, and towards the same our Lord the 
 " ' King, . . on account of which, and other his condign merits, and his services to be rendered in future 
 " ' times, the same our . . Lord the King, being willing, from the debt of his regal magnificence, to pursue 
 " ' the said David with still ampler favours of grace and honour ; and since moreover the previous Earls of 
 " ' Crawford . . have held their . . Lordships from ancient times by the title of Earldom ; Hence is it 
 " ' that our Lord the King, . . willing that the said David . . should shine with ampler dignity, and 
 " ' changing the foresaid title of Earl into a greater and higher one, has . . anew raised the said David, his 
 " ' cousin, Duke of Montrose, to a Dukedom, willing him to enjoy . . the name and prerogative of a 
 " ' Dukedom, according to the form and tenor of the charter of the said our Lord the King, to be executed in 
 " ' favour of the said David Duke of Montrose upon the terms premised,' — the Act of Parliament indicating 
 " that the King was anxious that he should be a Duke by the title of Duke of Montrose in terms of the 
 " grant — ' secundum formam et tenorem carte . . Domini . . Regis dicto David Duel de Montross super 
 " premissis conficiende.' 
 
 " The charter . . made pursuant to that Act of Parliament . . is not forthcoming, . . but " the registration 
 is, " and persons conversant with those books" (the Great Seal Register) "tell you that . . in cases of grants 
 " . .to parties of fee-simple property (and probably the same thing would apply to a title) they are entered 
 " at full length very often, and when a life-interest is given, they are entered shortly, a mere sort of abstract — 
 " although that is not perhaps as an absolute and universal rule. . . On the day after the passing of that 
 " Act . . you find this entry in the Register, 'A Letter has been given to the Earl of Crawford, creating 
 " ' him Duke of Montrose for the whole term of his life,'" &c. " Can anybody entertain a rational doubt 
 " that it was under that grant that the Duke held the property which he did hold, and all that was connected 
 " with it?" " If you want to see whether that was so or not, consider what you would expect to be the 
 " state of circumstances if that was the truth, and what you would expect to be the state of circumstances if 
 
 * S. Case, p. 135; Infra, pp. 99, 175, 179. 
 
ANALYSIS OF THE ARGUMENT. CXi 
 
 " that was contrary to the truth. You find that everything harmonizes with the supposition that it was 
 " under that grant, and that alone, that the Duke held his honours and his estates (the estates which were 
 " coupled with the honours), and is quite inconsistent with the hypothesis that he held it under anything 
 " else."— 7n/ra, pp. 316, 318, 319. 
 
 LoED St. Leonabds. — The Duke having resigned the Sheriffdom of Forfarshire, " very shortly after he is 
 " partially restored to favour ; and then comes the Regrant of the Dukedom. Now . . compare that 
 " Regrant" (the Act 18th September 1489) " with the original grant. . . What do you find ? The original 
 " grant was in the strictest . . terms hereditary, to him and his heirs. What do you find in the Regrant? — 
 i' which is to be carried into effect by a regular charter." It is " wholly silent about any hereditary right 
 " or succession, . , wholly silent as to any heirs of any sort or kind, beyond the grantee's own life. . . I 
 " should have been of opinion, upon that document alone, that the Dukedom was granted only for life. . . 
 " The estates granted by the original charter . . are regranted with the same dignity, and the same title is 
 " regranted without the former words of limitation. . . And . . the Crown, in making a regrant of these 
 " estates, . . asserts the title of the Crown to these estates ; it calls them the estates of the Crown. . . Now 
 " they could only be the estates of the Crown if the grant of 1488 had been annulled ; therefore that of itself 
 " would go a great way. But what . . are the services and considerations which induced James IV. to 
 " make this grant ? Nearly the same, mutatis mutandis, as in the original grant, which is almost copied 
 " here. It was then services . . to be performed, not to the dead monarch of course, but to the living 
 " monarch. To whom is the grant ? To the Earl of Crawford. Why, what a mockery it is to talk of that 
 " being a Confirmation to the Duke I How is it possible for any man living, as a lawyer, to say, that it was 
 " a Confirmation to the Duke ? . . . Can . . there be any question about . . the true mode of drawing a 
 " Confirmation . . if the object had been to confirm to the Duke the Dukedom granted in 1488 ? . . There 
 " is not a single word in that grant which can be twisted or made into anything like a Confirmation ; but 
 " the whole points to a new grant. And it regrants to the Earl of Crawford the title of Duke." 
 
 " It is said" by the Claimant " upon this instrument, that you are to imply a limitation to heirs. . . We 
 " are not . . under the necessity of discussing this question, because we know what follows." The ' Litera' 
 " upon the Register," 19th September 1489, " begins by telling you in so many words, . . in the most 
 " plain and explicit terms, . . that the Dukedom had been regranted to the Duke for his life, and also that 
 " there had been granted the estates — because the grant of the Dukedom the second time" (the Act 
 18th September) " said nothing about the estates ; the grant of the estates depended entirely upon the 
 " ' Litera.' . . The ' Litera' . . states them to have been given ; it speaks generally of rights and privileges ; 
 " and then you find the words et cetera. Your Lordships are probably not quite so conversant as my Noble 
 " and Learned friend" (the Loed Ohancbllob) " and myself are with those words; perhaps you are not 
 " aware that Lord Coke, in his work upon Littleton, speaks of the extreme importance of et cetera, and he 
 " actually collects every instance of an et cetera which he can find, and he tells you you will find all these 
 " et ceteras at such and such places.* Now I never before knew so much weight laid upon an et cetera as 
 " there has been at your Lordships' bar. It is said that that et cetera is to import, contrary to the very 
 " words of the ' Litera,' that there is some limitation beyond a limitation for life ; and we have had produced 
 " and referred to documents of all sorts to shew that there have been in the law of Scotland grants for life 
 " in so many words, and that in one or two instances those grants extended to heirs. Generally speaking, 
 " they were . . what in this country would be called remainders. There is nothing extraordinary in that; 
 " but in one instance, there was an attempt to prove that there was a grant to a man during his life in most 
 " express terms, tenendum to him and to his heirs generally. That turned out to be a mistake, . . and left 
 " the case to stand, as it does stand, upon the construction of the grant itself and upon the 'Litera.' My 
 " Lords, my clear opinion is, that the Regrant was for life only." 
 
 The result is, that " the Duke," like " the Earl of Giencairn," " acquiesced in the Act of 1488," — Gleneairn 
 by not claiming the Earldom, " the Duke . . by accepting the Regrant, limiting to him for life the same 
 " dignity. How inconsistent," then, is it " to attempt to set up the former grant in fee when the latter 
 " grant was accepted by the same man from the successor of the King who granted the first dignity — limited 
 " only for life V— Infra, pp. 353, 354, 355, 356, 357, 359. 
 
 Observation. 
 
 The Claimant would refer here, as elsewhere, to his notes upon the Speeches of the Loed Chan- 
 CELLOE, and Loed St. Leonards, infra, loc. cit. — But he must again observe (although 
 he has already touched upon the point in the Address prefixed to this volume), that those 
 Noble and Learned Lords, and Lord Lyndhubst, treat the Regrant by James IV. with 
 advice of Parliament, 18th September 1489, the warrant for the 'Litera,' as a mere Act 
 of Parliament — not of tJie Crown, systematically throughout the discussion. Loed Lynd- 
 HUEST expressly states, " It is not a regrant hy the Crown, tut it is a Segrant by Act of 
 " Parliament," infra, p. 174 ; and afterwards, " there is A regrant by Act op Parliament, which 
 " implies the power to alter it ab they thought proper," m/ra, p. 175. Loed St. Leonaeds 
 asked " Goidd you have argued that because the Crown had the power to grant more, hut Jiad granted 
 " less," (i.e. by the Litera,) "that therefore upon that ground we should he at liberty to read that 
 " grami as if the Crown had done aU that the Act of Parliament had enabled it to grant ?" Infra, 
 p. 173. — And the Lord Chancellor's allusion to the Act of Parliament as "indicating that the 
 " King was anxious Jie should he a Duke," &c. (infra, p. 318) is in the same tone. All this is simply 
 following the lead and law of the Attoeney-General, who stated, " That Act of Parliament says 
 "that the King may de novo create the Dukedom of Montrose by a charter hereafter to be com- 
 
 * For the passage referred to by Lord St. Leonards, see p. 355, n. ^, infra. 
 
CXU ANALYSIS OF THE ARGUMENT. 
 
 " pleted ; accordingly we find that a Litera or charter . . immediately followed on the passing of this 
 " Act of Parliament," infra, p. 196. The Nolle and Learned Lords and their learned friend 
 actually read the Act 18ft September 1489 as A wabeamt feom Pabliambnt to the Ceown, 
 ENABLING THE Ceown TO GKANT AN HONOTJE ! And by the dictum of LoBD Lyndhdbbt, Parlia- 
 ment might now make a regrant of the Earldom of Crawford to the Claimant, limiting it to him 
 for life ! ! ! 
 
 Resolution on the Regrant. 
 
 " That the geant of the Dukedom made by King Jambs IV. to the said Dayid Eael of Ceawfoed in 
 " 1489 WAS A geant foe the teem op his life only." Infra, p. 373. 
 
 Observation upon the preceding Resolution. 
 
 For the Claimant's view of this clause of the Resolution — which passes judgment on a point not hefore 
 the Committee — he would refer to the preliminary Address, supra, p. xxvii. He must 
 observe likewise that Loed Lyndhuebt gave no final opinion on that point. LoED 
 St. Leonaeds' words conveying that Noble and Learned Lord's sentiments are as follows :— "My 
 " Noble and Learned friend, Lobd Lyndhhbst, desired me to state on his behalf, that he entirely 
 '' concurred upon these two points : first of all, that the Act of 1488 was a revocation of the 
 " dignities ; and, secondly, that he thought that the construction was clearly that which I have just 
 " pointed out to your Lordships. But he desired me to add, that he gave no opinion upon any 
 " other part of the case, as he had not heard the whole of the arguments, and had not sufficiently 
 " followed the case in its subsequent bearings." Infra, p. 372.— This of course excludes the 
 question of the hereditary or restrictive character of the Regrant, 18th and 19th September 1489, 
 from the Nohle and Learned Lord's concurrence in the Report of the Committee. Moreover, 
 as the clause referring to the Regrant (above given) was added to the Resolution, at the suggestion 
 of Lobd St. Leohaeds, after the termination of his Address to the Committee, the Resolution, as 
 originally proposed by the Lord Chancellor, not including it — the clause in question cannot be 
 understood to express the explicit sanction of Lord Beougham, who was not present on the 
 occasion. 
 
 3. By the Attorney-General and Lord Advocate. — Whereas the Claimant maintains that 
 David Duke of Montrose enjoyed the estates granted by the original patent subsequently to the Act 
 Rescissory, and that his right to them was not annulled by the Act Rescissory, although it may have 
 been so by a subsequent Act in 1493, or through simple oppression and violence ; the fact is, that those 
 estates, having come into the hands of the Crown through the Act Rescissory, were regranted exclusively 
 by the second Patent and for life only, and that after the death of the Duke the Crown resumed them 
 as of right, and dealt with them after its pleasure.* In proof of this are adduced the following notices 
 from the Exchequer Rolls : — 
 
 i. With reference to the Great Customs of Montrose, — Statement in the Exchequer Roll 
 for 1496, as follows: — "Compotum Magistri Roberti Erskyn, Customarii burgi de Month- 
 " rose," rendered at Edinburgh on the 15th July 1496, " de omnibus receptis suis et 
 " expensis per Magnam Custumam dicti burgi d die obitus Domini David Ducis de Month- 
 " rose, qui erat in die Sancti Stephani ultimo preterito, qui habuit dum vixerat hujusmodi 
 " Magnas Custumas per literas Domini Regis ab anno Domini nonagesimo" (1490) 
 " usque in dictum diem obitus sui," that is, on the day of St. Stephen last past, viz. the 
 26th December 1495.t 
 
 ii. With reference to the Small Customs of Montrose, — Statement in the same Roll, among 
 the disbursements, as follows, — " Et eidem, per solutionem factam quondam Domino David 
 " Duci de Montrose, per literas Domini Regis sub privato, de dictis firmis annuatim, de 
 " quinque annis hujus compoti, percipienti viginti duos solidos et octo denarios, sibi ad 
 " viTAM concessos, ut patet per dictas literas ostensas super compotum, v" xiii' iiii'i." % 
 
 iii. With reference to the Lordship of Kinclevin, — Statement by Wardroper, collector of the 
 rents, to the same effect, in his ' Compotum ' rendered on the 11th July 1496, — " Et plene 
 " allocatur compotanti de firmis terrarum de Kinclevin, alias concessarum Domino David 
 " Duci de Montrose ad vitam per literas Domini Regis alias ostensas super compotum, 
 " de primo termino hujus compoti, quia decessit circa festum Natalis Domini, xxxvi", 
 "i° salmones:"§ — 
 
 ■* With respect to the statement in the Litera, that the estates granted thereby then belonged to the Crown, vide supra, p. c. 
 
 t Attorney-General, infra, p. 205. % Ibid. p. 206. 
 
 § Attorney-General, infra, pp. 205, 206; Lord Advocate, infra, p. 238.—" This passage," observes the Lord Advocate 
 
ANALYSIS OF THE ARGUMENT. CXiii 
 
 — After these several entries — than which " it is impossible to have anything more clear and decisive"*— 
 the Customer accounts in each instance to the Crown — the property passed to the Crown " without any 
 " form of feudal transmission of any kind," which " would have been impossible if there had existed in 
 " the Duke any feudal right whatever other than a liferent right." t Kinclevin, in particular, reverts to 
 the Crown, and "in 1512" it was granted "to the family of the Wardropers," and from them is 
 traceable (as by evidence adduced) in "regular feudal transmission . . to the present day." J 
 
 It is impossible to have anything " more perfectly conclusive of the fact that this grant of the 
 " estates was a grant for life, and that the grant of the estates was, in the terms of the grant, coextensive 
 " with the grant of the Dukedom, and formed the territorial basis upon which the Dukedom was 
 " founded." § " The pith and marrow of the present inquiry lies in the question " what became of the 
 " estates " — those estates which were " inseparably associated " with " and incorporated into the grant 
 " of the Dukedom ;" || and when it is shewn that these estates were clearly granted " for life," not only 
 is the authority of the Register vindicated and the Litera shewn to have been " a grant for life " only, 
 " and not in perpetuity," but the original Dukedom is proved to have been annihilated by the Act 
 Rescissory.lT 
 
 " If there were reasons which should induce the Earls of Crawford, upon the death of the Duke, 
 " not to assume the title, there could be no reason why they should not continue to enjoy the estates." ** 
 
 Moreover, whereas the Claimant attributes the resumption of the estates to the Act 26th June 
 1493, this is " not an ingenuous statement," because he had the " preceding " accounts " before him, 
 and it is clear that, " whereas the Act " founded on " passed in 1493, the Duke did not die till December 
 1495, and in the mean time he continued to enjoy the estates. The King did not resume the estates on 
 " the passing of the Act " 1493 — " the Duke enjoyed them to his death, and then they were resumed" — 
 and this was "because they had been granted" for " life only."tt 
 
 Replies. 
 
 1. The evidence from the Exchequer Rolls is two-fold, — ^the first series of entries (adduced by the 
 Claimant) proving that Duke David possessed and held the estates under the original Patent, with 
 recognition of the Crown, during the whole period between the first and second Patent, and that he 
 held them at the very moment when the second Patent was granted — all notwithstanding the Act 
 Rescissory, — the second (adduced by the Ceown), asserting that in December 1495, when the Duke 
 died, he held them only for life. — That the Crown then resumed the estates cannot be denied by the 
 Claimant. That there was no resignation of the right under the original Patent cannot be denied — and, on 
 the contrary, is fully admitted — by the Ckown ; as well as the fact (howsoever accounted for) that the Duke 
 retained possession of the estates during the interval between the Act Rescissory and the Regrant, notwith- 
 standing the Act Rescissory. Assuming therefore (as the Claimant is entitled to do) that the fibst of these 
 statements is true, and that the estates and the Dukedom were actually in the Duke at the moment of the 
 Regrant, and not resigned, the question arises, (the point being in itself a matter of indifference,) Can the 
 SECOND statement be reconciled with it ? — If not, the second statement must ee fai,se. There is no 
 medium — no escape from this conclusion. But can the two statements be reconciled ? It may be observed, 
 i., That this latter evidence, to the effect that the grants to Duke David were " for life " only, is secondary 
 and at variance with primary sources ; ii.. That tlie Crown miiiistrants are not impartial evidence when their 
 testimony is against the subject as in this case, while it is entitled to the highest weight when in favour of the 
 subject as in the case of the Claimant with reference to the enjoyment of Kinclevin during the important 
 interval; and iii., That the testimony of Wardroper, the Kinclevin co\\ectov,\i peculiarly suspicious ivom 
 the very fact that he and his family had been long the administrators of the Lordship, must be presumed to 
 have viewed the Duke's acquisition of it with jealousy, and may be held to have had an eye to its acquisition 
 
 (as already cited, supra, p. xcix), " furnishes contemporaneous evidence that there were Uterai at that time, and that that 
 " Letter gave him" (the Duke) " right for life;" it also proves "that at the time of the date of the enti-y in the Register, the 
 " Letter is referred to as a life-rent grant, and also that the rents of Kinclevin were dealt with and accounted for to the Crown as 
 " upon a life-rent." — Infra, p. 238. — For the preceding notices from the Exchequer Rolls, and evidence proving the subsequent 
 history of the Customs, see the ' Minutes of Evidence,' Nos. 151 sqq. ; and the Appendix, infra, pp. 541 sqq. 
 
 » Attorney-General, infra, p. 208. t Lord Advocate, infra, p. 238. 
 
 % Attorney-General, infra, pp. 206, 208 ; Lord Advocate, infra, p. 239. And see ' Minutes of Evidence,' Nos. 148 sqq. ; 'and 
 infra, pp. 540, 542. 
 
 § Attorney-General, infra, p. 206. 
 
 II Attorney- General, infra, pp. 203, 209.— The Lord Advocate remarks on this point, " that at that time in Scodand it was 
 " almost uniformly the case that a Dukedom or any honour of any kind went with the land. If a man was made a Baron, he had 
 " lands erected into a Barony; if an Earl, there was a Comitatus erected, of which he was the Earl. Here you have lands with a 
 " Dukedom erected into a Dukedom." Infra, p. 236. — That a Dukedom or any honour went with " the land"— in the sense of the 
 great bulk of the family property of a family, is true, as a general principle; but "the land" immediately attached to the honour, and 
 dovUless intended to descend along with it, might be alienated without affecting the descent of the honour, as by repeated instances, some of 
 which are noticed in the following page. Here, in the case of the Dukedom, as regranted in 1489, the leading reference is to the 
 " dominaciones," the hereditary estates of the Earls of Crawford ; and the " titulo Comitatus," or " Comitis titulum," under which 
 they held those estates, is " changed" into the higher title of Duke. 
 
 t Attorney-General, infra, pp. 206, 209. ** Attorney-General, infra, p. 203. ft Attorney-General, infra, p. 204. 
 
 Q 
 
cxiv ANALYSIS OF THE ARGUMENT. 
 
 themselves— which they ultimately accomplished, as stated by the Cbown, in 1512, — while Wardroper's own 
 statements in the earlier roll, proving that Kinclevin was in the Duke by hereditary right, which right, never 
 having been resigned by the Duke, must on his death have been transmitted to his son, fully refute and 
 contradict his (Wardroper's) later testimony." — But, admitting, for argument's sake, that the statement is 
 correct, and that the estates were only held by the Duke for life, there is one way, and onb way only, by 
 which the credit of the Exchequer Rolls for truth, and of James IV. and his advisers for justice and honesty, 
 can be saved ; and that is, ly attributing the resumption to the Act of Parliament 26th June 1493, adduced 
 {for a different purpose') hy the Claimant, hy which the grants of James III. within the same period as tlmt 
 jiroscribed by the Act Rescissory, according to the last edition of the statutes, but from a still earlier period, 
 the 2nd September 1487, according to the original edition, are absolutely rescinded and annulled, without 
 giudification, ex tunc, and without reference to the Act Rescissory — with the sole, but all important, excepticm 
 of dignities — an Act by which thekefore the estates granted by the Patent 18th May 1488 
 WOULD BE STRUCK AT, BUT NOT THE DuKEDOM. It is truc. Undoubtedly, as stated by the Crown, that the 
 estates were not resumed in 1493 when the Act passed, but they were resumed at the Duke's death, two 
 years afterwards — and the Claimant is aware of no other instrument or document to which the resumption 
 can be legally referred — the Act Rescissory, after the evidence given, being out of the question. 
 
 The result is simply this, that the estates were resumed, and at this distance of time the direct causes 
 influencing the Crown to that resumption cannot be precisely shewn by evidence — they might have been 
 left in the Duke's hands subsequently to 1493, ex comitate, for his life (his right being fortified by the 
 grants in 1488 and 1489), or they might not — the Claimant does not pretend to be wise above what is 
 written. But he contends that there is no need to refer the resumption to the Act Rescissory. And if the Act 
 1493 be disregarded, then — inasmuch as the Claimant has shewn, by the evidence of the Ckown themselves, 
 that J arrives IV. dealt with the property granted by his father as with his own, seized and regranted it, even 
 BEFORE the Act Rescissory, when there was no colour of law or justice for such usurpation, and also that, 
 as by the testimony of the Duke's Protest, alleged against him by the Crown, cruelty and injustice of the 
 grossest kind viere exercised against the Duke in the matter of the Sheriffdom — the Claimant, taking his stand 
 on these admitted facts, calls on the Committee, in common equity, and in compliance with tJie rule of most 
 strict interpretation in the constructicm of penal statutes, especially in honours, and with the maxim "In 
 " dubiis benigniora," to consider the resumption of the estates as an act of similar character by those in 
 power at the time of tlie Duke's death — at a time when lawless power prevailed against honesty and justice, 
 and when might overcame right. The circumstances under which the Duke's successors could make no 
 resistance, and which make this argument an a fortiori one, will appear presently. The property, it may 
 be added, was far too small for the supposition that any one in their situation would feel it worth while to 
 enter into a contest or litigation with the nobles or with James IV. The rents of Kinclevin amounted to 
 £72 a year, and certain salmon ; and the remnant of the customs of Montrose (of which the greater portion 
 had been granted long before hereditarily to the Earls of Crawford) to £3 5,s. lljrf. ; that is, £2 3s. S\d. 
 from the Great Customs, and £1 2s. 8^^. from the Small Customs of the Burgh. (Vide supra, p. lxxi.)t 
 
 ii. The Claimant need scarcely add (in reference to an objection rather hinted at than directly advanced) that no 
 argument can be brought against the continued existence of the Dukedom from the resumption of the estates, 
 as by admitted rule and practice. For example, notwithstanding a grant by James IV., 13th October 1488, 
 of the fief of Bothwell to Patrick Lord Hailes, and the subsequent erection of that fief, 17th October 1488, 
 into an Earldom in his favour, whereupon he immediately became Earl of Bothwell, and figures as 
 such in Parliament ever afterwards — there is extant a royal charter, 4th July 1492, confirming a 
 conveyance of the castle of Bothwell (the caput baronice, always the principal possession in a fief in 
 feudal times, from which the title was derived, and with which the superiority of the whole fief was 
 identified), together with the 'villa' (village, or town) of Bothwell, and the lands of the barony of 
 Bothwell, to Archibald Earl of Angus (surnamed ' Bell-the-Cat '), proceeding on the resignation (probably 
 compulsory) of Patrick Hepburn Earl of Bothwell, Lord Hailes,— after which period the fief of Bothwell 
 descended in undeviating succession in the House of Angus, and vests at present in virtue of that conveyance 
 in their later heir-of-line. Lord Douglas. — Hence the alienation or loss of the important fief and castle of 
 Bothwell, the very caput baronice from which the Earldom derived its appellation, did not deprive Earl 
 Patrick or his descendants (at that semi-territorial period) of the title of Earl of Bothwell, — seeing they ever 
 alterwards, as before, held that title until the merited forfeiture of the notorious James Earl of Bothwell, the 
 great-grandson of the patentee in 1488. — In like manner the Earldom of Glencaim, as created by the Patent 
 28th May 1488, descended in the family, as proved, notwithstanding that the lands of Drummond and 
 Duchray were not competently conveyed with the honour.]: Other illustrations to the same effect are given in 
 
 * Against this, however, it must be observed, as a set off, that Erskine, the Montrose accountant, equally asserts the fact insisted 
 upon by the Ckown, viz. that the grant was ' for life.' The Claimant would have confined himself to the two first points of his 
 argument here (on which he still insists with perfect confidence), were it not that the third stands (as above) in his S. Case (p. 136) without 
 the qualification pointed out in this note, and which he had not remarked when he printed that Case. 
 
 t It was stated in the discussion by the Attorney-General, " that this estate of Kinclevin was to be the foundation of the 
 " grant of the Dukedom ; they were no doubt very valuable estates. The very fact of the rent being large, which indicates that the 
 " estates were valuable, fortifies the wbole of the case," &c. Infra, p. 208. — The Claimant by no means wishes to infer that the 
 estates were not of considerable value, but it cannot be held that they were a fitting substratum for a Dukedom, or sufficient to 
 support it independently of the other property of the Crawford family — i. e. of the " Comitatus," which was in fact "changed" 
 into the " Ducatus." He would refer, upon this point, for the contrast drawn between the property of the Earldom of Crawford and 
 of the Dukedom of Montrose, considered as distinct and separate, top. xliii, supra. 
 
 t The Claimant remarked with reference to the resumption in the Glencaim case, that to argue that the Earldom of Glencairn 
 could have been affected by the resumption of the lands of Drummond and Duchray through the prior and superior title of the 
 House of Drummond, would be tantamount to arguing that the recovery hy an adverse title of an estate, or of a portion of an estate, 
 included in a patent of peerage granted to any Noble Lord, a member of the Committee, would annul the right to the dignity in 
 that Noble Lord's person. Vide supra, pp. 159, 160. 
 
ANALYSIS OF THE ARGUMENT. CXV 
 
 the Claimant's S. Oase, p. 137. And see the Appendix, infra, p. 566. The rule " reddendi singula singulis " 
 here applies. But all this is immaterial to the question now before the Committee. 
 iii. The Claimant would further and again observe, in conclusion, that in this discussion the point of view taken by 
 tJie Ceown as respects the estates is wlwUy with reference to the ' Litera,' or second Patent, not with reference 
 to the effect of the original Patent as surviving the Act Rescissory . The point of importance was and is — 
 
 WHETHEE OK NOT THE DlTKB HELD THE ESTATES, AND KiNCLBVIN IN PAETIOULAB, TTNDEB THE PATENT OF 
 1488, SUBSEQUENTLY TO THE ACT BbSCISSOBY — THAT IS, DURING THE INTERVAL BETWEEN THE ACT 
 
 Eesoissokt and the Eegeant ? If he did — but the Claimant need not reiterate his argument on this point. 
 And, under any circumstances, as elsewhere and repeatedly reiterated, unless the (penal and qualified) Act 
 Rescissory had the effect of cutting down and annulling per se, by its own unassisted force, and without 
 any legal process or inquiry, the Dukedom of Montrose and every other grant of James III. conferred 
 within the specified period — unless the Act had that effect — which the Glencaim and Eglinton decision in 
 1648, and the fact of the survival of the other grants in pari casu with the Earldom of Glencairn and Dukedom 
 of Montrose prove it had not — every other question or difficulty, whether connected with the Regrant of the 
 Dukedom or (as here) with the resumption of the estates, is legally matter of indifference. — S. Case, pp. 75, 
 136, 137; Infra, pp. 79, 80; 119, 120, 121 ; 280, 281. 
 
 Opinion of the Committee. 
 
 Lord Chancellor. — "The dignity" having been "annihilated" by the Act Rescissory — the Duke having 
 " made his peace to a certain extent with" the King — and the King having "granted him anew the 
 " Dukedom, but granted it to him only for the term of his life" — "what, my Lords, would you expect to see 
 " happen in respect to that transaction ? Why, you would expect to see the Dukedom and tliat property 
 " which was granted with the Dukedom enjoyed from the time of that grant by the grantee for the term of 
 " his life. That is exactly what happened." "At the time of the death of the Duke of Montrose" the 
 Exchequer oflicers " again put themselves in charge ; and stated that they had not " done so " previously, 
 " because " the estates " had been granted to the Duke of Montrose for life." " What became of the customs 
 " of Montrose I do not know ; but the Lordship of Kinclevin remained in the Crown, till about fifteen or 
 " twenty years afterwards, when it was given away by the Crown to a family of the name of Wardroper, who 
 " had collected the rents." No one therefore " can entertain a rational doubt that it was under that grant," 
 the ' Litera' 19th September 1489, "that the Duke held . . his honours and his estates — the estates which 
 " were coupled with the honours." — It is "quite immaterial " (as already stated) to what extent the Duke 
 received and held the rents of Kinclevin or the customs of Montrose during the interval between the Act 
 Rescissory and the Regrant, — the " only important point" "is this, that after his death none of those that 
 " came after him had a farthing."— /ra/ra, pp. 316, 317, 320. 
 
 Lord St. Leonards. — Even " supposing . . there had been a difficulty . . as regards the digftity, . . there could 
 " be no difficulty as to the estates. By the first grant the estates were granted to the Duke in fee simple, as 
 " we should call it ; at the time of the Regrant the Crown had seized them, — that your Lordships know, 
 " because the Crown, in regranting the very same subjects, stated them to belong to the Crown, which I have 
 " shewn your Lordships could not have been the case if that former grant had not been annulled by the Act 
 " Rescissory. Then what became of the estates ? They were regranted, — as I apprehend, regranted for life, 
 " and for life only."— i»/ra, p. 358. 
 
 Observation. 
 
 The Noble and Learned Lords entirely pass over the Act 1493, and the inference from the cruelty and 
 illegality exercised against the Duke and others before and after the Act Rescissory — which they 
 admit and enforce as against the Claimant, while they refuse him the benefit of it when in his 
 favour. 
 
 4. By the Attorney-General and Lord Advocate : — Whereas the Claimant maintains that 
 there is no prescription in honours, and that the lapse of time during which the Dukedom has been dormant 
 is no bar to the present claim, and that there are facts accounting for the non-assumption, viz. the unhappy 
 circumstances of John sixth Earl of Crawford, the Duke's son, and of his successors, the hostility of the 
 aristocracy to the title of Duke, &c. &c., the Crown represents, 
 
 i. That, " although . . lapse of time and prescription will " not " operate to bar " a peerage 
 claim, " still " the fact that the Dukedom has not been claimed since the death of Duke 
 David, that is, for three hundred and fifty years, is " a startling thing, to say the least of 
 " it," and warrants " considerable distrust." * 
 
 ii. That " the great question " is. Was there any one who would have been entitled to the 
 Dukedom, had the Regrant (to which the Crown limit their inquiry) " been a grant other 
 " than for life ?" f 
 
 iii. That the fact that Earl John, the Duke's son, never claimed "is a very, very striking fact, 
 " and one of the last importance in the case." J 
 
 * Attorney-General, infra, p. 181. t -^'"'<^-. P- 201. t -^^*^-> P- 201. 
 
 Q 2 
 
csvi ANALYSIS OF THE ARGUMENT. 
 
 iv. That there is no ' doubt that Earl John had " had the misfortune to kill his " " elder " — 
 " brother," and that "a stigma" rested upon him, but the Claimant has "greatly exag- 
 " gerated the position in which that nobleman found himself" — "there is not even the 
 " ordinary amount of plausibility in " his " suggestion " that that position incapacitated 
 Earl John from claiming, — Earl John was " in favour and trust " with James IV. ; he 
 had been " with him," and " against ,the Duke his father," " in open conflict, at the field of 
 " Stirling " and " throughout the whole of these proceedings ;" * he held a high position 
 afterwards, receiving authority to quell an insurrection in the Highlands, &c., — and he 
 " was by no means the outcast " he is " erroneously " represented by the Claimant, but on 
 the contrary was in a position to have asserted his right to the title, if it existed ; and there 
 was no reason " why he should not have done so." There is no " necessary connection " 
 between the position attributed to him " and the assumption of" a title which, if the 
 Claimant's "theory and hypothesis be correct, was unquestionably his by right." And, (in 
 answer to a question of Lord St. Leonards, " He did take the title of Earl of Crawford ? ") 
 — " He did take the title of Earl of Crawford undoubtedly, — why therefore he should not 
 " have taken the title of Duke of Montrose, if he was entitled to it, one is rather at a loss 
 " to conceive." t 
 
 v. That Alexander seventh Earl of Crawford, Earl John's paternal uncle, though said to be 
 " advanced in years " at the time of his succession, was a man " of distinction," still taking 
 part in the affairs of the state, and there was "no possible reason . . why he should not have 
 " assumed the title," if it existed.| 
 
 vi. That David eighth Earl of Crawford, Earl Alexander's son, " took the character of Earl 
 " of Crawford " — but not the Dukedom. " Every trace of the Dukedom so far as " Earl 
 John, Earl Alexander, and Earl David " are concerned, is lost, and not one of them ever 
 " thinks of assuming, or claiming, or putting forth a shadow or vestige of a claim to this 
 " high title." § 
 
 vii. That " there was one circumstance calculated to keep " " the recollection of the title " 
 " perpetually alive " before " the heirs and the successors of the Duke," viz. the fact that 
 the Duke's widow survived the Duke for thirty years, during which time — during the lives 
 of " her stepson, her brother-in-law, her nephew, and grandnephew, all " of them men of 
 " distinction " || — she continued, till her death in 1534, to be styled ' Duchess of Montrose,' 
 — notwithstanding which, they, although " in habits of familiar and daily intercourse " with 
 her, advanced no claim to the Dukedom, but styled themselves Earls of Crawford. If — 
 " That is a fact, however it may be explained ; and, if anything could shew more clearly 
 " than another that the Dukedom was treated as a liferent grant, it would be this." ** 
 
 viii. That the Claimant's hypothesis in order to account for Earl John and his successors not 
 taking the title is founded on " the most idle and vague assumption of facts," viz. " that the 
 " Scottish nobility were jealous of the title of Duke " — but " there is no evidence whatever 
 " of that, from one end of the Case to the other. The title of Duke was not unknown in 
 " Scotland at the period, though it had been held up to that time by members of the Royal 
 " family " only, " but there is no evidence to shew . . that there was any jealousy on the 
 " subject." tt And, 
 
 ix. That " an ingenious hypothesis " has been " thrown out " (as already stated), " that . . after 
 " the Duke's death . . hisheirs were actuated in not assuming the title by a proud feeling 
 " which has influenced " peers in possession of older but inferior titles " to adhere " to them 
 instead of higher but more modern ones. But, as has been already shewn, this does not 
 apply ; for the Duke, as proved, insisted on and clung to his title, — " nevertheless his 
 " son and heirs, instead of styling themselves by the title of Duke, are contented with the 
 " title of Earls of Crawford." tt 
 
 * Lord Advocate, infra, pp. 237, 238. f Attorney-General, infra, pp. 201, 202. 
 
 X Attorney-General, infra, p. 202 ; Lord Advocate, infra, p. 237. 
 
 § Attorney-General, infra, p. 202. || Lord Advocate, infra, p. 237. 
 
 t Attorney-General, infra, p. 202. ** Lord Advocate, infra, p. 237. 
 
 tt Attorney-General, infra, p. 203. ${ Ibid., p. 203, 204. 
 
ANALYSIS OF THE ARGUMENT. cxvil 
 
 Eeplies. 
 
 i. That lapse of time is no bar to a Peerage claim, as by the Norfolk case, the Devon case — in which the 
 title was dormant for two hundred and sixty-four years, and no possible reason existed for not 
 claiming under the patent— the Marr case in Scotland, in which the title was not only suppressed by 
 the Crown, but actually bestowed on other families during one hundred and fifty years, and ultimately 
 recognised in and restored to the Erskines as their just right and due by Queen Mary,* — and 
 others.! 
 
 ii. That, generally, it is impossible at this distance of time to tell with certainty what motives and 
 considerations were involved in claims to dignities at that remote period ; and therefore the rule in 
 duhiis benigniora semper sequenda sunt ought to obtain. 
 
 iii. That, with reference to the present case, the Claimant never represented John Earl of Crawford, the 
 Duke's successor, as " an outcast " in the extreme sense, as stated by the Crown, but only so far as 
 this, that, through the stigma of fratricide and the threat of prosecution actually held over his head, 
 as proved by the Criminal Letters, 23rd April 1512, adduced by the Claimant,:]: till his death at 
 Flodden in 1513, he was in aposition of disadvantage which would have deterred himfrom advancing 
 any claim which coidd waken the jealousy of the aristocracy — who, feeling no objection to his hearing 
 his ancestral title of Earl, would demur against his assumption of that of Duke. The fratricide may 
 in fact have been ultimately charged against him — twenty years after the occurrence of the tragedy — 
 in consequence of an intention transpiring on his part to claim the Dukedom ; while his death at 
 Flodden almost immediately afterwards would necessarily put a stop to the proceedings. It may be 
 remarked, for the sake of strict accuracy, that there is no direct authority for representing Earl John 
 as having been present on the Prince's side at the battle of Stirling in 1488, — although the Claimant 
 believes that he had adhered, generally, to the rebellious faction. 
 
 iv. That, although Alexander sixth Earl of Crawford, Earl John's successor, (while by no means 
 possessed of the weight and influence of Duke David,) might have asserted his claim, his son and 
 apparent heir, David, afterwards seventh Earl of Crawford, was also implicated in outrages associated 
 with the murder of the Duke's eldest son, (as witnessed by the ' Criminal Letters,') and that might 
 consequently deter both father and son from moving. While, latterly, the domestic troubles of Earl 
 David through the crimes and rebellion of his son the ' Wicked Master ' — which had already come 
 to a head in 1526, and harassed him continually afterwards till his death in 1542 — would have 
 rendered it impossible for him to do so. And it was in vain too for any nobleman to claim a higher 
 rank in the reign of James V., a prince incessant in his efforts to crush the nobility. The Ckown 
 takes no notice of the disqualifications attaching to the seventh and eighth Earls of Crawford, or of 
 the proofs accumulated by the Claimant of the tyranny and oppression exercised both by James IV. 
 and James V. against the great feudal families,§ which would, per se, have rendered it impossible 
 for the Crawford family to have asserted their rights. 
 
 V. That, although perhaps unnecessary to carry this inquiry further downwards than the Cbown has 
 thought fit to do, the Claimant may add (as in his Case and Supplemental Case), that, on the 
 forfeiture of the ' Wicked Master,' the Barons of Edzell succeeded, as next unforfeited heirs male, in 
 the person of David the ninth Earl, the direct ancestor of the Claimant ; but even he was selected as 
 a victim by the rapacity of James, and only saved from min by the premature death of the monarch 
 after the catastrophe at Fala and Solway, — That amidst this scene of family distraction, of royal 
 tyranny, and of a diverging succession unparalleled except in the still more recent history of the 
 Claimant's family, the true import of the Ducal claim, which it was impossible to assert, vanished 
 into thin air and was forgotten, — That David of Edzell, ninth Earl of Crawford, with the sanction 
 of the Crown, restored the honours and estates to the son of the " Wicked Master;'' but from that 
 moment the family retrograded till their means and fortunes were utterly shipwrecked and sunk in 
 the person of David the twelfth or " Prodigal Earl," whom his relations were obliged to confine for 
 life in Edinburgh Castle in order to prevent his complete dilapidation of the estates ; from which 
 imprisonment is derived his other epithet, the " Comes Incarceratus," — That the succeeding Earls, 
 till the accession of Ludovic, the sixteenth or " Loyal Earl," were for the most part soldiers of fortune 
 in Spain, Flanders, and Germany, — That Earl Ludovic, in 1642, conveyed the Earldom of Crawford, 
 under authority of the Crown, to the most remote cadet of his family, John Earl of Lindsay, the 
 representative of the Lords Lindsay of the Byres, who succeeded accordingly as seventeenth Earl 
 of Crawford ; and his descendants (who could have no conceivable claim to the Dukedom) held it 
 till the death of George the twenty-second Earl in 1808, when the Earldom reverted, through the 
 final substitution in the patent of 1642, to the father of the present Claimant, Alexander Earl of 
 Balcarres, the heir-male collateral of Earl Ludovic, the patentee, — And, finally. That in the mean- 
 
 * For an account of this case see the Address, supra, p. xh. See also the S. Case, p. 30. 
 
 t Among these the Claimant might have adduced the cases of the Barony of Colville of Culross, dormant and not assumed for 
 82 years— the Barony of De Clifford, dormant, &o. for 86 — the Barony of SomerviUe, dormant, &c. for 105 — the Barony of Vaux of 
 Harrowden, dormant for 176 — the Barony of Bemers, dormant for 188 years (in which case lapse of time was urged against the 
 Claimant without success)— the Earldom of Strathearn, dormant for 200— the Barony of de la Zouche, dormant for 290— the Barony 
 of Beaumont, dormant for 333 — the Barony of Botetourt, dormant for 379 years— the Barony of Fitz Walter, allowed in the Privy 
 Council in 1669 after 400 years of dormancy — the Barony of Camoys, dormant for 411 , &c. &c. 
 
 t These ' Criminal Letters,' issued under the King's warrant, command the proper officers to " serche and seyk " John Earl 
 of Crawford and his accomplices, "delaitit," or accused, of having " crually slane and destroit" the Master of Crawford. — Case, 
 p. 31 ; 8. Case, p. 139; Infra, pp. 103, 279, 281.— See the ' Minutes of Evidence,' p. 143, and the Appendix, infra, pp. 544, 545. 
 
 § See the Case, pp. 32, and n. t, 76 ; and S. Case, pp. 140 sqq. 
 
cxvili ANALYSIS OF THE AKGUMENT. 
 
 while the heirs male of fearl Ludovic and of David Duke of Montrose — the Lords Spynie, the 
 Barons of Edzell, and the Earls of Balcarres— all of them dejure ' Lords Lindsay ' (successively) in 
 virtue of that male heirship, as by the Report of the House of Lords, 11th June 1848— were 
 struo'gling with loyalist debt and disability, and even had they known of their right, were not in a 
 situation to have availed themselves of it.* 
 
 vi. That the Claimant does not see how the fact of the Duke's widow bearing the title of Duchess during 
 her widowhood has any bearing on the matter here in question. 
 
 vii. That a claim to the Dukedom- might have involved a claim to the estates, unless resumed under the 
 Act 1493, and on this ground alone the Crown would have been hostile to it. 
 
 viii. That, so far from the Claimant having given no evidence in his Case of the jealousy of the 
 aristocracy against the title of Duke, the Claimant has cited trustworthy historical evidence for the 
 fact from Hume of Godscroft, at p. 31 of his Original and p. 143 of his Supplemental Case, and 
 which the Claimant's learned counsel have also cited and brought forward before the Committee, 
 as may be seen infra, p. 100. " They tell also," says this historian, " how the Queen Regent" 
 (Mary of Lorraine, mother of Queen Mary) " had intention to make the Eari of Huntley a Duke, 
 " whereof when she was discoursing with Angus, she told him how Huntley had done her very good 
 " service, for which she intended to advance him and make him a Duke. To which he answered, 
 " ' Why not. Madam ? We are happy that have such a princess, that can know and will acknowledge 
 " ' men's service, and is willing to recompense it. But, by the might of God ' (this was his oath 
 " when he was serious and in anger, at other times it was ' By Saint Bride of Douglas,') — ' if he be 
 " ' a Duke, I will be a Drake ! ' — alluding to the word Duke, which in Scotland signifies a Duck as 
 " well as that title and dignity, which being the female and the Drake the male, his meaning was, he 
 " would be above and before him."—" So she (the Queen Regent) " desisted from further prose- 
 " cuting of that purpose." — Eist. of the Houses of Douglas and Angus, vol. ii. p. 131. On another 
 occasion it is recorded, in a legal information in 1677 for the Earl of Errol against the Earl of 
 Sutherland, " that the Earl of Huntley, compeating with the Regent Murray, threatened to raise his 
 " title above the Regent's, if he should be made a Duick." — Case, p. 31. — The fact that the title of 
 Duke had only been held by members of the Royal Family, alluded to by the Ceown, gives the key 
 and point to this evidence. The jealousy alluded to is in truth matter of historical notoriety. James 
 Earl of Arran, though Regent of Scotland, and next heir to the throne during the minority of Queen 
 Mary, was obliged to derive his Dukedom, that of Chatelherault, from France. Queen Mary of 
 Guise, as above shewn, was deterred from creating Huntley a Duke by the threats of the Earl of 
 Angus. Henry Lord Darnley and Hepburn Earl of Bothwell were only created Dukes of Ross 
 and Orkney on their respective marriages with Mary Queen of Scots. Esme Duke of Lennox, so 
 created in 1581, was a near relation and personal friend of James VI., and his next male heir 
 collaterally. And James Duke of Hamilton, so created in 1643, inherited the blood of his ancestor 
 the Regent Arran, next collateral heir of Queen Mary, and enjoyed the personal friendship of Charles I., 
 whose interest it moreover was to conciliate his services at the breaking out of the civil war. These 
 four Dukedoms, of Ross, Orkney, Lennox, and Hamilton, were the only Dukedoms conferred in 
 Scotland during the 170 years which elapsed between the creation of the Dukedom of Montrose 
 and the Restoration ; and all were granted under special and peculiar circumstances. The Claimant 
 is confident that the verdict of any jury of Scottish antiquaries would be in favour of his argument on 
 this point. And the oppressed state of the Crawford family during the sixteenth and seventeenth 
 centuries, besides their being generally on the loyal or losing side, would naturally have stood in 
 their way had they thought of asserting their claim. — It is unnecessary to dwell further on this topic. 
 
 ix. That the hypothesis attributed to the Claimant, of the Duke's successors having been actuated by the 
 proud feeling of adopting their older but inferior instead of their higher titles, &c. exists only in the 
 imagination of the Crown — the Claimant having never suggested such a thing. All he did (as 
 already stated, supra, p. xciv) was to maintain that the description of the Duke by his inferior title 
 could not, by precedent and example, be prejudicial to him. 
 
 X. That, whereas the Devon patent ever since 1553 stood publicly on record, with the precise operating 
 words of limitation ; and all the material facts and proofs, in themselves sufficiently simple, including 
 the direct undiverging male descent of the Courtenay family and representation, were known and 
 ascertained, and could have been as fully discussed in the sixteenth as in the nineteenth century ; 
 moMy of the facts and documents founded upon in the present claim have only recently and very 
 accidentally heen discovered, and, apart from these, its true merits and bearings could not have been 
 ascertained and appreciated. This therefore supplies the Claimant with the answer and exception, 
 to the plea of non-user and dormancy, of res noviter venientes ad notitiam, to which Scottish law 
 attaches peculiar force. 
 
 xi. That the Norfolk case, so fertile in illustration, also afibrds him a cogent precedent in reply to the 
 present objection. Thomas Earl Marshal and John his younger brother and eventual heir never 
 ventured to assume the Dukedom, but merely the inferior family dignity, although entitled to the 
 former, till circumstances opened the way to their restoration nearly thirty years after the death of 
 Richard Il.f But this was not held to operate as a bar or impediment to their claim or right 
 
 » See the Case, pp. 32, 33; and S. Case, p. 1.S9. See also the Pedigree prefixed to this Volume. 
 
 t This is no theory of the Claimant. It is stated as fact by Dr. Lingard in his learned History of England :— " He " (the 
 Earl of Northumberland) " found a willing associate in Thomas, tlie eldest son of the late banished Duke of Norfolk. Though his 
 " father had not been attainted, he abstained from assuming the title, that he might not provoke the jealousy of the King, and was com- 
 " monly known by the name of ' Lord Mowbray,' or ' Eai-1 Marshal.' " — History, &c., edit. 1837, vol. iv. p. 303. 
 
ANALYSIS OF THE ARGUMENT, cxix 
 
 in the solemn discussion in 1425, and therefore non-assumption should as little tell against the 
 present claim. And if no claim was made or attempted by the Montrose beirs at the same distance 
 of time from the original creation as in the Norfolk case, it has been accounted for by the tyranny and 
 oppression of the contemporary monarch, By the jealousy of the aristocracy, and by the falling 
 fortunes of the family. The day of restitution has never dawned for them until (they venture to 
 hope) the present moment, 
 xii. That all this is in fact immaterial in the face of the great fact that there is no prescription in honours, 
 that no length of tirnie or non-enjoyment is listened to for a moment in law in trying the question of 
 the validity of a patent of nolility ; and for this reason — that evert patent of nobility is 
 
 SUPPOSED TO BE GRANTED FOR THE GENERAL BENEFIT OF THE COMMONWEALTH, AND TEE 
 WHOLE PUBLIC IS THEREFORE INTERESTED IN ITS MAINTENANCE AND SUPPORT. — And, finally, 
 
 xiii. That the Ceown, as before, view this matter simply iu reference to the question whether the 
 Regrant w£is for life or not — a point of view from which it is impossible to appreciate the due 
 proportions and bearings of the Claimant's argument. — Case, pp. 30 sqq. ; S. Case, pp. 138 sqq. ; 
 Infra, pp. 102, 103, 104 ; 179, 180. 
 
 Opinion of the Committee. 
 
 Lord Chancellor. — The Earl of Crawford having been created Duke of Montrose for life, and 
 having enjoyed the Dukedom and the estates " during his life," " died " in " 1495." " His 
 " widow retained the title of Duchess of Montrose till her death . . thirty or forty years after- 
 " wards. His son succeeded him, and sat in Parliament, not as Duke of Montrose . . but . . as Earl 
 " of Crawford." " Everything that has been done since has been done upon the assumption and 
 " footing of " the Dukedom " having been annihilated. Three centuries and a half have elapsed 
 " without any claim to this Dukedom being made ; which is at least a strong argument to shew that 
 " there was some reason why the claim has not sooner been made." — Infra, pp. 317, 343. 
 
 Lord St. Leonards. — " Time, as time, in regard to dignities, goes . . for nothing." The Earldom 
 of Devon " had certainly not been claimed for a very long time, but then, observe, there was 
 " nothing striking at that dignity, — the title, if it were good, remained just as good as it was the 
 " moment after it was made, . . it was a question of construction of the limitation — no question 
 " arising as to the annulling or destruction of the title which had been granted. — But . . it may 
 " well deserve consideration whether it would not be wise to put some limit of time upon a claim 
 " to peerage, in order to prevent such enormous expense and such consumption of time as must 
 " very often take place in regard to claims of ancient peerages," &c. &c.* " If we look to see 
 " what was done in this case, I think I never saw facts in all my experience which with so much 
 " force proved the real construction of those instruments, not now at the end of three centuries and 
 " a half, but then, at the moment when the rights were to be enjoyed, at the moment the claim 
 " was to be made ; and for three and a half centuries from that time, there has never been any 
 " doubt or dispute, either on the part of the Crown as to its rights or on the part of the grantee as 
 " to claiming rights adverse to the Crown. Could there be a stronger fact than this, that, the 
 " Duke having married whilst he was Duke, the Duchess, his widow, continued after his death 
 " to be called the Duchess, and to enjoy the dignity of Duchess, whilst the Duke's heir at once 
 " took upon him the lower title of Earl of Crawford ? Let it be attempted to be explained 
 " as it may, every successor in his turn for three centuries and a half has taken that and 
 " no other title, and never set up the slightest pretence to claim the Dukedom of Montrose." — 
 Infra, pp. 345, 357. 
 
 Observation. 
 
 The following remarks were made by the Chairman with respect to the Earldom of Devon in the 
 course of the discussion : — " Every body believed that the Earldom of Devon had ceased to exist, 
 " and that the title was extinct, down to the day when the new claim was made and adjudged. The 
 " whole family had treated it as extinct ; they had accepted other titles from the Crown, and had 
 " never claimed it during that period. And so it is in this case. The Earl of Crawford from that 
 " day down to the present, and even during the whole time when he made his claim to the Earldom 
 " of Crawford, treated this Dukedom as extinct. The family seem to have been under the impression 
 " that the Crown had granted the title of Duke of Montrose, as it had granted the title of Devon, 
 " to another family. It was an erroneous opinion that it was extinct during that period in the case 
 " of the Earls of Devon, and it was so decided by this House; but that belief existed, and it was 
 " under that belief that the Crown acted." — Infra, p. 104. 
 
 5. By THE Attorney-General : — Whereas, in reply to the objection of the Duke of Montrose 
 that the title of Earl of Montrose was granted by James IV. to the noble family of Graham in 1503-4, the 
 Claimant has shewn that the Earldom of Montrose conferred on William Lord Graham in that year, with 
 its subsequent elevations into a Marquisate and Dukedom, was legally distinct from the Dukedom of 
 Montrose created in 1488, being exclusively derived from a private estate of the Grahams named Auld or 
 Old Montrose, while the Dukedom of the Lindsays is derived from the Royal Burgh of Montrose, with 
 which Old Montrose was quite, feudally and otherwise, unconnected,! — from which he (the Claimant) infers 
 
 * For the Claimant's observations on this suggestion, he would refer to the preliminary Address, supra, pp. xiv sqq. 
 I On this point the Claimant may refer to a note on the Speech of the Lord Chancellor infra, p. 335, n. t,— but especially 
 to his Preliminary Case on the question of the right of the Duke of Montrose to oppose in this claim. 
 
CXX ANALYSIS OF THE ARGUMENT. 
 
 that the field is quite open to him, the dignity derived from the Royal Burgh of Montrose, or Montrose 
 
 proper, having never 'been granted in any shape to a different family than his own, and having merely 
 
 been dormant (as he conceives) since the death of David Duke of Montrose ; the Attorney-General 
 
 admits that the Dukedom may have been derived from Montrose proper and the Earldom from ' Old 
 
 ' Montrose,' " but the title " (he urges) " was a Dukedom in the Old, and in the other the Earldom of 
 
 " Montrose . . without any distinction of ' New ' or ' Old.' " And it would be " the most improbable 
 
 " thing that can be suggested, that the Sovereign, if he desired to make reparation to the heirs or the 
 
 " family of the old Duke of Montrose, created by his father, . . should in that very year create an Earl 
 
 " of Montrose in derogation of the ancient title of Duke of Montrose :" *— On the contrary, the creation 
 
 of a dignity of the same name and appellation must have been and was in " derogation and defiance of 
 
 " the title of Duke " of Montrose in the Lindsays, and must be received as proof that the Dukedom was 
 
 annihilated. — Infra, p. 219. 
 
 Reply. 
 
 The Claimant has merely to observe upon this, that the creation of fifty Earldoms or Dukedoms, taken directly 
 and immediately from the Burgh of Montrose itself, could not derogate from his rights, if only the Act 
 Rescissory has wot per se (as contended) cut down the patent. He has adduced numerous precedents in his 
 Preliminary Case, in which no such prejudicial consequences as those inferred by the Ckown took place. — 
 Case, p. 34 ; S. Case, p. 144 ; Infra, pp. 103, 104. 
 
 Opinion of the Committee. 
 
 Lord Chaxcelloe. — " I cannot conceive anything in the world so excessively improbable as that, if there 
 " were in 1503, at the time of the King's marriage, a Duke of Montrose in existence, the King, wishing 
 " to confer a favour upon Lord Graham, should create him Earl of Montrose. That of itself . . irresistibly 
 " shews that it was not understood at the time that there was any Dukedom of Montrose existing." — 
 Infra, p. 335. 
 
 General Conclusion of the Claimant on this Third Point of the argument, — (viz., 
 the consideration of the Act Rescissory as viewed specially and personally as regards the grant of the 
 Dukedom of Montrose, lith May 1488). — -Whereas the Crovcn asserts, generally, that all follows upon 
 the Act Rescissory that might be expected — that there is not one circumstance from 1488 to 1495 which 
 is not a necessary consequence of that Act — that, in particular, Duke David never publicly asserted the 
 Dukedom or enjoyed the estates granted by the Patent during the interval between the Act and the 
 Regrant — that when he asserted the style of Duke, it was in private documents behind the back of the 
 Crown, and it was in each instance immediately and peremptorily corrected by the Crown to that of Earl 
 of Crawford^ — that on making his peace and being partly restored to favour, the Dukedom and the estates 
 were restored to him, but only for life — that by accepting this Regrant, so limited, he acquiesced in the 
 annihilation of the original grant by the Act Rescissory — that the lands were resumed by the Crown after 
 his death — and that the Dukedom sank and disappeared for ever; the Claimant replies, generally, that 
 if the Act Rescissory did not per se cut down all the grants of James III. without exception, including 
 the grant of the Dukedom, the Dukedom exists at the present moment, and everything else is a 
 matter of perfect indifference ; while he has shewn in particular (the principle in Peerage Law, that 
 charters or patents are governed by their warrants, falling to rule here) that the Duke invariably, as well 
 in public as in private, asserted his right to the Dukedom — that, when he came into personal contact with 
 the King, James IV., he received recognition as Duke, and that he was only styled Earl of Crawford 
 behind his back and that of the Crown, or in circumstances receiving an easy explanation — that he 
 enjoyed the Lordship of Kinclevin (at least) under the Patent, his right to that estate being made the 
 subject of a special reference to the King in Council, who enforced that right — that, the Duke being in 
 possession of the honour and the fief, and not having resigned them at the moment of the Regrant, that 
 Regrant could only have been in terms of the old one, as a virtual confirmation thereof, and not for hfe 
 only ; or, if for life, was futile and innocuous, while the Duke's acceptance or non-acceptance of it could 
 have no effect on the legal interpretation of the Act Rescissory — that the resumption of the estates 
 after the Duke's death, if not the natural consequence of the Act 1493, could only have been through 
 oppression and wrong — and that there is no prescription in honours, while the non-claim is satisfactorily 
 accounted for. 
 
 The Claimant concludes therefore, under this Third division of his argument, that the Act 
 Rescissory was null and void, as viewed Specially and Personally in regard to the 
 grant of the Dukedom of Montrose, 18th May 1488.— Ca«e, pp. 6 sqq. ; S. Case, pp. 79 sqq. ; 
 Infra, pp. 72 sqq., 122 sqq. ; axi& passim. 
 
 * This is said with reference to the Revocatoi-y Act of 1503-4, with respect to which vide infra, p. cxxvi. 
 
ANALYSIS OF THE ARGUMENT, CXXl 
 
 Opinion of the Committee — General Conclusion. 
 
 LoBD Chancellob. — " There is a body of evidence shewing that" the Act Rescissory " was understood by 
 " everybody at the time to have annihilated the Dukedom." — The fact that everything follows that might 
 be expected " if the dignity was annihilated " — the deprivation " either by force or by fraud " of the 
 Sheriffdom of Forfarshire — the sitting " in Parliament as Earl of Crawford , . after the Act Rescissory " — 
 the fact that " all the occasions on which " the Duke " did call himself Duke before the new creation of 
 "the Dukedom . . were, . . so to say, behind the back of the Crown" — the Regrant for life — the 
 resumption of the estates — the dormancy of the honour since the death of the Duke — form altogether 
 " a most wonderful confirmation of the interpretation that I put upon the " Act Rescissory, and shews "the 
 " interpretation that was put upon it at the time ; because everything is in exact conformity with such a state 
 " of things, and inconsistent with any other hypothesis." — Infra, p. 317. 
 
 Lord St. Leonards, — " If there could have been a question at the time" as to the effect of the Act Rescissory, 
 " what are we to say after three centuries and a half of acquiescence in the construction which I am now 
 " stating . . to be . . clearly the right construction ; and with every act which is entitled to any 
 " weight that has taken place during that long course of time, being, . . when properly considered, con- 
 " sistent with . . that construction ? " — Infra, p. 350. 
 
 IV. 
 
 7'he (penal) Act Rescissory proved null, void, and inoperative, 
 
 IV. As viewed with reference to later statutes and other circumstances bearing 
 UPON its validity. 
 
 1. The Act Rescissory is contradicted and disowned, so far, through the pointed 
 
 OMISSION OF THE CARDINAL WORDS " CREACION OF NEW DIGNITEIS " IN THE STATUTE 15tH FEBRUARY 
 
 1489-90, which recites and enforces it ; and is altogether superseded by the later statute 26th 
 June 1493, which also omits dignities. 
 
 . The Act Rescissory is contradicted as regards dignities by the statute 15th February 
 1489-90. The words of the Act are as follows, and the Act Rescissory is printed side by 
 side vpith it to assist comparison : — 
 
 Act Rescissory, \7th October 1488. Supplemental Act, 15th February 1489-90. 
 
 " Item, anent the Proclamacione " Item, it is thocht expedient that becaus 
 
 " maid at Scone, it is statut and ordanit " thare wes a statut maid in our Soverane Lordis 
 
 " that all alienacions of landis, heretage, " Parliament, that now is, haldin at Edinburgh 
 
 " lang takkis, fewfermez, officez, tailzeis, " on Wednisday, the viij [sz'c] day of October, 
 
 '■'■ hlanceferm, creacion of new digniteis, " th'ere (the year) of God j^iiij'lxxxviii zeris 
 
 " grantit or gevin to ony persone or per- " (years), declarand all alienacions of landis, 
 
 " sons, quhat estate, condicioun, or degre " heretagis, lang takkis, fewfermis, officez, tailzeis, 
 
 " that ever thai be of, sene (since) the " blanch fermis landis mad of ward, of nane 
 
 " secund day of Februar last by-past, be " avale efter the secund day of Februare, quhilk 
 
 " umquhile our Soverane Lordis f'aider, " wes the day of our Soverane Lord that now is 
 
 " quham God assoilze, quhilk (which) " cuming furth of Strivilin (Stirling), unto the 
 
 " mycht be prejudiciale to our Soverane " coronacioun of our Soverane Lordis Hienes, 
 
 " Lord and to the croune that now is, be " maid be his faider of maist noble mynd, maid of 
 
 " cassit and adnuUit, and of nane effect " nane avale, force, nor effect, for certane causis 
 
 " nor force in ony tyme to cum. becaus that " contenit in the said act and statute ; That ther- 
 
 " sic alienacion, giftis, and privilegis war " fore all thai quhilkis gat the pretendit giflis of 
 
 "grantit, sene the said tyme, for the ^^ alienacioun qf heretage, lang takkis, fewfermes, 
 
 " assistance to the perverst counsale that " officez, tailzeis, geving of blanchferme of ward 
 
 " warcontrarthecomon gudof therealme, "landis, suld bring thair lettrez and evidentis 
 
 " and eaus of the slauchter of oure Sove- " grantit herapon to our Soverane Lord within 
 
 " rane Lordis iader." " fourtj dais, to be distroyit ; Certifying thaim 
 
 " that bringis nocht, the King will mak thaim 
 " to be specialy callit and punist for thare in- 
 " obedience."* 
 
 — It is to be observed here, 
 
 (1.) That the very passing of this Supplemental Act proves that the Act Rescissory, which 
 
 it was designed to prop up, had proved abortive. 
 
 (2.) That the words " creacion of new digniteis " are entirely and pointedly omitted in 
 
 * ' Acts of Parliament,' vol. ii. p. 222.— See also the Appendix, infra, p. 381. 
 
 R 
 
cxxu ANALYSIS OF THE ARGUMENT. 
 
 this later statute, enforcing the Act Rescissory term by term with the exception of 
 that one phrase — and not once hut twice^ precluding the possibility of a mistake or 
 oversight. 
 (3.) That if this particular Act, Supplemental to the Act Rescissory, had been effective, 
 the charters of James III. ought to have been brought in, as ordained by it — but the 
 charters as well as the lands remained, uncancelled, in the possession of the grantees 
 of James III., and are still in the custody of their representatives, as proved in the 
 instances of the Balnamoon, Balyordie, Kenmure, and Brechin grants, and of the 
 Glencairn patent ; and therefore this Act, as well as the Act Rescissory, took no 
 effect. It is impossible to imagine more strict or relevant contemporama expositio 
 as to the fact in question. One of the grants adduced by the Claimant, the 
 charter to Gordon of Lochinvar, 23rd May 1488, had actually been confirmed 
 by James III. before this Supplemental Act was issued, viz. on the 26th 
 July 1489.*— Case, p. 5 ; S. Case, pp. 24, 74; Infra, pp. 129, ISZ.f 
 
 Objection by the Ckown. 
 
 Attorney-Genebai.. — The Act 15th Feb. 1489-90, " it is true, refers to grants of estates and of oiBces, and 
 " not of dignities ; but the obvious reason why dignities were not included was this — that they were not 
 " meant to be struck at." — " There were but . . two dignities " struck at by the Act Rescissory, the Dulce- 
 dom of Montrose and the Earldom of Glencairn. " The Duke of Montrose had admitted the effect of the 
 Act and accepted a new grant of a new Dukedom, " but simply for life." " Lord Kilmaurs had admitted 
 " the effect of the Act, had abstained from . . asserting his title to the Earldom of Glencairn, and had 
 " consented to be served heir to his father under the modest title of Lord Kilmaurs. There was 
 " therefore no necessity why the feelings of those two noblemen should be wounded by a repetition of the 
 " enactment in reference to dignities — they having submitted to the operation of the Act." — Infra, p. 219. 
 
 Reply and Remaek. 
 
 The Claimant believes he has proved that the Act Rescissory did not take effect either on the Dukedom of Mont- 
 rose or the Earldom of Glencairn. And even if the Duke and the Earl had refrained from claiming or 
 asserting their rights, or even if they had expressly " acquiesced " in the Act Rescissory (as stated by the Lokd 
 Advocate, supra, p. ci), the statesmen who drew up the Act 15th Feb. 1489-90 must have been too good lawyers 
 not to know that such non-claim and acquiescence could not have given the Act Rescissory the legal efficacy 
 in which it was intrinsically deficient — nor would they, as any one familiar with the times will allow, have 
 been so delicate- minded as to omit the clause " creacion of new digniteis" in an Act passed for the very 
 purpose of propping up the Act which struck at those dignities, and at the risk too of creating doubts there- 
 after as to the correctness or authenticity of that original Act as recorded in the Statute- Book, out of tenderness 
 for the " feelings " of an enemy and rival like the Duke of Montrose ! Feelings, like ' nerves,' were scarcely 
 in existence in the fifteenth century. The explanation of the Ceown is in a word lame and insufficient, and 
 the Claimant submits that if, as admitted on all sides, this Supplemental Act Ihtli February 1489-90 was passed 
 with the view of erforcing and carrying out the Act Rescissory, any part of the former Act that is dropped out 
 of the later one — as is the phrase " creacion of new digniteis '' in question — must he legally held as given up 
 and ahandmied, and as not intended to be enforced. — S. Case, pp. 24, 130. 
 
 Opinion of the Committee. 
 
 LoED Chakcellok. — After citing this statute as one by which "the Legislature have put their own construction 
 " upon" the Act Rescissory, the Noble and Learned Lord proceeds : — " I am aware that in this Act there 
 " is no mention of titles and dignities, — but I do not think that that signifies at all. Probably every creation 
 " of a dignity contained (as I think we certainly see in this case) a grant of lands. There might have been a 
 " creation of a dignity without lands. In that case the surrendering the title did not signify at all ; but the 
 " surrendering the titles to lands might be very important, . . but no such difficulty could exist with respect to 
 " a mere title of honour, — and that affords a very good reason for the legislature not having mentioned the 
 " creation of dignities in the second Act." — Infra, p. 314, 315. 
 
 Lord St. Leonards. — The Act 1489-90, " which requires the parties to bring in their documents, is perfectly 
 " conclusive." " That Act of Parliament did not refer to dignities, but it required the persons to whom the 
 " property had been granted to bring in their deeds, speaking of the grants as pretended grants, as they were 
 " spoken of in several instances. And the reason of that was, because they chose to treat James III. as 
 " having ceased to reign on the 2nd of February. Therefore, of course, those grants were not allowed to 
 " continue as real grants, and were not treated as real grants by the monarch on the throne. The result 
 " was, that no doubt they were struck at. That Act of Parliament in truth aided and assisted the former 
 " statute," the Act Rescissory. " So far from being adverse to the Act of 1488, it was actually in aid, in 
 " confirmation, in corroboration, and in extension of the powers of that very Act of Parliament. It did not 
 " relate to dignities. Why not? There were but two dignities which had been granted, one the Dukedom 
 "of Montrose, and the other the Earldom of Glencairn. Both the noble " grantees " had acquiesced in 
 
 ' Vide Case, p. 35, and Appendix, p. 402. f See also pp. 434, 43G, 439, 440, 442, 492. 
 
ANALYSIS OF THE ARGUMENT. CXXlU 
 
 " the Act of 1488. The Duke had acquiesced by accepting the Regrant, limiting to him for life the same 
 " dignity. . . The Earl ol' Glencairn had not claimed ; he died on the field of battle with his master ; and his 
 " son had not claimed the dignity, — and therefore there was no claimant. It is not clear that there were any 
 " patents to bring in in these cases, but if there had been they were clearly struck at, and it was unnecessary 
 " to refer particularly to them, — that Act of Parliament therefore was confined to grants, lands, and heritages, 
 " and so on, and did not refer to dignities." Infra, pp. 359, 360. 
 
 Obseevation. 
 
 The Lord Chancellor lays it down, with reference to the supposed non-acquiescence of the Duke in the Act 
 Rescissory, that " if it was an Act of Parliament, whether he acquiesced or not was totally immaterial, — if" 
 the Dukedom was destroyed by Act of Parliament, his " protesting, or his saying that he would still call 
 " himself Duke of Montrose is utterly immaterial." — Infra, p. 321. There can be no doubt of this,— and the 
 Claimant has never denied it — on the supposition that the Act Rescissory was fully sanctioned by the King 
 and practically operative. But if acquiescence could have no effect atjainst the Act, neither could it have any 
 effect in its favour. It is assumed here by Lord St. Leonards that acquiescence and non-claim on the 
 part of the Duke of Montrose and Earl of Glencairn were enough to supersede the necessity of repeating the 
 clause " crcacion of new digniteis " in the Act passed to support and extend the provisions of the Act 
 Rescissory. The Claimant submits (with the Lord Chancellor) that it is impossible to account for the 
 striking discrepancy between the two Acts in such a manner. 
 With respect to the assumption of the Lord Chancellor, that the patents of the Earldom of Glencairn and 
 Dukedom of Montrose were creations in each case of " a mere title of honour," without "lands," and there- 
 fore it was unnecessary to order that the patents should be brought in, or to mention the "creation of 
 " dignities " in the Act 1489-90, the simple reply is, that bothpatents crnivey lands. And, whereas the Lord 
 Chancellor and Lord St. Leonards appear to take it for granted that the Act 1489-90 took effect so far as 
 lands were concerned, the Claimant has shewn (as he must again repeat) that those lands, and the charter 
 of James III. which conferred them, remained without challenge or question in the possession of the grantees, 
 in the face of the Act in question — which was thus a dead letter ub initio. But this is entirely overlooked 
 by the Noble and Learned Lords. 
 
 ii. The Act Rescissory (with its Supplementary enactment 15th Feb. 1489-90) is contra- 
 dicted AND DISOWNED, not Only as regards dignities but in ioto, by the later statute 
 DATED 26th June 1493, which rescinds, annuls, and resumes, absolutely and ex tunc„ 
 without any qualification whatever, the grants of James III. from — according to the last 
 edition of the Statutes — the 2nd February 1487-8, the same date referred to by the Act 
 Rescissory — but, according to the Black Acts, the original edition (printed in 1566), to 
 which the learned Editor of the last edition refers as his main authority for the text 
 of these particular statutes, from the 2nd September 1487. The Act in question is as 
 follows : — 
 
 "Item, it is statute, concludit, and ordanit in this present Parliament be the haill Thre Estatis, 
 " that, becaus thai have avisit, considerit, and understandin that oure Soverane Lord that last decessit, 
 " quhom God assolze, beand the tyme commovit and displesit throw evill counsall that was about him 
 " in the tyme a little befoir his deceiss, analyit and put away baith of his awin landis and possessioun 
 " pertening to his Hienes in propertie, and als, agane justice and gude conscience, ressavit and take 
 " resignatiounis of divers landis, and gaif infeftmentis in exheredatioun and disherysing of the rychtwis 
 " airis, be the solistatioun and persuasioun of the evill counsall that was about him, as said is, without 
 " ony ressonabill caus, to the displesor of God, contrare justice, and to the hurt of his saule ; That 
 " therfor all the saidis donatiounis and infeftmentis, maid and gevin be him fra the secund day of 
 " Februar in the zeir of Ood ane tliousamd foure hundreth foure scoir sevin zeiris to the day of his 
 " deceis, sal be ofnane avale, force, nor effect iri tyme to cum ; bot at (that) our Soverane Lordis Hienes 
 " that now is saZ be restorit and reintegratit to all landis, rentis, possessiounis, that was be ony maner of 
 " way analyit and gevin be his father to quhatsumevir pjersounis within the said tyme. And in like 
 " wis, that all resignatiounis ressavit be him and infeftmentis that he gaif to the exheredatioun and 
 " disherysing and putting of ony landis and possessiounis fra the rychtwis airis sal be of nane avale, force, 
 " nor effect in tyme to cum ; Bot at {thai) our Soverane Lord and all utheris persoimis that was hurt 
 " within tJie said tyme sal be and is be vertem of this Act restorit in integrwm to all rychtis as tJtai 
 " war of befoir the said day. And cassis and annuUis all donatioynis, giftis, and infeftmentis maid 
 " efter the resignationis within the said tyme, and decernis thame to be of nane avale, force, nor effect 
 " in jugement nor without in tyme to cum." * 
 
 It is to be observed here, — 
 
 (1) That, while the Act 15th Feb. 1489-90 recites and endeavours to support the Act 
 Rescissory, that of 1493 makes no reference to it whatever, — if the Act 
 Rescissory had never existed, it could not be more silent. And, as it strikes anew and 
 ex tunc at rights which could no longer have been in existence if that Act and its 
 
 * Acts of Parliament, vol. ii. p. 235. 
 
 E 2 
 
cxxiv ANALYSIS OF THE ARGUMENT. 
 
 Supplementary enactment had been effective, tlie inevitable conclusion is, that both 
 those earlier statutes, of the 17th October 1488 and the 15th Feb. 1489-90, were 
 NULL AND VOID ab initio. This is all that concerns the Claimant upon this point of 
 the argument. 
 
 (2) That, both the earlier Acts being thus abortive, the Act of 1493, conceived in the 
 
 usual manner of Acts passed for the purpose of annulling improvident grants of 
 Crown property, and unexceptionable (thus far) in every respect, was the only one 
 which could have stood and been effective; and the resumption by James IV. of the 
 estates granted with the Dukedom, as well as of the other properties which had been 
 originally bestowed by his father James III. on his followers (as alleged by the Crown), 
 must be attributed to its operation— unless the resumption tooh place {as suggested by 
 the Claimant supra, pp. xxxiii, cxiv, as alternative and preferable possibilities) through 
 the exercise of injustice and oppression in the case of the Duke of Montrose, or through 
 legal and regular devolution into the hands of the Crown, between 1488 and 1497, 
 in the case of the other grants.* — And lastly, 
 
 (3) That this posterior Act of 1493, whether it affected the Montrose and Kinclevin 
 estates, as originally Crown property, or not, could not have affected the Dukedom of 
 Montrose, — Dignities (as in the intermediate Act 1489-90) being studiously ex- 
 cluded /rom it.—S. Case, pp. 24, 32, 33; Infra, pp. 129, 130, 259, 260, 277. 
 
 Objections by the Crown. 
 
 The Ckown only notices this argument by the objection grounded on the resumption of the estates 
 — which has been answered supra, p. cxiii. 
 
 Opinion of the Committee. 
 The Lord Chanoellob takes no notice of the Claimant's argument founded on the Act 1493. 
 LoBD St. Leoxards.— " The Act of Parliament of 1493 is )6r further annulling grants and referring 
 
 " to resignations, and it evidently does not at all touch the question." It has " no bearing 
 
 " upon the case." — Infra, p. 360. 
 
 Obsekvatioh'. 
 
 The Claimant would refer to his note upon the preceding passage of Lord St. Leosaeds' Speech, infra, p. 360, 
 merely remarking here, that the " grants " assumed by Loed St. Leonards to be " further " annulled by the 
 Act 1493 were grants of lands which had been previously struck at by the Act Rescissory and the Act 1489- 
 90, including the grant of the. estates accompanying the Dukedom of Montrose; and that, if the grants of 
 lands still retained their vitality, so as to render a "further " blow imperative in 1493, the grants of dignity 
 must also have retained their vitality. 
 
 It is evident therefore that reflection and calmer perception of the limits of Parliamentary power 
 had shewn the concocters of the Act Rescissory that it was incompetent to affect dignities ; and they may 
 therefore be concluded to have omitted the words designedly in framing the Supplemental Act of 1489-90 
 and the Act ex tunc of 1493. 
 
 2. The Act Rescissory being never practically or legally enforced or alluded to in any subsequent 
 Scottish deeds, grants, legal proceedings, or transactions whatsoever, and the grants of James IIL having 
 all stood, so far as can be traced, unaffected by the Act, the Act is thus virtually null and abrogated, 
 according to Scottish law and practice, through non-observance and non-operation ab initio, or, to 
 use the Scottish phrase, by Desuetude. 
 
 It was the practice (as will scarcely be denied, but which the Claimant has fully proved in his 
 Supplemental Case) to set forth precisely in the quequidems of Scottish charters how and in what manner a 
 subject (afterwards disposed of) escheated to the Crown — with minute and clear reference to the Act of 
 Parliament or other mode by which the former possessor became denuded of his inheritance, f But 
 
 * See also the General Observations, infra, pp. 509, 544. 
 
 t The Claimant may cite from the ' Supplemental Case ' (pp. 28 sqq.) the following (among many other) illustrations of the 
 practice in this respect : — 
 
 i. Eeference to a General Act Revocatory in a Charter by David II., 17th January, in the thirty -ninth year of his reign, 
 1367-8, (preserved in the Arbuthnot Charter-chest,) to Alexander de Stratoun, of certain subjects in the burgh of 
 
ANALYSIS OF THE ARGUMENT. ^xx 
 
 neither in the case where, above all others, the Act Rescissory would have been noticed if it had been prac- 
 tically effective, viz. the Regrant of Kinclevin by the Litera 19th September 1489— where, according 
 to invariable usage and on the hypothesis of the Act having taken effect, the new grant would have been 
 accompanied by a statement in the quequidem clause that the lands had been vested in the Crown through 
 the Act Rescissory — neither in this nor in any other single instance is the Act Rescissory applied or even in 
 the faintest manner alluded to in any later Scottish instrumeids, though there was abundant opportunity 
 for such application or allusion through subsequent writs or gvaxiis,— nothing of the sort has been dreamt of 
 till modem times — the Statute Book is at once its cradle and its grave. Hence, on this ground alone, the 
 Act Rescissory must be considered null and abortive.— Case, pp. 15, 18 ; S. Case, pp. 28, 29, 30, 31 ; 
 Infra, pp. 8, 82, 95, 119. 
 
 Objection by the Crown. 
 
 LoKD Advocatk. — " There is nothing upon which the Claimant can ground a plea that this Act" (the Act 
 Rescissory) " has grown into Desuetude." It " is clearly recognised in the spring of the following year by" 
 
 Inverbervy, " qm et qui pertinebant ad quondam progenitores nostros, Dominos de Bruys ; . . et que fueruut nuper 
 " in manu Andree Campbell, militis, ex concessione nostra, et ad manus nostras peA* generalem revocationem de nostra 
 " parliamento factam deyenerant." — This is conceived to be a very strong instance. The language of conveyances 
 and the forms of deeds were briefer and simpler in 1367-8 than in 1488 and afterwards, and yet a previous grant by 
 the King who granted the Charter, and which had been validly annulled by an Act Kcscissory, is here, as well as 
 the Act which revoked it, articulately recited in the quequidem. 
 
 ii. Reference, in the Decision by the Lords of Council, 16th August 1479, against Walter Stewart for the " wrangwise" 
 occupation of the lands of Cluny, to the General Act Beoocatory, or Sescissory, 10th July 1476, by which " the first 
 " gift that was maid of the saidis landis . . be umquhile our Soveran Lord, quhom God assolze " (James II.), " to 
 " umquhile Sir Patrik Gray, in the tendir and non-age of the said umquhile our So-veran Lord, . . was therefter 
 •• rewkit be his Hienes " (James III.) " at his lauchfuU age," &c. — Acta Dominorum Ooncilii, p. 31. 
 
 in. Reference by James III., in a Confirmation in Parliament, 16th February 1483, to John Ramsay, of the Barony of 
 Bothwell — to the General Act Sescissory, or of Hemcation, 10th July 1476, as follows : — Confirmation, &c. " familiari 
 " suo Johannj Ramsa, . . dorainii seu baronie de Bothvile, una cum quadraginta marcatis terrarum infra dictum 
 " dominium, que ad manus suas, racione sue Revocacionis facte de eisdem, quas olim occupavit Willielmus Dominus 
 " Monipenny, legitime devenerunt." — Acts of Parliament, vol. ii. p. 153. 
 
 iv. Reference, in the Decision by the Lords Auditors, 21st January 1488-9, (already given,) against " David Erie of 
 " Crawfurd" for " wrangwis occupation of the landis of the lordschipis of Brechin and Newar," granted to him by 
 James III. — to the " annexatioun of umquhile King Jarries the Secund of noble mynd," " of the date of the xvij day of 
 " Junij, the zere of God j" iiii" fiftj and five zeris, and of his regne the xix zer, contenand the said lordschipis of 
 " Brechin and Neware," &c. — in consequence of which annexation " David Erie of Crawfurd " was depriTcd of those 
 lordships.— Printed in the Appendix to this volume, infra, p. 529. 
 
 V. Charter by James IV., dated penult. May, 1498, and recorded in the Great Seal Register, to Sir John Ramsay, (for- 
 merly Lord Bothwell,) of a tenement and orchard in the Cowgate, Edinburgh, " quodquidem tenementum," &c. 
 " nobis pertinent, et in manibus nostris existunt, ratione forisfacture super ipsum Johannem prius deducte, ac ratione 
 " prefate nostre generalis revocationis," of the 26th June 1493, " revocantis, cassantis, et adnullantis omnes alias 
 " donationes per nos tener^ in etate cuicunque persone vel quibusounque personis desuper factas," &c. — And with this 
 additional clause, proving inter alia that even such Acts Rescissory or Revocatory required repetition and reenforce- 
 ment de novo for their due application: — " Insuper nos de novo revocavimus, cassavimus, et adnullavimus " — and 
 moreover " specialiter adnuUamus — omnes alias donationes per nos tenerS, in etate nostrS. de dicto tenemento et orto, 
 " cum domibus, edificiis, mansionibus, &c. cuicunque persone vel quibuscunque personis prius, ut premittitur, factas, 
 " quas donationes volumus esse nullius vigoris, eSicacie, vel morcenti in futurum." — If such care and formality were 
 requisite and resorted to in the case of such trivial property as this, they must have been requisite and resorted to 
 d fortiori in the case of a Dukedom." 
 
 vi. Gift by James VI., 24th January 1588, to Mr. Mark Ker, " of the escheit of all gudis," &c. " quhilk pertenlt to John 
 " Ker of Hirsel, . . and now pertening to our Soverane Lord . . through being of the said Johne ordourlie denuncit rebel," 
 &c. " togidder alsua wyt the said Johnis lyverent of his landis ande heretage, as lykwyiss becum in our Soverane 
 " Lordis handis be vertew of the auld Act of Parliament, for his remaining and abyding at the horn for the cans foresaid 
 " attour the space of [ane] yeir and day, quhereby he hes tint (lost) . . the said lyverent." 
 
 vii. Charter under the Great Seal, 20th January 1609, recorded in the Great Seal Register, to Sir James Colville of Easter 
 Wemyss, of certain lands which had belonged to the Abbey of Culross, " et nunc nobis spectantes et pertinentes 
 " virtute Acti Annexationis integrarum terrarum eeclesiarum hujus regni nostri Scocie ad nostrum coronam," the Act of 
 Annexation of Church lands 29th July 1587, "et nunc a dicta annexatione dissolutas virtute dicti Acti dissolutionis in 
 " Parliamento nostra desuper facte," &c. 
 
 viii. Royal charter, 14th February 1785, recorded in the Great Seal Register, — following an Act of Parliament, 24 Geo. III., 
 c. 57, restoring the Cromarty estates, against an Attainder, to John Lord Mac Leod, son of George Earl of Cromarty — 
 in order properly to apjjly the Act, and vest him in the property, — the quequidem of which charter recites that the 
 estates " forisfactura fuerunt dicto nupero Domino Regi " (George \l.)" per attincturam dicti Georgii nuper Comitis 
 " de Cromarty ; et quae annexre fuere Imperiali Coronae hujus Imperii per Actum vigesimo quinto regni dicti nuperi 
 " Domini Regis," " et quae exinde disannexce fuerunt ab Imperiali Corona hujus Imperii per aliud Actum, etiam 
 " supra recitatum, anno vigesimo quarto regni nostri,"— that is of George III. After which infeoflFment followed on 
 the 29th March 1786. 
 —And reference may be made to the public records passim. Q>) 
 
 (") The General Act of Revocation, 26th June 1493, is distinct and separate from the Act adduced supra, p. cxxiii. 
 C") See also the Charter to James Lundin of that Ilk, 12th March 1696, cited supra, p. xux; the Charter of the Ducal fief 
 of Lennox, ult. July 1583, p. lxxix ; and other examples, infra, pp. 502, 503, 534. 
 
cxxvi ANALYSIS OF THE AEGUMENT. 
 
 the Supplemental Act 1489-90; and "in the proceedings in the Earl of Glencairn's case in 1648 . . there 
 " was no doubt expressed . . that the Act of 1488 was in truth an operative Act;'' "and Lord Lough- 
 " borough's judgment of 1797 . . was . . that this Act of 1488 did in fact take practical effect, and must 
 "of necessity be given effect to ' — these "instances . . shew that the Act of 1488 was always treated 
 " and dealt with as an Act that took practical eii'ect and operation." " The case of Glencairn," in 
 particular, " is a most clear and aUolute contradiction " to the plea of Desuetude. Admitting " that Acts 
 " of Parliament in Scotland, even of the most public nature, had so much flexibility in them that they 
 " were capable of going into Desuetude," and that in this case as in others it might be plausibly 
 maintained that "forty years" of possession might possibly " work out the effect even of such an Act 
 " as this," and the Court of Session in 1648 " held, or at least were asked to hold," on this principle, 
 that " in consideration of the Earl of Glencairn's possession of the title the effect of the Rescissory 
 " Act had been worked out," still that will not apply to the present case, where there was no pos- 
 session and the Act Rescissory took ofiect at once, on the dignity. " If the facts were capable of 
 " supporting" the plea of Desuetude— if the Claimant could "satisfy" the Committee "that . , some- 
 " thing" was done "after that statute," . . that "some subsequent proceeding" took place "that took 
 " away the effect of that Act," " it might probably have an important effect upon this case." But he can 
 shew nothing of the sort.— In fact, " from 1495 till this claim was made . . there have been three centuries 
 " and a half of application of the Rescissory Act, so far as there could be an application of it by the non- 
 " assertion of any right inconsistent with it." Infra, pp. 228, 230, 239, 243. 
 
 Reply and Observation. 
 
 The Claimant can do no more than appeal here to the evidence. No instance of subsequent allusion or reference 
 has been brought forward by the Crown, with the exception of the Supplementary Act \bth February 1489-90, 
 the spasmodic, dying, and fruitless effort of the spirit which produced the Act Rescissory to perpetuate its 
 existence — and which, as above stated and urged by the Claimant, omits dignities. Nor is it pretended that 
 it was ever attempted to apply the Act Rescissory by legal process till the Glencairn and Eglinton process 
 in 1648 — when the decision was against the Act Rescissory, in the manner and for the reasons elsewhere 
 proved. The argument from Desuetude is therefore conclusive in the Claimant's favour. 
 
 Opinion of the Committee. 
 The Lord Chancellor and Lord St. Leonards take no notice of the absolute silence above proved, or of the 
 argument from Desuetude. 
 
 3. Finally, the Act Rescissory (even if operative, which has been disproved) would have been 
 rescinded and revoked by the very same authority which enacted it. 
 
 As already stated, Pope Innocent VIII. had excommunicated the rebels at the first moment of 
 their rebellion against James III. They persevered in that rebellion, and fought the battle of Stirling, 
 in which their Sovereign fell — they being the cause and instruments of his death. After that catastrophe 
 they passed the Act Rescissory, 17th October 1488, laying the guilt of the late King's death on his own 
 adherents. But thereafter they were struck with terror and remorse, and sued to Pope Innocent with the 
 deepest humility for absolution and a recall of the excommunication. The Pope complied by a Bull, dated 
 the 5th July 1491, adduced by the Claimant ; * and they were restored (after due penance) to the unity 
 and bosom of the Church. 
 
 The Claimant has also shewn by the Act 20th February 1491-2 f and other testimony that public 
 execration had pronounced its verdict on the character of the rebellion. 
 
 The young King, James IV., who had not been included in the excommunication, shared in this 
 remorse. He sought to calm his conscience by the penance of wearing an iron chain or belt round his 
 body, by completing and endowing the Chapel of Stirling, begun by his father, and by rescinding (at least 
 in general terms) such acts of injustice as had been committed since his accession. In pursuance of this 
 object the following Act appears in the Records of Parliament, 13th March 1503-4, between two other 
 Acts of Parliament, referring to the endowment of the Chapel of Stirling, thus forming one and the same 
 act of expiation : — 
 
 " The quhilk day our Soverane Lord revokit, with consent of the Thre Estatis of the Parliament, 
 " all donations, giftis, Actis, Statutis of Parliament or Generale Consale, and all uther thingis 
 " done be him in tymis bigane other {either) hurtand his Saule, his Croune, or Hali Kirk. And 
 " that the said donations, giftis, actis, statutis, or utheris thingis, thus revokit, be had for not done, and to 
 " be put furtht of the bukis and writingis," — or to be held pro nan scripto-X 
 
 Brief as this Act Revocatory may be, the Act Rescissory was equally brief, and there can be no 
 question as to its efficacy to annul its predecessor ; for, if it be maintained that under the general terms of 
 
 * For this Bull see the ' Minutes of Evidence,' p. 142, and the Appendix, infra, pp. 384 sqq., where a translation is also given, 
 t Acts of Parliament, vol. ii. p. 230 ; and Appendix, infra, p. 386. And vide supra, p. x. 
 X For this Act and those which precede and follow it see the Appendix, infra, pp. 387, 388. 
 
ANALYSIS OF THE ARGUMENT. cxxvil 
 
 the Act Rescissory, visiting those who were (falsely) alleged to be guilty of the murder of James III. with 
 deprivations and specialties, the Dukedom was included, there can be no reason why that very Act 
 Rescissory should not be itself rescinded under terms of equal generality in the Act Revocatory,— and if 
 the former could in general terms inflict special forfeitures, so could the latter a fortiori in general terms 
 rescind such forfeitures. 
 
 Amends were thus made — accumulando jura Juribus — for the injustice of 1488. The Act 
 Rescissory of that year, passed by men actually (with the exception of the King) under sentence of excom- 
 munication by the Pope and Church in consequence of their rebellion — an Act laying the guilt of the 
 late King's murder at the door of his loyal defenders, the enacters of it being themselves the parricides ; 
 and visiting those loyal defenders with severe penalties — ^an Act therefore manifestly most hurtful to 
 the soul of the King, personally, who ostensibly sanctioned it, to the Crown, generally, whose prerogative 
 was weakened, and to the Holy Kirk, whose authority was insulted by it — was thus, itself, (however null 
 and in non-observance ab initio,) formally rescinded and annulled by the same authority that had enacted 
 it. — Case, pp. 19 sqq. ; S. Case, pp. 32 sqq. ; Infra, pp. 85, 86, 87, 88, 89, 134 sqq. 
 
 Objections by the Crown. 
 
 Attorney-General. — " The other Act was passed in 1503 with reference to matters hurtful to the King's con- 
 " science. No doubt he was repentant of the undutiful and unfilial course which he had pursued towards his 
 " father. But what was this Act ? Nothing but a mere salve to his conscience, framed in the most vague 
 " and unmeaning terms, and clearly not applicable to a case like the present, unless " the Committee finds 
 " an immediate reference to the case of these dignities, or anything to shew that it had ever been considered 
 " to operate upon them." The fact that James IV. created the Earldom of Montrose, " as it were, in dero- 
 " gation and defiance of the title of Duke," in 1503-4, " in the very year in which " the Act Revocatory 
 " passed," proves that the King, " who is supposed to have had . . the case of the annulling of the Dukedom 
 " of Montrose . . in his mind . . when passing" the Act of 1503-4, had no intention to revive the Dukedom. 
 It is " absurd . . to suppose that the King . . had anything in his mind in reference to this case " while 
 passing the Act in question. — Infra, p. 219. 
 
 Replies. 
 
 i. The Crown is here somewhat inconsistent — holding that special reference or mention of the dignities of 
 Montrose and Glencairn would be necessary to make the general Act Revocatory of 1503-4 effective to the 
 resuscitation of those dignities — in the very face of its previous argument that special reference or mention 
 of those dignities was not necessary in order to give effect to the g'eneraZ Act Rescissory of 1488, so as to 
 destroy them — the latter, or Act Rescissory, thus broadly interpreted, being a penal, and the former, or Act 
 Revocatory, of 1503-4, to which the strictest interpretation is here given, being a remedial measure.* It may 
 be suflScient, legally, to repeat that if the Act Rescissory could in general terms (as is assumed) inflict 
 special forfeitures, much more could the Act Revocatory in general terms rescind such forfeitures.! And if 
 weight be attributed to the one Act of Parliament, the Crown and the Committee are bound to attribute it 
 to the other. 
 
 ii. As elsewhere stated, li is not the presumed " intentimi" of those who pass Acts of Parliament, hut the actual 
 words of those Acts which form the subject of legal interpretation. The words here, though genera], are clear, 
 precise, and comprehensive — they revoke " all donations, gifts. Acts, Statutes of Parliament or General 
 Council, and all other things done by him " (the King) " in times bygone, either hurting his Soul, his 
 " Crown, or Holt Kirk." By these words the Act must be construed, as rescinding all Acts and Statutes 
 which clearly and unmistakeably, according to the laws of God and man, fall within their scope and purpose — 
 always of course with a leaning towards mercy, loyalty, and truth,^and this entirely apart from any reference 
 to the supposed " intention" or the inconsistent conduct and shortcomings of the fallible men who framed it. 
 If, for example — after the clear and solemn contract entered into between the Duke of Montrose and 
 James IV,, and the terms of which the Duke fulfilled (as is admitted on all sides) — the King, after legally 
 recognising his title, subsequently disallowed it, and imposed on him a Regrant limited to his life — all of 
 which is maintained against the Claimant in this case — then such breach of faith, with all its consequences, 
 must necessarily have been rescinded by the Act Bevocatory, as offensive alike to Ood and man ; and the 
 opponents of the Claimant must, in consistency, recognise his rights under the original Patent at the present 
 moment. It is evident too that if the Act passed by the King in 1503-4 had the legal efficacy which the 
 Claimant attributes to it, it matters nothing whether the King had the case of the Dukedom of Montrose in 
 his mind or not, — the King was functus after assenting to and promulgating the statute — whatever its effect 
 or application. 
 
 iii. But if Acts of Parliament are to be expounded, according to the Ceown, by reference to the circumstances of 
 
 * This is not in accordance with the principle enforced by Sir Edward Coke with respect to restitutions by Parliament, as 
 quoted S!«pm, p. XXIV ; — " In resisteiiomte benignissima . . facienda est interpretatio." — Third Institute, c. 106. 
 
 t With reference to the character given of the Act Revocatory by the Attoknev-General, as " a mere salve " to the King's 
 " conscience, framed in the most vague and unmeaning terms," — St. Peter's exclamation " I am a sinful man, Lord !" and the 
 " Lord, have mercy on me, a sinner !" of the publican, would, according to the Learned Gentleman's argument, have been vague 
 and unmeaning, and a mere salve to their consciences — unless accompanied with a minute recapitulation of each individual sin 
 that they had been guilty of since adolescence ! 
 
CSXViii ANALYSIS OF THE ARGUMENT. 
 
 the times and the " intention " of the Parliament of the day, as gathered from history — if the Act Rescissory 
 is to he so expounded — then the Act Revocatory of 1503-4 must also he so expounded. That James IV. and the 
 rebellious nobles, his advisers, deeply repented of their conduct towards James III., — that the nobles smarted 
 under the excommunication they had brought upon themselves, petitioned for pardon, and obtained it under 
 promise of penance, — that James IV. wore an iron girdle to his dying day, and endowed and benefited the Chapel 
 Royal of Stirling, originally founded by his father— all in e.tpiation oC that father's slaughter, — that the Act 
 Rescissory, jmssed by him and the rebel faction in October 1488, attempted to inflict, or, as the Ckowji say, 
 actually did inflict, severe penalties on the loyal defenders of James III., and laid on them the blanje of the 
 King's death, which they, the franiers of that Act, his real murderers, at no distant period laid, like dust 
 and ashes, on their own heads — such were the circumstances which preceded the Act Revocatory of 1503-4; 
 and when the Committee find an Act, passed in that year, to which the King is expressly a party, rescinding 
 and revoking all Acts and Statutes which had been passed either detrimental to the King's Soul, his Crown, 
 or Holy Church — it will he impossible fm them to escape the conviction that it was the " imtention " of the 
 Parliament to annul in general terms a general Act which laid the hla/me and penalties of rebellion, murder, 
 and regicide on innocent men — which in so doing tended to discourage loyalty to Kings and duty to parents 
 and to God — which the Pope, the head and mouthpiece of the Church, had punished hy excommunicaticm, — 
 and which was thus, in a word, pre-eminently hurtful (if anything could he so) to the Soul and fJie Crown of 
 James IV., and to the Holy Catholic Church, of which he was a haptized and repentant member. 
 
 iv. To what Acts or Statutes of Parliament, then, can the Act Revocatory of 1503-4 — whether interpo-eted 
 according to its plain and actual words, as contended by the Claimant, or according to the intention of those 
 ivho framed it, as contended by the Crown — apply, if not to the Act Rescissory of October 1488 ? To what 
 Act or Parliament could the King have possibly alluded, if not to the Act Rescissoey ? The 
 Ckown are botmd to shew such a statute — and they have not shewn one. The Claimant submits, that 
 if it has been proved that, partly from the change of feelings in the hearts of those who framed it, partly from 
 the general execration into which they had fallen, the Act Rescissory fell dead-born from the moment of its 
 birth — if it was at best nothing more than an instrument prepared for future use, but which the framers of it 
 never dared to use — if that Act was never appealed to by the King when he would naturally have used it — 
 if that particular portion of it i-elating to dignities was omitted in subsequent statutes in pari materia — and if, 
 finally, the Act Revocatory, general as its terms are, was evidently intended to obliterate something and 
 atone for something which, the King felt, remained in the shape of an Act of Parliament, and which hurt his 
 Soul, his Crown, and Holy Kirk — then, there is nothinGt to which the Act Revocatory can be 
 
 REFERRED BUT THE AcT RESCISSORY BY WHICH THE MURDER OF JaMES III. AND THE REBELLION AGAINST 
 
 HIM ARE JUSTIFIED. The Act Revocatory of 1503-4 is therefore A most direct reversal of that 
 STATUTE by a much better authority than that which enacted it — it is annulled ab initio — and, if annulled 
 
 ah initio, everything upon which it otherwise might have operated REMAINS TOTALLY tTNAFFECTED 
 BY IT.'* 
 
 V. But if indeed, contrary to the expectation of the Claimant, the Committee come to the conclusion that the 
 qualified and questionable Act Rescissory, as interpreted by the presumed "intention" of the framers of that 
 Act, cut down the Patent of the Dukedom 18th May 1488, then the Committee are bound on the same 
 ground to come to a similar conclusion on the construction of the Act Revocatary of 1503-4, viz., that by this 
 later, unqualified, positive, and clearly expressed Act — in which both the intention and words are in 
 perfect ACCORD AND HARMONY — the earlier one of 1488, with all its consequences amd dependencies, is 
 absolutely repealed. — Infra, pp. 308, 309. 
 
 Opinion of the Committee. 
 
 Lord Chancellor. — " It was said, supposing this Rescissory Act was an Act of Parliament, was it not after- 
 " wards revoked, . . because, on the 13th March 1503, . . an Act of Parliament was passed" by which 
 " ' Our Sovereign Lord revoked . . all . . Acts, Statutes of Parliament, . . and all other things done by him 
 " ' in times bygone, either hurting his Soul, his Crown, or Holy Kirk.' Now it is said that this Act Re- 
 " scissory was an Act of Parliament that did hurt or that ought to have hurt his soul, taking away something 
 " that had been granted by his father to a loyal subject. My Lords, there I apply the argument that was 
 " addressed to us " by the Claimant " as to the words • which might be prejudicial ' that were found in the 
 " first Act "—the Act Rescissory. f Whatever the meaning was, it clearly was only to revoke something 
 " as to which you were to establish that it was 'hurtful to his Soul, his Crown, or Holy Kirk.' It was 
 " clearly a sort of flourish of trumpets, that meant nothing at all. It is impossible to say from this, that 
 " grants under which parties had acted, or title-deeds, could possibly be in any way affected by language so 
 " loose as that." And " if that had been the construction put upon it at the time, why did not the parties 
 " call themselves Dukes of Montrose ? Why did they not claim the rents of the lands that belonged to the 
 " Dukedom ? In short, why did not exactly the contrary take jilace of that which actually did take place? 
 " Upon these grounds alone . . I should have said . . that the construction of" the Act Rescissory 
 " admits of no possible doubt." — Infra, pp. 327, 328. 
 
 Lord St. Leonards.— This Act also, like that "of 1493," has "no bearing upon the case. . . It is wholly 
 " dealing with the affairs of his" (James IV.'s) "own soul and of his church. It begins by dissolving • the 
 
 * Compare the argument from the Act Eevocatory, as founded upon by the Earl of Glencairn in 1648, in the ' Minutes of 
 ' Process,' infra, pp. 434, 442. 
 
 t That is, the argument addressed to the Committee by the Claimant, to the eflFect that the grant of the Dukedom must be 
 proved to have been " prejudicial " to James IV. and the Crown of Scotland, before the words " which might be prejudicial " in the 
 general, qualified, and penal Act Rescissory could be made to apply to that grant. 
 
ANALYSIS OF THE ARGUMENT. CXXix 
 
 " 'annexation of the Kirk of Kirkandrews from the Lord of Galway and his Crown to the Priory of 
 " ' Whitehorn.' It then revokes 'all donations, gifts, acts, statutes of Parliament or General Council, and 
 " ' all other things done by him '—that is the King—' in times bygone, either hurting his Soul, his Crown, 
 " ' or Holy Kirk.' It is quite clear that to bring any former Act within the operation of these words you 
 " must shew that the Act had one of these effects. Then it ratifies, in the third part, ' the foundation and 
 " ' iiifeftments made to the College of Stirling, called his Chapel Royal, both of Kirks, prebends, canonries, 
 " ' and lands,' &c. It is clear, therefore, that the Act of Parliament, as it is in the Statute Book, wholly 
 " relates to the church and its possessions, and that it is to be confined to those matters, and has not the 
 " slightest bearing upon the Act of 1488."— J«/to, pp. 360, 861. 
 
 Observation. 
 
 With respect to the Lord Chancellob'b view that the Act Revocatory was a " sort of flourish of trumpets that 
 " meant nothing at all " (at direct variance with the rule of law that Verba sumenda sunt cum effectu), and to 
 LosD St. Leonards' reading of the three distinctly enacted and independent statutes of the 13th March 
 1503-4 as three clauses of one statute, so as to restrict the import of the Act Revocatory founded on by the 
 Claimant, the Claimant would refer to his notes on the Speeches of the Noble and Learned Lords, infra, loc. cit. 
 The three statutes will be found in the Appendix, infra, pp. 387, 388. He has only to remark that neither the 
 Ceown nor the Lord Chancellor have adopted the view of Lord St. Leonards on the latter point. — The 
 Noble and Learned Lord's declaration that the passing of the Act Rescissory would have sat very lightly 
 on his own conscience (infra, p. 87) must also be kept in view in appreciating his opinion on the question 
 of the Act Revocatory of 1503-4. The adoption both by Lord St. Leonards and by the Lord Chan- 
 cellor of the Claimant's own argument, which they had rejected in the case of the Act Rescissory, in order 
 to obviate the effect of the Act Revocatory, and the contrast of the principle of interpretation adopted by the 
 Noble and Learned Lords in regard to the penal Act Rescissory and the remedial Act Revocatory, cannot 
 escape notice.* 
 
 Lord Lyndhurst, as in the case of the Regrant, has given no opinion on the effect of the Act Revocatory of 
 1503-4. Lord St. Leonards' words conveying that Noble and Learned Lord's sentiments have been quoted, 
 supra, p. cxii. They clearly exclude the question of the Act Revocatory of 1503-4 from the Noble and Learned 
 Lord's concurrence with the decision of the Committee. 
 
 General Conclusion of the Claimant on this Fourth Point of the argument, — that is, 
 on the subject of the three Statutes 15th February 1489-90, 2&th June 1493, and 13th March 1503-4, and 
 of the doctrine of Desuetude, as bearing on the validity of the Act Rescissory : — That the Act Rescissory 
 is contradicted and disowned (so far) through the pointed omission of 'dignities' in the Supplemental 
 Act 1489-90 and in the Act of 1493, both in pari materia — the theory of the Crown and of the Com- 
 mittee, that (a presumed) "acquiescence" and 'non-claim' on the part of the Duke of Montrose and 
 Earl of Glencairn are sufficient to account for that omission, being quite untenable, — that the very fact 
 that the Act 1489-90 was passed at all, the fact that it proved ineffectual as regards the surrender of the 
 charters of James III., and the fact that the Act 1493, while rescinding the same class of grants as the 
 Act Rescissory, rescinds them ex tunc, without the slightest reference to that Act, prove that the Act was 
 then, and from the first, a dead letter — which is enough by Scottish law to abrogate it by Desuetude, — 
 that the resumption of the estates granted with the Dukedom may be accounted for by the Act 1493, 
 which legally, and in the usual manner, revokes the grant ; although the Duke may have been allowed 
 to retain the estates ex comitate during his lifetime, —that the Act 1503-4, in which the King personally 
 figures, and of which both the words and the intention (as proved by the Bull of Innocent VIII. in 1491, 
 the Act 1491-2, and other evidence) are in perfect harmony, distinctly revokes {inter alia) " Acts " and 
 "Statutes of Parliament" injurious to the conscience and the regal interests of James IV., and to the 
 Holy Catholic Church, — that the Act Rescissory clearly and distinctly falls under that description, and 
 the opponents of this claim have entirely failed in producing any other that does so, — and that if the 
 Crovs^n and the Committee interpret the Act Rescissory by the (presumed) intention of the legislature, 
 they are bound in consistency and in justice to apply the same rule to the interpretation of the Act 
 
 » This latter point being so important, the Claimant may be excused for subjoining here the following remarks, which will 
 be found in a note to the Speech of the Lord Chancellor, infra, p. 327 :— " The Noble and Learned Lord entirely overlooks and 
 " disregards the principles applicable by the law and practice alike of Scotland and England to the construction oipenalTini remedial, 
 " as distinguished from ordinary, Acts of Parliament. In a penal statute, the Act Eescissory, demanding the most strict interpre- 
 " tation he construes broadly for penalties, and assumes that the Dukedom was prejudicial to James IV. :— In a remedial or favourable 
 " statute, the Act Revocatory, passed by James IV. himself for redressing wrongs done and injuries inflicted by former Acts and 
 " Statutes of Parliament, and demanding the most liberal and large interpretation, he resists the fairest and clearest inference, and 
 " requires strict legal proof that the Claimant falls within its scope— applying a strict construction against the objects of the Act ! 
 " This the Claimant conceives to be a reversal of the proper and just rule of the construction of such statutes."— All that is here 
 said applies of course to Lord St. Leonards as well as to the Lord Chancellor. 
 
 s 
 
CXXX ANALYSIS OF THE AEGUMENT. 
 
 Revocatory — in other words, to construe it as revoking its predecessor, the Act Rescissory, with all its 
 consequences and dependencies, if (in their estimation) it had any : — The remedial Act Revocatory (it is 
 always to be remembered) falling to be construed as anxiously and benignly in favour of the Claimant 
 (with a view to his receiving the full restitution which may accrue from it), as the jienal Act Rescissory is 
 to be construed severely and rigidly against the opponents of this claim, as purporting (however impotently in 
 Peerage Law) to inflict forfeiture and deprivation per se, without legal trial or conviction, upon persons whom 
 those very opponents admit to have been in all respects innocent and loyal men. — Cases, and infra, passim. 
 
 Genebai Conclusion of the Committee (with the exception of Lord Ltndhuest so 
 PAR AS the Act 1503-4 is concerned) on the subject of the three statutes, 15th 
 February 1489-90, 26th June 1493, and 13th March 1503-4. 
 
 Lord St. Leonards. — " Certain Acts of Parliament," as above, " were relied upon as destroying the operation, 
 " and as in fact repealing the Act of 1488. I am clearly of opinion, that they do not any of them touch 
 " the question, but that they rather corroborate the operation of the Act of 1488," the Act Rescissory. — 
 /)(//■((, pp. 358, 359. 
 
 Recapitulation of the Claimant's Argument on the question of the Act Rescissohy. 
 
 Entertaining grave doubts (for reasons assigned) whether the Act which has been styled for 
 convenience the ' Act Rescissory,' passed on the 17th October 1488, was a statute lawfully passed by King 
 and Parliament, — 
 
 Assuming, however, pro argumento, that the Act was a lawful statute, — 
 
 Premising, if so, that it must be construed, 
 
 i. In accordance with the recognised principles of construction and interpretation applicable to 
 Acts of Parliament in judicial proceedings, — 
 
 ii. In accordance with the principles of natural justice which should have dictated it, supposing 
 it capable of receiving a fair construction in conformity thereto, — 
 
 iii. In that sense which the words most naturally suggest to the understanding ; that is, accord- 
 ing to the actual words used, and not to the presumed intention of those who framed it, — 
 
 iv. With the utmost strictness and rigour, in favour of mercy and against forfeiture — the Act 
 being a penal statute, and a fortiori as touching honours, — 
 
 V. According to the legal maxim, " In dubiis benigniora semper sequenda sunt," — And, 
 
 vi. According to the principles established by the judgment in the parallel and adjudged case of 
 the Dukedom of Norfolk, viz., 
 
 (1) That a dignity lawfully created by the Crown cannot be defeated by the general 
 
 enactments of an Act of Parliament, i.e., without special mention and special 
 revocation, either in the case of the grantee or his heirs ; and 
 
 (2) That when other honours or grants in pari casu have survived such an Act of 
 
 Parliament, the honour in question must be held also to survive it : — 
 
 Considering that, applying the preceding principles of interpretation, the following distinct proposi- 
 tions have been proved (as is conceived) regarding the Act Rescissory, viz., 
 
 I. As viewed generally and ex terminis. 
 That the Act was inapplicable to the grant of the Dukedom of Montrose, 
 
 (1) As being qualified in its language, and directed solely against such grants " as 
 " mycht be prejudiciale to our Soverane Lord," or to the existing rigime; whereas 
 the creation of the Dukedom cannot be proved to be prejudicial, and it has been 
 expressly shewn by the testimony of James IV., that he considered David Duke 
 of Montrose as having been always faithful not only to his father but himself, and 
 that nothing in his opinion redounded so much to the honour and glory of the 
 Crown as to raise a deserving subject, such as Duke David, to higher honours, and 
 actually to the very Montrose Dukedom in question,— 
 
ANALYSIS OF THE ARGUMENT. cxxxi 
 
 (2) The reason inductive of the Act Rescissory being in no degree applicable to the 
 
 Patent 18th May 1488, inasmuch as the Duke was in no way an accessary to the 
 death of James III., but e contra, and it is against such accessaries only, and in 
 punishment for such accession, that the Act is directed, — And 
 
 (3) Neither the Duke nor his heirs being specially mentioned in the Act, and there 
 
 being no such special recall of the dignity as is indispensable (by the Norfolk 
 judgment) in order to rescind it, — the Act being moreover too undefined and 
 general in its terms to affect per se the honours struck at by it, which by Scottish, 
 English, and British precedent could only have been affected by clear, distinct, and 
 unmistakeable specification and application : — 
 
 II. As VIEWED, PRACTICALLY, IN REGARD TO GRANTS BY JaMES III. CONFERRED 
 WITHIN THE PERIOD STRUCK AT BY THE AcT, 
 
 i. 'I hat the grants in question are either subsequently confirmed by James IV., precisely as any 
 other genuine and unexceptionable charters, without the technical non ohstantibus to cure 
 a defect, or the least cavil or exception, — as in the case of the grants to Collace of 
 Balnamoon, Somyr of Balyordie, and Gordon of Lochinvar, — such confirmations being 
 intended as, and equivalent to, an additional, more solemn, or precautionary form of 
 registration ; or else stood on their own ground, perfectly secure, firm, and valid, without 
 confirmation, in the face of the Act Rescissory, which thus proved a dead letter, — as in the 
 case of the grants to the Cunninghams of Polmaise and to the Burgh of Brechin, and in 
 that of the Earldom of Glencairn, — 
 
 ii. That in the case of the Earldom of Glencairn the question of the application of the Act 
 Rescissory to a patent granted under precisely the same circumstances as that of the 
 Dukedom of Montrose was decided in favour of the patent by the Court of Session — a 
 Court of exclusive jurisdiction in dignities, from which no appeal lay to any higher 
 tribunal, and which was acting moreover on reference from the Crovvn — in 1648 ; a 
 decision, not indeed on the very patent here in question, but on the very same Act, on a 
 patent identical in circumstances and character with the present, and on the very question 
 now debated — the decision being a final one, in foro contentiosissimo, ruling and in force 
 at the present moment, — 
 
 iii. That of the instances produced by the Crown to prove the effect and validity of the Act 
 Rescissory, two are dated before the Act Rescissory (thus illustrating the spoliation and 
 oppression carried on at the time), and two several years after an Act passed in 1493, 
 which annuls the same subjects as the Act Rescissory, but omits dignities. These two 
 instances may therefore be ascribed to the later and unexceptionable A ct of 1493, although 
 at such a distance of time, and so many years having elapsed between the Act and the 
 regrants, it is impossible to tell what circumstances may not have brought the property 
 regranted into the hands of the Crown. This however is unquestionable, that no instance 
 whatever has been produced by the Crown, or was discovered during the eleven years' 
 litigation in the Glencairn and Eglinton case 1637-48, of the Act Rescissory itself taking 
 efl'ect between the date of its enactment and 1493, — And, 
 
 iv. That therefore, by the Norfolk judgment and otherwise, the Act Rescissory cannot be held 
 to have affected the Montrose i'atent 18th May 1488 :— 
 
 iii. as viewed specially and personally in regard to the grant of the 
 Dukedom of Montrose, 
 
 i. That the Duke was repeatedly, fully, and legally recognised as such subsequently to the 
 Act Rescissory, — as proved, 
 
 (1) By the Duke's continued possession (with acknowledgment of the Crown) of the 
 
 Lordship of Kincleyin, if not of the Customs of Montrose, solely in right of the 
 Patent, — 
 
 (2) By the King's unqualified Confirmation of the Duke's charter, under the designation 
 
 of Duke, to Margaret Carmichael, — 
 
 S 2 
 
CXXxii ANALYSIS OF THE ARGUMENT. 
 
 (3) By the King's acceptance from him as ' Duke,' eo nomine et eodem jure, of the 
 hereditary Sheriffdom of Forfarshire, as proved by the Duke's Procuratory of 
 Resignation 1st November 1488, and by the Instrument of Resignation and Donation 
 drawn up by the King's notary, 6th November 1488— the only documents in the 
 transaction which by Peerage Law can furnish evidence as to the Duke's true status 
 and rank in the eye of the King himself; the resignation on the Duke's part being 
 the stipulated condition through which he was to entitle himself to the reception and 
 benefit of a full and free Remission previously executed by the King, and by 
 which he remitted to the Duke his entire displeasure arising from the loyalty of 
 the Duke to the late King, his father, — 
 — all, and in each instance, previously to the Regrant 18th September 1489 ; the Recog- 
 nition in question being precisely what we are led to expect as the fulfilment on the King's 
 part of the Contract alluded to, — 
 
 ii. That the effect of such recognition by the King would have been by Scottish law and 
 precedent, and indeed by feudal usage generally, full restoration and rehabilitation, even if 
 the Duke had been attainted ; and must tell a fortiori when weighed against the mere Act 
 Rescissory, — 
 
 iii. That the Remission under the Privy Seal, delivered to the Duke after resigning the 
 Sheriffdom, was sufficient of itself (even had he been guilty of an aggravated offence, as 
 certainly was not the case) to reinstate him ; and that he figured publicly after the trans- 
 action as Duke of Montrose without challenge or exception, — 
 
 iv. That the Dukedom of Norfolk and the Earldom of Glencairn descended to the heirs under 
 the respective Patents, unaffected by the Acts Rescissory of 1399 and 1488, although 
 unattended by the specialties which favourably distinguish the present case, — 
 
 v. That it is in keeping with the Recognition and Remission, and with the Contract proved to 
 have been entered into between the King and the Duke, that James IV., in the preamble 
 to the Regrant by advice of Parliament, 18th September 1489, passes the highest 
 eulogium upon the Duke as a loyal subject, both to himself and his father ; while anything 
 short of full recognition of the Dukedom would have been a breach of his engagement on 
 the part of the King, which is not to be presumed without distinct proof, — 
 
 vi That the instances alleged by the CaowN of David Duke of Montrose being styled ' Earl of 
 ' Crawford ' during the interval between the Act Rescissory and the Regrant were all 
 " behind the back " of the Duke and the Crown, and in themselves inaccurate and 
 illegal — the rule in Peerage Law being (as is well known, and has never hitherto been 
 disputed) that the signature or warrant of the Sovereign regulates the interpretation of 
 patents or charters granted in pursuance thereto, and not vice versa, as maintained by 
 the Crown ; while the Duke is also styled ' Earl of Crawford,' simply, on more than one 
 occasion subsequently to the Regrant, — 
 
 vii. That, it being acknowledged on all hands that no resignation of the Dukedom took place on 
 the part of the Duke of Montrose, and it being the rule in Peerage Law, as laid down by 
 Lords Mansfield and Hardwicke in the Cassillis case, that a subsequent charter, whatever 
 may be the form of its expression, cannot be held to amount to a new grant unless it can be 
 shewn that the antecedent right has been resigned ; the Regrant with advice of Parliament, 
 18th September 1489, followed by the Litera 19th September 1489, asserted by the 
 CaowN to have been for life, and to indicate the Duke's acquiescence in the Act 
 Rescissory, could only have been a virtual Confirmation of the original patent, or if 
 otherwise, was null and void, — the point being however a matter of complete indifference 
 to the present argument, — 
 
 viii. That the resumption of the estates on the death of the Duke, alleged against the Claimant 
 by the Cuown, if not the eftect of the Act 1493, must have been by an act of oppression 
 similar to others which took place, as by the confession of the Crown, at that period, and 
 at all events cannot be attributed to the Act Rescissory ; while such resumption could not 
 affect the Dukedom, by the rule (repeatedly acted upon then and afterwards) " reddendi 
 " singula singulis," — 
 
ANALYSIS OF THE ARGUMENT. cxxxiii 
 
 ix. That the lapse of time and non-claim urged against the Claimant by the Crown are no bar, 
 
 and are sufficiently accounted for, — 
 X. That the Earldom of Montrose created in 1503-4, and alleged by the Crown as shewing 
 
 the extinction of the Dukedom, is derived from the private estate of Old Montrose, and 
 
 not from the Royal Burgh of Montrose ; and at all events such creation is no bar, 
 
 — And, 
 
 xi. That, generally, and with reference to these objections by the Crown, if the Act Rescissory 
 did not per se cut down all the grants of James III. without exception and without 
 trial, and the grant of Dukedom in particular, the Dukedom exists at the present 
 moment — as was in fact found and decided in the parallel Norfolk case in 1425 : — 
 
 IV. As VIEWED WITH REFERENCE TO LATER STATUTES AND OTHER CIRCUM- 
 STANCES BEARING UPON THE VALIDITY OF THE AcT RESCISSORY : 
 
 i. That the Act is contradicted and disowned, so far, by the pointed omission, twice, of the 
 cardinal words " creacion of new digniteis " in the statute I5th Feb. 1489-90, which 
 recites and endeavours to enforce it (an endeavour which nevertheless proved utterly 
 abortive) ; and is altogether superseded by the later statute 26th June 1493, which, while 
 taking no notice whatever either of it (the Act Rescissory) or of the intermediate or 
 Supplemental Act of 1489-90, rescinds ex tunc the same class of grants that are struck at 
 by those two statutes — but omits dignities, — 
 
 ii. That, the Act Rescissory being never practically or legally enforced or even alluded to in 
 the quequidems of any subsequent charters or in any legal proceedings, it is thus annulled, 
 according to Scottish law and practice, through non-observance and non-operation ab initio, 
 or by Desuetude, — And, 
 
 iii. That, even had the Act Rescissory been operative (which has been disproved), it would have 
 been legally revoked and annulled by the very same authority which enacted it, viz. by 
 the Act Revocatory 1503-4, — a statute to which no doubt attaches, either as regards the 
 actual words employed or the intention of those who framed it ; and under the general 
 provisions of which the Act Rescissory, with all its consequences and dependencies (if it 
 had any), must, for reasons given, be considered absolutely rescinded, — 
 
 Considering that these pleas, though distinct, are uniform, consistent, and concurrent ; that, even 
 though one might be contended not to be paramount and irresistible, it would be fully compensated by others ; 
 and that, to rebut the Claimants argument, it is indispensable to refute them all, — 
 
 Considering, moreover, that the Act Rescissory is the sole act or intervention which can be 
 supposed or is pretended to have affected the Patent of the Dukedom of Montrose 18th May 1488, — 
 And 
 
 Considering, finally, that if the Act Rescissory did not per se, by the mere force of its passing, and 
 without judicial process or application, cut down the Patent, that Patent must still be valid in law, and 
 everything else of subsequent occurrence is pure matter of indifference ; while, viewed by recognised 
 Peerage Law, it is entirely in favour of the Patent and the Claimant, — 
 
 The Claimant believes that he has now completely established the position, that no Legal Act or 
 Intervention took place subsequently to the Patent 18th May 1488, which in any way 
 affected it. — Case, pp. 22, 23 ; S. Case, pp. 117 sqq. ; Infra, passim. 
 
 General Conclusions of the Claimant, on this First Head of the Case. 
 
 In conclusion, and to apply the preceding reasoning and argument to the position sought to be 
 established in this First Head of the Case, viz. the continued and present validity and subsistence of the 
 Montrose Patent of the 18th May 1488 :— 
 
 It has been stated at the outset, as an admitted principle of law, that an honour conferred on a 
 subject by a King in lawful possession of his prerogative can only be alienated or annulled in one of 
 
 three ways, — 
 
 By Forfeiture : — 
 
 By Resignation : — Or, 
 
 By some Special Act or Legal Intervention so affecting it. 
 
cxxxiv ANALYSIS OF THE AEGUMENT. 
 
 And it has been shewn that neither Forfeiture nor Resignation of the honour now claimed — the 
 Dukedom of Montrose, conferred by the Patent 18th May 1488 — can be objected in the case of Duke 
 David and his heirs ; and that the only Legal Enactment or Intervention which could by possibility affect 
 the said Patent — to wit, the Act Rescissory — had no effect upon it. 
 
 Such therefore being the case, the claim is made out, so far as the continued validity of 
 THE Patent, 18th May 1488, is concerned; for in no other than one of these three ways 
 COULD THAT Patent be annulled or alienated. — Ca«e, p. 23 ; S. Case, p. 119 ; Infra, passim. 
 
 General Conclusions of the Crown, on this First Head of the Case. 
 
 AttoBnet-Gbkeral.— " Against" the " case on the part of the Grown, what is there set up on the other side? 
 " No adverse use— no enjoyment— nothing but speculation and surmise." * " The whole case " of the 
 Claimant "rests upon speculation, and surmise, and hypothesis." The Ceown has " on the other hand, as 
 " antagonistic to that claim and adverse to it, very clear and distinct facts, . . the fact" of " an Act . . in its 
 " term^s . . applicable to this case, because '' (the " intention " of the Act being " perfectly clear," and its 
 "effect" being "to assume" that the dignities created by James III. since the preceding 2nd February 
 " were such as would be lilcely to be prejudicial . . to the King"— James IV.— " and the party" by which 
 he was supported, " and therefore . . ought to be annulled ") f- " it distinctly and in express terms struck 
 " at" those "dienities:" — " there were but two such dignities, and this is one of them." It is true that 
 " the dignity " of Dulce of Montrose " was not specifically mentioned by name " in the Act Rescissory, but 
 "if" the CoMMiTTEB are " of opinion that the intention of the Act Rescissory was to overturn the dignity in 
 "question," . . the non-specification "matters nothing." J In consequence of the Act Rescissory, "the 
 " dignities fell in both cases. Both dignities were revived, but revived by new grants." " Coupled and united , 
 " with both dignities, there were territorial grants also." In the case of Montrose, " the territorial grant . . was 
 " not followed up under the first grant, but was followed up under the second, but only co-extensive with the 
 " duration of that grant, which was for life. In the second case, in the Glencairn case, the estates which 
 " were not included in the new grant fell with the old, and never were enjoyed by the grantee of the dignity 
 " of the Earl of Glencairn . . . Against such facts what is there in the case of the . . Claimant? . . Elaborate 
 "argument, subtle disquisition, and a vast deal of hypothesis and speculation ; but" no "facts" sufficient 
 " to support the conclusions which are sought to be based upon them."— " If the . . Act" Rescissory "was 
 " applicable to the case in question, . . however unjust it might be," however " wrong," however " bad " in 
 " motive," " it was inherent in the province and . . functions " of " the legislature . . to annihilate dignities 
 " which had been created in the previous reign, . . if it should choose " to do so. — The Attokney-Gesekal 
 has endeavoured to " strip " the case of the Claimant of its " elaborate argument " and " fanciful declamation," 
 and " to put it into the shape of simple, intelligible propositions, which " the Committee can at once appre- 
 ciate, and upon which " its judgment can be brought to bear "§ 
 
 Lord Advocate. — " The tale that has been told " the Committee, " beginning in the year 1488, appears " to 
 the Lord Advocate to be " one of considerable romance, yet of very little intricacy or diflnculty 
 " indeed." II The words "which might be prejudicial" in the Act Rescissory being "not words of 
 " limitation" but "rather" expressing "the ground and reason of the statute, viz. that the alienations of 
 " lands, &c. . . were prejudicial," the Dukedom was annihilated by that Act. No special application or 
 process was requisite to give "a Rescinding Act" eftect.^ " Everything followed upon " the "Rescinding Act 
 " in regard to the honours and estates of Montrose, which would have followed if it had taken, as it did take, 
 " present effect. There is not one circumstance during the whole history of the Earl of Crawford from 1488 
 " till his death in 1495, which is not and entirely a necessary consequence of the Rescissory Act having taken 
 " effect upon his titles and estates." ** It is admitted tliat in the Glencairn and Eglinton process in 1648 the 
 Court of Session " came to the conclusion that " Glencairn's " sitting in Parliament after 1503 must be ascribed 
 " to the old Patent," i.e. of 1488, granted under the same circumstances as the Dukedom of Montrose and 
 equally struck at by the Act Rescissory ; but " there was a very considerable leaning on the part of the Court 
 " of Session at that time," &c. And, although it is not disputed that that judgment stood and stands at the 
 present moment, the judgment of the House of Lords in the Glencairn claim in 1797 — " whatever maybe said 
 " against the accuracy of the facts on which it proceeded, . . was truly and substantially a finding in this 
 " House that the Act of 1488 did in fact take practical effect, and must of necessity be given effect to." ft 
 
 General Conclusions of the Combiittee on this First Head of the Case. 
 
 Lord Chancellor. — " The omnipotence of Parliament" being such that " Parliament can destroy a Peerage, or 
 " take a man's property, or do anything else," and the Act Rescissory being " enrolled among the Acts of 
 " Parliament," it is " utterly immaterial whether the King was present or not" when it was enacted, and the 
 Act is therefore quite valid and effectual to cut down a peerage if intended to do so. The words in the Act 
 Rescissory "which might be prejudicial" being " merely an inaccurate (if it be inaccurate) way of 
 " explaining the motive that induced the legislature to annihilate" the " gifts" of James III., the Act means 
 " that all those alienations and creations of new dignities shall be annulled, because they are or might be 
 " prejudicial to the successor" of .James III. " It is impossible for language" to " point to . . the creation 
 " of the Dukedom of Montrose or any other creation of a similar sort . . more clearly." JJ "AH" the 
 " documents" produced in the case "afford the most irresistible contemporaneous evidence that the Act 
 
 * Infra, p. 218. t -?'«/™, pp. 184, 185. J Infra, pp. 186, 221. § Infra, p. 221. || Infra, p. 223. 
 
 ■F Infra, p. 227. ** Infra, p. 231. ft ^"f>'"< P- 228. tt ■^«/™, PP. 312, 313, 326, 314. 
 
ANALYSIS OP THE ARGUMENT. CXXXV 
 
 " Rescissory was understood to have the effect which I propose now to ask your Lordships to attribute to it, 
 " and that the result was that the Dukedom was annihilated."* With respect to the Regrant, " everything 
 " harmonizes with the supposition that it was under" the Regrant, " and that alone, that the Duke held his 
 " honours and his estates" subsequently to September 1489, " and is quite inconsistent with the hypothesis 
 " that he held them under anything else."t Considering the fact that on the passing of the Act Revocatory 
 1503-4 the Earls of Crawford did not assume the Dukedom and claim the lands, " upon these grounds alone, 
 " and supposing there had been no authority upon the subject, and nothing to guide your Lordships but the 
 " Act Rescissory itself^ and the light we obtain from documents that have been searched for and found after 
 " great labour and diligence, I should have said . . that the construction of this Act is a matter that admits of 
 " no possible doubt." J 'J'he Norfolk and Glencairn " precedents do not at all touch the case, or impugn the 
 " conclusion at which I have arrived. The case of the Dukedom of Norfolk,'' prescribing special mention or 
 nomination as requisite to destroy a dignity, " is no precedent at all in this case," because "this title" (the 
 Dukedom of Montrose) " was struck at by name," — not the title of the " Duke of Montrose ; but the titles 
 " which had been created by the King subsequently to the preceding J'ebruary were struck at nominatim." ^ 
 ' — As regards the Glencairn case, the Court of Session in 1648 undoubtedly came "to the conclusion . . that 
 
 ' ' the original patent " of the Earldom of Glencairn 28th May 1488 ' • was in force," " but .. it is difficult . . to 
 " be certain that one understands exactly the principle upon which the Court of Session proceeded in that case 
 "... But . . it is idle not to see that to derive any precedent from the transactions of those troublous 
 " times would be . . to shut your eyes to what must have been the truth of the case. The Court of Session 
 " decided one way ; and as a matter of course Parliament decided the other way. And afterwards, when 
 "the tables were again turned " (after the Restoration), "the new Parliament revoked what the former 
 " Parliament had done." || " It seems to me therelbre to be abundantly made out that the Act Rescis- 
 " sory, even if there had been no authority upon the subject, must have annihilated these dignities," Montrose 
 and Glencairn. "All contemporaneous usage shews that it was so understood. Everything that has been 
 "done since has been done upon the assumption and upon the footing of these having been annihilated." If 
 And " three centuries and a half have elapsed without any claim " to the Dukedom of Montrose.** 
 
 Lord St. Leonards. — " Independently of any nice questions arising, the case lies in the smallest possible compass." 
 " The Claimant . . has had to contend all through . . with great difficulties," — '' prima facie, upon half a 
 "dozen facts, it seemed almost impossible that such a claim could be substantiated." ff^ — "Upon "the Act 
 Rescissory " I have never been able, from the first moment down to the present, during all the arguments day 
 " by day, to entertain the slightest doubt." The question of the Duke's loyalty " cannot receive the slightest 
 " attention in disposing of this matter. It signifies not whether" the Duke was " loyal or disloyal, . . loyalty 
 " to one Sovereign was disloyalty to another, . . he who was loyal in his last moments to James III. was 
 " disloyal to James IV." It is to be remembered that " beyond all possibility of doubt" the 2nd of February 
 1487-8 (the conunencement of the period struck at by the Act Rescissory) "is the date which" the suc- 
 cessful party " had assigned as the real termination of the reign of James III.," and that " they treat him there- 
 " fore as a person who made these grants without having the authority to do so." " The true construction " of 
 the Act Rescissory admits of no doubt. " All grants are struck at ' which might be prejudicial to Our 
 " ' Sovereign Lord and the Crown that now is,' . . that is to say, which but for this Act, but for what we are 
 " now doing, might be prejudicial, because they were granted from bad motives against the Crown that now 
 " is. . . All grants are struck at which might be prejudicial ; therefore they are struck at because so they might 
 " have been if they had not been struck at," &c. " There is no room for any doubt or question. But if there 
 " could have been a question at the time, what are we to say after three centuries and a half of acquiescence 
 " in the construction which I am now stating to be, in my apprehension, clearly the right construction ; and 
 " with every act, which is entitled to any weight, that has taken place during that long course of time, being, . . 
 " when properly considered, consistent with the construction which I now submit to your Lordships to be the 
 " true construction V" JJ — With regard to the alleged enjoyment of the estates and honours between the date 
 of the Acr Rescissory and the Regrant, " there is nothing which tells with such wonderful effect against 
 " the title as the very attempts which the Duke made to set up his title as Duke ; because he never set up his 
 " title as Duke in the presence of the Crown, . . he never did one single act by which he attempted to set up 
 " his title as Duke with the Crown, which was not immediately repelled by the Crown." — " Then " there is 
 " a matter that is enough to startle anybody, and to make any one doubt whether it is possible to maintain this 
 " claim ; and that is, the Regrant after he had been stripped of the Sheriffdom of Forfar," on his being 
 "partially restored to favour" — that Regrant being only "for life," and the Dukedom and the estates 
 reverting to the Crown on the death of the grantee.§§ " I never saw facts in all my experience which with so 
 " much force proved the real construction of tliese instruments — not now, at the end of three centuries and a 
 " halt; but then — at the moment when the rights were to be enjoyed." || || " It would " indeed " have required 
 " a body of evidence and . . an overpowering case, such as one can hardly suppose could have been produced 
 " in any case, . . to countervail the strong preponderating circumstances in favour of the legal construction " 
 now submitted to the;CoMMiTa'i:E.f ^— The " Acts of Parliament," of 1489-90, of 1493, and of 1503-4, " relied 
 " upon . . as, in fact, repealing the Act Rescissory, . . do not any of them touch the question, but . . rather 
 " corroborate the operation of the Act." The two latter "really have no bearing upon the case."***— Such 
 then being the "contemporaneous usage," " there can be no difficulty in point of law in this case. If it 
 " remained here, without going further, I should consider that it admitted of no doubt. But two authorities 
 " have been relied upon — the case of the Duke of Norfolk" and that "of the Earl of Glencairn ; and your 
 " Lordships have had a most unusual difficulty thrown upon you," &c. " Both of these precedents are easily 
 
 * Infra, p. 326. t Infra, p. 319. I Infra, pp. 327, 328. § Infra, p. 330. |1 Infra, pp. 338, 339, 340. 
 
 f Infra, p. 343. ** Infra, p. 343. ft -f"/™, PP- 344, 345 tt -^"/™. PP- 348, 349, 350. 
 
 §§ Infra, pp. 347 to 353 inclusive. |||1 Infra, p. 357. Ht -?«/'■«, PP- 357, 358. *** Infra, pp. 358, 359, 360. 
 
cxxxvi ANALYSIS OF THE AEGUMENT. 
 
 " disposed of."* The Norfolk creation was "in Parliament," not " hy Parliament. . . That is a clear answer 
 " to the Duke of Norfolk's ca.se.t " The Glencairn case, "exactly tallying in all its circumstances with the 
 " Dukedom of Montrose, . . exactly follows the same fate." — No dependence can be placed upon the decision 
 of the Court of Session in 1648 (recognising the validity of the Glencairn Patent 1488 notwithstanding the Act 
 Rescissory), 3; because " exactly as eithei' the one power or the other preponderated, so was the decision. If you 
 " will tell me the date of the Parliament, and want to know the decision, I will tell you what it was, because, 
 " knowing who was in power, I should know what the decision was. The decision always went according to the 
 " power which at the moment ruled." It is not denied that the decision in 1648 ultimately stood, and governed 
 the relative precedency of the Earldoms of Glencairn and Eglinton,§ "but what does it all amount to ? Only 
 " that there is a continual uncertainty, a continual fluctuation, in the decisions upon the subject, which detracts 
 " from the weight which otherwise might be given to any one of these decisions or to all of them taken 
 " together." II " The thing " therefore "remains untouched," and the " decision in the Glencairn claim in 
 " 1796-7, viz. that the Act Rescissory " destroyed " the Glencairn Patent of 1488, comes in and " binds your 
 " Lordships." H — " Disposing then . . of those two precedents, the case " is " perfectly clear." ** 
 
 Impressions of Loed Redesdale, the Chaibman of the Committee, as indicated during the 
 
 COURSE OF THE DISCUSSION ON THIS FlEST HeAD OF THE CaSE. 
 
 As respects tlie grants of James III. versus the Act Eescissory : — " Sir Alexander Cunningham and his son held " 
 " property " conferred by James III. " under a Charter that ought to have been destroyed by the Act 
 " Rescissory."ft 
 
 With respect to the intention of the Act Rescissory and its effect upon the Earldom of Glencairn, apa'ftfrvm the 
 consideration of any judgment upon that effect : — " There can be very little doubt that Parliament intended 
 " the Act Rescissory to strike at those titles," i. e. Glencairn and Montrose. " The question is, whether, the 
 " Act having struck at those titles. Lord Kilmaurs might not have kept liis Patent in his pocket, and declined 
 " to take his seat under it, because he knew that if he produced it, it would be destroyed by that Parliament 
 " which had passed the Act Rescissory. The Patent might have been kept back till he could produce it 
 " safely, and take his seat upon it. There is no reason why a person sitting under an inferior title should 
 " not have a right to a higher one." JJ 
 
 With respect to tlie judgment of the Court of Session in 1648 affirming the validity of the Gl-ncairn Patent 1488 as 
 unaffected hy the Act Eescissory, and in observation upon the Objection by the Ckown that Cuthbert Earl of Glen- 
 cairn " takes a new title of Earl of Glencairn as from a posterior period" to 1488 : — " That is the point which 
 " the Court of Session decided. He took the title in 1503 ; but he took it upon the Patent of 1488." " The 
 " Court of Session found that there was nothing in the Act Rescissory to prevent his assuming the title." 
 " Whether they were right or wrong, they accepted the Patent of 1488." §§ 
 
 With respect to the Begrant of the Dukedom of Montrose, and the question why it was issued at all — why, on 
 the mie hand, to ' David Earl of Crawford,' — why, on the other, without any recital of forfeiture or 
 deprivation if the Act Rescissory had taken effect upon it, or of resignation if it had not, (according to 
 the invariable usage observed on such occasions,) — and, generally, in reply to the Claimant's query, ' Wlmt 
 ' explanatimi can the Committee give of it, if they reject the explanation and general views submitted by 
 ' the Claimant V — {the Claimant always maintaining that it is immaterial to his Case, except in testimony 
 of the Duke's unswerving loyalty to the Croivn of Scotland) ;' — " It appears to me that it was a sort of com- 
 " promise between Parliament and the Earl " of Crawford. " I'he Parliament appear to have held, or to 
 " have wished to have it held, that the Act Rescissory was effectual, and they would not admit it to be 
 " otherwise, and they did not choose to admit the Earl of Crawford to take his seat in Parliament as Duke 
 " of Montrose. He, on the other hand, probably held that he had a right to take his seat as Duke of 
 " Montrose. They did not desire that question to be tried as to the validity of the words in the Act 
 " Rescissory, ' prejudicial to Our Sovereign Lord and to the Crown that now is,' they being in point of fact 
 " excommunicated, and the whole question being a very awkward one to have brought to actual judicial 
 " decision. The consequence was, that they passed this Act of Parliament," 18th September 1489, " enabling 
 " the King to create him de novo a Duke, and in the Act styling him ' Earl of Crawford.' He may have 
 " been very glad to accept this, or to allow it to be done. I do not know what the effect of the acceptance 
 " of it would be upon the original Patent, but I imagine that that was the view that the Parliament had 
 " in passing this Act of September 1489. Then, in the following February, you see they pass another 
 " Act," the Act 15th February 1489-90, "setting up the Act Rescissory in a certain degree as against 
 " lands, heritages, and those things— omitting titles. Therefore they were endeavouring in every way to 
 " sustain the Rescissory Act. But, at the same time, whether the efiect of that is not an admission that 
 " from the first they doubted the force and validity of that Act Rescissory, I think may be argued by 
 " the other side," i. e. by the Claimant. |||| 
 
 * M>'''^ PP- 361, 362. t -^Hf™. P- 362. X Lord St. Leonards tacitly admits this recognition,— vide infra, p. 370, n. *. 
 
 § The preceding observation applies here also. || Infra, pp. 362, 369, 370. t Infra, p. 372. 
 
 ** -^"Z™' P- 371. tt ^^frc, pp. 240, 241. fj Infra, p. 213. §§ Infra, p. 214. 
 
 WW Infra, p. 174.— Lord Ltndhubst remarked upon this,—" I do not think it was an act of compromise on account of the 
 " uncertainty of the thing. 1 think it was a grant in a different form." And, on the observation of the Solicitor-General that 
 'I that" (Lord Eedesdale's) " would be a very reasonable conjecture," but that " it is a mere conjecture, because there is not 
 " the slightest historical trace that anybody ever claimed to apply the Act Eescissory to David Duke of Montrose," Lord Ltnd- 
 HURST added, " There is a Regrant by Act of Parliament, which implies the power of Parliament to alter it as they thought 
 " proper."— The Solicitor-General afterwards, in alluding to the above " very plausible theory," represented that " in point 
 ■• of fact, we must not imitate Lord Rosslyn " (or Loughborough) " in substituting suppositions and fictions for realities, but we must 
 " deal with the case according to the realities that present themselves "-as interpreted, of course, by the admitted rules and obli- 
 gations of Peerage law. Ibid. p. 176. This has been the Claimant's (unsuccessful) contention throughout the present claim. 
 
ANALYSIS OF THE ARGUMENT. cxxxvii 
 
 Finally, with respect to the suhsequent creation of the Earldom of Montrose in 1503, alleged against the 
 Claimant hy the Crown, — a suggestion by the Loed Chancellok that the circumstance of the "similarity of 
 " name " may afford an argument to the opponents of the claim " on account of the inconvenience " that 
 might thence arise * — and the Claimant's reply, that, as (admittedly) neither forfeiture nor resignation 
 took place, " unless the Act Rescissory destroyed the dignity " of Duke of Montrose, " and that Act is 
 "not repealed hy the Act of 1503," "the dignity now remains in full force," and "all these suhsequent 
 " questions become immaterial," inasmuch as " the creation of a thousand Earldoms and Duhedoms by 
 " the same or hy a different title cannot by possibility affect the validity of the patent of 1488 "—in illus- 
 tration of which the Claimant referred to the two Earldoms of Devon, or Devonshire, as held by the 
 Courtenays and Cavendishes at the present moment, — And generally with respect to the objection of 
 non-claim and non-assumption : — " Every body believed that the Earldom of Devon had ceased to exist, 
 " and that the title was extinct, down to the day when the new claim was made and adjudged. The whole 
 " family had treated it as extinct ; they had accepted other titles from the Crown, and had never claimed it 
 " during that period. And so it is in this case. The Earl of Crawford from that day down to the present, 
 " and even during the whole time when he made his claim to the Earldom of Crawford, treated this Duke- 
 " dom as extinct. The family seem to have been under the impression that the Crown had granted the 
 " title of Duke of Montrose, as it had granted the title of Devon, to another family. It was an erro- 
 " neous opinion that it was extinct during that period in the case of the Earls of Devon, and it was so 
 " decided by this House ; but that belief existed, and it was under that belief that the Crown acted." t 
 
 Observation. 
 
 It is scarcely necessary to observe that the preceding dicta of Lord Redbsdale are stated here merely 
 as impressions, expressed in the course of the argument as the subjects successively passed before 
 the Committee. It does not therefore by any means follow that the Noble Chairman adhered to 
 those impressions at the period when the Resolution was moved and agreed to — although the 
 Claimant has no reason to suppose the contrary. 
 
 RESOLUTION OF THE COMMITTEE 
 
 ON THIS First Head of the Claimant's Argument. 
 
 " That the Charter bearing date the 18th day of May 1488, by which James III. of 
 " Scotland granted the Dukedom of Montrose to David Earl of Crawford 'et hceredibus suis,' 
 
 " WAS ANNULLED AND MADE VOID BY THE AcT OF THE FIRST YEAR OF THE REIGN OF KiNG JaMES IV. 
 
 " OF Scotland, called the Act Rescissory. That the Grant of the Dukedom made by King 
 " James IV. to the said David Earl of Crawford in 1489 was a grant for the time of his 
 " life only. And that the Petitioner, Jambs Earl of Crawford and Balcarres, has not 
 " established any title to the dukedom of montrose (created in 1488)." 
 
 Observation, 
 
 The Claimant must repeat here, that the clause, in the preceding Resolution, referring to the Regrant, 
 or second Patent, was not in the Resolution as originally proposed by the Lokd Chancellor 
 (infra, p. 343) ; but was suggested at the last moment by Lokd St. Leonards, after the conclusion 
 of his own Speech, and added to the Resolution. The Claimant had not claimed under 
 THIS SECOND Patent. On this point the Claimant would refer to his preliminary Address to Her 
 Majesty, supra, p. xxvii. 
 
 Opinion of Lord Brougham, 
 as stated Br Lord St. Leonards. 
 Lord BRoncHAM " entirely concurs in the Resolution " " proposed to " the Committee,— that is, of course, 
 exclusively of the clause, subsequently added, referential to the Regrant. — Infra, p. 372. 
 
 Opinion of Lord Lyndhurst, 
 
 AS STATED BY LoRD St. LEONARDS. 
 
 Lord Lyndhurst " entirely " concurs " upon these two points, first, that the Act of 1488 was a revocation of the 
 " Dignities;" and, secondly, that . . "the construction" is " clearly that . . pointed out" by Lord St. 
 Leonards. " But he desired " Lord St. Leonards " to add, that he gave no opinion upon any other part 
 " of the case, as he had not heard the whole of the arguments, and had not suflBciently followed the case in its 
 " subsequent bearings."— /n/ra, p. 373. The Noble and Learned Lord therefore (as already remarked) gave 
 no opinion either with respect to the Regrant or the Act Revocatory of 1503-4. 
 
 * The opponents here in question are necessarily the representatives— not of the Crown, but of the Duke of Montrose (conf. 
 svipi'a, p. XVI, andn. t),— and the above argument from "inconvenience" was disallowed and rejected by the Committee of 
 Privileges, of which the Lord Chancellor was a member (as Lord Cranworth), when advanced by the Noble Duke in 1851. 
 Vide " Speeches on the Preliminary Question," &c,, pp. 6, 7, 18, mi^ passim. 
 
 + Infra, p. 104. 
 
 T 
 
cxxxviii ANALYSIS OF THE ARGUMENT. 
 
 The Claimant may subjoin to the preceding Analysis the following brief Abstract 
 of his Argument upon the concluding Heads of his claim — respecting the limitation 
 in the Patent 18th May 1488 (not yet reported upon) — as given at length in the 
 ' Case,' pp. 35 sqq., and ' Supplemental Case,' pp. 145 sqq. 
 
 SECOND HEAD OF THE ARGUMENT. 
 
 General Proposition. 
 That the Limitation in the Patent 18th May 1488 to ' Heirs' — a term of confessed flexi- 
 bility IN Scottish law and practice, and much more so than is generally apprehended, 
 especially in the fifteenth and sixteenth centuries— does in the said Patent denote 
 AND signify ' Heirs Male.' — Case, p. 35 ; S. Case, p. 145. 
 
 The limitation in the Patent is " heredibus," i. e. to the ' heirs ' of Duke David, the patentee. 
 
 The term ' heirs ' includes collaterals — as by the judgments in the Devon and Annandale claims (decided by 
 Lord Brousham and Lokd Ltndhuest in 1831 and 1834), and by previous Scottish practice, especially in the (identical) 
 case of the Barony of Torphichen. 
 
 All the Claimant has to do therefore is to establish that the term ' heirs ' in the Montrose limitation denotes 
 ' heirs vwile ' — he being the nearest heir male in the collateral capacity. 
 
 The point to be ascertained is the signification that the term ' heirs ' bore at the period when the Montrose Patent 
 was granted, and under the peculiar circumstances — which were very remarkable.* 
 
 ' Heirs ' (as by authority given) is — even now — a flexible term in Scottish law, which " has not always one fixed 
 " signification, but varies according to the nature of the subject, or of tJie security, or other circumstances.^ " And, in tracing 
 it further back, it will be found, especially at the period in question, to be still more flexible, and to denote the existing 
 
 HEIRS OF A FAMILY UNDER REGULATINa INVESTITURES, ACCORDING AS ESTATES OR HONOURS STOOD TO HEIRS MALE OR 
 
 HEIRS AT LAW, — having had besides A marked bias formerly to the male signification. 
 
 An abstract dignity, without fiefs and vassals, would have been a solecism and anomaly in feudal times — the 
 period to which attention is restricted. It was the invariable intention, understanding, and rule that estates and 
 honours should descend together, and separation only occurred in exceptional cases, either through incompetent con- 
 veyance or oppression. And even when honours ceased to be territorial, Scottish patents still retained something feudal 
 or territorial in their features, far more than in England ; while the importance of honours and estates descending to the 
 same heirs was admitted and enforced in such conveyances. Hence the descent of the family fiefs cannot be disregarded 
 in construing tJie descent of the Bulcedom, of Montrose at the particular epoch of its creation. This principle was recognised 
 and resorted to by Lord Mansfield in the Spynie claim in 1785, and by Lord Loughborough in the Glencaim claim in 
 1797.J The argument of the Lord Advocate Rutherford in the Airth claim was moreover precisely accordant with it, 
 
 * The questioQ is, Would Alexander, seventh Earl of Crawford, the Duke's younger brother, or the Duke's daughters, his 
 heirs general, have succeeded to the Dukedom on the death of the Duke's son, Earl John, in 1513— supposing the Dukedom had 
 not been in a state of dormancy at the moment ? Or otherwise. Who were the ' heirs ' of David Duke of Montrose under the 
 limitation " heredibus suis " in the Ducal Patent — not in 1853 but in 1513, when the right to the succession opens in this case — the 
 period to which attention must be primarily directed, as by the dictum of Lord Stair, cited and enforced supra, pp.xxvi, n. ||, and 
 Lviii, as well as on the plainest principles of common sense and justice. 
 
 t Though by the word heir, in the most proper signification, " the heir at law is understood, it is certain that that general 
 " term has not always one fixed signification," &c. &c. ut supra. Erskini s Institute, B. III. Tit. viii. § 47. 
 
 In illustration of the flexibility of the term ' heirs ' in actual Scottish practice, the Claimant may refer to the case of Hunter 
 and Marshall v. Nisbett, 14th Nov. 1839, in which an Interlocutor of the Lord Ordinary, proceeding an tlmt confessed flexibility, and 
 interpreting the words " heirs of the longest liver " of two persons as implying " heirs of tJie body " undxr the peculiar circumstances, was 
 unanimously adhered to by the Court of Session. See the Eeport in the ' Scottish Jurist,' vol. xii, p. 163, — from which it is quite clear 
 that if the intention of the testator had been in favour of ' heirs general ' (under the broad limitation), ' heirs ' would have been 
 rendered accordingly by the Court — which clenches the Claimant's argument. , 
 
 Even in England this flexibility is also recognised, as appears from the following extracts from the judgment of Vice- 
 Chancellor Kindersley in the recent case of Dormer v. Philips, 25th November 1854,— in which the Vice-Chancellor says,—" It has 
 " appeared to me, that, in order to interpret this will, to see what the testator has expressed, and from what is expressed to deter- 
 " mine what he intended, it is necessary to consider and to ascertain in what sense he has used the word ' lieir,' or rather the term ' next heir.' " 
 " Now it is a plain and elementary rule of construction that every term that is used by a testator is to receive its primary and 
 " ordinary construction unless from the context you find that it could not have been used in that sense, and then you must use it in a different 
 " sense according as you find you are obliged to use it in a different sense by t/ie terms of the instrument itself:" — In pursuance of which 
 principle, and laying it down as " clear that the testator did not use the term ' next heir,' or ' next male heir,' in its proper primary 
 "signification," the Vice-Chancellor proceeded to investigate and decide the point in question. And this judgment having been 
 appealed against to the House of Lords, the Lord Chancellor (Lord Cranworth) has confirmed it, and dismissed the appeal- 
 stating that " after a careful consideration of the words of the will of Lord Dormer," " he entirely coincided with the opinion of 
 " the Vice-Chancellor in their construction." Report in the Timxs, 12th March 1855. 
 
 All this is precisely in accordance with the argument of the Claimant ; who holds (as will appear) that ' heirs ' in the Montrose 
 patent can, from the context of the instrument, imply nothing else than heirs maZe,— while he is also at liberty, by Scottish law, to 
 call in the corroborative assistance and testimony of collateral circumstances— which all point to the same interpretation, as will be 
 shewn immediately. 
 
 X For the heads of Lord Mansfield's argument in the Spynie claim, by which hs inferred a male descent to that honour 
 through collateral instruments and grants of lands "to heirs male"— "all to males," &c. see the Appendix, infra, p. 568. As 
 regards Lord Loughborough — after stating that " the judgment of this House in the case of the Peerage of Cassillis "was penned 
 " expressly to mark the opinion of" the House " that the presumption of law was against the heir general in favour of the heir 
 " male," and adding, emphatically, " If there be anything certainin the law of peerage, it is this presumption in favour of heirs 
 
ANALYSIS OF THE ARGUMENT. cxxxix 
 
 and since that argument (and the acceptance it was understood to meet with from the Committee of Privileges) no 
 further steps have been adopted in that claim. The Claimant is justified therefore in affixing the same precise signifi- 
 cation of heirs male to the Montrose Umitation to 'heirs' in 1488,— and this, not only in consideration of the argument 
 and view taken in the Spynie, Glencairn, and Airth instances, but on corresponding and even higher grounds ; and 
 moreover from the internal evidence and context of the Montrose Patent, and other striking circumstances and 
 considerations. 
 
 1. The teem ' heieb ' denoted ' hbies male ' in chaeteeb oe oeants belating to the Ceown eeom 1373 to 1542, 
 and in ohaetees oe geants eelatina to peivate eamilies whose honoues oe estates weee entailed on 
 heies male ; and the said tebm ' heies,' in the absteact and peeeeotly tjnconteolled, then also paetook 
 
 OE THE SAME SiaNIEIOATION, THE BIAS BEING TO THE MALE CONSTEUOTION.— C(Me, p. 37; S. Case, p. 147. 
 
 1. The heirs of the Crown of Scotland between 1373 and 1542, during which time the succession was 
 
 rigidly entailed by the Act of Settlement 4th April 1373 on male heirs, are always alluded to 
 as ' heredibus nostris '—never as ' heredibus mascuhs ;' although by the term ' heredibus ' 
 were undoubtedly imphed and understood the male successors to the Crown under the regu- 
 lating Act of Settlement in 1373, which thus fell to be referred to for the interpretation of 
 the term. 
 
 2. 3. 4. 5. Instances are cited in the cases of the family of Buohan (as represented by James IV.), 
 
 of the Lords of the Isles, and of the Earldom of Gowrie — in which heirs male are described as 
 ' heirs,' simply, in consequence of previous entails and settlements, — and in the case of the patent 
 of the Barony of Sempill, 25th July 1685, which, after reoituig a previous conveyance (thereby 
 confirmed) to ' heirs,' simply, describes those heirs as ' heirs male ' — the patent proceeding on 
 the express resignation into the hands of the Crown by the heir male collateral of all right to 
 the dignity. 
 
 6. Instance of James IV. being described and taking as ' heir ' simply, being in reality heir male, of 
 
 John Earl of Buchan — heirs female or at common law being alive. 
 
 7. Instance of James VI. describing himself, in a regrant of the Earldom of Lennox, as having 
 
 succeeded to the Earldom under the previous limitation, which was " heredibus suis " — James 
 being only the heir male, an intermediate heir female. Lady Arabella Stuart, being then ahve. 
 
 8. Instance in the family of Stewart Lord Methven — in which Henry Stewart in 1565 is described 
 
 as ' son and heir ' of his father, Henry Lord Methven, and would be supposed to have been his 
 lawful heir at common law but for other evidence, adduced, proving that he was only his 
 illegitimate son by Janet Countess of Sutherland. He was styled ' heir ' of his father from the 
 estate of his father being settled upon him nominatim, whereby he was " factus heres " (the 
 technical phrase), aocording to Scottish practice. 
 
 9. Instance in the history of the Marquisate of Huntley — i/je original patent of the Marquisate (which 
 
 is not preserved and was never recorded) being described by contemporary and legal evidence 
 (in the family charter-chest and in the records of ParHament) as granted to ' lieirs ' and ' Jieirs 
 ' and successors ;' while it is proved by later evidence that the Marquisate was descendible 
 under that patent to heirs male in the seventeenth century. Moreover, the Buntley estates were limited 
 to heirs male at the time when the patent was granted — making the identity between the cases of 
 Huntley and Montrose or Crawford — where the estates also stood to heirs male — complete. If 
 therefore ' heirs,' simjjly, thus legally and unexceptionably expressed heirs male in the Huntley 
 instance, such a fortiori must be its technical import in the Montrose patent in 1488. On the 
 death of the late Duke of Gordon and Marquis of Huntley, leaving only daughters, the Marqui- 
 sate of Ilantley was (in 1838) adjudged by this House to his nearest heir male, George Earl of 
 Aboyne, passing over the heir female — in perfect conformity to the preceding argument.* 
 
 " male," Lord Loughborough applied the principle to the Glencairn question ; and, assuming that the creation of that Earldom -was 
 in 15U3 by ' belting' without any " express limitation of the descent of" the " honour,'' the original patent being annulled by the 
 Act Rescissory he proceeded thus : — "At the time of the creation in 1503 the then Earl of Glencairn could not have any other idea or wish 
 " than that Ms title should descend in the male line. In 1498 he had made a very accurate entail of his estates " "to himself in life-rent, and 
 " to his son and his heirs male in tailzie." " After Cathhert took the title of Earl of Glencairn," (that is, as assumed, in 1 503,) " theke 
 
 " CANNOT BE A QUESTION IN WHAT LINE HE WOULD HAVE CHOSEN TO SETTLE HIS LANDS IF THE TITLE WENT TO HEIRS GENERAL." 
 
 But in 1509, in 1511— the term 'heirs' (simply) in a regrant or the 'Comitatus' in that year falling to be inter- 
 preted BY THE SUBSISTING AND RULING ENTAIL TO HEIRS MALE IN 1498 — again in 1614, in 1C42, and afterwards, the male succession is 
 still enforced and riveted in the family estates,— tseuesoke the Resolution which Lord Loughborough submitted to the adoption of the 
 Committee was this, "that Sir Adam Fergusson, the heir female, has shewn himself to be heir general of Alexander Earl of Glen- 
 " cairn, who died in 1670, but hath not made out the right of such heir general to the dignity of Earl of Glencairn "—which he 
 concluded therefore to descend to the heirs male. Vide infra, p. 494.— Lord Loughborough here took the Claimant's view of the 
 flexibility of ' heirs,' considering the regrant of the Comitatus m 151 1, simply to 'heirs,' to have been affected and controlled in its meaninj 
 by ffie previous investitures of the estate, and actually made a limitation to ' heredibus suis ' equivalent to heirs male. And the 
 House decided against the claim of the heir female on the above ground, (without any reference, as elsewhere shewn, to the private 
 opinions of Lord Loughborough as to the effect of the Act Rescissory,) and consequently gave their sanction to the te&t 
 AND criterion CONTENDED FOR BY THE CLAIMANT.— For morc On this point See note " infra.— And fur the charter 1511, vide p, 
 503, infra. 
 
 * To the above may be added the case of the Earldom of Glencairn, as granted to Alexander Lord Kilmaurs " et 
 " heredibus suis " by the patent 28th May 1488, and which accordingly, on the death of Alexander tenth Earl of Glencairn in 1670, 
 
 PASSED over the HEAD OF THE HEIR FEMALE, MARGARET CoUNTESS OF LaUDEKDALE, TO GO TO THE HEIR MALE COLLATERAL, JoHN 
 
 T 2 
 
Cxl ANALYSIS OF THE ARGUMENT. 
 
 The preceding instances may have shewn the extreme flexibihty of the term ' heirs ' in Scotland, ^a nexiumty rar 
 greater than is usually supposed,) and the impossibility of ascertaining and fixing its import (especially at that early 
 period) without consulting at the same time collateral incidents and circumstances, the relative situation of parties, 
 family investitures and succession, &c.-the only safe source of information and guidance— precisely as the Claimant 
 does in the Montrose and Crawford instance. 
 
 ii. The honottes and estates oe the Cbaweobd eamilt weee excittsivelt descendible to heies male peetiously 
 
 TO AND AT THE DATE OE THE MONTEOSE PATENT IN 1488,— THE ESTATES BEING ENTAILED AT THE PEEIOD MEN- 
 TIONED, EVEN MOEB BBOADLY THAN THE CeOWN ITSELP, AND IN THE MOST STEIOT, ANXIOUS, AND I7NPEE0EDENTED 
 MANNEE, TO HEIBS MALE WHOMSOEVEE, WITH ENIIEE AUD ABSOLUTE EXCLUSION OP HEIES GENEEAL.— Case, p. 45; 
 S. Case, pp. 158 sqq. 
 
 As regards the honours, reference may be made to the Crawford Case and Minutes of Evidence- 
 proving that the Crawford representation in this cardinal matter was exclusively riveted to 
 heirs maZe— who hence, technically, were the ' heirs.' 
 As regards the estates, the point in question is proved by their regulating settlements, followed by 
 investitures, cited, in 1421, 1451, and 1474— uniformly to heirs male whomsoever. The last 
 entail of 1474 having never been altered, the family representation both as respected honours 
 and estates, before and in 1488, the date of the Montrose patent, was exclusively vested in 
 heirs male; and these heirs male, according to Scottish practice and understanding, were 
 assuredly the 'heirs ' of the family, and entitled a fortiori to be simply styled their 'heirs.' 
 
 iii. 'Heies' in the Monteose patent must theeeeoee denote heies male. — Case, p. 46 ; S. Case, p. 159. 
 
 It. ' Heies ' in the patent is also peoved et the context and inteenal evidence oe the patent, and by what 
 EEEE EELATITELY APPLIES, TO DENOTE HEIES MALE. —Case, p. 46 ; S. Case, pp. 159 sqq. 
 
 1. Independently of rewarding the loyalty of the Crawford family hitherto, it was the expressed 
 
 object of the Crown, in granting the Dukedom, to secure the services of the family — which, from their 
 vast possessions and numerous vassals, was a matter of the highest importance. Tliis object 
 could only be effected by the descent of tJie Dukedom and the property granted along with it to the 
 heirs male, on whom the whole Crawford estates and honours were already settled ; for, otherwise, if 
 the Dukedom and its dependencies had gone one way and the Crawford estates and honours 
 another, the power and resources of the family would have been diminished by the succession 
 and representation being spht into two distinct and rival heads, and the object of the Crown, 
 as expressed in the patent, would have been defeated.* Lord Mansfield's argument in the 
 Cassillis case in 1762, that, the older Barony of Kennedy being descendible to heirs male, it was 
 impossible to believe that the Earldom of Cassillis should have been intended to go in a different 
 channel, viz. to heirs female, was on precisely the same grounds as this, and ia per se decisive in 
 the Claimant's favour.f Besides, the Dukedom of Montrose and the Earldom of Crawford 
 ' being in pari materiel, the Crown must be presumed to have had all the relative conveyances 
 
 before it, including the entail of the estates and Earldom, and to have weighed and consulted 
 them, in like manner as was so pointedly done in the Annandale case in 1844. Hence the 
 male descent of the Earldom of Crawford must have a decisive effect in determining that of 
 the Dukedom. 
 
 2, The asserted object of the Ducal patent in 1488 was — not to confer an independent or (strictly 
 
 speaking) additional honour — but merely to change and elevate that of the Earldom of Crawford 
 into a higher, a Dukedom. The inductive words are, " Et pro suo servitio nobis in futuram 
 
 ELEVENTH Eael OF Glencairn — without cavil or dispute (") — the (only) Patent 1488 being then (by the Decreet 1648) in full force 
 and recognition, and the estates of the Glencairn family being strictly entailed on heirs male (preferably) in 1488 and previously O 
 — besides many cases in England in which grants of peerage with the limitation to ' heirs,' simply, descended to the heirs male 
 collateral, passing over the heads of intermediate heirs female. 
 
 * In illustration of this, and for the argument ex absurdo on this point, vide supra, p. XLiii. 
 
 t See Lord Mansfield's Speech in the Appendix, infra, p. 559. — Besides this, it is laid down by Bankton in his Institutes,— 
 " If the old rights of the Baronij or Lordship belonging to the family have always gone in a perpetual channel to heirs male, then all titles 
 " of honour thereon founded will be understood to go in the same manner to the heir male, though the rights of the estate came afterwards to 
 " be destined to heirs whatsoever • for the Feudal Peerage must go as the estate would at the time when the great Barons, on account of their 
 " holdings, remained Lords of Parliament, and the small ones were allowed to send a Commissioner to represent them'* Institutes, vol. i. p. 
 52, edit. 1751. — This important dictum — strictly applicable to the present case, inasmuch as the Dukedom of Montrose was 
 most distinctly " founded " upon the Earldom of Crawford, which is expressly stated to be " changed " by the patent into the Duke- 
 dom — had escaped the Claimant's notice when he printed his Case and Supplemental Case. 
 
 (°) " Joannes nunc Comes de Glencairn" is retoured nearest de Cunningham, Knight, son and heir of the late Nigel de Cun- 
 
 and lawful heir male to the deceased Alexander Earl of Glencairn, ninghara, and the Hke heirs — " Quibus forsan deficientibus, veris 
 
 his brother german, 29th September 1670. — Records of Chancery. " legitimis et propinquioribus heredibus dicti Willielmi quibus- 
 
 C") The regulating Glencairn or Kilmaurs entail in 1488 " cunque." — The Claimant has shewn in the preceding page that 
 
 was a Charter of Confirmation by Eobert III., under the Great Lord Loughborough, holding the Glencairn creation to have 
 
 Seal, dated at Rothesay, 8th July 1399, to " WiUielmo de taken place in 1503, interpreted the regrant of the Glencairn 
 
 " Conynghame, militi," and proceeding on Sir William's resig- ' Comitatus' in 1511 to ' heirs' as to heirs male, in consequence 
 
 nation, of the " terras de Kilmaurs," the chief fief, estate, and of the family estates standing entailed in 1503 on heirs male by 
 
 title of the family, together with those of Lambrochton, Kilbride, the Charter of 1498. But the Charter of 1498 having been 
 
 and Polquharne in Ayrshire, besides others in the shires of Edin- merely a continuance and reiteration of the above original and 
 
 burgh, Forfar, Berwick, and Renfrew, — with limitation, succes- regulating entail of 1399 (which had been binding and in force 
 
 sively, to the said William and the lawful heirs male of his body, during the interval), it is evident that Lord Loughborough, had 
 
 to Thomas, Alexander, and John de Cunningham, his brothers, he admitted the patent 1488, must, on the same principle, have 
 
 xeriatim, and the lawful heirs mde of their respective bodies,— interpreted the identical limitation to ' heirs ' in that patent as 
 
 whom failing, to Sir Humphrey de Cunningham, Knight, Wil- heirs mfxle in consequence of that entail of 1399, then ruling and 
 
 liam's cousin, and the like heirs, — to Archibald, Sir Humphrey's governing the descent of the family property, 
 brother, and the like heirs, — whom all failing, to Sir Archibald 
 
ANALYSIS OF THE ARGUMENT. cxli 
 
 " impendendo, eundem David, nostrum consanguineiim, ampliori volentes fulgere dignitate, 
 " et Gomitis titulum supradictum in majorem excellensioremque mdtantes " — therefore, it 
 proceeds, ' we create and raise him to the dignity of Duke.' If ' heirs ' in the patent be under- 
 stood as heirs female, and the Dukedom had gone in that channel, the Earldom (which was 
 not resigned) would (with all its extensive fiefs and seigniories) have still continued in the 
 male line and would have subsisted separately, though without undergoing the change and 
 amalgamation contemplated and ordained by the Ducal patent. This, ex termirds of the 
 patent, could not have been the intention and cannot be presumed. On the other hand, on 
 the male construction of the limitation, the Earldom merged into the Dukedom, and was 
 changed into and superseded by the higher honour. The argument from the Dukedom and 
 Earldom being in pari materia here also tells. Additional illustrations are given of the force 
 of the word " mdtantes," as implying the erection of an Earldom into a Dukedom. 
 3. An annual rent of forty marks out of the Great Customs of Montrose (constituting nearly 
 two-thirds of the whole Great Customs of the burgh) was entailed on the Earls of Crawford 
 and their heirs mMe whatsoever by the charter of entail of 1421 ; and was held by David 
 Duke of Montrose and by his heirs male after him, the succeeding Crawford heirs, exclusively 
 in terms of that entail of 1421. Now, in the Ducal patent 1488 James III. grants to Duke 
 David the burgh of Montrose with aU its revenues, including the whole Great and Small 
 Customs (the " magnis et parvis custumis "), as well as the Dukedom, to the patentee " et 
 " heredibus suis." No mention is made of the annual rent of forty marks, which stands 
 limited by the entail of 1421 to heirs male, having been resigned into the King's hands, as 
 would have been incumbent had it been intended to introduce a new destination to heirs 
 female so far as that annual rent was concerned ; but, on the contrary (as stated), the whole 
 of the Customs, including the annual rent in question, are graqted coUeotively to the Duke " et 
 " heredibus suis." A resignation would have been undoubtedly specified had it taken place, 
 according to the invariable rule on such occasions. ' Heirs,' therefore, in the Montrose patent 
 could mean nothing else than heirs male as regards the annual rent of forty marks above 
 mentioned, thus included in the general grant of the Customs of Montrose to Duke David, 
 
 i. Because it must he presumed in laio (and as inculcated in the Annandale Case in 1844) 
 that aU the relative docwments in pari materia, including the Crawford entail in 1421 , 
 were before the Crown when it executed the Ducal grant of 1488 ; and that, in framfiing 
 that grant and bestowing the Customs of Montrose collectively upon the Dulce and his heirs, 
 it intended the term ' heirs ' to express heirs male with reference to the forty marks conveyed 
 by the former entail, and of which, as stated, there had been no resignation. And, if so, 
 the inference is direct,— that ' heirs ' mu^t imply heirs male as regards the remainder of 
 the Customs, the lordships conveyed by the grant, and the Duhedom, or, in other words, the 
 old Earldom of Crawford^ now changed into a higher rank and designation (as by the 
 terms of the patent), and the descent and limitation of which would also be in view 
 and consiilted : — 
 
 ii. Because it is inculcated by all Scottish legal authorities, that " in every case where 
 " there has been an antecedent destination of a subject, limiting the succession to a 
 " particular order of heirs, the word 'heir' or 'heir whatsoever' in aU posterior 
 " settlements of that subject must be understood, not of the heir at law, but of the 
 ' ' heir of the former investiture."* Hence the forty marks from the Montrose Customs 
 being limited to heirs male in the entail of 14:21, the flexible term 'heirs' in the subsequent 
 Montrose conveyance must denote 'heirs male' so far as the forty marks included in tlie 
 general grant of the Montrose Customs are concerned — the said forty marks, as premised, 
 not having been resigned. And the inference is to be drawn in like manner as before, 
 that if 'heirs' imply heirs male as regards one subject or particular, they must as regards 
 every other in the Montrose grant, including tlie descent of the Dukedom, all being 
 embarked in the same boat, subjected to and ruled by the same common limitation, 
 literally, to 'heirs.' If, in fact, any other construction be put on the term ' heirs' in 
 the Montrose Patent as regards the forty marks from the Montrose Customs, the 
 Crown would have granted away to the heirs of line what stood already granted to 
 the heirs male — which would have been unjust in the first instance and ultra vires of 
 the Crown in the second, from complete want of a resignation. Whereas, on the 
 Claimant's construction, all is legal and just ; and the inference therefrom is com- 
 pletely in accordance with what has been otherwise proved regarding the import of 
 the term ' heirs ' in the Montrose grant. 
 The context and internal evidence of the Montrose Patent itself therefore bear out, prescribe, and necessitate 
 the exclusive masculine signification of ' heirs ' in the Patent, as contended for. 
 
 v. The same MASCtrLiNE siaNinoAiioir os ' heirs ' in the Monteose patent is mokeovee eixed and coeeoboeated 
 
 BY THE identical USE AND PEACTIOAL ACCEPTATION OP THE TEILAI ' HEIES ' IN OTHEE EOTAl OEANTS TO THE 
 CeAWPOED PAMILT, as WELL AS IN G-EANTS BY THE FAMILY THEMSELVES AND EELATIN& TO THEM, AS EXCLUSIVELY 
 DENOTING- HEEES MALE, — ^A SPECIALTY, IT IS APPEEHENDED, DECISIVE per se IN THE CLAIMANT'S PAVOUE. — Case, 
 p. 49 ; S. Case, pp. 162 sqq. 
 This is proved {inter alia), — 
 
 i. By Duke David's resignation (while Earl of Crawford) into the King's hands " pro se et heredi- 
 " bus suis" of the family estates, which he held under the entail of 1421, exclusively to heirs 
 male, for new investiture, as efiected by the entail of 147 4,t — 
 
 * Erskine's Institute, B. IV. Tit. viii. § 47. 
 
 f For similar instances see the Appendix, infra, pp. 514, 521, 523. 
 
cxlii ANALYSIS OF THE ARGUMENT. 
 
 ii. By the fact that John sixth Earl of Crawford, the Duke's son and heir, having died without 
 male issue, leaving two sisters, his heirs of hne or at common law, and Sir Alexander 
 Lindsay of Ochtermonzie, the Duke's younger brother and Earl John's nearest heir male 
 collateral, having succeeded as seventh Earl of Crawford to the family estates as entailed in 
 the settlements of 1421 and 1474 to heirs male whomsoever, the said Sir Alexander, seventh 
 Earl of Crawford, is always described in the legal documents making up his title to those estates, 
 under the settlements in question, as the " legittimus et propinquior heres,''' amd the " nerest and lauchful 
 " air,'" simply, to his predecessor, John the sixth Ea/rl, a/ad {necessarily) to David Duke of Montrose 
 — notwithstanding the existence of the intermediate heirs female or of line, th^ Duke's daughters 
 and Earl John's sisters, — 
 
 iii. By the fact that, the Sheriffdom of Forfarshire having been (for the first time) granted by 
 James III. in 1466 to David Earl of Crawford, afterwards Duke of Montrose, " et herebibub 
 " SUIS " — precisely the same limitation and tenure with those in the Patent of the Dukedom — the Earls 
 of Crawford generally throughout the sixteenth century, and especially David the eighth and 
 David the eleventh Earls of Crawford, asserted their right to the Sheriffdom as ' heirs ' under the 
 above ruling charter to David Earl of Crawford (afterwards Duke) in 1466, they being merely his 
 HEIRS MALE coLLATBRAi, and heirs female or of line, descended from the Duke's body, being then 
 alive ; and that the Cray family (their opponents), while resisting their claim to the utmost, never 
 for a moment questioned tliat status, which was admitted on all hands, and opposed their rights 
 and claims on the sole ground that they were -precluded from the succession under the charter by the 
 interventus of Duke David's resignation of the Sheriffdom,: — The argument here being moreover 
 a fortiori in favour of the Claimant, inasmuch as the Sheriffdom was a novum feodum, whereas 
 the Ducal Patent merely regranted an old inheritance, the Earldom of Crawford, as trans- 
 muted or erected into a Dukedom,* — 
 
 iv. By the similar fact that other novafeoda (the barony of Pitfour and lands of NewhaU) conferred 
 by James IV. on John Earl of Crawford " et heredibus suis " (the identical Umitation in the 
 Montrose Patent) passed, over his sisters and heirs of line, to his collateral heir male, 
 Alexander seventh Earl of Crawford, who succeeded under the limitation " heredibus suis," and 
 is described as Earl John's " heres " or " heir " in legal docv/ments relating to them— the heirs of 
 line, Earl John's sisters, being thus entirely excluded — with the obvious view (as in the case of 
 the Sheriffdom) of increasing the power of the main stock of the family : — Which fact 
 technically and relevantly fixes and rivets the interpretation of the word ' heir,' as heir 
 male, contended for by the Claimant, — And, passing over all other intermediate illus- 
 trations, — 
 
 V. By the decision of the Court of Session in the litigation regarding the Crawford succession in 
 1748 and afterwards, when, John twentieth Earl of Crawford having in that year granted a 
 trust-bond of his landed property to Mr. George Boss, by the terms of which the latter became 
 bound eventually to denude in favour of the said Earl John and his 'heirs' simply — it 
 became a question, on the death of Earl John without issue, whether the benefit of this 
 obUgation devolved to Lady Mary Campbell, his sister and heir of line, or to George twenty- 
 first Earl of Crawford, his distant collateral heir male ; and it was decided, after long Ktigation, 
 28th January 1791, that the term 'heirs' could only mean heirs MALE, inasmuch as the estates, by 
 the last regulating Crawford settlements and investitures in 1648 and 1670, stood in the person of tlie 
 above Earl John to heirs male, including the said Earl George — under which character he. Earl 
 George, accordingly succeeded to them : — Than which there cannot, it is submitted, be con- 
 ceived a stronger or more identical case, modern practice thus completely tallying with that of 
 ancient times. 
 
 Having therefore shewn, 1. That the term ' heirs ' technically denoted heirs male in early charters, both when 
 honours and estates stood entailed to heirs male and otherwise ; 2. That the honours and estates of the Crawford 
 family were exclusively descendible under the regulating entails to heirs male ; 3. That ' heirs ' in the Montrose Patent 
 must therefore mean heirs male ; 4. That 'heirs ' is proved by the internal evidence of the Patent to mean heirs male ; 
 and, 5, That the heirs male of the Crawford family are practically and habitually styled by the Crown and otherwise 
 their 'heirs,' although heirs female were alive, — the Claimant conceives that he has established the position that the 
 limitation to ' heirs ' in the Montrose Patent denotes and signifies heirs male. 
 
 THIRD HEAD OF THE ARGUMENT. 
 
 General Peoposition. 
 
 That the Claimant is the heik male of Duke David, the first grantee, under 
 THE patent. — Case, p. 53 ; S. Case, p. 167. 
 
 This has been already proved and adjudged in the claim to the Earldom of Crawford. 
 
 * On the subject of the parallelism between the two grants of the SheriflFdom of Forfar and the Dukedom of Montrose, see 
 the Appendix, infra, pp. 524, 525. 
 
ANALYSIS OF THE ARGUMENT. cxliii 
 
 SUMMAEY OF THE CLAIMANT'S ENTIEE ABGUMENT. 
 
 (From the Case, pp. 54 sqq. ; S. Case, pp. 167 sqq.) 
 
 I. James III., by Royal Charter or Patent, 18th May 1488, in favour of David fifth Earl of 
 Crawford, in return for his loyalty and eminent services, and with the avowed and express object of 
 securing a continuance of those services to the Crown, changed and erected his title of Earl of Crawford 
 into the higher dignity of Duke of Montrose— to hold to him " et heredibus suis." 
 
 II. The term " heirs " in this grant being a flexible one at the time, relevantly controlled by 
 circumstances, and with a strong bias to the male acceptation — ^and reference being had to the context, 
 shewing the other subjects conferred, and proving that the Earldom of Crawford — ^then, together with the 
 Barony of Lindsay and the entire family estate, settled on heirs male — was thereby only changed into the 
 higher dignity of Duke of Montrose, the Dukedom not being a distinct and independent dignity — the effect 
 of this grant is to convey the Dukedom to heirs male. 
 
 III. The Dukedom thus conferred now belongs to the Claimant, the heir male of the patentee, 
 unless it has been resigned, or forfeited by attainder, or otherwise determined by Act of Parliament. 
 
 IV. No Resignation or Forfeiture can be alleged ; and the only Act of Parliament which can be 
 contended to affect it, the Act Rescissory, 17th October 1488, has no legal operation upon it. For, 
 
 1. T^iat Act must be most strictly construed, because it is highly penal, and imposes forfeitures, 
 
 and because it is founded on assumptions false in fact, and repugnant to law and good 
 government, to the loyalty and fidelity of subjects to their Sovereign, and to the duty of 
 children to their parents. 
 
 2. The Act does not name the Duke of Montrose or the dignity, on which ground alone it is 
 
 inoperative ; and even if the dignity were named, it could only be made to apply thereto if 
 it could be shewn that the grant of that dignity by the King of Scotland de jure and de 
 facto to a loyal subject for great services and merits was " prejudicial " to his son and 
 successor, and had aided in causing the murder of the said King, James III. — whereas the 
 contrary is most clear and certain ; and James IV., in an Act of Parliament subsequently, 
 describes the Duke as a loyal and faithful subject to his father as well as himself. It is 
 submitted that the House of Lords cannot judicially hold that the grant of this dignity 
 comes within the language of the Act Rescissory, and answers the description therein, — and 
 in no other way can the Act be brought to operate upon it. Even if, instead of being 
 clearly inapplicable, the language of the Act Rescissory had been of doubtful application, 
 that alone would save the Patent 1488 from its operation. 
 
 3. Contemporary records and history are against any such construction, the grantee being in 
 
 great public instruments and transactions styled Duke of Montrose, and solemnly admitted 
 to be such by the Sovereign, besides holding lands, under the Patent 18th May 1488, 
 subsequently to that Act and before any new grant of the dignity. The language and 
 structure of the Act are such, that it could not by its own force, independently of other and 
 subsequent proceedings ascertaining and fixing its applicability to particular subjects, have 
 any practical effect in destroying rights or honours against which it may have been directed 
 — a point which may be said to be ruled as regards the Act in question by the decision in 
 the parallel case of the Dukedom of Norfolk in 1425 :— And 
 
 4. Further still, as by evidence adduced, the Act was contemned and disregarded, and did not 
 
 take proper effect, practice being adverse and contrary thereto ; which is a relevant 
 objection to a statute by Scottish law, as well as by the Norfolk decision in 1425. 
 
 V. If then the Act Rescissory does not affect the dignity, the case is made out, and all other 
 questions become immaterial. 
 
cxliv ANALYSIS OF THE ARGUMENT. 
 
 VI. But even if the Act Rescissory did apply, the Royal Recognition of Duke David by 
 James IV. as Duke of Montrose, under very marked circumstances, subsequently to the Act Rescissory, 
 and the Remission or removal of the Royal displeasure against him on a certain condition, which was 
 duly implemented by him, would, either of them singly, by Scottish law, do away with its effect. 
 
 VII. So also would the Revocatory Act of 1503-4. 
 
 vixi. No legal argument can arise upon a claim to a dignity from mere lapse of time, even 
 if unexplained ; but here the non-claim is reasonably explained by the circumstances set forth in 
 the Case. 
 
 IX. There is here too the fact and plea of res noviter venientes ad notitiam, to which Scottish 
 law attaches peculiar force. The heirs to the Dukedom were till recently in darkness, and unaware of 
 material evidence in support of their rights. 
 
 X. The only other argument that can arise, opposed to the Claimant, is with reference to the 
 notice of the ' Litera,' or supposed second patent, of 19th September 1489. But, whatever that ' Litera ' 
 may have been, it cannot affect the merits of the case : — For, 
 
 1. Neither the original, nor even a copy of it, exists. It is only known by an imperfect 
 
 abridgment or analysis, irregularly interpolated in the Great Seal Register. 
 
 2. This interpolation must under the circumstances be looked upon with the utmost suspicion ; 
 
 and may be presumed to have been thus inserted with the view of misrepresenting the 
 tenor of the original instrument, and thus excluding the Duke's heirs from taking up a title 
 which none of the nobility could brook. 
 
 3. The Act of Parliament, on the contrary^— or rather of James IV. with advice of Parliament 
 
 — of the preceding day, on which the ' Litera ' proceeds as on its warrant, exists in extenso. 
 Had a restriction been contemplated, it would have been set forth therein, as in similar 
 Royal Grants. Yet the Act has nothing of the kind, but, on the contrary, so far as it 
 goes, it merely re-echoes and enforces " de novo " the original Patent, and confirms and 
 repeats the intention of the Crown, therein expressed, to change and exalt the title borne 
 by the ancient Earls of Crawford, and by the grantee, into a higher or Dukedom — implying 
 and necessitating the continuance of the new honour in the same line of heirs as the old one, 
 with which it was inseparably amalgamated and identified, — an intention manifestly incom- 
 patible with the idea of a Dukedom merely for life, as might be supposed. Moreover, the 
 subjects conveyed with the Dukedom in the " de novo " creation are not specified in the 
 Act or warrant, thus implying and necessitating a reference to and homologation of the 
 previous Patent of 18th May 1488, where alone they are to be found. All this is 
 incompatible with the supposition that the ' Litera ' based upon this warrant could be 
 restrictive. 
 
 4. Even if the above notice of the ' Litera ' had been regular and beyond question, and even 
 
 viewing it (as except for the sake of argument it cannot be viewed) apart from the Act on 
 which it proceeded, it would not follow from the terms of the notice in question that it was 
 a regrant or new creation for life only, inasmuch as the words " pro toto tempore vite sue," 
 occurring in the said notice, do often, by Scottish practice, preface grants in fee or subse- 
 quent limitations, and are in this instance accompanied by other words which include (it is 
 conceived) the limitation to " heirs " in the original Patent of 1488, and thus make the 
 ' Litera ' harmonize with the Act, in connection with which it falls to be construed. 
 
 5. As the Act is the sole ground and warrant of the ' Litera,' and the former is not restricted to 
 
 the Duke's life, the latter, if it can be supposed to have contained such restriction, would 
 to that extent be null as disconform to its warrant, and the limitation of the original Patent 
 of the Dukedom, and of the older Earldom, which merged into it, would apply and operate 
 in the new grant. 
 
 6. The ' Litera ' (even admitting its regularity and admissibility as evidence) may thus resolve, 
 
 simply, into a Royal Confirmation, or grant " de novo," which frequently obtained in the 
 
ANALYSIS OF THE AEGUMENT. cxlv 
 
 case of original grants quite valid ah initio. And this is corroborated by the high eulogy 
 passed upon the Duke as a loyal subject, not only to the King's predecessors but to the 
 King himself, in the warrant for the ' Litera,' the Act of the 18th September 1489, the day 
 preceding the ' Litera.'— And, finally, 
 
 7. At any rate, as it is clearly proved, from the previous Act of Parliament, 18th September 
 1489, and the abstract of the ' Litera,' even such as it is, that the latter did not proceed 
 upon any Surrender or Resignation, the original Patent in 1488 cannot be aifected thereby ; 
 and the ' Litera,' even holding it to be a creation for life only, must be viewed as yet 
 another ai'bitrary and oppressive measure against Duke David, in addition to the deprivation 
 of the Sheriffdom, instigated by the rebellious faction, his natural enemies on account of 
 his loyalty— an attempt, however, in this instance, from the above want of a Resignation, as 
 legally futile as unjustifiable. 
 
 The Claimant therefore submits in conclusion, that, having established, as he conceives, the 
 preceding main heads of his argument, namely, 
 
 I. That the Patent of the Dukedom of Montrose, 18th May 1488, still subsists and is valid 
 and effectual in law,— - 
 
 II. That the limitation in that Patent to " heirs " — a term of confessed flexibility in Scottish law 
 and practice, especially in the fifteenth and sixteenth centuries— does in the said Patent 
 denote and signify heirs male, — And, 
 
 III. That he, the Claimant, is the heir male of the first grantee, — 
 
 the honour of the Dukedom of Montrose, conferred by the said Patent, 18th May 1488, on David Duke 
 of Montrose and his heirs, ought to be adjudged to him. 
 
 Concluding Observation. 
 
 The Claimant would here refer to the Appendix, pp. 561 sqq., infra, for a statement of the ' Case of the Barony of 
 ' Spynie,' created in 1590, as furnishing a singular and remarkable parallel to that of the Dukedom of Montrose, and 
 illustrating the Claimant's argument throughout, both as regards the nullity of the Act Rescissory and the limitation 
 of the Montrose patent. 
 
 The Claimant only discovered this remarkable case at the very last moment ; but, although printed in the form 
 of ' Leaves to be substituted for pp. 217-222 inclusive in the Addenda to the Supplemental Case,' it was considered 
 unnecessary to present or adduce it, in addition to the mass of argument and precedent abeady before the Committee, 
 and on which the Duke of Montrose had already animadverted. The Claimant conceived himself, in fact, quite inde- 
 pendent of any further evidence. Now, however, he thmks it may be expedient, for the interests of truth, to place it 
 before the world ; and he has therefore reprinted the pages in question (with slight modification) in the Appendix to 
 
 this volume. 
 
 The following parallel between the Spynie and Montrose cases, af&xed as 'Contents' to the supplementary 
 'Leaves ' in question, may sufficiently illustrate their singular resemblance and relative bearings :— 
 
 " Barmy of Spynie. " I>ukedom of Montrose. 
 
 Lawfullv eranted by patent 6th May 1.590, to the patentee " et Lawfully granted by patent 18th May 1488, to the patentee 
 
 " heredibus suis " " «' heredibus suis. 
 
 Practicallv cnioved and legally recognised in 1590, 1591, and Practically enjoyed and legally recognised in face of the Act 
 
 1592, in the face of a hostile Act of Parliament 29th July Rescissory 17th October 1488-which was thus quite inopera- 
 
 158 7!- which was thus quite inoperative against it. tive against it. 
 Specially excepted from the operation of that Act by a later Act 
 
 of Parliament in 1592— rendering the grant per se vahd and 
 
 sufficient. __ . . f f 't A 
 
 ?ltTan1eTi"i°o't'Act of James VI. with advice of YeT'Sd^rZ^ by^Act of James IV. with advice of 
 
 ParUament and Royal Charter in 1592 and 1593, necessarily Parbanient and Royal Charter in 1489, necessarily on the 
 
 on the principle aocumulandi jura juribus, such regrant being principle aocumulami2 jura jurtbus, such regrant bemg otherwise 
 
 ClSmTd^'in m5 bJ'X' heir fenrnle, but disallowed to him by NoTdaimeV by the heir mafe-founding on the resjudicat<, in 
 
 the House ofLords, on the consideration (m<6raKa) that 'heirs' the Spynie and Glencairn claims as well ason Scottish law 
 
 in the patent implied heirs male, the famUy estates being and practice m similar cases, and moreover on the internal 
 
 destined to heirs mate— in conformity with ancient Scottish evidence of the patent, &c. &c. 
 law and practice, and with the Glencairn decision in 1 797." 
 
 =^x^ 
 
 u 
 
SPEECHES OF COUNSEL, 
 
 THE LORD CHANCELLOR AND LORD ST. LEONARDS 
 
 IN MOVING THE RESOLUTION, 
 
 UPON THE CLAIM OF 
 
 JAMES EARL OF CRAWFORD AND BALCARRES 
 
 TO 
 
 CREATED IN 1488. 
 
In tf)t ^ou^t of WLoxM. 
 
 (IN THE LOEDS' COMMITTEES EOE PEIVILEGES.) 
 
 IN THE MATTER of the Claim of James Earl of Crawford and Bal- 
 CARRES to the Original Dukedom of Montrose, created in 1488. 
 
 SPEECHES OF COIJI^SEL, &c. 
 
 COPY FROM ME. GUENEY'S SHOETHAND NOTES. 
 
 MONDAY, mhJULY. 1S53. 
 The Lord Eedesdale in the Chair. 
 
 Sir FitzRoy Kelly. — My Lords, the Claimant for whom I have the honour to 
 appear is James, Earl of Crawford and Balcarres, and Baron, Lindsay, in the Peerage of 
 Scotland, and sitting in this House as a Peer of Parliament by the title of Baron 
 Wigan, of Haigh Hall, in the county of Lancaster. 
 
 My Lords, this nobleman has lately succeeded in establishing before a Committee 
 of your Lordships' House his claim to the first of these dignities, that of Earl of 
 Crawford and Premier Earl of Scotland : he now, through me, has to solicit your 
 Lordships' favourable Report upon this, his claim to the highest dignity which the 
 Sovereign can confer upon a subject — to be declared Duke of Montrose and Premier 
 Peer of Scotland. 
 
 Lord Chancellor. — You appear for the Crown, I presume, Mr. Attorney 
 General ? 
 
 Mr. Attorney General. — Yes, my Lord. 
 
 Lord Chancellor. — And the Lord Advocate also ? 
 
 Mr. Attorney General. — Yes, my Lord. 
 
 Lord Chancellor {To the Lord Advocate).— Do you take any active part, or in 
 what way do you appear ? 
 
 Lord Advocate. — I presume that we shall wait and hear what course is pursued 
 on the part of the Claimant : we are quite ready to take an active part, if that should 
 appear to be necessary. 
 
 Chairman. — Does anybody appear for the present Duke of Montrose ? 
 
 Mr. Bolt.— There is a Petition also before your Lordships from his Grace the 
 Duke of Montrose. 
 
 Chairman. — Do you appear for the Duke of Montrose ? 
 
 Mr. Bolt.— I have the honour to attend your Lordships for the Duke of 
 Montrose. 
 
 Chairman.~Has there been any order of the House upon that Petition? 
 
 3fr. Bolt.— What was done was this : There was a Petition presented for liberty 
 to his Grace to appear and be heard on the matter, and an order was made upon that 
 
 * B 
 
( 4 ) 
 
 Petition that he should be at liberty to lodge a Case. That has been done. No further 
 order has been made upon it, and the Petition of the Duke of Montrose is now before 
 your Lordships, together with the Petition of the Claimant. But at the present 
 moment I think there is no discussion necessary upon it. If your Lordships should 
 think, in the course of the Case, that it should be lawful that I should be heard, 
 either to examine or cross-exariine witnesses or address the House, your Lordships 
 will deal with the Case as the ner essity of the occasion may require ; but it will not be 
 necessary at this moment to dispose of that question. 
 
 Lord Lyndhurst. — We had better hear the opening first. We shall be better 
 able to judge after we have heard the opening. 
 
 Sir FitzRoy Kelly. — This matter, of course, is altogether in your Lordships' 
 hands ; but after what has this moment passed, I ought perhaps to remind your Lord- 
 ships that upon a distinct application made on behalf of the present Duke of Montrose, 
 the Committee of Privileges was pleased to refuse that application for permission to the 
 Duke to appear as a party opposing this claim. 
 
 Mr. Attorney General. — That was only temporary and provisional. Lord 
 Brougham says, " By this form we do not preclude the possibility of your ever being 
 " heard afterwards, when we shall see the Case ; therefore that course of proceeding has 
 " the benefit of leaving it open." 
 
 Sir FitzRoy Kelly. — Entirely so. I was about to add that when my learned 
 Friend interposed. 
 
 Lord Chancellor. — I think we had better hear what the Case is. 
 
 Sir FitzRoy Kelly. — Precisely so, my Lord : I only noticed what fell from my 
 learned Friend on behalf of the Duke of Montrose, for the purpose of apprising your 
 Lordships exactly how the case stands. It is, of course, quite open to your Lordships 
 to deal with the claim of any nobleman or gentleman to appear against this Claim, 
 whenever an application shall be made to your Lordships. 
 
 Now, in presenting myself before your Lordships on behalf of the Earl of 
 Crawford, in support of this Claim, I feel that it would not become me to detain 
 your Lordships, even for a moment, with any eulogium on the distinguished family of 
 which the head, and chief Representative, is now a Suitor at your Lordships' Bar ; or 
 I might well venture to speak in terms of commendation of a race of men distinguished 
 in their country's annals for loyalty and patriotism — ever brave and gallant in the 
 field, wise in council, eminent in literature. But, my Lords, I am well content to rest 
 this Case upon its strict legal merits ; and inasmuch as I shall have to entreat your 
 Lordships' patient attention to a great variety of minute and complicated details, not 
 indeed originally arising upon this Case, or involved in it, as it was first presented to 
 your Lordships, but which have been brought into existence in consequence of a very 
 elaborate Paper which, under your Lordships' sanction, has been printed and submitted 
 to this House, or to this Committee, by his Grace the present Duke of Montrose, and as 
 it is impossible, seeing that this Paper, and again a Reply to it, and a Supplemental 
 Paper, and other Documents, involving almost every variety of argument and detail 
 which can belong to such a Case, have, under your Lordships' authority, been presented 
 to this House, I can scarcely perform my duty (though I do sincerely assure your 
 Lordships I will compress within the narrowest practicable compass the observations 
 which I have to make) without in some measure endeavouring to direct your Lordships' 
 attention to the considerations which arise upon this vast mass of documents thus 
 submitted to this Committee, and meeting, but only as far as is absolutely necessary to 
 the fair and unreserved statement of the Case, any arguments which may arise upon 
 these several Documents. 
 
( 6 ) 
 
 I will, therefore, proceed at once to put your Lordships in possession, to the best 
 of my ability, of the merits and of the nature of the Case which I have to submit to 
 your Lordships on behalf of the Earl of Crawford. My Lords, an ancestor of the 
 present Earl, Sir David de Lindsay, was ennobled by King Robert III. of Scotland, 
 by the title or dignity of Earl of Crawford, on the 21st April, 1398. The Patent is not 
 in existence ; but inasmuch as the claim to that digni-iy has recently been under the 
 consideration of a Committee of your Lordships' H» utie, we are in possession of all 
 the Facts and of all the Documents bearing upon the xight to and the enjoyment of 
 that Dignity ; and I may, therefore, briefly and at once state to your Lordships, that 
 under the decision of a Committee of this House, that Dignity must be taken to have 
 been conferred upon David the first Earl, with remainder to his heirs male ; and it is 
 an important consideration which your Lordships will be good enough to bear in mind 
 throughout the investigation of this Case, that the vast possessions which have from 
 time to time accompanied this Dignity in the Earls of Crawford throughout many 
 generations, have always been limited in like manner to the heirs male of those upon 
 whom they were first conferred. 
 
 My Lords, the Dignity being thus created in 1398, the first Earl, David, was 
 succeeded by the second Earl, Alexander; he by the third, David; he again by the 
 fourth, Alexander ; and David, the fifth Earl of Crawford, who was afterwards created 
 Duke of Montrose, succeeded to the Earldom in the year 1453. 
 
 My Lords, this David, the fifth Earl, was perhaps the most powerful of the 
 Nobles of Scotland at that day. He was always loyally and faithfully attached to 
 his King, especially in his latter days, to King James IH., in the course of whose reign, 
 as your Lordships are well aware, great troubles occurred, which at last desolated the 
 Kingdom of Scotland with a Civil War. Towards the close of the reign of James III., 
 during the last few years of his reign, various Nobles, the Earl of Angus and others, 
 in the Kingdom of Scotland, opposed the measures of the King ; they caballed and 
 conspired together to interfere with the exercise of his prerogative, and at last, after 
 plunging the nation in Civil War, they contrived by force and violence to seize and 
 possess themselves of the person of the young Duke of Rothsay, the Heir to the Throne, 
 and carried him away to the Castle of Stirling. Very shortly afterwards, these Nobles 
 using the name of the young Prince of whose person they had thus possessed themselves, 
 broke out into open rebellion. They raised an army, and proceeded at once to attack 
 the Sovereign on the Throne; and ultimately he was under the necessity, for the 
 defence of his Crovra, and of his Life, of rallying round him such of his adherents as 
 could be prevailed upon to defend him in that extremity. 
 
 My Lords, amongst, as I have said before, the most powerful of the nobles of 
 that time, amongst the most faithful and loyal Subjects of King James III., was 
 this David, fifth Earl of Crawford, afterwards created Duke of Montrose. He was at 
 that time, probably, the richest subject in Scotland ; he was possessed of thirty great 
 Baronies or Lordships ; he filled various high offices ; he was hereditary Sheriff" of 
 the County of Forfar; he was Master of the Household and Great Chamberlain to 
 King James III. : and when the King was assailed by the rebellious Nobles in the way 
 that I have stated, the Earl of Crawford hastened to his assistance and relief with an 
 army consisting of his own clansmen and adherents of no less than eight thousand 
 men : he had two thousand horse and six thousand foot under his command, whom he 
 brought to the defence and relief of his Sovereign. 
 
 Your Lordships are aware that early in the year 1488 these hostile parties— I 
 may say these hostile armies— first met at the Battle of Blackness ; there it is sup- 
 posed that King James II. had the advantage, and that the Rebel army was defeated. 
 
 B2 
 
( 6 ) 
 
 It was not long after that time, on the 18th of May in the year 1488, King James III., 
 then undoubtedly King of Scotland with all the powers of the Sovereign, conferred upon 
 this his attached adherent and subject, the title of Duke of Montrose, to him and his 
 heirs male by a Charter or Patent, of which due legal proof will hereafter be exhibited 
 before your Lordships. 
 
 My Lords, a few days only after this event, after the grant of the Title of Duke 
 of Montrose to the Earl of Crawford, the Rebel armies of the Nobles again assailed 
 their Sovereign. They met near Stirling — the Battle of Stirling was fought on the 1 1th 
 of June, 1488, and terminated in the entire defeat of King James III. and the dispersion 
 of his adherents, the King himself escaping from the field of battle; but, his horse 
 afterwards falling with him, he met his death and expired at an obscure inn by the 
 road side at no great distance from the field of battle and from Stirling. He died on, 
 or shortly after, the 11th of June, 1488. I have stated to your Lordships that his army 
 and party were entirely dispersed and annihilated. James IV. succeeded to his Father 
 King James III., and those Nobles who had aided him, or rather who had used him 
 as their instrument in their opposition to his Father, of course gained the ascendant, 
 and they from that time forth, for a very long period of time, entirely ruled the King- 
 dom of Scotland ; and hence the next event in the Case to which I shall have to call 
 your Lordships' attention, and upon which one of the two great points in the Case arises 
 and depends. 
 
 My Lords, on the 17th of October, 1488, a Parliament having been assembled, 
 whether with the immediate presence of the King or not does not distinctly appear; but 
 a Parliament, or an assembly of high personages who assumed to themselves the powers 
 of a parliament, having assembled together in this month of October, 1488, on that 
 day, the I7th of October, 1488, an Act or Ordinance was passed which, it is contended, 
 had the legal effect of at oncC; and by force of the mere passing of the Act, destroying 
 and annulling the dignity of the Dukedom of Montrose which had been granted, as I 
 have stated to your Lordships, to the fifth Earl of Crawford on the 18th of May next 
 preceding in that same year. Other events took place to which I shall have hereafter 
 to call your Lordships' attention. But pursuing the course to which I feel that I am 
 pledged before your Lordships, of avoiding all reference either to arguments or to cir- 
 cumstances not directly bearing upon the legal questions which your Lordships are 
 called upon to decide, I will at once state that two questions arise ; upon which two 
 questions (though involving undoubtedly some minute and complicated matter of detail 
 which cannot be altogether excluded from the Case), and upon which two questions 
 alone, must depend your Lordships' Report to the Crown upon this reference as to the 
 Dignity of the Dukedom of Montrose. 
 
 My Lords, the first question is, whether that Act of Parliament, which has been 
 called, and which for brevitysake I will also call the Act Rescissory, had the legal effect 
 of annulling and destroying the Dignity of Duke of Montrose conferred by the Patent 
 in question in May, 1488. And if that Patent of 1488 be still in force, the remaining 
 question is whether, upon the true construction of the terms of that Patent, the Dignity 
 stands limited in point of law to the heirs male of the Grantee, the fifth Earl of 
 Crawford. 
 
 Upon these two questions I will now proceed to address your Lordships. And 
 I may state, and I hope I do so without undue confidence in the Case which is entrusted 
 to me, that upon both I hope to satisfy your Lordships that upon the true principles of 
 the Law of Scotland, and of the Law of England, as applied to the Instruments and the 
 Acts under consideration, the Act of Parliament in question (even if it can properly and 
 legally be deemed an Act of Parliament) had no operation whatever upon the grant of 
 
( ? ) 
 
 dignity in question, but left that grant entirely unimpeached and unaffected, and that 
 such and so it remains to the present day. I trust I shall be able to satisfy your Lord- 
 ships that this construction of the Act Rescissory rests not only upon reason and justice, 
 as well as upon strict legal rules of construction, but that it is supported by the clearest 
 and the highest authorities, both in the law of Scotland and in the law of England ; 
 that this very question, upon which I am now about to address your Lordships, has been 
 brought, in due course of law, under a competent Tribunal, the Tribunal of the last 
 resort for the decision of such questions, and has been by that Tribunal, after elaborate 
 and lengthened arguments by the first and greatest Counsel of that time, or perhaps of 
 any time, decided in favour of the view which I now have to submit to this Committee. 
 I shall likewise, my Lords, upon the second question, as to the meaning and legal effect 
 of the limitation in this Patent of 1488, bring under your Lordships' attention the very 
 highest authorities, which I trust will remove all doubt, if doubt exists, from the minds 
 of your Lordships, that the true construction of that Patent is to vest the remainder in 
 ,the dignity in question in the heirs male of the Grantee. 
 
 My Lords, those being the propositions to which I have to call your Lordships' 
 attention, I now proceed at once to refer to what is called the Act Rescissory itself, upon 
 the construction of which, before I refer to any authorities, I have some observations 
 which I shall ask leave to submit to your Lordships. Perhaps at this moment it may be 
 convenient for me to hand into the Committee a print which has recently been made of 
 some five or six of the principal Documents in the Case, which will save your Lordships 
 the trouble of turning over and over again the great number of pages in the volumes 
 before your Lordships. 
 
 ( Copies of the same were handed in to the Committee.) 
 Lord Chancellor. — I understand you to say that these are already printed. 
 Sir FitzRoy Kelly. — They are printed and dispersed over various parts of these 
 many volumes, and it will be more convenient to your Lordships to refer to them in this 
 form. It is at page 3 of this print, which I have now handed to your Lordships, that 
 we find what is called the Act Rescissory, of the 17th October, 1488. It is in these 
 terms. There is a sort of translation into plain English on. the other side of this, as well 
 as of the other documents in this Case : " Item, anent the Proclamation made at Scone" — 
 I may state here at once that we have not been able to arrive at any satisfactory trace of 
 what this Proclamation was^ — " It is statute and ordained that all alienations of lands, 
 " heritage, long leases, feu-firms, ofiices, tailzies, blench-firms, creation of new dignities, 
 " granted or given to any person or persons, what estate, condition, or degree that ever 
 ''they be of, since the second day of February last by past, by late our Sovereign Lord's 
 " Father, whom God assoil !' which might be prejudicial to our Sovereign Lord and to 
 " the Crown that now is, be cassed and annulled, and of none effect nor force in any 
 " time to come, because that such alienations, gifts, and privileges were granted since 
 " the said time for the assistance to the perverse council that were contrary (to) the 
 " common good of the realm, and the cause of the slaughter of our Sovereign Lord's 
 
 '' Father." 
 
 Now, my Lords, there are some grounds, upon which I shall scarcely detain your 
 Lordships for a moment, upon which it may be well doubted whether this ever had the 
 legal force of an Act of Parliament. The Act in question was done at the time when 
 the nation was convulsed with troubles by the predominant faction, and whether it was 
 done with the actual assent of the Sovereign may well be doubted. I shall hereafter 
 liave occasion to lay before your Lordships the actual Records of the proceedings and 
 acts of the various Parliaments held for some time before and for some time after this 
 month -of October, 1488, from which, I believe, it will appear that whereas they 
 
( 8 ) 
 
 invariably either begin with some reference to the person of the Sovereign as present in 
 Parliament, or introduce the name of the Sovereign in like manner as is done in our 
 Enghsh Acts of Parliament, as assenting and being a party to the passing of the Act ; 
 no such name and no such form appears in the Act in question. In its terms, and upon 
 the face of the Document, it purports to be an Act of Parliament, but there is no 
 reference, at least there is no distinct reference by name, to the person of the King. I 
 may here just make this single, but general observation, with regard to any Act of 
 Parliament of this character, though, perhaps, I ought not to speak of Acts of this 
 description, because I believe that this one Act, and another, not unlike it, passed in the 
 year 1399 in this country, to which I shall have hereafter to call your Lordships' 
 attention, are the only instances in which the Legislature of either country has ever 
 pretended, either directly or indirectly, in terms or otherwise, to strike at the creation of 
 a dignity by a general provision of this nature. This and the other English Act, to 
 which I shall hereafter allude, are the sole examples, in the history of the two countries, 
 of any such Acts of Parliament. 
 
 Lord Chancellor. — It is printed among the Acts of Parliament ? 
 
 Lord St. Leonards.- — It is printed in the 2nd volume of the Scotch Acts. 
 
 Sir Fit z Boy Kelly. — I shall hereafter bring the Acts as printed under the 
 authority of Parliament before your Lordships. It would only unnecessarily detain the 
 Committee were I to refer to them particularly at the present moment. This, and the 
 other Act, to which I shall refer, appear in the Statute Book, and will be regularly 
 brought under your Lordships' attention. We may observe, however, with regard to 
 these Acts which were passed by the predominant faction of the day, in troubled times, 
 that even where there are enactments of a distinct character, they appear in general 
 either to have been very shortly afterwards repealed, or to have been only carried into 
 effect by subsequent proceedings and distinct processes in Courts of Law, or to have been 
 altogether disregarded and forgotten, and so fallen into desuetude. Your Lordships are 
 aware that by the Law of Scotland, perhaps in that respect differing from the Law of 
 England, it appears by the highest authorities that Acts which have been enacted and 
 passed may fall into desuetude, and cease to possess any force whatever, without ever 
 being expressly repealed by the Legislature. 
 
 But, my Lords, for the purposes of this Case, I am content, whatever suspicion may 
 attach to it, to deal with this as an Act of Parliament, and having all the force of an Act 
 of Parliament, and to be considered by any Court of Law and by this Committee upon all 
 those rules of construction which prevail as applicable to Acts of Parliament in judicial 
 proceedings. And, my Lords, the first question that arises upon the very terms of this 
 Act of Parliament is, whether its true construction is, or can be, to destroy the dignity in 
 question. Now, first, I need hardly urge that it is an Act of Parliament, if it has any 
 force at all, of a highly penal character. It is an Act which works a forfeiture of dignities 
 and lands. It is an Act also which, if it have any effect at all, must work or tend to 
 work a forfeiture of lands and dignities without any process of trial — therefore without 
 conviction ; perhaps also, and I may say certainly in the case now before your Lordships, 
 without any crime or offence committed by him who is subjected to the forfeiture. It is, 
 therefore, upon every principle of construction as applied to Acts of Parliament by the 
 Law of England or the Law of Scotland, to be strictly, rigidly, and severely construed, to 
 be construed against forfeiture and not in favour of forfeiture, and to be construed also in 
 favour of justice and not against justice. And your Lordships will find, when I come to 
 refer to the particular language of this Act of Parliament, that to put the construction 
 upon it contended for, or which must be contended for, on the part of the Crown, is to 
 cause these Acts of Parliament to operate in a manner so strikingly and palpably 
 
( 9 ) 
 
 iniquitous and unjust, that nothing but strict irresistible legal necessity can lead to or 
 warrant such a construction ; and if I am able to satisfy your Lordships that upon every 
 true principle of construction, applying the well-known principle that words are to be read 
 according to their ordinary and natural meaning and signification where they do not lead 
 to some practical absurdity or to some great injustice— if, applying all those principles 
 of construction which by law are applicable to Acts of Parliament, I can satisfy your 
 Lordships that upon the application of those principles the construction contended for 
 would be one in favour of truth and in favour of justice, whereas that to construe the Act 
 of Parliament as must be contended for by the Crown would be to construe it to the 
 subversion of truth and to the destruction of justice— I think your Lordships will not 
 pause or hesitate, but will decide it so as to make it work according to truth and justice. 
 
 Now, my Lords, let us look at the words themselves, and see what the question 
 is which arises upon them. The words are that all the alienations of lands and various 
 other matters which are mentioned, and the creation of new dignities granted or given 
 and so forth, " which might be prejudicial to our Sovereign Lord and to the Crown that 
 " now is." Now, my Lords, I pause here for a moment upon the first question that 
 arises. Your Lordships will have observed that here no dignity is named, no person is 
 expressly pointed out. To put a reasonable interpretation upon these words, we must 
 consider the time and the circumstances attending the passing of this Act. The Act 
 was passed in October, 1488. The King had died in the previous month of June in 
 that year. It could not be known to those who framed this Act — it could not be known 
 to the King, supposing him to have been a party to it — what acts might have been done 
 what grants either of land or of the numerous other subjects which are enumerated in 
 this Act of Parliament had been granted or alienated, or what dignities had been con- 
 ferred by King James III. during the latter part of his reign, the period embraced by 
 this Act of Parliament. It seems clear, therefore, at the very outset, that the Act of 
 Parliament does not directly operate to extinguish any given dignity, or to annul any 
 given or particular grant ; but by annulling or providing rather for the nullity of all acts 
 of a particular description, the attention of any Court of Law which might have to put a 
 construction upon this Act of Parliament is at once invited to the question. Does the 
 dignity now under consideration come within the words of this Act of Parliament ? And 
 the first question which arises is a question of fact. Did the grant of the Dignity in 
 question prejudice or " might it be prejudicial " (for those are the words of the Act) 
 " to our Sovereign Lord that now is ? " 
 
 Now I must here remind your Lordships that with one exception, to which I 
 need not now again allude — but I will allude to it more particularly hereafter — this is, 
 in the whole legislative history of Scotland and of England, the sole instance in which 
 it has ever been contended that a Title or Dignity lawfully and duly granted by the 
 Crown has ever been taken away or destroyed by general words. The well-known 
 process of the law in both countries is a Bill or Act of Attainder, expressly striking at 
 the Dignity in question by name, attainting the holder of the Dignity, and by the force 
 of an Act of Parliament in express terms and by name putting an end to the Dignity. 
 Here, however, the language of the Act is general, and it necessarily forces upon your 
 Lordships the question I have suggested. If indeed they had said, the Dignity of the 
 Duke of Montrose is to cease to exist, the grant of the Patent in the month of May last 
 shall be declared and shall hereby become void, pointing to the Patent and to the Dignity 
 by name, then of course the case would have been different. But here, all that the 
 Legislature of Scotland has done is, without naming any particular land or any par- 
 ticular Dignity, or any particular grantee, to enact that all grants which might be 
 prejudicial to the " now " King shall be quashed and annulled. 
 
( 10 ) 
 
 Lord Brougham. — Were there any other Dignities granted since the preceding 
 February ? 
 
 Sir FitzRoy Kelly. — As far as history informs us, there was but one. The other 
 Dignity, the history of which will constitute a very prominent point in this Case, was 
 the Earldom of Glencairn. The Earldom of Glencairn and the Dukedom of Montrose 
 were the only two Dignities that we know of as having been granted since February, 
 1487 (which meant 1488, applying the Old Style). Here, then, is the first question 
 which arises for your Lordships' consideration, and I ask with perfect confidence in this 
 Case, either in an English or a Scotch Court of Justice, Will your Lordships, loyal 
 subjects of Queen Victoria, hold judicially here that a grant of a Dignity by a King to a 
 subject, in reward of loyal, faithful, and lawful services, is prejudicial to the King's Son 
 and Successor upon the Throne ? For that, my Lords, is at the very outset of this Case 
 a question which your Lordships have judicially to decide. Be it an Act of Parliament 
 which has passed but yesterday, or be it, as it is, an Act of Parliament which passed four 
 centuries ago, your Lordships have nothing within the compass of the Act pointing to 
 the Dukedom of Montrose, or to any particular Dignity or any particular individual. 
 But here is an Act of Parliament which calls upon your Lordships now to determine 
 whether the grant of this Dignity by James IIL was in law or was in fact (for it seems 
 to be more a question of fact than of law) prejudicial to King James IV., his Son and 
 Successor upon the Throne. 
 
 Now, my Lords, upon what principle of law — I shall call upon my learned friends 
 the Attorney-General and the Lord Advocate distinctly to specify to your Lordships, 
 upon what principle of law a Court of Justice can hold that a grant by a King upon the 
 Throne, in the exercise of his Prerogative, to an undoubtedly loyal and faithful subject 
 as a reward for services performed by that subject to his lawful Sovereign, can, as matter 
 of law or as matter of fact, in the construction of an Act of Parliament, be held to be 
 prejudicial to his Son and Successor. 
 
 My Lords, that is the first question which your Lordships have to determine. 
 What follows ? " Which might be prejudicial to our Sovereign Lord and to the Crown 
 " that now is, be cassed and annulled and of none effect nor force in any time to come, 
 " because that such alienations, gifts, and privileges were granted, since the said time, 
 " for the assistance to the perverse Council that were contrary to the common good of 
 " the Realm, and the cause of the slaughter of our Sovereign Lord's Father." 
 
 Now, my Lords, as I have said, this Act, which is working a forfeiture, and 
 above all, which is working a forfeiture upon innocent men, and not only innocent, but 
 loyal and faithful subjects of the Crown, this Act must be construed most strictly. 
 Your Lordships must see whether the grant in question comes within all the explanatory 
 words which are to be found within the compass of the Act of Parliament, and I must 
 then venture to ask your Lordships this further question : Will you hold that the grant 
 of this Dignity, which I pray your Lordships to remember was granted by the King 
 upon the Throne to a loyal and faithful subject, is to be said to be " for assistance to the 
 " perverse Council, contrary to the common good of the Realm ?" Certainly if to fight, 
 if perhaps to die in the defence of the King upon the Throne in the field of battle, if 
 that be, in the latter words of this Act of Parliament, the cause of the slaughter of the 
 King, if to fight in his defence is to be the cause of his murder, then your Lordships 
 may indeed hold this grant to come within these latter words. If again, for this was 
 all that the Duke of Montrose, the Grantee of this Patent, did in relation to the 
 Sovereign of the Realm, if to aid the Sovereign in opposing Rebels and Traitors who 
 desolated the Kingdom with Civil War — if that be contrary to the common good of 
 the Realm, then your Lordships may hold that the Grant was for assistance to the 
 
( n ) 
 
 " perverse Council, contrary to the common good of the Realm." But, my Lords, it 
 is impossible that such a construction can be put upon this Act of Parliament. The 
 question is not what, if your Lordships look to the history of the times and the motives 
 and feelings and objects of those w^ho may have constituted this Parliament, you may 
 in your own minds believe that they really intended— that is not the question any more 
 than of the present day — the question is what the actual framers of a Clause in any Act 
 of Parliament actually intended which is passed by the Legislature which they have 
 used. That is not the mode by which a Court of Law construes Acts of Parliament. 
 It must be done by applying the legal rules of construction to the interpretation of the 
 words which are actually used, and only when they are ambiguous, looking to the 
 circumstances of the case to aid you in their construction. Here your Lordships find 
 no ambiguity and no difficulty. We cannot look into the feelings and thoughts of the 
 individuals who in those troubled times may have framed this Act of Parliament. We 
 must look at the words that they have used, and if we have before us an Act by which 
 they may have intended to gratify their own rapacity, by enabling them to seize the 
 possessions of a rival Noble, or to gratify their revenge by depriving him of his dignities 
 or his property, the question is not what they may really and in fact have intended, 
 but what is the language of the Act of Parliament, and how is it to be construed 
 according to the ordinary legal rules of interpretation ? Your Lordships, therefore, have 
 to consider that you are now sitting as a Court, as a Commission of Enquiry upon the 
 question of fact, what dignities, what lands, what grants, shall come within the language 
 of this Act of Parliament ; and your Lordships are now called upon to determine whether 
 this grant, made by King James III., then in free possession of the Crown, and of all 
 the rights of the Crown, and in the exercise of his prerogative, to this Earl of Crawford, 
 an honest, faithful, and devoted subject and servant of the Crown, can be judicially 
 held by your Lordships to have been a grant which might be prejudicial to King 
 James IV. 
 
 My Lords, if it were so, and if we can conceive of any thing so strange as that 
 an Act of Parliament framed like this, should pass in our own times, I know not why 
 every grant of every Dignity that was made by the late King William IV. might not be 
 equally held to be prejudicial to Queen Victoria. The question, therefore, is not what 
 those persons who passed this Act may actually have intended, but what your Lordships, 
 sitting here as a Court of Law, can judicially hold to be the fair, natural, ordinary, 
 and true legal meaning of these words which the Legislature has used. That is the 
 question for your Lordships' consideration. And I submit, that upon that question it is 
 impossible but that your Lordships must hold that this fair and lawful exercise of the 
 Prerogative, by the grant of the Dignity in question, was a lawful act, a just act, a 
 righteous act, and that it cannot by construction of law be held to be an act prejudicial 
 to the Successors of the Sovereign ; that it cannot be held to be an act for the 
 " assistance of perverse council," or " contrary to the common good of the Realm," or 
 " the cause of the slaughter of King James III." In truth, it involves a contradiction 
 upon which I should be ashamed longer to occupy your Lordships' time, to hold that a 
 man who fights and bleeds upon the field of battle in defence of his Sovereign is 
 nevertheless the cause of his slaughter. To hold that he who fights to defend his 
 Sovereign nevertheless slaughters and murders him, does appear to be a proposition 
 which one can hardly trust one's self to deal with, consistently with the respect which 
 I feel that I owe to your Lordships upon this argument. I therefore beseech your 
 Lordships to bear in recollection that this is not as it ought to have been, if it had 
 meant to strike at this Dignity ; this is not an Act of Attainder which, if it had passed, 
 whether just or unjust, must have been obeyed; but this is an Act of Parliament, by 
 
 C 
 
( 13 ) 
 
 which grants of a certain description, and grants of that description only, can be con- 
 tended to be annulled ; and the question for your Lordships' consideration is, whether 
 the grant of the Dignity in question can be legally and judicially held to come within 
 that description. There again in determining upon the general construction of the 
 Act of Parliament, I cannot but submit to your Lordships, that if you hold that the 
 grant of this Dignity by King James III. to a faithful and loyal subject, was not and 
 cannot be deemed to be prejudicial to his Son, you put a construction upon this Act of 
 Parliament which is consistent with truth and with justice. If the contrary construction 
 be put upon this Act of Parliament, if your Lordships hold, as you must hold to give 
 that effect to it which is contended for, that the grant of this Dignity by James III. 
 was Qv might be prejudicial to King James IV., your Lordships, as I humbly think 
 and submit to this Committee, do put a construction upon the Act of Parliament con- 
 trary to tfuth, and, in point of fact, contrary to justice, as regards the Grantee under 
 this Patent. 
 
 Upon the ground then, my Lords, that this general Act of Parliament cannot 
 apply to the Dignity in question, because the Dignity in question cannot judicially be 
 declared by your Lordships to have been prejudicial to King James IV., and because 
 the other words of the Act are altogether inapplicable to the grant in question, I submit 
 to your Lordships, irrespectively of all authorities, that the true construction of this Act 
 does not affect this Dignity. 
 
 My Lords, I have only one other observation to make before I proceed to the 
 authorities which I wish to bring under your Lordships' attention, and it is this : We 
 are all familiar with the Constitutional mode by which Dignities granted to the Crown 
 both in England and in Scotland are put an end to and annulled. It can only be 
 done, it is only to be found in history, by means of Acts of Attainder. Whether they 
 be just or unjust (and no doubt instances may be found in the history of both countries, 
 in which unjust Acts of Attainder have been passed), at least that proceeding itself 
 affords to the party to be affected by it the opportunity of exercising that most sacred 
 right, uniformly and in all cases admitted and recognized by the Law and Constitution 
 of this country, that the accused shall be heard in his defence — that he shall be tried 
 before he is cortdemned. In the case of a Bill of Attainder, as upon an Indictment for 
 High Treason, the party to be affected by the Bill may appear, may disprove the 
 allegations made against him, and he has an opportunity of being heard ; and it can 
 only be after a Trial, and we must presume a fair Trial, that he can be condemned. 
 Whereas, if your Lordships are to put this unheard of construction upon this Act of 
 Parliament, the effect Avould be that these two Noblemen to whom I have alluded (and 
 it might have been as many scores) would be deprived of their Dignities, and would be 
 condemned as Traitors, just as if this Act were an Act of Attainder, without ever having 
 been heard in their defence, without any Trial at all. This is another of the many 
 consequences which result from the construction of this Act of Parliament, which must 
 be contended for on the part of those who oppose this Claim. 
 
 Lord Brougham. ^Oi course what you mean is, that in the contemplation of the 
 Law they may be heard. You do not mean to say, that in this Country, in the time of 
 Edward IV., or of Henry VI., or of Richard III., that in those days of wholesale attain- 
 der, when people were attainted by the score, they were all heard. 
 
 Sir FitzRoy Kelly.—'No, my Lord. But what I do say is this, that it has only 
 been in times of violence and of injustice that they have not been lieard, and that by the 
 theory of our Constitution they must be presumed to have been heard. Many could not 
 have been heard because they were dead ; they had fallen in the field, or had been 
 executed on the scaffold. 
 
( 13 ) 
 
 Lord Brougham. — And many would not be heard for this reason, that if they 
 had come forward and claimed to be heard, they would very soon have been put into a 
 condition not to be heard. 
 
 Sir FitzRoy Kelly. — No doubt, that again is another reason, that when people 
 were in dread for the safety of their persons, they did not come forward to be heard. 
 But what I say is this : that whenever there is a Bill of Attainder, the party sought 
 to be attainted is to be heard. Such is the theory of our Constitution from the beginning. 
 Whereas to put the construction contended for upon this Act of Parliament would be to 
 make it condemn persons as traitors, whom we know to have been faithful and true 
 subjects to their King, and condemn them, untried and unheard, without the opportunity 
 or possibility of their being heard. And your Lordships will find (for I will detain the 
 Committee no longer by these general observations upon the construction of this Act 
 of Parliament) that in the only instance in which, from the existence of such an Act of 
 Parliament, it has been possible that its effects should come under judicial consideration, 
 the idea that a Peerage could be destroyed, and that the eflFect of an Attainder could 
 be given without a Bill of Attainder through a general Act of this nature, has been at 
 once rejected by the highest authorities. I will prove this by what took place with 
 respect to a similar Act in this country, and also by a judicial decision by a Court of the 
 highest authority in relation to this very Act — the Act Rescissory, which is now before 
 your Lordships for construction. My Lords, the Case to which I am now about to refer 
 is the Case of the Duke of Norfolk, in the year 1397. The history of that Case and 
 the few documents which it will be necessary for me to refer to are to be found at pages 
 15, 16, and 17 of the Supplemental Case of the Claimant. Your Lordships will find 
 nearly at the top of the page the Preliminary Objection. And then there is a Report 
 of it, which begins with the time of Richard II. of England. 
 
 Now this Case of the Duke of Norfolk has in many of its features a very striking 
 resemblance to the present. Richard II., like James III, of Scotland, towards the close 
 of his unhappy reign was opposed and attacked by rebellious Barons, at the head of 
 whom was he who afterwards became his successor under the title of Henry IV. 
 Amongst the attached and loyal adherents of Richard II. was the Earl Marshal the 
 Lord Mowbray, afterwards created Duke of Norfolk ; and in, I believe, the very last year 
 or almost the last year of his reign, on the 29th of September, 1397, Richard II. created 
 Lord Mowbray Duke of Norfolk. This was done (and it is most material to bear it in 
 recollection) not by a Patent of Creation, nor by Writ, but by a regular formal Act of 
 Parliament. On that day, in the year 1397, a great many Peers, were created and Peers 
 promoted, as in this very case of the Earl of Crawford, to a higher Dignity, and this was 
 done " de assensu prelatorum Ducum Magnatum et aliorum procermn et Communitatis 
 " Regni nostri Anglie in instanti Parliamento nostro apud Westminster convocato 
 " existentium," and so forth. Six Dukes, one Marquis, and four Earls were created, 
 and amongst others was the Duke of Norfolk. Richard II. was in no great length of 
 time afterwards put to death, and he was succeeded by his successful rival Henry IV. 
 In 1399 was passed the Rescissory Act, which discredits the history of England— the 
 only Act resembling this Rescissory of 1488 in Scotland. In that year, 1399, an Act 
 was formally passed by Henry IV- in his first Parliament, by which all the Acts of the 
 last Parliament of the reign of Richard II. were in clear and express terms repealed 
 and annulled. The words, which are given somewhere in the page to which I have 
 referred, are " Qe mesme le parlement ove lauctoritee susdite et touz les circumstances et 
 " dependences"— that is, that the Acts of the Parliament, by the authority aforesaid, and 
 all its circumstances and dependences, shall be altogether reversed, revoked, irrited, 
 quashed, repealed, and annulled for all time to come. 
 
 C2 
 
( 14 ) 
 
 Now, my Lords, it is quite impossible to find in the Statute Book an Act of Parlia- 
 ment more clearly and expressly repealing all the Acts of a prior Parliament, or any Act 
 of a prior Parliament, than this Act of Henry lY. The consequence was, or at least 
 was supposed to be, and afterwards was insisted to be, that this creation of the Dukedom 
 of ATorfolk having been effected by an Act of the last Parliament of Richard II. had 
 become void, and that the Dukedom and Dignity had been annulled. In relation to that 
 family as to this family of Crawford, many years elapsed during which the successors 
 of the Duke in the Dignity abstained from assuming or attempting to assume the title. 
 The Eldest Son of the Duke of Norfolk, who had become Duke by his Father's death, 
 which took place no great length of time after he had been created Duke by the Act 
 of Parliament in question, perished on the scaffold, I think in the eighteenth or nine- 
 teenth year of his age, in the year 1403. He was succeeded by his younger brother, 
 and his younger brother likewise abstained from assuming or attempting to assume the 
 title of Duke of Norfolk, until events occurred in the year 1425 which incidentally, I 
 might say accidentally, raised the question of the validity, or rather of the effect of this 
 Act of Rescissory of Henry IV. In 1425, therefore, twenty-eight years after the creation 
 of the Dignity, it never having been assumed, or sought to be assumed, during that 
 entire interval, a question of precedency arose between the Lord Mowbray the Earl 
 Marshal, who by law Avas entitled to the Dukedom of Norfolk, and the Earl of War- 
 wick. Now, your Lordships are too familiar with the history of both England and 
 Scotland, but especially of Scotland, not to know full well that no questions ever were 
 agitated or fought with greater bitterness or more persevering consistency than these 
 questions of precedency between rival and contending Nobles. Accordingly in this 
 year, 1425, the question was agitated and fiercely contested between the Earl Marshal 
 on the one side and the Earl of Warwick on the other. It was pending these proceed- 
 ings, and while the question seemed one of great doubt and difficulty and likely to be 
 attended with much mischief, possibly even with civil war, that it was suggested that the 
 question itself might be effectually put an end to by reference to this Act of Parliament 
 of Richard II., by which the Father of the Earl Marshal had been created Duke of 
 Norfolk. Accordingly the Act of Parliament was found, and the creation of the Duke- 
 dom ascertained. Then it was insisted by the Earl of Warwick that that Act of 
 Parliament had been repealed by the Act of Henry IV., which I will shortly call the 
 Act Rescissory, and that consequently no aid could be derived to his argument by the 
 Earl Marshal by reason of the Dignity claimed as Duke of Norfolk. 
 
 My Lords, the question was ultimately referred to some of the highest legal 
 authorities in England. It was referred to the Lord Chancellor, the Lord Chief Justice 
 of the Queen's Bench, the Serjeants at Law, the Privy Councillors, and others, to 
 investigate this question. And before this tribunal the question was agitated, whether 
 the Act Rescissory had the- effect of destroying the Dignity of the Duke of Norfolk. 
 And an elaborate judgment was pronounced which your Lordships will find in page 16, 
 and which is likewise printed in this little additional paper, which has been now handed 
 in, at page 9, and which I think presents to your Lordships a very high and commanding 
 authority against the operation contended for of this Act Rescissory of James IV. of 
 Scotland. The judgment is in these terms — the earlier part of it I will now read : 
 " Quaquidem Petitione in Parliamento predicto lecta plenius et intellecta ac habita in- 
 " de cum Justiciario et servientibus domini Regis ad Legem ac aliis peritis de consilio 
 '' ipsius domini Regis matura et diligenti deliberatione ; consideratoque quod licet 
 "prefatus nuper Rex Ricardus in dicto Parliamento suo Thomam nuper comitem 
 " Notyngham in Ducem Norffolk in forma predicta creaverit ; ac idem Parliamentum 
 " cum suis circumstantiis et dependentiis quibuscunque postmodum in Parliamento 
 
( 15 ) 
 
 " Domini Henrici nuper Regis Anglie avi Domini Regis nunc apud Westminster in festo 
 " Sancte Fidis Virginis anno Regni sui primo tento generaliter revocatum extiterit et 
 " penitus adnullatum " — Now these words are strictly applicable to this Act Rescissory 
 of Scotland. 
 
 Lord Brougham. — No doubt the reason why the Lord Chancellor is not mentioned 
 here is that he was a Member of Parliament himself They only mention the Chief 
 Justice, the Privy Councillors and the Serjeants at Law, but the Lord Chancellor must 
 have been there. 
 
 Sir FitzBoy Kelly. — No doubt. Now upon these words, " generaliter revocatum 
 " extiterit et penitus adnullatum," I would observe that certainly, if effect is to be given to 
 the Act Rescissory of Scotland, this must have been, and was necessarily the effect of this 
 Act Rescissory of England. "Pro eo tamen quod hujusmodi creatio Ducum sive 
 " Comitum aut aliarum dignitatum ad solum Regem pertinet et non ad Parliamentutn ; 
 " prefatusque nuper Dux diu ante dictum festum Sancte Fidis diem suum clausit 
 " extremum, prout per diversas inquisitiones post mortem ejusdem nuper Ducis virtute 
 " quorumdem brevium ipsius nuper Regis Henrici captas et in cancellaria sua retornatas 
 " ac in presenti Parliamento de avisamento Dominorum Spiritualium et Temporalium 
 " predictorum exhibitas et ostensas plenius poterit apparere ; sicque revocatio dicti Parlia- 
 " menti ipsius nuper Regis Ricardi prefatur nuper Ducem, aut heredes suos, absque 
 " speciali mentione de eis facta in eadem, nullatenus ledere potuit, nee statum eorum 
 '^ aliqualiter enervare." 
 
 And then follow other reasons, to which I will refer your Lordships, but I pray 
 your Lordships to pause here for a moment, and see what were the reasons upon which 
 these legal authorities held that the Rescissory Act of Henry IV. did not deprive the 
 Duke of Norfolk of the Dignity. They begin by resorting to a fine subtilty, which 
 shews the anxiety of this great Court and of the Law of England itself to put any 
 construction upon this Act of Parliament which would avoid the gross and terrible 
 injustice of depriving an innocent man of a Dignity which had been conferred upon him, 
 without his having had an opportunity of being heard in his defence, in fact of condemning 
 him by what would have been the effect of a forfeiture and attainder without any trial 
 at all. My Lords, the subtilty to which they resorted was this : Here was the creation 
 of a Dignity by an Act of Parliament. The King, as an integral part of the Legislature, 
 was of course a party to that Act of Parliament. He, together with the Lords and 
 Commons, had created the Dignity in question. But these legal authorities separated 
 and detached, as it were, the King from the two Houses of Parliament, and while they 
 held that the Act of the Parliament might be repealed, they held at the same time that 
 the Act of the Sovereign remained unimpeached and unaffected ; that it is the Sovereign, 
 the King, who creates Dignities, and that therefore, though this Dignity was created by 
 an Act of Parliament, to which the King was a party, and though that Act of Parliament 
 was undoubtedly repealed, yet the Dignity remained, because it must be deemed to be 
 the separate Act of the King, so that the Act Rescissory did not operate upon it. 
 
 My Lords, it merely shows the extreme reiinement of reasoning to which the Law 
 will resort in order to do justice, and to prevent injustice. And it is the more apparent 
 because I will undertake to say, that if this Act of Parliament had to be construed at the 
 present day for any other purpose than for that of making a forfeiture, it would be im- 
 possible to deny that this Dignity would be at an end. Because it must be remembered 
 that it is an incorrect proposition of law to hold that a Dignity, which was created by an 
 Act of Parliament, is to be taken as the Act of the Crown. A Dignity may be created 
 by an Act of Parliament just as much as by a Patent, or a separate Act of the Crown. 
 Your Lordships are well aware that the Act of Edward HL, for creating the eldest born 
 
( 16 ) 
 
 son of the Kings and Queens of England Duke of Cornwall, is the Act of Parliament 
 under which the Princes of Wales, as the eldest sons of the Kings and Queens of England, 
 have been Dukes of Cornwall from the time of Edward III. to the present day. And 
 therefore a Dignity may be, and in that very case is, the subject of an Act of Parliament. 
 That Dignity is created by Act of Parliament, and the Sovereign does no separate act, 
 and takes no separate part in the proceeding, any more than either of the other separate 
 branches of the Legislature. 
 
 Lord Brougham. — Just as a Corporation may be a Corporation by Statute — of 
 which we have a remarkable instance in the City of London, as Mr. Recorder knows 
 very well. 
 
 aSm' FitzRoy Kelly.— '^o doubt, and all the railway companies are incorporated 
 by Act of Parliament. 
 
 Lord Brougham. — It has been also held, that the City of London is a Corporation 
 by Common Law, which is paramount to Statute Law. 
 
 Sir FitzRoy Kelly. — In this case, the construction put upon the Act Rescissory 
 was, in truth, a struggle by this legal tribunal to prevent the monstrous and glaring in- 
 justice which would have resulted from any other construction of the Act of Parliament. 
 It was on that ground alone that they could possibly have held, that the creation of the 
 Dignity, by act of Parliament, was to be taken to be a separate act of the Crown ; and, 
 although the Act of Parliament was repealed, the act of the Crown remained unaffected. 
 Now, when we remember that the Dukedom of Cornwall exists, and is now enjoyed by 
 the Prince of Wales, by virtue of an Act of Parliament, not by creation by the Crown, 
 this part of the decision only goes to shew the length to which this legal tribunal carried 
 the construction of this Rescissory Act in favour of Justice — that they separated the act 
 of the Crown from the Act of the other branches of the Legislature, and they held that 
 although the Act of Parliament might be repealed the Dignity remained. 
 
 But, my Lords, we here do not ask your Lordships to resort to any such subtle 
 refinements. We only ask this Committee to put the natural, ordinary interpretation on 
 the words of this Rescissory Act of Parliament which would be put upon any other Act 
 of Parliament in a question between two individuals in any ordinary Civil Cause — that is, 
 to read them according to their plain and natural meaning, and to construe them by the 
 light of truth, and to determine whether the grant of this Dignity was or was not in 
 truth or in fact an act prejudicial to King James IV. of Scotland. 
 
 But your Lordships find another reason given here by the Judgment of this Tri- 
 bunal, which is perfectly decisive of the present question. I have already reminded your 
 Lordships, that the only way known to the usages of the Constitution in England and 
 Scotland of depriving a Peer of the Dignity of the Peerage is by an Act of Attainder ; 
 and, accordingly, inasmuch as an Act of Attainder names the Peer to be deprived, and 
 in this Act of Parliament of Henry IV. the Duke of Norfolk is not named, and no other 
 Peer is named, that is put forth as a distinct reason, and no doubt as the chief reason upon 
 which it was held by those legal authorities that the Act of Henry IV. did not destroy the 
 Dignity of the Duke of Norfolk. Your Lordships will find it is put in these terms : 
 " Sicque revocatio dicti Parliament! ipsius nuper Regis Ricardi prefatum nuper Ducem 
 " aut Heredes suos absque speciali mentione de eis facta in eadem nullatenus ledere potuit 
 " nee statum eorum aliqualiter enervare ; ac etiam pro eo quod inspecto Rotulo ejusdem 
 " Parliament! prefati nuper Regis Henrici nulla fit mentio in eodem de aliqua speciali re- 
 "vocatione sive adnullatione stili tituli nominis vel honoris ipsius nuper Duels vel 
 "dictorum Heredum suorum." Then it goes on to show that others who were created 
 Peers by the same Act still retained their Dignities- — which I shall shew your Lordships 
 also applies to the present case. I need not trouble your Lordships by readiuo- the re- 
 
( 17 ) 
 
 mainder of this Judgment, which holds in clear and express terms that this Rescissory 
 Act of Henry IV. did not operate to destroy the Dignity of Duke of Norfolk created by 
 the Act of Parliament of Richard II. 
 
 Now, my Lords, both these latter grounds apply directly and distinctly to the 
 present Case. It is here said in language which I might read as if it were pronouncing upon 
 the construction of this Act of Parliament, because it would apply as well to the Scotch Act 
 and the Scotch Dignity as to the English, " that, forasmuch as the revocation of the said 
 " Parliament of the same the late King Richard could in no wise hurt the aforesaid late 
 " Duke or his heirs, nor in any manner weaken their status, without special mention made 
 " of them therein ; and also forasmuch as on inspection of the Roll of the same Parliament 
 " of the foresaid late King Henry, there is no mention made in the same of any special 
 " revocation or annulment of the style, title, name or honor of the same late Duke, or 
 " of his said heirs." That language is strictly applicable to the Rescissory Act 'of 
 James IV. of Scotland, because when we look into that Act we find that it does not name 
 the Duke of Montrose ; and. I therefore ask your Lordships to adopt the same conclusion 
 as was adopted by these high legal authorities in England — that, by reason of this Act ]>ot 
 naming the Duke or the Dukedom of Montrose, it can " in no wise hurt the aforesaid late 
 " Duke or his heirs, nor in any manner weaken their status without special mention made 
 " of them therein ;" and that "there is no mention made of any special revocation or 
 " annulment of the style, title, name, or honour," of the Duke of Montrose. My Lords, 
 this is a direct authority for the proposition, that a Dignity duly and lawfully created by 
 the Crown cannot be defeated or destroyed by the general enactments of an Act of Par- 
 liament. To destroy such a Dignity it is necessary that the person and the dignity 
 should be specially named by an Act of Attainder, and where there is only a general 
 Act of Parliament which does not name the individual, it cannot have any effect upon 
 the Dignity. 
 
 I therefore, my Lords, only ask your Lordships, sitting here as a Court of Law, to 
 put the same construction upon this Rescissory Act in Scotland as these high legal 
 authorities have put upon a similar Act in England ; and inasmuch as the Duke of 
 Montrose, like the Duke of Norfolk, is not named, as the Dignity is not by name and 
 title referred to, I ask your Lordships to hold that that Act Rescissory had no effect 
 whatever upon the Dignity. 
 
 My Lords, the other reason which is given here is equally applicable to the 
 present Case, as I shall show your Lordships when I come to deal with the grant of the 
 Dignity of the Earl of Glencairn. It is alleged and put forth in this Judgment as 
 another and the last reason upon which that Judgment is founded, that other Peers 
 created by the same Act of Parliament have held and enjoyed their titles notwith- 
 standing the general terms of the Act Rescissory. 
 
 My Lords, that fact exists also in the present case with respect to the Dignities 
 conferred by James III. in Scotland, because, as your Lordships will find when I come 
 to the next point in the Case, King James III. had within the period in question created 
 Alexander Lord Kiimaurs Earl of Glencairn ; and if the Act Rescissory destroyed the 
 title of the Duke of Montrose, it must equally have destroyed the title of the Earl of 
 Glencairn. But it had no such effect. The Earldom of Glencairn continued to exist 
 notwithstanding the Act Rescissory, and was enjoyed under that Patent or Grant of 
 James III., and within the period in question, notwithstanding the Act Rescissory, from 
 that time or a time shortly posterior to it down to the year 1796. 
 
 So that upon every reason that appears upon this Judgment, upon the general 
 terms of the Act Rescissory itself, and upon the principles of the Law, which will work 
 a construction of an Act of Parliament in favour of truth and in favour of justice, and not 
 
( 18 ) 
 
 against both truth and justice, I ask your Lordships to pronounce the same decision, 
 and to put the same construction upon the Act Rescissory of James IV. of Scotland 
 which this legal tribunal referred to by the King put upon the Act Rescissory of Henry IV. 
 of England. And, my Lords, it is impossible that any decision can come before your 
 Lordships upon higher authority ; for not only were the Lord Chancellor and Lord Chief 
 Justice and other great legal functionaries of that day parties to the Judgment, but it was 
 actually affirmed in Parliament, and was made the subject of a decision in Parliament upon 
 these two conflicting claims of precedency between the Earl Marshal and the Earl of War- 
 wick. I find that at the very conclusion of it it is said that he " shall be reputed and 
 " held to be called Duke of Norfolk, and shall enjoy and use the style, title, and honor 
 " of Duke of Norfolk according to the tenor of the aforesaid Charter. Which Declara- 
 " tion and Resolution the foresaid Lord Chancellor by the King's authority did after- 
 " wards, viz. on the 13th day of July, on the last day of the Parliament, by advice of the 
 " Lords Spiritual and Temporal aforesaid, publicly declare in the full Parliament afore- 
 " said, and in the presence of our Lord the King. Whereupon the said John immediately 
 " paid his liege homage as Duke ol' Norfolk to our Lord the King now present," and so 
 forth. 
 
 My Lords, in conclusion upon this point I will only say that I cannot bring 
 myself to believe that when your Lordships find that such was the construction put upon 
 the Act Rescissory in England, where its terms were clearly and directly to repeal a 
 Grant theretofore made by Act of Parliament, your Lordships will doubt or hesitate as 
 to the construction to be put upon these words in the Act Rescissory of James IV. of 
 Scotland, which, unlike the words of the Act Rescissory of Henry IV., do not either 
 directly or indirectly repeal or annul the Grant in question, but which merely contain a 
 description describing the case or the event in which the Dignity in question might be 
 annulled, and within which case or description your Lordships cannot hold that the 
 Grant of this Dignity can be included. 
 
 Now, my Lords, I have said that, besides this direct authority in the case of the 
 Duke of Norfolk, there is another authority — 
 
 Lord St. Leonards. — Where do you find that these honours were granted by the 
 Parliament which was struck at by the later Act 1 
 
 Sir FHzRoy Kelly. — The Parliament which conferred the Title was in 1 397- It 
 was on the 29th of September, 1397, in the last Parliament of. Richard IL, that the. 
 Dignity of Duke of Norfolk was conferred by Act of Parliament. 
 
 Lord St. Leonards. — It seems to have been a Parliament held after a certain Feast 
 — the Feast of the Holy Cross. In the Act of Parliament which revokes the former one, 
 I do not see anything which properly applies to Dignities. On sending for the Rolls of 
 Parliament, I find that the Dignities were granted in Parliament no doubt, but it seems 
 to have been on a Saturday, at the Feast of St. Michael. I was struck with the circum- 
 stance that this occurred at a different Feast. You will find it in the Rolls of Parlia- 
 ment, vol. iii. page 355. " Item, mesme le Samady, en le fest de Seint Michel, en 
 ^' mesme le Parlement, le Roy fist pronuncier et monstrer overtment en Parlement — 
 ^' Q'il voet q. certains honorable Persones de son Roialme soient honorez et enhancez et 
 " changez a greindre honour et estat. C'est assavoir, ascuns q. sont Contes a I'estat 
 " et degree de Dues." Then below there is, " Item, mesme le jour, en mesme la fourme 
 " et manere. Sire Thomas JMoubray, Cont de Notyngham, feust fait et creez en Due de 
 " Norfolk." 
 
 Sir FitzRoy Kelly. — I have not the Rolls of Parliament before me, and therefore 
 I am not aware of the precise terms in which the proceedings of that Parliament are 
 expressed ; but I shall give in evidence before your Lordships the Patent itself creating 
 
( 19 ) 
 
 the Dukedom of Norfolk, which will be found to be in the terms which I have read to 
 your Lordships, " De assensu prelatorum," &c. 
 
 Lord St. Leonards. — The Act of Parliament which repeals the Act of Richard II. 
 does not in its terms apply to Dignities. On referring to that particular Session in the 
 Roll of Parliament, I do not find any Act of Parhament granting Peerages or Dignities ; 
 but I find that upon a Saturday, on a different Feast, these Honours were granted in 
 Parliament. I am only asking this for explanation. It does not appear to me, so far as 
 I see at present, that that Act of Parliament did touch the Dignities. 
 
 Sir Fit z Roy Kelly. — I think it will appear in this way. First, your Lordships 
 will find that this Dignity of the Duke of Norfolk, together with several others, was con- 
 ferred in that Parliament, and by an Act of Parliament. 
 
 Lord St. Leonards. — Not, as I understand it, by the Act of Parliament which was 
 repealed by the Act of Henry IV., because the Act of Henry IV. begins by stating that it 
 refers to an Act which was passed at a Parliament held after the Feast of the Holy 
 Cross. You will find that this refers to a different period from the time when these 
 Dignities were granted. 
 
 Sir FitzBoy Kelly. — I think not, my Lord. I have not the Act before me, but I 
 will take care that the Rolls of Parliament shall be investigated, and I think it will 
 appear to have referred to that Act. Indeed, but for that, there could have been no 
 question. It would not have needed a reference to those legal dignitaries, nor the 
 elaborate Judgment which they appear to have pronounced upon the construction of the 
 Act, if that Act had not referred to the Act of Parliament in question. But I think 
 your Lordships will find that what the Judgment assumes is the truth, namely, that this 
 Dignity of the Duke of Norfolk, with other Dignities, was conferred in the last Parlia- 
 ment of Richard II. ; and that the Act of Parliament by which it was created was 
 repealed by the Act of Henry IV. I, of course, cannot speak to it without having the 
 books before me, but I think it will be found that what is stated in the Patent, which 
 will be adduced in evidence before your Lordships, is strictly correct — that this was 
 a Patent granted by Act of Parliament, and with the assent of that very Parliament the 
 whole of the Acts of which were repealed by the Act Rescissory of Henry IV. 
 
 Lord St. Leonards. — That is the question. 
 
 Lord Chancellor. ~ln the Rolls of Parliament printed by the Record Commis- 
 sioners it does not appear in the proceedings of that Parliament that there was any grant 
 of Dignities at all. 
 
 Sir FitzBoy Kelly. — I think it must have been so. I will make it my business to 
 look at the Rolls of Parliament and see how that matter stands. 
 
 Lord St. Leonards. — I am not venturing to give any opinion upon it, but only 
 pointing it out for your attention. 
 
 Sir FitzBoy Kelly. — I am very much obliged to your Lordship for calling my 
 attention to it — of course I am very desirous of avoiding any error in my statement. 
 I will look at the Rolls of Parliament. But I take it to be quite clear that this Act of 
 Henry IV. must have purported to repeal all the Acts of the Parliament in question of 
 Richard II., at which Parliament this Dignity was conferred. Because, in the Judgment 
 pronounced only twenty-eight years afterwards, when all the proceedings of both Parlia- 
 ments must have been within the living memory of those who were parties to that 
 Judgment, I find they express themselves thus : " Consideratoque quod licet prefatus 
 " nuper Rex Ricardus in dicto Parliamento suo Thomam nuper Comitem Notyngham in 
 " Ducem Norffblk in forma predicta creaverit, ac idem Parliamentum cum suis circum- 
 " stantiis et dependentiis quibuscumque postmodum in Parliamento Domini Henrici 
 " nuper Regis Anglie avi Domini Regis nunc apud Westminster in festo Sancti Fidis 
 " Virginis anno regni sui primo tento generaliter revocatum extiterit et penitus 
 
 D 
 
.( 20 ) 
 
 " adnullatum." It is quite impossible, I should venture to think, that these great 
 authorities in 1425, or a few years later, can have misquoted the Acts of the Parliament 
 of Richard II. and of Henry IV. However, I will have it looked at. 
 
 Lord St. Leonards. — I rather think you will find that the Act of Henry IV. does 
 not touch the creation of those Dignities. 
 
 Sir FitzRoy Kelly. — My Lord, I can only say again that I will look at it, and 
 ascertain how the fact stands. But however it may appear in the Rolls of Parliament, 
 I cannot conceive, when we see these words in the Judgment, that the case can be 
 otherwise than as I have stated it. 
 
 Lord St. Leonards. — I am speaking of the words in the Act of Parliament of 
 'Henry IV., which seem clearly to be confined to entirely a different matter. You have 
 not got those words before you. 
 
 Sir FitzRoy Kelly. — No ; I have not them before me, my Lord. I will take care 
 4o look at them. But I should be much rather inclined to believe that the book which 
 js at this moment before your Lordship is itself incorrect, and does not truly contain the 
 Rolls of Parliament. 
 
 Lord St. Leonards. — ^This is the Parliamentary edition of the Statutes. It cannot 
 be incorrect. 
 
 Sir FitzRoy Kelly, — It appears to me impossible to conceive that these people, 
 living so shortly a,fter the period in question, should have altogether misquoted these 
 Acts of Parliament, which were passed in their own time. 
 
 Loi-d St. Leonards. — What they say is in a sense quite correct ; and yet what I 
 am saying may turn out to be the truth, that the revocation was confined to other 
 matters. If you will look into the Parliamentary edition of the Statutes at Large, you 
 will see what the Statute of Henry IV. is. 
 
 Sir FitzRoy Kelly. — Of course, my Lord, I will look at it. I cannot venture to 
 reason upon it without having the thing itself before me ; but I apprehend it will be 
 found that it revokes all the Acts of that Parliament, and in the language which I have 
 read to your Lordships, which is — " Que mesme le Parlement, ove lauctoritee susdite et 
 '" touz les circonstances et dependences dicelles soient de tout, reversez, revokez, irritez, 
 " cassez, repellez et adnullez pur touz jours." However, my Lord, I will look at it. 
 But if the fact were as your Lordship surmises, now, from seeing the way in which these 
 Acts are here printed, one is at a loss to imagine what was the question; because, if the 
 Act of Parliament creating these Dignities was not, or at least did not purport to be, 
 repealed by the Statute of Henry IV., I do not understand what question there was, 
 because if the Dignity remained there was an end of all doubt upon the subject. 
 
 Lord St. Leonards. — I will just read to you what the Preamble of the Act of 
 Henry IV. is ; " Whereas pn Monday next after the Feast of the Exaltation of the 
 " Holy Cross, in the twenty-first year of the reign of the said late King Richard, a 
 " Parliament was summoned and holden in Westminster, and from thence adjourned to 
 '' Salop, at which town a certain power was committed, by authority of the Parliament, 
 " to certain persons to proceed upon certain articles and matters comprised in the Roll 
 ^' of the Parliament thereof made, as by the same Roll may appear, in which Parliament, 
 ^' and also by the authority aforesaid, divers Statutes, Judgments, Ordinances, and 
 " Establishments were made, ordained, and given erroneously and dolefully in great 
 " disherison and final destruction and undoing of many honourable Lords and other 
 f-' liege people of the realm, and of their heirs for ever." Then follows the enactment. 
 It likewise cites the particular Act of Parliament, which you will find was passed in the 
 21st of Richard II., but it does not touch the Act which gave the Dignities. That 
 is what I am suggesting. 
 
( 21 ) 
 
 Sir FitzRoy Kelly. — The words that are furnished to me may be incorrect 
 altogether ; but I can hardly suppose them to be so, for they correspond with the words 
 in the Judgment of the Lord Chancellor and the other legal Dignitaries. 
 
 Lord St. Leonards. — There is no doubt about the words — they are right enough ; 
 but the question is, what those words are based upon. 
 
 Sir FitzRoy Kelly. — ^Of course it requires to have the very words before me 
 before I can reason upon them. I am much obliged to your Lordship for directing my 
 attention to it. I will look at the Acts as they appear in the Rolls of Parliament. All 
 that I need further observe to your Lordships upon this case of the Dukedom of Noj-folk 
 is this : that even if it were to turn out that that Act of Henry lY. did not purport to 
 repeal the Acts of that Parliament which conferred this Dignity upon the Duke of 
 Norfolk, I do not know that that would weaken the authority of this Judgment, because 
 this Judgment assumes that the Act of Henry IV. did repeal the Acts of the last 
 Parliament of Richard II. But they say that it does not apply to this Dukedom, 
 because this Dukedom is not expressly named, and because the King is the fountain of 
 all honour, and he had not conferred the Dignity, though it may in fact have been given 
 by Act of Parliament, However, I will look into it, and it vdll be for your Lprdships 
 to consider what the effect of it is when you come to consider exactly what the terms 
 of the one Act of Parliament and of the other are.. 
 
 Lord Brougham. — The Dukedom may have been, created without the assent of 
 the Prelates, Lords, and Commons ; it may hav? been created in the Parliament by the 
 ceremony of belting. 
 
 Lord Chancellor. — " Item mesme Samady, en le fest de Seint Michel, en mesme 
 " le Parliament le Roy fist pronuncier & monstrer overtement en Parlement, Qu'il voet 
 " q certains honorables persones de son roialme soient honorez & enhancez & changez a, 
 " greindre honour & estat : C'est assavoir, ascuns q sont Contes a I'estat & degree de Dues, 
 " & un Count a I'estat de Marquys, & certyns autres q sont Barons & Banerettes a I'estat 
 " & degree des Contes ; & ces pur trois choses." That is to say, some who are Counts are 
 raised to the estate of Duke, one Count to the estate of a Marquess ; and some others 
 who are Barons to the estate or degree of Counts; and that for three reasons : " premere- 
 " ment, pur ceo q la greindre supportation des chescun roialme en est des dignes persones 
 " d'estat & de honour deinz le roialme qi purront enforcer & fortifier le Septre du Roy. 
 " Secondement, pur ceo q mesmes les personnes sont Cousyns au Roy, et de son sank 
 " propre, lequele chescun Roy est tenuz de honorer & enhancer a dignitate & haut estat 
 " devant autres. Tiercement, q les mesmes les persones ont fait grant honor a roialme 
 " en diverses journees & trevailx d'outre meer en pleusours lieux, & moement pur les 
 " grauntz travalx et perils de lour corps, en queunx ils se mistrent & les diligences et 
 " costages qu'ils ont faitz a ceste foitz pur I'onour & salvation du Roy, & pur luy mettre 
 " en son estat, dignitee, & seuretee de sa persone ; dont reson & chose naturele en est q 
 " chescun bien fait soit duement recompensez. Par quoy le Roy, scant en Parlement, 
 " coronez en sa Roiale Mageste, teignant on mayne le Verge Roiale, ad fait &. creez son 
 " Cousyn Sire Henry de Lancastre Count de Derby en Due, & luy ad donez le noun & le 
 " stile de Due de Hereford, a avoir & tenir a luy & ses heirs mals de son corps engendrez. 
 " Et sur ceo bailla a luy sa Chfe Roiale de la dite creation, quele feust lue en Parle- 
 " ment. Et le Roy sur ceo ceynta le dit Due ovesq une espee, & mist sur son chief 
 " un cap de honour & dignite de Due, & prist son hommage en la manere acostome 
 " devant ces heures." So that what takes place is that the King creates the Duke of 
 Norfolk amongst others. He creates these persons Dukes and Earls, sitting upon the 
 Royal Throne, with the Crown, in a more formal manner than usual ; but when 
 you come to look at the Statutes of Parliament there is not a word there to show that 
 
 this was Act of Parliament. 
 
 D 2 
 
( 23 ) 
 
 Sir FitzRoy Kelly. — No ; but your Lordships will find that it has all the force 
 of an Act of Parliament under the express authority of the Prince's Case in 4th Coke. 
 We shall show the Charter itself, the Patent by which the creation took place, and 
 which contains these words : " De assensu Prelatorum, Ducum, Magnatum et aliorum 
 " Procerum, et Communitatis, Regni nostri Anglie, in instanti Parliamento nostro apud 
 " Westminster Convocato existentium." 
 
 Lord Chancellor. — If those words are important they are not found in the creation 
 of these Dignities at all. 
 
 Sir FitzRoy Kelly. — No, my Lord ; but they are in the Case of the Duke of 
 Norfolk, which I am interested in showing, because it was expressly one of the Resolutions 
 taken. It is the Prince's Case, in 4th Coke, p. 168. There the distinction is taken 
 between what does constitute a creation by an Act, and what does not. Now, that was 
 the Duke of Cornwall's Case, where it was held that the Creation was by Act of 
 Parliament, and one of the Resolutions is this : " There are many examples of Acts of 
 " Parliament in the form of the King's Charter. The words ^by authority of Parliament' 
 " in an Act or Charter are sufficient to make it an Act of Parliament. An Act of 
 " Parliament penned by assent of the King and of the Lords Spiritual and Temporal 
 " and of the Commons" (these are the very words here used) " is a good Act ; " that an 
 Act penned, that the King with the assent of the Lords, or that the King with the assent 
 of the Commons, is no Act of Parliament. Now there the distinction is taken. 
 
 Lord Chancellor. — What do you consider to be the words by which the Dukedom 
 of Norfolk was created, that make it an Act of Parliament ? 
 
 Sir FitzRoy Kelly. — The words I have read, " De assensu Prelatorum, Ducum, 
 " Magnatum, et aliorum Procerum, et Communitatis, Regni nostri Anglise, in instanti 
 " Parliamento nostro." 
 
 Lord Chancellor. — Where do you find those words ? 
 
 Sir FitzRoy Kelly. — Those words I find in the Patent itself of the Dukedom of 
 Norfolk, which will be exhibited before your Lordship. We have the express authority 
 of Lord Coke, for he states the distinction between an Act which the King does with the 
 assent of the Lords and Commons, and an Act which the King does without the assent 
 of the Lords and Commons ; and he says that the former has the force of an Act of 
 Parliament. 
 
 Lord Brougham. — This Case of the Duke of Norfolk is only an authority, it 
 decides nothing as to your Case. You only import it into your Case on account of the 
 authority of the decision. Does not the authority of that decision depend upon the 
 reason, and not upon the question of fact of whether the Duke of Norfolk was created 
 by Act of Parliament or not ? 
 
 Sir FitzRoy Kelly. — Certainly, and that is what I have urged before your Lord- 
 ships. It would scarcely affect my argument if it were to be found that the Act of 
 Parliament of Henry IV., when it came to be carefully looked at, did not purport to 
 repeal the Act of Richard II. by which this Dignity was created. It would leave my 
 argument entirely unaffected, because I find here the Judgment of all these great legal 
 authorities assuming that the Act of Henry IV. did purport to repeal the Act of 
 Richard XL, and then giving these reasons why, notwithstanding such repeal, the Dignity 
 was not affected — namely, that it was not named or pointed at by name, and that 
 others created at the same time by the same authority had continued to enjoy their 
 titles ;. and therefore that decision is an authority before your Lordships, whether the 
 tribunal so deciding were right or wrong as to the terms of the two Acts of Parliament 
 which were before them, and upon which they pronounced their Judgment. I will of 
 course make it my business to look into the Rolls of Parliament, and see whether the 
 view taken by these learned persons so very soon after the passing of this Act of Parlia- 
 
( 83 ) 
 
 ment was correct or not. But however that may be, what we have to look at is the reasons 
 appearing in that Judgment, and not what these learned persons assumed to be the fact. 
 And when we consider the Patent itself with reference to the authority that I have 
 cited of the Prince's Case, in 4th Coke, there can be no doubt what that decision was, 
 namely, that a General Act of Parliament not mentioning a Dignity by name, but 
 merely repealing the Act of Parliament by which that Dignity was conferred, does not 
 affect that dignity. 
 
 Lord Chancellor. — I think you are begging the question when you say " repealing 
 " the Act of Parliament by which the Dignity is created :" it is repealing an Act of 
 the Parliament during the Session of which the Dignity was created. The language 
 of the decision is, " And that it being considered that although the aforesaid late King 
 " Eichard had created Thomas, late Earl of Nottingham, Duke of Norfolk in his said 
 " Parliament in form aforesaid, and that same Parliament, with all its circumstances 
 " and dependencies whatsoever, was afterwards generally revoked and entirely annulled 
 " in the Parliament of our Lord the late Henry King of England, grandfather of our 
 " Lord the King that now is, held at Westminster on the Feast of Saint Faith the 
 " Virgin, in the first year of his reign, yet, for as much as the creation in this wise of 
 " Dukes or Earls or of other Dignities appertains to the King alone and not to Parlia- 
 " ment," and so on ; therefore the revoking of the Act of Parliament did not revoke the 
 creation of the Dignity. That is the way I read it ; but I may be wrong. 
 
 Sir Fitz'Roy Kelly.— One reason why I trust your Lordship will think I am not 
 begging the question is this : The words are, " Quod licet prefatus nuper Rex Ricardus 
 " in dicto Parliamento suo Thomam nuper Comitem Notyngham in Ducem Norfolk in 
 "■ forma predicta creaverit ; ac idem Parliamentum," and so on. Now, those words, as I 
 understand them, refer to the Charter of Creation of this Dignity. If 1 am wrong as 
 to the fact, when I adduce the document before your Lordships, of course my argument 
 will fall to the ground ; but if I am right as to the fact, these words would refer to the 
 Charter of Creation which is upon the Rolls of Parliament, and which Charter of 
 Creation contains these very words, " De assensu Prelatorum," and so on. 
 
 Lord Chancellor. — Those words are not to be found in the Roll of Parliament. 
 
 Lord Brougham. — You state in your Case that the Charter of Creation is entered 
 at length on the Roll of Parliament. 
 
 Sir FitzRoy Kelly. — Yes, my Lord ; we state in a note this : " By the Royal 
 " Charter of Creation, 21st Richard IL, which is shortly before (page 273) entered ad 
 " lonqum also in the Rolls of Parliament." I cannot answer for the accuracy of that 
 statement of my learned friends ; but I hope it will be found to be accurate ; and that 
 of course at the proper season will be brought before your Lordships. I rely with the 
 more confidence upon the accuracy of this statement, because I cannot read the Judgment 
 in any other way. If it had turned out that it was merely while the Parliament was 
 sitting that the King had created Lord Mowbray Duke of Norfolk, there would have 
 needed no elaborate reasons. It would have been enough to say simply that he was not 
 created by Act of Parliament at all, but that he was created by a Charter or Patent 
 from the King, and that Charters or Patents from the King were not repealed, but that 
 only Acts of Parliament were repealed. 
 
 Lord Brougham. — Do you set out the Rescissory Act of Henry IV. ? 
 
 Sir FitzRoy Kelly.— Not at length. 
 
 Lord Brougham. — It is said that the Parliament was rescinded and all that 
 passed in the Parliament. That would include the creations by the King. 
 
 Sir FitzRoy Kelly.— Yes. I dare not speak with any certainty about that, because 
 I have not myself looked at those original Documents ; but these Documents, upon 
 which this printed statement is founded, shall be brought before your Lordships, and I 
 hope they will be found to warrant what I am now stating, that this was a Creation by 
 
( 24 ) 
 
 an Act of Parliament, that is by those words in a Charter which Lord Coke and the 
 rest of the Court held in the Prince's Case to constitute an Act of Parliament. I may 
 also say that these statements in Lord Crawford's Case have been subjected to the very 
 severest criticism, and that the noble Duke, who under your Lordships' sanction has laid 
 a printed Statement upon the table, does not in the slightest degree impugn the accuracy 
 of this statement of the Earl of Crawford, in relation to the Duke of Norfolk's Case. 
 
 Lord St. Leonards. — The Dignities were granted in the same Parliament in which 
 the Acts of Parliament were passed which were struck at by the Act Rescissory of 
 Henry IV. 
 
 Sir FitzRoy Kelly.' — I must look to the exact form in order to see how that 
 matter stands. It probably may have been in the same Parliament, though not held at 
 the same time at which the first date is given. There was but one Parliament that we 
 know of, according to history, held in that last year of Richard II. in 1397 ; and that it 
 was at a Parliament and by a Parliament of 1397 that that Dignity was granted is quite 
 manifest unless this statement is altogether inaccurate. However, I am greatly indebted 
 to your Lordship for directing my attention to it, because I shall now see exactly how it 
 appears in the Rolls of Parliament. But I apprehend that unless this statement is 
 altogether an error, and unless those learned persons were equally in error when they 
 pronounced this Judgment, there must have been what purported to be a Repeal of the 
 Grant. And I apprehend that it is perfectly clear also, unless this is entirely a mistake 
 from beginning to end, that the Dignity was conferred by Act of Parliament. 
 
 Lord St. Leonards. — It was all one Parliament, no doubt. At one portion of 
 the time the Dignities were granted, and at another portion of the time those Acts of 
 Parliament were passed which were intended to be struck at by the Act of Henry IV. 
 Then these learned persons seem to have come to the conclusion that that Act of 
 Parliament did not touch the Dignities. 
 
 Sir FitzRoy Eelly. — There are three questions upon which I am bound to satisfy 
 your Lordships to show the application of that Case to the present. The first is, was 
 there one Parliament, and one only, in the year 1397 ? The second question is, was the 
 Dignity of the Duke of Norfolk conferred by an Act of that Parliament — not by the 
 King happening to be present while the Parliament was sitting, but by an Act of that 
 Parliament ? That I have to prove in the affirmative. And the third question is, 
 were the terms of the Act Rescissory, as it is called, of Henry IV. large enough to 
 work the repeal of all the Acts generally of that Parliament ? If they were, then they 
 would of course in terms prima facie have repealed the Act granting the Dignity in 
 question. But if either there was more than one Parliament, or if the Dignity was not 
 granted by Act of the Parliament, or if the Act Rescissory of Henry IV. did not purport 
 to repeal all the Acts of that Parliament, then I agree that my argument fails ; but I 
 think your Lordships will find, when I come to refer to the Instrument itself, that it is as 
 stated in the Case, and also do I contend it is necessarily implied to be in the Judgment. 
 My Lords, I was next about to call your Lordships' attention to the Glencairn 
 Case, which forms a very important feature in this Case. 
 
 Lord Brougham. — You have finished your argument on the Rescissory Act ? 
 Sir FitzRoy Kelly. — Upon the Rescissory Act of Henry IV. But upon the 
 Rescissory Act of Scotland the Glencairn Case is an authority exactly in point, for that 
 Act did not destroy that Dignity, which had been conferred in the month of May, 
 1488, by James IIL 
 
 Lord Brougham. — I meant upon the English Act. 
 
 Sir FitzRoy Kelly. — Yes, I have entirely done with that ; except that I have to 
 supply your Lordships with the Documents themselves. 
 
 [Adjourned to to-morrow at 12 o'clock.] 
 
( 25 ) 
 
 TUESDAY, im JULY, 1853. 
 
 ■Sir FitzRoy Kelly. — My Lords, since the adjournment of this case yesterday, I 
 felt it my duty, of course, to look into the Rolls of Parliament, and I find that, although 
 a doubt might naturally arise from the mode in which the entries of the proceedings of 
 the Parliament of Richard II. are commenced in the printed Book of the Rolls of 
 Parliament, the case is substantially as it is stated in these papers. 
 
 Lord Brougham. — You mean that it is a Statute ? 
 
 Sir FitzRoy Kelly. — Yes, that it is a Statute. 
 
 Lord Brougham. — You are aware that there are many cases in which that is held 
 to be clearly a Statute which is not to be found in the Statute Roll ; and that the Com- 
 missioners in preparing their authoritative publication of the Statutes had recourse to the 
 Rolls of Parliament as well as to the Statute Roll ; but there were cases in which the 
 Commissioners have not printed that which was clearly a Statute, as a Statute, yet it is 
 clearly a Statute. I will refer you to one in the 4th volume of the Rolls of Parliament, 
 page 35, in which there is an Act, and a very important one, giving the Crown power to 
 regulate the coinage between that date and the next Parliament : that is not to be found 
 in the Statute Roll — it is not even given by the Commissioners in their publication of the 
 Statutes, yet it is clearly a Statute from the Roll of Parliament. You will find that the 
 Commissioners, in their very learned Report, give you the test of what is and what is not 
 a Statute ; and they say that what has been written upon the difference between Ordi- 
 nances and Statutes is extremely vague and indistinct, and that each case will stand upon 
 its own merits. If you look at pages 37 and 39 of that learned Report of the Commis- 
 sioners you will see what I am now alluding to. 
 
 Sir FitzRoy Kelly. — My Lords, the case will be found to stand thus :■ — The 
 Parliament which was held in the 21st year of Richard II. was opened, and the pro- 
 ceedings began, upon the Feast day of the Holy Cross. 
 
 Chairman. — No, the Monday afterwards. 
 
 Sir FitzRoy Kelly. — I am much obliged to your Lordship — on the Monday after 
 the Feast day of the Holy Cross, which Feast day was on the 14th September. The 
 proceedings were afterwards adjourned, either to Michaelmas day, or to some day after 
 Michaelmas day. 
 
 Lord St. Leonards. — It was Monday the 17th. 
 
 Sir FitzRoy Kelly.— Thej were then continued till there was a further adjourn- 
 ment from Westminster to Shrewsbury ; and it was in the second stage of the proceedings 
 of Parliament, namely, after the adjournment from the Monday after the Holy Cross to 
 some day after Michaelmas day, that the proceedings took place under which these 
 Dignities were created. 
 
 Chairman.— Yon will find that they met on Monday the 17th. They sat on 
 several days after that, one of those days being Saturday the 29th, on which day the 
 Dignities were granted, and upon that day they adjourned to Shrewsbury, 
 
 Sir FitzRoy Kelly.— Yes, and it will be found that it was on the Saturday after 
 the Feast, or on the Feast of St. Michael, Michaelmas day, that these Dignities were 
 created, and, as I shall show your Lordships, were created by Act of Parliament, as 
 
( 36 ) 
 
 clearly created by Act of Parliament as the Dukedom of Cornwall was created by Act 
 of Parliament in the time of Edward III. Then comes the repealing, or, as we have 
 called it, the Rescissory Act, in the reign of Henry IV., which completely and in terms 
 repeals the whole of the Acts of Parliament of the 21st of Richard II., and the only 
 difference between what I ventured to state to your Lordships yesterday, and what turns 
 out to be the case upon investigating these Parliament Rolls, is, that instead of the Patent 
 itself being set forth in extenso in that part of the Rolls of Parliament which states the 
 proceedings, that part of the Rolls of Parliament merely states, amongst the other pro- 
 ceedings of the Parliament, the creating of these different Dignities ; and the Instrument 
 itself is set out in extenso in another part of the Rolls of Parliament in the reign of 
 Henry VI,, when the question of precedency ai'ose before Parliament, which was 
 determined by a reference to that Grant. 
 
 Lord Brougham.- — You mean between the Earl of Warwick and the Duke of 
 Norfolk ? 
 
 Sir FitzRoy Kelly. — Between the Earl oi Warwick and the Duke of Norfolk the 
 Earl Marshal. Your Lordships will find, at page 347 of the Rolls of Parliament of the 
 21st Richard II., " Rotulus Parliamenti summoniti & incepti apud Westm' die Lune 
 " prox' post Festum Exaltationis Sancte Crucis, anno regni D'ni Regis Ricardi Secundi 
 " vicesimo primo, & ab inde ad villam Salop in Quindema Sancti Hillarii tunc prox' 
 " futur' adjornat." There we find that the proceedings of this Parliament began on the 
 Monday after the Feast of the Holy Cross, which was on the 14th September. Then 
 there follow various Acts or proceedings by that Parliament. And at page 355 we find, 
 " Item mesme le Samady, en le fest de Seint Michel, en mesme le Parlement, le Roy 
 " fist pronuncier et monstrer overtement en Parlement, Q'il voet q certeins honorables 
 " persones de son Roialme soient honorez & enhancez, & changez a greindre honour & 
 " estat." Then follows at great length the King in full Parliament declaring his will 
 that certain honourable persons should be elevated to certain dignities. And first there 
 comes the creation of Sire Henry de Lancastre, Count of Derby, to be Duke of Here- 
 ford ; that is, he who was afterwards Henry IV. And the " Item mesme le jour et en 
 " mesme la forme & manere Sire Edward Cont de Roteland feust fait & creez en Due 
 " D'Aumarle. Item, mesme le jour, & en mesme la fourme & manere. Sire Thomas de 
 " Holand Cont de Kent feust fait & creez en Due de Surrey. Item, mesme le jour, et 
 " en mesme la fourme et manere, Sir Johan de Holand Cont de Huntyngdon feust fait & 
 " creez en Due d'Excestre. Item, mesme le jour, en mesme la fourme & manere. Sire 
 *' Thomas Moubray Cont de Notyngham feust fait & creez en Due de NorfF'." And 
 then follows also a grant of honour to his Duchess. 
 
 Lord Brougham. — That is only that the King declared his will in Parliament 
 that he should be created; that is, with the assent of the Prelates, &c. 
 
 Sir FitzRoy Kelly. — Your Lordship will find that it was so. 
 
 Lord Brougham. — Not as you read it. 
 
 Sir FitzRoy Kelly. — I have only read what appears in the Rolls of Parliament. 
 What appears is this. The way in which the creation of Dignities by Act of Parliament 
 took place appears at this period of our history to have been just what appears here. 
 Among the other proceedings of the Parliament the Sovereign declares his will that a 
 certain person shall be created a Peer ; and the style and title is mentioned ; and then 
 follows a narrative of the fact of his being so created a Peer by the Dignity or Title in 
 question. That is all that appears on the Roll of Parliament. But your Lordships will 
 find that, by the usage of Parliament, while that mere declaration of the will of the 
 Sovereign and the ceremony of Investiture is all that takes place in Parliament, there ig 
 a Patent under the seal of the King ; and that Patent, which probably is delivered at 
 
( 27 ) 
 
 that time to the Peer who is thus created, remains according to its form, and, if it be in 
 form sufficient, it has the effect of an Act of Parliament ; and that Patent, which con- 
 tains all the necessary words, " De assensu Prelatorum," and so on, will appear, not in 
 this part of the Rolls of Parliament, but in the Eolls of Parliament of a subsequent date, 
 to which I will refer your Lordships when the question is before Parliament as to the 
 precedency as between these two noblemen. This is all that appears here, and this is 
 the usual form in which upon the Rolls of Parliament the creation of a Peer by Act of 
 Parliament is I'ound. 
 
 Lord Brougham. — The mere assertion by the Crown, in a Patent, that there had 
 been the consent of the Prelates, Magnates, and Commons, would not make of itself 
 a Statute ; and when you say that another Act of Parliament refers to it as if it had been 
 an Act, you know that it has been held ever since the case of Dore v. Gray, in the 
 Court of Queen's Bench, that the mere statement in one Act of Parliament that another 
 Act of Parliament has been made, or that another Act meant so and so, proves nothing, 
 because that can only be done by a Declaratory Act. 
 
 Sir FitzRoy Kelly. — That is very true with regard to a modern Act of Parlia- 
 ment ; but your Lordships will find that it was one of the resolutions of the Court, 
 in the Prince's case, as reported in 4th Coke, that where a Charter is produced, and it 
 appears to have been made with the assent of the Lords and the Commons, that is an 
 Act of Parliament. I will first trouble your Lordships with the facts, and then I will 
 show, I think, by the decision of the Court in the Prince's case, which as your Lord- 
 ships are well aware is a case of the very highest authority, the Duke of Cornwall's 
 case, that all the requisites exist here to give to this creation of the Duke of Norfolk, 
 the force and effect of an Act of Parliament. 
 
 Lord Brougharn. — What was the Charter in the Prince's case ? 
 
 Sir FitzRoy Kelly. — It was a Charter by which the eldest born sons of. \h&- 
 Kings and Queens of England are made Dukes of Cornwall, and under which the. 
 present Prince of Wales is Duke of Cornwall at this moment. Under the resolution-, 
 of the Court in the Prince's case, it has the force and effect of an Act of Parliament,, 
 being the Act of the Crown and of the Parliament, and the Act itself declares that it is- 
 with the assent of the Lords and Commons. I will refer your Lordships; to that in a 
 moment, and you will see how the matter stands. But now with respect to the Duke of 
 Norfolk's case, we have first the Roll of Parliament of the 21st of Richard IL,, showing 
 the beginning of the proceedings on the Monday after the day of the Holy Cross. . Then, 
 we have the adjournment to the Saturday, either on or after the Feast of St. Michael ; 
 and then, in the words which I have read to your Lordships, the King in Parliament 
 makes these very persons peers by the Titles in question. It proceeds to say, — "Pai- 
 " quoy le Roy scant en Parlement coronez en sa Roiale Mageste, teignant en mayne Ig, 
 " Vierge Roiale, ad fait & creez son cousyn Sire Henry de Lancaster Cont de Derby en 
 " Due & luy ad donez le nome & le stille de Due de Hereford, a avoir et tener a luy & 
 " ses heirs mals de son corps engendrez — Et sur ceo bailla a luy sa Chi^ Roiale."' 
 I suppose this means his Royal Charter, and I pray your Lordships' attention to this^ 
 because it really gives to the very proceeding which here took place exactly the same 
 force and effect as the Act of Parliament which exists in the case of the Duke of 
 Cornwall, " de la dite creation, quell feust lue en Parlement.'' 
 
 Lord Brougham. — Then the Grantee was present. 
 
 Sir FitzRoy Kelly.— Yes, my Lord ; and your Lordships will see that these words 
 are perfectly decisive, when taken together with the Act o f Parliament itself, which I 
 will read by and by. It proceeds—*' Et le Roy sur qep ceynt^ le dit Puc avesq une 
 " espee, et mist sur son chief un cap de honor et dignite de Due, & prist son hommage 
 
 E 
 
( 28 ) 
 
 " en la manere acostome devant ces heures." Then, after other creations : " Item, 
 " mesme le jour & en mesme la fourme " — so that all the same proceedings and 
 ceremony took place in each case, including the reading of the patent itself— "en 
 " mesme la fourme et manere Sire Thomas Mowbray Cont de Notyngham feust fait & 
 " cree2 en Due de NorfF." Then there is at a later period, in the same page, Article 
 36 : " Item, mesme le jour de Samady le Roy considerant certeins graundes cases & 
 " matirs meuz and pendantz en cest present Parlement q ne bonement purront estre 
 " terminer a ceste foitz, & pur autres evidentes & resonables causes luy moevantz, si ad 
 ^' ajournez cest Parlement de cest present jour de Samady & de cest lieu de Westin, 
 '^ tan q al Quinszeme de Seint IJiller proschein a venir a Salop," and so forth, which is 
 the adjournment alluded tp in the sijbsequent proceedings. 
 
 We have it here, therefore, that in this Parliament of the 21st of Richard II. this 
 Duke of Norfolk was, with other Peers, created Duke of Norfolk, and that the usual 
 forms and ceremonies took place, and that thereupon the King delivered to him his 
 Royal Charter of the said creation, which was read in Parhament. For all that apphes 
 as well to the Duke of Norfolk as to the Duke of Hereford. And then for the form of 
 the charter, Afhich is not set forth in this part of the Rolls of Parliament, we must refer 
 to another volume of the Rolls of Parliament. 
 
 Lord Brougham. — Then he appears to have sat immediately as Duke of Norfolk. 
 
 Sir FitzRoy Kelly. — I presume he must ; but I do not know whether he did or 
 not. I see that there is nothing further said than what I have just stated to your Lord- 
 ships ; but he afterwards sat in Parliament under this creation as Duke of Norfolk. 
 
 JLord Brougham, — It might be a question whether he was there by summons, 
 sitting independently of his patent. 
 
 Sir FitzRoy Kelly. — I do not know how that is ; but all that appears here is, that 
 the King, after girding him with the sword, put on his head a cap of honour and dignity 
 as a Duke, and received his hornage in the manner theretofore accustomed. So that that 
 was done in the Parliament. 
 
 Chairman. — Just turn over the page, and I think on the other side you will see 
 that it states the peers who were in attendance on Parliament on that same day. 
 
 Sir FitzRoy Kelly. — Those on the other side must be those who appeared at the 
 adjournment to Shrewsbury, because it says, — " Item. The same day, Saturday, the King, 
 " considering certain great causes and matters which could not be determined at that 
 " time, adjourned this Parliament from Westminster to the 15th of St. Hilary at 
 " Shrewsbury." 
 
 Chairman. — But if you look a little further on you see that all the proceedings, 
 until the Parliament opened at Shrewsbury, are of the same Parliament. And the 
 Parliament at Shrewsbury does not begin until you get to the bottom of the following 
 page. 
 
 Sir FitzRoy Kelly. — Yes, I see that is so. I was misled by finding the adjourn- 
 ment to Shrewsbury above this. I find this is all the proceedings of one and the same 
 day. After the House resolving, as it were, to adjourn to Shrewsbury, then follows the 
 enumeration of the names of those present, and amongst them is the Duke of Norfolk. 
 So that it is quite clear that he was created Duke of Norfolk by the King, crowned, and 
 sitting in this Parliament ; that the ceremony of Investiture was performed ; that his 
 Patent was delivered to him ; and that he took his seat at that time in that Parliament 
 as the Duke of Norfolk. 
 
 Lord Lyndhurst. — It does not say that he was created hy Parliament •, he was 
 created in Parliament by the authority of the King. 
 
( 29 ) 
 
 Sir FitzRoy Kelly.— -By Parliament, as your Lordships will see presently, when I 
 read the Charter which was delivered to him. 
 
 Lord Lyndhurst. — What are the words ? 
 
 Sir FitzRoy Kelly. — I am going to refer your Lordships to them presently. I 
 should state that the Charter itself, though it is said in this entry to have been delivered 
 to the Duke, and to the other Peers who were created at that time, and in Parliament, 
 is not set forth in extenso at that part of the Parliamentary Roll ; but the Charter of the 
 Duke of Norfolk, which, therefore, must be taken to be the Charter which was delivered, 
 to him in Parliament, is set forth in the Parliament Rolls of the 3rd of Henry VI.,. in 
 the year 1425, where the proceedings appear upon that competition for precedency. 
 
 Lord St. Leonards. — Before you pass away from this point, I wish to ask you 
 whether you have found any Act of Parliament during the 21st of Richard II., which 
 confers any of these titles? 
 
 Sir FitzRoy Kelly. — None. The only Act at all in Richard II. i^ that which I 
 have read to your Lordships. 
 
 Lord St. Leonards. — There is that Act which was struck at here by the Act of 
 Henry IV. But I do not find in the Rolls of Parliament any Act of Parliament which, 
 gives effect to these Dignities as conferred by Parliament. 
 
 Sir FitzRoy Kelly. — There is no other Act ^.t all, and as far as I know there is no 
 record in existence of the creation of these peers at all except that which, I have read to 
 your Lordships as part of the proceedings of the Parliament of that year and the 
 Patents. Then, my Lords, after that Act it is only necessary that I should refer to the 
 Patent itself, and then proceed to refe? fina,lly to the Repealing Act, the Act Rescissory. 
 Now, I have said that the Patent itself is not set forth in the Act, nor does it appear to. 
 be usual for any such patent ever to be set forth in Acts of Parliament even where Peers 
 are created in Parliament, AH that appears is just what I have read to your Lordships, 
 which, as far as I know (of course I speak subject to correction), contains the only record 
 in existence of the proceedings of that Parliament of the 21st of Richard II. Then, my 
 Lords, in order to meet the question of one of your Lordships, whether the Charter 
 creating the Lord Mowbray Duke of Norfolk had the form, and force, and effect of an 
 Act of Parliament, happily we are enabled upon the highest authority to refer to the 
 Charter itself, because it was produced upon this question of precedency in the 3rd year 
 of Henry VI. ; it was produced by the Commons and considered as part of the proceedings 
 upon that question. Your Lordships will find that in page 267 of the 4th volume of 
 the Rolls of ParUament there are the proceedings of Parliament of the 3;-d of Henry VI. 
 Those proceedings begin there ; they are extremely lengthy, and they spread over a very 
 great number of these large folio pages. I will merely give now the reference and the 
 dates, and will proceed to the Patent itself. 
 
 Lord St. Leonards. — What is the date ? 
 
 Sir FitzRoy Kelly.— A.D. 1425, the 3rd of Henry VI. It appears that the Par- 
 liament was held on the last day of April in that year, and the proceedings begin \n this 
 
 way : " Plese hit to my Lord of Gloucester and my Lordes Spirituell and Temporell 
 
 " to remembre on these articles that folwen, howe at this Parlement "—Then follow 
 the articles and the whole process upon this claim of precedency. Then we come to 
 page 273, a few pages afterwards ; the whole intervening space, or the greater part of it, 
 being occupied with matters relating to that proceeding ; in fact it seems to have been an 
 uninterrupted continuation of the same proceeding. At Article 13 it goes on ;— " My 
 " Lord of Glouc', and all my Lordes, like hit your god Lordshippes to cajl to your wise 
 " remembrances how long tyme my Lord Marescall hath in diverse Parlements sued to 
 " make declaration of his title, right, and possession yat he hath to have in yis Court Roiall 
 
 E 2 
 
( 30 ) 
 
 " above my Lord of Warr', which title, right, and possession my said Lord Marescall, by 
 " divers evidences, wrytynges, and records, hath in his conseit fully proved. Wherefore he 
 " besecheth ouer Soverain Lord, and you my Lord of Glouc', and all you my Lordes, to 
 " declare for him his said right, title, and possession in yis hie place, and it decree and 
 " deme withoute more delaie, accordant to evidences and wrytynges for my said Lord 
 ■' into yis hie Court delivered, so that my said Lord of Warr', by yat declaration, decree, 
 *' and juggement, be excluded to cleyme or chalenge ye said place in tyme comyng, as 
 " reason and justice desiren, humbleley besechyng our soverain Lord, you my Lord of 
 " Glouc', and you all my Lordes, yat all ye matiers declared for my said Lord Marescall 
 " in yis hie Court may in yis said Court be entred, and of recorde enacted." 
 
 Then follows the presentation of the Commons : — " Ac postmodum Communes 
 " regni Anglie in Parliamento predicto existent', advertentes qualiter occasione materia 
 " controversie inter prefatos comites," and so forth. Then there is a somewhat lengthy 
 form of presentment in laying before Parliament on the part of the Commons this Charter 
 itself. 
 
 Then follows in the same place the Charter, and I now presume therefore the 
 very Charter which, in the proceedings of the 21st of Richard II., your Lordships will 
 find to have been delivered by the King to the Duke : — " Ricardus, Dei gratia Rex Anglie 
 " & Francie & Dominus Hibernie, Archiepiscopis, Episcopis, Abbatibus, Prioribus, 
 " Ducibus, Comitibus, Baronibus, Justiciariis, Vicecomitibus, Prepositis, Ministris, & 
 " omnibus Ballivis & Fidelibus suis salutem. Inter cetera regni insignia," and so on. 
 Then there is a very long recital, and it proceeds : " hiis sane considerationibus inducti 
 " ad carissimum consanguineum nostrum Thomam Comitem Notyngh' & Marescallum 
 "Anglie," and so forth. Then it proceeds: "in profunde discucois libramine ponr 
 " derantes." Now here follow the words about which one of your Lordships asked me : 
 " de assensu Prelatorum, Ducum, Magnatum & aliorum Procerum, & Communitatis 
 " regni nostri Anglie in instanti Parliamento nostro apud Westm' convocato existentium, 
 " ipsum Comitem in Ducem NorfF', cum titulo, stilo, ac nomine & honore eidem debitis, 
 " prefecimus; ac inde prudentialiter per oppositionem cappe suo capiti, ac traditionem," 
 and so forth. " Hiis testibus, venerabilibus patribus R. Archiepiscopo Eberum, Anglie 
 " Primate," and so forth, and various other Peers. So that your Lordships find this creation 
 is expressly in the Charter itself " de assensu Prelatorum, Ducum, Magnatum & aliorum 
 " Procerum & Communitatis regni nostri Anglie, in instanti Parliamento nostro apud 
 " Westminster convocato existentium." 
 
 Now, my Lords, before I refer to the Repealing Act, I ought to mention, that of 
 course no authority can be higher — perhaps no authority can be so high as the production of 
 this Charter in Parliament by the House of Commons to the House of Lords, the Charter, 
 together with the other proceedings, being actually recorded in Parliament at the prayer of 
 the Commons; but in addition to this we have the Charter itself in the Roll of Charters at 
 the Tovrer, and if necessary it shall of course be produced before your Lordships. But, my 
 Lords, I will now merely trouble your Lordships for a moment by referring again to the 
 Prince's case, where these matters were dealt with. " Resolved, 1. The Instrument made 
 " 1 1th E. III. to Prince Edward, by which the Prince was created Duke of Cornwall, and 
 " the possessions of the Dukedom of Cornwall given to him with special limitations," &c., 
 " is a Charter made by authority of Parliament." And then, " Note differences touching 
 " Letters Patent which pass by Bill signed without Privy Seal, those which pass by Bill 
 " signed and by Privy Seal also, and those made by authority of Parliament. There 
 " are many examples of Acts of Parliament in the form of the King's Charter. The words 
 " ' by authority of Parliament,' in an Act or Charter, are sufficient to make it an Act of 
 " Parliament. An Act of Parliament penned 'by assent of the King and of the Lords 
 
( 31 ) 
 
 " ' Spiritual and Temporal and of the Commons ' is a good Act. But an Act penned, that 
 " ' the King with the assent of the Lords,' or that ' the King, with the assent of the 
 " ' Commons,' is no Act of Parliament. 2nd. The Charter, having the authority and force 
 " of Parliament, is sufficient in itself without any other Act; and if the King's scire facias 
 " hath sufficient matter, it shall never abate for surplusage not material." 
 
 Now all these matters are resolved, having been debated at great length in this 
 the Prince's case, in 4th Coke, a case of high authority ; and therefore if there were 
 nothing more before your Lordships than this Charter itself, as it is the King's Charter, 
 and made expressly upon the face of it, " de assensu Prelatorum, Ducum^ Magnatum, et 
 " aliorum Procerum et Communitatis regni nostri Anglie, in instanti Parliamento nostro 
 " apud Westminster convocato existentium," it has of itself the whole force and effect 
 of an Act of Parliament. 
 
 Therefore, my Lords, the case thus far stands thus : that in the last year, the 21st 
 year, of the reign of King Richard II., at this Parliament so holden, the King, sitting in full 
 Parliament, created this amongst other Dignities, and delivered the Charter to the nobles 
 whom he dignified^ and invested them with the Dignities ; and that the Charter now 
 appearing before your Lordships, appearing first as recorded in the Parliamentary Roll 
 from which I now read, and it appearing also as it may be made to appear from the Rolls 
 of Charters in the Tower, upon the face of it purports to be and is the King's Charter, or 
 Grant, with the assent of the Lords Spiritual and Temporal and the Commons in Parlia- 
 ment assembled. So that this was an Act of Parliament just as much as any other Act 
 that was passed during the reign of King Richard II. The whole question, in order to 
 determine the effect which is to be given to the Judgment which is before your Lordships, 
 is whether that Act of Parliament was repealed. 
 
 My Lords, we have no copy of the Repealing Act itself; I understand it is handed 
 In to your Lordships ; but 1 have very carefully read it since the Committee adjourned 
 yesterday, and it clearly, and in terms as I conceive, repeals not any particular Act of 
 Parliament, nor any grant of Dignities— there is nothing particularly pointing to one 
 description of Act of Parliament or another— but it repeals in clear and express terms 
 the whole of the Acts of that Parliament, with all their circumstances and dependencies. 
 Therefore, my Lords, certainly privia facie the effect of that Act of Parliament would be 
 to repeal the grant of these Dignities by the Act of Parliament of the 21st of Richard II. 
 Then arises the question which was discussed before Parliament in the reign of Henry VI. ; 
 and then comes the Judgment, which having already read to your Lordships and com- 
 mented upon, I need not now further refer to, but which I apprehend is clear and express 
 to the effect that notwithstanding this apparent absolute repeal of all the Acts of Parlia- 
 ment, and amongst others this Act of Parliament of Richard II., the Dignity of the Duke 
 of Norfolk, and the other Dignities that were conferred, not being named in that Act, 
 those Dignities remain untouched and unaffected by this Act Rescissory. 
 
 Lord St. Leonards.— Here is the Act : it is the third chapter of the 1st of Henry IV. 
 " Item. Whereas on Monday next after the Feast oi' the Exaltation of the Holy Cross, 
 " in the 21st year of the reign of the said late King Richard, a Parliament was summoned 
 " and holden at Westminster, and from thence adjourned to Salop, at which town a certain 
 " power was committed by authority of the Parliament, to certain persons to proceed upon 
 « certain articles and matters comprised in the Roll of the Parliament thereof, made as by 
 " the same Roll may appear, in which Parliament, and also by the authority aforesaid, 
 " divers Statutes, Judgments, Ordinances, and Establishments were made, ordained, and 
 " given, erroneously and dolefully, in great disherison and final destruction and undoing of 
 " many' honourable Lords and other liege people of the realm, and of their heirs for ever, 
 « our Sovereign Lord the King, considering the great mischiefs aforesaid, with the advice 
 
( 38 ) 
 
 " and assent of all the Lords Spiritual and Temporal, and of all the Commonalty of the 
 " realm, hath adjudged the said Parliament, holden the said 21st year, and the authority 
 " thereof given, as afore is said, with all the circumstances and dependencies thereupon, to 
 " be of no force or value, and that the same Parliament, with the authority aforesaid, and 
 " all the circumstances and dependencies thereupon, be wholly reversed, revoked, voided, 
 " undone, repealed, and annulled for ever." 
 
 Sir FitzRoy Kelly. — The whole Act of Parliament is before your Lordships, and 
 it seems to me to be quite impossible to doubt that in its terms, as far as those terms go, 
 it annuls the whole proceedings of that Parliament. 
 
 Lord St. Leonards. — It is rather a singular circumstance, that in the Parliamentary 
 edition of the Statutes no notice is taken of the creation of the Dignities ; but there is 
 given very much at length, preceding this repealing Act, all the proceedings of the Act 
 of the 21st of Richard XL, which appear to have been expressly struck at by the Act of 
 Henry IV. 
 
 Sir FitzRoy Kelly. — We do not find in these ancient proceedings all that parti- 
 cularity and exactitude which is sometimes to be found in modern Acts of Parliament. 
 But we do also find that modern Acts of Parliament contain strange omissions, and some- 
 times strange contradictions. But, my Lords, all that I am interested in showing is, that 
 this Act upon the face of it purports to repeal the whole proceedings of that Parliament 
 of Richard II. If it does so, the question as to whether the grant of these Dignities 
 would be repealed depends on whether the grant was by an Act of that Parliament. All 
 that I will say is, that if it remains a matter of doubt whether this was an Act of Parlia- 
 ment, it may much more reasonably be doubted whether the Act of Edward III., creating 
 the Princes of Wales Dukes of Cornwall, was an Act of Parliament, because that Grant 
 or Charter is before your Lordships, and it contains those expressions and words which, 
 in the Prince's case, were held to constitute an Act of Parliament when they appeared in 
 a Royal Charter. I have referred your Lordships to that case, and it is impossible to 
 distinguish the one from the other. Without overruling that case, and saying that this 
 Royal Charter is not an Act of Parliament, it is quite impossible to hold otherwise 
 than that it is and was an Act of the last Parliament of King Richard II. Then comes 
 the operation of the judgment upon it, upon which I have already addressed your Lord- 
 ships. My Lords, I will only say further, with regard to that Judgment, that if it were 
 to turn out— always assuming that the authority of the Prince's Case, as it appears in 
 Coke, is recognised by your Lordships — if it were to turn out that this was not an Act of 
 Parliament, but only an Act done in Parliament, still, when we look at the Judgment of 
 that tribunal, the reasons on which that Judgment was founded would operate quite 
 sufficiently for my purpose here, which is to show your Lordships that this general Act, 
 striking in general terms at acts done, but not naming any particular Dignity or any 
 particular nobleman, had not the efi'ect of an Act of Attainder, and cannot destroy a 
 Dignity duly granted, whether by the Crown or by Parliament, without that Dignity 
 being specially named. So much then, my Lords, for that authority — and a very high 
 authority I apprehend it is — namely, the Duke of Norfolk's Case. 
 
 I will now proceed to trouble your Lordships with the Case of the Earl of Glen- 
 cairn, upon which I think it will appear that there is the direct authority of the Court 
 of Session, sitting under a Royal Commission — a Court which, in those times in Scotland, 
 like the Committee of Privileges now sitting here under the Royal Authority, was a 
 Court of Exclusive Jurisdiction, in all matters of honours and dignities. And your Lord- 
 ships will find that that Court of Exclusive Jurisdiction upon a proceeding, I will not 
 merely say warmly, I might say fiercely, contested between these two noblemen, the 
 Earl of Glencairn and the Earl of Eglinton, and after most able and learned arguments 
 
( 33 ) 
 
 of the most eminent Counsel of the day — that Court of Exclusive Jurisdiction decided that 
 this very Act Rescissory of the time of James IV. did not destroy a Dignity created by 
 James III. at almost the same time — that is, within the very same month, and under all 
 the same circumstances as accompanied the creation of the Dukedom of Montrose, which 
 is now under your Lordships' consideration. 
 
 My Lords, the facts upon which this question arose may be very briefly stated. 
 I have already alluded to the historical events of the time, and your Lordships will 
 remember that between the battle of Blackness and the battle of Stirling, in the month 
 of May 1488, namely, on the 18th of that month of May, King James III. created this 
 Dignity of the Duke of Montrose. Ten days afterwards, on the 28th of the same month 
 of May, the same King James III. conferred the Dignity of Earl of Glencairn upon the 
 Lord Kilmaurs, another faithful subject and attached adherent, standing therefore, with 
 reference to the Monarch, in exactly the same position as the Earl of Crawford, who 
 was created Duke of Montrose. The one creation was upon the 18th of May, and the 
 other was upon the 28th of May 1488. The Earl of Glencairn, like the Duke of Mont- 
 rose, was at the battle of Stirling, and fought in defence of the King ; but he fell in that 
 battle, and was therefore immediately succeeded in whatever honours he possessed by 
 his son. 
 
 He left a son Robert, who survived for some time. I have not the exact date of 
 his death, and he was succeeded by Cuthbert, a grandson of the first Earl. The son of 
 the first Earl was Robert, the grandson was Cuthbert. Neither Robert nor Cuthbert, so 
 far as at this distance of time can be satisfactorily ascertained, actually assumed the title 
 of Earl of Glencairn until some time which is not precisely fixed, but about the year 
 1503, or 1504, or 1505, when, undoubtedly, that is, in the latter year, 1505, this Cuth- 
 bert, the grandson of Alexander the first Earl, sat in Parliament, and sat in Parliament 
 by the title of Earl of Glencairn. 
 
 My Lords, it has been suggested, and was alleged and dwelt upon in various pro- 
 ceedings in relation to the Earldom of Glencairn, that there was some subsequent Patent, 
 that is, a Patent subsequent to the date of May 1488, and prior to 1505, under which 
 this Cuthbert, the grandson, was created Earl of Glencairn. But your Lordships will 
 find, when I refer to the pleadings and proceedings in the Case of the Earl of Glencairn, 
 as decided by the Court of Session in 1648, that that allegation, being found quite 
 groundless, was abandoned by the Earl of Eglinton, by whom it had been preferred. 
 And it will appear, I think, as the clear and certain result of these proceedings, that it 
 was never so ; and that it was so held by the Court of Session, that there never was any 
 other grant of the Dignity of the Earl of Glencairn in that family than the grant of the 
 28th May 1488 by King James III. 
 
 Now, my Lords, these two Dignities having been thus created in the last days of 
 the reign of James III., the last only a fortnight before his death at the battle of Stir- 
 lino-, we come to the Act Rescissory, which was passed in the following month of 
 October, and which is said to have destroyed the Dignity of the Duke of Montrose. It 
 seems to me, my Lords, — it is for your Lordships' consideration,— but it seems to me per- 
 fectly impossible to contend that, with respect to the operation of that Act of Parliament, 
 there is or can be any distinction between these two Dignities. They were, as far as we 
 know, as far as history informs us, the only two Dignities created in the last year of his 
 reign, or at least within the period in question, by James III. ; and if the Act Rescissory 
 had the effect of annulling the one, it seems impossible to doubt (at least, I see no 
 ground upon which a doubt can be raised, though such a doubt has been raised in fact) 
 but that it must likewise have annulled the other. I have now, then, to show your 
 Lordships that de facto, and with the knowledge of the King and all the public autho- 
 
( 34 ) 
 
 rities, the descendants of this Alexander Earl of Glencairn, claiming that title under 
 the patent of May 1488, actually enjoyed the Dignity in question, and did various acts 
 with the title of Earl of Glencairn, founding those acts and their claim to the title 
 expressly and exclusively upon the Patent in question. I shall next proceed to show 
 your Lordships that this very question was raised, whether that Patent was annulled by 
 force of the Act Rescissory, and that it was held, as I have stated to your Lordships, 
 that it was not ; and that upon that decision, and so by virtue of this very Patent so un- 
 annulled and unaffected by the Act Rescissory, the Earls of Glencairn, the heirs of the 
 first Earl ennobled as Earl of Glencairn by this Patent, sat in Parliament, and bore the 
 title and enjoyed the precedency conferred by that Patent for many generations, in fact 
 until the year 1796, when the last Earl who bore the title died. 
 
 Now, my Lords, first, there iS the circumstance of the Earl of Glencairn sitting 
 in Parliament in the year 1505 : that is not a matter in dispute ; I need not, therefore, 
 refer to any evidence in support of that, but I merely state the fact to your Lordships, as 
 it will be hereafter proved. But I will now proceed very shortly to call your Lordships' 
 attention to certain instruments and proceedings in which the descendants of this Alex- 
 ander Earl of Glencairn acted and were recognized as Earls of Glencairn, claiming under 
 the Patent of 1 488. The document that I am now about to refer to is at page 44, and 
 it is also noticed at page 60, of the Claimant's Supplemental Case. All those documents 
 and proceedings to which I am now about to refer are to be found consecutively at page 
 43 and the following pages of the Claimant's Supplemental Case, and also at page 183 
 of the Addenda, but that is the legal proceeding at which I have not yet arrived. 
 
 Now, my Lords, first, there was a Retour of the year 1515, which appears in the 
 narrative of these legal proceedings, and which will have to be afterwards referred 
 to, and which is in these terms — A Retour of the 15th January 1515, by which 
 Cuthbert Earl of Glencairn, the grandson of Alexander the first Earl, is returned 
 heir to the first Earl of the lands of Duchray and Drummond, which lands were granted 
 by the same Patent as granted the Dignity. This and other documents, from which I 
 will read extracts, must be made matter of evidence, but they are not printed, for they 
 would have swelled these volumes to such an extent as would have been extremely 
 inconvenient, to say nothing of the expense attending it. I will read to your Lordships 
 only the material words : I will describe each document, and do it as briefly as possible. 
 The references that I am now making are to pages 44 and 60 in the Supplemental Case. 
 If there be any other references, I will supply them hereafter. " Item, ane Retour 
 " of the 15th of Januar 1515, whereby Cuthbert Earl of Glencairn is served heir 
 " to Alexander Earl of Glencairn, his grandsir (grandfather)." (That Alexander was 
 the first Earl claiming under this Patent.) " The Retour bears the lands to have been 
 " in non-entry since Earl Alexander his decease, who deceased 27 years before the date 
 " foresaid of the Retour." And the Crown thereupon entered Earl Cuthbert at once 
 in the lands in question by seisin and infeftmemt as heir to his grandfather. Now, my 
 Lords, I read this for the purpose of showing that in this document of 1515, not merely 
 Cuthbert is here called Earl of Glencairn, but he is serv^i as heir to his grandfather 
 which grandfather is named as Earl of Glencairn, although he could only have been 
 Earl of Glencairn under this patent of May 1488, because Alexander, the Patentee of 
 1488, perished a fortnight afterwards, and therefore the fact of his being in this instru- 
 ment named as Alexander Earl of Glencairn shows that so near a descendant as his 
 own grandson, only 27 years afterwards, made up his titles to him (as the Scotch call it) 
 as Earl of Glencairn. 
 
 Then there is another Retour of 1516-17, which I am told is referred to at pa^-e 
 60 of the Supplemental Case, which I must describe before I read the only material 
 
( 35 ) 
 
 part of it. It was a Decreet of Reduction of the Retour which I have last mentioned. 
 It IS important to observe that this Retour was reduced upon a controversy in a hostile 
 suit^ that is, an Action of Reduction by those who were interested in reducing it, one or 
 two years afterwards, but not upon any ground at all affecting the right to the Earldom 
 under this Patent of 1488. The grounds on which it was reduced were that a wrong 
 Sheriff was party to it, that some one had presided or acted in the matter who was not 
 entitled to do so— in fact there were various grounds which I need not detail to your 
 Lordships, somewhat of a technical nature. But it is very remarkable that, although 
 it was evidently a hostile suit in every respect in foro contentioso, and if this Patent 
 could have been impeached by the Act Rescissory that would have been at once a clear 
 and decisive ground for annulling this Retour, yet no such ground appears to have been 
 taken. It was annulled or rather reduced (as they call it in Scotland) on the several 
 technical grounds to which I have alluded. And so far from the Patent being in any 
 way impeached, in this very Decree of Reduction, towards the close of it, we find these 
 words : " The year of God 1515 years, upon the lauds of Drummond and Duchra afore- 
 " said, with the pertinents impetrated by Cuthbert Earl of Glencairn, Lord Kiemaurs, 
 " by the decease of the late Alexander Earl of Glencairne, his grandsire :" so that, 
 although the Retour which was founded upon the title of this Patent is thus 
 reduced, it is not upon any ground which impeaches the Patent. That ground would 
 have been decisive if it could have been taken, but it appears not to have been taken. 
 On the contrary, he is there referred to as Cuthbert Earl of Glencairn, becoming so by 
 the decease of the late Alexander Earl of Glencairn, his grandfather. And this is 
 entitled to the more attention, because, as I have had occasion to observe on another 
 Document in this case, these proceedings must have taken place when the Act Rescissory 
 and the Acts upon which it is supposed to have operated were within the living recollec- 
 tion of many persons who must have been parties to these proceedings ; and one cannot 
 imagine that if that Act had been framed at the time to abrogate these grants of dignities, 
 but that that ground would have been set up at once, and would have been held fatal 
 to that Retour ; but on the contrary that point seems never to have been taken. The 
 Retour was quashed upon other and independent grounds, the title itself being in terms 
 set up by the very Judgment of the Court of Session. I am told that this decreet is set 
 out at length in page Q& of the Supplemental Case. 
 
 My Lords, after this quashing of the Retour, we next find a grant under the Privy 
 Seal in favour of William Bishop of Argyle of the non-entries of the lands and baronies 
 of the Glencairn estate, including Drummond and Duchray, on the 28th April, 1550, and 
 referred to in the Claimant's Supplemental Case, in page 44. "A letter made to William 
 " Bishop of Argyle, his heirs and assigns, one or more, of the gift of the non-entries, mails, 
 " farms, profits, and duties of all and sundry the lands and baronies under written " 
 (comprising the entire Glencairn estate) — '^that is to say, the Lands and Barony of 
 " Kilmaurs, &c. ; the Lands, Barony, and Earldom of Glencairn, &c. ; and the Lands of 
 " Duchra and Drummond, with the pertinents lying within the Sheriffdom of Stirling, 
 " of all years and terms that the same has been, or by reduction of retours, seisins, in- 
 " feftments, or by whatsoever other manner of way shall happen to be decerned to 
 " have been and to be in our Sovereign Lady's hand, or her Grace's predecessors, as 
 " superiors thereof by reason of non-entries " (here is the reference which is material), 
 " since the decease of the late Robert Earl of Glencairn, Cuthbert or William Earls of 
 " Glencairn, or any of them, or any other last lawful possessors of the before-named lands 
 " and baronies, &c." That is given at Edinburgh on the 28th April, 1550. This again 
 refers to all the preceding Earls of Glencairn, and finishes with him who was the first 
 
 Earl. 
 
 F 
 
( 36 ) ■ 
 
 I now, my Lords, come to certain other proceedings, which I will only very briefly 
 describe and refer to, though they are really of very high authority, and of much im- 
 portance in this case. Your Lordships are well apprised already of the fierceness with 
 which these questions of precedency were agitated in Scotland as well as in England ; 
 and it appears that, with a view of settling these questions and settling disputes, James I. 
 and VI. of Scotland, by a Royal Commission, in 1606, had a roll or table made of 
 the precedency of the diflFerent Peers of Scotland ; and in this roll, which was made after 
 much consideration, when most of the Nobles interested appeared, and asserted their 
 claims to the precedency to which they might be entitled, the Earl of Eglinton was placed 
 before the Earl of Glencairn. It seems that the Earl of Glencairn either had not been a 
 party to these proceedings, or that he was not at that time provided with certain evi- 
 dences of which he afterwards became possessed ; but we find that, three years afterwards, 
 in the year 1609, he appears before the Secret Council, that is, the Privy Council of 
 Scotland, and he enters a protest against this allowance of precedency to the Earl of 
 Eglinton, and claims to have the roll rectified, and himself to be granted precedency. 
 
 I should state to your Lordships with regard to these questions, whether of pre- 
 cedency or of title to Dignities, that, according to the ancient law of Scotland from the 
 earliest times until nearly the close of the 17th century, they were always discussed either 
 before the Privy Council, called the Secret Council, or before the Court of Session, 
 either of these Courts sitting under the Royal Commission, and for that express purpose. 
 In this case, in the year 1609, it was the Secret Council which was authorised by the 
 Crown to deal with these questions, and it was the Secret Council that prepared the 
 Roll of Precedency of 1606. Then, in 1609, the Earl of Glencairn comes and enters his 
 protest before this Secret Council, and he insists that he had not been a party to the 
 procedings of 1606, and that he was not able then to verify his precedency ; that he did 
 not then possess certain evidences of his rights, which he declares that he has now ready ; 
 and he protests that he should be ranked before the Earl of Eglinton. And it appears 
 that upon that protest and claim the matter was taken into consideration. 
 
 We then find, that at a Parliament holden on the 15th of June, in the year 1609, 
 a Charter had been produced, which is the Charter in question — that is, the grant by 
 James III. to Alexander Lord Kilmaurs, creating him Earl of Glencairn, That is on the 
 28th of May, 1488 — "Annoque regni Jacobi Regis istius nominis tertii 28." That is at 
 page 45. I think that appears in Sir James Balfour's Narrative, " De Jure Prelationis 
 " Nobilium Scotiae." That is interposed in these proceedings (and therefore I trouble 
 your Lordships with it, that I may not have to refer to it again) between the protest and 
 Decreet of the Court of Session. 
 
 Then the Decreet of the Court of Session of the 7th of July 1610, will, I believe, 
 be found in the Claimant's Supplemental Case, p. 45. Now, by that Decreet, this very 
 question was raised as to the Earldom of Glencairn which is at this moment before your 
 Lordships as to the Dukedom of Montrose, namely, whether this Earldom originated in 
 the Patent of May 1488, by James III. The Lords of the Council made this Decree ; 
 it is a very lengthy Decree, and I will only trouble your Lordships with the material 
 parts of it. After reciting the prior proceedings of 1606, and the protest and the 
 evidences which were not originally forthcoming but which were afterwards produced, 
 the Decree proceeds thus : " And trew it is that the said Nobill Lord his predecessor, 
 " viz. Alexander" (this is the first Earl under the Patent of 1488), "than Lord of Kil- 
 " mauris, foirgraudsyris father to the said persewar, was creat Erie of Glencairne be his 
 " hienes predecessor of guid memorie King James the Third, in the moneth of May, the 
 " yeir of God 1 m. four hundreth four score aucht yeiris," i. e. 1488. " Before the q"' 
 " tymenane of the Erlis above mentionat" (that is the Earls of Eglinton) "is able to 
 
( 37 ) 
 
 « schaw the dignitie of an Erledome ather in Parliamet or Counsall, or other lawful! 
 " creatioun, grantit unto thame." Then the Patent itself is referred to as, "Bierand the 
 « said nobill Lord his predicessors, viz. Alex' than callit Lord of Kilmaueris, foirgrandsyris 
 " father to the said nobill Lord, to haif been creat Erie of Glencairne in the moneth of 
 " May, anno 1 m. four hundreth four scoir aucht zeiris, be his Majestties predecessor of 
 " guid memorie King James the Third, lyk as wes cleirlie understand to the saidis Lordis, 
 " and thairfoir they decernit as said is, and ordains Lettres to be direct to the effect 
 '' foirsaid." 
 
 Now, there your Lordships find that at a period when documents were open to 
 inspection which have perhaps now ceased to exist, at a period comparatively recent 
 after the date of the occurrences in question, upon this very point arising, whether the 
 then Earl of Glencairn could trace his title back to the Patent of May 1488, and so 
 entitle himself to precedency as from that date, it was held by the Lords of Council, 
 upon the inspection of all the documents, that the title might be thus referred back to 
 that date, and that the Earldom of Glencairn existed in the then Claimant under that 
 Patent. They therefore held the Patent to be still in force, and upon the ground of the 
 validity of that very Patent they corrected the Roll of 1606, and admitted the then Earl 
 of Glencairn to precedency as from that date. 
 
 Lord Lyndhurst. — Does it appear that the Patent was produced ? 
 Sir FitzRoy Kelly. — Yes, my Lord, it appears in the subsequent proceedings, and 
 I think it may be collected from the language of this instrument. It says, "That this 
 " evidence, if produced in the first instance" (that is before the Commission in 1606) 
 " would have been sufficient to have altered the ranking of the said Noble Lord in post- 
 " poning of him in honour and dignity to the Earls above specified," and so on. The 
 Patent does appear to have been produced at that time ; it is recited in the earlier 
 part of the Decree, which is a very long one. The Patent, therefore, must have been 
 produced at that time, and have formed the foundation of the decision. 
 
 We thus find that, besides those various instruments, the Retour, the quashing of 
 the Retour, and so forth, to which I have called your Lordships' attention, and in all of 
 which the Earl of Glencairn founded his title upon this Patent of 1488, we have this 
 hostile controversy arising in 1606 and 1609 between the Earl of Glencairn and the 
 Earl of Eglinton, the result of which was, that this Court of Privy Council, the persons 
 composing which are named — persons of high consideration and great learning, the Lord 
 Chancellor being amongst them — decided in favour of the validity of this Patent, and 
 thus set aside the Act Rescissory, and held that the Patent was valid as from its date of 
 May 1488. 
 
 Then, my Lords, there is another important document to which I have to call your 
 Lordships' attention, the Royal ratification of the original Glencairn Patent by Charles I. 
 on the 2Ist of July 1637- That instrument will be found at page 46 of the Claimant's 
 Supplemental Case. It begins in the usual way by reciting that his Royal predecessor King 
 James III., " Dei gratia Rex Scotorum, perennis memorise, per suas Literas Patentes sub 
 " suo magno Sigillo, de data apud Edinburgum, vigesimo octavo die mensis Maii, Anno 
 " Domini millesimo quadringentesimo octuagesimo octavo, expeditas, pro causis inibi 
 " specificatis dedit et contulit in quondam Alexandrum Comitem de Glencairn Dominum 
 " Kilmaures, predecessorem predilecti nostri consanguinei Willielmi nunc Comitis de 
 " Glencairne Domini Kilmaures, titulum honorem et dignitatem Comitis de Glencairn 
 " Domini Kilmaurs, omni tempore affuturo nuncupandum, prout dictae Literae Patentes de 
 " data predicta latins proportant." 
 
 Lord St. Leonards. — Is there any copy of that in the printed papers ? 
 Sir FitzBoy Kelly. — I am told that it is in the original Case at page 65. By 
 
 F 2 
 
( 38 ) 
 
 this he recites the creation by James III. of Alexander Earl of Glencairn, " Idque 
 " secundum easdem prefatus quondam Alexander Comes de Glencairne suique successores 
 " continuo a data predictarum Literarum Patentium dictishonore etdignitate Comitis de 
 " Glencairne fruebantur ; et sic per nostros nobilissimos progenitores in Parliamento, con- 
 " siliis publicis, conventibus, et comitiis estimabantur." 
 
 Lord Lyndhurst. — What is the effect of that ? 
 
 Sir FitzRoy Kelly. — It is a recognition by King Charles I. of this Patent as still a 
 valid Patent, and an express declaration by Charles I. that the Earls of Glencairn, 
 including the first Earl claiming under this Patent, had borne the title under this Patent 
 from that time to the date of the grant itself It is the more important because your 
 Lordships are aware that by the law of Scotland, and the usage of conveyancers and those 
 who prepare instruments of this kind in Scotland, a ratification of that kind can confer 
 no title ; it is only important where the title exists before as a recognition of the title. 
 And here it is most important in that point of view, because it is a recognition by the 
 Crown, by Charles I., of course under the sanction of the legal advisers of the Crown, 
 that this Earldom had existed under the Patent in question of 1 488, from the date of 
 that Patent, treating it therefore as perfectly valid, and that the title had been enjoyed 
 under it from that time down to the date of the ratification by Charles I. himself. 
 
 So that your Lordships observe, independently of the judicial proceeding to which 
 I have next to call the attention of the Committee, this Patent of the Earldom of Glen- 
 cairn underwent a very searching investigation ; it passed through every ordeal to which 
 it could possibly have been subjected, with every species of hostile opposition to it by 
 those who were interested in denying its validity, and in every case in which it came 
 under judicial consideration, or under the consideration of any competent authorities, it 
 was held to be a valid Patent, and it was held by those competent authorities that the 
 dignity had been enjoyed lawfully, and had been enjoyed under and by virtue of that 
 Patent from 1488 down to the dates of those respective proceedings. 
 
 I ought to mention to your Lordships, though it has really no great bearing upon 
 this case — but I mention it that I may not be supposed to omit anything that might by 
 possibility tell against the effect of this evidence to which I am referring — that this 
 Decreet of the Secret Council in 1610, by which precedency was restored to the Earl of 
 Glencairn over the Earl of Eglinton, was itself afterwards quashed and reversed. The 
 Decreet of 1610, which corrected the Decree of 1606 (which Decree of 1606 had placed 
 the Earl of Eglinton before the Earl of Glencairn), and which on the inspection of the ' 
 Patent, and on the investigation of the claim, restored the Earl of Glencairn to his pre- 
 cedency and placed him before the Earl of Eglinton, was afterwards reversed, but upon 
 grounds quite unconnected with the validity of the Patent. 
 
 Lord Lyndhurst. — By what tribunal was it reversed ? 
 
 Sir FitzRoy Kelly. — By the same tribunal, the Secret Council. It was upon these 
 grounds : — It appears that, besides the Earl of Eglinton, precedency had been given to the 
 Earl of Caithness, and I believe to the Earl of Montrose and to certain other Earls, before 
 the Earl of Glencairn. The effect, therefore, of placing the Earl of Glencairn before 
 the Earl of Eglinton, was also necessarily to place him before the other Earls, of Caithness 
 and Montrose ; and it appeared upon a subsequent proceeding that those other Earls 
 had not been made parties to the proceedings in 1610. The consequence was that there 
 had been an adjudication upon the point of precedency made against them in their absence 
 when they had no opportunity of being heard ; and accordingly on that ground, but on 
 that ground only, the Decreet of 1610 was reversed, and consequently the Roll of 
 1606 stood in force, which gave precedency to the Earl of Eglinton over the Earl of 
 Glencairn ; and it was probably that reversal, proceeding upon the ground, and upon the 
 
( 30 ) 
 
 ground only, which I have stated, which led to the subsequent controversy which was 
 determined finally, or at least in a way which ought to have been final, in 1648, because, 
 the Earl of Eglinton being thus again placed in the Roll of Precedency before the Earl 
 of Glencairn, the Earl of Glencairn at a subsequent period (I think it was either just 
 before or early in the year 1648) instituted a proceeding by summons, which terminated 
 in the Decree of that year, which constitutes so important an authority in this Case. 
 
 I should state to your Lordships that in now calling the attention of the Com- 
 mittee to these proceedings I should premise by observing, that at the time of the 
 preparation of the original Case we were not aware of the existence of any such pro- 
 ceedings. The present Earl of Eglinton, it is impossible to doubt, from a love of justice 
 and for the advancement of justice only, has most courteously and liberally placed his 
 richly-filled Charter-chests, not merely at the disposal of the Earl of Crawford but of 
 the noble Duke the Duke of Montrose, who conceives that he is interested in defeating 
 this Claim. It is by the investigation into those Charter-chests, for which we are thus 
 indebted to the courtesy and liberality of the Earl of Eglinton, which I am happy to take 
 this opportunity of very gratefully acknowledging, that we have found this document 
 which contains the pleadings and the whole of the proceedings in the Cause down to the 
 ultimate Decree, and with so much particularity as to enable me to place your Lordships 
 in full possession of all that is necessary to render this Case completely intelligible and 
 to give full effect to the Decree itself. 
 
 Your Lordship will find these proceedings in the Addenda to the Supplemental 
 Case of the Claimant, which begins with various matters which I will not trouble your 
 Lordships by reading ; but at page 187 there is the Summons of James Earl of Glencairn 
 against Alexander Earl of Eglinton and others, of the 16th of August 1637- This it is 
 that begins the suit which terminates by the Decree of the Court on the 19th of January 
 1648. Now this Summons, which occupies several pages, is a very lengthy document, 
 and there are but a few pages to which I will trouble your Lordships to refer. The first is 
 at the top of page 188, in which the Earl of Glencairn says, " and quhilk William now 
 " Earl of Glencairne, persewar, is also successor in the forsaid sty 11 tittill and dignitie of 
 " Erie of Glencairne to umquhill Alexander Erie of Glencairne Lord Kilmoweris, his 
 " forgrandguidshires grandschir, in whom the forsaid honor tittill style and dignitie of 
 " Erie of Glencairne Lord Kilmoweris was conferrit given and granted be our maist 
 " nobill progenitor umquhill King James the 3rd of worthie memorie, be verteu of and 
 " conforme to ane Chartour and Lettre Patent of the forsaid Dignitie grantit under the 
 " Great Seall of this our Kingdome, quherby the said umquhill King James 3rd did mak 
 " and creat the said Alexander Erie of Glencairne and his aires in all tyme coming 
 " perpetualle therefter Erles of Glencairne and Lordes of Kilmoweris; and to and in 
 " favoures of the quhilk William now Erie of Glencarne, persewar. We by our Lettres 
 " of Ratificatioun under our Great Seal of the dait the 21 of July 1637," and so forth. 
 So that your Lordships will observe that this Summons, the foundation of the suit, is 
 itself founded, and founded exclusively, upon the Patent of the 28th May 1488, and he 
 puts the cause of his claim to precedency before the Earl of Eglinton entirely and 
 exclusively upon the ground of that Patent. 
 
 That we find at page 189, after narrating the former proceedings, and insisting 
 that this Patent, if it had been produced in 1606, would have entitled him to precedency, 
 he says, " And treu it is that the saidis perseware his predecessoures, viz. Alexander than 
 " Lord Kilmoweris, forgrandshire to the said persewar, was creat Erie of Glencairne 
 " be our said Royall predecessour of worthie memorie King James the Third, uponne the 
 " 28 of May 1488 yeares, be werteu of the quhilk patent Cuthbert Erie of Glencairne 
 " oy" (that is grandson) "to the said Alexander, first resauer thereof (the said Alexander 
 
( 40 ) 
 
 " having beine killid at the field of Stirling some ten dayes after the dait thereof, and 
 " Robert sone to the said Alexander died shortlie after his fayther), is designitt be decritt 
 " of the Lordis the 12 of March 1504 Erie of Glencairne, and satt in Parliament 
 " holden be King James the Fourt, anno 1505, as Erie, and was so acknowledgit be him 
 " and be the Estattis of Parliament, in quhilk Parliament Hew Lord Montgomerie" — and 
 then the inferior claim of the Earl of Eglinton is there stated. 
 
 Now this is also very important, because it shows that by this Summons not only 
 was the validity of this Patent of May 1488 expressly put in issue, but it was also 
 distinctly alleged and put in issue that the Earl, the grandson Cuthbert, the Earl of 
 Glencairn who sat in Parliament in 1505 as Earl of Glencairn, sat in Parliament not by 
 virtue of any subsequent creation about the time of 1505, but as grandson and heir of 
 his grandfather Alexander, the first Patentee. That, my Lords, is extremely important 
 with reference to a mistake into which Lord Loughborough appears to have fallen, when 
 the case of the Earldom of Glencairn was before the Committee of Privileges, on the 
 claim of Sir Adam Fergusson of Kilkerran. I will not trouble your Lordships further 
 with the Summons, which proceeds at great length to state the case of precedency, but the 
 substance of it all is that the Earl of Glencairn claims precedency under the Patent of 
 1488, and insists also upon the sitting in Parliament under the Patent of 1505, of Cuthbert 
 the grandson of Alexander the first Earl. 
 
 Then, my Lords, there are several pages of Minutes of Proceedings. There is the 
 appearance of Counsel for the different Earls, Eglinton, Caithness, and others, who appear 
 to have been interested in this question ; upon which I will only observe that all that 
 Scotland then possessed of legal talent and eminence at the Bar — some of the greatest 
 men that ever were distinguished at the Scottish Bar and on the Scottish Bench — appear to 
 have been enga ed in this argument. Andyour Lordships will therefore probably think 
 I am warranted in saying that no point that could have been taken upon the one side or 
 the other was neglected, and that no argument ever was or ever could be conducted more 
 for the interest of those for whom those very eminent Counsel appeared, and consequently 
 that it is impossible not to look to this decision as one which proceeded upon all the argument 
 and upon all the consideration which any case before any Court of Justice could undergo. 
 
 I pass, my Lords, from the Summons over a great number of Minutes of various 
 proceedings to the top of page 195, where we first find what I am now principally inte- 
 rested in pressing upon your Lordships' attention. On the 19th of January 1643 we find 
 that Minute of Proceedings. I may observe here that this process was going on from 
 1637 to 1648. It seems therefore quite impossible that anything that learning or industry 
 could rake up that could have affected the case on the one side or the other could have 
 escaped attention; for we find that, the proceedings having commenced in 1637, the 
 Counsel are in January 1643 putting forward their pleas in law. 
 
 Lord Brougham. — Those learned persons were much longer in office then than 
 they are now. I see there is the same Lord Advocate in 1643 as there was in 1637. 
 
 Sir FitzRoy Kelly. — Much longer than now. There was an instance, my Lord, 
 of a very distinguished Attorney-General in our own time, who held office as long a 
 time apparently as this fortunate Lord Advocate. 
 
 Lord Brougham.- — Who is that ? 
 
 Sir FitzRoy Kelly. — Lord Campbell. I believe he was Attorney- General quite 
 as long. 
 
 Lord Chancellor. — I believe Lord Mansfield was Solicitor-General for nearly as 
 many years. 
 
 Sir FitzRoy Kelly. — Those were happier times, and very remote too. We find 
 that " Stewart" is alluding to Earl James's retour. It says, " Stewart for the persewer 
 
( 41 ) 
 
 " for instructing of his title and pedigrie lybellit, producit Earl James his retour, quhairby 
 " he is retourit air to Erie Alexander, to quhome the Patent is grantit anno 1488 ; and 
 " cravit that the summondis may be mendit in the enumeration of the degreis conforme 
 " to the retour beiring Erie Alexander to be foirgrandsiris forgrandsir to Erie James." 
 And then, " The Lord Advocate and Nicolsone for the 3 noblemen defendris, compeirand 
 " be the Erie of Eglintoun, Caithness, and Mpntrose, allegit absolvitour, and that the 
 " persewer cannot be hard to crave preference be vertew of this Patent grantit to Erie 
 " Alexander, because the samyne is annullit and rescindit be diverse Actis of Parlia- 
 " ment, as in the 5 Act of King James the 4, quairby all donatioun of landis, creatiounis 
 " of new digniteis, ar annullit, grantit be his Majesties father after the 2nd February 
 " 1487, and the cans expressit in the 5 and 14 Actis in the Blak Book, because the 
 " samyne war granted for assisting his father in perverse counsel at the field of Stirling, 
 " quhilk is the reasone of the granting of this Patent, as the samyn beires, ffor the said 
 " Alexander his cuming to the armie at Blackness with his friendis before the field of 
 " Stirling, and the same being rescindit the persewer cannot ascryve any richt thereto." 
 There is an allusion before to the Earl having been in the army at Blackness. And then 
 it goes on to say, " Especiallie seeing Cuthbert, sone to Alexander, satt in Parliament 
 " th%t same year, in anno 1488, as Lord Killmaweris, when the Act Rescissorie was voted, 
 " (and) in anno 1492 and 1498, resavit infeftmentes under the Great Seall as Lord Kill- 
 " maweris, quhilk must imply ane direct passing from the Patent, and acquiescing to the 
 " rescissing thereof." Then there is the conclusion. 
 
 Now, my Lords, this is most important in many points of view, because it shows 
 the very same objections were raised by these eminent Counsel to the validity of the 
 Patent of the Earl of Glencairn which are now raised in the papers of the Noble Duke, 
 who has been permitted to lodge papers in this case, to the corresponding Patent in 
 favour of the Duke of Montrose. First and foremost naturally comes this. A certain 
 Act Rescissory is brought to bear upon the grant of the Patent ; and it is insisted that, 
 by the very express terms of that Act, the Patent is annulled. But also your Lordships 
 observe that it is urged by the Counsel that, after the date of the Patent creating the 
 head of this family Earl of Glencairn, the head of this family actually sat in Parliament 
 by the inferior title of Lord Kilmaurs — the very argument that is used, or that will be 
 used here, that the Earls of Crawford, the successors of the Duke of Montrose, who, as 
 we say, were entitled to this Dukedom, sat in Parliament by the inferior title of Earls 
 of Crawford. And your Lordships will find in other parts of these proceedings other 
 arguments identical with those by which I may say alone, as far as regards the Act Res- 
 cissory and the validity of the Patent, this Case on behalf of the Claimant can be met. 
 It was by those very same arguments that the Case on behalf of the Earl of Glencairn 
 was met from the very beginning to the end of these proceedings. 
 
 Lord Brougham. — When did Alexander die ? 
 
 Sir FitzRoy Kelly. — Alexander, the first Earl, perished a fortnight afterwards. 
 He was made Earl of Glencairn on the 28th of May, and he fell at the battle of Stirling 
 on the 11th of June, 1488. 
 
 Lord Brougham. — Lord Kilmaurs sat then as his successor in the Peerage. 
 
 Sir FitzRoy Kelly. — Yes, Lord Kilmaurs sat in the very next Parliament of that 
 year, the first Parliament of James IV., under the inferior title of Lord Kilmaurs, not 
 assuming or even claiming the title of Earl of Glencairn. 
 
 Then we have an answer to that by Stewart, with which I would not trouble your 
 Lordships, but that, if I were to omit it, it might be said that I had omitted an argument 
 against my Case which it would have been more candid to deal with. Your Lordships 
 will find that, in the distress to which at times the Counsel for the Earl of Glencairn 
 
( 42 ) 
 
 Avere reduced by the pressure of their opponents by virtue of the Act Rescissory, they cer- 
 tainly resorted to a number of very refined arguments ; and amongst others, they seek to 
 draw a distinction between the Earldom of Glencairn and the Dukedom of Montrose, 
 and to insist that the Patent in favour of the Earl is valid, though the Patent in favour 
 of the Duke has ceased to be so. They insist amongst other things upon the Duke 
 having taken a more limited interest in the title, namely, an interest for life, which has 
 reference to a point which has yet to be considered. Your Lordships will, however, I 
 think, be of opinion, with reference to those arguments, that, whatever Counsel may have 
 urged in those days, it is quite impossible to make any distinction between the validity 
 of the one Patent and the validity of the other — that the case of the one and the case of 
 the other are perfectly identical. However Stewart says this : " As for the Acts of 
 " Parliament annulling giftes and donations, the samyne is onlie of creations of new 
 " dignities prejudiciall to the Crown, of which nature this Patent of Erie cannot be 
 " esteemt, thair being many Erles created of befoir, or dignities or donations prejudiciall 
 " to the Crown, quhilk must onlie fall under the compas of the Act, as the Duik of 
 " Montrose, thair not being any Duik befoir him bot of the lyne royall." That is an 
 argument upon the word " new," as if the creation of new Dignities meant not the creation 
 of a Dignity which was new to the grantee, but the creation of some Dignity whicl^ was 
 new to the usages of the kingdom of Scotland. 
 
 Lord Chancellor.— How is that in point of fact? Were there no Dukes of Scot- 
 land but of the Blood Royal ? 
 
 Sir FitzRoy Kelly. — No, none. There were the Dukes of Albany and others of 
 the Blood Royal ; but the Dukedom of Montrose was the first Dukedom ever conferred 
 upon a subject not immediately of the Royal Blood. I shall not of course stop to con- 
 sider that, because I can hardly suppose that your Lordships would put that limited 
 construction upon this Act of Parliament, and suppose that it struck at Dukedoms and 
 not at Earldoms — because a Dukedom was no new title — in truth it was no more new 
 than an Earldom ; there were Dukes of Albany and various other Dukes already of the 
 Blood Royal, and that would prevent the title from being new, though it may in one 
 sense have been new, as being for the first time conferred upon a subject — that was 
 merely a fine-drawn distinction which suited the purpose of the very ingenious Counsel 
 who was arguing the Case. 
 
 Then he proceeds, " And in King James the 4th his second Parliament, quhair 
 " that Act of the first Parliament is explanit, their is no mentione of dignitie, but only 
 " donation of landis, with ane certification, quhilk posterior Act of explanatorie of the 
 " first must be ane passing from the first for quhat is not ratifiet in the second ; for it 
 " seames that cam efter the Duik of Montrose his laying down his dignitie." Here 
 again, my Lords, there is a supposed fact alluded to, but there is no proof that it was a 
 fact. It does not appear to have been a fact, according to the evidence which will be 
 laid before your Lordships. " The prior Act was satisfeit and rehersit passed from, 
 " except donation of lands and offices." So far, of course, I cannot adopt this argument, 
 inasmuch as it seems to draw a distinction between the Dukedom of Montrose and the 
 Earldom of Glencairn ; nor do I apprehend that your Lordships will hold that there is 
 any ground for any such distinction. The Duke could only have laid down his Dukedom 
 by resignation, unless the Act Rescissory at once destroyed it ; and there is not only no 
 proof of resignation, but the very contrary is proved by the documents in the Cause. If 
 there had been any proof of resignation, there would be some foundation for this argu- 
 ment; but as the Duke of Montrose or the Earl of Crawford was not a party to this 
 proceeding, there was, of course, no one to correct this misstatement of fact on the part 
 of the Counsel, and therefore I will not dwell on it further. The Counsel then proceeds 
 
( 43 ) 
 
 to urge what it is for me to insist upon as good and correct reasoning. He says, " Nether 
 " can the cans of rescissioun mentionat in the Actis of the Blak Book militat againis 
 " this Patent, because the samyne was grantit for assistance to his Majesteis persone. 
 " Nather can it be qualefeit that Erie Alexander was pertaker, or had any hand in that 
 " evill counsell, he having onlie come to Blacknes to the armie about aucht days befoir 
 " the battell of Stirling ;" and so on. Then he goes on to say, " And albeit Cuthbert sat 
 " in Parliament in the trublsum tymes efter King James 3 deceis, that could not debar 
 " him from assumeing that deu place quhairto he had a richt quhill he pleisit, thair 
 " being no claus irritant in this Patent to make him lose the benefit thereof. He opponis 
 " the Revocation maid be King James the 4 in the end of the 6 Parliament, with advyse 
 " of the Esteatis (which) revokis all Actis and Statutis done in prejudice" — and so on. 
 
 That refers to another Statute, which I shall have occasion to bring to your Lord- 
 ships' attention (but I hope it will not be necessary to go into that question), if this Act 
 Rescissory were to be held to operate against the Dignities of the Duke of Montrose or 
 of the Earl of Glencairn. The Act Rescissory is itself repealed. Your Lordships will 
 find that there was an Act of Parliament in the year 1503, by which, if the Act Rescis- 
 sory had any force at all, I shall submit, and with much confidence, to your Lordships, 
 that that Act itself was entirely repealed. It is here referred to. I will not deal with 
 it further now. Then he says this : — "He opponis the Revocatioun " (that is, he opposes 
 the argument as to the Revocation) " maid be King James 4 in the end of the 6 Par- 
 " liament, with advyse of the Esteatis, (which) revokes all Actis and Statutis done in 
 " prejudice of the Kirk, saule, or Crown, upon remorse, within the quhilk Revocatioun, 
 " any Actis done in prejudice of these who had assisted his father in persone must be 
 " apprehendit, speciallie seeing in the yeiris of God 1505 they are sitting as Erlis, res- 
 " savit as Erlis, and acknawledgit sua be King and Parliament, and yesaveing infeft^ 
 " mentis, quhilk cannot be ascryvit to no other richt bot this Patent, nather war ther 
 " any other title. And to the reductioun, the samyne is onlie of landis quhairintill Alex- 
 " ander was never infeft, nor Cuthbert retourit to landis, but King James 3 deit last 
 " vest^We Cor one, and not richtlie recoverit conforme to the lawes of this cuntrie ;" and 
 so forth. Then he goes on to say, " Bot he opponis the sitting in Parliament in anno 
 " 1505, efter the Revocatioun in anno 1503, as Erie, quhilk most be ascryvit to the first 
 " Patent, being vdth consent of the King and Parliament, wha was the interjsreturis of 
 " thair awn actis ; for any intromission [intermission] was only in respect of the tymes ; 
 " and it is ordinar to Kingis to revive honoris that had sum intromission, as war done to 
 " the Erie Nithisdaill after the restoring of the Erie of Mortoun." 
 
 I do not wish to detain your Lordships upon these points, but it will clearly 
 appear that at every stage of the argument both these points were put forward on the 
 one side and on the other. On the one side they allege the rescission or annulling of 
 these dignities by the Act Rescissory and the sitting in Parliament in 1505, as was 
 alleged, by a lower title. That was urged on the one side and answered upon the 
 other throughout the whole of the argument. We find immediately afterwards, at the 
 bottom of the same page, that Nicolsone gives an answer to this. He says, " And to 
 " the secund member of his reply he opponis the Actis of Parliapient, and contendis that 
 " this creatioun in the Patent must ever be thought new, being new to the ressauer and 
 " ergo revokit." As to its being new, no doubt it was a new dignity for a Baron to be 
 made an Earl. He received a new title, and there is no doubt that, if it rested on the 
 word " new," that Act must have applied to this title as well as to any other. " And 
 " if this creatioun of Erie to the House of Kilmaweris be not new, nae mair can that of 
 " Duik to the House of Montrose, thair having been many Duikis in this nation before 
 " his creatioun. And opponis cleirlie prejudiciall to the Crown, the tyme and cans of 
 
 G 
 
( 44 ) 
 
 " the granting of the Patent being for assisting of the King at Blacknes, and from thence 
 " to Stirling, quhilk is the caus quhairfoir the sayme is annullit, at length sett down in 
 " the 14th Act of King James the 4 in the Blak Actis, for his assistance to his Majestie 
 " in perverse consall, contrair the common guid of the natioun. And for ony of 
 " Alexander his successoris sitting as Erlis be connivance of the King or Parliament, he 
 " does not quarrell the samyne, hot to quarrell this Patent annulled. And to the Revo- 
 " catioun 1503, thair is no express revocation of thair Actis quhairby the Actis are 
 " annullit, bot the vrordis ar devisit, sic Actis as ar prejudiciall to Kirk, Crown, or saull." 
 And then there is a great deal more reasoning which I will not detain your Lordships by 
 going through. 
 
 Lord St. Leonards. — How do you understand the conclusion of that sentence ? 
 Further down he says, " And be ratificatioun his Majestie did promeise to ratifie the 
 " Patent in the nixt Parliament thairefter, quhilk being socht from his Majestie after 
 " dew information was refnsit in the lait Parliament." 
 
 Sir FitzRoy Kelly. — He goes on to say, "Bot sua it is that thair Actis ar standing 
 " Actis, and cannot be imployit under the revocation, never being deleit. And to the 
 " alledgit innovatioun, and passing fra the first revocatioun in the first Parliament be 
 " the subsequent Act in the 2 Parliament, that cannot be respected, except the first war 
 " repellit be the secund, for it is ordinair that two Actis for any purpois may have thair 
 " awin sewerall ordinancis, and they are not destructive of the uther." That, my Lords, 
 merely refers to a further Act of Parliament to which I have partially alluded, which 
 will be brought under your Lordships' attention, but by which referring to the first Act 
 Rescissory there is a further annulling of all grants of lands, and the Act Rescissory is 
 referred to as if it contained only a nullity of grants of land ; and there is an entire 
 omission of the words " creation of new dignities." It is to that that the argu- 
 ment refers. 
 
 Lord St. Leonards.- — I suppose these words refer to the ratification of the title. 
 It is stated that King James " promised to ratify the title in the next Parliament there- 
 " after, which, being sought from his Majesty, after due information was refused in the 
 " late Parliament." 
 
 Sir FitzRoy Kelly. — That will be the argument, perhaps ; but that is all a fiction, 
 nothing of the kind ever took place. There is a very great deal that I do not wish to 
 detain your Lordships with that the counsel has argued throughout the case. Your 
 Lordships will see the weight of it in a moment. It was to put an end to the claim of 
 precedency. They said that the Earldom of Glen cairn was to be dated only from the 
 sitting in the Parliament of 1505, which was posterior to the sitting in Parliament by 
 the Earl of Eglinton. 
 
 Lord Lyndhurst.—ln what page is the Judgment ? 
 
 Sir FitzRoy Kelly. — The Judgment, at least all that is set forth (for the original 
 Instrument is a document tha would reach from here; S . Paul's) — the material parts 
 of the Judgment are set forth in a note at page QQ of the Claimant's Supplemental Case. 
 The part to which the Noble and Learned Lord was alluding is this : " And to the last 
 " point foundit upon the Revocation " (it should be ratification) " purchest from Kino- 
 " Charles, that cannot be respectit, being, first, purchest surreptitiouslie, suppressa veritate> 
 " not having notified to His Majestie that the Patent was revoked in Parliament : — Second 
 " purchest upon sinistrous informatioun that the Earl of Glencairne was still in possession 
 " of that title after the Patent, and sua estiraat in Parliament and Counsallis : — 3. That 
 " confirmation cannot tak away ane Act of Parliament quhilk does revok that Patent to 
 " make the samyne revive, except it war done be his Majestie with advyse of the Esteatis ; 
 '' and be ratification his Majestie did promeis to ratifie the Patent in the nixt Parliament 
 
[ 45 ) 
 
 " thairefter, quhilk being socht from his Majesty after due informatiounwas refusit in the 
 " lait Parliament." Now all that is matter of argument. 
 
 Lord St. Leonards.— I take it that this is a statement of fact. 
 
 Sir FitzEoy Kelly. — I was going to say that it is argument to some extent, but it 
 assumes the fact that this Charter of Charles I. had been surreptitiously obtained, 
 " suppress^ veritate," that is, that King Charles I. had not been informed that this Patent 
 of 1488 had been revoked, as this Counsel said it was revoked, by the Act Rescissory. 
 That is a point which is now perfectly immaterial. There really is not the slightest 
 ground for supposing that King Charles I. granted that Patent of confirmation in 
 ignorance of the Act Rescissory. 
 
 Loi'd St. Leonards. — What I was calling your attention to was this statement : 
 " And be ratificatioun His Majesty did promise to ratifie the Patent in the nixt Parlia- 
 " ment thairefter, quhilk being socht from his Majestie after dew informatioun was 
 " refuisit in the lait Parliament." Is that a fact, or not ? 
 
 Sir FltzRoy Kelly. — There is no more proof of the fact than if he had said that 
 this gentleman had committed high treason. The probability is, however, that there 
 was no ratification in Parliament because if there had been that would have put a short 
 end to the whole controversy. 
 
 Lord St. Leonards. — I am speaking about the King's promise. 
 
 Sir FitzRoy Kelly. — My Lords, in these very lengthy pleadings your Lordships 
 will find a very great number of facts either asserted or surmised, of the truth of which 
 I can possess no knowledge, and indeed the truth or falsehood of which it is impossible to 
 ascertain ; but with regard to this statement one would suppose that, if the fact were that 
 any confirmation of this Patent by Charles I. had been granted by Parliament, it would 
 then have been made to appear, because it would have been a short end to the con- 
 troversy. 
 
 Lord St. Leonards. — I am asking the converse of that, whether the fact was that 
 it was refused in Parliament ? 
 
 Sir FitzRoy Kelly. — I have no notion whether it was or not, but I should submit 
 to your Lordships that that question is entirely immaterial here. Supposing it to have 
 been refused in Parliament, it would only leave the case where it was, that the Earl of 
 Glencairn must rest upon his title under the Patent of 1488, and it only might have 
 raised a prejudice against him that he should by some false or unfair representation have 
 obtained this confirmation of his Patent by King Charles L 
 
 Lord St. Leonards. — In page QQ you will find that the King does promise that he 
 will ratify it in the next Parliament. That statement is so far correct that it appears 
 that he did make that promise, but the fact actually is that no such ratification in Parlia- 
 ment took place. Those are the facts. 
 
 Sir FitzRoy Kelly. — That is so. Of course these are matters of which, at this 
 distance of time, we can obtain no correct information. 
 
 Lord St. Leonards. — We have the Charter of Confirmation, which contains this 
 promise at the end, and we have the absence of any Act of Parliament to ratify it. 
 Therefore probably that statement is correct. 
 
 Sir FitzRoy Kelly. — It very likely may be : of course I cannot argue it one way or 
 the other, as I possess no personal knowledge upon the subject ; but certainly it would be 
 better for my case if your Lordships were to suppose that the application had been made 
 to Parliament, and had been refused, because it would give still greater force to the 
 decision^, that, notwithstanding the refusal of that application to Parliament to confirm 
 the Charter of Charles, which was a confirmation of the Charter of James III., still the 
 
 G2 
 
( 46 ) 
 
 Charter of James III. was held to confer a good title, and to establish the claim to the 
 precedency which was in question. But how the matter is in point of fact 1 cannot of 
 course pretend to know. 
 
 We find, however, in answer to this argument, that Stewart says, " he opponis this 
 " Patent quhairto he ascryvis his possesioun in sitting at Parliament be the acknowledge- 
 '' ment of King and Esteat and ratificatioun thairof as Erlis, quhilk most be be vertew of 
 " his prior Patent, their being no uther richt quhairby he can enjoy the dignitie." 
 
 Your Lordships will find, further on in this lengthened process, that it clearly 
 appears that, although the Earl of Eglinton insisted that the sitting in Parliament was 
 by virtue of some other and subsequent Patent, he was called upon by the Court, either 
 to verify that by the production of this subsequent Patent itself, or upon the oath which 
 it seems by the law of Scotland might be administered to his opponent the Earl of 
 Glencairn. No subsequent Patent was produced or could be produced, and the Earl of 
 Eglinton did not think fit to resort to the test of administering an oath : the point therefore 
 was withdrawn and abandoned by the Earl of Eglinton and his Counsel before the Court. 
 And the single point that was finally referred to them for their decision was whether 
 this Patent was valid, or whether it was revoked by the Act Rescissory. 
 
 Now, my Lords, we find that Stewart gives the answer which I am now about to 
 read from page 197 of the Addenda. There is a great deaL'more of pleading, and then 
 towards the middle of page 197 there is the answer of Stewart, " That the Defender hes 
 " no prejudice be the mending more nor gif he had replyed that whilk is mendit ; and 
 " also that this Patent cannot come within the compass of the Act, becaus not prejudicial! 
 " to the Crowne, whilk is only the ressoune and caus of the making and granting the 
 " Act 1488 ; and the mind of the lawgiver is declared be the Kings Majestie and 
 " Parliament in anno 1505, acknowledging Cuthbert to be Erie, and be is sitting constat 
 " de me^fe legislatoris, special ie seeing it cannot be schowyne, neyther be story nor uthyr- 
 " wayes, that Erie Alexander was pertaker of the perverse counsall given to the King, 
 " this perseweris predecessoris being in possessioune be vertew of the Patent." Then 
 there is much the same argument that I have ventured to offer to your Lordships, that it 
 cannot be called " perverse counsel, or prejudicial to the Crown," that the King should 
 grant a Dignity by Patent to one of his loyal subjects. 
 
 Then the Advocate answers, " He craves the benefit of the Lords' Interloquitor, in 
 *' respect the persewer does not insist as the Summondis stood unmendit the time of the 
 " Interloquitor ;" and so on. " And to the Patent, it is cleir the samyne fallis within the 
 '* Act, being granted ^pro asseestentia,' as the samyne beires, and remaneing wdth his 
 " Majestie during the discorde, and swa will fall under the Act, the ressaver of the Patent 
 " being present at the feild, whilk is the caus of the making of the Act and reasone of the 
 " Estaittes their procedor against them wha did assist the contrair, to the more guid of 
 ^' the countrie." There is the same argument which is used here as to sitting in Parlia- 
 ment as successor to the first Earl by a lower title. So that your Lordships here ao-ain 
 observe, that all these arguments for the construction of the Act Rescissory against the 
 validity of these Dignities which are so very ably put forward in the adverse cases laid on 
 your Lordships' table, are here used by these Counsel in the time of King Charles I. 
 against the validity of the Patent of the Earl of Glencairn, and in support of the operation 
 upon that Patent of the Act Rescissory. 
 
 Stewart says, "The Act is repelled be ane posterior Act, and the perseweris 
 " predecessoris diutina possessio ; and quhere the law is dubius recurrendum ad pos- 
 " teriores leges to cleir any prior lawes, and quhere the law is hard recurrendum ad 
 " legem henigniorem, and therefore contendis that the Act rescind es nothing but what 
 " is prejudicial to the Crowne, and the law is interpreit be the posterior sitting as Erie 
 
( 4? ) 
 
 " and must be ane interpretatioune in favoris of the sitter conforme to his owne place ; and 
 " posterior cariage of the Prince will shew that he had remorse for his faytheris death, 
 " and consequentlie would not doe any deid in prejudice of these wha had been killed 
 " in defence of his faytheris persona. And opponis the perseweris 160 years' right, and 
 " ratified by King Charles;" and so on. 
 
 Now this pleading appears to have been lodged in the year 1643, and then there 
 are various proceedings ; and it is rather curious to observe that in the month of January 
 1643 "my Lord Kerse declaired he wold declyne himself and wold not voite in this 
 " caus, becaus he wes not satisfied whidder he was imployed in this caus be the Erie of 
 *' Eglintowne or not :" so that, in those days, it seems questions arose whether persons 
 who had been Counsel in a cause could afterwards be judges in the same cause. 
 
 Then there is an Interlocutor which protracts the proceedings ; and there are 
 various proceedings and applications for time, and time is over and over again granted, 
 until we come to page 201, where we have the pleading by Nicolsone for the Earl of 
 Eglinton, in which Nicolsone " protested that his objectioune against the enteres may be 
 " reserved to him to be alledgit after the discussing of the patent. The perseweris 
 " procuratoris protested in the contrair . Nicolsone allegit absoluitor frome the reasone 
 " in swa farr as the samyne is foundit upon the patent granted be King James the 3, in 
 " anno 1488, becaus that patent is annulled be ane proclamatioune maid be King James 
 '' 4 the yeere the samyne was granted, and declaired null as falling under the compas of 
 " the said proclamatioune maid be the said King James 4, and Act of Parliament whereby 
 " all creatiounes of new dignities granted to any persone "■ — and then this Act of Parlia- 
 ment is again recited. " And so this Patent being granted . . to the perseweris predecessor for 
 " his assistance to the King by his evil counsel, as the motive cause of the granting thereof 
 *' beares, and being granted ' pro assistentia et consilio et adventu ad exercitum de Blaknes,' 
 " King James 3 having gone within some few days thereafter to Stirling, quhere he was 
 " killed, cleirlie evinces that the ressaver of the Patent was one of those evil counselloris ; 
 " and the evil counselloris are sufficientlie cleired by the 14 Act of King James the 4, and 
 " all done in their favoris annulled by the 17th Act therefter : therefore the said Patent 
 " being annulled cannot be ane ground to inferr the reasone lybellit, especiallie the said 
 " Alexanderis successoris having acquiesced to the annulling therof by their sitting in 
 "■ Parliament as Lordis, which behooved to be in obedience of the said Act." There is a 
 repetition again of the same argument which is urged here, of the sitting in Parliament, 
 by the successor of the first Earl, by the lower title of Earl of Kilmaurs. 
 
 Lord Chancellor. — What do you understand that last passage to mean ? 
 
 Sir Fit z Roy Kelly.— It means that this subsequent Act is also clearly in its terms 
 applicable to this Grant by King James III. It is as if one were to say, the first Act 
 applies to this Grant by Patent ; the second Act still more clearly shows that the first 
 was intended so to apply ; the second Act uses the same words as the first Grant, and it 
 again rescinds all Grants, but perhaps in clearer terms. 
 
 Lord St. Leonards. — " All done in their favoris annulled by the 17th Act 
 " thereafter." 
 
 Sir FitzRoy Kelly. — Yes, my Lord. He then insists "that the meaning was 
 " practised upon the Duke of Montrose, who did quit his title of Duke and take a new 
 " title for his lifetime." This is really untrue in fact, as far as regards the Duke of 
 Montrose. But, like many other things here alleged, it seems to have been disregarded 
 by the Court. " Neither can the Act be interpreted to be of new titles as Duke, but 
 " of all new creations of new dignities being new to the receiver." Then it appears 
 that there was a farther application for time on the part of the Earl of Eglinton, which 
 led the Lords to declare that they will wait till Tuesday, and they declare that they 
 
( 48 ) 
 
 will grant no more delays in the absence of Nicolsone, or any other procurators. And 
 then there are a great number of other minutes and proceedings in the cause. These 
 proceedings are so very lengthy that it is with great reluctance that I have gone so far 
 into them. But the principal object that I have in view in referring to these parts 
 especially is to show that, whatever may have been the allegations about fraud and sup- 
 pression, or ratification, or renovation, at last every other point was abandoned, particularly 
 the one of there having been a new or later Patent under which the sitting of 1505 took 
 place, and that the case was ultimately narrowed to the single question, whether the Patent 
 of May 1488 was annulled by the Act Kescissory in the month of October in that year. 
 
 Lord St. Leonards. — Where do you come to that conclusion ? 
 
 Sir FitzRoy Kelly. — It is only by going through these different pleadings, pointing 
 to that part of the Case, that I can properly demonstrate that to your Lordship. 
 
 Lord Chancellor. — All that you have pointed out to us hitherto has been the 
 adverse pleadings of the opposite parties, in v/hich they set up a certain number of points. 
 Now do you rnean that there is any decision that narrows it down to some particular 
 point or points ? 
 
 Sir FitzRoy Kelly. — Yes. I am going to show that to your Lordships, although 
 the Judgment itself does not in terms put the case exactly as I am putting it. I am 
 going, by following these pleadings, as they proceed to their conclusion, to show your 
 Lordships that in fact the case was narrowed to that single point. I can only do so by 
 going through these proceedings, and in doing so I have laid aside everything that was 
 not absolutely necessary. As I have already said, there seem to be a great variety of 
 allegations and arguments made on the one side and on the other, but it will clearly 
 appear at last that it really is narrowed to that very question. 
 
 My Lords, after what I have called your Lordships' attention to, we find that at 
 the end of page 202 Stewart argues, " As for that pairt of the alledgance foundit upon 
 " the 5th Act of Parliament 1488 " (that is the Eescissory Act) "quhereby all dignities, 
 ' &c., is revocked, that Act is only to be ascryved to new dignities prejudicial! to the 
 " Crowne." Then he repeats the argument about the Duke of Montrose, and then a 
 little farther on, at page 203, he says, " This Patent can never be included under the 
 " revocation as given for evill counsell, becaus the Patent caries the religious cans 
 " moving the Prince for the defence of his sacred persone, whereto wee are tyed by dewtie, 
 " and it can never be cleired that the recever of the Patent was accessory to the perverse 
 " counsell, or was even called in question thereupone. And to the Reductioune against 
 " Earl Cuthbert, that was only of the landis being the King's propertie, in the whilk 
 " Reductioune Erles Cuthbert and Alexander are acknowledged Erles ; and such as were 
 " guyltie of the perverse councell was processed, nane of the perseweris predicessoris 
 " being called in questioune." That also is not unimportant. It seems from this that 
 process appears to have issued against certain persons charged as being parties to the 
 perverse counsel, that none ever appears to have been issued against the Earl of Glencairn : 
 and I may make the same observation as to the Duke of Montrose ; none appears ever to 
 have been issued against the Duke of Montrose ; on the contrary, he was very soon 
 afterwards, though partially, received into favour by James IV., and received many 
 marks of kindness and distinction at his hands. 
 
 Then, my Lords, there is a long list of documents which were put in — many of 
 them documents which are not now forthcoming, and others which are documents that 
 will be laid before your Lordships. And then we find, at page 204, that Nicolson 
 answers, " He oppones his alledgance of befoir, whilk he joynes with the de- 
 " fenderis reasone of reductioune foundit upone the Act Recissorie 1488 and the 
 " cans of the patent being both one, the perseweris predecessoris acknowledging the 
 
( 49 ) 
 
 " Act by taking the title of Lord after the daite of the pretended patent, for they sat as 
 " Lordis in Parliament 1488 and 1489, and accepted two instruments 1492 and 1498, 
 " and be decriet of Parliament 1491, the patent being new to the Housof Glencairne and 
 " fallis under the compas of thes Actis annulling the same for the perverse councell" — 
 and so forth ; and then he proceeds with the very same argum_ent again, that this patent 
 was within the operation of the Act Rescissory. 
 
 Then comes Nisbet, who I believe is the author of a book called " Dirleton's 
 " Doubts," which some learned writer said were better than other men's realities. 
 
 Lord Brougham. — ^He was one of the greatest names we ever had in Scotch law. 
 
 Sir FitzRoy Kelly. — " Nisbet alledgit farder that the patent is included under 
 " the wordis of creatioune of new dignities in the Act; and the posterior Act 1489 being 
 " for explaining the prior, he contendis that the revoking being of tackis most be thought 
 " far more of dignities. And if the Act had only poynted at the Duke of Montrois, that 
 " would have bene expres, the samyne cans in the Act militating against this patent. 
 " Neyther can it be thought that thes wes in respect of the new title of Duik, there being 
 " many Dukes of befoir, and that title was offered to the Erie of Angus and refuised by 
 " him. And the secund Act addis to the former, being recessorie of landis ;" and so on. 
 
 Then Stewart answers, " By last Act 1489, ratifieing the first, there is na men- 
 " tioun of dignities, the first being satisfied by Montrois •," and so on. I ought to say, that 
 at the top of page 205 Stewart urges this, which will very soon bring the case to the 
 point which I am seeking to impress upon your Lordships. Stewart says, " And that 
 " confirmes the perseweris title ; ffor if they had beene guiltie they would have been 
 " processed, and there neidit na expres Act for reviveing of the patent, never being 
 " annulled. And the perseweris predicessoris sitting as Erles can be ascryued to na uther 
 " title bot the patent, miles it were alledgit they accepted ane posterior title. And as to 
 " the Justice Court designeing him Lord ] 505, [this is] not to be respected, because at 
 " that same tyme he is sitting as Erie in Sessioune, and acknowledged Erles in diverse 
 " seder untis." 
 
 Then we find that Maxwell urges the same argument, that this falls undc^r the 
 Act Rescissory. And then, at page 206, we come to what is very material, because it 
 clears the case of the point of any supposed new creation. At the top of page 206 we 
 find that Maxwell, counsel for the Earl of Eglinton, argued — " And by the last Revoca- 
 " tioune of King James 4, quher all actis jjrejudiciall to saull or Croune are ordained to 
 " be deleft, yet this Act Rescessory stands against these wha had done deedis prejudiciall 
 " to the Croune ; and that the patent was for ane deed prejudiciall to the Croune he op- 
 " pones the patent, Actis of Parliament, and what hes beene formerlie said." 
 
 Then Nisbet further argues, " That quher any writt is rescindit by ane prior Act, 
 " na necessitie of ane posterior," and so on. 
 
 Then for the Earl of Eglinton, "Nicolsone, ut SMjora, decl aired he dispute only 
 " against the resoune foundit upon the patent and the Act of Parliament against the 
 " samyne." Now, my Lords, this is all important, because there had been, as one of 
 your Lordships pointed out, a great number of allegations, which may or may not have been 
 true, and a number of arguments urged against this claim to precedency, which were met 
 by the counsel on the other side. But here your Lordships find that everything else is 
 laid aside by the counsel for the Earl of Eglinton— all other points are abandoned ; and 
 your Lordships will find a little further on they were still more expressly abandoned, 
 except the single question to which the controversy was at last narrowed, namely, " against 
 " the resoune foundit upon the patent, and the Act of Parliament against the samyne"— that 
 is, " the reason founded upon the patent " of 1488, and the operation of the Act Rescissory 
 upon that patent. 
 
( 50 ) 
 
 Then, my Lords, " Stewart opponed his lybelle and reassone as it standis, with 
 " the Lords Interlocutor;" and so on. And on the 11th January 1648, " The Erie of 
 " Eglinton, with his procurators, being called in, in presence of the Lordis, and it being 
 " asked if they desyred to be farder hard befoir the dispute sould be advysed, they 
 " referred the dispute to the Lordis. It being debaitted whether this caus sail be remitted 
 " to the Parliament, or, if the remitt to the Parliament sail be reserved, to be taken into 
 " consideration with the dispute in the caus, it was fund by the Lordis that the dispute 
 " sould be advysed without reservatioune." And properly so, because the Parliament 
 had no more jurisdiction in this matter than at that time the Parliament of England 
 would have had. It was merely the Court to which the King referred disputes in rela- 
 tion to Dignities that had jurisdiction, and conclusive jurisdiction, over the matter. 
 
 Then on the 14th of January 1648, " The Lordis repellis the exceptioune, and 
 " duply in respect of the resoune and reply, which they fund relevant and proven be the 
 " writtis produced ;" and so on. " Stewart asked instrumentis upon the Interlocutor ;" 
 and so on. Then " Nicolsonne allegit that if the Lordis Interloquitor be foundit upone 
 " that pairt of the reply that the Patent is revived by the sederunt of Parliament 1 505, 
 " that sederunt cannot be ane ground to revive the Patent, becaus he ofFeris to prove that 
 " the perseweris predicessor resaved ane evident " (that is, a grant) " under the Great 
 " Seale from King James 4, befoir the dait of the Sederunt ; swa that Cuthbert's sitting 
 " Erie must be ascryved to that evident, which was the ground of the said Cuthbert's sit- 
 " ting Erie, and therefore cannot be thought to be ane ground for reviving of the allegit 
 " Patent." Here he renews again, though it had been abandoned, the point that Earl 
 Cuthbert sat in Parliament in 1505 by virtue of a subsequent and distinct Patent, and 
 not under the Patent of 1488. 
 
 Now your Lordships will see what becomes of this point at last. Answers 
 Stewart, " He opposes the Lordis Interlocutor, and he may asscryve the sitting to any of 
 " his titles. The Lordis repellis the allegeance. Nicolsonne allegit that the pretendit 
 " Patent cannot be revived by the posterior Act of Sederunt in Parliament 1505, because 
 " he oflferis to prove that Earl Cuthbert ressaved ane new Patent from King James 4 
 " after the year 1488, quherto the said Cuthbert's sitting Erie must be asscryved, the 
 " Patent being null, being for assisting to the evill councell against the Estaitts who 
 " annulled the samyne." 
 
 Lord Chancellor. — Did the title of Lord Eglinton originate between 1488 and 
 1505? 
 
 Sir FitzRoy Kelly. — Yes, it originated — it is so stated in the evidence, at the least, 
 before the Courts — in 1503. So that that point, as to a new Patent, became' to the last 
 degree material. The Earl of Eglinton sat as Lord Montgomery in 1505, and he would 
 therefore have had precedency over the Earl of Glencairn, unless the Earl of Glencairn 
 could carry back his Patent to an earlier period, which he could only do by carrying it 
 back to May 1488. Therefore to the last they seem to have struggled to prove that 
 there was no other subsequent Patent after 1503 and before 1505. Nicolsone goes on to 
 say, " Neither can the said Act of Sederunt of 1505 be drawne bak to mak the said 
 " Patent revive in prejudice of ane third partie ;" and so on. And then he goes on to 
 say, " The Patent being null quhill it was revived, is not authentic ; and the Act of 
 " Sederunt of the defenderis predicessor as Earle 1503 " (that is, the Earl of Eglinton's 
 Sederunt), " with the seising, being found sufficient and authentick evidentis in 1606 by 
 " the Commissioneris of Parliament for the defenderis bruikeing the dignitie ;" and so 
 on. Then Stewart answers, " He oppones his former dispute against the writtis, and 
 " defenderis Sederunt is not to be respected, for that same day the Lord Montgomerie is 
 " said to be Erie, and sittis Lord, thair never being ane Erie of Montgomerie, and they 
 
( 51 ) 
 
 "are Lordis many yieres thereftir. And repeittis his former dispute upon that poynt, 
 " and the decreit of ranking and reservatioun thereof, and adhearis to the Lords 
 " Interloquitor." 
 
 Then 15th January 1648 " Nicolsone craved ane delay whill Tuysday in respect 
 " of Nisbit's absence, quha is seik." Then " The Lordis delayis this caus whill Tuessday, 
 " and they declare that they will not grant any delayis heirefter upone the absence of any 
 " of the Procuratoris." Then Nicolsone on the 18th of January renews the controversy, 
 and he says, "To the perseweris Sederunt 1505, and infeftment 1507, that cannot be 
 " ascryved to the Patent, becaus"— again he says he will offer to prove that the " Perseweris 
 " predicessoris accepted ane new Patent after the Sederunt 1503;" and so forth. Then 
 
 he relies upon this Patent, and then " Answers for Glencairn. He oppones his 
 
 " former dispute and interloqutor, and that Sedenmt of the perseweris predicessoris as Earl 
 " Montgomrie ;" and then he says, " Nather does the defender shew any enteres to ane Erie 
 " of Montgomerie, — ther never being sick an Erie. And he repeitis the former nullities 
 " against the seasing. And to that pairt of the alledgance that Erie Cuthbert accepted 
 " ane new Patent after the defenderis Sederunt 1503, before the perseweris 1505, that 
 " cannot be respected, not being relevant : — Because the perseweris predicessor might 
 " tak ane new right and not pass frome his former, and ascryve their (his) sitting to any 
 " of their (his) rights, the first never being passed frome." 
 
 Then there is another objection, and then Gilmour added, "That the alledgance 
 " of the perseweris predicessoris accepting ane new Patent after the Sederunt 1503 
 " cannot be respected except it were referred to the perseweris oath." 
 
 Then Nicolsone answers, " The reasoune is found relevant, either as it is foundit 
 " upon the Patent per se, or upone the writtis produced ;" and so on. 
 
 Then, my Lords, at page 208, " Stewart oppones his former dispute and inter- 
 " loqutor, and the exceptioune upone the new Patent 1504, not relevant to be proven but 
 " by the perseweris oath, in respect of the former interloquutoris ordeining both parties 
 " to produce all the writtis ather of the parties sould use, and giff any exceplioun sould 
 " be proponit upone any writt which was in the perties handis, he to give his oath anent 
 " the haveing thereof; and, this being ane evident of the perseweris predicessoris, he shall 
 " depone upone the haveing thereof" 
 
 Then " the Lordis abydis by their former interloqutor upon the 14 of this instant, 
 " as the samyne standis." 
 
 Then Nicolson alleged that, " seeing the ground for reviveing the Patent is the 
 " Sederunt of Parliament 1505, quherby Erie Cuthbert sittis Erie, that Sederunt cannot 
 " be ane ground to make the samyne revive, becaus he oflferis to prove that the said 
 " Cuthbert, being Lord in anno 1504 or some tyme before the Sederunt 1505, and after 
 " the defenderis Sederunt 1503, accepted ane new Patent of Erie, to which new Patent 
 " the said Sederunt must be ascryved." 
 
 Then Stewart answers in the same way to another of the objections, and to the 
 second he says, " The exceptioune, being verified, is not relevant, becaus the acceptatioune 
 " of ane new Patent does not prejudge the former, hot he may ascryve his possessioune 
 " to any of his titles he pleased." Then the answer for the Earl of Eglinton is " The 
 " Patent 1488 being null, the possessioune be vertew of the Sederunt behoved to be 
 " ascryved to the new creatioune." 
 
 Then there is an answer to that answer for the Earl of Glencairn, and the answer 
 is, " That the persewers predicessoris had passed frome the title lybelled, and accepted 
 " ane new title, which behoved to be verified instantlie or referred to oath." Here it is 
 that the matter is brought to a point, and the whole controversy is reduced to the 
 question of the operation of the Act Rescissory upon the Patent of 1488. The counsel 
 
 H 
 
( 62 ) 
 
 for Lord Eglinton had over and over again insisted that there was some new and later 
 Patent to which the sitting in Parliament in 1505 was to be applied. The answer at 
 last for the Earl of Glencairn was, " That the perseweris predecessoris had passed frome 
 " the title lybelled, and accepted ane new title, which behoved to be verified instantlie 
 " or referred to oath, this being swa maliciouslie proponed in ane mater of this kynd, 
 " that proces may not tak ane decisione in justice." Now, on the 19th January 1648, 
 " The Lords repellis the alledgance proponed upone the new Patent 1504, unless it be 
 " instantlie verified by productioune of the Patent quherupone the samyn is foundit, or 
 " referred to the perseweris oath." And accordingly Nicolsone, the counsel for the Earl 
 of Eglinton, instead of either producing the Patent in question, or referring the matter 
 to the oath of the pursuer, " craved up his writtis and declaired he would be absent ;" 
 that is, in truth, saying, that he would be nonsuited upon the point. He is put to the 
 proof at last by the Court. ' Either you must produce this Patent which you insist upon, 
 or you must administer an oath upon it to the pursuer.' He does neither the one nor the 
 other, but he craves up his writs and declares that he will be absent. 
 
 Lord Brougham. — That is not nonsuited : he is the Defendant ; the Defendant 
 cannot be nonsuited. He is absent, and he allows a Decreet to pass against him in his 
 absence ; but it is not a Decreet in his absence, because he has been present. 
 
 Sir FitzRoy Kelly. — Your Lordships will see what takes place. The Lords say 
 to him, ' You must produce your Patent, or administer an oath to the pursuer, or this 
 ground must fail :' upon which he craves up his writs and declares that he vdl] absent 
 himself; but your Lordships Avill see as we go on that the Court will not allow him to 
 take any such course. 
 
 Lord Brougham. — He did not choose to refer it to the oath of the other party, 
 because it would be decisive against him if the other party swore against him. 
 
 Lord Chancellor. — The Court said to Lord Eglinton's counsel, 'You must 
 produce Lord Glencairn's alleged second Patent, or refer it to his oath.' 
 
 Lord Brougham. — By which Lord Eglinton would be bound. 
 
 Lord Lyndhurst. — And neither Avas done. 
 
 Lord Brougham. — The one he could not do, and the other he would not do : he 
 could not produce the Patent, and he would not administer the oath. 
 
 Sir FitzRoy Kelly. — Then the Court gave judgment upon the only remaining 
 point in the case : — " Gilmour opponed the estaitt of the proces, and interloqutories, 
 " duplyes, and replyes, fund proven by the writtis produced, conforme to the Lordis' 
 " Ordinance, and objectiounes against these writtis fund relevant, and he must have his 
 " sentence upon these, writtis." Then " Nicolsone alledgit he may crave up his writtis and 
 " be absent ante conclusionem in causd, and befoir litis contestatioun, he never founding any 
 " defensses upone any of these writtis. But the sentence is upone the reasoune foundit 
 " upon the writtis produced by the persewar ah initio." 
 
 Then the Counsel for the Earl of Glencairn answers : " He oppones the estaite of 
 " the proces, quher the ressoune is fund relevant and provin, which is more than litis- 
 " contestatioun. Et Gilmour allegit, giff the perties were in ane double poynding and 
 " produceing writtis, they will not get up the writtis nor be suffered to be absent; and as 
 " in ane reduction the party produceing writtis will not be suffered to be absent, and 
 " instrumentis taken upon the productioune thereof, and he must have the transumpt 
 " thereof. And as the pursewar wold not get up his proces if the exceptioune had been 
 " fund relevant, na mair can the defender be absent after the reply is found relevant and 
 " proven. And there is no more than litis contestatioune in this cans, being sentence in 
 " this cans." 
 
 Then the answer for the Earl of Eglinton is, "The perties in ane double 
 
( 53 ) 
 
 " poynding holdis not heir, for the pertie proponer of the exceptioune upone his richt 
 " is in loco actoris, who cannot be absent, and he has proponed nothing against the pro- 
 " batioun, bot only against the ressoune. And he has proponed upon no writtis but upone 
 " the Sederunt 1503 and Seasing 1501. And he can have transumpt of na utheris except 
 " he will allege and qualifie ane right to these writtis quherof he craves transumpt. And 
 " his desyre is maist just. Et Nisbit alledgeit that the parity of the double poynding 
 " holdis not, for there is an Act of Parliament, that pairties compeiring in ane double 
 " poynding can not thereafter be absent, and it is the constant forme of proces to perties 
 " to be absent befoire litiscontestatioune. And there is nathing heir bot an interlocutor, 
 " na Act being theropone, and may yit propone ane exceptioune." 
 
 Now your Lordships will see what the Lords do : " The Lordis refuiss to suffer 
 " the defenderis procuratouris to pass from their compeirance, and ordaines the decreit 
 " to be extracted parte comparente ; and they ordaine the writtis produced to be transumed, 
 " and the persewar gett ane transumpt thereof." 
 
 Then "Nicolsone declaired he wold not compeir, being comandit by the Earl 
 " Eglintoune to be silent. He passed from the exceptioune upone the newe patent by 
 " Erie Cuthbert after the year 1503, and befoir the perseweris Sederunt 1505. The 
 " Lordis permittis the exceptioune " (it should be " permit the Defender ") " to pas frome 
 " the exceptioune, bot they will not suffer him to be absent, and reduces and declaires 
 " against the remanent defenderis in absence for the ressounes proven, and ordaines the 
 " late Erie of Montrois, swa designed in the Summondis, to be now designed James 
 " Graham." 
 
 So that your Lordships see that, whatever had been alleged or argued on the one 
 side or on the other, towards the close of the process the two points which were alone left 
 undetermined were the operation of the Act Rescissory upon the Patent of 1488, and the 
 question whether the sitting of the Earl of Glencairn in 1505 was to be ascribed to a new 
 patent between 1503 and that year. Then the Counsel for Lord Eglinton wishes to 
 withdraw. The Court refuse permission to him to withdraw. He then finally passes 
 from the exception upon the new patent — he abandons the point of the new patent 
 altogether. Whether he had abandoned it or not is really immaterial, for he could not 
 substantiate it. And that leaves the only point to be decided, which was decided by the 
 Court, namely, upon the Writs which had been produced, whether the patent of 1488 
 was valid, or whether it was rescinded and annulled by the operation of the Rescissory 
 Act passed in the October of that year. That therefore, after all these pleadings during 
 no less than eleven years by all these Counsel, was at last the point, and the only point, 
 which was finally submitted to the Court to decide. Your Lordships will find the 
 Judgment of the Court at page 47. 
 
 Lord St. Leonards. — How was the question raised about the title of Lord 
 Montrose? — "And ordains the late Erie of Montrois, swa designed in the Summondis, to 
 " be now designed James Graham." 
 
 Sir FitzRoy Kelly.' — I am told by my very learned friend Mr. Riddell, that this 
 was the great Marquess of Montrose. At that time the title was forfeited ; he was one of 
 the Earls who were parties to the process. It was only a matter of form how he was to 
 be called in the cause, but he was one of the Earl's defenders. 
 
 Lord Brougham. — I suppose the Decree was that the Earls of Glencairn should 
 take precedence over the Earl So-and-so, and So-and-so, naming them, and that amongst 
 others the celebrated Earl was a party named, and they set forth that he was to be 
 called James Graham. 
 
 Sir FitzRoy Kelly. — Yes. Now I will dispose of the Judgment in almost a moment. 
 Your Lordship will find this Judgment at page 47 of the Supplemental Case, and it, is 
 
 H 2 
 
( 54 ) 
 
 extremely lengthy. I will read a few lines from it, and not trespass further upon your 
 Lordships' time : — ■' And treu it is that the said persewar his predecessor, viz. Alexander 
 " than (then) Lord Kilmaures, foirgrandsyr's foirgrandsyr to the said William Erie of 
 " Glencairne persewar, was creat Erie of Glencairne be King James the Third, of 
 " worthie memorie, upon the 28th day of Mail 1488 yeares. Be verteu of the whilk 
 " Patent Cuthbert Earl of Glencairne, oy to the said umquhill Alexander, first receaver 
 " therof (the said Alexander having been killed in the field of Stirling some 10 days 
 " after the daite thereof, and Robert, sone to the said Alexander, having deceast shortelie 
 "efter his father), is designit be decreeit of the Lords, the twelfth of Merch 1504, Erie 
 " of Glencairne, and sat in the Parliament holden be King James the 4th, in anno 1505, 
 " as Erie, and wes so acknowledged be him and be his Estates of Parliament, in the 
 " quhilk Parliament Hew Lord Montgomerie, the Erie of Eglintoun's predicessor, sat 
 " as Lord, — lyk as also there was (a) Charter granted of the Landis and Baronie of 
 " Hiltoun be the said umquhile King James the 4, in anno 1 507 yeares, to the said 
 " umquhile Cuthbert Erie of Glencairne,- — conforme to the whilk Patentis, sederuntis, and 
 " rightis, the perseweris haill predicessouris of the Hous of Glencairne hes bruikit (have 
 " possessed) the title and dignitie of Erles without questioune peaceablie now be the 
 " space of seven or aught scoir yeares." 
 
 Now, my Lords, nothing can be more clear and express than the terms of this 
 Judgment, and with that I conclude this part of my argument. Yoilr Lordships will 
 find that the question had been narrowed entirely to this : — Had the Earl of Glencairn 
 held his Earldom under the Patent of May 1488, and had the Earls of Glencairn 
 continued to hold their titles under that Patent from its date down to the time of this 
 controversy, or had that Patent been annulled by the Act Rescissory, so that the Earls 
 of Glencairn must have derived the dignity under some other and later title than this ? 
 That was the sole question to which this lengthened controversy was reduced, and 
 here, in the express terms of the Judgment, the Court decide in favour of the Earl 
 of Glencairn, upon the ground that he, William Earl of Glencairn, the pursuer, was, 
 or rather that his great-grandfather's great-grandfather was created Earl of Glencairn 
 by King James HI. by this very Patent of 1488. 
 
 Lord Brougham. — I see that the Earl of Montrose is mentioned in the lower part 
 of page 48 as "James Graham, sometime Earl of Montrois;" that is, meaning that he 
 had formerly been, but had ceased to be. 
 
 Sir FitzRoy Kelly. — Yes, and your Lordship finds, at the close of that part of 
 the Judgment to which I have referred, that not only do they thus in express terms 
 refer this title to the Patent of 1488, but they say (and this is after all the argument on 
 the Act Rescissory) that, if that Patent had been produced in 1606, the decision of that 
 Court would most likely have awarded precedency to the Earl of Glencairn. 
 
 My Lords, I have now to thank your Lordships for your attention to this very 
 lengthened and troublesome controversy. I have gone through the only leno'thened 
 documents, and I hope I shall be very much shorter upon all the other parts of the 
 Case. 
 
 Lord Chajicellor. — We will go on with this Case at Twelve o'Clock on Thursday. 
 
 Adjourned to Thursday next at Twelve o' Clock. 
 
( 55 ) 
 
 THURSDAY, 2\st JULY, 1853. 
 The Lord Redesdale in the Chair. 
 
 Sir FitzRoy Kelly. — My Lords, in proceeding with this Case, I can very sincerely 
 assure your Lordships of the great reluctance which I feel in trespassing so very long 
 upon your Lordships' time and attention, overwearied, as I feel that you must be, with 
 the labours of this most laborious Session — a weariness in which I may humbly say that 
 I myself personally must participate. But it is some consolation to me to feel that, 
 when I shall have completed the opening of this Case, your Lordships will be so fully in 
 possession of all the points which, at least as I believe, can arise in the further consider- 
 ation of the Case, that, whether as regards the evidence, or any arguments to be oflFered 
 on the part of the Crown, your Lordships' labours will be necessarily very much 
 abridged. I believe, my Lords, that when I shall have concluded the address upon 
 which I am now engaged before your Lordships, a very short time indeed, comparatively 
 speaking, will place your Lordships in a position finally to dispose of this great and 
 important Case. 
 
 Lord St. Leonards. — I hope you have made a contract with the other side. You 
 say that your Address, which will occupy a great deal of time, will shorten the argu- 
 ment on the other side. I hope you have made a contract with the other side, that, in 
 proportion as you are long, they will be short. 
 
 Sir FitzRoy Kelly. — I can hardly say that I have made a contract, but certainly, 
 from some communications which have passed between my honourable and learned 
 friend the Lord Advocate and myself on the subject of this Case, I am led to hope and 
 to feel sanguine in that hope, that, after my openiug, all the remaining stages of the Case 
 will be very considerably abridged. 
 
 Lord Advocate. — I am afraid I must say that it is impossible for me to give any 
 pledge to your Lordships upon the subject until I have heard the opening concluded. 
 
 Sir FitzRoy Kelly. — I do not ask for any pledge. But, my Lords, after this 
 opening, not only of the great questions that arise, but of all the evidence, the result will 
 be, that all the documents will have become so familiar to your Lordships, and indeed 
 to my learned friends on the other side, that I cannot but think that it will be found 
 that the time has not been entirely wasted, much as it has been protracted, by my 
 opening before your Lordships. 
 
 My Lords, I have brought under your Lordships' attention the particulars of the 
 Glencairn Case as terminated by the decision of the Court of Session, under the Royal 
 authority, in the year 1 648 ; and I trust that it has become manifest to your Lordships 
 that the point to which that case was ultimately limited, the point therefore which is 
 decided by the Court of Session, was that the grant of the dignity of the Earldom 
 of Glencairn by King James the Third, in the year 1488, was unrescinded and 
 unrepealed by the Act Rescissory of the month of October in that year. 
 
 My Lords, I have only, and most briefly, now to advert to the further proceed- 
 ings in that case, except as to one document, which will consist of no more than a 
 
( 56 ) 
 
 reference to some of the papers on your Lordships' table, by which it will appear that 
 the Earl of Eglinton, either dissatisfied with this decision of the Court of Session, or 
 hoping from the peculiar circumstances of the times — that is, the existence of a Parlia- 
 ment adverse to all regal authority — he might succeed in doing away with the effect of 
 that unfavourable decision, appealed to the Parliament of Scotland then sitting, and in 
 the year 1649 his appeal came on to be determined by the Parliament. The first and 
 the material point to which I would advert is, that that appeal shows in express terms, 
 and the decision of Parliament liliewise shows, that it was upon the one point to which 
 I have so often adverted, that the ground of that appeal was that this patent of May 
 1488 had been held valid, which, as it was alleged by the Earl of Eglinton, ought to 
 have been pronounced void. Your Lordships will find, in page 49 of the Claimant's 
 Supplemental Case, and in the following j)ages 50 and 51, a reference to the various 
 proceedings upon that appeal to Parliament. It will be found that, on the 2nd of 
 March, 1649, a Decreet was made by Parliament, " at the instance of the Procurator of 
 " Estate, against the Earl of Glencairn, annulling the said Earl his patent of Earldom 
 " dated 18th (sic) May 1488 ;" and then there was another Decreet of the 9th of 
 March 1649, which was at the instance of the Earl of Eglinton, reversing the decision 
 of the Court of Session, and of course giving efi^ect to that reversal by declaring the 
 Earl of Eglinton entitled to precedency before the Earl of Glencairn. 
 
 Your Lordships will find further on, in these proceedings, which will be duly 
 verified in Evidence, the Decreet itself of the 2nd of March, 1649, which states, " That 
 " William Earl of Glencairne, in ane actione persued at his instance before the Lords of 
 " Sessione against Alexander, Earl of Eglintown, in Januar, 1648, did produce before 
 " theme ane pretendit patent under the Great Seile, graunted be umquhile King James 
 " the Third, upon the 28 day of May, 1488 years, to ane of his predecessoris, 
 " umquhile Alexander, Earle of Glencarne, recever of the said patent." At the oiitset, 
 then, my Lords, it shews that the matter appealed against, and with which the Earl 
 of Eglinton was dissatisfied, was the grant and the validity, as declared, of this Patent 
 of 1488. Then it proceeds — Considering, 1. That the Act Rescissory, 17th October, 
 1488, annulled the grants of James the Third, " because they were granted for the 
 " perverse counsall and assistence " given to that King, " quhilk was against the common 
 " gud of the realme, and was the occasion of the death of the said King James the 
 " Third, and many of his barons and Hedges :" 2. " That the said Patent granted to the 
 " said Earle of Glencairne his predecessor, was for his assistance and counsel given to 
 " King James the Third, quhilk was perverse counsall and pernicious assistance to the 
 " King :" 3. " That he was found and declared be the 14th Act of the first parliament 
 " of King James the Fourth, in the book of the black impression, intitulat the propo- 
 " sition of the debate of the field of Stirling, and sua fell under the compas of the said 
 " Act of Parliament, maid by King James the Fourth." It is very remarkable, though 
 it is not to be wondered at, considering the lawlessness of the whole proceedings of this 
 Parliament, and even of its very existence as a Parliament, that this Parliament, in 
 referring to the 14th Act of the first Parliament of James the Fourth, most incorrectly 
 quotes that Act of Parliament, and quotes that Act as if it had expressly pointed at 
 the Patent granted to the Earl of Glencairn by name. 
 
 My Lords, no such name or Patent is found expressly alluded to in that or 
 any other Act of Parliament of the reign of James the Fourth. It is merely one of 
 the misquotations, which show the haste and inconsiderateness with which the pro- 
 ceedings of this rebel Parliament were conducted. Then they recite, naturally enough 
 for them, but it is the recital of a doctrine which Avill hardly be admitted by your 
 Lordships here, "That it is of dangerous consequence and example in relation to 
 
( 87 ) 
 
 " the troubles of this kingdom, occasioned by evil counsall given to the King's Majestie 
 " and assistance thereto, that the said gift and Patent granted for evill counsall and 
 " assistance given to the King should be of any force or validity, or should be made use 
 " of" And then they proceed to allege that William, Earl of Glencairn, being sum- 
 moned by the Estates to produce the Patent, had declined to appear, and stated by 
 letter to the Lord Chancellor, " That in respect of the troubles of the tyme he had put 
 " the samyne, with the remanent of his evidentis, out of the kingdom for preservatioune 
 " thereof" Therefore for these reasons it concludes, " The said Estates of Parliament 
 " rescindis, casses, and annullis the foresaid pretendit principal patent granted to the said 
 " umquhill Alexander, Earl of Glencarne, by King James the Third, of the date the 28 
 " May, 1488, and whereof the just double is insert in the precept above mentioned ; and 
 " findis and declaris the samyne pretendit principall Patent to have beene, to be now, and 
 " in all tyme comeing, unlawful, null, and of no force nor effect, with all thathes followed 
 " or may follow thereupone, as also statutes, decernis and ordainis, that if the said William, 
 " Earle of Glencarne, or any other his aires, or successors, shall at any tyme here- 
 " after make use of the foresaid pretendit principal Patent in judgment or outwith the 
 " samine any manner of way, the said Earl of Glencarne and his aires and assignayes 
 " foresaids, makers use of the forsaid pretendit principall patent^ are and shall be 
 " incapable of the Dignity of Earle," and so forth. And then there is a second decreet 
 which also recites that this Patent had been revoked and annulled by the Act Rescissory, 
 and gives precedency to the Earl of Eglinton before the Earl of Glencairn. 
 
 Now, my Lords, I have referred to these instruments for the purpose of showing 
 that by the proceedings in Parliament, it also clearly and expressly appears, that the 
 ground of the decision of the Court of Session in 1648, was the validity of the Patent of 
 1488, as unrevoked and unaffected by the Rescissory Act of October of that year, and 
 that upon the ground which is here set forth at length, that the Rescissory Act in 
 question did revoke the Patent of May, 1488, that Patent is by the one decree declared 
 to be annulled and extinguished, and by the other decreet precedency is given to the one 
 Earl over the other. 
 
 My Lords, I need hardly say that even if there were no further proceeding in 
 this matter, these Decrees of the Parliament of 1649 are not only entitled to no attention 
 before your Lordships here, but they are altogether null and void. In the first place 
 here is a series of authorities referred to — I will not weary your Lordships even by 
 referring to any one of them, they will be found in pages 53, 54, and 55 of tlie Claimant's 
 Supplemental Case — clearly showing upon the very highest authorities recognized in the 
 law of Scotland, that there can be no appeal whatever from the Court of Session sitting 
 under a Royal Commission to the Parliament, or indeed to any other tribunal whatsoever. 
 
 Consequently the appeal itself was null, and no Judgment pronounced by the 
 Parliament could have affected this decision that was pronounced in the year 1648. 
 There was in fact no more an appeal to the Parliament from the Court of Session in such 
 a case, than there is an appeal to this Parliament from any Report that may be made by 
 your Lordships on this claim to Her Majesty. 
 
 Lord Brougham. — There may not be an appeal to any one branch of Parliament, 
 but there may be an appeal to the whole Legislature. 
 
 Sir FitzRoy Kelly. — Of course, I do not mean to say that the whole Legislature 
 may not pass an Act of Parliament, or that any subject may not petition for any Act 
 of Parliament he pleases ; but what I mean is, that there is no appeal to the Legislature 
 in the sense in which the term is ordinarily used ; that is to say, no appeal to the Legis- 
 lature except in the way in which we may appeal against anything. In that way there 
 is an appeal to the Legislature from any judgment that is pronounced judicially by 
 
{ 58 ) 
 
 this House. You may petition for an Act of Parliament to annul any judgment of 
 this House, as a tribunal of the last resort. All that I meant was, that, using the term 
 in its ordinary acceptation, no appeal lies, or did lie, according to the law of Scotland, 
 from a judgment of the Court of Session, especially in a matter of dignity, to the 
 Parliament of Scotland, until more than half a century after the period in question. 
 Therefore, the decision of the Parliament was upon that ground altogether void, and I 
 must just observe, in passing, that it could he entitled to no weight as a legal authoritj, 
 because, in the first place, the case was never argued before Parliament. The Earl 
 of Glencairn, who, with his family, had been attached to the Royal family of England 
 and Scotland, had disappeared; and of course failed to appear, and was no party 
 to the proceeding. There was, therefore, no argument upon the case, and it does not 
 appear that the Parliament of that day was advised by any lawyers of eminence and 
 distinction. 
 
 Lord Brougham. — What was the date of that proceeding ? 
 
 Sir FitzRoy Kelly. — The date is 1649. It was immediately after the murder of 
 King Charles I., when the Rebel Parliament was sitting in both kingdoms, and sitting 
 unaided, happily, I may say, for their memory's salie, by the judges of the day, and 
 therefore had really no legal assistance in determining any legal question. But it is 
 quite obvious, from the recital in the instrument which I have pointed out, the nullifi- 
 cation of this Decree of 1648, that this Parliament proceeded not upon legal, but upon 
 political grounds. They held, and they declared, that the defence of a King assailed by 
 rebels in the field in civil war was against the common good of the realm, and ought 
 to be punished by deprivation of all dignities, lands, and possessions, and they so 
 expressly recited : — Whether, therefore, it is to be considered,^ as an act of power, or rather 
 of tyranny, or whether it is to be considered as a legal decision, it is entitled to no weight 
 in point of law or authority. 
 
 But, my Lords, all observation of that liind becomes superfluous, because your 
 Lordships will find that, in 1661, the next year after the Restoration, the whole of the 
 proceedings of that Parliament were expressly revoked and nullified by an Act of 
 Parliament of that date. This Act will be found referred to at page .56 of the Claimant's 
 Supplemental Case. In the fourth Article, your Lordships will find, it appears that it 
 was enacted, that there was "no law nor lawful authority" for the Parliament of 1649, 
 " but that the persons meeting therein did, without any lawful warrand, and in contempt of 
 " His Majesty's authority, usurp the power to themselves." And, in fact, there follows a 
 repeal of all the proceedings of that Parliament. Indeed, it is a matter of history, and 
 it is quite unnecessary to refer to the particular terms of the Act of Parhament ; but in 
 the first year after the Restoration, all the Acts of those Parliaments, both of England 
 and of Scotland (which had been already deemed to be illegal and void, inasmuch as 
 there had been no King, and the Parliament had unduly assumed authority), were 
 expressly repealed and annulled. 
 
 My Lords, there is also the very high authority of my Lord Stair upon this very 
 point. In the second volume of Stair's Juridical Decisions, page 263, we find he states 
 that, " The Lord Almond presented an appeal in writ, appealing from that intei-locutor 
 " to the Parliament ; which appeal being this day considered by the Lords, all being 
 " present, they found that there was never an appeal from the Lords given in in writ ; 
 " and though in the process betwixt Glencairn and Eglinton " — here is the very process 
 referred to by Lord Stair — " and though in the process betwixt Glencairn and Eglinton 
 " in anno 1648 mention was made verbally of an appeal, yet it was never entered in 
 "writ; and that by the Act of Parliament 1537, chap. 39, it is declared that the 
 " sentences of the senators of the College of Justice shall have the same streno-th and 
 
( 59 ) 
 
 " effect as the sentences of the Lords of Session had in time bygone, which is declared 
 "by the 63rd Act of Parliament, 14th King James II." (that is, of Scotland), "to be 
 " final, without any remeid by appellation to King or Parliament, which hath been in 
 " constant observance ever since. For the Parliament never sustained an appeal from 
 " the Lords, neither was there ever any reduction of their Decreets sustained, except as 
 " to the title of honour betwixt Glencairn and Eglinton, which," says Lord Stair, "with 
 " that Parliament is simply annulled and rescinded without any reservation. Therefore 
 " the Lords declared they would proceed in this cause, notwithstanding the appeal, and 
 " would suffer nothing thereof to remain upon record ;" and so forth. 
 
 My Lords, thus the proceedings of Parliament, having no weight or authority 
 whatever, were expressly repealed by an Act of Parliament in 1661; and all that 
 remains for me to state respecting this Case of the Earl of Glencairn is, that it appears, 
 by reference to the seventh volume of the Acts of Parliament, page 539 (and which is 
 referred to in the Claimant's Supplemental Case, page 57, about the middle of the page), 
 that in the year 1667 the Earl of Glencairn had been, perhaps by accident, but he had 
 been in fact, upon the Parliamentary Roll upon the calling of the Peers to Parliament, 
 postponed to the Earl of Eglinton ; upon which it appears, from the volume of the Acts 
 of Parliament to which I have referred, that " the Earl of Glencairn protested that the 
 " calling of the Earl of Eglinton before him should be but prejudice (meaning without 
 " prejudice) of his right of precedence before the Earl of Eglinton, and of the Decreet 
 " of the Lords to that effect. And the Earl of Eglinton protested in the contrary." 
 
 My Lords, it does not distinctly appear what took place thereupon, or whether 
 there was any formal judgment ; but this does appear, that in that Parliament and in 
 every subsequent Parliament that existed down to the time of the union between England 
 and Scotland, the Earl of Glencairn retained the precedence which had been adjudged 
 to him by the Decree of 164S, and not only during the remainder of the existence of the 
 Parliament of Scotland, but also by the Union Roll, and since the union between 
 Scotland and England, the Earls of Glencairn under this very Decree of 1648, which 
 Decree is founded upon the validity of the Patent in Question of 1488 as unrescinded 
 by the Act Rescissory, have held and enjoyed the precedence thus adjudged to them down 
 to the year 1796, when the last of the Earls of Glencairn died. 
 
 So that, my Lords, we have upon this leading and important Case of the Earl of 
 Glencairn, the fact that over and over again before Courts of competent, and indeed of 
 exclusive jurisdiction, the very question was raised respecting the Patent to the Earl of 
 Glencairn, which is raised now before your Lordships in respect of the Patent to the 
 Duke of Montrose. The very question was raised, whether the Patent was annulled by 
 the Act Rescissory, and it was upon all those occasions, by all those Courts, held, and at 
 last finally held in 1648, that the Act Rescissory had not the effect of rescinding or 
 annulling that Patent. And by virtue of that decision, the Earls of Glencairn, upon the 
 footing of that Patent so held to be valid and unrevoked, took precedence and held their 
 title of Earls of Glencairn from that period, or rather from the several periods at which 
 these decisions were pronounced, down to the year 1796. 
 
 My Lords, I have before me, but it is hardly necessary to refer to them, the Acts 
 of Sederunt from 1503 to 1790 ; and in this volume, at page 349, we have the Roll of 
 the Peers of Scotland in the Parliament of 1706 ; that is, the first Parliament after the 
 union with Scotland ; and there I find amongst the Earls the Earl of Crawford the first, 
 then follow five or six others, then comes Glencairn, and then Eglinton, then the Earls 
 of Cassilis, Caithness, and the other Earls who follow. I therefore, my Lords, close my 
 observations upon this case of the Earl of Glencairn, urging it upon your Lordships- 
 attention as a clear, and I hope it will be deemed a conclusive, authority, that the Act 
 Rescisso'ry did not operate of itself to destroy the dignities granted by King James III. 
 
( 60 ) 
 
 within the period referred to in the Act, and consequently did not operate upon these 
 two dignities granted in the month of May, 1488. 
 
 My Lords, it is perhaps right that I should now shortly refer to a paper which 
 is printed at the end of the Case presented by the noble Duke the Duke of Montrose to 
 your Lordships, and which is said to be an opinion delivered by Lord Loughborough 
 upon a claim to the Earldom of Glencairn, in the year 1797- My Lords, I only refer to 
 it because it has been urged by the noble Duke, and will probably be adverted to by the 
 learned counsel for the Crown, in addressing your Lordships upon this claim, as if it 
 were an authority that the Act Rescissory did annul this patent of 1488. Your Lord- 
 ships will find it at page 10, at the very end of the Appendix to the Duke of Montrose's 
 original Case. My Lords, I should first observe respecting this opinion or judgment, 
 that it was pronounced under these circumstances : — Sir Adam Fergusson of Kilkerran 
 had claimed the Earldom of Glencairn, under the patent of May, 1488 ; and he claimed 
 as heir-general of the first Earl of Glencairn. I may here observe at once that the deci- 
 sion of that case did not involve the question on the Act Rescissory at all. It is, there- 
 fore, clearly no authority, except so far as anything that fell from Lord Loughborough, 
 whatever may be the subject of it, is an authority. But it has not the authority of a judgment, 
 because the judgment was, that the heirs male were entitled, and not the heirs general. 
 I may here observe also, that there is very much in this opinion of my Lord Lough- 
 borough tending strongly in favour of the present claim upon the question of heirship 
 on the construction of the patent of 1488. But I pass from that to call your Lordships' 
 attention to the little that appears on the subject of this Act Rescissory, and also of the 
 proceedings (to which it appears that some allusion was made) in 1648. And your 
 Lordships will find that, in the first place, the question upon the Act Rescissory never 
 was argued before Lord Loughborough ; it did not arise before him, and it formed no 
 part of the judgment. It was indeed adverted to, but only in a very casual and 
 cursory manner, and it certainly formed no part of the judgment. And there 
 is therefore no decision upon that question to be collected from these pro- 
 ceedings. And your Lordships will find that, in the references made by Lord 
 Loughborough to the proceedings between the Earl of Glencairn and the Earl of 
 Eglinton, there are really so many most important and material inaccuracies that 
 they certainly do seem to me to deprive this opinion — I will not say, of all authority, 
 very far indeed from it— but to deprive the paper itself of all authenticity. It is said, 
 my Lords, that this paper contains an opinion, taken down by a gentleman of the name 
 of Robertson, and afterwards, as it is said, but there is no proof of it, corrected by Lord 
 Loughborough himself— whether any proof can be adduced of that I know not ; but I 
 can hardly believe that it is so, because it really is so full of inaccuracies, that I cannot 
 conceive that Lord Loughborough could ever have deliberately delivered such an opinion. 
 I will just refer to it, and pass away from it to the other points of the Case. After some 
 observations upon the subject of heirs-general, which, as far as they go, are all in favour 
 of this claim, we find this — 
 
 Lord Brougham. — Mr. David Robertson, whose name is mentioned in the margin, 
 is a most accurate man. I would trust his note before that of most people. 
 
 Lord Lyndhurst. — Then the inaccuracies must be referred to Lord Loughborough. 
 
 Sir FitzRoy Kelly.— The one or the other must be so inaccurate that, notwith- 
 standing your Lordship's encomium on Mr. Robertson, in which I entirely join, I should 
 rather refer the inaccuracy to the Reporter than to Lord Loughborough himself. 
 
 Lord Brougham.~Mv. Robertson must have had some authority for saying that 
 the note which he took was corrected by the Lord Chancellor. I know that Mr. Robert- 
 son would not have put that down without authority. 
 
 Sir FitzRoy Kelly.— I have not the least doubt of it. 
 
( 61 ) 
 
 Lord Lyndlmrst. — How long is the judgment ? 
 
 Lord Brougham. — It is seven folio pages in print. 
 
 Sir FitzRoy Kelly. — I am afraid it would occupy too much of your Lordships' 
 time, and that it would be quite unbecoming in me to deal any further with the question 
 of the accuracies or inaccuracies of the individual now alluded to with reference to this 
 report. Mr. Robertson is a gentleman now advanced in years, whom I have myself 
 personally known, and I can quite join in any commendation cis to his general accuracy 
 and his learning and attention ; but what I say — and this is indisputable as a matter of 
 fact, wherever the blame may lie, or whether blame lies on anybody or not — is, that in 
 the reference purporting to have been made by Lord Loughborough to the proceedings 
 between the Earl of Eglinton and the Earl of Glencairn, there are some most important, 
 and almost inexplicable inaccuracies ; and that I will now proceed to show your Lordships, 
 upon whomsoever the charge may fall. It is a very long paper — I will only read one or 
 two sentences. After adverting to the ordinary question of limitation and the general 
 presumption of law with reference to the Charters of those times, at pages 10 and 1 1, his 
 Lordship says, that the general presumption of law in those times is in favour of heirs 
 male — and then the noble and' learned Lord proceeds to deal with the question, whether 
 the title of the Earl of Glencairn was referable to the patent of 1488, or to some sub- 
 sequent creation ? And then he says in page 1 1, the 3rd paragraph, " The question here 
 " arising is rather a question of fact than of law, namely, whether the origin of the title 
 " be referable to this instrument or to some other creation. Our enquiry upon this 
 " point is much narrowed by the evidence. In 1505 Cuthbert appears sitting in Parliament 
 " as Earl of Glencairn. From him all the parties state themselves to be descended; and 
 " this is the first time that an Earl of Glencairn is to be found sitting in Parliament. The 
 " question therefore is, whether this Cuthbert sat in Parliament as Earl of Glencairn in 
 " 1505, by descent from Alexander, the grantee in the Patent 1488, or whether his sitting 
 " was to be attributed to some other, and what other, mode of creation ?" Then the noble 
 and learned Lord proceeds to advert to the history of the times, which occupies two pages, 
 and which I will not now trouble your Lordships by reading, but I will only observe 
 that it seems to have been the impression of the noble and learned Lord, that by some 
 Act or proceeding in Parliament, King James III. had been deposed and had ceased to 
 be King, and to hold the authority of King during the latter years of his reign. All that 
 I can say is, that I find no trace in history of anything to warrant such a conclusion. 
 We come then to the bottom of page 12, where Lord Loughborough refers to this very 
 Act Rescissory of October, 1488. He seems to have read a portion of it — and then he 
 says (and this is really the only observation upon the point), not as if the matter had 
 been argued before him, and as if he was then pronouncing a judicial decision upon the 
 effect of this Act of Parliament, but he merely says this : " Against this Act it would 
 " certainly have been difficult to set up any claim, but another Act shows more plainly 
 " that James III. was not held to be King from the 2nd February." This is rather a 
 strained inference — but I will not deal any longer with that — that is the only notice I 
 find of this Act of Parliament. But then further on, at page 14, he alludes to the subse- 
 quent sitting, which he ascribes to the subsequent creation of Lord Kilmaurs as Earl of 
 Glencairn ; and he says, alluding to some account of a tournament which is given by Mr. 
 Young, Somerset Herald, "In this account Cuthbert, Lord Kilmaurs, was a principal figure, 
 " and the Lord Hamilton another. The author describes a tournament where Cuthbert was 
 " a challenger, and Lord Hamilton a defender. He afterwards describes the creation of 
 " three Earls by belting." I only pause here for a moment to observe again upon a great 
 error into which the noble Lord appears to have fallen, and which appears in these 
 words :— " He describes the creation of three Earls by belting." Certainly, it is fairly 
 
 I 2 
 
( 62 ) 
 
 inferable from this paper that Lord Loughborough, who pronounced this judgment, was 
 of opinion, as a matter of law or as a matter of history, that an Earldom might be 
 created, and had been created, by the mere act or ceremony of belting. Now, nothing 
 can be more utterly groundless and unfounded. We find in a great variety of passages, 
 not merely in history but in solemn judgments pronounced by noble and learned Lords 
 in this House and elsewhere, that this idea is altogether discarded. It appears that 
 although it was usual after the grant of a patent, or the summoning of a peer by writ 
 after the actual creation of the dignity, to go through this ceremony of belting with 
 regard to Earls, and other ceremonies with regard to nobles of different degrees, nobody 
 ever heard or dreamt of such a suggestion as that an Earldom had ever been created or 
 brought into existence by the ceremony of belting, yet that is the fair inference from what 
 appears here. If any authority upon that subject be necessary, I need only refer your 
 Lordships to what fell from Lord Mansfield in the great case of the Earl of Cassilis in 
 this House, where repeatedly that ceremony is alluded to ; and the law, or rather the 
 history, of Dignities in relation to the ceremonies that then took place is very largely 
 adverted to. There can be no doubt that in many instances the Dignity was not supposed 
 to be complete until the ceremony of belting was performed, that is to say, the ceremony 
 of inauguration, whatever the ceremony might have been — belting in the case of Earls, 
 and perhaps other ceremonies with regard to other Noblemen of different degrees. But 
 excepting here, I may venture to say that no antiquary, no historian, no lawyer, ever 
 suggested before or since that an Earl could be created by the mere ceremony of belting. 
 
 The Lord Chancellor. — What is the sentence that you are alluding to*? 
 
 Sir FitzRoy Kelly. — It is at page 14, the first paragraph, "The author describes 
 " a tournament, where Cuthbert was a challenger and Lord Hamilton a defender. He 
 " afterwards describes the creation of three Earls by belting." Accordingly the noble 
 and learned Lord proceeds to observe, " Under all these circumstances, it was impossible to 
 " found upon this patent by itself. The Claimant therefore called in aid of it a charter 
 " granted by King Charles I. to William Earl of Glencairn, in July 1637." That is the 
 charter which I have mentioned. And here again there is something which leads me 
 to doubt the authenticity of this paper, I mean in omnibus. A great deal of it may have 
 been said, but I cannot believe that this is altogether a correct report, from what follows ; 
 because, without troubling your Lordships with what appears at length, the result seems 
 to be, that Lord Loughborough had thrown some doubt upon the authenticity or the 
 effect of this charter, of Charles I., because he says it did not contain the word "in- 
 " speximus," but only " intelleximus," or some such word. This Charter is not in the 
 form of an " inspeximus," but begins with an assertion, not as usual that the King had 
 seen the former, but "Nos compertum habentes," that such a patent had been granted. 
 My Lords, the form in which this Charter of Charles I. is granted is a form, I had almost 
 said, pervading instruments of this description. According to the law or usage of Scot- 
 land, I do not believe it will be found, except in a few exceptional cases, that the word 
 used in English charters, the word " inspeximus," is ever, at least scarcely ever, to be 
 found in corresponding documents in Scotland. It is " intelleximus," or it is as here, 
 " Nos compertum habentes." But this Charter is rejected, or its authenticity is denied 
 on the ground that it is not in the form of "inspeximus," but "Nos compertum 
 " habentes." 
 
 But now I come to a part which is more material here. A reference is made by 
 Lord Loughborough to the proceedings which terminated in the decree of 1648. This 
 is rather below the middle of page 14 : " The claimant, in his printed case, states that the 
 " patent 1488 was produced in the Action of Reduction relative to precedency against 
 " the Earl of Eglinton, and consequently against some others, the Earls of Caithness 
 
( 63 ) 
 
 " Cassilis, and Montrose. I have looked " (says Lord Loughborough, as this paper 
 states) " into the decree pronounced in that action, and find this patent among the pro- 
 " ductions, but the decree is not founded upon it." My Lords, I have shown your Lord- 
 ships how the fact was by the proceedings thenaselves, which could not have been before 
 Lord Loughborough, as well as by the decree itself, which directly, distinctly, and ex- 
 pressly refers to this patent as the ground upon which the decree proceeds, and which 
 therefore must have satisfied your Lordships that the decree of 1648 proceeded upon the 
 ground, and upon the ground only, of this patent of 1 488, and the validity of that patent 
 notwithstanding the Act Rescissory. And yet Lord Loughborough is made to say, " I 
 " have looked into the decree pronounced in that action, and find this patent among the 
 " productions, but the decree is not founded upon it." My Lords, it was founded abso- 
 lutely upon nothing else ; for every other point had been either abandoned or proved, 
 and it was founded upon that patent, and upon no other fact and no other precedent. It 
 is quite true — and I must say this again in vindication of this paper — that the more 
 lengthened pleadings which we have had an opportunity, through the liberality of Lord 
 Eglinton, of bringing under your Lordships' attention, do not appear to have been before 
 Lord Loughborough, and therefore he could not have been so well acquainted with the 
 Glencairn case as your Lordships are at this moment. But the decree which I have 
 brought under your Lordships' attention, and which will be produced and verified, so 
 clearly and expressly refers in more than one part of it as the sole ground of the decision 
 to this patent of 1488, that I believe that either this is an inaccuracy altogether inex- 
 plicable, or it could not have been the real decree that Lord Loughborough had inspected. 
 Then he goes on to allude to three other noblemen, and so on ; and he says, " The contest, 
 " in fact, was only with the Earl of Eglinton." Again, there is the fact that those eminent 
 counsel appeared not only for the Earl of Eglinton, but for the other noblemen who were 
 parties to the proceedings. 
 
 Lord St. Leonards. — He states that the other two did not appear to the action. 
 
 Sir FitzRoy Kelly. — That does not seem to be correct, because we find from the 
 proceedings to which I have referred, that these noblemen, at least two of them, did 
 appear. The son of the third, I think, appeared, and two of the noblemen appeared. I 
 cannot help thinking that there has been some confusion here between the Decree of 
 1648 and the Decree of 1609. As your Lordships well remember, the Decree of 1609 
 was pronounced in the absence of two out of three of the Earls whose precedency was 
 affected by it, and that Decreet was afterwards for that very reason, and for that reason 
 only, reversed, and it is quite possible that Lord Loughborough (especially as this was not 
 the point in the case upon which Lord Loughborough's judgment proceeded) having a 
 variety of these proceedings before him, had looked at the Decree of 1609, when it ap- 
 peared that two of the Earls had not appeared to the proceedings, and so it was between 
 the Earls of Glencairn and Eglinton only that the proceeding took place. But, however, 
 be that as it may, he goes on to say — " The contest, in fact, was only with the Earl 
 " of Eo-linton, and to prevail against him there was no necessity for recurring to the 
 " Patent 1488, for the Earl of Glencairn produced sittings in Parlianient and in Council, 
 " where the Earl of Glencairn and the Lord Montgomery were both marked as present. 
 " The Earl of Eglinton's claim to precedency was founded on an error in the Books 
 " of Session, where Comes Montgomery is entered in one place along with Dominus 
 " Kilmaurs, they being then Judges of that Court, and on an allegation that his house 
 " had been burnt by the Earl of Glencairn, where all his deeds and writings were 
 
 " destroyed." 
 
 Now, it is a trifle, and it is perhaps immaterial, but there again there is a 
 mistake, there were some proceedings which showed an allegation, an allegation at 
 
( 64 ) 
 
 least that the house of the Earl of Eglinton had been burnt, not by the Earl of 
 Glencairn, but by the Master of Glencairn. There is some inaccuracy again here. 
 But with regard to the earlier matter here, of its being unnecessary to refer to this 
 Patent, and the case being decided, as the Noble Lord seems to have thought, upon the 
 sitting of the Earl of Glencairn and Lord Montgomery, your Lordships have gone 
 through, till I am afraid you have been Avearied by listening to my voice, these lengthy 
 proceedings which terminated in the Decree of 1648, and your Lordships find that 
 although the sittings in Parliament of these two Earls or their ancestors were from time 
 to time referred to, nothing can be more incorrect than to suggest that the case was 
 decided upon those entries of sitting in Parliament, and not upon the Patent of 1488. 
 The truth is that the case was decided upon the Patent of 1488, and upon that Patent 
 alone, and not upon the sittings in Parliament, which, if they had been taken by them- 
 selves, would rather have. tended to the opposite conclusion. 
 
 Then the noble and learned Lord proceeds to say, " The creation therefore cannot 
 " be referred to the Patent 1488, but to Young's account of its origin," — that is, to the 
 " belting." And so, in point of fact, this report was unfavourable to Sir Adam 
 Fergusson, not indeed on any ground here alluded to, but only upon the ground that 
 he claimed as heir general, whereas it was the heirs male alone that could be entitled ; 
 and all these references to the proceedings of 1648 seem to be founded upon the error 
 that that judgment passed upon the sitting in Parliament, and not upon the Patent 
 of 1488. 
 
 My Lords, as a judgment, therefore, this case of the Earl of Glencairn in 1797 
 does not affect the present case ; or, if it does affect it, it affects it rather favourably to 
 tie Claimant, for the reason which I have stated : and, with respect to all that fell 
 from the noble and learned Lord who pronounced this opinion in relation to these pro- 
 ceedings between the Earl of Eglinton and the Earl of Glencairn, the reference is (from 
 whatever cause it may have proceeded) so extremely inaccurate, so contrary to the 
 manifest fact upon the papers and documents which are now before your Lordships, that 
 I do not think I need further advert to it. I am reminded by my learned friend the 
 Recorder, whose assistance I have upon this occasion, that your Lordships will find a 
 passage at page 45 of the Supplemental Case of the Claimant referring to the judgment 
 of 1610, which does appear to have proceeded, not upon the Patent, but upon the 
 sittings of the Earls and their ancestors in Parliament ; and I cannot but think that it is 
 quite manifest that Lord Loughborough must have referred to that, and not to the Decree 
 of 1648. I cannot help thinking, my Lords, that Lord Loughborough had never really seen 
 
 these proceedings of 1648, and consequently that all these observations must 
 
 Lord Lyndhurst. — He had seen the Decree. 
 
 Sir FitzRoy Kelly. — He says so ; but I cannot think it could have been the true 
 Decree. 
 
 Lord Lyndhurst. — He says, " I have looked into the Decree pronounced in that 
 " action, and find this Patent among the productions ; but the Decree is not founded 
 " upon it." 
 
 Sir FitzRoy Kelly.— The question is, whether the noble and learned Lord must not 
 have been mistaken ; whether he was not really referring to some other Decree, which 
 he was confounding in his memory with the Decree of 1648 (I am always supposing that 
 this Report is authentic) ? and my reason is, that that Decree of 1648, which recites 
 almost the whole of the proceedings in the cause extending over a period of some ten 
 or twelve or thirteen years, is so replete with references to the Patent, and is so mani- 
 festly founded upon the validity of that Patent, and upon that ground only, that the 
 statement is altogether inexplicable. If the noble Lord really had referred to that pro- 
 
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 ceeding of 1648 (I am not aware that he did refer to it by date), it would have rendered 
 the thing rather more mysterious. But, my Lords, one reason why I am fortified in 
 this conclusion is, that these proceedings, terminating with and including the Decree of 
 1648, have only been recently discovered in Lord Eglinton's charter-chest. At the time 
 when the Crawford claim was before this House, at the time indeed when this claim 
 originated and was first advanced, Lord Crawford and his advisers had no notion of the 
 existence of these proceedings which have now been found in Lord Eglinton's charter- 
 chest. It is only by searching in that chest that these proceedings, ending in the Decree 
 of 1648, and the Decree itself^ have been discovered ; and I am not aware of any trace at 
 all of any one of the papers thus found, and now produced, existing in any prior j^ro- 
 ceeding, or at any time in fact until the period when these papers were discovered in the 
 charter-chest of Lord Eglinton. That is the only way in which I can reconcile this 
 language of Lord Loughborough with the facts as we now possess them, by the supposi- 
 tion that he was referring to some other Decrees — the Decree jDerhaps of 1610, where 
 the sitting of the Earls in Parliament is adverted to, and does form a material ingredient 
 in the decision ; and that he had no notion of this more lengthened and detailed pro- 
 ceeding ending with the judgment of 1648, which is now so fully brought before your 
 Lordships. 
 
 Loi'd St. Leonards. — What do you consider to be the result of the opinion deli- 
 vered by Lord Loughborough ? — Did he, or did he not, in your view, reject the Patent 
 of 1488 as a continuing Patent ? 
 
 Sir FitzRoy Kelly. — "What I understand he did was this : before he came to any 
 question upon the validity of that Patent, he considered it as a question of fact, whether 
 the Earldom of Glencairn, as it was then enjoyed down to 1796, was to be ascribed to 
 the Patent of 1488, or to some subsequent creation of the Earldom before or during the 
 year 1505 ; and he determined — 
 
 Lord St. Leonards. — He rejected the first supposition. 
 
 Sir FitzRoy Kelly. — He rejected the first supposition. 
 
 Lord St. Leonards. — Whatever his opinions were, it is plain that he did not found 
 his recommendation upon the Patent 1488. 
 
 Sir FitzRoy Kelly. — What I think he appears to have done is this : he found 
 a history of the ceremony of belting in this statement, which history he deemed to be 
 the creation of an Earldom. He found that that had taken place just before 1505. He 
 then finds the first sitting of the Earls of Glencairn by that title in 1505, and then he 
 says, " That is enough for me : I ascribe the creation of this Earldom to the date of 
 " 1503, 1504, or 1505, and the sitting under it in 1505 to that creation, and not to the 
 " Patent of 1488." But as to pronouncing any opinion upon the validity of the Patent, 
 or upon the effect of the Act Rescissory, that point appears never to have been argued 
 before him ; and all that he said is just what I have referred your Lordships to. 
 
 Lord Lyndhurst. — I want to know whether the proceedings in the case in which 
 Lord Loughborough gave his judgment are not reported in some book which is to be 
 
 found in our library. 
 
 Mr. Stuart Worthy. — No, they are not : I have made inquiry, and I understand 
 that it was not the habit to print the proceedings till of late date. They are not in print 
 
 at all events. 
 
 Sir FitzRoy Kelly.— Yfe have made the most diligent search. 
 
 Chairman. — Was the case of Sir Adam Fergusson founded upon the limitations in 
 
 the Patent of 1488 ? 
 
 Lord Lyndhurst.—lnqnivj ought to be made with respect to that. 
 
 Sir FitzRoy Kelly.— We should of course be very glad to be furnished with any 
 
( 66 ) 
 
 fuller information than that which Ave now possess. I can assure your Lordships that 
 we have searched most diligently, but we can find nothing more than what has been 
 brought under the attention of your Lordships. We can find no other account of that 
 case than is to be derived from this paper. 
 
 Lord Lyndhurst. — Does it appear what was the evidence that was given before 
 Lord Loughborough in that case ? 
 
 Sir FitzRoy Kelly. — No, nothing that we know appears. 
 
 Lord Lyndhurst. — When you are finding fault with the judgment of Lord Lough- 
 borough, should not you endeavour to get the evidence in the case which led to that 
 judgment ? I imagine it must be to be found in our library, or in some form or other 
 among our records. 
 
 Sir Fit z Roy Kelly.- — I can assure your Lordships that we have made the most 
 diligent and industrious research, and we have been unable to find anything more than 
 that to which I have now alluded. 
 
 Lord Lyndhurst. — How can the judgment be reconciled with the documents 
 you have read, supposing those now produced from Lord Eglinton's repository to be out 
 of the case ? Might they not have been produced on that occasion ? 
 
 Sir FitzRoy Kelly. — I look upon it, my Lord, to be perfectly impossible that they 
 could have been produced. Then supposing I am right, that they were not produced, 
 the case stands thus, that Lord Loughborough had before him proof of this Patent of 
 1488, that he had proof also of the sitting in Parliament of the Earl of Glencairn in 
 1505, and he had what he deemed proof also from history of the belting of an Earl, 
 which he considered to be the creation of an Earl, shortly before the year 1505, and that 
 he therefore ascribes the creation of the Earldom, the origin of the Earldom, as a matter 
 of fact (for he expressly says, " I look upon it as a question of fact"), not to the Patent of 
 1488, but to a subsequent creation just before 1505, namely, to the creation of the 
 Earldoms which are referred to by Young, the Somerset Herald, consisting of the 
 ceremony of belting at the tournament and other ceremonies. 
 
 Lord St. Leonards.— li this note is correct, whatever weight might be given to 
 the opinion, it is clear that he was of opinion that this Patent of 1488 was of no validity. 
 In page 14, he says in so many words, " The creation therefore cannot be referred to the 
 " Patent 1488, but to Young's account of its origin. The Patent appears to have had 
 " no force at all, and to have been rather of prejudice to the family than in their favour. 
 " If the question be brought to this point, and the creation referred to the date of 1503, 
 " and the mode of creation then observed, the presumption of law established by so 
 " many cases must prevail." I understand him, therefore, distinctly to have rejected 
 the Patent. I do not think that admits of a question, whatever weight may be due to 
 this opinion. That is quite another question. 
 
 Sir FitzRoy Kelly. — I do not in the least deny what he says ; but what I was 
 adverting to was this. He says in page 11, " The question here arising is rather a 
 " question of fact than of law, namely, whether the origin of the title be referable to 
 " this instrument," that is, the Patent of 1488, " or to some other creation." All that 
 he says about the Patent with respect to the Act Rescissory is this, " Against this Act it 
 " would certainly have been difficult to set up any claim." 
 
 Lo7^d Lyndhurst. — He does not rely upon the sitting in Parliament. 
 
 Sir FitzRoy Kelly. — No : on the contrary, he uses the sitting in Parliament as 
 Evidence that the Dignity is to be ascribed to some other creation, namely, the creation 
 by belting. It is undoubtedly a very important point to dispose of in a single line, as he 
 disposes of it here, " Against this Act it would certainly have been difficult to set up any 
 " claim." Still I quite agree that, if he thought about it at all, he must have thought 
 
( 67 ) 
 
 for some reason or other that this Patent of 1488 had no validity. No doubt that must 
 have been so. But what I venture to answer to that is this :— It is perfectly clear that 
 Lord Loughborough could not have known that, after a proceeding of eleven years' 
 duration, after the matter had been argued over and over again by the most eminent 
 Counsel of the day, the Court of last resort had in the year 1648 expressly adjudged 
 that very point. It is quite impossible that Lord Loughborough could have known of 
 that, or he would not have treated the Judgment of the Court of Session, so elaborate a 
 Judgment, after so much elaborate argument, with the disregard, nay, with the entire 
 silence, which pervades this Judgment. 
 
 Lord Brougham. — What do you call an "elaborate Judgment?" Do you call 
 the Judgment of the Court of Session an elaborate Judgment ? 
 
 Sir FitzRoy Kelly. — Perhaps I ought rather to have used the words " elaborate 
 " proceedings." 
 
 Lord Brougham. — Elaborate proceedings, and a very short Judgment upon them. 
 
 Sir FitzRoy Kelly. — I ought rather to have used the word " Decree " than 
 '' Judgment." It is an elaborate Decree ; because, although the Decree does not give 
 the opinion of the Judges, it recites the whole oi the proceedings, and then brings down to 
 a point the question upon which the Court had to decide, and then they do decide upon 
 that point. What I oppose to the opinion of Lord Loughborough (so far as any decisive 
 opinion is to be collected from this paper) is this : I will not use the term " elaborate " 
 again, but it must have been a well-considered Judgment of the Court of Session in 
 1648, after all these pleadings by the Counsel in question during eleven years. 
 
 Lord Lyndhurst. — I do not know that the proceedings of eleven years secure a 
 better Judgment. 
 
 Sir FitzRoy Kelly. — At all events it shows that the matter was not hastily 
 determined. But I need hardly say that no Noble and Learned Lord in this House, 
 no Judge of any Court, upon such proceedings as these, having to pronounce a Judgment 
 upon the very point decided on in these proceedings, would have passed them by alto- 
 gether and taken no notice of the Judgment, except indeed an inaccurate notice of it, 
 Therefore I take it for granted that these proceedings really never were before Lord 
 Loughborough at all. He had no more idea of this very point on which his opinion was 
 supposed to be expressed having come under the consideration of the Court of Session, 
 and having been the subject of their Judgment, than any one of us had before we dis- 
 covered these proceedings in the Eglinton Charter-chest. 
 
 Lord Chancellor. — It is important to see how the question of the original title 
 to the Patent arose in these proceedings on which Lord Loughborough's Judgment is 
 given. It arose " by a Petition from Sir Adam Fergusson claiming the title of Earl 
 " of Glencairn and Lord Kilmaurs, as heir general of Alexander Earl of Glencairn, who 
 " died in possession of these titles in 1670." If that were so, what did it matter whether 
 the Earldom of Glencairn originated in 1488 or 1503 1 I do not see how the question 
 arose. 
 
 Sir FitzRoy Kelly.— It arose in this way. Sir Adam Fergusson claimed as heir 
 general. If he could have claimed under the Patent of 1488, it would have been open 
 to him to contend that that Patent gave the dignity to the heirs general of the first 
 taker ; whereas, if he could only claim under some creation, the Patent of creation not 
 being in existence, under a creation by belting, for example, evidenced only by the 
 sitting in Parliament in 1505, then the descent of the dignity could only in the absence 
 of the Patent be regulated by the usage, by the description of heirs to whom it had in 
 fact descended ; and as it had always descended to heirs male only, if he relied merely 
 on an unproduced Patent, or a creation evidenced only by sitting in Parliament, or by 
 
 K 
 
( 68 ) 
 
 belting, he could only then say that this dignity was descendible as it had descended, 
 and that, being only to heirs male, he could not claim as heir general, — and it was upon 
 that ground that Lord Loughborough rejected the claim, and advised the Committee to 
 report against the claim. 
 
 Lord Lyndhurst. — As Lord Eglinton was one of the parties to that suit, is it not 
 rather singular that the documents which were in his possession, as evidence of his title, 
 were not produced ? 
 
 Sir FitzRoy Kelly. — Lord Eglinton was no party to the claim of Sir Adam 
 Fergusson to the dignity of Earl of Glencairn : Lord Eglinton had been no party to any 
 proceeding since the 17th century, and it was only by the merest accident in the world 
 of the noble Duke, who is opposing this claim, having thrown some doubt upon the 
 Glencairn Case, that the advisers of the Earl of Crawford were put on further research, 
 and upon inspecting the papers in the Earl of Eglinton's Charter-chest they discovered, 
 vnthin a very short period of this moment, these documents. My Lords, we really have 
 not the least reason to believe that these proceedings, terminating in the Judgment of 
 1648, were ever known to any living man from the 17th century until within these few 
 months, when we discovered them in Lord Eglinton's Charter-chest. 
 
 Lord Brougham. — The parties to that claim in 1796, besides the Crown, were the 
 family of the last Earl of Glencairn, who died in 1796. 
 
 Sir FitzRoy Kelly. — Yes. 
 
 Lord Lyndhurst. — I see that Lord Loughborough expressed great regret at being 
 obliged to decide in the manner in which he did decide that case ; he must therefore 
 have considered the case very maturely. 
 
 Sir FitzRoy Kelly. — I have no doubt that he did consider the case very maturely ; 
 one would not presume to suggest that the noble and learned Lord would have decided a 
 case of that sort without very maturely considering it ; but all that I am interested in 
 showing — and I think it enough for my argument — is, that he could not have known of 
 this lengthy suit in the 17th century, — that he could not have known that the Court of 
 Session, in conformity to a previous decree of the Privy Council, had fully considered 
 this very question of the operation of the Act Rescissory on the Patent of 1488, and 
 adjudicated upon that question, — that he could not have known all that and have passed 
 it over in silence, — that he could not have known all that and yet have given an opinion 
 contrary to it, because he would have found that there was an authority which must 
 have been overruled. And I say again, with all submission, that your Lordships must 
 directly overrule this decision of the Court of Session in 1648 before you can hold that 
 the Act Rescissory, ijpso facto, by the mere passing of it, rescinds the dignity created by 
 this Patent of 1488 — unless indeed a distinction is to be made between the one dignity 
 and the other upon some such ground as that a Dukedom was a new dignity, except in 
 the Royal family ; that is the only distinction I know of that can possibly be made ; and 
 therefore, if this Act Rescissory, by force of its passing only at once and without any 
 further proceedings, annulled the grant of the Earldom of Glencairn, I quite agree that 
 it annuls the grant of the Dukedom of Montrose ; but if it did not annul the one, I cannot 
 understand why it should annul the other ; it is therefore a direct decision of the highest 
 authority, and directly in point upon the very question which is now submitted to your 
 Lordships. 
 
 Now, my Lords, I pass again to this Act Rescissory. I have urged to your 
 Lordships, and I venture to hope not in vain, that it is impossible for your Lordships 
 judicially to hold, upon the mere view of this Act and of the Patent granting the 
 Dignity, that the Act at once annulled the Patent. But, my Lords, if there were any 
 expressions to be found in the Act of Parliament which upon any sound principle of 
 
( 69 ) 
 
 construction could be held to have that effect, I venture to submit to your Lordships, 
 that, looking at the particular phraseology of this Act of Parliament — which, however 
 unusual and unprecedented the Act itself is, yet its phraseology is quite familiar to 
 Scotch lawyers, in relation to Scotch Acts of Parliament — that some further, some ulterior 
 proceeding in the way or in the nature of an action of Reduction would be necessary to 
 make the Act of Parliament operate upon any grant sought to be annulled. And 
 supposing for a moment that the Dignity in question may have been struck at like 
 other grants by this Act, I submit that the Act itself could not operate upon these 
 Dignities without a subsequent process of Reduction. 
 
 My Lords, Acts of this character are very familiar indeed to Scotch lawyers. 
 There are many Acts of Parliament which are intended to have the effect of avoiding 
 grants or avoiding various instruments or proceedings, but which in effect have only the 
 character of a commission or authority to Courts of Justice to inquire into the acts 
 sought to be avoided, and upon process by an action of Reduction to decree for their 
 reduction accordingly : and, my Lords, I must now once more ask your Lordships to 
 turn to the Act itself, which is in the additional printed papers, and it seems to me to 
 be quite impossible from the phraseology of the Act to hold that, whatever may be its 
 effect, it is anything more than a declaration or enactment that whatever grants which 
 may have been made by King James III., within the period in question, shall 
 be shown to be prejudicial to King James IV., may be by a Court of competent 
 jurisdiction annulled and quashed. 
 
 Lord St. Leonards. — Those are not the words. 
 
 Sir FitzRoy Kelly. — Now, my Lord, let us see what the words are: " That all 
 
 " ahenations of lands, heritage," — and then a great variety of subjects are mentioned, — 
 
 " creation of new dignities, granted or given to any person or persons, what estate, 
 
 " condition, or degree that ever they be of, since the second day of February last by-past, 
 
 " by late our Sovereign Lord's father, whom God assoil ! which might be prejudicial to 
 
 " our Sovereign Lord and to the Crown that now is, be cassed and annulled." Now, just 
 
 pause here for a moment. What was the condition of this Parliament at the time that 
 
 the Act was passed ? The Act was passed in October 1488. The period referred to 
 
 was from the 2nd of February to the time of the death of the King, the 11th June. 
 
 The Parliament could not know at that time what grants, to whom, and under what 
 
 circumstances, might have been made by King James III. during that long period 
 
 of some five or six months. The observation would perhaps be less strong if it had 
 
 related to Dignities only. Even then I should have said, How could the Parliament 
 
 know what Dignities. the King might have granted within that time, or under what 
 
 circumstances, so as to know whether they might not have been far from prejudicial, 
 
 actually advantageous, beneficial to King James IV.? He might have granted 
 
 Dignities, to be sure, as the reward of loyal services to himself and himself only, but 
 
 he might have granted Dignities for some service reasonably rendered to his son. How 
 
 could the Parliament know what he might have granted ? But still more, my Lords, 
 
 when we find that it refers not only to grants of Dignities, as to which it might 
 
 possibly be said that those are acts too notorious to have escaped attention, that it must 
 
 have been known to Parliament what Dignities within that period of five or six months 
 
 the late King had conferred — but when we refer to these words, "All alienations of 
 
 " lands, heritage, long leases, feu ferms, offices, tailzies, blench ferms, creation of 
 
 " new dignities," — when we refer to all those subjects, to all those acts, or acts of that 
 
 nature, which might have been done by James III., how could Parliament know 
 
 what those acts might have been ? upon what principle could the Parliament have said 
 
 without further inquiry that all those acts should be at once, and by force of the passing 
 
 of this Act, annulled ? 
 
 K 2 
 
( 70 ) 
 
 My Lords, it may be quite true that the Parliament might justly or unjustly have 
 thought fit to annul all Acts done by the late King which they might deem prejudicial 
 to his successor; but surely it cannot be said that by those words they have at once 
 annulled all these Acts. It would be more reasonable to put this construction upon 
 it : — " Whereas the late King, during the period in question, may have made various 
 grants of land and feu-ferms and dignities which may be prejudicial to our Sovereign Lord 
 the King that now is. Be it enacted that all such as shall be found prejudicial shall be 
 quashed and annulled." That is a reasonable and just enactment ; but to say at once, 
 when the Parliament could not know what grants may have been made, to whom, or 
 under what circumstances, or how just, how expedient, how directly beneficial to King 
 James IV. such grants may have been, that they should all be annulled, would 
 be most unreasonable : why, or upon what principle, are these words to be extended 
 beyond their natural construction, and to be held at once to destroy and nullify all 
 grants whatsoever without any further inquiry, and without any further proof? My 
 Lords, I venture to submit to your Lordships that such a construction would be, not a 
 construction in favour of justice, and in favour of reason and truth, but against justice and 
 against reason and truth, actually to expunge certain words from the Act of Parliament ; 
 because, if they had meant to do that — if they had meant to say, as must be contended by 
 those who oppose this claim, that at once, by force of the very passing of this Act of 
 Parliament, all grants made by the ICing within that period shall be and are hereby de- 
 clared to be void, why did they not say so ? Why did they introduce the words, "which 
 " might be prejudicial," if they did not mean to make any distinction between what 
 might be prejudicial and what might not be prejudicial ? If they meant at once, by the 
 mere passing of this Act, to annul all grants made within that period by the King, why 
 should they not have framed the Act of Parliament in those plain and intelligible terms ? 
 They might or might not have recited the circumstances which might seem to justify the 
 Act. But whether that had been done or not, why should they not at once say, " Be it 
 " enacted that all grants, whether of lands or dignities, or any other possessions or things, 
 " by King James III., since the 2nd of February down to the time of his death, shall 
 " be and are hereby declared to be void ?" Why introduce this qualification ? "\^''hy 
 introduce something that, to give effect to it, will necessarily put the Court that has to 
 construe the Act of Parliament upon an inquiry as to whether any grant that is impeached 
 comes within the meaning of the Act of Parliament ? If they had meant to say at once 
 that all grants whatsoever made within the period in question by the King should be 
 and were thereby repealed, first I submit to your Lordships that they would have used 
 the expression familiar in Acts of Parliament of both countries, " shall be and are 
 " hereby annulled," which alone would have necessarily had that effect ; and further, 
 that they would not have introduced a qualification which, by giving a character to the 
 particular acts which were intended to be annulled, raises a distinction between 
 those acts and any other acts which might not come within that description. 
 If the Legislature, which is omnipotent, says that all acts done within a certain 
 period of time shall be annulled, that is intelligible, and the law must be obeyed ; they 
 are at once annulled; but if the Legislature says that all acts "which might be pre- 
 
 " judicial to the Crown that now is" shall be annulled, surely that raises the question 
 
 which may indeed be a question of law, but which may be, and most commonly would 
 be, a question of fact — Is the particular grant impeached included in the enactment ? 
 Can it be proved to be prejudicial, or is it the reverse ? My Lords, the consequence of 
 holding the contrary would be, that if peradventure it had happened, as it might happen, 
 nay, as it may actually have happened for aught I know, that some one who had per- 
 formed a personal service to the young Prince, afterwards James IV., had been rewarded 
 
( n ) 
 
 by the King, his father, for that service performed before the 2nd of February, by the 
 grant of a dignity, or by the grant of lands, or any other thing which would come within 
 the meaning of these words, " after the 2nd of February," the consequence would be, 
 that nevertheless it is to be held under this Act that that grant, made for the very benefit 
 of King James IV., is to be annulled as prejudicial to him. It is quite clear, my Lords, 
 that the general effect of this Act of Parliament, which must be contended for upon the 
 part of the Crown, is to assume at once, as matter of law, as well as matter of fact, that 
 every grant made by the King within the period in question was a grant prejudicial to 
 King James IV. 
 
 My Lords, I was about to say that there are many Acts of Parliament in Scot- 
 land under which, where words are to be found of this description, a subsequent pro- 
 ceeding in the way of an action of reduction must take place. It is not that by force of 
 the Act the thing is annulled at once, but it is merely that a jurisdiction is conferred 
 upon a court of law to inquire into the Act, and if the result of that inquiry be one way 
 then to reduce or to annul the instrument in question. I might trouble your Lordships 
 with many instances, but I will refer to but one, which is to be found in the third volume 
 of the Juridical Styles at page 186, where there is a summons of Declarator of Irritancy 
 ob non solutum canonem, raised on the Act of 1597. At page 186 it is said, " When the 
 " summons is raised on the Act 1597 it is the same as the foregoing, only in place of 
 " what is between A and B the style runs thus : — ' As the said few-charter, containing 
 " ' precept of sasine for infefting the said B in the said lands, and other usual clauses 
 " ' more fully bears.' That by the Act of Parliament 1597, cap. 246, it is statuted and 
 " ordained, ' That in case it shall happen, in time cumming, ony vassall or fewar haldand 
 " ' landis in few-ferme of our Soveraine Lord, or of ony uther superiour immediatlie in 
 " ' few-ferme to failzie in making of payment of his few-dutie to our Soveraine Lord's 
 " ' Comptroller, or uther havand power of him, or to uther immediate superiour, or uthers 
 " ' haveand power of him, be the space of twa zeires haill and togidder, that they sail 
 " ' amitte and tine their said few of their saids lands, conforme to the civill and canon 
 " ' law, siklike, and in the same manner as gif ane clause irritant were speciallie ingrossed 
 " ' and insert in their saidis infeftments of few-ferme.' And true it is that the said B is 
 " addebted and owing the pursuer, his superior, the feu-duties payable for the said lands 
 " for the years following, viz. (here specify them), whereby the irritancy introduced by 
 " the foresaid Act of Parliament is incurred, and the foresaid few-right has become void 
 *' and null in all time coming ; therefore it ought and should be found and declared by 
 " decree of the Lords of our Council and Session, that the feu-duty payable out of the 
 " said lands has remained unpaid for the space above mentioned ; that the Defender has 
 " thereby incurred the irritancy introduced by the said Act of Parliament, and in terms 
 " thereof has amitted and tint his feu of the said lands, and all right and title thereto, 
 " ob non solutum canonem," and so that the thing be made void. Now that is an 
 instance in which, if the Act of 1597 were to be read as it is insisted this Act should be 
 read, the consequence would be that by mere non-payment for the time in question the 
 feu would be at once forfeited, and no further proceedings would be necessary. The 
 owner might bring an action to recover the possession of the lands analogous to our 
 action of Ejectment, and no other Act would be required. But your Lordships find it is 
 necessary to follow up the Act of Parliament by an action of Reduction, and then the 
 Court has to consider whether the Act operates, whether the forfeiture has been incurred, 
 and if so they reduce the lease or the instrument in question, and Judgment is pro- 
 nounced accordingly. 
 
 What, my Lords, therefore we submit upon this point is, that it is quite manifest 
 that this Act of Parliament, if it is to operate upon these Dignities or grants of land at 
 
( ^8 ) 
 
 all, could only operate in this way, that, upon an action of reduction being brought in a 
 competent Court, that Court would be able to ascertain, under all the circumstances of 
 the case, whether the requisites of the Act were fulfilled, namely, whether the grant in 
 question " might be prejudicial" to the King, and if they should hold that it might be pre- 
 judicial to the King, that it came within the words of the enactment, then to reduce the 
 grant in question, and so to give effect to the Act of Parliament. But to hold that no 
 such proceeding is necessary, is to hold what I apprehend your Lordships cannot hold 
 upon this Act of Parliament, viz. that it is to be taken for granted at once against 
 justice, and moreover against truth^ unquestionably against truth and against the fact, that 
 all grants, no matter under what circumstances made, or whether good or bad, whether 
 beneficial or prejudicial to the one King or the other, are nevertheless at once, without 
 further inquiry, to be considered as rescinded and annulled. 
 
 My Lords, the next point to which I have to call your Lordships' attention is the 
 evidence which will be laid before the House, which may support the case of what may 
 be called the contemporanea 'expodtio of this Act of Parliament, namely, that the Act 
 Rescissory did not, in fact, operate to put an end to this Dignity, but that this Dignity 
 was assumed and used by the Duke of Montrose, the grantee of this Dignity under the 
 Patent of 1488, after the Act Rescissory, and before the grant of the second Patent, under 
 which it is said that the Dignity was created for life. Of course, my Lords, the assump- 
 tion and use of the title by the Duke of Montrose after the second Patent, to which 
 hereafter your Lordships' attention will be called, by which the title was again conferred, 
 would be no evidence in favour of the operation of the previous grant of the Dignity in 
 May 1488. But if we find that after the passing of this Act Rescissory in the month of 
 October 1488, and before any new grant of the Dignity, before anything therefore had 
 occurred which could have authorized the use of the title by the Duke of Montrose, the 
 grantee, except the Patent of May 1488, he did use the Title, and if moreover we find, 
 as we shall now proceed to show your Lordships was the fact, that he was actually re- 
 cognized by the title of Duke of Montrose by the Sovereign King James IV. himself, 
 and that after the Act Rescissory and before the regrant, I apprehend that will be strong 
 evidence to show how the Act itself was expounded at the time, and that it was not at 
 that time, at all events, vrithout further inquiry, by an action of reduction or in some 
 other way, and above all by the King himself, held ipso facto to annul the Dignity. 
 
 Lord Brougham. — You do not mean to contend that, if an Act of Parliament says 
 that a certain estate which did belong to A shall be now and henceforth vested in B, 
 that until an action of reduction of the title of A is prosecuted by B with effect, and 
 there is a Decree of Reduction by the Court, B cannot take the benefit of that Act ? 
 
 Sir FitzRoy Kelly. — Clearly not. 
 
 Lord Brougham. — But your contention goes to that. 
 
 Sir FitzRoy Kelly. — No, my Lord. 
 
 Lord Brougham.' — You mean to rely upon the condition annexed, " provided they 
 " were prejudicial?" 
 
 Sir FitzRoy Kelly. — ^What I was about to say is this : — Supposing that an Act of 
 Parliament as propounded just now by your Lordship contained what this Act of Parlia- 
 ment does not contain, that is a direct and express provision touching A by name, and 
 saying that an estate belonging to A shall pass from him to B, then of course there would 
 be an end of the question ; but I say that if there be an Act of Parliament pointing at 
 nobody by name, or by any other mode of identity, but merely saying that all acts or 
 grants of a certain description shall be quashed and annulled, you must prosecute an 
 Action of Reduction before any one grant can be quashed or annulled under that Act, 
 because you must show first that it comes within the description. If this Patent of the 
 
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 Dukedom of Montrose had been named in the Act, then I agree that the case would 
 have heen altogether different. 
 
 But I was now about to call your Lordships' attention to the evidences which 
 exist of the Duke of Montrose having assumed and borne that title under this Patent of 
 1488, and notwithstanding because after the Act Rescissory, and hefore it can be pre- 
 tended that it could have been by virtue of any new grant. 
 
 My Lords, the first of these documents is at the top of page 83 of the Supple- 
 mental Case, in which your Lordships will find a reference to an instrument which will 
 hereafter be laid before the Committee, being a grant by the Duke of Montrose and 
 Earl of Crawford to his wife. Duke David, styling himself " Dux de Montros," grants 
 to his wife, Margaret Carmichael, out of the customs of Aberdeen, which he appears to 
 have been possessed of, a pension of 160 marks. 
 
 Now this grant also is the more important because it is made the subject of a 
 Royal confirmation ; in that Royal confirmation (I mention this at once because I suppose 
 it will be observed upon by the other side) the Duke is styled Earl of Crawford ; still the 
 instrument itself in which he is described as Duke of Montrose is set forth in hcec verba, 
 and it is expressly and duly confirmed by the then King James IV. I will not stop 
 here to observe on his being here and there called Earl of Crawford ; that is a separate 
 part in the case which I shall dispose of hereafter and in a very few words, by showing 
 that, in documents without number and of every description, noblemen are continually 
 called, both in Scotland and England and elsewhere, as well by lower as by higher 
 titles. No inference can be drawn from that. But laying aside for a moment that 
 consideration, your Lordships here find that, after the passing of the Act Rescissory, and 
 at the time when it must be contended that that Act had annulled the grant of the 
 Dukedom of Montrose to the fifth Earl of Crawford, this individual, by the title of 
 Duke of Montrose — naming himself Duke of Montrose, which he could only be under 
 this Patent — makes the grant in question, and that grant, being Crown property, of course 
 required Royal confirmation. And there is a Royal confirmation by King James IV. 
 himself of this grant in all its terms, which is recited expressly and at length in the con- 
 firmation, and in which he is styled " Duke of Montrose." 
 
 Lo7-d Brougham. — He is not styled Duke of Montrose in the words of the con- 
 firmation, but only in the title. There are many charters granted and many deeds 
 made by a very well-known individual in this country at one time, calling himself the 
 Duke of Hexham. 
 
 Sir FitzRoy Kelly. — There are several other instruments ; and there is, amongst 
 others, one rather important instrument, a Protest made by the Duke of Montrose against 
 the resignation of the Sheriffdom of Forfarshire, in which he styles himself " Duke of 
 Montrose." There might be many other instruments of that description brought before 
 your Lordships, but I do not really rely upon them, although some reliance might be 
 placed upon them. I agree that it is not very strong evidence that a person, in a charter 
 or instrument to which many other persons are parties, called himself by a particular 
 title, though it is some evidence that he was openly bearing that title, and that therefore 
 it belonged to him ; but what I rely upon with reference to this title is, that this is 
 a charter which must have been brought under the attention of the Crown, and of the 
 advisers of the Crown, and in which King James IV. himself 
 
 Lord Brougham.— But he does not call him Duke of Montrose. 
 
 Sir FitzRoy Kelly. — Yes, in the instrument of confirmation he appears as Earl 
 of Crawford and he appears as Duke of Montrose. 
 
 Lord Brougham. — How does he appear as Duke of Montrose in that instrument ? 
 
 Sir FitzRoy Kelly. — Because the Royal Charter of Confirmation sets forth within 
 it, as part of it, the entire grant of the Duke of Montrose himself. 
 
( 7i ) 
 
 Lord St. Leonards. — How could they set forth the grant without stating it in hcee 
 verba ? When they come to the confirmation, then they make a difference in the title ; 
 but it does not appear when that Charter was granted ; in all probability the Charter 
 must have been before the Act Rescissory. 
 
 Sir FitzRoy Kelly.— The Charter itself is of the date of the 20th October 1488. 
 
 Lord St. Leonards.' — It is only three days after the Act. They were not very 
 quick in preparing Charters in Scotland. I do not think you can make anything of 
 that. 
 
 Sir FitzRoy Kelly. — I do not wish to press the point beyond its legitimate extent ; 
 but I am sure your Lordships will not lose sight of the fact, as if it were entirely imma- 
 terial, that the King^ and consequently the advisers of the King, confirmed the Charter. 
 I am speaking in the presence of the law advisers of the Crown, and I apprehend that 
 no law officer of the Crown would permit the Crown to confirm a Charter in which a 
 man had styled himself Duke of Montrose who had been deprived of the Dukedom by 
 an Act of Parliament, because the grant of it was prejudicial to the King himself. I am 
 sure that if any one of your Lordships had been Attorney-General or Lord Advocate in 
 that day, you would not have advised the Crown to confirm a Charter in which a man 
 had styled himself Duke of Montrose who had been deprived of his title for malpractices 
 against that very King of whom you were the adviser. I do not wish to carry it further. 
 I do not rely very particularly upon this ; I merely allude to it (and there are other 
 instruments of a like character) as some proof that it could not have been supposed by 
 the advisers of the Crown that the effect of the Act of Parliament was at once to deprive 
 the Duke of his title as Duke of Montrose, if they permitted the Crown to recite and 
 then to confirm a Charter in which he styled himself by that title. 
 
 Lord Chancellor. — Is the original of that document here ? 
 
 Sir FitzRoy Kelly. — Yes, we shall give your Lordships the original. 
 
 Lord Chancellor. — Does it appear where it was made ? 
 
 Sir FitzRoy Kelly. — Yes, I believe it does. 
 
 Lord St. Leonards. — Will you send up the original ? 
 
 Sir FitzRoy Kelly. — It shall be produced before your Lordships. It is not quite 
 at hand at this moment. 
 
 Lord Chancellor. — If it were executed at a distance from Edinburgh (no doubt 
 Edinburgh was the place where the Act Rescissory was passed), they probably did not 
 know of that on the 20th of October. 
 
 Sir FitzRoy Kelly. — It might be so, if the Charter of Confirmation was executed 
 at a distance. I will have that looked to. 
 
 Lord Chancellor. — He might easily call himself Duke of Montrose at that time, if 
 he did not know of the Act Rescissory ; and, having executed the deed at that time 
 by that title, the Crown confirms it, but says. We confirm it by the title of Earl of 
 Crawford. 
 
 Sir FitzRoy Kelly. — Your Lordships will also find referred to at page 89 a Pro- 
 test, made in the name of David Duke of Montrose, against a resignation, which he 
 deemed a compulsory and unjust resignation, of the sheriffdom of Forfarshire, which is 
 the subject of the next instruments. I merely mention that; I will not comment upon it 
 now ; it presents a point worthy of some consideration. It seems to recite that the King 
 had remitted to him any penalty or forfeiture by reason of any matters of complaint, on 
 the condition of his resignation to the Crown of the hereditary sheriffdom of Forfarshire. 
 Whether this may be legal evidence of it or not, it certainly leads to the conclusion that 
 something had taken place which, if it could be distinctly proved, would put a very 
 short end to all doubt about this question, namely — 
 
 Lord St. Leonards. — A protest behind the back of the Crown. 
 
( ?5 ) 
 
 Sir FitzRoy Kelly. — Yes, as far as the instrument itself goes, it seems as if it would 
 justify the observation that it was behind the back of the Crown, — but the Protest comes 
 from Lord Gray's Charter-chest ; there really is, therefore, the strongest reason to believe 
 that this Protest was actually delivered to the Crown — that it was not behind the back of 
 the Crown. 
 
 Lord St. Leonards. — I do not see any trace of that. 
 
 Sir FitzRoy Kelly. — I say so for this reason — I am not going to argue the point, 
 because I should unnecessarily weary your Lordships by doing so, but I think it may 
 very fairly be presumed for this reason : — the Crown, it seems, or the nobles who at that 
 time had the King in their hands, seems to have determined on compelling this nobleman, 
 the Duke of Montrose, to resign this hereditary sheriffdom, and to bestow it on one of 
 their own faction, the then Lord Gray, and accordingly the Duke was compelled to 
 resign the sheriffdom, which he did resign into the King's hands, and he made this 
 Protest ; and this Protest and the Procuratory of Resignation, and the Resignation itself, 
 together with the other instruments of the title to the sheriifdom in Lord Gray, are all 
 found together in Lord Gray's Charter-chest. If this therefore, my Lords, had been an 
 act done behind the back of the Crown, a secret act done by the Duke of Montrose in 
 order to enable him or his successors thereafter to question the act that they were 
 compulsorily about to do, it would have appeared in the Charter-chest of the Duke of 
 Montrose or of his successors, of the Earls of Crawford ; but this comes, together with the 
 other muniments of title respecting the sheriffdom of Forfar, out of the Charter-chest of 
 Lord Gray. This, therefore, having found its way into Lord Gray's Charter-chest, 
 cannot be said to have been secret and ex parte as regards the Crown. 
 
 Lord St. Leonards. — It does not appear when it got there. The Duke of Mon- 
 trose would hardly have dared to have communicated this Protest to the Crown at that 
 period. 
 
 Sir FitzRoy Kelly. — That may or may not be ; I merely state the fact ; but I do 
 not rely much upon the Protest. Certainly there is no proof when it got there, but there 
 it has been found, together with these other papers. I do not know why a brave and 
 independent nobleman, although he might have put himself in some peril, should not 
 have complained, and comj)lained loudly, of what he felt to be an act of injustice and 
 tyranny ; but be that as it may, I will not dwell further upon it. Here it is, not coming 
 from the possession of the Earls of Crawford, but coming out of the possession of Lord 
 Gray, together with other documents, to another of which, and a more important one, I 
 have next to call your Lordships' attention. I am told that the original is in the 
 Advocates' Library, and that it is a copy which comes out of Lord Gray's Charter-chest, 
 with other instruments. 
 
 My Lords, the next two instruments, which constitute parts of one transaction, to 
 which I will call your Lordships' attention, are of much more importance ; they will be 
 found referred to in page 89, and will be read in evidence before the Committee. One 
 is a Procuratory, or proxy, executed by David Duke of Montrose and Earl of Crawford. 
 It is addressed directly to the King, and it is empowering the Earl of Bothwell, Sir . 
 Alexander Lindsay, and others, to resign the sheriffdom of Forfar into the King's hands. 
 It is dated at Dundee the 1st of November 1488, and subscribed with the Duke's own 
 autograph "D. Doic off Montross," and with the Duke's original seal of arms, exhibiting 
 the ducal coronet which is attached to it. And under this Procuratory of resignation, 
 the next instrument, the Resignation itself, took place, which is also referred to at the 
 same page 89 ; and under it your Lordships will find that the persons who are authorized 
 to appear and to execute the instrument are Andrew MacBrek, Presbyter, the King's 
 Prothonotary, or chief Notary, Secretary, and Almoner, and so on, narrating the 
 
 L 
 
( ?6 ) 
 
 appearance of certain nobles, and among them " David Ducis de Montrose ac Comitis 
 " Crawfurdie," before King James IV., '' in camera regia apud Castrum de Hales," and 
 then follows the Protest I have alluded to. 
 
 Now, without troubling your Lordships with going through this, as the whole instru- 
 ment will be brought before the Committee, I may shortly state that it has this effect 
 upon the case. There are two instruments, the Procuratory and the Resignation, and in 
 both the Duke is styled throughout Duke of Montrose and Earl of Crawford : and this, 
 whatever may be said of the preceding document, cannot be called an ex parte or a secret 
 document. This is an instrument passing from the Duke to the King himself. It is 
 executed by MacBrek, of whom we have some account in history, who was the con- 
 fidential secretary of King James IV., was his notary, an officer of great importance under 
 him in those days. And moreover, it is an instrument which comes directly before the 
 King himself, because it is the ground, and the only ground and authoi'ity, uj)on which 
 the King afterwards grants this Sheriffdom to his favourite the Lord Gray, and under 
 which the Lords Gray held the Sheriffdom for several centuries. It is impossible, my 
 Lords, that any instrument can carry greater weight with it than this ; and it not only is 
 that in this instrument, to which the King is thus himself a party, the Duke is throughout 
 styled Duke of Montrose, but the instrument appears to have been executed before 
 several persons who were amongst the nobles or persons of consideration then forming 
 the Court of King James IV. — enemies therefore of the Duke of Montrose, who would 
 have been ready no doubt to impeach his right to this dignity, and who would have been 
 ready to prevent any act that would have given effect to his claim to the title, but who 
 nevertheless appear to have been present upon this occasion, when the instrument itself 
 was executed, " in camera regia apud Castrum de Hales." So that we have by this 
 instrument the most striking instance that can be exhibited of this nobleman, notwith- 
 standing the supposed operation against him of this Act Rescissory, claiming the title 
 and using the title of Duke of Montrose in a transaction with the King himself in person, 
 and that in the King's own castle, and that also in the presence of his enemies the 
 adherents of the King, who, if any one had an interest, would have had an interest in 
 preventing him from assuming or using this title. My Lords, it is the more important 
 because there are many authorities (with which also I need not now trouble your Lord- 
 ships) by the law of Scotland that, notwithstanding the forfeiture of a dignity, if the 
 King recognise him who has forfeited the title by that title, what is called in the law of 
 Scotland a rehabilitation takes place, and that has the effect of restoring him to his 
 honours, notwithstanding the forfeiture. All the legal authorities of Scotland are to 
 that effect, that, if the King recognises a title which may have been forfeited, that has 
 the legal effect of restoring the title. 
 
 My Lords, this again becomes of the greatest possible importance. Here is an 
 act not done in secret, but plainly and openly done, in a transaction to which the King 
 was a party, and done in the King's own presence, in the King's own castle, in the pre- 
 sence likewise of the enemies of him who claimed the title, and which has the solemn 
 . sanction not only of its antiquity, but of its having been the basis upon which the o-j-ant 
 to Lord Gray took place of this Sheriffdom, which, as I stated, has been enjoyed by that 
 family during the very long period of time that appears in evidence. 
 
 My Lords, there are other documents to which I need not now call your Lord- 
 ships' attention, but which will be given in evidence. 
 
 Lord St. Leonards. — How do you dispose of the objection which is to be found 
 in page 90 of your Supplemental Case, particularly towards the bottom ? 
 
 Sir FitzRoy Kelly.— I may say with regard to some of these objections, as well 
 as to some others, that some of them depend upon evidences, or rather upon documents. 
 
( ?? ) 
 
 which, for aught I know, may never be given in evidence. I am, of course, if your 
 Lordships desire it, quite prepared now to deal with all the evidence which can by any 
 possibility be given on the part of the Crown, or in support of any opposition by his 
 Grace the Duke of Montrose, but I am afraid it would perhaps unduly lengthen the 
 observations I have to make. But supposing any of these matters should be given in 
 evidence, it would really come to this only, that there are other documents that may 
 be given in evidence in which the King calls this nobleman by the title of Earl of 
 Crawford, and not of Duke of Montrose. I believe that is what your Lordship is 
 alluding to. 
 
 Lord St. Leonards. — I was alluding to the statement nearly at the bottom of 
 page 90. ^ " The resignation was not made on the 6th November, nor by the procurators 
 " of David Duke of Montrose, nor in the castle of Hailes and the King's chamber, but 
 " by the procurators of David Earl of Crawford, at Perth, on the 14th December." 
 Now that is a fact that is easily answered. I only refer to that because you have been 
 just now laying great stress upon its being done in the King's Chamber, and so on. 
 
 Lord Brougham. — What is the date of the Act Rescissory ? 
 
 Sir FitzRoy Kelly. — The I7th October 1488. That seems to raise a question of 
 fact which we deny, upon which we are at issue. 
 
 Lord Chancellor. — You will have to make out the affirmative as you state. 
 
 Sir FitzRoy Kelly. — Yes. I rather think I shall have much less difficulty in 
 doing that than my learned friends who are against me will have in making out the 
 negative, because I speak from the instrument itself according to this abstract. I have 
 no doubt that it is correct ; it purports to be made, " in camera regia apud Castrum de 
 " Hales." Now it is in these words, at least these are words extracted from it : — 
 
 " A notarial instrument executed by Andrew MacBrek, ' presbyter,' the King's 
 " prothonotary, or chief notary, secretary, and almoner, narrating the appearance of ' nobilis 
 " * et potens dominus Alexander Home de eodem, procurator irrevocabilis ad infrascripta 
 " ' magnifici et potentis domini David Ducis de Montrose ac Comitis Crawfurdie,' before 
 " James IV., 'in camera regia apud Castrum de Hales,' on the 6th November 
 " 1488, his production of the preceding procuratory, ' sigillo proprio dicti Ducis 
 " ' sigillatum, roboratum, et munitum, prout mihi notario publico subscript©, meis 
 " ' intuentibus oculis, evidenter constabat, ad resignandum nomine et ex parte dicti David 
 " ' Ducis ;'" and so forth. 
 
 Now upon this a question arises, which is one of almost a thousand details of this 
 case which it might be very inconvenient for me now to enter into. But we deny the 
 statement made on the part of the Duke of Montrose that it did not take place as the 
 instrument imports, but that it was probably at some other place or time. All I can say 
 is that we are at issue upon the fact. If it should turn out to be so, then the question 
 will arise how far it will take away from the effect of the document that it will 
 appear to have been executed at a different place from that which is stated upon the 
 
 face of it. 
 
 Lord Brougham. — You know that Scotch Acts of Parliament were not, like 
 those in England, made public immediately upon their passing. Possibly this Act, which 
 is dated on the I7th of October, may not have been made public until the end of the 
 Session, or at any rate not till after the 6th of November. 
 
 Sir FitzRoy Kelly. — That may have been so, but your Lordships will not forget 
 that this is a transaction to which the King himself in person is a party. He must have 
 known of the passing of the Act Rescissory. And moreover that this instrument is made 
 between Peers of Parliament, who also must have known of the passing of the Act 
 Rescissory. And therefore it is quite impossible but that all the parties to this important 
 
 L 2 
 
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 Instrument must have known of the Act Rescissory, and yet notwithstanding that they 
 recognized this title of Duke of Montrose throughout the proceedings. 
 
 My Lords, the effect of that I think ought not to be underrated, because, although 
 of course we are in some obscurity at this very great distance of time, and must be in great 
 doubt as to places, and as to dates, and as to all the particulars of the events which have 
 taken place, the very nature of this transaction shows that it is one which must have 
 attracted great attention, and especially the attention of all the parties to it, and who 
 were at all interested in it. It was one of those acts of spoliation and tyranny perpetrated, 
 not by King James IV., for he appears to have respected the loyalty and the other high 
 qualities of this Duke of Montrose as much as any man in his kingdom, but probably 
 by those who had him in their power, the other noblemen who were adverse to the Duke 
 of Montrose. They appear to have compelled the Duke to part with this hereditary 
 Sheriffdom out of his own family, that it might be conferred upon Lord Gray ; and those 
 who could exercise this act of violence on a man of the consideration, and character, and 
 power of the Duke of Montrose, must themselves have been at least equally powerful 
 with himself. It is impossible that those nobles who made the King a party to this act 
 of spoliation could have been ignorant of the passing of the Act Rescissory, which was 
 perhaps their own work, if it was meant to strike at this Dignity, or at any Dignities 
 granted by the deceased King James III. And the King himself must have known of it, 
 because he was made an Instrument in the hands of his nobles to the passing of that Act, 
 if indeed he were a party to the Act. Therefore the nobles who were parties to the 
 Instrument must have known it. The Duke must have known it ; he could not have 
 been ignorant of the Act, if it was intended to affect any Grant to him, whether of lands 
 or other property, or the Grant of the Dignity in question. Lord Gray, who was a Peer 
 of Parliament, must have known it also. Then this was a very solemn proceeding, 
 though undoubtedly a very iniquitous one, a proceeding by parties who were hostile to 
 the Duke of Montrose, who spared him neither in his property, nor in his Dignities, nor 
 in his person ; and all those persons who were parties to this transaction appear to have 
 recognized this Instrument in which he was throughout described as Duke of Montrose, 
 notwithstanding the operation of this Act Rescissory. My Lords, there are other circum- 
 stances attending it not altogether unworthy of consideration. He seals it with the 
 Ducal seal, and with the Ducal arms. One could hardly suppose that that would have 
 been done in the presence of jealous enemies, in the presence of persons ready to take 
 any advantage of him, and to do any mischief to him, unless it had been done as a matter 
 of clear and undoubted right, and unless it had been recognized by the Crown. And 
 if once I establish the proposition that the assumption and using of the title at this time 
 by the Duke of Montrose was recognized by the Crown, why, even if it could be contended 
 (which I hope it cannot successfully) that the Act Rescissory operated upon the Dignity 
 at all, this recognition by the Crown would have the effect of a rehabilitation, and would 
 restore the Dignity to the Duke. 
 
 My Lords, there is another point which I can dispose of very briefly, and to 
 which I will merely call your Lordships' attention ; the fact itself will hereafter be 
 proved in evidence. It is insisted by us that this Act Rescissory did not in point of fact 
 operate upon the grant in question to the Duke of Montrose. It is insisted upon the 
 other side that it did — that the grant was ipso facto, by the passing of the Act, annulled 
 and destroyed. Now, in addition to this use of the title by the Duke of Montrose under 
 the circumstances to which I have adverted, and in other documents that I will not now 
 stop to enumerate, but which will be given in evidence, your Lordships will find by the 
 instrument itself that the King, besides the Dukedom, granted to the Patentee the lands 
 and castle of Kinclevin, and the great and small customs of the Burgh of Montrose. 
 
( 79 ) 
 
 My Lords, undoubtedly these lands and customs, and the Dukedom, as far as the grant 
 itself is considered, rest upon the same foundation. I have shown your Lordships that 
 the title was used, and that the title was recognized, after the Act Rescissory, and before 
 any regrant. I will now proceed to show your Lordships that the property which was 
 granted, both the lands of Kinclevin and the great and small customs of Montrose, were 
 also received and enjoyed by the Duke under the grant, from the time of the Act 
 Rescissory until and after the time of the second grant. The grant itself, as your Lord- 
 ships are aware, was on the 18th of May 1488, the Act Rescissory I think was on the 
 17th of October 1488. The second Patent, which will hereafter have to be adverted to, 
 was on the 18th of September in the following year 1489. Now if this Act Rescissory 
 at once annulled the grant of 1488, the Duke had no title to the lands of Kinclevin, or 
 to the customs, great or small, of the Burgh of Montrose, from the date of the grant 
 until at least the date of the second grant in September 1489. And inasmuch as these 
 were Royal possessions, it was the King, and consequently the advisers of the King, who 
 had to determine the question upon the Act itself whether these lands and these customs 
 should be enjoyed or not under this grant. We find by the Exchequer Rolls of that 
 time, which are what I may call Government documents — documents prepared and kept 
 by the officers of the Crown — we find that the Duke of Montrose received the rents of 
 Kinclevin and the customs, great and small, of the Burgh of Montrose, and that he 
 received them through the officers of the Crown. They were accounted for by the 
 officers of the Crown to the Crown itself, as having been paid to the Duke of Montrose 
 during the very period in question, from the Act Rescissory down to the time of the 
 second grant, as well as afterwards. That instrument will be found in page 85. I wish 
 as much as I can to shorten this argument : I will not therefore read the document par- 
 ticularly, as it would require some calculation, but in page 85 it is referred to, and in 
 page 86 there are the figures by which it will appear that these rents were actually paid 
 by the officer or agent of the Crown, and that the great and small customs of the Burgh 
 of Montrose were accounted for as paid to him between the officer and the Crown itself 
 And that account is recognized, and now constitutes the Exchequer Rolls of the period 
 in question. 
 
 Now, there cannot be a stronger proof than that, because there never were 
 wanting enemies in those days to the Duke of Montrose. The Crown, whatever may 
 have been the personal feelings of the King, was anything but favourably disposed 
 towards any rights claimed by the Duke of Montrose under this grant, or indeed claimed 
 by any of the grantees of James III. ; and yet we find that, without opposition, the 
 Duke is permitted to receive (and he could only receive them under the grant in ques- 
 tion) the rents and customs to which I have alluded, notwithstanding the operation of 
 the Act Rescissory. I am aware, again, that on this point, in the case of the present 
 Duke, we find a statement of further and later Exchequer Rolls, which it is insisted go 
 to show that these rents were only enjoyed by the Duke during his life-time. My Lords, 
 it would not become me to anticipate, one way or the other, whether the law officers of 
 the Crown will think fit to make use of this and other documents suggested to them and 
 supplied to them by the present Duke of Montrose against this claim. Of course, were 
 I to comment upon such evidence, and it should never be offered in evidence, it would 
 be a waste of your Lordships' time. If, on the other hand, it be offered in evidence 
 here, then I shall have an opportunity of commenting upon it at a future period. All, 
 therefore, that I feel myself at liberty or called upon to say now is simply this : No 
 doubt it will be found at various points of this case that the Duke of Montrose was com- 
 pelled to give up property to which I insist that he was entitled ; no doubt it will be 
 found that his successors failed to exercise the rights which they possessed if this claim 
 
( 80 ) 
 
 be well founded. But, my Lords, it is impossible to look at the history of the times 
 and not to feel that there is enough not merely to account for the immediate successors 
 of the Duke of Montrose failing to enforce their rights against the powerful opposition 
 of the nobles of the time^ supported as those nobles were by the King himself, but rather 
 to excite your Lordships' surprise that the Duke himself— high as he was in character, 
 and great as was his power — succeeded in maintaining his own rights for so long a time 
 and to so great an extent as he did succeed in maintaining them against the mighty and 
 almost irresistible opposition which he met with throughout the whole of his life from 
 the adverse and jealous nobles at the Court of King James IV. Therefore, should that 
 be oflFered and established in evidence, it will be no more than one of many instances of 
 power prevailing against right, of the law being disregarded, and of the weaker falling 
 before the stronger in those troubled and lawless times. 
 
 Now, the next subject to which I shall have to draw your Lordships' attention 
 (and I will do so in a very few words indeed) is a series of documents, which will be 
 offered in evidence to this effect and for this purpose. We have to submit that the Act 
 Rescissory had not in point of law, and also that it had not in point of fact, the effect of 
 defeating the grants of King James III. at the period in question. If that Act had the 
 legal effect which is now contended for on the part of the Crown, why, at once, upon 
 the passing of it, all grants made upon the 2nd February by James III. would have 
 become void, and the property which passed under them must have become forfeited, 
 and when it belonged to the Crown must have returned to the Crown, and without, as 
 it must be insisted, any subsequent process of reduction or otherwise. But I will show, 
 my Lords, by a series of documents, that grants of property, granted not to the Duke of 
 Montrose or to the Earl of Glencairn, but to a great variety of persons, public bodies 
 (the grants of which property, therefore, must have been notorious), as well as to 
 private individuals, adherents of King James III., were never questioned, and were not 
 operated upon in fact by the Act Rescissory, but remained in the possession of the 
 grantees, and were dealt with as their property, and were made the subjects of re-grants, 
 and of confirmation and of other transactions, by the grantees ; and that as to some of 
 the property so granted within the period in question, it has been held without opposi- 
 tion from the very date of the grant, from the time of King James III. to the present 
 moment, at which I am now addressing your Lordships. 
 
 My Lords, there are a great many of those grants, but one or two will be suffi- 
 cient ; one will, in fact, do for all. One is a grant to the burgh and burgesses of Brechin, 
 which is in page 42 of the Supplemental Case. Your Lordships will find that that is a 
 grant by King James III. on the 28th April, 1488 ; of course, therefore, after the 2nd 
 February ; conferring upon the burgh of Brechin the right of levying the petty or small 
 customs of the burgh, previously drawn by the Crown, in reward for the loyalty of the 
 citizens during the pending contest. 
 
 Lord St. Leonards.- — ^How is that about the style ? 
 
 Sir FitzRoy Kelly. — This was after the commencement of the year. 
 
 Lord Brougham. — They know nothing about Old Style and New Style in 
 Scotland. 
 
 Sir FitzRoy Kelly. — Yes, I rather believe that the Old Style prevailed in Scot- 
 land. I believe the same usage prevailed in Scotland as in England, namely, that the 
 year began on the 25th of March. The 2nd of February would be the 2nd of 
 February 1487- 
 
 Lord Chancellor. — That is, what we should call 1488, they would call 1487: 
 according to the Old Style, the 28th of April 1488 was before the 2nd February in 
 that year. 
 
( 81 ) 
 
 Sir FitzRoy Kelly. — Yes, but not before the 2nd February which is pointed out 
 in this Act. ' The King was still alive up to 11th June 1488. The 2nd of February 
 pointed at by the Act Rescissory was the 2nd of February according to the Old Style, 
 1487 ; but, as we should say now, the 2nd of February 1488. 
 
 Lord St. Leonards. — It does not so appear on the face of the documents. 
 
 Sir FitzRoy Kelly. — Yes, my Lord, this document is given in April. 
 
 Lord St. Leonards.— Qwi that would not be before February of the Old Style. 
 
 Sir FitzRoy Kelly. — It would be before February, 1488 ; it was before the 
 February of the Old Style, but it was after the February which is alluded to in the Act 
 of Parliament. If your Lordships will look to the Act Rescissory you will find that it 
 does not mention any year by number; but this question will not arise if your Lordships 
 will bear in mind that the Act Rescissory passed in October, 1488. The words of the 
 Act are, "since the 2nd day of February last by- past." Now it is no matter whether 
 we call the 2nd of February, 1487 or 1488, it is the 2nd of February that was next 
 before the I7th October, 1488. 
 
 Lord St. Leonards. — Yes, I think that is right. 
 
 Sir FitzRoy Kelly. — The document to which I am now referring your Lordships 
 is dated the 28th of April, 1488 ; that would be the 28th of April next before October, 
 1488, the date of the Act Rescissory, and next before the 11th of June, 1488^ when the 
 King died, so that this was clearly within the period in question. 
 
 Lord Brougham. — Then what is the date of the creation of the Patent? 
 
 Sir FitzRoy Kelly. — The 18th May, 1488, the month after the date of this 
 document, the month before the death of the King, and some six months before the 
 month of October^ when this Act Rescissory was passed. This grant to the burgh of 
 Brechin therefore was a grant after the 2nd of February, but before the Patent in 
 question, and by that your Lordships will see that if any grant at all could be con- 
 sidered as annulled by this Act Rescissory, it must have been this grant, because it 
 recites this : " Noveritis quod bona communia et res publice civitatis Brechinensis sunt 
 " modici valoris et eadem civitas liberum existit burgum ac de eodem taxationes et 
 " contributiones sumuntur ut de ceteris nostris burgis nee non pro fideli gratuito servitio 
 " per ballivos et communitatem ejusdem civitatis et burgi nunc tempore inquietationis 
 '• et guerrareum nobis multipliciter impenso et impendendo." It was expressly, there- 
 fore, for services rendered during these wars and in these troubles, and if the Act 
 Rescissory was to have any reference or operation at all, it was certainly intended by the 
 framers of it to refer to and to embrace Acts like this. That is a grant of the customs of 
 the burgh of Brechin ; and without going further into the case I may observe, that not 
 only was that never touched or questioned by the Act in question, but those customs 
 have been enjoyed, as we believe we shall be able to show, by the burgh of Brechin, to 
 the present day under this very grant. 
 
 My Lords, that is only one out of a very great number of instances. There is 
 another, which I will just allude to because it was to an individual, the last being to a 
 public body. There is another, to one Sir Thomas Collace, of Balnamoon, referred to 
 at page 34, being a grant of a part of the Forest of Kilgarry ; and then there is a subse- 
 quent grant, after the Act Rescissory, in which this is dealt with and in which it is 
 confirmed, but in such terms as to show that it was held at that time under the original 
 title, and that that title had never been impeached or afiected under the Act Rescissory. 
 
 So that your Lordships will find that it will appear, by a long series of these 
 documents, of which one example will quite suffice for the purpose of the present 
 argument, that a number of grants were made by King James III. to public bodies and 
 to individuals of property of greater or less value — certainly some of them property of 
 
(.82 ) .• 
 
 very considerable value, within the period attacked by this Act of Parliament, which 
 grants have never been questioned, but the property passing under such grants has been 
 held and dealt with afterwards, and perhaps even may be held to the present day by the 
 grantees or those who claim under them : this will be another strong proof, upon the jorin- 
 ciple of contemporanea expositio, that this Act* of Parliament, like many other Acts of this 
 description, really fell a dead letter at the time from the Legislature ; that, whatever 
 may have been the tyrannical and wicked intention of the framers of the Act, the nobles 
 of the day, even they were not powerful enough to cause it to operate upon the actual 
 property or upon the dignities of those whom it was intended to affect; and that conse- 
 quently it cannot be held at the present day so to have operated. 
 
 My Lords, when this evidence shall be laid before your Lordships, it will also 
 raise a question not altogether to be lost sight of in the consideration of this case, whether, 
 if we find that this Act of Parliament, so general and so vague in its terms, but which, 
 in order to have any operation at all, must have operated upon some grants or other, either 
 of dignity or of property, made by King James III. during the period in question, if we 
 find that from the very day when this Act of Parliament was passed down to our own 
 time there is no proof or trace of its having operated de facto, or of its even having been 
 held by any competent court of justice to have operated dejure, upon any of the grants of 
 the kind made by King James III. — it will be a question for your Lordships' considera- 
 tion, sitting here as a quasi Scotch court of law, whether this Act of Parliament may 
 not be said to have fallen into desuetude, and so to have lost all force and effect whatso- 
 ever. Your Lordships are aware that the law of Scotland in that respect is different 
 from the law of England : it recognises a principle different from that of the law of 
 England with regard to the cessation of Acts of Parliament, namely, that Acts, either by 
 not being referred to or used at all, or by reason of the usage being found inconsistent 
 with the Act, have fallen into desuetude, and become of none effect. My Lords, there 
 is high authqrity for that. Erskine, and all the other text-writers, show that that is the 
 case according to the law of Scotland ; and should it become necessary (though I trust it 
 will not) to go into that question, I think your Lordships will be of opinion that such 
 has been the case with regard to the present Act of Parliament, and that, as it did not, 
 in fact^ operate upon any of the numerous, I may say innumerable grants made during 
 that period by James III., it has fallen into desuetude, and so become of none effect. 
 
 Now, my Lords, I have to call your attention to another point which arises, and 
 upon which I must say, should your Lordships, contrary to the expectation of those who 
 have advised the Earl of Crawford upon this claim — 
 
 Loi'd Chaticellor. — What further time shall you require ? 
 
 Sir FitzRoy Kelly.— My Lord, I am very much afraid to answer that question, 
 because one really does not know what discussions may arise upon the views which may 
 be taken by your Lordships upon any of these questions. But I can positively under- 
 take that, if we can have anything like an entire day to-morrow, I shall certainly finish, and 
 I hope enter upon the evidence. It is a consolation to me, in occupying so much of 
 your Lordships' time in the opening, to know that, by referring to the substance of these 
 documents in addressing the Committee, I shall render it unnecessary to do more than 
 state Avhat the documents are, and under what head of the Case they are put in, as the 
 evidence is offered. I have not the least doubt that, if it would be consistent with your 
 Lordships' convenience to give us to-morrow for it, not only my opening will be con- 
 cluded, but that we shall make some way with the evidence. 
 
 Chairman. — We will adjourn to to-morroAv at eleven. 
 
 Lord Advocate.— Msij I be permitted to make an observation with regard to the 
 judgment of Lord Loughborough? I understand that Mr. Robertson, who took the 
 
( 83 ) 
 
 notes, has the original copy which he took with the additions made by Lord Lough- 
 borough in his own hand-writing in red ink. 
 
 Lord Brougham. — I was confident that Mr. Robertson must have authority for it. 
 
 Sir FitzRoy Kelly.— 1 am very glad indeed to find that there is therefore no ground 
 at all to impute any inaccuracy to Mr. Robertson ; of course, we must take it as it is. 
 
 Lord Advocate.— My. Robertson is here, and he states that the red ink additions 
 represent the notes made by Lord Loughborough. 
 
 Sir FitzRoy Kelly.' — May I ask my learned friend whether that exactly corresponds 
 with the print of the Judgment in the Duke of Montrose's case ? 
 
 Lord Advocate. — I presume that it does. 
 
 Adjourned to To-morrow, Eleven o' Clock. 
 
 M 
 
( 85 ) 
 
 FRIDAY, 22nd JULY, 1853. 
 The Lord Redesdale in the Chair. 
 
 Sir FitzRoy Kelly. —Mj Lords, I have now to submit to your Lordships that if 
 this Act Eescissory can be held to have annulled the grant of James III., this Act itself 
 has been repealed. My Lords, in order to consider the effect of the Act of 1503, which 
 I have now to contend repealed the Rescissory Act, if indeed that Act was then in force 
 at all, we must look again for a moment to the history of these times. King James IIL 
 having perished near Stirling, and having been succeeded by James IV., the nobles who 
 had opposed James III., of course having then gained the ascendant, constituted the 
 principal personages in the Parliament of October, 1488. And if, disregarding the words, 
 and what I have submitted to be the principles of legal construction to be applied to 
 those words, as found in the Act of Parliament, your Lordships are to take what you 
 may believe, historically speaking, to have been the real intention in the minds of the 
 framers of this Act, it may be conceded that they desired by this Act to humble, and 
 perhaps to crush the adherents of James IIL, to confiscate their property and their 
 honours. But, my Lords, although that was no doubt the predominant sentiment in 
 the minds of the nobles of the time, it certainly was not shared in point of fact by King 
 James IV., for it is manifest from all histories of the time that James IV. retained an 
 aflFectionate and remorseful recollection of his father, and of his own conduct towards 
 his father in his latter days, and towards his father's memory, after his own succession 
 to the throne. We find that he was personally attached to this very Duke of Montrose ; 
 we find also from incontestable proofs in history that he was soon a prey to remorse 
 for the course which he had taken, and endeavoured by every means in his power to 
 expiate what he must have felt to be his own crimes towards his father and his father's 
 memory. And, my Lords, these sentiments were not confined to the King ; not only do 
 all historians speak of the conduct of these rebellious nobles in much the same terms in 
 which I have ventured to speak of them in addressing your Lordships ; but we find also 
 that not long after the death of James IIL, all who had participated in the Rebellion 
 which had been raised against him were excommunicated by the Pope. And it was some 
 years afterwards, when better feelings began to prevail, when the King, yielding to 
 remorse, had himself repented of his own acts towards his father and his father's 
 memory, that at length there was a Bull by Pope Innocent VIII., dated the 27th of 
 June, 1491, which your Lordships will find printed (and it vdll be quite unnecessary 
 for me further to refer to it), No. 6, at page 7, of the additional printed paper which I 
 have handed in to your Lordships, containing the most important documents in this case. 
 It is quite manifest therefore, my Lords, from that document, that the Pope had been 
 applied to for pardon and absolution, and that accordingly he had at length issued this 
 Bull, denouncing in fit and apt terms the conduct of those rebellious nobles, but at the 
 same time pardoning them by this Bull on certain conditions of penance contained in 
 the instrument, and so absolving them from their offence. 
 
 Now, my Lords, this I merely mention, and here refer to. The instrument itself 
 will be given in evidence for the purpose of showing the change that had been worked 
 in the mind of the King, which is still more clearly and incontestably proved by two 
 other documents to which I have now to call your Lordships' attention. 
 
 M 2 
 
( 86 ) 
 
 My Lords, after the lapse of years, and when King James IV. had had full 
 time to reflect upon the merits of the question between himself and his deceased father, 
 when he had, as your Lordships had found, himself shewn his sense of the loyalty and 
 of the great merits of this very Duke of Montrose, his father's chief and most powerful 
 adherent, he appears to have determined, as far as lay in his power, and to have 
 influenced the Parliament itself, to aid him in carrying into effect that determination 
 to do all the justice in his power to the memory of his father, and to those adherents 
 who had been faithful to him in his adversity and danger, and also to do all for the 
 " health of his own soul," to use his own expression, that he could, to shew his 
 repentance and remorse for the part which he had taken. Your Lordships will find at 
 the bottom of page 8 of the same printed paper three instruments, to the first and third 
 of which I will briefly direct your Lordships' attention. Your Lordships will find that 
 the first of these Acts (for they are Acts of Parliament) had the effect of dissolving the 
 annexation of the kirk of Kirk Andrews from the Lordship of Galloway. And then there 
 is a grant of this Church to be annexed to the Chapel Royal of Stirling, which in point 
 of fact had been endowed by King James IV., for pious uses, in respect of his father's 
 soul and memory. And then we find by the third Act, that the King, " with authority 
 " of Parliament, ratifies and approves the foundation and infeftment made to the College 
 " of Stirling, called his Chapel Royal, both of kirks, prebends, canonries, and lands, and 
 " unions of the same, after the form of the foundation writs and evidents, made there- 
 " upon, notwithstanding any annexations or union made of the said lands, prebends, 
 " or kirks of before." It will be shewn that that had reference to the object which he had 
 in view. But I will now call your Lordships' attention at once to the Acts of Parlia- 
 ment, the second of which appears here ; and I must^ say that if it be possible for your 
 Lordships to hold that upon historical ground, and by reading the acts with the light of 
 history, this Act Rescissory had the effect of annulling the grants of James III. because 
 it is to be held that they were or might be prejudicial to King James IV., it is im- 
 possible not to hold also that this Act had the effect of repealing the Act Rescissory. 
 
 I will now read to your Lordships the Act itself. " The which day our Sovereign 
 " Lord revoked, with consent of the Three Estates of the Parliament, all donations, gifts, 
 " acts, statutes of Parliament or General Council, and all other things done by him 
 " in times bygone, either hurting his soul, his Crown, or Holy Kirk. A.nd that the 
 " said donations, gifts, acts, statutes, or other things thus revoked, be had for not done, 
 " and to be put forth of the books and writings." 
 
 Mj Lords, this expressly alludes, besides a variety of other Acts and proceedings, 
 to Acts of Parliament, Statutes of Parliament or General Council. Now, upon what 
 ground can this Act Rescissory, if it was in operation at all, be excluded from the 
 operation of this Act of Parliament ? Why, my Lords, if the Act Rescissory is to 
 have effect upon ,the ground that, looking at history, these grants of King James III. 
 might be deemed prejudicial to James IV., surely no man living can deny that Kino- 
 James IV. must have remembered that he became an instrument in the hands of others 
 or himself personally aided in opposing by treason and rebellion, even by arms his 
 own father and his own lawful sovereign ; and surely it cannot be doubted that that 
 would be hurtful to his own soul and conscience, as well as to his Crown and Holy 
 Church — that he should have been party to an Act of Parliament for confiscating the 
 property and the honours of one of the most loyal subjects of his father, of one of the 
 best and most meritorious men in his father's or in his own dominions. 
 
 Lord Brougham. — You see different men form different opinions with respect to 
 soul and conscience. For instance, I see at page 91 of your case, " Mary Queen of Scots 
 ever just and generous to all men, more especially to James Edward, Earl Bothwell." 
 
( 87 ) 
 
 Sir FitzRoy Kelly. — My Lord, that probably was Her Majesty's own judgment 
 upon her own merits. 
 
 Lord Brougham. — But that is an expression which you have adopted in your 
 own case — it is your judgment.* 
 
 Sir FitzRoy Kelly. — I am submitting to your Lordships that what I say is the 
 reasonable meaning of this Act, I defy any man to put any other reasonable meaning 
 upon this Act of Parliament, which is evidently the composition of the King himself, 
 and for the sake of his own soul, and of his own conscience, but the construction which 
 I venture to put upon it. He must have felt among other things, here is an Act of 
 Parliament which puts in peril, if it does not actually confiscate and destroy. 
 
 Lord St. Leonards. — How do you make out that that was hurtful to His Majesty's 
 soul, his Crown, or Holy Kirk ? 
 
 Sir FitzRoy Kelly. — I am putting it in this way, I perhaps might be permitted 
 to answer the q^uestion by another question — How is it to be made out that a reward 
 conferred upon a loyal subject, and for long and meritorious services, is prejudicial to 
 the Crown ? But passing that by, I answer your Lordship's question with the utmost 
 confidence, appealing to the heart and conscience of every man who hears me, what was 
 the Rescissory Act of Parliament ? It was an Act of Parliament, by which, if it has the 
 construction contended for, the Duke of Montrose, a faithful and a loyal subject, was 
 deprived of his property and of the Dignities which had been conferred upon him as 
 the reward of his faithful and loyal services, and to that Act the King was party. Is it 
 not a crime, is it not hurtful to the soul of any King, or of any man ? 
 
 Lord St. Leonards. — You mean that his being a party to the Act Rescissory hurt 
 his soul ? 
 
 Sir FitzRoy Kelly. — I conceive so. 
 
 Lord St. Leonards. — I confess it is a crime that would have sat very lightly upon 
 my conscience. 
 
 Sir FitzRoy Kelly. — What, to have deprived a loyal and faithful subject of a 
 Dignity that had been conferred upon him for his services to the King's own father ? 
 
 Lord St. Leonards. — Men take different views of particular Acts according to the 
 circumstances of the times. 
 
 Sir FitzRoy Kelly. — It is perfectly clear, my Lord, this man had really no 
 different view, because we find that the Pope's Bull expressly points out the Acts of these 
 rebels and traitors as offensive to the Holy Church, and therefore we must take these 
 Instruments together, and we must consider what were the circumstances of these times. 
 What could this mean ? I invite the attention of my learned friend the Lord Advocate to 
 these words, and I ask you to put any different construction upon them, and to say what 
 does the King intend when he uses the expression that he revokes all donations, gifts, 
 acts, statutes of Parliament, and of General Council hurtful to my own soul ? What 
 can that mean ? Here was a King, who was the son of the King who had preceded him 
 upon the Throne. That King had been made the victim of rebellion and treason, he 
 had been put to death, and then there had been among other events in history an Act of 
 Parliament to which this King was a party, by which, instead of rewarding those who 
 had shovra their loyalty, and their courage, and devotion to the Crown by defending the 
 
 * The passage alluded to in the Claimant's S. Case is as follows,— it occurs in illustration of the legal effect of Notarial 
 Protests (such as that of David Duke of Montrose against the compulsory resignation of the Sheriffdom of Forfarshire) in 
 keeping open or reserving legal rights in those days of violence :— " For example, when James V. compelled David, after- 
 " wards ninth Earl of Crawford, to engage to resign to him the whole Earldom of Crawford adperpetuam renmnentiam, to 
 " remain for ever consolidated with the Crown, if called upon to do so, the Earl caused a Notarial Protest to be executed, 
 " dated the 6th January 1542, which duly availed twenty-four years afterwards, when, on the 3rd March 1566, Mary Queen 
 " of Scots, ever just and generous, ' discharged ' or remitted to his successor the engagement thus iniquitously exacted by her 
 " father." There is no mention of Bothwell whatever. 
 
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 King in the field, the honours and the possessions of those loyal subjects who had so 
 defended him were confiscated and destroyed. Your Lordship says very truly, that it 
 is not to be doubted that any King, or any Nobleman, or any Statesman, may take 
 different views of the same question, or of the merits of a particular Act ; but it must be 
 remembered that this Act of Parliament comes after efforts have been made by the King 
 and by the Nobles to reconcile themselves to the Holy Kirk (to use the expression in the 
 Act of Parliament itself), and to obtain absolution for the very Act which is here alluded 
 to, their rebellion against their lawful Sovereign King James III. Then what meaning 
 can be given to it ? What meaning can any man ascribe to this Act of Parliament ? 
 Here it is in a more incontestable form in the Parliamentary Rolls of Scotland than the 
 Act Rescissory which is in question. Here is an Act of Parliament of which it is im- 
 possible to exaggerate the iniquity and the wickedness^ an Act of Parliament which, as I 
 say, deprived one of the most loyal subjects that ever served the Crown in any country of 
 the rewards which he had received for his loyalty and devotion to his Sovereign, con- 
 fiscated his property, degraded and dishonoured him, and also did the same to the loyal 
 subjects of the Crown. Those who were parties to such acts of iniquity incurred the 
 displeasure of the Church — they were excommunicated — they were at last pardoned, 
 but they were pardoned upon the condition of proper penance being done. And then 
 comes this Act of Parliament to which King James IV. was a party, and by which he at 
 once rescinds and annuls all Acts done whatsoever, and amongst others all Acts of 
 Parliament which may have been passed, which were, as he says, hurtful to his own soul. 
 
 Now, looking to the circumstances which existed at this time in the kingdom of 
 Scotland, I certainly venture to submit to your Lordships that no other construction can 
 be put upon this Act of Parliament than that the King here meant to expiate the 
 offences that he had committed by at once nullifying and rescinding, in the most solemn 
 and binding form, all Acts whatsoever to which he had been a party, which were calcu- 
 lated to hurt his own soul in respect of the memory of his father. 
 
 Lord Brougham. — Does the second member of this sentence, and which appears 
 in pages 8 and 9, appear anywhere else except in this printed paper ? Does it appear in 
 any other part of the Statute Book ? Because there is some little doubt in my mind 
 whether this is not a mere recital introductory to the provision respecting the College of 
 Stirling. It says, Whereas the King had done so and so. 
 
 Sir FitzRoy Kelly. — That will be brought before your Lordships. 
 
 Lord Brougham. — I want to know whether it is in any other shape. 
 
 Sir FitzRoy Kelly. — I am unable to state to your Lordship in how many different 
 places it is to be found, but it is in the regular Statute Book. 
 
 Lord Brougham. — What you have now cited is in the regular Statute Book ; but 
 is this particular Act to be found anywhere else except in this Book ? You see it is 
 introductory to the provisions respecting the College of Stirling, the Chapel Royal. 
 
 Sir Fit: Roy Kelly. — These are all Acts of Parliament; your Lordships will see 
 that it begins in just the same way that other Acts of Parliament do : " The which day 
 " our Sovereign Lord;, with the authority of Parliament, dissolved the annexation." 
 That is one Act of Parliament. Then, " The which day our Sovereign Lord revoked, 
 "■ with consent of the Three Estates of the Parliament, all donations, gifts," and so forth. 
 That is another Act of Parliament. Then^ " The which day Our Soverane Lord, with 
 " authority of Parliament, ratifies and approves the foundation and infeftments made to 
 " the College of Sterling," and so forth. It seems extremely difficult to put any other 
 construction upon this Act of Parliament ; one does not see what other meaning can be 
 given to the words at all. Here is a clear, plain Act of Parliament, with all the force of 
 an Act of Parliament, in the same Roll and in the same form as all the other Acts of 
 
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 Parliament of that time. It is quite clear that it must have been an Act of Penance. 
 It is an Act passed with reference to something which had been done, and which the 
 King appears to have thought hurtful to his soul, and offensive to the Holy Church, and 
 it may be added, injurious to the Crown. And I can imagine nothing which comes more 
 clearly within each one of these expressions, than that the very Act which I am contending 
 is repealed by this Act of Parliament. First, my Lords, is it not hurtful to the soul of 
 a son that he should have deprived a loyal subject of the reward that his father had 
 conferred upon him for the defence of that father in times of peril and of trouble ? Then 
 again, is it not hurtful to his Crown ? Why the Act Rescissory, which I am contending 
 is repealed by this Act of Parliament, is hurtful to the Crown of every King that wears 
 a Crown. It is an Act directly for the encouragement of rebellion and treason, and 
 murder and pillage, because it goes to gratify and reward those who had broken out 
 into open rebellion against their lawful Sovereign. It goes to deprive of their rewards, to 
 deprive of their honours, their dignities, and their possessions, those who had defended 
 the Sovereign in the field of battle. Why, my Lords, is not such an Act, with such an 
 effect, if that be its effect, hurtful to the Crown of every King ? Was it not hurtful to 
 the Crown of Scotland, as tending to discourage other loyal subjects in times of danger 
 from supporting the King at the peril of their own lives ? If there had been, the very 
 next day after the passing of this Act, a Civil War in Scotland, a rebellion against 
 James IV., would not that very Act Rescissory have had the effect of discouraging all 
 but the bravest amongst the brave from supporting him and defending him ? And if that 
 be so, is it not hurtful to the Crown that such an Act should be in existence ? And may 
 it not, when the time had come for reflection and for repentance, may it not well have 
 been one of the Acts directly within the view of the King as hurtful to his Crown, and 
 which therefore he was about to rescind ? 
 
 My Lords, with regard to the third and last expression, " Holy Kirk," it is 
 almost adopting the very words in the Pope's Bull. The Pope's Bull, which I shall not 
 read at length to your Lordships, but which appears in the preceding page, and to 
 which I will content myself with directing your Lordships' attention, expressly recites 
 that these " inhabitants of the kingdom " — 
 
 Chairman. — The Pope's Bull is twelve years before the Act of Parliament 
 passed. 
 
 Sir FitzRoy Kelly. — It is, my Lord ; but it is quite clear that the question had 
 been agitated, and continued to be agitated dovra to this later period of the reign of 
 James IV. in 1503. 
 
 Chairman. — I see that this Act was passed in 1503-4. In the statement of Mr. 
 Young, the Somerset Herald, which is referred to in this book in the Glencairn Cases, I 
 see that Cuthbert Lord Kilmaurs was made an Earl by belting in 1503. Was that 
 prior to the passing of this Act Rescissory, or subsequently to it ? 
 
 Sir FitzRoy Kelly. — I really am not able to answer your Lordship with any 
 certainty. We do not put much faith in the statement of the Somerset Herald. I will 
 endeavour to ascertain, but I am unable at this moment to say whether it was before or 
 after the passing of the Act. I am told by my learned friend the Lord Advocate, it was 
 six months after the belting. However, my Lord, what I was observing was, that the 
 Rebellion had been by the Pope, and all the ecclesiastical authorities of the kingdom, 
 denounced as offensive to the Holy Church, and therefore it does really seem to 
 come directly and precisely within the last expression here used. Upon this point, 
 therefore, what I humbly submit to your Lordships is, that although I cannot for one 
 moment believe that your Lordships will put such a construction upon this Act 
 Rescissory as to hold that the granting of this dignity, or any other grant of James III., 
 
( 00 ) 
 
 could be deemed prejudicial to the Crown of Scotland, still if such should be your 
 Lordships' opinion, then I submit that it would follow as a necessary consequence that 
 that Act is repealed by this subsequent Act, which was passed evidently for the purpose 
 of striking at anything which might have been done by the King, which, with reference 
 to the then altered state of his feelings, and with reference to the repentance and 
 remorse natural upon the course which he had taken towards his father, might properly 
 be deemed hurtful to his soul^ or to his Crown, or to Holy Church. My Lords, I now 
 come to the question of the Second Patent. 
 
 Lord St. Leonards. — There is a book of authority, Leland, in which I find the 
 following passage, which, as far as I can make out, appears to refer to the 13th of 
 August : " The 13th day of the said month, being Sunday, the Queen was led to the 
 " Church, accompanied by the prelates, the Earl of Surrey, the Lord Chamberlain, and 
 " the ladies richly arrayed," and so on. " After her came the King in the manner of 
 " the days before said, arrayed in a gown of cloth of gold," and so on. " At the 
 " oflfering were assembled three Noble Lords to be made Earls in the Queen's presence, 
 " and when Mass was done they were presented to the King by Marchmont, herald. 
 " First, they promised to hold their oaths, and then the King girdled them with the 
 " sword about their shoulder, and gave them their Lordships to them and to their heirs, 
 " Then Marchmont, herald, together with his companions, cried largesse in the self 
 " place, and first largesse James Darene Lord of Hamylton, Baron, Banneret, and Lord of 
 " Parliament : 2ndly, Largesse William Conte de Montros, Lord of Granne, Baron, 
 " Banneret, and Lord of Parliament : 3rdly, Largesse Cuthberd, Conte de Glencairn, 
 " Lord de Kilmarres, Baron, Banneret, and Lord of Parliament. After this done the 
 " King took the Queen and led her to the Company," and so on. According to that it 
 would seem that those Peers were actually created on that day. 
 
 Sir FitzRoy Kelly. — I do not apprehend that it can be contended that this Act 
 was meant to apply to any of the proceedings of that day. 
 
 Lord St. Leonards. — If this Act had immediately preceded that Act, it might 
 have been argued from it that the ceremony of belting was an acknowledgment of Lord 
 Glencairn being restored to his title, which had been granted to him under the former 
 Patent of 1488. 
 
 Sir FitzRoy Kelly. — With reference to the ceremony of belting, that I have 
 already alluded to. It is an Act which cannot by possibility, according to law, create a 
 new dignity — it is a mere ceremony for the purpose of giving effect to a grant of a dignity 
 which has been already made ; but as far as regards the Act now in question, this Act 
 annulling any statutes which were hurtful to the soul of the King, I do not conceive 
 that that could have had any reference to the proceeding. In the first place it was not 
 an Act of Parliament, it was not a Statute or an Act in General Council. Such as it 
 was, it was an Act, which, so far from being hurtful to the soul of King James IV. was 
 a very gracious Act to be done to a loyal and faithful subject, quite unconnected with the 
 past troubles of earlier times, and an Act to which I imagine this Act could have had 
 no possible reference. Again, this Act cannot have been intended to operate upon these 
 ceremonies, because these Earls retained their titles during the remainder of the reio-n 
 of James IV., and in fact so long as there were heirs in existence to these titles. One 
 of them at this moment is, I believe, the Duke of Montrose, who sits in your Lordships' 
 House, and therefore I do not see, subject of course to your Lordships' better judgment 
 and subject to anything that I may hear from the Council for the Crown — I do not myself 
 see any connection at all between the proceeding of belting of Earls, or the Tournament 
 or anything that is referred to in the passage in question and this Act of Parliament 
 which evidently went to repeal and to annul a great variety of Acts which were sup- 
 posed to have been done, and to be hurtful to the soul or conscience of the Kino-. 
 
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 I, of course, my Lords, am not willing to lengthen the observations that I have 
 made ; I abstain from much that might naturally occur to my own mind, because, taking 
 the view which I do of both these Acts of Parliament, both of the Act Rescissory and 
 the Act of 1503, I would certainly rather wait till I hear what can be urged on the part 
 of the Crown in defence of the one, if it be supposed to stand, and in opposition to the 
 construction which I seek to put upon the other, the last Act of Parliament to which I 
 have called your Lordships' attention. 
 
 My Lords, I will now proceed to the second Patent, which appears to have been 
 granted on the 18th of September, 1489. It is necessary first to consider in what form 
 this Act or proceeding comes before your Lordships. That some grant was made by 
 James IV. to the Duke of Montrose at that time is clear, but the Patent itself is not 
 before your Lordships. All that appears is an Act of Parliament of that date, which 
 appears, I believe, in the Parliament Roll, in the second volume of the Acts, at 
 page 215. The Patent itself does not appear ; there is a hiatus in the evidence as to the 
 Patent itself. And then comes the register, or what is called the Litera, relating to that 
 Patent, and which in truth, supposing it to be a genuine document at all, is merely a 
 very imperfect and abridged abstract of the Patent itself omitting, among other things, 
 by far the most important clause within the Patent, namely, omitting the Tenendum, or, 
 at least, omitting all that would show what that important clause really contained. 
 Your Lordships have not before you, therefore, the entire instrument, and you will 
 have to find your way to its legal effect as you best can with the materials that are 
 before your Lordships, namely, the Act of Parliament and this imperfect abstract of the 
 Patent itself. 
 
 My Lords, the first observation that I have to submit to your Lordships upon this 
 Patent, and which seems to me to dispose of all that part of the case, is this — that it is 
 really quite and wholly immaterial in this case ; and for this plain reason. There had 
 been a grant of the hereditary dignity of Duke of Montrose to the fifth Earl of Crawford 
 by James III., and that was followed by the Act Rescissory of October, 1488. Now if 
 that Act Rescissory, as it will be construed by your Lordships, annulled the grant of 
 the Dukedom, then there is an end of this claim, and everything else in the case becomes 
 totally immaterial. I quite admit that my Lord Crawford's petition must be dismissed, 
 and that he has no case entitling him to your Lordships' report, if upon the true con- 
 struction of that Act of Parliament the effect of that Act of Parliament was at once 
 and by force of its passing to destroy and annul this dignity ; but if it had not that 
 effect — if the dignity, being granted by the King upon the throne to his subject, was not 
 annulled by this Act of Parliament — if the construction for which I am contending pre- 
 vails, and your Lordships hold that this Act Rescissory (as was held in the time of 
 Charles I. with respect to the corresponding Patent of the Earl of Glen cairn) did not 
 repeal that grant, then it is perfectly clear that the second Patent cannot repeal it, that 
 the second Patent can have no effect in point of law upon it, and that therefore, what- 
 ever the second Patent may really have contained, which is left in great doubt and 
 obscurity, it has no effect upon this case and no effect upon this claim. Therefore, 
 begging your Lordships to bear in mind that which seems to me an unassailable propo- 
 sition, that if the Act of Parliament at once abrogated the dignity, I agree that I have 
 no case, and that there is an end of this claim : But if it did not 
 
 Lord St. Leonards. — I understood you to contend just now, that the later Act at 
 all events repealed the Rescissory Act. 
 
 Sir FitzRoy Kelly. — Yes ; I do say so. 
 
 Lord St. Leonards. — But you are passing that over now. 
 
 Sir FitzRoy Kelly.— I have done with that. I have addressed to your Lordships 
 
 N 
 
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 all that occurs to me upon the subject of the repealing Act. But the repealing Act of 
 1503 does not affect the argument, or rather the observation which I am now submitting 
 to the Committee ; because that observation is this, that if the Rescissory Act annulled 
 the dignity, then I agree that the dignity is gone. I ought, perhaps, to have said, sup- 
 posing the Act Rescissory not to be annulled by the subsequent Act of 1503 ; but I did 
 not wish to increase the length of my address by introducing those qualifications. 
 
 Lord St. Leonards. — If we are to understand you as still maintaining the point, 
 this is enough. 
 
 Sir Fit z Roy Kelly. — Certainly, my Lord. What I mean to say is this, as far as 
 regards the effect of this second Patent, the case stands thus. If the Rescissory Act 
 annulled the Patent, our case is gone. Perhaps I ought to have added, unless the Act 
 Rescissory was repealed by the Act of 1503, as I insist it was. But whether it was 
 repealed by the Act of 1503 or not, it leaves the question upon this second Patent 
 wholly and entirely untouched. And therefore the observation which I make upon the 
 second Patent, and which I conceive to be perfectly unanswerable, is that supposing the 
 Act Rescissory to have annulled the Patent, and not to be of itself annulled by the Act of 
 1503, then all reference to this second Patent becomes immaterial, because the claim is at 
 an end. But if, on the other hand, the Rescissory Act did not annul the Patent of 1488, 
 then it is clear that the Patent of 1489 cannot have annulled it, that the Patent of 1489 
 is therefore entirely immaterial in the case, and leaves the case entirely and wholly 
 unaffected. 
 
 My Lords, that is the proposition which I make at the outset upon this part of 
 the case, but still as this second Patent has not only become the subject of discussion in 
 the papers that have been laid before your Lordships in the present case, but as this 
 Patent was actually brought forward by the Earl of Crawford himself in his claim to 
 that Earldom five years ago, before a Committee of this House, I of course feel boimd 
 to advert to it, in order to make such few observations upon it as I may think it requires. 
 My Lords, it was brought forward in the case of the claim to the Earldom of Crawford, 
 the whole family being then in ignorance of the existence of a great number of docu- 
 ments which have since appeared, and upon which this present claim is founded ; and, 
 looking merely at the Litera, as it is called, that is, this Abstract which was registered, 
 it appears to have been a grant for life only. It was introduced into that case as a grant 
 for life, and it passed without further notice either upon the part of the Committee, or 
 upon the part of the claimant. It has now been introduced again, and much commented 
 upon on both sides, but especially on the part of the Duke of Montrose, in the papers which 
 he has submitted to the Committee. My Lords, I shall offer a few observations upon 
 that point, though, for the reasons I have assigned, I really do consider them perfectly 
 immaterial, with the exception, however, of the first observation which I have to make, 
 and which arises upon the terms of that instrument itself. 
 
 My Lords, it is quite impossible to read this instrument, this Patent emanating 
 from James IV. himself, at so very early a period after the grant of the original Patent 
 and after the passing of this Act Rescissory, without at once perceiving that this second 
 Patent of 1489 is, I hope I may say, conclusive, as to the construction of that Act 
 Rescissory. By this second Patent, King James IV. himself puts a construction upon 
 the Act Rescissory, he himself declares that the grant of the original Dignity could not 
 have been prejudicial to the Crown, could not have been prejudicial to him, because by 
 this second grant, a few months after the Act Rescissory, and scarcely a year after the 
 original Patent, your Lordship will find that King James IV. himself speaks in such 
 terms of the character and services of this very person, the Duke of Montrose, that it is 
 impossible to hold that he, as a party to the Act Rescissory, can possibly have held that 
 
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 the grant of that Dignity to the Duke of Montrose by his father^ could have been 
 prejudicial to him, his father's son. 
 
 Now I Avill call your Lordships' attention to the terms of this instrument as it 
 appears upon the Act of Parliament. It is at page 6 of the printed paper which is 
 before your Lordships, and which for the future I will call Paper A. " Eodem xviii 
 " die Septembris, anno quo supra, supremus Dominus noster, Jacobus Quartus, Dei gratia 
 " Scotorum Eex, cum avisamento maturaque deliberacione Magni Consilii sui ante- 
 " dicti," that is, the Parliament. This Act or Grant begins thus, after the recital of the 
 title of the Sovereign, " Eecognoscens quod cedit regibus ad gloriam et honorem, dum 
 " persone preclari generis, preclaris exigentibus meritis, dignitatibus inclitis preferuntur, 
 " ut exinde, cum suos cernerint status et nomina majoribus titulis decorari, ad grandiora 
 " virtuosioraque peragenda, magis ac magis, in suam laudem regnique et reipublice 
 " decorem et frugem studeant se ferventius insudare." 
 
 Now, of whom, and in relation to what, does King James IV., not many 
 months after the Act Rescissory, use this language? Why, of this very Duke of Montrose. 
 It is the very language that is used in his father's patent, as applied to the same indi- 
 vidual, and which patent is to be said, nevertheless, under the Act Rescissory^ to be pre- 
 judicial to King James IV. Why, he says, " Ad grandiora virtuosioraque peragenda." 
 He alludes to the acts which this Duke had done already, which must have been those 
 very acts in defence of his father ; and in order to incite him to greater and to more 
 virtuous actions, he grants, on the very same terms, this very same dignity to the same 
 individual. My Lords, is it possible after this language to hold that King James IV. 
 was a party to the Rescissory Act, or that if he was a party to that, that he meant to de- 
 nounce by that Act, as prejudicial to his Crown and to him, the King, the granting of 
 the dignity to this very Earl of Crawford ? 
 
 Lord St. Leonards. — How, consistently with your view, do you account for his 
 being called Earl of Crawford in that new creation ? I am not now speaking of its ope- 
 ration, but what must then have been the opinion of the Crown of the person accepting 
 the dignity ? 
 
 Sir FitzRoy Kelly. — I have already, my Lord, made an observation which perhaps 
 might be deemed an answer to that question. It is only necessary to look to what was 
 the undoubted state of things at this period to find a solution of all these difiiculties. It 
 is perfectly clear that this Earl of Crawford had been created Duke of Montrose. It is 
 perfectly clear also that his title to that Dukedom was questioned, and that it was the 
 object of the adverse faction then in the ascendant to set aside that dignity, and to deprive 
 him likewise of his possessions ; on the other hand, it is equally clear that the King him- 
 self, James IV., appreciated his high character and his great services, and wished to show 
 some mark of favour to him ; but probably, he being then only seventeen years of age, 
 he was in the hands of these powerful nobles who were bitterly and vehemently opposed 
 to the Earl of Crawford, or the Duke of Montrose, whichever he may have been. And 
 I have no doubt myself, and perhaps your Lordships Will think so too, that it was a sort 
 of compromise between the earnest desire which the King felt not to desert, not to per- 
 secute, not to punish the man who deserved so much better at his hands ; but on the other 
 hand, he had not the power, controlled as he then was by the more powerful nobles of 
 the time, to do that justice to the Duke to which he may have thought he was entitled. 
 I have not myself the smallest doubt, and I hope your Lordships will come to the same 
 conclusion, that all these acts and instruments were so many stages of a struggle which 
 was being carried on by the Duke on the one side, and a powerful nobility on the other, 
 jealous of his title and his power, particularly as that title was the only one of so high a 
 dignity which had ever been conferred upon one not of the blood Royal ; and again King 
 
 N2 
 
( 94 ) 
 
 James IV. and James III. also on the other (sic). I venture to submit to your Lordships, 
 that it is manifest that this struggle was constantly carrying on. We find it began almost 
 immediately after the battle of Stirling ; and as soon as Parliament could meet, they 
 passed the Act Rescissory, Again, we find it was carried on by the nobles prevailing 
 upon the King to seize upon the different offices conferred upon the Duke, and to parcel 
 them out amongst their own adherents. It was continued again by the seizing and forcing 
 away from him the Sheriffdom of Forfarshire, which he resigned into the King's hands 
 compulsorily, and which was then granted to Lord Gray. I shall therefore contend 
 before your Lordships, that the granting of this second patent could not in point of law 
 deprive the Duke of his dignity if by law he possessed it. On the other hand, his title 
 to it no doubt was disputed and denied by the nobles — perhaps neither expressly denied 
 nor expressly admitted on the part of the King, but as a compromise, if it be a com- 
 promise, here is the grant, which is before your Lordships, in which he would naturally 
 and properly, while his title to the higher dignity was doubtful or was disputed, be called 
 by the lower and undoubted title of Earl of Crawford. 
 
 My Lords, I pass therefore from this point with this remark, that if he was Duke 
 of Montrose, which undoubtedly he was, if the Act Rescissory had not deprived him of 
 that Title, then his being named Earl of Crawford could not deprive him of it, nor could 
 any act done by the King, either by this new grant of the Dignity, or by any other Act 
 within the compass of his prerogative, at all affect the title to the Dignity, unless it was 
 already at an end. Therefore, as a matter of law, the second grant becomes immaterial. 
 As a matter of fact, I have made the remarks which occur to me upon it. And, my 
 Lords, I think no one can have fairly and attentively read the history of those times 
 without assenting to what I have stated as a sufficient explanation of the difficulty that 
 has been suggested. 
 
 But, my Lords, I was commenting on these words as affording the construction 
 put by King James IV. himself on the Rescissory Act. It is impossible to believe that 
 King James IV. meant by this Rescissory Act to denounce the grant of this Dignity as 
 prejudicial to himself, when we find that he, before it was possible there should be any 
 new services on the part of the Duke, referring only therefore to the very Acts which 
 were the consideration of the grant of the Dignity itself, makes this additional grant, 
 using the terms " ad grandiora virtuosioraque peragenda magis ac magis in suam 
 " laudem," and so forth. But, my Lords, see further what he says : — " Pateat igitur 
 " universis, tam preesentibus quam futuris, eundem Dominum nostrum Regem, pensantem 
 " obedientiam actualem gratamque obsequendam gratificandam promptitudinem, quas 
 " fidelis suus consanguineus, David Comes Crawfurdie et Dominus Lindesay, et sui prede- 
 " cessores incliti, predecessoribus dicti Domini nostri Regis, Scocie Regibus, ac eidem 
 " Supremo Domino nostro Regi, indefessa intentione exhibuerunt multis modis, propter 
 " que, et alia ipsius condigna merita, et suis serviciis futuris temporibus impendendis, 
 " idem supremus Dominus ;" and then proceeds the grant itself. 
 
 Now, how can it be said that this King James IV. can have deemed the grant of 
 a Dignity prejudicial to him and to his crown, which Dignity was conferred in the same 
 terms for the same term, for the same services past^ and with a view to the same services 
 in future, and upon the same individual as him to whom he makes this grant, and in 
 these terms ? 
 
 My Lords, if we could imagine a voice from the grave, a voice of the King him- 
 self, telling your Lordships what he meant, what was the construction he would put 
 upon these Acts, on these instruments of himself, and of his father, and of his Parlia- 
 ment, he here tells you in express terms, not that the grant of this Dignity by his father 
 was mischievous or prejudicial to himself or to his crown, or against the common good 
 
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 ot the realm, but he tells you that these were services which entitled him who did them 
 to have the only reward that the Sovereign could confer — the grant of a Dignity and 
 the grant of possessions ; and he for those very services grants to the same individual this 
 Dignity, by this instrument, which is now before your Lordships, 
 
 My Lords, I conceive therefore that this is perfectly clear as an exposition of the 
 Act Rescissory, that we are not to read that Act as importing that the grant of the 
 Dignity in question by James IIL was prejudicial or could be deemed prejudicial to 
 James IV., because James IV. himself alludes to the services which constituted the con- 
 sideration for that grant as meritorious services to be encouraged and rewarded, and 
 which he accordingly encourages and rewards by the grant in question. 
 
 My Lords, let us next see what is the effect sought to be given to this grant of 
 the second Patent. It is urged as inconsistent with the existence of the Dukedom 
 already in the grantee. Now I have already observed that, in point of law, this grant 
 cannot affect the Dignity if it were already vested in the Duke, and it is accounted for 
 in the way that I have suggested, by looking to the historical circumstances of the times. 
 But has it any other legal meaning or effect upon the case ? I must here pray your 
 Lordships' attention to this strildng fact, that there never was any resignation of the 
 Dignity of the Duke of Montrose. It was competent by the law of Scotland ; no such 
 thing can be by the law of England, at least in our times ; but it was competent to the 
 subject under the law of Scotland, in those times, to resign a Dignity into the hands of 
 the Crown, and then to take a regrant of that Dignity. And we find many instances 
 of such resignations. But where there is no resignation apparent upon the instrument 
 itself, no resignation can be presumed. There was here, therefore, no resignation of the 
 Dignity of the Duke of Montrose, by the grantee, under the Patent of 1488. Therefore, 
 this new instrument can have no legal effect upon that Dignity, supposing it not to have 
 been destroyed already. 
 
 My Lords, I do not conceive that the contrary will be argued by my Honourable 
 and learned friend the Lord Advocate. He is too good a conveyancer not to know that 
 every Instrument by the law of Scotland, that is founded on a resignation, always 
 recites the resignation under the Quequidem, which is part of the instrument itself. It 
 is the very foundation of the regrant, or whatever may be the Act to be done by the 
 deed, and invariably appears. I may however mention, in order that I may not have 
 again to refer to it, that, in page 438 of volume I. of the Juridical Styles, we find the 
 law thus laid down : — " The next clause the Quequidem, from the first words of it, 
 " deduces the right of the fee from the vassal who stood last publicly infeft therein, and 
 " mentions specially the progress by which it comes into the person of the present vassal, 
 " which is sometimes very tedious and perplexed when there has been no vassal entered 
 " for a long tract of time ; and great care ought to be taken that this clause sets forth the 
 " proo-ress distinctly, as from it it must appear whether the charter has been properly 
 " expede, and the progress complete. If the vassal has right by disposition, containing 
 " procuratory of resignation, or by an assignation to an unexecuted procuratory or service, 
 " this clause mentions that resignation was made by virtue of the procuratory, in favour 
 " and for new enfeoffment to be granted to the vassal who has required right thereto, in 
 " manner therein particularly mentioned. If his right is by adjudication or decree of 
 " sale, the clause narrates it accordingly." 
 
 Now, my Lords, that will be followed up by various evidences, with which I 
 need not trouble your Lordships at present. But examples will be produced of grants 
 both of Dignities, and lands, and possessions, founded upon resignations, in which the 
 resignation is invariably and necessarily recited and introduced into the Deed as the 
 foundation of the Act to be done. There being no resignation in this instrument, it is 
 
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 perfectly clear that there never was any resignation. And it is remarkable also as a 
 further confirmation of what I have submitted to the Committee^ namely, that this second 
 Patent does not assume one way or the other, either that the Dignity formerly granted 
 had been annulled, or that it is still in existence. There is no recital whatever having 
 any relation to the former Patent. The Earl of Crawford has reason to complain that 
 from the lapse of time unhappily he has not the entire Patent. We can only deal with 
 it as we see it before us. But we have the Act of Parliament, and we have that com- 
 plete and entire, and upon the face of that which is the only instrument that we have 
 complete and entire in reference to this transaction, first, I observe that there is no resig- 
 nation of a prior title ; secondly, I observe that there is no recital that that prior Dignity 
 having been granted had been annulled by Act of Parliament or otherwise. And then 
 upon the last ground I also ask your Lordships to come to the conclusion for which I 
 am contending. I by no means contend, it would not become me to do so, because it 
 would be contrary to my own personal belief as founded upon the history of the period, 
 I do not mean to contend that the title of Duke of Montrose, under the Patent of 1488^ 
 was admitted, or was intended to be admitted by the Crown. But I do venture to 
 insist that it was not intended to be denied, and that what the Crown manifestly intended 
 to do by this grant was to do what I have called an act of compromise ; it was to leave 
 the question whether the Dignity was duly and lawfully held^ or whether it had been 
 forfeited, open and untouched. There is accordingly no recital that it is in existence 
 and enjoyed, and there is no recital on the other hand that it had been granted by King 
 James III., and been annulled by Act of Parliament or otherwise. Therefore what I call 
 upon your Lordships to hold vnth regard to this second Patent is, that the King, vnthout 
 assuming the fact or the law one way or the other, but leaving that just as it was, was 
 minded to show a mark of favour to this Duke of Montrose by reason of his great merits, 
 that he recites his services, he recites his merits and his claims^ and he then grants the 
 Dignity, and grants the Dignity as your Lordships will find, as far as the Act of Parlia- 
 ment goes, in such a way as not only not to limit it for life, but to leave it perfectly open 
 to the construction that it was in furtherance and confirmation of the grant of the Dignity 
 which had been made by his deceased father. Your Lordships will find that the words 
 are these : — " Dominus noster. Jacobus Quartus, Dei gratia Scotorum Rex, cum avisamento 
 " maturaque deliberacione Magni Concilii sui antedicti, Recognoscens quod cedit regibus 
 " ad gloriam et honorem, dum persone preclari generis, preclaris exigentibus meritis, 
 " dignitatibus inclitis preferuntur ; ut exinde, cum sues cernerint status et nomina 
 " majoribus titulis decorari, ad grandiora virtuosioraque peragenda magis ac magis in suam 
 '' laudem regnique et reipublice decorem et frugem studeant se ferventius insudare. 
 " Pateat igitur universis, tam presentibus quam futuris, eundem Dominum nostrum Regem, 
 " pensantem obedientiam actualem gratamque obsequendam gratificandam promptitu- 
 " dinem, quas fidelis suus consanguineus, David Comes Crawfurdie et Dominus Lindesay, 
 " et sui predecessores incliti, predecessoribus dicti Domini nostri Regis, Scocie Regibus, 
 " ac eidem supremo Domino nostro Regi, indefessa intentione exhibuerunt multis modis, 
 " propter que, et alia ipsius condigna merita, et suis serviciis futuris temporibus impen- 
 " dendis, idem supremus Dominus noster Rex, ex debito sue regalis magnificencie, volens 
 " ipsum David amplioribus prosequi favoribus gratie et honoris, — cum itaque prede- 
 " cessorum suorum, Crawfurdie Comitum, digne recolenda prioritas titulo Comitatus 
 " suas dominationes supradictas ab antiquis temporibus tenuerunt : — Hinc est quod 
 " supremus Dominus noster Rex eundem David, suum consanguineum, volens ampliori 
 " fulgere dignitate, et Comitis titulum supradictum in majorem excelsioremque mutans, 
 " dictum David, suum consanguineum, Ducem de Montros, ex suis certa scientia, 
 '^ potestatis plenitudine, et gratia speciali sublimavit, fecit, creavit, et de novo erexit in 
 
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 " Ducatum, Ducatusque nomine et prerogativa volens ipsum gaudere et potiri, secundum 
 " formam et tenorem carte dicti Domini nostri Regis dicto David Duci de Montross 
 " super premissa conficiende." 
 
 Lord Brougham. — That you have not got. 
 
 Sir FitzRoy Kelly. — That, unfortunately, we have not got. 
 
 Lord Brougham. — So that you do not see the limitations. All that you have 
 here is for life. 
 
 Sir FitzRoy Kelly. — No, I cannot, my Lord, admit that this is merely for life ; I 
 am coming to the Litera next. 
 
 Lord Brougham. — Creating him Duke of Montrose for the whole term of his 
 life. 
 
 Sir FitzRoy Kelly. — That appears by the Litera which I am about to come to. 
 What I meant is this : pausing at the document which I have now read, it leaves the 
 question untouched, whether he had by law a right to the Dukedom before. It contains 
 no resignation, and it contains no recital that either he had the Dukedom, or that he 
 possessed it once and had lost it by Act of Parliament or otherwise ; but it is simply and 
 merely, that in consideration of his high merit and services, with a view to the same 
 future merits and future services which constituted the consideration of the grant of 1488, 
 he grants the dignity of Duke to the Earl of Crawford. 
 
 Lord Brougham. — He being a Duke already, having been created a Duke in 1488, 
 it makes him a Duke again. 
 
 Sir FitzRoy Kelly. — Yes, that is just the effect of the instrument. 
 
 Lord Brougham. — It must be admitted to be a very extraordinary proceeding. 
 
 Sir FitzRoy Kelly. — No doubt it was, my Lord. The times were extraordinary 
 — the Act Rescissory was extraordinary — it is the single act disgracing and discrediting 
 the Scottish Parliament. In the whole history of the Scottish Parliament that is to be 
 found, from the earliest times down to the present, it is the single act of that character 
 — there is no other such Act. 
 
 Lord Brougham. — Do you mean that there is no other Act of Parliament which 
 disgraces the Scottish Parliament except that ? 
 
 Sir FitzRoy Kelly. — I think it was a disgrace to any Parliament that passed it. 
 
 Lord Brougham. — No doubt ; but I was surprised to hear you say that it was the 
 only Act. 
 
 Sir FitzRoy Kelly. — I meant that it is the only Act of that character ; I only 
 denounce it in these terms, if it is to bear the construction which is contended for by the 
 Crown. If it is to bear that construction, it certainly is an Act of which it is impossible 
 to exaggerate the injustice and the criminality. And it is, happily, the only Act of that 
 character, the only Act in which such provisions are to be found in the whole history of 
 Scottish legislation. There it is ; I have dealt with it in the way in which j^our Lordships 
 have heard, and I now pass on to the second instrument. Your Lordships see, there- 
 fore, that thus far the question is left open of a prior Dukedom — a Patent is granted 
 creating this nobleman Duke of Montrose, but the terms of the Patent do not appear ; 
 but it is by a Patent " super premissa conficiende." Now, my Lords, we come to the 
 Litera. 
 
 Lord St. Leonards. — Have you got the instrument itself here ? 
 
 Sir FitzRoy Kelly. — No ; but we have a facsimile of it. 
 
 Lord St. Leonards. — I know that; but have you the instrument itself? 
 
 Sir FitzRoy Kelly. — It is in London^ and shall be before your Lordships in half 
 an hour. 
 
 Lord St. Leonards. — I should like to see it. 
 
( 08 ) 
 
 Sir FitzRoy Kelly. — The facsimile is before your Lordships, and it certainly looks 
 very suspicious upon the face of it. Your Lordships will see that it has very much the 
 appearance of something introduced into the Record in question after it had been com- 
 pleted. It is forced and crammed into a very small space ; and also, which your 
 Lordships Avill see, some very important words are introduced into the margin as having 
 been interpolated probably because there was not room for them within the page at all. 
 If it were worth while to occupy your Lordships' time upon such a point, I really should 
 feel myself justified in asking your Lordships to look with very great suspicion upon this 
 document, and to doubt whether it is authentic at all. 
 
 Lord Brougham. — In what hand are the numbers 147, 148, 149 ? 
 
 Sir FitzRoy Kelly. — The numbers are quite modern ; they are not at all contem- 
 poraneous with the entries themselves. 
 
 Chairman. — Are the headings too, as well as the numbers, in modern writing — I 
 see that everything else has a heading to it ; but this appears to have been written so as 
 to leave no room for a heading at all ? 
 
 Sir FitzRoy Kelly.— It is a very nice question, and I will not occupy your Lord- 
 .ships' time with it now ; but it certainly does, to say the least of it, look exceedingly 
 suspicious. But what I wish to call your Lordships' attention to is this : it is quite 
 evident that we have here a very imperfect abstract ; for here we find the words, " Data 
 " est Litera Comiti Craufurdie, creando ipsum Ducem de Montrose pro toto tempore 
 " vite sue, et concedendo sibi capitale messuagium et locum castri de Montrose;" and so 
 on. Then, when we proceed further, we find this towards the end : " Creando omnia 
 " predicta in unum merum et liberum Ducatum de Montrose nuncupandum, ac tenendum 
 " in libera regalitate, &c. cum omnibus clausulis secundum formam carte, ac cum itineribus 
 " et curiis justiciarie," and so forth. 
 
 Now, my Lords, it is perfectly possible, and it is quite consistent with the Act of 
 Parliament which is before your Lordships, and quite consistent with the usages and 
 forms to which we are accustomed in Scottish instruments of this description, that there 
 should have been a tenendum, which would have carried this to the heirs of the Duke as 
 well as himself, and made it hereditary. We find, indeed, that first there is an estate 
 for life given to him " pro toto tempore vite sue ;" but when we come to where we 
 should find the tenendum, it is " creando omnia predicta in unum merum et liberum 
 " Ducatum de Montrose nuncupandum et tenendum in libera regalitate et cum omnibus 
 " clausulis secundum formam carte ;" so that the whole tenendum is left out. What the 
 " carte," the patent itself, contains, we know not. It may have been, and it is quite 
 consistent with the usual form in such cases, that, after the grant for life to the Duke, it 
 should have followed with a tenendum to him and his heirs. 
 
 I will not trouble the Committee by referring to the instances now, but there are 
 a great variety of instances, some of which shall be laid before the Committee, of Grants 
 of Dignities as well as of Lands, in which there is first a life estate, granted much in 
 these terms, " pro toto tempore vitae suae," or in some other equivalent language ; and 
 then follows separately and substantively under the tenendum a grant to the heirs, 
 whether it be heirs male or heirs whatsoever, according to the intention of the Crown, 
 the limitation being fully and expressly set forth. I will ask your Lordships to turn to 
 page 124 of the Supplemental Case — ^the creation of 1587 — where there is an instance 
 given of the creation of the Barony of Altrie in 1587, which is limited to Robert 
 Keith " pro omnibus sue vite diebus solummodo." So that if this had been dealt with 
 like the Patent in question, and the tenendum had been by some • unfortunate accident 
 omitted, it certainly might have been very strongly contended that it was a grant for life 
 only, and that that was clenched so as to be made certain by this expression, " solum- 
 
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 modo." But when we go on further we find that it is afterwards " Georgio Comiti 
 " Marischallo, suisque heredibus masculis," &c. And there are various other instances. 
 So that your Lordships perceive that it is quite conformable to the custom in Scotland, 
 with relation to these instruments, to have an estate for life in a Dignity first granted, 
 and then, under the tenendum, a subsequent limitation to various classes of heirs. And 
 that may have been the case in the present Patent. All that appears is, that here is an 
 Act of Parliament which may have granted the dignity hereditarily to the Duke and to 
 his heirs, or may have granted it only to himself in person. But when we come to the 
 Litera we find, first of all, the suspicious form in which it appears in the Parliamentary 
 Records; and next we find that the tenendum is altogether omitted, and the term " &c." 
 introduced ; and there is a reference made to the form of the charter for the limitations, 
 which charter unfortunately is not forthcoming. 
 
 Lord Chancellor. — What motive do you attribute to any party for interpolating 
 this ? Do you suppose it was an interpolation by some persons hostile to the Duke of 
 Montrose of that day ? 
 
 Sir FitzRoy Kelly. — These interpolations in public documents are by no means 
 uncommon. 
 
 Lord Chancellor. — Do you mean that the interpolation was intended to be hostile 
 to the Duke by limiting the dignity to his life ? 
 
 Sir FitzRoy Kelly. — Yes, by limiting it to his life. 
 Lord Brougham. — Cui bono? 
 
 Lord Chancellor. — It was evidently, according to the statement in your Case, either 
 at or very nearly at the same time. It might have been put in some years, if you please. 
 But whenever it was done, do you suppose that it was done in order to furnish evidence 
 at some remote time as to the subsequent creation of the Dukedom ? The Duke of 
 Montrose seems to have been anxious to get this subsequent grant. I mean according to 
 your own Case. Supposing it was in doubt whether the first was not in force, then he 
 would not wish to get the second. Now the effect of this interpolated instrument is to 
 show that there was this second grant, therefore it could not well have been hostile to 
 the Duke. 
 
 Sir FitzRoy Kelly. — With great submission, my Lord, we must consider the two 
 points separately. In the first place, your Lordship will pardon me for observing that it 
 is not a part of our case, and there is no scintilla of evidence that the Duke ever sought 
 the second Patent, or ever accepted it. 
 
 Lord St. Leonards. — This Litera includes also lands ? 
 
 Sir FitzRoy Kelly. — Yes, my Lord, but only lands which he held already, and of 
 which he was receiving the proceeds before he got the second Patent. I wish, in answer to 
 what fell from my Lord Chancellor, and which has raised a two-fold question, to set myself 
 right with your Lordships first, as to the fact of this ever having been sought by the 
 Duke, or accepted by the Duke. What the fact was, of course, at this distance of time, 
 no man can tell ; but there is no evidence whatever before your Lordships, and I apprehend 
 that none could be adduced, to show that the Duke ever sought this, ever accepted it, 
 or even ever knew of it. But then a second question has been suggested Cui bono P for 
 what purpose ? 
 
 Lord Brougham. — No, not for what purpose ; but whom did it benefit ? It was 
 an old question usually put by a great Roman lawyer, Crassus, when he saw any act 
 or deed done, and the question was, Who did it ? He always said, " Who benefits by 
 "it?" In modern times the question is sometimes asked, Cui bono? as meaning. 
 Quid boni. I ask. Who would profit by it ? 
 
 Sir FitzRoy Kelly. — Presuming upon the grounds I have already urged, that I 
 
 O 
 
( 100 ) 
 
 consider this Patent and all its consequences to be entirely immaterial to the case, 
 what I will observe is this : — All the first nobles of Scotland, especially the Earl of 
 Angus, who was the head of the Douglas family, were all against this title of Duke being 
 conferred upon any subject unless it were themselves ; and your Lordships know the 
 anecdote, which, I believe, appears somewhere in these papers before your Lordships, 
 of the Earl of Angus, who was told, I think, by Queen Mary, that she was about to 
 create another Earl a Duke ; he said, " It may be very well as a reward for his services, 
 " but if he be a Duke, I will be a Drake ;" meaning that he himself must have some 
 higher title conferred upon him. But in answer to the question (not that I consider this 
 point very material), as to who had an interest in preventing the heirs of the Duke of 
 Montrose from taking up this title, I may state that all the higher nobility were 
 opposed to it, and it is scarcely to be doubted that they did all in their power to 
 prevent the Duke himself from enjoying the title, and ci fortiori to prevent his heirs from 
 ever assuming it. 
 
 Lord Chancellor. — Then, in order to get rid of the Dukedom of 1488, they inter- 
 polate something that was to show conclusively the establishment of the Dukedom in 
 1489. 
 
 Lord Brougham. — But only for life. 
 
 Sir FitzRoy Kelly. — Your Lordships will pardon me for reminding you how the 
 case stood at the moment. Your Lordships will not forget that there was the Act of 
 Parliament of 1489, which established the Dukedom, and that could not be got rid of. 
 
 Lord St. Leonards. — The words are, "Hence it is that our supreme Lord the 
 " King, willing that the said David, his cousin, should shine with ampler dignity, and 
 " changing the foresaid title of Earl into a greater and higher one, he has by his certain 
 " wisdom, plenitude of power, and special grace, elevated, made, created, and anew 
 " raised the said David, his cousin, Duke of Montrose, to a Dukedom, willing him to 
 " enjoy and possess the name and prerogative of a Dukedom, according to the form and 
 " tenor of the charter of the said our Lord the King, to be executed in favour of the said 
 " Duke of Montrose, upon the terms premised." Now that charter is not forthcoming ; 
 and we do not know what the enjoyment has been under it : but the charter not being 
 forthcoming, putting this document, No. 5, out of the question, what do you say is the 
 true construction of that grant ? 
 
 Sir FitzRoy Kelly. — I should, without the least hesitation, contend before your 
 Lordships, that if that Act of Parliament stood alone, it would confer the Dignity of the 
 Dukedom of Montrose in the same line of succession as the Earldom of Crawford. But I do 
 not wish to anticipate a part of the argument which will arise hereafter. I take it that if 
 the Act of Parliament had stood alone in which the title of Earl of Crawford, which was 
 then settled upon the heirs male of the first Earl, was changed into a Dukedom, the 
 Dukedom would follow in the same line of succession. And that, if it stood alone, it 
 would be a Dukedom with the same limitations as the Earldom. But to go now into 
 that question would be anticipating the point arising upon the Charter itself. I was 
 merely alluding to the way in which the case stood. In fact, in answer to what fell 
 from my Lord Chancellor, if I am asked, what interest could anybody have in intro- 
 ducing this into the Rolls of Parliament ? I answer first, that we must remember that 
 there was already upon the Eolls of Parliament this Act conferring the Dukedom in a 
 way in which it plight at all events be contended that it went to him and to his heirs ; 
 and therefore any person having the control of these Rolls of Parliament, and beino- 
 anxious to prevent the heirs and successors of the Duke from taking up the title of 
 Duke, would have that motive to put into the Litera, as it is called this matter 
 which has been interpolated, and so apparently limiting the Dukedom to a life estate 
 
( 101 ) 
 
 only. But^ my Lords, I will not dwell upon that, because, not to repeat the same 
 argument, I must say that, over and over again, at every turn of the case, we are met by 
 this consideration, that, whatever may be said with regard to this second Patent, which 
 I cannot but think was an act of the nature I have mentioned — a sort of compromise for 
 the satisfaction of the King's conscience, and with a view to confer an act of favour by 
 the Crown upon the Duke ; it clearly cannot legally affect this case, because if the Act 
 Rescissory repealed the Dignity, and is not repealed itself, there is an end of the case. 
 If it did not, nothing can be clearer than that, whatever the King did, even if it had 
 been accepted by the Duke, except upon a resignation, which is clearly no j)art of the 
 instrument — whatever the King may have done — it cannot have affected the Dignity 
 granted by his father, and then lawfully enjoyed by the grantee. 
 
 My Lords, there are only now one or two other points, which are really points 
 almost immaterial, upon which I have a few words to address to your TiOrdships before 
 I come to the remaining question upon the construction of the Patent, and I allude 
 to these only with the view of meeting objections which, as they have been made in 
 these papers, may be made hereafter in argument before your Lordships — which, how- 
 ever, as it is possible they may not be made at all before your Lordships, I shall deal 
 with very shortly indeed. I will now briefly allude to one or two of the points raised 
 by the opponents of this claim. 
 
 First, my Lords, it is said that after the Act Rescissory, which it is contended 
 destroyed this title, the Duke of Montrose is called Earl of Crawford. Now really, 
 to those whose fate it has been, as it has been mine, in order to prepare myself to 
 address your Lordships in this Case, to look into an almost uncounted number of 
 Scottish historical and legal documents, consisting of the Rolls of Parliament them- 
 selves, the Proceedings of Parliament not strictly Acts of Parliament, Grants and 
 Charters by the Crovra, Instruments of Contract between Noblemen, where Nobles and 
 Peers are parties to them, and a variety of Acts of every description and character, it 
 really would be a matter of a single moment to show that nothing is more frequently 
 to be met with than that persons possessing a higher title are still referred to, alluded 
 to, and named by the lower title. In some countries, even at the present day, it is the 
 universal practice; it is the case at the present day in Spain. Whenever any of the 
 ancient nobles of Spain have an ancient family title, though it be but a Count, they 
 frequently use that title in preference to the higher modern title. It is so, for example, 
 in the case of the Count of Altamira, which I have met with recently, although he is a 
 Grandee of Spain and Duke of Montemar. There are many other Counts of Spain 
 holding their counties by an ancient title, who have become Dukes, but who constantly 
 call and designate themselves by their ancient title of Count. And it was very 
 customary in this country, but still more so in Scotland. Not to weary your Lordships 
 by a repetition of these instances, I will only mention that we have had recently a very 
 remarkable instance of it in the case of the present Empress of France, who was 
 Duchess of Penaranda, but who has called herself Countess of Montijo. And it is 
 uniformly the case even still in Spain, but it was constantly the case in Scotland. But 
 I will give your Lordships instances in which, in a great variety of proceedings, and very 
 solemn proceedings, Lord Darnley, the husband of Mary Queen of Scots, was called Lord 
 Darnley long after he had been created Duke of Albany. There is an instance which 
 appears upon these papers, although brought forward for another purpose, in which the 
 two Earls, of whom your Lordships have heard so often, the Earl of Glencairn and the 
 Earl of Eglinton, long after they were enjoying their Earldoms, are parties to a contract, 
 and the contract is described as a contract between the Lord Montgomery and the Lord 
 Kilmaurs. Without now going into them particularly, I will lay before your Lordships 
 
 02 
 
( 102 ) 
 
 a great variety of instances of proceedings in Parliament and proceedings out of Parlia- 
 ment, Acts, and Grants^ and Charters, and a variety of other Acts and proceedings, in 
 which, over and over again, persons possessed of higher titles are described by lovi^er 
 titles. We have, indeed, classical authority for it. Your Lordships will remember in 
 Shakespeare Macbeth is so addressed ; and, to come down to a later period, we find in 
 the Second Act of Henry VI., after Lord Talbot had been created Earl of Shrewsbury, 
 he is repeatedly, and even by the King himself, addressed as Lord Talbot. The custom 
 is so infact, and there are innumerable documents which show that such is the case 
 here. So that really, to point to this and that document in which the Duke of 
 Montrose may be described as Earl of Crawford, is only just to point out concerning 
 him what is found over and over again with respect to almost every nobleman who has 
 possessed an ancient, but a lower Dignity, and who has been afterwards elevated to a 
 higher one. 
 
 Then, my Lords, the argument is pressed, to which of course I must refer, but 
 only in a word, that there has been a long lapse of time since the death of the first Duke 
 of Montrose, the grantee under the patent of 1488, during the whole of which time his 
 heirs male are said to have been entitled to the dignity, but during which time they have 
 certainly not assumed or, as far as we have any evidence, attempted to assume that dignity. 
 That is to be urged as an argument against our right and title to it. 
 
 My Lords, such an argument can hardly prevail after the cases which are before 
 your Lordships, and in your Lordships' recollection. I will not allude but in a word to 
 the case of the Duke of Norfolk, where, upon the death of the Duke of Norfolk who was 
 ennobled by Richard II., his eldest son, and then again upon his death, his second son 
 seems never to have thought of assuming or claiming the title, and no satisfactory reason 
 can be assigned why they did not. But, my Lords, after the case of the Earldom of 
 Devon, it really would be idle to occupy a moment of your Lordships' time upon such a 
 point. Just look at what took place in a Committee of this House, in the year 1832, in 
 the case of the Earldom of Devon. The first peer was ennobled by that title by Queen 
 Mary, in 1553. He enjoyed that title for three years, and then died in the year 1556, 
 and from 1556 until 1831, nearly 300 years, although during the whole of that time 
 persons were in existence who were entitled to that dignity, no one individual ever laid 
 claim to it, or ever attempted to assume it, or ever seemed to be- aware of its existence. 
 And yet that was held as nothing ; and the patent being proved, or rather, as here, the 
 patent not being in existence, but the Register being produced, which proved that the 
 dignity had been created, and that the dignity belonged to the heirs male of the person 
 first ennobled, although no reason whatever could be assigned, nor even a plausible 
 ground suggested, why the successive heirs male of the first Earl had not claimed the 
 title, this House disregarded that blank in the case, and reported in favour of the claim. 
 And accordingly, the Earl of Devon now sits in your Lordships' House. There it was said 
 that the person who was the next successive heir lived but for a very short time, and 
 that then an infant succeeded, and that there were other persons who might not have 
 thought fit to claim the dignity, or might not have been aware of the dignity. But your 
 Lordships will remember that in that case no such reason existed why the Courtenays of 
 Powderham Castle, who were the heirs male, should not have claimed that dignity. 
 They were persons of high repute, they lived in peaceful times, there was no jealous 
 hostile, powerful nobility opposed to their claims, and there was no reason that could be 
 suggested from history or from the domestic annals of the family, why those Courtenays 
 in succession should not have claimed the title. The very first who ought to have suc- 
 'ceeded, and who was entitled to succeed, Sir William Courtenay of Powderham was a 
 person of large fortune, of high character, and of great power ; and there is no reason on 
 
( 103 ) 
 
 earth that can be assigned now why he should not have claimed the dignity. But the 
 answer to all such observations is this : — It is impossible for us to tell in these latter times 
 what were the motives, what were the feelings, what were the considerations involved 
 in these claims to dignities in times as to which we can only guess what motives may 
 have influenced the minds of those who were entitled to such dignities. The subject is 
 involved in great obscurity. 
 
 But with regard to the present case, your Lordships have only to look to the 
 history of this family (without the authority of the case of the Earl of Devon, which is 
 conclusive upon this subject) to account for the dignity never having been claimed. 
 The first Duke of Montrose held the title till the time of his death ; of course it will be 
 said that he held it under the second Patent. Then his successor, his son who succeeded 
 him in the Earldom of Crawford, was a person unlike his father : he had not the high 
 character or the great influence which his father justly possessed ; he was a person who 
 was implicated in the charge of having murdered his elder brother ; he therefore, 
 with a cloud on him during the whole of the remainder of his life, was not a person 
 who could have ventured to raise this claim against the powerful opponents to that claim 
 with whom he would have had to contend. Then upon his death the dignity would have 
 passed to the seventh Earl, who lived, I think, for but three years ; then to the eighth 
 Earl, who lived but for a very short time ; and then the title descended upon one who, 
 though belonging to the family, could not have claimed it. I need say no more than 
 that he was the "Wicked Master;" he was charged with parricide, and he lost the 
 dignity altogether ; it passed to another member of the family, and was afterwards, at a 
 great distance of time, restored to the right line. So that we have only to look to the 
 history of this family to see abundant reasons why, in the face of the opposition of 
 a jealous and powerful nobility, and, perhaps, with the Crown adverse to any such 
 claim, the immediate successors of the first Duke of Montrose failed to lay claim to the 
 title. But I need do no more than call in aid the case of the Earldon of Devon in 
 order to set at rest that objection. 
 
 Then, my Lords, I have only to refer to one point more which has been urged, 
 and which lies in a word. It is said to be extremely improbable that if this title of the 
 Duke of Montrose had been of right possessed and enjoyed by the family of the 
 Lindsays, the same title, or that of the Earl of Montrose, would have been conferred as 
 it was upon the chief of the House of Grahame in those days, namely, in the year 1503. 
 Now it is quite true that the chief of that distinguished house was created Earl of 
 Montrose in or about the year 1503. But, my Lords, really any difficulty which can be 
 suggested upon that point is put an end to in a moment by the consideration that this, 
 though in name the same, was a different title. The present Duke of Montrose possesses, 
 and his illustrious ancestor possessed, that dignity in respect of Old Montrose, — " Auld 
 Montrose," as it was called. The first Earl was made Earl of Old Montrose, whereas 
 the Dukedom was conferred upon the Lindsay family in relation to the Burgh of 
 Montrose, a different place. So that they are not the same ; they are two different 
 titles, and there is nothing in the world to prevent the one title being enjoyed by the 
 one, and the other title being enjoyed by the other. In fact, our own history, and the 
 history of Scotland, abound with instances of that kind. Notwithstanding the existence 
 of this very Earldom of Devon to which I have referred, the Earldom of Devon was 
 conferred also first upon one of the Blount family, and then upon the Cavendish family, 
 who hold it at this moment ; and latterly a Dukedom has been built up upon it. 
 
 Lord St. Leonards.— The other is the Dukedom of Devonshire. 
 
 Sir FitzRoy Kelly. — They are both the same title ; they differ in name, or rather 
 in the way in which they are usually applied, but they are Earls of the very same place ; 
 
( 104 ) 
 
 unlike Montrose ; for the two titles of Montrose are in respect of actually two different 
 places, Old Montrose and the Burgh of Montrose ; the Earldom of Devon, which is now 
 possessed by the Courtenay family, is exactly the same Earldom that is now possessed by 
 the present Duke of Devonshire. 
 
 Lord Chancellor. — I suppose the Crown will not dispute with you the proposition 
 that it is competent to the Crown to create two persons by the same title. But if the 
 question is, whether a second creation has taken place, the circumstance that it is the 
 same name may afford an argument to those who contend that there was no such 
 creation on account of the inconvenience that may result from the similarity of name. 
 
 Sir FitzRoy Kelly. — My Lords, I have felt it to be my duty to advert to these cir- 
 cumstances from respect to the noble Duke who has been permitted to lodge these papers ; 
 but I do consider that all these matters may fairly be laid aside as foreign to the case alto- 
 gether, because it really will come back to this : Does this Act Rescissory, in its true and 
 legal construction, put an end to the first Dukedom ? If it does, then all these subse- 
 quent questions become immaterial. If it does not, the creation of a thousand Earldoms 
 and Dukedoms by the same or by a different title cannot by possibility affect the validity 
 of the patent of 1488. But as far as that fact itself is concerned, it is really quite im- 
 material, because we find that both in Scotland and in England, over and over again, two 
 dignities of the same name, and also of the same rank, are created. I do not know how 
 many Lords Campbell there are ; I do not know how many Lords Grey ; I do not know- 
 how many Lords Stanley, or how many Lords Hastings. 
 
 But I pass away from this, because it is wholly immaterial upon the leading 
 
 ground which I have had occasion more than once to suggest, that the question comes at 
 
 last back to the Act Rescissory. If that Act destroyed the dignity, and that Act is not 
 
 repealed by the Act of 1 503, then there is an end to the claim. If it did not destroy the 
 
 dignity, as I contend it did not, then all these subsequent questions about the second 
 
 patent and the grant of another dignity in the same name, or anything else that can be 
 
 brought into the case, become entirely immaterial. Nothing can destroy the King's 
 
 grant by the law of Scotland but a resignation and a regrant, or an Act of Parliament, an 
 
 act of attainder. Therefore, unless the Act Rescissory destroyed the dignity, the dignity 
 
 now remains in full force, and by law the present Claimant is entitled to it, if he can 
 
 make out his claim under the patent granting that dignity. If the Act Rescissory did 
 
 destroy it, then all these questions become immaterial. But with regard to the fact itself 
 
 it is only what has taken place times out of number both in Scotland and England. 
 
 As I have already observed, I do not know how many Lords Campbell there are, or how 
 
 many Lords Grey, how many Lords Stanley, how many Lords Hastings, all exactly of 
 
 the same name, to say nothing of the more parallel case of the two Earldoms of Devon, 
 
 which are at this very moment enjoyed by two noblemen sitting in your Lordships' 
 
 House. 
 
 Chairman. — Everybody believed that the Earldom of Devon had ceased to exist, 
 
 and that the title was extinct down to the day when the new claim was made and 
 
 adjudged. The whole family had treated it as extinct : they had accepted other titles 
 
 from the Crown, and had never claimed it during that period. And so it is in this case. 
 
 The Earl of Crawford from that day down to the present, and even during the whole time 
 
 when he made his claim to the Earldom of Crawford, treated this Dukedom as extinct. 
 
 The family seem to have been under the impression that the Crown had granted the title 
 
 of Duke of Montrose, as it had granted the title of Devon, to another family. It was an 
 
 erroneous opinion that it was extinct during that period in the case of the Earls of Devon, 
 
 and it was so decided by this House : but that belief existed, and it was under that belief 
 
 that the Crown acted. 
 
( 105 ) 
 
 Sir FitzRoy Kelly. — My Lords, it is quite enough to say that no argument 
 whatever can be urged against this claim of that character. It might not have been 
 urged, and probably it was not urged, against the claim of the Earl of Devon ; and with 
 that observation I dismiss that part of the case from your Lordships' consideration. 
 Therefore what I submit to your Lordships upon this first and important branch of the 
 case is, that this hereditary dignity having been granted by King James IIL, that grant 
 continues in force, and the benefit of it may be claimed by any one who can prove himself 
 to come within the limitations of it, unless the Act Rescissory destroys it. If the Act 
 Rescissory destroyed it, and was not itself repealed by the Act of 1503, then undoubtedly 
 there is an end of the case. If, on the contrary, that Act should receive the wholesome, 
 sound, and just construction, which I have submitted to your Lordships, then it did not 
 touch this dignity, and the dignity incontestably and undeniably remains at the present 
 day. And the whole question to which I am now about to advert is, whether under 
 this Patent the Claimant is entitled to that dignity. 
 
 One of your Lordships asked for the original entry itself, of this Litera, as it is 
 called, of the Patent for life, — I have it here, and will hand it in to your Lordships, just 
 begging your Lordships' attention to what mine has been called to at this moment, that 
 the next entry purports to be witnessed by certain persons, who are described as the 
 same witnesses, with the exception of the Earl of Angus, as in the preceding carta. 
 The preceding carta is not this which purports now to be the preceding carta, but it is 
 the one before it. 
 
 Lord Brougham. — That is No. 148 ? 
 
 Sir FitzRoy Kelly. — Yes. 
 
 Lord Brougham. — They are clearly most inaccurately recorded, for the carta 
 " 148 " is in the second year of the reign, is it not ? 
 
 Mr. G. Robertson. — Yes. 
 
 Lord Brougham. — And the " 150 " is in the first year of the reign. 
 
 Mr. G. Robertson. — Yes, that constantly occurs in the registers of the Great Seal. 
 
 Lord Brougham. — It is clear then that they are to a certain degree inaccurate ; 
 they are not inserted correctly according to their order. 
 
 Lord St. Leonards. — Is the Earl of Crawford among the witnesses ? 
 
 Sir FitzRoy Kelly. — No, it appears that the Earl of Crawford is not a witness to 
 either. I merely refer to this for the purpose of showing that it is clear that what is 
 interposed between these two must have been entered after the last, because the first is 
 the next preceding that, and that is the one to which the words apply, " witnessed by 
 " all the said persons, except the Earl of Angus," and this would of course not come within 
 that description. 
 
 Lord St. Leonards. — Will you send up the Book ? 
 
 ( The Book was handed to the Committee.) 
 
 Lord St. Leonards. — The headings and the numbers are all modern ; there can be 
 no doubt of that. 
 
 Lord Brougham. — Have you finished your argument upon the Rescissory Act ? 
 
 Sir FitzRoy Kelly. — Yes : I am now about to proceed to the all-important point of 
 the Patent. 
 
 {^Their Lordships consulted together.) 
 
 Chairman. — The Committee have come to the determination that they will 
 divide the case into two parts : firsts as to the effect of the Act Rescissory ; and secondly, 
 as to the parties to whom, if it should be decided that such a title is now in existence, 
 
( 106 ) 
 
 the title will descend. We therefore now propose to call upon the Counsel for the Crown 
 to take up the argument as to the effect of the Act Rescissory^ and to determine that 
 part of the case before we proceed upon the other. 
 
 Mr. Attorney- General. — We should be in a position of great disadvantage if your 
 Lordships were to call upon us to do that without hearing our evidence. We have 
 in evidence contemporaneous transactions of the greatest importance. 
 
 Lord St. Leoimrds. — You quite misunderstand us. We are not proposing to 
 determine the case merely upon the question of the Act Rescissory. We will take 
 everything that belongs to it. We are not excluding anything in the case, but what we 
 are saying is simply this : — We propose to enquire, without saying what we shall decide, 
 first, whether the Dignity does exist or not; and then, if we decide it in one way, 
 there will be at once an end of the case ; but if we decide it the other way, or if we 
 should reserve our opinion upon that question, then we should necessarily go into the 
 second question, if there be such a title in existence then to whom does it belong ? 
 
 Lord Brougham. — You say that on the part of the Crovra you have a great deal 
 of evidence, — Sir FitzRoy Kelly has also said that he has a great deal of evidence, and he 
 has opened his case fully upon the point with regard to the Rescissory Act. Cannot 
 you in the same way meet him upon that ground ? 
 
 Lord St. Leonards. — The two questions are totally distinct. The question of the 
 existence of the Dignity, and the question of the person to whom that Dignity belongs, 
 if it be in existence, are altogether distinct and separate questions. 
 
 Lord Chancellor. — It is the common case of both of them that in May 1488 there 
 was a creation of the Dignity of Duke of Montrose. Sir FitzRoy Kelly says that nothing 
 has taken place since that period to destroy that Dignity ; and, unless therefore there 
 has been a failure of the parties entitled under the limitations, some one is now entitled 
 to that Dignity. He has stated all that he was about to state upon that part of the case, 
 and he was proceeding to show that his client is the party entitled to the Dignity under 
 the limitations of the Patent. Now what occurs to their Lordships to be the more 
 convenient course, is to hear the Crown upon that broad question first. 
 
 Lord Advocate. — 1 think that course will be exceedingly convenient for the 
 decision of the case. But perhaps your Lordships will not, after the very long opening 
 on the other side, expect us to proceed with the case of the Crown to-day. 
 
 Lord St. Leonards. — Why not ? What can be so plain as the case we have been 
 listening to for days? It is a very simple case — nothing can be so simple. Nobody can 
 have listened to it without being able to comprehend it. 
 
 Mr. Attorney General.- — ^We comprehend the case, but we are not prepared to lay 
 before your Lordships at this moment the facts upon which we rely as elucidating this 
 very important question. We have a great deal of documentary evidence. 
 
 Lord Chancellor. — We are perfectly ready to hear any evidence. 
 
 Lord Advocate. — All I mean is this : — No doubt the case has been very clearly 
 opened, and the point stands quite clear. But at the same time there is a great deal of 
 detail mixed up with it ; and the argument has been so much elaborated, that I think 
 I could lay it more clearly and shortly before your Lordships after a little time for 
 deliberation than if I were called upon to do it at this moment. 
 
 Lord Chancellor. — Sir FitzRoy Kelly would have to put in his evidence. I think 
 he said the Solicitor General was with him ; I do not know whether the Solicitor 
 General would wish to address us. 
 
 Sir FitzRoy Kelly. — I was about to say that if your Lordships desire to consider 
 the two points of the case separately, 1 hope your Lordships will not take this course 
 
( 10^ ) 
 
 without giving my learned friend the Solicitor General the opportunity of addressing 
 you upon the first point. 
 
 Lord St. Leonards. — Certainly not. 
 
 Lord Chancellor. — We do not mean to alter the course of proceeding except in 
 this way, that we split the cause into two parts. 
 
 Mr. Attorney General. — Thus the Claimant will put in his evidence, and then 
 my learned friend the Solicitor General will sum up his case, and then we will begin. 
 
 Lord St. Leonards. — The Solicitor General will be heard to sum up the evidence 
 and remark upon the case, and then the Crown will of course be ready to proceed with 
 their case. 
 
 Mr. Attorney General. — Just so, my Lord. 
 
( 109 ) 
 
 TUESDAY, 26th JULY, 1853. 
 
 Mr. Solicitor General. — My Lords, it is now my duty in this most important, 
 and, if I may venture so to say, interesting case, to sum up to your Lordships the results 
 of the evidence which you have heard, and to attempt to apply still further some 
 portion of the arguments which your Lordships have been listening to now for a con- 
 siderable time. It will be my endeavour not to trespass too far upon your Lordships' 
 indulgence. I have received it so frequently, that I am sure your Lordships will give 
 me credit for not in the smallest degree entertaining any disposition to abuse it ; but on 
 the contrary it will be my study to confine the observations which I shall have to submit 
 to your Lordships within those limits which I think are absolutely necessary for the 
 proper understanding of this case. 
 
 My Lords, from the proofs which have been put in we have established the 
 perfection of the Patent of the 18th May, 1488. That does not at all appear to have been 
 questioned ; and therefore it will be unnecessary that I should trouble the Committee 
 with the details of the great abundance of collateral proofs to be brought in aid of the 
 entry upon the Registry of the Great Seal. The great fact is therefore established, 
 that a Duke of Montrose, with a limitation to his heirs, was created, and that the dignity 
 was completed on the 18th of May, 1488. 
 
 My Lords, it is not a matter of surprise that so great a dignity should have been 
 conferred upon that nobleman under the circumstances of the times. The manner in 
 which he had come to the aid of his Sovereign with so large an army, and the dis- 
 tinction that he had won in the battle that had just preceded the Dignity, all conspired 
 to prove that that Dignity which was conferred upon him was for nothing in the world 
 more than what would be denominated in the language of the times a condign merit? 
 and therefore everything concludes in favour of the Dignity having been in every 
 respect completed. 
 
 Now, my Lords, passing at once to the merits of the case, we are told that your 
 Lordships are not now to attribute to that Dignity anything like that which, on the face 
 of it, it purports to have, namely, perpetual duration as long as issue of the body of the 
 Grantee remained, by reason of an Act of Parliament which passed some short time 
 afterwards, and which has been denominated in this case (though I know not whence 
 that title has been derived) the Act Rescissory. 
 
 My Lords, that is not the title which it appears to have upon the Statute Book, 
 if indeed upon that book it is entitled to be regarded as an Act of Parliament at all. 
 My Lords, with regard to the introduction of that Statute — with regard to the position 
 that it afterwards had, and with respect to what it soon was found to be — namely, an 
 Act of which its authors and its abettors were thoroughly ashamed — upon these points 
 I venture first to offer a few observations to your Lordships. 
 
 My Lords, it appears from history, and it will appear also from the Statutes, of which 
 this alleged Act of Parliament constitutes a chapter, that during the Rebellion which 
 
 P 2 
 
( 110 ) 
 
 was raised against King James III., the Governor of Stirling Castle, by some means or 
 other, traitorously delivered over the young Prince, then in the 16th year of his age, who 
 afterwards became King James IV., to the rebel party. It appears that they got pos- 
 session of the young Prince's person on some day in the month of February, 1487, 
 according to the then style, but I shall preserve the modern style and call it 1488 ; 
 accordingly we find, that after they had succeeded in their rebellion, and after the 
 slaughter of the King, a Parliament was assembled in the name of the young Prince, in 
 the month of October, 1488. Now I must call the attention of your Lordships in the 
 first place to the admitted fact, that the young Prince was at that time in a state of 
 minority. No Regent appears to have been appointed, no proper delegate of the Royal 
 authority appears to have been established by any kind of usurped power. The Parlia- 
 ment was held in the name of the young Prince ; and the first act that appears of the 
 assembled rebels, in effect was to declare that the young Prince was of age, in order that 
 they might have some colour for what they proposed to do in the name of that young 
 Sovereign. 
 
 My Lords, the first act that was then done by them, and which it is necessary 
 always to bear in mind in order to understand the subsequent legal operation that was 
 attributed to all their proceedings, is that which has been continually referred to in later 
 times, with, I may venture to say execration, namely that remarkable declaration called 
 " The proposition of the Debate of the Field of Stirling." That was the first Act of 
 this Parliament, alleged to have been held in the name of King James IV., on the 
 6th of October, 1488. It will not be immaterial to call the attention of the Committee 
 to the language of this alleged Act of Parliament. We have it in the volume here, but I 
 am reading it now from the Appendix to the 2nd volume of ' Innes's History of Scot- 
 land ;' it runs thus : — " Item — in yis present Parlament, our Soverane Lord beand present 
 " together with his Three Estaitis of the realme, was proponit the debait and cause of the 
 " field of Striveling, in the quhilk James, King of Scotland, quhom God assolzie, father 
 " to our Soveraine Lord, happenit to be slaine, and the cause and occasion beand thairof 
 " communit upon and arguit among the Lordis of he Three Estaites, John, Lord 
 " Glamis presentit and schew certain Articles, subscribit with the said umquhile King 
 " James's hand, the tenor of the quhilk followis." Then that is set forth ; and it ]Dro- 
 ceeds : — " The quhilk beand read and schawin, that the said articlis was diverse timis 
 " granted to and broken be perverse counsall of diverse personis beand with him for the 
 " tyme, quhich counsalit and assistit him in the inbringing of Englishmen and to the 
 " perpetual subjectioun of the realme, and under desait and colour maid and refusit, and 
 " that our Soverain Lord that now is ever consented for the gude of the realme and 
 " the profit thereof (for the quhilk the Earl of Huntley, the Earl of Errol, the Earl 
 *' Marshal, the Lord Glamis, and utheris diverse Barons and utheris the Kyngis true 
 " leigis left him and his desaitful and perverse counsale, and adherit to our Soverain 
 '■' Lord that now is and his true opinion for the common gude of the realm), the quhilk 
 " matter being shawn, examinat, communit, and understandin, be the Three Estaites, and 
 " hale body of the Parliament, they ripelie avisit, declarit, and concludit, and in their 
 " lawties and allegeance, ilk one for himself, declarit and concludit that the slauchtor 
 " done and committat in the field of Strivling, quhair our Soveran Lordis father happenit 
 " to be slane, and utheris divers his baronis and lieges, was alluterlie in their default [and] 
 " colourit dissait done be him and his perverst counsale divers tymes before the said 
 " field, and that our Soveran Lord that now is, and the trew Lordis and baronis thatwes 
 " with him in the samin field, war innocent, free, and quyte of the said slauchters done 
 "■ in the said field, and all puirsute of the occasioun and cause of the samin, — and that ee 
 " part of the Three Estatis forsaidis, prelatis, bishopis, great laaronis, burgessis, gif their 
 " seallis heirupon." 
 
( 111 ) 
 
 The whole of the ordinances and resolutions of this Parliament, of which this 
 alleged Act Eescissory forms a part, proceed therefore upon this introductory enactment 
 and declaration, by which, as the Committee will observe, they justify the murder of 
 the Sovereign James III., and attempt to legalize the Eebellion. They proceed upon the 
 avowal that the whole of their acts are to be deemed legal and justifiable, and this is 
 the introduction which heralds this particular enactment, on which the Eespondeuts to 
 the application that I have now the honour to enforce entirely rely. 
 
 My Lords, I have called your Lordships' attention to this, because we shall pre- 
 sently find that the tone of this declaration of alleged right, in respect of which this 
 Parliament was held, and by virtue of which the whole of the subsequent enactments 
 relating to the past Eebellion are attempted to be justified, was utterly altered, and the 
 whole of these proceedings were subverted by a subsequent Parliament. Therefore in 
 the very outset I call upon your Lordships to agree with me in the conclusion that this 
 Act, called the Act Eescissory, which forms a chapter of the Ordinances of this Eebel 
 Parliament, proceeding upon a justification of Eebellion and the murder of the Sovereign* 
 must be considered as utterly abrogated and annulled by the Legislation that subse- 
 quently followed, which subverts and annuls from the commencement all that in eflPect 
 was done in this alleged Parliament held in October 1488. 
 
 Now, for that purpose, I must call your Lordships' attention to the Act of Par- 
 liament that was passed subsequently in the year 1491-1492, according to the new 
 style. Presently I shall have to relate the occurrences that took place in the inter- 
 vening time. 
 
 Notwithstanding the declaration of this Parliament, we know very well that the 
 murder of the King, and the horrible crime of committing that murder in the name of 
 the son, and the setting up the son as the antagonist of the father, excited throughout 
 Scotland the greatest indignation and hatred. It provoked the animadversion of foreign 
 Princes ; it drew down upon all parties concerned the anathema of the See of Eome ; 
 and the result was, that the authors of this alleged Act of Parliament — the creators of 
 this most vile and abominable declaration, which is the first chapter of that Parliament, 
 found themselves universally condemned and detested — and, as your Lordships have 
 already heard in the course of the narrative that has been presented to you, within a 
 twelvemonth, or within two years at least, they were obliged to sue humbly, as excom- 
 municated men, for absolution from the Pope, and they at length obtained it by abjuring, 
 and from their hearts repenting of all that had been done, and all that was attempted 
 to be justified by this proceeding of October 1488. 
 
 My Lords, I will call your attention in a few moments to the language of the 
 petition for absolution, the avowed repentance, and the conditions upon which that 
 absolution was granted. But passing on in order to contrast the two statutes — passing 
 on from this one of 1488 to the subsequent statute of 1492 — I beg of your Lordships to 
 take the two Acts of Parliament together, and it will be for your Lordships to ask your- 
 selves the question, whether in effect the whole of this chapter of October, 1488, is not 
 annulled and reversed by subsequent ordinances and statutes of Parliament. On the 20th 
 of February, 1492, according to the new style, the third Parliament of King James IV. 
 was assembled, and then an Act of Parliament was passed which begins thus : — " Alsua, 
 " be the command and advertisement of our Sovereign Lord the King, it is avisit and 
 " ordainit be the Lordis of the Articles, for the eschewing and cessing of the hevy murmurs 
 " and voice of the people, of the dede and slaughter of umquhill our Sovereign Lordis 
 " father and progenitor, quhom God assolzie, King James 3rd, that the persone or per- 
 " sonis that put violent handis in his person, and slew him, are nocht punisht, the quhilk 
 '^ personis to be knowin and punisht after their demerits our Sovereign Lord is maist 
 
( 118 ) 
 
 " desirous, and for the knowledge thairof quhat persone or personis were committaris of the 
 " said odious and cruel deid with their hands, it is now statute and ordainit in this present 
 " Parliament " — 
 
 Lord Lyndhurst. — What are you reading from ? 
 
 Mr. Solicitor General— I am reading the statute of the 20th of February, 1492, 
 which is the commencing statute of the third Parliament of King James IV- I am 
 reading it from page 281 of the first volume of Innes's 'History of Scotland,' from the 
 Appendix. Your Lordships will find it in the second volume of this edition of the Acts 
 of Parliament of Scotland, page 230. It then goes on to offer a reward to all such 
 persons as should bring any information of those that were privy to or had any act or part 
 in this nefarious deed. 
 
 I therefore beg your Lordships to bear that in mind, because I shall hereafter 
 have to call upon you to pronounce that this Act Rescissory, and all the transactions of 
 this Parliament of October, 1488, became hateful and abominable ; that they were things 
 that the people of Scotland were ashamed of; that they were things which the authors 
 and abettors of this foul rebellion and murder afterwards thought to bury in oblivion, and 
 to conceal all recollection of it. And, therefore, I shall call upon your Lordships to agree 
 with me in the conclusion that, when we find that they were obliged to adopt a differ- 
 ent tone with regard to their past proceedings, and to confess themselves to be traitors, 
 and to seek absolution in respect thereof, and that in effect, by this Act of 1491, they 
 sought to obliterate what they had done, and that that which they had denominated a 
 just act of defence against their King was now denunciated by the statute to be a foul 
 and abominable murder — I think I am entitled, and shall call upon your Lordships to 
 agree with me, that the whole of the Acts of 1488 became in truth worse than a dead 
 letter, because they contained things which no one could refer to or admit for a moment 
 to have the force or authority of law. 
 
 My Lords, this is the account of these events given in the earliest histories of the 
 time, for which I only refer, first, to Pinkerton, and then to this volume which I have 
 now in my hand — the first volume of Innes's ' History of Scotland.' I shall trouble your 
 Lordships with a few passages from this book, in order to show your Lordships that I 
 have correctly described the alterations in the opinions and feelings of the times. In the 
 first volume, page 279, I find it is there stated, " After which that same factious party, 
 " observing that their young King began to repent of the crimes in which they had 
 " engaged him, and that for penance and as a sign of his repentance he wore an iron 
 " chain, and, fearing his resentment, to secure their lives and fortunes from the punish- 
 " ment due by all the ancient laws of the land, they obliged that young inexperienced 
 " Prince, who was still in their hands, to call an Assembly in a Parliamentary form, 
 " and, there being a great majority (the loyal party, inferior in number, and seeing their 
 " Prince, now their King, at the head of that Assembly, not able or not daring to 
 " oppose), made that unprecedented Act, a.d. 1488, entitled the ' Proposition of the 
 " ' Debate of the Field of Stirling,' to acquit themselves and justify their rebellion ; and 
 " as they knew how odious their crime was to all, both without and within the kingdom, 
 " without it to all princes and states in amity with Scotland, such as the Pope, who 
 " had excommunicated all that had a hand in it, to France, Spain, Denmark, and other 
 " realms ; they therefore enacted that the King's seal, and those of the three Estates, 
 " should be appended to this Act, in order to be shown, as should seem expedient for 
 " the time, to all those diff"erent princes ; so the Act bears and is set down by Doctor 
 " Abercromby from the Black Acts in the life of King James III., to whom I shall 
 " refer my readers for all that concerns this tragedy, and shall only take notice that this 
 " Act, far from justifying the party with the rest of the world, abroad or at home, did 
 
( 113 ) 
 
 *' not so much as justify them in their own consciences, and, far from thinking themselves 
 " innocent, free, and quit of the slaughter of King James III., &c., as they pretended in 
 " this Act, they were so conscious to themselves of their guilt, that they had recourse to 
 " Pope Innocent VIII. to obtain absolution of their crime, and from the censures of the 
 " Church which they had incurred by their rebellion, protesting that they were sorry 
 " from the bottom of their hearts for the rebellion, and desirous to do penance for it, 
 " upon which the Pope empowered the Abbots of Pasly and Jedward, and the Chan- 
 " cellor of Glasgow, to give them absolution, as is more at length contained in the ori- 
 " ginal Bull in the Advocates' Library at Edinburgh, dated 27 June 1491. Within the 
 " kingdom the horror of that crime was yet greater, and more universal and lasting, for, 
 " notwithstanding the aforesaid Act to palliate it, the heavy murmurs and complaints of 
 " the people continued above three years afterwards, especially upon account that no 
 " inquiry had been made after the authors of the slaughter of the King. For this 
 " reason the third Parliament of King James IV. assembled at Edinburgh the 20 Feb. 
 " 14f^, made at last an Act," which is the Act that I have just read to your Lordships. 
 
 Now, allow me to show your Lordships how all the Acts of this Parliament, 
 beginning with this odious and infamous one, which I have just read, namely, the " Pro- 
 " position of the Debate of the Field of Stirling," proceed in one uniform series of enact- 
 ments, with regard to which I will accept the statement which is given on the part of 
 the Crown, or rather in the Case of the present Duke of Montrose^— that all these 
 chapters of the Act of Parliament are to be regarded as portions of one Act, to which 
 the Royal authority was at one and the same time given : your Lordships will find these 
 Acts in the second volume, commencing at pages 199 and 200. 
 
 They begin first with the Declaration that the young Prince is to be considered 
 as of full age, and then they proceed to hold a Parliament in the name of the Prince^ 
 and then after they have made the Declaration, to which I have directed your Lordships' 
 attention — 
 
 Lord Chancellor. — What page are you at now ? 
 
 Mr. Solicitor General. — I am proceeding through the whole of the Act of Parlia- 
 ment (for one it is), from page 199 of the second volume down to the entry where the 
 Act Rescissory (as it is called) occurs, which is in page 211. It is one Act of Parliament, 
 commencing as I have said with that proposition of the Debate of the Field of Stirling, 
 and then proceeding with several distinct chapters. The chapter to which this denomi- 
 nation has been given, namely, the Act Rescissory, your Lordships will find at the 
 bottom of page 211. The intermediate portions all I think refer to the field of Stirling : 
 that which I read before, your Lordships will find repeated again at the bottom of page 
 210. And then follows at the bottom of page 211 this particular enactment, called the 
 Act Rescissory. 
 
 The form in which that has been placed will be the subject of a good deal of 
 comment and consideration hereafter. At present I am particularly desirous to fix it as 
 part of an Act of Parliament held avowedly upon the ground that the alleged rebellion 
 was lawful resistance to the late Sovereign — held in the name of the Prince, as having 
 rightfully deposed the late Sovereign — held by these rebels in the name of the Prince, 
 without any Regent, without any colour of Kingly authority whatever, save their own 
 declaration that the Prince, who was then in the 16th year of his age, ought to be 
 regarded as of full age. And this thing which is called an Act of Parliament to take 
 away the Patent of the Dukedom, is an item of a chapter in this infamous specimen of 
 Legislation. • 
 
 Now with these comments I will call your Lordships' attention to the language 
 of the alleged Statute itself. You hme heard it very frequently stated. I will read it 
 
( 114 ) 
 
 very shortly. It is said, " It is statute and ordainit, that all alienations of lands, heritage, 
 " long leases, feu firms, offices, tailzies, blench firms, creation of new Dignities, granted 
 " or givin to any person or persons, what estate, condition, or degree that ever they be 
 " of, since the second day of February last by past, by late our Sovereign Lord's Father, 
 " whom God assoil, which might be prejudicial to our Sovereign Lord and to the Crown 
 " that now is, be cassed and annulled, and of none effect nor force in any time to come, 
 " because that such alienations, gifts, and privileges were granted since the said time for 
 " the assistance to the perverse council that were contrary (to) the common good of the 
 " realm, and the cause of the slaughter of our Sovereign Lord's Father." 
 
 Therefore these things are struck at as being prejudicial to the present Crown, by 
 reason of their being granted to those who were the aiders and assisters of the slaughter 
 of the King. They are struck at because it is said that they were " granted for assistance 
 " to the perverse council." Now, my Lords, is it possible to attribute to anything, 
 whatever denomination you please to give to it, that proceeds upon grounds which every 
 one looking back at the times must pronounce to be grounds of treason, rebellion, and 
 disloyalty, is it possible, I say, to attribute to this enactment the force and authority 
 of law ? Even if I had not the aid of the subsequent Revocation — if I had not the aid 
 of that declaration contained in the Act of 1491 — if what is here pronounced to be 
 "perverse council" was not there denominated just and proper assistance — if what is here 
 pronounced to be in effect the justifiable slaughter of King James III. were not there 
 denominated, what in reality it was, a most treasonable murder, yet unquestionably your 
 Lordships would be bound at the present time to regard it as such, and you would be 
 bound therefore to refuse to recognize the authority of an Act, which, defining nothing 
 in terms, proposes to apply a rule founded upon the allegation that resistance to King 
 James III. was justifiable, that the slaughter of that monarch was in itself a proper and 
 in effect a justifiable thing, and that those who aided him, and who gathered around him 
 to protect him, were in reality to be regarded as traitors to the young Prince, King 
 James IV. It would be impossible to recognize any kind of legislation proceeding upon 
 those principles, or to suppose for a moment that an Act of Parliament, whatever you 
 may call it, or any kind of ordinance that proceeds upon these grounds, was capable of 
 being legally applied as an instrument for the subversion and annulling of any Act, or 
 of any grant made by the slaughtered King, whose death and the rebellion against whom 
 are here attempted to be justified. 
 
 Now, my Lords, I ask you therefore to observe the conclusion at which we are 
 here called upon to arrive by those who appear here in opposition to this claim. I will- 
 not for one moment suppose that the officers of the Crown will adopt any such doctrine 
 as this. I cannot expect that I shall hear from their mouths one word calling upon 
 your Lordships to say that the grant of the Patent of Duke of Montrose to David, Earl 
 of Crawford, who was in arms to protect his Sovereign, and who was at that time paying 
 lawful obedience and allegiance to the Sovereign, was a thing " prejudicial to our 
 " Sovereign Lord." I will not for one moment suppose that the Crown will seek to 
 induce your Lordships to believe that the young Prince, when he was taken away from 
 the Castle of Stirling on the 2nd of Feljruary, 1488, according to the new style, was from 
 that time to be regarded as the lawful King of Scotland. But this Act of Parliament 
 proceeds upon the principle that all the grants made by King James III., after that 
 time, were grants derogatory to the good and to the benefit of the Crown ; because 
 these men seek to justify the Act which they had done upon the principle that King 
 James III. had forfeited the allegiance of his subjects from the 2nd of February, 1488, 
 new style, and that therefore everything done by him in favour of any of those that were 
 around him subsequently to that time is to be regarded as an Act prejudicial to the 
 
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 Crown, and as being a thing done by way of remuneration for assistance to the perverse 
 counsel that brought the King to an untimely end ! 
 
 Why, my Lords, it is utterly impossible. Suppose that your Lordships were at 
 the present day gravely called on by any opponent to a claim that I might advance to a 
 legitimate Dignity, to give this effect to an Act of Parliament passed during the Great 
 Rebellion? Suppose that an Act of Parliament had pronounced, as this infamous Act 
 does, that the murder of King Charles I. was a justifiable thing, that King Charles L 
 had broken the bond between the King and his subjects, and that thereupon the slaughter 
 of King Charles I. was justifiable, and that, therefore, all Acts done by King Charles L 
 after a particular date, after the first overt act of hostility, were to be regarded as Acts 
 done that were prejudicial to the Crown, and by way of remuneration to perverse counsel — 
 Would it be for one moment endured, that an argument of such a nature should be pre- 
 ferred to this august assembly ? And if I had nothing else to meet than an opposition 
 founded on such an alleged statute, merely a declaration of the Long Parliament, justify- 
 ing the murder of the King, and declaring the Act of King Charles I. to be in aid of 
 perverse counsel, would this august tribunal, or would any other tribunal in this country, 
 for one moment permit any Advocate at the Bar to attribute to such a thing, even if it 
 appeared upon the Statute Book, the authority of an Act of Parliament? Most un- 
 doubtedly not. But your Lordships have here before you an Ordinance and a Declara- 
 tion which forms a chapter in the Statute Book, headed by an avowal of treason, headed 
 by an attempted justification of the slaughter of the King, which at one and the same 
 time pronounced that all the Acts and all the grants of this unfortunate Monarch made 
 since the 2nd of February 1488 are to be regarded as prejudicial to his Successor, because 
 they hold him to have actually ceased to reign from that time ; and a British Court of 
 Justice is actually called upon to recognise and to give effect to that statute, and to 
 pronounce that by virtue of that statute the Act of the murdered Monarch is to be 
 regarded as of no effect, because forsooth your Lordships are now in these days to accept 
 the expression of this outrageous treason, you are to submit to the declaration of this 
 justification of the murder of the Sovereign, and on that ground you are to treat the Act 
 of the Sovereign as having been annulled by this which is the voice of the traitors who 
 slew him. Why, my Lords, the thing is preposterous ; and if there be nothing else than 
 that, if I am called upon, as I understand this Committee to have called upon us, by 
 stopping the Advocates of the Claimant at this point, and calling upon those who appear 
 for him to tell your Lordships why it is that the House should not pay attention to this 
 alleged Act Rescissory, and why it is that the House should not come to the conclusion 
 that the Patent of the Dukedom of Montrose granted to the Earl of Crawford is annulled 
 and struck at by this Act, why, my Lords, I take the Act itself, and I say that it would 
 be a disgrace, and a shame for any tribunal in this country for one moment to attribute 
 the least weight, the least authority, the least power to it. You would be participants 
 in treason, you would be accessory to the Act after the deed had been done, and it would 
 be preposterous, it would be ridiculous, it would be monstrous in any Court of law for 
 one moment to recognise this expression of a meeting of rebels as amounting to an Act of 
 Parliament, annulling and destroying the lawful Acts of the Sovereign, upon the ground 
 that they had dethroned the Sovereign, and assembled at the time when the Act was done. 
 
 Now, my Lords, I do not think that I have spoken at all too warmly on this 
 subject, because the moment that you become historically acquainted with the alleged 
 legislation of which this is a part, and which is alone set up by way of answer to my 
 claim to the dignity, I say it is a thing to be ashamed of, when it is attempted to be 
 pleaded in a court of justice as being an Act of Parliament einnulling and destroying this 
 patent. 
 
 Q 
 
( "8 ) 
 
 Lord Brougham. — It is very remarkable that in this country, in similar times not 
 very far distant in point of date, namely, in the civil war, in the struggle between 
 the houses of York and Lancaster, when King Edward IV. came to the throne, he of 
 course wished to treat all that had been done by the house of Lancaster, King 
 Henry IV., Henry V., and Henry VI., whom he had just dethroned, as null and void. 
 But we find that an Act is passed, the first Act of his reign, to give full validity, forces 
 and effect to all acts of this kind. At the request of the Commons, and by the assent of 
 the Lords, the King enacts in this way — " That all fines and final concords levied or made 
 " of any lands, tenements, possessions, rents, inheritances, or other things, and all 
 " judicial acts, recoveries, and processes determined or commenced (not reversed or an- 
 '' nulled), made or had in any court or courts holden in any of the times of the pretended 
 " reigns of any of the late said Kings " (that is, in the Lancaster reigns) " in deed and 
 " not in right," namely, of the Kings de facto, not de jure " (other than by authority of 
 " any Parliament holden in any of their times), and exemplifications of the said fines, 
 " acts judicial, and recoveries, out of any of the said Parliaments and every of them, shall 
 " be of like force, virtue, and effect as if the said fines, final concords, acts, recoveries, 
 " processes, and other the premises had or made out of any of the said Parliaments, and 
 " exemplifications of the same, had been commenced, sued, had, or determined in the 
 " time of any King lawfully reigning in this realm, and by just title obtaining the Crown 
 " of the same." But the exception to which I wish to call your attention is this. All 
 these judicial acts are made valid — all acts " other than by authority of any Parliament 
 " holden in any of their times." Now, why was that ? Not that the Acts of Parliament 
 passed in those reigns of Kings de facto and not de jure were of less validity, or were to 
 be regarded as less valid, than any other acts not done in Parliament, but manifestly for 
 the reason that it was superfluous to say so. They assumed that acts done by Parliament 
 during these three reigns were valid. There is no other mode of construing that that I 
 know of. 
 
 Mr. Solicitor- General. — I should draw rather the contrary conclusion. 
 
 Lord Brougham. — That they made everything valid except Acts of Parliament ? 
 
 Mr. Solicitor- General. — Yes, acts of civil process. That is precisely what has 
 been constantly done ; when Charles 11. came to the Throne, at the time of the Resto- 
 ration, there was the same rule observed. All matters of civil process, of civil right, were 
 held valid. 
 
 Lord Brougham. — But the fact is, that they did not repeal these Acts of Parlia- 
 ment in Edward IV.'s reign. 
 
 Mr. Solicitor- General. — Possibly not. But that Act was a thing necessary for 
 self-preservation, because if they had permitted the Acts of the Lancastrian Parliaments 
 to be deemed conclusive and binding laws of the realm, there was a good deal in them 
 that would have destroyed the title of the then ruling power. I am very much obliged 
 to your Lordship for the illustration. 
 
 Lord Lyndhurst. — You cannot call in question the Acts of Parliament passed while 
 a King is existing merely because they are arbitrary, unjust, and improper acts. There 
 is no analogy whatever in the case of the usurpation of Cromwell, because there was then 
 no King upon the throne. 
 
 Mr. Solicitor- General. — Your Lordships will do me the favour to observe that this 
 Act of Parliament proceeds upon this principle, that King James III. is to be considered 
 as having ceased to reign upon the 2nd day of February, 1488, and that therefore all 
 acts done subsequently to that period are acts to be regarded as prejudicial to the Crown 
 Why, it is impossible to recognise that as anything like the law. We might as well sup- 
 pose that if an Act of Parliament were to pass which should declare murder to be lawful 
 
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 and adultery or any other crime to be innocent, that such an Act as that could be held 
 valid, as that that statute could for one single moment be regarded as having a binding 
 effect at law. It is not, however, to be left only upon general principle, because the 
 House will do me the favour to observe that I have shown you how, by the very language 
 of the subsequent statute, what had previously been done is in itself annulled ; but I am 
 not even desirous that your Lordships should follow me to the extent to which I think 
 that the proper consideration of the matter will necessarily and inevitably lead us. I 
 shall be perfectly content if your Lordships agree with me in attributing this statute to 
 the feelings that then prevailed in the rebel faction, and to the tone which they attempted 
 at that time to assume, Avhich they were afterwards altogether obliged to drop and to 
 alter. Therefore, if your Lordships agree with me in the conclusion, that by reason of 
 that alteration this alleged Act of Parliament became entirely a dead letter, and that it 
 never was referred to, and never attempted to be put in use, and never was enforced in 
 any manner whatever — if we find that to be de facto the truth with regard to the Act 
 itself, then I think that we have very little difficulty in arriving at the conclusion that 
 it was regarded on all hands as being virtually repealed and abolished. 
 
 But now before we come to the subsequent matters, I wish your Lordships to look 
 at it, dropping all that I have said, and supposing that to go for nothing, let us look at it 
 now as if it were in every respect a lawful and a rightful ordinance, as if it had emanated 
 from legitimate and proper authority. I shall then, I think, still be entitled to your 
 Lordships' agreement with me, that it cannot be used in any manner whatever for the 
 purpose of avoiding this Patent. Your Lordships will observe that this Act of Parliament 
 was plainly nothing in the world more than a sort of instrument or weapon, which those 
 people who were then in power provided themselves with to be used thereafter as occa- 
 sion might arise, and accordingly they adopted the ordinary language of the common 
 Acts of revocation. The ordinance or Act is directed only against those things " that 
 " might be prejudicial to our Sovereign Lord, and to the Crown that now is." Nothing 
 therefore would come within the scope of that Act of Parliament, or fall under its pro- 
 visions, but that which should be found to be prejudicial to the Crown. It is quite plain 
 therefore, as there is no enumeration of particulars in that statute, that that statute could 
 not be applied as an instrument to revoke of to annul any thing, until that thing had 
 first of all been found and declared to be prejudicial to the Crown. It was therefore, 
 my Lords, nothing in the world more than a weapon laid up for use thereafter, 
 it was nothing in the world more than an instrument by which the Parliament, the 
 nobles, were hereafter to annul and to destroy anything which they could bring within 
 the reach of this declaration. 
 
 Now, supposing that your Lordships had now to try the question, whether the grant 
 to the Earl of Crawford would or would not come within the meaning of this language — 
 supposing we were arguing that — ^what is the first thing to which the attention of your 
 Lordships of necessity would be addressed ? The very first thing that I should bring 
 forward by way of proving indisputably that this particular grant had never been regarded 
 as coming within the description of " things prejudicial to the Crown," would be the 
 subsequent statute which your Lordships find to have passed in the month of September, 
 1489. My Lords, that has been printed I think in a separate form, and I will call your 
 Lordships' attention to the effect of it upon the alleged Act Rescissory. Now, in this 
 statute, which indisputably has the force of Law, and is free from any possible exception 
 which can be taken to it, (it is dated the 18th of September, 1489, it is in page 6 of the 
 separate paper), after the preamble by which the King declares that he acknowledges 
 " that it contributes to the glory and honour of the King, when persons of illustrious race, 
 " their illustrious merits exacting this, are preferred to exalted dignities" (perhaps the Latin 
 
 Q2 
 
{ 118 ) 
 
 is the better expressed), " ut exinde, cum suos cernerint status et nomina majoribus titulis 
 " decorari, ad grandiosa virtuosioraque peragenda magis ac magis in suam laudem regnique 
 " et reipublicae decorem et frugem studeant se ferventius insudare." Then it goes on, 
 " Pateat igitur universis/' and so on, " Be it known therefore to all men, as well present as 
 " future, that the said our Lord the King, considering the actual obedience and the 
 " grateful and commendable promptitude which his faithful cousin, David Earl of Craw- 
 " ford, and Lord Lindsay, and his illustrious predecessors, have exhibited towards the pre- 
 " decessors of the said our Lord the King, Kings of Scotland, and towards the same our 
 " supreme Lord the King, unweariedly and in many modes." 
 
 Now, pausing here for a moment, your Lordships would be called upon to form 
 an opinion whether the grant of the Patent, made on the 18th of May, 1488, was struck 
 at by that statute, which passed in the month of October, 1488. Li order to strike at it 
 you must pronounce that the Patent of the Dukedom was a thing prejudicial to the 
 Crown. It would be prejudicial to the Crown partly in respect of the want of merit of 
 the grantee in whose favour it was made. It would be prejudicial to the Crown if it 
 proceeded from the Crown improvidently ; if the grant of such a Dignity were either 
 an unusual thing or an impolitic thing, or a thing granted which, under circumstances, 
 it was not proper for the Crown to have made. But here we have a Royal Declaration, 
 made about a twelvemonth afterwards, in which, with reference to the particular 
 individual, and the conferring upon him of greater titles than others, it is declared that 
 the practice of conferring such titles contributes greatly " to the glory and honour of 
 " Kings;" and in particular, in this case, the grantee, the object of favour, was one who 
 was remarkable for his "obedience," for "the grateful and commendable promptitude'' 
 which he had exhibited, not only towards " the King that now is," but also towards 
 his illustrious predecessors. Then how is it possible, therefore, with this declaration 
 made by the King in Parliament, with the assent of Parliament, that your Lordships 
 can for one moment imagine that this Act, called the Act Rescissory, conceived as it is 
 merely in these general terms, could ever have been thought of being applied, or that it 
 ever had been de facto applied as an instrument whereby to annul and destroy the Patent 
 that had been previously conferred upon this individual ? It is impossible. If any one 
 had contended that this Patent is struck at by the Act, the first observation that will 
 occur is this, — Is the Patent mentioned in the Act ? No such thing. But is the Patent 
 at all referred to in the recital ? No, not at all. Well, then, how do you make the 
 Act apply to the annulling of the Patent ? The Act annuls all those things that were 
 prejudicial to the Crown. Well, then, the question merely returns, — How is the Patent 
 made out to be prejudicial to the Crovm ? The moment we enter upon that inquiry, 
 this declaration, made by the Crown in Parliament a twelvemonth afterwards, is the 
 immediate answer to that inquiry, and renders it impossible to say that the Patent had 
 been annulled by the operation of the Act, or that the Patent was capable of being 
 annulled by the operation of that statute. And accordingly it goes on to say, as your 
 Lordships are aware, that the Earl of Crawford and his predecessors had to the King 
 and his predecessors exhibited this promptitude and allegiance unweariedly and in many 
 modes — "indefessa intentione exhibuerunt multis modis, — propter quae et alia ipsius 
 " condigna merita," on account of which and other his condign merits — How are 
 you for one moment to conclude that David Earl of Crawford had been a man at all 
 regarded by the Crown as brought within the operation of that statute of October, 1488 
 or in any manner to be regarded as a culprit, or censurable, when you have got this 
 declaration made a few months afterwards, under the Royal hand, that his merits from 
 the commencement had been such as to justify any mark or exhibition of Royal favour ? 
 
 Now your Lordships will be good enough to observe that the whole of the argu- 
 
( 119 ) 
 
 ment is, that the Act Rescissory, without more, operated upon the grant, and annulled 
 it. Of course the observation that we make upon that immediately is, that the Act of 
 Parliament is incapable of so operating, that it must be applied by a judicial process, and 
 that of that judicial process there is no trace. But the further remark that I am now 
 making is, that no man ever thought of applying to the Dukedom of Montrose the enact- 
 ment containing that Act Rescissory, and that no man ever regarded David Duke of 
 Montrose as coming within the prohibition, or coming within the punishment of that 
 Act Rescissory. And in order efiFectually to arrive at that opposite conclusion I read 
 this subsequent statute, which was passed on the 18th of September, 1489, less than a 
 twelvemonth after the date of the alleged Act Rescissory. Now is not this conclusive, 
 when you are called upon, as your Lordships are here called upon, to assume conclusions ? 
 You are called upon to assume that in some way or other, by the operation of the Act 
 Rescissory, the Patent of the Dukedom was annulled, or considered as annulled. I ask 
 why ? Where is there any trace of it ? There is no trace of any kind. Well, but you 
 say we must take it for granted that David Duke of Montrose, having been the chief 
 auxiliary of the dethroned and murdered Monarch, was therefore of course a person 
 odious to the faction that was then in power. It is true that may be so taken, but that 
 the faction then in power ever thought of applying to the Duke of Montrose, the operation 
 of that statute is most effectually contradicted, not only by a variety of circumstances? 
 but still more effectually by this signal testimony to the merits and to the deserving 
 conduct of the Duke of Montrose, which is carried back as it were intentionally to a 
 period of time long antecedent to the date of that alleged Act. I say that it is utterly 
 impossible for any judicial tribunal, in the face of these things, to feel itself warranted 
 in coming to any other conclusion, that that Act Rescissory had anything like the opera- 
 tion which is ascribed to it. And I say, therefore, that if what I have ventured to 
 observe with regard to the Act is not to be regarded as of any weight — if you choose to 
 read it as upon the Statute Book, although it is nothing in the world more than another 
 sentence following an antecedent sentence that justifies the murder of the Monarch, and 
 ascribes the reigning of the Prince to a period of time when you must now take it as a 
 matter of law that King James III. still continued to reign — I say, if you refuse to 
 regard it in that light, and will take it as a lawful, well-considered statute, with all the 
 authority of an Act of Parliament, yet it is utterly impossible to conceive that it ever 
 was applied to this particular Dukedom, not only by reason of the absence of judicial 
 process, but by force of that declaration which is contained in the subsequent statute. 
 
 Now, my Lords, if it should turn out upon the examination of the whole of the 
 circumstances which historically we have ascertained, and which are to be collected 
 from the documents that have been printed and exhibited in proof, that this Act 
 Rescissory never was applied at all — that it was on all occasions and at all times dis- 
 regarded — and that under these circumstances, and at those times when you would 
 naturally have looked for the mention of the Act Rescissory, you never hear a word about 
 it ; if I can show that to your Lordships negatively, and can also (which I can venture 
 to do) defy those who will be heard in opposition to this claim, whatever they may 
 do, to bring forward any proof or any instance in which the Act Rescissory was ever 
 applied or ever used as an instrument for annulling or cassing any grant, then, I think, 
 I may reasonably call upon your Lordships to presume that it remained a dead letter, 
 of which, as I have already observed, the authors were ashamed, as they were of all that 
 accompanied it, and that it must be regarded as altogether annulled. 
 
 Lord St. Leonards. — What do you say with regard to the estates ? What has 
 become of the estates which were granted ? 
 
 Mr. Solicitor- General. — I shall go through the whole of those. 
 
( 120 ) 
 
 Lord St. Leonards. — I am speaking generally as to the enjoyment of the estates. 
 You say the Act Rescissory never has been acted upon. What became of the estates 
 granted with the dignity ? Were they enjoyed without the dignity ? 
 
 Mr. Solicitor- General. — We shall prove to your Lordships that the estates granted 
 with the dignity were enjoyed by David Duke of Montrose in the interval of time 
 between the first grant of the Dukedom and the regrant. 
 
 Lord St. Leonards. — I take for granted that you have proved that ; but I am 
 speaking of the time after his death. What became of those great estates then ? 
 
 Mr. Solicitor- General. — The only estates that I know of that we mentioned in the 
 grant of the Dukedom are the customs of the Burgh of Montrose. 
 
 Lord St. Leonards. — No; there is the capital messuage and castlestead of 
 Montrose^ and the estate of Kinclevin^ which are erected into a Dukedom, and a red 
 rose is to be rendered for them. I am asking you what became of those estates 
 after the death of David Duke of Montrose, and whether they were enjoyed by his 
 descendants ? 
 
 Mr. Solicitor- General. — The estate of Kinclevin was resumed by the Crown by 
 the operation of a subsequent statute of a very different character. It was resumed by 
 the Crown after the death of David Duke of Montrose. 
 
 Lord St. Leonards.- — Those estates, if I recollect, were included in a subsequent 
 grant, which, it is said^ gave the Dukedom for life ; and therefore I take it, those estates 
 were included in the same grant. 
 
 Mr. Solicitor- General. — I "know of no other estates that accompanied the original 
 grant of the Dukedom but the customs of the Burgh of Montrose, a great part of which 
 the Earl of Crawford was previously possessed of. 
 
 Lord St. Leonards. — In the original grant, according to your own paper, there is 
 granted " the capital messuage and place of the Castle of Montrose, vulgarly called the 
 " Castlestead of Montrose ; also our whole and entire burgh and town of Montrose, with 
 " the rents, burgh maills, great and small customs, and liberties and privileges of the 
 " same, now appertaining to us from the said burgh and town ; and we have also given, 
 " and by the tenor of this present Charter give, to the same our cousin the port and 
 " haven of the same burgh with its pertinents, with the water rights and fishings 
 " appertaining to us from the said burgh, and being within the liberty of the same, lying 
 " within our Sheriffdom of Forfar. Moreover, we have given and granted, and by the 
 " tenor of this present Charter we give and grant, hereditarily, to the same Duke the 
 " capital messuage and castlestead of our Lordship of Kinclevin," and so on ; all of 
 which afterwards are erected into a Dukedom and a Regality, to be held as a Dukedom 
 for ever, on the rendering of a red rose. The question I asked was, Have these estates 
 been enjoyed (I am not now speaking of the Dignity) since the death of David Duke of 
 Montrose ? 
 
 Mr. Solicitor- General. — I will tell your Lordship exactly how the matter stands. 
 I know of nothing that was enjoyed by David Duke of Montrose under this grant but 
 the customs and the estate of Kinclevin. These things which your Lordship has referred 
 to, namely, the grant of " totum et integrum burgum et villam nostram," would be 
 merely a grant of jurisdiction over the burgh, and that " cum redditibus firmis burga- 
 *' libus," and so forth. 
 
 Lord St. Leonards. — How could the customs of Montrose be mere jurisdiction ? 
 
 Mr. Solicitor- General. — That appears, together with the estate of Kinclevin, to 
 have been resumed by the Crown after the death of David Duke of Montrose by the 
 operation of a subsequent statute, to which I shall have hereafter to call your Lordships' 
 attention; 
 
( 181 ) 
 
 Lord St. Leonards.—l am aware of that statute. 
 
 Mr. Solicitor- General. — I can give your Lordships no further information upon 
 that subject. 
 
 Lord St. Leonards.— 1 will not interrupt you. I only wanted to know the fact, as 
 they were not accounted for in the opening. 
 
 Mr. Solicitor-General. — All those estates were enjoyed by David Duke of Montrose 
 during his life. Now that in itself may be said to be equivocal, because it may be attri- 
 buted to that alleged Litera or Regrant. But then it is not equivocal in this sense. We 
 prove them to have been enjoyed by him in the interval of time between the date of the 
 alleged Act Rescissory and the date of the regrant. Therefore we show enjoyment to 
 have accompanied the original patent from the commencement thereof, and to have con- 
 tinued after the Act Rescissory. Then, it is perfectly true that, by the operation of a 
 subsequent statute, which annulled the grant made by the Crown of estates which were 
 part of the patrimony of the Crown, by reason of this grant being in transgression of an 
 antecedent Act of 1475, the estates of Kinclevin and other estates were resumed by the 
 Crown after the death of David Duke of Montrose. That, I believe, is exactly how it 
 stands. I cannot at this moment, but I dare say one of my learned friends will be able 
 to tell your Lordships specifically what became of that castle which is here spoken of, 
 called the Castlestead, " locum Castri de Montrose, vulgariter nuncupatum le Castel- 
 " sted." But we will enable your Lordships to find out in a moment where that was 
 spoken of in the papers. 
 
 Lord Chancellor — The castlestead means the Castle of Montrose, I suppose. 
 
 Mr. Solicitor- General. — I suppose it does. I take for granted that it was a mere 
 nominal thing, accompanying, as it were, the presidency or authority over the Burgh, 
 which frequently occurs. But the actual estates which were subsequently enjoyed were 
 dealt with in the manner that I have described to your Lordships. I will hereafter 
 advert to them. Now, having spoken of the proper construction of this alleged Act, 
 called the Act Rescissory, and the impossibility of using it as a means of annulling the 
 Patent in the face of the subsequent statute — 
 
 Lord Brougham. — Was there a castle, or was the castlestead only a place where 
 there had been a castle ? 
 
 Mr. Solicitor- General. — I think " castlestead " would be equivalent to our "site" 
 of the castle. 
 
 Lord Advocate. — There is no doubt about it. 
 
 Mr. Solicitor- General. — A mere site or station, where those who had the superiority 
 over the burgh in some ancient times had a castle. The grant of the burgh would be 
 only of the superiority. 
 
 Lord St. Leonards. — Can you refer me to the proclamation of King James IV. 
 after his coronation ? 
 
 Mr. Solicitor- General. — That nowhere appears. 
 
 Lord St. Leonards. — Has any one got a copy of that proclamation ? 
 
 Mr. Solicitor- General. — No ; nor can we find it in any historical writer. 
 
 Lord St. Leonards. — It is referred to in the Act of 1488. I think we ought to see 
 that proclamation. 
 
 Mr. Solicitor- General. — We have been looking for it everywhere. 
 
 Mr. Attorney- General. — I believe it is admitted on all hands that there is no 
 trace of it. 
 
 Mr. Solicitor- General. — It was some proclamation made by the rebel faction. 
 
 Lord St. Leonards. — The rebel faction were the followers of King James IV. at 
 that time. 
 
( 122 ) 
 
 Mr. Solicitor- General. — What I conjecture it must have been was this, that after 
 the rebels had got the young Prince delivered into their power through the treachery 
 of a person named Shaw, who was Governor of Stirling Castle, they then took the 
 young Prince to Scone, and very probably proclaimed him King during the lifetime of 
 his father ; and therefore it is that they attribute the commencement of his reign to the 
 2nd of February, and therefore it is that this Act Rescissory professes to strike at grants 
 made by King James III. from and after the 2nd of February as being prejudicial to the 
 Crown that now is, and therefore it was that I commented upon that statute as being 
 now perfectly nugatory, because I take the liberty of maintaining in this tribunal that 
 you cannot consider King James III. as having ceased to reign on the 2nd of February, 
 
 1488, but that your Lordships must take him to have been the lawful and rightful King 
 of Scotland down to the 1 1th of June, 1488, when he was murdered. And accordingly, 
 my Lords, we find that as soon as this voice of rebellion was put an end to, and as soon 
 as this attempt to justify these acts of treason was altogether put down and abolished, 
 all the Acts of the young King's reign are made to date from the 11th of June, 1488, 
 which was the day of the death of his father. You cannot, therefore, have anything 
 more conclusive to prove that this Act, which professes to strike at this Patent because 
 it was a Patent granted by a King who had ceased to reign, and which was therefore 
 prejudicial to his alleged successor King James IV., that that is a representation and 
 declaration which was altogether departed from and abrogated by King James IV. 
 himself, who dated the commencement of his reign and all his Acts from the death of 
 his father, from the 11 th of June, and not from the 2nd of February. 
 
 My Lords, I am now proceeding to deal with the Act Rescissory, as it is called, as 
 if it were entitled to be gravely and deliberately regarded as an ordinance of a competent 
 and legal authority. I have partially dealt with it in that light by showing to your 
 Lordships that it cannot be so applied by reason of a subsequent statute. I will now 
 proceed to show your Lordships that it never for a single moment was deemed to have 
 the force of law, and never was applied as law. For this purpose I must call your 
 Lordships' attention, first of all, specially to the operation of the Act as regarded the 
 Duke of Montrose ; and I shall invite you to follow me in the various proofs that I shall 
 bring before you of the assertion of David Duke of Montrose of his right and title to the 
 dignity, notwithstanding the passing of this Act Rescissory, and in the interval of time 
 between the date of that Act and the subsequent statute of September, 1489. 
 
 My Lords^ there are a great number of instances of recognitions on the part of 
 the Crown of David Duke of Montrose, as being entitled to this dignity anterior to the 
 month of September 1489. That David Duke of Montrose so asserted his title is put 
 beyond the possibility of doubt. And here it may be for this purpose material to point 
 your Lordships' attention to the Protest that was executed by David Duke of Montrose, 
 when he was called on to resign a part of his hereditary right, although I quite agree 
 that cannot be regarded as bearing upon the question at issue any further than this, that 
 it was a deliberate assertion by David Duke of Montrose, of his being not only entitled 
 to this dignity, but entitled to everything which had been granted to him in respect of 
 that dignity. Your Lordships are aware that the Protest has been put in evidence, and 
 it has been put in evidence merely for that particular purpose. In addition to that, your 
 Lordships will find that several Deeds were executed by the Duke of Montrose from 
 and after the Act Rescissory, and previously to the Regrant in the month of September 
 
 1489, which put beyond the possibility of doubt the resolution on the part of David 
 Duke of Montrose, at all times, to assert that he was lawfully and justly entitled to the 
 benefit of that Patent. 
 
 My Lords, the first that I will call your Lordships' attention to, is the Grant 
 
( 123 ) 
 
 made by him to Margaret, his wife, upon which the ordinary process was sued out, 
 namely, a Charter of Confirmation on the part of the Crown. Your Lordships will find 
 that is stated at page 83 of the Supplemental Case. It appears that, on the 20th of 
 October, 1488, which was only a few days after the date of this alleged Act Rescissory, 
 a Charter was granted by the Duke of Montrose, by which he conferred a pension of 
 160 marks, payable out of the Great Customs of Aberdeen to his wife Margaret. Now 
 that instrument, according to the Scotch rules of conveyancing, required Royal confirma- 
 tion, and the Royal confirmation granted thereupon recites the former grant and ratifies 
 it " in omnibus suis punctis et articulis, conditionibus, et modis ac circumstantiis suis, 
 " quibuscunque, forma pariter et effectu, in omnibus et per omnia." And then upon 
 the outside of the Charter, which is material only for the purpose of showing that it 
 was sent in in order that it might receive the Royal confirmation^ there is indorsed " Carta 
 " confirmationis Mergarete Carmychel super carta Ducis de Montrose'.' 
 
 My Lords, upon the particular Act, as being not only an assertion of the right to 
 the title, but a solemn Act done in the name and Dignity of the Duke of Montrose, I 
 observe that the case on the part of the present Duke treats the matter slightingly, as if 
 it were to be regarded only as the Act of the clerk who made the entry. I do not think 
 your Lordships will agree with that criticism upon this transaction. This was a solemn 
 deed sent into the ordinary and official place where the Royal confirmation could be sued 
 out upon it. It was sent in the name and with the title of the Duke of Montrose, claimed 
 on the part of the individual making the grant, and under that name, and with that 
 style and title, the ordinary Instrument of Royal Confirmation is given. I cannot imagine 
 therefore that there is anything which can more properly be brought forward as being 
 an open and avowed Act of Assertion of right to the Dignity of Duke of Montrose, and 
 of his title to convey the property under that denomination ; and for the purpose of 
 making that open exercise of his right to use that title more stringent and effectual, the 
 ordinary process of Royal confirmation is sued out under that name and title. My Lords, 
 it is a most signal and remarkable instance of the Duke of Montrose continuing to assert 
 his right to the Dignity notwithstanding this Act Rescissory ; and if it was supposed that 
 that Act Rescissory ever would have the effect of depriving him of or annulling the 
 Dignity, it was undoubtedly the very last thing that we can suppose him to have 
 attempted to do in the face of the Crown, namely, to make a grant out of the subject of 
 the property to which your Lordships' attention has been so much given, the customs of 
 the town of Aberdeen, and to send that grant in for the ordinary process of Royal confir- 
 mation. 
 
 Lord Chancellor. — Is the confirmation of that Act printed any where in the Case ? 
 
 Mr. Solicitor- General. — I do not think it is set forth in the Appendix anywhere. In 
 page 7 of the Original Case of the Claimant, you will find the nature of the grant of the 
 pension is stated, and the indorsement upon it, and then the Royal confirmation, which is 
 stated to be derived from the Great Seal Register. 
 
 Mr. Bolt. — It is stated at page 13 of our Original Case. 
 
 Sir FitzRoy Kelly. — Your Lordships will have_ it in extenso when the evidence is 
 printed. In the mean time there are only these extracts from it which are to be found 
 in the printed paper. 
 
 Mr. Solicitor- General. — It has been referred to, and has been ascertained to be in 
 the language in which we have stated it. A copy of the instrument has been proved 
 before your Lordships, and, as my learned friend has observed, it will shortly be printed. 
 
 My Lords, this is the first Act, therefore, which I bring forward by way of contra- 
 dicting the conclusion that the style and Dignity of the Duke of Montrose was, from and 
 after the passing of the Act Rescissory, regarded as altogether annulled and at an end. 
 
 R 
 
( 124 ) 
 
 Now, my Lords, let us look at the next transaction, which, I think, is still more 
 forcible and effectual for that purpose than that to which I have invited yotir attention. 
 Returning again to the Supplemental Case of the Claimant, at page 88, your 
 Lordships will find a transaction which appears to me to have been of this nature. 
 Your Lordships are aware of the Notarial Protest, which we have put in, of David Duke 
 of Montrose. 
 
 Lord St. Leotiards.—With respect to the point you have just left, I wish to call 
 your attention to the fact that he is called in the confirmation " Earl of Crawford." I 
 wish to know what your answer is to that ? In the grant he calls himself " Duke of 
 "Montrose," but in the confirmation he is styled " Earl of Crawford," if I understand it. 
 
 Mr. Solicitor- General. — Yes, I am aware of that fact, and I shall hereafter advert 
 to it. 
 
 Loi^d St. Leonards. — I will not interrupt you. 
 
 Mr. Solicitor- General. — I am aware that the Royal confirmation gives him the 
 denomination of Earl of Crawford, but in the endorsement it is, as I have stated, " Carta 
 " confirmationis Mergerete Carmychel super carta Ducis de Montrose." But what I am 
 particularly desirous of calling your Lordships' attention to is this, that he asserted 
 himself to be Duke of Montrose, and did not hesitate to send in a grant, under that style 
 and title, to the Crown for its confirmation. It is exceedingly likely, having regard 
 to the date of the grant, that the ruling party, who had not at that time been compelled 
 to disavow their acts, might direct the confirmation to be given under the title of the 
 Earl of Crawford. But it is equally true that he was openly asserting his right to the 
 title of Duke of Montrose. My learned friend reminds me that, anticipating -the objec- 
 tion arising from the fact that the confirmation denominates him Earl of Crawford, 
 instead of giving him the higher title, we have shown a confirmation granted in a 
 similar manner to the Earl of Lennox, in which he is styled by his inferior title of Lord 
 Darnley. 
 
 Lord St. Leonards. — I am aware of that evidence ; that is, you show that an 
 ancient title was frequently made use of in preference to a higher but a younger title. 
 
 Mr. Solicitor- General. — Exactly so. To that I can add nothing but that at the 
 particular time of the confirmation the rebel faction was predominant, and had not been 
 compelled to disavow their acts. 
 
 My Lords, we next come to a much more distinct instrument and effective pro- 
 ceeding, for the purpose of evolving the conclusion at which I trust your Lordships will 
 arrive : — that is, the transactions connected with the surrender of the Sheriffdom of 
 Forfarshire. Those are all detailed at length at the bottom of page 88 of the Supple- 
 mental Case. In the Notarial Protest by the Duke there is a recital, that the King had 
 remitted to the Duke all his displeasure — " remisit et indulsit sibi omnimodam hujusmodi 
 " displicientiam per Literas suas Patentes." Undoubtedly I cannot use that Protest as any 
 evidence of that particular fact ; but it may be taken in connection with what appears 
 upon the face of the instrument which we have given in evidence out of the charter-chest 
 of the Lords Gray, namely, the resignation of the sheriffdom of Forfarshire. Now that 
 runs in a very remarkable form. First of all, prefixed to it is the Notarial Instrument, 
 which your Lordships will find in page 89, No. 3. 
 
 Lord Chancellor. — The Notarial Instrument is printed at length in page 5 of the 
 Supplemental Paper. 
 
 Mr. Solicitor -General— Yes, my Lord, that is printed at length, I think, at pao'e 5 
 of the Supplemental Paper, and you will find it at page 9 of the Original Case. Now 
 that Procuratory is addressed directly to the Crown, and a most important instrument it 
 is. Having alluded to the Protest, I need not dwell upon that more. But now comes 
 
( 125 ) 
 
 the Procuratory, which is the letter of attorney to make the resignation, — " Excellentis- 
 " simo principi, ac domino nostro metuendissimo, Dei gratia, Regi Scotorum illustrissimo, 
 " vestre serenitati si placeat, humilis ligius David, Dux de Montross ac Comes Craufurdie." 
 Then, after words of reverence and salutation, he says, "Ad sursum reddendum, resig- 
 " nandum, ac pro nobis et heredibus nostris pro perpetuo pure et simpliciter quiete cla- 
 ." mandum, totum et integrum officium vicecomitatus de Fforfar," &c., " in man us vestre 
 " celsitudiriis, tanquam in manibus domini meisuperioris eiusdem, nobiles et potentes ac 
 " honorabiles viros, Patricium Comitem de Bothwell ac Dominum Halis." 
 
 .We know very well, from the history of those times, that the Lord Bothwell and 
 the Lord Hailes were the principal leaders of the rebel faction. They are therefore 
 named here, and no doubt named on the part of the Crown, as being the Procurators, 
 that is, the attorneys, who should have authority given to them by the Duke of Montrose 
 to surrender to the nominee and grantee of the Crown the Sheriffdom of Forfarshire. 
 Your Lordships cannot therefore have a more signal instance of the importance which 
 must be given to the fact that the man who makes this Procuratory asserts himself upon 
 the face of it to be Duke of Montrose, and that they accept it from him as such, " Quod 
 " vero officium, &c., in manus vestre celsitudinis sursum reddo," &c., and with respect to 
 them he says, " Meos veros legitimos et indubitatos procuratores irrevocabiliter facio et 
 " constituo," &c. 
 
 I think, therefore, that when the Crown, through the medium of its own procu- 
 rators, accepts a power from the Duke of Montrose to surrender to the Crown eo nomine 
 for himself and his heirs that which he claims to have by right of inheritance, you 
 cannot have anything that more distinctly amounts to a deliberate Royal recognition 
 on the part of the Crown that the individual giving this Procuratory was really and 
 rightfully Duke of Montrose. Your Lordships will observe the importance of this, 
 because the smallest act of recognition of David Earl of Crawford being Duke of 
 Montrose after the Act Rescissory, the smallest Royal recognition of that fact is con- 
 clusive of this, that the Act Rescissory did not operate upon the Patent, for we all know 
 the principle of law, although I heard my learned friend the Attorney-General say it is 
 monstrous — if he will look further into it, I think he will find that it is not monstrous ; 
 for any one who knows anything upon the subject of Peerage law will know perfectly 
 well that, so far from being monstrous, it is one of the very first principles that a recog- 
 nition on the part of the Crown of an individual subject bearing a particular style or 
 title of dignity is conclusive against the result that that particular style or title of 
 dignity had been taken away by any act of forfeiture. 
 
 Lord Chancellor. — On what authority do you state that ? It may be that, as a 
 matter of courtesy, the Crown recognises the title. It may be said that that gives the 
 party by courtesy a right to be so called ; but does the Crown by so doing create a title, 
 supposing it has been abolished by Act of Parliament ? 
 
 Mr. Attorney-General. — That is what I call monstrous ! 
 
 Mr. Solicitor- General. — No, that is not the proposition that I contend for, that if 
 the Crown should call him a Duke that would make him a Duke ; but that the Crown, 
 having legally conferred the title of Duke, and then, the question being whether an 
 indefinite Act of Parliament had taken it away, the circumstance that in a solemn and 
 deliberate instrument the same individual, having been once the lawful grantee of the 
 Crown, is recognised by the Crown as being Duke, is conclusive against that dignity ol' 
 Dukedom being struck at and annulled by that indefinite Act of Parliament. That is 
 the point that I am now urging. 
 
 Now, it does not rest merely upon that, because if your Lordships will refer to 
 the Instrument of Resignation, which is in page 10 of the Original Case, you will find it 
 
 R2 
 
( 126 ) 
 
 thus set out : — " Per hoc praesens publicum instrumentum cunctis pateat evidenter,"^ — and 
 then it goes on to state that the Procurator, Alexander Home, had appeared before the 
 King ; then it proceeds to say, " Procurator irrevocabilis, ad infrascripta, magnifici et 
 " potentis Domini David, Ducis de Montrose ac Comitis Craufurdie, factus et constitutus, 
 " &c. per unum Procuratorium, sigillo proprio dicti Ducis sigillatum, roboratum, et 
 " munitum, prout mihi, notario publico subscripto, meis intuentibus oculis, evidenter 
 " constabat." 
 
 Then, by virtue of that procuratory so made and here recognised, a resignation 
 is effected of the office of Sheriff of Forfarshire into the hands of the Crown, in order 
 that the Crown may confer that office upon the Gray family, which your Lordships 
 will find immediately follows,^ — ■" Quibusquidem donatione, resignatione, &c. sic factis, 
 " receptis, et admissis, praefatus Dominus noster Rex totum et integrum dictum officium 
 " Vicecomitatus de Forfar, &c. provide viro Willielmo Liddell, tunc prsesenti et coram 
 " regia Majestate," and so on. And then there is a grant to him as the representative of 
 the Lord Gray. 
 
 In this way therefore, my Lords, and by virtue of that Procuratory so made by 
 the Duke of Montrose as Duke of Montrose, treated and recognised as such, the Crown 
 receives the surrender of this important branch of the hereditary property, namely, the 
 Sheriffdom of Forfarshire, and transfers that property to the Gray family, out of whose 
 charter-chest these Instruments come, having been delivered over to that family as the 
 title-deeds by virtue of which they themselves were to become possessed of this heredi- 
 tary franchise, and by virtue of which they held and enjoyed it. No'.r, the only way in 
 which this is attempted to be met by the Case which the Duke of Montrose has been 
 permitted to lay upon the table is this : —he says it may be doubtful whether this is not 
 one of those forged and fraudulent Procuratory Instruments which, he says, were very 
 frequent from the misconduct or from the dishonesty of notaries, which at that time 
 were very prevalent in Scotland. Why, my Lords, the answer to that is, that no other 
 title-deed or instrument or document under and by virtue of which the Gray family be- 
 came possessed of this Sheriffdom is produced, or attempted to be produced or accounted 
 for, except this particular instrument ; and, therefore, it is no doubt the deed by virtue of 
 which the property was transferred and has been held and enjoyed, accompanying, as it 
 has done, the enjoyment of that property, and being found in the charter-chest of the 
 Gray family ; and that, I think, is quite sufficient to give it the character of a legal, au- 
 thentic, and operative instrument. 
 
 Now this is the second important transaction to which I beg to call the particular 
 attention of the Committee. There are one or two others which serve only as instances 
 of the uniform assertion on the part of the Duke of Montrose in this interval of time of 
 his right to the possession of this dignity. Another instrument has been given by us, 
 which your Lordships will find at page 15 of the Original Case; and this also, I think, 
 deserves more attention than an ordinary deed would have, by reason of the notoriety 
 that would attend the transaction. It is an indenture made the 2nd August, 1489, and, 
 therefore, before the alleged regrant, and it runs in these words, " A rycht noble and 
 " mychtie Prince, David Duk of Montrose and Earl of Crauforde, on the ta perte, and his 
 " humble bedmen and oratours, Frer Jhon Yhare, Minister Provincial of ye Frers Minors 
 " of Scotland, togider wyt consent and assent of the hale Cheptour, &c., and speciali the 
 " Warden and Convent of the Frers of Dunde, on the toder pert." 
 
 Mr. Attorney- General. — It recites the grant. 
 
 Mr. Solicitor-General. — I will read it: it says, "That, because the said mychti 
 " Prince has giffen, be state and possession, twenti merks of usual mone of Scotland of 
 " annual rent be yher, &c., of his lands of Drumcarne, in the Lordship of Glenesk, wytin 
 
( 127 ) 
 
 " the ScherifFdom of Forfar, to his foresaid place and oratours, wardan and conventual of 
 " Dunde, through his special cherite and grace, for uphaldin and continuation of Goddis 
 " service in the samyn ; Quharefor the said Minister Provincial, al hale the said body of 
 " the Cheptour, &c., and convent of the said place of Dunde, are bunding &c. &c., yherli 
 " for to do and fulfil, &c., this service and observance under writtin, for the heill of saule 
 " and body of the said mychti Prince, Lady Margaret, Princes, his spous, his noble pro- 
 " genitours and successours, and for the saule of a noble lady of hali memor, Mergery, 
 " grandame to the said mychti Prince, &c., that is to say (that they shall) every yhere, 
 " perpetuali and daili, say a mess at the he alter of the said place, and every Friday sal 
 " sing a mess of the Requiem at the said alter, vvyt the hale conventual of the said place, 
 " beand for the tyme, for the sauls forsaid, the quhilke mess sal be opynly callit the 
 " Duke's mess of Montrose." Here, therefore, it seems clear that in a transaction which 
 can hardly be denominated a private deed, because this mass which was thus denominated 
 is to be openly said in a place which was a place of general resort, we find the Duke 
 under that denomination founding and endowing this public service. 
 
 Now these, my Lords, are instances of the exercise of the right to the title of 
 Dukedom and the enjoyment thereof that occur in the interval between the date of the 
 alleged Rescissory Act and the alleged Regrant of September, 1489. I venture there- 
 fore to draw, from what I have stated, the conclusion that no one ever thought of 
 applying, and no one ever did at that time apply, the operation of that Act Rescissory 
 to this Patent of the Dukedom of Montrose granted in May, 1488, to David Earl of 
 Crawford. 
 
 Now I wish, before I go on to the subsequent Statutes, to beg of your Lordships 
 to contrast the form of this alleged Act, annulling and rescinding the Patent, with the 
 ordinary form which is adopted and found in Acts that are passed for that express 
 purpose. Your Lordships will find various examples of such Statutes enumerated in 
 page 21 of our Supplemental Case, and this will serve to illustrate the diflFerence 
 between the language and form of that Act of Parliament of October 1488, and the 
 ordinary language and form of Scotch Acts of Parliament. If your Lordships will do 
 me the favour to look at the note about the middle of page 21 of the Supplemental 
 Case, you will see a remarkable difference in the form of enactment of regular Scotch 
 Acts of Parliament and the language adopted in the alleged Act Rescissory of October 
 1488. We have given a variety of forms, which run thus, — "The which day our 
 " Sovereign, with full consent and assent of the Three Estates of his Realm," — " The 
 " which day our Sovereign Lord, with the advice and consent of his Three Estates of his 
 " Realm." Now this form of enactment is altogether wanting in that alleged Statute 
 of October, 1488. 
 
 Lord Lyndhurst,- — How is the other ? 
 
 Mr. Solicitor- General. — It has none of those forms. The title of the Act begins 
 thus — " The Parliament of the Most Excellent Prince and our Lord King James the 
 " Fourth, by the Grace of God King of Scotland, holden at Edinburgh on the 6th day 
 " of the month of October ;" and then, after enumerating the Lords who are present at 
 the time, it runs on in this form, — " In the Parliament of the Most Excellent Princt- 
 " and our Lord James the Fourth, before certain Nobles," and so forth. And then it 
 goes on to enumerate certain things that were done at the Parliament ; but I do not find 
 in any part of it the distinct form of enactment. There is a narrative of a variety of 
 things that appear to have been done, but in point of enactment all that is done is in 
 this way. 
 
 Lord Lyndhurst. — It does not say that "with the assent of the Three Estates of 
 " his Realm " he has done so and so ? 
 
( 188 ) 
 
 Mr. Solicitor- General. — No, I do not find it so stated. What I am now reading 
 is in page 206 of the Statutes. This is the manner in which the enactments run : — 
 " Haec sunt acta et statuta facta et confirmata in Parliamento superscripto." That is 
 the way in which it is expressed. Then the language that is adopted is this, — "Item, 
 " it is advised and concluded." That is one form. The next is,— "Item, it is statute 
 " and ordained." It does not say "by the King with the consent of" so and so, but 
 merely, "It is statute and ordained." That would have done very well if the ante- 
 cedent part had been there, that the King, with the advice of the Three Estates of the 
 realm, and with their consent, had enacted as follows. It then goes on, — " Item, it is 
 "avised and concluded." The particular portion with which we are dealing, namely, 
 that which is called the Act Rescissory, runs thus, — " Item, regarding the proclamation 
 " made at Scone, it is statute and ordained." That is the form, and I wish to contrast it 
 with the regular form of Scotch enactments, which certainly runs thus, " The which 
 " day our Sovereign Lord, with the full consent and assent of the Three Estates of the 
 " Realm," and so on. 
 
 Now, in this page 21 I am also desirous of pointing out to your Lordships the 
 form of a Rescissory Act for annulling or rescinding an antecedent grant, which your 
 Lordships will find at the bottom of the page in the second note ; and I believe that this 
 form will be found to have been constantly observed. It runs thus : — " In Parliamento 
 " supremi domini nostri Regis, tento apud Perth, die Martis, undecimo die mensis, et anni 
 " predictorum, super jure tam proprietatis quam possessionis omnium et singularum 
 " terrarum Comitatus de Marche et Dominii de Dunbar," of all the lands of the Earl of 
 March and the Lordship of Dunbar which belonged, and so forth, " procuratoribus et prolo- 
 " cutoribus excellentissimi principis ac domini nostri Domini Jacobi, Dei gratia Regis 
 " Scotorum illustrissimi, actoris ab una, et prosequentis, et procuratore Domini Georgii 
 " de Dunbar militis, rei defendentis, partibus ab altera, ipsorumque allegationibusjuribus 
 " et rationibus attentis ad plenum, . . . Per Tres Status Regni in dicto Parliamento 
 " presentes .... fuit decretum .... quod, ratione forisfacture Domini Georgii de 
 " Dunbar, quondam Comitis Marche et Domini de Dunbar " — and then it goes on to say 
 that the right, as well of property as of possession, of all lands of the Earldom of March 
 and Lordship of Dunbar, and a variety of other lands which he held of the King, should 
 " belong " to so and so. 
 
 Now that is undoubtedly the regular form of an Act of Forfeiture. I believe they 
 are all formed to run precisely in that way, — that when, by the operation of the Statute, 
 there is any conclusion arrived at, without touching the forfeitures of any Lordship or 
 the possession of any Noble, the groimd is distinctly stated, and the operation of the Act 
 is distinctly expressed with reference to that particular forfeiture. 
 
 Such, therefore, my Lords, is the remarkable contrast which is exhibited by this 
 alleged Act Rescissory ; and which your Lordships will particularly bear in mind has this 
 operation ascribed to it, that it is said that from and after the passing of the Act 
 Rescissorv, without any judicial proceeding to apply it at all, the Dukedom of Montrose 
 ceased to exist. That is the proposition. 
 
 Lord Chancellor. — It is prefaced in this way, that the Parliament assembled on 
 different days ; and then on the I7th of October there is a certain proceeding ; and it is 
 said, "Haec .sunt acta et statuta facta et confirmata in Parliamento superscripto." 
 
 Mr. Solicitor- General. — That is what I read. That is the form which they adopt 
 in this Parliament of 1488. But I think your Lordships' attention must have been 
 caught by the clause in which they declare that the Prince is now of full age, and 
 entitled to hold a Parliament. It is abundantly clear, therefore, that they had not 
 observed even the regular form of enactment, for it is impossible to hold that these 
 
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 Statutes run in the name of the King when they are prefaced by that particular 
 declaration. 
 
 Now, before we go to the circumstances which followed this alleged Act Rescis- 
 sory, I must beg to call your Lordships' attention to the difference between its language 
 and that of the subsequent Acts passed in the years 1490 and 1493, and this is very far 
 from being immaterial. Your Lordships will observe that the Act which is cited is in Feb- 
 ruary, 1490 (which of course in modern style would be February 149 1). And I mark this 
 the more because this is about the time when, according to the language of the Statute 
 which I read to your Lordships, there was a general murmur and discontent throughout 
 the realm, and a general complaining that the murderers of the late King had not been 
 brought to punishment ; and it was about this same time that the authors of the treason 
 and the murderers of the King were suing for pardon and for forgiveness from the See 
 of Rome. Accordingly, we find that the Act of February, 1491, is conceived in a very 
 different form of words. The Act of February, 1491, would be merely in the common 
 language of the ordinary Acts of Revocation which frequently were passed at the com- 
 mencement of each reign for the purpose of annulling any grants that may be considered 
 to have improperly emanated from the Crown. Your Lordships will find the language 
 of the subsequent Act of February, 1491, at page 24 of the Supplemental Case. "Item 
 " it is thocht expedient that becaus there wes a Statut maid in our Soverane Lordis 
 " Parliament, that now is, haldin at Edinburgh on Wednesday the viij day of October 
 '' th'ere (the year) of God 1488, declairand all alienations of landis, heretagis, lang takkis, 
 " few fermis," and so on, " of nane avale efter the secunde day of Februare, quhilk was the 
 " day of our Soverane Lord that now is cuming furth of Strivelin, unto the Coronacioun 
 " of our Soverane Lordis Hienes, maid be his faider of maist noble mynd, maid of nane 
 " avale, force nor effect, for certane causis contenit in the said Act and Statute ; That 
 " therefore all thai quhilkis gat the pretendit giftis of alienacioun of heretage," &c. 
 " suld bring thair lettrez and evidentis grantit herapon to our Soverane Lord within 
 " fourtj dais to be destroyit, certifying thaim that bringis nocht, the King will mak thaim 
 " to be specialy callit and punist for thare inobedience." Undoubtedly, it is most re- 
 markable that the words " creation of dignities " are not to be found in this Statute. It 
 is remarkable also in another point of view, because it is quite clear that, if this Act 
 Rescissory is to be regarded as having had any operation and to be here referred to, then 
 an obligation would lie upon the parties who had any of these grants to have brought 
 their evidences of title to be annulled. But, as your Lordships will presently find, we 
 do not find a single instance of all the grants that were made by the late King James 
 III., that were accompanied by creation of dignities, in which there was any forfeiture 
 or any assumption by the Crown of the lands so granted. I shall presently have occasion 
 to call your Lordships' attention to the case of the grant made to Lord Glencairn, to 
 the case of the grant made to CoUace of Balnamone, and to the case of the gi'ant made 
 to a family of the name of Somyr, and two or three others, in all of which, accompanied 
 as they were with the creation of dignities, it will be found that neither the Act of 1488 
 nor this Act of 1489 had any operation, or was in any manner whatever applied. 
 
 Your Lordships are aware that these Acts of 1489 and 1490 were also followed 
 by another Statute of 1493, the substance of which is given in page 33 of the Supple- 
 mental Case. Now that Act of 1493 is, I think, confined entirely to grants which had 
 been made of the heritages of the Crown, and by virtue of that Statute the lands of 
 Kinclevin and the Customs must have been ultimately resumed from the family of the 
 Duke of Montrose. It is not printed at length in our Case ; but it will be found in page 
 236 of the 2nd volume of the Statutes. Now, my Lords, the difference between the 
 two is remarkable, because this Act, like the Act of 1490, does not at all refer to the 
 
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 creation of dignities, but refers only to grants that have been improvidently made of 
 portions of the Royal heritage, and those are revoked, reduced, quashed, and 
 annulled. " All and quhatsumever thinges done, in detriment and harme of our saule and 
 " conscience, hurting of the priviledge and freedome of our Croune, prejudicial and in 
 " damnage of our heritage to us, our aires or successoures." It seems, therefore, that 
 the attempt that was made by the Barons in 1488 to include in the Statute of that year 
 the creation of dignities was, as I ventured to suggest to your Lordships, a mere instru- 
 ment by which they might at a future time strike at those who were opposed to them 
 in the rebellion. But we iind that those particular terms are not to be found in any of 
 the subsequent statutes, although it is perfectly clear that those two subsequent 
 statutes were conceived in the only manner in which statutes of that time had been 
 usually made in Scotland ; namely. Acts for the purpose of annulling any grants that 
 had been improvidently made of parts of the Estates of the Crown. I say, therefore, 
 that to any one who will view the matter historically, having first imbued his mind 
 with a knowledge of the history of the times, nothing can be more pregnant with proof 
 that this Act of October 1488, called the Act Rescissory, was in a most unusual form, 
 and was a mere instrument for the purposes of a faction, never carried into effect, never 
 applied. But, so far as the purposes of the Act were at all legitimate and usual, 
 the Act itself was altogether superseded by the subsequent statutes of 1490 and 1493, 
 which are conceived in the ordinary form of statutes of that character, namely. Acts for 
 the purpose of annulling grants that had been improperly made of estates belonging to 
 the Crown. 
 
 My Lords, what we have now gone through proves, I think, first of all, that 
 during the interval of time between the original Act and the regrant, David, Duke of 
 Montrose, was not considered on the part of any person, or of any authority, as being 
 included within the operation of the Act Rescissory. I must now carry your Lordships 
 down to the evidences which are offered by the subsequent transactions, that the Act 
 Rescissory, which was plainly inoperative with regard to David, Duke of Montrose, was 
 equally inoperative with regard to the other noblemen and gentlemen to whom grants 
 had been made by King James III. subsequently to the time which is struck at by the 
 Act of 1488 ; namely, subsequently to the 2nd of February, 1488. 
 
 Now there were several grants, the history of which it is necessary to give to 
 your Lordships in order that you may see the full effect and truth of that observation. 
 The first grant to which I will call your Lordships' attention is the grant made to 
 Thomas Collace of Balnamone. That is mentioned I think in the Supplemental Case, 
 page 34, and in page 58 of the Appendix to the Original Case it is given at full length. 
 The grant that had been made to Collace of Balnamone was dated the I7th May, 1488. 
 That was the very day before the grant of the Dukedom of Montrose. Now it would 
 follow as a matter of course that this particular grant, being of half the Forest of 
 Kilgary with the royal rights of vert and venison, made to Thomas Collace of Balna- 
 mone, would have come within the operation of the Act Rescissory, if the Act Rescissory 
 had been regarded as having any legal validity at all. But, instead of its being so, we 
 find that a Royal Charter of Confirmation is obtained by the grantee, claiming his title 
 under the Act the 17th May, 1488. That is, a mere Charter of Progress in the ordinary 
 form, which your Lordships will find given in the Appendix, page 58 ; and I must call 
 your attention to the recital there, because it plainly proves that this grant made by 
 King James III. was not considered as in the smallest degree affected by the Act 
 Rescissory. 
 
 It proceeds upon a recital of "the grant made by our most excellent father and 
 "progenitor" (King James III.) "to Thomas Collace of the half of the Forest of 
 
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 " Kilgary." Then it goes on to say, " Visam, lectam, inspectam, et diligenter examinatam, 
 " sanam, integram, non rasam, non cancellatam, nee in aliqua sui parte suspectam, ad 
 " plenum intellexisse sub hac forma." It proceeds therefore upon, as it were, an 
 inspeximus (to adopt our phrase) of the original charter which has been granted by King 
 James III., and that is recognised as having full force and effect. Then follows the 
 ordinary confirmation of that, — which is merely a charter confirming the title founded 
 upon the original grant, the validity and legality of which are entirely recognised. 
 
 Then your Lordships will find that this is attended with the usual solemnity, and 
 it bears date the 23rd of March 1499. Now, how is it possible to say that the Act 
 Rescissory operated, per se, a destruction of all the grants that had been made by 
 King James III., from and after the 2nd of February 1 488 ? Because, if you ascribe 
 that operation to it, you must be consistent and uniform in your argument, and if it had 
 that effect, it annulled all the grants made by the Crown. But here is a very important 
 grant, conveying away a portion of the Crown property, but which nevertheless the 
 Crown itself, in 1499, deliberately confirms, and confirms upon a statement that the 
 antecedent grant was altogether valid and operative in law. 
 
 The next grant or instrument upon which I will detain your Lordships for a few 
 moments is a similar grant, made to a person of the name of Thomas Somyr, of 
 Balzordy, and that your Lordships will also find is dated the 17th of May 1488. It is 
 partly stated in page 35 of the Supplemental Case. It is sufficient for me to state that 
 this is a grant of the other moiety of the forest of Kilgarry — that it is in the same form 
 as the giant made to Collace, and that it bears date on the same day, the 17th of May 
 1488 ; and it is confirmed in like manner as the confirmation which was granted to 
 Collace, by an instrument of the same date — of the 23rd of March 1499 — which, ac- 
 cording to the New Style, would be 1500. 
 
 My Lords, I do not know how 1 can trace the question whether an Act of 
 Parliament was deemed valid and operative, or not, better than in the mode I am now 
 pursuing, by taking every grant that we find historically to have been made by King 
 James III. within the period of time struck at, and then seeing whether in any one of 
 those cases the Act Rescissory was appealed to or operated. 
 
 My Lords, the next, which is exceedingly important, is a grant made by King 
 James III. to Sir Alexander Cunningham, of Polmaise. Your Lordships will find it 
 referred to at the bottom of page 40 of the Supplemental Case. It is dated the 14th of 
 February 1487-88, twelve days after the commencement of the prohibited time, and is 
 a grant made by King James III. of the office of Sheriff of Stirling to Sir Alexander 
 Cunningham, of Polmaise, and Robert his son and heir, and to the longest liver of them. 
 There can be no doubt that that is a very important grant. Now, if there be anything 
 therefore to which the Act Rescissory would naturally be applied, it would be a grant of 
 that description. But, on the contrary, we find that, on the 13th of October 1501, 
 there is a Confirmation in the ordinary form by King James IV. to the Burgh of Stirling 
 of this ofl&ce of Sheriff of Stirling, which Confirmation proceeds upon the recognition of 
 an Act of Resignation made to the Burgh of Stirling by the Cunninghams, by virtue of the 
 antecedent grant of the 14th of February 1487-88. Therefore, the King in like manner, 
 in this instance, proceeds upon a recognition of the validity of the act of his father, 
 made after the 2nd of February, which is the time mentioned in the Act Rescissory. 
 
 My Lords, the grant of the Sheriffdom is entered upon the Register of the Great 
 Seal, and your Lordships will find what is sufficient to put you in possession of the form 
 of it in page 41 of the Supplemental Case. It is there recited as being a grant made to 
 Alexander Cunningham, Knight, and Robert his son, the heir apparent, and to the 
 survivor of them, conjointly and severally, of the office of Sheriff of Stirling ; and then 
 
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 it goes on to state that that office, Thomas Lord Erskine, and Alexander his son, had 
 previously filled ; and that they resigned it, and that upon their resignation it was 
 granted to the Cunninghams. Then, what follows is, that the Cunninghams resigned it 
 to the Burgh, and the confirmation of the King proceeds upon the recognition of that 
 transfer so made by the Cunninghams. I will not weary your Lordships by reading the 
 portions of the documents which are here given ; the whole transaction is given in 
 page 41, together with the manner in which it is attempted to be met in the Case which 
 has been laid on the Table of your Lordships' House by the Duke of Montrose, and the 
 ansAver to those objections. 
 
 It appears then, my Lords, that in eveiy transaction — whether it be a grant of 
 lands, whether it be a grant of franchise, whether it be a grant of royal privileges such 
 as the rights of chase — in every description of grant made by King James IIL within the 
 prohibited period of time, we find the grant recognized and confirmed in the ordinary 
 style by King James IV. Because your Lordships will bear in mind that those are 
 ordinary confirmations, and you are very well aware Avhat is meant by " Confirmation " 
 in Scotch conveyancing. These confirmations are in point of fact ordinary charters of 
 progress ; they confirm and propel the title ; they carry on the right of the antecedent 
 owner of the grant ; and it was the custom in Scotland to obtain them from time to time 
 merely as recognitions, acknowledgments, and declarations of existing rights. It is im- 
 possible, therefore, to represent these as amounting to new grants on the part of the 
 Crown, because they proceed on all occasions upon the recital of the existing grant, and 
 the recognition of the validity thereof. 
 
 Lord LymUtur.st. — They go back in recital to the original grant. 
 
 Earl of Devon. — Some of them go on further to state that the original grant is in 
 full force. 
 
 j\Ir. Solicitor General. — Yes, there is a remarkable instance of that in the case of 
 Collace. Your Lordships could not have more distinct testimony upon the subject. We 
 have challenged those who appear on the other side, or rather those who supply materials 
 to the Crown, to produce any instances of grants made by King James III., to which this 
 Act Rescissory can be shown in any way whatever to have been applied. And there is 
 not a single instance, although no lack of learning, no lack of industry, and no lack of 
 zeal or exertion has been exhibited, not one single instance can be produced in which 
 there is the smallest trace of the validity of this Act of October 1488 being recognised, 
 or of the Act itself benig applied as an instrument of reduction in the case of any 
 grant, whether it be of an estate, whether it be of a franchise, or whether it be of a 
 dignity. 
 
 My Lords, there was an additional instance given which has been fully gone into 
 by my learned friend Sir FitzRoy Kelly — ^I mean the grant of the Customs of the 
 Burgh of Brechin, which is given also in our Supplemental Case, but as I am summin"- 
 up that Case, I shall content myself now with a short reference to that particular example 
 and the confirmation of it on the part of the Crown. Your Lordships, I think will find 
 it sufficiently stated in the Supplemental Case, page 42. This is a case of an original 
 grant made by King James III. having remained in all its integrity, and the property 
 being continued in ownership and held constantly under it without any further confirma- 
 tion on the part of the Crown. The grant appears to have been made by Kino- James 
 III. on the 28th of April 1488, and he says that it is granted " pro fideli o-ratuito ser- 
 " vitio per ballivos et communitatem ejusdem Civitatis et burgi nunc tempore inquieta- 
 " tionis et guerrarum nobis multipliciter impenso et impendendo." Now, if there were 
 any occasion which would have provoked the adverse party to apply this Act of Parlia- 
 ment to the annulling of a grant, unquestionably it would have been to annul a grant the 
 
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 recital of which shows that the consideration, the motive reason to the King for making 
 it, was the faithful service that the Bailies and Commonalty of the town of Brechin had 
 afforded to the King in those times of disquietude and war. And then he gives them 
 the right of levying certain small customs, and it appears that under and by virtue of 
 this grant the town of Brechin have held and draAvn those particular customs without 
 any Act of Parliament, or any confirmation, or any other ground of title to be as- 
 signed for their right, than that which is founded upon this Charter of the 28th of April 
 1488. 
 
 My Lords, I postpone for the present the other and more remarkable instance of 
 the recognition of the dignity in the case of the Glencairn Peerage, until I come in point 
 of time to the examination of that remarkable trial, or rather series of trials. 
 
 My Lords, we have now, I believe, gone through every single case which any 
 kind of diligence has been able to discover, of grants made by King James III. within 
 this period of time, from the 2nd of February down to the time of his death, on the 1 1th 
 of June 1488. But before I proceed to the last instance, I must beg to draw your Lord- 
 ships' attention for a moment to an objection which has been taken on the part of the 
 Duke of Montrose, founded upon this ; that it does not appear that David, Earl of Craw- 
 ford, to whom this title and dignity of Duke was granted, ever took his seat in Parlia- 
 ment under that title previously to the regrant made to him in the month of September 
 1489 ; and in proof of that, or rather in proof that he took his seat in Parliament under 
 the lower denomination, reference is made to the roll of Peers which, it is said, is appended 
 to the entry of the statute of October 1488. 
 
 Now, my Lords, the nature of that entry appears to have been much miscon- 
 ceived. It is stated, if I understand it rightly, in the Case of the noble Duke, which he 
 has laid upon the Table, as being an entry of the Peers who were present in Parliament ; 
 and he then points to the Earl of Crawford as being mentioned as present in Parliament 
 imder that denomination. Now that appears to be an error, because these Nobles who 
 are given in that list are not mentioned in the Statute as being present in Parliament, 
 but they are mentioned as persons to whom certain powers are committed ; and the 
 manner in which they are mentioned by the enumeration of these names your Lordships 
 will find in the second volume, page 211, of the Statutes. It runs thus: — " On the 17th 
 " day of October aforesaid, our Sovereign Lord, with the advice of his Three Estates, has 
 " continued the Parliament foresaid to the 14th day of January next to come, Avith 
 " continuation of days, with all actions and matters following thereupon •, and has com- 
 " mitted the whole power of the body of the Parliament to these Lords and Prelates 
 " under written." 
 
 Now I must beg of your Lordships to observe that the proposition with which we 
 have to contend is, that the Duke of Montrose was struck at by the enactment of this 
 Parliament, and was intended to be deprived not only of his newly-acquired dignity, but 
 of all his newly-acquired estates. He is represented, therefore, as a person who was at 
 that time as it were under a ban. But yet, when it is deemed desirable to draw any 
 conclusion from this list of Nobles, the list of Nobles is represented as a list of those 
 who were sitting in Parliament under the style and denomination there attributed to 
 them. My Lords, I think both conclusions, inconsistent as they are, are equally wrong. 
 It is clear, from what I have read as to the Earl of Crawford being mentioned among 
 the Nobles to whom the whole power of the Parliament was committed by this very 
 ordinance of October 1488, that that fact is conclusive of the result that the Earl of 
 Crawford or Duke of Montrose was not at that time conceived to be at all an offender 
 or a person to be struck at by the ordinances of this Parliament. It is true that he is 
 named " Earl of Crawford,'' for a reason that we can very well suppose, and it is equally 
 
 S 2 
 
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 true that this enumeration of the Nobles to whom this power of Parliament is given is 
 not an enumeration of Nobles that were present. It does not at all follow that the 
 Nobles to whom that power was committed were present in Parliament. No such 
 thing is stated. All that is stated is, that the King prorogues or adjourns the Parliament, 
 and in the mean time they commit the authority of the Parliament to the Prelates and 
 Nobles whose names are under written ; and then we find in the subsequent Parliament, 
 held in the month of June 1489, that the absence of the Earl of Crawford from Parlia- 
 ment is particularly mentioned, and it would therefore be very difficult to understand 
 that the Earl of Crawford was here present in Parliament upon the occasion of the first 
 Rebel Parliament being held, and that he should be absent afterwards in the subsequent 
 Parliament of 1489. 
 
 I draw, therefore, from the entry, the conclusion that the Earl of Crawford was 
 not intended to be described or designated as a person against whom the denunciation of 
 the alleged Act Rescissory was levelled, namely, as a person who had given perverse 
 counsel to the King, by reason of which the late King had been killed ; but, on the con- 
 trary, that he was described as an individual who was recognised as a person to whom, 
 along with others, the whole power and authority of Parliament might be rightly com- 
 mitted. My Lords, is it possible to believe that a nobleman to whom, equally with the 
 rest, this power and authority were given, can have been at the same time considered as a 
 person intended to be denoted and described as an individual who had obtained grants 
 prejudicial to the Crown for assistance given to the Cro\ra by perverse counsel, which had 
 given rise to the war that had prevailed, and also to the slaughter of our Sovereign Lord's 
 father ? It is impossible. Whether you look at the Act ; whether you look to all the 
 accompanying circumstances ; whether you look at the application that was made of the 
 Act ; or whether you consider the testimony which is given to the character and services 
 of David Earl of Crawford, Duke of Montrose, it is impossible to put your finger upon 
 one single circumstance or one single word that warrants the conclusion that this Act 
 was intended to be levelled against the dignity of the Duke of Montrose, or against the 
 estates that had been granted and were then enjoyed by David Earl of Crawford, Duke 
 of Montrose. 
 
 My Lords, the Rolls of Parliament, as your Lordships are aware, are, I believe, 
 not to be found between the 21st of February 1488, and the 6th of October 1488, if any 
 Parliament was held. It does not appear whether any Parliament was or was not held 
 during that period. Probably there was not, inasmuch as the civil war had commenced 
 during that period, or, at least, had not been ended, and was not terminated till the 
 death of the King on the 11th of June 1488. The entry made on the 4th of June 1489 
 is remarkable (it is in page 83 of the Case). It is expressly stated, I think, that he was 
 not present at that Parliament, but I will not trouble your Lordships by detaining you 
 to look for it now : it is not a very material circumstance. 
 
 I will now beg your Lordships to attend for one moment to the effect of another 
 argument, which, if there were nothing else in the case, I think would be sufficient for 
 the purpose for which we desire to use it. I have already referred to that Act of the 
 Legislature which sufficiently accounts for the reason why the whole of this Act of 
 1488 fell into that state of non-observance, which must be considered as the natural 
 consequence of the general execration in which the authors of that rebellion and the 
 authors of that particular portion of legislation were very shortly generally held ; and 
 I have given your Lordships various confirmations of the existence of that feeling, both 
 on the part of the King and of the people at large, and finally the participation in it 
 on the part of the rebels themselves. Now, my Lords, we come to another circum- 
 stance, which I think puts the conclusion beyond all dispute, that this Act of October 
 
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 1488 was on the part of the King himself directly put an end to — not, I agree, by name, 
 but in a manner that can leave no possible doubt why it was that the King had the 
 subsequent Act passed, and also why the Act is worded in the manner in which your 
 Lordships will find it worded. 
 
 My Lords, the repentance of the King and the manner in which he sought to 
 expiate the participation which he had had while in the hands of the rebels in the 
 murder of his father, are matters perfectly well known to history. Your Lordships are 
 perfectly aware of the circumstance that distinguished him, namely, the fact of his 
 wearing an iron chain or belt round his body, and the non-production of which on the 
 part of the English was long afterwards held as an argument by Scottish historians that 
 King James IV. had not fallen on the Field of Flodden. Now in page 32 of tlie 
 Supplemental Case your Lordships will find the Statute which the King subsequently 
 had passed, repealing the Act Rescissory, after he had endowed the chapel of Stirling, 
 and done other acts of expiation, showing his remorse on account of his participation in 
 the rebellion against his father. The language of that Act of Parliament is very 
 remarkable. It is in page 32 of the Supplemental Case. It was passed on the 13th 
 March, 1503-4 : — " The quhilk day our Soveraine Lord revokit, wyt consent of the 
 " Thre Estatis of the Parliament, all donations, giftis, actis, statutis of Parliament or 
 " General Consale, and all other thingis done be him in timis bygone, other (either) 
 " hurtand his Saule, his Croune, or Hali Kirk ; and that the said donations, giftis, actis, 
 " statutis, or otheris thingis, thus revokit, be had for not done, and to be put furtht of 
 " the bukis and writingis, " or to be held pro non scripto. 
 
 Now, viewing this historically, I think no one can refuse to come to this con- 
 clusion respecting it. We find an Act of Parliament in the month of October 1488, 
 which proceeds upon a justification of the rebellion and the murder of the Sovereign. 
 It is succeeded by the general repentance, sincere or not, avowed at all events, of all the 
 parties who were concerned in the deeds so attempted to be justified. It is succeeded 
 by the most avowed and signal sorrow and repentance on the part of the King. On the 
 part of the traitors we find that an appeal is made to the Church to relieve them from 
 the sentence of excommunication ; and on the part of the King himself we find various 
 acts done in order to atone for his own part in this deed of crime ; and then we finally 
 find that in this year, 1503, the King revokes all Acts and Statutes of Parliament (I am 
 reading, shortly, the part upon which I rely) which hurt his Soul, his Crown, or Holy 
 Kirk. It is remarkable that in all the intermediate Acts, in the application to Pope 
 Innocent, in the bull of Pope Innocent, in the statute which I have read of 1491 — in all of 
 them, the participation in the rebellion and the being accessory to the murder of King 
 James III. are expressly described as things hurting 1-he Soul, hurting the Crown, and 
 hurting the Holy Kirk. Well, but how could an Act of Parliament hurt his Soul ? 
 how could it hurt his Crown ? or how could it hurt Holy Kirk ? My Lords, I desire 
 to know what answer can be given to that question. He revokes all Acts or Statutes 
 of Parliament hurting his Soul, his Crown, or Holy Kirk ; and you cannot tell what Acts 
 are repealed, except those that come within that description. Now, where do you find 
 any Act of Parliament coming within that denomination, falling at all within that 
 character, unless it be the Act of October, 1 488 ? What Acts of Parliament could there 
 be that could hurt his Soul, his Crown, or Holy Kirk, except it be an Act of Parliament 
 endeavouring to justify the murder of his father ? 
 
 Lord Brougham. — It would be a most inconvenient mode of repealing certain 
 Acts of Parliament passed during the last four or five years of any reign, if in any case 
 in which any body, either plaintiff or defendant, cited an Act of Parliament passed 
 during those four or five years, the question for the Court to consider would be : Is this 
 
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 an Act of Parliament which hurts the Soul, the Crown, or the Holy Kirk, of the King 
 who made it ; and if, accordingly as the answer to that is given, the conclusion were to 
 arise whether the Act of Parliament is repealed or not. 
 
 Mr. Solicitor- General. — No doubt, my Lord, it is a very singular form of enact- 
 ment of revocation, but we must take it as we find it ; and if your Lordships attribute 
 the validity of an Act of Parliament to the one, you are bound to attribute it to the 
 other. I desire therefore to know, what is an Act, or Statute of Parliament, or General 
 Council, that is hurtful to the King's Soul or Crown ? Will your Lordships do me the 
 favour to observe the significance of those words " General Council," because I think that 
 that Convention of October 1488 might be much more correctly denominated, either 
 a Convention, or General Council, than a Parliament. Then all Acts and Statutes of 
 Parliament, or General Councils, hurting the King's Soul, his Crown, or Holy Kirk, 
 are repealed. I repeat again, that I know of nothing that can at all come within that 
 description, but an Act of Parliament declaring that it was justifiable to have opposed his 
 father in arms, and an Act of Parliament seeking to warrant the slaughter of King 
 James III. If this Act of Parliament therefore is to be disregarded as having been 
 conceived in that spirit, but having, out of delicacy to the King himself, abstained from 
 a more special enumeration of what the things intended to be repealed were, and why 
 they were considered as hurting the soul of the King, we may account for the extraor- 
 dinary language which we find in the Act ; yet, unless the Act is to be regarded as a 
 dead letter altogether, your Lordships will be warranted in holding that those Acts of 
 Parliament which proclaimed and announced the matters of which the King subsequently 
 repented and sought altogether to destroy the remembrance, are the only Acts of 
 Parliament that can fall within the description of this revocatory and annulling Act. 
 
 Now, if that be so, if, both from the feelings of the times, the repentance of the 
 Sovereign, and from a variety of other things to which I have referred, the Act Re- 
 scissory fell dead-born from the moment of its birth ; if it was nothing in the world more 
 than an instrument which the rebel faction prepared, wherewith to assail their enemies, 
 but which they were never sufficiently bold to draw or to use by reason of the general 
 execration into which they had fallen ; if that Act was never appealed to by the King on 
 occasions upon which he would naturally have used it, if he had been desirous of 
 carrying it out at all ; if that particular portion of it, which was plainly what they 
 intended to make most effectual against their enemies and opponents, namely, that re- 
 lating to the creation of dignities, is found to be omitted in the subsequent Statute ; and 
 if, finally, we find this Act of Parliament which, obscure as it is, was evidently intended 
 to obliterate something and to atone for something which the King felt remained in the 
 shape of an Act of Parliament, and which hurt his Soul, his Crown, and Holy Kirk ; 
 then, I say, it is clear there is nothing to which you can refer it — except that most 
 singular and outrageous piece of legislation, if it is to be called legislation, in which the 
 murder of King James III. and the rebellion of his subjects are attempted to be justified. 
 I conclude, therefore, that we have here a most direct reversal of that Statute by a much 
 better authority than that upon which the Act of 1488 proceeded — we have a direct 
 reversal of that Statute ; it is annulled and destroyed ab initio : and if it be annulled and 
 destroyed ab initio, every thing upon which it otherwise might have operated remains 
 totally unaffected by any injury from that thing which is so annulled. 
 
 My Lords, I now, with your Lordships' permission, go to that which appears to me 
 to be perfectly conclusive in all its parts of the correctness of the conclusion which I have 
 sought to draw historically, and to confirm by this species, if I may so call it, of exhaustive 
 analysis of every kind of case to which this Act of 1488 would have been applicable and 
 naturally would have been applied if it ever was regarded as in force, or having any legal 
 
( 137 ) 
 
 existence. The case that I have reserved for a few comments upon it is one that my 
 learned friend Sir FitzRoy Kelly very fully entered into ; in fact, I may say, almost ex- 
 hausted. I mean the case of the Earl of Glencairn. My Lords, that matter is attended with 
 so many circumstances, and with so much intricacy, requiring such an accurate examina- 
 tion, but repaying that examination with respect to the knowledge that it affords of the 
 materials on which I humbly conceive the case will be found to depend, that I am sure 
 your Lordships will forgive me if I am guilty of travelling over some part of the ground 
 upon which my learned friend has previously preceded me. 
 
 Your Lordships are perfectly well aware that the Earldom of Glencairn was 
 conferred by King James III. on Lord Kilmaurs, on the 28th of May 1488. It was 
 conferred upon that Noble Lord ten days therefore after the date of the patent of the 
 Dukedom of Montrose, which was granted to the Earl of Crawford. Now, it is a 
 remarkable circumstance attending this patent, that the original patent is still in 
 existence. It was a grant of lands, as well as a grant of the dignity of the Earldom of 
 Glencairn. It was clearly never considered as annulled by the simple operation of the 
 Act Rescissory, because the subsequent Act of 1489 denounced punishment against all 
 those who should not bring in the evidences of any grants annulled by the operation 
 of that statute. It is quite clear that this particular patent remained without any 
 challenge, without any demand of resignation, in the possession of the original Earl of 
 Glencairn, and of those who succeeded him, notwithstanding the operation of that statute. 
 
 Now, my Lords, the first taker of the dignity of the Earl of Glencairn fell, as 
 your Lordships are aware, in the Battle of Stirling, on the 11th of June 1488. He left 
 a son, and the son of a deceased son — a grandson, and we do not find, it is perfectly true, 
 any trace of any assumption of the Earldom of Glencairn, by any demand of right to sit 
 in Parliament, or by any other assumption of the dignity, until, I think, the year 1.505 ; 
 and that has been a circumstance which has given rise in some degree to the mis- 
 apprehension and misconception in regard to this case, which your Lordships will find 
 to have prevailed throughout the judgment of my Lord Rosslyn, when we come to the 
 last judicial examination of these circumstances. In page 44 of the Supplemental Case, 
 there is a short notice of the contents of the patent ; and it appears to have been a patent 
 granting the Earldom and the lands of Drummond and Duchray to Alexander, Lord 
 Kilmaurs, " et heredibus suis." Now the original patent, as I before mentioned, has all 
 along been in the custody of the family of the Earls of Glencairn. The patentee was killed 
 on the 1 1th of June 1488 ; his son Robert and his grandson Cuthbert survived him. 
 In a manner very corresponding to what occurred in the celebrated case of the Duke of 
 Norfolk, it appears that Cuthbert the grandson, who probably at that time was of tender 
 years, did not claim to sit in Parliament until the year 1505, and he then claimed the 
 right to sit in Parliament as Earl of Glencairn, and in that capacity his right to sit in 
 Parliament was recognised, and he made up his title to the lands that were com- 
 prehended in the patent in the years 15 15 and 1516. He appears to have been succeeded 
 by William, the fourth Earl of Glencairn. And then, my Lords, came a question which 
 was a matter always of great controversy in Scotland, namely, the question of precedency 
 between himself and the Earl of Eglinton. Now the controversy that arose on that 
 occasion appears to have continued for a considerable period of time, and at first it was 
 affected by a Decreet of Ranking, that was published on the 5th of March, 1606. At 
 that time the title of the Earl of Glencairn had descended down to James, the seventh 
 Earl of Glencairn, and he, it appears, commenced an action of reduction of that Decreet 
 of Ranking. 
 
 Lord Lyndhurst. — In what year was that ? 
 
 Mr. Solicitor- General. — It was in 1610, I think, that the action of reduction was 
 
( 138 ) 
 
 brought — the Decreet of Ranking was in 1606. It will be material to call your Lord- 
 ships' attention to the grounds upon which that Decreet was sought to be obtained by 
 the first Earl of Glencairn, the pursuer in that action. My Lords, with regard to the 
 Decreet of Ranking, it Avas complained of as having been made in the absence of the 
 Earl. Then the Earl's plea, which is given in page 45, is in these words : — That the 
 Earl had produced evidence before them proving " that the said nobill Lord, his prede- 
 " cessor, viz. Alexander than (then) Lord of Kilmaurs, foirgrandsyris father (great 
 " grandfather's father) to the said persewar, was creat Erie of Glencarne be his Hienes' 
 " predecessor of guid memorie, King James the third, in the moneth of May 1488." 
 The title therefore which is founded upon was this very Patent granted on the 28th 
 May, 1488, the date of which your Lordships will remember was only ten days after 
 the date of the Patent of the Dukedom of Montrose. This action of reduction pro- 
 ceeded therefore upon that particular ground, namely, that the Patent had been granted 
 by King James III., and that this Patent was of a date anterior to the title of the Earl 
 of Eglinton. It appears that a Decree was obtained by the Earl of Glencairn at that 
 time which proceeded upon some irregularity, and having been obtained upon an irre- 
 gularity, and not therefore concluding the merits of the case, Lord Eglinton brought a 
 reduction of that Decree in the year 1617, and obtained a Decree in his favour, reducing 
 the Decree which Lord Glencairn had got ; but it was reduced upon the ground of 
 irregularity alone with reference to the want of parties, and not at all upon the merits 
 of the question. The Decree which Lord Glencairn had got was intended to give him 
 precedency over the Earl of Eglinton, whereas by the effect of that Decree incidentally 
 the precedency of the Earls of Montrose and Cassilis would have been affected, and 
 that was the foundation of the alleged irregularity. 
 
 Now what followed thereupon was this, that in the year 1 648 the question was 
 again resumed for the purj^ose of being brought to judicial determination. I do not 
 trouble your Lordships with the antecedent steps in the process. The action was com- 
 menced in 16.37, but the Decree, I think, bears date 1648, and it is that Decree of 1648 
 to which I shall now particularly beg the attention of your Lordships. That Decree has 
 been printed, and we have given it in evidence ; it bears date the 19th of January, 1648 ; 
 and I think your Lordships will agree with me in the conclusion that nothing in the 
 world can be more satisfactory than this Decree, which the House vidll more fully 
 understand now that it is in a printed form. Nothing can be more satisfactory than this 
 Decree is of these two propositions, namely, that the charter of the Earl of Glencairn 
 and the charter of the Duke of Montrose were both relied upon in the course of these 
 judicial proceedings as being incontestably valid instruments, and that there was no 
 attempt in any portion of the proceedings to assail the original validity and existence of 
 either of those charters on the ground of this alleged Act Rescissory of October, 1488. 
 I am speaking of course of the judgment, because the observation I am making would 
 have no weight if I were not in a condition to show your Lordships that the question was 
 raised in the argument. The question that was raised in the course of the argument 
 involved, among other things, the application of the statute of 1488; and, before I read 
 to your Lordships the determination of it in the Decree, your Lordships will permit me 
 again to refer you to that portion of our proceedings in which we have stated at leno'th 
 the report of that Case, and I will only trouble your Lordships with the particular part 
 of it which shows that the argument in the Court of Session, in 1647, was founded in 
 2iart upon this Act Rescissory. I think the report is given at length at pa^-e 191. 
 
 Now, of course it would have been the most obvious and immediate answer 
 which could have been given on behalf of the Earl of Eglinton, that the Patent to 
 Lord Glencairn of the 28th of May 1488 had been struck at and annulled by this 
 
( 139 ) 
 
 Act Rescissory ; and accordingly, in the Supplemental Appendix in page 195, we find 
 that that attempt was made in the progress of the cause. At the top of page 195 the 
 statement of the argument is thus given : — The Lord " Advocatus and Nicolsone, for the 
 " three noblemen defenderis, compeirand be the Erie of Eglintoun, Cauthness, and 
 " Montrose, alledgit absolvitour, and that the persewer cannot be hard to crave prefer- 
 " rence be vertew of this Patent grantit to Erie Alexander, becaus the samyne is annullit 
 " and rescindit be diverse Actis of Parliament, as in the 5 Act of King James the 4th, 
 " quairby all donatioun of landis, creatiounis of new dignities, ar annullit, grantit be 
 " his Majestie's father after the 2nd of February, 1487, and the cans expressit in the 5 
 " and 14 Actis in the blak book, becaus the samyne war granted for assisting his father 
 " in perverse counsall at the feild of Stirling, quhilk is the reasone of the granting of 
 " this Patent, as the samyn beires, ffor the said Alexander his coming to the armie at 
 " Blacknes with his friends befor the feild of Stirling ; and the samyn being rescindit, 
 " the persewer cannot ascryve any richt thairto, especiallie seing Cuthbert, sone to 
 *' Alexander, satt in Parliament that same yeir." The answer to that was, first of all, 
 that the plea was not competent to the subject, but that it was a plea which was com- 
 petent to the Crown only. Then the second plea^ which is important, is in these words : 
 " As for the Actis of Parliament annulling gifts and donationis, the samyne is onlie of 
 " creationis of new digniteis prejudiciall to the Crown, of which nature this Patent of 
 " Erie cannot be estemit, thair being many Erlis created of befoir, or digniteis or 
 " donationis prejudiciall to the Crown, quhilk most onlie fall under the compass of the 
 " Act, as the Duke of Montroise, thair not being any Duik befoir him bot of the lyne 
 " Royall." That however is sufficiently met by the statute of the month of September 
 1489. 
 
 Lord Lyndhurst. — Is that part of the plea, or is it an interposition of yours ? 
 
 Mr. Solicitor-General. — That is an interposition of mine, that this argument of the 
 plea is met by that statute. " And in King James the A, his second Parliament, quhair 
 " that Act of the first Parliament is explanit, thair is no mentioun of dignitie bot onlie 
 " donatioun of landis, with ane certificatioun^ quhilk posterior Act of explanatorie of the 
 " first most be ane passing from the first for quhat is not ratifeit in the secund ; for it 
 " seames that cam efter the Duik of Montrose his laying doun his dignitie, — the prior Act 
 " was satisfeit and rehersit passed from, except donatioun of landis and offices. Nather 
 " can the cans of Rescissioun mentionat in the Actis of the blak book militat aganis this 
 " Patent becaus the samyne was grantit for assistance [to] his Majesteis persone." It is 
 quite clear that the person who put in this plea felt himself pressed a little by the 
 circumstance that there had not been at that time any claim to the dignity of Duke of 
 Montrose, and he endeavours therefore to distinguish between the two cases. 
 
 A little lower down your Lordship will observe a reference made to the Act of 
 Revocation, — " He opponis the Revocatioun maid be King James the 4, in the end 
 " of the 6 Parliament, with advyse of the Esteatis, [which] revokes all Actis and 
 " Statutis done in prejudice of the Kirk, Saull, or Crown, vpoun remorse; within the 
 " quhilk Revocatioun any Actis done in prejudice of these who had assisted his father in 
 " persone must be apprehendit." And then there is a further plea, that this was "onlie 
 " of landis quhairintill Alexander was never infeit, nor Cuthbert retourit to landis, bot 
 " King James 3 deit last \e?,tjure cor one," 
 
 Now we have here given, in a short form, the material part of the arguments 
 which I have endeavoured to enforce upon the attention of your Lordships. And you 
 have therefore the advantage of observing here, that this issue was raised in the year 
 1648 before the Lords of the Session, who, the Committee will do me the favour to 
 remember, bore at that time, with reference to all questions of honour and dignity, 
 
 T 
 
( uo ) 
 
 precisely the same relation to the Crown that your Lordships now bear ; and who had 
 the same plenary authority of finally determining all questions touching the ownership 
 or title to Dignities which your Lordships now have. Before this Court of Session 
 therefore, being the court of last resort, and of complete and exclusive jurisdiction on the 
 subject, these issues and questions are deliberately raised. 
 
 Lord Brougham.— Such sl tribunal as the House of Lords in Scotland would have 
 been a very inconvenient Court before which to try questions of Dignity, because the 
 Commons voted with them ; they all sat in the same Chamber. 
 
 Mr. Solicitor- General— No doubt, my Lord; and therefore it is matter of Scotch 
 law that the Parliament always declined to entertain any question touching a title or 
 Dignity, and professed that they had no authority to deal with it (except, of course, in 
 matters of treason) ; they regarded it always as a matter of exclusive jurisdiction of the 
 Lords of Session. I will not fatigue your Lordships by going through the whole of 
 those pleadings. But I will only ask you to note, that the issue which is one amongst 
 many that I have read to your Lordships is finally brought to be the only issue to be 
 tried in the cause ; and therefore it was here strictly cardo causes, whether or not the 
 alleged Act of October, 1488, without more, operated to annul the Patent that had been 
 granted to the Earl of Glencairn. So that the question which your Lordships now 
 sit to try, more than 200 years afterwards, was 200 years ago distinctly, and in terms 
 raised before a Court, and tried by a Court, of exclusive jurisdiction ; a Court there- 
 fore which, being 200 years nearer to the time of the transaction, had in that respect, and 
 in that respect only, the advantage over the tribunal of your Lordships. 
 
 Now at the top of page 206 your Lordships will find that what I have said is 
 quite correct, namely, that the issue was reduced to that single question. It is there 
 thus pleaded by Nicolsone, appearing on behalf of the three Lords defenders : " Nicolsone 
 " declaired he dispute only against the ressoune foundit upone the Patent and the Act of 
 " Parliament against the samyne." " Et Stewart opponed his lybell and reassone as it 
 " standis, with the Lordis interloquitor susteining the samyn, as it is mendit, with his 
 " reply in fortificatioun therof, verifyed by the writtis produced for instructing thereof" 
 (that is, proving the same), " and conjoyned the samyne reasone and reply, and referred 
 " the samyne to the Lordis. And it wes Hew Lord Montgomrie, his sone Johne being 
 " Master then. Uiidecimo Januarii 1648, the Earl of Eglintoune with his procuratoris 
 " being called in in presence of the Lordis, and it being asked if they desyred to be 
 " farder hard befoir the dispute sould be advysed, they referred the dispute to the Lordis. 
 " It being debaitted whether this cans sail be remitted to the Parliament, or if the 
 " remitt to the Parliament sail be reserved to be taking (taken) into consideration with 
 " the dispute in the cans, it was fund be the Lordis that the dispute sould be advysed 
 " without reservatioune. 14;^/?. Januarii, 1648, the Lordis repellis the exceptioune and 
 " duply in respect of the ressoune and reply, which they fand relevant and proven be 
 " the writtis produced." Then it goes on to another part of the proceedings ; and finally 
 there is an attempt to prove what is very material with reference to Lord Loughborough's 
 decision : there is an attempt to prove on the part of the three Lords " That the pre- 
 " tendit Patent cannot be revived by the posterior Act of Sederunt in Parliament 1505 
 " becaus he offeris to prove that Erie Cuthbert ressaved ane new Patent frome King 
 " James 4 efter the yeere 1488, quherto the said Cuthbertis sitting Erie must be ascryved 
 " the Patent being null, being for assisting to the evill councell against the Estaittes who 
 " annulled the samyn." And then we have some further statements upon that which 
 appears to have been a new issue raised after the pleadings had been conducted to the 
 simple issue, whether that Patent of May, 1488, had or had not been annulled by the 
 Act Rescissory. 
 
( 141 ) 
 
 The final state of the pleadings, therefore, as the case came to be finally con- 
 sidered and adjudged by the Lords of the Session, was this : — There was first a contention 
 on the part of the defenders, that the Patent of May, 1488, was absolutely annulled by 
 the Act Rescissory, per se, without any application of that Act ; and secondly, it was 
 contended that the subsequent sitting in Parliament by Earl Cuthbert in the year 1505 
 must be ascribed to some new Patent or new creation, and could not be referred to the 
 Patent of 1488. And, my Lords, this latter part is extremely important, because upon 
 that the whole question of precedency depended ; because, if Earl Cuthbert 's sitting in 
 Parliament could be ascribed to a presumed new creation of the date of 1505, then the 
 Earl of Eglinton would be entitled to precedency, the date of his taking his place as Earl 
 being, I think, 1503. The whole gist of the cause, therefore, depended upon the struggle 
 by the three Earls ; first, to hold the Patent annulled ; and, secondly, if they could not 
 do that, to assume (what is attempted to be done here) that there was something like a 
 resignation or an abandonment of the earlier Patent, and a substitution of a new creation 
 for the earlier Patent. 
 
 It is utterly impossible to imagine a case which in its features more directly and 
 immediately resembles the case before your Lordships, than that ; for the whole proposition 
 which your Lordships will find contended for by my antagonists (if I may so call them) 
 in this matter will be found to be this, that the Patent of 1488 is annulled by the Act 
 Rescissory, and that the subsequent transaction proves that there must have been a new 
 grant taking the place of the antecedent patent. 
 
 Such, my Lords, was the contention at that time in the Earl of Glencairn's case. 
 But, my Lords, finally, the point that there was a new creation was given up and 
 abandoned by the advocates who appeared on behalf of the Earl of Eglinton, and the 
 other two Earls in the case. That is entered in this way, " The Lordis repellis the 
 " alledgance proponed upon the new Patent 1504, unless it be instantlie verified by pro- 
 " ductioune of the Patent quheropone the samyne is foundit, or referred to the perseweris 
 " oath." Thereupon that point is given up, and the question then turned wholly and 
 entirely upon the operation of the Act Rescissory ; and then the result is that Nicolsone, 
 who appeared on behalf of the Earl of Eglinton, gave up the exception founded on the 
 alleged new Patent ; and finally it concludes in this way, " The Lordis refuiss to sufier 
 " the defenderis procuratouris to pas frome their compeirance," for, after the argument, it 
 appears that they had given up both the two propositions, — " And ordaines the Decreet to 
 " be extracted parte comparenie. And they ordaine the writtis produced to be transumed, 
 " and the persewer gett ane transumpt thereof. Nicolsone declaired he wald not compeir, 
 " being comandit by the Erie Eglintoune to be silent. He passed frome the exceptioune 
 " upone the new Patent by Erie Cuthbert efter the yeire 1503, and before the perseweris 
 " Sederunt 1505. The Lordis permittis the exceptioun (lege permittis the defender) 
 " to pas frome the exceptioune. Bot they will not suffer him to be absent. And reduces 
 " and declaires against the remanent defenderis in absence for the ressones proven. And 
 " ordaines the laite Earl of Montroise, swa designed in the summondis, to be now designed 
 " James Graham." 
 
 My Lords, there is therefore, partly by the confession of the defender, and partly 
 by the adjudication of the only question remaining, the defender confessing that he 
 could not maintain the plea founded upon the assumed new Patent, and the Lords over- 
 ruling the other, there is a final determination of this point, that this Patent granted to 
 the Earl of Glencairn, on the 28th of May, 1488, was not struck at or affected at all 
 by the operation of this Act Rescissory. Your Lordships will find that more fully given 
 in the entry of the Decree. 
 
 Lord Lyndhurst. — We had that very fully read. 
 
 T 2 
 
( 142 ) 
 
 Mr. Solicitor- General . — Then I will not trouble your Lordships further upon that 
 point. Then, that being so, we have therefore arrived at the conclusion that this parti- 
 cular point was decided in 1648. Then, how is that attempted to be got rid of by the 
 operation of Lord Loughborough's judgment ? 
 
 Lord Lyndhurst, — Have you got the particulars of the judgment in 1648 ? 
 
 Mr. Solicitor- General. — Yes, we have, my Lord. 
 
 Sir FitzRoy Kelly. — My Lords, the entire document has been printed, and it will 
 be handed to your Lordships. 
 
 Lord Lyndhurst. — It states the ground of the Judgment ? 
 
 Sir Fit z Boy Kelly. — It is so stated as to leave no doubt what the grounds are. 
 
 Lord Lyndhurst. — It does not contain the particular argument in support of the 
 Judgment. 
 
 Sir FitzRoy Kelly. — It is perfectly clear, upon looking at the Decreet, that it 
 proceeded entirely upon the Patent of 1488 not being annulled by the Act Rescissory. 
 There was no other point in the case. 
 
 Mr. Solicitor- General. — The reasons for the reduction that were brought forward 
 by Lord Glencairn are founded altogether upon the existence of that Patent which had 
 been granted to him on the 28th May 1488 ; and on the ground of that he seeks to have 
 the Decreet of Ranking, by virtue of which Lord Eglinton had got precedency over him, 
 annulled and reduced. Then those being the reasons of reduction, the Lords in their 
 final Decree state this : — " And the saidis Lordis haveing at lenth red, heard, considdered, 
 " and advysed the samyne, they, efter full debaite and ressonning therupone, Hes fundin 
 " and findis the ressones of reductioune above mentionat relevant and sufficientlie proven 
 " by the foirsaidis writtis, produced and repeited be the perseweris procurators respective 
 " to that effect, notwithstanding of the writtis, evidentis, and utheris above specifeit, pro- 
 " duced for the pairt of the Erie of Eglintoune, and of the alledgances proponit for him 
 " therupone, whilkis the said Lordis repellit and repellis, in respect therof, and of the 
 " persewer's oath de calumnid foirsaid, declaring that he had just caus to insist upone the 
 " said ressounes of reductioune as the samyne standis lybellit." Now, nothing can be 
 more distinct. Your Lordships are very well aware that the word " writtis" is used in 
 Scotch legal phraseology for the purpose of designating every description of documents 
 which is given in evidence. Nothing, therefore, can be more exact than this — the 
 reason for reduction is founded upon the Patent specified as having been produced. And 
 it does not rest there, because, amongst the writs produced, there is not only the Patent 
 granted to the Earl of Glencairn, but also the Patent which was granted to the Duke of 
 Montrose. I will read to your Lordships the manner in which that is entered in the 
 Decree. It is in page 6 of the Supplemental paper : — " Item, ane sunaondis of reduc- 
 " tioune, w* actis and lettres therupone, at the instance of the Earl of Eglintoune against the 
 " Earl of Glencairne, for reducing of his titles of precedencie, raised and execute in anno 
 " 1642. Item, ane Charto'' to David Erie of Crawfurd, Duke of Montrois, 18 May 1488. 
 " Item, ane Charto' to AndroLord Gray, daittit 14 De' 1488. Item, ane uther Charto' to 
 " the Erie of Crawfurd, Duke of Montrois, daittit 19 Sep' 1489." Here, therefore, the 
 Charters are given and described as having been produced. 
 
 Lord Lyndhurst. — Then there were two Charters produced. 
 
 Mr. Solicitor- General.- — It must have been the Litera, I suppose ; but the foundation 
 of the reductions, which your Lordships will find is given at page 2, is thus entered : — 
 " And thairfore the said persewer, as now succeeding in the right and title of the said 
 " Dignitie in manner foirsaid, conforme to the provisoune contenit in the said Decreit 
 " and be the law of this kingdom, ought now in the second instancy to be reponed 
 
( 143 ) 
 
 " againes the samyne, and be admitted to produce and use suche evidentis and docu- 
 " mentis for clearing of his dignitie and right of precedency." 
 
 Now, that is founded altogether upon the Patent of May 1488 ; and your Lord- 
 ships, therefore, have here a most direct decision by an exclusively competent tribunal 
 adjudicating the very same question,— because it is utterly impossible to discriminate 
 between the two cases. And if the Act Rescissory had no application with regard to the 
 Patent of the Earl of Glencairn, it unquestionably can have no application with regard to 
 the Patent of the Duke of Montrose. 
 
 (^Adjourned till to-morrow at W d clock.) 
 
( 145 ) 
 
 THURSDAY, 2Sth JULY, 1853. 
 The Lord Redesdale in the Chair. 
 
 Mr. Solicitor- General. — My Lords, from this decree of 1648, deciding the question 
 between the Lord Eglinton and Lord Glencairn in favour of the patent of 1488, the Lord 
 Eglinton wisely appealed to the Parliament, at that time sitting, against the Decree of the 
 Lords of Session. It was his only resource ; and in doing so, he no doubt was actuated by 
 a very obvious suggestion of prudence. It was a most natural thing that an appeal should 
 be made to a rebellious Parliament in favour of the act and conclusion which a former 
 rebellious Parliament had passed. There was no doubt great sympathy between the 
 Parliament that was sitting in 1649 and the Parliament which had passed this alleged 
 Act Rescissory in 1488. The one by their act had declared that it was lawful to oppose 
 the King in arms, and then to put him to death. The other Parliament was composed 
 of men who had actually sold their Sovereign for the purpose of his being put to death 
 on the scaffold. It was a most natural thing, therefore, that the Earl of Eglinton should 
 strive, as your Lordships will remember he did strive, to withdraw from the judgment 
 the moment it was on the point of being pronounced against him, and make his appeal 
 to that Parliament, where he trusted to meet with more favourable judges. 
 
 Your Lordships will recollect that the Decree of 1648 concludes with a statement 
 of the attempt on the part of the Lord Eglinton to withdraw, but the Lords of Session 
 refused to permit his appearance to be withdrawn, and they gave judgment against him. 
 He went accordingly to the Parliament. And now, in the next portion of the narrative, 
 for the purpose of examining what has been done under the Act Rescissory, I shall have 
 to beg your Lordships' attention to a short recapitulation of what you have already heard 
 of the proceedings before that Parliament, in 1649. Your Lordships will find a sum- 
 mary given of them in the 49th page of the Claimant's Supplemental Case. There is one 
 remarkable circumstance, which is this, that not only was there permitted an appeal by 
 Lord Eglinton, but he had had influence enough to cause the matter to be taken up as one 
 of public concern. Accordingly there were two appeals presented to the Parliament, a tri- 
 bunal having no jurisdiction in this matter at all. One of them was asserted by the Procu- 
 rator of Estate, or public prosecutor, for the purpose of having the patent of 1488 annulled, 
 upon the alleged ground that the support of the Act Rescissory was, in the present state 
 of the times, a matter of public concern. The other was an appeal presented by Lord 
 Eglinton himself. Your Lordships will find a statement of the two in the page to which 
 I have referred you. 
 
 My Lords, the Decree which was pronounced by Parliament on the 2nd of March, 
 1649, proceeds upon the statement that the Act Rescissory annulled the grants made by 
 King James III., " because they were granted for the perverse counsel and assistance " given 
 to the King, " which was against the common good of the realm, and was the occasion of 
 " the death of King James III., and many of his barons and lieges." And a little lower 
 
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 down, towards the bottom of page 49, your Lordships will find the language which the 
 Parliament of 1649 adopted in their Decree, viz., that "It is of dangerous consequence 
 " and example, in relation to the troubles of this kingdome, occasioned by evill counsall 
 " given to the King's Majestic, and assistance thereto, that the said gift and patent 
 " graunted for evill counsall and assistance given to the King should be of any force or 
 " validity, or should be made use of." Then it goes on to state. That "William Earl of 
 Glencairn, being summoned by the Estates to produce the Patent, had declined to appear, 
 and stated by letter to the Lord Chancellor, " that in respect of the troubles of the 
 " tyme, he had put the samyn, with the remanent of his evidentis, out of the kingdome for 
 " preservatioun thereof" Therefore, for these reasons it concludes — " The said Estates 
 " of Parliament rescindis, casses, and annuUis the foresaid pretendit principall patent 
 " granted to the said umquhile Alexander Earl of Glencairn be King James the 3d, of 
 " the date the 28 of May, 1488." 
 
 My Lords, I think that whenever we have arrived at the conclusion of this 
 argument, your Lordships will find my present statement to be perfectly accurate, 
 namely, that this is the only instance in which the Act Rescissory of 1488 was attempted 
 to be applied, or has been appealed to, as a means of adjudication, by any tribunal 
 whatever ; and your Lordships will not be at a loss at once to perceive what was the 
 reason, indeed it is plainly given upon the face of this pretended decree, why this Act of 
 1488 was conceived to be wholesome precedent for those particular times. This was a 
 Parliament sitting of course at a time when there was no lawful authority. It was a 
 Parliament that was sitting after the murder of King Charles I., and whilst the lawful 
 Sovereign was in exile ; consequently, it is very easy to understand why this Parliament 
 should have readily adopted and sanctioned a precedent that they found so convenient 
 and so useful for their own purposes. Your Lordships will find that this judgment is 
 given upon the appeal of the Procurator, not upon the appeal of the Earl of Eglinton. 
 The first Decree that I have read proceeds on the appeal of the Procurator ; the second 
 Decree of the 9th of March, 1649, proceeds on the appeal of the Earl of Eglinton. 
 
 Your Lordships will find that in page 50 of the Supplemental Case — and it com- 
 mences by reciting the injustice done to tlie Earl of Eglinton by the Decree of 1610, 
 obtained " be production of the pretendit Patent underwritten" of 28 May, 1488, and by 
 the Decreet of 1648, also founded " maynelie" upon that Patent. What I wish your 
 Lordships to be good enough to observe is this, that it is abundantly clear from the 
 language of this Decree, which the Commons (sic) take upon themselves to pronounce, that 
 they considered that the Decree of 1610, in favour of the Earl of Glencairn, had pro- 
 ceeded altogether upon the Patent of the 28th of May, 1488. We shall find the great 
 importance of that remark when hereafter your Lordships wdll be invited by me again to 
 review the conclusions at which Lord Rosslyn arrived. It is perfectly clear that they 
 considered both the Decrees which they here rescind to have been founded altogether 
 upon Lord Glencairn's Patent of the 28th of May, 1488; and it is perfectly clear, 
 therefore, that that Patent must have been in existence, and that it was upon that, and 
 not upon any subsequent creation, or any subsequent origin, of his dignity that the Lord 
 Glencairn founded his right to precedency. These two Decrees, therefore, the one at the 
 instance of the Procurator, the other at the instance of Lord Eglinton as a private 
 appellant, both recognize the Patent of May, 1488, and both endeavour to get rid of that 
 Patent by the application of the alleged Act Rescissory. 
 
 Now your Lordships are very well aware that even if the Parliament of Scotland 
 had been sitting at a time when it had been duly convoked, and at a time when there 
 was royal authority established, in the name of which the Parliament could act, yet, 
 even with all these advantages, the Parliament of Scotland was not a tribunal possessed 
 
( 14? ) 
 
 of any jurisdiction or any autliority in matters of this kind : still less was it a tribunal to 
 which an appeal could be brought or presented from the Lords of Session. The Lords 
 of Session were the only competent tribunal to try this question of the validity of the 
 creation, and of the actual existence of this dignity, and of the title to precedency, as a 
 matter between these two contending noblemen. The Parliament had no jurisdiction or 
 authority at all. 
 
 My Lords, as my object is to review these different topics and to sum them up, 
 which it is necessary to do by reason of the great magnitude and the involved nature of 
 the subject, I will trouble your Lordships to take a note of one or two references, merely 
 for the purpose of establishing this position, that Parliament, who assumed the authority 
 to make this Decree, would not have had by law any jurisdiction whatever in this matter, 
 even if it had been a Parliament convoked and held in the name of the lawful Sovereign. 
 We have accumulated in various parts of the Case different evidences in support of that 
 position. I will trouble your Lordships with one or two of them. In pages 22 and 23 
 of the Supplemental Case, your Lordships will find various statements supporting that 
 conclusion. At the bottom of page 22 there are extracts given which have been pro- 
 duced in evidence from various official documents, which distinctly recognized what is 
 the regular tribunal appointed for the adjudication of matters of this nature. 
 
 I will refer your Lordships first to the very Decree of Ranking, which was the 
 subject of complaint by the Earl of Glencairn, and which you will find stated at the 
 bottom of page 22 : — " Decreet of Ranking of the Nobility, 5th of March, 1606, by Royal 
 " Commission, under authority of the King and Privy Council, by which reservation 
 " is made, to suche person or persons as shall find themselves interest and prejudgit be 
 " their present ranking, to have recourse to the ordinar remeid of law, be reductioun 
 " before the Lords of Counsall and Sessioune." The same thing is involved in the Act, 
 which immediately precedes that entry which is an extract from an Act of James VI., of 
 the 12th of July, 1592, and which concludes thus, " Be it always understand that thir 
 " presentis sail nowayes hinder nor prejuge the foirsaidis personis of ony actioun 
 " quhilkis they have or may have touching the decisioun of ather of their richtis and 
 " titlis pretendit be thame to the said Erldome befoir the jugeis competent thereto, as 
 " accordis of the law." Then what follows under No. 3. Your Lordships will there find, 
 an original letter of theL ords of the Privy Council who attended King James VI., on 
 the subject of the succession to the Earldom of Eglinton, in which they state that 
 " Such disputationis " were neither "proper nor competent to be handlitin this judgment'' 
 (judicatory), " hot behooffit to abyde be the course of law in the ordinar judgment of the 
 " Sessioun," — and then they apologize for their refusal to take the subject into consideration, 
 inasmuch as they were not a tribunal " competent " thereto, and that the only tribunal was 
 the Lords of Session. My Lords, the same thing also will appear, if you will look at page 
 23 ; and there are many other intermediate proofs of it, showing distinctly that on various 
 occasions, both by letters from the Sovereign, by representations from various authorities, 
 and also by Acts of Parliament, on all occasions the Court of Session is referred to as the 
 only competent judge on matters of this kind. 
 
 Lord Brougham. — Is it known in point of historical fact, whether the House of 
 Commons in Scotland abdicated their jurisdiction upon matters touching contested 
 elections, just as the Lords abdicated theirs upon matters touching Peerage, and for the 
 same reason for which the Lords appear to have abdicated theirs, namely, because the 
 Commons sat with them, and must have voted with them ? Did the Commons for a 
 similar reason abdicate theirs, because the Lords sat with them, and would in that case 
 have judged on matters of contested elections ? Mr. Riddell, can you tell us how that 
 was ? 
 
 U 
 
( 148 ) 
 
 Mr. Riddell. — My Lord, I believe, ab initio, the Civil Court or the Court of 
 Session in Scotland were the Judge ordinaries of all such questions of Peerage. 
 
 Lord Brougham. — But my question is as to the House of Commons, where the 
 question was, whether A B was properly returned as a Commissioner for a Shire, or a 
 Member for a Burgh. Do you happen to know how that was decided ? 
 
 Mr. Riddell. — I think they would have referred it to the Supreme Court, as far as 
 I can recollect. 
 
 Mr. Solicitor- General. — If I am rightly informed, originally in Scotland the 
 Lords of Session were nothing more than a Committee of Parliament ; and therefore one 
 can understand how, in the course of time, matters of this kind came to be considered 
 as more conveniently belonging to them ; and then, finally, upon that ground, as exclu- 
 sively appertaining to them. 
 
 Lord Brougham.' — You know that some very curious transitions took place in 
 Scotland, as, for example, the clerk of the Criminal Court became Chief Judge of the 
 Criminal Court; that is the reason why he is called Lord Justice Clerk. He was 
 anciently the clerk of the Court. 
 
 Lo7-d Lyndhurst. — Upon what ground do you say that their decision was final ? 
 Those extracts which you have read do not show that there was no appeal from that 
 jurisdiction. 
 
 Lord Brougham. — The only instance that we have in modern times of a court 
 having a superior authority to the legislature is in the United States of America, where 
 there is a court that decides, without appeal, upon the question whether a certain law is 
 law, being constitutional or not, and that binds the legislature. 
 
 Lord St. Leonards. — That is a matter provided for by the constitution of the 
 country itself. 
 
 Lord Brougham. — But it is a great anomaly, according to our own law. 
 
 Lo7-d Lyndhurst. — The law, as laid down by the Solicitor-General, is that their 
 jurisdiction was final. But these extracts do not prove that it was a final jurisdiction. 
 
 Mr. Solicitor- General. — They do not prove that it was a final jurisdiction. But I 
 do not think it is possible for any one to bring forward a single instance of any species 
 of appeal from the Lords of Session to Parliament, above all upon a matter of this kind. 
 
 Lord Lyndhurst. — The Scottish Parliament had no jurisdiction in honours except 
 in cases of treason. 
 
 Mr. Solicitor- General. — Yes, by pronouncing a Bill of Attainder. Now something 
 appears to warrant the conclusion that it was the only competent tribunal, and therefore 
 the final tribunal. I will refer your Lordships to what is to be found in the letter of 
 King Charles XL to the Court of Session, which is to be found at figure 7, in page 23 of 
 the^ Supplemental Case. " And seeing all questiones of law and right do properly belong? 
 " and ought to be remitted unto you for your decisions, wee have thought fitt hereby 
 " to signify to you that it is, and always was, our resolutione to rule according to our 
 " laws r and that though we are graciously pleased to gratify our subjects, yet wee never 
 " intended to wrong others, nor to take from them the meanest right or interest that is theirs 
 " by law. Upon all which considerations, wee do not doubt but that when any question 
 " shall come before you concerning that place and precedency, either as to rio-ht or 
 " possessione, you will judge it according to law." Now for the reasons that one of your 
 Lordships has just mentioned, namely, the sitting of the Lords and Commons in the same 
 chamber, it would have been impossible to have had an Appeal from a Committee in 
 Parliament (which the Lords of Session were), upon any matter touching the right of 
 precedency, to the general body of the Three Estates of the realm. 
 
 My Lords, there are some other proofs that we have collected too-ether of this 
 
( 149 ) 
 
 exclusive jurisdiction, which your Lordships will find given in pages 55 and 56 of the 
 Supplemental Case. I think those are a little more conclusive. The letter of Charles is 
 there given. We have also proved, as your Lordships are aware, not only this letter to 
 which I have just alluded, but three other letters, which make the correspondence com- 
 plete, and show that the Court of Session proceeded upon it. 
 
 Lord Lyndhurst. — What does this relate to ? 
 
 Mr. Solicitor- General. — It relates to the finality of the Court of Session upon this 
 particular^subject. It is about the middle of page 55 : — " We have receaved your letter of 
 " the 7th of Februarie instant, concerning the two papers given in to yow by the Lord 
 *' Almond, containing Appealles from yow to the Parliament; and by what yow wryte 
 " upon that subject, we are fully convinced both of the illegality and of the dangerous 
 " and inconvenient consequences of such appeales, as well in regard to our authoritie and 
 " honour as the authority and reputation of our Colledge of Justice, and the interest and 
 " securitie of our subjects in that our ancient kingdome. And therfor wee cannot but 
 " have a great dislyke of and displeasure against such proceedings. And wee doe assure 
 " yow that wee will, according to the example of our royale predicessors, maintaine yow 
 " in all your priviledges and in the reputation of your persones and sentences against all 
 " indignities, reproaches, and appeales. And therfore wee doe require yow to take exact 
 "■ tryall who were the contryvers of this appeale, in the strictest maner which is consistent 
 " with the law, to the end that wee may receave a full accompt, and then declare our 
 " further pleasure." And in a subsequent letter the King states, — " We cannot but 
 " declare our dissatisfactione with and abhorrence of these appeals ; so it is our express 
 " pleasure that speciall care be taken to prevent the like practices for the future." 
 
 Lord Chancellor. — I do not think we have the second letter. The first letter was 
 to be found in the Acts of Sederunt ; the second letter was spoken of, and you said it 
 should be produced. I do not know whether it has been produced. 
 
 Mr. Solicitor-General. — We have proved it, together with two others, copies of 
 which will be handed to your Lordships. The other two are in the same strain; but 
 from the tenor of the correspondence it appears that the Court of Session acted upon 
 this direction or authority so given to them by the King ; and therefore it plainly appears 
 that in matters of this kind, there having been some question raised, the point was con- 
 sidered, and the exclusive jurisdiction of the Court of Session upon matters touching 
 titles of nobility was upon this occasion distinctly recognised. 
 
 My Lords, in page 56 your Lordships will find a further proof which is given, to 
 which, however, I shall have occasion hereafter to refer more distinctly. It is the 
 language of the Act of Parliament, which was passed for the purpose of annulling what 
 the Rebel Parliament had done in the year 1649. And your Lordships will find here 
 that it is material to recollect that there were passed, in the reign of Charles II., two 
 Acts for the purpose of annulling the proceedings by the intermediate rebellious Parlia- 
 ment. One of them was a special Act, directed expressly to the annulling of those pro- 
 ceedings, among which the Decrees of 1649 are included; the other was a general Act. 
 Now I am speaking of the special Act of the 9th February 1661, and your Lordships 
 will observe a short extract from that in the middle of page 56 of the Supplemental Case. 
 The fourth clause of the Act of 1661 declares that there was "no law nor lawful autho- 
 " rity " for the Parliament of 1649, "but that the persons meeting therein did, without 
 " warrant, and in contempt of his Majesty's authority, usurp the power to themselves." 
 Then the whole of the proceedings of that Parliament are simply annulled. 
 
 I think my learned friend Sir FitzRoy Kelly drew your Lordships' attention to 
 the explanation and interpretation of that Act which is given by Lord Stair in his 
 Decisions, in which he distinctly refers to that Act of Parliament, and says that it had 
 
 U 2 
 
( 150 ) 
 
 the effect of reducing the Avhole of the Decrees, and especially this Decree, between 
 Lord Glencairn and Lord Eglinton. The passage is in page 263. It is so short that I 
 will venture to read a few words to your Lordships. Lord Stair, in speaking of Lord 
 Almond's case, which was the subject of the correspondence by Charles II., says, that 
 " The Lord Almond presented an appeal in writ, appealing from that interlocutor to the 
 " Parliament ; which appeal being this day considered by the Lords, all being present, 
 " they found that there was never an appeal from the Lords given in in writ ; and though 
 "in the process betwixt Glencairn and Eglinton in anno 1648 mention was made 
 " verbally of an appeal, yet it was never entered in writ ; and that by the Act of Parlia- 
 " ment 1537, cap. 39, it is declared that the sentences of the Senators of the College of 
 " Justice shall have the same strength and effect as the sentences of the Lords of Session 
 " had in time bygone, which is declared by the 63rd Act, 14 K. Ja. 2, to be final, 
 " without any remeid by appellation to King and Parliament, which hath been in constant 
 " observance ever since. For the Parliament never sustained an appeal from the Lords " 
 (that is, the Lords of Session), " neither was there ever any reduction of their Decreets 
 " sustained, except as to the title of honour betwixt Glencairn and Eglinton, which, with 
 " that Parliament, is simply annulled and rescinded without any reservation." 
 
 This statute, therefore, together with that judicial interpretation of its effect, is, 
 I think, sufficiently conclusive proof of the position which I venture to state to your 
 Lordships, that Parliament, even, I repeat, if it had been duly convened and rightfully 
 and lawfully held, would have had no authority whatever to entertain the appeal which 
 was presented by Lord Eglinton. This Decree, therefore, of March 1649, besides its 
 other vices and infirmities, has this conclusive objection to it, that it proceeds from a body 
 having no authority whatever. And so much was that felt upon the Restoration, that 
 an Act of Parliament was passed for the express purpose of striking at these intermediate 
 Decrees, namely, the Act of February 1661, which Lord Stair tells us had the effect, 
 without more, of annulling directly the Decree of March 1649. 
 
 Now the testimony of the Parliament itself may be added to this, without weary- 
 ing your Lordships with any more proofs. Your Lordships will find at the same page 
 to which I last referred you, page 56, an entry anterior to the Rebellion, the 15th July 
 164], in which the Parliament makes this return : — "The Estaittis of Parliament, haifing 
 " takin the desyre of this bill to thair considerratioune, findis and declaris that William 
 " Erie of Glencairne his sitting and voyting in Parliament at this tyme shall no wayis 
 " be prejudiciall to him in the right of his place, whensoever he shall intend persute 
 " (action) for the same befoir any judge competent ; and siclyke that this answer or refer- 
 " ence shall not in any sort prejudge these other noblemen." They, therefore, admit 
 themselves not to be a competent tribunal to try or determine that question. 
 
 Lord Brougham. — Will you just answer me this ? Suppose an Act of Parliament 
 were passed under these circumstances by King, Lords, and Commons, as we should say, 
 by the Three Estates and the Crown of Scotland, affecting a matter of civil right, there is 
 no question of the exclusive jurisdiction of the Court of Session in matters of civil right. 
 As, for example, upon the question whether A B is institute or substitute in a certain 
 deed of entail, that is clearly and undeniably within the exclusive jurisdiction of the Court 
 of Session. Now, supposing the Court of Session decided A B to be a substitute, not an 
 institute, or the contrary, and supposing that afterwards an Act of Parliament is passed 
 in the regular and solemn mode of passing Acts of Parliament, namely, by the Crown 
 and the Three Estates of Parliament, the clergy, the burghs, and the counties, and suppose 
 that Act of Parliament says that, " Whereas it has been decided that A B is institute in 
 " such a tailzie, nevertheless, for certain good causes us thereunto moving, it is deter- 
 " mined, by the King and the Three Estates of the realm, that A B is only substitute in 
 
( 151 ) 
 
 " the said tailzie." Now, although that would be decidedly contrary to all right and con- 
 trary to all justice, nevertheless would not that be the law of the land, aprivilegium, a 
 law affecting the individual ; and would it not, however contrary to right and justice, yet 
 have the force of law ? Would not the Court of Session in consequence of that be called 
 upon, in obedience to that unjust and unrighteous law, to give execution, and to allow 
 the possession of the estate to A B as a substitute and not as an institute ? 
 
 Mr. Solicitor- General. — I quite admit that if the words are distinctly found in an 
 Act of Parliament, as for example these, that A B is the eldest son of his father, and 
 by the common law of the land would be the heir of his father, nevertheless it is 
 enacted and ordained that A B, the eldest son of his father, shall not be the heir at law 
 of his father, I quite admit that that would be a privilegium ; it would be a law passed for 
 a particular purpose, and therefore I admit undoubtedly that that would be an Act of 
 Parliament that the Court would be bound to give effect to. 
 
 Lord Lyndhurst. — It would be so by the law of England ; but are you sure that 
 would be the case with respect to the law of Scotland ? In America that would not be 
 so. According to the Constitution of the United States, if the Legislature were to make 
 such a law it would be void, and it would have to be tried by the legal tribunals of the 
 country, who would say that the Legislature had no right to do so. 
 
 Lord St. Leonards. — By the American Constitution that is expressly provided for ; 
 nobody contends that there is any such absolute provision in the law of Scotland, and 
 therefore it depends upon general prmciples. 
 
 Lord Brougham. — In America it is as if they had said, it is provided that the 
 Legislature shall not be supreme ; that there shall be a body 'over it. 
 
 Mr. Solicitor- General. — In all Federal Constitutions it is requisite that you should 
 have a supreme power, and that it should be a something that is analogous to a Court 
 of Justice, if it be not a Court of Justice. As one of your Lordships has said, the 
 question would properly depend upon general principles — upon some such general prin- 
 ciple as this — whether a Parliament, constituted of persons elected and appointed by the 
 law of the land, sitting under the law of the land, have the power to alter the material 
 or the organic parts of the law of the land to the utter destruction of the landmark of 
 that law. 
 
 Lord Brougham. — The American doctrine proceeds upon this, that the legislature 
 has power delegated to it to do certain things, and if they exceed their commission what 
 they do is invalid. That is the ground of the American Constitution. 
 
 Mr. Solicitor- General. — As your Lordships know, these are matters which are to 
 be approached reverently, and are not to be speculated upon except in cases of great 
 necessity. 
 
 Lord Lyndhurst. — The highest tribunal in America has repeatedly decided that 
 the Congress has passed laws ult?n vires. 
 
 Lord Brougham. — Beyond their commission. 
 
 Mr. Solicitor- General. — Yes: treating them as having received legislative 
 authority. 
 
 Lord Lytvihurst. — Yes, precisely : with us the legislative authority is absolute. 
 What was the law of Scotland in that respect ? 
 
 Mr. Solicitor- General. — Your Lordships know very well that one way in which 
 rebellion has sometimes been attempted to be justified is, by saying that what is attempted 
 to be done is contrary to the original compact between the legislature and the sovereign 
 power — the people. However, it is going beyond one's province to enter into matters of 
 such extremely rare occurrence and remote speculation. These are matters which really 
 are upon the very surface. Because, let us take for example an extraordinary Act of 
 
( 152 ) 
 
 Parliament which appears to be contrary to principle, such as the one that your Lordship 
 has just been supposing. Then what is the mode in which that will have to be dealt 
 with ? In the first place we should get rid of it, in all probability, by construction. 
 
 Now, in dealing with this matter which your Lordships have here to consider, I 
 invite you, in the first place, if you are disposed to regard this Act of Parliament of 1488 
 as entitled to the character of law, to observe what it is that your Lordships have to deal 
 with. They are general words only. 
 
 Lord St. Leonards. — You see, Mr. Solicitor-General, that if the thing is to be 
 pressed, there is this obstacle — the Parliament of 1649 (we will say nothing about the 
 rebel Parliament, but call it the Parliament of 1649) annul the dignity : you say that 
 that is ultra vires. Then comes the Statute of Charles XL that annuls the former annul- 
 ment. The latter Parliament had no more power than the former Parliament as regarded 
 the Earldom, and therefore it would be only putting them both out of the question. If 
 the one could not annul, the other could not interfere. 
 
 Mr. Solicitor- General. — Quite so. 
 
 Lord St. Leonards. — I am putting it to show how it would operate ; you have to 
 show that by the constitution of Scotland the power which was originally, in point of 
 fact, in a Committee of Parliament, was taken away from Parliament, and ultimately 
 came to be vested in a particular Court of Justice. 
 
 Mr. Solicitor- General. — Your Lordships know very well, a great deal better than 
 I can pretend to explain, that if we are to go into the origin of Courts of Justice, that 
 both in theory and in historical truth they must all be regarded as emanations from the 
 Royal authority, and therefore, properly speaking, there would be no appeal to Parlia- 
 ment from any one of them. But I will take the liberty of reminding your Lordships of 
 a very useful chapter prefixed to a treatise on the jurisdiction of the House of Lords ; and 
 there, in point of fact, the origin of that jurisdiction is, in a great measure, gone into, and 
 it is shown to have originated in a species of usurpation ; because it is perfectly clear that^ 
 according to the ordinary principles by which our Courts of Justice were created (and 
 the same feudal principle apphes to Scotland as much as to England), all the Courts of 
 the country are nothing in the world more than so many fountains of justice derived from 
 the great source of all justice, namely, the Royal authority ; and to the King alone 
 according to the true principle and theory of the Constitution, would be the appeal. But 
 in point of practice and in point of fact the appeal has been directed to different branches 
 of the community, to different authorities : we have appeals to the Privy Council with 
 regard to one set of tribunals, and appeals to the House of Lords with regard to another 
 set of tribunals. They have been, in point of fact, gradual innovations. But in theory 
 they are all of them, except perhaps the appeal to the Privy Council, inconsistent with 
 the original principles upon which Courts of Justice were established in this country. 
 Here, therefore, applying these observations to the case that we have to deal with, your 
 Lordships will at once observe that the appeal which was preferred by the Earl of 
 Eglinton to the Parliament was an appeal to the Parliament, not as a legislative forum, 
 but as a judicial appellate body. 
 
 Lord St. Leonards. — That is the question, whether that was so or not ; whether 
 the Parliament was sitting in its judicial character, or whether it was sitting in its 
 legislative character. 
 
 Mr. Solicitor-General. — Looking at the form of the appeal, it is perfectly clear 
 that the. appeal was brought before the Parliament by Lord Eglinton in the character 
 strictly of a man complaining of an unjust sentence of the Court below. I do not 
 think that your Lordships will find that is a form in which any suitor for the extraordi- 
 nary relief of the legislative body has ever preferred a petition to Parliament. The 
 distinction is made by Lord Stair. 
 
( 153 ) 
 
 Lord St. Leonards. — You are aware that in this country there were many instances 
 of reversals of judgment of the Court hy Acts of Parliament. Before the appeal to this 
 House was regularly established by custom, there were many Acts of Parliament which 
 repealed judgments in the Courts of Law below them. 
 
 Mr. Solicitor-General. — Yes, my Lord. And indeed now it would be our only 
 resource in the event of a decision being arrived at by this tribunal which was contrary 
 to justice or contrary to law. The last resort, the ultimum perfugium, undoubtedly would 
 be to get an Act of Parliament to reverse the decree. 
 
 I will now call your Lordships' attention to the form of the Decree, which we 
 have had printed for the purpose of laying it before your Lordships. The whole form 
 of the Decree is evidently intended to give it a judicial character. It is quite plain that 
 if Parliament had assumed to act in its legislative character, the result of its interference 
 would have been an Ordinance, or a Statute, or an Act. But they would not have 
 embodied what they did, as they do now, in the form of a Judicial Decree. The entry 
 on the roll, if I may so call it, is in the form and shape of a Judicial Decree. 
 
 Lord Lyndhurst. — What page is it in ? 
 
 Mr. Solicitor-General. — It is not given in extenso in the papers, but we have printed 
 it separately for your Lordships' use. It is a very long and wordy document, partaking 
 very much of the genius of the times. There are a great number of long and ambiguous 
 and uncertain sentences, endeavouring to veil and conceal what in reality was done. 
 
 Lord St. Leonards. — Have you printed the two Decrees ? 
 
 Mr. Solicitor- General. — I think your Lordships will find both of them here; the 
 Decree at the instance of the Procurator, and the Decree at the instance of the Earl of 
 Eglinton. Your Lordships will find in a convenient form, in a separate paper, the two 
 Decrees of 1649, and the Act which repealed them of the 9th of February 1661. Your 
 Lordships will see that it plainly assumes the shape and form of a Judicial Decree, 
 because it professes to go through all the proceedings, it recites every thing which has 
 taken place — and it gives the reasons for the reduction, the objections, and so forth, 
 embodying all the pleadings ; and after it has done so, making up, according to the 
 precedent o/ proceedings in Courts of Justice, a perfect record, it then gives its con- 
 clusion and determination in a sort of judicial form. 
 
 I now quit this part of the subject, only begging your Lordships' attention parti- 
 cularly to the form of the Act of 1661, — it contains no salvo or reservation of any judicial 
 proceedings. There were two Acts of Parliament for the purpose of repealing what 
 had been done by the intermediate Parliament of the Rebellion — one that contained that 
 salvo, and one that had not the salvo. The one of the 9th of February 1661, had no 
 such salvo. That is the one that Lord Stair says was intended to reduce and annul, 
 and which has annulled, amongst other unjust judicial proceedings, these particular 
 Decrees. 
 
 This, therefore, presents the only instance (and it is a very signal thing) in which 
 we find any trace in a Court of Justice, or in fact in any solemn instrument, of an attempt 
 to apply, or to refer a right to the operation of the Act Rescissory. Now, I quite agree 
 that it will be possible, however unjust a Parliament might have been in its proceedino-s 
 or however irregular in its origin, that its Acts, if they are found in the Statute Book, 
 may be treated as Acts of Parliament. But then, undoubtedly, your Lordships will 
 construe them according to the principles of justice that should have dictated them, and 
 wherever an Act of Parliament is capable of receiving a fair construction in conformity 
 with natural justice, your Lordships will give it that interpretation, and will apply it 
 accordingly, and not in accordance with the principles and the feelings that originally 
 dictated and suggested that Act of Parliament. Now, to apply that remark to the Act 
 
( 154 ) 
 
 of Parliament of 1488. The Act Rescissory speaks of Grants and of Creations of Dig- 
 nities that were prejudicial to the Crown — grants that were made that may appear 
 prejudicial ; and its authors plainly intend to denote that everything that was done by 
 the unfortunate King who had been murdered, for a short time antecedently to his 
 death, was to be brought within that description. But they have not brought the Acts 
 within that description by name ; they have only given a general declaration. Your 
 Lordships, or any Court of Justice, if they recognized the Act Rescissory, would now 
 have to apply that general language ; and it would be impossible for you to hold that 
 the acts of the lawful Sovereign, King James III., done after the 2nd of February 1488, 
 are to be regarded as void, because they were done in a manner prejudicial to the then 
 rebel factions, or because they were done at a time when the King ought to be considered 
 as having ceased to reign. But, if your Lordships arrive at the conclusion which you 
 would be bound to arrive at in conformity with every principle, then it is impossible to 
 hold that this Act Rescissory is conceived in language which makes it an instrument 
 having the effect of annulling or striking at any dignity or any grant of property made 
 by King James III. subsequently to the 2nd of February, 1488. 
 
 My Lords, I have now carried you sufficiently, having regard to what you have 
 already heard in the opening of the case, over this interference of Parliament, this 
 arbitrary and irregular interference of a body having no authority whatever in the 
 matter, in support of the Act Rescissory and in annulling the Decree of the Lords of 
 Session of 1648. That was entirely destroyed, as I have put your Lordships already in 
 possession of, by the subsequent Act of 1661. I will now call your Lordships' attention 
 for a moment, as a last parting observation in this part of the case, to a paper which 
 appears to have been brought forward by Lord Eglinton, and which is stated in our 
 Appendix, page 213. This is a document which has been found in the Eglinton Charter 
 Chest, and it shows clearly Avhat were the grounds upon which the matter was brought 
 before Parliament. The language of this instrument is very remarkable. The second 
 paragraph of it is worded, "If the Earle of Eglintoun sail bring that question of the pre- 
 " cedence to be agitat and handled in Parliament, be a Summon dis of Reductioun befoir 
 " the Parliament of the foirsaid Decreit pronounced be the Lordis of Sessioun." One of 
 your Lordships was kind enough to particularly point my attention to what was the 
 nature of the proceeding before the Parliament. It appears clearly and plainly to have 
 been by a Summons of Reduction. " If this course be invitted, the reason of reductioun 
 " must be iniquitie of the Judge sustaining a Patent quhilk wes revocked by the King 
 " and Parliament in anno 1488." That is the ground upon which we find that Lord 
 Eglinton applied to the Parliament. 
 
 Then it goes on to give other directions with regard to the form of the pro- 
 ceeding, and your Lordships will find the reasons that are to be assigned to the Court of 
 Session (sic), and which are thus stated, looking at the words in italics: — " In that actioun 
 " ane Patent of Earle, grantit be King James 3, in anno 1488, to the Earle of Glencairne 
 " his predicessor, was susteined a valid Patent and a good evident to tak from the Earle 
 " of Eglintoun his richt of precedence, albeit that Patent was grantit be King James 3 
 " to Earle Alexander, Glencairne his predecessor, ffbr assistance and perverse counsall 
 " given be him to King James 3 aganes the common guid of the Realme, he having 
 " assisted King James 3 in armes in the field aganes the Kingis guid subjectis and the 
 " good of the Realme, for which assistance and perverse counsall the said pretendit 
 " Patent and all giftis and new creationes of dignities of that nature wer annullit be the 
 " 5 Act of the first Parliament of King James 4 in October 1488 ; be the quhilk Decreit 
 " of the Lordis of Sessioun, susteining the said annulled Patent, quhilk wes annulled for 
 " service done againes the common guid of the kingdome, the Earle of Eglintoun is 
 
( 155 ) 
 
 " bereaved of his ryt (right) of precedence as Earle befoir the Earle of Glencairn, 
 " quherof he and his predecessouris hes been sa lang in possessioun, quhilk is a matter 
 " of the greatest grief and resentment that can befal his Lordship, not so much for his 
 " owne privat interes as that the sustening of such a Patent gevin for so evile a cans 
 " may be of a bad and sad consequence in this kingdome in thir (these) tymes, quhen 
 " many have darred, upon evil groundit pretences of doeing service to his Majestie, to 
 " ryse in open hostilitie aganes the Estates of this kingdom." 
 
 Now your Lordships will at once see the bearing of these things of which I am 
 troubling you with the statement, because, when we come to that which is the only 
 important matter that I have to deal with, namely, my Lord Rosslyn's statement that 
 the Decree of 1648 did not proceed upon the Glencairn Patent of May 1488, it is 
 perfectly clear th?it my Lord Rosslyn must have been utterly ignorant of every one of 
 the documents relating to this litigation in 1648. It is perfectly clear that he must have 
 been utterly unaware of every species of argument and representation addressed by 
 Lord Eglinton to the Parliament of 1649; for if he had seen one tittle of any part of 
 them, he would have seen at once that his representation that the proceeding did not go 
 upon the Patent of 1488 was a misrepresentation totally contrary to the fact. 
 
 Now here we find that every word of Lord Eglinton's argument, that all the 
 papers, which have been preserved with great care, that all the preparations for the 
 application to Parliament, all the pleading, and all the advice given to the Earl, is to 
 sustain his application to Parliament by putting it in a manner that would be, no doubt, 
 greatly alluring to the temper of the men whom he addressed, that they were bound to 
 uphold the Act Rescissory, because it Avould form a most convenient precedent for their 
 own benefit, to enable them to use it as an example whereby to annul other grants and 
 other concessions that might have been made by Charles I., and which they were 
 desirous, in their turn, of doing away with ; and accordingly we see that Lord Eglinton 
 adopts that view, and every part of the representation that he then makes is accompanied 
 with a suggestion to Parliament that it was desirable to hold that the Act Rescissory 
 applies, because it would be a very mischievous example to sustain " a Patent given for 
 " so evile a cause "—that it " may be of a bad and sad consequence in this kingdome in 
 " thir (these) tymes, quhen many have darred, upon evil groundit pretences of doeing 
 " service to His Majestie, to ryse in open hostilitie aganes the Estates of this kingdom, — 
 " and therfoir concluding that the Estates of Parliament be pleased to tak that questioun 
 " and debait of precedence and the invaliditie of the said pretendit Patent to ther con- 
 " sideratioun, that nother (neither) any evil consequence in thir tymes may fall out upon 
 " the Decreit of the Lordes of Sessioun, nor yet the Earle of Eglintoun be hurt or 
 " damnified by the Earl of Glencairn in bruiking his precedence befoir him." It is 
 therefore, I think, shown most abundantly that this representation, which is re-echoed 
 in very terms in the Decree of the Parliament, was the ground upon which they arrived 
 at the conclusion that they would apply that Act Rescissory of 1488. 
 
 My Lords, the next stage that we come to is the proceeding before your Lord- 
 ships' House in the year 1796, namely, the application by Sir Adam Fergusson for the 
 Earldom of Glencairn. Probably your Lordships will forgive me if, before I go to that, 
 I just observe that there is a very short and convenient summary of these proceedings in 
 Parliament in the year 1649, and before the Court of Session in 1648, which is given in 
 our Supplemental Case, in page 203. There is a short analysis, which will be extremely 
 material by way of reference. In this summary, in the note, which I can state to be 
 perfectly accurate, for I have examined it, your Lordships will find, upon examination 
 of that printed document, Lord Glencairn produced the following documents in evi- 
 <jence:— His Patent of the 28th of May 1488; an Act of the Lords of Session of the 
 
 X 
 
( 156 ) 
 
 12th of May 1504 ; a Sederunt of Parliament of the 18th of November 1505, — and 
 Lord Eglinton met that by a Royal Precept dated the 18th of December 1500 ; by a 
 Sasine dated 10th of April 1502; and by a Sederunt of Parliament dated the 21st of 
 March 1503, — and in that Sederunt there appears an entry of the " Comes Montgomery," 
 the Earl of Montgomery, and that Earldom of Montgomery was shown to have been 
 held and possessed by the Earl of Eglinton ; consequently it would have clearly appeared 
 that the Earl of Eglinton, as Earl of Montgomery, was entitled to precedence over Lord 
 Glencairn if Lord Glencairn had relied upon anything but the Patent of 1488. I am 
 accumulating materials, in order to convince your Lordships, I trust, of the gross errors 
 which will become apparent in Lord Rosslyn's judgment ; because Lord Rosslyn has, we 
 shall presently find, accounted for the precedence of Lord Glencairn over Lord Eglinton 
 by ascribing Lord Glencairn's creation to the act of belting, in the year 1505. Lord 
 Rosslyn was ignorant of the fact that Lord Eglinton claimed his precedence, not quA Earl 
 of Eglinton, but qu& Earl of Montgomery ; and that the Earl of Eglinton was enabled to 
 show, and had shown, that the Earl of Montgomery had sat by that title in Parliament 
 in the year 1503, and that, therefore, if it had been true, as Lord Rosslyn, in defiance of 
 all law, and of all the evidence, appears to have imagined, that the act of beltmg, 
 on the inauguration of the Earl of Glencairn, in 1505, was the origin, or commencement 
 of the dignity, it is perfectly clear that the Earl of Montgomery, who sat in Parliament 
 two years preceding, would have been entitled to priority of place; therefore it is 
 abundantly clear that the precedency which was settled in favour of the Earls of Glen- 
 cairn was a precedency that was founded altogether upon the Patent of 1488, because, 
 but for that Patent, the precedency in question would have belonged to the Earls of 
 Montgomery, who were clearly shown to have taken their seats in Parliament in the 
 year 1503. 
 
 Chairman. — The belting was in 1503 upon the marriage of James IV., — the sitting 
 was in 1505. 
 
 Mr. Solicitor- General. — But then Lord Eglinton showed a sitting in Parliament 
 in 1503. 
 
 Chairman. — The 21st of March^ that would be 1504 as we call it. 
 
 Mr. Solicitor- General. — Your Lordship is quite right. According to the New 
 Style it would be 1504, and a Sederunt was shown in which the Earl of Glencairn did 
 not appear at all. 
 
 Chairman. — The belting of the Earl of Glencairn was in August 1503, and there- 
 fore would be prior to that Sederunt. 
 
 Mr. Solicitor-- General. — Yes, but although the belting may have taken place at 
 that time, yet there was no sitting of the Earls of Glencairn in Parliament till the year 
 1505. Therefore, it is perfectly clear that as far as regards the evidence of having 
 possession of the dignity in respect thereof, the Earl of Montgomery would have been 
 entitled to precedency over the Earl of Glencairn, if the creation of the dignity of the 
 Earl of Glencairn was to be referred to the belting which took place in August 1503. 
 I think that will become a little more apparent presently. 
 
 Chairman. — It is stated that Lord Eglinton produced the following in support of 
 his claim, a Royal precept of the 18th of December 1500, which styled him Lord 
 Montgomery ; that precept of course would be prior to the belting ; then a Sasine of the 
 10th of April 1502, that would have been prior to the belting; then a Sederunt of 
 Parliament of the 21st of March 1503, — that would appear to be subsequent. 
 
 Mr. Solicitor- General, — Yes; if founded upon the antecedent title. 
 
 Chairman.—Do we know what the Precept and Sasine are, that are referred to 
 there ? Have you got them ? 
 
( 157 ) 
 
 Mr. Solicitor- General. — I think you will find distinctly stated in the entry of the 
 Decree, and in the Eglinton papers, these proofs that are produced on the part of Lord 
 Eglinton. 
 
 Chairman. — From what papers are you reading ? 
 
 Mr. Solicitor- General. — From the printed copy of the Decree of 1648. He puts it 
 in this form. He begins at page 4, and it goes on to page 5. It is about three lines 
 from the top. Eglinton appeared. Then he produced Precept for Sasine of the 18th of 
 December 1500, bearing that the King's Majesty, " with consent of ye Lords Governo'' of 
 "' ye Realme, in absence of Johne Duke of Albanie, his Ma""' tuto', protect©'', and gover- 
 " no' of the Realme, had disponed to Hew Earle of Eglingtoune, Lord Montgomerie, 
 " the lands of Langschaw, w' the right of patronage of ye chappell of the blissed 
 " Virgine, whilk pertinet to Thomas Home here"", and q'^ he resignit in the hands of 
 " James Archbishop of Glasgow, Chancello' of Scotland, in absence of ye Duke of 
 " Albanie, tuto"" to the King, and thairfore giveing precept and warrand to give seasing 
 "■ y'of to Hew Earle of Eglingtoune. Item, ane Seassing, daittit the 11th of Apryle 
 " 1502, to Rob' Montgomrie, sone of the Earle of Eglintoune, of the lands of Oldhallow 
 " Chappell, sub* be one Thomas Baxter, notar publict, and extractit out of the pro- 
 " thogall of S" Thomas Baxter, notar, proceeding upone ane precept granted be Hew 
 " Earle of Eglintoune, daittit the tent day of Appryle 1502. Item, ane Sederunt of 
 " Parliament, 25th Marche 1503 ;" (that I suppose would be 1503, because it was the 
 first day of the year), " bearing Hew Erie of Montgomerie to sitt in Parlia*. Item, 4 
 " extracts of Sederuntis in Councell and Sessioune, daittit the 2, 3, and 5 days of 
 " Marche 1506, designeing the Erie of Eglintoune to sit as ane of the Lords of 
 " Sessioune." Now, it is upon these writs that he relied, and then those were met and 
 altogether superseded by the priority that Lord Glencairn was entitled to by virtue of 
 the Patent of 1488. 
 
 My Lords, I am quite unwilling to weary your Lordships by a repetition of the 
 instruments that have been before you several times, but your Lordships will not fail to 
 remember that we went through the whole of that striking dramatic statement of the 
 pleadings in the contest in the Court of Session between Lord Eglinton and Lord 
 Glencairn by their respective advocates, and which presents a very admirable model of 
 the oral mode and form of pleading of those times, in which the different propositions 
 that were brought forward by the one and the other are considered and repelled, and 
 finally resolved, until the case is reduced down by an exhaustive analysis of the different 
 objections to the final point on which the Pursuer and the Respondent rest, which the 
 Committee will remember was found to be the Patent of 1488, in answer to which Lord 
 Eglinton opposed, by way of a destructive weapon, the Act of 1488. The Lords adjudi- 
 cated thereupon, — upon which he desired to withdraw from the contest, but was not 
 permitted, and their judgment was given. 
 
 Now, my Lords, I pass on to Lord Rosslyn's decision, upon which I shall detain 
 your Lordships as short a time as I possibly can. The question that arose, as your 
 Lordships are well aware, in the year 1796, depended upon this inquiry : — Sir Adam 
 Fergusson, in claiming the Earldom of Glencairn, produced a patent of 1488, in proof 
 of this conclusion, that it was an Earldom limited to heirs general, and therefore that 
 he who claimed under a female heir was entitled to the patent. My Lord Rosslyn met 
 that by stating. You cannot found yourself upon the patent of 1488, because the patent 
 of 1488 was annulled by the Act Rescissory, and that is res judicata. That is the sum 
 total of Lord Rosslyn's judgment. But then Lord Rosslyn had to meet this difiiculty : — 
 If the patent of 1488 was rescinded by the Statute of the same year, how can you 
 account for the long ownership of this title by the Earl of Glencairn ? He accordingly 
 
 X2 
 
( 158 ) 
 
 casts about to meet this objection, and resorts to most extraordinary means for the 
 purpose of answering it — and the means are these : not evidence, not legal proof, nothing 
 that any one of your Lordships would now feel yourself at liberty to look at for a 
 moment ; but my Lord Rosslyn takes a volume of Leland's Collectanea, a book which 
 I dare say we have all looked at at different times, and which I have no doubt contains 
 a very amusing collection of some antiquarian matter, and in which I dare say there 
 are a number of instruments that are given in an authentic form. In this antiquarian 
 record, this repertory which has been made for the amusement of the general reader, 
 my Lord Rosslyn finds a narrative which is given by Young, the Somerset Herald, of a 
 tournament which was held in honour of the nuptials of King James IV. in the year 
 1503; and accordingly my Lord Rosslyn derives merely from that source what he 
 conceives to be legitimate evidence of the tournament, and of the ceremonies that then 
 occurred, and of one particular occurrence at that ceremony, namely, the belting of 
 Cuthbert Earl of Glencairn. He had not any proper materials before him — any evidence 
 whatever upon which he rests the whole of his judgment, except what he had got out 
 of this book (if I may so speak of it without disrespect) of antiquarian gossip. Upon 
 that my Lord Rosslyn founds the whole of his judgment, because he says, ' I am war- 
 ' ranted in my conclusion that the patent of 1488 was rescinded by the Act in the same 
 '■ year ; for I find this ceremony and this occurrence to which I can attribute the creation 
 ' of the Earldom, and I do attribute it accordingly.' My Lords, is it not a very melan- 
 choly thing that now, when we are looking back at the materials and the foundation 
 of that judgment, we find it proceeded upon grounds such as those which I have now 
 described to you? 
 
 Lord Rosslyn then appears to have been reminded that there was a Decree of 
 1648 ; and I find with great pain that the Noble and Learned Lord is reported to have 
 said, " I have looked into the Decree pronounced in that action, and find this Patent 
 " among the productions ; but the Decree is not founded upon it." Now, I am quite 
 ready to suppose that some garbled extract from that Decree had been given to the Noble 
 and Learned Lord ; but it is utterly impossible that any man could say with accuracy that 
 he has looked into that Decree, and that it did not proceed upon the Patent of 1488. 
 My Lords, the reason for the reduction of the Decreet of Ranking, assigned by Lord 
 Glencairn, is that very Patent of 1488 ; and I have gone through the different grounds 
 there stated for the purpose of proving to your Lordships that Lord Glencairn had no 
 ground upon which to rest his foot but the Patent of 1488. The analysis of the pleadings, 
 the examination of the argument, the report of the case (which, to do justice to Lord Rosslyn, 
 I must say, have been subsequently discovered and were not then known to exist), all these 
 prove that in the course of the argument the question in the cause was reduced entirely to 
 the single point of the Patent of 1488. And therefore, my Lords, it is a melancholy thing 
 now to observe in the retrospect the error that was fallen into in this case, and is a great 
 warning against rash and precipitate judgments in matters of this kind, and a great 
 proof of the immense importance of having judicial tribunals of the last resort composed 
 of more minds than one, in order that several minds, applying themselves to the same 
 subject, may correct errors into which one single individual may be very likely to fall. 
 It is indeed a very desirable thing that we should always bear that in mind, because it is 
 abundantly clear that Lord Rosslyn's judgment has not proceeded upon any one single 
 ground that any one of your Lordships would for a moment give countenance to. 
 
 My Lords, I have here an analysis of the grounds of the judgment. I will refer 
 your Lordships to the page in which they are given in detail. Your Lordships will find 
 them stated in a note to the Supplemental Case of the present Petitioner, in page 59 
 The full copy of Lord Rosslyn's judgment ig given in the Duke of Montrose's Case • but 
 
( 159 ) 
 
 I prefer to refer your Lordships to this, because it is a very long document, and we have 
 here extracted the particular grounds upon which it proceeded. Now the judgment 
 begins with the general principles, upon which one has nothing to say. Lord Rosslyn 
 says, — " Where the limitation of a peerage is not to be discovered, the presumption is, 
 " that it descends to the heirs male of the body of the original grantee " That he lays 
 down in order that he may hereafter revert to it, when he shall have disposed of the 
 Patent of 1488, in order that he might found upon it the conclusion that the grant, if 
 there was one, to Cuthbert Earl of Glencairn, was to him and the heirs male of his 
 body. He then says, " In the case of the peerage of Spynie, all attempts to prove the 
 " limitations by collateral evidence were fruitless ; the creation of the title was by the 
 " form of belting, after which the person so created sat in Parliament, and his son 
 " sat also." Here we commence with a long series of mistakes and misapprehensions 
 existing in this judgment, and which it will be part of my duty fully to explain. The 
 peerage of Spynie is shown distinctly to have been created by a charter in the year 
 1590. We have printed in a separate form all the proceedings in relation to the peerage 
 of Spynie ; and instead of its being correct to say, as Lord Rosslyn is here made to 
 say, that it was created by the act of belting, the peerage of Spynie was originally 
 granted to the first Baron on the 6th of May 1590, in favour of Alexander Lindsay, the 
 younger brother of David Earl of Crawford, with a limitation '^heredibus suis masculis 
 ■' et assignatis quihuscunque." 
 
 The next point that Lord Rosslyn comes to is this :— " The other question, there- 
 " fore, in this case must determine the right of the claimant." " The question here 
 " arising is rather a question of fact than of law, namely, whether the origin of the title 
 " be referable to this instrument " (the Patent of the 28th of May 1488), " or some other 
 " creation. Our inquiry on this point is much narrowed by the evidence. In 1505 
 " Cuthbert appears sitting in Parliament as Earl of Glencairn " (from him all the parties 
 state themselves to be descended), " and this is the first time that an Earl of Glencairn 
 " is to be found sitting in Parliament. The question therefore is, whether this Cuthbert 
 " sat in Parliament as Earl of Glencairn in 1505 by descent from Alexander the grantee 
 ^' in the Patent of 1488, or whether his sitting was to be attributed to some other, and 
 " what other, mode of creation." 
 
 Then Lord Rosslyn enters upon an examination of that question : and first of all 
 he deals with this fact, that the lands of Drummond and Duchray, granted along with 
 the Earldom by the Patent of 1488, "are never mentioned in any of the posterior deeds 
 " of the family, nor in the inventory of those deeds, in which the lands are generally 
 " marked with exactness. As to them, therefore, the Patent 1488 must have had no 
 " effect." My Lords, this is the first sudden conclusion at which the Noble and Learned 
 Earl arrived. It does not appear to have suggested itself to the mind of the Noble and 
 Learned Earl that those lands might have been taken away by judicial process without in 
 the smallest degree interfering with the integrity or the validity of the Patent of 1488 ; 
 but because he finds that these particular lands are part of that grant and that they had 
 not accompanied the title, he arrives at once at the conclusion that the Patent of 1488 
 was, therefore, altogether invalid. Now we have examined that question, and we have 
 proved to your Lordships by the materials which we have given in evidence, that these 
 lands of Drummond and Duchray were taken away from the Earl of Eglinton by the 
 superior title of the house of Drummond, upon the ground that they were improperly 
 included in the grant. And you might just as well argue that any Patent granted to any 
 one of your Lordships, if it had happened to include a particular estate, a portion of which 
 was afterwards recovered by an adverse title, that that recovery by an adverse title 
 would amiulthe patent of the dignity. I say, there would be as good ground for arguing 
 
( 160 ) 
 
 that, as for Lord Rosslyn to argue that the loss of these lands, because they did not 
 appear to have accompanied the Earldom, must therefore involve the conclusion that the 
 Patent of 1488 never had taken effect. My Lords, you will find that the grounds upon 
 which the lands of Drummond and Duchray were recovered from the Earls of Glen- 
 cairn are stated in pages 66 and 68. I will not give your Lordships the trouble of refer- 
 ring to them by reading them in detail, if you will do me the favour to mark the parts, 
 because they are somewhat at length ; but in a note at page 68 there is the Decree of 
 Reduction, by which the lands of Drummond and Duchray were recovered from the 
 Earl of Glencairn upon the ground that there was a superior and better title in Lord 
 Drummond. Your Lordships will find that that is given in full detail, and, therefore, 
 the reasons why these lands did not accompany the Earldom of Glencairn most clearly 
 appear upon the Records of the Court of Session ; and the conclusion that Lord Rosslyn 
 conjecturally drew is one totally unfounded in fact. 
 
 He goes on to state in the next passage of his judgment, that David Earl of Craw- 
 ford, who had been created Duke of Montrose on the 18th of May 1488, ten days before 
 the Glencairn creation, witnessed the Patent merely as Earl of Crawford ; and hence he 
 would draw the conclusion that neither that nor the other patent was good, because the 
 Earl of Crawford had not assumed the title of Duke of Montrose. Why, my Lords, it 
 is matter of familiar information to all who are mere tyros in matters of Peerage law, 
 that a Peer who receives a new dignity does not wear and assume that dignity until his 
 investiture is completed. Until he has been inaugurated, he does not use or denominate 
 himself by the style or title of the new dignity ; and therefore the user of the style of 
 Earl of Crawford for three or four days, or for ten or a dozen, or any number of days, 
 from and after the date of the Patent of the Dukedom of Montrose, is nothing in the 
 world more than a reason for inferring that there had been no inauguration of the Duke 
 of Montrose, but does not in the smallest degree warrant the inference or conclusion that 
 there was no such Patent, or that the thing was a fiction. 
 
 Now the inauguration of the Dukedom of Montrose is referred to in an earlier 
 extract which we have given from a very old writer, from a book kept by the Lord Lyon 
 King-at-Arms, Sir David Lindsay, in the time of James VI. ; and a notice of the inaugu- 
 ration of the Duke of Montrose is entered in these words (I am reading from page 9 of 
 the Supplemental Case, about eight lines from the top) : — " David Lyndesius Montis 
 " Rosarum Dux appellatus a Jacobo Tertio paucis ante mortem Regis diebus." Now 
 these words, " appellari Ducem " and " nominari Ducem," and so on, are, as your 
 Lordships are aware, the ordinary form of expression used with respect to the ceremony 
 of investiture or inauguration when a new nobleman is presented to the throne, and the 
 ceremony is completed. 
 
 That is the form of expression which is found in the old writers, in order to 
 denote that ceremony. 
 
 Lord Lyndhurst. — What is the date of that ? 
 
 Mr. Solicitor-General. — ^It is a collection made by the Lord Lyon King-at-Arms 
 under King James VI., which would be, I think, about the year 1591, or somewhere 
 about that time. 
 
 Lord Devon: — What date does it give to the inauguration ? 
 
 Mr. Solicitor- General.— It does not say, except in these words: — "Paucis ante 
 " mortem Regis diebus," — a few days before the death of the King. He was slain on 
 the 11th or 12th of June, and therefore it may have been some day in the earlier part of 
 June. I refer your Lordships to this only for the purpose of showing how light, incon- 
 clusive, and unsatisfactory is the circumstance that Lord Rosslyn prays in aid, and brings 
 in as one of the materials of his judgment, when he assumes that the Patent of the Earl 
 
{ 101 ) 
 
 of Glencairn was good for nothing— that the alleged Patent had no existence in reality, 
 because it is represented as being attested by the Earl of Crawford, who, he says, had 
 been made a Duke ten days previously ; and that therefore, if there had been any reality 
 in this entry, we should have found him subscribing it as " Teste Davide Duce de 
 " Montrose," and not " Teste Davide Comite Crawfurdie." That is the whole of the 
 argument. 
 
 Then Lord Rosslyn proceeds to speak of a matter which has been already, I 
 think, sufficiently explained to your Lordships, that it was doubtful who was the 
 Chancellor at this particular time, that there were two contending Chancellors, and 
 that, therefore, doubt was cast upon the actual execution of the Patent. Now the Pa- 
 tent was in point of fact produced, as your Lordships have seen, in the year 1648: the 
 Patent has since been discovered, and now exists, and therefore the whole of this 
 argument is a mere gratuitous supposition which was resorted to, in total forgetfulness of 
 the general maxim of law that " in duhiis henigniora preferenda sunt." But instead of 
 that, every circumstance, whether it be conjecture or whether it be mere supposition, is 
 pressed in by the Noble and Learned Lord in order to arrive at the conclusion that the 
 Patent of 1488 had no real existence. My Lords, we have explained this transaction 
 about the Chancellors, the one being in reality nothing in the world more than the 
 Deputy of the other, which is stated in our Case in pages 6 and 7. I will not weary your 
 Lordships by going into it further. 
 
 The next circumstance which Lord Rosslyn collects in his judgment is this: — He 
 says, " The only period, therefore, when this Instrument could have had any effect was 
 " from its date, the 28th of May 1488, till the death of the Grantee," who was slain with 
 James III. "upon the 10th of June" (that is a mistake, it was on the 12th of June) ; "for 
 " on the 12th of June, two days after the action, the young King made a Proclamation, 
 " which was followed up by an Act of Parliament annulling every grant made by his 
 " father from the 2nd of February preceding." Now, here I cannot at all pretend to 
 say what materials might have been before Lord Rosslyn, but I can only tell your Lord- 
 ships that on either side of this question, as, indeed, you have evidence before you, the 
 utmost amount of learning, diligence, and industry has been exerted and used for the 
 purpose of collecting every single material ; but I think it has not fallen to the lot of 
 any of the inquirers into this subject in this case to discover any entry of this Proclama- 
 tion at Scone, except that single line with which the Act Rescissory, as it is called, com- 
 mences in the Statute Book. What the Proclamation at Scone was, when it was made, 
 on what day it was made, and how it was published — as to all these questions we can 
 discover no trace at all. 
 
 Lord Lyndhurst. — What authority is there for saying that the Proclamation was 
 on the 12th June? 
 
 Mr. Solicitor- General. — None whatever that I have been able to discover. 
 
 Mr. Attorney- General. — Nothing but that the King was crowned oh that day ; it 
 was the day of the coronation — we have evidence of that somewhere. 
 
 Mr. Solicitor- General. — I have not seen that evidence. 
 
 Mr. Attorney-General. — It is mentioned in the Act of Parliament; I know it is 
 one of the dates I have taken down as a fixed date. 
 
 Mr. Solicitor- General. — The Act Rescissory runs in these terms: "Item, anent 
 " the proclamation made at Scone it is statute and ordained." There is nothing else. 
 
 Mr. Attorney-General. — I will see how that is. 
 
 Mr. Solicitor- General. — Lord Rosslyn, then, as far as I have been able to discover, 
 and it has been a subject of anxious inquiry with us, had not the smallest warrant from 
 any history or from any document for stating that the Proclamation was either made 
 
( 162 ) 
 
 upon that day, or that it was a proclamation annulling every grant made by his father 
 from the 2nd of February preceding. 
 
 Now, my Lords, next comes a most remarkable conclusion of this judgment. 
 Lord Rosslyn says that James III. was not held to be King from the 2nd February 
 1487-8 till his death. Now, in the first place, I must beg of your Lordships to consider 
 the argument that I took the liberty of referring to the other day, that even if your 
 Lordships found that contained in a declaration made by a rebel faction who had risen 
 in arms against their Sovereign, and who had killed him in the field, it would be utterly 
 impossible for your Lordships to recognise that as a legal fact. I do not care where it 
 is to be found, be it found in the Statute Book, if you please. If there be a declaration 
 of Parliament that a King of the realm has ceased to reign from a particular day, it 
 turning out that that faction who made that declaration had risen in arms against him 
 and put him to death, it would be impossible to accept that as a conclusion of law. 
 But the fact is directly the reverse of what my Lord Rosslyn here lays down ; because 
 your Lordships will find that the Acts of Parliament themselves, and every single 
 solemn instrument, speak of the reign of King James IV. as commencing from the 12th 
 of June 1488, and not from the 2nd of February 1 487. 
 
 We have collected a great number of those, and I am not aware that they are 
 met by any countervailing instruments, or, in point of fact, by any attempt to support 
 Lord Rosslyn's conclusion. 
 
 JMy Lords, in page 62 of the Supplemental Case there are some few of these 
 proofs collected. First of all we produce an act of forfeiture against John Ross of 
 Montgrenan, dated the 14th of October 1488, in which James IV. describes himself 
 with reference to the period between the 2nd of February 1487, and the 11th of June, 
 as "Nostunc existentem Principem." I will presently read the language of it more 
 fully. In another statute of the 17th of October 1488, these are the words that are 
 found : — " The debaite and caus of the field of Stervelin (Stirling), in the quhilk 
 " umquhile James King of Scotlande^ quham God assoilze, faider to our Soveran Lord, 
 " happinit to be slane." A little lower down your Lordships will find — 
 
 Lord Brougham. — It appears from one of these documents that there was a 
 Regency. Albany was Regent. You take the objection that there was no Regent. 
 
 Mr. Solicitor-General. — Not at that time. 
 
 Lord Brougham. — Not at that time, but immediately afterwards. The Act is 
 stated as being passed with the assent of Albany, then tutor and Regent, and holding the 
 Parliament as such. I do not mean to say that it extends to 1488; it may be after- 
 wards. 
 
 Mr. Solicitor- General. — I quite agree that subsequently to that Parliament of 
 October 1488 you find an entry of Albany as Regent and Curator or tutor of the King, 
 and therefore it was that I took the liberty of dwelling — 
 
 Lord Brougham. — But you will never find in Harry VI. 's time any mention 
 made of the Regent, although at that time the King was not more than twelve months 
 old. It is by the assent of the King, Lords, and Commons. There is no mention made 
 of the Duke of Bedford, or any other Regent. 
 
 Mr. Solicitor- General. — That may be perfectly true; in like manner, as your Lord- 
 ships know, when we have a guardian in socage, all the acts of the guardian are entered 
 in the name of the infant, but still it is the fact that there is a guardian exercisino' lawful 
 authority, who can be referred to as justifying the act. Now the passage I was referring 
 
 to in the Act of 1 488 states distinctly with reference to the field of Stirlino-, "Etpro 
 
 " proditoriis arte, parte, consilio, et assistencia datis et exhibitis dictis personis in consu- 
 " lendo dictum quondam patrem nostrum ad exeundum castrum de Edinburgh cum 
 
( 163 ) 
 
 " armis et copia virorum ad invadendum nos, tunc existentem Principem, apud Strivelin." 
 The distinction, therefore, between his position as Prince at that time, and his subse- 
 quent accession to the Royal dignity, is apparent upon the face of that statute. And then 
 the latter part is what I read to your Lordships from page 210, — "In the quhilk 
 *' umquhile, James King of Scotlande, quham God assoilze, faider to our Soveran Lord, 
 " happinit to be slane," and so forth. 
 
 My Lords, there are a great number of instances, but I will only add that which 
 you will find at the bottom of page 62. That is the original Writ that was addressed to 
 the Chancellor and so forth, for the purpose of enabling service to be made to those who 
 had been slain in the field of Stirling. And your Lordships will observe in the latter 
 part of that entry, about the 10th line from the bottom of page 62, it runs, " Quod 
 " dictus quondam Rogerus Grersoun de Lag, pater Cuthberti Grersoun, latoris 
 " presentium, obiit ultimo vestitus et saisitus ut de feodo ad pacem et fidem Domini 
 " nostri Regis, ratione sue gratie dicto Cuthberto concesse, et personis," and so forth. 
 Clearly showing, therefore, that they are represented as dying "ad pacem et fidem 
 *' Domini nostri Regis" at the particular time. 
 
 It is therefore impossible, even if it were a legal proposition capable of any 
 acceptation, to hold that there is the smallest warrant in these documents, historical, 
 legal, or otherwise, for the assertion that James IV. commenced his reign from the 2nd 
 of February, or that any Royal or Official Acts are made to bear date from that day. 
 
 My Lords, the next conclusion that Lord Rosslyn arrives at is this, that " under 
 " the circumstances of those times" (I am reading now from the bottom of page 59) " we 
 " would not expect to find a person claiming under a patent like that now in question" 
 — the patent, 28th of May 1488 — and that accordingly the son of the grantee and his 
 grandson sat in Parliament as Lord Kilmaurs, simply, till 150.5. That "an instrument is 
 " mentioned in the Inventory" of the Glencairn Charter-chest, " dated 20th of January 
 " 1493, and called ' A Declaration by King James, and that the Parliament made no 
 " ' farther inquisition, and so was sufficient to purge Alexander Lord Kilmaurs.' " 
 
 Now I think that here again the Noble and Learned Lord appears to have 
 proceeded upon extremely imperfect information. This instrument of January 1493, I 
 suppose, is the Act of Parliament to which reference has been already made ; but it is 
 quite clear that at this time, when Lord Kilmaurs took his seat under that denomination, 
 there had been no investiture of Lord Kilmaurs as Earl of Glencairn. Your Lordships 
 observe that after the 28th of May, which is the date of the patent, a very few days only 
 intervened until the death of the Earl, who fell at the field of Stirling on the 1 1th of 
 June, and therefore it would appear that his grandson, who succeeded him in his dignity, 
 was not at that time entitled to take up the style and title of Earl of Glencairn, by reason 
 of the want of that inauguration. That inauguration afterwards took place on the oc- 
 casion of the solemnization of the nuptials of the King, namely, in the year 1503, and 
 then we find him taking his seat, and that seat so taken has immediate reference to the 
 antecedent patent of 1488. 
 
 But, my Lords, this will appear a little more conclusively when I come to the 
 next part of my Lord Rosslyn's judgment, in which he takes up the passage from 
 Leland's 'Collectanea,' to which I have already referred. It is in page 60, in a note, 
 and I must beg your Lordships' attention to it. Having arrived at this conclusion that 
 the patent of 1488 must be disregarded,, and then finding a difficulty how he should 
 account for the possession of the Earldom of Glencairn, he takes up this solution of that 
 self-raised difficulty, and he says, " i\ ccidentally an historical account comes to our aid 
 " in this difficulty, the account of the marriage of James IV., given by Mr. Young, 
 " Somerset Herald. This is but historical, it is true, but the herald appears to have 
 
 Y 
 
( 164 ) 
 
 " taken down the occurrences with accuracy, and from day to day. It is found in 
 " Leland's ' Collectanea.' " I might just as well, and with as much reason, take up the 
 novel of ' Kenilworth,' or any such book, and say, ' This is but a Avork of imagination, 
 ' it is true ; but the author appears to have taken down the occurrences with great 
 ' accuracy, and I will desire your Lordships to accept that as the groundwork of your 
 ' judicial conclusion.' " In this account Cuthbert Lord Kilmaurs was a principal figure, 
 " and the Lord Hamilton another. The author describes a tournament where Cuthbert 
 " was a challenger and Hamilton a defender. He afterwards describes the creation of 
 " three Earls by belting. Marchmont Herald proclaims largesse, first, of James Lord 
 " Hamilton as Earl of Arran ; second, of William Lord Graham as Earl of Montrose ; 
 " and third, of Cuthbert Lord Kilmaurs as Earl of Glencairn." 
 
 Now, my Lords, I read this, I repeat, with great pain, because it is most palpable 
 that when the Noble and Learned Lord found himself in the difficulty of having to 
 account for the Earl of Glencairn's possession of the title, having already satisfied 
 himself that this Patent of 1488 could not account for it, and therefore that there was 
 great difiiculty in the way of a decision, was it for one moment warrantable that he 
 should surmount that difficulty by taking up this unauthorised publication, upon which 
 no foundation whatever could be laid, and then saying, fortunately here is an historical 
 account that comes to our aid ? 
 
 Lord Lyndhurst. — Not " fortunately ;" " accidentally." 
 
 Mr. Solicitor-General. — "Accidentally there is an historical account that comes to 
 " our aid ;" and, by the aid of Leland's Collectanea, he leaps lightly over the difficulty 
 that he had raised, and comes to a satisfactory conclusion upon this most important legal 
 question, pronouncing that the Earldom of Glencairn no longer existed, because of the 
 failure of the male line, and that the Claimant therefore was not entitled to it. My 
 Lords, I must confess that I have never found any decision which can be put by way of 
 parallel to this ; and I am quite sure that this alone would be enough to cause your 
 Lordships willingly to forget, and by no means to be disposed to recollect or follow it, 
 as being a precedent or a matter which your Lordships must take as a guide to you upon 
 the present occasion. 
 
 Now your Lordships observe the singular mistake which is involved in this. 
 He takes this as not only proof of the occurrences, but proof of this circumstance also ; 
 namely, that the three Earls Avere created by this very solemnity. He does not at all 
 seem to recollect that there is no instance of any dignity of Earldom being conferred, 
 unless it be accompanied by a charter or writ. He seems to have concluded, not only 
 that the mere ceremony of belting, and the words accompanying it, would be sufficient 
 to create the dignity, but that the oral expression, I suppose, would be sufficient to define 
 the line of descent, that it would create the Earldom as an estate of inheritance, and 
 would, at the same time, define the channel down which that estate of inheritance should 
 descend. The whole passage teems with inaccuracy in point of law, and with irregu- 
 larity in point of judicial decision. Now that ceremony, if we were to accept or to look 
 at it at all, is, as I have told your Lordships, nothing in the world more than the mere 
 ceremony of inauguration. But my Lord Rosslyn has accepted it as if it were the act 
 of the creation of the Earldom, to which, in truth, there is not one single word in the 
 Herald's narrative. If your Lordships take the ' Collectanea ' as evidence of what the 
 narrative was, there is not one word that can be attributed to a desire and an intention to 
 describe the Earldom as being then created. 
 
 My Lords, he goes on further to state that the Parliament of 1505 "was held by 
 " Commission," and Earl Cuthbert was one of the Commissioners. " Little regard to pre- 
 " cedency" is observed " in the ordinary sittings in Parliament ;" but in a Commission a 
 
( 165 ) 
 
 ^^ due precedency would probably be given." In the Commission in question, "the Earl of 
 " Bothwell," created «so" in 1490, "takes place of the Earl of Glencairn ; therefore the 
 latter " did not sit in virtue of the Patent 1488." 
 
 Now, I cannot suppose that the mere accidental order of the mention of the 
 noble Lords who formed the Commission, of precedency among Lords ejusdem ordinis, 
 would be in the smallest degree accepted by any of your Lordships as evidence of the 
 age of their titles. But it is most singular that Lord Rosslyn, who examined and 
 referred to this Commission, should not have observed in it that on that very Commis- 
 sion an Earl, who confessedly was of a date in point of creation prior to Lord Bothwell, 
 and prior to Lord Glencairn, is entered subsequently to those two noble Lords. 
 Your Lordships will find that in page 66, in the second paragraph, where we have copied 
 the Commission, and the Peers are enumerated as " Georgium Comitem de Huntlie, 
 " Archibaldum Comitem de Argile, Patricium Comitem de Boithvile, Matheum Comitem 
 " de Levenax, Cuthbertum Comitem de Glencarne." Now, Matthew Earl of Lennox is 
 postponed to Patrick Earl of Bothwell. Yet Matthew Earl of Lennox was indisputably 
 of a creation long prior to the Earl of Bothwell ; for John Earl of Lennox, the father ol' 
 Matthew, sits in Parliament as Earl on the 6th of October 1488, whereas the first 
 creation of the Earldom of Bothwell was on the 17th of October 1488. That only goes 
 to show your Lordships Avhat superficial attention was given to this subject, and how 
 the merest trifles, which the slightest attention would have shown to be immaterial, are 
 accepted as if they were reasons strong for arriving at this conclusion. The original is 
 given at page 259 of the second volume of the Statutes. 
 
 The next thing that Lord Rosslyn comes to is this singular remark. He says 
 that the charter of confirmation to William Earl of Glencairn, in July 1637, is not to be 
 allowed of any validity, because it is "not in the form of an Inspeximus, but begins 
 " with an assertion, not as usual that the King had seen the former, but ' nos compertum 
 " ' habentes; that such a patent had been granted." I must dismiss that, for I think your 
 Lordships will be of opinion that the expression " nos compertum habentes " is quite of 
 the same validity as if he had adopted the English form, which I am not aware was ever 
 common in Scotland. 
 
 Then, my Lords, comes my Lord Rosslyn's final observation, which is a most 
 important one. He says, " The Claimant in his printed Case stated that the Patent of 
 " 1488 was produced in the action of Reduction relative to precedency against the Earl 
 " of Eglinton, and consequently against some others, the Earls of Caithness, Cassilis, and 
 " Montrose. I have looked into the Decree pronounced in that action, and find this 
 " Patent among the productions, but the Decree is not founded upon it." 
 
 Now whether he really had seen the Decree of 1648 I am quite unable to deter- 
 mine, because a part of the sentence which I am now reading is applicable, clearly, to 
 the Decree of 1610. A part of it, it is true, is applicable to the Decree of 1648, but the 
 statement that the Decree is not founded upon the Patent of 1488 is grossly erroneous 
 whether the Noble Earl intended to refer to the one Decree or to the other, because the 
 Decree of 1610 is also founded upon the Patent of 1488, but the Decree of 1648 is 
 founded upon that , Patent and upon that Patent exclusively. And we are therefore 
 driven to the conclusion that the Noble and Learned Lord must have had something pro- 
 duced to him which was not a copy, nor anything like a correct representation, of what 
 is to be found in this Decree of 1648. And, therefore, my Lords, it is, that upon an ex- 
 amination of this judgment, looking at every paragraph in it, I am obliged to come to the 
 conclusion that there is not one that will bear the test either of historical examination 
 or of legal inquiry, or of examination of the documents to which it refers. If one para- 
 graph relates to an historical matter, it is found to be wrong ; if another relates to a legal 
 
 Y 2 
 
( 166 ) 
 
 matter, as that about the creation of the Earldom by belting, it is found to be grossly 
 wrong ; if another paragraph relates to the contents of an instrument, it is found to be 
 utterly erroneous. I will venture to state that, if your Lordships will do me the favour 
 to take Lord Rosslyn's judgment, to dissect it, and to separate it limb by limb, going 
 through every single paragraph of it, you will not find one single passage of that judg- 
 ment which will bear the test of examination, whether it be historical, or whether it he 
 legal, or whether it be simply critical. 
 
 Now, my Lords, I repeat again, it is a most melancholy thing to find that an 
 adjudication upon such a solemn matter has been made to depend on a judgment such 
 as this, wearing the guise of investigation and research, unchecked in all probability at 
 that time by any one in the House conversant with subjects of this nature, and therefore 
 passing current as if it had been a decision founded upon most strict and accurate legal 
 investigation. I therefore trust that, so far as Lord Rosslyn's judgment is concerned, 
 your Lordships will be of opinion that it is a matter not to be regarded with anything 
 but a feeling of regret, and that it is to be considered as a warranty for arriving at the 
 very opposite conclusions from those that are contained in that judgment, and that, 
 instead of in the smallest degree impairing or injuring the Noble Claimant's case, 
 which I have the honour to advocate, it gives the strongest possible confirmation to that 
 case; because it shows your Lordships that the opposite conclusions are founded 
 altogether in error, and the whole value of this results only in this observation Avith 
 which I dismiss it : — Your Lordships now find as a matter of fact, that the only trace 
 that can be discovered of an attempt to use the Act of 1488, for the purpose of invali- 
 dating a dignity conferred by King James III., was deliberately raised and carried before 
 a tribunal, just as competent, just as exclusive as this tribunal that I have now the 
 honour of addressing, and that it was conclusively decided by that tribunal that that 
 Act had no application, but was utterly useless as an instrument whereby to attempt to 
 reduce the Patent of the 28th of May 1488 ; and that therefore the inapplicability of the 
 Act Rescissory to the reduction of the dignities created by King James III. subsequently 
 to the 2nd of February 1488, is now res judicata, by which your Lordships would 
 probably be bound in point of authority, but to which I think your Lordships would 
 most willingly defer in point of reason and principle upon some few of the grounds 
 which we have collected in this Case in support of the present claim. 
 
 My Lords, I have now gone through, I am happy to say, the slight and very 
 imperfect summary which I have ventured to make of the materials which were much 
 more elaborately brought before your Lordships in the opening of my learned friend 
 Sir FitzRoy Kelly. I have limited myself to the discussion of those portions of the case 
 that bear directly upon the question whether this Patent of 1488 is or is not to be 
 regarded, without more, as annulled by the operation of the Act Rescissory. Strictly 
 speaking, I think the argument would end here. But I observe that in the Case which 
 has been laid upon your Lordships' Table by the Noble Duke who has been permitted 
 to give this information to your Lordships, and this assistance to the Crown officers, he 
 dwells particularly upon this view of the case, namely, that what he denominates the 
 regrant ought to be accepted as evidence from which to infer that the first Duke of 
 ]Montrose regarded his Patent as having been annihilated by the operation of the Act 
 Rescissory, and that it was the confessed and acknowledged invalidity produced by that 
 Statute that caused him to accept and take the regrant made by the Act of Parliament 
 of September 1489. 
 
 Your Lordships will be careful to observe why it is that the Noble Duke who has 
 presented these papers has adopted this form of stating the case. He will not say that 
 there was any resignation of the Patent of 1488 — nay, he distinctly says that he does 
 
( 167 ) 
 
 not believe that there was any resignation of the Patent of 1488; and the reason why 
 that is so put is plain, because, if there had been a resignation by David Duke of Mon- 
 trose of that Patent, the thing resigned would plainly have been a valid existing 
 Instrument, and then the operation of the Act Rescissory would have been altogether 
 out of the question. Therefore the Noble Duke puts it thus — that you are to infer, not 
 a resignation, but you are to infer, from the transaction of September 1489, an admission 
 and an acknowledgment on the part of David Duke of Montrose that his title was 
 struck at by the operation of the Act Rescissory, and that therefore it was that the 
 regrant was made. 
 
 My Lords, I have endeavoured to state the objection as clearly as I can, if I 
 understand it aright, and I have stated it thus, not fearing it, for the purpose of meeting 
 it in the most direct manner. If it is to be considered for a moment that David Duke of 
 Montrose accepted the renewed grant of September 1489, because he considered the 
 Act Rescissory to be applicable to the original grant, but that there was no resignation, 
 why, then, whether David Duke of IMontrose had that impression about the effect of 
 the Act Rescissory or not, matters not a rush. His impression or his conception of the 
 matter will not give the Act Rescissory any legal operation beyond that which it would 
 have in law, without the aid of any such impression or notion on the part of the Duke 
 of Montrose. The material thing that we collect from this view of the case, as presented 
 by the Noble Duke, is the fact that it is not to be inferred, nor is it to be presumed, that 
 there was any resignation of the Patent of May 1488 by David Duke of Montrose, and 
 that the transaction of September 1489 proceeded altogether upon an hypothetical 
 assumption as to what was the operation of the Act Rescissory, because it is not 
 pretended, or for a moment insinuated, that the question whether the Act Rescissory 
 could have any operation upon the Patent of 1488 had ever been tried, or had ever 
 been raised. There is no trace of any such question ever having been attempted 
 to be raised until we come to the contest between the Earl of Eglinton and the 
 Earl of Glencairn in 1648, in which the decision was in favour of the Earl of 
 Glencairn and against the Act Rescissory. Therefore, my Lords, I take it that, if 
 that is the only thing that can be said on the subject, this is abundantly clear, 
 that David Duke of Montrose, having regard to the circumstances in which he then 
 found himself, was so far from making a resignation of his Patent, that he retained and 
 held that Patent, and that the King conferred upon him this instrument, namely, an Act 
 of Parliament, and the subsequent charter, which was to be in conformity with that Act 
 of Parliament, and which I will now proceed to prove to your Lordships, if there were 
 no resignation (as it is conceded there was not), cannot by any possibility be taken in 
 any other light than as a confirmation of the original Patent of May 1488, and that 
 upon grounds which conclusively show that the Parliament who made that confirmation 
 considered, and in effect declared, that the Act Rescissory did not apply to the Patent in 
 question. 
 
 Now, my Lords, if we can come to that conclusion, always bearing in mind the 
 fact that the condition of the argument is this, that there was no resignation of the 
 Patent of the 18th of May 1488, then I will undertake, if I am not using a word of too 
 great presumption, to demonstrate that the regrant of September 1489 is so far from 
 interfering with the validity of the Patent of May 1488, that in point of fact it has 
 only this operation of manifestation, that the Act Rescissory was not in future time to 
 be considered as having any application to that Patent. 
 
 But before I beg your attention to the language of this instrument of 1489, I 
 will, with your Lordships' permission, supply one omission which I find I have "made ; 
 that is, I omitted to contrast my Lord Rosslyn's apprehension upon the subject of belt- 
 ing with the recorded judgments of my Lord Mansfield, my Lord Hardwicke, and the 
 
( 168 ) 
 
 Earl of Marchmont, in the case of the Cassilis Peerage, — and they contrast in a very 
 singular manner. 
 
 Lord Lyndhursf. — What are you going to read from ? 
 
 Mr. Solicitor- General.— I am reading from a Report of the Case of the Cassilis 
 Peerage, which occurred in the years 1760 and 1764. 
 Lord Lyndhurst. — Where are we to find that ? 
 
 Mr. Solicitor-General. — It is reported in this book, and I will hand in this account 
 of it to your Lordships. This is the Report of it when it came before this House, and 
 we have here recorded the opinions delivered by the noble and learned Lords who heard 
 that case. On the subject of belting I observe that on6 of them says this, " That the 
 " Counsel, in arguing this case, had been guilty of great mistakes, particularly in saying 
 " that a peer could be created in Parliament by cincture — that the cincture was merely 
 " a symbol. It was a general rule there could be no peer without writ ; the creation 
 " in Parliament was all a mistake ; the cincture was merely a symbol. Symbols were 
 " very ancient, and prevailed in all ages ; they are mentioned in the Bible^ in the case 
 " of swearing." Then he goes on to say that the notion that a peerage could be created 
 by cincture, or by belting, was a mere error that could have been borrowed only from 
 some superficial writer. 
 
 Lord Lyndhurst. — That is a Scotch case. 
 
 Mr. Solicitor-General. — It is a Scotch case. Then Lord Mansfield, in page 46 of 
 this Report, gives the language of the Patent, and then he says, " From this there may 
 " be several observations drawn, and particularly that at this time, in 1487, girding with 
 " the sword alone did not make him an Earl ; there behoved to be words of limitation." 
 And he goes on again to deal with the supposition that cincture would be a sufficient 
 ground for presuming the creation of a title ; and he says that is a mistake, and that it 
 can be created by writ only. My Lords, I would beg to add this to the observations 
 which I have made upon the judgment of Lord Rosslyn. 
 
 My Lords, we now come to the last topic upon which I shall venture to detain 
 your Lordships ; and that is the argument arising upon the regrant. I have stated the 
 conditions of that argument, taking them from the Case of the Noble Duke who has 
 been permitted to put in a Case in opposition to this claim ; and I desire to have nothing 
 in the world granted for the purpose of the argument that I am about to enter upon 
 more than the concession that he makes ; namely, that it is not to be concluded that 
 there Avas any resignation by David Duke of Montrose of the Patent of May 1488. 
 With that concession therefore we approach the argument. Now, the first thing that 
 I have to observe upon that concession is this, that Lord Mansfield in this case of the 
 Cassilis Peerage says, "Charters pass periculo petentis; many lands are inserted in 
 " Charters to which the grantee has no title. I take it that nothing can pass by 
 " such right. It is clear the King could grant nothing but what was resigned. Here 
 " the honours were not resigned, and therefore could not pass." And then Lord 
 Hardwicke confirms that in these words — 
 
 Lord St. Leonards.- — What are you quoting from ? 
 
 Mr. Solicitor- General. — I am reading from this separate Report of the Cassilis 
 Peerage Case. I will send it up to your Lordships in a moment. The applications 
 were made to the House on the 31st of March 1760. One of the applications was by 
 the Earl of March, assuming the title of Earl of Cassilis, and he presented a petition to 
 the King, claiming the honours. Sir Thomas Kennedy made a similar application, and 
 the question came on to be debated and considered by this House, and I find that several 
 noble and learned Lords attended the argument; and the judgments from which I have 
 been reading are given first by the Earl of Marchmont, then by Lord Mansfield, and 
 then by Lord Hardwicke. Lord Marchmont and Lord Mansfield I have partly referred 
 
( 169 ) 
 
 to. Lord Hardwicke upon this subject of what could be granted in the case of an Honour 
 says distinctly, — " As the Peerage was not resigned, it could not be granted ; the Crown 
 " could not grant it by Novodamus." Now the argument was precisely correspondent to 
 what we are about to bring before your Lordships. The topic was this — the original 
 grant of the Peerage had come to an end, and there was a new grant by a particular 
 charter, and they relied upon that charter as being a regrant. It was, however, conceded 
 there, as it is conceded here, that there was no trace of any resignation of the original 
 charter. The question, therefore, was, whether it was competent in law to give to a 
 new charter the denomination of a new grant, when you were not prepared to show a 
 resignation of the old one. And upon that question the opinions of these most eminent 
 judges are most distinctly given. They say in so many terms, that it is impossible to 
 hold any subsequent charter, whatever may be its form of expression, as amounting 
 to a new grant, unless you can show the resignation of the antecedent Patent. Lord 
 Mansfield in various parts of his judgment repeats the same proposition. Lord Hard- 
 wicke confirms it in several places, one of which I have read to your Lordships, that as 
 the Peerage was not resigned it could not be regranted by Novodamus. 
 
 We have therefore, my Lords, two propositions with which to approach this 
 regrant of September 1489 — one, that there was no resignation of the Patent of May 
 1488, and another, that there cannot be a regrant if there has been no resignation. But 
 then, if that be so, if those are the principles of law, what is the character and legal 
 denomination and quality which your Lordships are to give to this Instrument of 
 September 1489 ? Why, there remains but one, that it was one of those ordinary charters 
 of confirmation and recognition so common in Scotch conveyancing, whether it be of 
 estates or whether it be of dignities, by which an acknowledgment of the Status of the 
 party is made, and deliberately put upon record from time to time, which are denomi- 
 nated, in fact, charters of progress, and which seem only to propel the estate, to hand 
 down the dignity and to acknowledge it, to accelerate it, and to aid it in its transmission, 
 and which proceed altogether upon a recognition of the validity of the prior title. Your 
 Lordships cannot arrive at any other conclusion ; because, if the thing was not in the 
 hands of the King, it could not be the subject of a regrant. But if there had been a 
 Patent (which is now proved), and that Patent had not been resigned, that Patent was 
 firmly planted in the soil of the kingdom ; it had taken root there as a tree which had 
 not been rooted up, which had not been cut down, and which remained, therefore, firmly 
 planted for the general benefit of the commonwealth ; because every Patent of nobility is 
 supposed to be granted for the general public good, and the whole public is therefore 
 interested in the maintenance of that grant. It is upon that principle that no prescrip- 
 tion runs against it, no length of time or non-enjoyment is listened to for a moment in 
 trying the question of the validity of a Patent of nobility. 
 
 With these observations, my Lords, let us for a moment see what is the effect of 
 the regrant of September 1489. As the Noble Duke, in the papers which he has been 
 permitted to place upon your Lordships' table, frankly admits, if we get over this part 
 of the case, we then get over the difficulty that he conceives to stand in our way. My 
 Lords, I venture with great respect to Say that, instead of this being a difficulty, it is one 
 of those things that I most gladly hail. It is perfectly true that it might be a difficulty, 
 unless you were to approach it with the previous knowledge of the rules of law which I 
 have prepared {sic), with a view to approach this question, from the judgments of those 
 noble and learned Lords to which I have referred in the Cassilis Peerage. Now this Patent 
 of September 1489 is a remarkable recognition of the language of the prior Patent. It 
 is printed in a separate form. If your Lordships will allow me to ask you to take once 
 more into your hands the Supplemental Case, your Lordships will find in a note at page 
 
( 1^0 ) 
 
 131 the two Patents, the Patent of May 1488, and the Patent of 1489, printed in parallel 
 columns ; and the similarity and the congruity of the language between the one and the 
 other become immediately apparent. The King, no doubt, had felt that it concerned 
 him to give a Patent that should bear upon the face of it a different statement of the 
 reason for conferring this dignity from those which were apparent in the Patent of 1488, 
 and therefore I can easily understand why the Crown was desirous of giving this Charter 
 of Confirmation, which should supersede, as it were, the original Charter, but which was 
 intended to occupy the place of the original Charter, and to continue the rights and 
 privileges conferred thereby. Accordingly your Lordships will find that the second 
 Charter follows the former Charter, with exception only of omitting all allusion to the 
 battle of Blackness, and to the circumstance of the dignity having been conferred for 
 assistance given against the faction that was then banded in arms against the King. 
 
 Now the original runs thus in the 8th line of it, — " Et perspeccacius atten- 
 " dentes quod liberaliter, ut debebat, personam suam, suosque nobiles et vassallos, pro 
 " persone nostre et corone tutamine et defensione, nostro etiam honore conservando, 
 " frequenter exposuit periculis cum effectu, et precipue ac novissime contra nostros 
 " infideles ligeos, qui se contra nostram majestatem et vexillum in campo bellico apud 
 " Blakness opponebant." 
 
 The reason for the original conferring of the dignity is omitted in the second 
 Patent ; all the other reasons, as to the particular merits of the family of Crawford, and 
 the individual merits of the person of the particular grantee, are not only carefully 
 recited in the second Patent, but are in point of fact augmented in terms of greater 
 eulogy. The one Patent therefore proceeds altogether on the same grounds as the other, 
 with the omission only of all referenc e to thatparticular occasion which is made one of 
 the reasons for the conferring of the dignity in the Patent of May 1488. Is it possible 
 therefore, remembering always that there was nothing resigned into the hands of the 
 King, for you to attribute to the second Patent any other intention or meaning on the 
 part of the Crown than that it was meant to renew the former one, with the omission 
 only of that particular reason which must have been especially painful to the Crown to 
 bear in mind ? Why, it is perfectly clear that the same reasons existed for the one 
 grant as for the other, and not only so, but your Lordships will find, if you will examine 
 it with a little more care, that the second Patent is particular in its substitution, for the 
 reason given by the first which is omitted, of another reason — and it is a reason particu- 
 larly showing why this dignity should have been conferred upon the House of Crawford. 
 I say the House of Crawford, because the reference is not to the individual merits of 
 David Duke of Montrose, but to the merits of his predecessors, — and the substitution for 
 the allusion to the field of Blackness contained in the one Patent which is adopted in the 
 second Patent is remarkable. Instead of the language in the first Patent, the languao'e 
 in the second Patent is this : — " Idem supremus dominus noster Rex, ex debito sue 
 " regalis magnificencie, volens ipsum David amplioribus prosequi favoribus "ratie et 
 " honoris ; cum itaque predecessorum suorum Crawfurdie comitum digne recolenda 
 " prioritas " — here the abstract form of expression is put for the concrete ; the word " prio- 
 " ritas" is used instead of predecessors — " suorum prioritas" refers to 'his predecessors 
 ' the former Earls of Crawford, always to be held in honour, who, under the title of Earl 
 ' had hitherto held'— it should be " dominationes," not " donationes :" it is here misprinted 
 by accident— ' their aforesaid Lordships from ancient' times.' Now the Kino- wishes, as 
 your Lordships will observe, to honour the particular grantee with greater and ampler 
 favour of grace and honour :— " Rex eundem David, suum consanguineum, volentes ampliori 
 " fulgere dignitate, et Comitis titulum supradictum in majorem excelsioremque mutans." 
 Now, my Lords, translate that by a free translation into ordinary language, and 
 
( 1^1 ) 
 
 it says this : — ' The merits of your ancestors, the Earls of Crawford, are present to my 
 ' mmd •, the particular merits of yourself I here recognise ; I am desirous to change your 
 ' title ; I am desirous that your House should become resplendent with a greater dignity 
 ' and worship ;' and therefore it is that he converts the dignity of the House into the 
 dignity of Duke, changing the title of Earl into the title of Duke— a thing which is 
 described as proceeding upon the merits of the predecessors of the Duke as well as his 
 own, and which therefore shows that the title was to be changed and converted, not for 
 the individual personal enjoyment of the then grantee, to which the King would only 
 have been moved by individual merits, but in order that the House itself might become 
 resplendent with greater dignity, and might continue in the enjoyment of that dignity as 
 long as the House itself should remain. 
 
 My Lords, it is utterly impossible not to observe that the design of this Patent 
 was to substitute a new reason for the grant of the Dukedom for the former reason, 
 which was painful to recollect, on the part of the Crown ; and that the Charter therefore 
 is a mere Charter of Confirmation, bearing upon the face of it an intent to perpetuate the 
 dignity, and to perpetuate it upon grounds which would be more desirable to bear in 
 mind than the grounds upon which it had been originally conferred. 
 
 Now, hitherto the Committee will recollect that I have used the argument from 
 this particular Patent, only by way of rebutting and rendering it impossible to assert 
 that the Act Rescissory was intended to apply to this Patent, for, if the Act Rescissory 
 was intended to apply to the Patent, the owner of the Dukedom must have been under 
 the Royal disfavour, he must have been a person that was distasteful and unacceptable 
 to the Crown. But how can any one for a moment say that the Act Rescissory was ever 
 dreamt of as being applicable to David Duke of Montrose, when we find him made the 
 especial object of his Sovereign's favour, and when we find these laudatory expressions 
 contained in a Charter which, as I humbly submit to your Lordships, is intended to be 
 a recognition of his dignity, a confirmation of that dignity, altering the former 
 Charter only to the extent of substituting different grounds for the Royal grace and 
 favour, but in all other respects continuing and perpetuating the original grant ? My 
 Lords, it can have no other effect. It cannot be a new grant ; for there was the dignity 
 planted, which had never been resigned or rooted up. It could not confer a new Duke- 
 dom, for the Dukedom already was in existence. And, therefore, there is no room to 
 give it any legal force or operation, except the mere ordinary force of a recognition 
 and an acknowledgment by way of confirmation of an existing dignity which is 
 now again put upon record, and which the King not only recognises, but recognises 
 with pleasure, and is desirous of adding additional reasons of his own for that act of 
 recognition. 
 
 Now, my Lords, observe that this conclusion, which is plainly apparent on the 
 face of this instrument, is still further confirmed by the latter part of it. For after we 
 have gone through the words which I have just read, we get to the same expressions 
 of creation again : " Ducem de Montross, ex suis certa scientia, potestatis plenitudine, et 
 " gratia speciali, sublimavit, fecit, creavit, et de novo erexit in Ducatum, Ducatusque 
 " nomine et prerogativa volens ipsum gaudere et potiri secundum formam et tenorem 
 " carte dicti Domini nostri Regis dicto David Duci de Montross super premissa con- 
 " ficiende." Therefore, my Lords, we have here a recognition of the existing Dukedom, 
 and in language appropriate to a confirmation,— remembering always Lord Hardwicke's 
 and Lord Mansfield's expressions, that a new dignity will not pass by a clause of Novo- 
 damus, where there has been no resignation. 
 
 Now your Lordships are very well aware of the rule of Scotch conveyancing as 
 to these clauses of Novodamus. I have already adverted to that peculiarity in the Scotch 
 
 Z 
 
( 1^2 ) 
 
 law, namely, Charters of Confirmation, Charters by Progress. Ordinarily speakino-, a 
 common Charter by Progress has not added to the dispositive clause the peculiar clause 
 which is called the Grant by Novodamus, but many Charters, as your Lordships well 
 know, have got the grant; and commonly speaking, in ordinary conveyancing, the 
 Grant, the Novodamus clause, is put in when the party seeking the confirmation is 
 desirous to have some difficulty or some defect cured, and the clause of Novodamus is 
 put in for that purpose. In many Charters of ordinary confirmation that clause is 
 nevertheless to be found. However, what I am here dealing Avith is this — that in this 
 particular Charter there is a clause recognizing the existence of the Dukedom, and it is 
 impossible to say that the clause of Novodamus was a new grant for the reasons 
 assigned by Lord Mansfield and Lord Hardwicke, that there cannot be a new grant of a 
 Dignity, unless the Dignity has been previously resigned into the hands of the King. 
 Now no man can be at all conversant with Scottish instruments without observing and 
 knowing as a fact, that wherever an instrument proceeds upon a recognition, or 
 wherever an instrument of regrant proceeds upon a forfeiture, the greatest care is taken 
 upon the face of the instrument to state the fact of the resignation or the fact of the 
 forfeiture. That is either done by a narrative contained in the instrument, or by that 
 peculiar clause known to Scotch conveyancers, which is technically denominated the 
 qucequidem clause, which is a clause of repetition subjoined to the description of the 
 subject of the grant, giving the history of the antecedent enjoyment of the grant, and 
 particularly referring to the instrument, which is either the instrument of recognition or 
 the act of forfeiture, and which accounts for the subsequent grant coming to be disposed 
 of in the manner apparent upon the grant itself. In a mere Charter of Confirmation it 
 is not the habit to do so, but in a Charter of Confirmation of Novodamus it would be the 
 habit to do so. 
 
 Mr. Attorney-General. — We are told exactly the contrary. 
 
 Mr. Solicitor- General. — I shall wait to hear what my learned friend the Lord 
 Advocate shall say upon that point, and whatever he says upon that point I will most 
 implicitly submit to. 
 
 Lord St. Leonards. — You are now taking rather a new ground. I understand you 
 now to be arguing that this Act of September 1489 operated simply as a confirmation of 
 the admitted existing Dukedom, which you say had never been resigned ; and therefore 
 although it talks of de novo erexit, you say it is not a new creation, but it is a con- 
 firmation. The way in which I understood it to have been argued before was this, that, 
 inasmuch as this Act of Parliament was to have effect given to it by a charter, althouo-h 
 that charter was not forthcoming, we were to suppose that words of inheritance had 
 been annexed to this new grant of confirmation, because of course you observe that the 
 original patent does most carefully make the Dukedom hereditary, to go in all time in 
 future. But there are no words of that import, no equivalent words, to be found in this 
 charter, which you call a charter of confirmation. I only want to know exactly the 
 grounds upon which you are now arguing. 
 
 Mr. Solicitor- General. — Your Lordship has most correctly apprehended my 
 meaning, but I am coming to the second proposition. I, first, want to prove that this is 
 a charter operating as a mere acknowledgment and recognition of an existing thing which 
 it confirms in all its integrity. And then I proceed to the second proposition, which is 
 this, that this Act of Parliament, or warrant, or whatever it is, is a leading and "■overning 
 instrument, and that the Carta, or Charta, or Litera for which it is the authority ought 
 
 to have been worded and conceived in a manner corresponding to that authority, and 
 
 that if your Lordships find, therefore, the Litera or Carta departs from the authority of 
 
( 1^3 ) 
 
 the governing instrument, you have a right to correct that Carta or Litera by the 
 authority of that governing instrument, and to determine that the Litera ought to have 
 abided by that instrument, and not to have departed from it. The vray in which 
 I mean to apply it is this : you see that the authority for the Carta to be made is 
 alvrays contained in the latter part of the warrant, and it runs thus,— " Secundum 
 " formam et tenorem carte," according to the form and tenor of the Carta, " dicti 
 " Domini nostri Regis," of our aforesaid Lord the King, " dicto David Duci de Montross," 
 to the aforesaid David Duke of Montrose, "super premissa conficiende," to be 
 granted upon the footing of the above premises. That is the meaning of 
 the words " super premissa." It frequently occurs that it is simply " desuper 
 "conficiende," that is, to be made from the materials above, literally to be con- 
 structed or to be written from above, namely, that what is contained in the 
 warrant is the instruction and the authority for the Carta, and that the Carta 
 ought to be worded and composed in strict conformity with those instructions. And 
 I proceed, therefore, to connect the two arguments thus:— If I am right in my 
 position, which is nothing more in the world than borrowing from the dicta of Lord 
 Hardwicke and Lord Mansfield ; if I am right in saying that where there is no resig- 
 nation there can be no regrant ; and if then I am right in saying that this instrument 
 becomes a mere recognition of the existing title, then I say, that, although the instrument 
 is an authority for a new Carta, the Carta ought to have been made in conformity with 
 this instrument. Therefore the Litera or the Charter to be granted ought to have been 
 a Charter framed in conformity with the existing right to the Dukedom, and that there 
 was no warrant, no right whatever to reduce the Dukedom down from being an estate 
 of inheritance to an estate for life. 
 
 Lord St. Leormrds. — There would be this difficulty in that argument : supposing 
 the grant was now on the table of the House, and supposing that it did not follow the 
 Act, that is, that it was not as ample as this Act would authorize, could you have argued 
 that, because the Crown had the power to grant more, but had granted less, that, there- 
 fore, upon that ground we should be at liberty to read that grant as if the Crown had 
 done all that the Act of Parliament had enabled it to grant ? 
 
 Mr. Solicitor- General. — That, my Lords, is a difficult question to answer without 
 a distinct authority of precedent. It is a thing upon which I could not presume to give 
 an answer, unless I could refer your Lordships to a distinct authority ; but I understand 
 the law to be this, and I have endeavoured to express it thus : — The warrant for a 
 charter ought to be pursued in the language of the charter. If the charter varies from 
 the warrant, in law the warrant is the governing instrument. I am not prepared to 
 tell your Lordships that I could refer you distinctly to an authority to this effect^ that 
 if this House were to find the Carta to vary from the warrant, it would be authorized 
 to accept the warrant and to disregard the (barter. I am not aware of any such prece- 
 dent ; but all that I contend for is, that undoubtedly that authority under which the 
 charter is made out, and which it ought to follow, is the instrument which certainly 
 should regulate the charter, and which must be taken, therefore, in the construction of 
 the charter. 
 
 Lord St. Leonards. — If this Act of Parliament required, in order to give effect to 
 the intention expressed, that a charter should be executed (which it seems to do), and if 
 the grant of the Crown were not carried to the full extent of the intention expressed in 
 the Act of Parliament, would it be in the power of this House to say that the grant of 
 the Crown should be enlarged by any construction arising from this declaration of the 
 previous intention ? 
 
 Z2 
 
( 1^4 ) 
 
 Mr. Solicitor- General. — My Lord, I am fearful to answer that question. I am 
 not prepared to answer it. 
 
 Lord St. Leonards. — It would be difficult to answer it. 
 
 Mr. Solicitor-General. — I should be sorry to give a further answer to it without 
 some further knowledge upon the subject. Fortunately, in this case the question does 
 not arise, as I shall presently show. 
 
 Lord Lyndhurst. — This is a re-grant by an Act of Parliament. Does it therefore 
 come within what was said by Lord Mansfield or Lord Hardwicke ? It is not a re-grant 
 by the Crown, but it is a re-grant by Act of Parliament. It is a re-grant, giving a 
 different estate. 
 
 Mr. Solicitor- General. — That is the question. It is quite clear, I take it, that if 
 you take this to be an Act of Parliament, Parliament would govern itself by the estab- 
 lished law ; because if you are to ascribe to it some different operation from that which it 
 would have if it had been a mere instrument, and not an Act of Parliament, then you 
 must give to the Act of Parliament the operation of annulling the existing grant which 
 has not been resigned. It is impossible to come to that conclusion. Either you take 
 the Act of Parliament, and construe it upon the principle which would be applicable to 
 a simple grant ; or, if you think it is to be taken in a different light, you must ascribe 
 to the Act of Parliament the effect of annulling an existing grant. 
 
 Lord St. Leonards. — The difficulty of holding this to be a Confirmation, as you 
 are now arguing, is, of course, manifest upon the face of it. In the first place, the Duke, 
 as you style him, is there referred to as "the Earl " upon the face of that very charter; 
 and then there is a new erection in words of that Earldom into a Dukedom, without 
 any words of inheritance or perpetuity, or any hereditary words. 
 
 Mr. Solicitor-General. — I do not think that in peerage law the circumstance of 
 the grantee being named by the original title, upon which the former investiture with 
 the Dukedom may be considered to have been conferred, creates much difficulty, 
 because all these grants of Confirmation go back, as it were, in theory^ to the original 
 title, and they make it as if it were a new investiture, being in reality nothing in the 
 world more than an acknowledgment and confirmation by this theoretical retrospect of 
 the state of things existing at that time. 
 
 Lord St. Leonards. — Without reference to Peerage law, looking at the mere 
 construction of a grant, if a Dukedom exists or had existed at a former time, and a new 
 charter is granted intended to confirm that Dukedom, it would surely have referred 
 to the man as the Duke, although it might give him his other Titles, and then have 
 confirmed the Dukedom. No one can dispute that in this case there is a question 
 whether the Dukedom existed or not. I am not now speaking of the validity or in- 
 validity of the Rescissory Act, but no one can dispute that there was a question about 
 the validity of the Dukedom. Then we have a new erection of a Dukedom, in which 
 he is styled "Earl." Can that in fair construction be deemed a Confirmation of the 
 original Dukedom? 
 
 Mr. Solicitor- General. — ^One mode of answering the question which your Lord- 
 ship has done me the favour to put to me, would be this : — If it be not so what is it ? 
 You must give some explanation of it. 
 
 Chairman. — It appears to me that it was a sort of compromise between Parlia- 
 ment and the Earl. The Parliament appear to have held, or to have wished to have it 
 held, that the Act Rescissory was effectual, and they would not admit it to be otherwise 
 and they did not choose to admit the Earl of Crawford to take his seat in Parliament 
 as Duke of Montrose. He, on the other hand, probably held that he had a right to take 
 his seat as Duke of Montrose. They did not desire that question to be tried as to the 
 
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 validity of the words in the Act Rescissory, "prejudicial to our Sovereign Lord and 
 " to the Crown that now is," they being in point of fact excommunicated, and the whole 
 question being a very awkward one to have brought to actual judicial decision, The 
 consequence was that they passed this Act of Parliament, enabling the King to create- 
 him de novo a Duke, and in the Act styling him " Earl of Crawford." He may have 
 been very glad to accept this or to allow it to be done. I do not know what the effect 
 of the acceptance of it would be upon the original patent, but I imagine that that was 
 the view that the Parliament had in passing this Act of September, 1489. Then, in 
 the following February, you see they pass another Act, setting up the Act Rescissory 
 in a certain degree as against lands, heritages, and those things, omitting titles. There- 
 fore, they were endeavouring in every way to sustain the Rescissory Act. But at the 
 same time, whether the effect of that is not an admission that from the first they 
 doubted the force and validity of that Act Rescissory, I think may be argued by the 
 other side. 
 
 Lord Lyndhurst. — I do not think it was an act of compromise, on account of the 
 uncertainty of the thing. I think it was a grant in a different form. 
 
 Mr. Solicitor- General. — That would be a very reasonable conjecture, my Lord, 
 and I am not at all indisposed to accept it, if your Lordships will do me the favour 
 to observe that it is a mere conjecture, because there is not the slightest historical trace 
 that any body ever claimed to apply the Act Rescissory to David Duke of Montrose. 
 There is not the smallest trace of any question ever having been raised, you cannot 
 put your finger upon any particular in the history of the times, or upon any one of these 
 documents, in which anybody ever challenges the possession of the title of the Duke of 
 Montrose. 
 
 Lord Chancellor. — Do not the documents themselves show it ? 
 Lord Lyndhurst. — There is a regrant by Act of Parliament, which implies the 
 power to alter it as they thought proper. 
 
 Mr. Solicitor- General. — I do not at all care about taking it in that light, because, 
 if you look at it in that light, you would be obliged to concede to me as clear matter of 
 fact and of law that there was no surrender of the Patent of 1488 ; and then it is clear 
 matter of law that if a Peer, who has an hereditary right, accepts from the Crown a 
 grant of an inferior dignity, or of a more limited dignity in point of duration, he does 
 not in the smallest degree impair the legal integrity of the original peerage. In the case 
 of one of the Noble Lords now j)resent, your Lordships will remember that particular 
 circumstance occurred. And if, therefore, it be put that, as between the Parliament on 
 the one side, and David Duke of Montrose on the other, David Duke of Montrose said 
 to them, supposing for the moment the conjecture of your Lordships to be an actual 
 historical fact, " Well, admit that I am David Duke of Montrose for life," and that they 
 then confirmed to him the possession of his title for his life, without question, but that 
 he neither surrendered the patent nor did they revoke the patent, nor is the patent legally 
 annulled, then I say this act on the part of David Duke of Montrose will not in the 
 smallest degree impair or affect the title of those who claim under the limitation of that 
 original Patent. What I am certainly desirous of doing is this, of treating this thing, 
 which no doubt has the appearance of an Act of Parliament, but which is nothing 
 in the world more than a grant made through the medium of an Act of Parliament — 
 
 Lord Lyndhurst. — It is very convenient that what occurs to Noble Lords should 
 be suggested to you, that it may receive answers from the counsel at the Bar. 
 
 Mr. Solicitor- General. — I am very much obliged to your Lordship. It does not 
 in the smallest degree interfere, but rather assists the progress of the argument. But, 
 having dealt with that, your Lordships will permit me to return to the course I was 
 
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 pursuing, and to beg of your Lordships to adhere to what is actually the fact in point of 
 evidence, because, although I am not at all unwilling to try the result of any reasonable 
 conjecture, such as that very plausible theory which has been just suggested by one of 
 your Lordships, yet, in point of fact, we must not imitate Lord Rosslyn in substituting 
 suppositions and fictions for realities, but we must deal with the case according to the 
 realities that present themselves. Now I cannot, with great deference, imagine any 
 difficulty in the way of regarding this grant of September 1489 upon the principle that 
 I was applying to it, except that which has been suggested by one of your Lordships, 
 that it might have a different construction when regarded as an Act of Parliament. 
 But, if so, if your Lordships should say that it is to have a different construction as an 
 Act of Parliament, then you must attribute to it a different operation ; you cannot give 
 it a different construction without making it operate as an Act of Parliament upon the 
 prior Patent. Now how does it operate upon the prior Patent? It operates in no 
 conceivable way, my Lords. In the course of our case, which is a great repository of 
 learning — I wish I had had time to have made myself thoroughly acquainted with it, in 
 order to do full justice to this claim — we have accumulated a vast mass of instances of 
 proofs that are given, in order to show to the House that there is no case of resignation 
 or forfeiture, according to ordinary principles, that would not be noticed upon the face 
 of the instrument dealing with the subject matter of the original grant by way of new 
 creation, or conferring a new estate. 
 
 Lord Brougham. — I quite agree with you that this Case is a great repository of 
 most curious and important learning. Whatever may be the decision, no one can doubt 
 that it does the greatest credit to the learning as well as to the industry of those who 
 have prepared it. 
 
 Mr. Solicitor- General. — That is applicable in a remarkable way to the Cases on 
 both sides. I think, my Lords, the Supplemental Case which we have produced on the 
 part of the Claimant does to the knowledge, industry, and talent of my learned friend 
 Mr. Riddell, who has been the author of it, the greatest possible credit ; and I am the 
 mere mouthpiece of a very small portion only of the materials that are collected there. 
 My Lords, in page 93 there is a distinct reference to a matter which, I think, bears upon 
 the subject that we are now considering. It is at the top of page 93. The statement 
 that is made in the Case, with a variety of references to confirm it, is this, " That it is 
 " the special practice in Scottish Peerage Claims to demand production of the Warrants 
 " of Patents or important conveyances founded upon, in order to ascertain whether the 
 " latter have been duly authorized by the Sovereign, so indispensable in matters of 
 " dignity, and this in consequence of certain liberties frequently taken by the Clerks of 
 " Chancery in the extension of such patents and conveyances ; for example, the warrant 
 " or signature under the sign manual of the Patent of the Marquisate of Annandale, 24th 
 " June 1701, only bears to be to the patentee and his 'heirs male whatsoever.' But in 
 " the Chancery in Scotland it was deemed proper to assert this adjunct, ' illi in suis 
 " ' prediis et statu omni tempore futuro successuris,' which ex terminis (however null 
 " owing to its not being duly authorized) yet qualified and controlled the limitation and 
 " gave it a different import." 
 
 Then, my Lords, there is a reference to another example in the Charter of the 
 
 Roxburghe estate, and then another Charter in the case of the Oxenford estates : " Such 
 
 " irregular and undue practices could not but induce vigilance and scrutiny in such points 
 " in Scottish peerage claims." And then it is said in the Roxburghe case, " When the 
 " original Patent (1646), which regulated the descent of the Earldom of Roxburo'he and 
 " of the Dukedom also (by reference in the Ducal Patent in 1707), was adduced the late 
 " Lord Lauderdale was not contented with such production, but demanded the production 
 
( 17? ) 
 
 " also of the warrants, in order to ascertain whether the conveyance was actually authorised 
 " by the Sovereign, which demand induced much investigation as to peerage warrants." 
 
 One of your Lordships, the Noble and Learned Baron sitting on the left of the 
 Lord Chancellor, will observe that this has been selected in order to enable me to reply, 
 as far as the materials exist for 'the purpose, to the question which he did me the 
 honour to suggest to me just now. Then it goes on, " It is upon this ground, and from 
 " the same motive, that the Claimant exclusively founds in like manner upon the primary 
 " warrants of the grant and the investiture of the sheriffdom of Forfarshire in 1488, in 
 " the shape of the Procuratory and the Instrument of Resignation and donation, or recon- 
 " veyance, semel et simul, the only documents which passed under the eye and with the 
 " cognisance of the Sovereign." Therefore it is that I humbly submit to your Lordships 
 that this Regrant of September 1489, construed in conformity with Scottish law, could 
 not have been the grant of a nfew Dignity, for the old existed and was then flourishing. 
 It was no more, therefore, than the recognition of the existence of the old, and that recog- 
 nition being put upon grounds more acceptable and favourable to the Sovereign and more 
 gracious and laudatory to the grantee. 
 
 But now, my Lords, I recur to the point at which I left off", which was this, that 
 if it is to be so regarded, it is a recognition of the existing Dignity, with all belonging 
 thereto. It is a recognition of the estate therein. And then the new charter to be 
 granted should have proceeded upon the footing of this warrant, in conformity with the 
 very terms of the warrant, as well as in conformity with the general law. The question 
 then is : — Did the Carta or the Litera conform to the warrant ? The only mode in which 
 that at present has been answered has been by taking the imperfect statement of it, with 
 abbreviation and blanks, which is found in the Register of the Great Seal. And now I 
 ask your Lordships, bearing with you the rule that I have endeavoured to deduce, to 
 come with me to the construction of that Litera, and to see whether you are warranted 
 in holding that it was a mere grant for life, or whether you are not bound by the rule 
 that it ought to have been in conformity with the principal instrument, namely, the 
 warrant, and whether you are not thereby bound to assume that a portion of it has been 
 omitted, and that what has been omitted would, if it had been there, have reconoiled it, 
 and made it consistent with the original warrant. And if that mode of reasoning be 
 correct — if I am right in the rule that I claim the benefit of, and then if I apply that 
 rule correctly, we shall come to this conclusion, that the abridged entry of the Litera is 
 not at all inconsistent with the supposition of the Litera having been in strict con- 
 formity with the original Charter, which original Charter and the Dignity created 
 thereby is there repeated, simply recognised and acknowledged and confirmed by this 
 instrument of September 1489. Now, my Lords, it is confessed on all sides that the 
 entry of the Charter granted on the authority of the warrant is entered in an imperfect 
 and abbreviated form. My learned friends will, no doubt, say that the Litera professes 
 that the creation was '■'■pro toto tempore vitce suce." Now, it is quite plain that it was im- 
 perfectly entered. The simple question is this, whether it is not a very common form of 
 grant to have a limitation which at first purports to give only a life-rent, which is then 
 followed by a simple limitation to heirs male, or to heirs of the body of the life-renter ? 
 and therefore, even if the Litera had been correctly entered — even if the entry of it were 
 without suspicion — if it was all in regular form, and must be accepted as having been 
 made at the time when it purports to have been made, whereas the contrary is apparent, 
 that it was made at some subsequent time — yet with every presumption in favour of the 
 integrity and authenticity of the entry, the entry as it stands is not at all inconsistent with 
 the original instrument having been worded originally in conformity with the directions 
 contained in the warrant. 
 
( 1^8 ) 
 
 Your Lordships will find in the course of this case that we have given a variety 
 of instances from grants which are precisely in that form, namely, limitations to persons. 
 In No. 5, page 6, at the bottom of the page, where, my Lords, it is said no doubt that 
 the grant is made to Lord Crawford ''pro toto tempore vitce suce" then it goes on by a 
 statement of the property which was included in the "grant ; and then what I want your 
 Lordships particularly to notice before you part with this document is, that the 
 " Tenendum " where the words of limitation are constantly found, is entered only with 
 an " &c.," " tenendum in libera regalitate, &c." In the original Patent of May 1488 
 the words of limitation are found after the " Tenendum," for in page 2 your Lordships 
 will find " Tenendum et habendum ;" then there is a repetition of the things that are 
 granted, " dicto David et hajredibus suis." So that the only exact words of limitation 
 are in the original grant found after the " Tenendum." It is perfectly true that the word 
 " heereditarie " is found in the earlier part. I have therefore a clear right to infer that 
 whatever is warranted by the charter will be found to have been included in the grant 
 after that " Tenendum," because the entry does not profess to be a full entry, or even an 
 entry of the substance, but professes to be made with a blank, for which it refers to the 
 original. Now forms of limitation of this kind are exceedingly frequent in Scottish con- 
 veyancing ; and there was the same practice also in English conveyancing, against which, 
 by reason of its being a common practice, the rule that we call the rule of Shelley's case 
 was originally introduced, namely, the common form of limitation — a limitation to a 
 man for life, with remainder to the heirs male of his body or to the heirs of his body. 
 And then comes the rule uniting the words of limitation, giving to the first taker of 
 the estate for life the estate of inheritance imported by those words of limitation. The 
 same form appears to have prevailed and to have been current in Scotland until a much 
 later time than we find it in England ; and I will ask your Lordships to follow me while 
 I read a few examples of limitation of dignities in page 124 of the Supplemental Case. 
 Let us take the Barony of Altrie, which was a creation of 29th July 1587 to Robert 
 Keith, " pro omnibus sue vite diebus solummodo." That was followed by a limitation 
 to heirs. Then take for example the Viscountcy of Duplin to Sir George Hay — that is 
 a little. below the middle of page 124. How is that expressed? It is to Sir George 
 Hay " pro omnibus suae vitae diebus, et heredibus masculis," for all the days of his life, 
 and to his male heirs. That is at the middle of paragraph 5. Then take the Patent of 
 the 4th of May 1627, the Barony of Napier : — " Domino Archibaldo Napier, militi, pro 
 " toto tempore vitae suae, et heredibus suis masculis." Then there is another instance, the 
 Barony of Forbes, to the grantee " durantibus omnibus suae vitae diebus, et heredibus 
 " masculis." Also the Patent of the Earldom of Home to the grantee " pro toto suae 
 " vitae tempore, suisque heredibus masculis." Therefore suppose that in the Litera these 
 very words " et heredibus suis masculis " had followed the words " pro toto tempore 
 " suae vitae " — 
 
 Lord Lt/ndhursi.— Here it is creating him Duke of Montrose for the whole term 
 of his life, and nothing further. In those instances the creation for the whole term of 
 his life is immediately followed by the addition that you have mentioned. 
 
 Mr. Solicitor- General. — That, my Lord, is perfectly true. The observation that I 
 make is, that the entry in the Litera is plainly an abbreviated entry, because it had the 
 words " pro toto tempore vitae suae ;" and those words are not at all inconsistent with 
 their being followed by words of inheritance. But all that I desire that your Lord- 
 ships should agree with me in is this, that this Litera is entered in an abbreviated form 
 and that the Litera, if it had corresponded with the warrant, namely, the grant of 
 September, 1489, ought to have been made with words of inheritance. 
 
( 179 ) 
 
 Lord Lyndhurst. — I should like to know whether in the cases you have referred 
 to, when you come to the Tenendum, the words are repeated. 
 
 Mr. Solicitor- General. — We will have them examined for the purpose of answering 
 that question. 
 
 Lord Lyndhurst. — Because in the cases you mention the whole estate is set out in the 
 first instance, whereas, in this particular case, you say that part of the estate is set out, 
 and that the rest would be supplied in the Tenendum. That would not be a case similar 
 to these. Therefore we ought to know whether in these other cases the Tenendum sets 
 out the estate a second time. 
 
 Mr. Solicitor-General. — I have no doubt it does, my Lord ; but we will have that 
 examined. All that I press upon your Lordship's attention is, that this Litera ought to 
 have been in conformity with the warrant, that the warrant clearly recognizes the 
 Dukedom, and that the Litera therefore cannot be taken as evidence that the grant is 
 limited to the life of the Duke of Montrose. There is a charter put in to Sir David 
 Lindsay which is precisely in the same form — a disposition to him " pro to to tempore 
 " vitse suae ;" and then that is followed by a limitation to his heirs. 
 
 Lord St. Leonards. — It is no matter of dispute that there have been, and that 
 there may be, such grants. Nobody denies, I imagine, that, following this limitation to 
 him for life according to the Litera, there might have been superadded another limitation 
 to his heirs, or other words equivalent to that. Nobody disputes that. 
 
 Lord Lyndhurst. — It is very material, I think, that we should know whether in 
 these particular cases the estate is repeated a second time ; because if it is not, then your 
 argument fails entirely, because the estate is set out in the first instance in both cases, 
 and here there is an estate merely for life ; whereas in the cases you cite it is an estate 
 for life and a limitation over heirs. 
 
 Mr. Solicitor- General. — The argument against me is this, — that the regrant is only 
 for life, because the Litera says, "pro toto tempore vitee suae." The answer is that the 
 Litera is in an abbreviated form, and that those words are not inconsistent with their 
 being followed by words of inheritance. But then, as my Lord St. Leonards has 
 just observed, it is not disputed that these words are not incompatible with the words 
 of inheritance succeeding them. That is all that I desire, because then I say that you 
 are bound by that warrant of September, 1489, if it bears the construction I have put 
 upon it, to presume that the Litera was in conformity with the warrant ; for you find 
 in the warrant direct words of inheritance, and you are bound to presume that there are 
 such words in the charter. That is the argument. My Lords, having thus stated it, 
 your Lordships will at once perceive the whole materials upon which this argument is 
 founded. And I conceive, with great submission, that it is, if I may venture to say so, 
 correct in all its parts. No man would deny that if the original Dignity was not 
 resigned, it remained. You cannot get rid of a Patent of inheritance, and a title of 
 nobility, unless you get rid of it by attainder, by forfeiture, or by resignation. There is 
 no attainder here, there is no trace of forfeiture, there is no vestige of resignation. But 
 you cannot get rid of it by any implication that the grantee who took the inheritance 
 consented to accept the subordinate grant for his life. Supposing he did, it did not 
 affect the inheritance. Supposing that he consented to be regarded as tenant for life 
 only, that did not prejudice those who take after him. I have a vested right in the 
 Patent of inheritance, whatever may be the submissions or the acquiescence on the part 
 of those who have preceded me ; as long as the Patent remains — and its existence can 
 only be put an end to by one or the other of those legitimate modes — your Lordships 
 very well know that when once a Patent of nobility has been granted, it is, if I may 
 venture to adopt the simile again, as a noble tree planted in the ground, in which all 
 
 2 A 
 
( 180 ) 
 
 the community, the whole public have an interest. And although you may strip it of 
 its leaves, and despoil it of its branches, the trunk remains ; and, unless it be rooted up 
 by some of those modes known to the law, it will put forth its honours again at a future 
 time, and the benefit of it may be claimed hereafter, no matter after what length of 
 period. 
 
 My Lords, many instances have occurred. It is sufficient to cite one in my own 
 time, the Devon Peerage, which was claimed, as your Lordships know, after it had been 
 more than two hundred years abandoned — an abandonment which proceeded entirely 
 upon a false conception ; it comes forth again with renewed lustre, and the circumstance 
 that it had not been claimed, the circumstance that there had been this misapprehension 
 with respect to the title, was not held for a single moment to prejudice the right of him 
 who claimed the benefit of it to bring himself within the limitations of that Patent. The 
 same thing exists with respect to this case. Therefore no presumption, no conclusion can 
 be drawn from this long period of non-claim, even if it were unaccounted for. But it is, 
 as your Lordships are aware, abundantly and satisfactorily accounted for by the circum- 
 stances peculiar to those who followed David Duke of Montrose, who did not find them- 
 selves at liberty or in circumstances to assert their right to their inheritance. My Lords, 
 it is now asserted, and as far as this part of the argument is concerned, I humbly trust 
 that your Lordships will feel persuaded in your mind, that this is not a thing to be lightly 
 passed over, but that it is a thing to be duly, calmly, and deliberately investigated, that 
 there are materials here which demand your Lordships' most careful, patient, and pro- 
 found attention, and I am fully satisfied, and more especially from the kind manner in 
 which your Lordships have had the patience to hear me, that the case will receive the 
 most deliberate attention before this point shall be decided. 
 
 My Lords, I venture to state to your Lordships with reference to the letter which 
 your Lordships have mentioned of Charles II., that we have got now the other letters 
 which complete the correspondence, if your Lordships will permit us to put them in. It 
 is a correspondence relating to the power of Parliament to entertain questions of peerage. 
 
 \^Vide Minutes of Evidence of this day.] 
 
 Mr. Rolt. — My Lords, at this stage of the proceedings, I have to ask your Lord- 
 ships that I may be heard on behalf of the Duke of Montrose, before the case is concluded. 
 It will be for your Lordships to say when, after the Crown Counsel have addressed your 
 Lordships. What your Lordships have decided upon the petition which has been presented, 
 was that we should be at liberty to print papers and lodge them, and everything else 
 respecting the petition is reserved. 
 
 Lord Brougham. — The question whether the Duke of Montrose should be heard 
 or not was' reserved. 
 
 Mr. Rolt.— ivisi so, my Lord. That was reserved. I should be most anxious in this 
 long case not to occupy your Lordships unnecessarily. We have been engaged in this 
 case from the commencement in getting up the papers, and unless it should appear to us 
 that we can usefully address your Lordships, we certainly should not desire to trouble 
 the Committee with any observations. 
 
 Lord Redesdale. — The Committee cannot at present decide anything with re^-ard 
 to hearing counsel on behalf of the Duke of Montrose. They desire that the Attorney- 
 General should now proceed on the part of the Crown. 
 
 Lord Brougham. — (To Mr. Rolt). If necessary you can make your application 
 again if you should be advised to do so. 
 
( 181 ) 
 
 Mi\ Attorney- General. — My Lords, appearing before your Lordships on behalf of 
 the Crown in this case, I feel it, in common with my learned friend the Lord Advocate, 
 to be our duty to offer an active and strenuous resistance to this Claim, under the firm con- 
 viction that it is one that is unfounded and ought not to be admitted by your Lordships. 
 It certainly is a startling thing, to say the least of it, that a claim which for three hundred 
 and fifty years has remained dormant, and in oblivion and neglect, is now for the first 
 time brought before your Lordships for consideration. And although I do not mean 
 to say for one single moment that the lapse of time and prescription will operate to bar 
 a claim to the honours of a Peerage, still I think I am justified in saying that when once 
 a claim such as this is brought forward after so long a period has elapsed, it does present 
 itself under circumstances of considerable distrust, which call upon those who prefer the 
 claim and who support it to make it out by evidence which shall be conclusive and 
 satisfactory to your Lordships. 
 
 My Lords, I quite concur in the view which has been taken throughout the 
 whole of this discussion, that the great question for your Lordships' determination is, 
 whether or not the Act Rescissory, as it is termed, operated to destroy the Patent of the 
 18th of May 1488 ? At the same time, though I admit that that is the great question 
 in the cause, still I cannot help saying that it strikes me that the validity of the first 
 Patent itself, independently of the Act Rescissory, is not established before your Lord- 
 ships in that clear and conclusive manner in which a claim thus revived after so long a 
 period must be considered to require. For it strikes me that the Noble Claimant is in 
 this dilemma. If it be true, as I hope we shall establish to your Lordships' perfect 
 satisfaction, that the regrant of September 1489 was a grant for life, then certainly it 
 does seem, to say the least of it, exceedingly strange that the Duke of Montrose, or the 
 Earl of Crawford, as we may call him, should have accepted the grant of a Dukedom for 
 life, when he had already a charter conferring upon him the dignity of a Dukedom in 
 perpetuity. If the Act Rescissory did not apply, why should he have adopted that 
 course ? It may have been (and I only throw this out in passing, for your Lordships' 
 consideration), that although in the Register of Records there had been a charter granted 
 to him by King James III., yet that under the circumstances of the times that charter, 
 although entered on the register, in point of fact never passed the Great Seal at all. 
 The time was one of turmoil, confusion, and civil war. The Great Seal appears to 
 have been held by two individuals within the short period of a month or two before the 
 death of James III. The time was one of constant turmoil, war, and confusion, and 
 although it may be perfectly true, no doubt, as has been asserted, that the practice at a 
 later period was that only after a charter had passed the Great Seal it should be inserted 
 upon the register, and still the practice was at a later period altered, yet we have no 
 evidence to guide us as to what the state of things was in the year 1488. And we have 
 this remarkable fact, that only a very short time before the death of James III., and a 
 very short time, a week or two, after the grant of this Patent, we have entries of a 
 public nature in which the then Duke of Montrose is styled decidedly only Earl of 
 Crawford, and that by one of the bailiffs acting under and by virtue of the authority of 
 the Duke himself, who was hereditary sheriff" of Forfarshire. 
 
 Lord St. Leonards. — That is open to the observation that probably the Act under 
 which he acted had been executed before the Dukedom was granted. That is a fair 
 observation upon that. 
 
 Mr. Attorney- General. — It is very possible that it may have been so. I do not 
 wish to do more than to call your Lordships' attention to the time at which this Patent 
 was granted, and to the one circumstance which seems to have struck your Lordships as 
 somewhat remarkable, that the entry upon the register of the charter is certainly out 
 
 2 A2 
 
( 182 ) 
 
 of its place in order of date and time, to the very remarkable circumstance of the attesta- 
 tion having been made to refer to the previous charter in which the Earl of Crawford 
 himself is mentioned as one of the attesting witnesses ; but, my Lords, I come to the far 
 more important, the real question upon which your Lordships' judgment will probably 
 depend, namely, as to the effect of the Act Rescissory upon the title thus conferred by 
 the charter of 1488. 
 
 Now a great deal of argument has been bestowed upon the question whether or 
 not this Act was a valid Act of Scotch legislature. It undoubtedly stands upon the 
 book which contains the laws, the Acts of the Scottish Parliament. It has never been 
 rescinded or repealed ; certainly not by name, certainly not by any express enactment. 
 There it stands, and it has been treated by all Scotch lawyers down to the present time, 
 and in the great discussions which took place before the Court of Session upon the 
 contest which arose between the Earls of Eglinton and Glencairn, it was treated as an 
 Act of the Scottish legislature, binding upon all those who were subject to the juris- 
 diction of that Parliament. 
 
 My Lords, it has been said that the Parliament by whom that Act was passed 
 were a body of rebels who had lately been in arms against their lawful Sovereign— and 
 upon that point we have had a great deal of what I cannot help calling declamation, 
 considering the assembly to whom the observations have been addressed. I am not here 
 for one single moment to vindicate the conduct of those who rose in arms against their 
 Sovereign, and through whose rebellious acts that Sovereign lost his life ; but there can 
 be no doubt in the world that the moment that that Sovereign died his son and successor 
 became King of Scotland, and the Parliament, consisting of persons who had been rebels 
 as regards the Sovereign who had recently died, were in reality loyal subjects owing 
 allegiance and giving allegiance to the then lawful Sovereign of the realm. That Par- 
 liament was convened by the King's writs — it was constituted by the King's authority, 
 and it was presided over, as is recorded in these Acts, by the King himself in person ; 
 and therefore — whatever may have been the conduct of those individuals who composed 
 that Parliament, or who formed the leading members, with reference to the King that 
 was gone — as regarded the King then upon the throne, the Parliament was a Parliament 
 convened by his authority, was presided over by himself, it was to all intents and purposes 
 a lawful Parliament of the realm. 
 
 My Lords, similar cases have occurred again and again in the history of our own and 
 of other countries ; indeed, there is one very remarkable instance which immediately suggests 
 itself to every one's recollection — the case of the deposition of King Edward II. We all 
 know perfectly well that the King being seized and imprisoned, a Parliament was con- 
 vened in his name by the Queen, and that Parliament, consisting of those who had been 
 in arms against him, who had deposed him, and who afterwards ended by murdering 
 him, that Parliament set up his son, then a minor, in his stead, appointed that son Regent, 
 and passed a variety of Acts. That Parliament was in very much the same position with 
 reference to the Sovereign as was the Parliament whose acts your Lordships are now 
 considering. But it has never occurred to any one to say that the acts of that Parliament 
 were in themselves illegal, and were such as would not inherently be binding upon 
 all parties who might fall within the provisions of them. Then arose the case of King 
 Richard 11. , who was in like manner imprisoned by the Earl of Lancaster ; a Parliament 
 was called, and that Parliament proceeded to the length of deposing the King and de- 
 claring him to have forfeited his throne. That Parliament also passed a variety of acts. 
 It is impossible to say that King Henry IV. did not acquire his throne by an act of rebel- 
 lion against the legitimate Sovereign of these realms. However, his reign endured for 
 a certain time ; his son succeeded him, and that son was again succeeded by another, until 
 
( 183 ) 
 
 the question of the legitimate rights of these monarchs was raised, and civil war ensued. 
 But during the reign of those three monarchs, who, by the succeeding monarchs of the 
 House of Yorli, were deemed and considered to be monarchs who had no right to reign — 
 Kings de facto, and not Kings de jure — those Kings held Parliaments, and by those Par- 
 liaments a variety of statutes were passed ; but it never occurred to any one to say that 
 the statutes so passed by those Parliaments were not statutes which constituted the laws 
 of the realm, and binding upon the subjects of the country. It is very true that in the 
 first year of the reign of King Edward IV. an Act of Parliament was passed giving 
 validity to certain Acts which had been done, upon the assumption that the Kings under 
 whose authority those acts had taken place were only Kings de facto and were not Kings 
 dejure, and, therefore, had no right or power to confer those rights and grants, or to do 
 any of those acts which had been done. But it never occurred to the Parliament of 
 King Edward IV. to say that the statutes which had been made in any of those various 
 Parliaments which had preceded them, being acts which had been done in Parliaments 
 which had been convened by the Kings de facto, were not Acts of Parliament binding 
 upon the subjects of the country, and which required other Acts of Parliament to revoke 
 them. I apprehend, therefore, that when your Lordships look at the circumstances 
 under which this Parliament was sitting — when you look at the fact that the King, who 
 was then de facto and dejure Sovereign of the country, presided over that Parliament, and 
 gave to it the authority and sanction of his regal presence — there cannot be the slightest 
 doubt that that Parliament was a legitimate Parliament of Scotland, and that its acts 
 were binding upon all persons and all estates. 
 
 But then, my Lords, it is said that even if this were so, this statute in question 
 forms part of a series of Legislative acts which are deserving only of the detestation and 
 reprobation of all loyal subjects of the realm. That they begin by maintaining the rightful 
 character of the conduct which had led to the death of their late Sovereign ; that they justi- 
 fied acts of treason and rebellion ; and that this was one of a series of statutes which were 
 intended to give effect to such perverse views. My Lords, that may be so ; but I appre- 
 hend that it is not, I had almost said, with every possible feeling of respect, competent 
 to your Lordships sitting here exercising judicial or quasi-judicial functions, to consider 
 whether an Act of Parliament shall receive effect simply with reference to the motives 
 of those who passed it, or the character which those persons, in a historical point of view, 
 may be entitled to. If they were then clothed with Legislative power, if this was a 
 Parliament capable of making statutes binding upon the subjects of the realm, then — what- 
 ever may have been the character and conduct of these men as loyal subjects on the one 
 hand, or as traitors and rebels on the other — if they were clothed with Legislative 
 authority, and this was one of the acts of that Parliament, then I say, as a necessary con- 
 sequence, it follows, whatever may have been their motives for passing this Act of Par- 
 liament, and whatever may have been its justice or its injustice, whatever may have been 
 its righteousness or its iniquity, it is a binding act of the Legislature of Scotland, and 
 an act to which your Lordships will necessarily give effect. 
 
 But then, my Lords, some objection has been made by my learned friend the 
 Solicitor-General as to the form of this Act of Parliament. He says that in point of 
 form it is altogether irregular and informal, and that therefore your Lordships should 
 doubt whether this ever was a statute passed. Why, my Lords, no doubt one is some- 
 what embarrassed by the multiplicity of documents, and the quantity of matter which 
 this vast Case involves ; and I can, therefore, readily understand how it is that my learned 
 friend may not have gone beyond the Act of Parliament, the merits of which he was dis- 
 cussing. But in consequence of this objection, I have thought it necessary to turn to the 
 statutes, and to look to the statutes antecedent to this statute in question, and to those 
 
( 184 ) 
 
 which immediately follow it, and I find that the great majority of them are in precisely 
 the same form. It is true that there occur some few of those Scottish statutes in which 
 reference is made to the authority of the King and to the concurrence of the Three Estates 
 of the realm in an act which is passed. But I will undertake to say, that in the great 
 majority certainly of the Acts of the preceding Parliament of King James III. it will be 
 found that there is no reference to the authority of the King, or to the concurrence of 
 the Three Estates ; but that generally, after the entry of the persons who were present, the 
 Lords Spiritual and Temporal, and the deputies of the burghs who were present, and 
 Avho constituted the Parliament, in almost every instance they proceed at once to say — 
 "Here follow the acts and statutes of this Parliament "—and then " It is statute and or- 
 " dained," and so on, exactly as we find it in the Acts of Parliament now under considera- 
 tion. Therefore, there is nothing whatever as regards matter of form which would in 
 the slightest degree impugn the validity of the statute under consideration, 
 
 Then, my Lords, admitting the validity and efficacy of the statute for the pur- 
 pose of the argument, my learned friends go on to contend that it did not apply to 
 the Dignities in question, — that it was not intended to apply to them, and did not 
 apply to them. Now how do they endeavour to make that out ? They say, when 
 you come to look at the wording of the statute, it is found to proceed upon the principle 
 that those Dignities only are to be struck at which may be prejudicial to the King and 
 to his Crown ; and that inasmuch as the Dukedom of Montrose had been conferred upon 
 the Earl of Crawford in consequence of his loyalty and attachment to his Sovereign, and 
 his exertions in the Royal cause, it cannot be held to be prejudicial to the Crown that 
 such a Dignity should be prolonged. My Lords, it is all very well to deal with the 
 matter in this general and abstract way, but when your Lordships come to look to the 
 Act of Parliament, and to look at the circumstances of the times, it is perfectly clear 
 what the object and intention of this Act of Parliament was. There had lately been 
 two rival factions in arms, one against the other, in the conflict of civil war. One party 
 had prevailed, and it was natural that that party should do its utmost to humble and 
 lower the power and pre-eminence of those nobles who had ranged themselves upon the 
 side of the opposite faction. The effect, therefore, of the language of this Act of Parlia- 
 ment is to assume that the Dignities conferred by King James III. in the last months of 
 his reign, while the civil war was raging — which they assert in distinct terms had been 
 granted for the advancement of the perverse counsel which had led to that civil war 
 and to the death of the Sovereign — shall be taken to be prejudicial not to the Crown 
 generally, but to the King " that now is ;" that is to say, to the King and the party by 
 which he was supported. They assume that these Dignities were such as would be 
 likely to be prejudicial to the King — in other words, to the King and the party by whom 
 he had been supported ; and therefore that these Dignities ought to be annulled. But 
 one striking fact, which your Lordships will not fail to take along with you in the con- 
 sideration of this part of the question, is this, — -That it is admitted on all hands that 
 there were but two new Dignities created, and those were the Dukedom of Montrose 
 and the Earldom of Glencairn. I shall show your Lordships presently, notwithstanding 
 all that has been said by my learned friends, upon evidence that will not leave a shadow 
 of doubt in your Lordships' minds, that the Dignity of the Earldom of Glencairn was 
 intended to be struck at, and was struck at, by this Act of Parliament, — because your 
 Lordships have at present only one half of the facts before you upon any part of the 
 case. There were but these two Dignities which had been created within that time, 
 and, therefore, why should the new Dignities, which originated within that period, have 
 been struck at in terms by the Act Rescissory, unless, there being but those two, their 
 intention has been to affect those two ? 
 
( 185 ) 
 
 Now my learned friend Sir FitzRoy Kelly suggested that this was a sort of 
 general provision done by way of precaution, because they did not know what Dignities 
 might have been created. My Lords, they were in possession of the government ; they 
 had the records and the archives of the government in their possession ; they were in 
 possession of the register, which contained a record of all the Dignities which had been 
 granted, which at all events contained a record of these very grants of the Dulcedom of Mon- 
 trose and the Earldom of Glencairn ; audit is to be supposed that they, with all these means 
 in their power of ascertaining what Dignities had been conferred by the King in the latter 
 days of his reign, had not present to their minds the fact that this Dukedom of Montrose 
 and Earldom of Glencairn had been conferred, within the period in question, upon two 
 nobles who had stood by the late King throughout that civil war, who had been known 
 at that period to be endeavouring to upset, and were likely again to endeavour to upset 
 the party which was then in possession of power ! And of course it was an object to 
 them, and they would naturally use every means they could to reduce the powers and to 
 diminish the Dignity and authority of these two great nobles. 
 
 One of my learned friends has been arguing before your Lordships to-day that 
 you are to gather from the terms of the regrant in 1489 that, so far from looking with 
 want of favour and with aversion upon the Dulie of Montrose, the King himself acknow- 
 ledged his loyalty and his merits. That may have been so, my Lords, in 1489, but I 
 think I shall be able to show your Lordships presently reasons why the Duke in the 
 mean time, or the Earl, whichever you call him, had made his peace with the King 
 and the party that were in power ; but that, upon the accession of James IV. to the 
 throne, it was the desire of the party then in power, and who had the King in their 
 hands and used him as their instrument, that it was their object and design to lower, by 
 every means in their power, the authority and influence of the Duke of Montrose, is 
 manifest from that very remarkable document, which was put in by my learned friend 
 for a different purpose, but which I use for this purpose, namely, the Notarial Instrument, 
 in which he complains, and complains in terms of bitterness, of the mode in which he has 
 been compelled to purchase immunity from punishment and the King's favour by 
 allowing himself to be stripped of almost all the offices and possessions which he had 
 previously held ; so that, as your Lordships see, that it was their object to lower the 
 Duke at that time, to reduce him to his former condition, and to deprive him of all 
 those additional Dignities with which he had been invested and that additional estate 
 which had been conferred upon him, is perfectly manifest from his own statement with 
 reference to the treatment which he received. 
 
 Then comes the question whether this Act Rescissory did produce the effect 
 which I humbly submit to your Lordships it was intended to produce. Did it affect the 
 title in question ? That it meets the case in its terms is perfectly clear, because it strikes 
 in terms at all new Dignities which had been created within a specified period, and this 
 Dignity was one of those which had been created within that time. But it is said, upon 
 the authority of a case decided, not in Scotland but in England, namely, the case of the 
 Duke of Norfolk, that, because the Dignity in question was not specified by name, 
 therefore the Act of Parliament failed in effecting that which it was intended to effect. 
 
 Now, my Lords, let us look for a single moment at the case of the Duke of 
 Norfolk, and see whether that is an authority binding upon your Lordships in the present 
 case. Undoubtedly there had been a creation by King Richard II. of a Dukedom of 
 Norfolk : your Lordships are asked to conclude that that creation had taken place in 
 Parliament. I think, when the words come to be looked at, it will be found that all 
 that took place there was that, by way of greater honour and greater solemnity, the 
 King conferred the dignity of Duke upon the previous Earl of Nottingham in the pre- 
 
( 186 ) 
 
 sence of the assembled Parliament. No Act of Parliament was passed upon the occasion ; 
 and it is quite clear that those who gave the decision afterwards upon the case did not 
 consider that the dignity of the Dukedom of Norfolk had been conferred upon the 
 grantee of that dignity by a Parliamentary charter or title, because the very ground- 
 work of their decision in that case, when they were afterwards called upon to decide it, 
 was, that Parliament had had nothing whatever to do with the matter, and that the sub- 
 sequent Act of Parliament, which annulled all the proceedings of that particular 
 Parliament, did not annul the creation of the dignity of the Dukedom of Norfolk, 
 because it was a matter which emanated solely and simply from the Crown, to which the 
 assent of Parliament was unnecessary, and to which the assent of Parliament could not 
 be considered to have been given. 
 
 But then it is said that they also go on in that decision, to which your Lordships' 
 attention has been called, to state that, because this dignity of the Dukedom of Norfolk 
 was not expressly referred to in the Act of Parliament, which annulled the proceedings 
 of the Parliament of King Richard II., therefore that dignity could not be affected by 
 the subsequent Act. But when it comes to be considered, all that that amounts to is 
 this: — The Dukedom was created not by Parliament but by the King. An Act of 
 Parliament comes which annuls the proceedings of that Parliament, but it does not 
 touch the Dukedom because the creation of the Dukedom was not part of those pro- 
 ceedings. Therefore, unless the Act of Parliament annulling what took place in the 
 Parliament of Richard II., had, in addition to annulling the proceedings of that Parlia- 
 ment, distinctly and specifically struck at the peerage conferred by the King in that 
 Parliament, or in the presence of that Parliament, on the Duke of Norfolk, it did not 
 touch the particular case in question. That is the effect of that decision,— and it must 
 not be altogether forgotten that those who gave that decision were taking every possible 
 means, they were having recourse to everything that ingenuity and subtility could 
 suggest, to find some reason for upholding the Dukedom of Norfolk, in order to relieve 
 the Parliament from the extreme difficulty into which it had got, of having to decide 
 between the conflicting claims of the Earl Marshal and the Earl of Warwick. The Earl 
 Marshal and the Earl of Warwick were struggling for precedence •, the matter had 
 been brought before Parliament ; it had occupied the attention of Parliament for a con- 
 siderable period of time ; and at last, wearied out with the dispute, the Commons them- 
 selves suggested that they were aware that the predecessor of the Earl Marshal had 
 been created Duke of Norfolk ; and they suggested, therefore, that he should assume 
 the character of Duke of Norfolk, in order to relieve Parliament from the consideration 
 and decision of the question of precedency between him and that powerful nobleman 
 the Earl of Warwick ; and thereupon these learned persons, considering in what way 
 they can so shape the case as to give effect to the desire of the Commons, succeed in 
 giving effect to that desire, and they do it on what one must admit to be very fair and 
 plausible grounds. But I submit to your Lordships very confidently that that does not 
 touch a case where we have an Act of Parliament directed in express terms, not ao-ainst 
 I admit, the individual dignity by name, but against all dignities passed within a ^iven 
 period. If your Lordships are of opinion, as I apprehend you will be, that the intention 
 of the Act Rescissory was to overturn the dignity in question, I venture to submit to 
 your Lordships that it matters nothing that the dignity was not expressly and specifically 
 mentioned by name. Now let me suppose for a moment that, for some reason stated 
 the Parliament of this realm should think it necessary to cancel and annul dio-nities 
 which had been conferred in a particular period, and that an Act of Parliament were 
 passed declaring, in express and unambiguous terms, that all dignities conferred within 
 a specified and prescribed period should be considered and held to be null and void • 
 
( 18? ) 
 
 would anybody say that such an Act of Parliament, if it received the sanction of the 
 Estates of the realm and of the Sovereign, should be inoperative for the purpose for 
 which it had been passed ? My Lords, I very confidently submit to your Lordships that 
 this Act of Parliament was the act of a Parliament competent to make laws ; that it 
 was an Act binding upon the subjects of the realm of Scotland ; that it was intended to 
 affect all dignities created within the pres(!ribed period; that it does affect those 
 dignities, and that it annuls and destroys them. 
 
 My Lords, I quite concede to my learned friend that it is by no means unim- 
 portant in considering this question to look to the contemporaneous construction which 
 was put upon the statute. At this distance of time, and under the difficulties of the 
 case, it will no doubt afford your Lordships a very safe guide to see how those who 
 passed the Act held it to operate upon the dignities against which we see it was 
 directed, and to see how they treated it, and what was the contemporaneous exposition 
 of the statute. And here I invite your Lordships' attention to the fact which I am about 
 to lay before you. At the very Parliament which passed the Act Rescissory there is 
 reason to believe that the late Duke of Montrose, or as they there call him, the Earl of 
 Crawford, was present. He is appointed upon a commission of the greatest importance 
 — a commission for the purpose of carrying on the functions of Parliament during the 
 prorogation of Parliament — and there we find his name entered as Earl of Crawford. 
 It is suggested by my learned friend the Solicitor-General that he was not himself 
 actually present, — I rather think he was, and for this reason, that I find that after the 
 appointment of that commission there is an express declaration or enactment that if any 
 of the Lords so appointed should cease to be present in Edinburgh others should act in 
 their place. I think that would show that those who wiere appointed and named on that 
 commission were personally present at that time. But, although I should say that that 
 is the fair construction to put upon it, and that it is not likely that they would appoint 
 upon a commission of so great importance an individual who was not present, still I 
 must say that it strikes me very forcibly that it is only a matter of very secondary con- 
 sideration. I care very little whether he was present or not. But I do attach great 
 importance to the mode in which that Parliament who had just passed that Act Rescis- 
 sory dealt with the title of him who had been Duke of Montrose, and who, if the Act 
 Rescissory a]iplied to his case, would then, in the eyes of Parliament, have become 
 simply Earl of Crawford. Now we find that in that very Parliament he is entered 
 upon the commission to which I have called your Lordships' attention as the Earl of 
 Crawford, not as Duke of Montrose. 
 
 Again, my Lords, we find that at a subsequent Parliament which was held in 
 June of the same year — 
 
 Lord Chancellor. — At what page is that commission to which you are referring ? 
 
 Mr. Attorney- General. — It is in the large folio edition of the Scottish Acts, 
 
 page 211. 
 
 Lord Brougham.-— It is not in any part of the papers. 
 
 Mr. Attorney- General. — It is in our Case. There was a subsequent Parliament on 
 the 26th of June 1489. Your Lordships will see the great importance of this question 
 presently, because you will find that from the moment of the regrant Parliament no 
 longer dealt "with the Earl of Crawford as Earl of Crawford, but that in all their 
 dealings with him they treat him as Duke of Montrose. Now in the Parliament of the 
 30th of June 1489, I find this entry—" It was advised and concluded that the Lords 
 " underwritten be of Council to his Highness in the next Parliament," and then follows 
 a list of names, and amongst others we have the Earl of Crawford. 
 
 Now these are the only two parliamentary entries which occur prior to the 
 
 2B 
 
( 188 ) 
 
 regrant. But there are other entries, which are not perhaps quite so important as the 
 entries to which I have just alluded on the rolls of that Parliament by which the Act 
 Eescissory was passed, but which, nevertheless, as entries of great public official bodies, 
 are matters which are worthy of very great attention and consideration from your Lord- 
 ships. My Lords, it appears that in the month of January 1488 the name of the Earl 
 of Crawford came in question before the Judicial Committee of Parliament, known by 
 the name of the Lords Auditors of Complaints. It appears that he had obtained from 
 the late King a grant of the Lordships of Brechin and Navar, and, inasmuch as those 
 Lordships were the annexed property of the Crown, they were affected by Acts of Par- 
 liament which had been passed in one or two of the preceding reigns, and which pro- 
 hibited the alienation by the Crown of those lands which formed part of the Crown 
 property. Being part of the Crown property, these Lordships of Brechin and Navar 
 were given in appanage by Parliament to the King's brother, the young Duke of Ross ; 
 but inasmuch as the Earl of Crawford had got possession of them, and as it would appear 
 he refused to give up that possession, it was necessary to have recourse to judicial pro- 
 ceedings in order to obtain those lands for the benefit of the young Duke of Ross, and 
 accordingly he was cited before the Lords Auditors, and a process is there carried on against 
 him, ending in a Decree that he shall restore the lands. Now throughout the whole of 
 those proceedings, from the commencement to the close, before the Judicial Committee 
 of Parliament, before the Lords Auditors of Parliament, he is invariably styled, not the 
 Duke of Montrose, but the Earl of Crawford. 
 
 Lord Lyndhurst. — When do they terminate ? 
 
 Mr, Attorney-General.- — They terminate before the regrant of the Dukedom. 
 
 Lord Chancellor. — Is this all stated in your Case ? 
 
 Mr. Attorney- General. — Yes, my Lord, this is all stated in our Case at page 18. 
 There is another instance of the same kind about the same time. It appears that on the 
 31st of January and the 3rd of February 1488, he was before the Lords of Council in 
 another litigation in respect of some lands, called the Lands of Donboug. It is in page 
 18 of our Original Case. 
 
 Chairman. — You mean the Case of the Duke of Montrose, I suppose ? 
 
 Mr. Attorney-General. — Yes; I call it our Case, because the materials of the Case 
 have been supplied by the Duke of Montrose. 
 
 Lord Chancellor. — In truth, you are counsel for the Crown, or amicus curice, and 
 counsel for the Duke of Montrose. 
 
 Mr. Attorney- General. —The Duke of Montrose has his own counsel here; but we 
 are addressing your Lordships on the part of the Crown from the materials which have 
 been furnished by the Duke of Montrose. 
 
 Now, my Lords, throughout those proceedings he is called David Earl of Craw- 
 ford — he is never called Duke of Montrose. This is the judgment, "that David Earl of 
 " Crawford does wrong in the occupation of the third part of the lands of Donboug, 
 " because the said David Earl of Crawford failed in his proof that he had redeemed the 
 " same lawfully from the late William Bonar." It is not of any importance to trouble 
 your Lordships with the details or with the merits of the case. All I cite it for is for 
 the purpose of showing that before this.judicial committee of the Parliament of that day, 
 he is at the period, at the end of the year 1488, styled by those high judicial functionaries, 
 not the Duke of Montrose, but still " David Earl of Crawford." 
 
 My Lords, there are other documents of that period to which also I may refer 
 your Lordships, in which again he is still styled by the same title as Earl of Crawford, and 
 which are prior to the regrant of 1489. It seems that one of his ancestors had received 
 grants of pensions out of certain customs and dues of the town of Aberdeen. He received 
 
( 189 ) 
 
 annually 100 marks, and 60 marks, in two pensions out of those customs. We have the 
 account of the Customer of Aberdeen of the 1 1th July 1489, which your Lordships will 
 recollect was two or three months prior to the regrant in September. There is an entry 
 of the payment of 100 marks to " David Earl of Crawford; " but in the year 1490 we 
 get the account of the same Customer, and there he is styled no longer simply " Earl of 
 " Crawford " but " Duke of Montrose and Earl of Crawford." Then we have another in- 
 stance : we find on the rolls of the Chamberlain an account of the customs of the town 
 of Dundee, rendered on the 16th July 1488; and there also there is an entry in the 
 customs' account of a pension of 100 marks to " David Earl of Crawford." " Item, to 
 " Sperdour (a herald) to pass with a letter of the King's to summon the Earle of Craw- 
 " furde, and Johne Ramsay of Corston, to their compts to the Chequer in Stirling." There 
 again he is styled " Earl of Crawford." 
 
 So that, my Lords, here we have the Parliament, the judicial committee of Par- 
 liament, and the Lords of the Council — all these public functionaries, terming him at this 
 period "Earl of Crawford." Now, what have your Lordships, on the part of the 
 Claimant, to set against that ? Why, they have endeavoured to show that after the Act 
 Rescissory the Earl of Crawford, or the Duke of Montrose, as they call him, insisted on 
 his right to the title of Duke of Montrose, and assumed it in certain documents connected 
 with this transaction. The first is an Indenture to the monks of Inverkeithing, in which 
 undoubtedly the monks style him " High and mighty Prince, David Duke of Montrose." 
 Now that is clearly a private document, which never was known in public, and never 
 came to the knowledge of the King. That those monks, who were the objects of the 
 noble Earl's bounty — who were receiving from him an annual payment, for which they 
 engaged to celebrate a mass for the souls of him and his wife — that they should be per- 
 fectly willing and ready to concede to him the title, to which it is perfectly clear the 
 Duke attached considerable importance (a matter upon which I shall make an observa- 
 tion which appears to me of considerable relevancy presently) — that these monks should 
 be perfectly willing to confer upon him that title of Duke does not appear to me, I 
 must say, very much to aflPect the question. 
 
 Then, my Lords, we come to another instrument, the Notarial Protest, which 
 again is one upon which I may make the same remark, namely, that it is entirely a 
 private instrument. It professes to be so. It is prepared by a notary for the private 
 satisfaction of the Duke, as a Protest which perhaps he might at one time or other, if a 
 happy era should present itself make use of, but which is intended for the present to be 
 confined exclusively to the knowledge of those by whom it is prepared, and by whom it 
 is witnessed. It is witnessed by private adherents and retainers of the Duke himself, so 
 that your Lordships would not be disposed to attach much importance. 
 
 Then, my Lords, I come to two other documents, which are certainly of much 
 greater consequence, namely, the grant to Margaret Carmichael his wife, and the instru- 
 ment which was executed when the Duke of Montrose resigned the sheriffdom of 
 Forfarshire. 
 
 Chairman. — We must stop here. We will proceed with the case to-morrow at 
 eleven o'clock. 
 
 \_Adjourned to To-morrow at Eleven d Clock. ] 
 
 2 B2 
 
( 191 ) 
 
 FRIDAY, 29th JULY, 1853. 
 
 Mr. Attorney- General. — My Lords, I was proceeding, when your Lordships' sitting 
 yesterday came to a close, to call your Lordships' attention to those instances which are 
 relied on by the counsel for the Noble Claimant, in which the title of the Duke of Mont- 
 rose was assumed by him {dc) posterior to the Rescissory Act. They are four in number. 
 Two of them I think I disposed of yesterday, by observing that they are entirely of a 
 private nature, namely, the Indenture to the monks of Inverkei thing, and the Notarial 
 Protest, both of which were instruments which could neither come to the knowledge of, 
 nor challenge the observation of, the Crown, nor of any of the public authorities. 
 
 There remain two others, which stand upon a somewhat different footing. Those 
 are, the Grant of Confirmation by the Crown of the grant made by the Duke to Margaret 
 Carmichael, his second wife, upon her marriage, and the Instrument of Resignation, 
 when the Duke of Montrose was induced, by the pressure of the King and the party in 
 power, to resign the Sheriffship of Forfar for the benefit of Lord Gray. It is perfectly 
 true that, in the instance of the grant to his wife, Margaret Carmichael, of an annuity 
 out of certain customs to which he was entitled by an ancient grant to the Earls of 
 Crawford, the Earl of Crawford or the Duke of Montrose is styled " Duke of Montrose," and 
 no doubt there is a Charter of Confirmation by the Crown of the grant so made by him to 
 his Duchess. But upon that it may be in the first place observed, that, although the 
 instrument came under the cognizance of the Crown, it is still more or less in the 
 nature of a private grant, a grant by him to his Duchess upon her marriage ; and it 
 was a matter, therefore, upon which the Crown would not be particular as to the precise 
 terms in which the instrument was framed. 
 
 But it appears to me that all the effect which the counsel for the Noble Claimant 
 seeks to give to that instrument is done away by the fact that, when we come to look at 
 the instrument which thus emanated from the Crown, the original grant emanating only 
 from the grantor, the style of the grantor is changed, and instead of his being termed, as 
 he terms himself in his own instrument, Duke of Montrose, he is styled in the Charter 
 of Confirmation Earl of Crawford, and simply Earl of Crawford. 
 
 Lord Chancellor. — The result is, therefore, that, he having taken upon himself to 
 execute an instrument by the title of Duke of Montrose, the Crown confirms it, but in 
 the Instrument of Confirmation calls him Earl of Crawford. 
 
 Mr. Attorney- General. — ^Yes, my Lord^ as though it had not been deemed worth 
 while to refuse to ratify an instrument of a private nature between him and his Duchess 
 in the terms in which it was executed, but at the same time taking care to guard the 
 Crown against any possible supposition of having confirmed the title in confirming the 
 grant, by being particular to style him by his designation of Earl of Crawford in the 
 Charter of Confirmation. 
 
 But the last case, the case of resignation of the Sheriffship of Forfar, is still more 
 striking^ and so far from amounting to a ratification of the title on the part of the 
 
( 192 ) 
 
 Crown, as is suggested, I submit confidently that it is in effect a repudiation of that 
 assumption of the title. Your Lordships have the case but very imperfectly before 
 you, for it appears by the Scotch law that to a resignation of an office of this kind with 
 a view to a new grant by the Crown to another individual several instruments were 
 necessary. It was necessary that there should be, in the first place, what we might 
 call a Power of Attorney, an Instrument of Procuration, appointing certain procu- 
 rators, who were to make resignation. There was, then, the Instrument in which 
 the Resignation was recorded. Then came the Charter of the Crown to the new grantee. 
 Then came the Precept by the Crown, or by the superior, as the case may be, to his baillies 
 to give seisin; and lastly, the Instrument recording the Seisin of the new grantee- 
 Those five instruments were necessary to constitute a complete resignation and a com- 
 plete regrant. It will be apparent that two of those instruments proceed from the party 
 resigning the office, and the other three from the superior who is granting it anew. 
 Your Lordships have before you only one of that series of five instruments ; and it is the 
 one which is of the least importance, or one of those which are of the least importance, 
 because it proceeds from the party resigning, and does not proceed from the Crown. 
 The only instrument which is before your Lordships is the one which is to be found at 
 page 10 of the Claimant's Case; and I call your Lordships' attention to it more par- 
 ticularly, because I shall show your Lordships, that — although I have no doubt, as this 
 came from proper custody, namely, from the charter-chest of my Lord Gray, it is 
 an authentic instrument, and was actually prepared — it was not an instrument upon 
 which the resignation took j)lace. And I think the fair inference upon the probabilities 
 of the case will be, that it was rejected by the Crown, and some other instruments pre- 
 pared, because it gave him the title of Duke of Montrose. But, my Lords, I think your 
 Lordships have hardly been fairly dealt by. All these instruments, forming part of one 
 common process, ought to have been 2'ut before your Lordships. They were accessible 
 to the counsel and the agents of the Noble Claimant, because, as they have received 
 that document from Lord Gray, they might have obtained the others : we shall put the 
 whole of them before your Lordships, and you will see what an altered aspect the case 
 will then assume. 
 
 This is the Instrument of Resignation ; and it recites that what was done was done 
 on the 6th day of the month of November. It is important to look to that 
 date, because your Lordships will see that it makes it impossible that this 
 should have been the instrument upon which the charter proceeded. Upon the 
 6th of November, " Coram excellentissimo serenissimoque principi ac domino 
 " nostro, Domino Jacobo, Quarto, Dei gratia Scotorum Regi illustrissimo, & c, ac 
 " mei notarii publici subscripti, &c." Then there appears Alexander Home, the 
 " Procurator irrevocabilis, ad infra scripta, magnifici et potentis domini David 
 " Ducis de Montrose ac Comitis Craufurdie, factus et constitutus, &c., per unum 
 " Procuratorium sigillo proprio" — and then it states that he "per imum procuratorium 
 " sigillo proprio dicti Ducis sigillatum, roboratum, et munitum, prout mihi notario 
 " publico subscripto, meis intuentibus oculis, evidenter constabat, documento, viz. ad 
 " resignandum, sursum reddendum, &c. ; et libere deliberandum, nomine et ex parte dicti 
 " David Ducis, totum et integrum suum officium Vicecomitis de Forfar, cum universis 
 " et singulis suis feodis, &c., in manibus iJrefati domini nostri Regis, tanquam domini 
 " superioris ejusdem : quoquidem procuratorio viso, lecto, et in praesentia domini nostri 
 " Regis totaliter intellecto " — Then it goes on to say that the said Alexander Home, as 
 such procurator, " cum omni subjectione famulatus et reverentia, genubus flexis ut 
 " decuit, sedens, totum et integrum dictum officium Vicecomitatus de Forfar &c. in 
 "■ manibus prefati domini Regis, tanquam ejusdem officii domini superioris, donavit, 
 
( 193 ) 
 
 ' sursum dedit, pure simpliciterque, per fustem et baculum resignavit, et deliberavit, 
 ' ac dictum dominum Ducem et suos heredes de dicto officio Vicecomitatus de 
 ' Forfar, he, exoneravitj ac ipsum et ipsos de eodem omnino et imperpetuum quiete 
 inde clamavit." Then there comes what is very much relied on on the other side^ 
 ' Acta erant hsec in camera regia apud castrum de Halis;" and so on. 
 
 That is an instrument upon which great reliance is placed on the part of the 
 Noble Claimant, as showing that the title of Duke of Montrose was assumed in an im- 
 portant and solemn instrument, and upon an important and solemn occasion in the 
 presence of the King himself. 
 
 Now that is the only instrument with respect to the resignation which is before 
 your Lordships. We propose to put in the documents which complete the transaction, 
 and your Lordships will find in the Appendix to the Case of the Duke of Montrose, at 
 No. 2, a Charter, and it comes from the charter-chest of Lord Gray, granted by James IV. 
 to Andrew Lord Gray, of the office of Sheriff of Forfarshire, proceeding upon the 
 resignation by David Earl of Crawford at Perth, dated at Perth, 14th December 1488 : 
 " Jacobus, Dei gratia Rex Scotorum, Omnibus probis hominibus tocius terre sue, clericis 
 " et laicis, salutem. Sciatis quod dedimus et concessimus, ac tenore presentis carte nostre 
 " damns et concedimuSj dilecto consanguineo et consiliario nostro Andree Domino 
 " Gray officium Vicecomitatus nostri de Forfare ; Quodquidem officium Vicecomitatus 
 " fuit dilecti nostri consanguinei David Comitis Craufurdie Domini Lindesay here- 
 " ditarie " — So that it is clear that there he is styled by the King, in a document which 
 emanates from the Crown, Earl of Crawford : " Et quod officium cum pertinentiis dictus 
 '' David, non vi aut metu ductus, nee errore lapsus, sed sua mera et spontanea voluntate 
 " in manus nostras apud Perth, per fustem et baculum et suos procuratores ad hoc legi- 
 " time constitutes, sursum reddidit, pureque simpliciter resignavit, ac tatum jus et 
 " clameum que ad dictum officium cum pertinentiis habuit seu habere potuit pro se et 
 " heredibus suis omnino quiete clamavit imperpetuum ;" and so on. There is therefore 
 not only a distinct statement that this was at Perth, but I shall then show your Lordships 
 by the document which follows immediately upon it that it was granted on the 4th of 
 December, instead of being, as the former Instrmnent of Resignation declared to have 
 been, upon the 6th of November, at Hales. Your Lordships will recollect that the 
 document which I read in the first instance purports to record what was done at Hales 
 on the 6th day of November ; whereas it now appears from the Charter itself that the 
 Charter proceeded upon a Resignation not made at Hales on the 6th of November, but 
 made at Perth upon the 4th day of December of that year. 
 
 Lord Lyndhurst. — Where is Hales ? 
 
 Mr. Attorney- General. — Sixteen miles from Edinburgh, I am informed, my Lord. 
 
 Lord Chancellor. — Hales could not by any extension of language be used for 
 Perth ? 
 
 Mr. Attorney- General. — No, my Lord ; Hales is sixteen miles from Edinburgh, in 
 East Lothian. Perth, as your Lordship knows, is at a much greater distance. Your 
 Lordship sees that the Charter itself, which is produced from the charter-chest of Lord 
 Gray, and which up to this day is the title to the Sheriffship of Forfar, evidently 
 shows that the instrument which has been produced before your Lordships was not the 
 real Instrument of Resignation. That resignation did not take place at Hales, and did 
 not take place upon the 6th of November, but took place at Perth upon the 4th of 
 December. It is not necessary for me to recur to, or to take my stand upon any sup- 
 position that this is not a regular and an authentic instrument. The probabihty is, that it 
 was prepared, not as a record of what actually passed at the same time, but of something 
 which was expected to take place. It was prepared with a view to such a resignation 
 
( 194 ) 
 
 being made at Hales, where the King was probably at that time. Whether the occasion 
 did not present itself, or whether, upon the production of the instrument, an objection 
 was taken on account of the assumed title of Duke of Montrose, which had been struck 
 at by the Act Rescissory, I cannot tell ; but it is clear that the charter did not proceed 
 upon that instrument, and therefore that instrument is without power or authority before 
 your Lordships upon this occasion. 
 
 Then there is another instrument, which is in page 20 of the Appendix ; it is 
 the Precept of the King for giving seisin to Lord Gray upon the Charter which had 
 been just granted. And there again the precept of seisin recites that the office had 
 previously been in the hands of the Earl of Crawford, designating him as Earl of Craw- 
 ford and not as Duke of Montrose. 
 
 What I submit to your Lordships is this, — that, even assuming for a moment that 
 the Instrument of Resignation put in on the part of the Noble Claimant is a genuine 
 and authentic instrument, or one to which your Lordships could attach any importance, 
 still it is only in the instrument emanating from the Duke, as he was pleased to call 
 himself, that you find any assumption of the title of Duke ; but the moment the Crown 
 is called upon to act, in the instrument which proceeds from the Crown you find that^ 
 instead of being styled Duke, the title is cut down to what, no doubt, in the view of the 
 King and of the authorities at the time, was his proper title, namely, that of Earl of 
 Crawford. 
 
 Even if that were not so, I should submit to your Lordships that the arguments 
 founded by the Counsel for the Claimant upon this assumed resignation on the part 
 of the Crown are utterly inapplicable to the present case. They have attempted 
 to show from the authority of Craig, and some other authorities, that it is competent 
 for the Kin^ to rehabilitate an individual who, by attainder, has lost a dignity or 
 honour. Even conceding that which I apprehend is no longer a doctrine which can be 
 maintained, it would not apply to the present Case. The argument upon that doctrine 
 proceeds upon the ground that, the King being the sole fountain of honour, and pos- 
 sessing also the great prerogative of pardon, where an honour is lost by attainder, as 
 the King can pardon and remove the attainder, so the King can remove the dis- 
 qualification of the individual, and rehabilitate him in reference to the honours he 
 has lost. That doctrine has been seriously shaken, and I believe can no longer 
 be maintained as law. In a book of the highest authority, the Report on the 
 Dignity of a Peer, which is received as authority in these matters before your Lordships' 
 House, I find it thus laid down, I believe by a no less distinguished individual than 
 the late Lord Redesdale. At page 7Q of the Third Report, this is laid down 
 generally : — " On all attainders whereby a Dignity has been forfeited, the Crown 
 " has no i)ower to restore the Dignity ; and it can only be restored by Act of 
 " Parliament, either expressly, or impliedly by annulling the attainder ; for by the 
 " attainder it was utterly destroyed and gone, as if it had never had existence, and the 
 " power of Parliament alone is competent to bring it again into existence. The King 
 " may grant a Dignity of the same degree and by the same name ; but the Dignity so 
 !' granted 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." 
 
 I take it to be perfectly clear that, even granting the doctrine immediately relied 
 on by the other side to the fullest extent, as applicable to the case of an honour lost by 
 attainder, that would not apply to the present case, if your Lordships are of opinion that 
 the Act Rescissory did annul and take away this honour. Where an Act of Parliament 
 has annihilated a Dignity it is not competent for the Sovereign to restore it, that is to say, 
 to restore it as ah initio. He may create it anew, but he cannot revive and resuscitate the 
 original Dignity. It has passed away by an Act of the Legislature, and it can only 
 
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 be revived in its original form by an Act of the Legislature. But apart from that 
 doctrine, my answer in the present case is, that in all the acts which emanated from 
 the Crown the distinction is taken between the Dukedom and the Earldom, and though 
 the individual may have chosen to style himself Duke, whenever the Crown is called 
 on to act upon an instrument in which that title has been assumed the party is in- 
 variably styled not by the title which he has assumed, but by his proper title in the 
 acceptation of the Crown. 
 
 Lord Chancellor. — In the present session there was passed an Act of Parliament 
 reversing what cannot be called an attainder, but a Decreet of Forfeiture in Scotland. 
 If that which is the law in England did not apply to Scotland, that Act of Parliament 
 was unnecessary as far as that forfeiture was concerned. I allude to the case of the 
 Earl of Perth. 
 
 Lord Lyndhurst.- — That was a Decreet of Forfeiture, and not an Act of Parlia- 
 ment. It is stated in the Act reversing the attainder that it was a Decreet of Forfeiture 
 by the Court in Scotland. That is a very different thing from an attainder by Act of 
 Parliament. 
 
 Lord Chancellor. — A fortiori, if it was necessary to have an Act of Parliament 
 here to reverse a Decree of Forfeiture, 1689, against the ancestors of the Duke de Melfort, 
 it must be necessary to have an Act of Parliament in the case of an attainder by an Act 
 of Parliament in Scotland. 
 
 Mr. Attorney- General. — Quite so, my Lord. It strikes me, however, that though 
 it may fortify my position, it does not really affect the case. This is not the case of an 
 attainder, but it is the case of the annihilation of a Dignity by an express Act of the 
 Legislature. 
 
 Lord Lyndhurst. — It is not an Act of Attainder properly so called. 
 
 Mr. Attorney-General. — Certainly not. 
 
 Lord Lyndhurst. — It is annulling a former Act. 
 
 Lord St. Leonards. — Does the document in page 10 of the Original Case come 
 out of Lord Gray's chest ? 
 
 Mr. Attorney-General. — Yes, my Lord. 
 
 Lord St. Leonards. — It is stated. Is it admitted ? 
 
 Mr. Attorney- General — We have evidence of it. We shall produce the document 
 before your Lordships, and identify it as coming from the proper custody. 
 
 Lord St. Leonards. — Am I to understand distinctly that all the documents 
 both in the Original Case and the Supplemental Case came out of Lord Gray's charter- 
 chest ? 
 
 Mr. Attorney- General — Yes, my Lord. I have shown your Lordships that, while 
 on the one hand the instances of the assumption of the title by the Duke of Montrose 
 up to the period to which I have now arrived have been either private instruments of 
 which the Crown had no knowledge, or have been, practically speaking, repudiated by 
 the Crown ; on the other hand, the Parliament, the Lords of the Privy Council, and, I 
 may now add, assuming this to amount to a repudiation on the part of the Crown, the 
 Crown itself invariably, up to the time to which we have now arrived, between the pass- 
 ing of the Act Rescissory and the period of the re-grant, refused him the title of Duke, 
 and when they spoke of him or treated with him treated him as Earl of Crawford. 
 
 I now come to the period of the re-grant. We find that in the Parliament 
 holden in September 1489, the proceedings commence by an Act of Parliament enabling 
 the King, if I may use the expression, to grant anew the title of Duke of Montrose. 
 Circumstances had in the interval very materially altered. The King's Government 
 was at this time very firmly established, but at the same time it was not altogether 
 beyond the reach of attack from the adverse party. There had been in the course of 
 
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( 196 ) 
 
 the year an insurrection of a somewhat formidable character. There still remained 
 many adherents, and very powerful adherents, of the former King, James III. ; and there 
 were parties who, having adhered to him, looked with detestation upon the possession of 
 power and of the Government by the party to whom they had been opposed in civil war. 
 Among others. Lord Forbes raised the standard of insurrection. He gathered a con- 
 siderable body of nobles around him, but it ended in their being defeated and routed by 
 the power of King James IV. 
 
 In that insurrection, and in the conspiracy which preceded it, the then Earl of 
 Crawford, formerly Duke of Montrose, took no part ; and by his remaining perfectly 
 quiet, and taking no part in the proceedings of that day, he may be considered as having 
 given in his adhesion to the new Government ; and the probability is, that he had made 
 his peace with the King. He had been stripped of his appointments, and he had, 
 apparently with willingness and resignation, although not without secret murmurs and 
 protests, resigned his office of Sheriff of Forfar into the hands of the King, who had 
 given it to another of his favourites. There seems to have been a disposition on the 
 part of the Crown to endeavour to seciu-e his adhesion to the new Government. Pro- 
 bably without being willing to restore in perpetuity the Dukedom of Montrose, there 
 was a disposition to conciliate him ; and as his pride and feeling would be naturally 
 much mortified at having had to resign the character and title of Duke which he had 
 previously enjoyed, a species of compromise took place by which he should be created a 
 Duke, not in perpetuity, but only for his own life. Thereupon Parliament, upon its 
 meeting, passed an Act which, perhaps, was not altogether necessary, for one would think, 
 upon the constitutional theory, it would have been competent to the King not to revive 
 the original Dukedom, but to create a new one ; but still, as the annulling of the former 
 Dukedom had taken place by virtue of an Act of the Legislature, it was, I presume, 
 thought more decent and proper towards Parliament that the new creation by the King 
 should be preceded by an Act of Parliament, and accordingly an Act of Parliament was 
 passed. That Act of Parliament says, that the King may de novo create the Dukedom of 
 Montrose by a charter hereafter to be completed ; accordingly we find that a Litera or 
 charter, or whatever it may be termed, immediately followed upon the passing of this 
 Act of Parliament. The Litera itself, like many of the more ancient charters of Scotch 
 peerages, is no longer forthcoming ; but we have an entry of it in the Registry of Acts 
 which pass the Great Seal. 
 
 Now we, on the part of the Crown, contend, first, that this was a genuine instrument, 
 and, secondly, that it narrates and records the grant of a Dukedom for life and for life 
 only. We are met by a twofold argument. Your Lordships are told, in the first instance, 
 that this was not a genuine but a spurious document, interpolated, one of my learned 
 friends went so far as to suggest, at some after period by a hostile party. That is the 
 first argument, — and then, with some degree of inconsistency, as it sti-ikes me, having said 
 before that it was an interpolated and spurious instrument, they turn round and say, 
 No, it is all very well, but it does not contain all it ought to have contained ; it has been 
 inserted in the Register in haste, and in an abridged form ; it has omitted somethino- which 
 your Lordships are to supply, and then it will become a perfect instrument, and one 
 upon which the Claimant may take his stand in his assertion of this claim. I submit 
 that my learned friends are wrong in both instances. This is a genuine instrument and 
 it is an instrument containing a grant for life, and for life only. 
 
 With regard to its genuineness, though it be true it does appear at the foot of a 
 page in the Register, and though it be true it has the appearance of being somewhat com- 
 pressed into a small space, and does not appear in its exact order, still we know perfectly 
 well, and it appears from numerous instances, that those instruments were recorded in 
 
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 the Register as they were brought in, and not always in their order of date. Therefore 
 there is nothing remarkable in the circumstance of this not appearing in the order of 
 date. But I say, my Lords, that the supposition of its being a spurious and interpolated 
 instrument is a purely gratuitous assumption made by those who do not like the tenor 
 and contents of the instrument. It is quite clear that it is of the epoch in which it finds 
 its place ; it was not introduced at any subsequent period, and no one can suggest a motive 
 why it should have been so introduced. After the death of the first Duke of Montrose 
 no one to the present hour has ever dreamed of asserting a claim to the Dukedom. It 
 could not have been inserted as a grant for life at any posterior period with a view of 
 meeting such a claim. It must have been inserted therefore at the period to which it 
 relates, and the best proof of that is that the handwriting is the handwriting of that 
 epoch. Added to which it is quite clear, from the terms of the Act of Parliament which 
 preceded it, that the new Dukedom was to be created by a Charter or Letter. Then if 
 there had been any attempt here at interpolation, any attempt at a fraudulent misrepre- 
 sentation of the Litera, there was at that epoch the Litera itself to be produced, and the 
 party attempting a fraud in so important a record as a record of the Charters passing the 
 Great Seal would at once have been condemned and exposed if he attempted any such 
 thing. I cannot therefore suppose that your Lordships will for a moment conceive that 
 this is anything but a genuine instrument, and that view will be greatly fortified, I think, 
 and rendered perfectly satisfactory and conclusive, by the evidence which I shall presently 
 give your Lordships. 
 
 Lord St. Leonards. — Is there any other instance in that book where there is so 
 large a blank as there must have been in that particular place before this Litera was 
 inserted ? 
 
 Mr. Attorney-General. — We will have the Register looked at, my Lord, so that, 
 when the Lord Advocate comes to address your Lordships, he shall be able to answer 
 that question. I have evidence to satisfy your Lordships, quite independently of the 
 Register, that this was in fact a grant for life, and a grant for life only; but upon the 
 evidence which I shall give I am satisfied your Lordships will not entertain the slightest 
 doubt, namely, that the Register is a perfectly genuine document. 
 
 Lord St. Leonards. — I observe that the date follows almost immediately upon 
 that of the Act of Parliament. 
 
 Mr. Attorney- General.— li is perfectly preposterous to suppose that a person who 
 knew that there was a Litera in existence would have recorded the contents of the Litera 
 contrary to its tenor, with the perfect certainty that if a question should arise upon it he 
 might have been met, and his forgery exposed, by the production of the Litera itself 
 
 Lord Lyndhurst. — In England it was not unusual to grant Peerages for life in old 
 times ; was that so in Scotland ? 
 
 Mr. Attorney- General. — I am told it was so. My learned friends, who are more 
 conversant with the details of Scottish history than I can pretend to be, will be better 
 able to answer your Lordship's question. The next question which arises is whether 
 this was a grant for life. 
 
 Lord Chancellor. — The language is rather special — " sublimavit, fecit, creavit, et de 
 " novo erexit in Ducatum, Ducatusque nomine et prerogativa volens ipsum gaudere et 
 " potiri, secundum formam et tenorem carte dicti domini nostri Regis dicto David Duci 
 " de Montross super premissa conficiende." It looks as if there was something special 
 about it ; at least so it strikes my mind. 
 
 Mr. Attorney-General.— Then comes the question, whether it is a grant for life or 
 a grant in perpetuity. The instrument upon the face of it purports to be a grant for life, 
 and not in perpetuity—" pro toto tempore vite sue," and there it stops. My learned 
 
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( 198 ) 
 
 friends asked your Lordships, in order to get over the difficulty, to import certain words 
 which are not there, and which make all the difference. 
 
 Lord St. Leonards. — They ask us to introduce words of inheritance which are not 
 actually there. 
 
 Mr. Attorney- General. — Yes, and the grounds which they state are these: — They 
 say it was not uncommon in Scotch grants of dignities to grant them in the first place to 
 the first grantee for life, with the remainder to his heirs, or the heirs of somebody else. 
 It is clear in all those cases they do expressly state that there is to be a remainder ; in 
 this case it is not stated. Your Lordships are asked to import it. Why ? Because they 
 say that, inasmuch as in the other cases it is there, you are to assume that it ought to be 
 here. I must own I am not struck with that reasoning. 
 
 Lord St. Leonards. — They have another argument which you have not touched, 
 which is this : — Admitting the difficulty which you are now referring to, they say that 
 this Act of Parliament without the Litera itself is a Confirmation of what they call 
 the existing Dukedom. 
 
 Mr. Attorney- General. — Yes; but I should hope that that is not an argument 
 which would be likely to make much impression upon your Lordship's mind. 
 
 Lord St. Leonards. — The Solicitor-General argued that point very much. He 
 insists that this Act of Parliament is of itself an actual Confirmation of the Dukedom 
 then existing, as he says ; but if required, it would operate to give a new Dukedom. 
 
 Mr. Attorney - General. — I am coming to the question of Confirmation the 
 moment I have disposed of this part of my argument. I submit to your Lordships that 
 there is no reason why you should import those words into this document. If, indeed, 
 the whole tenor of the facts ran current to the tenor of the instrument ; if your Lord- 
 ships found that upon the death of the grantee under that Litera his heirs had succeeded 
 to the title ; if there had been a long course of posterior enjoyment, instead of exactly 
 the contrary, and then your Lordships had been asked to construe the instrument with 
 reference to the enjoyment and possession which had, in point of fact, afterwards ex- 
 isted, it might be that you might do violence to the language of the charter by import- 
 ing into it words which possibly might have been omitted from it by inadvertence ; 
 but, my Lords, the facts are exactly the other way ; and what reason is there for in- 
 troducing into the document something that it does not contain ? 
 
 They say that it may be considered as implied in the " &c." Yes, my Lords ; but the 
 "&c." is in the wrong place. The "&c." is at the end of the instrument ; and the tenen- 
 dum, as far as regards the term for which the dignity is to be enjoyed, is at the commence- 
 ment; "Litera data est," conferring the dignity, "pro toto tempore vite sue :" there it 
 stops. If there had been an "&c." there, I could have understood it ; but the tenendum 
 of this somewhat inartistic instrument is divided into two portions. That which relates to 
 the thing to be held is at the end of the instrument ; that which relates to the time for 
 which the thing is to be held is at its commencement. There is where you would look 
 for the " &c.," if any " &c." could be held to include and comprehend the all-important 
 terms which they do not find in the instrument. But I will not take up your Lordships' 
 time with this point ; because there is so strong a body of evidence, by which we shall 
 produce in your Lordships' minds such a conclusive conviction that this was intended 
 only to be a grant for life, that I do not think it is worth while to labour this part of 
 the Case. 
 
 Lord St. Leonards. — The Litera in the terms you have referred to goes on to state 
 the grant of the very estates which had originally been granted in fee with the Duke- 
 dom. 
 
 Mr. Attorney- General. — Upon that point we have a body of evidence so con- 
 
( 199 ) 
 
 elusive and so convincing, that when I come to it, which, if your Lordships will forgive 
 me, I will do for a moment, I think it will remove every shadow of doubt from the 
 minds of your Lordships. 
 
 Assuming, then — not touching for a moment the Act of Parliament — that the 
 grant contained in the Litera is a grant for life, I come to the next question, which 
 appears to be decided if I have established this preliminary point, whether this was a 
 new grant, a grant entirely de novo, or a mere Charter of Confirmation. It is said upon 
 the other side that this was only one of those Charters of Progress they speak of, a 
 Charter of Confirmation, confirming an antecedently existing right. I would much 
 rather leave this part of the case to my learned friend the Lord Advocate, who is much 
 more conversant vdth Scotch instruments than I am ; but there are one or two salient 
 points which strike one on a mere inspection of the document. It could not have been 
 a Charter of Confirmation ; it has not any of the characteristics of a Charter of Confir- 
 mation. It is manifestly, upon the face of it, a new grant. I am told that Charters of 
 Confirmation are not common in Scotch peerages : they are frequent, no doubt, but not fre- 
 quent [sic\ in cases where parties hold lands or other properties which the Crown would 
 be likely to contest ; but as regards hereditary dignities descending from father to son — 
 for at this period dignities were hereditary — it was not, and would not be likely, that 
 there should be Charters of Confirmation in the instances of such hereditary peerages. 
 
 But, assuming that such things have occasionally taken place, look, my Lords, 
 at what this is. It is not a charter confirming to the Duke of Montrose the Dukedom 
 of Montrose ; it is a charter which professes, upon the face of it, to grant to the Earl of 
 Crawford the Dukedom of Montrose. Where you confirm, and I appeal to all the 
 instances of confirmation which can be produced, the Charter of Confirmation, no matter 
 what may be the subject to which it relates, confirms to the individual already in pos- 
 session something, his title to the possession of which it is intended to prolong. It does 
 not profess to give it him de novo, as if he had never had it before ; and if this had been 
 a mere Charter of Confirmation confirming the title to the Dukedom, it would have 
 confirmed to David Duke of Montrose the Dukedom of Montrose. But it does no such 
 thing — it does exactly the reverse, it gives it to him as David Earl of Crawford ; but 
 what is still more striking is this — your Lordships will find the Dukedom in this 
 instrument, which is called a Charter of Confirmation, thrice referred to as being in the 
 hands of the Crown. I am reading from the separate printed document, page 6, No. 5 : 
 " Data est Litera Comiti Craufurdie, creando ipsum Ducem de Montrose pro toto tempore 
 " vite sue, et concedendo sibi capitale messuagium et locum castri de Montrose, vulgariter 
 " nuncupatum le Castlestede, necnon totum et integrum burgum et villam de Montrose, 
 " cum redditibus, firmis burgalibus, magnis et parvis custumis, ac libertatibus et commo- 
 " ditatibus earundem, nunc Regi de eisdem burgo et villa pertinentibus." 
 
 Your Lordships are probably aware that by the then existing practice in Scot- 
 land when an honour was created, it was granted upon territorial estate connected with 
 it, united with it, and formed upon it. There was no such thing in those days as what 
 one may term, using an English law phrase, a title in gross. It was made appendant 
 to, and inseparably united and incorporated with, a territorial possession. Therefore 
 the King erects the burgh of Montrose and the lands of Kinclevin, as you will see 
 presently, into a Dukedom ; and he speaks of the burgh of Montrose, the capital mes- 
 suage, the castlestead, and the whole burgh, with its rents, burgh dues, great and small 
 customs, its liberties and commodities, now to the King belonging and appertaining, 
 as we should say. Then it goes on, " Ac portum et stationem navium ejusdem burgi, 
 *■' cum pertinentiis, cum firmis aquarum et piscationibus Regi de eodem burgo per- 
 " tinentibus." If this were a mere charter of confirmation, intending to confirm the 
 
( 200 ) 
 
 title to the estates and properties at that time vested in the Duke of Montrose, they 
 would not be stated in this Litera as belonging absolutely to the King. Therefore this 
 shows that it was considered that the Act Rescissory had annihilated the property of the 
 Dukedom, and the rights and titles which constituted the corpus of the Dukedom, and 
 those things had reverted to the possession of the Crown, which granted them anew 
 to the Earl of Crawford. So it goes on, "Cum molendinis, multuris, et piscariis 
 " earundem, ac cum omnibus aliis pertinentibus, tenentibus, et tenandriis, Regi etiam de 
 " dicto dominio pertinentibus, jacentibus infra Vicecomitatum de Perth, creando omnia 
 " predicta in unum et liberum Ducatum de Montrose nuncupandum, ac tenendum in 
 " libera regalitate, &c." It is perfectly clear upon reading that, that it is not a Charter 
 of Confirmation in the proper sense of the term ; but it is neither more nor less than a 
 new grant of things which were taken by the King at the time to be in his ovra hands, 
 and which he was granting anew as things over which he had full and uncontrolled 
 dominion. 
 
 That being so, my Lords, I say the Act of Parliament, which is as if it were 
 made uno et eodem flatu with this grant, must be taken and read together with the Act 
 of Parliament, being capable (I am making, in saying that, a concession to my learned 
 friend which I am not bound to make) of a twofold construction. You must look at 
 it with reference to the facts which preceded and followed it. It is clear that there 
 was no intention in the Act of Parliament to restore the ancient Dukedom of Montrose. 
 They say that they create it anew, and that is followed the very next day by this Litera, 
 which, so far from being a Charter of Confirmation, is to all intents and purposes a new 
 grant. 
 
 Now, my Lords, let me ask your Lordships to consider the facts which imme- 
 diately followed upon this. Up to this time the noble grantee of this Dukedom, as I say 
 for life, had been styled in all public proceedings by Parliament, and by other public 
 bodies. Earl of Crawford. The moment this Act is passed, the moment that this new 
 charter has been granted, he immediately assumes the title of Duke of Montrose ; and 
 we find him sitting in Parliament, and acting in Parliament, under that title. This took 
 place in September 1489. In the next Parliament, which was in February 1489, we 
 have him named in a Sederunt in Parliament, and in the Committee of Lord Auditors, 
 and his name is inserted no longer as Earl of Crawford, but as Duke of Montrose. It is 
 at page 4 of the Duke of Montrose's Appendix your Lordships will find the entries 
 which shew that he there was allowed to assume that title of Duke. 
 
 Lord St. Leonards. — Is there any instrument after this grant in which he was 
 called Earl of Crawford ? 
 
 Mr. Attorney- General. — Three instances, my Lord, but of the most trifling and 
 unimportant character. It seems he was entitled, as I mentioned to your Lordships 
 yesterday, under an ancient grant from the Crown to the Earl of Crawford, to a certain 
 pension arising from customs at the port of Dundee, and it seems that in two accounts 
 passed by the Customer of Dundee after this period the payment is entered as a payment 
 to the Earl of Crawford. I think that is a matter which is capable of the simplest 
 explanation. The old grant had been to the Earl of Crawford ; entries had been made 
 in a long series of accounts which had been rendered by the Customer every year to the 
 Exchequer as payments to the Earl of Crawford ; nothing would be more likely than 
 that the Customer should go on making the entry in the manner in which he had been 
 accustomed to do it before. There were also the Customs of Aberdeen, upon which also 
 a pension had been made to the Earl of Crawford. The Customer, who up to the time 
 of that grant had entered the payment as a payment to Lord Crawford, now enters the 
 payment as a payment to the Duke of Montrose and Earl of Crawford. I do not see 
 
( 201 ) 
 
 how that can be relied on by the other side. I say that that was clearly the correct entry. 
 The grant having been to the Earl of Crawford, and the former payments having been to 
 the Earl of Crawford, it was very well for the Customer, in making the payment sub- 
 sequent to the grant, to enter it by the twofold title, that he might identify the 
 payment to the Duke of Montrose as being a payment made in respect of the former 
 payments which had been habitually made to the Earl of Crawford. That I am sure 
 cannot stand against the fact of the Parliament who made this Act, and who must be 
 taken to have known what was intended by it, and to have been perfectly familiar with 
 all the contemporaneous circumstances, refusing him the title of Duke of Montrose up 
 to the time of this new grant, and immediately conceding it to him after the grant 
 was made. 
 
 He continued to enjoy the title during his life in all subsequent transactions ; and 
 in all the accounts, with the exception of those two instances of the accounts of the 
 Borough of Montrose, he is invariably styled Duke of Montrose till the time of his 
 death. He died on St. Stephen's day, the 26th of December 1495, and with him died 
 the title of the Duke of Montrose, never to be claimed from that period to the present, 
 three centuries and a half after his death. 
 
 But then comes the great question, did he leave any one who would have been 
 entitled, had this been a grant other than for life, to succeed to him in the title? 
 Undoubtedly he did. He left a son, who became John sixth Earl of Crawford, who took 
 the title of Earl of Crawford upon his father's death, never for a single moment thinking 
 of assuming or laying claim to the higher title of a Dukedom. My Lords, this is a very, 
 very striking fact, and one of the last importance in the case, and it is one with reference 
 to which the Counsel for the Noble Claimant feel the necessity of giving some explana- 
 tion, and of endeavouring to get over the difficulty which it presents. And the expla- 
 nation which they oflFer is this :— They say that this John Earl of Crawford was a person 
 who was labouring under great difficulty in consequence of his having been unfortunately 
 the slayer of his brother. It appears that in some broil he had killed his elder brother. 
 Lord Alexander, and it is suggested that in consequence he was under a cloud, and 
 unable to assume the title of the Dukedom. I do not see myself the necessary connection 
 between such a position and the assiunption of a title which, if their theory and hypo- 
 thesis be correct, was unquestionably his by right. 
 
 Lord St. Leonards. — He did take the title of Earl of Crawford? 
 
 Mr. Attorney- General. — He did take the title of Earl of Crawford undoubtedly. 
 Why, therefore, he should not have taken the title of Duke of Montrose, if he was 
 entitled to it, one is rather at a loss to conceive. 
 
 But the fact is, that my learned friends have greatly exaggerated the position in 
 which that Nobleman found himself. He had, no doubt, had the misfortune to kill 
 his brother, and no doubt that continued to be a stigma upon him during the remainder 
 of his life, but it by no means prevented him from taking a leading position at times in 
 the events of the epoch to which he belonged. He was in favour and in trust with the 
 Court. He had married a daughter of my Lord Home, who was at that time the 
 principal minister and confidant of the King upon the throne. He was upon the best 
 terms with my Lord Home, he was upon good terms with the King, and appears to 
 have taken part occasionally in the sports and amusements to which the King was 
 attached ; nay, upon a very important occasion, when the inhabitants of the Highlands 
 in the north of Scotland and certain parts of the north were in insurrection, he was 
 intrusted with a commission and armed with authority by the King to put down the 
 insurrection, and he succeeded in doing so ; so that he was by no means the outcast 
 which has been erroneously sought to be impressed upon your Lordships by the state- 
 
( 202 ) 
 
 ments made in the case and in the argument at the bar. He was in a position to have 
 asserted his right to the title if it existed, and there was no reason why he should not 
 have done so. He fell with the King at Flodden, and was succeeded by Alexander, the 
 brother of the original Duke. It is said that Alexander was a man advanced in years. 
 But he was a man still taking part in the affairs of the state. He was appointed one of 
 the Councillors of the Queen Mother upon the death of the King upon the field of 
 Flodden, and acted in that capacity. What possible reason is there why he should not 
 have assumed the title ? He lived several years, and was then succeeded by his son 
 David, seventh Earl of Crawford. He took the character of Earl of Crawford, and is 
 recorded in parliamentary proceedings of the day as Earl of Crawford. Every trace of 
 the Dukedom so far as they are concerned is lost, and not one of them ever thinks of 
 assuming, or claiming, or putting forth a shadow or vestige of a claim to this high title. 
 The recollection of it could not at that early period have died, and there was one cir- 
 cumstance calculated to keep it perpetually alive in their recollection. When the 
 Duke of Montrose died he left a widow in the person of Margaret Carmichael, whom 
 he had married in the year 1488 ; she survived him thirty years ; her name is constantly 
 to be found in accounts of the date. We know what title she preserved. She had 
 received from him the grant of an annual settlement upon some of these customs and 
 dues which the Earls of Crawford enjoyed by an ancient grant from the Crown ; she 
 continued to receive them to her death, and she is intituled Duchess of Montrose to the 
 day of her death ; so that the recollection of the title must have been kept perpetually 
 alive between the heirs and the successors of the Duke, who were in habits of familiar and 
 daily intercourse with his relict the Duchess, and yet there is not a vestige of a claim 
 upon their parts, — and so it has gone on from that time to the present, when the 
 glittering prize held out to his imagination has induced the Noble Claimant to 
 come before your Lordships, and present the claim which he makes upon the present 
 occasion. 
 
 Lord St. Leonards. — Was the son of the Duke married during the lifetime of the 
 mother ? 
 
 Mr. Attorney-General. — We know he died without male issue, but when he mar- 
 ried I think we have no information. 
 
 Lord St. Leonards. — Was she styled merely Duchess, or Duchess Dowager ? 
 
 Mr. Attorney-General. — She is styled Duchess to the last. 
 
 Lord Chancellor. — Not Duchess Dowager? 
 
 Mr. Attorney- General.: — No, my Lord. 
 
 Lord Lyndhurst. — You can identify her as being the widow ? 
 
 Mr. Attorney- General. — We identify her in this way : — She was the grantee of an 
 annuity, and she continued to receive the annuity to the day of her death ; and entries of 
 payments to her are made in the accounts as Duchess of Montrose. Sometimes we find 
 she is entered as Duchess of Montrose, and sometimes as Margaret Carmichael. 
 
 Lord St. Leonards. — What I should like to know is this : — During the time she is 
 called Duchess of Montrose, was the wife of the son who took the title of Earl of Craw- 
 ford called Countess of Crawford ? 
 
 Mr. Attorney-General. — I am afraid we have no evidence upon that point. 
 
 Lord St. Leonards. — You would not call her Duchess Dowager unless there were 
 some other Duchess ? 
 
 Mr. Attorney- General. — You would call her Duchess Dowager if there were. 
 
 Lord Lyndhurst. — Was that title in use at that time ? 
 
 Mr. Attorney- General. — I am not aware, my Lord. We are not in a condition at 
 this distance of time, to produce evidence upon that point ; and I cannot throw any light 
 upon it. 
 
( 203 ) 
 
 Lord St. Leonards. — How long did she live after the death of her husband ? 
 
 Mr. Attorney- General.' — Between thirty and forty years, till 1534; he dying in 
 1495, she lived till 1534. 
 
 Lord Lyndhurst. — How are those accounts entered after the death of the Duke ? 
 
 Mr. Attorney- General. — In her name as Duchess. 
 
 Lord Lyndhurst. — She received the whole ? 
 
 Mr. Attorney -General.' — She received the whole. The Noble Lord, the day before 
 yesterday, put a question to my learned friend the Solicitor-General, as to what became 
 of the estates. That is really the pith and marrow of this inquiry, and I now come to 
 that point. I think the result of the evidence which I shall lay before your Lordships 
 will be perfectly conclusive, because, if there were reasons which should induce the Earls 
 of Crawford, upon the death of the Duke, not to assume the title, there could be no 
 reason why they should not continue to enjoy the estates. But even with regard to the 
 hypothesis which has been thrown out as to why they should not seek to assume the title 
 of Dukes of Montrose, it is all founded again upon the most idle and vague assumption 
 of facts. It is said that the Scotch nobility were jealous of the title of Duke. There is 
 no evidence whatever of that, from one end of the case to the other. The title of Duke 
 was not unknown in Scotland at that period, though it had been held up to that time 
 by members of the royal family ; but there is no evidence to show your Lordships that 
 there was any jealousy on the subject. 
 
 But the difficulty is attempted to be got rid of in another way, both as to the 
 non-assumption of the title of Duke prior to the regrant, and as to the non-assumption of 
 it by the heirs of the Duke of Montrose ; after his death there is an ingenious hypo- 
 thesis thrown out that they were actuated in not assuming the title by a proud feeling 
 which has influenced certain members of ancient lineage, who were in possession of an 
 inferior but more ancient title, to adhere to it, although it was engrafted and super- 
 added upon a title of a higher dignity. You have the case of a Grandee of Spain, and 
 another case of the Count de Perigord, who allowed his eldest son to take the title of Prince 
 of Chalais, when he was himself contented with the inferior title of Count. We do not 
 know the precise circumstances of those cases. I have not been able in the pressure 
 of business to make any researches on the subject, but it is easy to conceive, in the case 
 of a Grandee of Spain, that the title should be adhered to. 
 
 Lord Lyndhurst. — I do not think the title of Prince is a higher title than that of 
 Count on the Continent : it is inferior to Duke. 
 
 Mr. Attorney- General. — No doubt of it ; but I do not think it is inferior to Count. 
 With regard to that case of the Grandee of Spain, that is an individual instance ; but 
 it is not impossible that the character of Grandee was considered as attached to the 
 Countship or Earldom, and not to the Dukedom. The Dukedom coming afterwards 
 by marriage or descent in some way upon the extinction of some other branch, the 
 inferior title, as carrying with it the character of Grandee of Spain, was preferred to the 
 higher title of Duke. So again, as to the Count de Perigord and his son the Prince of 
 Chalais, it is most probable that the Earldom or Countship of Perigord carried with it 
 some territorial right and Dignity which did not attach to the other title. We do 
 not know the circumstances. They refer your Lordships to a case in Scotland, namely, 
 the case of Darnley Lord Lennox [sic], which is certainly a Scotch case in point. The 
 answer to my learned friend's suggestion is to be found in the history of that case, which 
 your Lordships will find at page 20 of the Case of the Duke of Montrose. 
 
 Lord Lyndhurst. — Why did the father take the title of Duke ? 
 
 Mr. Attorney- General. — I am coming to that in a moment, when I have disposed 
 of those cases to which they have referred your Lordships. As to the case of Lord 
 
 2D 
 
( 204 ) 
 
 Darnley, the facts are fully stated and the authorities given in the Case. It appears 
 quite clear that the title of the Earl of Lennox was a very doubtful title ; it was resisted 
 by Parliament. The power of that nobleman enabled him to sit in Parliament under 
 the title, but it was at all times questioned, and at one time repudiated, by Parliament. 
 It is therefore clearly intelligible why the King, in a grant to Lord Lennox, should 
 have called him by his inferior instead of his higher title. 
 
 But, my Lords, the observation is one which at once presents itself, that those cases 
 do not apply here, for you have here the case of the Duke of Montrose, who was jealous 
 of the title, most desirous to retain it, and most desirous to assume, and who did assume 
 it when he could. The very instances which my learned friends refer your Lordships 
 to in that point of view are strongly against them, because you find that in the private 
 instrument which he executes he takes care to style himself Duke ; in instruments which 
 he executes in reference to transactions with the Crown he again styles himself Duke. 
 This shows that he was not neglectful of the title, and that he was not desirous to post- 
 pone the higher title of Duke to the inferior title of Earl. And then again, why did he 
 take the title of Duke if he never intended to exercise it ? It is clear that, from the 
 moment that he was entitled by the authority of Parliament, and by charter, to style 
 himself Duke, he did style himself so. Nevertheless, his son and heirs, instead of 
 styling themselves by the title of Duke, are contented with the title of Earls of Crawford. 
 
 I therefore dismiss that part of the case, and come now to what I regard as a most 
 important branch of this inquiry, namely, what became of the estates? One of your 
 Lordships asked that question of the Solicitor-General ; and I think that those who know 
 the characteristic boldness of my learned friend must have been struck with his hesita- 
 tion and confusion when that question was put. My learned friend Sir FitzRoy Kelly 
 came to the rescue, and said the estates were not enjoyed, but the reason of that was this — 
 that there was passed in 1493 an Act of Parliament authorising the King to resume all 
 grants which had been made of the property of the Crown, and, therefore, by that Act 
 the Crown resumed those estates. The answer to that is this : it was not an ingenuous 
 statement. They knew better. I will tell you why they did. They had the accounts 
 before them, which I am about to submit to your Lordships ; and your Lordships will 
 find that, whereas the Act to which my learned friend referred passed in 1493, the Duke 
 did not die till December 1495, and in the mean time he continued to enjoy the estates. 
 The King did not resume the estates on the passing of the Act. The Duke enjoyed them 
 to his death, and then they were resumed ; and I shall show your Lordships, upon the most 
 incontestable and conclusive evidence, that it was because they had been granted to him 
 and enjoyable by him during the period of his life. 
 
 That brings me to the evidence which I have to lay before your Lordships upon 
 this subject. The estates conveyed by the original Grant of the Dukedom in 1488, and 
 by the regrant of the Dukedom for life in 1489, consisted of the demesne lands of Kin- 
 clevin, and the grant of Customs of the town of Montrose, and what are called " firmae 
 " burgales " and borough dues of the same place. 
 
 I will call your Lordships' attention first to the Grant of the Customs of Montrose, 
 an account of which your Lordships will find set out from page 28 to page 3 1 of the first 
 Case of the Duke of Montrose. It seems with regard to this Grant of Customs that there 
 had been a former Grant to the Duke of Montrose, of the sum of 40 marks by the year, 
 which amounted in our money to the sum of 26/. 135. Ad. We have the Exchequer 
 Rolls, which contain during that year which we are about to consider the accounts of 
 Walter Leichton, who was Customer of the Borough of Montrose. The first accounts 
 with which I start are the accounts from the 6th of August 1485, to the 10th July 1486. 
 The account for that year shows a receipt of 20/. 45. 3c?., which is carried to the credit 
 
( 205 ) 
 
 of the Earl of Crawford, for at that time there was no question about the Dukedom, 
 leaving a balance due to the Earl upon his pension of 6l. 9s. Id. The next accounts we 
 have— for the accounts of the year 1487 are not forthcoming — are the accounts of the 
 year 1488. From the 10th of July 1486, to the 21st of August 1488, we have entries 
 of payments made to the Earl of Crawford : there is a balance of 6^. 9s. Id. In the mean 
 while two years' pension of 261. 13s. 4d. had accrued, making 53^. 6s, 8d. ; that left a 
 balance upon the receipts of 41. 6s. 7d., and that balance is carried to the credit of the 
 Comptroller of the Crown. So that up to that time your Lordships see the whole of 
 the receipts are being taken by the Customer — he debits himself with the receipts — he 
 credits the Duke with the annual payment of the pension of 40 marks, and then in these 
 accounts for the year 1487-8, there being a balance after the payment of 41. 6s. 7d., he 
 carries that to the credit of the Crown. 
 
 Now let me call your attention to what takes place after this. It appears that 
 
 from the year 1490 the Earl of Crawford, or rather the then Duke of Montrose, the 
 
 second grant having then been made, took into his hands the receipts of the Burgh, and 
 
 he continued to do so from the year 1490 to the year 1495, when he died. Now it 
 
 becomes most important to see, he dying on the 26th of December 1495, when the next 
 
 year's account, which is a short account, from July to July, is rendered ; in whose bands 
 
 were the great customs ; and how does the Customer account ? Your Lordships will 
 
 find under the year 1496, at page 31, in an entry which is taken from the Exchequer 
 
 Roll for that year, the account Mr. Robert Erskyn, Customer of the Burgh of Montrose, 
 
 rendered at Edinburgh on the 15th of July 1496, of his receipt and expenditure in 
 
 respect to the great customs of the Burgh. I pray your Lordships' attention to what I 
 
 am going to read. This is an entry made by the Customer of the Burgh upon the 
 
 resumption by the Crown, on the death of the Duke, of the balance of customs remaining 
 
 after the annual payment of 40 marks by the year : — " A die obitus domini David Ducis 
 
 " de Monthrose, qui erat in die Sancti Stephani ultimo preterito ; qui habuit dum vixerat 
 
 " hujusmodi magnas Custumas per literas domini Regis ab anno Domini nonagesimo 
 
 " iisque in dictum diem obitus sui." There is a clear and distinct recital ; and your 
 
 Lordships will see by the account of the next customs that the letters of the King 
 
 authorizing the payment by the Customer were produced at what they call thecompo- 
 
 tum. I show that clearly and distinctly. The Customer of the Burgh narrates as a 
 
 fact derived from the authority under which he had been making the previous payments, 
 
 that the Duke " habuit dum vixerat hujusmodi magnas custumas per literas domini 
 
 " Regis ab anno Domini nonagesimo usque in dictum diem obitus sui." 
 
 But the case, my Lords, of the small dues, the port dues, is, if possible, still 
 stronger. Let me call your Lordships' attention to this. It appears that these burgh 
 dues were compounded for by the Crown, under a charter of King David, at the sum of 
 1 6^. by the year ; and up to the time we are now considering, the baillies of the burgh, 
 who rendered those accounts to the Court of Exchequer, in the rolls of which, kept at 
 Edinburgh, they are still found, charge themselves with the payment of \6l., being the 
 rent of the burgh, and they discharge themselves in this way : — There was an old payment 
 to the Bishop of Brechin of 12/. 5s. Ad. There was an old pension to the Prior of 
 Restennot, also by grant by the Crown, of 2Z. 12s., and that left a balance of 1/. 2s. M., 
 which was paid year by year to the Comptroller of the Crown, at the time of the 
 account being made up. Now this account continues in this same form up to and through 
 the year 1489, up to therefore and through the time when the first grant of the Dukedom 
 took place, which was afterwards annihilated by the Act Rescissory. But looking to 
 July of the year 1489, the account still being made up from July to July, and that 
 being the year which followed the re-grant of the Dukedom, from that year the accounts 
 
 2 D2 
 
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 of the burgh dues entirely disappear; nor do they appear again till the year 1496, and 
 for this reason : — The Customer or baillies no longer account to the Crown, but they 
 account to the Duke, who was entitled to claim the dues under the recent grant from 
 the Crown. They did not account to him for the year 1488-89, but they account to the 
 Crown just in the same manner as they have accounted in all times past ; but for the year 
 1489-90, and from that time to the year 1496, we lose all trace of these accounts in 
 the Rolls of the Exchequer ; they are not to be found ; the fact being, that the Crown 
 having no longer an interest in the matter, the baillies account with the grantee of the 
 Crown, the Duke of Montrose. But then comes the important period, the July of the 
 year 1495-96, which was the July subsequent to the death of the Duke. Then we 
 suddenly find the accounts with the Crown revive, and your Lordships will find at page 
 32 of the Case the substance of these accounts, which will afterwards be laid before your 
 Lordships, the accounts to the Duke for six years, being the six years during which the 
 Duke had been in enjoyment of these dues, from the year 1489-90 down to the year 
 1495-96, the Duke having died in December 1495. 
 
 Now, the substance of the account, as running over the whole of the years, is 
 abstracted at page 32. They charge themselves with the burgh-rents received for six years, 
 at 16^. a-year, 96/. They discharge themselves by the payment of the Bishop of 
 Brechin's annual pension for six years, 12/. 5s. Ad., amounting in the whole to 73Z. 12s. ; 
 by the payment to the Prior of Restennot of 2l. 1 2s. for six years, = 15/. 1 2.y. ; and by pay- 
 ment to the Duke of Montrose of the balance of the burgh rents, being 1/. 2*. 8rf. yearly, for 
 five years (1490-95), 5/. 135. Ad. Now, the Duke had died at Christmas 1495 ; and then 
 comes this important item : " Balance of the rents for the year 1496, paid to the Comp- 
 " troUer for the Crown, \l. 2*. %d." Now, here is the entry of the payment to the Duke of 
 Montrose : " Et eidem per solutionem factam quondam David Duci de Montrose per 
 " literas Domini Regis sub privato de dictis firmis annuatim de quinque annis hujus 
 " compoti percipienti viginti duos solidos et octo denarios sibi ad vitam concessos ut 
 " patet per dictas literas ostensas super compotum, bl. 13.s. Ad." It is impossible to have 
 anything more striking or more convincing and conclusive. This man, having 
 suspended the accounts with the Crown for the six years during which the Duke 
 was in reception of the fruits of those dues, upon the Duke's death he enters again 
 into an account with the Crown, and he states the reason why for six years he had paid 
 the Duke, namely, that it appeared by letters of our Lord the King, " ostensEis super 
 " compotum," that those dues had been " concessos ut patet " to the Duke of Montrose. 
 It is impossible that there can be anything more perfectly conclusive of the fact that 
 this grant of the estates was a grant for life, and that the grant of the estates was, in the 
 terms of the grant, co-extensive with the grant of the Dukedom, and formed the terri- 
 torial basis upon which the Dukedom was founded. It is impossible not to see that that 
 is conclusive as to the fact that it was a grant for life, and not, as your Lordships are 
 asked, by importing words, to make it a grant in perpetuity. 
 
 But, my Lords, that does not dispose of the whole. We have remaining the 
 estate of Kinclevin, to which I will call your Lordships' attention ; and it will be found 
 that there the entry is just as strong. It appears, with regard to the Kinclevin estates 
 that the rent amounted to 72/. by the year, and to 76 salmon ; and we have the accounts 
 of Mr. Wardroper, who was receiver of those rents, and accounted to the Crown for a 
 very long period. It seems in his account for the year 1492, after charging himself 
 with the rent and with the salmon, he makes a note that there is a matter of dispute • 
 and that though he charges himself, he has not, in point of fact, received the amount 
 for the Duke had taken the same into his hands. Your Lordships will find an account 
 of it in page 27. That part which it is most important to call your Lordships' attention 
 
( 207 ) 
 
 to is at the bottom of the page. I should premise, however, with regard to this estate 
 of Kinclevin, that there was an annual payment due to the Bishop of Dunkeld of a sum 
 of 13^. 6s. 8d., which was to be deducted from that rent of 721., on account of the 
 Crown. 
 
 Now, Mr. Wardroper, in his account rendered at Edinburgh the 13th of July 
 1492, for the year preceding, charges himself with 721. and 76 salmon, as before; but he 
 further mentions arrears ; and he says, " per arreragia ultimi compoti sui prseter pen- 
 " dentias restantes inpede ultimi compoti sui." Your Lordships will find, by a reference 
 to page 27, in the account there, he did make the entry, and though he charged himself 
 with the whole rent he did not receive it, for the Duke had taken it into his own hands. 
 Then, in the account for the year 1492, he repeats that, and says, " per arreragia ultimi 
 " compoti sui praeter pendentieis restantes in pede ultimi compoti sui et super quibus 
 " consulendus est Rex ut patet in eodem." Then, under the head of expenditure, is the 
 following entry : — " Et Domino Duci de Monthrose de firmis terrarum de Kinclevin de 
 " tribus annis ante hoc compotum que pendebant in Rotulo anni precedentis et de 
 " termino Sancti Martini hujus compoti ex eo quod Dominus Rex in consilio mandavit 
 " allocationem fieri de precedentibus prseter terminum Penthecostes ultimi de dicto 
 " termino Sancti Martini, 29^. 6*. 8d." Now, it appears that this state of things arose. 
 In this account for the year 1491 he complained that the Duke had taken the rents for 
 the three previous years. The account will stand thus : — We say in the Case, " The effect 
 " of this settlement will be obvious, from a very short arithmetical statement — ^it being 
 " premised that Whitsunday and Martinmas, the terms of payment mentioned in the 
 " roll, correspond to 15th of May and 1 1th of November of the calendar. The Duke had 
 " at his own hand uplifted three years' rents, namely, half-year's rent to Martinmas 1488, 
 "361.; to Whitsunday 1489, 36/.; half-year's rent to Martinmas 1489, 36/.; to Whit- 
 " Sunday 1490, 36/. ; half-year's rent to Martinmas 1490, 36/. ; to Whitsunday, 1491, 36/. ; 
 " making a total of 216/." From this there was to be deducted " three years' rents of 
 " ErntuUy, payable to the Bishop of Dunkeld, 20 marks, or 13/. 6s. 8d., yearly, 40/. 
 " Sum in dependence at date of settlement, 176/. In the mean time there had accrued 
 " also half a year's rent to Martinmas 1491, 36/. ; half a year's rent to Whitsunday 1492, 
 " 36/." He first raised this question in the year 1490-91. Then, in the years 1491 and 
 1492, you have two half-years' rent. Then^ deducting the payment to the Bishop from 
 Erntully, which is 13/. 6s. 8d., it leaves 58/. 13s. 4d. Now the whole sum, therefore, 
 is 234/. 13s. 4d. "The last year's rents, payable at Martinmas 1491 and Whitsunday 
 '' 1492, had not been uplifted by the Duke. They were in the hands of the Crown 
 " collectors, but they were clearly due to the Duke ; and he claimed them, as well as 
 " the whole rents accruing since the term of Martinmas 1488 inclusive. It is apparent 
 " that the Duke's claim was founded upon his original Charter of the 18th May 1488. " 
 
 Your Lordships will find, the matter having been brought under the attention 
 and cognizance of the King in Council, he was allowed only one half-year. Now it 
 would seem that he had claimed those rents from the period of his original Dukedom. 
 The Collector had disputed it, and the result was that it came before the King ; and inas- 
 much as the Duke, having received his new Grant in September, would have been in 
 strictness not entitled to anything, still, if the Act Rescissory was considered to apply, 
 as there was an amount which would still accrue to him, the King makes a sort of com- 
 promise with him, and he is allowed half a year instead of the whole. Perhaps it leaves 
 the matter very much where it was, but, those Grants having taken place in 1492, he goes 
 on to receive the rents till the period of his death ; but then, after his death, we find 
 the accounts entirely change. In the year 1496 Mr. Wardroper, rendering an account 
 into the Exchequer, no longer enters the payments as made either to the Duke of 
 
( 208 ) 
 
 Montrose or to the Earl of Crawford, but he makes this particular entry. The Duke 
 having died at Christmas, there would be a difference of half a year one way or the other. 
 He gives the Duke credit for the one half-year prior to his death, and he gives the Crown 
 the credit for the half-year which intervened between the date of the Duke's death and 
 the date of the account in the July ensuing; and the entry is in these words : — "Et plene 
 " allocatur compotanti de firmis terrarum de Kinclevin alias concessarum domino David 
 " Duci de Monthrose ad vitam per literas domini Regis alias ostensas super compotum, 
 " de primo termino hujus compoti quia decessit circa festum Natalis Domini " — Then he 
 enters half a year to the Crown, 36^. and 100 salmons, showing clearly that the half- 
 year terminated with the Duke's death. 
 
 Lord Chancellor. — What is the meaning of 100 salmons? I suppose that is 
 wrong ? 
 
 Mr. Attorney-General. — It is clear there must be a mistake. In entering the 72/. 
 he gives credit to the Duke for one half of the year, and to the Crown for the other ; 
 and he says that he does so on the authority of the letters of the King, which were 
 exhibited at the time of the accounting. He allowed to the Duke one half of the year's 
 rent, entering the other to the credit on account of the Crown. 
 
 Now here we have two instances in which the receivers of these estates and dues, 
 granted by the Crown to the Duke, in accounting with the Crown refer in distinct terms 
 to the letters of the King, which were their authority for the payment which they so 
 made. They state those letters, as exhibiting upon the face of them a grant to the Duke 
 of those various properties for his life, and only for his life. It is impossible to have 
 anything more clear and decisive. The accounts then go on with the Crown, without 
 any mention of the Crawford family, till the year 1512, when the King made a new 
 grant of Kinclevin on a perpetual lease for a large annual fee to this very Mr. Ward- 
 roper, who had been collector of the rents so many years. The accounts go on with 
 the Crown from 1496, the year after the Duke's death, for the whole amount of the 
 rent, till the year 1512, and then the thing is established upon a new footing, a new rent 
 is created, and the accounts are entered between the parties. 
 
 Lord Chancellor. — One hundred salmon is very likely all right. He lived during 
 the half-year during which the salmon would be taken. 
 
 Lord Brougham. — Is this all the sterling money which is stated here ? 
 Mr. Attorney-General. — I think it is all stated in merks. 
 
 Lord Brougham. — I see the conversion of the merk is as if it were in England, 
 13s. Ad. That would make these very large rents. 62Z. a-year, about the time of the 
 discovery of America, would be about ten times as much as it would now. 
 
 Mr. Attorney- General. — Your Lordship sees that this estate of Kinclevin was to 
 be the foundation of the grant of the Dukedom ; they were, no doubt, very valuable 
 estates. The very fact of the rent being large, which indicates that the estates were 
 valuable, fortifies the whole of the case which I am submitting to your Lordships. 
 
 Lord Brougham. — I wish to know whether that is to be taken as Scotch or English 
 money ? 
 
 Mr. Attorney-General. — They are Scotch merks. 
 Lord Brougham. — Is a Scotch merk 13s. \d. ? 
 
 Mr. Attorney-General. — I cannot inform your Lordship ; but assuming that we 
 ought to put it in pounds, we ought to reduce it to the equivalent for the mark at that 
 time. 
 
 Lord Brougham. — If this is represented as sterling when it ought to be Scotch it 
 must be taken as one-twentieth part of this amount. 
 
 Mr. Attorney-General. — It does not affect the argument, my Lord : whatever was 
 
( 209 ) 
 
 the amount, taking the true Scotch value of the mark, it was enjoyed by the Duke for 
 his life ; it was enjoyed by him and conceded to him. We will make a little more 
 inquiry into it, but I would submit to your Lordships that it does not in the slightest 
 degree affect the argument I have submitted to your consideration. 
 
 My Lords, I think I have now established upon that evidence, conclusively and 
 fully, that the Register was perfectly right ; and that, inasmuch as the grant of these 
 estates was inseparably associated and incorporated with the grant of the Dukedom, when 
 we show that these were clearly estates for life, it establishes the authenticity and autho- 
 rity and effect of the Register, and shows that the Litera truly designates the grant of 
 the Dukedom a grant for life, and not in perpetuity. I will not trouble your Lordships 
 further upon this branch of the case. 
 
 My Lords, the advocates for the Noble Claimant claim the right, in which I quite 
 concur, to refer to contemporaneous facts and incidents to throw light upon the question 
 now in discussion, and they turn with some degree of satisfaction and confidence to the 
 story of the Glen cairn Peerage. I have not the least objection to meet them upon that 
 ground, and I think I shall satisfy your Lordships here also, beyond all power of ques- 
 tion, that the Glencairn Peerage, like the Montrose Peerage, was struck at and struck 
 down by the Act Rescissory, and that it was only revived by a subsequent and entirely 
 new grant. Here again the facts have been most imperfectly and insufficiently brought 
 before your Lordships, and I shall have to supply a body of testimony on this subject. 
 
 We know that the Earldom of Glencairn was originally granted by charter of 
 the 28th of May 1488. On the 11th of June the first Earl of Glencairn perished at the 
 battle of Stirling. Now it is important to see what his son and heir, for he left one, my 
 Lord Kilmaurs, did with reference to the title of the Earldom of Glencairn. Lord 
 Kilmaurs was present in Parliament, and sat in 1488. How did he appear at that 
 Parliament ? It was the Parliament which passed the Act Rescissory, and he was there 
 when the Act Rescissory passed. His name is entered like the name of the Duke of 
 Montrose. Is it entered as Earl of Glencairn? Not at all. He appears upon the 
 rolls of that Parliament simply as Lord Kilmaurs. By that Parliament there was passed 
 an important Act ; it was an Act which enabled the heirs of those who fell in battle 
 against the now King to be seised of their ancestors' lands as if they had died in the 
 " faith and peace of the King." Under this Act of Parliament, Robert, the heir of the 
 Earl of Glencairn, took out letters under the Privy Seal, and was served heir to his 
 father. Under what title was he served heir to his father ? He was served heir to his 
 father, my Lords, not as Earl of Glencairn, but as Lord Kilmaurs ; and he continues in 
 the Rolls of Parliament, and in the various records of that period, to be styled Lord 
 Kilmaurs till his death, which took place in 1492. 
 
 If your Lordships will do me the favour to turn to pages 39 and 40 of the Duke 
 of Montrose's Case, you will find a series of instances in which Lord Kilmaurs, in Acts, 
 many of them proceeding from himself, is invariably styled Lord Kilmaurs, and never in 
 a single instance Earl of Glencairn. Robert Lord Kilmaurs was served heir to his father, 
 Lord Kilmaurs, in the Lands and Barony of Reidhall on the 24th of November 1488. 
 The title must have been made good under his immediate superintendence and direction, 
 and nothing can be stronger than to show, on the 24th of November 1488, which was 
 immediately after the passing of the Act Rescissory, the acknowledged operation of that 
 Act upon his own title was considered to leave him with the inferior title of Lord 
 Kilmaurs. 
 
 Then we have " Christian Lindsay, widow of Robert (the Patentee's son)," who " is 
 " styled 'Lady of Kilmaurs ' on the 15th of January 1491 ; and on the 1 4th of March 
 " 1491, in the records of the Lords of Council and of the Parliamentary Committee for 
 
( 210 ) 
 
 " complaints and causes. * Cuthbert Lord Kilmaurs ' was party in suits in the Supreme 
 " Civil Court, on the 9th October and 7th March 1490." Turning over the page, " on the 
 " 21st August 1496, 'Cuthbert Lord Kilmaurs' was infeft in the lands of Finlayston 
 " Cunningham, &c., on a precept from the Chancery. On the 25th January 1496' 
 " Archibald Earl of Angus, Lord Chancellor of Scotland, transferred to * Cuthbert Lord 
 " ' Kilmaurs ' all his right and title to the Lordship of Kilmarnock— in pursuance of a 
 " letter by the King to the said ' Cuthbert Lord Kilmaurs.' On the 10th August 1498, 
 '' William Cunningham, son and heir of ' Cuthbert Lord Kilmaurs,' and others, appeared 
 " in a Court held by the Lord Justice General at Ayr, and were found guilty of fore- 
 " thought felony committed on Hugh Lord Montgomery. On the 31st of May 1499, 
 " Philip of Craik, burgess of Edinburgh, renounced in favour of ' Cuthbert Lord Kilmaurs ' 
 " all right which he had in the lands of Baads." I have mentioned that the first 
 Cuthbert Lord Kilmaurs, having died in 1492, was. succeeded by his son Cuthbert, 
 ■ of whom mention is here made. It appears again that " on the 14th of October 1502, 
 " ' Cuthbert Lord Kilmaurs,' as 'patron, presented Andrew Cunningham to the office of 
 " Clerk of the Collegiate Church of Kilmaurs. On the 15th February 1502, ' Cuthbert 
 " ' Lord Kilmaurs' was defendant in an action before the Lords of the Session." 
 
 If your Lordships will be good enough to turn to page 23 of the Supplemental 
 Case, you will see there is another series : — 
 
 " Action before the Lords Auditors of Parliament, on 19th of June 1493, at the 
 " instance of the ' Executouris to umquhill Alexander Lord of Kilmaurs,' against Johnne 
 " of Hamiltoun and Robert Campbell, for recovery of certain goods taken by them ' efter 
 " ' the felde of Stirveling out of the Barony of Glencairne.' Charter granted by ' Cuthbertus 
 " ' Dominus Kilmauris ' in favour of William Cunninghame of Craganis, of the lands of 
 " Knappis," dated 13th of August 1496. This Charter is subscribed with Cuthbert's 
 own hand, ' Cuthbert L. K.' (Lord Kilmaurs). His seal is also appended, with the 
 legend, " S. Cuthberti domini Kylmaurs." Then comes Letter of Tack by James IV. to 
 " Marioun Douglas ' Ladie Kilmaurs,' spouse of Cuthbert ' Lord Kilmaurs,' 24th January 
 " 1496. A charter granted by ' Cuthbertus dominus Kylmauris ' in favour of William 
 " Cunninghame his uncle, of the lands of Nether Danystoun, dated 6th of October 1497." 
 " This charter is also subscribed with Cuthbert's own hand, ' Cuthbert Lord Kilmaurs.' 
 " His seal is also appended with the same legend as before. Another charter by ' Cuthbert 
 " 'Lord Kilmaurs,' subscribed with his own hand and sealed as before, dated 6th of Oc- 
 " tober 1497- Precept by ' Cuthbert Lord Kylmaurs ' in terms of the last charter, and 
 " bearing the same date and signature. Instrument bearing that a noble and potent Lord 
 " ' Cuthbert Lord Kilmaurs ' gave sasine of the lands of Denaistoun to William 
 " Cunynghame of Craganys, dated 6th of October 1497." Another instrument setting 
 forth that " John Glene, baillie for a noble and potent Lord ' Cuthbert Lord Kilmaurs,' 
 " gave sasine of the lands of Nether Denaistoun to William Cunynghame, of Craiganys 
 " dated 10th of October 1497." 
 
 Lord Chancellor. — Was Cuthbert the immediate successor ? 
 
 Mr. Attorney- General. — He was the one who immediately succeeded after the 
 death of Robert, in 1492. " Bond by Cuthbert Lord Kilmaurs, relative to the sale of 
 " his lands of Denaistoun, dated 7th of October 1497- It is subscribed with his own 
 " hand as ' Cuthbert Lord Kilmaurs,' and his seal is appended, inscribed as above, 
 " Another Charter by ' Cuthbert Lord Kilmaurs,' dated 9th of October 1497, and subscribed 
 " with his own hand. Instrument of Sasine following thereon, of the same date, in which 
 " Cuthbert is designated as a noble and potent Lord ' Cuthbert Lord Kilmaurs.' Another 
 " instrument of the same date, in which Cuthbert is designated in similar terms. Another 
 '' instrument, by a different notary, who applies the same designation of ' Cuthbert Lord 
 
( 211 ) 
 
 (( < 
 
 Kilmaurs.' Another instrument, dated 21st of October 1497, in which Cuthbert is 
 " similarly designated as ^Lord Kilmaurs.' Another instrument, dated 1497," with a similar 
 designation. Then there is " Precept by James IV., on Charter of Resignation, to infeft 
 " William Cunningham, ' Maister of Kilmauris, son and heir to Cuthbert Lord Kilmaurs,' 
 " in the Barony of Kilmaurs, ' the lands and Barony of Glencarne in Dumfries,' &c., dated 
 " 6th of June 1498." Then there is " Precept on a Charter by James IV. to ' Cuthbert Lord 
 " ' Kilmaurs' and his spouse, of the lands of Finlaystoun," &c., dated 10th of June 1498. 
 Another Precept of the 13th of March 1498, addressed to ' Cuthbert Lord Kilmaurs.' An 
 instrument of 1503, which brings us down to the very year in which the creation of the 
 Earldom of Glencairn, as we allege, took place — we find an "instrument dated 19th of 
 " July 1503, in which Cuthbert is repeatedly named as a noble and potent Lord, 
 " ' Cuthbert Lord Kilmaurs.' " 
 
 Lord Chancellor. — Is it not worthy of observation, that though a person might 
 designate himself, or be designated by others, by an inferior title, it is not likely that, 
 having a seal engraved, it should bear anything else but the proper title ? 
 
 Mr. Attorney- General. — That is very true, my Lords. By the series of documents 
 it is clearly proved, that, so far as he was concerned, and the public were concerned, he 
 is invariably styled simply Lord Kilmaurs, and not Earl of Glencairn. 
 
 Lord Chancellor. — That will show, if it shows anything, that he thought himself 
 to be only Lord Kilmaurs. It may be that he mistook the effect of the Act Rescissory. 
 
 Mr. Attorney-General. — I will leave that point for your Lordships to deal with. 
 It is clear, if contemporaneous documents are to be referred to, to ascertain the effect of 
 the Act Rescissory, that it is erroneous to state that the Act Rescissory never was con- 
 sidered as applying to such a case as this. In this instance, the Earl of Glencairn dying 
 in June 1488, in the first Parliament which occurs afterwards his son, who ought to have 
 succeeded him as Earl Glencairn but for the Act Rescissory, acknowledges himself as 
 Lord Kilmaurs. So things continued till the year 1503, when your Lordships find, as 
 you will find {sic), that immediately after 1503 he assumes the title of Earl of Glencairn. 
 It goes a long way towards setting up the old Herald, whose particularity of description 
 carries truth upon the face of it. No one can doubt that the man saw that which he 
 has recorded. He says distinctly that he saw, upon the occasion of the marriage of 
 the King with the Princess Margaret, three noblemen belted as Earls. Your Lordships 
 are asked to consider that as a romance. It is not altogether without corroborating 
 authority. In Pinkerton's ' History of Scotland,' a work of accuracy and authority, I 
 find at page 332 
 
 Lord Brougham. — There are many doubts respecting its accuracy. 
 
 Mr. Attorney -General. — If your Lordship says so, I bow to your authority. 
 
 Lord Brougham. — It is said to be full of theory and full of prejudice. 
 
 Mr. Attorney- General. — It may be so in matters of opinion. 
 
 Lord Brougham. — It pervades the whole. 
 
 Mr. Attorney-General.— \ am only referring to a matter of fact of which he speaks. 
 He is speaking of certain charters granted by James III. in consequence of the services 
 rendered to him in the civil war by those who stood by him in the battle of Blackness. 
 He speaks of different creations, and says, "that for services upon this occasion Lord 
 " Kilmaurs was created Earl of Glencairn, but the title died in a few weeks with its 
 " owner, and was not revived till 1503," so that he evidently had some trace of the 
 creation of the title in the year 1503. If the Herald is to be believed, there is no doubt 
 about it. He gives a recital of all the events he witnessed upon the progress of the 
 Princess, whom he accompanied, and, being present at the marriage, he gives the whole 
 story of the belting of these three Earls upon the occasion of the marriage. It is said 
 
 2 E 
 
( 212 ) 
 
 that belting is not a mode of creating an Earldom in Scotland. It is not quite certain 
 that that can be asserted in absolute terms, for the learning and researches of my learned 
 friend the Lord Advocate immediately enabled him to put his hand upon the statute in which 
 belting is expressly referred to as one of the most solemn forms of the creation of an Earl. 
 But I will not dwell too much upon that. This was one of the statutes which was un- 
 questionably passed in the Scottish Parliament for rescinding the grants of property 
 which had been made by the Crown improvidently. This is an Act of June 1592 for 
 that purpose, in which, after a provision which declares such grants to be null and of no 
 effect, it expressly " excepts and reserves all creations, charters, and infeftments granted 
 " by his Highness of such parts and portions of the Kirk lands already erected into tem- 
 " poral lordships and baronies to such person or persons as have already since the said 
 " late Act of annexation, received the honours, orders, and estates of Lords of Parlia- 
 " ment by the solemn form of belting and other ceremonies observed in such cases." 
 From which it would rather appear that the form of belting, as far as Scotland is con- 
 cerned, was one of the modes in which an Earldom could be created. 
 
 But not insisting upon that too much as a proposition of history or law, I venture 
 to suggest, if your Lordships are satisfied upon the statement of the Herald that the then 
 Lord Kilmaurs was belted as Earl of Glencairn — though that belting may be considered 
 as a form of investiture only, and to pre-suppose the existence of some previous charter — 
 still, where you find that up to the year 1503, which is the year of the marriage, he 
 never assumes any other title than that of Lord Kilmaurs, and no other title is ever con- 
 ceded to him, if you find in 1503 he was belted an Earl, the fair inference would be, it 
 was at that time he was created, and that there must be a contemporaneous charter 
 which accounts for belting of a man who had up to that time never claimed the title of 
 Earl. 
 
 Lord Chancellor. — The ceremony of belting would be somewhat analogous to that 
 of coronation ? 
 
 Mr. Attorney-General. — It would be the external investiture. 
 
 Lord Chancellor. — If you desire to know in what year the King came to the 
 throne, if you could show that he was crowned upon a certain day, and that up to that day 
 he had described himself not as King, that would afford strong evidence that, though 
 the crowning was not that which made him King, there was a contemporaneous act 
 which did. 
 
 Mr. Attorney- General. — Yes, my Lord. 
 
 Lord Chancellor. — " At the offering were assembled three Noble Lords to be 
 " made Earls in the Queen's presence, and when the Mass was done they were presented 
 " to the King by Marchmont, herald. First, they promised to hold their oaths, and 
 " then the King girdled them with the sword above their shoulder, and gave them their 
 " Lordships to them and their heirs." Then the first is " James Darene, Lord of Hamilton, 
 " Baron, Bannerett, and Lord of Parliament." The second, " William Conte de 
 " Montros," and the last the " Conte de Glencarne." 
 
 Mr. Attorney-General. — Your Lordships are asked to dismiss that as if it were 
 merely a legend of romance, but I shall take the liberty of taking a different view of it. 
 If we find that Lord Kilmaurs continues Lord Kilmaurs till the year 1503, of which we 
 have positive proof, and then in 1505 we find him recorded in fact as Earl of Glencairn, 
 your Lordships, I think, would be fully warranted, in the absence of better evidence, in 
 presuming that in the interval between 1503 and 1505 something had been done by the 
 Crown which created him Earl of Glencairn, and that is all which is necessary for 
 my purpose. From that time downwards the Earl continues Earl of Glencairn. The 
 Earldom of Glencairn is a title recorded and recognized, and existing in the Scottish 
 Peerage and in Scottish history to a comparatively recent period. 
 
( 213 ) 
 
 Chairman. — Is not there in some of the papers the pedigree of the Glencairn 
 family ? 
 
 Mr. Attorney- General. — The Lord Advocate says, that in the Appeal Case in 
 1497, which is published separately,* your Lordships will find the pedigree. Now, let 
 us see whether the subsequent proceedings before the Court of Session have in any way 
 altered the position of things. Your Lordships are referred to the decision of that 
 Court as a binding authority. I admit that the decision of that Court is of great 
 authority, but certainly it is not binding upon your Lordships under the peculiar circum- 
 stances of this case, because it must never be forgotten that those important facts, to 
 which I have just been directing the attention of your Lordships, were not before the 
 Court of Session at all. The fact of the new creation in 1503 was not before them. 
 They did not know that up to 1503 the title had always been that of Lord Kilmaurs, 
 and not Earl of Glencairn. We find, in the records of the Scottish Parliament in 1505, 
 that he was entered as Lord Glencairn in the rolls of that Parliament, as of prior rank 
 and creation to Lord Eglinton, with whom a contest for precedency arose. They 
 naturally enough said, inasmuch as the Earl of Glencairn shows a prior title, a little 
 prior in point of creation, superior in point of priority to the title which Lord Eglinton 
 can make, it is but fair and right to assume that he is entitled to precedence. They 
 were pressed with the Act Rescissory ; but then, on the other hand, the counsel for 
 my Lord Glencairn asserted, as they do now, that the Act Eescissory was not intended 
 to apply, because it was intended to affect only the titles of those whose position and 
 dignity and power might be prejudicial to the Crown. They said the first Lord Glen- 
 cairn was a loyal nobleman, who perished fighting for his Sovereign, and therefore the 
 terms of the Act could not apply. When they were met with this observation, * Yes, 
 ' but it did apply in the case of the Duke of Montrose,' the answer is a very curious one — 
 ' The Duke of Montrose voluntarily resigned the Dukedom, and took one only for life.' 
 They bandy those arguments backwards and forwards over years of controversy, with a 
 prolixity of pleading which drives one almost to despair at the idea of having to go 
 through it. Two things are clear, — that no one denied the validity of the Act 
 Eescissory as an Act of the Scottish Parliament ; they only denied its application to the 
 particular case, but did not go so far as to deny it all authority whatever because it had 
 been passed by a Parliament of rebels. They said it did not apply to the particular act. 
 But they had not before them the fact of the creation in 1503, nor the fact, which I have 
 now brought before your Lordships' attention, that, up to that period. Lord Kilmaurs 
 had never dreamed of asserting his right to the title of Lord Glencairn. 
 
 Chairman. — Would not it be possible that this was the case ? There can be very 
 little doubt that Parliament intended the Act Rescissory to strike at those titles. The 
 question is whether^ the Act having struck at those titles. Lord Kilmaurs might not 
 have kept his patent in his pocket, and declined to take his seat under it, because he 
 knew that, if he produced it, it would be destroyed by that Parliament which had 
 passed the Act Rescissory. The patent might have been kept back till he could produce 
 it safely and take his seat upon it. There is no reason why a person sitting under an 
 inferior title should not have a right to a higher one. It is a case which frequently 
 occurs in this House — I may refer to the case of the Duke of Athol for instance. 
 
 Mr. Attorney- General. — Then why does he take the new title? I can under- 
 stand, upon the theory of your Lordship, that he might say, I will take the title of 
 Lord Kilmaurs at present, because, if I assume the title of Earl of Glencairn, I shall be 
 told that the Act Rescissory applies to it, and I shall be deprived of that title ; but your 
 Lordship finds that he takes a new title of Earl of Glencairn as from a posterior period. 
 
 * Sic. — The pedigree is given at p. 44 of the Claimant's Supplemental Case. 
 
 2E2 
 
( 814 ) 
 
 Chairman. — That is the point which the Court of Session decided ; he took the 
 title in 1503, but he took it as upon the Patent of 1488. 
 
 Mr. Attorney-General. — All the Court of Session had before them was this. They 
 had before them the fact that in the year 1505 he appears upon the Rolls of Parliament 
 as Earl of Glencairn ; they did not know or dream of his being reinstated in the title 
 of Earl of Glencairn in 1503. They assumed that, as they found him sitting as Earl of 
 Glencairn in 1505, he must have sat by virtue of the first title of 1488, and therefore 
 that the Act was not intended to apply to his case. 
 
 Chairman. — They call upon the other parties to produce any evidence of a sub- 
 sequent grant. 
 
 Mr. Attorney- General. — Yes, and they could not do it. They clearly had a very 
 distinct notion that there was such a thing, but they could only suggest it. The charter 
 has been lost, and, what is very curious, the charter never has been entered upon the 
 register. Whatever the charter was, if the creation was not by mere solemn investiture 
 by belting, if there was a charter it never found its way to the register. The result^ 
 therefore, was that there was nothing to produce. There was a profound conviction that 
 it must be so, but there was no evidence of the fact. 
 
 Chairman. — The Court of Session found that there was nothing in the Act 
 Rescissory preventing his assuming the title. 
 
 Mr. Attorney- General. — No, my Lord. The fact is this : they founded their 
 judgment upon the precedency; they said, '^ We find, in 1505, Lord Glencairn sitting, 
 ' and that Lord Eglinton did not sit.' 
 
 Chairman. — Was it not the fact that Lord Eglinton produced in evidence a deed 
 of some sort which was a proof of his being Earl of Eglinton in 1500 ? 
 
 Mr. Attorney- General. — No ; I think not. In the course of the proceedings that 
 deed was asserted to be, and proved to be, a forgery. Indeed it was admitted to be a 
 forgery, and they withdrew their claim upon it. It was admitted that it was a fictitious 
 deed, upon which they could not with any safety rest. It came at last to this, that, 
 inasmuch as one nobleman showed that he had sat in Parliament in 1505, anterior to 
 the grant of the Earldom to the other, the Court said, ' We will take that as a basis 
 ' upon which we can found our judgment, and we need not go back to see how the title 
 ' was acquired.' 
 
 Chairman.- — ^ Whether they were right or wrong, they accepted the patent 
 of 1488? 
 
 Mr. Attorney- General. — I will take care that that matter shall be brought more 
 fully before your Lordships than I am in a position at the present moment to bring it. 
 Undoubtedly, that decision was at once appealed from to Parliament, and Parliament 
 took a different view. There then arose the great conflict as to whether there was any 
 right of appeal to Parliament, which is now a matter of history. We know the unplea- 
 sant results which it led to between the Court of Session and the advocates practising in 
 those Courts. Thus the matter stood till the King interfered and denied the right of 
 appeal to Parliament, the Parliament nevertheless asserting it,^ — and it is a strikino- 
 fact, that in the Scottish Bill of Rights we find a distinct and express declaration that 
 there is an appeal to Parliament from the Court of Session. There is a distinct and 
 emphatic declaration in the Scotch Bill of Rights that it is the right and privilege of the 
 subjects of the King to appeal to Parliament "against sentences pronounced by the Lords 
 " of Session, provided the same do not stop the execution of those sentences." 
 
 Lord St. Leonards. — That is^ by the Lords of Session. The Lords of Session 
 originally sat as a Committee, did they not ? 
 
 Mr. Attorney- General. — I believe they did originally. 
 
( 215 ) 
 
 Lord St. Leonards. — There could be no reason why there should not, in proper 
 cases, be an appeal to the great body whom they represent. Then, when the College of 
 Justice was created, that Court was created with the authority of Parliament, and civil 
 cases were alone in general words submitted to that new Court. Under those words 
 there cannot be any doubt but that the Court of Session did take upon itself at certain 
 times jurisdiction over peerages ; but nobody can dispute, I think, that Parliament did 
 not lose its jurisdiction over peerages ; and I can see nothing which authorizes the pre- 
 sent practice of this House, and the power of this House, over Scottish Peerages in com- 
 mon with other Peerages, except the law of Scotland as it stood before the Union. 
 
 Mr. Attorney- General. — Just so, my Lord. There certainly is no Act of Par- 
 liament. 
 
 Lord St. Leonards. — The law of England applies, but it applies because of the 
 Union ; but there is nothing in the Act of Union which touches this question which I am 
 now addressing myself to. There is a particular provision for a particular case, but, 
 speaking of the general jurisdiction, it is left to the general right which existed. That 
 is the way in which I understand it. It is very material that we should understand 
 exactly what the jurisdiction is as it is now exercised, and as it was then exercised, 
 because a good deal turns upon it. 
 
 Mr. Attorney- General. — Your Lordships are undoubtedly exercising in Scottish 
 matters, by virtue of the Act of Union, the jurisdiction and power and authority which 
 the Scottish Parliament exercised. 
 
 Lord St. Leonards. — That is what I understand. You can hardly say that the 
 question of the right to a Peerage was a question in a civil case. No doubt it is not a 
 criminal case, but it is a case of jurisdiction, power, pre-eminence, and authority, and is 
 hardly a case which, under ordinary circumstances, would form the subject of determina- 
 tion by a Court of Justice, to whom a Parliamentary power was not expressly delegated. 
 
 Mr. Attorney- General. — I will not dwell longer upon the subject of the decision of 
 the Court of Session further than to say this, that, if there was an appeal to Parliament, 
 that appeal was made, and the decision of the Court below was reversed by Parliament, 
 although afterwards the King interfered, and put a stop to the whole controversy. But 
 I will take the liberty of saying that the Judgment of that Court is not a Judgment 
 binding upon your Lordships. It was a Judgment inter alios, and not in any way conclu- 
 sive upon the present case. At all events I am entitled to refer to the subsequent pro- 
 ceedings in your Lordships' House upon the subject of the Glencairn Peerage, when 
 certainly a very different view was taken by the Noble Lords who constituted the 
 Committee of Privileges from that which had been taken by the Court of Session. 
 
 My Lords, I am not going through all the various points of the Lord Chancellor's 
 opinion, treated certainly by my Learned Friend in a somewhat unceremonious way, not 
 in the way in which we are used to treat views and opinions expressed by such eminent 
 persons as the Lord Chancellor of the day. I am not disposed to go through the details 
 of it. It is sufficient for me that upon a point upon which the Lord Chancellor was 
 competent to form an opinion, namely, as to the effect of the Act Rescissory, he came to 
 the deliberate Judgment, which the House adopted, that the Act Rescissory was an 
 existing, valid, and binding Statute. For that purpose I cite that Judgment, and it is 
 most important with a view to the present Case. 
 
 There is another part of the Glencairn Case which must not be dismissed without 
 a word. Your Lordships are aware that with the original creation of the Earldom 
 there was a grant of lands which accompanied that creation, as is always the case in the 
 creation of Scottish Peerages. The lands of Drummond and of Duchray were united 
 with that Peerage, and it certainly is important to see whether, in the period between 
 
( 216 ) 
 
 the Act Rescissory and the new creation of the Earldom in 1503, those lands were ever 
 enjoyed by the Noble Grantee of the original Earldom. It is quite clear that they were 
 not. We have evidence before us here, that immediately after the accession of James IV. 
 and the Proclamation at Scone those lands remained in the Crown, and were never 
 claimed by Lord Kilmaurs from that time to the present till in the year 1514, after the 
 new creation of the Plarldom of Glencairn, the then Earl of Glencairn endeavoured to 
 obtain possession of them. 
 
 The history of that matter is to be found at page 35 of the Duke of Montrose's 
 Case, and it may be worth while to read it to your Lordships. In the first place 
 he adverts to the statement of the Noble Claimant in this Case, and says that the 
 Claimant introduces three documents as new evidence upon the subject. "Of these 
 " the first is an extract from a Responde Book of the Sheriff of Dumbarton, where 
 " the Sheriff is made responsible for large non-entry and relief duties payable in 
 "respect of seisin given to Cuthbert Earl of Glencairn (on 20th of January 1515) 
 " of the lands of Drummond and Duchray, which had been in non-entry in the 
 " King's hands for twenty-seven years and seven months. The Claimant triumphantly 
 " observes, * Earl Cuthbert makes up titles to the lands of Drummond and Duchray, 
 " ' which were granted to Earl Alexander, his grandfather, by the Patent 28th 
 "'May 1488. The Crown at once enters Earl Cuthbert in the lands in question by 
 " 'seisin and infeftment.' The observation of the Claimant," the Case of the Duke of 
 Montrose states, " is very much calculated to mislead. The facts are as follows : — Cuthbert 
 " Earl of Glencairn was a powerful nobleman. After securing the new creation of the 
 " Earldom in 1503, he waited a favourable opportunity for attempting to recover the 
 " lands of Drummond and Duchray, which had been included in the original grant of 
 " the Earldom to his grandfather. In the confusion that followed Flodden, in the end 
 " of 1514, or beginning of the following year, he obtained a service before the Sheriff 
 " of Dumbarton as heir to his grandfather in those lands, and had seisin on that retour 
 " of service. Thus far the Claimant's statement is consistent vrith the fact. But this 
 " is not all. Without delay the seisin so obtained was challenged. A summons of 
 " error was brought against the Sheriff and the inquest for serving the Earl heir to his 
 " grandfather in these lands, at the instance of the King, and of John Lord Drummond, 
 " and Dormond Drummond, who was originally known as Dormond McPherson, the 
 " proprietors respectively of Drummond and Duchray. The Court found that the lands 
 " were in the Sheriffdom of Stirling, and, therefore, the Sheriff of Dumbarton had 
 " acted beyond his jurisdiction ; that the lands belonged to the King in superiority, and 
 " to the two Drummonds in (feu-farm) property ; that instead of Alexander Earl of 
 " Glencairn, King James III. and King James IV. died vested and seized of the lands, 
 " and were proprietors until the grants given by the Crown to the Drummonds, namely, 
 " to Lord Drummond (of the lands of Drummond) twenty-four years by-past, and to 
 " Dormond (of the lands of Duchray) five years by -past ; therefore the Lords decreed 
 " the retour, seisin, process, and all that followed thereupon, to be retreated, cassed, and 
 " annulled, with sentence of confiscation and imprisonment against the persons of the 
 " inquest for their false service. The Earl of Glencairn afterwards tried to open up 
 " that judgment, but ineffectually. The judgment of the Court annulled the seisin of 
 " Earl Cuthbert as obtained on false grounds." Then it goes on to say, " There was 
 " a separate process, at the instance of the same parties, against Earl Cuthbert for the 
 " wrongful uptaking by him of the rents of the lands of Drummond and Duchray of 
 "the Martinmas term of 1515, and of both terms of the year 1516. The Lords 
 " decreed that the Earl had done wrong in the uptaking of those rents, and ordained 
 " him to repay the same, as well as to desist in future. From the Drummonds, the 
 
( 21? ) 
 
 " lands of Drymen, and part of the lands of Duchray, have come by a regular progress 
 " of titles into the possession of the Petitioner,"— that is, the present Duke of Montrose. 
 " The remaining part of Duchray, passing through the same channel, is now the pro- 
 " perty of Mr. Graham Stirling, of Duchray." 
 
 We have therefore here, as in the other case, that the lands which formed part 
 of the grant of the Earldom, which were the corpus upon which the honours of the 
 Earldom attached in the original grant, never came into the hands of the Earl of Glen- 
 cairn or Lord Kilmaurs till an attempt was made in the year 1515 by the then Earl of 
 Glencairn, who had obtained the grant of the Earldom by recent creation, to obtain 
 possession of those lands, which attempt was defeated. 
 
 My Lords, all I will take the liberty of asking your Lordships to do is to look at 
 this Case as though there had been no judgment at all, either by the Court of Session or 
 even by the Committee of your Lordships' House,— though I should say that is un- 
 doubtedly high and potent authority upon this question of the Glencairn Peerage. Your 
 Lordships will find that to the year 1503, under the operation of the Rescissory Act, as 
 I contend, the Earls of Glencairn were satisfied with the title of Lords Kilmaurs, and 
 that the lands which had formed part of the grant under the original Act were never 
 enjoyed by them at all. I say that neither the Court of Session nor the Committee of 
 your Lordships' House had before them the facts which we have now laid before your 
 Lordships ; and I feel perfectly satisfied that your Lordships, upon a review of those 
 facts, will be of opinion that the Act Rescissory did apply to this title of Glencairn ; and 
 that it took away the title up to the period of the new creation, and took away the lands 
 altogether, which were not regranted at the time of the new creation. 
 
 My Lords, this is not a new theory or doctrine on our part. I have before me 
 no mean authority upon the subject. One of your Lordships has been pleased to pass a 
 not unmerited compliment upon the learning and the research which have been mani- 
 fested in getting up the Case for the Noble Claimant. That Case has been prepared by 
 a gentleman of the highest learning, research, and authority upon the subject of Scottish 
 peerages. I can say no more, because he sits beside me. He appears here as counsel 
 for the Claimant of the Dukedom of Montrose. I hold this book in my hand ; and 
 allow me, against the authority of the various statements, the quantity of learning spread 
 over the Case, and a considerable quantity of statement, perhaps without authority, 
 which is to be found there, and which, if that learned gentleman who prepared it had 
 not been counsel in this Case, would be entitled to the highest authority at your Lord- 
 ships' hands ; allow me, by way of a little set off against all that, to tell you what he 
 has written on the subject of the Glencairn Peerage. I appeal from the counsel to the 
 author: I appeal from the interested advocate to the disinterested historian. I have 
 before me the second volume of ' The Law and Practice in Scottish Peerages,' by the 
 very eminent and learned practitioner, Mr. Riddell. At page 8191 find he states this : — 
 
 "■ The Earldom of Glencairn, which now furnishes the next subject of inquiry, 
 " was first bestowed by James IH., the 28th of May 1488, upon Alexander Cunning- 
 " ham. Lord of Kilmaurs (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 accompanying grant of the lands of Drummond and Duchray in 
 " the charter of constitution of the above date, ' in augmentationem sui vitalis redditus, et 
 "'ad sustentationem sui status et honoris,' to the party 'etheredibus suis.' But the 
 " Earldom necessarily sunk for the time by the Act of James IV. thereafter, the I7th of 
 " October 1488, chapter 19." This is the Act which my learned friend, suggesting 
 arguments to the learned counsel who was addressing your Lordships, instructs him, or 
 authorizes him, upon his authority, to say, was an act of no authority whatever. But he 
 
( 218 ) •■ . 
 
 refers us here to the Act of the " 17th of October 1488, chapter 19, rescinding all 
 " heritable grants and ' creatioune of new digniteis ' conferred by his then deceased 
 " father James III. since the 2nd of February 1487^ comprising of course that of Glen- 
 " cairn. In consequence of this, Robert, son and heir of the grantee, who had fallen 
 " at Bannockburn on the 12th 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 of Lord 
 " Kilmaurs. Cuthbert, his son and heir, again, also originally figured exclusively under 
 " such title; but on the 18th of November 1505, he is entered in the Rolls of Parlia- 
 " ment as ^ Earl of Glencairn;' and there is a charter, the 24th July 1511, of the 
 " Comitatus and Baronia of Glencairn, affording the first legal notice of the Comitatus 
 " (an epithet, as repeatedly illustrated, then and considerably afterwards, carrying the 
 " dignity) to himself in life rent, and to William his son (subsequently Earl) in fee 
 " ' et heredibus suis.' The Earldom had hence now been validly and heritably con- 
 " stituted ; as to the precise date and nature of constitution, more will transpire. Long 
 " after, at the much later period of the seventeenth century (before the middle), there 
 " are upon record settlements of the lands to heirs male. On the 21st July 1637, 
 " Charles I. confirmed the original grant of the dignity of Glencairn in 1488 in favour 
 " of Wilham Earl of Glencairn, the heir general as well as direct heir male, and of his 
 " heirs and successors ; but the confirmation, being strangely qualified and only ' secundum 
 " ' validitatem ' of the former, thus added nothing more than it imported, and purely left 
 " things in their pristine condition." 
 
 In another place, namely, in the first volume, at the 12th page, referring to the 
 decision of your Lordships' House in the matter of the Glencairn Peerage, and dis- 
 cussing the question involved on the appeal in that Glencairn Case from the Court of 
 Session to the Parliament of Scotland, he has this passage : " The noblemen who had 
 " been repeatedly vanquished, rankling under their defeats, had now recourse to what 
 " was deemed a very bold and exceptionable step. Profiting by the distractions of the 
 " period, they appealed to Parliament, who, by an order dated 15th February 1649, 
 " charged the Earl of Glencairn to appear and to produce the Patent of his dignity in 
 " 1488. It may be here mentioned, that the question between the parties turned espe- 
 " cially upon this grant. If valid, it gave Glencairn precedence over his opponents ; if 
 " not, there was room for argument ; and, in fact, it was justly found by a British House 
 " of Peers, upon the claim of Sir Adam Fergusson, the heir general to the Glencairn 
 " honours, on the 11th of July 1797, that the above Patent had been rescinded by Act 
 " of Parliament the year it passed, when the family were reduced to their previous ranlc 
 " of Lords Kilmaurs. This continued their style till 1503, when they were first legally 
 " created Earls of Glencairn." And now my learned friend is counsel for the Claimant, 
 and assisting my learned friends the Solicitor- General and Sir FitzRoy Kelly in con- 
 tending before your Lordships that the Act Rescissory did not apply to the Earldom of 
 Glencairn, and the Earl of Glencairn was Earl of Glencairn from the year 1488 instead 
 of 1503, as that book expressly states. I will not trouble your Lordships any further upon 
 this point. I say, if the case of the Earldom of Glencairn be rightly looked at it 
 fortifies the case we are submitting to you on the part of the Crown ; it shows that the Act 
 Rescissory did affect the Earldom of Glencairn, and therefore it must as far at 
 least, as the evidence of that case shows anything, have affected also the Dukedom of 
 Montrose. 
 
 Against this case on the part of the Crown, what is there set up on the other 
 side ? No adverse use — no enjoyment — nothing but speculation and surmise. Yet two 
 Acts of Parliament are referred to, and it is said that one shows that the Act Rescissory 
 
( 219 ) 
 
 was not intended to apply to dignities, and the other that the King, repenting of the 
 hne of conduct that he had pursued in reference to it, felt desirous to abrogate that Act 
 as a thing which was hurtful to his conscience. 
 
 The one in which it appears that all grants were struck at, and parties ordered to 
 bring in their grants and charters, it is true refers to grants of estates and of offices, and 
 not of Dignities ; but the obvious reason why Dignities were not included was this — that 
 they were not meant to be struck at. The Duke of Montrose had admitted the effect 
 of the Act, and had accepted a new grant of a new Dukedom, not of an hereditary cha- 
 racter, but simply for life. Lord Kilmaurs had admitted the effect of the Act Rescissory, 
 had abstained from ever asserting or seeking to assert his title to the Earldom of Glen- 
 cairn, and had consented to be served heir to his father, under the modest title of Lord 
 Kilmaurs. There was therefore no necessity why the feelings of those two noblemen 
 should be wounded by a repetition of the enactment in reference to Dignities — they 
 having submitted to the operation of the first Act. 
 
 The other Act was passed in 1503 with reference to matters hurtful to the King's 
 conscience. No doubt he was repentant of the undutiful and unfilial course which he had 
 pursued towards his father. But what was this Act ? Nothing but a mere salve to his 
 conscience, framed in the most vague and unmeaning terms, and clearly not applicable 
 to a case like the present, unless your Lordships find an immediate reference to the case 
 of these Dignities, or anything to show that it had ever been considered to operate upon 
 them. The proof that it was not so intended is found in this circumstance : — The Act 
 passed in 1503_, and the King — who is supposed when passing this Act of Parliament to 
 have had in his mind the case of the annulling the Dukedom of Montrose, from a desire 
 to restore ad integrum a man whom he had injured to the hurting of his conscience — in 
 that year, and within two months of the passing of this Act of Parliament, creates the 
 Earldom of Montrose, as it were in derogation and defiance of the title of Duke. The 
 Duke of Montrose whom he had created for life was dead. The title was vacant, and 
 he appointed in the very year in which that statute passed a new Earldom, creating this 
 title from the lands of Montrose. I am told in the one instrument it was Old Montrose, 
 in the other New Montrose. It may be that the lands which founded the one, or the 
 estate which founded the one, was in Old Montrose, and the other in the New, but the 
 title was a Dukedom in the Old, and in the other the Earldom of Montrose simply 
 without any distinction of New or Old. It is the most improbable thing that can be 
 suggested, that the Sovereign, if he desired to make reparation to the heirs or the family 
 of the old Duke of Montrose, created by his father, instead of calling the son of that 
 man who was now dead to the ancient Dukedom, instead of calling upon John the son of 
 the Duke of Montrose to resume the family honours and the Dukedom affected by the 
 Act Rescissory, should in that very year create an Earl of Montrose in derogation of the 
 ancient title of Duke of Montrose ; it is absurd, as it appears to me, to suppose that the 
 King in passing that statute had anything in his mind in reference to this case. 
 
 Your Lordships have been told of other cases which have been considered to 
 have been affected by the Act Rescissory, in which Charters of Confirmation were granted 
 by the Crown. They reduce themselves to two or three. One, the case of the Sheriff- 
 dom of Stirling, was clearly not applicable. It was not a case coming within the Act 
 Rescissory ; it was a case in which the Erskines had an hereditary right to the Sheriffdom 
 of Stirling ; and by a grant in the year 1488 they assigned it for a period of years to the 
 Commissioners. The King was a- party by the charter of confirmation to that grant ; 
 but it was one of those things that had been granted by the King in respect of what the 
 Act Rescissory was pleased to term " the perverse counsel " of his party. 
 
 There are one or two other cases of trifling moment in whic;h it was not thought 
 
 2 F 
 
( 220 ) 
 
 worth while to divest the parties of their estates. We have several cases which will be 
 put in evidence of estates which were granted by the King in the last years of his reign, 
 and which were affected by the Act Rescissory ; and we will show your Lordships that 
 possession of them was taken by the Crown, and was given by the Crown to other parties. 
 I will not anticipate that evidence in the observations which will be made upon it by 
 my learned friend the Lord Advocate. 
 
 Lord Brougham. — With respect to the jurisdiction of Parliament over questions 
 of peerage, the decision of which was certainly, generally speaking, vested in the Court 
 of Session, the difficulty is this,— How did this House after the Union obtain that which 
 undeniably it has ever since the Union exercised without any dispute, namely, a juris- 
 diction in all questions of Scotch peerage, precisely as it has in questions of English 
 peerage ? 
 
 Mr. Attorney- General. — During the time your Lordship was momentarily absent 
 a similar observation fell from the Noble and Learned Lord St. Leonards. 
 
 Lord By^ougham. — How do you account for our having it, except by the fact of 
 our having succeeded to the jurisdiction of the Scotch Parliament ? 
 
 Mr. Attorney- General. — Clearly that is the origin of it, my Lord. 
 Lord Brougham. — There is nothing in the Act of Union about it ? 
 Mr. Attorney- General. — No, my Lord, nor in any Act of Parliament. There is 
 no legislative authority for it. It can only be derived from the fact that your Lordships 
 are by the Act of Union the successors of the Scottish Parliament. 
 
 Lord Brougham. — Can we succeed to an estate which they had not ? 
 Mr. Attorney- General. — It is by no means certain that they had it not. We have 
 an instance or two of it. 
 
 Lord Brougham. — Our having it, if it were doubtful, would be a strong argument 
 in favour of their having it. 
 
 Mr. Attoriiey-General. — No doubt, my Lord. With respect to that question of 
 Scotch jurisdiction I do not intend to trouble your Lordships by saying more than a word 
 or two. My learned friend the Lord Advocate, who is very conversant with these things, 
 which I do not pretend to be, is fully prepared to go into it when the time shall arrive. 
 The only matter I would take the liberty of suggesting to your Lordships upon the 
 subject is this, — that this decision of the Court of Session is clearly a decree inter alios. 
 The question was not before the Court in this particular case ; and therefore your Lord- 
 ships, before you would look upon it as an authority to weigh with you, would take 
 into consideration whether that Court had before it the means of forming a judgment, 
 which your Lordships now have. It is clear that they had not ; for all the important 
 facts we have brought under your Lordships' attention were unknown to them in the 
 course of that discussion. 
 
 Lord St. Leonards. — The way in which Lord Kames puts it in his Law Tracts, 
 page 226, is this : — " The Court of Session hath an original jurisdiction in matters of 
 " property, and in everything that comes under the notion of pecuniary interest. Matters 
 " of rank and precedency, and of bearing arms, belong to the jurisdiction of the Lord 
 " Lyon. To determine a right of peerage is the exclusive privilege of the House of 
 " Lords. Nor has the Court of Session an original jurisdiction with respect to the quali- 
 " fications of those who elect or are elected Members of Parliament. The reason is that 
 " none of the foregoing claims make a pecuniary interest. The Court of Session there- 
 " fore assumed a jurisdiction which they had not, when they sustained themselves judo'es 
 " in the dispute of precedency betwixt the Earls of Crawford and Sutherland. It was a 
 " still bolder step to sustain themselves judges in the peerage of Oliphant, mentioned in 
 " Durie's Decisions; and in the peerage of Lovat^ decided a few years ago." By the 
 
( 221 ) 
 
 Scotch Act of March 1457, there is a provision as to how the matter shall be brought 
 before the Lords of Session ; and there it was that the difficulties arose : — " All other 
 " causes pertaining to the knowledge of the said Lords shall be entirely decided and 
 " determined by them, without any remedy of appellation to the King or the Parlia- 
 " ment," — which means either to the one or the other. On the 17th day of May 1537, 
 by Chapter 36, the College of Justice was intended to be instituted and authorized by 
 Parliament for the trying and administration of justice in all civil actions. The question 
 is, whether the College of Justice, being established for the trying and administration of 
 justice in all civil actions, had jurisdiction, exclusively and without appeal, over dig- 
 nities ? The only way in which I believe that could have been arrived at was this : that 
 the Lords of Session had a right to decide and to determine " without any remedy of 
 " appellation to the King or the Parliament ;" but I find no such words with respect to 
 Court of Session. The right evidently has not been taken away, and it is only because 
 the right was vested in the Parliament of Scotland that it can have devolved upon the 
 Parliament of England since the Union. 
 
 Mr. Attorney -General. — Clearly so, my Lord. 
 
 Lord Advocate. — With regard to that point, I would call your Lordships' attention 
 to an Act of 1587, which relates to questions of precedence in Parliament — "That none 
 " of his Estates shall presume in time coming to make quarrel or provocation of trouble 
 " to other for priority of places or votes in Parliament otherwise than by supplication, 
 " and content them with the order and direction of his Highness and his said Estates ay 
 " and till their final decision of controversy, under pain to be reputed and holden as 
 " disturbers of the public peace and quietness of the realm," — plainly putting questions 
 of peerage within the jurisdiction of Parliament. 
 
 Lord St. Leonards. — There is no doubt that this House has not usurped any power. 
 It has exercised the power which properly devolves upon it in consequence of the 
 Union. 
 
 Lord Advocate. — Your Lordships will find after that dispute, which began at the 
 time of the King's letter, between the Advocates and the Court, the Estates of Parliament 
 stated it as a grievance ; and Erskine lays it down from that time forward that there had 
 been a constant right of appeal to the Scotch Parliament, which, after the Union, de- 
 volved upon the Parliament of England. 
 
 Mr. Attorney- General. — My Lords, I come back to the point from which I started. 
 I say that it is incumbent upon the Noble Claimant, who brings forward this claim after 
 so long a period of time, to make it out most clearly and most conclusively before your 
 Lordships — I say that the whole case which he submits to you rests upon speculation and 
 surmise and hypothesis. You have, on the other hand, as antagonistic to that claim, and 
 as adverse to it, very clear and distinct facts^you have the fact that an Act was passed by 
 the Scottish Legislature which in its terms is applicable to this case, because it distinctly 
 and in express terms struck at dignities created within a certain period : there were two 
 such dignities, and this is one. We find that, in consequence of that Act, the dignities 
 fell in both cases— in the case of Montrose, and in the case of Glencairn. We find that 
 both dignities were revived, but revived by new grants. 
 
 We find that, coupled and united with both dignities, there were territorial grants 
 also. We find that the territorial grant — the grant of estates which were conferred upon 
 the Dukedom by both the first and the second grant— was not followed up under the 
 first grant, but was followed up under the second grant, but only co-extensive with the 
 duration of that grant, which was for life. We find upon the death of the new grantee both 
 the dignities cease — the title is at an end, and the estates revert to the Crown. We find 
 in the second case, in the Glencairn case, the estates which were not included in the new 
 
 2F 2 
 
( 222 ) 
 
 grant fell with the old, and never were enjoyed by the grantee of the dignity of the Earl 
 of Glencairn. 
 
 My Lords, I want to know against such facts what there is in the case of the 
 Noble Claimant? We have had a long, an elaborate argument, subtle disquisition, 
 and a vast deal of hypothesis and speculation ; but I protest, when I come to put my 
 hand upon the facts, and to see how those facts bear, I cannot understand how they are 
 to support the conclusions which are sought to be based upon them. If it be conceded, 
 which I think it must be, that the Act of the Scottish Legislature was an Act applicable 
 to the case in question, who can contend that the Scottish Legislature at that day had not 
 the power, if they thought proper, thus to deal with it ? However unjust it might be, it 
 was inherent in their province, and in their functions as a Legislature, if they should 
 choose to annihilate dignities which had been created in the previous reign. It might 
 have been wrong. The motive might have been bad, but the power and authority no 
 one can deny. Here is an Act of Parliament which does it^ and does it in express terms. 
 When I recollect who were the subjects of that legislative enactment — who, at the time 
 in question, were to put on an exposition upon that Act of Parliament, and to act upon 
 it, and who did put upon it the interpretation which has remained from that time till 
 the present claim — when I look at the case of the INoble Claimant, stripped of all that 
 elaborate argument, fanciful declamation, with which part of it was adorned, and seek to 
 put it into the shape of simple, intelligible propositions, which your Lordships can at 
 once appreciate, and upon which your judgment can be brought to bear, I protest I 
 cannot understand how this case can be possibly put before your Lordships in a way 
 which will give you the slightest difficulty to decide. On the part of the Crown I shall 
 put in the evidence which I have referred to your Lordships. I shall leave any matter 
 of law which may arise upon the subject to the much abler and better hands of my 
 learned coadjutor, the Lord Advocate. I am sure your Lordships will exercise a sound 
 judgment upon the subject. 
 
 Whatever may be your decision, of course the Crown will be satisfied with it ; 
 but I cannot but submit to your Lordships, as part of my duty, that no case has been 
 made out to support the Claim which is now under your consideration. 
 
 Lord Advocate. — My Lords, I hope to discharge my duty in summing up the 
 Case on the part of the Crown, without any very lengthened citation, or indeed with 
 hardly any citation, of the documents already so fully before your Lordships. My duty 
 is to advert to those difficulties which are felt by the advisers of the CroAvn Avith 
 reference to this claim, to place those difficulties before the Committee, and to leave the 
 decision in the hands of your Lordships. It is not my place to press any points which 
 I do not think are well worthy of consideration. The only duty I have to discharge is, 
 to make sure that what are felt by us to be the real difficulties of the case are fully and 
 completely laid before your Lordships. 
 
 My Lords, no doubt this case has assumed a very intricate and elaborate character, 
 which is not to be wondered at when it is recollected over what period of time the 
 investigation has lasted. And I think it is rather wonderful that we have been able to 
 obtain so much accurate and clear information upon the various circumstances that took 
 place at a distance of three hundred and fifty years, than a matter of surprise that so 
 great an amount of details have accumulated over this Case. At the same time, now 
 
( 223 ) 
 
 that the details have been sifted, now that they are all brought together into something 
 like a tangible point, I do not think that the Case, as it now presents itself, is one of 
 intricacy, nor do I think it one of difficulty. The tale that has been told you, beginning 
 in the year 1488, appears humbly to me to be one of considerable romance, yet of very 
 little intricacy or difficulty indeed". 
 
 My Lords, the case seems to be this :— The Earl of Crawford, evidently a man of 
 great ability, and enterprise, and power, a man who stood very high in the service of 
 his Sovereign, at length rose to be the most powerful noble of his time. No doubt he 
 had great influence over James III. ; and at the battle of Blackness, unlike many of 
 the Peers who were with him on that occasion, he remained, almost alone, faithful 
 to the Monarch; and, in consequence of that service, he was raised to a distinction 
 unknown at the time among the subjects in Scotland, — that of the Dukedom of Mont- 
 rose. A very few days afterwards the battle of Stirling took place; the Earl of 
 Crawford was there and escaped. The Monarch was killed, the son succeeded, and the 
 victorious party commenced to put their victory to the uses and purposes which they 
 desired ; not, however, with very great severity when we consider the nature of the 
 times, and the other examples of a similar kind that history furnishes. For they pro- 
 ceeded first, by Proclamation, to deprive their rivals of those distinctions that the 
 King had conferred upon them, and then to put that Proclamation into the force of law 
 by this Act, which is called the Rescissory Act ; and without specification of particular 
 persons or grants, they annulled and set aside all the grants which had been made 
 since the 2nd of February preceding, on the plain ground that at that time the King 
 was in the hands of the enemies of the Constitution ; that he was in the hands of those 
 who were of the "perverse counsel," instead of those who were called of the better 
 opinion ; and on the ground that those grants were therefore prejudicial both to the 
 King himself and to the good of the commonwealth. 
 
 Now, the great dignity that the Duke of Montrose had achieved fell under the terms 
 of this Rescissory Act unquestionably, as I imagine the evidence has proved. The Duke 
 himself, wisely probably, succumbed to the sentence of the Parliament. He did not 
 assume the title of Duke of Montrose from that time forward until the next year. But he 
 was fortunate enough and powerful enough to be able to take his seat in Parliament under 
 his old ancestral title of Earl of Crawford. He sat in the first Parliament of James IV. — 
 the very Parliament that passed that Act. I believe he did not attend the Parliament 
 much afterwards. But the next year he had made his peace with the King so far that 
 another Act of Parliament was obtained reviving the Dukedom, but reviving it only for 
 his life. Accordingly he continued to be Duke for his life, and he enjoyed the 
 emoluments which had been attached to the Dukedom for his life. With his life fell 
 the honour; with his life the estates reverted. The distinction of the Dukedom went 
 down almost as rapidly as it had risen, and for three centuries and a half there has been 
 no Dukedom of Montrose in the family of Crawford. 
 
 My Lords, that seems to me to be the simple result of this lengthened investi- 
 gation. But I shall now go on as shortly as I can to bring before your Lordships the 
 grounds on which I think that this plain state of facts, as disclosed by all the evidence 
 that has been produced, cannot be met by the conclusions which had been pressed upon 
 your Lordships' attention by the Claimant. It is unnecessary of course in this stage of 
 the argument to say one single word upon the destination in the patent. That is a 
 matter that is reserved for future consideration, if your Lordships should be satisfied 
 that any patent exists. It is thought on the part of the Crown that there is very great 
 doubt upon that question, and that the destination in the patent in truth would not carry 
 the title or dignity to the Claimant. 
 
( 224 ) 
 
 Lord St. Leonards. — We expressly postponed that question. 
 
 Lord Advocate. — There is another question which has been raised, namely, 
 whether this Grant which was made was ever truly completed by having passed the 
 Great Seal. But it does not appear to me that upon that subject there is now any neces- 
 sity for my saying a word. I come, however, my Lords, to the Act Kescissory itself. 
 There has been a great deal of ai-gument and a great deal of illustration and some decla- 
 mation upon the subject of this Act. I think the Act itself is one of the simplest possible 
 character. Of its objects there can be no doubt whatever, and of its legal effect as little 
 doubt. Its object was to set aside the Grants of Dignities and Grants of Lands which had 
 been made by the King to those who were in his confidence at the time ; and that its 
 effect was to rescind and cut down those Grants is, I think, equally clear. My Lords, I 
 need hardly enter into the argument, much as was said on the other side upon that sub- 
 ject. For, looking at it, not in a popular view, but in a legal view, I need surely not 
 enter into the argument that was maintained, that, because the Act of Parliament bore 
 that the titles and grants which it intended to rescind were titles and grants that were 
 prejudicial to the King and to the common good of the realm, therefore the Earl of 
 Crawford, being a loyal subject and having stood by his King to the last, could not by 
 possibility be included in the terms of that Act. My Lords, we must read the Act in 
 the language of the times. It is a question of construction, not a question of impression. 
 The question is — What did these words intend when they were used, — "prejudicial to the 
 " King and to the common good of the realm? " The words are these : — " Item, anent 
 " the Proclamatione maid at Scone, it is statut and ordainit that all alienacions of landis, 
 " heretage, lang takkis, feu fermez, officez, tailzeis, blanceferm, creacion of new digniteis, 
 " granted or gevin to ony persone or persones, of what estate, condicioun, or degree that 
 " ever thai be of, sene the secund day of P'ebruar last by-past, be our soverane Lordis 
 " faider, quham God assoilzie "—(your Lordships observe he is not called " the late 
 " King " — he is called " our sovereign Lord's Father"), " quhilk mycht be prejudiciale to 
 " our soverane Lord and to the Crowne that now is, be cassit and adnullit and of nane 
 " effect nor force in ony time to cum, becaus that sic alienacion, giftis, and privileges 
 " war grantit sene the said tyme for the assistance to the perverst counsell that war 
 " contrar the comon gud of the realme, and cans of the slauchter of our soveraine 
 " Lordis fader." 
 
 Now it has been said that this was a rebellious Parliament, and that this was the 
 first act of a successful rebellion. It may be so. It is clearly an Act upon the Statute- 
 book. It may be the result of a successful rebellion. In fact, if all the Acts of Par- 
 liament that were passed by parties who have risen against the authorities that were 
 then in existence were to be treated, not according to their legal effect, but according 
 to the opinion which might be entertained of the loyalty of those that passed them, 
 such a principle would have a very extensive application to many Acts which are at 
 present in the strongest and strictest observance. My Lords, in the various revolutions 
 and other disturbances that have taken place in both countries, that has been the 
 uniform system, that the successful party rescinds the acts of the other. In the same 
 way, in Charles II.'s time, there are many of these annulling and rescinding statutes ; 
 and again, after the Revolution, there was a statute rescinding the forfeitures of 
 Charles 11. in the strongest possible terms. The question is. Is this the law of the 
 land ? Does it stand upon the Statute Book ; is it regularly passed? If it be so if it 
 has all the force of an Act of Parliament, the fact that that Parliament was presided 
 over by a son who had been in rebellion against his father, manifestly and plainly can 
 have no effect upon its terms. Then, if that be so, the fact that it was passed by what is 
 called a rebellious Parliament makes the construction of the Act perfectly certain ; 
 
( 225 ) 
 
 , because what did the Parliament mean by speaking of grants to persons " which might 
 " be prejudicial to our Sovereign Lord and to the Crown that now is, be cassed and 
 " annulled and of none effect nor force in any time to come, because that such aliena- 
 " tions, gifts, and privileges were granted since the said time for the assistance of the 
 " perverse counsel that was contrary (to) the common good of the realm ? " These 
 words in the mouth of a Parliament which is called "rebellious" mean nothing else 
 than grants to parties who had given the King the " perverse counsel " which they say 
 led to his death. Beyond all question, as matter of fact as well as matter of construction, 
 this Act of Parliament was intended to apply to those dignities (there were only two of 
 them) which had been granted to the two most powerful enemies that the discontented 
 nobles had, namely the Earl of Glencairn and the Duke of Montrose — there were no 
 others — it was against them, as far as dignities were concerned, that this Act was directed, 
 and upon them both it took effect. 
 
 But, my Lords, it has been objected that this Act, being an Act expressed in 
 general terms, will not take effect without some ulterior proceeding with reference to 
 parties not named in it. And it has also been said (and probably I had better speak of 
 that in the first instance) that it was not regularly a statute at all, because it does not 
 bear to be passed by the Three Estates of the realm. But I need hardly say that it is not 
 at all usual or necessary, especially in old Acts of Parliament, that particular statutes 
 should bear that they were passed by the King, Lords, and Commons, or by the Sove- 
 reign with the consent of the Estates ; and in this very Parliament your Lordships will 
 find a great variety of statutes in the same way which do not commence with the asser- 
 tion that they were made by the Sovereign with the consent of the Estates of Parliament. 
 The ordinary way seems to have been this, — that at the commencement of the session of 
 Parliament there is a general statement — " These are the Acts that were passed with the 
 " consent of the Parliament ; " and then the different statutes proceed without any further 
 allusion to the consent of the Estates or of the Sovereign. I may as well also mention 
 to your Lordships how the fact stands with reference to the presence of the Sovereign 
 in this particular ParUament. Your Lordships will find the Acts that were passed 
 with reference to the Rising or Battle of Stirling from page 206 to page 212 of the 
 second volume of the Statutes ; and it appears that in the Parliament which was then 
 holden, which seems to have extended over about a week, the King was present at 
 most of the proceedings. I find, in particular, on the 17th of October, the King was 
 personally present. The heading of it bears — " In Parliamento Excellentissimi Prin- 
 "■ cipisac Domini nostri metuendissimi Domini, Jacobi quartj, Dei Gratia Regis Scotorum 
 " Illustrissimi, tento apud Edinburghum, in prgetorio ejusdem, die Veneris, xvii° die mensis 
 " Octobris, anno Domini millesimo quadringentesimo octuagesimo octavo, coram prsefato 
 " supremo Domino nostro Rege ibidem personaliter sedente." So that he was personally 
 present at the meeting of Parliament on the day when the Act was passed. Then comes 
 " Haec sunt acta et statuta facta et confirmata in Parliamento prescripto." Then 
 there are a variety of Statutes, most of them with reference to the battle of Stirling. 
 The fifth is this. It begins, " Item, it is advised and concluded, that all burgesses 
 " and merchantmen dwelling to Burgh, and using the Courss of Merchants, and all 
 " unlanded men dwelling to landward, that any goods were taken from either by obliga- 
 " tion or other ways since the time of the Field of Stirling be restored again to the 
 " persons and owners that they were taken from " — an Act of Parliament intended to 
 restore the goods of the lieges that had been taken, I suppose by the armies. Then there 
 is the sixth, which begins, " It is statute and ordained that for the great and high dis- 
 " pleasure that our Sovereign Lord has taken against them that were of that ilk opinion, 
 " and in field at Stirling against him," showing plainly what the opinion of the 
 
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 Parliament was upon the matter, " contrary to the common good of the realm and 
 " destruction of the same, and was the cause of the slaughter and decease of the sometime 
 " King his father, anent all persons, whatsoever state or degree they be of, that have 
 " had office of him, that is to say, Wardens, Justices," and so on, " should be secluded 
 " and suspended from their said offices." 
 
 My Lords, I need not quote any further instances ; a reference to the book will be 
 sufficient to show that I am right in my statement that these Acts of Parliament do not 
 bear at the commencement of each of them the authority of the King with the consent 
 of the Three Estates of the realm ; but they commence, " It is statute and ordained :" 
 and accordingly the Rescissory Act begins, " Item, anent the proclamation made at 
 " Scone, it is statute and ordained," and so on. It is altogether impossible to maintain 
 as a point of law that it is necessary to the validity of Scottish Acts of Parliament that 
 they should begin with the consent of the Sovereign. The Sovereign was there per- 
 sonally present. The Acts are introduced with the narrative or statement, " These are 
 " the Acts of Parliament :" and that is quite sufficient to give them validity. 
 
 My Lords, if there were any doubt upon that subject, the authority of Lord Stair 
 is quite conclusive upon it, because it appears that the very objection had been taken at 
 that time ; and I find that, in Book 4, Title 1, Section 24, it is said, " Some also may 
 " imagine that that part of the institution of the College of Justice in the said Parlia- 
 " ment, 1537, cap. 68, intituled ' The King's good mind anent the Lords of Session,' is 
 " not an Act of Parliament, because it does not repeat the words of the consent of the 
 " Estates of Parliament, which imports nothing, for whatsoever is recorded amongst the 
 " Acts of Parliament was certainly with consent of the King and Three Estates, though 
 " some bear only the King, and some only the Estates, and some only the Lords of 
 " Articles." It is therefore unquestionably clear that this Act of Parliament, whatever 
 may be its effect, is a validly passed Act of the Parliament of Scotland, and that there- 
 fore it must take effect according to its terms. 
 
 But, as I have said already, it has been suggested that this Act, not naming any 
 particular parties, could not be made effectual against particular parties without process 
 of law ; and reference was made to other forfeitures, forfeitures of lands for non-payments 
 of feu-duties, and cases of that kind, as showing that it is necessary by the law of Scot- 
 land that where there is a General Act of this kind it can only be rendered effectual by 
 process of law. Now I do not think it necessary to go at length into the question in 
 reference to such forfeitures as were referred to by my learned friend Sir FitzEoy Kelly. 
 But it is quite true that where there is a forfeiture inserted in a grant or a writ for non- 
 payment of feu-duties, or where lands have been adjudged, and the period of " the 
 " legal," as it is called (that is to say, the legal term allowed for redemption), has 
 expired, or where a party has incurred a forfeiture under an entail, all these may 
 be of no effect until they are declared; but that is upon this principle, that the 
 party may at any time avoid forfeiture by payment or performance. The party may 
 pay his feu-duty, may pay his debt, may alter or remove the act which he has done in 
 violation of the fetters of the entail, and if he does so at any time before the forfeiture is 
 declared the forfeiture does not take effect. It is quite clear that these are a class of 
 cases which have no analogy whatever to a Rescinding Act of Parliament ; that must take 
 effect at once and immediately. And I could refer were it necessary to other Acts of a 
 similar description that have taken effect very largely in Scotland. I can quite under- 
 stand the Claimant putting his case in a somewhat different shape, and saying, that 
 although the Act of Parliament did in its terms embrace the Earl of Crawford, and his 
 grant of the Dukedom of Montrose, its operation may, to a certain extent, be affected, 
 and in some measure modified, by subsequent use, and that he might say,— If I can show 
 
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 that the Duke of Montrose retained his title and retained his dignity for a long period 
 of years, if it does not altogether wipe off the effect of the Act of Parliament, yet at all 
 events it raises such a bar against its application to this case, as to take off the operation 
 of the statute. My Lords, I shall speak to that view immediately, but in the mean time 
 I wish your Lordships to observe that at all events this is clear, that this is a valid Act 
 of Parliament, which took immediate effect upon the grants falling within the descrip- 
 tion of the statute, and that the grant to the Duke of Montrose did in point of fact fall 
 within it. 
 
 My Lords, I may say in passing, that the words in this Rescissory Act, " which 
 " might be prejudicial to our Sovereign Lord and the Crown that now is," do not strike 
 me to be words of limitation at all. They seem rather to be words expressing the 
 ground and reason of the Statute, namely, that the alienations of lands, &c., which had 
 been made since the 2nd of February last by-past were " prejudicial to our Sovereign 
 ^' Lord and the Crown that now is ;" and I am the more strengthened in that view by 
 the Act of the succeeding year, ordering all those deeds to be brought in to be destroyed ; 
 and they are described as deeds granted since the 2nd of February 1488. Your Lord- 
 ships have the Act of Parliament immediately succeeding in print : — " Item, it is thought 
 " expedient that, because there was a Statute made in our Sovereign Lord's Parliament 
 " that now is, holden at Edinburgh on Wednesday the 8th day of October, the year of 
 " God 1488^ declaring all alienations of lands, heritages, long-tacks, feu-ferms, offices, 
 " tailzies, blench ferms, lands made of ward, of none avail after the 2nd day of February, 
 " which was the day of our Sovereign Lord that now is coming forth of Stirling, unto 
 " the coronation of our Sovereign Lord's Highness, made by his father of most noble 
 " mind, made of none avail, force, nor effect, for certain causes contained in the said Act 
 " and Statute : That therefore all they which got the pretended gifts of alienations of 
 " heritage, long leases, feu-ferms, offices, tailzies, giving of blench ferms, of ward lands, 
 " should bring their letters and evidences granted hereupon to our Sovereign Lord, 
 " within forty days, to be destroyed." Therefore the Parliament in 1489 certainly con- 
 sidered that the Act of the 17th of October 1488 struck against all those alienations; 
 and that the ground and reason for rescinding those alienations was this — ^that they were 
 prejudicial to the then King and to the common good of the realm. 
 
 Now, my Lords, as it so stands, without adverting to what followed upon that, 
 I imagine there can be no doubt of this, that the dignity of the Dukedom of Montrose 
 fell under those terms, and was necessarily annihilated by those terms. There has been 
 some attempt to deny the right of Parliament to pass such an Act, on the ground that 
 the Parliament had no jurisdiction over peerages, and could not affect them. I do not 
 think it is possible to carry a view of that kind to that extent. The Parliament had 
 unquestionably the right, upon the ground I have stated, namely, that the King was in 
 the hands of his enemies, which was in substance to say that all Acts and deeds done by 
 him within that time were null. Accordingly, my Lords, there can be no question that 
 the Claimant is in this position at starting — that he must satisfy your Lordships that, 
 while the words of this Rescissory Act do apply to the dignity that he wishes to establish 
 his right to, yet there has been something done after that statute ; something that fol- 
 lowed upon it ; some subsequent proceeding that took away the effect of that Act. 
 But, my Lords, when you come to look at the subsequent proceedings, it humbly seems 
 to me that, instead of their being inconsistent with the application of this statute to the 
 Dukedom of Montrose, and to the grant of lands which went along with it, everything, 
 in fact, that follows is in the highest and lowest degree consistent with the construction 
 of the statute for which we contend. In the first place, there is nothing upon which the 
 Claimant can ground a plea that this Act has grown into desuetude. The statute, so 
 
 2 G 
 
( 228 ) 
 
 far from going into desuetude, is clearly recognised in the spring of the following year 
 by the Act ordering these parties to bring in their deeds to be destroyed, a circumstance 
 of some weight and importance, as showing that when the Parliament passed this Act 
 they intended it to be put in force, and that it was actually put in force. 
 
 Then, again, in the proceedings in the Earl of Glencairn's case in 1648, as to 
 which I shall have occasion to speak shortly afterwards, whatever may be said as to the 
 ratio of the judgment, there was no doubt expressed, so far as I know, in the argument 
 of that case, that the Act of 1488 was in truth an operative Act. The ground and 
 ratio of the judgment, as far as the statute was concerned, was of a very different descrip- 
 tion. And Lord Loughborough's Judgment of 1797, whatever may be said against the 
 accuracy of the facts on which it proceeded, was truly and substantially a finding in this 
 House that this Act of 1488 did in fact take practical effect, and must of necessity be 
 given effect to. Because Lord Loughborough holds this : he holds that the grant of the 
 Glencairn Patent was set aside by this Act, and that therefore the sitting in Parliament 
 must be referred to some subsequent grant, and that accordingly it was impossible to 
 hold the grant of a peerage to heirs general, but that a destination to heirs male of 
 the body must be presumed to be the destination of the honours. And accordingly, 
 whatever may be their bearing upon the other points in this case, it seems clear that 
 the instances which I have mentioned show that the Act of 1488 was always treated 
 and dealt with as an Act that took practical effect and operation. 
 
 Then, my Lords, in what way did the King and the Parliament on the one hand, 
 and the Duke of Montrose on the other, deal with the operation of the Rescissory Act ? 
 In the first place, between October 1488 and September 1489, we allege as matter of 
 fact, and I think it is clearly and sufficiently established, that the Earl of Crawford 
 never adopted or asserted, and in fact never publicly claimed, the Dignity of Duke of 
 Montrose. He sat in the Parliament which passed this Rescissory Act. That he was 
 present in that Parliament I think there can be no doubt, because he was appointed one 
 of the council of the King, with this proviso, that if any of the council, who were not 
 very numerous, should leave Edinburgh, they should appoint some party to act in his 
 place ; therefore it appears to be conclusively made out upon this question of evidence 
 (for it is entirely a question of evidence) that in that Parliament, upon the very day of 
 the rescinding of the title, the party who should have sat in Parliament as Duke of 
 Montrose, if he attended to assert his right to that title, appears and acquiesces in his 
 appearance being so denominated by his old title of Earl of Crawford. Then there are 
 a variety of instances of various public writs which I shall not go over ; I shall content 
 myself with simply referring your Lordships to them. 
 
 Adjourned to Monday at \2 o'clock. 
 
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 MONDAY, 1st AUGUST, 1853. 
 The Lord Redesdale in the Chair. 
 
 Lord Advocate. — My Lords, when I concluded my argument, on the last sitting 
 of the Committee, I had endeavoured to prove, and I hope I had satisfactorily established, 
 that the Rescissory Act of 1488 was passed by lawful authority, that it was passed by a 
 lawful Parliament, and was passed by a Parliament in which the King personally pre- 
 sided; that the grant of honours and lands to the Duke of Montrose in May 1488 was 
 comprehended in its rescinding terms ; that they were not only comprehended in its 
 terms, but they were also comprehended in its substance, and, in fact, that they were 
 very specially aimed at by that rescinding Statute. I was going on to show in what 
 way that Statute had taken effect, and what that state and position was from that period 
 onwards in regard to the honours and estates of the Dukedom. But to revert for one 
 moment to the effect and eJSiciency of the Act, — the Statute, as your Lordships are aware, 
 commences by a reference to the Proclamation made at Scone ; that Proclamation we 
 have no copy of, and my learned friends on the other side endeavoured to throw some 
 doubt as to whether there had been any such proclamation at all. Your Lordships, 
 however, will find in the first Act of that Sederunt of Parliament, passed on the same 
 day, at page 207 of Thomson's Acts, section 4, of the 2nd volume (it being for the 
 period of 1488), that there is a reference to this. In the 4th Statute of that Sederunt 
 there is an Act of Parliament about the goods that had been taken from the poor before 
 the battle of Stirling, and it ends in this way : " And anent the gudis takyne efter the 
 " King's Proclamacioune made the 12th day of Junii last bypast, that all thay be 
 " restorit agane to the persons thay wer takin fra ;" showing that the date of the Procla- 
 mation was the 12th of June,— and if it were necessary, which I do not think it is, I could 
 satisfy your Lordships that the coronation of the King took place at that date, and the 
 Proclamation was made at Scone, on the occasion of the King's coronation. I refer to 
 this to show that the Rescinding Statute was part of a deliberate system which it was 
 the intention of the Legislature to carry out. Therefore, if I succeed in showing this, 
 about which I do not think there can be any doubt, that this Rescissory Act was a 
 lawful Statute passed by competent authority, the next observation I make is this, that 
 the effect of that Act of Parliament does not depend in any way whatever upon the 
 question whether the Scottish Parliament had jurisdiction in matters of honour, because 
 your Lordships will observe that in passing the Rescinding Act the Parliament were 
 not sitting or adjudicating as a Court of Law upon a question of legal right in any sense 
 whatever. This was an Act of the Legislature, not a decision even of a Parliamentary 
 tribunal ; it was not a decision as to what was law, but it was an enactment as to what 
 should be the law ; and the enactment was unquestionably within the power of the 
 Supreme Legislature of Scotland, as it must be within the power of the Supreme Legisla- 
 
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 ture of any country. To declare that a certain grant made at a certain time was null, and to 
 set it aside by a supreme Act of the States of the realm, is beyond all question within power 
 of the Legislature itself, must have been then, and must be at all times where there is a 
 Constitutional or well-ordered Government. I do not mean to revert to the very 
 strong observations which were made by my learned friends on the other side in regard 
 to what they called the rebellious character of this Parliament. 
 
 My Lords, I do not know that your Lordships have any means of judging of the 
 character of that Parliament, to the effect which my learned friends would have your 
 Lordships consider it. It is not the first time certainly in the history of England or 
 Scotland that Parliament has made such declaration in regard to the acts of sovereigns ; 
 and your Lordships are aware that there is a much stronger declaration standing on the 
 Statute Book of this country, by which a monarch unquestionably de jure and de facto 
 too was declared by the Estates of this country, in respect of certain acts done by him, 
 to have forfeited the Crown, and to have left it vacant. What the views were upon 
 which the Parliament of 1488 proceeded, your Lordships need not judge, and cannot 
 judge. It is quite enough to say that James IV. was a lawful sovereign, that his Par- 
 liament was a lawful Parliament, and that they passed these Acts as the Supreme 
 Legislature of the country, and beyond all doubt therefore they must be given all due 
 and proper eflFect. I do not think that there can be any doubt of this. There is no 
 doubt however another view, to which I am perfectly ready to give my assent so far, 
 that, if the facts were capable of supporting it, it might probabl y have an important 
 effect upon this case. While the Rescinding Act was not the decision of a tribunal, but 
 was an enactment of the Legislature, I admit that Acts of Parliament in Scotland, even 
 of the most public nature — and this was clearly an Act of a very public nature — had so 
 much flexibility in them, that they were capable of going into desuetude ; and in the same 
 way, if under a Rescinding Act the lands and estates thereby denoted had been in fact 
 possessed for a prescripted period, in spite of the Act — I do not consider it necessary to 
 consider that ; but I admit here that the question might arise, though I do not admit 
 that the question could be successfully maintained, but the argument might be stated 
 with plausibility, that the use for 40 years of this possession must work out the effect 
 even of such an Act as this, and in the same way that the prescription will not apply in 
 blood. It is not necessary for me to question that the continued possession of the title 
 on the Patent of 1488, recognized by Parliament and by the Crown for a lapse of years, 
 and for continuity, might raise a question as to whether the effect of the Rescissory Act 
 had not therefore been worked out ; and such an argument was raised in the case of 
 Glencairn, as I shall have an opportunity of showing your Lordships. It was an 
 argument that was raised as to the extent to which the Patent of 1488, in favour of the 
 Earl of Glencairn, ruled the judgment of the Court of Session in 1648. It was that 
 ground that weighed with them •, and they held, as your Lordships will see, or, at all 
 events, they were asked to hold, that, in consideration of the Earl of Glencairn's pos- 
 session of the title, the effect of the Rescissory Act had been worked out. But I was 
 anxious to call your Lordships' attention to what was done in that position of the argu- 
 ment. The question of the application of the Statute is not one that I have any interest 
 to raise — the Statute speaks for itself. If I am right in saying that the peerage, the 
 honours, and estates, are embraced in these terms in substance, that is all that I require 
 in order to lay the foundation of my answer to this claim. And if the Claimant thinks 
 that he can evade and avoid the effect of the Statute, it is for him to show that that state 
 of possession thereafter was inconsistent with the Rescissory Act having taken effect upon 
 the Dukedom of Montrose. I say that, because I think it is material in considerino- the 
 rest of the argument. It is not because I imagine there can be any doubt as to what in 
 
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 point of fact the state of the possession was. On the contrary, it is only too clear for 
 the success of this claim that everything followed upon that Rescinding Act, in regard 
 to the honours and estates of Montrose, which would have followed if it had taken, as it 
 did take, present effect. There is not one circumstance during the whole history of the 
 Earl of Crawford, from 1488 till his death in 1495, which is not and entirely a necessary 
 consequence of this Rescinding Act having taken effect upon his titles and his estates. 
 
 Now, the first matter in regard to position, therefore, is the unquestionable fact 
 that the Earl of Crawford sat as Earl of Crawford in the Parliament that passed the Res- 
 cissory Act, I do not know that I could have a stronger or clearer instance of the position 
 in which he then stood — that the Proclamation had set aside this honour : your Lordships, 
 I think, cannot doubt it ; and accordingly he appears in Parliament, in the very Parlia- 
 ment that passed this Act, under his former designation of the Earl of Crawford. 
 
 It has been suggested, my Lords, that the taking a lower title does not imply an 
 abandonment of the higher, and my learned friends have adduced a few examples, a very 
 few, of what they say are instances of this taking a lower title. I may examine one of 
 them before concluding ; but there is one thing that is unquestionable, and that is that 
 the Earl of Crawford, at any rate, did not take a lower title from choice, — and that has 
 been proved in a manner too clear to admit of a moment's dispute by the Claimant 
 himself. If there be anything clear upon the evidence adduced, it is this — that while, on 
 the one hand, the King and the Parliament refused the honour of the Duke of Montrose, 
 refused to receive him as Duke, and refused to allow his estates to remain with him, the 
 Duke clung most tenaciously to the title ; and in every document they have put in with 
 the view of proving a very desperate and hopeless statement, that the Duke of Montrose 
 continued to enjoy the honour, while they have failed to prove that, they have most 
 conclusively established that it was not from choice but necessity that he adopted the 
 title of the Earl of Crawford in public proceedings. I may now in a few words advert 
 to those documents. In the first place, with regard to the Protest which is said to have 
 been taken against the resignation of the Sheriffdom of Forfar ; what can prove more 
 clearly that the Earl of Crawford was at that time suffering under the power of his 
 victorious enemies ? What can prove more that he was struck at by the Rescissory 
 Act — that the power of the Crown was against him, and not with him ? He says so in 
 the proceedings — that he is obliged to give up the Sheriffdom of Forfar ; and so he was — 
 against his will, and obliged to give up the Dukedom of Montrose against his will too. 
 I do not know that any more significant comment could be made on the whole of these 
 proceedings than the terms of this Protest itself; a Protest which speaks in every line the 
 fact that he was unwilling to surrender the honours he had achieved, and that they were 
 only wrung from him by a superior force. Then, my Lords, there is the Resignation of 
 the Sheriffdom of Forfar, which is a most important transaction, as throwing light upon 
 the general nature of all these proceedings. And here, my Lords, let me make this 
 remark ; my learned friends maintained an argument which I shall have occasion to 
 speak of immediately, that without the Resignation of the honour the honour must remain 
 in the person of the Duke. There is a clear and manifest fallacy running throughout 
 the whole of that argument. If the Act of Parliament rescinded the honours, there was 
 nothing in the Duke to resign. The Resignation would only have been available if this 
 Rescissory Act had not taken effect. On the other hand, if the Resignation had been 
 necessary, it is quite clear that the honour did not fall under the Rescissory Act. If the 
 Act of the Legislature had taken the effect which alone it could have, namely, the effect 
 in its terms to rescind and annul that honour, then it is perfectly clear that there was 
 nothing in the Duke of Montrose which could be made the subject of Resignation at all ; 
 he had nothing to resign. But in regard to these alienations of grants of land that did 
 
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 not fall under the l^escissory Act, it is important to observe what course was taken 
 when the Duke was required to give those up, because, great as was the power of those 
 who were against the Duke of Montrose, although both the King and Parliament were 
 against him, they could not take at short hand this Sheriffdom of Forfar ; they were 
 obliged to fulfil the feudal requisites ; he stood enfeoffed and seized in that Sheriffdom of 
 Forfar ; and, in order to be transferred legally, it was necessary to satisfy the feudal 
 forms, and have a Resignation by which it should be taken out of the person of the Duke 
 of Montrose,— and, accordingly, this Resignation is made, and made, as he says, upon 
 compulsion. 
 
 But nothing, I think, can prove more clearly the difference between those things 
 that fell under the Rescissory Act and those that did not than this— that while the 
 Sheriffdom was made the subject of a regular resignation, the other estates and the 
 honours were held to be rescinded by the terms of the statute. This proves, I think, 
 most distinctly that the Duke of Montrose's title was not surrendered voluntarily, and 
 that the title of Earl of Crawford was not assumed voluntarily. It stands thus. There 
 is a Protest, on the other side, and a Procuratory, which is, as your Lordships know, a 
 mandate to a party to resign the subject into the hands of his superior for the purpose 
 ol' a new grant to himself or to others. The Instrument of Resignation, which is a 
 notarial instrument on the occasion of a mandate being used, has been produced on the 
 other side, and my learned friend the Solicitor-General maintains it to be a pure 
 transfer of the Sheriffdom of Forfar. No doubt at all that resignation was made, I 
 think, in the presence of the King at Hailes ; but my learned friend knows too much 
 about Scotch conveyancing not to be aware that a Procuratory of Resignation and an 
 Instrument of Resignation proceeding upon that Procuratory do not constitute a title in 
 any sense whatever. The title is the Charter, and the superior proceeding on the 
 resignation which is made into his hands of that charter regrants that title (sic). In feudal 
 strictness the Procuratory or mandate, and the Instrument proceeding on it, are not parts 
 of the title at all ; they are swallowed up in the Charter, which from that time 
 becomes the only title. The Charter bears that resignation was made indeed, but 
 made, not by the Duke of Montrose, but by the Earl of Crawford, and was made, not 
 at Hailes, but at Perth. What the explanation of the discrepancy may be it is not in the 
 least necessary to inquire ; but this is certain, in the first place, that the Earl of Craw- 
 ford endeavoured to call himself the Duke of Montrose without success in that pro- 
 ceeding, and in the second place that the resignation, in point of fact, was made at 
 Perth. The statement in the Charter is conclusive, — and the probability is, undoubtedly, 
 that this instrument had been extended by the notary employed by the Duke or Earl 
 of Crawford, and when it came to be used the Crown officers refused to receive it, and 
 corrected the Charter accordingly in the terms in which it now stands. But while on 
 the one hand it seems perfectly clear that a recognition of the title never could be 
 spelt out of those proceedings, while it speaks in official language clearly and distinctly, 
 on the other hand it proves this, that the Earl of Crawford had no desire to assume 
 his lower title if he could help it, and he did assume the higher title on every occasion 
 where he could do it without challenge ; he never did it on any occasion when he came 
 into contact with the Crown or Parliament ; on the contrary, whenever that occurred, 
 the title was refused. 
 
 Then, my Lords, the same observation is to be made upon that gift to his wife. 
 He makes a grant to the Duchess as Duchess, calling himself Duke ; but it was neces- 
 sary to have a Charter upon that, and whenever it came into Chancery for the purpose, 
 
 instead of the Duke of Montrose, it is claimed (sic) to the Earl of Crawford, proving 
 
 again these two things, first, that he endeavoured to take the title, and, secondly, that it was 
 
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 never conceded to him. Then the Friars of Dundee, I think, is the strongest circum- 
 stance, for it shows this, that the Duke of Montrose was anxious in some way to per- 
 petuate the recollection and memory of his titles, and he had, by endowment of those 
 Friars of Dundee, established what was to be called the Duke's Mass, to bear his name 
 in perpetuity. The Friars accordingly take the endowment, and are willing to fulfil 
 the conditions. But while that can never be held to be a recognition, by any authority, 
 of the title, it also shows, what the whole history shows, namely, the tenacity with 
 which the Duke adhered to it ; and accordingly it is utterly hopeless to maintain, in 
 the case of the Duke of Montrose, Avhen you find him in parliamentary documents 
 styled the Earl of Crawford, that it was done by his desire or by his consent. It is 
 clear that it was against his will, and only in consequence of compulsion. 
 
 Now, my Lords, between 1488 and the period of the Statute of 1489, there were 
 
 a variety of other proceedings in which the Duke was engaged, or rather I should say 
 
 the Earl was engaged, and in every one of them he is styled the Earl of Crawford. 
 
 Your Lordships will find this on pages 11 and 12 of the Supplemental Case of the Duke 
 
 of Montrose. I shall simply enumerate them, — it is not necessary to go at length into 
 
 them. First, the Earl of Crawford is named in a Commission on the 17th of October 
 
 1488, — and it is most important to observe, that, while his title is denied him, he is not in 
 
 the position of a party forfeited or attainted in any way ; quite the contrary ; but the 
 
 title is not allowed him, nor does he seem to assert it. Then in the records of Parliament 
 
 on the 4th of July 1 489, the Earl of Crawford is again named one of the Council to the 
 
 King. In the Exchequer Rolls, as to customs rendered on the 6th and 21st of August 
 
 1488, there is payment to David Earl of Crawford. In July 1488 he is also Lord High 
 
 Treasurer (sic), and the Herald did pass with a letter to the Earl of Crawford from the 
 
 King. Again on the 21st of January 1488, David Earl of Crawford, Lord Lindsay, appears 
 
 in a case relative to the lands of Brechin and Navar. On the 31st of January, and on the 
 
 3rd of February 1488, he is designed the Earl of Crawford by the Lords of the Council, and 
 
 he is there. Now, my Lords, this is apparent, that on all the public occasions on which 
 
 the Duke of Montrose, or the Earl of Crawford, appears, he is never on any single occasion 
 
 called Duke of Montrose, but on the contrary Earl of CraAvford ; and I do not think, so 
 
 far as this is matter of evidence, that it is possible on any view of the facts to doubt that 
 
 from the date of the Proclamation at Scone, and still more from the date of the 
 
 Rescissory Act, the Dukedom of Montrose had sunk. The Rescissory Act had cut it 
 
 down ; and accordingly, the Earl of Crawford no longer took the title. Your Lordships 
 
 will recollect that this is all evidence where the Claimant has to prove the afiirmative, 
 
 and surely no proposition can be more certain and unquestionable than this, that he has not 
 
 proved the affirmative of the proposition ; on the contrary, the negative of it is quite clearly 
 
 established. Then, my Lords, so much for the title up to 1489. In regard to the estate 
 
 of Kinclevin and the customs oi' Montrose, I do not think it necessary to go in detail 
 
 into those accounts. In regard to Kinclevin, it is proved incontestably by the concluding 
 
 accounts, that between 1488 and 1489 Lord Crawford, who brought some six or eight 
 
 thousand men into the field, had still power to levy the rents of Kinclevin and the 
 
 customs of Montrose. As to Kinclevin, it appears that, when the account came to be 
 
 settled between the Earl of Crawford and the Crown, they allowed him one half of the 
 
 rents of Kinclevin, but disallowed the other. As to the customs of Montrose, it does not 
 
 appear that we have any account of them, but it is not in the least material to this 
 
 inquiry whether the Duke did or did not at his own hand levy them— it is possible 
 
 that he may have done so :— the material of those accounts will be found when we come 
 
 to see what became of those rents upon the death of the Duke of Montrose. 
 
 My Lords, I now come down to the date of the regrant, as it is called. I have 
 
( 234 ) 
 
 shown that the Rescissory Act, being valid and effectual, including those estates and 
 honours and titles, took effect at once. I shall now show your Lordships what the 
 nature of that transaction in 1489 was ; my learned friends maintain that it was a 
 Confirmation, or a Compromise as they sometimes call it. That it was a Confirmation 
 I think is manifestly not the case ; it had nothing of the character of a confirmation ; 
 its entire character was the reverse of confirmatory ; it was a new and original grant 
 beyond all question. Its very terms are inconsistent with being anything else. In the 
 next place, as to its being a Compromise, it is not very easy to understand what the legal 
 signification of that term is. There was nothing to compromise except this, that the 
 Earl of Crawford should give in his adhesion to the Government upon certain terms. 
 He had nothing in point of right to allege. He had nothing but power and might to 
 allege in regard to his share of the compromise. And it might be a very material 
 matter for the Throne, that so powerful a noble as the Earl of Crawford should give in his 
 allegiance to the Throne ; but as regards a compromise of legal right, it is perfectly 
 clear, that if the Rescinding Act touched the Duke of Montrose, he had nothing to bring 
 into this matter of compromise — nothing in point of legal right which he could by 
 possibility throw into the scale. The truth is, that this Act of 1489 contained the terms 
 upon which the Earl of Crawford made his peace and gave in his allegiance to the 
 Crown on the one hand, and on which the Crown was prepared to reward him on the 
 other. But my learned friends say it was a Confirmation. 
 
 Now let us see how by possibility it can be called a confirmatory grant, because, 
 irrespectively altogether of the question of life-rent interest, there are terms and words 
 and substance in this Act of 1489 which are completely conclusive and demonstrative 
 that it was intended to be an original grant. If the Rescissory Act did not affect the 
 Dukedom of Montrose, if Parliament had not cut it down, there was no necessity for any 
 further proceeding at all : the Duke had nothing to do but take his seat in Parliament. 
 On the other hand, if the Rescissory Act had taken effect, then nothing but a new grant 
 could give him the honour ; and, my Lords, it is material to observe that Parliament 
 grants this new honour, not the Crown ; and it appears to me that the reason of that is 
 this, that Parliament had in the first place interfered to set aside the former honour, and 
 it was thought right that legislative authority should be brought in to renew it in its 
 limited terms. Legislative authority had been brought in to rescind it before. — But to 
 whom is this honour granted ? — to the Duke of Montrose ? No ; to the Earl of Craw- 
 ford, upon the express narrative that it is desirable to raise his dignity. Can it, by any 
 construction of the words, be held to be a grant confirming the dignity already held by 
 the Duke of Montrose ? The words are totally inconsistent with any such idea. It is a 
 grant to the party who then was the Earl of Crawford. If it had been a grant for per- 
 petuity — a grant to his heirs — if it had been a compromise as to May 1488 (sic), from 
 what date would it take effect ? As granted in the terms of this Statute, beyond all ques- 
 tion from the date of 1489. If this had not been limited, as I think it clearly was by the 
 after proceedings — if the Act had been a grant to himself and his heirs — would it not 
 have taken effect from 1 489 ? I do not think there is any room upon the words for 
 doubt. But there is another matter which appears upon the Act, equally conclusive. 
 There is a grant there, not only of the honour as a new honour to raise the Earl to 
 the Dukedom, but the grant of certain land and heritable subjects; and they are 
 described as belonging to the King. They did belong to the Earl of Crawford, and he 
 held them heritably. He was seized in them just as much as he was seized in the Sheriff- 
 dom of Forfar. If that seizin were good, and his former titles stood, the King could no 
 more make a fresh grant to him, or any one else, than he could the Sheriffdom of Forfar 
 without a resignation. But your Lordships see that the King holds that those subjects 
 
( 235 ) 
 
 are in his hands already ; and they are spoken of as property belonging to the King, that 
 has been given out by the King to a subject, and does not belong to him, and never is 
 so denominated. The words of this Act are : — " Volens ipsum David amplioribus pro- 
 sequi favoribus gratie et honoris — cum itaque predecessorum suorum, Crawfurdie 
 " Comitum, digne recolenda prioritas titulo Comitatus suas dominationes supradictas ab 
 " antiquis temporibus tenuerunt ; Hinc est, quod supremus Dominus noster Rex eundem 
 " David, suum consanguineum, volens ampliori fulgere dignitate, et Comitis titulum supra- 
 " dictum in majorem excelsioremque mutans, dictum David, suum consanguineum, 
 " Ducem de Montross, ex suis certa scientia, potestatis plenitudine, et gratia speciali, 
 " sublimavit, fecit, creavit, et de novo erexit in Ducatum, Ducatusque nomine et pre- 
 " rogativa volens ipsum gaudere et potiri secundum formam et tenorem carte dicti 
 " Domini nostri Regis dicto David Duci de Montross super premissa conficiende " — 
 raising him to a higher dignity, and therefore most certainly not confirming the former. 
 I find, my Lords, that I w^as wrong in my last observation, though right in the first part 
 of it, in regard to the Statute raising the Earl of Crawford to a higher dignity ; but 
 as to the lands, the reference was an entry in the Register, but not in the Statute. 
 
 Lord St. Leonards. — They do not form part of the grant. 
 
 Lord Advocate. — The grant is " secundum formam et tenorem carte dicti Domini 
 " nostri Regis dicto David Duci de Montross super premissa conficiende." Then the 
 grant ultimately includes the land, but I think I have said enough to show that this 
 statute, at any rate, cannot be considered a confirmatory statute. There are no words of 
 confirmation. They are words of creation of a very precise and specific nature ; and 
 whatever may have been the nature of the matter conveyed, it is clear that it was con- 
 veyed for the first time by this Statute, and so considered. Then, my Lords, the only 
 indication we have further as to the entry of this " Carta" which was to be " conficiende 
 " super premissa," is an entry in the Register of the Great Seal, which your Lordships 
 have already had a good deal said upon. Now the general mode of entering a Charter 
 which passed the Great Seal in the Register is to do so fully. In a Charter according to 
 the feudal custom of Scotland at that time, and it still is the custom, certain clauses 
 were absolutely essential for its validity, and, amongst others, the disposition clauses — 
 the Tenendum and the Quequidem particularly, which narrates the further feudal pro- 
 gress of the titles, and states in what way the lands thereby conveyed have come into the 
 hands of the Crown for a new grant. But it appears from the evidence that has been 
 read, that where a grant is only for life, or of a temporary nature, it was not the practice 
 then to insert the grant at length in the Register, and for this plain reason, that, as the 
 grant was to come to an end with the life of the party, it was not to be the foundation of 
 feudal progress at all. It was only necessary to insert in the Register the terms and 
 general conditions of the grant. Your Lordships have had evidence that that is almost 
 uniformly the case in grants for life, while when it is for perpetuity there is no instance, 
 except one, that has been adduced, and it is never the case that the Charter is not regis- 
 tered at length, — and accordingly we find this Letter registered in the Great Seal. Some 
 observations have been made about its being an interjiolation : there is no evidence of 
 that. One of your Lordships asked whether there were other blanks in the book? 
 There are a variety of others, as your Lordships will find, quite as large and quite as 
 important as this. This is a Letter from the Crown, on which, unquestionably, a full 
 Charter could, if necessary, have been expede and prepared, but it does not appear that 
 in cases of this kind, where the grants were for life, it was considered necessary to have 
 that Charter prepared, and certainly it was not considered necessary to register the 
 Charter, and the Letter accordingly contains simply the head of the matter ; it would 
 have entered the Charter if it had been prepared ; and that Letter bears this— it is granted 
 
 2H 
 
( 236 ) 
 
 to the Earl of Crawford, " creando ipsum Ducem de Montrose pro toto tempore vite 
 " sue, et concedendo sibi capitale messuagium et locum Castri de Montrose vulgariter 
 " nuncupatum le Castlestede, necnon totum et integrum burgum et villam de Mont- 
 "rose," and the borough customs, and the "firmge burgales," and the great and 
 small customs, and also the castle of Kinclevin, and the dominical lands which are there 
 described, " Creando omnia predicta in unum merum et liberum Ducatum. 
 
 Your liordships will observe that they are created and raised into a Dukedom, 
 and this leads me to the remark, that at that time in Scotland it was almost uniformly 
 the case that a Dukedom, or any honour of any kind, went with the land. If a man 
 was made a Baron, he had lands erected into a Barony; if an Earl, there was a 
 Comitatus erected, of which he was the Earl. Here you have lands with a Dukedom 
 erected into a Dukedom. The dominical lands of Kinclevin are erected into a Dukedom 
 to be called the Dukedom of Montrose " nuncupandum, ac tenendum in libera re- 
 " galitate, etc., cum omnibus clausulis secundum formam carte, ac cum itineribus et 
 " curiis justiciarie et camerarie, etc., de data 19™ diei mensis Septembris, anno regni 
 " Regis secundo." My learned friends suggested that " heredibus suis " might have 
 come into this clause — the Tenendas. It is not necessary to discuss that hypothesis — it 
 is a mere conjecture ; it is quite enough to say that " heredibus suis " is not there ; your 
 Lordships cannot find it there, — and the probability is, that the " et cetera " refers — not to 
 anything connected with the destination, which ought to have been found in the Dis- 
 positive Clause, with the words limiting it to his life, but refers to what was inserted in 
 clauses in the charters at that time in regard to jurisdiction, the right of pit and gallows, 
 fosse and bank, infangtheif and outfangtheif, and all the old terms which were included in 
 the jurisdiction of a Noble Lord. There seems no doubt, from the position in which the 
 " et cetera ".comes, that it was to save the necessity of repeating all those terms. But, my 
 Lords, whatever might have been the meaning, it is quite plain that the Earl of Crawford 
 is quite unable to point out in this Registered Letter anything that conveys the Dukedom 
 to the heirs of that Earl. If that be so — if this is truly a valid and regular entry of the 
 Letter — what is the effect of it ? In the first place, it is a grant of the lands ; and after a 
 grant of the castlestead of Montrose, and the town of Montrose, with the returns of 
 customs, and the liberties and commodities of the same, it says, " now belonging to the 
 " King, from the same borough and town ;" and in the same way with regard to the 
 fishings and the harbour. Now, unquestionably, if these were in the hands of the King at that 
 time, it proves incontestably that they came into the hands of the King, not in the ordinary 
 feudal course by resignation, but they came simply from the rescinding and annulling 
 operation of the Act of 1488. But this is a grant to the Duke of Montrose for the 
 whole period of his life. My learned friends endeavoured to show that there was 
 nothing inconsistent in giving a title subject to one man for his life, and to his heirs in 
 perpetuity. I do not deny it, and it did not require any argument to show that it 
 was lawful ; but, unfortunately, this grant contains no such words. There are no such 
 words to be found in it, and the legal construction of the words is exactly the reverse. 
 
 The grant is a grant for the life of the Duke of Montrose and no longer, and it 
 is a grant which is made of precisely the same subjects which were given in May 1488, 
 the only difference being that the grant is limited to his life. That, supposing my 
 learned friends to be right in their suggestion about " heredibus suis," which certainly 
 cannot be imported into this, is not that argument clearly fatal to the notion that this is 
 a confirmatory grant ? If anything could prove more than another that it was not so, 
 it would be this, that the terms of the grant are varied. The grant of 1488 was an 
 absolute grant : this is a grant as regards the Duke of Montrose himself, at least for his 
 life : and therefore this at all events is proved even by their own argument, if this Letter 
 
( 237 ) 
 
 do truly denote the title, it was a grant altered in its terms ; and if so, why then it 
 proves that which is the turning point of the whole case, that the Eescissory Act had 
 rescinded the original grant of 1488. 
 
 But the real state of the matter is this : — Beyond all question the title had 
 reverted to the Crown, and the lands had reverted to the Crown ; and an Act of Parlia- 
 ment is passed with a view to a new creation, not to confirmation. It is passed giving 
 him a title in the terms of the Charter, and that appears to have been made, as the 
 Letter appears to have been made, on the 19th of September 1489 ; and in that Letter we 
 must look for the terms of this creation. We find that it is a grant of the same subjects, 
 but only for his life. This concludes the second stage of the matter. You have an Act 
 of Parliament in 1488, a valid Act, directed and taking effect against the title and 
 honours ; you have a state of possession and a state of use from 1488 to September 
 1489; you have the subjects in the hands of the King; you have the title denied to 
 the Earl of Crawford ; you have him trying to assert it whenever he could behind the 
 back of the Crown, and you find him prevented from doing that whenever the Crown 
 was called into question ; and then in 1489 you have this Statute, and you have a grant 
 following it. 
 
 Then, my Lords, the next question is this, What took place in consequence of 
 this grant ? Has the Noble Claimant any ground for maintaining to your Lordships that, 
 notwithstanding the terms of the re-grant in the Litera, he possessed the Dukedom of 
 MontrosCj in point of fact, beyond his life — I mean, that he did not possess upon this, 
 but that he possessed upon the original grant — is there any ground for maintaining that ? 
 Or, rather, notwithstanding all the ingenuity that has been displayed upon this question, 
 can there be a doubt, as far as regards the matter of fact, that every single incident that 
 occurs is consistent only with the fact of the Duke having had the right for life, and 
 nothing else ? There have been many very ingenious theories set up to show why the 
 Dukedom of Montrose never appeared after the death of the first Duke ; but how does 
 that fact stand? Why, in this way. The Duke of Montrose enjoys the title for his life, 
 and his Duchess enjoys it as his widow for nearly forty years afterwards ; afterwards she 
 sees her stepson, her brother-in-law, her nephew, and her grand-nephew, all men of 
 distinction in those times, sitting in Parliament, and taking part in the business and in 
 the public affairs of that turbulent time, but all under the title of Earl of Crawford, and 
 she remains Duchess of Montrose to her death, in 1534. That, my Lords, is a fact, 
 however it may be explained ; and if anything could show more clearly than another 
 that the Dukedom was treated as a life-rent grant, it would be this. My learned friends 
 have suggested that the next heir to the Dukedom was a person under a cloud. He was 
 suspected of the murder of his brother, and he was consequently a person who could not 
 with any propriety assume that high title. I do not think that there is even the ordinary 
 amount of plausibility in this suggestion. The Earl of Crawford, who succeeded the 
 Duke of Montrose, was a man, no doubt, who lay under some amount of suspicion as to 
 the murder of his brother, but he was a devoted adherent of James IV. He was with 
 him on the field of Stirling. He was, in point of fact, against his father through the 
 whole of those proceedings, and he had no enemies whom it was necessary to fear as to 
 this title of Montrose. On the contrary, he had friends at Court, and was high in 
 favour ; and so far frorn being in hiding during the remainder of his life, he took an 
 active part in public business. He followed his King to Flodden, and fell there along 
 with others of the Scottish nobility. 
 
 But while that will never account for the title never having been assumed either 
 by him, or by his uncle, who was a man of distinction also, or by his cousin, or his son, 
 there is a suggestion, which in passing I may make, and which I think has at least as 
 
 * 2 H 2 
 
( 238 ) 
 
 much plausibility in it as some of those which we have heard on the other side. It 
 seems that the Earl of Crawford, the second son of the Duke, was against his father in 
 these matters, and was suspected of the murder of his elder brother. Now, may it not 
 very naturally have been that the Duke of Montrose, being disappointed in handing 
 down his dignity to his eldest son, was not unwilling that it should not descend to the 
 sou by whose hand that elder brother had been killed ? I think, my Lords, if we are 
 to indulge in speculations in this matter, looking at the period and the position which 
 he held, disgusted probably with the failure of the designs which he contemplated, the 
 failure of his family, through the son and the line, that it is not very unreasonable to 
 suppose that he wished, he was content, to take the Dukedom to himself, and exclude 
 that son who had done so little to deserve his favour ; considering also that that son 
 was in open conflict against his father at the field of Stirling. All that is speculation. 
 The fact is, that from the death of the Duke of Montrose, in 1495, the title of Duke of 
 Montrose never has revived, notwithstanding the long descent of distinguished men in a 
 direct line through more than one century. 
 
 But, my Lords, there is another question behind, which is quite conclusive of this 
 matter. I will not read it to your Lordships, because, as your Lordships have seen in 
 regard to the Sheriffdom of Forfar, and as your Lordships have seen in the history of 
 those times throughout, while titles and dignities might be dealt with by the Crown, an 
 infeftment in lands never was dealt with otherwise than according to the regular feudal 
 progress. If a party, not forfeited or attainted, had in him a feudal title, the subjects of 
 that title could only be taken out of his person by feudal progress, by resignation in the 
 terms of the Act, or by Act of Parliament, like a Rescissory Grant. But what becomes 
 of the Kinclevin lands, and the customs in Montrose ? I think it is most material to see 
 how completely the ultimate fate of those rents is consistent with the life-rent grant 
 of 1489. My Lords, I am anxious to relieve the case from all reference to documents 
 that have been already gone into, but I shall call your Lordships' attention to two or 
 three documents as to the Kinclevin rents. As to the rents there is an Exchequer Roll, and 
 this is perhaps one of the most curious parts of the evidence produced — the Exchequer 
 Roll of 1496, in which we have a full account of the application of the rents of Kinclevin 
 for that year, and for previous years ; and Wardroper, the collector of the rents, has this 
 docket to his accounts : " Et plene allocatur compotanti de firmis terrarum de Kinclevin 
 " alias concessarum domino David Duci de Monthrose ad vitam per literas domini Regis, 
 " alias ostensas super compotum de primo termino hujus compoti, quia decessit circa 
 " festum Natalis Domini," and so on. My Lords, there is contemporaneous evidence that 
 there were Literae at that time, and that that letter gave him a right to this matter for 
 his life ; it is contemporaneous and indisputable evidence about it ; and it not only proves 
 what, if there were any serious suspicion as to that entry, it might be important to prove, 
 viz., that at the time of the date of that entry in the Register you have here an officer 
 referring to the Letter as a life-rent grant ; but it proves the other fact, that the rents of 
 Kinclevin were dealt with and accounted for to the Crown, as upon a life-rent. The 
 Duke of Montrose gets the life-rent of it, and it appears that his executors and heirs are 
 paid the last half year during which he lived. Then the Crown collector makes his 
 report to the Crown, and accounts for the other half to the Crown. Does not that prove 
 distinctly and precisely that in the very half year in which the Duke died, the Crown, 
 by virtue of its original inherent right, which had revived when the Rescissory Act 
 passed, re-asserted the right to these rents, and had them paid over without any form of 
 transmission of any kind ? And I think, my Lords, that that would have been impossible 
 if there had existed in the Dulie any feudal right whatever other than a life-rent right. 
 Then what is the fate of those lands ? They do revert to the Crown, and the result is 
 
( 239 ) 
 
 that in 1512 there is a grant made by the Crown to the family of the Wardropers, who 
 had been the collectors, and it is perfectly possible to trace those Kinclevin rents from 
 that period down to the present day through a regular feudal transmission. 
 
 The grant of the customs of Montrose stands exactly in the same position. There 
 is in page 31 of the original Case for the Duke of Montrose an entry in the Exchequer 
 Roll from another hand altogether from the Kinclevin collector, from Robert Erskine, 
 the customer of the burgh of Montrose in 1496. What does he say ?— " A die obitus 
 " domini David Ducis de Monthrose qui erat in die Sancti Stephani ultimo preterito : 
 " qui habuit dum vixerat hujusmodi magnas custumas per literas domini Regis ab anno 
 " Domini nonagesimo usque in dictum diem obitus sui." Again contemporaneous evi- 
 dence of a Letter for life, and again contemporaneous evidence of the fact that that life- 
 rent grant was acted upon, and that the customs of Montrose were accounted for to the 
 Duke for his life, and after his death the collector accounts for them to the Crown. Over 
 and above this, my Lords, what has there been from that date of 1495 till this claim was 
 made ? what has there been but three centuries and a half of applications of the Rescis- 
 sory Act, so far as there could be an application of it, by the non-assertion of any right 
 inconsistent with it. The lands reverted and the title reverted, and nothing whatever is 
 found of either the one or the other in connection with the House of Crawford till this 
 claim is made. And, my Lords, I think that it is utterly impossible, looking at the state 
 of the evidence, to come to any other conclusion, or to raise a doubtful or plausible 
 theory against this proposition. It was quite unnecessary to consider whether this Res- 
 cissory Act took effect as to the other grants ; and I might, I think, relieve your Lord- 
 ships of the consideration of any other part of the subject, because, if the Act was 
 regularly passed, and comprehended the honours and estates — if it took effect at the time, 
 which I think I have shown it did — if it was changed afterwards into a life-rent grant 
 during the life of the Duke of Montrose, I do not think that what took place as to other 
 grants can affect the nature of this argument. But I feel, when we come to look at this 
 part of the evidence, it is all the same way — at least, so far is it from being the case that the 
 Rescissory Act did not take effect upon other grants in the same position, the very reverse 
 is the fact. I shall, draw your Lordships' attention to one or two instances in which they 
 {sic) have produced a grant, in which it is quite clear that the grant was not (sic) made 
 within that period, namely, within the period from the 2nd February 1488, down to the 
 Rescinding Act, and which grants were treated as if they were utterly null, and regrants 
 of the same subject were made to other parties. Your Lordships have these in pages 18, 
 19, and 20 of the Supplemental Case. The first is the Baky Grant, which was a grant 
 of certain lands of Baky in favour of Alexander Lindsay, dated the 14th May 1488, 
 and bore expressly to be an account of service rendered to the King by Lindsay. What 
 becomes of that ? It is dated on the 14th May 1488, and on the 2nd August there is 
 a Grant of the identical subject to another party, John Lyon of Glammis, although 
 Lindsay was infefted in the lands under the original grant. Now, my Lords, it is true that 
 that was a grant prior to the date of the Rescissory Act. That is perfectly true, but the 
 truth is that it was a Proclamation that set this aside, as well as the other grants. The 
 King dealt with this matter as being in his own hand from the date of the Proclama- 
 tion. Lord Crawford standing as Lord Crawford even before the Rescinding Act passed, 
 so this grant of the lands of Baky is made to John Lyon of Glammis, though his title 
 never had been the feudal title comprised in that original grant. 
 
 Then there are the two Kilgarry grants, one in favour of Collace, and the other in 
 favour of Somyr. These were two instances where charters were confirmed, but not 
 confirmed by regular progress of confirmation — not confirmed upon a new grant — but 
 simply confirmed as requiring confirmation, and being grants that otherwise would have 
 been affected by the statute. 
 
( 240 ) 
 
 Then there is the Terrinzean grant at page 17, dated the 18th of May 1488, 
 which bears to be in consideration of service rendered, and is a clear and unquestionable 
 illustration of the effect of the Rescissory Act, because those very lands remained in the 
 Crown till 1497, and then they were granted by James IV. on the 18th of April in that 
 year to Sir John Ramsay, showing clearly that the other was treated as an absolute 
 nullity. 
 
 Then there is the Tarves and Balnageith case and the case of Walkmylton. The 
 first was on the 20th of May 1488, and the second on the 24th of May 1488, and in both 
 those instances the grant is treated simply as a nonentity. The feudal title is held not 
 to have been in the grantee at all, and there are regrants as to both of them to other 
 parties. My Lords, I do not think my learned friends have made anything of the cases 
 to show that the Rescissory Act did not take effect, but what they have shown gives a 
 much more clear character than those that they have adduced, which were not held to 
 be rescinded. That certainly would not amount to a usage which would repeal the Act, 
 or throw it into desuetude, if in point of fact it took effect in any of them. There is 
 first a grant to the burgh of Brechin — a charter that was never registered — that the 
 burgh of Brechin might continue to levy customs, contrary to law, and until the mere 
 usage had made it law, but which is not in the slightest degree wonderful. The atten- 
 tion of the Crown was probably never called to the effect of this charter. Your Lordships 
 know that burgh customs depend upon so very vague and general a principle, that in 
 truth use is nine-tenths of the law, and without use even a grant is of no avail. But 
 those small customs can only be levied by burghs to that extent to which there has been 
 a prescriptive custom. The burgh of Brechin levying a penny a load upon wood coming 
 into the town would require this sort of rescinding Act. Then there is the Sheriffdom 
 of Stirling, which I think has clearly been brought forward from a misapprehension of 
 the nature of the transaction. The Crown comes in to confirm the grant of the Sheriffdom 
 of Stirling, not in virtue of its Royal Prerogative, but simply as a superior to confirm a 
 contract between two individuals, which in point of fact the Crown could not and never 
 does refuse. It is a rule of the feudal law in Scotland, that the Crown refuses no one ; 
 that is to say, if A sells his lands to B, and B comes for a charter of confirmation to the 
 Crown, his superior, the Crown must grant a charter. It is therefore not a grant from 
 the Crown, but it is a matter which the Crown is bound to do, as every other superior is 
 bound to do the same, for in the most ancient times of the feudal law the Crown refused 
 no one. And accordingly this grant of 1488 did not fall under the Rescissory Act at all. 
 It was a contract between two individuals ; it was not an alienation of Crown property in 
 the hands of the Crown, but a transaction between individuals where the Crown came in 
 as the superior, and could not avoid giving its sanction. I do not now remember any 
 other instance that it is necessary to call your Lordships' attention to. 
 
 There is the case of Glencairn, and, my Lords, it is necessary for me very 
 shortly to call your attention to the position in which that case stands, because it seems 
 to me that any plausibility which the argument on the other side may be supposed to 
 have had, is derived entirely from the argument on this case of Glencairn. 
 
 Chairman. — What becomes of the case of Polmaise ? 
 
 The Lord Advocate. — My Lords, my argument is this, — that that case of Polmaise, 
 as regards the Sheriffdom of Stirling, was not an alienation or grant by the Crown, 
 but was a transaction between Cunningham and another party for the transfer of the 
 Sheriffdom. But then, as your Lordships are aware, it is necessary in every Crown 
 holding, if the grantee holding it sells it, a new charter must be taken out to complete 
 the title of the purchaser. 
 
 Chairman. — But Sir Alexander Cunningham and his son held that property 
 under a charter that ought to have been destroyed by the Act Rescissory. 
 
{ 241 ) , 
 
 Sir FitzRoy Kelly.— It was within the period, and if one fell all fell. 
 
 Lord Advocate.~'i>io doubt it was ; but it was impossible to say that that which 
 was simply a contract between two parties was prejudicial to the Crown, or fell under 
 the definitions contained in that Act. It was a private transaction. 
 
 Chairman.' — It was not a private transaction. It was a grant from James III., on 
 the 14th of February 1487, of the office of Sheriff of Stirling. 
 
 Lord Advocate. — The case is as I supposed, my Lord. The charter proceeds 
 upon the resignation by Lord Erskine in favour of Cunningham. It was not a grant 
 of Crown property, and not properly a grant by the Crown at all. It was simply com- 
 pleting the title of the party in whose favour the resignation was made. 
 
 Lord St. Leonards. — It was a transfer. 
 
 Sir FitzRoy Kelly. ~l do not so understand it, my Lord. My learned friend 
 says that it was a resignation by Erskine in favour of Cunningham. I do not see that 
 that was the terms of the resignation. 
 
 Lord Brougham.~It was a grant by one private individual to another, though it 
 might require a confirmation. 
 
 Lord Advocate.~The Sheriffdom, my Lords, was in Lord Erskine, not in the 
 Crown, at the date of this transfer ; it was in Lord Erskine's possession, and not Crown 
 property. Then Lord Erskine resigns it into the hands of the Crown, and the Crown 
 grants it to Cunningham ; that is all one transaction. Your Lordships will find it ex- 
 plained at page 32. 
 
 Lord Brougham. — The Crown in the case (sic) does not grant ; it is the mere 
 channel of conveying from the one party to the other. 
 
 Lord Advocate. — No doubt, my Lord. 
 
 Lord Brougham. — It is from the donor that the power to grant comes. 
 
 Lord Advocate. — I do not think that I can better explain it than by referring to 
 the Case for the Duke of Montrose in page 32, where it is said, " It was not an original 
 " alienation of the office, but proceeded upon a resignation by Lord Erskine and his son, 
 " who were long previously the heritable Sheriffs, for a new grant in favour of the Cun- 
 " ninghams during their lives. The charter was merely the official fulfilment on the part 
 " of the Crown of a private arrangement between the two families of Erskine and Cunning- 
 " ham. The Noble Claimant denies that the requisition by the Erskines was in favour of 
 " the Cunninghams, but the words of the charter fully bear out the Petitioner's original 
 " statement, although it is possible that the resignation may not have been in terminis in 
 " favour of the Cunninghams." Indeed at that time, and till the reign of Mary, resignations 
 rarely bore the name of the party in whose favour they were made, but were made 
 purely and simply in the hands of the superior, upon an obligation, express or implied, 
 that he should renew the investiture to the party intended to be favoured. In this case 
 the resignation appears from the charter to have been more specific than was then 
 customary, for the Erskines resigned their office for the joint lives of the Cunninghams, 
 therefore the Cunninghams got a grant for their joint lives. 
 
 Mr. Stuart Worthy. — Where does it appear that they resigned in favour of the 
 Cunninghams ? I do not think that that appears. 
 
 Sir FitzRoy Kelly. — It is true that it is stated by the Duke in his Case, but it 
 nowhere appears by the document itself. Perhaps my learned friend will refer to any 
 document in which the Cunninghams are at all mentioned or alluded to in the resig- 
 nation. 
 
 Lord Advocate. — If your Lordships will refer to the resignation, it is a resignation 
 by Erskine into the hands of the Crown. 
 
 Mr. Stuart Worthy. — Not in favour of the Cunninghams. I do not know where 
 
. ( 242 ) 
 
 that appears. It is a simple resignation to the Crown, and a regrant from the Crown to 
 the Cunninghams. 
 
 Lord Advocate: — There is no question about that. If your Lordships will refer to 
 page 17 of the Original Case for the Claimant, you will find an extract from the Great 
 Seal proving this, that the charter stated on the face of it is a charter, and also that this 
 had been resigned into the hands of the Crown for the lives of Alexander and Robert 
 Cunningham. I so read it, and it is quoted by the Claimant himself : — " Alexandro 
 " Cunynghame de Polmayis, militi, et Roberto Cunynghame suo filio et apparenti heredi, 
 " et eorum alteri diutius viventi, conjunctim et divisim, de officio Vicecomitis de 
 " Striveling, tarn in burgo quam extra burgum, pro toto tempore vite dicti Alexandri et 
 " Roberti." Then comes the clause called the " Quequidem :" — " Quodquidem officium 
 " Vicecomitis Thomas Dominus Erskine, et Alexander suus filius et heres apparens, prius 
 " habuerunt, et ex suis propriis motibus et spontaneis voluntatibus, unanimi consensu, 
 " resignaverunt et sursum reddiderunt, etc., cum omnibus feodis et proficuis dicti officii, 
 " pro toto tempore vite dicti Alexandri et Roberti." What can be clearer than that they 
 resign only for the lives of those parties? But the very charter bears that it was a 
 spontaneous resignation. I think I may now proceed to the case of Glencairn. 
 
 Sir FitzRoy Kelly. — I did not mean to disturb the course of my learned friend's 
 argument, but we understand, my Lords, that the document itself of resignation does 
 not allude to the Cunninghams, and that the effect of it purported to be given in the 
 passage which my learned friend has read ; but the document of resignation has no 
 mention of the Cunninghams. I presume the document is in evidence; we will have it 
 referred to. 
 
 Lord Advocate. — I think it does stand quite clearly on the footing on which I 
 originally put it, that it was a matter between the two parties which required the assent 
 of the Crown to it. 
 
 Sir FitzRoy Kelly. — We will refer to the document ; then there can be no con- 
 troversy as to its contents. 
 
 Lord Advocate. — I do not know whether the resignation has been produced. 
 Mr. Stuart Worthy. — Yes, there are no words in favour of them here. 
 Lord St. Leonards. — I see no use in this discussion now. 
 
 Lord Advocate.' — The charter, my Lords, is the rule of the transaction, and 
 whatever you find in the charter you must take to be the fact ; the resignation does 
 not necessarily bear it. It is enough if the Crown understands it, and does grant the 
 charter. 
 
 Chairman. — Is the Charter now in evidence before us? 
 Lord Advocate. — Extracts from the Great Seal, my Lord. 
 
 Sir FitzRoy Kelly. — The instrument is in evidence, but, not being printed, we 
 have it not at this moment before us in extenso. 
 
 Lord Advocate. — As to the case of Glencairn, before I go to the decisions, let us 
 see what in point of fact was that case, or whether there could be a stronger or a clearer 
 illustration of the effect of the Rescissory Act or Statute. Your Lordships find that the 
 then Earl of Glencairn fell on the field of Stirling, and his eldest son was served heir to 
 him. I believe we are ready to produce the service of the eldest son to the Earl of 
 Glencairn, under the title of Lord Kilmaurs, after the Rescissory Act. I think it appears 
 that Robert did not survive more than a year, because we find in 1690 {sic), in the evidence 
 on the part of the Crown, the Cuthbert Lord Kilmaurs mentioned in 1490 (dc), and from 
 that time down to 1503 he appears in a variety of characters. I think in one case he 
 is tried at the bar of the High Court of Justiciary for an assault on Lord Eglinton but 
 he sits in Parliament, and is engaged in lawsuits in Court, in every one of which he 
 
( 243 ) 
 
 is styled Lord Kilmaurs, nothing else, down to July 1503. Your Lordships are aware 
 that the King's marriage took place in the August of that year, and the account of 
 Young, the Somerset Herald, is this, — that on that occasion there were three Earls 
 created and belted, the Earl of Arran, the Earl of Montrose, and the Earl of Glencairn ; 
 and then there is this remarkable fact, that the Earl of Arran gets the Charter the day 
 before the date that the Somerset Herald attributes to the belting, and that Charter 
 bears to be in respect of labours undertaken on the King's marriage. The Earl of 
 Montrose's Charter is not in existence, but it was granted in March 1 504 ; and then Lord 
 Glencairn, though he does not get a Charter at that time, gets a Charter, I think, in 
 1707 (sic), of certain lands, under the title of Lord Glencairn. The Earl Arran 's Charter is 
 extant, and it corroborates the Herald's account in this way, that it bears date the day 
 before the belting, and it bears to be '' tempore contractus matrimonii nostri in facie 
 " ecclesie solemnizati." The Patent was put in, dated the 11th of August 1503, two 
 days before the belting. So much for the title. From that day forward, but only from 
 that day forward, the Earl of Glencairn possessed the title. What became of the estates ? 
 The estates of Drummond and Duchray, which had been granted in 1488 to the first 
 Earl of Glencairn, reverted to the Crown, and were granted to other parties. We have 
 put into the evidence, perhaps at too gi-eat length, the full titles of both those estates 
 which were granted to other parties altogether, and they never went back to the 
 Glencairn family. If the question is, whether this Act went into desuetude, the case of 
 Glencairn is a most clear and absolute contradiction. Cuthbert was not under a cloud, 
 and was suspected of no crime. Why did he not assume the title ? How came it on the 
 other hand that for fifteen years he is only Lord Kilmaurs, and then, at a time coincident 
 with the belting, he immediately assumes the title of Earl of Glencairn and sits iu Par- 
 liament without the estates ? That is the history of the Glencairn case. If we look at 
 the facts of the case — the question of res judicata I am not now going to speak to, but on 
 the facts, so far as your Lordships have come, I think there is really nothing but this, 
 that for fifteen years the descendant of the Earl of Glencairn was Lord Kilmaurs, and 
 that the estates were resumed by the Crown, and granted to other parties ; both facts 
 being utterly inconsistent with the idea of the Rescissory Act not having taken effect. 
 But this case of Glencairn has been raised into a position which, I think, is entirely 
 inconsistent with the real principle on which this case must be determined. Your 
 Lordships are asked to look at the case of Glencairn as if you were now considering the 
 question of the Glencairn Peerage. 
 
 My Lords, it is a mere precedent, taken for what it is worth, and only a precedent, 
 and one that must be judged of by its own facts. Unless the facts in the Montrose case 
 are on all fours with it, it has no materiality in this matter, excepting that I think the 
 facts which I have now stated certainly go very far to corroborate my argument. But 
 then my learned friends stretch it further, because they say, not only is this res judicata 
 upon the question of the Rescissory Act having or not having operation, but they insist 
 upon the judgment of 1648 being a res judicata, constituting a res judicata ; while a more 
 recent judgment of a more unquestionable tribunal, and upon much better authority, I 
 mean the judgment of your Lordships' House, is set aside altogether. This is a most 
 extraordinary mode of arguing upon a matter of res judicata. There can be no doubt 
 that the judgment of Lord Loughborough, in the Glencairn case, was directly in point. 
 The claimant claimed under the Patent of 1488, which would have carried the estate to 
 the heirs male, or heirs, [and the judgment] held that the Patent of 1488 was annulled 
 by the Rescissory Act ; and as there must have been a new creation in 1503, the pre- 
 sumption of law was, that it went to the heirs male of the body ; and if that was good, 
 the Act of 1488 had taken effect. That is res judicata, if there be anything like it iu this 
 
 2 I 
 
( 244 ) 
 
 case. My learned friends say that Lord Loughborough's judgment was unfortunate and 
 deplorable, and they expressed surprise that he should have been so far ignorant as to give 
 expression to such principles, or to decide upon such grounds. How far your Lordships 
 will treat a judgment of this House in that way it is for you to consider. But to come back 
 to what is the real pith of the Glencairn case, it is this— What were the grounds of those 
 two judgments ? And with regard to the views of my learned friends, I do not think your 
 Lordships can hold the Glencairn case to be the precedent that they say it is. But on 
 what grounds did those judgments proceed ? To what extent are they valuable in this 
 inquiry ? I go on to consider both the judgments in the proceedings in 1648 and the 
 proceedings in 1797, the one and the other. It appears that this question of j)rece- 
 dency between the Earls of Glencairn and Eglinton periodically came before the Court 
 of Session — it was a standing feud. It seems that Cuthbert and Eglinton were rivals as 
 i'ar back as 1503, and that it continued. In 1606 there was a Decreet of Ranking, in 
 which Eglinton was put before Glencairn. Glencairn brought an action to reduce that rank- 
 ing in 16 10, and got judgment. Eglinton again brought an action against that in 1617, and got 
 judgment. Glencairn afterwards, in 1648, brought another action, and he succeeded. Eglin- 
 ton again appealed to the Parliament, and the Parliament again set aside the former decision 
 in 1649. That is all narrated in the proceedings in 1648, — but I beg your Lordships to remem- 
 ber that there are two clear and manifest distinctions between the case of Glencairn and the 
 case of Eglinton. The first is, that the Earl of Glencairn sat in Parliament from 1505 ; 
 and the second is, that the Earl of Glencairn obtained a ratification from Charles I. in 
 1637; that the Deed of Decreet of 1617 stood, giving the Earl of Eglinton precedence 
 before him, but, after getting that ratification in 1637, he then thinks that he is in a 
 better position to try the question with his old rival. I have here the Decreet of Prece- 
 dence, and that Decreet unquestionably sets out, and your Lordships will find it a 
 perfectly safe and authentic record of the proceedings in the case. At that time, and 
 long afterwards, a Decree in the Court of Session narrated every proceeding that took 
 place. And it just occurs to me, my Lords, to say, that it is very inconvenient to have 
 these authentic documents printed with the quantity of italics and capitals found here, 
 which obscure the sense and almost prevent the terms being read. It was a summons of 
 reduction and decree, and your Lordships will observe that the whole matter in con- 
 troversy was a question of precedence, not a question of title. The Court were not 
 trying that question, but simply whether Eglinton or Glencairn was first. Then the 
 Decree, in the first place, sets out an action of reduction and declarator. My Lords, in 
 this case of Glencairn, however, before I go to the merits of the case itself, it is remark- 
 able that the proceedings in this case should afford another illustration of the unques- 
 tionable result of the Rescissory Act, as regards the Dukedom of Montrose. And I may 
 refer your Lordships to, I believe, a work of authority, which I do not read as an 
 authority, but as part of my argument, ' The Lives and Characters of the Officers of the 
 ' Crown and of the State in Scotland,' by George Crawfurd, and published in 1726, and 
 I believe a work of good repute for accuracy. I find in that book, at page 322, in the 
 account of the Duke of Montrose, that he says, " When the troubles began in this reign, 
 " the Lord Chamberlain adhered to the King with great fidelity, in consideration whereof 
 " he was graciously pleased to make him and the Earl of Huntly joint Lord Justices of 
 " the North, and further to raise him to the honour of Duke of Montrose by letters 
 " patent the 18th of May 1487- But, after the death of the King, the new Ministry, 
 " under the young King James IV., reduced his title of Duke in pursuance of an Act of 
 " Parliament they made on the 6th of October 1488, whereby it was declared ' that all 
 " ' alienations of lands, heritages, creations of new dignities, granted to any person, of what 
 " ' estate, degree, or condition they be of, since the 2nd day of February 1487, be cassit 
 
« ( 
 
 ( 245 ) 
 
 and annulit, and to be of na force nor effect in any time to come, because,' say they, 
 SIC gifts and priviledges war grantit for the assistance to the perverst counsel that war 
 contrar to the common guid of the realm and the cause of the slaughter of our 
 Sovereign Lord's father, and diverse other his Barons and leidges.' But this was not 
 " all the hardship put upon the Duke ; for, before he could make his peace, he was 
 " peremptorily obliged to resign the Sheriffship of Forfarshire to the Lord Gray ; and, 
 " having complied in that point, to gratifie him somewhat, they prevailed with the young 
 " King, their pupil, to give him a new patent to be Duke of Montrose, but only during 
 " life, the 19th of September 1489. I do not find the Duke after this meddled much in 
 " publick affairs." 
 
 Lord Chancellor. — Is that a proof of accuracy ? he gives the date of the patent as 
 1487 instead of 1488. 
 
 Lord Advocate. — It is a mere slip, my Lord. 
 
 Sir FitzRoy Kelly. — It is quite as correct as many other cases to be found in 
 that book. 
 
 Lord Advocate. — He certainly is of better repute than Pitscottie. Then, my 
 Lords, we find in the argument in the case of Glencairn that throughout that argument 
 the Duke of Montrose's case is always referred to as. being a case unquestionably of 
 submission to the Rescissory Act, the party having made his peace and taken a new 
 grant. 
 
 I shall now, my Lords, go on to consider the case of Glencairn on its own merits. 
 I am referring your Lordships to the Summons and Decreet of precedency as narrating 
 the proceeding in the cause. It was a summons of reduction, starting with the title of 
 the pursuer in the process called a process of reduction. There are two parts of the 
 process. The first is the part where the pursuer sets out his title, and calls upon the 
 defender to produce the deeds that are required to be reduced. The party defendant is 
 not bound to produce those deeds, or show them at all, unless the pursuer can show 
 sufficient title and interest to demand them ; and accordingly it is necessary, in the 
 summons of reduction, that the party should set out his title and interest in the first 
 instance, and then he goes on to call for the documents he wishes to reduce. So when 
 your Lordships find, in the course of the proceedings, references to the pursuer's title, 
 and find the Court sustaining the pursuer's title, the meaning is, his title to pursue his 
 action of reduction and decreet of precedency, and does not refer specifically to his Patent 
 of honours, but to his title to pursue the action. He says, " In the actioune and caus of 
 " reductioune and declarator persewed at the instance of William now Erie of Glencairne, 
 " Lord Kilmawris, sone and air to umquhill William Erie of Glencairne Lord Kilmawris, 
 " his father, agains whome the pretendit Decreit of reductioune efterspecifeit was given and 
 " pronunceit, designit therin William Master of Glencairne Lord Kilmawris, and als suc- 
 " cessor in the styll, title, dignitie, and Erledome of Glencairne, to umquhill James Erie of 
 " Glencairne his guidsir, againes whome lykwayes the said pretendit Decreet of reductioune 
 " was given, and in whais hurt and prejudice the uther Decreit efterspecifeit was given and 
 " pronunced be the Lordis Commissioners appoynted for ranking of the nobilitie of this 
 " kingdome in manner efter mentionat, and whilk now William Erie of Glencairne is also 
 " successor in the foresaid style, title, and dignitie of Erie of Glencairne, to umquhill Alex- 
 " ander Erie of Glencairne Lord Kilmawris, his foirgrandschir's foirgrandschir" (great- 
 grandfather) — that is a direct assertion that he succeeded to the first Earl — "To whome the 
 " foirsaid title, honour, and dignitie of Earl of Glencairne Lord Kilmawris was conferred, 
 " given, and granted be umquhill King James the Third, of worthie memorie, be vertew 
 " and conforme to ane Charter and Lettre Patent of the foirsaid dignitie, granted under the 
 " Great Seall of this Kingdome, whairby King James the Third did mak and creat the said 
 
 2 12 
 
( 246 ) 
 
 ' ' umquhill Erie of Glencairne and his aires perpetuallie in all time therafter Erie of Glen- 
 " cairne and Lord Kilmauris : And to and in favore of the whilk William now Erie of 
 " Glencairne, the Kingis Majestie that now is, be his Lettres of Ratificatioun under the 
 " Great Seall, of the dait the 21 day of July 1637yeares, hes ratified, approven, and per- 
 " petuallie confirmed the foirsaid Lettres Patent, granted be the said umquhill King James 
 " the Third, of worthie memorie, to and in favore of the said umquhill Alexander Erie of 
 " Glencairne, foirgrandschir's foirgrandschir to the said persewer, of the foirsaid title and 
 " dignitie of ane Erie, with all other lettres patentes, writtis, and evidentis maid and granted 
 ' to the said umquhill Alexander Erie of Glencairne, his predecessors or successors, of 
 " the foresaid style, title, and dignitie of ane Erie, in the haill poyntis and articles therof ; 
 " and has willed and declaired that the foirsaidis Lettres Patentis granted be the said um- 
 " quhill King James the Third to the said umquhill Alexander Erie of Glencairne, with the 
 " Ratificatiou ntherof foirsaid, are and salbevalyde, perfect, and sufficient rightis whereby 
 " the said Williame now Erie of Glencairne, persewer, and his successors foirsaid, may 
 " bruik and injoy the foirsaid honor, title, and dignitie of ane Erie, according to the 
 " said Lettres Patentis." Therefore, my Lords, the grant of 1488 is connected in this 
 statement directly with the ratification of 1637- In it Charles I. seems to have 
 perpetually confirmed the grant of 1488. It is still setting forth the title : — ''And swa 
 " the said Williame now Erie of Glencairne, persewer, haveing guid and undoubtit 
 " right to the foresaid honor, title, style, and dignitie of Erie of Glencairne, Lord 
 " Kilmauris, and sufficient entres to remove all impedimentis whilk may anyways stopt, 
 " hinder, or impeid him in the peaceable bruiking and joyseing of the samyne dignitie 
 "according to the precedencie and an tiquitie therof, and consequentlie to perse w the 
 " actioune of reductioune underwritten againes Alexander Erie of Eglintoune " — 
 
 Now unquestionably the Court in 1648 sustained that title as a sufficient title to 
 sue an action of precedency, and to that extent it is impossible to deny that Lord Lough- 
 borough's judgment was not altogether (I mean the rationes of the judgment) consistent 
 with the fact when he said that the judgment of the Court in 1648 did not go upon the 
 Patent of 1488; because, as your Lordships will find afterwards — and I consider it my 
 duty to bring this Decree before your Lordships in the way in which I think it bears — 
 the judgment of the Court of Session sustained the title, and unquestionably found, as 
 between the Patent of 1488, taken along with the Ratification of 1637, that those com- 
 bined were sufficient title to pursue this action of precedency ; but your Lordships will 
 at the same time find, when they come to the ultimate judgment in this case, it is not in 
 the least necessary for them to go into the Patent at all, or do more than consider the 
 right of Lord Eglinton. I think it is perfectly clear, when the matter is sifted, 
 that, independently altogether of the Patent of 1488, Lord Eglinton had no claim 
 whatever to precedency over Lord Glencairn, because Lord Glencairn sits in Parliament 
 as the Earl of Glencairn before Lord Eglinton sits in Parliament as Earl of Eglinton. 
 But, having set out his title to be this grant, and the confirmation of it, he goes on to 
 state what the matters and rights are which he thinks it necessary to reduce, and those 
 are, in the first place, the Decreet of Reduction of February 1 1 th, 1 6 1 7 : that was a decree 
 reducing the prior Decree of 1610 ; and he wishes that that shall be produced, and that 
 the Decree of 1606 shall be reduced, namely, the Decree of Ranking, along with all the 
 other documents which are specified on page 2, about the middle of the page. The 
 subject of it is, that they be " reducit, retreittit, reschindit, cassit, annulled, decerned 
 " and declaired to have bene from the beginning, now, and in all tyme comeing, null and 
 " of nane availe, force, strenth, nor effect, with all that hes followed or may follow 
 " therupone ; in swa farr as be the samyne Decreittis and remanent evidentis and writtis 
 " foirsaidis, or any of thame, the said Williame, now Erie of Glencairne, persewer, his 
 
( 247 ) 
 
 " aires, or successors, Erles of Glencairne, is or may be posponed in place, rank, and 
 " dignitie to the saide Erles of Caithnes, Eglintoune, Montrois, and Cassillis, or 
 " any of them, or their successors ; and als to have heard and seene it fund 
 " and declaired that be Decreit of the saidis Lords that the said William, now Erie of 
 " Glencairne, persewer, his aires and successors, Erles of Glencairne, ought, and sould, 
 " and sail have in all tyme cumeing the right of precedency and prioritie of place and 
 " voteing in all parliamentis, councillis, conventiounes, and otheris publict and private 
 " meetinges, befoir the said Erles of Caithnes, Eglintoune, Montrois, and Cassillis, and their 
 " successors, notwithstanding of the foirsaidis Decreittis and other writtis callit for, or of 
 " any other right or title of honor and dignitie granted to thame or ony of tharae." The 
 words are exceedingly verbose, but the result is that the first conclusion is the ordinary 
 conclusion — the Summons of reduction calling for those documents to have them set 
 aside, and then come the Reasons of the reduction. Now, my Lords, the Reasons of 
 the reduction in the first place were, that that Decree of 1606 was passed in the absence 
 of Lord Glencairn, and the second reason is that he finds no Glencairn Patent (sic) ; but he 
 goes on to find also upon this, that Alexander Earl of Glencairn " was creat Erie of 
 " Glencairne be King James the Third, of worthie memorie, upone the 28th of May, 1488 
 " yeeres, be vertew of the whilk Patent Cuthbert Erie of Glencairne, oy (grandson) to 
 " the said umquhill Alexander first receiver therof (the said Alexander having bene 
 " killed in the field of Stirling some ten dayes after the daite therof, and Robert, sone to 
 " the said Alexander, haveing deceast shortelie efter his father), is dessignit be decreit 
 " of the Lords the 12"' of March, 1504, Erie of Glencairne, and satt in the Parliament 
 " holden be King James the Fourth in anno 1505 as Erie, and wes so acknowledged be him 
 " and be the estates of Parliament. In the whilk Parliament Hew Lord Montgomrie, 
 " the Erie of Eglintoun's predicessor, satt as Lord." 
 
 Now, my Lords, this was entirely a question of precedence, and it was not neces- 
 sary for the Court to decide on what title Lord Glencairn sat in Parliament, if in point 
 of fact he had sat with a good title. But your Lordships, upon looking into the argu- 
 ment, will find that the argument went upon this, that as there was nothing to show on 
 what other title the Earl of Glencairn sat in Parliament in that capacity, it might be 
 in some way or other referred back to the Patent of 1488, as the sitting in Parliament in 
 the interval must be held according to the lapse of time to have worked out the 
 rescinding Decree of 1488. But independently of that, the mere fact that the Earl of 
 Eglinton could show no right before the sitting in Parliament of the Earl of Glencairn 
 would have been itself sufficient ground so far as the question of precedency was 
 concerned. Then it narrates the charter granted to Cuthbert Earl of Glencairn in 1507, 
 " conform to the whilk patentis, sederuntis, and rightis, the perseweris haill predicessors 
 " of the Hous of Glencairne has bruiked the title and dignity of Erles without questioune 
 " peaceablie now be the space of seven or aught scoir yeeres, — before the whilk time," 
 that is to say, before the time mentioned, " nane of the saidis Erles abovementioned did 
 " schaw anything anterior," — that was really the whole question ; " neither war their 
 " predecessors hable to schaw and verifie the dignitie of Erles or uther lawful creatioune 
 " of Erles granted to thame or ony of thame or their predecessors foresaidis," That is 
 the whole standing of the action. There he is shown sitting in Parliament in 1505, 
 that he was designed Earl in 1504 by Decreet, and it is referred to the original Patent 
 of 1488. Then he says that this is not a question of feudal titles^ but a question of 
 precedency, and then he goes on to give the deductions upon which the conclusions 
 ought to follow, namely, that " Sieing, be the law and practiq of this kingdome 
 " inviolablie observed, and be the foresaid Decreit of Ranking of the nobilitie of this 
 " kingdome in the said yeere of God 1606, it is manifest that amongst noblemen provydit 
 
( 248 ) 
 
 " to dignitie those who are prior in dignitie and first provydit thereto, and are most 
 " auntient in the title therof, ought to be and are ever preferred to all others being 
 " posterior to thame in title and dignitie." Then there is other matter in regard to the 
 Decree of 1617 having proceeded upon the same rationes (sic), and respecting the 
 Decree of 1610,— it is not necessary to go into that. Then there are a great variety 
 of productions made. I believe most of them were not original documents, but copies 
 from the register, and in particular where it is mentioned that the charter of the Duke 
 of Montrose was produced, it was not the original charter, but a copy from the 
 register also. I need not take your Lordships through all these documents, because 
 they were documents produced for the purpose of instructing this claim. It is on 
 page 5. That concludes the summons and the productions by Lord Glencairn. 
 
 Then, my Lords, you have Lord Eglinton's part in the process. The Decree goes on 
 to narrate that, " the said Alexander Erie of Eglintoune and Hew Lord Montgomerie his 
 " sone, compeirand be Mr. Thomas Nicolsone, Mr. Johne Nisbit, Mr. W". Maxwell, and 
 "Mr. Johne Fletcher, their procurators," produced "the particular writs and evidentis 
 " following." Then comes the charter by James V., of 1528, to Hew Earl of Eglinton, 
 and the precept of seisin upon it ; and it is mentioned, showing the constant feud between 
 the families, that this charter bore " that the principal hous and maner-place of Eglin- 
 " toune wes brunt and destroyed be William Cuninghame, Kny*, Master of Glencairne, 
 " with his friends and complices, whair their chairtors, infeftmentis, and evidentis of the 
 " said lands contenit in the foirsaid charter were in keeping, and were destroyed." 
 There was a "Precept of seasing vnder the Quarter Seall, daittit the 18"' of December 
 " 1500 yeeres, bearand that the Kingis Majestie, with consent of the Lords Governors 
 " of the realme, in absence of John Duke of Albanie, his Majestie's Tutor, Protector, and 
 " Governor of the realme, had disponed to Hew Erie of Eglintoune, Lord Montgomerie, 
 " the lands of Langschaw, with the right of patronage of the Chappell of the Blessed 
 " Virgine, whilk pertinet to Thomas Home heretablie, and quhilk he resignit in the hands 
 " of James Archbischope of Glasgow, Chancellor of Scotland, in absence of the Duke of 
 " Albanie, Tutor to the King ; and tharfore giveing precept and warrant to give sasing 
 " therof to Hew Erie of Eglintoune." But it ultimately appears that James was not 
 Archbishop of Scotland in 1500, but in 1522; and the Duke of Albany was not tutor to 
 the King in 1500, who was of age at the time; and the date is not 1500, but is 1522. 
 Your Lordships will find it stated upon authority that cannot be disputed, that in regard 
 to that writ, at all events, there was either a clear forgery or a mistake in the date. It 
 is in a note to the proceedings that are printed on page 203 of the Supplemental Case, 
 your Lordships will see in the course of the discussion that took place there, Gilmour, for 
 Earl of Glencairn, "asked instrumentis upone the Precept 1500, Seasing 1502, and 
 " Sederunt 1503, and alledgit na respect can be had thereto. First, the Precept is of 
 " ane false daitte, in anno 1500, the year of the reigne 8°, and granted with consent of the 
 " Governore, and upone resignatioun in the Bishope of Glasgowis handis as Chancellor, 
 "quhilk cleires that trewlie to be 1522; for Duke Albany wes Governor to King 
 " James V., and the Bishope was Chancellor to him. King James IV. had never ane 
 " governor; and it is clear be uther writtis produced be both thir perties, that 1522 is 
 " the true daite. As to the Seasing, it is onlie ane copie, and the assertioune of the 
 " pertie, and the nottar callis him, and in the indictio beires to be in the tyme of Pope 
 " Leo XL, wha wes not Pope whill 40 yeeres therefter, and be sederuntis, actis, and 
 " charteris the said Erie is designed Lord therafter ; and for the Sederunt 1503 that 
 " is only ane errour in the wryttar, for that same efternoone, and the more therefter and 
 " [in] many uther sederuntis, he is onlie Lord Montgomrie, never being Erie of Mont- 
 " gomrie." And the observation struck me with surprise, that my learned friend the 
 
( 249 ) 
 
 Solicitor-General should have founded upon the first two of these documents ; because 
 I find a note by the Claimant to the statement, " The objections on the part of the Earl 
 " of Glencairn to the Precept and the Seisin were well founded ; but not so as to the 
 " Sederunt 1503." It is clear, therefore, that the Precept of 1500, and the next docu- 
 ment, which your Lordships have upon that page 5, namely, the Seisin dated the 11th 
 of April, 1502, to Eobert Montgomery, are both, if not forgeries, at least documents 
 entitled to no weight whatever. Then it goes on to say, " Four Extracts of Sederuntis in 
 " Councell and Sessioune," not in Parliament, " daited the 2nd, 3rd, and 5th days of 
 " March, 1506, designeing the Erie of Eglintoune to sitt as ane of the Lords of Ses- 
 " sioune.— Item, ane Sederunt of Parliament, 25th Merche, 1503, bearing Hew 
 " Erie of Montgomerie to sitt in Parliament." But the answer made in the discus- 
 sion upon that seems to be absolutely conclusive. In the first place, there is no 
 Earl of Montgomery, and, I believe, never was, so far as I am aware : but what is 
 conclusive upon that matter is, that in this particular Sederunt of Parliament you 
 have Lord Eglinton, as Lord Montgomery, in the very same day and in the very 
 same record; and accordingly, as the whole question is between Montgomery's and 
 Glencairn's priority of sitting in Parliament, it is clear that no faith could be given to 
 this entry of "Earl of Montgomery" in 1503, when. he was designed as Lord Mont- 
 gomery both in that Parliament and afterwards. My learned friend, I believe, does 
 quote it, but he says perhaps there was an Earldom of Montgomery afterwards. I 
 think he says, — ^'The present Claimant conceived when the Original Case was printed, 
 " that the Precept, 1500, and the Sasine, 1502, were valid evidence on the part of the 
 " Earl of Eglinton, and proved the existence of his Earldom at those respective dates ; 
 " but the recent search in the Eglinton charter-chest has disclosed the originals of the 
 " two documents in question, and the untenability of this supposition." Then he gives 
 up the Precept and Sasine altogether, and then he says, " But while the error in these 
 " two documents, the Precept and the Sasine, was manifest, and as such was tacitly ad- 
 " mitted by the Earl of Eglinton and his advisers, this was not the case with the 
 " Sederunt 21 March, 1503, — Glencairn's assertion that there never was an Earl of 
 " Montgomery being quite unfounded (S. Case, p. 71), and as the Claimant can now prove 
 " by additional evidence printed in these Addenda, infra, p. 214. They accordingly 
 " concentrated their argument on the Sederunt 2 1st March, 1503, which equally gave 
 " them the precedence if the Glencairn Patent 28th May, 1488, was out of the way." 
 Now your Lordships have that entry at page 214, — it seems to be a proceeding in 
 regard to William, Lord Sempill, an agreement between him and the widow of his 
 predecessor, or his mother, and the Earl of Montgomery is mentioned there as a witness 
 to it, but I do not know whether that is the signature of the Earl of Montgomery. The 
 Peers generally signed by their title, and the signature should have been " Mungumry." 
 Apparently it is only a statement of the clerk or writer as to who the witnesses were, 
 and, if that is the only evidence of the Earldom of Montgomery, it appears to me that 
 the testing clause is not given — the signature is apparently only a part of the testing 
 clause. It runs thus— "In witness of the quhilk think (thing) baith the saidis parties, 
 " togidder with the forenamit sourteis and dettors, has subscrivit this present writ with their 
 " handis, day, zer and place forsaid, befor thirwitnes, &c. — Erie of Mungumry, William 
 " Lord Simple, Niniane Lord Ross, Johne Master of Mungumry, James Colville ol' 
 " Vchiltre, Margret Simple, Robert the Brus of Arth." That is rather an enumeration 
 of the witnesses, and it does not seem to me to be the signature of Lord Montgomery 
 at all. Lord Eglinton was the Earl of Eglinton — he was created Earl of Eglinton, and his 
 charters were to Hew, Earl of Eglinton ; he claimed to sit in Parliament as Earl of 
 Eglinton, and he never was Earl of Montgomery. If that is all the evidence of the 
 Earldom of Montgomery, I do not think that it is of the slightest weight whatever. 
 
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 But observe how weak the evidence was after all. The assertion is, that in this particular 
 Parliament, in one entry, in which Lord Eglinton is entered over and over again, in one 
 entry he was designated Earl of Montgomery, and in all others designated Lord Mont- 
 gomery, and he was Lord Montgomery afterwards. I think your Lordships will find 
 that it is narrated in the summons of Lord Glencairn as a fact that in the Parliament of 
 1505 Hew Lord Montgomery sits as Lord Montgomery. If the whole discussion 
 turned, as in truth it did, upon whether Lord Eglinton had the power of sitting in 
 Parliament in 1503, it was the weakest of all possible proof. It does not appear that 
 the evidence was before the Court at all, and I think your Lordships will see that in 
 truth that was quite sufficient to warrant the Decree of the Court. 
 
 There are a variety of other writs produced. There is the Sederunt of Parliament 
 
 of the 3rd of February 1505, "bearing Glencairn to sit inter comites and Eglinton inter 
 
 " dominos." There are a great variety of other documents, but none tending to prove that 
 
 Lord Eglinton ever was the Earl of Eglinton prior to 1503. Now we shall see what the 
 
 Court do with them. On page 6 the charter to the Earl of Crawford is produced, and, 
 
 I presume, a copy of the register ; also a charter to Andrew Lord Gray, dated the 1 4th 
 
 of December, 1488 ; and a charter to the Earl of Crawford, Duke of Montrose, dated the 
 
 19th of September, 1489, is produced. And after they narrate all these productions, 
 
 there comes the decision of the Court. Your Lordships will find that which is the 
 
 substance of it in page 7, about two-thirds down the page, where there is some printing 
 
 in capitals : — " The Rightis, Ressounes, Alledgances, and Ansswers respective of the foir- 
 
 " named perties, compeirand in manor above written, with the Writtis, Evidentis,Decreittis, 
 
 " Sederuntis, and other documentis respective above specifeit, hinc mcZe produced be thame 
 
 " and ather of thame, as is before exprest, being hard, scene, considderit, and advysed be the 
 
 " Lords of Counsall and Sessioune ; the saidis Lordis reduces, retreittis, reschinds, casses, 
 
 " and annullis the foirsaid pretendit Decreit of reductioune obtenit at the instance of the 
 
 " said Alexander Erie of Eglintoune against the said umquhill James Erie of Glen- 
 
 " cairae and the said William Master of Glencairne, his sone, with all that hes 
 
 " followed or may follow therupone; together with the foirsaid Decreit of Ranking of 
 
 " the nobilitie of this Kingdome, and postponing of the said umquhill James Erie of 
 
 " Glencairne in place, rank, and dignitie to the said Erles of Caithnes, Eglintoune, 
 
 " Montrois, and Cassillis," &c. And having done that which is the substantive part of 
 
 the reduction, it goes on to declare — " And findis and declaris that the said Williame, now 
 
 " Erie of Glencairne, persewer, his aires and successors, Erles of Glencairn, presentlie hes, 
 
 " and aught, and sould, and sail have in all tyme cuming the right of precedencie and 
 
 " prioritie of place and voteing in all Parliamentis, councellis, conventiounes, and other 
 
 " privat and publict meetinges, before the saidis Erles of Caithness, Eglintoune, 
 
 " Montrois, and Cassillis," &c., " for the Ressounes and Causses above written. Because 
 
 " the saidis Lordes, haveing first heard, considdered, and advysed the Alledgances and 
 
 " Objectiounes proponit in proces for the pairt of the Erie of Eglintoune and Lord 
 
 " Montgomerie againes the Perseweris interes and title above written, with the Perseweris 
 
 " Answeris maid theragaines in fortificatioun of his said entres and title foirsaid " — Now, 
 
 my Lords, that properly concludes the Decree. What the Court does is this — it first 
 
 reduces those documents, and it declares precedence. The rest of it is a mere narrative 
 
 of the incidental procedure in the cause, in the ordinary style of extracts from decrees. 
 
 The Decree stops there. It goes on to state the grounds on which they went, but that 
 
 does not form a part of the judgment. It is a judgment reducing these decrees, and 
 
 finding that there is precedence. But it goes on to say that their Lordships " Susteaned the 
 
 " Perseweris interes and title above mentioned as the samyn standis lybellit, and instructit 
 
 " be the Writtis foirsaidis produced be the Persewer for that effect — notwithstanding of the 
 
 " said Alledgances maid theragaines, whilk they Repellit in respect of the foirsaid interes 
 
( 251 ) 
 
 " and title lybellit, and instructiounes therof, and answeris proponit in fortificatioune of 
 *' the samyn, extant in proces." So, in truth, the pursuer's first title was sus- 
 tained, but sustained altogether to sue the action, and by the question ; but when the 
 question comes to be tried, the Court reduce the Decrees of 1617 and 1606. 
 and declare the precedence, but there is no judgment that the Act of 1488 had no 
 operation or effect, there is no judgment that the Patent of 1488 was a valid and subsisting 
 Patent. The title was one which stood last in the ratification of 1637, and it was a title 
 simply to sue the action of reduction ; but when the party came to state the grounds of 
 it, there was in addition to that a strong statement by the Earl of Glencairn, that Lord 
 Eglinton could not show his title prior to the Earl of Glencairn sitting in Parliament, 
 which made it unnecessary for the Court to go into that vexed question of the Act 
 Rescissory of 1488. They had this ground, that the Earl of Glencairn sat in Parliament 
 before the Earl of Eglinton, and the Earl of Eglinton could not show any prior right. 
 He endeavoured to prove a prior right by two forged documents, and by an entry in the 
 books of Parliament ; that was plainly a mistake, and without this there was nothing 
 prior to the date of 1505, when the Earl of Glencairn sat " inter comites," and Lord 
 Montgomery " inter domirws." And if your Lordships look through this argument — the 
 faith to be given to which is doubtful ; it seems to be nothing but notes taken, probably 
 by the agent of Lord Eglinton, during the discussion — but if your Lordships look through 
 it, you will find that the way in which the parties deal with the Act of 1488 is this, that 
 they maintain that the sitting in Parliament since 1505 must be referred, and can only be 
 referred, to the Patent of 1488, because they were quite ignorant of the existence 
 of any other right in Lord Glencairn. Your Lordships will find that on page 
 203 of the Supplemental Case, where Stewart answers the alledgance of Nicolsone, 
 in regard to the Act Rescissory, " This defender can never be hard to quarrell the 
 " Dignitie or Patent, becaus, be actis, and sederuntis, and decreittis of Parliament and 
 " Sessioune produced, the perseweris predicessoris are sitting Erles quhen the defenderis 
 " predecessoris are sitting Lordis, both in Parliament and Sessioune ; and in debaittis before 
 " the Sessioune, both perties present, the persewer is acknowledged both by the Lords and 
 " defenderis predicessor to be Erie and the uther Lord ; and be writtis under the Privie 
 " Scale and authentick services, Alexander, Cuthbert, and Robert acknowledged Erles. And 
 " to any alleged designatioun of the perseweris predecessoris to be Lordis efter the Patent, 
 " answeris, Alexander dying within 10 days after the Patent, and Robert shortelie 
 " therefter, and Cuthbert being young, the countrey in confusioune, was the ressoune 
 " they did not assume the dignitie ; but that would not import ane passing frome the 
 " samyne, — And efter the yeere 1506, when the defenderis predecessoris were Erles, they 
 " are designed Lordis in twa sederuntes." So that in truth the substance of the answer 
 in 1488 {sic) is the sitting in Parliament, which Eglinton at any rate in this process of pre- 
 cedence was not entitled to quarrel with. Not to detain your Lordships by any very 
 minute analysis, your Lordships will find on page 205, Stewart again resuming the argu- 
 ment upon the 1488 revocation, and putting it again upon the fact that there was a tacit 
 consent on the part of the King and of the Parliament. " Stewart referred his former 
 " dispute and reasone founded upone the Patent, acknowledged by the Prince and 
 " Estates, and by the defenderis predicessoris, as he has condescendit upone his 
 " former dispute ; for if the perseweris predicessoris bruik not the title by that 
 " Patent, he bruikis by na right, quhilk is absurd." That was the sting of the 
 Avhole argument. He says, if Glencairn's predecessors were not Earls under that 
 Patent, " he bruikis by na right, quhilk is absurd. Nether can the excipient 
 " impugne the Patent upone ane absolute Act of Parliament, to ley such ane blott 
 " upone the Hous of Glencairne, that they had been traittoris, nathing being done 
 " by the King and Estaittis for that end, bot in the contrair, the King and Parliament 
 
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( 252 ) 
 
 " suffering the perseweris predicessoris (to) bruik the dignitie, whilk they have bruiked 
 " past memorie of man. And he contendis that tacitus consensus of the King and 
 '' Parliament takis away any alledgit revocatioune of the Patent, be vertew quherof the 
 " perseweris predicessoris hes diutina possessio et immemorabilis, — ffbr it is utherways 
 " in dignities than rightes to lands, ffor in prescriptiounes to rightes of landis requiritur 
 " titulus cum possessione, bot in materis of honor possessioune reullis the antiquitie, this 
 " perseweris predicessor being continuallie in possessioune of the dignitie efter the Patent. 
 " Nether can this defender, being of paritie in dignitie with the persewer, quarrell his 
 " Patent upone this nuUitie, not inherent in the Patent. Neyther can it be thought to be 
 " includit under the Act of Parliament, not being new to the ressaver ; for be the Patent 
 " Alexander is acknowledged to be Erie, for Alexander might have the title during his lyfe- 
 " tyme " — But, my Lords, observe the ratio of the argument : Glencairn has sat as Earl 
 for 150 years; that must be referred to some title or other. There is no title shown 
 before 1488; and therefore it must be referred to that. And if the Act Rescissory is 
 pleaded, they say the Act Rescissory has been taken away by tacitus consensus, so far as 
 Glencairn is concerned; but so far as this only, that the Parliament and King had 
 allowed him to bruik this title peaceably ; and therefore then Lord Eglinton cannot 
 object to his precedency on the ground of the Act Rescissory of 1488. Then the argu- 
 ment proceeds upon that, and in the end "The Lordis" (on page 206) "repellis 
 " the Exceptioune and Duply in respect of the Ressoune and Reply, which they fand 
 " relevant and proven be the Writtis produced." So that they expressly sustain among 
 other reasons this, that the sitting of Lord Glencairn in Parliament was a tacit consent 
 by the King and Parliament that the effect of the Act Rescissory had been wiped away. 
 I do not discuss that question. There is a good deal to be said upon the question 
 undoubtedly. If it had been a question of right to lands, forty years had gone over 
 notwithstanding the Act of Parliament, there must have been a good deal to say that 
 prescription would wipe off the effect of a statute (sic). Lord Glencairn had a plausible 
 argument upon this ground, and being quite ignorant of the proceedings in 1503, the 
 Lords sustained it. The dispute goes on upon a variety of other matters, but that sub- 
 stantially is the ground and the ratio upon which the Court ultimately repel the 
 reasons, and they reduce and give the precedence to Lord Glencairn. But I would refer 
 your Lordships to the notice of the Duke of Montrose. Your Lordships will find in 
 page 196 this very same argument passing from his alleged revocation. On page 196 
 there is the ansAver of Stewart for Glencairn : — " He opponis this Patent, quhairto he 
 " ascryvis his possessioun in sitting at Parliament be the acknowledgment of King 
 " and Esteat, and ratificatioun thairof, as Erlis, quhilk most be be vertew of his prior 
 '' Patent, there being no other richt quhairby he can injoy the dignitie, the perseweris 
 " predecessoris being Erlis and sitting Erlis in Parliament when the defenderis 
 " predecessoris war onlie Lordis Montgomrie, and the perseweris predecessoris anno 
 " 1505 sitting in Parliament Erlis and acknowledgit be the King and Parliament, quhilk 
 " does imply ane direct passing fra any alledgit revocatioun in his first Parliament, this 
 " being done be his Majestie, quha maid any alledgit revocatioun." The argument 
 is, that the King and Parliament who made the revocation could also recall it by 
 implication. Then Stewart, who also argues for Glencairn on page 195, says this 
 exception is not competent in the mouth of Lord Eglinton : — It " is not competent to no 
 " subject, but onlie to the Kingis Majestie." Then he goes on to say, — "And in King 
 " James the 4th his second Parliament, quhair that Act of the first Parliament is ex- 
 " planit, thair is no mentioun of dignitie, but onlie donation of landis, with ane certi- 
 " ficatioun, quhilk posterior Act of explanatorie of the first most be ane passing from the 
 " first for quhat is not ratifeit in the second " — I do not think that that is a very loo'ical 
 conclusion; but they go on — "for it seames that cam after the Duik of Montrose his 
 
( 253 ) 
 
 " laying down his dignitie ; the prior Act was satisfeit and rehersit passed from, except 
 " donatioun of landis and offices." Again, at the bottom of that, Nicolsone says in 
 answer, " If this creatioun of Erie to the Hous of Kilmaweris be not new, nae mair can 
 " that of Duik [to the] Hous of Montrose, thair being many Duiks in this natioun befor 
 " his creatioun," — treating the Duke of Montrose's title as unquestionably laid down, and 
 the life-rent grant coming in the place of it. My Lords, I need not, I think, detain your 
 Lordships by going more fully through the whole of this argument. I have called your 
 Lordships' attention to various passages, and I take the result to be this -.—that [upon ?] the 
 whole [the?] Court did not hold the Rescissory Act of 1488 to be fatal to the Patent, and 
 did not find that the Patent was reduced. On the other hand, they did not find that the 
 Act of 1488 never had the (sic) effect, but in the mass sustained the grounds of reduction 
 to the effect of giving precedence to the Earl of Glencairn. But amongst those grounds 
 was not only the fact of the Ratification of 1637— the fact also of the sitting in Parlia- 
 ment by Lord Glencairn without any known title to ascribe it to— but also the fact that 
 the Earl of Eglinton had shown no prior right to an acknowledged sitting in Parliament 
 to the Earl of Glencairn ; and the result is this— not a declaration in support of the 
 Patent of 1488, but a simple ratification of the order of precedency. As I have already 
 told your Lordships, this was the fourth time the question had come into dispute, and 
 each time it was tried it was tried with a different result. It had gone for Eglinton in 
 1606, for Glencairn in 1610, for Eglinton in 1617, and for Glencairn in 1648 : — and, my 
 Lords, though I am free to admit that the names that appear in this argument are great 
 names in the law of Scotland, I am not so free to admit that the period was as good a 
 period as regards the Court of Session. At that time Lord Glencairn was the Lord 
 Justice General ; he had taken a very strong part indeed in favour of the King in 1648 ; 
 and accordingly it is not surprising if we find that there is on the part of the Court of 
 Session at that time a very considerable leaning. 
 
 Lord Brougham. — When did it come into the Duke of Argyle's family ? 
 
 Lord Advocate. — I find in Crawford's History that Glencairn was made Justice- 
 General in 1646, and was Justice-General in 1648. Your Lordships will find that in 
 page 217 of Crawford's book. He says, in the 'History of the Chancellors,' "Although 
 " the Earl after this, in the heat of the times, was driven into some unwarrantable 
 " actions, that he himself never pretended to justify, yet the King, who seldom suspected 
 " those whom he once trusted, did not depart presently from his confidence in the Earl, 
 " but cheerfully and heartily concurred in the Parliament's choice of naming him 
 " Justice -General when the place became void by the death of Sir Thomas Hope, of 
 " Carse, in the year 1646. In the Parliament, 1648, the Lord Justice-General heartily 
 *' espoused the King's interest, and with great zeal went into the design of engaging the 
 " nation to rescue the King from his imprisonment, and the Parliament of England from 
 " the force it was put under by the army." — Such was the decision on this the fourth con- 
 tention in this matter of precedence. But then it was appealed to Parliament, and 
 Parliament issued a Decree again for the fifth time, adjudicating upon the matter, and 
 rescinding, annulling, and reversing the judgment of the Court of Session, upon the ground 
 that the Act of 1488 was fatal to the Patent of that year. I shall speak immediately as 
 to the power of Parliament to do that, but meanwhile, supposing the case rested there 
 how can it by possibility apply to the present case ? Had the Duke of Montrose sat in 
 Parliament to the efffect of implying a tacit revocation of the Act Rescissory in his 
 favour — had the Duke of Montrose an Act of Ratification in 1637, or at any time, could 
 the argument that is maintained for the Earl of Glencairn in that case have been in one 
 respect used for the Duke of Montrose? The question is here -plesided as res judicata. 
 It is res inter alios, and, beyond question, to plead it as res judicata is altogether absurd 
 
 2 K 2 
 
( 254 ) 
 
 There is no such thing as res judicata in the matter of honour or brink (sic) at all. But if 
 it is to be pleaded as a precedent, you must have a similar case in which the circumstances 
 which clearly weighed with the Court were well understood. In the first place, [you have] 
 the fact of the Earldom of Glencairn being held by this party without any other title, only 
 the fact of ratification of 1637- There is neither the one nor the other in the present 
 case. On the contrary, the Duke of Montrose had not possession, there was no re- 
 cognition, no ratification, but, on the contrary, the whole position was quite the other 
 way. If the Earl of Glencairn in that process had been in the same position with the 
 Duke of Montrose in this, not being able to allege that he or his ancestors had ever sat 
 in Parliament at all, it is clear that the ratio of the judgment could not have applied to 
 him. But beyond that there is this : — the argument was, either the Patent of 1488 is 
 good, or the Earldom is bad. They were completely ignorant that in 1503 there had 
 been any proceeding at all. Now I think that your Lordships, giving whatever weight 
 you may to the account of the Somerset Herald, must be satisfied of this, that there was 
 in 1503 a most material, a most striking and unquestionable proceeding in regard to the 
 Earldom, and of that there was some intimation in the course of these proceedings, 
 because Lord Eglinton, at a venture, offered to prove that Lord Glencairn had a charter 
 in 1504. He did not succeed in that, because he had not the materials of proving it, 
 and the Court accordingly will not sustain it. But now we have the evidence of that 
 evidence (sic), not of a charter, but evidence that is conclusive, that Lord Glencairn was 
 Lord Kilmaurs down to 1503, and then he was belted Earl. Whether a charter was 
 granted or not at that time I do not know. Probably it was. It was the occasion of the 
 installation of his dignity ; and you have had that corroborated by unquestionable fact, 
 that, whereas he was Kilmaurs before, he was Glencairn ever afterwards. These were 
 matters not before the Court, but if they had been, they would have -cut up by the roots 
 the ratio of the judgment. It is quite clear. If it had been before the Court the 
 decision in all probability would have been very different. But, my Lords, it was 
 appealed to Parliament, and decided by Parliament, and reversed by Parliament. 
 
 I am not sure, my Lords, that it is necessary for me to go into the case of 
 disqualification — as to the power of Parliament to adjudge in matters of appeal, though 
 certainly that has been laid down by my learned friends on the other side with a degree 
 of boldness which astonished me, knowing how great and vexed a question that had been 
 in the Law of Scotland and in the Courts of Scotland, — and for them to say that beyond 
 all question and doubt the Court of Session was the only Court that could entertain such 
 an action, and that there never was a right of appeal at all to Parliament, astonished me not 
 a little. I have here the text writer of probably the greatest authority on this matter — 
 I mean Mr. Erskine— I say the greatest authority in this matter ; because, in regard to 
 the quarrel between the Court and the Advocates, Lord Stair was himself made a party 
 in the dispute — he was on the bench at the time — but I find that Mr. Erskine in 
 Book 1, Title 3, Sect. 2, lays it down—" It admits of no doubt that the Parliament of 
 " Scotland, as a Court of Appeal, was in use to determine all causes in the last resort, 
 " unless where the judgments of any Court were by special Statute declared final. 
 " But it may be doubted whether it had any original civil jurisdiction, for the decisions 
 " in Parliament, mentioned in Act 1537, cap. 39, are probably to be understood only of 
 " decisions upon appeal." My learned friend the Solicitor-General laid it down as un- 
 questionable, that it was never heard of in the law of Scotland that Parliament had a 
 right of appeal from a judgment of the Court of Session. Then, my Lords, in the same 
 Book, Section 20, in treating of the jurisdiction of the Court of Session, he says (Book 1, 
 Title 3, Section 207), " Their sentences are subject to the review of no Court but the 
 " House of Lords, that High Court of Appeal which is common to both parts of the 
 
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 United Kingdom. It was warmly disputed whether the decrees of the Session were, 
 " before the union of the two Kingdoms, subject to the review of the Parliament of 
 
 Scotland. On the one hand, instances occur in the Books of Sederunt, soon after the 
 
 institution of the College of Justice, of parties protesting for remedy of law, i. e. of 
 " their appealing from the sentences of the Session to the King and Parliament— January 
 " 29, 1555, and March 7, 1561-2. On the other, the Court of Session disallowed this 
 " right of appealing, because their sentences are declared to have the like force as those 
 " of the old Court of Session, 1537, cap. 39 ; and that old Court had a power of judging 
 " finally, without appeal to Parliament, 1457, cap. 62. When therefore an appeal was 
 " offered to Parliament in 1674 against a decree of the Session, the Judges ordained the 
 " appellant's counsel to confess or deny whether they had advised their client to that 
 " measure; and upon their declining to answer, the Court, after debarring those advo- 
 " cates from the exercise of their offices, applied to the Privy Council, who banished not 
 " them only, but all the other advocates who would not declare their abhorrence of such 
 " appeals, twelve miles from Edinburgh." 
 
 Lord Brougham.—" Debarring," I take it, there means suspending ? 
 Lord Advocate. — Yes, my Lord. "Under this sentence many of the most eminent 
 " lawyers continued for several months, till the Court at the King's desire restored them 
 " upon their disclaiming the right of parties to appeal. The Convention of Estates in 
 
 1689, c. 18, declared that the banishment of those advocates without a trial was a 
 " grievance; and by c. 13 they asserted it to be the right of every subject to appeal to 
 " Parliament against the decrees of the Session." Yet my learned friend's constitutional 
 lawyers maintain that such an appeal never was heard of in Scotland, when in truth it is 
 one of the fundamental articles in the settlement of the constitution at the Revolution. 
 And accordingly from that time, not upon a new enactment, but upon a declaration of 
 law by the Estates of Parliament, an appeal to your Lordships, in the first instance to the 
 Scotch Parliament, and as now to your Lordships, has been in constant use; and accordiugly. 
 If that were the only objection to the Decree of 1649, it would be conclusive upon this 
 matter ; but it is more a matter of curiosity than anything else, because undoubtedly the 
 proceedings of that Parliament were reversed by the Act of 1661. Therefore it is im- 
 possible to say that that judgment stands. But still your Lordships have, I think, 
 proceedings possibly since the res judicata even upon the grounds upon which that judg- 
 ment proceeded (sic). It was one one way, and two the other, and reversed by the 
 Parliament of 1649 ; you have their opinion upon the merits of the proceeding, though 
 that Parliament was swept away by the Rescissory Act of 1660 ; and I do not think that 
 there was much force or weight remaining with the judgment on the Glencairn prece- 
 dency Case in 1648. 
 
 But then comes the question in 1797, and if Lord Loughborough had not the 
 advantage which your Lordships have of seeing the proceedings at length in that case of 
 Glencairn in the pleadings that have been produced on the other side, he had the other 
 advantage which the Court at that time had not, of knowing that in 1503 Lord 
 Glencairn was belted Lord Glencairn on the occasion of the King's marriage, — and 
 though there may be exception taken to one or two of the statements in that judgment, 
 I think the judgment did not deserve the criticisms that have been made upon it. It 
 appears to me, that Lord Loughborough's ratio is good and sound, and one which, if the 
 question were again to arise, your Lordships would repeat. It is this : — that the Rescissory 
 Act did take effect upon Lord Glencairn, — that in consequence he continued to be Lord 
 Kilmaurs, and not Lord Glencairn, till 1503,' — that Lord Glencairn is unable and has 
 been always unable to produce his Charter of 1503, but you have contemporaneous 
 evidence of a new creation at the time, followed by possession, but no possession before, 
 
( 256 ) 
 
 and clear possession afterwards. And from that he drew the very natural, and legal, 
 and sound deduction that the Patent of 1488 had fallen under the Rescissory Act, and 
 was swept away by it. Instead of coming to the conclusion of the Court of Session, that 
 his sitting in Parliament after 1503 must be ascribed to the old Patent, he says it must 
 be ascribed to a new creation, of which we have undoubted evidence in a contempo- 
 raneous writing. My Lords, I think that that was a sound judgment, and I do not 
 think your Lordships would come to any other decision if Lord Glencairn was now a 
 claimant at your Lordships' Bar. I do not see how it would be possible to say that, in 
 regard both to the honours and the estates, which, by the way, were not mentioned in 
 the pleadings in the Court of Session, the same result had not happened to the Earldom 
 of Glencairn that happened to the Dukedom of Montrose. The Patent was annulled 
 by the Act of 1488, the title and honours perished, and the estates reverted to the 
 Crown. 
 
 I have now submitted to your Lordships all that I think it necessary to urge 
 against this claim. I should have been glad if the case had not been so strong as I feel 
 it to be :— but, my Lords, it humbly appears to me that there is no ground on which the 
 claim can be made. 
 
 Mr. -So??;.— Having heard the arguments just addressed to your Lordships, I beg 
 to say that my learned friends and I think that we exercise a sound discretion in not 
 asking your Lordships on this occasion to be heard. There may be some matters which 
 have been opened, not directly made points in the case, that are met in the printed papers ; 
 but if there should be any other questions which your Lordships may think have not 
 been fully opened, Ave shall be anxious to argue any point which your Lordships may 
 think necessary. 
 
 Sir FitzRoy Kelly. — My Lords, I rejoice that the time has at length arrived 
 when it becomes — 
 
 Loi-d Advocate. ^^Oyl the part of the Crown I do not think it necessary to do more 
 than protest that there is no right to reply. 
 
 Chairman {to Sir FitzRoy Kelly'). — Will you go on? 
 
 Sir FitzRoy Kelly. — My Lords, I was about to express my great satisfaction that 
 the time had arrived when you were about to be relieved from at least a material portion 
 of the argument in this great and important case. All I need observe upon the inter- 
 jectional observations of my learned friend the Lord Advocate and my learned friend 
 Mr. Rolt is, first, that what has fallen from the Lord Advocate, if not entirely ground- 
 less, is at least premature, while that which has been stated by my learned friend Mr. 
 Rolt clearly rests upon no foundation at all. My Lords, eminent persons, and none 
 more eminent than himself, standing in the situation of my learned friend the Lord 
 Advocate, have thought it necessary from time to time to insist by way of protestation 
 on the right, on the part of the Crown, to reply in the case of a dignity ; but, my Lords, 
 this is the very first time I ever heard, even incidentally, a doubt suggested whether 
 the Counsel for the Claimant had not a clear right to observe upon any evidence which 
 may have been adduced on the part of the Crown. 
 
 Lord Brougham. — I assure you that that protest is made very generally on the 
 
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 part of the Crown, even where there is no offering of evidence on the part of the 
 Crown. 
 
 Sir FitzRoy Kelly. — It is an odious privilege, my Lord, and one which has never 
 been successfully insisted upon, which in this case, and I believe in many others not 
 cases of dignities, has been rejected; but on the part of my learned friend Mr. Rolt, if 
 ever there was a case in which counsel at the bar, appearing as my learned friend has, 
 had little reason to complain, I think it is this case which is now before your Lordships. 
 For, my Lords, much as I feel indebted to my learned friends the Attorney-General and 
 the Lord Advocate, for the way in which they have succeeded in narrowing and 
 reducing the points to be ultimately submitted to your Lordships for your judgment, I 
 cannot compliment them upon the insinuations {sic) with which they have admitted, and 
 indeed expressly stated, that they should meet this claim with the most strenuous 
 opposition. I do not complain of the course that they have taken, but I must observe 
 that it was in vain for your Lordships to have rejected the application of the Noble 
 Duke, who seems to think he has an interest in opposing this claim, to appear here 
 in opposition to it by his own counsel, when that case has been taken up at least as 
 warmly and as strenuously as any case could be taken up between the most hostile 
 parties in any ordinary civil proceedings in a court of justice. I again say I am far 
 from complaining of that course, on the contrary I rejoice at it, because the Noble 
 Claimant, for whom I appear, not only would be ready to permit, but he desires that 
 the case should be submitted to the most searching investigation ; and if it be found 
 incapable of standing upon its own merits against the most strenuous and hostile opposi- 
 tion, he is content that your Lordships' Report should be against him. I, on his behalf, 
 now when the conclusion of the case, I rejoice to say, rapidly approaches, only ask 
 at your Lordships' hands that this Act of Parliament, as it is called (and I am content, 
 for the purpose of my reply, to treat it as an Act of Parliament), should be fairly and 
 reasonably and legally construed, upon those rules and principles of interpretation applied 
 alike by the law of England and the law of Scotland to Acts of Parliament of such a 
 nature and such a character. And by your Lordships' decision upon that point, which 
 must be one way or the other decisive of this part of the case, the Noble Claimant is 
 content to stand, and to rest his case entirely upon that issue. 
 
 My Lords, in pursuance of the course pointed out to himself, and admitted by 
 himself to be followed, my learned friend the Attorney-General, to the surprise of those 
 who are opposed to him in this case, began by raising a question as to the sufficiency of 
 the evidence of the Patent of 1488. My learned friend the Lord Advocate — and I am 
 sure my learned friend the Attorney-General will not suppose that I speak in any terms 
 of disparagement of his great and extensive knowledge — but the Lord Advocate, more 
 familiar at least with those questions as they affect, not so much the law, but the principle 
 of evidence in relation to documentary questions in Scotland, has wisely perhaps abstained 
 from insisting upon that objection. My Lords, surely I ought not to be driven at this 
 part of the argument to occupy (I might say to waste) a moment of your Lordships' time 
 upon that point. Why, in the first place, in no less than four or five cases which must 
 be familiar to all your Lordships, this very evidence— evidence of the registration of a 
 Patent supposed to have passed under the Great Seal of Scotland— has been received in 
 lieu of that Patent upon a claim of Dignities. I allude to the Barony of Colville in 1723. 
 Kirkcudbright in 1773, Kellie in 1835, and I think the Barony of Polwarth so late as the 
 same year 1 835. The same description of evidence has been resorted to, without objection 
 and without comment, in the case of this second Patent termed the regrant of the Dukedom 
 of Montrose. And in England also, in the well-known and important case of the Earldom 
 of Devon, the same species of evidence was resorted to, and was admitted without. 
 
( 258 ) 
 
 objection and without comment. My Lords, I cannot but observe that my learned friend 
 the Attorney-General, perhaps scarcely remembering the objection which he had begun 
 by offering himself, anticipated that objection ; for when he came to comment upon the 
 Act Rescissory, and when he was contending that it must have been well known to those 
 who framed and passed that Act, that only those two Dignities, as he was pleased to 
 allege, had been created within the period in question by King James III., he observed 
 that that Parliament must have intended to have struck at this very Dignity of the 
 Dukedom of Montrose, because they were in possession of the Patent Rolls and the 
 public documents which would show what Patents had been granted, and they must 
 have seen that this Patent had been granted by James III. in 1488. 
 
 I will not trouble your Lordships by further dwelling upon that point. I will 
 assume that that which was held in the four cases of Scottish Dignities to which I have 
 adverted, and in the case of the Earldom of Devon — and I might show a variety of other 
 cases with regard to English Peerages — will be of course adopted by your Lordships upon 
 this occasion, and that it will be deemed, as indeed no one can reasonably doubt, that this 
 Patent received all the formalities, and was granted with all the powers necessary to give 
 full effect to it, by King James III. in May 1488. 
 
 My Lords, we come then to the case, and here I have to adopt a different tone 
 towards my learned friends, and to thank them for the straight-forward and candid way 
 in which they have admitted the proposition which I ventured at a very early period to 
 submit to your Lordships, namely, that if this Dignity, which was undoubtedly granted 
 in May 1488 by James III. to the then Earl of Crawford, and his heirs, was not ex- 
 tinguished and destroyed by the Act Rescissory, it remains in force, and in valid and full 
 legal effect to this time. And, my Lords, it is satisfactory to feel (although still it may 
 be necessary to advert briefly to some other minor and incidental points which have been 
 raised in this case), that the great and the single question upon which your Lordships will 
 ultimately have to determine is, whether, in applying the well-known and recognized prin- 
 ciples of construction and rules of interpretation to this Act of Parliament (assuming always 
 that in your Lordships' judgment it has the effect and force of an Act of Parliament), it 
 has this legal effect, and it has these legal consequences, at once, by force of its terms and 
 by force of its passing into a law, to defeat and destroy this Dignity. It is therefore, my 
 Lords, to this, the first and great question — treating it independently altogether of the 
 evidence which has been submitted to your Lordships on the one side and on the other 
 as to contemporaneous usage, or contemporaneous construction — looking at the terms of 
 the Act itself only — it is upon this point that I proceed in the first place to advert to the 
 argument, and to endeavour to reply to the argument of my learned friends. 
 
 Now, my Lords, here, as upon some other points, there arises a notable difference 
 between the Attorney-General and the Lord Advocate. I have most carefully considered 
 the arguments of my learned friend the Attorney-General, and, my Lords, where the 
 whole case depends (and a most important question it is) upon the interpretation to be 
 put by your Lordships judicially upon the language of this Act of Parliament, I do not 
 find throughout the address of my learned Iriend the Attorney-General anything more 
 upon that point than an assumption — an assumption throughout his whole argument of 
 the very question at issue, namely, the meaning of the Act of Parliament. My learned friend 
 has insisted, or rather he has taken for granted— he has not argued at all upon the terms of 
 the Act of Parliament, but taken it for granted — that this Act at once annulled all the grants 
 and all the dignities made or created by James III. within the period in question — and 
 upon that assumption, without any argument to prove that it is well founded, he has pro- 
 ceeded to deal with the case. My Lords, I cannot help asking, when I see the mode in 
 which my learned friend the Attorney-General has thus assumed the whole question at 
 
( 259 ) 
 
 issue, I cannot, I say, help asking, when drawing your Lordships' attention to this Act of 
 Parliament, why, if that had been the intention of the Legislature of that day, or, if it 
 can now be pretended that such was the effect of the Act that they passed, why were any 
 other words introduced than merely these :— ' that all alienations of lands, hereditaments, 
 and so forth, and creations of new dignities, granted or given within the period in ques- 
 ' tion, be, and are hereby quashed and annulled ?' Why should the Act go further ? 
 Why, ii' that was the intention, if that was meant to be the effect of the Act— not that grants 
 which "might" fall within a certain description, grants which "might" be made under 
 certain circumstances, but that all grants, whether of lands and offices or of dignities, made 
 within the period in question — that all such should at once be declared and deemed void — 
 why was not that the language of the Act of Parliament ? And surely one may ask, 
 upon a question — not of the ordinary construction of an ordinary Act of Parliament, where 
 there is no reason for any leaning to the one side or the other, to one construction con- 
 tended for more than another — why, in an Act of Parliament of this highly penal 
 character — which must, as I shall shortly proceed to satisfy your Lordships, be strictly 
 and severely construed — why are your Lordships to introduce (sic) a qualification into 
 the Act ? Why are your Lordships to suppose — that which could have been so easily done, 
 that which we find even the Scotch Parliament of this time not doing — that such was 
 their intention — that is, in complete and clear terms, without qualification, without dis- 
 tinction, without descriptions of particular classes of cases, but absolutely and at once to 
 annul all grants of the character mentioned within a certain specified time ? Why, if the 
 same was their intention here, should they not have done so ? Your Lordships find in a 
 later Act of Parliament, which is printed in the same additional paper — what we call Paper 
 A, at page 4— an Act of the 26th of June 1493, which does, of its own force and effect, at 
 once annul, or purports to annul, all grants made within a certain period. We find that 
 there, where the Legislature intended to annul all grants within that time, they have so 
 expressed themselves, and they have not said 'all grants prejudicial to the King,' and 'all 
 ' grants against the common good of the realm,' or ' all grants that may have led to the late 
 ' rebellion or the murder of the King.' They use no such qualifying language ; but there, 
 in clear and express terms, after a certain recital, they enact that " all the said donations 
 " and infeftments made and given," from the date which appears to the day of his death, 
 " shall be of none avail, force, nor effect in time to come ; but that our Sovereign Lord's 
 " Highness that now is shall be restored and reintegrated to all lands, rents, and posses- 
 " sions," the subject of these grants. So that we find, that when this very Parliament, or 
 the Parliaments of those days, intended, not to strike at a given description of honours 
 and a given description of grants, but to strike at and to annul all grants within the time 
 in question, they have used fit and apt language for that purpose, and the annulment 
 took place by force of the exact words of the Act of Parliament, so as to admit of no 
 misconstruction. And your Lordships are here asked, as to that highly penal Act of 
 Parliament, to put the same construction on this Act of Parliament, where the same 
 language which might have been used is not used, but where the language is accompanied 
 by a very distinct and intelligible qualification — which the Counsel for the Crown ask 
 you entirely to strike out. In the Act of 1493 the Parliament say, " all grants of lands"- — 
 there they do not include dignities, or else there would here have been no question — but 
 " all grants of lands," and something else mentioned, made within a certain period, " shall 
 " be annulled and declared void." In the other it is this — not 'all grants of lands and all 
 ' grants of dignities within the period in question shall be annulled,' but that ' all grants of 
 ' lands and all creations of dignities " which might be prejudicial to our Sovereign Lord and 
 ' " to the Grown that now is be quashed and annulled." ' Surely my learned friend the 
 Attorney-General has no right in this case — where he is seeking to enforce a penalty, and 
 
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( 260 ) 
 
 to inflict a forfeiture, and without an offence committed or charged— he has no right to 
 call upon us to discard from this Act of Parliament those qualifying words, while we find, in 
 juxta-position, another enactment of the then Parliament of Scotland, the one saying that 
 ' all grants made within a given period shall be annulled,' and the other saying that 
 ' all grants " which might be prejudicial to our Sovereign Lord and to the Crown that 
 ' "now is " shall be annulled.' Has my learned friend the Attorney-General a right to ask 
 your Lordships to determine that both of these expressions mean the same thing ? Yet 
 that is what he has, I will not say argued, but assumed throughout the whole of this 
 case. 
 
 Lord St. Leonards. — Are you referring to the Act of the 26th of June, 1493 ? 
 
 Sir FitzRoy Kelly. — Yes, my Lord, the one I have referred to is 1493. 
 
 Lord St. Leonards. — You are comparing that with the former Act? 
 
 Sir FitzRoy Kelly. — Yes, my Lord, with the Act Rescissory. 
 
 Lord St. Leonards. — It is quite as you have put it ? 
 
 Sir FitzRoy Kelly. — I think so, my Lord — all that appears by way of recital. I am 
 not at all upon the question, whether the recital may not, by itself, qualify the enactment 
 which follows. It may or may not, — perhaps it does. In fact, considering that this is also a 
 penal Act, I should be very much inclined to hold that it does qualify what follows. But 
 what I contend for is this, that when we come to the enacting part, be it qualified by the 
 recital or not, the language is clear and unqualified, that is, "that all the said donations and 
 " infeftments," within the 2nd of September and the day of his death, " shall be of none 
 " avail, force, or elFect in time to come," — not " all alienations of lands," &c., " which might 
 " be prejudicial to our Sovereign Lord and to the Crown." There are no such qualifying 
 words there introduced, but the clause is absolute ; the enactment is without qualifica- 
 tion, that all grants within these dates shall be void and of no effect. Whereas, when we 
 come to this, we find that it is — "all alienations of lands, heritage, long leases, feu firms, 
 " offices, tailzies, blench-firms, creation of new dignities, granted or given . . since the 
 " se condday of February " — not ' shall be void,' which is the case with the other Act ; but 
 here are the words — " which might be prejudicial to our Sovereign Lord and the Crown." 
 What I say is this, that it is as unheard of as it is unprecedented that, in construing a 
 penal Act of Parliament, your Lordships should be called upon to reject these words, 
 and to hold that this highly penal Act of Parliament is to be construed as if the Parlia- 
 ment had said— not " all Acts done within a certain time, which shall hurt the King or 
 ' be prej udicial to the Crown, shall be void ' — but that ' all Acts whatever, done 
 ' within that time, shall be void.' That is the construction assumed by my learned friend 
 the Attorney-General — not contended for : — he has offered no reason why it should be so 
 suggested, he has given no authority or any principle to be found in the text-writers, that, 
 where there is this obvious distinction between the framing of one Act and another, or 
 even if there were no distinction at all — if this Act stood alone — where the Legislature 
 has declared that all grants made by the King upon the throne within a certain period 
 shall be annulled and quashed; and where Parliament has qualified that penal pro- 
 vision by abstaining from the enactment that ' all grants ' shall be void, but enacting only, 
 and that in clear, and that in express terms, that ' all grants prejudicial to the King ' 
 shall be void ; your Lordships are to be asked to determine, by my learned friend the 
 Attorney-General, to reject these words, and read it as if it were that 'all grants and all 
 ' creations of new dignities between the one period and the other ' shall be declared void. 
 I venture to say that such a construction of any Act of Parliament, and above all a 
 highly penal one, is absolutely without authority or precedent. 
 
 My learned friend was driven to that argument ; and why ? Because and here 
 
 I may include the Lord Advocate — both my learned friends have felt themselves 
 
( 261 ) 
 
 incapable,of maintaining, as a proposition of law before your Lordships, that you, sitting 
 here as a Court of Law, are to hold that this particular grant of the Dukedom of Mon- 
 trose was within the jneaning of this Act, upon any legal interpretation of it, as prejudicial 
 to King James IV. They felt the difficulty of supporting that proposition, and the 
 difficulty, if not the impossibility, of maintaining that an Act done by the King upon 
 the throne in the exercise of his prerogative, to reward a loyal subject for lawful 
 services performed at the peril of his fortune and his life, is to be deemed to be held 
 judicially, by a Court of Law in this kingdom^ prejudicial to the son and successor of 
 that King, who had himself attained to the throne. And, therefore, the course taken 
 by my learned friend the Attorney-General is to avoid all argument upon the subject, 
 and to refer in no wise to the language of the Act of Parliament ; but to assume that its 
 effect is to annul all grants made by the King within the period in question, and, upon 
 that assumption, to deal with the other points of the case. 
 
 On the other hand, my learned friend the Lord Advocate has taken a diflFerent 
 course. I cannot accuse him of having assumed, as my learned friend the Attorney- 
 General did, that the Act contained something which it is found not to contain ; but 
 my learned friend, with more experienced eyes as regards Scotch Acts of Parliament, 
 lighting upon this Act, found the words " which might be prejudicial to our Sovereign 
 " Lord and to the Crown that now is;" and feeling himself called upon and bound to 
 deal with these words, and to point out to your Lordships what is the effect which 
 they are to have, and what construction he will ask you to put upon them, he does this. 
 Feeling that to read this Act according to its natural, fair, and ordinary interpretation, to 
 give a simple and plain eflFect to the words used, which they would bear in an ordinary 
 instrument, or even in ordinary conversation, would be fatal to his entire case, and 
 that he could not maintain the proposition that this grant was or could be prejudicial to 
 the King, he resorts to this strange kind of argument upon such an Act of Parliament. 
 He says, true it may be that Parliament has said that it is not ' all alienations of lands, 
 ' and all creations of new dignities,' that shall be void ; they have only said " all aliena- 
 " tions of lands, heritages," and so on, "creations of new dignities, which might be 
 " prejudicial to our Sovereign Lord and to the Crown that now is, shall be quashed 
 " and annulled." My Lords, I think that my learned friend must admit that he must 
 deal with these words according to their ordinary and natural meaning ; and I submit 
 that your Lordships must read these words, "which might be prejudicial to our 
 " Sovereign Lord and to the Crown that now is," as if they were "being prejudicial," or 
 " because they are prejudicial," in order to arrive at the conclusion that they are preju- 
 dicial, and therefore this grant is to be held null and void. 
 
 My Lords, it is here again I venture to ask your Lordships, where does my 
 learned friend find the semblance of an authority for thus dealing with a highly penal 
 Act of Parliament ? I have called your Lordships' attention to the principles of the 
 law of England upon this point. I thought, and but for the argument of my learned 
 friend the Lord Advocate, I should have thought it needed no authority to show that 
 the law of Scotland was the same — that the law in Scotland, as that of England, leans 
 against penalties and forfeitures ; and that if it were possible, without dohig violence to 
 the Act of Parliament, to read it so as to do justice, and not injustice, to avoid the 
 penalties and forfeitures where no oifence has been committed, rather than read it as 
 inflicting those penalties and forfeitures, such would be the course adopted. My 
 learned friend has very truly referred to Erskine as a high authority upon this point, 
 and let me call your Lordships' attention to what he says upon this very question of 
 construction. In the 1st Book, Title 1, Section 61, we find that Erskine thus lays down 
 the law : — " The interpretation of laws ought not to depend on critical learning, or the 
 
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( 262 ) 
 
 " subtle distinctions of schoolmen, for they are directed to the whole body of the people, 
 " and therefore ought to be construed in that sense which the words most obviously 
 " suggest to the understanding (L. 67, De Reg. Jur.), otherwise the lower part of mankind 
 " would be obliged by laws, which, for want of acquired parts, they are not able to 
 " comprehend. As a consequence of this, no statute ought to be explained figuratively 
 " where the proper meaning of the words is as commodious, and equally suited to its 
 " subject. This rule holds more especially where the statute treats of matters concerning 
 " which persons do not usually advise with lawyers, but trust to their own judgment, 
 " for there the law given is presumed to speak ad captum vulgi, in a popular style." 
 Now, my Lords, surely then I may ask here — Are your Lordships to deal with this Act 
 of Parliament according to the natural meaning of the words? Or are you to obliterate 
 the words which the Parliament have used, and to introduce other words — because 
 the words obliterated would limit the infliction of the penalties and forfeitures, and the 
 words introduced would make that infliction general throughout the whole period that 
 may be in question ?— Surely the people of Scotiand of that day would then have had a 
 right to say : ' If you mean to tell us that " all grants " made by the King after the 2nd of 
 ' February are void, tell us so. But if you mean to say only " all grants made after that 
 ' "time by the King, which are prejudicial to the present King," are void, then you raise a 
 ' question which we are prepared to meet — " Is the grant now under consideration prejudi- 
 ' " cial to the present King ?" '—Surely they have a right to ask that question when the Act 
 is about to be interpreted. If they do so, then, according to the Lord Advocate — and it is 
 the only argument he has used — I am in your Lordships' recollection, and I would fain do 
 justice to it — the only argument he has urged upon the construction of this statute, irrespec- 
 tive of the evidence of contemporaneous Acts upon the meaning of the words themselves, 
 and the construction to be put upon this statute — then^ supposing the question had arisen in 
 a court of law the very day after the statute was passed, you must read those words 
 " which might be prejudicial to the King," as if they were " being," or " because they are 
 " prejudicial to the King " — you then strike at this dignity — you avoid the King's 
 grants — you then declare and enact a forfeiture of all that the King may have passed 
 away to any of his subjects within the period in question. My Lords, I submit that my 
 learned friend has no right to call upon your Lordships to come to that conclusion, and 
 I must rather, if necessary, which it is not, call upon your Lordships to read this Act 
 so as to do justice — if it be capable of being so read, so to read the Act as to avoid any 
 unjust forfeitures being imposed upon an innocent man. I must call upon your Lord- 
 ships to read this Act so. And surely my learned friend the Lord Advocate has no 
 right, and he can have no right, to read the Act otherwise than as he finds it, or to call 
 upon your Lordships to substitute one set of words for another, where those that are 
 found to be in the Act would not effect the penalties or forfeitures in question, but the 
 words which he seeks to introduce would have that eflTect upon the case before your 
 Lordships. 
 
 But, my Lords, the next quotation from Erskine is still more pertinent to this 
 effect. In the same Book and Title, Section 55, he says, " Laws which carry a dispensa- 
 " tion or privilege to particular persons or societies receive a strict interpretation," and so 
 forth. " But privileges which draw no consequential prejudice after them to others, 
 " must be largely interpreted for the grantees, agreeably to that munificence which is 
 " natural to the supreme power." Here is an authority, therefore, for putting a laroe 
 and liberal interpretation upon the King's grants, and for giving effect to the King's 
 grants, if by law effect may or can be given to them. — Then the learned author pro- 
 ceeds — and I entreat your Lordships' attention to these words : — " At no rate can a 
 " privilege be wrested to the hurt of those in whose behalf it is granted. Strict inter- 
 
( 263 ) 
 
 " pretation is also to be applied to laws which enact heavy penalties, for it is inhuman 
 " to wrest or torture laws for the distressing of society ; and to those which restrain 
 " the natural liberty of mankind, for every restraint implies a burden, and that is 
 " unfavourable." Here we have what I have already reminded your Lordships is a 
 paramount principle in the law of England. We have the same principle contended 
 for, that a strict interpretation is also to be applied to the laws which enact heavy 
 penalties. " It is inhuman to wrest or torture laws to the distressing of society." 
 
 Here is a case in which a grant has been made by the King in the exercise of his 
 prerogative to an attached, a .loyal, and meritorious subject, and for good services per- 
 formed to the King and to the kingdom. And it is thought by this Act to avoid that 
 grant, and take away from that subject the reward which had been conferred upon him. 
 And the effect contended for of the Act is the infliction of a heavy penalty, and the 
 making of a heavy forfeiture. Now, my Lords, the question is, whether that is to be 
 done. I agree, and I never was disposed in this case to deny, that if the supreme power 
 in any kingdom exercises the means at its command against justice, and even against 
 worth, and if the Parliament were to enact unjust laws, the subject must submit. It is 
 not in a Court of Law that redress can be obtained. I quite agree, therefore, supposing 
 this statute — this ordinance — to have the full force of an Act of Parliament, that, 
 however unjust it might have been, if it had directly, and in terms not to be misunder- 
 stood, struck at the dignity in question, it became the subjects of that kingdom to submit 
 to the law. And your Lordships would have to conform to the law, and have no choice 
 but to read and give effect to the Act of Parliament. But surely, my Lords, when this 
 paramount principle of interpretation is sanctioned as well by the law of Scotland as by 
 that of England, and when your Lordships find, applying that principle of interpretation 
 to the Act in question, that you can piit a construction upon it perfectly consistent with 
 justice, whereas, by wresting the words, by doing that for which my learned friend the 
 Lord Advocate contends, striking out words which the Parliament has used, and inserting 
 others which it has not used, you may indeed then, but then only, give an effect to this 
 Act of Parliament against justice, and against humanity — making it a direct encouragement 
 to the disloyal to rebel, and a discouragement of all that becomes a good and loyal subject 
 to his King — surely, my Lords, that is not the course which your Lordships will take; 
 but you will look at the plain words of the Act, as they are used, and read them, if you 
 can, without absurdity and injustice, according to their plain, ordinary, and natural 
 meaning, and give effect to them according to that law of interpretation to which I have 
 referred. And doing that, the only question for your Lordships to consider upon this 
 Act is — not whether the grant in question was made by the King, and made within the 
 time in question — but whether that grant is, without proof or further inquiry, without 
 either a process of reduction or any decision in a Court of Law — whether, I say, that 
 grant is, upon the face of it, of itself, to be judicially held by your Lordships to have been 
 prejudicial, or that it might be prejudicial, to King James IV. ? In illustration of that 
 question now I shall detain your Lordships but very shortly. I must protest against the 
 course adopted by both my learned friends ; adopted, again I must say, not so much by 
 way of argument as by way of assumption. And, whatever they may believe, upon a 
 reference to history, to have been the real intention or wish in the minds of those who 
 then constituted the Parliament of Scotland — with regard to the effect to be given by 
 your Lordships here in the interpretation of the Act in question, I say that if you could 
 call from the dead every man who sat in that Parliament, and he were to swear to your 
 Lordships, and you believed him, that he intended directly to strike at this dignity, that 
 would not be evidence that your Lordships could hear. That would ngt be an inquiry 
 into which you could enter. It would not be what you believed to be the intention in 
 
(■'264 ) 
 
 their minds, but you must look at the words of the Act, to see whether those words are 
 such as, interpreted according to the legal principles of construction, would give effect to 
 that intention supposing it to have existed. It is quite true that the inquiry into the real 
 intention of the Legislature is not to be altogether disregarded, because, in a penal Act of 
 Parliament, both requisites must be .included. You must be satisfied that the Legislature 
 did intend to work a forfeiture, and you must be satisfied that the Legislature has used apt 
 and specific words for that purpose. I might call upon your Lordships — if the words were 
 clear and plain, if they were " all grants made whatsoever within the time in question " 
 shall be held null and void — as interpreting the Act against penalties and forfeitures, to 
 consider the question whether such was really the intention of the Legislature, looking at 
 the historical circumstances of the times ; but I protest against such an inquiry where 
 the words are not themselves sufficient to lead to, or would have such a construction. If 
 your Lordships find that the words themselves, when fairly and ordinarily interpreted, 
 are not for the avoidance of all grants made by the King within the time in question, 
 but for the avoidance only of such grants " as might be prejudicial " to King James IV., 
 I submit that the only question remaining is, whether this grant is now to be deemed 
 prejudicial to King James IV. Your Lordships cannot, by a forced construction, striking 
 out words and putting in others, make a highly penal statute that which it is not, in 
 order to give such an effect to it as will work the penalties and forfeitures in question. 
 
 My Lords, upon the question itself I come back to the words of the Act of Parlia- 
 ment, and I just ask your Lordships to construe this, as if in peaceful and untroubled times 
 the question had arisen, and had been temperately and calmly argued, as questions are 
 now argued before Courts of Law in this kingdom, within, say a year, or a few years of 
 the succession of James IV. to the throne. Suppose your Lordships, sitting as a Court 
 of Law in Scotland, were called upon to interpret this Act of Parliament, you would 
 find that here was an Act passed which provided that all the grants, made by the late 
 King within a certain time, " which might be prejudicial " to that King's successor, might 
 be declared void and annulled. The question is, whether this grant comes within such 
 a provision, and therefore, whether your Lordships, sitting in a Court of Law, are to 
 hold that this grant, made by King James III. to the then Earl of Crawford, can 
 judicially be determined to be prejudicial to King James IV- And here, my Lords, I 
 have to complain of the silence of my learned friends, who had to make out the proposi- 
 tion that this grant was, or might be, or ought to be, deemed prejudicial to King 
 James IV. They have failed to urge a single argument upon the subject, and they have 
 given to me therefore nothing to answer. But, looking at the words themselves, I 
 venture to ask. What is it that, in judicial construction, can be held to be prejudicial to the 
 King ? I could easily understand that grants might have been made by James III., at that 
 period of his reign, which might fairly and justly be held by a Court of Law to have 
 been prejudicial to his successor ; he might, in the distress to which he was reduced for 
 men and for money, have given away and have aliened, or purported to have aliened, any 
 of the Jura Regalia, or the Royal property which he held not in his own right, but Jure 
 Corone, and which, therefore, he was bound to transmit unimpaired to his successor ; and 
 for aught we know, grants were made by James III., which, in every sense of the word, 
 might be deemed prejudicial to his successor, — namely, grants of property which no 
 King ought to alienate so as to deprive his successor. But, upon what ground can the 
 same rule be applied to a grant of this nature of a Dignity, which could not prejudice 
 the King? It is impossible to look at this question and consider whether it was 
 " prejudicial " to the King that the Earl of Crawford should be created Duke of Montrose 
 without, at the same time, feeling that the second grant, to which I have yet to allude 
 IS conclusive upon that entire question. But, independently of that second grant, let us 
 
( 265.) 
 
 look to the question itself. The question which your Lordships have now to determine 
 is this — Is the grant by King James III. of a Dukedom to an Earl who had performed 
 great services to the Crown and to the country — is that a grant which judicially is to be 
 held prejudicial to that King's successor ? I admit that it might be so — not necessarily, 
 but it might be so if it went to alien Crown lands which ought to be transmitted to his 
 successor — 
 
 Lord Brougham. — Was not there once an argument held at some former period 
 of our history to show that the Crown was, to a certain degree, injured by any grant of 
 a peerage ? 
 
 Sir FitzRoy Kelly. — Yes, my Lord, 
 
 \_Adjourned.'\ 
 
( 267 ) 
 
 TUESDAY, 2nd AUGUST, 1853. 
 
 The Lord Redesdalb in the Chair. 
 
 Sir FitzRoy Kelly. — My Lords, I most heartily congratulate your Lordships, and 
 I presume to add, myself, upon the now rapidly approaching termination of at least this 
 branch of the argument. My Lords, I shall offer no apology for having detained your 
 Lordships for some time yesterday upon the question of construction of what I will still 
 continue to call the Rescissory Act of Parliament. My Lords, now that the whole case 
 has been so fully brought under your Lordships' attention, I really do conceive that, with 
 the exception of perhaps the Glencairn Case and its bearing upon the case now before 
 your Lordships, the question of construction is the great and all-important question, and 
 substantially the only question, left for your Lordships to determine ; and therefore, if I 
 should yet for a little time (and it shall be for a little time) detain your Lordships upon 
 that point, you may feel satisfied that I will be shorter upon every other point to which 
 T have yet to advert. 
 
 I was observing when the House adjourned yesterday, that, after all, when we 
 look at the whole of this case, and notwithstanding the vast variety of documents which 
 have been adduced in evidence, and the intricate and complicated questions and consi- 
 derations that have arisen, it really does appear to me, supposing your Lordships to hold 
 that this proceeding which has been called the Act Rescissory has the force of an Act of 
 Parliament at all, that the whole of this branch of the case turns entirely upon the 
 judicial construction which your Lordships shall put upon the Avords of that Act. I 
 say, if your Lordships shall hold that it has the force of an Act of Parliament at all ; 
 the Committee need not be apprehensive that I am going to enter further into that 
 question. Very strong, and I hope your Lordships will deem convincing, if not con- 
 clusive, reasons have been urged by my learned friend the Solicitor-General why at 
 least your Lordships should pause before you hold that it had the force and effect of an 
 Act of the Scottish Parliament. Having considered maturely all that fell from the learned 
 Solicitor-General upon the subject, and feeling that I can add nothing to the very able 
 arguments which upon that particular point he has urged, I shall best discharge my 
 duty by praying your Lordships to suppose that I have reiterated all that fell from him 
 upon that point ; and I proceed to what at all events will be the question upon which I 
 am content that this claim should stand or fall, namely, what is the construction 
 which your Lordships, sitting as a court of law, and applying the ordinary and well 
 established rules of interpretation to the language of this Act of Parliament, shall put 
 upon it, and what is the effect of the construction which you shall put upon this pro- 
 vision? Now, I urged yesterday, and will not repeat to-day, that your Lordships 
 have forced upon you the question by the very terms of this Act, from which there is 
 no escaping — and which my learned friend the Lord Advocate in favour of penalties and 
 forfeiture cannot be permitted to alter, substituting one phrase or set of phrases for 
 
 2M 
 
( 268 ) 
 
 another— your Lordships find the question forced upon you, whether the grant of this 
 dignity by James III. to the fifth Earl of Crawford was a grant which, sitting here 
 judicially, you can hold "might be prejudicial" or was prejudicial to King James IV.? 
 I take my stand upon those words, and with all humility and submission I rest the case 
 upon that question. It is a ground from which the case cannot be removed. It is a 
 point which your Lordships must determine, and I venture to add that your Lordships 
 must determine judicially, with or without the aid of extrinsic circumstances and considera- 
 tions. Your Lordships, before you can defeat this claim upon this Act of Parliament — 
 and it can be defeated, at least in this branch of this case, in no other way and upon no 
 other ground — must take upon yourselves to determine here that the grant of this dignity 
 at the time and under the circumstances in which it was granted by James III. to the 
 fifth Earl of Crawford was a grant prejudicial, or which might, judicially speaking, be 
 prejudicial, to his successor King James IV. Now, my Lords, I have already urged 
 that this Act of Parliament must be construed most strictly ; that it must be construed in 
 favour of justice and not of injustice ; to encourage loyalty, and not treason and rebellion ; 
 and that it must be construed, if it may be or can be so construed, against penalties and 
 against forfeitures, and not in favour of the infliction of penalties and forfeitures upon an 
 innocent and untried man. If that be so, and if that by the law of Scotland and 
 England is the rule of construction to be applied to all penal Acts of Parliament, your 
 Lordships cannot assume, as was assumed by my learned friend the Attorney-General, 
 that, although this applies in terms to a particular description of grants only, it must be 
 held, therefore, to apply to all grants of all descriptions ; neither are you, as contended 
 for by my learned friend the Lord Advocate, to obliterate these words and insert other 
 words, which, unlike the words which we find in the Act of Parliament, would have the 
 effect of inflicting these penalties and forfeitures. 
 
 Dealing, then, with the words as they are, I have submitted to your Lordships 
 reasons why I conceive that it would be untrue in point of fact, and therefore could not 
 be just or true in point of law, to hold that the grant made under these circumstances 
 was void, because it was prejudicial to King James IV. 
 
 Now, my Lords, in conclusion upon that point, permit me humbly to suggest to 
 the House the mode in which I conceive your Lordships are bound to deal with this Act 
 of Parliament. My Lords, I cannot but think the construction which you will put 
 upon the Act of Parliament now is the same construction that your Lordships would 
 have put upon it if sitting as an independent Court of Judicature and in peaceful times, 
 under no evil influences, under no terror for the results, as regards either of the parties 
 litigant or as regards yourselves — as your Lordships might have been sitting as a Court 
 of Law in Scotland, supposing peace and order and law restored and to prevail^ within 
 a year or some short time after the passing of the Act of Parliament itself. Now, sup- 
 pose your Lordships called upon to determine, sitting as a Court of Law, whether the 
 grant of this Dignity, with all its attending circumstances, fell within the terms of this 
 Act of Parliament, that is, to be judicially determined to be a grant which " might be 
 " prejudicial " to King James IV. — supposing your Lordships called upon to decide that 
 question then as now, what must be the decision ? I would first ask ' How is it preju- 
 ' dicial ?' before you can declare that this grant is void. If it " might " be prej udicial to King 
 James IV. there must be some prejudice pointed out, some mode specified in which it 
 might be so prejudicial to the reigning King. My Lords, I have looked in vain through 
 the arguments of my learned friends for any suggestion of this kind. When pressed 
 upon the subject, they fall back upon a groundless and objectionable course of argument, 
 that the Act of Parliament is to be construed, not according to its terms, and subject 
 to all the established rules of interpretation, but according to what the Judges may 
 
( 269 ) 
 
 have reason to believe were the motives or views actually present in the minds and 
 operating upon the minds of the framers of the Act. If your Lordships were sitting 
 immediately after the passing of the Act of Parliament, and were called upon to come 
 to such a decision, I cannot but urge that if you could hold that the grant of a dignity 
 like this was prejudicial or might be prejudicial to the King then upon the throne, it 
 would strike at all grants, whatever they could be, of dignities by the monarchs of 
 England or of Scotland to the most loyal and the most deserving of their subjects. My 
 Lords, I ask ' Why it was prejudicial ? What were the circumstances ? ' King James IIL 
 was the King upon the throne, invested with all the prerogative that belonged to the 
 Kings of Scotland. The Earl of Crawford was a meritorious and loyal subject ; he had 
 violated no law ; he had disregarded no duty ; he had to peril his life and his fortune ; 
 and he stood by his King in his adversity, had fought and bled for him, and was, as I 
 have observed, amongst the most loyal and most deserving subjects. Under these cir- 
 cumstances James III., reciting the grounds of the grant — grounds which are true in 
 fact, and upon which I challenge contradiction — grants to him, already an Earl, the 
 higher dignity of a Duke. That title he bore : — the King upon the throne dies and he 
 is succeeded by his son, who becomes King James IV. I ask (and I know the question 
 cannot be satisfactorily answered so as to support the arguments on the part of the 
 Crown) ' How, in Avhat way, by what means could that grant become prejudicial or be 
 ' deemed prejudicial to King James IV. ? ' If it were so, and a noble Lord yesterday put 
 the case in that way — he said, ' Why, it has been lately argued,' alluding to the Bridge- 
 water Case, ' that to tie up the hands of the Crown with regard to the grant of dignities 
 ' is contrary to public policy ' — I admit that it is so ; and I say that it would be to tie up 
 the hands of the Crown, to fetter the Crown in the most just and the most publicly 
 useful exercise of its prerogative, if it were to be held that the King upon the throne, 
 with all the rights and powers of the King, having granted to one of the best of his 
 subjects any given dignity, that grant might therefore be deemed prejudicial to his 
 successor. No, my Lords — to refuse a dignity to a worthy subject, to grant a dignity 
 to one unworthy, to grant anything out of that which belongs to the Crown and which 
 ought to be transmitted unimpaired and undiminished by every King to his successor, 
 may be contrary to public policy — that may be contrary to the constitution of this king- 
 dom or to that of Scotland — that may be prejudicial to the successor of that King ; but 
 I am at a loss to conceive upon what grounds it can be truly stated or suggested that a 
 grant made by a King of a dignity to a loyal and attached subject shall be prejudicial 
 to a successor of that King. Suppose that an Act were passed now, declaring that all 
 grants of dignities or grants of lands made by the late King William IV., which were 
 in prejudice of his successor the present Queen Victoria, should be declared null and 
 void — suppose such an Act now under your Lordships' consideration — why, to hold that 
 the Act Rescissory destroys the dignity of the Duke of Montrose would be to hold that 
 the Dukedom of Wellington, or any other title granted to the most meritorious subjects, 
 would be void. The question would be, and it must be, asked, ' In what way ? ' — and it 
 lies on you who contend for the penalties and forfeiture — it lies on you to show in what 
 way this grant can be prejudicial to the Queen that now is ; and if you cannot show that 
 it is prejudicial, the case falls to the ground. And so, my Lords, here, whether it be 
 considered with regard to the times in which this Act was passed, or as to any other 
 time, even to our own time^ the rule of law must be the same ; we must look — not at 
 what evil-minded men, actuated by such motives as undoubtedly actuated some then in 
 power in Scotland, may have really wished or have intended — we must look at the words 
 of the Act of Parliament which they have passed; we must construe those words 
 according to their ordinary and natural signification, unless such a construction leads to 
 
 2 M2 
 
( 270 ) 
 
 obvious and great absurdity or injustice. I am using the very words of the judgment of 
 the Court of Exchequer, applicable to the construction of all Acts of Parliament ; and, 
 applying those rules of interpretation to the words of this Act of Parliament, I put it 
 with perfect confidence to your Lordships that it would be in violation of every rule 
 that has ever been applied to the construction of Acts of Parliament, it would be in 
 violation of truth, to hold that this grant of the dignity in question was or might be 
 prejudicial to the King James IV. 
 
 Before I pass from this point, I might put a still more appropriate case. Suppose 
 that, after some years of the Regency of King George IV., George III. had recovered 
 from his malady, and that then, perhaps upon political considerations, or upon any 
 other ground, an Act of Parliament had passed annulling any grants made by the 
 Prince Regent prejudicial to the Crown or to King George III. — suppose that there 
 had been a grant like this — suppose that the nation, or the public peace, being in 
 danger, the grant of a dignity had been made to a loyal and meritorious subject — by 
 which a reward, and no more than a just reward, was given to that subject — upon what 
 grounds could it be contended that that grant was prejudicial to King George III. ? 
 That would be to interpret these words "prejudicial to the King that now is," not 
 according to their natural and ordinary construction, and not according to truth and 
 justice, but it would be to interpret them in this way : — ' These are grants, of which those 
 ' who are now in power, and are using the King's name, may disapprove ; or which 
 ' shall be unsatisfactory to them, and they are hereby declared to be null and void.' If 
 there were such an Act (and there is no doubt that the power of the Legislature would 
 extend to that length), ^ — if, I say, there were such an Act, all I can say is, however it 
 might be to be lamented, the law must be obeyed. But where we find no such words, 
 but words of plain, simple, and ordinary signification, and a clear, easy, and natural 
 interpretation, your Lordships will put that interpretation upon those words, and hold 
 that the grant of this dignity cannot be brought within the operation of this Act, because 
 upon no ground of truth, or justice, or law, can such a grant, under the circumstances 
 in which it was made, be deemed prejudicial to the King that made it. 
 
 Now, my Lords, in entreating your Lordships to adhere to those well-established 
 rules of construction which would give to this Act of Parliament, if it could have any 
 effect, a just and lawful effect, that would lean against penalties and forfeitures imposed 
 upon persons who had committed no offence — who could not be heard in their own 
 defence — who were open to no charge and to no suspicion, I apprehend that your 
 Lordships will hold, whether the Act is to be considered with reference to the times in 
 which it was made, or with reference to more peaceful times, as it appears to have been 
 held by a competent Court a century and a half afterwards, that this Act of Parliament 
 had not the legal effect of destroying the dignity, and annulling this grant during the 
 period in question, by King James III. 
 
 My Lords, before I pass on to the other points of the case I must detain your 
 Lordships for a short time, by here introducing into this part of the case the effect of 
 the language to be found in the Second Patent, or what was called by the Crown the re- 
 grant of the dignity ; because if, as I cannot anticipate, your Lordships were to doubt 
 upon the construction of this Act — if your Lordships were to feel any doubt whether, 
 with reference to the times in which this Act was passed, the Grant of this Dukedom by 
 James III. to the Earl of Crawford could in any way, or upon any grounds, be deemed 
 prejudicial to James IV., I think, my Lords, the document to which I will now refer is 
 all conclusive upon the point, and establishes, beyond the power of controversy, that the 
 Grant in question cannot be deemed, and could not have been deemed, even at the time 
 prejudicial to King James IV. 
 
( 271 ) 
 
 Let us see what the Grant was, — by whom, to whom, and for what consideration ? 
 I am speaking now legally, almost technically. What was the grant, by whom and 
 to whom was it granted, and what were the considerations for the grant? They 
 were these. The grant recites that it is expedient for the public good that those who had 
 done great services to their King and their country should be encouraged to the per- 
 formance of still greater services (I am using the substance of the instrument, not the 
 precise words) by the grant of those honours, the best reward that can be conferred by a 
 King upon a subject. The grant then refers to the particular services of the Earl of 
 Crawford, of himself personally, and of his ancestors, to their King and country : — For and 
 upon these considerations, and upon these considerations only, of public good and public 
 policy, and the merits of this individual and of his ancestry, and his services and the 
 services of his ancestors to the King and to the kingdom, the Dukedom of Montrose and 
 certain lands and property of no very great value are granted to him. The question is, 
 then, whether that grant to that individual, upon and for those considerations, is to be 
 judicially held to be prejudicial to King James IV. Why, my Lords, by the Patent 
 made by King James IV. himself, not one year, or only a little more than a year, after 
 the grant in question, James IV. himself grants to the same individual, upon the same 
 recitals, upon the same grounds, for the same considerations, for the same services by 
 him and by his ancestors to the King that is, the King that was, and to former Kings 
 of Scotland, the very same Dukedom and the very lands that were the subject of the 
 grant in question of 1488. I defy any man who deals with this case fairly and without 
 prejudice to escape from this conclusion, that, if one grant was prejudicial to James IV., 
 the other grant was equally so to King James IV. If the grant in 1488 to the Earl of 
 Crawford, by reason of the services of that nobleman and his ancestors to the King and 
 to the kingdom, could be upon any ground (I know not upon what grounds) deemed 
 prejudicial to the King of Scotland who should succeed him, it is impossible to escape 
 from the conclusion that the grant of the same dignity, upon the same grounds, for the 
 same considerations, and for the same services, to the same individual, by James IV. 
 himself must likewise be prejudicial to him and prejudicial to his successor. If the one 
 is prejudicial, the other is ; and if the reverse of that proposition be true in the one case, 
 it is equally true in the other. Therefore, my Lords, let me ask if the learned Counsel 
 for the Crown rely upon the words themselves 1- — upon which I say, fearless of any 
 approach to contradiction, or even to doubt, that no man can sincerely say that a grant 
 by a King to a loyal subject is to be deemed prejudicial to his successor. If the words 
 therefore be insufficient — if we are to be permitted to refer to the circumstances of the 
 times, and if we are told that there was something in the circumstances of the times 
 which would make this grant prejudicial where it would not otherwise be so, then I 
 refer to the same times, and even to the very same King upon the throne, to James IV. 
 himself, and, if one could evoke him from the place where he is, one might ask that 
 monarch, ' How could you deem, or can you deem, the grant of the Dukedom of Montrose 
 ' to this Earl of Crawford prejudicial to you, when you granted that Dukedom to him, 
 * and granted it to him in the very words, and upon the same considerations, as those upon 
 ' which the grant by your father was founded ? ' 
 
 My Lords, I of course will not at this time weary your Lordships by going 
 through this Instrument. I beg you to refer to that which is quite free from suspicion 
 of inaccuracy on the one side or the other — to what is called the Act of Parliament, 
 under which James IV. granted the Dukedom, as it is said on the other side, for life. 
 At page 6 of the additional printed paper which we have put in, your Lordships will 
 find that that Instrument, almost from the beginning to the end of it, is almost, mutatis 
 mutandis, in precisely the same terms, has the same recitals, founds the grant upon the 
 
( 272 ) 
 
 same considerations, and the same services as the grant by James III., of May 1488. 
 It is really the same thing, the same instrument, and using exactly the same expressions 
 from beginning to end, except that there are words of inheritance in the one, and there 
 are not, at least expressly, words of inheritance in the other. And, unless therefore 
 your Lordships are prepared to hold that the grant of a Dukedom to a man and his 
 heirs is prejudicial to the grantor or to his successor on the Throne, whereas the grant 
 of a Dukedom for life is not so prejudicial— unless there can be some such, I will venture 
 to call it fanciful distinction as that, which is not suggested on the other side— between 
 the one instrument and the other, which will lead to one judgment upon the one, and 
 another judgment upon the other — I defy the wit of man to escape from the conclusion, 
 that, if in 1490 there had been an Act of Parliament declaring all grants made by 
 James IV., prejudicial to him, James IV., should be void— I defy any one to escape 
 from this, that it would have avoided his own grant of this very dignity to the same 
 individual. It is impossible. I may be thought by your Lordships to be dealing too 
 confidently with this case. It may be so ; but I own I am utterly unable to conceive 
 Avhat arguments can be urged in answer to the conclusion at which I am praying your 
 Lordships to arrive. 
 
 We are here upon the construction of the Act of Parliament — we are here upon a 
 construction of the Act of Parliament which, on the part of the Crown, your Lordships 
 are prayed to hold so as to inflict great and heavy penalties, and so as to exact great and 
 heavy forfeitures from an innocent man, against justice, against truth, and against right. 
 That is the construction which your Lordships are asked to put upon this Act of Par- 
 liament. I agree that, if the words are so clear that they are open to no other construc- 
 tion, you must, whatever be the consequence, put that construction upon them. But if 
 they are not so, and they are even open to doubt, and the question with which I am now 
 dealing is whether this grant should be held to be prejudicial to King James IV., I 
 conclude this branch of the subject by venturing, with all humility, to ask the question : — 
 ' If the grant in 1488 was prejudicial to King James IV., upon what ground can the 
 '' grant of 1489 by King James IV. himself be held to be otherwise ? ' If they are held to 
 be the same, if both are mere exercises of the prerogative by the King upon the throne 
 in favour of a good and worthy subject, not only free from blame, but possessing many 
 merits, who had performed, and his ancestors had performed, great services to his King 
 and to his country, — my Lords, if that be the nature of one grant, that is likewise the 
 nature of the other, and the one cannot be held to be prejudicial to either King, — to 
 James III. or James IV. — unless the other be held to be prejudicial to both. I submit, 
 therefore, to your Lordships, that it would be not merely a misconstruction, but it would 
 be a perversion, an odious perversion, of the words of this Act of Parliament to hold that 
 such an Act done by the King on the throne to such a subject is judicially to be held 
 prejudicial to his successor. I should only rejoice if I could prevail upon your Lord- 
 ships to incorporate what is to be found a few lines lower down, and apply these words 
 again as a test to this construction of the Act. After saying " that all alienations of 
 " lands, heritage," and so forth, " granted or given to any person or persons, what estate, 
 " condition, or degree that ever they be of, since the 2nd day of February last by-past, by 
 " late our Sovereign Lord's Father, whom God assoil ! which might be prejudicial to 
 " our Sovereign Lord and to the Crown that now is, be quashed and annulled, and of 
 "none effect," it proceeds, "because" — here are the words, and we are to consider 
 whether this grant comes within these words, and falls within the reasonable and true 
 interpretation of these words — " because that such alienations, gifts, and privileges, were 
 " granted since the said time, for the assistance to the perverse Council, that were con- 
 " trary [to] the common good of the realm, and cause of the slaughter of our Sovereign 
 " Lord's father." 
 
( 273 ) 
 
 Now, my Lords, if it can be made out that this grant was made by reason of the 
 counsel given by the Earl of Crawford to King James III., which was " contrary to the 
 " common good of the realm," or which was the "cause of the slaughter" of King 
 James III., I give up this claim. I must again entreat your Lordships to remember that 
 it is not what the individuals composing the Parliament wished or meant that is to guide 
 your Lordships in putting a construction upon the Act: they must have expressed 
 themselves by apt words, whatever was their real intention, in order that that intention 
 might be carried into effect. Let me, for the purpose of setting aside words which would 
 lead to injustice, refer to the intention of the Legislature as it is to be collected. Your 
 Lordships cannot, in order to do injustice and to work penalties and forfeitures, 
 where you do not find words which of themselves are, in point of truth and fact 
 sufficient to give effect to the supposed intention, alter them, and give a different effect 
 to the words, I put the case again upon that test, and should be glad if your Lordships 
 would apply that test to it. I do not ask what the Chief of the House of Douglas, who 
 was an enemy of the Duke of Montrose, wished or intended. I ask this, — can your 
 Lordships, sitting here as a Court of Law, as judges — judicially hold that this Earl of 
 Crawford gave counsel to James III. which was " contrary to the common good of the 
 " realm," and was the " cause of the slaughter " of the King ? If it be so, then to oppose 
 rebels and traitors is contrary to the common good of the realm, and to defend a man 
 with one's best blood is to be the cause of his slaughter. I only pray that your Lordships 
 may take these words into consideration, and also bear in mind that we are not to 
 look to what we may perhaps be persuaded in point of fact was the intention (though 
 here it was but a vague intention, not expressed, and which they do not dare to express in 
 clear and precise words) of the dominant faction of the day — your Lordships are not to 
 look at it so, unless words are used in the Act to give effect to the intention ; but, looking 
 at the words, whether we take them by themselves — " which might be prejudicial to our 
 " Sovereign Lord and the Crown that now is," or take the subsequent words by way of 
 explanation — " the perverse council contrary to the common good of the realm, and cause 
 " of the slaughter of our Sovereign Lord's Father " — within any one of these categories 
 your Lordships cannot hold, and it is impossible to hold, that a grant made by such a 
 King to such a subject, under such circumstances, either was or could be " prejudicial " to 
 his successor, or " contrary to the common good of the realm," or the '^ cause of the 
 " slaughter " of the King. 
 
 If therefore this Act of Parliament were construed upon its mere terms, as I 
 apprehend it must be construed, according to the ordinary legal rules of interpretation, 
 or if construed with reference to the subsequent grant by King James IV. himself — 
 if your Lordships are prepared to hold that these words of the Act of Parliament, what- 
 ever may have been the malignant wishes or intentions of those who composed the 
 Parliament, cannot be construed to defeat and to destroy this dignity, because the grant 
 of the dignity does not come within the expressions of the Act, and cannot be held to be 
 prejudicial to the King, James IV. — then there is an end of all further consideration 
 upon this branch of the case : Because, unless this Act of Parliament when it was passed 
 at once ipso facto by the passing of it annulled this dignity, the Patent remains in full 
 force. My Lords, it was, or it is now— and it saves me much in the way of time and 
 argument that it is so — admitted by both my learned friends, and necessarily admitted — 
 that a dignity -of this kind granted by the King of Scotland by letters patent can be 
 destroyed only in two ways, by Act of Parliament, or by Resignation and acceptance. 
 It is now not pretended that there ever was any Resignation of this dignity — it cannot be 
 pretended — and therefore there is an end of that one mode, or rather that second mode, 
 in which a dignity may be destroyed. There was no Resignation, and therefore it could 
 
( 274 ) 
 
 only be by Act of Parliament that that effect could be produced. It is not suggested 
 that there ever was any other Act than this which could have that effect. It is not 
 suggested, because it cannot be so, that any statute of limitation exists, that the lapse of 
 any length of time, however great, is fatal to a dignity, or even is any ground for 
 impugning the grant of a dignity by the Crown. Therefore, my Lords, it comes back to 
 this proposition : — If your Lordships hold that, upon the construction of this Act of 
 Parliament, you cannot say that the grant of this dignity by James III. to the Earl of 
 Crawford was or might be prejudicial to King James IV., then this Act did not annul 
 that dignity, and then there is an end of all objection to this branch of the case ; and I 
 should be .happy in the discharge of my duty, feeling satisfied with the efforts I had 
 made to bring your Lordships to the conclusion for which I contend on the construction 
 of this Act, if I might relieve you from any further argument. But there have been so 
 many documents referred to, and there have been so many heads or branches of the 
 evidence into which this case has been, in argument as well as in statement, subdivided — 
 though your Lordships may be assured I will deal with only one or two at most upon 
 each head — that it would not become me to pass over altogether that part of the case, 
 but more especially the documents that have been brought forward by my learned 
 friends on the part of the Crown. 
 
 Now, my Lords, with regard to this matter I must make a preliminary observa- 
 tion, that, whatever may be the legal effect of the several instruments which have been 
 offered in evidence, to show that this Act Rescissory was acted upon, and did practically 
 operate upon grants by James III., all these considerations become quite immaterial if 
 my construction shall prevail. If your Lordships hold that the Act did not, by the 
 force of its very passing, at once and at the moment, annul this grant, nothing that has 
 since occurred, no instrument entered into by any of the parties, or forty times as many 
 instruments by all of them as now are on your Lordships' Table, could have any effect 
 whatsoever upon that dignity, — and it is not pretended that they have. But I must refer 
 to them, because they have been brought under your Lordships' attention. Now, my 
 Lords, I must reiterate my assurance, that I will deal with them quite briefly. I only 
 hope I shall not do injustice to those whom I represent by taking that course. There 
 are several documents which have been given in evidence on the part of the Noble 
 Claimant, upon which he insists that in point of fact this Act Rescissory did not operate 
 upon the grants made within the time in question by King James III. On the other 
 hand, some of the documents to which I am now about to refer have been adduced in 
 evidence on the part of the Crown, upon which documents they insist that the Act did 
 so operate, and did de facto operate to annul some of the grants of King James III. 
 
 Now, my Lords, before I refer to those documents, particularly the latter which 
 have been adduced on the part of the Crown^ I will take the liberty of submitting, in a 
 very few words, to the Committee, the view which I take of what is the fair result of all 
 the light which history throws upon this question— and these documents themselves, 
 on the one side and on the other. My Lords, whatever may be the construction which 
 your Lordships may put now, in point of l^w, upon this Act Rescissory, this much will 
 be found perfectly clear upon reference to history and to those documents, namely : — That 
 while on the one side the Duke of Montrose insisted upon his claim by right to this 
 
 dignity, and to the full benefit of the grant which he had received from his King and 
 
 he insisted upon that right and title on many occasions, in many ways, in private and in 
 public, in personal acts and acts of state, to public officers and to private individuals, 
 even before, and I might add to the very teeth of his worst enemies (the nobles who 
 sought to make him their victim), and even before the King himself — while it is clear 
 that he always, by his acts and his deeds, insisted that he was Duke of Montrose and 
 
( 275 ) 
 
 claimed and acted upon the claim to the full benefit of that Patent; on the other 
 hand, as I am free to admit, his right to that dignity and to the lands granted to him at 
 the same time was questioned, and at times denied by his enemies, and at times also 
 even by the King himself. The result of the evidence, to speak it candidly— but I am 
 sure I at least believe truly — will be found to be this,— not that the Act Rescissory did 
 or did not de facto operate upon the grant in question, or indeed upon any of the grants 
 of King James III. ; but that, on the one hand, that grant was insisted upon, main- 
 tained, used, its benefits actually enjoyed on the part of the Duke, while it was ques- 
 tioned, resisted, and denied on the part of the Duke's enemies— the dominant faction— 
 those who constituted the Parliament, and at times on the part of the King himself. 
 
 Then, my Lords, with regard to the property, I believe that the grants of James 
 III. during the period in question must have been extremely numerous, because even at 
 this distance of time, between three and four centuries after, we produce a very great 
 number of the grants that were made within that period by the King. And, my Lords, 
 in considering what was the practical effect de facto of this Act of Parliament, I claim 
 your Lordships' attention to what I now venture to affirm, that there is no one proved 
 instance to be found in all the evidence upon this Case, or to be found in history, of this 
 Act having actually de facto defeated a grant by King James III. There is not one. 
 And more, — when the effect of that Act upon the grants of King James III. was considered 
 during the space of eleven years, at a period nearer by two centuries than we now are 
 to the time in question, throughout the lengthened proceedings in the Glencairn and 
 Eglintou Case, no one instance was found of the Act Rescissory de facto operating to 
 destroy a grant by James III. But what do we find ? Why, that which, no 
 doubt, in the hands of men of eloquence and ingenuity, like my learned friends, enables 
 them to build up a very plausible, and apparently a very forcible argument. We do 
 find undoubtedly this, that the grants were made, and that the thing granted was not 
 always fully enjoyed to the extent of the grant; but when we look further we find this^ 
 which will convince your Lordships, not from our evidence but the evidence adduced on 
 the part of the Crown itself, that from the day and the hour of the death of King 
 James III., and during the greater part of the reign of King James IV., the successful 
 nobles who had gained the ascendancy, using the name of the King himself, and therefore 
 apparently King James IV. himself, by acts of power, by lawless acts of power, did 
 confiscate, misapply, and deal with as their own property, what had been granted by 
 King James III. 
 
 Lord St. Leonards. — Have you any instance of the exercise of any power over the 
 estates granted by the regrant, by the family, after the death of the Duke? Did 
 anybody ever assert, or have any title to any of those estates after the death of the 
 Duke? 
 
 Sir FitzRoy Kelly.- — What I shall show, my Lord, as to that, and what is the 
 necessary result of the evidence, is, that in the same way in which I am about to show 
 from the evidence of the Crown, King James IV., or rather those that used his name, 
 confiscated property, and that without even the colour of the Act Rescissory, which had 
 been the subject of the grants of King James III. ; so did — 
 
 Lord St. Leonards. — To what other document do you refer the loss of the estates 
 other than the Act Rescissory ? 
 
 Sir FitzRoy Kelly. — I do not refer it to any document at all, my Lord. 
 
 Lord St. Leonards. — There is a document to which it may be referred rightly or 
 wrongly. Is there anything else ? 
 
 Sir FitzRoy Kelly.— No, my Lord, except by an act of power. What I am con- 
 tending is this— I quite apprehend, and I shall not seek to evade, the force of your 
 
 2N 
 
( 276 ) 
 
 Lordship's observation— I am going to deal with that point separately and distinctly, 
 namely, the seizure and the appropriation by the Crown of the lands and customs 
 granted to the Duke of Montrose, upon the death of the Duke of Montrose, and to the 
 prejudice of his successor the sixth Earl. That, I presume, is what your Lordship is 
 alluding to. 
 
 I will show this, that King James IV. (I use his name) was a boy of sixteen at the 
 time, and it is quite clear that the nominal acts done by him were acts done by the 
 powerful nobility of whom he was made the instrument. It will appear that upon 
 various occasions James IV. did, without any colour of law, seize and ' apply to his own 
 or his nobles' purposes, property which had been granted to the loyal subjects of King 
 James III. ; and therefore I shall ask your Lordships to consider an act done, upon the 
 death of the Duke of Montrose, as an act of the same character, an act done by the 
 party in power. What do you find ? The great Duke of Montrose, one of the most 
 powerful subjects that ever existed in Scotland, was too strong generally for his enemies, 
 but they found no longer any such resistance in his son the Earl of Crawford, who was 
 implicated in the charge of murder and labouring under various disabilities and disad- 
 vantages ; and they, by an act of power which was against the law, applied to their 
 own use, or rather disposed of in the King's name, this property which had been granted 
 to the Duke of Montrose. I quite agree that there is no instrument, no document to 
 which that can be referred, unless we say that it is to be referred to the Act Rescissory, 
 and your Lordships shall hold (for it is you who are to settle the question, and to 
 determine that which evidently was a question during the whole life of the first Duke 
 of Montrose, and perhaps a question some time after his death during the life of 
 James IV.) that the Act Rescissory had the legal effect of destroying all those grants. 
 That is a legal question upon the construction of the Act which existed, and which was 
 unsettled during the whole of the period in question, the reign of James IV. But 
 whatever may be your Lordships' opinion upon that, it cannot give eflFect one way or 
 the other to the acts of the King. What I am endeavouring to impress upon your 
 Lordships, and which I hope I shall prove from the document to which I shall refer, 
 is, that where the King could act upon the authority or the apparent authority of the 
 Act of Parliament, no doubt he would pray in aid that Act to legalise his acts ; but 
 where it was the desire of the King, or those who used his name, to confiscate the pro- 
 perty of the grantees of James III, their enemies, they did so, even where there was 
 no colour or pretence by means of any Act of Parliament. The conclusion to which I 
 shall therefore ask your Lordships to come is this — always protesting that it becomes 
 entirely immaterial, because the right to this Dukedom must now depend upon the 
 construction of the Act — but the conclusion, the fair result of all this evidence, is, that 
 rights derived under grants of James III. were insisted upon by the grantees wherever 
 they had power to insist upon them, and that they were denied by their enemies, and 
 their property was often seized by those enemies, where the grantees had no power to 
 resist. And that with regard alike to the cases to which I am now adverting, and also 
 to the confiscation of the property (for such it was) which had been granted to the Duke 
 of Montrose by James III. under the Patent of 1488, it was a lawless act of power, 
 which might be referred to the Act Rescissory for aught I know, but which I think 
 your Lordships will find that Act did not warrant. 
 
 Now, my Lords, the documents, fortunately, which upon this point have been 
 adduced on the part of the Crown, are only four in number ; and I pray your 
 Lordships' attention to those documents. I will take the second and third in the 
 first instance, because they stand upon a different footing from the others — there is an 
 important distinction between them. The Crown, in order to show that, de facto. 
 
( 277 ) 
 
 the grants of James III. were treated as void by virtue of the Act Rescissory, have 
 given in evidence these four documents. 
 
 Now, my Lords, one, the second in point of order, was under these circum- 
 stances : — There was a grant, to a person of the name of Turnbull, of the lands of Terrin- 
 zean by James III, within the period in question ; and those lands afterwards, in the year 
 1497, appeared to have been seized into the King's hands, and by him granted out to 
 a person of the name of Ramsay. The third Instrument is much of the same description. 
 These were the lands of Tarves, which were granted out by James III., within the period 
 in question, to a person of the name of Dunbar, and they were seized into the hands 
 of the King, and granted out by the King to a person of the name of Kennedy in 1501. 
 Now I will not stop to consider the force of those two Instruments — even if they were 
 open to no explanation at all, they are two out of two hundred. I might content myself 
 by saying that, at this distance of time, it is impossible for any one to tell under what 
 circumstances, by what lawful means, property, which in 1488 had belonged to Turnbull 
 and Dunbar, might, by 1497, nine years afterwards, and by 1501, thirteen years after- 
 wards, have come into the possession of the King without at all resorting to the Act 
 Rescissory ; it might have come lawfully into the possession of the King — we know not 
 how — or it might be that the King seized this property into his hands. I am content so 
 to take it. But, in the mean time, if I am asked whether the Crown is justified in 
 referring these grants, or rather this disposition of the lands by the King, to the Act 
 Rescissory, I answer that, in the mean time, after that Act, viz., in 1493, there was that 
 other Act of Parliament passed, to which your Lordships' attention has been several 
 times directed ; an Act by which, in express terms, all grants of lands — but no dignities 
 were included in that Act — all grants of lands, which, within not merely the period in 
 question, but a longer period, from the 2nd of September 1487, were granted by King 
 James III. — all grants of that nature were declared to be void. So that the disposition 
 of this property by the King in 1497 and 1501 may well be ascribed to this Act of 1493, 
 which in its terms would unquestionably legalize the grants, and not to the Act Rescissory 
 of 1488. And, my Lords, I will only observe as to these two instances, the only two of 
 that character adduced by the Crown : — If the fact be as they say (looking at the almost 
 innumerable grants of James III. within the time in question), that they were all void, 
 and it was well understood at the time that the Act Rescissory made them void — how 
 is it that they do not find one single instance of the Crown dealing with the property — 
 with any of the vast amount of property granted away within the period in question by 
 James III., between the date of the Act Rescissory and the Act of 1493 ? There may be 
 these two instances after the Act of 1 493, which would legalize that proceeding in these 
 two instances ; but how is it that, in all grants made by King James III., annulled, as 
 they say, by the Act Rescissory, we do not find one instance in which James IV. professed 
 to deal with property so granted between the period of the Act Rescissory and the Act 
 of 1493? So much for that, which are, therefore, only two instances, and where the 
 evidence does not support the proposition. 
 
 Now, my Lords, I come to two much more important instances, as to which I 
 thank my learned friends for the Crown, and the Duke who has furnished them with 
 the means of bringing them before your Lordships. The first grant which they gave in 
 evidence was the grant of the lands of Baky. 
 
 Now, it appears that James III. granted the lands of Baky to one, I think, of the 
 Crawford family on the 13th of May 1488, clearly within the period embraced by the 
 Act Rescissory. And these lands, being so granted. King James IV. on the 2nd of 
 August 1488, about less than two months after the King's death, appears to have seized 
 
 2N2 
 
( 278 ) 
 
 into his own hands and granted out to one of the name of Glammis. And so, my Lords, 
 as to the fourth grant — 
 
 Chairman.- — What page is this in the Case ? 
 
 Sir FitzRoy Kelly.— I am told, my Lord, by my learned friend Mr. Eolt, that it is 
 at p. 1 8 of the Dulce's Supplemental Case. There are two grants, and both under the same 
 circumstances, but the argument applies equally to one and the other. The second, which 
 was the fourth in point of order, was a grant of the lands of Walkmylton. Now, it appears 
 with regard to this, that King James III. granted the lands of Walkmylton and some other 
 lands (p. 21 of the Duke's Supplemental Case) to a person of the name of Innes on the 
 24th of May 1488. And King James IV. appears to have possessed himself of those 
 lands, for he, on the 28th of June, granted out these same lands to a person I think of 
 the name of Mawar. The names of the lands are not material, but the dates are very 
 material. Here were lands, then, granted by James III. in May 1488, a month before 
 his death, and these same lands were confiscated and seized by King James IV. and 
 granted out to his adherents in the months of June and August 1488, and these grants 
 are given in evidence, or professed to be given in evidence, to show practically de facto 
 the operation of the Act Rescissory ! 
 
 My Lords, I am now to state what they do show beyond any power of con- 
 troversy ; that in those unhappy times, James IV., or those who used his name, had the 
 ])ower, and they exercised it, of confiscating the property of their enemies, against the 
 law, and without even the colour of law. If those regrants and this seizure of 
 the property, granted perhaps to faithful and loyal subjects to James III., had taken 
 place after the passing of the Act Rescissory — my learned friends might have said it 
 was by virtue of that Act, and, just or unjust, right or wrong, the Act conferred legal 
 power ; but those lands, granted by King James III., were in the hands of the grantees, 
 and were seized in the name of the new King, James IV., a month as to one, and two 
 months as to the other, after the death of James III., three or four months at least 
 before the Act Rescissory was passed. What does this show ? It shows this, — it shows 
 that in those times, when the faction that prevailed were desirous of degrading and of 
 injuring their enemies, in the name of the King they seized and confiscated their property, 
 dealt with it as they thought proper, and parcelled it out amongst themselves ; and 
 accordingly we find — not after the Act Rescissory, which might or might not have 
 legalized such a proceeding, but months before it passed — we find James IV., or his 
 name, used for the seizure of those lands from the grantees of James III., and a parcelling 
 of them out by regrants amongst his own adherents. 
 
 Now, my Lords, what was the observation made by my learned friends upon that 
 point, which, of course, I am to advert to ? They say : — ' True it is — the Act Rescissory 
 ' had not passed ' (at least that is not exactly the language, but what I presume they 
 meant), ' but there was a Proclamation at Scone, and it was under the Proclamation, no 
 ' doubt,' they say, that ' this proceeding took place.' My Lords, with regard to that Pro- 
 clamation, perhaps I ought to have said a word when I was dealing with the Rescissory 
 Act. My Lords, the Rescissory Act of Parliament refers to that Proclamation. It says, 
 " Anent the Proclamation made at Scone," — and I cannot but suggest a doubt to your 
 Lordships whether you can safely, at this time, put any construction upon that Act at 
 all, without having that Proclamation before you. Who can tell whether the Proclama- 
 tion did not specify the particular descriptions of grants intended by the subsequent Act 
 to be struck at, and to be rescinded, and whether this very grant might not have been 
 exempted from that description ? Who can tell ? Your Lordships are referred by the 
 Act of Parliament, and upon this branch of the argument or evidence, referred by the 
 learned Counsel for the Crown, to the Proclamation, that Proclamation not being in exist- 
 
( 279 ) 
 
 ence. You are, therefore, entirely ignorant of what that Proclamation contained, and what 
 descriptions of grants that Proclamation referred to ; consequently that is an additional 
 reason why your Lordships should pause, and should put such a fair construction upon 
 this Act as not to work penalties and forfeitures without having the Proclamation before 
 you, to guide you as to what are the descriptions of property or grants intended to be struck 
 at by the Proclamation or the Act. That I say but interjectionally as to the construction of 
 the Act. My learned friends say that those grants were struck at by the Proclamation. 
 This is after all but conjecture. We have not the Proclamation before us, and my 
 learned friends are as ignorant as I am as to what it contained ; and, at least, to justify 
 forfeiture, they have no right to presume that that Proclamation contained anything 
 favouring their argument any more than I have. But suppose, for a moment, I was to 
 suppose their conjecture to be well founded, and that the King did make a Proclamation 
 at Scone, directed in some terms or other against the grants of King James III. That 
 Proclamation was made on the 12th of June — at least, that is the only date we have given 
 us. It was made on the 12th of June, the very day after the death of King James III. 
 Now — I will give my learned friends the benefit of their suggestion or conjecture, and let 
 them suppose what they will to have been the contents of that Proclamation — I will let 
 them suppose that in that Proclamation James IV. had directly struck at these two 
 grants to Lindsay of Crawford and to Lines, made by James III. in the month of May 
 1488 — ' Will the Proclamation justify the King in seizing to his own use lands granted 
 ' to good subjects by his predecessor ? ' Why, my Lords, if that were so^ — if the Proclama- 
 tion purported to justify the seizure of this property, it was only one act of lawless 
 tyranny added to another, or rather prefi.\ed to another. If the King, without the 
 authority of Parliament, proclaims that all grants made by his father are to be void, and 
 the property granted to be forfeited to him, the new King ; and if he then, in addition 
 to such a Proclamation, proceeds under and by virtue of it to seize that property out of the 
 hands of the grantees, I say that both acts are evidently tyrannical, and both obviously 
 and incontestably illegal. 
 
 Lord Lyndhurst. — What is the date of the Proclamation ? 
 
 Sir FitzRoy Kelly. — The supposed date, my Lord, is the 12th of June — the day 
 after the death of the King on the 11th of June. The Proclamation appears to have 
 been dated on the 12th, therefore it is simply this : it only shows — and that is why I 
 dwell upon these two documents, which otherwise would be perfectly immaterial ; but 
 they sustain my case, and support the view of the historical events of the time, and the 
 view of the character of those acts of confiscation and spoliation in the name of King 
 James IV. which I am submitting to your Lordships — that at a time when no lawyer 
 can pretend that there was any colour of right, colour of authority, or colour of law for 
 the seizure of this property by James IV., he did seize that which had been granted by 
 King James III. to two of his own adherents, dealt with that property as his own, and 
 lawlessly granted it out to two of his own friends. When I come to the next part of the 
 case to which the noble Lord has called attention, as well as suggested to me— I mean 
 as to how the property granted to the Duke of Montrose was dealt with at the death of 
 the Duke— have I not a right to say that if this King James IV., or his nobles in his 
 name, were powerful enough, and were unprincipled enough, thus to seize the property 
 of the friends and grantees of James III. within two months of his death, and when there 
 was no colour of right or law for any such proceeding, is it to be wondered at that 
 when the illustrious Duke of Montrose was no more, when he was succeeded by his son, 
 who was not only powerless, but, figuratively speaking, under a cloud — a person im- 
 plicated in a charge of fratricide and murder — is it, I say, to be wondered at, then, that 
 these same barons, this powerful faction, being in the ascendant, and having no longer the 
 
( 280 ) 
 
 great Duke to deal with, should despoil and i^lunder his powerless son, and put into the 
 hands of the King that very property which had been given to him by James III. ? If we 
 find that the nobles in the time of James IV., using his name for that purpose, despoiled 
 and plundered this Innes and Lindsay of Crawford in 1488, why may we not say, or rather, 
 why be surprised if we find them also despoiling and plundering the son of the Duke of 
 Montrose in 1496, or whatever was the year immediately succeeding that nobleman's 
 death ? 
 
 My Lords, my learned friends have brought under your attention, and (I do not 
 deny) justly and fitly in such a case, and have placed great reliance upon the Exchequer 
 Rolls. Now the effect of those Rolls is simply this :— They tell at first greatly in 
 favour of the view for which I am contending, and they tell at last much against that 
 view. I think the beginning will balance the end. The effect of them is this : — The 
 lands of Kinclevin and the customs, great and small, of Montrose, both, as it should 
 appear, royal property originally, were granted by James III. to the Duke of Montrose 
 in 1488, under the same grant as that of the Dukedom itself. The Duke appears 
 immediately to have entered into possession, or shortly afterwards to have entered into 
 possession, of the lands and of the customs granted. And here it is that the Exchequer 
 Rolls tell in his favour — and they tell strongly in his favour, I mean in favour of our 
 case — that he continued to receive to his own use and to enjoy the pi-oduce of this grant, 
 that is, the lands of Kinclevin and the great and small customs, for the whole, of the 
 first year, and therefore the whole of the time that intervened between the passing of 
 the Act Rescissory and the date of the second grant under which James IV. likewise 
 granted to the Duke the lands and customs in question. And certainly if it had stopped 
 there, it would be — I do not wish to press it too strongly — but it would be a very strong 
 argument in support of that grant having been to some extent recognised by the -Crown 
 and treated as not having been ipso facto avoided by the passing of the Act Rescissory. 
 It will not be forgotten that this was originally Crown property ; and if, therefore, any 
 grant at all could be said by one King to be to the prejudice of the other, it would be 
 the grant of Crown property, which, if not granted, would have passed to King 
 James IV. Yet we find that notwithstanding that Act Rescissory, notwithstanding its 
 being Crown property, Avhich, if the effect contended for of the Act be the true effect, 
 would have vested in James IV., we find the officers and agents of King James IV. 
 himself, the public officer having the keeping of his accounts and the management of 
 that portion of his revenues, accounting during the whole of that period for these lands 
 and these customs to the Duke of Montrose, who could only be entitled to them under 
 this very grant of 1488, which was said to be rescinded by the Act Rescissory. There- 
 fore nothing can be stronger to show that, within the knowledge of the King himself, 
 and the officer having the management of his property, that grant was recognised, and 
 the Duke permitted to enjoy the property granted, notwithstanding the Act Rescissory 
 for that time, for about a year down to the time of the regrant by James IV. Then, . 
 my Lords, they seek to countervail that by saying,—' That is true ; but then this grant of 
 ' James IV. having limited, or rather granted' (as they contend), ' the dignity for life only, 
 ' the property was enjoyed only during his life, and at his death, instead of passing to 
 ' his son and successor in the Earldom, it was resumed by the King and afterwards dealt 
 ' with by him as his own.' It is quite true, my Lords, that that was so, and that, at this- 
 distance of time, we cannot show by evidence the direct causes influencing the King 
 himself in thus seizing to himself and disposing of this property ; but — is there any need 
 to refer that to the Act Rescissory ? This is the question for your Lordships' con- 
 sideration. Does it follow that because those who are in power at the death of the 
 Duke of Montrose, in the name of James IV. seize from his successor the property 
 
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 which had been granted to him by James III., that that was lawfully done under the 
 Act Rescissory ? I say nothing of the kind follows. If that were so, what becomes of 
 these acts in June and August 1488, where property, similarly granted by James III. 
 to his adherents, was seized by James IV. and dealt with in like manner ? It shows 
 that at this time James IV., or those by whom he was surrounded, were in want to 
 oppress the powerful name (sic) of an adherent of the deceased King, or to despoil such a 
 subject, in order to grant something or other to any of their own adherents or friends ; 
 and they scrupled not, with or against law, and with or without an Act of Parliament, 
 to seize, by a mere act of lawless power, property in the hands of a grantee of the 
 deceased King and apply it to any use they thought fit. When we look to the circum- 
 stances which occurred so soon after the death of the King, and when we find that 
 James IV. scrupled not, A^henever he thought proper or had the power, whenever^ in 
 short, he was dealing with some one not too powerful to resist him with effect, that he 
 or those who acted in his name, whenever they thought proper, seized the property 
 and possessions of others into their hands, and dealt with them as their own ; is it to be 
 wondered at, when we look at the circumstances of the moment, the consequences to 
 the family of the death of the first Duke of Montrose, his rights and possessions passing 
 to his son under the disastrous circumstances to which I have alluded — is it, I repeat, 
 at all wonderful that the same King or the same powerful faction, then in the 
 ascendant, should exercise the same lawless power, which we find to have been exercised 
 shortly after the death of James III. in the case of Innes and Lindsay of Crawford ? that 
 the same exercise of lawless power should again have taken place in the case of the 
 sixth Earl of Crawford ? and that this property, which was originally annexed to the 
 Dukedom, should again have been seized into the King's hands, and disposed of among 
 his own adherents ? 
 
 I ought to say, my Lords, that the property is far too small to suppose that any 
 one in the situation of the sixth Earl of Crawford would have felt it worth his while 
 to enter into a contest or a litigation with the powerful nobles who then surrounded 
 and influenced King James IV. 
 
 From the best accounts we have of the property, the lands of Kinclevin were 
 something about 60^. or 70/. a-year, and the Customs of Montrose, of which a far greater 
 proportion were already in the hands of the Duke under other and earlier grants not at 
 all questioned, amounted to something so small that it was (the balance) something 
 under 10^. a-year. The lands of Kinclevin and those customs alone m question (not under 
 these grants) were so insignificant that it is scarcely to be deemed possible that a person 
 in the circumstances of the sixth Earl of Crawford, powerless, disliked, and unlike his 
 father, even despised, could possibly have entered into a conflict with the King, and those 
 who supported him, about anything so small as the property which was thus seized into 
 the King's hands. 
 
 My Lords, upon this part of the Case it really comes only to this : — We see that, 
 notwithstanding the Act Rescissory, the Duke of Montrose was powerful enough to 
 persist in his claim, not merely to the Dukedom, but to the property granted with it, 
 and he succeeded in his resistance to the attempts of his enemies to deprive him. of that 
 property. He received it at the hands of the King's officer during the whole time, as 
 well from the passing of the Act Rescissory, as from the regrant a year afterwards 
 on the part of James IV. All we find is that, when he was dead, his son was unable to 
 withstand the efforts of his enemies, and was obliged to give up this little property 
 which his father had maintained. There is one document only, out of the numerous 
 series which have been laid before your Lordships on the part of the Claimant, to which 
 I will refer upon this point. We have undoubtedly insisted and endeavoured to support 
 
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 our claim by a great variety of instruments, of which I am afraid to state the number ; 
 and to prove that cle facto this Rescissory Act had no operation whatever, we have shown 
 numerous instances in which the grantees of James III. of property, sometimes that had 
 belonged to subjects, sometimes belonging to the Crown, retained that property not- 
 withstanding the Act Rescissory, and dealt with it as their own, and their families 
 continued in possession of it just as if no such Act had ever passed. We mentioned the 
 case of the Burgh of Brechin, where there was a grant by King James III., of, I think, 
 the Customs of the Burgh of Brechin, which grant of James III. was void if the 
 construction contended for as to the Act Rescissory be the right one ; and under that very 
 grant so avoided, as they say, James III.'s grantees, and their successors, have remained 
 actually in possession of the property, the subject of the grant, from that hour to this, 
 when I am now addressing your Lordships — 
 
 Lord St. Leonards. — What was the value of that property at that time ? 
 Sir FitzRoy Kelly. — I am unable to answer that question, my Lord. Some 
 gentleman says, what I am afraid Avould still leave your Lordships in the same ignorance 
 of what the value of it was, that it was a halfpenny for every horse-load of wood. 
 Whoever the gentleman may be, and whatever my respect for his learning in matters of 
 antiquity, I cannot adopt that as an answer to your Lordship's question. But it was a 
 grant made by the King at the time in question ; upon the face of itit was recited tha t 
 it was for services at the battle of Blackness, therefore pointing to the very event which 
 raised all the hostility with which these grantees were pursued by the friends of James IV- 
 It was a notorious grant by the King upon that occasion to a public body in the 
 immediate neighbourhood. Yet that grant was never questioned, and it is enjoyed to 
 this day by the Burgesses of Brechin. The grant has been carefully preserved, and 
 acted upon, and the gentleman who appeared at your Lordships' Bar, the Town Clerk 
 I think, of Brechin, said in producing the grant : — ' This very grant we have acted 
 ' upon, we and our predecessors, from that time to this, and we are now receiving what- 
 ' ever may be the tolls under this very grant' My Lords, I only mention that as an 
 example, but there are such a vast number of these grants that it is idle to say before 
 your Lordships — the facts may be of use as to one or two — but it is impossible to say, 
 with this vast multiplicity of grants by James III. within the time in question, if this 
 Act Rescissory had the operation in point of law which is contended for, that it 
 would not have operated in point of fact, and that great masses of this property would 
 not have been taken away from the grantees, and dealt with by the friends and adherents 
 of James IV. Whereas, with the exception of those two, which may be ascribed to 
 another and later Act of Parliament, there is not one single instance in which the value 
 of 1/. Scots appears to have been taken away from any one of those grantees by virtue of 
 this Act Rescissory. 
 
 But, my Lords, when we are considering the effect de /acto~(and I am calling 
 upon your Lordships — not to come to that conclusion — I do not, sincerely, contend for 
 that in point of fact, that this Act Rescissory was deemed altogether null, and that no one 
 either by virtue of it, or upon any other ground, impeached or questioned the rio-ht of 
 the grantees of James III., — I do not contend for that, because history shows that, while 
 on the one hand those grantees, whenever they dared, stoutly maintained their claim to 
 
 the thing granted— especially the Duke of Montrose stoutly maintained it I quite 
 
 admit that those rights and titles were denied by those who adhered to James IV. who 
 sought to give effect to the different Acts, whether of Parliament or Council, passed in that 
 King's name)— I say we need not refer to the Act Rescissory ; we find throughout, wherever 
 property is taken away, it is just as often against law, and even without any colour of 
 law. so that it cannot be pretended to be under the Act Rescissory,— and it is here 
 
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 I pray your Lordships' attention, in order that we may see the character of the times, and 
 whether your Lordships are to suppose that it was under the authority of an Act of 
 Parliament, and nothing but an Act of Parliament, that those customs were taken away 
 from the sixth Earl of Crawford at the death of the Duke of Montrose. I pray your 
 Lordships to remember the proceedings which took place as to the Duke of Montrose 
 himself with regard to the Sheriffdom of Forfar. What were the circumstances there ? 
 — and we are upon a question of fact how far this Act Rescissory operated practically 
 de facto. We are upon the question whether it was the Act Rescissory or the lawless 
 power of the nobles of that time, through which the adherents of James III. were 
 despoiled of their property. Look to the case of the Sheriffdom of Forfar. There was 
 that hereditary office ; I know not whether of much worth, but certainly a high dignity, 
 upon which those possessing it had always set a great value, which belonged to this 
 distinguished family of the Earls of Crawford, and which had been their property too 
 long to 'be reached by any Act that, those adherents of James IV. could have passed, — 
 yet they set their eyes and wishes upon this hereditary Sheriffdom. There was the 
 Lord Gray, an ancestor of the Noble Lord now in existence, who determined to take it 
 away by force or by terror, this hereditary Sheriffdom from the Lindsay-Crawford 
 family. The Duke was undoubtedly a powerful man, and he effectually and successfully 
 withstood the aggressions of his enemies on many occasions, and with regard to much of 
 his property ; and that he did so is to his honour, for he never would give up his title. 
 He used it in the face of his enemies, and of the King himself; but, as to this Sheriffdom, 
 they were too strong for him. He was in possession of this office, and they wished to 
 confer it upon a favourite of their own — Lord Gray — and accordingly, they compelled 
 him to resign it. Your Lordships are aware of the Protest which he made, that he went 
 before his notary, and your Lordships are aware of the terms of the Protest. He insisted 
 that this was done against his will — that it was under a promise of complete remission 
 of all offences against the King, enough of itself to account for their having ceased to 
 attack him as to this dignity ; but in spite of this Protest and the object of it — in spite of 
 his efforts — in spite of law — in spite of right — he was compelled to resign the Sheriffdom 
 into the hands of the King, and the King granted it to his favourite. Lord Gray. Am I 
 to be pressed in argument, — I consider it all immaterial — because after all it is the 
 construction of the Act which must prevail and determine this branch of the case, — but 
 am I to be pressed by this, that the powerless Earl of Crawford found that his enemies 
 extorted from him and plundered him of this little property, granted with the Dukedom 
 to his father — is it to be said, because that was done, that it was lawfully done — when 
 we find the King's spoliation of Innes and Lindsay of Crawford in the very first year of 
 James IV., and that in the same year he or his adherents were powerful enough to 
 compel the great Duke of Montrose, against will, and against law and justice, to part 
 with this hereditary dignity or office, and pass it over to Lord Gray ? 
 
 The result, my Lords, is this : Not that, where we find property was taken away 
 from one man and given to another, perhaps allowed to be enjoyed by the father, and 
 then taken away from the son, that was done lawfully under the Act — we need not 
 refer to the Act at all : — It was done in those times when lawless power prevailed against 
 honesty and justice, and when might overcame right. Such was the character of those 
 acts of spoliation done in the case of Innes and Lindsay of Crawford ; and done in the case 
 of the Duke of Montrose, in respect of the Sheriffdom of Forfar ; and also in respect of 
 the lands and customs of Kinclevin and Montrose, against the sixth Earl of Crawford, 
 upon the death of his father, the Duke of Montrose. I cannot pass from this Protest of 
 the Sheriff" of Forfar without troubling your Lordships with a single observation upon 
 the instrument itself. A great deal has been litigated between us as to whether it 
 
 2 O 
 
( 284 ) 
 
 is the effect of this document to show that the Duke insisted upon the dignity which 
 had been granted to him under the Patent of ] 488 ; or whether, on the other hand, that 
 dignity was treated as having been taken away from him, and the Patent annulled. I 
 have already given reasons why I think that question does not arise, because everything 
 depends upon the construction of the Act of Parliament. It is only where the words 
 are so doubtful as to need the aid of facts to interpret them, that then we can look at 
 any such facts as have taken place after the passing of the Act ; and as to these 
 words, I trust that your Lordships will hold that this grant was not prejudicial to King 
 James IV. ; that he himself solemnly declared that it was not prejudicial to him by the 
 terms of the second Patent ; and your Lordships may, in the determination of this part 
 of the case, lay aside altogether these four documents on the one side, and the forty on 
 the other, without doing away with the effect of what we have insisted upon as an 
 undoubted fact— that this first Duke of Montrose, notwithstanding, and after the passing 
 of the Act Rescissory, bore the title and claimed the dignity, and named himself as Duke 
 of Montrose, not only privately, but publicly before his enemies and the world. We 
 have given in evidence the Procuratory of Resignation, and the Resignation itself of the 
 Sheriffdom of Forfar. There are so many documents, and there has been so much verbal 
 criticism, that I feel I ought to pass over a very great deal, and I will do so, referring 
 only to this one point, which your Lordships will take perhaps as an example of the 
 state of the question between the Crown and ourselves. The documents which we gave 
 in evidence were the Procuratory of Resignation and the Resignation by the Duke of 
 Montrose. The first authorizes certain persons to act as his attorneys, and to resign the 
 Sheriffdom into the hands of the Crown ; and then came the instrument by which those 
 persons did effect that Resignation. That is a later instrument, and appears to have 
 been actually witnessed by several of the most distinguished and powerful nobles among 
 the adherents of James IV., and James IV. himself seems to have been a party to it. 
 The Resignation is, in fact, into his hands, and it is under that Resignation alone that he 
 could fulfil his cherished object of dealing with this Sheriffdom, and conferring it upon 
 Lord Gray, — but before these nobles, and before the King himself, the Duke called 
 himself and named himself as Duke. We thought them of some importance, and have 
 adduced them in evidence accordingly. My learned friends, feeling the force of this 
 evidence, attempt to nullify it in this way. They say these are not the real documents ; 
 these are not the real Procuratory and Resignation which took place as part of the trans- 
 action. And why do they say this ? They say that these instruments purport to have 
 been made at the Castle of Hailes, which we understand to be some distance from 
 Edinburgh, to the east, in East Lothian, whereas they say the resignation really took 
 place at Perth ; and they add that it took place, not on some day in November, in which 
 month those instruments bear date, but on the 6th of December, at another place, and at 
 a different time. How do they prove this ? First they say we ought to have produced 
 the instrument— the grant which completed the transaction. We could not, and I would 
 say we would not, produce this instrument; and I now tell your Lordships why. 
 Because in this, and indeed in all the instruments where the Resignation is referred to, it 
 is, as I hope I shall satisfy your Lordships, incorrectly and erroneously referred to, and the 
 instruments state that which is untrue. Here are five documents coming out of Lord Gray's 
 charter-chest, which constituted his muniments of title, which constituted the only title he 
 or his ancestors possessed to an office of great dignity, which they enjoyed for many cen- 
 turies; and it appears in one of those documents that the Procuratory and the Resignation 
 are said to have been executed at Perth ; and therefore, say my learned friends, this proves 
 that those documents which you produce are forgeries. How stands the fact ? We find 
 indeed in one of the documents which they produce that it recites 
 
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 Lord St. Leoiiards. — I do not think the Attorney-General said they were 
 forgeries. 
 
 Mr. Hope Scott. — I think he suggested that they might have been intended to 
 be used. 
 
 Sir FitzRoy Kelly. — The truth is, it might well be pardoned if I made any 
 mistake in this matter, for this reason, that all that my learned friends can urge upon 
 this subject is simply conjecture, as I will show your Lordships ; and what one of my 
 learned friends says to-day, another of my learned friends might vary from to-morrow, 
 and a third would put forward a third conjecture. I am quite sure I would not have 
 used that strong word, but that I got it from one of my learned friends, — whatever may 
 be their conjectures, let us see how the fact stands. In one of the instruments produced, 
 one of the five, it is recited that there was a Resignation at Perth, and the question is, 
 whether that recital is correct, or is incorrect — whether it is not a mistake, and what is 
 the way of ascertaining it. If I produce an instrument relating to any transaction which 
 refers to another instrument, and there is a recital that that other instrument was 
 executed in London, and it is conjectured or suggested that it was not executed in 
 London, but it was executed at Liverpool, what is the way of settling the question ? 
 Why, produce the instrument itself. We have done it. Here is an insti-ument which 
 says this Resignation was executed. It recites only that it was executed at Perth. We 
 say that that is a mistake, that the instrument was executed at Hailes. We produce the 
 instrument itself, and here it is ; and just as much a muniment of title, just as ample, 
 just as much an integral and indispensable part of the title of Lord Gray, as any one of 
 the five instruments. Lord Gray has thus five parts of a Deed — five instruments 
 constituting one transaction : the Procuratory of Resignation, the Resignation, the Grant 
 of Confirmation, and so forth. He has five instruments constituting his title. In one of 
 the later ones two of the former instruments are referred to — incorrectly recited, as we 
 say — they say, correctly recited. We produce the instruments; and my learned friends, 
 who, upon this point as upon many others, are driven to strain the point, and are put in 
 very great distress for an argument, can find no other — I will not say forgery — but they 
 say that those are not the instruments that were acted upon and really executed. 
 The answer is, there are no others. Lord Gray had no title — if these are not the instru- 
 ments of Resignation — Lord Gray had no title to the office which he and his posterity 
 enjoyed for three or four centuries. Therefore it shows how very cautious, if I may 
 presume to say so, your Lordships should be, in admitting the statement made by my 
 learned friends in the warmth of argument which has been infused into them in this 
 Case. They say again these are not genuine instruments, because the real Resignation 
 was executed on the 6th of December, and this purports to have been executed on the 
 6th of November. That is a purely gratuitous assumption of my learned friends. And 
 there is no more in the instruments they produce to raise a doubt about the date of the 
 Procuratory and the Resignation than there is to show that the Duke of Montrose of the 
 present day has committed high treason. 
 
 My Lords, I only say this ; my learned friends, taking, as I say, a very exaggerated 
 and almost passionate view of some of the points of this case, throwing themselves into 
 the cause as if they were struggling before a jury for a verdict in some civil case, really 
 from time to time urge points in a way which I do not think quite fitting in a case like 
 this; particularly the law officers of the Crown, whose business it is to assist this 
 Committee, but not to act as partisans in an ordinary cause. But the case stands thus : 
 there is the Procuratory of Resignation, and the Resignation itself, and three further 
 instruments founded upon that Resignation, the whole five vesting the title of the 
 Sheriffdom in Lord Gray, and these instruments appearing before your Lordships, they 
 
 2 02 
 
( 286 ) 
 
 find that two of them contain pregnant and cogent evidence, that, while on the one 
 hand his enemies may have denied him this dignity, the Duke himself insisted upon 
 and persisted in his claim and his right to that dignity. We show, by producing these 
 two documents, that he is named Duke of Montrose before his enemies and almost 
 before the King himself. And they seek to get rid of it by saying they are not genuine 
 documents, not those at least that were acted upon, because, they say, we show, by 
 reciting a subsequent deed, that the real documents were executed at a different time, 
 and at a different place. 
 
 Lord St. Leonards. — I thought the instrument, supposing it to be genuine^ was 
 produced to show that the title of the Duke was not only claimed^ but it was acceded 
 to by the Crown accepting that resignation. Now, the two documents which have been 
 produced by the Crown, you will observe, not only refer to a different date the Act of 
 Resignation, but to a different place. They do not, in point of fact, give a different 
 date, except one considers them as part of the same transaction ; but they state them to 
 be at a different place ; but they are both to the Earl of Crawford, both of the docu- 
 ments, both are only to the Earl of Crawford. 
 
 Sir FitzRoy Kelly. — That proves what I say, that the title was insisted on by the 
 Duke himself, which right was questioned and often denied by his enemies. I quite 
 admit that — 
 
 Lord St. Leonards. — But you are supposing them all to be regular documents. 
 They all come from the same custody. And you took one which suited your purpose, 
 and the Crown took those that suited their purpose. Now, the House has ordered 
 the documents to be printed, and the result seems to be that the Duke, in making 
 his Resignation, called himself Duke ; and the Crown, that accepted that Resignation, 
 acted upon the two documents, and called him the Earl of Crawford. 
 
 Sir FitzRoy Kelly. — Pardon me, my Lord, not in accepting it — I quite agree, in 
 acting upon it. It is what I have admitted. 
 
 Lord St. Leonards. — I consider acting upon it to include acceptance. 
 Sir FitzRoy Kelly. — No, my Lord. With submission it would have been per- 
 fectly competent to the Crown to have said, — I will force you to resign this sheriffciom 
 in order to grant it to my favourite Lord Gray. You shall not resign it by the name of 
 the Duke of Montrose. But he set his enemies at defiance, Avhen the question was as to 
 whether he should insist upon his dignity. 
 
 Lord St. Leonards. — You can hardly say that ; because, whilst he resigned it, he 
 made a Protest and executed it even before his notary, in which he did privately 
 state what he did not venture to state publicly. It is no matter of reproach to him. 
 
 Sir FitzRoy Kelly. — I think your Lordship is rather misapprehending the effect 
 of that Protest. I must here appeal to your Lordship's candour, — not that I deem 
 it very important, because it only goes to show what was asserted on the one side, 
 and either disapproved or denied on the other, and it cannot affect the great question, 
 which is, how the Dignity stood in point of law. But your Lordship will be kind 
 enough to recollect with respect to this Protest, that it was not a Protest verbally con- 
 cerning his Dignity, his title as Duke of Montrose. 
 Lord St. Leonards — I am aware of that. 
 
 Sir FitzRoy Kelly. — It was a Protest as to the forced resignation of the Sheriffdom 
 itself. Thus the Protest has nothing in the world to do with the question of using the 
 title of Duke in the transaction between this Duke and the King. 
 
 Lord St. Leonards.' — No ; you are talking of his disregarding the opinion of the 
 Crown. 
 
 Sir FitzRoy Kelly.- — Yes, my Lord. 
 
( 28? ) 
 
 Lord St. Leonards. — I say that he did privately what he did not venture to do 
 publicly ; although I am not blaming him at all. 
 
 Sir FitzRoy Kelly, — All I contend for, my Lord, is this ; it may be that he felt, 
 and indeed it is clear that he did feel, that he was not strong enough to resist this act of 
 spoliation, — the taking away of the hereditary Sheriffdom from his family. He, there- 
 fore, did privately protest against the act ; but with regard to the assumption of the 
 Dignity, there is no evidence whatever that on any single occasion the Duke of 
 Montrose ever assented directly or indirectly to the act by any other name or title than 
 that of Duke of Montrose. In every act, of which we have any record or evidence at all, 
 to which he was himself a party, he styled himself openly and boldly the Duke of 
 Montrose ; and that just as much in despite of the Act Rescissory, before the date of the 
 second Patent, as after, when under any circumstances — 
 
 Lord St. Leonards. — There is no instance in which that assumption by him was 
 recognized by the Crown. 
 
 Sir FitzRoy Kelly. — I am not speaking of the recognition, but the Crown accepts 
 from him the resignation by that title. 
 
 Lord St. Leonards. — The Crown disclaims it by the accounts that have been pro* 
 duced, by calling him Earl of Crawford. 
 
 Sir FitzRoy Kelly. — Be it so, my Lord ', but the proposition for which I contend 
 as the fair result of the evidence in this case is, that he insisted upon the dignity, though 
 his claim was not recognised by his enemies or by the Crown ; but what I do say is 
 this, that the Crown did, by accepting that resignation, make it the foundation of the 
 grant, — and no doubt for the same purposes the Duke made his Protest {sic), and the 
 Crown did, for the sake of getting the Sheriffdom, accept the Resignation by that title. 
 
 Lord St. Leonards. — When a Resignation is accepted, is there any act of accept-^ 
 ance except by giving away the thing accepted to another person ? 
 
 Sir FitzRoy Kelly. — Not at all, my Lord, it is quite obvious. 
 
 Lord St. Leonards. — The recital in the grant differs from the Resignation pro- 
 duced, and the inference therefore is, that there is another Instrument of Resignation 
 corresponding with the grant. 
 
 Sir FitzRoy Kelly. — No, my Lord. That, like much else, is statement, but not 
 the truth : it is not so. 
 
 Lord St. Leonards. — It differs in point of place and in respect of title. 
 
 Sir FitzRoy Kelly. — No. Pardon mCj my Lord. There is really no difference at 
 all except by what is only a mistake. They have put Perth instead of Hailes. There 
 is no recital of any Resignation or of any Instrument at all varying in the slightest 
 point from the Instrument produced. 
 
 Lord St. Leonards. — I do not say that there is ; but the grant does not correspond 
 with the Instrument of Resignation as produced, and therefore the inference is, on the 
 part of the Crown, that there must have been some other Instrument of Resignation, 
 
 Sir FitzRoy Kelly. -^Thej say so, my Lord. 
 
 Lord St. Leonards. — In one place he is described as Earl of Crawford, and in the 
 other as Duke of Montrose. 
 
 Sir FitzRoy Kelly. — Yes, my Lord, and the fair inference is this, that he Would 
 not make this Resignation by any other title, and the Crown did accept that Resignation^ 
 and it is referred to as the ground upon which alone the Crown could grant it to Lord 
 Gray. Surely I may say this, that your Lordships are not to take for granted any- 
 thing that my learned friend the Attorney-General or the Lord Advocate chooses to 
 assert. 
 
 Lord Lyndhurst.— The question is, whether the inference drawn by th<! Attorney- 
 
( 288 ) 
 
 General is a correct one or not. It is for their Lordships to consider, and Counsel are 
 not to dictate to their Lordships as to what inference is to he drawn. 
 
 Sir FitzRoy Kelly. — Here are five instruments, and the only difference between 
 any of the three last, and anything to be found in the two first, is that the third states 
 the first and second to have been executed at Perth ; and when the first and second are 
 produced, they are found in all respects to be the instruments and to have the effect 
 necessary for the transaction in question, except that they purport to be executed, not at 
 Perth, but at Hailes. It is most truly for your Lordships to draw the inference ; and the 
 only one I can submit is — and it is what continually happens in these transactions — that 
 the recital as to the place is a mistake ; and I think, my Lords, that I proved beyond 
 mistake. Lord Gray was no partisan of the Duke of Montrose ; he had no interest in 
 preserving the muniment or memento of this dignity in the Duke of Montrose. Lord 
 Gray was the person who was taking this Sheriffdom, and under circumstances in which 
 at some distant time (as actually occurred) he might have to defend his title ; and 
 inasmuch as, therefore, no grant of this SherifTdom could have been maintained for a 
 moment in a court of law unless it proceeded upon a real and true Resignation, which 
 had in fact been made, it was most essential to Lord Gray that he should possess himself 
 not only of the King's grant, but of the very Resignation itself^ which alone could give 
 validity to that grant. What was done ? Lord Gray possessed himself of, and has kept 
 from that time to this, the two instruments granted by the Duke, — the very instruments 
 which we now produce before your Lordships. Then, my Lords, I quite agree that it is 
 entirely for your Lordships to draw your inferences from the instruments which appear, 
 of facts of which we have no knowledge. But I ask, what is the ground for supposing 
 that Lord Gray was stupid enough in those times to discard an Instrument of Resignation 
 executed by this individual, and to take some other instruments which were not the 
 foundation of the grant, and thus introduce a fatal defect into his own title ? And I 
 pray your Lordships to remember this — I do not know whether it is stated in the papers ; 
 I think it is, on both sides of the question — that the right to this Sheriffdom was in 
 litigation between the Earl of Crawford and the Lords Gray for a very great length of 
 time, I think for more than half a century ; and during that time it can scarcely be 
 doubted that all these documents underwent consideration, and were made the subject of 
 argument. It appears to be clear to demonstration that Lord Gray would have taken 
 those documents that really constituted his title, and those are the ones he has produced. 
 He is no friend of ours ; the Lords Gray of this time were enemies of the Dukes of 
 Montrose, and they would not have taken into their hands a grant in which he called 
 himself the Duke of Montrose, for the sake of asserting his title. We must take the case as 
 we find it ; and we find— here is an instrument, which certainly does refer to certain other 
 instruments, as if they had been executed at Perth. But the question is, whether that is 
 a correct or an incorrect recital. We have the other instruments themselves, — the same 
 nobleman that produces the one produces the other. And here they are — constituting one 
 transaction, and constituting one title before your Lordships; and we find that the 
 recital is erroneous ; that they were executed, not at Perth, but at another place. I 
 
 would caution your Lordships against taking as for granted what is stated at the Bar 
 
 which is merely a matter of inference, — there is nothing to show that those documents 
 were dated otherwise, and nothing upon which to found a suggestion that any other 
 Resignation ever was executed or thought of, except this one, that they call it Perth 
 instead of Hailes. My Lords, I ventured to say that the Duke here insists upon his 
 dignity, and that m that very instance in which he so insists upon it, all his worst and 
 most powerful enemies appear as witnesses. And it is a grant made by him directly to 
 the King himself; and why I added that the King himself accepted that Resignation 
 
( 289 ) 
 
 was because, in the first place, without that, which is the only Eesignation in existence, 
 the grant to Lord Gray would have been of no effect. And in the grant to Lord Gray 
 in the Instrument which the Claimant produces, he uses these expressions, "■ Quibusquidem 
 " donatione, resignatione, &c. sic factis, receptis, et admissis, praefatus dominus noster Rex 
 " totum et integrum dictum officium Vice - Comitatus de Forfar, &c., provido viro 
 " Willielmo Liddale, tunc presenti," and so on. He therefore makes the Resignation 
 the very foundation, and the express foundation, as was necessary by law, of the grant to 
 Lord Gray. It comes to this : — If any question ever arose in any court of justice, as to 
 whether the particular instrument was executed, why surely, if it were recited to have 
 been executed at one place, but alleged to have been executed in another, the true way 
 of determining the question would be to produce the instrument. We do produce it, — 
 and there is nothing but the argument of the Attorney-General which leads to the 
 suspicion that there was any other instrument ; nothing but the recital which appears 
 here, which is a very common error ; and when we find that those two instruments appear 
 as part of the title, I apprehend that they are proof conclusive that they were so 
 received. 
 
 I now, my Lords, pass on to other branches of the subject,^ — not at all wishing to 
 press upon your Lordships a single point beyond what the case will bear, and the in- 
 ference to which the documents necessarily lead. And, while I admit that no document 
 which we have produced can prove conclusively that the Duke of Montrose was univer- 
 sally admitted to be the Duke of Montrose (notwithstanding tlie Act Rescissory) under 
 and by virtue of this Patent of 1488, on the other hand I venture to insist before your 
 Lordships, that there is nothing in the world to show anything more than, from time to 
 time, a sort of protest against, or a denial of, his title by the Duke's enemies, or by the 
 King himself And as to the way in which the property was dealt with, the whole of 
 the evidence in the cause shows, I think, to demonstration that, where an Act of Parlia- 
 ment existed, which would legalize the spoliation of an adherent of James III., no doubt 
 that Act of Parliament was resorted to, as was the case with the Act of 1493 ; but where 
 no Act of Parliament existed, as in the case of the Sheriffdom of Forfar, as in the case 
 of the grant to Innes and to Lindsay of Crawford, there an act of power, a lawless act of 
 power, was substituted for the Act of the Legislature ; and the parties, who had no 
 power to resist, were plundered and despoiled at the pleasure of the King, or those who 
 surrounded him at the time. And, therefore, the result of the whole of this evidence, 
 which, for the reasons I have urged, I conceive to be immaterial in the case before your 
 Lordships, is to show that, while on the one hand the Duke insisted upon the title, bore 
 the dignity, and never did any public or private act except by that name, style, and 
 dignity, on the other hand I freely admit that his enemies refused his title to him, failed 
 to recognize it, and that the King and his adherents together succeeded, not as regarded 
 him alone, but as regarded others who were grantees of James III., and as regarded his 
 son, after his death, when his great power could not be brought to bear against them, 
 against law, and without any colour of law, in plundering those persons of their 
 property. 
 
 My Lords, I think there will be no doubt upon the point I am adverting to, 
 namely, that those two instruments of Resignation are real and true instruments, and the 
 only two that are or ever were in existence, because your Lordships need not now be 
 informed that in Scotch conveyancing and Scotch law the Resignation, upon which a 
 grant of this nature is founded, is really as essential a part of the title as the grant itselij 
 and if Lord Gray's title to the Sheriffdom were now to be impeached — as it was in the 
 16th century — and various proceedings took place upon it — if this title were now in 
 question, and it appeared that the real instruments of Resignation upon which the grant 
 
( 290 ) 
 
 was founded were not those now produced, but some subsequently executed, it would 
 destroy the title altogether. And therefore it was quite essential to Lord Gray to have 
 the real and only true Resignations to the King, upon which the King's grant was founded. 
 And that these are the two will appear, I think, quite manifest from the note which I 
 will refer your Lordships to. It is to be found at 98a of the Supplemental Case, and in 
 that note it appears that there were various proceedings at law between the Earl of 
 Crawford and Lord Gray touching this Sheriffdom. And these very Resignations, now 
 suggested to be erroneous, to have been done away with and others substituted for 
 them, were produced and used in evidence in that very proceeding. It is impossible, 
 therefore, without upsetting Lord Gray's title altogether, to give effect to this conjecture 
 of my learned friend the Lord Advocate, and to suppose that these are not the true 
 instruments of Resignation. If they are not, the title is bad altogether, and would long 
 ago have been set aside, because the Earl of Crawford, on the ground that it was a 
 compulsory proceeding, questioned the title for more than half a century. 
 
 Now, my Lords, as to the second Patent. This second Patent undoubtedly 
 appears, for there is an Act of Parliament ; and it therefore is quite manifest that in the 
 year 1 489 James IV. regranted this Dukedom, in some way or other, to the fifth Earl of 
 Crawford, the first Duke of Montrose. A question has arisen between us, first, whether the 
 entry ol the Litera is a genuine entry, — and certainly there seems much to throw suspicion 
 upon it. It is entered in a very small space, with interlineations, and matters put into 
 the margin, and not in the way one would expect if it were a genuine entry. Again it is 
 entered between two other entries, one referring to the other as the next preceding charter. 
 A still more important doubt is raised as to whether this may not have been a grant 
 of the hereditary dignity. Upon that there is a great deal more to be said, and I cannot 
 but think that all questions which can arise upon this second Patent fall within the 
 same observation which I have applied to the documents to which I have lastly referred : 
 namely, that if this Act Rescissory did not, upon its passing on the I7th of October 
 1488, at once annul, and ipso facto annul, the dignity in question, no act done, unless 
 by Resignation — which is not suggested — even by the Duke himself, or by the King, 
 or by any other person or persons, could affect the validity of the Patent of 1488. And 
 therefore, my Lords, it really comes to this : — If the Act Rescissory did destroy this 
 dignity, why then, unless it was set up again by the Revocatory Act of 1503, there is 
 an end of the Claimant's case ; whereas if on the other hand the Act Rescissory did not 
 at once destroy the Patent, then it is still in force, notwithstanding anything that the 
 King or the Duke or both of them did, or could have done — unless by Resignation, which 
 had not taken place, and is not suggested. Therefore, my Lords, really all that can be 
 said as to the second Patent is foreign to the great question which your Lordships have 
 to determine ; and I only advert to it that I may not be supposed to admit the argument 
 or assumptions of my learned friends on this point. 
 
 My learned friend the Lord Advocate threw out a strange conjecture. He said it 
 might well be that the Duke of Montrose, displeased with his second son for having 
 been implicated in the murder, or some injury done to his brother, might really have 
 wished to prevent the dignity of Duke being hereditary in his family, and might have 
 agreed to accept this second Patent only for life. I should say that if that were so 
 one cannot account for there being no Resignation ; there being none probably suggested, 
 as being without the least plausibility of foundation {sic). If that were his intention which 
 does not appear — if, besides the grant on the part of the King, there had been actually a 
 formal acceptance and submission to this grant, as a grant of the dignity for life only, on 
 the part of the Duke of Montrose — still it would have had no legal effect, no validity, on 
 the operation of the Patent of 1488, which, notwithstanding anything done, or that could 
 
( 291 ) 
 
 be done, except by resignation, remained in force, and remains in force to this day, unless 
 annulled by the Act Rescissory. Therefore I do not know that that conjecture is worth 
 further referring to. But, my Lords, there is great reason to question the effect of this 
 entry. My learned friends have said that the Act of Parliament, which appears at page 4 
 of the printed paper (A), contained merely the name of the Duke as Earl of Crawford ; 
 and therefore cannot, by any possibility, be supposed to have recognised this title as 
 existing in him. I do not wish to carry the instrument beyond its proper legal effect. 
 The opinion may be worth nothing that I have formed. It was something like a com- 
 promise ; and it appears to me perfectly clear that the Duke never would and never 
 did acknowledge the invalidity of the Patent granted to him, either as regarded the 
 dignity or the landed property, by James III. He never did so, and there is no evidence 
 of anything approaching to such a fact. On the other hand, it is equally clear that 
 James IV., though he may have had some affection for his father's memory, and 
 some respect therefore for one of his most attached adherents, that even he never 
 was brought, by any distinct and formal act^ to recognize the validity of this Patent. But 
 it is perfectly clear that while on the one hand the Duke could not prevail upon the 
 King and upon the nobles to recognize the full force of this Patent of 1488, on the other 
 hand the nobles were not powerful enough entirely to degrade the crushed Duke ; and 
 it may well be that, as a sort of compromise on the one side and on the other, this grant 
 was made, if it really was a grant for life, and sealed by King James IV. ; and, my 
 Lords, so matters were allowed to remain ; the one insisting, and perhaps openly pro- 
 testing, and the other party not denying his title to the Dukedom, but referring it to the 
 second grant ; and so things continued down to the death of the Duke. I think it very 
 probable, looking at the history of the times, that something of that kind took place, and 
 such was the operation of the events of the times upon the minds of the different parties 
 to these instruments. Thus much is perfectly clear: — If that Patent (the first Patent) 
 remain of legal force and validity, the second could not impair it ; nothing but a Resigna- 
 tion could have that effect, and there being no Resignation (Avhether the second Patent was 
 made by way of compromise or not, even though accepted by way of compromise to let in 
 the Duke's dignity by law), it could not have that effect unless it was destroyed by the 
 Act Rescissory. But, my Lords, I was about to say that there is really great doubt 
 whether this may not, after all, have been what the King may have been disposed to 
 give to one so powerful, so respected, and so wealthy as this first Duke of Montrose, not- 
 withstanding the hostility of his own adherents, — and that is, a grant of the hereditary 
 dignity. My learned friends are in error in saying that he is not named as Duke of 
 Montrose. It is quite true, my Lords, that after the recital to which, for another 
 purpose, I have called your Lordships' attention, he is described as " David Comes 
 " Craufurdie," and so forth ; but when we come to the end it is " volens ipsum gaudere 
 " et potiri, secundum formam et tenorem carte dicti Domini nostri Regis dicto David 
 " Duci de Montross super premissa conficiende." 
 
 Lord St. Leonards. — That is after the creation. 
 
 Sir FitzRoy Kelly. — It is after the words of creation, my Lord. It is quite true. 
 As I was going to observe, the way it stands is this : — he is named in the introductory 
 part of the deed as Earl of Crawford, and he is named here alter the words of creation 
 as " dicto David duci de Montross." I merely observe that,— not as placing any reliance 
 upon it, but as showing that even this Act of Parliament is not devoid of anything 
 showing that there was an intention to create a heritable Dukedom, as my learned 
 friends contend. 
 
 Lord St. Leonards.—Thej have already, in fact, alleged the creation of the Dukedom, 
 at least for life, and it was to be granted, and Parliament came in aid of the King. 
 
 2P 
 
{ 292 ) 
 
 Sir FitzRoy Kelly. — There was nothing, my Lord, before this Act of Par- 
 liament. 
 
 Lord St. Leonards. — I am talking of the Act of Parliament ; the very Act you 
 are talking of. 
 
 Sir FitzRoy Kelly. — What I mean, my Lord, is this ; I thought your Lordship 
 referred to some instrument prior to the Act of Parliament. Now, the Act of Par- 
 liament precedes every other instrument, and all that appears by it is, that he creates 
 him Duke of Montrose, as he says " secundum formam et tenorem carte dicti Domini 
 " nostri Regis." I was adverting to these last words merely to show, what perhaps is 
 worth little, that he is named there Duke of Montrose. But your Lordships will see, also, 
 that it is according to the Charter to be made — " secundum formam et tenorem carte." 
 These, again, are words which I do not say are never, but, at all events, are rarely 
 used, except where there is to be a limitation to heirs, — " secundum formam doni " in 
 English conveyancing, and " secundum formam carte " in Scotch conveyancing, implying 
 an estate in tail, an estate in favour of heirs. Therefore, there is nothing in this Act 
 which precludes the idea that that Charter which was intended to be executed, and 
 which was, no doubt, executed afterwards, was to be a Charter granting the dignity for 
 some estate beyond the life of the party. And why I press that upon your Lordships is 
 this : — When we come to the ' Litera,' as it is called — supposing it to be a genuine instru- 
 ment — supposing it to be a genuine entry on the Roll — it is, at all events, a mere 
 abridged abstract of the Charter itself — it is perfectly consistent with this as we find 
 it, that there was a limitation to heirs after that grant to the Duke himself for life. We 
 give in evidence several documents very much in the same form where both lands and 
 dignities are granted " pro tempore vitse," or by some words only giving a life estate, and 
 afterwards in a separate clause comes a limitation to the same class of heirs. Now, that 
 may well have been here, and if that were so — 
 
 Lord Lyndhurst. — I asked the Solicitor-General to give me one or two instances 
 of that. 
 
 Sir FitzRoy Kelly. — T will give your Lordship one. There were several referred 
 to in the Case, and I cannot do better, I think, than give your Lordship one which seems 
 almost identical with it, and this is a grant to David Lindsay of Glenesk, of the 2nd of 
 January 1390. 
 
 Chairman. — Where is that ? Is it in evidence ? 
 
 Sir FitzRoy Kelly. — Yes, my Lord, it is, but not in the book (the Cases). It is 
 very short. I will hand your Lordships a copy of it. It is under the Great Seal, 
 Roll 9, Kings Robert II. and III. "Carta pro domino David de Lyndesay de 
 " quadraginta libris custumi burgi de Aberdeen." It proceeds thus ; — " Robertus, Dei 
 " gratia Rex Scottorum, omnibus probis hominibus totius terre sue, clericis et laicis, 
 "■ salutem. Sciatis nos dedisse, concessisse, et hac presenti carta nostra confirmasse 
 " dilecto fratri nostro David de Lyndesay." Then go on certain other matters after the 
 grant to him, with a full description of the thing granted, " pro toto tempore vite sue," the 
 very words in this case ; and more fully under the tenendas and habendas — " Tenendas 
 " et habendas eidem David et heredibus suis," &c. &c. 
 
 Then follows the limitation to heirs.— Aly learned friend, who is not at liberty to 
 address your Lordships, has put into my hands the document itself, and he thinks that 
 the whole of it, taken together, would show this— that these words," pro toto tempore vite 
 " sue," are used in some other way. I will say upon that, that I will have the whole 
 document itself fairly copied out, and either printed and a copy supplied to your 
 Lordships, or I will have copies made so that the whole instrument shall be laid 
 before you. 
 
( 293 ) 
 
 Lord Lyndhurst — It will be of no use giving it at a future time. We ought to 
 have it now. 
 
 Sir FitzRoy Kelly. — Then, my Lord, I will hand in now the document itself. 
 
 Lord St. Leonards. — Have you any instance of any such grant being entered in 
 the register as an estate for life only ? 
 
 Sir FitzRoy Kelly. — We have not compared, nor indeed have we had an 
 opportunity of comparing, the abridgments to which reference has been made, with the 
 original instruments which are so abridged ; and I can only say that it is very 
 remarkable that this one of the Dukedom of Montrose is the only instance of a dignity 
 Avhich is abridged at all — the one single instance. 
 
 Lord St. Leonards. — They deny that it is abridged. 
 
 Sir FitzRoy Kelly. — My Lord^ it is clearly abridged. 
 
 Lord St. Leonards. — I know it is in one sense, because there is an et cetera. 
 
 Sir FitzRoy Kelly. — My Lord, it is even more than that, because your Lordship 
 will see that were you to apply the same mode of abridgment — 
 
 Lord St. Leonards. — I was only asking you for the fact. 
 
 Sir FitzRoy Kelly. — My Lord, we have not had an opportunity of comparing 
 these abstracts with the original instruments, so as to meet your Lordship's inquiry, and 
 show to what extent the abridgment has taken place. We say this, that were we to 
 apply the same mode of abridgment which appears here — that is, after the introductory 
 words being set out at full length, and after the words " Ducatum de Montrose nuncu- 
 " pandum, ac tenendum in libera regalitate"^ — if, then, we introduced the "e^ ce^fera," 
 and, instead of setting forth the Tenendas clause at the end, we were to substitute, as is here 
 done, " cum omnibus clausulis secundum formam carte "■ — which is the only way in which, 
 whatever number of clauses it may have contained, it is at all referred to here — if that 
 were done as to the instrument before your Lordships, it would omit altogether the 
 limitation to heirs which that instrument undoubtedly contains. 
 
 Lord Lyndhurst.- — What are the words in the ' Litera ? ' 
 
 Sir FitzRoy Kelly. — After the grant " creando^ipsum Ducem de Montrose," and 
 so forth, then follows the property grant ; after that there is no Tenendum clause ; it is 
 merely the word " tenendum " introduced. 
 
 Lord Lyndhurst. — Then follows the " et cetera." 
 
 Sir FitzRoy Kelly. — No, my Lord, it is thus, — after the property it is " cum 
 " molendinis, multuris, et piscariis earundum, ac cum omnibus aliis pertinentibus, 
 " tenentibus, et tenandriis, Regi etiam de dicto dominio pertinentibus, jacentibus infra 
 " vice-comitatum de Perth — creando omnia predicta in unum merum et liberum Ducatum 
 " de Montrose nuncupandum, ac tenendum in libera regalitate," — then follows the 
 " et cetera," and then " cum omnibus clausulis secundum formam carte, ac cum itine- 
 " ribus." 
 
 Lord Lyndhurst. — Is that an exact copy of the original ? 
 
 Sir FitzRoy Kelly. — It is an exact copy, my Lord, of the ' Litera ;' that is, the entry 
 on the Roll ; quite exact. 
 
 Lord Lyndhurst: — Now read the one which was just read ; just those two parts. 
 
 Sir FitzRoy Kelly. — The words are here, after the grant "pro toto tempore 
 " vitse sue impendendo, quadraginta libras sterlingorum de magna custuma burgi de 
 " Aberdene," and so on, "tenendas;" then here follows after the grant, "tenendas et 
 " habendas eidem David et heredibus suis," &c. Then follows the other matter, but 
 this is itself only an abridgment, because we leave out all the subsequent — 
 
 Lord St. Leonards. — How were you reading it ? 
 
 Sir FitzRoy Kelly. — I was reading, my Lord, so much of this grant of these 
 
 2P2 
 
( 294 ) 
 
 customs to Sir David Lindsay of Glenesk, and I was reading it for this purpose : — If we 
 were to abridge the grant in the same way in which this Charter which is not forth- 
 coming is abridged, viz. this ' Litera,' why we should have a grant for life. We should 
 not have the Tenendas, and not having thatj therefore you would not see the limi- 
 tation. 
 
 Lord St. Leonards. — That is not so, and for this reason : — This ' Litera ' comprises 
 the lands, which the grant of the dignity did not ; but the Act of Parliament was con- 
 fined to the dignity. When you come to the 'Litera,' you find first of all that it was 
 given to the Earl for the whole term of his life^ and then the grant of the lands ; and it 
 is not till after the grant of the lands that you have the " et cetera" and then there is a 
 separate subject. 
 
 Sir FitzRoy Kelly. — What I mean, my Lord, is this : — There is here no Tenendum 
 or Tenendas clause at all in this ' Litera ;' and if, therefore, the Charter of which this 
 ' Litera ' is an abridgment contained a Tenendum or Tenendas clause, whether to the 
 Duke and his heirs or to the Duke only — if it contained any clause at all — that clause 
 does not appear, and your Lordships are, therefore, in ignorance of what may have 
 been within it. I do not dwell any further upon this part of the case, because, as I 
 have observed, I conceive (but it is at best but a speculation) — looking, however, at the 
 historical events — I conceive that this was really a grant, whether for life or a greater 
 term, it was a grant by King James IV., by which he sought in some way to compromise 
 the matter, to recognize the services and merits of this Duke of Montrose; and what- 
 ever may have been its terms, whether a grant for life, or a grant for any other time, it 
 could not, unless the Act Rescissory had done so already, derogate from the legal effect 
 of the grant of James III. 
 
 Now, my Lords, before I come to the two remaining points of the case, the 
 authorities of the Duke of Norfolk's Case and the Glencairn Case, I may make an obser- 
 vation upon the class of documents adduced on the one side and on the other with a 
 view to this question. They say, the Duke was occasionally termed Earl of Crawford 
 after the date of the Patent — it is, therefore, to be inferred that the Patent had been 
 destroyed by the Act Rescissory. Of course, my Lords, without repeating it, the same 
 observation applies to this as to every other jDart of the case. If the Act Rescissory did 
 not rescind the grant, no mode in which the Duke or Earl of Crawford may afterwards 
 have been named would affect it. But, my Lords, really with regard to the point itself, 
 I cannot but think that it is utterly unworthy of your Lordships' consideration. The 
 point is, that this Duke is said to have been named Earl of Crawford, as well after the 
 grant as before the grant. All history, the Rolls of Parliament, and all the documents 
 which constitute the private transactions of importance among noblemen, are replete 
 with instances of that kind — the mention of a nobleman having a higher title by his 
 lower title. Even in this very case of the Dukedom of Montrose, it is very true he is 
 mentioned in the Rolls of Parliament, not, as my learned friends for the Crown have 
 observed, at a time when he was present to be a party to the mention of his name, but 
 he is named as being put on a commission as Earl of Crawford, and no doubt after the 
 date of this Patent. But so he is, over and over again, mentioned in various instruments 
 as Earl of Crawford after the date of the second Patent, when he was undoubtedly Duke 
 of Montrose. These very Exchequer Rolls, which my learned friends for another pur- 
 pose have adduced, repeatedly mention this Duke of Montrose as Earl of Crawford 
 years after the date of the second Patent, when in their view he was undoubtedly Duke 
 of Montrose. And in the case of the Earl of Lennox and Lord Darnley, in the case a^-ain 
 of the Earl of Glencairn and Lord Kilmaurs, the case of the Earl of Menteith and Lord 
 Menteith, and a variety of other instances, not only in the Rolls of Parliament, but in 
 
( 295 ) 
 
 all public and private transactions, it repeatedly so occurs that persons have been men- 
 tioned by the lovrer title. Therefore, upon that part of the case I shall make no further 
 observation. 
 
 My Lords, I have a word also to say now upon the authorities which are to be 
 derived from the two parallel cases to which your Lordships' attention has been called — 
 that of the Duke of Norfolk in England, and the Earldom of Glencairn in Scotland. 
 With regard to the Dukedom of Norfolk, as this part of the case has been very fully 
 argued by myself in the opening 
 
 Mr, Attorney- General. — I do not know whether your Lordships will consider me 
 as taking too great a liberty ; but I am compelled to go elsewhere. There is a piece of 
 evidence which my learned friend has put in this morning, and referred to this morning. 
 I have not had an opportunity of saying before that I am desirous of making one obser- 
 vation upon this. 
 
 Lord Lyndhurst. — Put in this morning ? 
 
 Sir FitzRoy Kelly. — Referred to this morning. It was put in evidence before. 
 
 Mr. Attorney- General. — There was a document put in to show that there was a 
 grant to the ancestor of the present Noble Claimant for life, with limitation to him for 
 life and remainder to his heirs. Upon being read a little more carefully, it will be 
 perfectly manifest, I think, to my learned friend that it is no such thing. It is altogether 
 a misconception so to represent it to your Lordships. I will read it, and I think your 
 Lordships will see that I am perfectly right in the construction I put upon it. " Robertus, 
 " Dei gratia Rex Scottorum, omnibus probis hominibus totius terre sue, clericis et laicis, 
 " Salutem. Sciatis nos dedisse, concessisse, et hac presenti carta nostra confirmasse 
 " dilecto fratri nostro David de Lyndesay de Glenesk militi, pro homagio suo nobis 
 " impenso et pro toto tempore vite sue impendendo." — It is quite clear that " pro 
 "■ toto tempore vite sue " has reference to the homage then done to the King, to 
 be rendered to him for the rest of his life. It is not a limitation at all. The 
 limitation is to be found in the Tenendum and Habendum which come subsequently, 
 running thus : — " Pro toto tempore vite sue impendendo, quadraginta libras sterlingorum 
 " de magna custuma burgi de Aberdene, persolvendas annuatim per manus customa- 
 " riorum nostrorum ibidem qui pro tempore fuerint proportionaliter ad festas Penticostis 
 " et sancti Martini hyeme." Then comes the Tenendum : — " Tenendas et habendas eidem 
 " David et heredibus suis de nobis," — clearly showing that it refers to homage, and not to 
 a limitation of the grant. 
 
 Sir FitzRoy Kelly. — My learned friend is perfectly right ; I am glad he has put 
 it into my hands, and that the error may be corrected. This is only one of several 
 documents referred to for that purpose, and in quoting this one which I unfortunately 
 selected, I have been misled by having only an abstract, and not the whole instrument, 
 to which my learned friend has referred. 
 
 Lord Lyndhurst. — Have you any other ? 
 
 Sir FitzRoy Kelly. — I read a portion of that paper to your Lordships from an 
 abstract of it only, saying that I would hand it in. 
 
 Lord St. Leonards. — That is what they call an abstract ! which made out that it 
 was a limitation for life, instead of what it really is, as there is but one Tenendum : that 
 is, to him and to his heirs. It is contrary to v/hat you stated. 
 
 Sir FitzRoy Kelly. — My learned friend is quite correct ; I had not looked at this 
 entire instrument, and when my learned friend, Mr. Hope Scott, alluded to the document, 
 I said I would put the entire instrument into your Lordships' hands. 
 
 Lord Lyndhurst.— You said you would have it printed, and it was merely on my 
 intimation that that was not adopted. 
 
 Sir FitzRoy Kelly. — Yes, my Lord. 
 
( 296 ) 
 
 Lord Lyndhurst. — Have you any other ? 
 
 Sir FitzRoy Kelly. — There are, I understand, four such documents put in, and a 
 greater number referred to, but which we have not put in evidence. 
 Lord Lyndhurst.- — But the four? 
 
 Sir FitzRoy Kelly. — I will refer your Lordship to it afterwards ; I will put it in 
 at a later period. 
 
 Lord Lyndhurst. — I referred to it because I asked the learned Solicitor-General 
 whether he had any instance to support his statement, and he said there were some, and 
 he would produce them. 
 
 Sir FitzRoy Kelly. — I am told there were four. I will not, however, detain your 
 Lordships now ; my learned friends will, I dare say, find some one or two of the others : 
 but I will now proceed with the case. 
 
 I was going to call your Lordships' attention to the case of the Duke of Norfolk. 
 It is impossible to deny that as this Act of Parliament of Henry IV., in the case of the 
 Duke of Norfolk, is the only Act of Parliament to be found, except this very Act 
 Eescissory, in the history of either country, by which, by means of one general sweeping 
 measure, it was insisted that dignities granted by a deceased King had been annulled^ — it 
 is impossible not to see that the way in which such an Act was dealt with in England 
 may assist and guide your Lordships in the decision of this case. 
 
 Now, my Lords, the case of the Duke of Norfolk was this. The dignity of Duke 
 of Norfolk, with a number of other dignities, having been granted in the last year of 
 his reign by Richard II., an Act of Parliament was passed in the reign of his successor, 
 Henry IV., repealing all the Acts and proceedings of that last Parliament of Richard II., 
 under which Act it was insisted that the grant of this dignity also was repealed and 
 annulled, and that was the question which at last came before the Parliament in the 
 subsequent reign of Henry VI. Now, my Lords, it was held by the legal tribunal to 
 which the question was referred — a tribunal entitled to every respect, and the highest 
 authority — that the Act did not repeal the grant of the dignity, and the grounds were 
 given, one of which, at least, strikingly bears upon the present case ; namely, that a 
 dignity granted by the Crown to a subject is not repealed by an Act of Parliament 
 which does not name the dignity, but which only in general terms repeals the pro- 
 ceedings of a prior Parliament. But the way in which my learned friend, the Attorney- 
 General — and it is that only with which I shall deal now — the way in which the 
 Attorney- General has sought to nullify this authority of the Duke of Norfolk's Case, 
 is this : — He says that the case of the Duke of Norfolk is no authority, because the 
 Dukedom of Norfolk, although granted by King Richard II. in Parliament — that is, 
 granted in the Parliament so as to give to it additional solemnity and lustre — yet was 
 not a grant by Act of Parliament. It was not the Act, he says, of the last Parliament 
 of Richard II., and so the repeal of it was not eflFected by the Act in question; and, 
 therefore, the proceedings in relation to the Dukedom of Norfolk are no authority as to 
 this Act Rescissory. 
 
 Now, my Lords, that depends upon this question : — Was the grant of the dignity, 
 by Richard II., of the Dukedom of Norfolk, merely an act done in Parliament by the 
 Crown, or was it an Act of that Parliament, and therefore just as much repealed as any 
 other Act by the General Repealing Act of Henry IV. ? This depends entirely upon the 
 authority of the Prince's Case in Coke. The Prince's Case in Coke contains several resolu- 
 tions, and among others, one is relative to the Dukedom of Cornwall, as created by Parlia- 
 ment in the reign of Edward III. ; and it was held in the Prince's Case, that the Dukedom 
 of Cornwall was created by an Act of Parliament, and the Patent creating'that Dukedom 
 had the force and effect of an Act of Parliam.ent. It was truly observed by a noble 
 
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 Lord then present, that that decision had been questioned. My Lord, it has •, or rather 
 doubts have been expressed upon the point ; but I may observe, that so far from its being 
 open to question now, the Dukedom of Cornwall is held by the Prince of Wales now 
 under that Act of Parliament. But with regard to the point more immediately before 
 your Lordships now, namely, the question whether the grant of the Dukedom of Norfolk 
 by Richard II. was by Act of Parliament, the resolution in the Prince's Case, which 
 settles that question, has never been open to the slightest doubt or suspicion. It was by 
 a subsequent resolution, by which it was there held, that the words " by authority of 
 " Parliament," in an Act or Charter, are sufficient to make it an Act of Parliament. 
 After saying that there are many examples "that Acts of Parliament do go in the form 
 " of the King's Charter," it says : " And it was resolved, that these words in an Act or 
 " Charter, 'by authority of Parliament,' are sufficient to make it an Act of Parliament." 
 Then a distinction is taken, that a Patent or Charter contended to be an Act of Parlia- 
 ment, where it appears to be by the consent of the Lords Spiritual and Temporal and 
 the Commons, is an Act of Parliament ; and where it is the Lords only or Commons 
 only, that it has not the force of an Act of Parliament. Then, applying that doctrine, 
 Avhich has been quoted from the time of Lord Coke to this time, to the grant of the 
 Dukedom of Norfolk, the very Patent itself was produced in Parliament and formed 
 one of the grounds of the decision of the tribunal in question in the reign of Henry VI. 
 And by that Patent, read in full to their Lordships, it appears that it was a grant by 
 the King with the assent of the Lords and with the assent of the Commons — " de assensu 
 " Prelatorum, Ducum, INIagnatum, et aliorum Procerum, et Communitatis regni nostri 
 " Anglic, in instanti Parliamento " assembled. Therefore, my Lords, that Patent by 
 Richard II. had, upon the clearest authority, all the force and effect of an Act of Parlia- 
 ment, and consequently would have been necessarily repealed by the Act of Henry IV., 
 the Act in question, but for the construction put upon it,^ — which is a construction similar 
 to that Avhich I ask your Lordships to put upon this Act of Parliament, excepting, 
 indeed, that there is no necessity here to resort to similar refinement and subtlety of 
 construction as was resorted to in the case of the Duke of Norfolk. In that case they 
 resorted to a refinement of distinction between the Act of the King and the Act of the 
 whole Parliament, of which the King was a member and a part ; and though the Acts of 
 Parliament were repealed, and this grant was by Act of Parliament, held that the Act of 
 the King remained untouched and unrepealed. Your Lordships have no occasion to do 
 so here. You have only to hold that a grant like this by the King to a loyal and 
 meritorious subject is not to be deemed prejudicial to his successor. 
 
 The decision in the Duke of Norfolk's Case, both as respects the principle of con- 
 struction to be applied to this Act, inflicting penalties upon an innocent man, and as founded 
 upon that express reason which is given of the Act not being like an Act of Attainder, 
 not like an attainder pointing to a dignity to be rescinded by name — the case of the 
 Dukedom of Norfolk not being named in that Act — and upon the ground also, upon the 
 reason given by the legal tribunal that decided the case, under the authority of Parliament 
 (sic)- — likewise applies to the present case, where your Lordships find that this general 
 Act Rescissory, even if it did prove itself, from any language to be found in it, as affecting 
 these dignities, does not touch this dignity by name, and cannot therefore be taken to 
 have repealed the King's grant. Therefore, the case of the Dukedom of Norfolk 
 remains a binding authority, strictly applicable to this case. 
 
 With reference to the points lately under consideration, there are four Charters 
 referred to of the kind I mentioned. One is the Patent or Charter of the Barony of 
 Altrie to Robert Keith "p7-o omnibus suis vite diebus solummodo," and afterwards followed 
 by a limitation to his heirs, dated the 29th of July 1587- Then there is a Patent or 
 
( 298 ) 
 
 Charter of the Barony of Napier, dated the 4th of May 1627; then a Patent or Charter 
 of the Barony of Cramond to Elizabeth Lady Richardson, Baroness Cramond, in 1628 ; 
 then a Patent or Charter of the Earldom of Home, or Hume, to " Jacobo Home, pro 
 " toto sue vite tempore, suisque heredibus masculis," in 1626. 
 
 Lord Lyndhurst. — The limitation follows immediately the grant. 
 
 Sir FitzRoy Kelly. — In the last it does, my Lord. It follows immediately. 
 
 Lord St. Leonards. — It is one limitation. 
 
 Sir FitzRoy Kelly.— Yes, that is so in the last I read. The only difference is, 
 that they use the words " pro toto sue vite tempore, suisque heredibus masculis." That 
 certainly is in one limitation. My Lords, these cases are in illustration of what I was 
 observing. All we say is this, sometimes it is in effect in one limitation, and is only 
 applicable because the words " for life " are introduced to the first takers. 
 
 Lord Lyndhurst. — In the case here, there is in the recital a statement of other 
 matters till you come to the Tenendum, and then that Tenendum enlarges. 
 
 Lord St. Leonards.' — Have you any such case as you thought you had at first, 
 of an estate for life by express words, and then a Tenendum to heirs or heirs of his body ? 
 There would be nothing extraordinary in that if you had such a case. 
 
 Sir FitzRoy Kelly.' — I am unable to say, my Lord. — Unfortunately I have only 
 these abstracts, which will not enable me to answer your Lordship's question. The 
 instruments are actually in evidence in extenso. 
 
 Lord Lyndhurst. — The attention of the Solicitor-General was called to this point, 
 and he undertook to enlighten us upon the subject. 
 
 Sir FitzRoy Kelly. — Unfortunately one instrument that has been brought forward 
 for that purpose fails altogether. It turns out to be what it was not supposed to be. I can- 
 not do more than merely say, that such appear to be the abstract of them {sic) . Whether 
 it correctly represents the instruments themselves, I cannot venture, after the mistake 
 already made, to inform your Lordships. When they are printed they will be before 
 the Committee ; but not having them myself before me in full, I cannot say more upon 
 the subject. 
 
 I now, my Lords, come to the Glencairn Case. 
 
 Lord Lyndhurst. — Is none of the evidence printed ? 
 
 Sir FitzRoy Kelly. — I think not, my Lord. The reason why is, that it was in 
 every way desirable that this argument should be proceeded with during this present 
 Session ; therefore, the very unusual course was resorted to of summing up, and now 
 the reply itself, without the evidence being printed ; so that we really had no choice. 
 Many of the documents are very long, and we were obliged, by the rules of the House, 
 to deliver them in in full. They are now in the printer's hands, and as those documents 
 are lengthy, and of such peculiar character that we had no copies of them, we were 
 only able to make extracts of the important parts of them, and have them printed in the 
 mean time. 
 
 Lord St. Leonards. — Their Lordships expressed a wish that you should not put 
 yourself to the expense of printing any documents which you did not, either of you, 
 think material. 
 
 Sir FitzRoy Kelly. — There has, unfortunately, been very little time for selection, 
 and Ave were obliged to peril the losing of important evidence, and just deliver in a part, 
 whatever was thought material. 
 
 I was proceeding, my Lords, to thie Glencairn Case, which will nearly conclude 
 my address. As to this Glencairn Case, like the question upon the construction of the 
 Act of Parliament itself, I feel that I need offer no apology to your Lordships for 
 dwelling upon it, and entreating your Lordships' very particular attention to its effect 
 
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 upon this case. I ventured in my opening, and I now shall take the liberty of adopting 
 the same course, to urge this case upon your Lordships' attention as a case decided, after 
 the utmost possible investigation, and consideration, and argument, by a Court of the 
 highest authority, if not even of exclusive jurisdiction, and as bearing directly upon the 
 great point now in issue before your Lordships, namely, the effect of this Act Rescissory 
 upon the grant of a dignity by James III. Now, my Lords, both these propositions — 
 the one, that this was the very point decided ; and the other, that it was by a Court of 
 exclusive, or, at all events, of competent jurisdiction — have been impugned, though 
 they could not altogether be denied, by my learned friends the law officers of the Crown. 
 Let me shortly call your Lordships' attention to what the case is, and how these two 
 points really stand, and see whether this is not, for all purposes, res judicata, a decision 
 by the Court of Session, undoubtedly of competent jurisdiction, and, I venture to think, 
 of exclusive jurisdiction, on the very point which your Lordships have now to decide, 
 namely, whether the legal effect, upon the true legal interpretation of this Act Rescissory, 
 is to destroy the grant of the dignity within the time in question by James III. 
 
 Your Lordships are well aware that James III., in the same month of May before 
 his death, conferred the title of Duke of Montrose upon the then Earl of Crawford, and 
 the title of Earl of Glencairn upon the then Lord Kilmaurs. Both were his adherents ; 
 both fought and bled for him ; both exposed their lives and embarked their fortunes 
 in his cause in those disastrous times which preceded his last moments upon earth. It 
 is impossible, as it seems to me, to point out — I mean plausibly, or at least fairly — any- 
 thing like a distinction between the two cases. In the year 1637 a proceeding began, 
 which, terminating in the decision of 1648, raised and settled the question whether the 
 grant of the Earldom of Glencairn was rescinded or annulled by this Act Rescissory. 
 I have, therefore, two proi^ositions to establish against the arguments of my learned 
 friends the counsel for the Crown. The first question is, Whether this was a Court not 
 only of competent jurisdiction but of exclusive jurisdiction. My Lords, in the first place 
 let me say, even if your Lordships were to hold, as I think you will not hold, that an 
 appeal might have been maintained from the Court of Session to Parliament in the 17th 
 century, that would not in the slightest degree derogate from the authority of this 
 decision or affect the argument which I have the honour to offer to your Lordships, 
 because it is impossible to deny, and my learned friends have not denied, that at the 
 period in question, during the 17th century, the Court of Session was a fit and proper 
 Court to exercise jurisdiction, not only in matters of civil causes, but of honours and 
 dignities. They have not denied that proposition, and they cannot do it. My Lords, 
 upon the question which they have raised, whether an appeal lay from the decision of 
 the Court of Session in matters of honours and dignities to Parliament, I must venture 
 to observe in the first place, that they have by their arguments, and by a reference to the 
 only authorities they have thought fit to adduce, contended as if it were one and the 
 same thing, an appeal from the Court of Session in matters of civil causes to Parliament 
 and an appeal from the Court of Session in matters of honours and dignities to Parlia- 
 ment. As to whether an appeal lay from the Court of Session to Parliament in ordinary 
 civil causes, I think the better view of the case is, that it did not ; but be that as it may, 
 the most that can be said upon that point is, that it is an open question, a vemta questio ; 
 that is all that my learned friends pretend to say of it. But, my Lords, with regard to 
 the question which alone arises here, whether an appeal lay from the Court of Session, 
 from the decision of that Court in a matter of honour and dignity, to Parliament, I 
 utterly deny that there is any semblance of authority for such a proposition. And I 
 venture to deny also, that from the beginning of time to this moment, an appeal ever in 
 fact took place, except, indeed, the appeal in question, which was an appeal from the 
 
 2Q 
 
( 300 ) 
 
 Court of Session of 1648 to the Rebel Parliament of 1649. I pray your Lordships' 
 attention to this fact, an undoubted and unquestionable fact, that there is no instance on 
 record, from the beginning of time, of an appeal in a matter of honour and dignity from 
 the judgment of the Court of Session to Parliament. 
 
 Lord St. Leonards.— 'When you consider the power of this House, on Avhat does 
 it rest? 
 
 Sir FitzRoy Kelly. — I was going to call your Lordships' attention to that. 
 There again, a confusion has been created by my learned friends. No such appeal lies 
 at this time, nor has this House any more jurisdiction than is possessed over any decision 
 by any competent court as to honours and dignities. Now, my Lords, what exists in 
 this case is simply and merely this ; I mean now as to honours and dignities, — it is 
 different in Appeals in civil causes from the Courts in Scotland. This House has no 
 more jurisdiction as to honours and dignities, than any individual peer would possess 
 in his own drawing-room. The mode in which your Lordships are now considering this 
 question, is by express and special reference from the Crown. I am not upon the 
 appeal from the Court of Session to this House. This House is not sitting as a House 
 now. Your Lordships are now only entertaining this appeal in this way. In this country 
 any claimant of a dignity petitions the Crown, the Crown refers to the Attorney- 
 General, the Attorney- General makes a report, and, if favourable, the dignity is at once 
 granted. Tlaere is no jurisdiction in this House ; but if the Attorney-General reports 
 that it is a fit case for further inquiry, then the Crown refers it to this House, and this 
 House takes cognizance of it in a Committee of Privileges. But this House, as one of 
 the Estates of Parliament, has no more jurisdiction now upon matters of honour than 
 any individual belonging to it. Therefore, it is quite erroneous to suppose that any 
 appeal could lie to this House, or that Parliament has any jurisdiction in matters of 
 honour. As to the jurisdiction of this House upon Appeal from the Court of Session, 
 that again is a matter no longer of any legal doubt, but a matter of great historical 
 doubt and difficulty. Your Lordships will find in the authorities to which I will refer 
 your Lordships, that, upon all the best authorities, by repeated Acts of Parliament, no 
 appeal would lie, or was permitted, from the Court of Session to Parliament. 
 
 Lord St. Leonards. — I believe that nothing has altered the power of the Court of 
 Session in this respect. The Act of Union is silent on the subject. How has the Court 
 of Session lost, if it has lost, its jurisdiction ? Or do you contend that the Court of 
 Session has now the power of deciding upon the right to a peerage ? 
 
 Sir FitzRoy Kelly. — I must answer your Lordship's questions seriatim. First, 
 as to this House, the case stands thus. There are ancient Acts of Parliament, which 
 give jurisdiction to the Court of Session, and afterwards the College of Justice, and so 
 forth, but substantially to the Court of Session in civil causes ; which jurisdiction was 
 exercised by the Court of Session uninterruptedly, and, at least upon the best authorities, 
 without appeal — certainly without appeal, in fact, to Parliament — dovra to the very 
 period in the reign of Charles II., when the question arose which led to the letters 
 which have been read to your Lordships, and which question terminated in its being 
 resolved by the King, with such advice as he took, and it was acted upon by the Court 
 of Session, that no appeal lay to Parliament. Thus the matter stood until 1688, and 
 at that time the Acts of Parliament are referred to by Lord Stair — I will refer your 
 Lordships to p. 533, Title 1, "The authority of the Lords," in Lord Stair's Institutes, — 
 your Lordships vidll find there it is laid down, — " The authority of the most solemn 
 " sentences of Session being thus cleared, it comes next to be considered, how far pro- 
 " testations for remeid of law, from the Session to the Parliament, ought to be 
 " extended." A good deal follows upon this, and he says, — "There is neither expres- 
 
( 301 ) 
 
 " sion nor insinuation in either of these constitutions for bringing causes from the 
 " Session to the Parliament, but, on the contrair, that it was for the common profit of 
 " the realm that bills of complaint may not be determined by the Parliament, but they 
 " be determined and execute by the Judges Ordinar. Yea, it is expressly statute, that 
 " ' all causes pertaining to the knowledge of the Lords shall be utterly decided and 
 " ' determined by them, but (without) any remeid of appellation to the King or the 
 " ' Parliament.' " 
 
 Lord St. Leonards. — He is speaking there of the Lords of Session. He is not 
 speaking of the Court of Session. 
 
 Sir FitzRoy Kelly. — Yes, my Lord,^ — they are the same under the Act of Parlia- 
 ment. I am loath to occupy your Lordships' time by reading so much of this. 
 
 Lord St. Leonards. — I want you just to answer my question, and to tell me 
 whether the Court of Session in Scotland could now entertain the question upon a right 
 to a peerage ? 
 
 Sir FitzRoy Kelly. — There is nothing in the world to deprive them of the juris- 
 diction which they exercised ; but, as the decision in the time of Charles has taken place, 
 I suppose no laAvyer would now say substantially that the Court of Session has any 
 jurisdiction over honours and dignities. The case substantially stands thus, that from 
 the very earliest times to at least the Revolution in 1688, there were but two tribunals 
 that ever exercised jurisdiction in honours and dignities; the one was the Court of 
 Session, which exercised that jurisdiction unquestioned, and by force of its own con- 
 stitution — 
 
 Lord St. Leonards. — Lord Kaimes does not say that. 
 
 Sir FitzRoy Kelly. — Lord Kaimes is really no authority, — he does not question the 
 jurisdiction of the Court of Session. I ask your Lordships to refer to what Sir William 
 Scott, Lord Stowell, says of Lord Kaimes 's authority, in the 2nd volume of Haggard's 
 Consistory Reports, page 91. I will only say this, and I say it with perfect confidence, 
 that no one has ever questioned the jurisdiction of the Court of Session as to the question 
 whether there was an appeal in civil causes down to nearly the end of the seventeenth 
 century. I was about to state, not what is matter of law,, but matter of usage and fact, 
 that incontestably, from the earliest periods in the history of that Court, honours and 
 dignities were entertained only by the Court of Session or by the Privy Council, — and 
 where by the Privy Council, upon express and special reference from the Crown. I 
 challenge my learned friends to produce one single instance in the History of Scotland, 
 if they have yet to address your Lordships, in which a question of honour or dignities 
 was ever entertained by any other jurisdiction or tribunal than the Court of Session, and 
 where by the Privy Council, under an express and special reference from the Crown — 
 
 Lord Lyndhurst.—Bj the Court of Session under what reference ? 
 
 Sir FitzRoy Kelly. — By the same sort of jurisdiction under which they would 
 have referred a civil question. 
 
 Lord St. Leonards. — The only power that the Court had was that which was 
 granted by Act ; under the Act of Parliament granting them jurisdiction in civil cases, 
 they exercised the power. If civil cases in the words of the Act of Parliament in- 
 cluded dignities, then they had the power, and used the power beyond all question, and 
 how they have lost it we have not been shown. 
 
 Sir FitzRoy Kelly. — No, my Lords, that would merely be a matter of historical 
 speculation. 
 
 Lord St. Leonards. — You are surely entering into a question which is not very 
 important. Lord Glencairn's Case is a precedent ; we are not trying that case. 
 
 Sir FitzRoy Kelly. — Unfortunately, my Lord, that has been made so much a 
 
 2Q2 
 
( 302 ) 
 
 question, that I cannot discharge my duty without adverting to it. I was doing it very 
 
 briefly, but, my Lords 
 
 Lord Lyndhurst. — You must take the time necessary to establish your case. 
 Sir FitzEoy Kelly. — It is a proposition, my Lords, which I feel to be so im- 
 portant, that I must press upon your Lordships that which I am now urging. It is not 
 by one Act of Parliament, or by any set of words in particular, that this jurisdiction 
 was conferred upon the Court of Session. There are a variety of Acts which your 
 Lordships will find referred to in that part of Stair's Institutes. W^'here there is any- 
 thing a matter of question, I will state it is a matter of question ; but where I do not 
 so state it, I affirm that I am stating what is not capable of contradiction. First, as to 
 dignities. It is impossible for me, seeing that it has been made matter of argument and 
 doubt, not only at the bar, but even amongst your Lordships, to quit this part of the subject 
 without stating the result of the authorities, and of inquiring into history upon this 
 subject. First, with regard to dignities, — which I beg your Lordships not to mix up in 
 your minds with ordinary causes. With regard to dignities, from the very earliest 
 times, questions of right to dignities, or of precedency in the enjoyment of dignities, 
 have been determined exclusively by the Court of Session by virtue of its original con- 
 stitution, without any reference from the Crown; or if by the Privy or the Secret 
 Council in Scotland, upon a special reference from the Crown. And, my Lords, here I 
 come to the next point, which I will not say is unquestioned, but I only state matter 
 of fact. I say there is no instance on record in history of an appeal from the judgment 
 either of the Court of Session or of the Privy Council, in reference to the Crown or to 
 Parliament at all, except — if it is so to be called — the appeal that took place in the 
 Glencairn Case in 1649, where an appeal was made to the Rebel Parliament, sitting 
 without authority, the proceedings of which Parliament were altogether revoked and 
 annulled by the Act of Parliament of 1661 ; and I say this, with the more confidence, 
 because this was expressly admitted by my learned friend the Lord Advocate. There- 
 fore, first as to dignities, so far as regards the judgment in question, we have this as a 
 matter of historical fact in the place to which I have alluded, page 533 in Stair's In- 
 stitutes, and the four or five following pages. The history of the law is there very fully 
 stated. I only refer your Lordships to it, to support what I am now alleging. I will 
 not weary the Committee by reading it at length. There the statutes are referred to 
 and the practice is stated, and the result is that all these questions with regard to 
 dignities were decided alone in the Court of Session, or in the Privy Council ; and I 
 now repeat (and I need refer to the statement no more) that there is no instance of 
 appeal except this, which my learned friend admits to be a nugatory appeal, to a Par- 
 liament sitting at the time without authority, — all its authority, if it had any, being 
 repealed by the Act of 1661 upon the Restoration. 
 
 Then, my Lords, at the Revolution, certain proceedings took place with regard 
 to the Court of Session, not affecting dignities. A noble Lord has asked me whether 
 the Court of Session has jurisdiction in dignities now. It would hardly become me to 
 answer that question. But I say this, that the Court of Session had undoubtedly juris- 
 diction in dignities dovni to the Revolution and at the Union ; and, what is more, that 
 the Court of Session has exercised that jurisdiction since the Union, in the case of 
 Lord Lovat, so late as 1730, — and therefore, though it is quite immaterial to consider 
 that point, I cannot admit that the Court of Session does not possess jurisdiction now. 
 I say that any appeal to the Court of Session has long been disused, and all questions 
 of dignities are referred at once on petition to the Crown, and on reference by the 
 Crown, to this House ; to the Attorney-General first, but ultimately to this House, and 
 so to the Committee of Privileges. As regards the question of dignities, whatever my 
 
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 learned friends may argue, and whatever is sought for and found here and there in 
 modern writers who may not have attended to the subject, I answer that there never 
 was any substantial question raised as to the right to appeal to Parliament in matters 
 of dignities. All we find is, that the Court of Session or the Privy Council determined 
 all such questions at the time of the Revolution, and, indeed, down to the Union. Ex- 
 cept in one or two instances, such as Lord Lovat's in 1730, and perhaps another, there 
 has been a disuse of any exercise of any jurisdiction by the Court of Session in ques- 
 tions of dignities, — which are referred by the Crown to this House. But as to civil 
 causes the question stands thus : — Under various Acts the College of Justice and the 
 Court of Session had jurisdiction in civil causes. The better authorities all say that 
 there was no appeal in matters of civil causes to Parliament ; and, again, the fact is that 
 there was no appeal de facto. Usage Avas against any such appeal, and nothing of the 
 kind ever took place to give authority to any decision upon appeal by Parliament, 
 excepting in the cases alluded to by Lord Stair, where the Court of Session had refused 
 to adjudge matters over which they had jurisdiction. Then an appeal lay to Parlia- 
 ment. But, except in those cases, de facto there was never any appeal from the Court 
 of Session to Parliament down to the time of the Revolution or to the Union. But at 
 the time of the Revolution the Parliament took upon itself to entertain the question, 
 and the result is — (but by what process I know not, and which it would be immaterial 
 to enter into^ — the practice is given up — how I cannot say) — an appeal lying from the 
 Court of Session to this House, — not to Parliament, but to the House of Lords only. 
 Accordingly, appeals now are brought continually from the Court of Session to this 
 House, and are here determined. 
 
 Now, my Lords^ that is the history of the matter. But, then, what is the result ? 
 The result is, that in 1637, and from that to 1648, the • 
 
 Lord Lyndhurst. — But the appeal is to Parliament ? 
 
 Sir FitzRoy Kelly. — It is an integral portion of Parliament, there is no doubt, 
 my Lord. I do not deny that, by usage, an appeal must now be taken to lie. Justice 
 could not be well administered without it. How that usage arose, I believe no one can 
 tell. The most learned writers seem to be in some difficulty about it. It did not exist 
 down to the time of the Revolution of 1688, but since that time, or since the Union, it 
 has grown into use, and it undoubtedly exists at this moment. But, my Lords, that 
 leaves the question of the cause in 1 648 untouched. No one can say that the Parliament 
 or this House has any jurisdiction at all in matters of dignities. No one will say now, 
 that the Court of Session, or any other tribunal, whether upon a reference from the 
 Crown or otherwise, will so interfere. The Crown might interfere, indeed, and an 
 injunction might be obtained against proceedings, but no one will say that this House 
 has any jurisdiction by way of appeal, or any jurisdiction at all. It is only as I say. 
 How the practice grew up it is difficult to say, but the practice has grown up of the 
 Crown, upon a Petition to the CroAvn, referring questions of Dignity to this House, 
 and so they are determined in the Committee of Privileges. But I now come back to 
 the decision of 1648. No one can doubt that the Court of Session at that time exercised, 
 and lawfully exercised, jurisdiction over the question. It is most remarkable that, with 
 Counsel of such singular learning and ability as appeared for the Earl of Eglinton and 
 others at the time, that no objection was taken. If they could have shown that the 
 Court of Session had no jurisdiction, these Counsel must have made that objection ; but 
 no objection ever appears to have been suggested that the Court of Session had not 
 jurisdiction. On the contrary, the cause proceeded, — and now I come to what the 
 question was. And here it is again that I am at issue with my learned friends. They 
 say, to support the decision or opinion pronounced by Ijord Loughborough, that the 
 
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 question of this Patent, and the operation of the Act Rescissory upon the Patent of the 
 Earl of Glencairn, was not necessarily determined in 1648. Assuming then, as I think I 
 may, that the Court of Session clearly had jurisdiction, and I venture to think exclusive 
 jurisdiction — that it is therefore a decision of a tribunal of last resort ; let us see what 
 that decision was. 
 
 Now, my Lords, the question was the precedency of the Earl of Glencairn, before 
 the Earl of Eglinton. My learned friend the Lord Advocate introduced his reference 
 to this cause as if there had been a series of decisions, first one way and then the 
 other — as if it was quite a vexata questio. Now, your Lordships will remember that the 
 first decision, which was of the Privy Council (sic) in 1606, was a mere process of ranking, 
 whereby the Earl of Eglinton, who was a party, was ranked before the Earl of Glen- 
 cairn ; but the Earl of Glencairn was not a party, and therefore could not speak for 
 himself. There was no question upon the merits, and no Patent produced upon that 
 occasion. Lord Glencairn hearing this, came forward and rightly insisted that that 
 ranking was wrong, and claimed precedence before the Earl of Eglinton. Then both 
 parties were heard. Then there was something like judicial proceedings, and the result 
 Avas, that in 1610 the Privy Council (sic) altered the ranking, and gave precedence to the 
 Earl of Glencairn before the Earl of Eglinton. But that judgment was impeached, and 
 justly, because the Earl of Eglinton having himself precedence to three or four other 
 Earls, putting the Earl of Glencairn before him put him before those other Earls also, 
 who were then not parties to the proceedings, and accordingly those Earls came together, 
 and prevailed on the same Court, the Privy Council (sic), in 1617, to annul the decision 
 of 1610, and restore things to their former state and order. These were the three ante- 
 cedent proceedings, and then came the great case of Glencairn, in which the Earl of 
 Glencairn was the plaintiff, and in which the Earl of Eglinton and several others were 
 defendants, and where, the Earl of Glencairn claiming precedency before the Earl of 
 Eglinton, the question arose, and was to be determined. Now, my Lords, that question 
 might have been determined in three ways, and the claim might have been established 
 in three ways. First, if the Patents of the two Earls were produced, the elder Patent 
 would prevail. If there were no Patents, then, secondly, there would be the sitting 
 in Parliament; and if the ancestor of one Earl were proved to have sat as Earl in Par- 
 liament before the ancestor of the other Earl, that again Avould have determined the 
 question of precedency. There was a third way, which I mention only to lay it aside, 
 the mention of the Earls in instruments and documents by the title of Earl, as evidence 
 that they were Earls at that time. 
 
 Now, my Lords, these two Earls entering upon this conflict, here produced what 
 we should call a great body of evidence, a great variety of virits and instruments, as to 
 the last criterion, the naming of the parties in instruments ; and it certainly appeared 
 that the Earl of Eglinton was named an Earl in two instruments of the date of 1500 
 and 1502, whereas the earliest sitting in Parliament of the Earl of Glencairn was in 
 1505, — and this would have given the precedency to the Earl of Eglinton, or put the 
 Earl of Glencairn upon the necessity of relying upon his Patent of 1488. But it 
 appears that these two instruments were misdated ; and altogether on the Patents the 
 grant may be laid aside {sic). Now, my Lords, how stood the question between these two 
 parties ? First, as to sitting in Parliament, the Earl of Glencairn proved a sitting in 
 Parliament, and that was the first — a sitting which he was able to prove, of the date of 
 1505. The Earl of Eglinton proved that he had an earlier sitting; the earliest he was 
 able to prove was a sitting as Earl of Montgomery in 1503. If, therefore, the question 
 had rested there, the Earl of Eglinton must have been preferred to the other. The 
 sitting of 1503 was prior to the sitting of 1505, and consequently the decision must be in 
 
( 305 ) 
 
 favour of the Earl of Eglinton ; but to oppose the sitting, or rather to countervail the 
 sitting of the Earl of Eglinton by the title of Earl of Montgomery in 1503, the Earl of 
 Glencairn resorted, and he had no other resort, to his Patent of 1488, the very Patent 
 that is said to have been voided by the Act Rescissory. 
 
 Those were the merits — those the documents — those the points — which arose 
 between those two, in the Eglinton proceedings, which lasted from 163/ to 1648. I have 
 laid aside all reference to other documents and other matters in evidence between these 
 two parties, in order to show to what the point was narrowed. Here was the sitting of 
 an ancestor of the Earl of Glencairn in 1505, and the sitting of an ancestor of the Earl 
 of Eglinton in 1503, which would have terminated the dispute in favour of the Earl 
 of Eglinton. It was by virtue of the Patent of 1488, and that alone, that the Earl of 
 Glencairn sought to set aside the earlier sitting in 1503 of an ancestor to the Earl of 
 Eglinton, and so to establish his own claim to precedency. Accordingly, upon that 
 Patent being thus introduced^ — the Earl of Glencairn insisting that he was the Earl 
 under that grant, giving in evidence the grants, the very documents which now are 
 quite familiar to your Lordships, to show his claim to the Earldom under that Patent — 
 the opposite party set up this Act Rescissory, and first contended, as the counsel for the 
 Crown contend to-day, that that Act annulled and repealed that Patent. That was the 
 question. It was indeed insisted, as I admit, and as I stated in my opening, that this 
 sitting of 1505 by the then Earl of Glencairn was attributable to some other and later 
 Patent ; and it was insisted — and only by reason of the sitting of the Earl of Mont- 
 gomery in 1503 could such an argument have any weight — it was insisted that this 
 Patent of 1488 was voided and repealed by the Act Rescissory, and that the sitting in 
 1505 of the Earl of Glencairn was attributable, not to that Patent of 1488, but to some 
 Patent afterwards granted, and later than 1503, when the ancestor of the Earl of 
 Eglinton sat in Parliament. And accordingly that was the point for the consideration 
 of the Court of Session, — whereupon the counsel for the Earl of Glencairn insisted that 
 there was no such Patent, that it was a statement without any proof ; and they prevailed 
 vipon the Court to insist upon the counsel for the Earl of Eglinton either producing such 
 a Patent, between 1503 and 1505, to which to ascribe the sitting of 1505 by the Earl of 
 Glencairn, or to put the Earl upon his oath as to whether he had such a Patent in the 
 absence of such proof, and so to set aside and put an end to that point. The Earl of 
 Eglinton 's counsel was unable to produce the Patent, and he did not choose to put the 
 Earl of Glencairn upon his oath as to the existence of any such Patent, knowing that 
 it would be denied ; and the consequence was that that point was removed altogether 
 from the consideration of the Court. The case down to the moment of its determination 
 stood thus : — The Earl of Glencairn sitting in 1505 and the Earl of Eglinton sitting in 1503, 
 could that sitting be set aside and defeated by a Patent of an earlier date in favour of 
 the Earl of Glencairn ? There was a Patent of 1488 granted by King James III. : that 
 was opposed by the Act Rescissory. And thus, at the last moment, that was the question, 
 and the only question, submitted to this Court of competent jurisdiction for its decision, — 
 ' Did this Act Rescissory annul and repeal the Patent of 1488 ? '■ — Your Lordships find, 
 by the Decreet which has been so often referred to, that they held that it did not, and 
 they adjudged the cause in favour of the Earl of Glencairn, — which could have proceeded 
 only on the validity of the Patent of 1488, notwithstanding the operation of the 
 Act Rescissory. And this, as I submit to your Lordships, decided, and made res 
 judicata the decision, that this Act Rescissory did not operate to repeal the Patent of 
 1488. 
 
 Now, my Lords, what were the further proceedings ? It is clear that there was 
 an appeal to Parliament. Upon this point — as my learned friends have denied it, or at 
 
( 306 ) 
 
 least they have argued as if they meant to deny that this was the point, and the only 
 point, upon which the Court of Session decided in 1648 — 1 ought to refer your 
 Lordships to the proceedings upon that appeal to Parliament. Your Lordships will 
 find they begin thus. The very beginning of the Decreets, which have been printed for 
 your Lordships' information, is " Secundo Martij 1649," &c. " Decreet at the instance of 
 " the Procurator of Estate against the Earle of Glencarne, annulling the said Earle his 
 " Patent of Earledome dated 18 Maij 1488,"— and, "Nono Martij 1649," &c. " Decreet 
 " at the instance of the Earle of Eglintoun aganst the Earle of Glencarne," calling 
 upon the latter to produce before them the " pretendit Patent " under the Great Seal 
 of 1488. Not to go through those documents, I mean the two Decrees of the Parha- 
 ment of 1649, your Lordships will find, by adverting to those documents— the more 
 they are considered, the more clear will be the fact which I am now affirming — 
 that the decision of the Court of Session had proceeded alone upon the ground that 
 this Act Rescissory did not invalidate the Patent of 1488. And it was by reason of 
 that decision of the Court of Session, that the Patent was of force and validity notwith- 
 standing the Act Rescissory, that the Parliament, this rebel Parliament, of course 
 opposed to the operation of Kings' grants, by one Decreet expressly annulled the 
 Patent itself, showing that the Patent was the only matter in question before them, by 
 which Lord Kilmaurs was created Earl of Glencairn ; and by the other Decreet they 
 annulled, or professed to annul, the whole proceedings and the decision of the Court of 
 Session in 1648. Therefore, my Lords, the case stands thus, that that Court had to 
 determine that question — and that alone — whether, under the words of this Act of Par- 
 liament, the Rescissory Act of James IV. annulled and defeated the Patent of James IIL 
 They determined that it did not. It is a determination precisely in point upon the 
 present occasion. And it was because they so determined that point that there was an 
 appeal to the Parliament of 1649. And it was because they had so determined that 
 point that that Parliament annulled the Patent, and annulled their judgment in favour 
 of the Patent. I have the Attorney- General's admission, even supposing your 
 Lordships thought it a matter of doubt whether an appeal lay from the Court of 
 Session upon matters of dignity to Parliament ; at all events, we have the admission 
 of the Lord Advocate, that by the Act of 1661, upon the Restoration, all the proceedings 
 of that Parliament of 1 649 are completely repealed and annulled. And as I observed 
 in opening this case, we have therefore upon this Glencairn case this decision upon the 
 very point, that this Act Rescissory did not annul the grant of a dignity standing in 
 precisely the same position in all respects as the grant of the dignity in question. And 
 we have this decision acted upon, and acted upon against the opposition of adverse 
 and dissatisfied parties, the Earl of Eglinton, the Earl of Cassillis, and other Earls, from 
 that period, 1648, or at least after the Restoration, to 1796, when the last Earl of 
 Glencairn died. My learned friend, the Lord Advocate, said that if your Lordships 
 decide upon the footing of that decision now, it may raise a claim again to the Earldom 
 of Glencairn. I need hardly say that I know your Lordships will decide this case 
 according to law and justice. And if the consequence were the reconsideration of a 
 claim by an ancient and honourable family, so demanding that to which by law they 
 are entitled, I think it is not a consequence to be deprecated of any judgment that may 
 be pronounced by your Lordships. This, then, brings me to the end of the Glencairn 
 case. I admit that it is not res judicata in this case which is before your Lordships. 
 I admit that it is not so. But it is a precedent, it is an authority, — and here the question 
 of jurisdiction becomes material, because it is the authority of what I venture to say 
 was in practice and usage, if not in law, but I believe in law also, a Court of exclusive 
 jurisdiction, or at least a Court of last resort, a Court which, like your Lordships' House, 
 
( 307 ) 
 
 is a Court of justice from whose decisions no appeal lies to any higher tribunal. If, there- 
 fore, I am right in saying that there was no appeal from this Court, it is a decision — not 
 upon this very Patent, but it is upon this very Act of Parliament, upon a Patent exactly 
 identical with this Patent — the decision of a Court of last resort, and upon the very 
 question which is now to be submitted to your Lordships. My Lords, I do hope that that 
 decision will be respected and upheld ; and the more so, because to set it aside would 
 be, in giving a different operation to this Act from that which was given by that tribunal, 
 to give it an operation against justice, and truth, and loyalty ; your Lordships would be 
 giving it an operation against right, and against all that ought to be upheld by every 
 Court of justice. 
 
 I would observe as to Lord Rosslyn's opinion, — that again was so very fully dealt 
 with by my learned friend, the Solicitor-General, that I may pass over it almost in a 
 moment. I need hardly say that it is not my province, and not my wish, to speak other- 
 wise than in terms of the highest respect of the noble and learned Lord who delivered 
 that opinion. His learning, his character and station, entitle him to our respect, but it 
 surely is not unbecoming to say, with regard to any Judge, however learned and how- 
 ever eminent, that he may err ; that there are times when from human infirmity the 
 judgment is not always, perhaps, equal to what it is at other times and on other occa- 
 sions. What was said of Homer may be said of Lord Loughborough. And surely, when 
 we come to contrast Lord Loughborough's opinion, as delivered in 1797, with the 
 Judgment of the Court of Session in 1648, we find on the one hand, as to the Judgment 
 of the Court of Session, that it was pronounced after a process of eleven years' duration ; 
 after argument by the most able and eminent counsel that ever existed in Scotland, and 
 at a time nearer, by 150 years and more, to the period which was then under con- 
 sideration ; and when documents, and even persons were forthcoming, who could throw 
 light upon almost every point, — which was not within the power of those living a century 
 and a half afterwards. Their decision comes accompanied at least by all that can give 
 weight to any decision from any tribunal. But this I do say, that, in the first place, 
 whereas the contrary seems to have been supposed or assumed, this very Judgment of 
 1648 — that which was all important to be referred to and to be considered by this 
 House or the Committee of Privileges in deciding upon the claim before them — this very 
 Judgment never was brought under their attention. We have looked through the whole 
 of the Minutes of Evidence adduced before Lord Loughborough, and this Judgment was 
 not produced in that evidence. My learned friends have looked into the Case which 
 was before Lord Loughborough, and there is a statement of the case in which the fact 
 of such a Judgment is mentioned ; but when we look at the Minutes of Evidence to see 
 what evidence was adduced for or against the claim before the House, we find that there 
 was not within that evidence any of those proceedings, the Judgment itself, or any other 
 proceedings within that period. Therefore it was an opinion, delivered by that un- 
 doubtedly high authority, in entire ignorance of what had been decided by this Court in 
 1648, or rather, which is far more important, of the documents which were before that 
 Court, or the questions raised when the decision was pronounced. And really, when 
 we find that Lord Loughborough, not being aware of this decision — or rather, what the 
 decision really amounted to, upon what grounds it proceeded, and what documents were 
 before the Court in 1648 — proceeds to say and to assume that it went entirely upon the 
 prior sitting which seems to have been proved on the part of the Earl of Glencairn — 
 whereas we find that it proceeded entirely upon the Patent of 1488, as unaffected by the 
 Act Rescissory — and when we find Lord Loughborough treating the belting as the 
 creation of an Earl, it is impossible not to say that it was not a Judgment which I think 
 your Lordships will consider ought to countervail the Judgment pronounced by the 
 
 Court of Session in 1648. 
 
 2R 
 
( 308 ) 
 
 My Lords, we are now in possession of such a variety of documents, some pro- 
 duced from Lord Eglinton's charter-chest, and we have been able to throw so much 
 more light, not only upon the immediate subjects under consideration, but upon all the 
 proceedings of the different Courts (sic), that there is really a great flood of light and body 
 of evidence before your Lordships, to assist in the determination of the case, which was 
 not before Lord Loughborough ; and what, therefore, I submit to your Lordships upon 
 this point is, that this is a Judgment, not indeed upon the same Patent, but upon identi- 
 cally the same point as that before your Lordships — the well-considered Judgment of a 
 Court, not only of competent, but perhaps of exclusive jurisdiction. I trust it will be a 
 guide to your Lordships, and that your Lordships will uphold that Judgment, and put 
 a construction upon this Act, the only construction which can be put upon it, to give 
 effect to the truth and to the justice of this case. 
 
 My Lords, I noAv come to the operation upon this Act Rescissory of the subse- 
 quent Act of 1503 ; and though I have occupied but a very short portion of your Lord- 
 ships' time in the opening with reference to this point, I shall occupy still less now, — 
 though my learned friends, the Attorney- General and the Lord Advocate, have scarcely 
 adverted to this Act of Parliament at all ; and I do hope that, your Lordships' attention 
 being directed to it, if any doubt exists with regard to the operation of the Act Res- 
 cissory itself upon this dignity, no doubt will exist but that, if that Act was in force, it 
 was repealed by this later Act of 1503. 
 
 Let us see what it was. King James IV. succeeded to his father, having been for 
 a long time during his minority, at least for five years after the death of his father, in 
 the hands of those very nobles who had rebelled against his father. Their opinions 
 gave a character to the acts they did, and which they made him do for their benefit in 
 his own name. It may be, for aught I know, that they really did intend and desire to 
 destroy the grants, whether of dignities or of property, of King James III. by the Act 
 Rescissory. Be it so. If your Lordships are to expound the Act Rescissory with refer- 
 ence to the circumstances of the times, and to the wishes, feelings, and intentions of the 
 Parliament of that day, what are we to say of the situation of James IV. in 1503 ? He 
 was no longer a child — he had arrived at mature age — had had time to refiect upon 
 his conduct towards his father, and the conduct of others towards his father, and upon 
 what he was at last convinced was the murder of his father. All history tells us that 
 he became penitent ; and not only was there the proceeding to which I have alluded — 
 penance being done and humiliation being submitted to before the Pope by the rebel 
 peers, — but also the King himself, as is well known, wore by way of penance an iron 
 girdle next his skin for years and years after, in fact down to the moment of his death, 
 because I believe his body was identified in Flodden field by means of this very girdle 
 which he wore. The King was, therefore, penitent ; and, as it was but right and just 
 that his father should have rewarded his own loyal and deserving subjects, we find that 
 the King is expressly a party to this Act of Parliament in 1503, when, consequently, 
 he had arrived at the age of some thirty or thirty-one years. We find that he then 
 passed this Act of Parliament : — " The which day our Sovereign Lord revoked, with 
 " consent of the Three Estates of the Parliament, all donations, gifts, acts, statutes of 
 " Parliament or general Council, and all other things done by him in times bygone, either 
 " hurting his Soul, his Crown, or Holy Kirk ; and that the said donations, gifts, acts, 
 " statutes, or other things thus revoked, be had for not done, and to be put forth of the 
 " books and writings." Now, my Lords, the question is, whether that would have the 
 effect of revoking the Act Rescissory, supposing that Act then to be in force. I venture 
 to challenge my learned friends to point out to what statute — for we find here not only 
 an act but a statute expressly mentioned of Parliament — to what statute of Parliament 
 this could be referred if it did not refer to the Rescissory Act ? It is a question w^hich, 
 
( 309 ) 
 
 in all humility, I now beg earnestly to put to your Lordships :— ' To what Act of Par- 
 ' liament is it possible that the King could have alluded, if not to the Rescissory Act ? '— 
 What was the effect of the Rescissory Act — I mean, supposing the construction is to be 
 put upon it that has been insisted upon by the learned Counsel for the Crown ? The 
 effect of that Act was this : — That those rebels and traitors who had done the King, his 
 father, to death — who had rebelled against him, and put him to death in the field 
 of battle — not content with that foul crime, had assembled together in Parliament, and 
 passed an Act by which they deprived all his most loyal and attached subjects of all 
 they had derived from him as the reward of their loyal and good services. Well, then, 
 after despoiling those loyal and attached subjects of the King, his father, if that was not 
 an act hurtful to his own soul and conscience, I know not what act he could have con- 
 templated or alluded to by this Act of Parliament. Is there any other ? I ask, is there 
 anything with which history supplies us, anything more than an insinuation or sugges- 
 tion as to anything, that had been done by King James IV., hurtful to his soul and 
 conscience, and upon which this Act was to operate, if it were not to acts of spoliation, 
 violence, and robbery, committed by him and his Parliament upon the best subjects of 
 the King, his father ? 
 
 Reading, therefore, these Acts of Parliament according to their natural meaning 
 and interpretation, I submit to your Lordships in conclusion, in urging this great and 
 important claim upon your attention, that, in asking this Committee to report in favour 
 of the claim now under consideration, I ask your Lordships only to put a construction 
 upon this Act or these Acts of Parliament in favour of justice, in favour of right, in 
 favour of truth^ and in favour of loyalty. My Lords, to hold that this Act Rescissory, 
 as it is called, that that Act of Parliament is free from all doubt, that it is clear, positive, 
 and certain in its terms, I think is to forget the very structure of the language which 
 is used, and that it is impossible to say, where we find no clause repealing all grants 
 whatsoever, but a clause only repealing all grants which may be deemed prejudicial to 
 the Crown, that that does not at least raise the question, ' Is this grant, or was this grant, 
 ' to be deemed prejudicial to the Crown ? ' As to the words that we find in the Act of 
 Parliament, if that question is raised for your Lordships' consideration, I only ask your 
 Lordships to resolve to put that construction upon the Act of Parliament which will 
 prevent it from being an Act for the encouragement of disloyalty and wickedness, which 
 will make it an Act at least powerless and harmless to effect great and irremediable 
 wrong. If, unhappily, I shall have failed in persuading your Lordships to come to that 
 conclusion, then, upon whatever ground it is possible to hold otherwise — and it can only 
 be on the ground of such being the intention in the minds of those who constituted the 
 Parliament, not the language itself — then, upon that same ground must your Lordships, 
 as I apprehend, come to a similar conclusion upon the construction of this later Act of 
 Parliament, viz. that by this later Act of Parliament the earlier Act was repealed. 
 
 My Lords, I have now done. Thanking your Lordships much for the patience 
 with which you have gone through this most wearisome, but not uninteresting case, I 
 conclude by entreating your Lordships to consider the various matters which have been 
 urged upon your attention, and to come to that conclusion, upon the construction of 
 these Acts of this Scottish Parliament, which will do, what I know your Lordships 
 desire to do, justice to all parties who seek it at your hands. 
 
 Adjourned to Friday next at 2 o'clock . 
 
 2R2 
 
( 311 ) 
 
 FRIDAY, bth AUGUST, 1853. 
 The Lord Redesdale in the Chair. 
 
 SPEECH OF THE LORD CHANCELLOR. 
 
 My Lords, this case, which has occupied so much time,* is a claim by the 
 Earl of Crawford to the title and dignity of Duke of Montrose, and his claim arises 
 mider an alleged grant by King James IIL of Scotland, bearing date the 18th of May 
 1488. The matter has been so long before your Lordships, and so often mentioned, that 
 I am afraid in mentioning any of the circumstances I shall be apparently calling your 
 Lordships' attention to matters which must be so fresh in your memory that you hardly 
 need even to be reminded upon the subject. But, at the same time, in order to make 
 clear to myself, as well as to your Lordships, that I do understand the case, I will 
 venture to call your Lordships' attention as shortly as possible to the different 
 documents and facts which are important in order to enable your Lordships to arrive 
 at a correct conclusion. 
 
 With regard to the original charter some doubts were raised as to whether any 
 such charter ever existed.f But for the purpose of the motion which I am now about 
 to submit to your Lordships, I shall assume that it did exist, and that, on the 18th of 
 May 1488, King James III. of Scotland did execute a charter, the outline of which I 
 will now state to your Lordships. It begins by saying that " It contributes to the glory 
 " and honour of Kings, when persons of illustrious race, their illustrious merits exacting 
 " this, are preferred to exalted dignities," and so on. " Hence it is that We, reflecting 
 " upon the actual obedience and the grateful and commendable promptitude which our 
 " faithful and most dear cousin David, Earl of Crawford and Lord Lindsay, has ex- 
 " hibited towards us, with unwearied zeal and in many modes ; and especially considering 
 " that he has freely, frequently, and effectually exposed his own person, his nobles, and 
 " his vassals, to perils for the protection and defence of our person and crown, also pre- 
 " serving our honour, and chiefly and most recently against our faithless lieges who 
 " opposed themselves against our Majesty and standard in the field of battle at Blackness, — 
 " as well as for his service to be paid unto us in future; we [therefore], willing that the 
 " same David, our cousin, should shine with ampler dignity, and changing the foresaid 
 
 * The length of time occupied 'by this case having been dwelt upon repeatedly, in the succeeding Speeches, to the 
 prejudice of the Claimant, he is compelled to observe that most Peerage Cases, even of the narrowest dimensions, have 
 occupied much longer time than the present. On this point vide the Address, supra, pp. xiii, xiv. 
 
 t The presumption of law is quite in the Claimant's favour, the Patent being fully, formally, and unexceptionably 
 recorded in the Great Seal Register; and such registrations are admitted in Peerage Claims, both Scottish and English, as 
 proved in the Supplemental Case, p. 187, and supra, Anal., p. vi. ("). The Lord Advocate and Lord St. Leonards admit 
 the Patent ; and so does the Resolution. Ibid. The contrast between the Lord Chancellor's scepticism in regard to the 
 Montrose patent, and his ready admission, in the same Session of Parliament, of the pseudo-Scottish Dukedom of Melfort, 
 attempted to be created by James II. after his abdication, &c. &c., has been pointed out in the Address to Her Majesty, 
 supra, p. XLI, note C"). 
 
 (*) Reference is made here, and elsewhere, for the sake of brevity, to the Analysis of the entire argument. 
 
( 312 ) 
 
 ' title of Earl into a greater and loftier one, have, from our certain knowledge, plenitude 
 ' of power, and special grace, exalted, made, and created, and by the tenor of our present 
 ' charter we do exalt, make, and create the said David our cousin, a Duke, to be entitled 
 ' and called in all future times Duke, hereditarily, of Montrose,— willing and ordaining 
 ' the said David, our cousin, and his successors in the said Dukedom, to be called Dukes. 
 '' And . . we give and grant to the same [David] hereditarily the capital messuage and 
 ' place of the Castle of Montrose, . . called the Castle-stead," with " the burgh and 
 ' town of Montrose," and " the port and haven of the same burgh, with its pertinents, 
 ' with the water-rights and fishings appertaining to us," for ever— and we have given 
 the " great and small customs" for ever—" we have given and granted, and by the tenor 
 ' of this present charter we give and grant, hereditarily, to the same Duke the capital 
 ' messuage and Castle-stead of our Lordship of Kinclevin, and the dominical lands of 
 ' the same," — ' which said capital messuage and other lands we create into a Dukedom 
 (sic).' Then it states the lands of Kinclevin to be the same " which the spouse of the 
 ' late William Haket now has for life," " which capital messuage and Castle-stead of 
 ' Montrose, and burgh and toAvn of Montrose, with the . . liberties of the same, and also 
 ' the capital messuage and Castle-stead of . . Kinclevin, and the dominical lands of the 
 ' same, and . . the other lands of the said Lordship of Kinclevin," and so on, are now 
 ' created . . and incorporated . . into a real and free Dukedom, to be called . . the Duke- 
 ' dom of Montrose," and " to be held and had by the same David and his heirs " — 
 in the Latin, " dicto David et heredibus suis" — " of us and our successors. Kings of 
 ' Scotland, in fee and heritage, and in free Duchy, as also in free regality, for ever :" — 
 ' The said David and his heirs rendering from thence annually to us and our successors, 
 ' Kings of Scotland, a red rose, at the said capital messuage of Montrose, on the Feast 
 ' of St. John the Baptist, in summer, in name of blanchferm, if only it be demanded." — 
 That was the original grant. 
 
 My Lords, two questions arise upon this. First of all, ' Is the grant/ which we 
 will assume for the present was clearly made, ' now a valid grant and in force ? ' ' If it is, 
 ' has the Noble Claimant made out that he is the party entitled under that grant ? ' — The 
 case branching out to a very great length, it was the opinion of your Lordships that the 
 more convenient course to take would be to have these two matters decided separately. 
 Of course, in order to entitle the Earl of Crawford to the title of Duke, he must make 
 out both propositions. And it appeared the most convenient course that they should 
 be separated into two propositions, and that one should be decided before the other was 
 entered upon. Of course the decision of that in one way might render any further 
 inquiry unnecessary. Now, my Lords, the only point which has been considered is the 
 first, viz., ' Whether or not, upon the evidence, the acts, and the documents which have 
 ' been before your Lordships,* it has been made out that that grant is now a grant in force 
 ' for the benefit of some one, if there be any person answering to the description of 
 ' " heredibus " of the original grantee.' 
 
 A Peerage, it was said, can only be lost by attainder or some other acts, none of 
 whicli, it is said, has been shown to be applicable to the present case, and therefore that 
 grant must remain in force. But, on the other hand, it is said that, although by no 
 ordinary course can a Peerage end except by attainder, or some other mode in Scotland 
 yet there must be one exception to the rule so defining the mode in which a Peerage 
 may become alienated, for it may be put an end to by what we sometimes call the 
 
 * It is to be observed that the Opinion of the Committee has been pronounced in this case lefore the evidence was 
 printed, and necessarily before its full bearing could be clearly appreciated by the Committee — which the Claimant believes to 
 be absolutely unparalleled in peerage claims. The precedent thus established is a most dangerous one, and one that (if adhered 
 to) must prove highly prejudicial to all future Claimants of dignities. See the Address, supra, pp. zi, xn. 
 
{ 313 ) 
 
 omnipotence of Parliament. Parliament can destroy a Peerage, or take a person's pro- 
 perty^ or do anything else.* Then it is said that this Dukedom, almost immediately 
 after it was granted (having been granted in the month of May), in the following 
 October was destroyed by the operation of an Act of Parliament directed against it, and 
 which expressly destroyed it. 
 
 My Lords, in order to understand this, it is necessary to revert to what has been 
 so often mentioned, namely, the circumstances of the times. The grant was made by 
 King James III., on the 18th of May, at a time when he was at war with his nobles, and 
 had had a battle with them at Blackness, in which he had worsted them. Those nobles 
 had on their side his son, who afterwards became James IV. How far he took an active 
 part is a matter left for further inquiry, and we need not go into it ; but undoubtedly we 
 may treat his son as at that time in league with the nobles who were opposed to his 
 father, King James III. In that state of things King James III. granted this Dukedom 
 on the 18th of May. On the 1 1th of June following, James III., with those nobles 
 who adhered to him, including amongst them the Earl of Crawford, then Duke 
 of Montrose, had a battle with the other nobles who took the part of the young 
 King, and who had secured the young King on their side, and the result was the total 
 defeat of James III. He was himself killed in the battle, and many of his nobles perished ; 
 but not amongst them the Duke of Montrose. Of course what followed, as might natu- 
 rally be anticipated, was confiscation, and all those terrible events that always follow 
 civil broils of this sort. James IV. met his Parliament, or rather his Parliament as- 
 sembled, in the following month of October; and on the 17th day of October an Act of 
 that Parliament was passed which is what gives rise to the present question. It is the 
 Act which, in the course of this argument, has been called the Act Rescissory. 
 
 My Lords, in this case I will read the original, because it is almost as easy to 
 understand as the translation put into more modern language. " Item, anent the Procla- 
 " macione maid at Scone "■ — that was the Proclamation made by James IV., who after- 
 wards became King, in favour of the Lords who adhered to him, and against those who 
 had taken part against himf — " it is statut and ordanit that all alienacions of landis, here- 
 " tage, lang takkis, fewfermez, officez, tailzeis, blanceferm, creacion of new digniteis, 
 " grantit or gevin to ony persone or persons, quhat estate, condicioun, or degre that 
 " ever thai be of, sene the secund day of Februar last by-past, be umquhile our Soverane 
 " Lordis faider, quham God assoilze, quhilk mycht be prejudicial to our Soverane Lord 
 " and to the Croune that now is, be cassit and adnullit, and of nane effect nor force in 
 " ony tyme to cum, becaus that sic alienacion, giftis, and privilegis war grantit, sene the 
 " said tyme, for the assistance of the perverst counsale that war contrar the comon gud of 
 " the realme, and caus of the slauchter of our Soverane Lordis Fader." 
 
 Now the question is, ' Did, or not, that Act of Parliament, or whatever it was^J 
 ' annihilate the grant of the Dukedom of Montrose that had been made on the 1 8th of 
 ' May preceding ? ' — I take it to be a matter that can admit of no controversy, that if it 
 was an Act of Parliament, and if the " creacion of new digniteis " is an expression pro- 
 perly referring to the creation of the Dukedom of Montrose, the effect of it was to 
 
 * Not, the Claimant submits, without just cause, or in violation of existing law, through its own inherent and inde- 
 pendent despotism, overriding existing law. But the Claimant cannot discover any passages in the argument of the Crown 
 from which the sweeping doctrine here attributed to it by the Lord Chancellor, and adopted (as will presently appear) by 
 himself, can be inferred. 
 
 t This is a mere inference, for nothing is known respecting the Proclamation. Vide supra, p. viii. At any rate, 
 whatever it was, it was ineffectual in law,— and this is admitted by Lord St. Leonards, infra, p. 346. The Lord Chancellor, 
 here and above, recognises the fact that James III. was King till the moment of his death, — which is repeatedly denied by 
 Lord St. Leonards, although in the face of the testimony of James IV. and the Parliament at the time, and throughout the 
 reign of James IV. 
 
 J Thus not asserting it positively to have been an Act of Parliament. 
 
( 314 ) 
 
 destroy that creation.* It was not necessary that there should be any attainder or any 
 other Act of Parliament. As I have already stated. Parliament was omnipotent.! 
 
 ISiow, primd facie, I think it must strike everybody, that not only it may point to 
 that creation, or any other creation of a similar sort, but that it is impossible for language 
 to do so more clearly. J All the creations of new dignities, alienations of lands, &c., are 
 abolished. It is true that it goes on to say, " which might be prejudicial to our Sove- 
 " reign Lord and to the Crown that now is." But what is the meaning of that? Does 
 it mean, as was contended on the part of the Claimant, that nothing was abolished that 
 was not prejudicial, and so that it was to be left open to argument, in each particular 
 case, whether it was or was not prejudicial — or is it merely an inaccurate (if it be in- 
 accurate) way of explaining the motive that induced the Legislature to annihilate those 
 gifts ? Does it mean that such of the alienations of lands and grants of new dignities 
 as may be prejudicial to his successor shall "be cassit and adnullit ?" or does it mean that 
 " all" those alienations and creations of new dignities shall be annulled " because " they are 
 or "might be prejudicial " to the successor? My Lords, I must confess that the latter 
 appears to me to be the clear meaning of the words. § And if there were any doubt upon 
 that subject, I think all possible doubt is removed by the statute to which both parties 
 before your Lordships — that is, both the Claimant and the Crown — have referred, but 
 which seems to me to put beyond doubt the proper interpretation of this part of the 
 prior statute. 
 
 I allude to the statute passed about a year and a half afterwards, on the 15th of 
 February 1489, Old Style, 1490 New Style, in whichi find that this was ordained:—" Item, 
 " it is thought expedient, that because there was a statute made in our Sovereign Lord's 
 " Parliament that now is, holden at Edinburgh on Wednesday, the 8th (sic) day of October, 
 " the year of God 1488 years, declaring all alienations of land, heritages, long leases, feu- 
 " firms, offices, tailzies, blenchfirms lands made of ward, of none avail, after the second 
 " day of February, which was the day of our Sovereign Lord that now is coming forth 
 " of Stirling, unto the coronation of our Sovereign Lord's Highness, made by his father 
 " of most noble mind, made of none avail, force, nor effect, for certain causes contained in 
 " the said Act and Statute ; that therefore all they which got the pretended gifts of aliena- 
 " tion of heritage, long leases, feu-firms, offices, tailzies, giving of blenchfirm of ward 
 
 * No, — for, 1. -By Scottish law the validity of a statute depends on instant actual operation as well as on subsequent 
 usage and custom (S. Case, pp. 25 sqq., and even here the case is in the Claimant's favour) ; and, 2. The expression might 
 properly refer, and yet not be effective without legal application by trial and conviction — which certainly never took place 
 (supra, pp. XX sqq., cxxiv sqq.). The consequence of the Lord Chancellor's position must be that general words may 
 henceforward destroy a peerage— vihXch. is a solecism and against practice and precedent, as established inter alia by the 
 Norfolk decision in 1425 (supra, pp. xvi, xvii). 
 
 t The argument here, as adopted and enunciated by the Lord Chancellor, amounts to i\iis—that Parliament may 
 do any injustice lawfully. The Claimant would refer here to his observations in the Address to Her Majesty 
 supra, pp. xvill sqq. 
 
 J Mere " pointing " to a dignity, however clearly and unmistakeably, is insufficient, in legal practice, to affect it. Much 
 more is requisite. To touch or affect an honour, it must not only be specified, but in the clearest and most particular and 
 palpable manner. Every principle and res judicata is here in favour of the Claimant— from the Norfolk judgment in 1425 to 
 the testimony of Lord Brougham in the Waterford case in 1832, as quoted supra, p. xxv. 
 
 § This is not the strict construction prescribed as applicable to penal statutes, but rather a stretching and straining 
 of the Act to tlie utmost, amounting almost to a juggle with its words, with the object of giving it the widest possible con- 
 struction. See the Address, supra, pp. xx, xxii, xxxi. The " because" comes in elsewhere in the original, which rescinds 
 such grants as " might be prejudicial" to King James IV. "because" those grants were made to the opponents of the 
 successful faction, whose support of the late King against them had occasioned his slaughter. The juxtaposition of the 
 " because," as in the text, is thus quite arbitrary on the part of the Noble and Learned Lord. It may be observed too that 
 the fact that that very reason, ushered in by the " because," is not applicable to the Duke, who was not the murderer of 
 James III., negatives by Scottish law the applicability of the Act to the Duke, as shewn supra, p. xxiv. In fine, the Crown 
 was bound to shew that the grant of the Dukedom was " prejudicial " to the Crown of Scotland as represented by' James IV. 
 —either as having been granted to an unworthy person, or impoliticly, or otherwise— in support of their argument that 
 the Act could destroy the honour. But they have not even attempted to establish such " prejudice." 
 
( 315 ) 
 
 " lands, should bring their letters and evidents granted hereupon to our Sovereign Lord 
 " within 40 days" that they might be cancelled. 
 
 It appears to me that the legislature there have put their own construction upon 
 the former statute ; because they have here said that there had been a statute passed, 
 declaring all those alienations of lands of none avail ; and they therefore called upon 
 the persons to surrender their title-deeds,— clearly shewing that it was not to be a question 
 in any case whether it was prejudicial ; but that the reason why the legislature thought 
 fit to interfere was because it was prejudicial. The legislature clearly thought that all 
 those alienations of lands were hit at by the former statute, and they enact that every 
 one must come and surrender his title-deeds.* I am aware that in this Act there is no 
 mention of titles and dignities ; but I do not think that that signifies at all.f Probably 
 every creation of a dignity contained (as I think we certainly see in this case) a grant of 
 lands. There might have been a creation of a dignity without lands. In that case the 
 surrendering the title did not signify at all; but the surrendering the titles to lands 
 might be very important, because they might get into the hands of other persons and 
 questions might arise as to the title afterwards ; but no such difficulty could exist with 
 respect to a mere title of honour ; and that affords a very good reason for the legislature 
 not having mentioned the creation of dignities in the second Act.J 
 
 Therefore putting, as I said, upon that first statute the clear interpretation that 
 all new dignities that had been created by King James III. since the day mentioned, 
 namely, the preceding 2nd of February, were struck at by that Act, called the Act 
 Rescissory, if I had any doubt about it, it seems to me that that doubt is removed by 
 the subsequent statute ; but, independently of that subsequent statute, I should have had 
 no doubt. If that is so, my Lords, in truth, if we could be quite certain about it, if that 
 admits of ho possible doubt, there is an end of the case ; because I certainly feel that the 
 exact question, and the only question that we can be called upon to decide, is, ' Did that Act 
 ' of Parliament destroy this Dignity, or did it not ? ' As I have already stated to your Lord- 
 ships, construing the Act of Parliament in the Avay in which I construe it, confirmed by 
 the subsequent Act of Parliament, I think it clearly did. But, although that is the view 
 I take of the subject in construing these very ancient Acts of Parliament, undoubtedly 
 the principle has been often acted upon, and not unwisely or improperly, that matters of 
 this sort, being in very great obscurity, may sometimes be elucidated by what has been 
 called contemporanea expositio — seeing how they were understood at the time. And if 
 
 * The Claimant does not see how an argument as to the meaning of the Act Rescissory can be drawn from a mere 
 general reference to it in a posterior Act, which reference cannot be expected to contain attendant qualifications or conditions. 
 While, if the posterior Act be allowed to explain or determine the earlier one in one point of view, it must also, by parity of 
 reasoning and in common justice, be allowed to do so in another, i.e. in the marked omission of dignities — proving, under 
 any circumstances (whether on the grounds urged by the Claimant, or on the principle of interpretation adopted by the Lord 
 Chancellor), that fAey were not affected by the Act Rescissory. The mere passing of tJie second Act establishes the fact that 
 the first had proved ineffectual, and the passing of the third in 1493 shews that both the two former had tumxd out abortive — 
 dignities being omitted in the Act of 1493 as well as in the intermediate one of 1489-90 : — While the continued enjoyment of 
 the grants of James III., as proved by the Claimant, and the fact (also proved and which has not been denied) that the 
 charters ordered by the Act 1489-90 to be brought in and destroyed were not brought in and destroyed, but remain till the pre- 
 sent day in the hands of the representatives of the grantees, equally demonstrate that the Act Rescissory and the Supplemental 
 Act which endeavoured to prop it up were null and void ab initio.—For the Acts 1489-90 and 1493 vide infra, pp. 381, 382. 
 
 t With submission, it signifies everything. See note J on the preceding page. 
 
 I There is a slight contradiction (apparently) here, the Lord Chancellor, first, asserting that the patent " in this case . . 
 " contained . . a grant of lands," and afterwards, that the creation being of " a mere title of honour," without lands, it was not 
 necessary to mention it in the Supplementary Act of 1489-90. In no case, however, the Claimant contends, could so high a 
 subject as a dignity have been thus omitted, or a grant of a dignity with lands have been described as of lands only — especially 
 in an annulling or deprivatory statute. There was another reason too for annulling or cancelling an abstract grant of a dignity 
 by James III. (supposing such to have existed), viz. to exclude heirs from the possibility of claiming afterwards in terms of it 
 (as by the right recognised in the Norfolk judgment, infra, p. xvii). Patents thus behoved a fortiori to be nominatim or 
 specifically mentioned in the Act 1489-90, and to be brought in and destroyed. But the fact is, that neither the Dukedom 
 of Montrose nor the Earldom of Glencairn, the only two dignities here in question, was created as " a mere title of honour," 
 as suggested by the Lord Chancellor, without lands,— but e contra, as witnessed by the Patents ; and therefore the Lord 
 Chancellor's hypothesis, accounting for the omission of dignities in the Supplemental Act, is utterly without foundation. 
 
 2 S 
 
( 316 ) 
 
 such a principle is in any case admissible^ I think it is pre-eminently so in a case of this 
 sort, where all is in great obscurity, not only from the lapse of three centuries and a half 
 and more, but from the troubles of the times and from other causes.* Therefore it is that 
 great attention has been directed to see how far contemporaneous exposition Avould 
 enable us to come to a conclusion, one way or the other, as to what was understood to be 
 the effect of the Act Rescissory. 
 
 Now, my Lords, I must confess that it appears to me that there is a body of 
 evidence shewing that it was understood by everybody at the time to have annihilated 
 the Dukedom ; and that it was so acted upon at the time, and acted upon afterwards 
 down to the time at which I have the honour of addressing your Lordships, — though it 
 was exceedingly improbable that, in a case involving all the difficulties of antiquity 
 which attend this case, such a body of evidence should be found. It is rarely indeed 
 that you can, by diving into the past, have a matter brought out so clearly as to what 
 was the interpretation at the time. 
 
 Now, my Lords, if the dignity was annihilated, what would you expect to hap- 
 pen ? I should state that it is not very improbable that there was a sort of pardon granted 
 to everybody, or almost everybody, for having been in arms against the party of the new 
 King.f It would have been inconvenient to have acted upon any other principle. What 
 therefore would you expect ? Why, you would expect that one who had received a 
 grant of a dignity, the Dukedom of Montrose for example, would thenceforward appear 
 — not under the title of Duke of Montrose, but under his former title. That is exactly 
 what happens, as I think you will see presently. J What happened further was also what 
 was exceedingly likely to happen. The Duke of Montrose made his peace, to a certain 
 extent, with the successor of King James III. ; § the successor took from him, either by 
 force or by fraud || — at all events, made him surrender some of his valuable possessions ; 
 and these were granted away by the successor elsewhere. Having done that, however, 
 having stripped him of a good deal of what he had before, he allowed him to make 
 his peace, and then he granted him anew the Dukedom, but granted it to him only for 
 the term of his life.^ What, my Lords, would you expect to see happen in respect to 
 that transaction? Why, you would expect to see the Dukedom, and that property 
 
 * For which reason the rule " In dubiis benigniora" should have been adopted, in favour of the Claimant. 
 
 t This would appear to be a mere hypothesis or assumption on the part of the Lord Chancellor. 
 
 J The Lord Chancellor infers this from evidence, the legal result of which, as interpreted by accepted peerage law 
 {supra, p. Ixx.), is that the Duke always took the Ducal title, and was recognised as Duke by James IV., between the Act 
 Rescissory and the Regrant. 
 
 § This assertion is mcoTTect,— the peace made between David Duke of Montrose and James IV. was without qualifi- 
 cation, the reconciliation was complete, the recognition absolute, as is legally proved, 1. By the Notarial Protest of Duke 
 David, 29th October 1488, which has been urged against the Claimant by the Crown and by the Noble and Learned Lords 
 who have spoken on this claim throughout the discussion, and the words of which are as follows :— " David Dux de 
 " Montrose . . exposuit, qualiter post magnam displicientiam quam . . Jacobus Scotorum Rex, Quartus, conceperat contra 
 " personam suam, ac contra consanguineos, amices, et homines sues, ex eo quod steterat et constanter permansit cum . 
 " Rege suo, Jacobo Tertio, apud Strivelyng et alubi, ubi diem suuni clausit extremum, . . nichilominus, hiis transactis 
 " excellentissimus Rex noster Jacobus modernus, ex suo speciali favore et innate regali gratia, remisit et indulsit sibi omni- 
 " MODAM hujusmodi displicientiam per literas suas patentes, sub sigillo privato signatas," &c.— and 2. By the testimony of 
 James IV., in the preamble to the Regrant of the Dukedom, 18th September 1489, to the effect that the Duke had been 
 always loyal both to his father and himself. The peace made between the King and the Duke was therefore absoldte not 
 restricted to "a certain extent" only, as stated by the Lord Chancellor, nor was he "received partially" (only) "'into 
 " favour," as afterwards represented by Lord St. Leonards, infra, p. 350. Much of the subsequent reasoning both of the 
 Lord Chancellor and of Lord St. Leonards flows from this assumption of a merely restricted pardon— the fruits of which they 
 hold to have been a Regrant of the Dukedom, although proportionably restricted, i. e. to the Duke's life-time only.— For 
 the Protest, vide p. 519 ; for the Regrant, p. 531, infra. 
 
 II An important admission of the unjust and illegal treatment to which the Duke was subjected. 
 
 If The (apparent) restriction to the life-time of the grantee only appears in the irregular and slovenly memorandum (in 
 the Great Seal Register) of the ' Litera,' 19th September 1489 :-There is no such restriction in the warrant of the Litera, 
 the Regrant itself by James IV. with assent of Parliament, 18th September 1489, by which the Litera falls to be interpreted' 
 —the language of which moreover necessarily implies an hereditary Dukedom, descending to the same heirs as those succeeding 
 to the Earldom of Crawford,— being in this (as the Claimant has recently ascertained) strikingly parallel to the grant of the 
 hereditary Dukedom of Lennox in 1581. Vide supra, pp. Lxxxyii. sqq., civ sqq. ; and infra, p. 531, n. *. 
 
( 317 ) 
 
 which was granted with the Dukedom, enjoyed from the time of that grant by the 
 grantee for the term of his life. That is exactly what happened.* The Duke of Mon- 
 trose, after the Act Rescissory, sat in Parliament as Earl of Crawford upon one occasion.^ 
 After the grant to him of the Dukedom he sat in Parliament as Duke of Montrose. 
 After the grant of the Dukedom he enjoyed during his life the rents of the property 
 granted to him with the Dukedom ; the customs of Montrose, the burgh rents of Mon- 
 trose, and the Lordship of Kinclevin.| He died at the end of the year 1495, the day 
 after Christmas day, and his widow retained the title of Duchess of Montrose till her 
 death, which happened thirty or forty years afterwards. His son succeeded him, and 
 sat in Parliament, not as Duke of Montrose, which, if the former grant was available, he 
 would be, but he sat in Parliament on two occasions as Earl of Crawford. The rents 
 which, as I have stated to your Lordships, were enjoyed by the Duke, the property 
 granted with the Dukedom, was held and enjoyed by him during his life ; the Lordship 
 of Kinclevin, the customs of Montrose, and the burgh rents of Montrose. But the 
 Exchequer officers still kept these properties in their books ; which they would do in a 
 case where the property was being enjoyed by the grantee only for a limited time, but 
 which they would not do had it been given away in perpetuity — ^they would then have 
 had nothing more to do with it. But they kept it in their books ; and, at the time of 
 the death of the Duke of Montrose, they again put themselves in charge, and charged 
 themselves with the receipt of the rents of Kinclevin, and the customs and burgh rents 
 of Monti'ose ; and they stated that they had not charged themselves with them previously 
 because they had been granted to the Duke of Montrose for life, but that he being dead, 
 they now accounted for them again, and the property remained in the hands of the 
 Crown. What became of the customs of Montrose, whether they remained in the 
 Crown perpetually afterwards, I do not know ; but the Lordship of Kinclevin remained 
 in the Crown till about fifteen or twenty years afterwards, when it was given away by 
 the Crown to a family of the name of Wardroper, who had collected the rents.§ 
 
 Now, my Lords, if these propositions are made out, I do not think that I am 
 wrong in stating that it is a most wonderful confirmation of the interpretation that I put 
 upon that statute, and shewing the interpretation that was put upon it at the time ; because 
 everything is in exact conformity with such a state of things, and inconsistent with any 
 other hypothesis. II The question therefore is, whether these propositions are or are not 
 made out. 
 
 * Argument from expectation and presumption is not generally considered safe or appropriate in inquiries like this — 
 where nothiTig but strict evidence, proceeding from earlier ascertained facts to later, on the principle of priority of obligation, 
 and interpreted by the strictest rule in favour of the Claimant, is admissible by Peerage Law. 
 
 t It is more than doubtful whether he was present in Parliament ; but that he is styled Earl of Crawford in a Com- 
 mission appointed on the last day of the Parliament of October 1488 is unquestionable. On this point— which, after all, is 
 of little comparative consequence — the Claimant would refer to his Analysis of the argument, supra, p. xciii, and to the 
 Appendix, infra, p. 626. 
 
 X He enjoyed Kinclevin before the Regrant, and up to the very moment of the Regrant — if not also the Montrose 
 Customs. And he never resigned them. See the Analysis, supra, pp. Ixxi sqq. 
 
 § It was necessary that the Crown ofBcers should keep Kinclevin and the Customs on their books, because there were 
 already charges on both properties from previous grants by the Crown, which had still to be paid by the Crown— the Duke 
 being entitled merely to what remained after the prior claims had been satisfied. Revenues from the Customs were always 
 received by the Crown officers in the first instance, and paid by them to the hereditary Crown pensioners. And as regards 
 the assumption that the ofBcers of Exchequer would not have kept the revenues on their books if granted away in perpetuity, 
 it may be answered by the simple fact, that Kinclevin itself was still kept on the books as Crown property after it had been 
 granted away to the Wardropers in perpetuity— or, as expressed in the charter (adduced in this case by the Crown, infra, 
 pp. 540, 542), " infeodifirma et hereditate imperpetuum "~on the 31st March 1512. The vesting of the lands granted by 
 the Patent 1488 in the Crown, to the prejudice of the heirs of the patentee, may be accounted for by the Act of 1493 
 (rescinding grants of lands, exclusively of dignities), as argued supra, pp. cxiii, cxxiii. And the Claimant has shewn, from 
 the evidence adduced by the Crown (^supra, pp. xxxiii sqq.), while it is admitted by the Lord Chancellor himself in the 
 case of David Duke of Montrose (supra, p. Ixxxvi; infra, p. 316), that gross and illegal tyranny and oppression were 
 exercised against the grantees and adherents of James III. at the time. 
 
 II The Lord Chancellor states this as the sum of the contemporanea expositio. The Claimant will point out hereafter 
 
 2 S 2 
 
( 318 ) 
 
 Now, with respect to the Dukedom being regranted, how is that made out? Why, 
 my Lords, we have an Act of Parliament on the 18th September 1489, not quite a year 
 after the Rescissory Act, which says :— " Be it known therefore to all men, as well present 
 " as future, that the said our Lord the King, considering the actual obedience and the 
 " grateful and commendable promptitude which his faithful cousin, David Earl of Craw- 
 " ford " (the person who, upon the hypothesis of the Claimant, was Duke of Montrose at 
 this time), " David Earl of Crawford and Lord Lindsay, and his illustrious predecessors, 
 " have exhibited towards the predecessors of the said our Lord the King, Kings of 
 " Scotland, and towards the same our Supreme Lord the King, unweariedly and in 
 " many modes; On account of which, and other his condign merits, and his services to 
 " be rendered in future times, the same our Supreme Lord the King being willing, from 
 " the debt of his regal magnificence, to pursue the said David with still ampler favours 
 " of grace and honour,— And since, moreover, the previous Earls of Crawford, his pre- 
 " decessors, worthily to be held in worship, have held their foresaid Lordships from 
 " ancient times by the title of Earldom -.—Hence is it, that our Supreme Lord the King, 
 " Avilling that the said David, his cousin, should shine Avith ampler dignity, and changing 
 " the foresaid title of Earl into a greater and higher one,* has, by his certain wisdom, 
 " plenitude of power, and special grace, elevated, made, created, and anew raised the 
 " said David, his cousin, Duke of Montrose, to a Dukedom, willing him to enjoy and 
 " possess the name and prerogative of a Dukedom, according to the form and tenour of 
 " the Charter of the said our Lord the King, to be executed in favour of the said Duke of 
 " Montrose upon the terms premised," — the Act of Parliament indicating that the King 
 was anxious f that he should be a Duke, by the title of Duke of Montrose, in the terms of 
 the grant—" Secundum formam et tenorem carte dicti Domini nostri Regis dicto David 
 " Duci de Montross super premissis conficiende." 
 
 Now what was the Charter that was thus made pursuant to that Act of Parlia- 
 ment ? My Lords, the Charter itself is not forthcoming,! and it is not to be wondered at.§ 
 The wonder is that so many documents of those days are forthcoming ; but the Register- 
 book of the Great Seal has been produced to your Lordships, in which all documents 
 under the Great Seal Avere then, and still are, I suppose, registered. And persons con- 
 versant with those books tell you that on looking through them they find this distinction, 
 that in the case of grants which were made to parties of fee-simple property (and 
 probably the same thing would apply to a title), they are entered at full length very 
 often, and when a life interest is given they are entered shortly, a mere sort of abstract, 
 
 (infra, pp. 326, 361) how inadequately this contemporary evidence has been given by the Lord Chancellor and by Lord 
 St. Leonards. The Noble and Learned Lords pass over the Claimant's most important proofs without notice, and hurry 
 on to the Regrant — which they conceive to have been for life only — in order to interpret the Act Rescissory thereby. 
 
 * On the ground of these expressions, alone, the Claimant conceives that the Dukedom, as granted by the Act of 
 James IV., with advice of Parliament, 18th September 1489, must have been hereditary and limited to the same line of heirs 
 as the Earldom ; for how could the " title of Earl" held from ancient times by the Earls of Crawford, whose tenure of that 
 " Earldom" is pointedly referred to as the reason for the Ducal grant, he changed into a " Dukedom," and that " Dukedom" 
 he merely for life, to expire at the death of the grantee ? The force of the word " mutantes" or " chanqing,'' as applicable 
 to the interpretation of this document, would have appeared in the Claimant's argument on the subject of heirs in the second 
 part of the case, had he not been debarred from entering upon it by the determination of the Committee to consider the two 
 parts separately. The Claimant not having claimed under this second grant, he was quite unprepared for the insertion of the 
 additional clause, relative to this grant, in the Resolution, — with respect to which vide the preliminary Address, supra, 
 pp. XXVII sqq. 
 
 + On this expression vide Address, p. six, n. *, and Analysis, p. cxi, supra. ' 
 
 X An important admission. 
 
 § So important a charter as that in question would have been preserved or transmitted d fortiori in some way or other, 
 unless a mere re-issue of the original Patent by way of confirmation, which the Claimant contends it was {supra, pp. ci sqq.). 
 But the charter " not" being "forthcoming," the mere memorandum of the charter or ' Litera' cannot be argued upon as if it 
 was the charter itself in extenso — and most especially under the circumstances of legal exception that attach to this particular 
 entry in the Register, as noticed supra, p. giv. 
 
( 819 ) 
 
 although that is not perhaps as an absolute and universal rule. I think one gentleman 
 said that there was one case of a grant in fee-simple in which that did not appear, but 
 that that was the general rule, so general as to be very nearly universal.* Now, my 
 Lords, on the very day on which you would expect this Charter to be made, the day 
 after the passing of that Act, which was on the 18th of September, on the next day, the 
 19th of September, you find this entry in the Register,— I will read the translation,— 
 " A Letter has been given to the Earl of Crawford, creating him Duke of Montrose for 
 " the whole time of his life, and granting him the capital messuage and place of the 
 " Castle of Montrose," and " Kinclevin," the same property which was annexed to the 
 Dukedom granted under James IIL in fee. 
 
 Now, my Lords, can anybody entertain a rational doubt that it was under that 
 grant that the Duke held the property which he did hold, and all that was connected 
 with it? t As I have already remarked, if you want to see whether that was so or not, 
 consider what you would expect to be the state of circumstances if that was the truth, 
 and what you would expect to be the state of circumstances if that was contrary to the 
 truth.+ You find that everything harmonizes with the supposition that it was under 
 that grant, and that alone, that the Duke held his honours and his estates (the estates 
 which were coupled with the honours §), and is quite inconsistent with the hypothesis 
 that he held it under anything else. The Litera expressly says that there had been a 
 grant made to him for his life, and it is entered in the Register in the mode in which 
 life grants ordinarily were entered. And, my Lords, you find that he did hold it for his 
 life ; and you also find that at his death all the property was accounted for to the 
 Crown, and that it has been in the possession of the Crown or its grantees ever since. |1 
 You find, further, that the son of the Duke sat in Parliament, not as Duke of Montrose, 
 but as Earl of Crawford, although the Duchess continued still to be the Duchess of 
 Montrose (not his mother, for there was a second marriage) for nearly forty years 
 afterwards.^ 
 
 But, my Lords, is it true that he received these rents in the way I have stated ? 
 Yes. And it is made out with a degree of certainty which was hardly to be expected. I 
 am referring now to the statement in the Supplemental Case of the Claimant. This 
 appears from the Exchequer Rolls, that the collector of the Crown rents rendered an 
 account on the 4th of July 1491, for a year. Now it is necessary to understand that 
 the Exchequer accounts were rendered about the month of July in every year. The 
 
 * For the evidence of Mr. Melville and Mr. Fraser, appearing respectively for the Claimant and the Crown, with 
 reference to this point, the Claimant would refer to the Appendix, infra, pp. 533 sqq. The instance referred to by the 
 Lord Chancellor, of an abridged entry of an hereditary grant, was one discovered by Mr. Melville on a search at the request 
 of the Committee in a volume of the Great Seal Register then before the Committee. It is printed infra, p. 534. Other 
 instances are given in the S. Gase, p. 129. The Lord Chancellor's recollection on the above, as on other points, would have 
 been much assisted by reference to and consideration of the evidence and Minutes of Proceedings in print. 
 
 + The Duke held the lands of Kinclevin under the original Patent 14S8 at the very moment when this Regrant was 
 made — the Lord Chancellor himself admitting (as on the following page) that " doubts " were entertained whether or not 
 he was entitled to them, (a matter respecting which not a shadow of doubt could have been entertained if the Act Rescissory 
 had destroyed the original patents,) and that a " sort of compromise " was therefore adopted by the Crown ; and, by general 
 admission, there was no resignation. The Duke had also been expressly recognised as Duke by James IV., and in such a 
 manner as, by Scottish law, entirely to rehabilitate him, even if the Act had taken effect. 
 
 X This is again reasoning retrospectively instead of prospectively^'rom expectations and hypothesis, not from antecedent 
 and ascertained vACT — the broad basis on which, as interpreted by Peerage Law, the Claimant rests his pretensions. More- 
 over, speculations based on the assumption that the times were as quiet, and that law and justice took their course as 
 regularly, in the fifteenth as they might be expected to do in the nineteenth century, run great risk of proving erroneous. 
 
 § But not inseparably — the effort throughout the opposition to this claim being to connect the fate of the estates and 
 the Dukedom, so as to infer the extinction of the latter. On this point see the Analysis, supra, p. cxiv. 
 II This must have taken place either through the Act 1493, or through injustice, as stated. 
 
 If All accounted for by the fratricide committed by John Earl of Crawford, by the tyranny of James IV., the extreme 
 jealousy of the nobility against the introduction of the title of Duke among them, &c. — Supra, pp. cxvii sqq. 
 
( 320 ) 
 
 rents of all the property were payable apparently at Whitsuntide on the 15th of May, 
 and at Martinmas on the 11th of November. Therefore the accounts which were 
 rendered in July would always include the rents of the preceding Martinmas and the 
 preceding Whitsuntide. On the 4th of July 1491, the collector rendered his accounts, 
 and he shewed that Kinclevin was still in charge, and he was still charged with those 
 rents. Now, if the theory of the Claimant is right, from Whitsuntide 1488 the receiver 
 of the Crown had nothing to do with Kinclevin.* So he goes on from year to year, but 
 always returning that though it was in charge to him he had no money forthcoming, 
 because he stated that the Duke of Montrose had taken to his own use all the rents and 
 the fines. This went on for two or three years, but finally he renders an account in July 
 1492, which would include the accounts for 1491, 1490, 1489, and 1488; the accounts 
 therefore are from July 1488 for four years, during all which time the Duke, under the 
 original grant, would have been entitled to those rents, and he charges himself vsdth the 
 rents for all those four years. If the original grant had been in operation, the Duke 
 would have been entitled to have kept all these rents. But if, on the other hand, the 
 Duke was only entitled from the date of the regrant in the next year, he would have 
 been entitled to three years only.f Now it appears that there were disputes and doubts 
 as to what was to be done on this subject. The times were not very quiet, and what 
 was done by the order of the King was this : three and a half years were paid to the 
 Duke of Montrose, or rather allowed — not paid J — because he had received them himself. § 
 It is suggested in some of the papers before me,|| and I cannot help thinking with some 
 degree of probability, that this was a sort of compromise. The Duke at that time had 
 become reconciled to the Court. And the question arose, was he to be charged vnth this, 
 or was he not ? He was clearly entitled to it from September 1489, when his new 
 grant was made, and he had received it during the whole time during which the receiver 
 of the rents had charged himself with the amount. Then what is to be done ? Let 
 him take three and a half years. It appears to me that that obviously was a sort of 
 compromise.^ But whether it was or not, seems to me quite immaterial. The im- 
 portant point is this, that after his death none of those that came after him had a farthing.** 
 
 * The fact, already mentioned, that Kinclevin is retained on the books after the grant to the Wardropers in 1512 
 
 answers this objection. The Lord Chancellor entirely passes over the important vfords " per solutionem factam " by payment 
 
 made — " Domino Duci de Montrose" of the rents during the interval between the two patents, — proving that Duke David 
 received them of right, and not by favour. Vide supra, pp. Ixxiii, Ixxvii. 
 
 t No, — to one year and (not quite) ten months, only ; viz., from the 1 8th September 1489 to the 13th July 1492. 
 
 % The vioris, are " per solutioitem factam ' — by payment made— not allowance. The word " allocare " had not the 
 same meaning then that " to allow " has (popularly) now. It is explained by Ducange as a forensic word implyin" 
 " admittere rem ut veram et probatam ;" and the statement in the Rolls is thus to the effect that the Duke's claim, having been 
 referred to the King in Council, was recognised as " just and proved," and he ordered the rents that the Duke had uplifted 
 since the date of the original patent to be "admitted" into the accounts as "paid" to him — and necessarily of right and 
 not of favour. Vide supra, p. Ixxiii, and infra, p. 512, n. *. 
 
 § He had received them undoubtedly — as proprietor. 
 
 II Not by the Claimant — only by the Attorney-General. 
 
 f The Lord Chancellor admits that there were " disputes and doubts," and the suggestion is, that they were solved 
 by a compromise. If there were " disputes and doubts," then the Claimant is entitled to the benefit of the rule In dubiis 
 benigniora. But if the Act Rescissory had applied to the Patent, there could have been no disputes or doubts, for the Duke 
 would not have had a vestige of right to Kinclevin. The half year withheld is for a term subsequent to the regrant,— why it 
 was so withheld the Claimant cannot say, and, being subsequent, it is a matter of indifference to his argument. But if the 
 Act Rescissory had applied, the Claimant submits that it is impossible but that the rents unduly uplifted by the Duke' would 
 have been exacted and recovered by process before the Lords of Council and Session, or Supreme Civil Court, as in all similar 
 cases,— and not for half a year, or one term, only, but for the full period between the original grant and 'the regrant, the 
 rents of which the Duke had (in that view) unwarrantably drawn. This however was not done— and the question raised by 
 the Collector as to the Duke's right to the rents which he had received was settled by the mandate of the Kino- in Council 
 that the rents should be counted as paid— and they accordingly appear in the books as " per somtionem factam'. . Domino 
 " David Duci de Montrose," and without the words "ex gratia" or "ex tollerantia," which always accompany remission or 
 grant by favour or indulgence. Vide supra, pp. Ixxiii. sqq. All this is overlooked by the Lord Chancellor. 
 
 ** Owing either to the Act 1493, or to tyranny and injustice.- With submission, tU important point is, whether the 
 
( 321 ) 
 
 Whether he was allowed to take the whole, or was only allowed to take by way of 
 compromise a portion of the rents of that year which accrued due between the original 
 grant and the second grant,* certainly that after the second grant those who came after 
 him had no interest in this property after his death is abundantly clear. And that is 
 the only important point. It was just the same thing with regard to the customs of 
 Montrose and the burgh rents of Montrose.f During those years there are no returns in 
 the Exchequer ; the Customer made no return at all. It is supposed that, they having all 
 been granted to the Duke of Montrose, he took no interest about it until his death, and 
 after his death he charges himself again just upon the same principle, namely, that that 
 property had now become in charge again to the Crown. 
 
 Then, my Lords, another course of argument was adopted. It was endeavoured 
 to be shewn that, although this Act Rescissory had, as it was alleged, destroyed the 
 dignity, that was a proposition in the truth of which the original Duke had never 
 acquiesced. Now if it was an Act of Parliament, whether he acquiesced or not was 
 totally immaterial. If it was destroyed by Act of Parliament, his protesting or his saying 
 that he would still call himself Duke of Montrose is utterly immaterial.| But when we 
 come to look at what the facts are upon this part of the case, I think that so far from 
 bearing out the proposition of the Claimant, they signally illustrate the truth of that 
 put forward in opposition to the Claim. True it is that on some occasions he did call 
 himself Duke before the new creation of the Dukedom,§ but they were all occasions that 
 were, so to say, behind the back of the Crown. || What were the instances ? First of all, 
 on the 2nd of August 1489, just before the re-creation — when by the way it might well 
 be that he had been told that he should be created Duke of Montrose anew, and when 
 therefore he might have done it with reference to what he was about to be, and not to 
 what he then was^ — but certainly on the 2nd of August 1489, he made a grant to the 
 Monks of Inverkeithing to institute a mass to pray for the souls of himself and his 
 
 Buhe was or was not duly vested under the original Patent — for if he was, and had not resigned his right (both which are 
 admitted*), then that right uvsr have been in him and in his heirs after him, whether recognised or not, tiU barred, as regarded 
 the estates, by prescription. The Lord Chancellor argues here, as before, retrospectively, not prospectively ; from theory and 
 hypothesis, not fact. 
 
 • No, — the whole of the rents accruing between the two grants were received by the Duke and paid to the Duke — " per 
 " solutionem factam." The half-year withheld was subsequent to the regrant. Vide supra, p. Ixxiii. 
 
 t The Act 1493 still applies here, and solves the diflBculty. 
 
 t The Claimant never denied this, but simply that the Act Rescissory had the effect attributed to it ; while he urged 
 that the Duke's right to the Dukedom was recognised by James 1 V. in such a manner as not only distinctly to testify that the 
 Dukedmn survived unaffected by the Act Rescissory, but also to neutralise (by Scottish and feudal law) any possible effect 
 from the Act, had it affected him. Vide supra, pp. Ixxx, Ixxxvii. 
 
 § Not on some occasions only— he always, without exception, took the title of Duke. The Crown has produced no 
 proof to the contrary of this. 
 
 II With submission, this is erroneous, and refuted, e.g., by the Procuratory of Resignation, 1st Nov. 1488, addressed by 
 the Duke as Ddkk directly to the King, and after due scrutiny of which by the Grown Officers, in the King's private chamber 
 and m his presence, the King accepted the Sheriffdom of Forfarshire from the Duke as Duke, through his procurator, &c., 
 as testified by the Instrument of Resignation and Donation, drawn up— not by the notary of the Duke but of the King, not 
 at the request of the Duke but of Lord Gray ; and in which Instrument he is styled throughout, in his absence, in the den of 
 his enemies, and by those enemies, with the King's authority, Duke of Momkose. Vide supra, pp. Ixxxiii sqq. ; infra, 
 pp. 522 sqq. 
 
 % The Claimant feels it difficult to deal with this explanation. It is a result of the doctrine of interpretation, not by 
 words but by intention, adopted by the House in this case, and on which the Claimant has commented in his preliminary 
 Address, supra, p. xx, xliv sqq., and also at p. xxiii of the General Analysis. But there is b. fatal objection to it in the 
 present instance, which the Lord Chancellor appears to have altogether overlooked, viz., that titles were not then assumed till 
 APTEB inauguration on the Patent. If the original Patent had been cut down by the Act Rescissory (as supposed by the 
 Noble and Learned Lord), the future Duke could not and would not, by invariable practice, have styled himself Duke till 
 after his inauguration under the Regrant of September 1489. Vide svpjra, p. vi. 
 
 C) As especially by the Lord Advocate, who distinctly states also that the estates came into the King's hands thereafter, "not 
 
 that the Duke " was seised in them" (i. e. the estates) " just as " in ordinary feudal course by resignation, but simply from the 
 
 " much as he was seised in the Sheriffdom of Forfar," in virtue " operation of the Act."— Vide supra, p. 234. 
 of the original Patent, until the Act Kescissory out it down ; and 
 
( 322 ) 
 
 family, or some superstitious use of that sort. He made a grant of that sort, and in that 
 he describes himself as " the high and mighty prince, the Duke of Montrose."* The 
 grant was to institute a mass, for which I think 201. Scots were to be paid annually, and 
 it was to be called " The Duke's Mass."t No doubt he did that. And one can easily 
 suppose that he very likely would resist, so far as he could, what had been done by the 
 Act Rescissory. It shews that he wished to get rid of the effect of it, and he so called 
 himself.— Then there was another act that he did. He married only three days after the 
 passing of the Act Rescissory, J in the very same month of October, when undoubtedly he 
 had become Earl of Crawford only, according to the view which I take of the case, and 
 he executed a grant to his second wife, whom he was then about to marry, of a certain 
 charge upon some Customs in which he had an interest, the Customs of Aberdeen, the 
 Customs of Linlithgow, and some Customs of Montrose, which belonged to him, not by 
 virtue of the grant with his Dukedom, but by a prior title, §— and in that grant he styles 
 himself " Duke of Montrose." But that grant required the confirmation of the Crown 
 in order to be valid, || and reliance was placed upon this, that the Crown did confirm it. 
 No doubt the Crown did confirm it, but it confirmed it to him by his title of " Earl of 
 " Crawford." So that the most that it amounts to is this, that, an instrument having in 
 all human probability been prepared before the passing of the Act Rescissory, for it bears 
 date only three days after,^ and he in that calling himself Duke of Montrose, the Crown 
 confirms it to him by an instrument describing him as " Earl of Crawford." ** What is 
 that but an intimation in the strongest way, that the Crown, though it did not mean to 
 question the grant he was making in favour of his wife, in effect said, ' We confirm it to 
 ' you, not in the title which you have chosen to appropriate to yourself, but in your true 
 ' title of Earl of Crawford ? ' 
 
 * The document before the Committee is not a charter by the Duke, but an instrument drawn up by the Franciscans 
 — an instrument emanating from the whole Franciscan order in Scotland, and at a time when the successful faction were 
 under sentence of excommunication from the Pope (as has been proved) for their rebellion against James IV., — and in this 
 document the Franciscans style him " Duke of Montrose.'' This was undoubtedly his just and lawful title in the ej'e of the 
 Pope, as father of Christendom, whose testimony is thus distinctly in favour of the Claimant, — and, had the effect of the Act 
 Rescissory been doubtful, had the Duke not been recognised as such by King and country subsequently to that Act (as it is 
 in evidence he was), the Claimant would have urged this fact as most powerfully in his favour. He would have inquired too 
 how far excommunicated men were legally capable of enacting statutes of deprivation, &c., such as the Act Rescissory — the 
 question being, not the opinion which English Protestants of the present day may entertain of the power, influence, and 
 authority of the Pope and the Church, but what that power, influence, and authority were at the close of the fifteenth century, 
 and how far that authority and testimony bear upon the matter under consideration. This, however, has not been necessary — 
 and the Claimant merely adduces the document here commented upon to prove that the Dukehore the title of Duke, familiarly 
 and as his right, subsequently to tlie Act Rescissory and hy recognition of the Church and tlie Pope, as well as of the Sovereign, 
 James IV. Vide supra, pp. Ixxxviii, Ixxxix. 
 
 t The amount mortified is matter of indifference to the argument ; but, in point of correctness, the sum was twenty 
 marks yearly, a considerable sum in those days, before the discovery of America. 
 
 t Of the date of the marriage there is no evidence. The grant to Margaret Carmichael bears date the 20th Oct. 
 1488. Married ladies, peeresses, being frequently designated in Scotland by what we now call their maiden names, she may 
 or may not have been Duchess of Montrose at the time when this charter was executed. 
 
 § The greater part of the Customs of Montrose belonged to the Crawford family before the grant of the Dukedom ; but 
 the grant in question to Margaret Carmichael is of 160 marks annually out of the Great Customs of Aberdeen — alone. The 
 family had no revenues from Linlithgow. 
 
 II No, — such confirmations were merely for the purpose of public registration, and added nothing to the validity of the 
 charters confirmed, as explained in the Claimant's Suppl. Case, pp. 85 sqq. ; and supra, p. xxvii. At the same time, the pension 
 from the Great Customs having been part originally of the Crown property, it may have been advisable to take a charter of 
 confirmation from the Crown, — and, if so, it adds greater weight to the Royal Recognition. But such confirmation was not a 
 matter of necessity. 
 
 1 The Claimant does not quite appreciate the logic of this inference — that, because the charter bears date three days 
 after the Act Rescissory, it was therefore prepared before it. 
 
 ** The Crown confirmed it "in omnibus punctis "— m every tittle, of course including the Ducal style and title in the 
 charter ; and in the contemporary title of the Confirmation (to which importance may be attached in re tarn antiqua) the 
 grantee is exclusively styled Duke of Montrose. It is only in the preamble that the Duke is styled ' Earl of Crawford.' See 
 the Appendix, infra, p. 514. The Lord Chancellor takes no notice of the precisely parallel and contemporary case, adduced by 
 the Claimant in the instance of the Earl of Lennox, in which the same misnomer occurs, respecting which yM^supra, pp. Ixxviii sqq. 
 
( 323 ) 
 
 But there was also another transaction which marks this distinction between 
 what he called himself, and what the Crown chose to call him, much more strongly. 
 Amongst the possessions of the Duke of Montrose was the valuable Sheriffdom of Forfar, 
 which he held in fee, and which I suppose was in those days a valuable possession. 
 Of course James IV. had a number of hungry followers, whom it was necessary to 
 satisfy by giving them something for the services they had rendered to him, or else they 
 chose to have it themselves. Amongst these was Lord Gray, and it was arranged 
 between Lord Gray and the Crown that the Sheriffdom of Forfar should be taken away 
 from the Duke of Montrose, and conferred upon Lord Gray. How was that to be 
 accomplished ? Why the King agreed that he would give a sort of pardon to the Duke 
 of Montrose, as the price for which he was to surrender this Sheriffdom.* It was quite 
 clear that he had no discretion in the matter. He was in the hands of his enemies, and 
 he was obliged to do it. Therefore what he did was this. He made, first of all, a 
 solemn Protest that Avhat he was doing he was doing by compulsion, preserving so far 
 as he could to himself the right to question afterwards what he was then doing. 
 Undoubtedly he came before the notary (for so it appears) by the title of " Duke of 
 " Montrose," and he protested against the arbitrary act that was being forced upon 
 him. Nevertheless, however, he makes the surrender, and this is the nature of the 
 transaction-! Having already stated the Protest, I do not know that I need trouble 
 your Lordships by calling your attention to the precise words in which it was made, 
 but the course to be adopted was this : — The party surrendering the property executes 
 a Procuratory of Resignation (a power of attorney, as we should say in this country) 
 to some other persons to make the necessary surrender. He might do it in person, but 
 he does it ordinarily by means of a Procuratory of Resignation. Now in that Procu- 
 ratory of Resignation, which was also an instrument made behind the back of the 
 Crown, he calls himself " David Dux de Montrose."| It is in this form : — " Excellentis- 
 " simo principi, ac Domino nostro metuendissimo, Dei gratia Regi Scotorum illustrissimo 
 " Vestre Serenitati si placeat, humilis ligius David Dux de Montrose ac Comes Crau- 
 " furdie reverencias omnimodas cum honore. Ad sursum reddendum, resignandum, ac 
 " pro nobis et heredibus nostris pro perpetuo, pure et simpliciter, quiete clamandum, 
 " totum et integrum oflicium Vicecomitatus de Fforfar," 8ec., "in manus Vestre Celsi- 
 " tudinis, tanquam in manibus domini mei superioris ejusdem, . . nobiles et potentes 
 " ac honorabiles viros, Patricium Comitem de Bothvele ac Dominum Halis, Alexandrum 
 " Home," and certain other persons, " et eorum quemlibet, conjunctim et divisim, meos 
 " veros, legittimos, et indubitatos procuratores irrevocabiliter facio et constituo, " — for the 
 purpose of surrendering up the title of " Vicecomitatus de Fforfar." In that, my Lords, 
 he calls himself Duke of Montrose. 
 
 * No, — a full pardon, remitting " omnimodam hujusmodi displicientiam," &o., as observed supra, p. 316, note J. 
 
 t The Protest, thus founded upon by the Lord ChancelJor, establishes the fact that a contract was entered into 
 between James IV. and the Duke, the conditions ofiohich were resignation of the Sheriffdom on the one side and full pardon 
 
 on the other — which conditions being fulfilled by the Duke — the " price " (as the Lord Chancellor terms it) being paid he 
 
 was entitled to complete recognition and favour from the King; and if the King had withheld that complete recognition, if he 
 had disallowed his title of Duke, if he had imposed a life-rent Dukedom on him, he would have been in maid fide — while hy the 
 Claimant's argument (that the right to the Dukedom and the estates was recognised, and that the Regrant was a virtual con- 
 firmation) he was not. The Protest is printed, with a translation, in the Appendix, infra, p. 519. 
 
 t The Procuratory cannot be fairly described as " made behind the back of the Crown," being a document addressed 
 directly to the King, and which came under the eyes of the King, and on which, after full inquiry into its authenticity and 
 correctness, and especially of its seal, bearing the Ducal arms and the Ducal style and title, the King acted — stylino' the 
 resigner ' Duke of Montrose' in the Instrument recording the transaction, drawn up exclusively by his (the King's) ownnotary. 
 The Lord Chancellor, it is to be observed, attaches the greatest importance {supra, p. 211, and infra, p. 332) to the use of a 
 seal bearing the style of " Dominus Kilmaurs '■ (appended merely to private documents), as shewing that to be the proper style 
 of the owner, and not ' Earl of Glencairn.' The Claimant submits that at least equal weight ought to have been allowed to 
 the use of the Ducal seal here — the seal in question being moreover of the most elaborate description, executed with full and 
 technical heraldic accuracy and precision, as may be seen by reference to the engraving of it at page 11 of the Supplemental 
 Case, and in the Appendix, infra, p. 521, where the Procuratory itself is printed, with a translation. 
 
 2 T 
 
( 324 ) 
 
 Then the next document that is put in is a sort of proces-verbal (as the French 
 would call it), stating what was done on that Procuratory of Resignation, — and a good 
 deal of reliance was placed upon this.* It is an account of what is alleged to have 
 taken place, drawn up by the notary ,-}• in which it is stated, " Per hoc presens publicum 
 " instrumentum cunctis pateat evidenter, quod, anno incarnationis Dominice millesimo 
 " quadringentesimo octuagesimo octavo, die vero mensis Novembris sexto, . . coram 
 " excellentissimo serenissimoque principi, ac domino nostro. Domino Jacobo Quarto, 
 " Dei gratia Scotorum Rege illustrissimo, . . ac mei notarii publici subscripti," &c., 
 " comparuit nobilis et potens dominus Alexander Home de eodem, procurator irre- 
 " vocabilis ad infrascripta magnifici et potentis domini David Ducis^de Montrose." 
 Then he delivers up into the hands of the King, the King himself being present, the 
 Sheriffdom of Forfar, — " Quibusquidem donatione, resignatione," &c., "sic factis, receptis, 
 " et admissis, prefatus dominus noster Rex totum et integrum dictum oflficium Vice- 
 " comitatus de Forfar," &c., granted to some other person.J 
 
 Now, my Lords, great reliance has been jilaced upon this — that this memorial 
 states that Alexander Home, as the procurator of David Duke of Montrose, came and 
 surrendered into the hands of the King, — but that again is not an instrument drawn up by 
 the Crown. § And it is not very likely that when the Crown had got the Sheriffdom 
 surrendered, the Crown would be very particular as to the title by which the party chose 
 to designate himself who made the surrender. || But when you come to the Act that the 
 Crown itself has to do,^ you observe upon that how very differently the party is designated. 
 You have now a Protest in which he calls himself the " Duke of Montrose ;" you have 
 the document constituting the Attorney, in which he calls himself " Duke of Montrose ;" 
 and a Memorandum drawn up by the notary of what took place, in which he is called 
 " Duke of Montrose." Then it appears accordingly that the surrender was made upon 
 a particular day, I think, the 6th of November, at Hailes, Lord Bothwell's place. There 
 
 * This Instrument — the Instrument of Resignation and Donation of the Sheriffdom — is of a much higher character 
 than a "proces-verbal" or than a "memorial," or mere casual "memorandum," as the Lord Chancellor subsequently 
 represents it. It is a solemn legal instrument, of the highest importance, as will appear presently — the cardinal title of 
 the grant to the Gray family, and which grant is proved thereby to have been made, semel et simul with the Duke's resig- 
 nation, by James IV. It is printed, with a translation, in the Appendix, infra, p. 522. 
 
 t This is put as if it was drawn up by the Duke's notary, the same before whom he had made the Protest above 
 noticed. Respecting this the Claimant would refer to note §, infra. 
 
 % This quotation omits the statement (in the Instrument) of the Procuratory having been produced, of the Ducal seal 
 having been specially examined (the ascertained correctness of that seal being the basis and warrant of the whole proceeding), 
 of the document having been read and " totaliter intellecto " in the King's presence, and of the act of resignation having been 
 performed " nomine procuratorio " by Lord Home, as the Duke's procurator. 
 
 § With all respect, this is a palpable error. It is an instrument drawn up by the Crown — not, as previously stated by 
 the Lord Chancellor, " by the notary," already mentioned — the Duke's notary, a mere interested individual — but by the 
 King's own chaplain, almoner, and notary, his " alter ego,'' Andrew MacBrek, whose history has been given by the 
 Claimant, from unquestionable evidence, in the Supplemental Case, pp. 95 sqq., — the Instrument narrating and proving an 
 acceptance by the King of a resignation by a party as Duke, thus recognising his right as such, with a conveyance to a new 
 possessor in the terms of the resignation — and all happening in the Royal chamber, in presence of ihe King himself, who 
 "thoroughly understood" what was doing — this Instrument being moreover drawn up, not at the request of the Duke, who was 
 absent and in the hands of his enemies, but at that of his arch-enemy Lord Gray, in order to serve as the basis of his right 
 to the Sheriffdom thus resigned and acquired — the Instrument in question thus affording the only evidence of the fundamental 
 and all-important act of the King in granting it to Lord Gray, and forming the ultimate warrant for the royal charter which 
 is ordained thereby to be extended and completed in conformity with it. The Duke's Procuratory of Resignation and this 
 identical Instrument of Resignation and Donation were subsequently founded upon as the exclusive basis and corner-stone 
 of their right to the Sheriffdom by the Gray family in the sixteenth century and in the eighteenth, as proved in the S. Case, 
 pp. 98°, 98', and su(pra, p. Ixxxiv. 
 
 II This is hardly to be presumed at best ; but it is absolutely against the feudal law and practice. The principle in law 
 is, that the superior, and especially the King, must always exactly know who his vassal is, and what is done in 
 his regard. Vide infra, p. Ixxxviii. The Lord Chancellor can hardly be aware what a serious imputation against the 
 faith and honour of James IV. and his advisers is involved in this hypothesis. 
 
 ^ No, — the Crown yvas functus, so far as the recognition of the Dukedom was concerned, after the Instrument 6th 
 Nov. 1488, in which James IV. expressly recognised and admitted the Ducal style and right. The King could not undo 
 WHAT HE HAD THUS DONE. The Lord Chancellor alludes to what was subsequently executed by the mere clerks of Chancery. 
 
( 325 ) 
 
 is some inaccuracy somewhere or other — ^whether it was an intended deception at the 
 time, or whether it was an inaccuracy, is a matter we cannot now solve — but certain it is 
 that the surrender was made somewhere — according to that document it appeared to 
 have been made at Hailes, the seat of Lord Bothwell, but according to what followed it 
 would seem to have been made on a different day,* and to have been made at Perth.f I 
 do not think it is material where the event really happened — made it certainly was.J The 
 surrender having been made into the hands of the Crown, what is the next process ? Why, 
 the Crown, reciting what has been done, makes the grant to Lord Gray, for whose benefit 
 the surrender was intended, — and what is the representation of that transaction when the 
 Crown is the person that is to speak? § It is this : — " Jacobus, Dei gratia Rex Scotorum, 
 " omnibus probis hominibus totius terre sue, clericis et laicis, salutem. Sciatis quod 
 " dedimus et concessimus, ac tenore presentis carte nostre damns et concedimus, dilecto 
 " consanguineo et consiliario nostro Andree Domino Gray, officium Vicecomitatus nostri 
 " de Forfare : — Quodquidem officium Vicecomitatus fuit dilecti nostri consanguinei David 
 " Comitis Craufurdie, Domini Lindesay, hereditarie ; et quod officium cum pertinentiis 
 " dictus David, non vi aut metu ductus" (now it is quite plain that the non ought to have 
 been left out — that he was compelled to do this), " nee errore lapsus, sed sua mera et 
 " spontanea voluntate in manus nostras apud Perth, per fustem et baculum, et suos pro- 
 " curatores ad hoc legittime constitutos, sursum reddidit, pureque simpliciter resignavit." 
 Then, after granting it into his hands, it goes on to say, " Ac cum consimilibus feodis sicut 
 " alii Vicecomites prius de eodem officio habuerunt ; et adeo libere, quiete, plenarie, 
 " integre, honorifice, bene, et in pace, sicut dictus David Comes Craufurdie," or his pre- 
 decessors. Upon that there is a Precept granted of Seisin by the King to Lord Gray, in 
 which again he is described as " Dilecti consanguinei nostri David Comitis Craufurdie, 
 " Domini Lindesay." And Lord Gray is to hold as " hereditarie." 
 
 Now, my Lords, this appears to me to illustrate the whole course which the 
 parties were taking. I dare say that the Duke of Montrose resisted, as far as it was 
 possible to resist, the operation of this Act of Parliament, but it was an Act of Parlia- 
 
 * This was asserted by the Attorney-General, but not by the Lord Advocate, — and the Lord Chancellor and Lord 
 St. Leonards here (as for the most part elsewhere) follow the respective tracks of those learned gentlemen. There is no such 
 statement in the charter, 14th Dec. 1488, to Lord Gray, on which the assertion is based. 
 
 t There is no proof of any other resignation than the one at Hailes Castle — not a vestige of it ; while the most cogent 
 collateral evidence establishes that the resignation and reconveyance at Hailes were the only resignation and reconveyance 
 that took place. The statement in the charter that the resignation took place at Perth (where the charter is dated) seems to 
 be a mere clerical error, such as abound in similar charters, as proved in the S. Case, pp. 99' sqq. While, whether an error 
 or a deliberate misstatement, it falls to be corrected by the document itself, the Instrument, (the leading title, and the only one 
 of the kind in the Gray charter-chest,) which states the resignation to have taken place at Hailes — where consequently it did 
 take place. 
 
 % It is material, because, if- the Instrument of Resignation and Donation 6th Nov. 1488 be authentic (as has been 
 proved), the designation of the Duke of Montrose as Duke in that Instrument is testimony and proof furnished by the Crown 
 itself and by the Duke's enemies that the Duke had a right to the honour. 
 
 § Not the Crown, but the mere Clerks of Chancery— the Crown (as stated) was fundus. The wakeants for the 
 Charter 14th Dec. 1488 were the Procuratory of Sesignation 1st Nov. and the Instrument of Besignation and Donation 6th 
 
 Nov. 1488, the Clerks of Chancery were bound to follow these warrants in everything, the style of Duke included; and if the 
 
 Charter departs fra/n that style, it falls by Peerage Law to be corrected by those warrants. Even with regard to ordinary 
 charters it is incidentally observed by the celebrated genealogical antiquary and lawyer, Andrew Stuart,(«) that " it is well known 
 " to every man of business, that the descriptions in Crown Charters of persons and places are regulated by the descriptions in 
 " the warrants of those charters " (^General Hist, of the Stewarts, p. 353) ; but this is beyond all measure obligatory by law and 
 practice in Peerage matters — everything in honours depending on the personal intervention and mil of the Sovereign as expressed 
 in the warrants of royal patents and conveyances, as shewn in the 8. Case, p. 93, and supra, p. Ixx. — All that took place, 
 it may be observed, after the Procuratory of Resignation 1st Nov. 1488, was " behind the back " of the Duke of Montrose. He 
 had no control over, no concern with, no knowledge of, the subsequent procedure in any one respect — none over the Instrument 
 of 6th Nov. 1488, and still less over the Charter to Lord Gray. The terms of that charter cannot therefore be evidence 
 against him and the Claimant. For the charter see the Appendix, infra, p. 528. 
 
 (*) A most aeute lawyer, and who had great employment of the celebrated ' Letters ' to Lord Mansfield on the subject of 
 as a Writer to the Signet and conveyancer. He was the author the Douglas Cause. 
 
 2 T 2 
 
( 326 ) 
 
 ment. In public transactions he is only called by his own title,* and he sits in Parliament 
 by his own title of " Earl of Crawford, "f When it is a mere private transaction he chooses 
 to call himself " Duke of Montrose," and in one instance, namely, the grant to his wife, 
 we will assume that it was known to the Crown, or to the officers of the Crown, that he 
 had so designated himself,— and the Crown ratifies it— not thereby ratifying the Dukedom, 
 but ratifying the grant that he had made for the benefit of his wife, be he Duke or Earl, 
 and describing him as Earl. 
 
 It appears to me, therefore, my Lords, that all these documents afford the most 
 irresistible contemporaneous evidence that the Act Rescissory was then understood to 
 have the effect which I propose now to ask your Lordships to attribute to it, and that the 
 result was that the Dukedom was annihilated. J But, my Lords, a suggestion was made 
 that even if this were a valid Act of Parliament, and even if the effect of it were such as 
 I have represented it to be, namely, to destroy the Dukedom, still a doubt might arise, 
 whether it was an Act of Parliament at all.§ My Lords, I confess that this is an argu- 
 ment to which I can attribute no sort of weight, because it was one of the Acts of Parlia- 
 ment, it is enrolled among the Acts of Parliament, and it purports to be an Act of 
 Parliament.il I forget whether the King is stated to have been present or not, but 
 whether he was or not is immaterial. The King was only fifteen or sixteen years of age. 
 I think in some of the Acts passed during the same year he is stated to have been 
 present ; but whether he was or not is utterly immaterial.^ It has been treated as an 
 
 * The transaction at Hailes was a public transaction of the highest kind, and therein he is exclusively called Duke of 
 Montrose. 
 
 t The Claimant may refer here again to his observations at p. xciii, supra. The Duke's name is undoubtedly placed on 
 two commissions as Earl of Crawford, but expressly in his absence on the last occasion, and probably so on the former. And 
 even if he did sit in Parliament as Earl of Crawford, being also de jwre Duke, it proves nothing. There are many such 
 instances, — that of the Dukes of Norfolk during the period of non-assumption between 1399 and 1425, that of the Earls of 
 Glencairn between 1488 and 1503, and others, familiar to every one, in modern times and at the present day. 
 
 X The Claimant cannot however acknowledge that the " contemporanea expositio " has been adequately given when the 
 Lord Chancellor passes over, absolutely sub silentio, the important precedents of the grants by James III. to Collace of 
 Balnamoon, to Somyr of Balyordie, to Gordon of Lochinvar, to the Cunninghams of Polmaise, to the Burgh of Brechin, and 
 others (supra, pp. xxvii sqq.), — including, moreover, the recognition of the Glencairn patent by the Crown and by the Supreme 
 Civil Court in 1515-6 and 1516-7, as conferring the dignity, although the estates conveyed by it were ultimately held to have 
 been incompetently granted, for certain causes not relating to the Act Rescissory {supra, p. xxxix), — all of which prove that the 
 grants of James III. stood firm and valid notwithstanding the Act Rescissory. None of these are taken into view by the Lord 
 Chancellor or (as will appear) by Lord St. Leonards. — The proposition on which their judgment is based is this, that aU the 
 grants of James III., without exception, must have been and were annulled by the mere passing of the Act Rescissory, 
 without legal process or inquiry. If therefore but one single grant is proved to have survived the Act, the Claimant's 
 interpretation, based on the words of the Act simply as they stand, and upon the rule of strict interpretation in penal statutes 
 and in honours, must prevail, viz. that, the Act being qualified, the qualification must be proved to apply to any individual 
 grant under consideration before it {the Act) can be held to have cut it down. It was incumbent therefore on the Noble and 
 Learned Lords to disprove the above-mentioned evidence adduced by the Claimant. But, as stated, tliey have passed it over 
 in absolute silence. 
 
 § The meaning of the Lord Chancellor here is somewhat obscure. The Claimant's argument was, that, the King's 
 direct and personal authority being requisite in order to give an Act effect against a dignity, that authority was not sufficiently 
 attached to the Act Rescissory to render it capable of being judicially applied against the Dukedom. Vide supra, p. xi. 
 
 II This (as already observed) overlooks and rejects the principle of Scottish law (different from English), that statutes 
 may not only be virtually repealed by desuetude and contrary use, but that a statute, although enrolled among the Acts of 
 Parliament, may be still-born, and null and void ab initio if never acted u,pon, — as the Claimant has proved was the case with 
 the Act Rescissory. The Crown admit that the Act Rescissory might fall into Desuetude, but object, in proof of its survival 
 and force, the Supplemental Act 1489-90 — which omits dignities ; the argument before the Court of Session in the Glencairn 
 and Eglinton case in 1648 — but in which the judgment, by the statement of the Lord Advocate himself and of the Lore 
 Chancellor, affirmed the subsistence of the Glencairn patent in the face of the Act Rescissory ; and the opinion of Lord 
 Loughborough, in 1797, that the Act Rescissory did take practical effect. The Claimant cannot but think this tantamount to 
 a complete admission of the non-effect of the Act in question ab initio, 
 
 T Parliament could not pass an Act, like the Act Rescissory, affecting dignities, without the personal presence and 
 direct concurrence of the King — unless on the doctrine of the " omnipotence " of Parliament, as dissociated from and superior 
 to the Sovereign, which had certainly never been heard of in Scotland at the close of the fifteenth century. The King was 
 actually present on the day when the Act Rescissory was passed ; but the Act does not proceed in the King's name, and the 
 customary /ormMfa, expressive of the promulgation and enactment of the statutes of a Session by the King and Estates of Par- 
 liament, is omitted, for the first and last time, in the case of the statutes passed during the Session of October 1488, as shewn 
 supra, p. xi. 
 
( 32? ) 
 
 Act of Parliament, and it is called an Act of Parliament in the subsequent Acts to which 
 I have adverted, — therefore I cannot think (and indeed it was net very much insisted 
 upon) that any great weight can be given to that suggestion. 
 
 But then it was said, supposing this Rescissory Act was an Act of Parliament, 
 was not it afterwards revoked ? That, it was said, was a conclusion at which your Lord- 
 ships might safely arrive, because on the 13th of March 1503, at the time of the King's 
 marriage, or just subsequently to it, an Act of Parliament was passed, on which day it 
 was said, " Our Sovereign Lord revoked, with consent of the Three Estates of the Par- 
 " liament, all donations, gifts, acts, statutes of Parliament or General Council, and all 
 " other things done by him in times bygone, either hurting his Soul, his Crown, or Holy 
 " Kirk." Now it is said that this Act Rescissory was an Act of Parliament that did hurt, 
 or that ought to have hurt, his soul — taking away something that had been granted by 
 his father to a loyal subject.* My Lords, there I apply the argument that was addressed 
 to us as to the words, "which might be prejudicial," that were found in the first Act. 
 Whatever the meaning was, it clearly was only to revoke something as to which you 
 were to establish that it was "hurtful to his Soul, his Crown, or Holy Kirk."f It was 
 clearly a sort of flourish of trumpets, that meant nothing at all. J It is impossible to say 
 from this, that grants under which parties had acted, or title deeds, could possibly be in 
 any way affected by language so loose as that.§ Then again, I call contemporanea expositio 
 in aid. If that had been the construction put upon it at the time, why did not the parties 
 call themselves Dukes of Montrose ? — Avhy did they not claim the rents of the lands that 
 belonged to the Dukedom ? — in short, why did not exactly the contrary take place of 
 that which actually did take place? II Upon these grounds alone, supposing there had 
 
 * The Claimant's argument was, that, Holy Church having visited the rebels with excommunication, the rebels having 
 confessed their crimes and sought for absolution, and the King having avowed his remorse and adopted a life-long penance for 
 his rebellion and parricide, the Act Rescissory, as inflicting penalties on those who had loyally defended his murdered parent, 
 and in punishment and revenge for that loyal defence — which it further, falsely, asserts to have been the cause of the monarch's 
 " slaughter'' — coidd not but have hurt his Soul, could not but Iiave sapped the very foundations of loyalty to the Grown, could 
 not but have deeply offended Holy Church — and therefore, on each and all of these considerations, must have fallen under the 
 Act Revocatory of 1503-4. Vide supra, pp. cxxvi sqq. The Act is printed in the Appendix, infra, p. 387. 
 
 t This seems to be using the Claimant's argument against him tohen it suits a purpose, after rejecting it lohen in his 
 favour. The Claimant maintains that the evidence required is clear and patent to every one's conscience as a dutiful son, a 
 loyal subject, and an honest man ; while he has proved it legally by historical evidence, by the Bull of Innocent VIII., 
 5th July 1491, and by the later enactment 20th Feb. 1492. Vide the Appendix, infra, pp. 384 sqq. 
 
 X This is not in accordance with the noted and relevant rule of law that Verba sumenda sunt cum effectu. Words in 
 an Act are not to be considered mere nonentities, or empty wind, or a " flourish of trumpets," as held in the present instance 
 by the highest authority of England. Effect must be given to all the words in the Act Revocatory, precisely as the Claimant 
 contends that effect must be given (if at all) to all the words (neither more nor less, but as they actually stand) in the Act 
 Rescissory. 
 
 § Then how could the grants of James III., grants which had been acted upon (as is admitted by the Lord Advocate, 
 supra, p. 234, if not by the Lord Chancellor himself, supra, p. 320, in the case of the Dukedom patent), how could they be 
 affected by the Act Eescissory ? The Lord Chancellor himself suggests that the words in the Act Rescissory are " inaccurate," 
 and therefore " loose." If so, the Act Rescissory itself must have been a mere " flourish of trumpets" — as, in fact, the Claimant 
 has proved it to have been practically, through its not having taken effect in any one instance. If the general Act Rescissory 
 (as the Claimant has repeatedly urged) could inflict special forfeitures, a fortiori the general Act Revocatory could rescind 
 those forfeitures. But the Noble and Learned Lord entirely overlooks and disregards the principles applicable by the law and 
 practice alike of Scotland and England to the construction of penal and remedial, as distinguished from ordinary, Acts of 
 Parliament. In a penal statute, the Act Rescissory, demanding the most strict interpretation, he construes broadly fob 
 penalties, and assumes that the Dukedom was prejudicial to James IV. : — In a remedial or favourable statute, the Act Revocatory, 
 passed by James IV. himself for redressing wrongs done and injuries inflicted by former Acts and Statutes of Parliament, and 
 demanding the most liberal and large interpretation, he resists the fairest and clearest inference, and requires strict legal 
 proof that the Claimant falls within its scope— applying a strict construction against the objects of the Act ! This the 
 Claimant conceives to be a reversal of the proper and just rule of the construction of such statutes. (») 
 
 II The restitution effected by the Act Revocatory would not have been the less entire and valid because the parties 
 benefited did not or were unable to avail themselves of it. But the Claimant has shewn that neither the Dukedom of Montrose 
 
 (a) " In cartis," says Sir Edward Coke, applying and enforc- " tatis, benignior, — in testamentis magis benigna,—iN bestitu- 
 
 ing an ancient rule of law in treating of restitutions by Par- " tionibos benignissima." Tfiird Institute, c. 106. — The 
 
 liament, " benigna facienda est interpretatio, — in fundationibus principle here involved equally applies to restoratory Acts of 
 
 " domuum rtligiosarum, hospitalium, et aliorum operum chari- Parliament. 
 
( 328 ) 
 
 been no authority upon the subject, and nothing to guide your Lordships but the Act 
 Rescissory itself, and the light we obtain from the documents that have been searched 
 for and found after great labour and diligence, I should have said, my Lords, that the 
 construction of this Act is a matter that admits of no possible doubt. 
 
 But then it is said that, whatever opinion we might form, still there are authorities 
 that lead to a contrary conclusion ; and two have been mainly relied upon— one authority 
 taken from our own history, and the other from that of Scotland. The one from our 
 own history is this. In the last Parliament of the reign of King Richard II. the King 
 created a number of new Peers, and he created them in rather an unusual way.* What 
 was exactly the effect of it may be matter for an antiquarian,— but doubts and difftculties 
 were raised. It appears from the Rolls of Parliament that on Saturday, the feast of St. 
 Michael, in the year 1397, the King showed openly in Parliament that he wishedf that 
 certain honourable persons in his kingdom should be raised to greater honour and estate 
 — that is to say, certain Counts and Earls to the estate of Dukes, one Count to the estate 
 of Marquis, and certain other Barons and Bannerets to be Counts, — and for three reasons : 
 first, because the great support of every kingdom is in worthy persons of state ; secondly, 
 that the same persons are cousins of the King, and of his own blood, whom the King 
 therefore ought to honour ; and thirdly, that the said persons had done great honour to 
 the kingdom in divers works beyond the seas, and many other places, for which reasons 
 it is natural that each benefit should be duly recompensed ; and it is said that the King, 
 sitting in Parliament, " coronez, en sa Roiale Mageste, teignant en mayne la verge Roiale, 
 " ad fait et creez son cousyn Sire Henry de Lancastre, Conte de Derby, en Due," and gave 
 him the name and title of the Duke of Hereford. He gave to him his Royal charter of 
 the same creation, which was read in Parliament, and the King girded the Duke with a 
 sword, and so on. The same day he created a number of persons; amongst others he 
 created the Earl of Nottingham. " Item, mesme le jour, et en mesme la fourme et 
 " manere, Sire Thomas Moubray, Cont de Notyngham, feust fait et creez en Due de 
 " Norfolk." 
 
 Now that was the last Parliament of Richard II. By the first Parliament of 
 Henry IV. all the Acts of that Parliament, and with it all its dependencies, were revoked. 
 After a great deal of recital, " Nostre Seigneur le Roi," &c., " ad adjuggez le dit Parle- 
 " ment tenuz le dit vingt primer, et lauctoritee ent done, come desuis est dit, ove toutes les 
 " circumstances et dependences d'icelle, d'estre de nulle force ou value : et qe mesme le 
 " Parlement, ove I'auctorite susdicte, et touz les circumstances et dependences d'icelle, 
 " soient de tout reversez, revokez, irritez, cassez, repellez, et adnullez." J 
 
 Now, my Lords, what was argued was this, that although that was a revocation 
 
 nor the Earldom of Glencairn were legally or practically afFected by the Act Rescissory, and that neither that Act, nor the 
 Supplemental enactment 15th Feb. 1489-90, ordering the charters to be brought in and destroyed, took any effect ; while the 
 Act 26th June 1493, by which the estates of the Dukedom would revert to the Crown, was in the due legal form of statutes 
 passed for the recovery of grants improvidently made of Crown property, and would not be affected by the Act Revocatory 
 of 1503-4. The Act Revocatory was therefore in all probability chiefly designed as a public and statutory expression of the 
 general change of feeling — passed by the King, with the special assent of Parliament, and with every formality requisite to 
 give it effect. The Claimant has shewn ample reasons why the Duke's heirs could not assume the Dukedom and it is 
 remarkable that the inauguration of the Earldom of Glencairn in virtue of the original patent had taken place on the occasion 
 of James's marriage in 1503, only a few months before — there being no trace of any Parliament for several years previously 
 and the very first act of the Parliament which met in March 1503-4 was to pass the statute in question. 
 
 * No,— it was in the ordinary and regular mode, by charter or patent, and inauguration in Parliament, Parliament 
 being thus spectators, tacitly approving ; while it will appear presently that the charter had in itself the force of, and was an 
 Act of Parliament. The patent is printed in the Appendix, infra, p. 388, and the narrative of the inauguration, ihid., p. 389. 
 
 t Not " wished " but " willed,"—" le Roy fist pronuncicr et monstrer overtement en Parlement, qu'il voet que," &c.— 
 The above representation is on the same principle on which the Montrose Regrant, 18th September 1489, is represented by 
 the Lord Chancellor as " indicating that the King " (James IV.) " was anxious" that " David Earl of Crawford " "should 
 " be a Duke," &c. — Supra, p. 318. 
 
 % The Act Rescissory of Henry IV. is printed, with a translation, in the Appendix, infra, p. 391. 
 
( 329 ) 
 
 01 the Acts of the former Parliament in words and language as strong as words and 
 language could be, yet, nevertheless, it was held not to destroy the Dukedom of Norfolk. 
 And it was said that that was a precedent for saying that exactly the same rule ought 
 to be applied to the present case. 
 
 Now, my Lords, I think there are several answers to that. In the first, all that 
 was annihilated by the first Parliament of Henry IV. was the Acts and dependencies of 
 the former Parliament. Nothing that had been done by the Kmg propria vigore was 
 affected. In the case of the Scotch grant of the Dukedom of Montrose, M'hat was struck 
 at by the Act Rescissory was by name the Act of the King in the " creation of new 
 " dignities." What was struck at here was the Acts of the last Parliament,— and there- 
 fore, unless it can be made out that the creation of the Earl of Nottingham to be Duke 
 of Norfolk was an Act of Parliament, it was not to be affected. But was it an Act of 
 the Parliament ?* It is true that for greater solemnity Richard II., who, we know, 
 according to history, was exceeding fond of show and pomp, sat with his Royal crown 
 on in Parliament, and girded them with the sword, and created them in the presence 
 of the Parliament ;t but it was an Act of the King, and not of the Parliament. Whether 
 that be right or wrong is not material now to consider, because this is quite clear, that 
 that was the interpretation put upon it at the time.J But this happened. The Duke of 
 Norfolk, as I collect from these, papers, thought that he was struck at, and did not take 
 the title of Duke of Norfolk afterwards, but took the title of Earl of Nottingham, or 
 some other title. § Then, some 25 years afterwards, very early in the reign of Henry VI., 
 a dispute arose as to the precedency of the Earl of Nottingham and the Earl of Warwick. 
 The Earl of Nottingham, as I collect, was then Earl Marshal; but the Earldom of 
 Warwick would have been a higher dignity than the Earldom of Nottingham ; and the 
 Parliament, to whom this was referred, considered a good deal what was to be done 
 about it, finding themselves in a difficulty in reconciling these conflicting great men. 
 Then what they said was this : — ' Why should we have to decide this at all ? A Dukedom 
 ' is superior to an Earldom — whether the Earl Marshal is superior or not is not 
 ' important, because, if you are the Duke of Norfolk, you are certainly superior to the 
 
 * The Norfolk patent purports to be by the King "de assensu Prelatum, Ducum, Magnatum, et aliorum procerum, et 
 " Communitatis Eegni nostri Anglie, in instanti Parliamento nostro apud Westmonasterium convocato existencium." By the 
 judgment in the Prince's or Cornwall Case, 1605, standing and ruling at the present day, a " King's charter" so conceived is 
 " an Act of Parliament," "a good Act," "hath the authority and force of an Act of Parliament," "is sufficient in itself, 
 " without any other Act," and " an Act whereof the Judges and all the Kingdom ought to take notice." — Supra, pp. xviii, xix, 
 and infra, pp. 393 sqq. Therefore the Norfolk creation, by the " King's Charter " conceived in the manner above stated, 
 vjos an Act of Parliament, and fell under the provisions of the Act Bescissory of the 1 Henry IV. Neither the Lord 
 Chancellor nor Lord St. Leonards take the slightest notice of this dominant fact, but assume that the Norfolk creation, while 
 in Parliament, was not hy Parliament, and not an Act (/Parliament. But whether in Parliament or by Parliament is com- 
 paratively immaterial, the rationes of the judgment in 1425 being equally operative and binding, in the present Claimanfs 
 favour. For the Cornwall judgment vide infra, pp. 393 sqq. 
 
 t As above stated, there was nothing unusual in the circumstances of the inauguration in question, as distinguished 
 from other inaugurations. Every King, in England and Scotland, acted on similar occasions as Richard II. did on this. 
 
 X Popular interpretation or impression, even if this were ascertained (as it is not), could not affect the law of the 
 question. 
 
 § There is no reason to suppose that the Norfolk family thought they were struck at by the Act Rescissory. Dr. 
 Lingard, in his History of England, attributes the non-claim to fear of arousing the jealousy and anger of Henry IV. 
 His words are these : " He " (the Earl of Northumberland) " found a willing associate in Thomas, the eldest son of the late 
 "banished Duke of Norfolk. Though his father had not been attainted, he abstained from assuming the title, that he 
 " might not provoke the jealousy of the King, and was commonly known by the name of ' Lord Mowbray' or ' Earl 
 " 'Marshal.'"— 5isto'2/, &c. edit. 1837, vol. iv. p. 303. And the supposition in the text is negatived by the unanswer- 
 able fact, that other peerages created in pari casu with the Dukedom of Norfolk, as, for example, the Earldom of 
 Westmoreland and the Earldom of Worcester, continued to exist uninterruptedly, as proved by the Claimant, Case, p. 70, 
 and supra, p. xvi ; and the continued existence of those honours in the face of the Act Rescissory of Henry IV. was one of the 
 rationes in the judgment in favour of the Norfolk heir in 1425 — precisely as the continued enjoyment of the grants of James 
 III. in the face of the Act Rescissory of 1488, as proved by the Claimant, establishes that the Dukedom of Montrose must also 
 have survived, unaffected by the Act. Neither the Lord Chancellor nor Lord St. Leonards notices this continued enjoyment, 
 either in the case of the grantees of James III. or in the case of the Earls of Westmoreland and Worcester, while they 
 equally overlook the ratio decidendi founded upon that enjoyment in the Norfolk case. 
 
( 330 ) 
 
 ' Earl of Warwick ; and we have come to the conclusion that you are Duke of Norfolk.'* 
 A petition was presented by the Earl Marshal on the subject, and they came to this 
 resolution : — " Quaquidem petitione in Parliamento predicto lecta plenius et intellecta, 
 " ac habita inde cum Justiciario, et Servientibus Domini Regis ad Legem, ac aliis peritis 
 " de Consilio ipsius Domini Regis, matura et diligenti deliberatione ; consideratoque quod, 
 " licet prefatus nuper Rex Ricardus in dicto Parliamento suo Thomam nuper Comitem 
 " Notyngham in Ducem NorfFolk in forma predicta creaverit, ac idem Parliamentum, 
 " cum suis circumstantiis et dependentiis quibuscunque, postmodum in Parliamento 
 " Domini Henrici nuper Regis Anglie, avi Domini Regis nunc, apud Westmonasterium, in 
 " festo Sancte Fidis Virginis, anno regni sui primo tento, generaliter revocatum extiterit et 
 " penitus adnullatum, — Pro eo tamen, quod hujusmodi creatio Ducum sive Comitum aut 
 " aliarum dignitatum ad solum Regem pertinet, et non ad Parliamentum ; Prefatusque 
 " nuper Dux"— and so on ; " Sicque revocatio dicti Parliamenti ipsius nuper Regis Ricardi 
 " prefatum nuper Ducem, aut heredes suos, absque speciali mentione de eis facta in eadem 
 " nullatenus ledere potuit," . . . because the creation of dignities belongs not to Parliament 
 but to the Crown, and because the Act that abolished the Acts of the Parliament did not 
 abolish by name the creation of the Dukedom. f And therefore they come to this con- 
 clusion : — ■' We need not say whether the Earl Marshal takes precedence of the Earl of 
 ' Warwick ; we get over that by saying that you are clearly still Duke of Norfolk.' J 
 
 But, my Lords, how does that affect this case ? This appears to me to have no 
 bearing upon the case before your Lordships ; all the indicice referred to there as proving 
 that the Dukedom of Norfolk was not annihilated are wanting here. This title was 
 struck at by name, — not the title of the Duke of Montrose, but the titles which had been 
 created by the King subsequently to the preceding February were struck at nominativi.^ 
 It therefore appears to me that the case of the Dukedom of Norfolk is no precedent at 
 
 * This would have been to prejudge and decide the question before trying it ! The facts were as follows : — The 
 precedency question having been debated at great length, the Commons interposed, and, stating that they had heard from 
 vulgar report (" audientes ex relatione vulgari ") that the Earl Marshal was entitled to the Dukedom of Norfolk, suggested 
 that if he would assume that title (" si . . . stilum, litulum, &e. hujusmodi assumere vellet ") — of course under pi'oper authority, 
 the question of precedency might be satisfactorily settled and concluded. (') Accordingly the Earl Marshal presented his petition 
 to the Crown, in regular course, claiming the Dukedom— his right was investigated, in the most solemn and careful manner, 
 by Parliament, on reference from the Crown, with the assistance of the Lord Chancellor, the Lord Chief Justice of the King's 
 Bench, the Sergcants-at-Iaw, the Privy Councillors — in short, of the wisest, most learned, and most eminent of the legal pro- 
 fession as then flourishing in England — and judgment was pronounced accordingly. 
 
 f The remaining clauses of the judgment, founded on by the Claimant but overlooked by the Lord Chancellor, are as 
 follows: — "Ac etiam pro eo, quod, inspecto Rotulo ejusdem Parliamenti prefati nuper Regis Henrici, nulla fit mentio in 
 " eodem de aliqua speciali revocatione sive adnuUatione stili, tituli, nominis, vel honoris ipsius nuper Duels vel dictorum heredum 
 " suorum, — necnon pro eo, quod quamplures alii, quorum quidam in Comites, quidam in alios status sive dignitates, per 
 " prefatum nuper Regem Ricardum in dicto Parliamento suo mode consimili creatifuerunt, suis stilts, titulis, nominibus, et honoribus 
 " ex tunc continue usi sunt et gavisi, ac eis in presenti gaudent et utuntur, dicta generali revocatione et adnullatione Parlia- 
 " menti ipsius nuper Regis Ricardi in dicto Parliamento prefati nuper Regis Henrici, ut premittitur, facta, non obstante," &c. 
 — Vide supra, p. xvii. The judgment is printed, with a translation, in the Appendix, supra, p. 391. 
 
 J This, it is scarcely necessary to remark, is (as before) a mere gloss, quite unwarranted by the evidence. The Lord 
 Chancellor's whole argument here proceeds on a petitio principii, and on an employment of his own words as a stepping 
 stone in that argument. The imputation (for such it is) on the honesty of the judges in 1425 would seem to be borrowed from 
 the Attorney General, whose comments may be seen supra, p. xviii. 
 
 § This appears to be rather strained. Admitting, in accordance with the Norfolk ratio, that "special mention" of 
 the Duke of Montrose and his heirs (whose interests are always to be remembered and kept in view) must have been made 
 in the general Act Rescissory of 1488 in order to affect the Dukedom, the Lord Chancellor contends that because 
 " creations of new dignities," granted since the preceding February, are struck at aggregatively by the general Act Rescissory, 
 and because the Dukedom can be proved historically to have been granted within that period, therefore " special mention" 
 of the Duke and his heirs, nominatim, is made in the Act Rescissory, and it is effective against him and them. On this 
 principle of reasoning, the Norfolk creation by the " King's Charter " being and having the force of an Act of Parliament, 
 and the Parliament of which it was thus an Act having been rescinded with all its acts and dependencies by the Act Rescissory 
 of Henry IV., "special mention" of the Duke of Norfolk and his heirs must have been made in the general Act Rescissory 
 in question, and the heirs of the Duke had no right to the honour ! 
 
 (*) Bolls of Parliament, vol. iv, p, 273. — And compare the Earl's Petition, Appendix, infra, p. 391. 
 
( 331 ) 
 
 all in this case. It would indeed have been a precedent if, instead of the Rescissory 
 Act, there had been an Act of Parliament passed revoking some prior Act of Parliament 
 of James III.; but that is not the case. The Act Rescissory has abolished the title of 
 the Duke of Montrose — not because it abolished any prior Act of Parliament, but because 
 it abolished all new dignities that had been created by James III.* 
 
 But, my Lords, I do not think that was very much relied upon ;f but the main 
 reliance — in short, the only thing which appeared to me to raise the semblance of any 
 fair doubt upon the subject, was the decision in what has been called the Glencairn 
 Case. I But I think that that also entirely fails as a precedent, and ought not to have 
 any influence with your Lordships in this case. The Glencairn Case may be shortly 
 stated thus : — The Dukedom of Montrose was created, as I have already stated, on the 
 18th of May 1488. A few days afterwards, I think on the 28th of May, ten days after- 
 wards, the then Lord Kilmaurs was by the same King and for the same cause created 
 Earl of Glencairn. Now the argument which was pressed with regard to this case 
 is this : — ' It has been established,' they say, ' that the Earldom of Glencairn was not 
 ' destroyed by the Act Rescissory ; therefore it follows that the Dukedom of Montrose was 
 ' not destroyed.' 
 
 My Lords, in the first place I do not think that the two do stand necessarily in 
 the same category ;§ but then, further, I do not think it ever has been so determined that 
 the Earldom of Glencairn was not affected by the Act Rescissory as that it can at all 
 bind your Lordships. || 
 
 The circumstances were these. First of all, as to the contemporanea expositio as to 
 Lord Glencairn, exactly the same series of facts occurred as those which occurred with 
 regard to the Dukedom of Montrose.^ The Earl of Glencairn sat after the Act Rescissory, 
 or rather his son was served heir to his father, not as Earl of Glencairn, but as Lord 
 Kilmaurs,** and he always sat in Parliament as Lord Kilmaurs. There was an action 
 brought by the executors of the former Lord, and he is described in that action as Lord 
 
 * The Claimant submits that the Norfolk case is a precedent in his favour on the following rationes of the judgment, 
 pronounced in 1425, — > 
 
 1. That the general Act Rescissory of Henry IV. could not annul the Dukedom of Norfolk unless by special mention 
 
 of the grantee and his heirs within the Act, — which special mention cannot, the Claimant conceives, be held 
 to have been made of David Duke of Montrose and his heirs in the Act Rescissory of 1488 ; 
 
 2. That, unless, independently of such special mention in the general Act Rescissory, there had been mention made 
 
 of some special revocation or annulment in the Rolls of Parliament, neither the Duke of Norfolk nor his heirs could 
 have been injured, — which equally applies to the Duke of Montrose and his heirs, there being no such special 
 revocation in the Rolls of the Scottish Parliament, — and, 
 
 3. That, since other grants in pari cam had not been affected by the Act Rescissory, the particular grant in question, 
 
 the Dukedom of Norfolk, could not have been affected by it, — on which ground, per se, in consideration of the 
 numerous instances adduced by the Claimant of the grants of James III. in pari casu with the Dukedom of 
 Montrose standing firm and valid in face of the Act Rescissory, the Claimant conceives his claim is made out. 
 
 It is also a precedent to prove that the non-assumption of an honour in consequence of the supposed effect of an Act 
 
 Rescissory, or for whatever reason, is no bar. Moreover, the interests of heirs, where there is no special abrogation of the 
 dignity in their particular regard, are "distinctly protected and saved (as in the Claimant's case) by.this judgment. 
 
 f With all submission, it was ; as may be seen in the Case, pp. 68 sqq., the Supplemental Case, pp. 14 sqq., and 
 supra, pp. XV. sqq. 
 
 I The decision, final and irreversible, against the Act Rescissory, by the only competent Court, in 1648. See the 
 ' Narrative and Inquiry,' pp. mi, and the Analysis, pp. xlv. sqq., supra. 
 
 § Reference is here requested to the concluding Norfolk ratio, above alluded to (grounded on continued existence of 
 grants in pari casu, &c.) as a leading principle, to be held in view throughout the Glencairn and Montrose cases. 
 
 II Reference is also here requested to the opinion of the Lord Chancellor Brougham on the Waterford case, as cited 
 infra, p. 340, n. (»), and to the relative observations there made. 
 
 ^ Not exactly the same ; for, while the Earldom of Glencairn disappeared till 1 503, loth the Dukedom of Montrose 
 and the estates were enjoyed, with recognition of the Crown, during the interval letween the two Montrose patents—^, specialty 
 by which the present case is favourably distinguished. 
 
 ** On the subject of this Retour, which, although founded upon by the Crown, was not adduced by them in evidence, 
 vide supra, p. xxxv. 
 
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( 332 ) 
 
 Kilmaurs. He died, I think, in 1492, and was succeeded by his son Cuthbert. Now 
 this, I think, is a most extraordinary confirmation of the suggestion that everybody 
 understood that the Earldom of Glencairn was annihilated by that Act of Parliament. 
 The first Earl, who was killed at the same battle at which James III. fell, was succeeded 
 by his son Robert, who lived only two or three years afterwards, and then Robert was 
 succeeded by his son Cuthbert. Some years elajjsed, and things were getting a little 
 quiet ; but Cuthbert executes a great quantity of instruments, always describing himself 
 as Lord Kilmaurs, — why was that, if it was not understood that the Earldom of Glencairn 
 had been abolished and annulled, " cassez et adnullez f "* Why did he describe himself as 
 Lord Kilmaurs ? And what strikes me as not being at all an unimportant thing is this, — 
 some of these instruments were handed in to your Lordships with his seal appended to 
 them — a large seal as big as a crown piece, such as seals were in those days — and it has 
 this upon it, " Sigillum Cuthberti Domini Kilmaurs," so that he had a seal engraved by 
 that title; it could not have been his ancestors' seal, for Robert was his father, and 
 Alexander his grandfather, but he must himself have had a seal engraved with the title 
 " Sigillum Cuthberti Domini Kilmaurs."] Under that title he sat in Parliament, executed 
 deeds, and, in shorty did every act that could be done.J 
 
 Then, again, it appears that the property included in the grant to the Earl of 
 Glencairn, consisting of the property of Drummond and Duchray, never was enjoyed by 
 the Earls of Glencairn, but passed away to different families.§ I think some of the 
 property is the property now of the Noble Duke, the present Duke of Montrose ; how- 
 ever, that is immaterial, — it was not the property of the Earl of Glencairn. There was, 
 therefore, at that period everything to indicate that these parties, just as the Duke 
 of Montrose || did at the time, supposed that their titles had been struck at by the Act 
 Rescissory. 
 
 The new King, James IV., married in the year 1503, and it is natural to expect 
 that upon that occasion new titles would be created, such being the custom at a corona- 
 tion or marriage. We know upon the most authentic evidence that in the year 1503, 
 just about the date of the marriage, one Scotch nobleman or gentleman of distinction, 
 one of the Hamiltons, was made Earl of Arran. We know that there is a Charter, •[[ — we 
 
 * These words occur in the Act Rescissory of Henry IV., — not in the Scottish Act. 
 
 t The observation of the Lord Chancellor upon this seal in the course of the discussion was as follows : " Is it not 
 
 " worthy of observation, that, though a person might designate himself, or be designated by others, by an inferior title it is 
 " not likely that, having a seal engraved, it should bear anything else but the proper title?" — Supra, p. 211. The Claimant 
 submits (even at the risk of repetition) that, if the seal of Lord Kilmaurs, appended to private documents, is important as 
 proving that his correct designation was ' Lord Kilmaurs,' the seal of David Duke of Montrose, hearing the Ducal arms and 
 title, in full and due heraldic propriety, appended to an instrument addressed directly to his Sovereign, and which seal was 
 inspected and scrutinised in the King's presence ty the Crown officers, and admitted and acted upon, must be equally important 
 as proving that the owner of that seal was, by his correct designation, Duke of Montrose. But the Lord Chancellor passes it 
 over- absolutely svh silentio, 
 
 % All this is obviated and answered by the circumstances in the parallel Norfolk case, immediately after the death of 
 the Norfolk patentee, as stated by Dr. Lingard, an impartial authority, who knew nothing of the Glencairn case. Vide 
 supra, p. 329, note §. 
 
 § Tlie reason leing — not that the grant was struck at by the Act Rescissory, as implied a little further on by the Lord 
 Chancellor, but tliat tJie estates had been unduly granted by James III. in the first instance, in prejudice of the former lieirs 
 as appears by the Decreet of Reduction by the Supreme Civil Court at the instance of James IV., John Lord Drummond and 
 others, 12th January 1516-7, founded on by the Claimant, supra, p. xl, and Appendix, infra, pp. 415 sqq. The Lord Chan- 
 cellor takes no notice of this Decreet, nor of the most important fact, that in tliat judgment (hostile to the Olencairn family) the 
 validity of the patent 1488 in conferring the Earldom, as distinguished from the estates, on " Alexander Earl of Glencairn " 
 the patentee, who was killed at the Battle of Stirling, is distinctly recognised, in the face of tlie Act Sescissory, not thirty years 
 after tlie date of the Act, and when it must have been still in the remembrance of living persons : — ^With which too the Royal 
 recognition in 1550, the Retour 1630, and the Ratification 1637 (for which see the Appendix, infra, pp. 417, 425) although of 
 loss importance, are all uniformly consistent. Under any circumstances, the fate of the estates is immaterial— the Claimant 
 has only to do with the honours, on the principle reddendi singula singidis, as explained supra, pp. xlii cxiv. 
 
 II QuaBre, the Duke of 'Norfolk' — according to the Lord Chancellor's opinion, explained supra, p. 329. 
 
 t To wit, the charter of the Earldom of Arran, a regular patent, dated 11th August 1503, and duly registered in the 
 Great Seal Record. 
 
( 333 ) 
 
 have also contemporaneous history to guide us* I will suppose this for a moment to be 
 but doubtful evidence, that is, doubtful whether it is what we could legally accept. 
 History -j- says that three noblemen were created ; we know that another was created, 
 namely, that the ancestor of the present Duke of Montrose was then created Earl of 
 Montrose.J We then find that from that time, I think so early as 1504, Lord Kilmaurs, 
 who had in an immense number of instances been always called Lord Kilmaurs, not only 
 on his own seal, but in transactions with the Crown and in transactions with private 
 persons, is again designated " Earl of Glencairn," and so from that time downwards he 
 and all his descendants continued to be called Earls of Glencairn. Independently of 
 any historical evidence, what is so extremely natural as to imagine that, if he had made 
 his peace again with the Crown, the King would give him back his title of Earl of 
 Glencairn and create him Earl of Glencairn ?§— The fact that we do not find the grant \\ 
 seems to me perfectly immaterial.^ We all know very well that we should be thrown 
 into difficulties as to many of our possessions, if the circumstance of a grant 350 years 
 ago not being forthcoming were considered important.** We should be acting upon 
 principles which, in fact, do not guide us in the ordinary circumstances of life.f f There- 
 
 * That is, the evidence of the herald Young, in his Diary, as printed in Leland's ' Collectanea.' For Young's 
 statement see the Analysis, supra, pp. xxxvi sqq., and the Appendix, infra, p. 412. As regards the legal admissibility of 
 this evidence, coming before the House in the manner it does, appearing for the first time, without any authentic voucher, 
 in a book printed in the reign of George III., Sec, vide supra, p. xxxvii. Historical evidence of an infinitely higher character 
 was rejected, when in the Claimant's favour, in the Crawford claim. The Claimant will not dispute that the statement in 
 question may be dignified with the name of " contemporaneous history '' — although, in strictness, there is no legal or proper 
 proof that it is such. 
 
 t That is, Young's narrative. 
 
 J This is not " another " creation, independently of the three recorded by Young. Young speaks of three Earldoms 
 as created in 1503, that of Arran, that of Montrose, and that of Glencairn. The first is legally known by the registered charter, 
 as above stated. The second is known by another registered charter, dated the 3rd March 1504-5. But of the Earldom of 
 Glencairn, as said to have been created in 1503, there is no charter or patent upon the Register. If a new patent had then 
 been issued (as afiirmed), it would naturally have been enrolled, like the other two — but none such appears — no other patent 
 but that of 1488 is known of, and hence the patent 1488 is presumptively the only one — Cuthbert Earl of Glencairn is 
 retoured heir to his grandfather " Alexander Earl of Glencairn " in the estates granted by that patent in 1515-6, and the patent 
 is recognised as effective as to the honours in the hostile Decreet 1 516-7 (infra, p. 415). The fact of there being no Glencairn 
 patent in the Register in 1503 is not noticed by the Lord Chancellor. The fact is, that Young's narrative (if legally admis- 
 sible in the discussion) relates solely to the inauguration of the three dignities, on the patents, as shewn by the Claimant in 
 the S. Case, p. 63, and supra, p. xxxvii, and as admitted by the Lord Advocate, ibid. p. xxxviii. 
 
 § The Lord Chancellor appears here to overlook the fact (already stated by him supra, p. 332) that the Glencairn 
 patentee had been killed at the Battle of Stirling. His son and heir, Robert Lord Kilmaurs, had also died during the interval, 
 and his grandson Cuthbert is the person here represented as making his peace with the Crown in 1503. 
 
 II That is, the written charter or patent preswmed by the Lord Chancellor and Lord St. Leonards (but without the 
 slightest authority, and in the face of the ruling decision of the Court of Session in 1648) to have been granted in 1503, or 
 thereabouts, contemporarily with the charters of the Earldoms of Arran and Montrose. 
 
 ^ The Claimant does not see how it can be immaterial, taken along with the careful and exact registration of the 
 Montrose and Arran charters, erecting those Earldoms, undoubtedly granted in 1503-5. Besides, the Glencairn charter- 
 chest, which had been fully preserved, was carefully examined in 1796-7, and no vestige was found of any patent hut that 
 of 1488. Ncyr was any other patent discovered during the long litigation ending in 1648. All this is overlooked by the Lord 
 Chancellor and Lord St. Leonards, as well as the fact that when, subsequently to 1503, a patent had to he acted upon in 1515-6, 
 it was that q/' 1488. 
 
 ** The Lord Chancellor forgets the fact that in Scotland, differently from England, charters were, as a general rule, 
 carefully registered in a public record. No doubt there were exceptions to this, but, speaking generally, no Scottish gentle- 
 man, holding as an immediate vassal of the Crown, is under any difiiculty as respects the rights to his lands, as they existed at 
 the close of the fifteenth century. If not preserved in his own charter-chest, he has merely to refer to the Great Seal Register. 
 Besides, in the Glencairn case the family titles are fully preserved, as has been stated. 
 
 tt And therefore the Lord Chancellor assumes a Glencairn charter or patent, as granted in 1503, without any proof 
 whatever — in defiance of the maxim De non apparentibus et de non existentibus eadem est ratio, so constantly held in view 
 hitherto in Peerage claims— and in face of the recognition of the original and only patent in 1615-6, 1516-7, and afterwards ! 
 He is little aware of the richness of the charter-chests of many of the old Scottish families — while the Great Seal Register for 
 the time is fully preserved, and in that Register the Arran and Montrose patents are recorded, suggesting the query, why, 
 if a Glencairn patent passed in 1503, under identical circumstances with those two patents, why was not it also registered ? (») 
 How, too, if the ruling Glencairn patent was one of 1503, could the Crown in 1515-6 and the Supreme Civil Court in 
 
 (") The argument from this non-registration is, of course, were occasionally not registered), but it is certainly strongly pre- 
 not positive (inasmuch as very important charters or patents sumptive under the peculiar circumstances. 
 
 2 U 2 
 
( 334 ) 
 
 fore, my Lords, it appears to me that what happened to the Earl of Glencairn after the 
 passing of the Act Rescissory is just exactly what you would have anticipated. He is 
 always called from that time " Lord Kilmaurs;" he has none of the property which 
 was granted to him by the original grant of the Earldom of Glencairn ; he is always 
 designated "Lord Kilmaurs;" he sits in Parliament as " Lord Kilmaurs ;" he has his 
 seal engraved as Lord Kilmaurs, — and so he continues down to a period just after the time 
 at which nothing could be so probable as that he should be again created Earl of 
 Glencairn.* From that time we hear him called the Earl of Glencairn. Is not the 
 inference almost irresistible, that at the same time that Lord Hamilton was created Earl 
 of Arran, and at the same time that Lord Graham was created Earl of Montrose, Lord 
 Kilmaurs was created Earl of Glencairn ? f We cannot entirely reject the information 
 we gain from antiquarian books ; we find there a long description given of the belting 
 of these noblemen. But if we had no trace of it at all from that source, I should thmk 
 the inference that such was the fact not only not an unnatural one, but one at which 
 your Lordships could hardly fail to arrive.^ 
 
 My Lords, that being the evidence contemporaneous,§ if I may say so, I now 
 come to the only other transaction to which I shall think it at all necessary to call your 
 Lordships' attention ; that is, what is supposed to make this a res judicata in favour of 
 the present applicant. It has been truly remarked that nobody could be so tenacious 
 as the Scotch nobles were of their precedence ; and this observation leads me to advert 
 to a remark which was made^ but which did not make much impression upon my 
 mind, that the sittings of these noblemen — one as Earl of Crawford instead of Duke of 
 Montrose, and the other as Lord Kilmaurs instead of Earl of Glencairn — might be 
 regarded according to the custom prevailing among foreign nobility, who often take, 
 not their highest title, but their oldest or some other title ; and that, therefore, it might 
 be that he called himself in society " Lord Kilmaurs," instead of Earl of Glencairn. 
 But, my Lords, the sitting in Parliament, and getting ranked as a Baron when he had 
 a higher title, is not an act which a Scotch nobleman would have done, unless he had 
 
 1516-7 recognise Alexander the patentee in 1488, and (by necessary consequence) his son Robert, afterwards styled retro- 
 spectively ' Earl of Glencairn ' in 1550, and his grandson Cuthbert, as Earls of Glencairn under the patent of 1488 ? 
 
 * Not to take exception at mere surmises of probability, the Claimant will merely remark here, that the whole of this 
 appears to him (however unintentionally on the part of the Noble and Learned Lord) an ex parte pleading, straining everything 
 against the Claimant, and wholly omitting and overlooking whatever aids and strengthens his argument. 
 
 t This has the semblance at least of petitio principii. The Claimant submits that all the circumstances are easily 
 accounted for otherwise. Even assuming the admissibility of Youug's most questionable evidence (which the House would 
 in other claims, as in that to the Earldom of Crawford, have at once scouted and rejected), it merely narrates the inauguraticm, 
 or, as it is termed by the Lord Advocate, the " installation " of the dignities ; while the usage of patentees not to assume 
 their titles till after inauguration by belting and other ceremonies (as proved by the Claimant in the S. Case, pp. 7, 8) fully 
 accounts for the family being designated as Lords Kilmaurs during the Interval between the date of the patent and 1503 — the 
 fact being in itself unimportant, as In the Norfolk case. And it is remarkable that the ancient endorsement on the Glencairn 
 patent 1488 (which was brought to the House of Lords to be exhibited during the recent discussion, if required) states that 
 " auld Alexander Erie of Glencarn . . dyed before saisin " — fully accounting for the non-assumption of the title — which never- 
 theless rightfully belonged to him. 
 
 J It falls to be remarked here that the Lord Chancellor admits that there must have heen a charter or written patent, 
 of some date or other, constituting the Earldom of Olencairn. He does not found on ' belting' (simply) as a creation, as Lord 
 Loughborough does in his Speech on moving the Resolution in the Glencairn claim in 1797. Everything turns then (as was 
 Tield hy the Cov/rt of Session in 1648) on there ieirtg a Olencairn patent later than 1488, or, as here maintained hy the Lord 
 Chancellor, in or about 1 503. If so, the ignorance of the Court of Session in 1 648 of the mere statement of the herald Young 
 respecting the ' belting ' or inauguration cannot impair the validity of their judgment, as proceeding on insufficient data. 
 Vie very inference (for, by the admission of the Crown itself, it is a mere " inference ") here affirmed as fact hy tlie Lord Oham- 
 cellor, was suggested hy the counsel opposed to Olencairn in that process, viz. that a new charter had been granted, creatine 
 the Earldom again, in 1504; but, inasmuch as, after every possible search and inquiry (as may be fairly presumed), there 
 
 was no evidence of the fact, the suggestion was rejected, and ultimately withdrawn by Eglinton himself as untenable the 
 
 interlocutor or decision to this effect being final and res judicata. See the ' Minutes of Process ' in the case, printed in the 
 Appendix, infra, pp. 443, 444, 445, 446. 
 
 § This entirely omits the evidence of the Retour 1515-6 and the Decreet of 1516-7, and the argument from there being 
 no Glencairn patent in the contemporary record in 1503-4, &c. 
 
( 335 ) 
 
 .been compelled to do so * I cannot think, therefore, that that is entitled to very great 
 weight. 
 
 Another observation which I would make, and which I had almost forgotten, 
 relative to those past times, is this,— that I cannot conceive anything in the world so 
 excessively improbable as that, if there were in 1503, at the time of the King's mar- 
 riage, a Duke of Montrose in existence, the King, wishing to confer a favour upon Lord 
 Graham, should create him Earl of Montrose.f That of itself, I think, irresistibly 
 shews that it was not understood at any time that there was any Dukedom of Montrose 
 existing. That, however, is rather out of the course of the present argument. 
 
 My Lords, I Avill now proceed to the only remaining question, with regard to 
 the precedency of the Earls, which led to the litigation in the 17th century. Just 
 after the accession of James VI.— James I. of England— to the Crown of this realm, 
 there seems to have arisen a dispute in the Scotch Parliament as to precedence. A 
 Decree of Banking, as it is called, was made, I believe, by the Parliament itself, J in 
 which they classed the Peers according to their order. They classed the five following 
 noblemen in this way:— The Earl of Eglinton, the Earl of Montrose, the Earl of 
 Cassillis, the Earl of Caithness, and the Earl of Glencairn. That was the way in which 
 they were ranked, putting Lord Glencairn below Lord Eglinton and the others. In 
 1610, Lord Glencairn, being dissatisfied with this, instituted a proceeding in the Court 
 of Session § to have it corrected, alleging that he took precedence of those other noble- 
 men. The Court of Session came to the conclusion that he was right, || and that he 
 
 * The Claimant never represented Lord Kilmaurs as " calling himself in society ' Lord Kilmaurs,' " as " getting ranked 
 " as a Baron when he had a higher title " (an idea akin to that of the Lord Advocate that the Claimant wished to represent 
 the Duke of Montrose as adopting the title of ' Earl of Crawford ' " from choice " in public proceedings) ; on the contrary, he 
 has denied all along that the Duke of Montrose sat in Parliament at all during the interval between the two patents — he has 
 also proved that the Duke uniformly asserted his title of Duke ; and he urged that, inasmuch as Scottish noblemen, entitled to 
 higher titles, are frequently in legal documents described by their older but inferior ones, the designation of Duke David as 
 ' Earl of Crawford ' and of the Earls of Glencairn as ' Lords Kilmaurs ' could not legally prejudice them. The illustrations ha 
 drew from foreign practice afforded an d fortiori argument ; but it was on the Scottish practice that he rested his position — 
 and neither the fact itself, nor the illustrations adduced in support of it, have been impugned or refuted by the Crown, while 
 they are wholly overlooked by the Lord Chancellor and by Lord St. Leonards, here and elsewhere. — But, under any circum- 
 stances, such misnomer could not affect a title lawfully constituted and not lawfully rescinded or alienated, as by the Norfolk 
 and other precedents. 
 
 + The same titles, both in England and Scotland, were frequently granted to different persons — but this dignity of the 
 Earldom of Montrose in 1504 was derived from a totally different locality — not from the Royal Burgh of Montrose, from 
 which the Dukedom originated, but from the private estate of ' Old Montrose ; ' in consequence of which the grantee is actually 
 styled in legal documents (executed by the Burgh of Montrose itself, dated 18th March 1506 and 12th June 1507) "William 
 " Earllof Aid Montros," — while the investiture of the Earldom in 1575, the Royal Charter to John Earl of Montrose, ^TOceec^Mijr 
 upon his express resignation, in 1581, and the Parliamentary Ratifications in 1587 and 1592, invariably describe the Earldom 
 as the " Baronia et Comitatus de Auld Montrose " and " the Baronie of Auld Montrose ; " and the infeftment in 1575, 
 proceeding on the Royal precept, is given at the fortalice " Comitatus de Auld Montrose " as the principal messuage of the 
 Earldom. And the family, even in the seventeenth century, still legally connected themselves with each other "in Baronia 
 " et Comitatu de Auld Montrois,'' as proved by special retours in 1627 and 1665. All this has been proved by the Claimant 
 in his Case upon the preliminary question of the right of Earl William's representative, the present Duke of Montrose, to 
 oppose him in this claim. Independently, however, of all this, tlie case of the two Earldoms of Devon {in the Courtenays and 
 Cavendishes) is a sufficient answer to the above objection. The Claimant is not concerned with it otherwise than as legally 
 pressed against him. 
 
 X No,— by a Royal " Commissioun under the Great Scale " from James VI. and the "Secreit" or Privy " Counsell," 
 empowering " a number of his Hienesse' Nobilitie and Counsall who ar most indifferent and nawayes suspect of partialitie, to 
 " conveene" and settle the precedency in an interim manner, — but with reservation of power to any peer to recover his 
 due precedency,1it prejudiced, through " the obdimab remeed of law, he Reductioun befoee the Lours of Counsell and 
 " Sessioun " (i. e. the Court of Session) " of this present Decreit, for recoverie of tJiair owne deiv place and rankis he 
 " productioun ofmair ancient and authentich rights {writs) nor {than) hes heme used in the contrair of this processe, — Sum- 
 " moning thairto all suche persouns as thay sal thinke wrangouslie rankit and placeit before tliame," &c. &c. — The date of 
 the ' Decreet of Ranking' is the 5th March 1606. It has been received in evidence in the pending Herries claim, and is 
 printed in the Appendix to this volume, infra, pp. 418 sqq., where it is accompanied by an Analysis, as in the case of all the 
 successive Decreets in the question of the Glencairn and Eglinton precedency. 
 
 § As prescribed by the Boyal reference in the Decreet of Ranking by the Royal Commission in 1606, — while the Court 
 possessed also an innate and inherent jurisdiction in peerages, as already and elsewhere shewn. 
 
 II That is, in consideration {exclusively) of the patent 1488, which is recited at full length in the Decreet 7th July 
 1610, issued on the occasion. The Decreet is printed in the Appendix, infra, pp. 420 sqq. 
 
( 336 ) 
 
 took precedence of the Earl of Eglinton and the Earl of Cassillis, — nothing being said 
 about the other two, and for this reason, that they had never, as we should say, been 
 made defendants, had never been heard, and therefore the Decree of the Court could 
 not affect them. My Lords, the consequence of that was a very absurd state of things, 
 because Lord Eglinton and Lord Cassillis were put down at the bottom. They could 
 not affect the Earl of Montrose, nor the Earl of Caithness ; but after the Earl of Caith- 
 ness there came the Earl of Glencairn, then the Earl of Eglinton, and then the Earl of 
 Cassillis. Against that decision there was a further appeal * on the part of those who 
 had been put down improperly; and in 1617 the decision of 1610 was reversedjj- and 
 the old order restored. And then, again, a further proceeding was instituted, upon the 
 ground — at least so it was alleged — that the Earl of Glencairn's title took precedence 
 (dated, I think, from 1488) of the Earl of Eglinton's.J the date of whose title does 
 not very clearly appear,§ but might have been some ten or twenty years afterwards. In 
 this confused state of things, there having been first a Decreet of Banking in one way, 
 corrected afterwards by the Court of Session in another way,|| it appears that the Earl of 
 Glencairn had made great favour with King Charles I.; ^ and, in the year 1637, I^ing 
 Charles I. took upon himself to issue letters patent confirming the original grant of 
 1488. Now, I need not tell your Lordships that, though the Crown is the fountain of 
 honour, and King Charles might have created the Earl Duke of Glencairn if he had 
 thought fit, or bestowed upon him any other title, yet the Crown cannot set up, as a 
 valid grant, that which has been annulled and declared invalid by an Act of Parliament.** 
 
 * Not an appeal, but an Action of Reduction before the same competent Court, the Court of Session. 
 
 t But only on this purely technical ground — the merits of the decision in 1610 on the patent of 1488 being left 
 untouched. For the Decreet 1617 see the Appendix, infra, pp. 423 sqq. 
 
 X This looks as if the Lord Chancellor supposed that new ground was taken in 1648 — that the question of the patent 
 1488 then came first under consideration. But this was not the case (as has just been shewn), the judgment of 1610 having 
 gone entirely upon the patent 1488, as authentic evidence, then first produced, establishing priority of creation for Glencairn 
 over Eglinton. The Decreet 1648 rescinded the Decreet 1617 so as to restore that of 1610 to full eflSeacy. 
 
 § He was " Earl," as by the recognition of the Royal Commission in 1606 and the decision of the Court of Session 
 in 1648, on the 25th March 1503, the first day of the year 1503 (supra, p. lix ; infra, pp. 439, n. *, 454, 476, 477). The 
 patent of the Earldom, whatever its nominal designation may have been, is not preserved, the castle of thq Earls of Eglinton 
 having been burnt by the Glencairn family circa 1528, when their ancient muniments perished. (") And it is not on record. 
 
 II There was »o confusion in the mattei — all was plain sailing. The Decreet of 1606 was merely an interim one, with 
 reference to the Court of Session for ultimate decision " be productioun of raair ancient and authentick rights (writs) " than 
 had been previously adduced in 1606, and the Court, on having the proper evidence brought before them, in 1610, put matters 
 right accordingly — although, owing to an informality in the Summons, the rectification proved unavailing ; so that all, subse- 
 quently to 1606, had to be begun again. 
 
 % Pure assumption. 
 
 ** Quite erroneous. The question is not what the Crown can or can not do now, but what the Crown could or could 
 not do — in Scotland — in the seventeenth century. It is a matter of simple historical fact that the King coidd restore against 
 forfeiture and attainder in Scotland, — and this was done in repeated cases in that very century, as in that of the restoration by 
 James VI., 4th August 1613, of James Lord Balmerinoch against his attainder for high treason in 1609 ; the remission and 
 rehabilitation, under the Great Seal, 21st Aug. 1686, of Walter Scott Earl of Tan-as, forfeited for treason, in consequence of 
 his accession to Monmouth's rebellion, in 1685; the rehabilitation by Royal remission, by William and Mary, ult. April 
 1692, of Mac Donald of Glengarry, attainted by Act of Parliament 14th July 1690, — and many others. While Sir James 
 Stewart, Lord Advocate to Queen Anne, a noted Whig, and by no means inclined to stretch the Royal authority, inculcates 
 (in conformity with earlier principle and practice) that " the King, geanting a bemission after forpaultube, ebstoees 
 " TEE PERSON FORFAULTBD ENTIRELY." Answer to Birleton's Doubts, p. 127. See the Orig. Case, p. 13 ; 8. Case, p. 108 ; 
 and supra, p. Ixxxix. And the Claimant has proved that even Acts of Parliament were rescinded by the Scottish Sovereigns 
 in the sixteenth century, B. Case, p. 107. Even therefore if Charles I. had ' taken upon himself,' as stated (somewhat dis- 
 respectfully) by the Lord Chancellor, to confirm the Glencairn patent in the face of the Act Rescissory, it would not have been 
 beyond his prerogative to do so — a prerogative actually exercised even by the Whig King William and recognised by the 
 Whig Lord Advocate of Queen Anne. But, in point of fact, Charles I. did no such thing, — he merely acted in accordance 
 with the Decreet of the Supreme Civil Court, the Court of Session, in 1610, in recognition of the Glencairn patent (which 
 recognition stood clear and unimpeachable notwithstanding the Reduction of that Decreet on distinct and technical grounds 
 in 1617), and also in conformity with the previous recognition hy the Supreme Civil Court in 1516-7, as elsewhere shewn. 
 While, even if, as maintained by the Earl of Eglinton in 1648 {infra, p. 438), the Confirmation is not absolute, but 
 
 (") Provedby a charter of James V. to Hugh Earl of Eglin- enumerated in the schedule of evidence in the Decreet 19th 
 ton, 23rd January 1528, adduced in the process 1637-48, and January 1648. Vide Appendix, infra, p. 453. 
 
( 337 ) 
 
 Charles I. did that; and in consequence of that* Lord Glencairn again applied, by a 
 Summons of Reduction I think, to the Court of Session in Scotland.! It certainly does 
 seem to us in these days rather strange, that the question of the precedency of these 
 two Noble Earls should have occupied the Courts, in one way or another, for nearly 
 half a century ; but so it did.J And, finally, having gone through such a course of 
 litigation as it is sickening almost to look at, in January 1648 Old Style (1649 New 
 Style), only a few days before the execution of Charles !.,§ the Court of Session decreed 
 in favour of the Earl of Glencairn ; that is to say, it decreed that the original Charter 
 was still in force, and that he, therefore, took precedence of the Earl of Eglinton, who 
 had only been created (the exact date is not material) some time after the original 
 grant had been made to the Earl of Glencairn. || Well, what happened upon that? 
 Why, the Earl of Eglinton, who I suppose was on the other side in the politics of the 
 day, went before the Parliament of Scotland, and in the following year Parliament 
 reversed what the Court of Session had done.^ So that from that time the Earl of 
 Eglinton took precedence of the Earl of Glencairn.** Then came the Commonwealth, 
 and then in 1660 the Restoration, and in 1661 the Act of Parliament which had revoked 
 the Decree of the Court of Session was swept away ; ff so that the Decree of 1648 was set 
 up again. J J 
 
 qualified, as being ' ' secundum validitatem predictarum litterarum paten tium," this could only he in order not to prejudge any 
 question which might possilly come into dispute before the Court of Session — whose authority was thus distinctly and scrupulously 
 reserved and recognised. The Claimant must however observe that he does not found except in a very seconda/ry degree 
 on the Batification of 1637 — although it makes the Glencairn case still further identical with that of Norfolk, as confirmed 
 by Henry VI. in 1444 — as to which see the Orig. Case, p. 73, and Appendix, infra, p. 398. 
 
 * Not upon that alone, as would be hence inferred, but notoriously on greater and weightier reasons — Glencairn's 
 whole argument being based on the validity of the patent 1488 as on its foundation stone. 
 
 t In this Summons (for which vide Appendix, infra, p. 426) Glencairn puts it in issue that Cuthbert Earl of Glencairn, 
 who sat as such in 1505, sat, not in virtue of any subsequent creation in his own person, but as grandson and heir of Alexander 
 Earl of Glencairn, his grandfather, so created in 1488. 
 
 t It is accounted for by the feelings of the times generally, and by the fierce feud, in particular, between the Cunning- 
 hams and Montgomeries, which has left so many traces on the memory and history of the West of Scotland. The opposition, 
 open and occult, offered to the present claim may indeed prove that such feelings, however " strange " and marvellous to the 
 eye of reason and rectitude, are not extinct even in the just and impartial nineteenth century. The very duration of the 
 Glencairn and Eglinton contest proves how deeply and fully the question was discussed — thus giving the utmost weight to 
 the final decision in 1648. 
 
 S Thus shewing that Charles I. had no hand in the matter, that it was no matter of favour, as suggested by the Lord 
 Advocate ; but that it was simple and uniform justice which decided then, as on former occasions. 
 
 11 The Lord Chancellor thus himself asserts that by the Decreet 19th January 1648 " the Court of Session . . decreed . . 
 " that the original charter," that is, the Glencairn patent 28th May 1488, " was still in forcb." ' And why,' asks the 
 Claimant, ' did they so decree ? ' The answer is direct and simple — Because thb Act Rescissory did not affect it. And 
 therefore, he infers, the Act could not affect the Dukedom of Montrose. He would refer here, also, to the observations of the 
 Noble Chairman in the course of the discussion, on the Crown objecting that Cuthbert Earl of Glencairn took " a new title 
 " of Earl of Glencairn from a posterior period" to 1488, — " That is tlie point which the Court of Session decided; he" (Earl 
 Cuthbert) " took the title in 1503, but he took it upon the Patent of 1488. ..The Court of Session found that there 
 " WAS NOTHING ij^ THE AcT Rbscissobt PREVENTING HIS ASSUMING THE TITLE. . . Whether they were right or wrong, they 
 " ACCEPTED THE Patbnt OF 1488." Supra, p. 214. — Lord St. Leonards, the Claimant would observe, in his allusion to this 
 decision, makes no statement at all as to its effect, while representing it as a Resolution (merely) by Parliament, as may be 
 seen by reference to his Speech, infra, p. 370, and n. *. From which silence the Claimant infers that the Noble and Learned 
 Lord cannot deny the fact asserted, as above, by the Lord Chancellor and by Lord Redesdale — and which, moreover, is 
 also admitted by the Lord Advocate, as shewn supra, p. liv. For the Decreet 19th Jan. 1648 vide infra, pp. 446, sqq. 
 
 IT That is, by the Decreet 9th March 1649— Parliament acting, not in a legislative but a quasi-appellate or judicial 
 character. The above is put as if Parliament had authority in the matter — but it had none, and moreover was then in 
 EEBBLLioN. Of all tribunals Parliament itself was the least fitted to adjudicate in matters of peerage and precedency, owing 
 to the prevalence of political feeling and private partisanship ; and for this reason probably such discussions were expressly 
 reserved by Scottish law and practice to the impartial, calm, and disinterested adjudication of the Supreme Civil Court. For 
 the Decreet vide infra, pp. 464 sqq. See also the Decreet 2nd March 1649, annulling the patent, infra, pp. 462 sqq. 
 
 ** But only during the Usurpation. 
 
 t+ This might appear, at the first glance, as if it was a special Act, hostile to the Earis of Glencairn, (viz. the Decreet 
 of March 1649,) which was rescinded in 1661 ; whereas it was the whole Parliament of 1649, with all its dependencies, 
 (including the Decreet in question,) which was then rescinded by special enactment, as rebellious and usurping. See the Act 
 in the Appendix, infra, p. 484. 
 
 X% If so— if, as by the direct assertion of the Lord Chancellor, the Decreet of the Court of Session in 1648, to the 
 
( 338 ) 
 
 Now what is said is this — not that it touches the Montrose case, it has nothing to 
 do with it except as a precedent* — but that the Court of Session, being a competent 
 tribunal, decided in 1648 something which necessarily shews f that the Act Rescissory had 
 not the effect of destroying dignities, and that, if that was so, if it did not destroy the 
 one it could not have destroyed the other. J 
 
 Now, my Lords, in the first place I must observe — not that I attribute much 
 weight to the argument— that in the course of the discussion upon the hearing of that case 
 before the Court of Session, I see it was distinctly argued § that the case of the Duke of 
 Montrose differed from that of the Earl of Glencairn, because, it was said, ' a Dukedom is 
 ' in every sense a new dignity, and that therefore, although the Act Rescissory may have 
 ' destroyed the Dukedom of Montrose, it does not follow that it destroyed the Earldom of 
 ' Glencairn.' Now the force of that argument should depend upon this^What is the 
 meaning of " new dignities ?" The argument would be very good, if " new dignities " 
 meant creating persons to dignities which had been unknown, as far as the subjects of 
 Scotland were concerned, up to the time of that creation. But it has no more weight if 
 the true interpretation be, as I consider it to have been, that it meant to strike at dignities 
 which had been newly given to the persons to whom they had been granted. || 
 
 My Lords, the Court of Session came to the conclusion that the Earl of Glencairn 
 took precedence of the Earl of Eglinton ; they must have come to the conclusion, there- 
 fore, that the original Patent was in force. ^ But, my Lords, it is very difficult indeed to 
 be certain that one understands exactly the principles upon which the Court of Session 
 proceeded in that case. I have looked through the proceedings with all the attention 
 that I could give to them, and it appears to me that there was before the Court of Session 
 no evidence of sittings in Parliament, except sittings which shewed that the Earl of 
 
 effect "that the original charter was still in force" (necessarily as unaffected by the Act Rescissory), ultimately stood 
 triumphant, after the Restoration, having, like the monarchy, " weathered the storm," why lay the least stress upon the unjust, 
 vmtenable, and irrelevant proceedings of the rebellious Parliament in question f Those proceedings are of no importance 
 whatever in the matter, except as testifying that the Decreet of the Court of Session was founded on the patent 1488 as not 
 affected by the Act Rescissory, and that the Parliament thought it incumbent upon them to uphold ihe Act Rescissory and 
 disallow the patent, lest it should condemn their own conduct towards Charles I. and afford a pretext for recognising the 
 patent of the Marquisate of Montrose.C) The Lord Chancellor, in his allusion to these Parliamentary proceedings, entirely 
 overlooks the Claimant's argument thus deduced from them. 
 
 * But a precedent completely and conclusively in point. 
 
 t V?^hich rather, the Claimant submits, directly proves, &c.,—the question having been reduced (as has been shewn) to 
 the simple point, whether the Patent or the Act Rescissory was to prevail. Vide supra, p. xlv; lix, Ix ; infra, p. 442. 
 
 X Unquestionably so, as by the relevant ratio in the Norfolk judgment, omitted by the Lord Chancellor, and cited 
 supra, p. 330, note f, and p. 331, n. *. 
 
 § By the counsel for the Earl of Eglinton, as appears in the ' Minutes of Process,' the report of the arguments, inter- 
 locutors, &c. during the litigation before the Court of Session from 1637 to 1648, adduced by the Claimant from the Eglinton 
 charter-chest, and printed in the Addenda to the Supplemental Case, pp. 190 sqq., and (in all their important parts) in the 
 Appendix, infra, pp. 432 sqq. ; and which ' Minutes ' the Lord Chancellor thus accepts as valid evidence ; while they are 
 moreover quoted and referred to in the Parliamentary Decreet of the 9th March 1649, as may be seen infra, pp. 475 480 
 482. The Claimant is therefore fully entitled to the benefit of their testimony. See the following page, note (•). 
 
 II Neither the Crown nor the Duke of Montrose have advanced this argument in the present claim. The Claimant 
 alluded to it in the discussion, supra, pp. 42, 43, 68. See also the Analysis, supra, p. xlviii. 
 
 f A frank admission, for which the Claimant would express his acknowledgment. The Decreet itself affirms the 
 fact, and the Parliamentary Decreets of 1649 and all contemporary documents testify to it. 
 
 (») This appears too from a ' Memorandum for the Earle of " consequence in this kingdome in thir (these) txmes, quhen 
 
 ' Eglintone ' (preserved in the Eglinton charter-chest) preparato^ " many have darked, upon evil groundit pretences of doeiny 
 
 to the appeal to Parliament,— and in which, after stating that in " service to his Majestic, TO rtse in open hostilitie aganes 
 
 the recent action before the Lords of Session the patent 1488 "was " the Estates of this Kingdom ;" and that " the susteining 
 
 " sustained A valide patent and a good evident to tak from "of" that "patent drawes so far upon the interes of the Estates of 
 
 " the Earle of Eglingtoun his richt of precedencie," it is urged " the Kingdom at this tyme, as that, be the ltk reasone and 
 
 " tliat the sustening of such a patent, gevin for so evile a caus"~^iz. "upon the same ground, patents of honour grantit in thir 
 
 for "having assisted King James 3. in armes . . aganes the Kingis '' troublesome tymes may be esteemed approbable or approvin, such 
 
 " guid subjectis and the good of the realme," &c., and which had " as James Gbahamis patent as Marquis of Montrose."— 
 
 been annulled by the Act Rescissory—" may be of a bad and sad S. Case, Addenda, p. 213 ; and Appendix, infra, p. 461. 
 
( 339 ) 
 
 Eglinton never sat as Earl of Eglinton until after the time when it is admitted on all 
 hands that Lord Glencairn sat as Earl of Glencairn.* Lord Glencairn certainly sat as Earl 
 of Glencairn in 1505. There is an instrument granted to him under which the Crown 
 grants him something in 1504, and he sat as Earl of Glencairn in 1505. Now if the 
 Court of Session thought there was no evidence that ought to satisfy them that Lord 
 Montgomery had been anything but Lord IMontgomery until a period later than 1504, 
 it was not necessary for the justice of their decision that they should have said a word 
 about the Act Rescissory.! No doubt the Act Rescissory was pressed upon them in 
 argument, but there is nothing in the judgment which shews that they acted upon the 
 Act Rescissory at all.| It may be that they said, — ' We can only see in what order these 
 ' parties have sat in Parliament, and we see that the Earl of Glencairn sat as Earl in 
 * Parliament at a time which must have given him precedence.' That might have been 
 the ground upon which they decided. § — But, my Lords, it is idle not to see that to derive 
 any precedent to guide your Lordships from the transactions of those troublous times 
 
 * The distinction drawn here is between a sitting of Eglinton as Earl of Eglinton, and a sitting as Earl under some 
 other designation — which it is assumed throughout these Speeches could not and did not lake place. Sittings in Parliament, 
 it may be observed, however valuable as evidence, are not imperative in Scottish Peerage claims. The existence or 
 constructive constitution of a peerage can be otherwise established, by ordinary legal evidence. Moreover, Scottish peerages, 
 duly created by patent and inauguration, derived no further sanction from sitting in Parliament, as has been shewn, supra, 
 pp. liXii, Lxm. 
 
 t The title of Earl in the Montgomeries — that of Earl of Montgomery, (the same in effect as Earl of Eglinton, the 
 rank being everything, the title comparatively nothing in feudal times, as witnessed in the case of the Earls of Dunbar or 
 March in Scotland, those of Salop or Montgomery in England, those of Ormonde or Gowran in Ireland, &c. &c.) is fvUy fixed 
 to have existed cm the 25th March 1503, the first day of that year, as by evidence recognised and accepted by the Royal 
 Commission in 1606 and exclusively in view in the Decreet of the Court of Session in 1648 ; and which, being earlier 
 than any proof of Earldom in the Glencairn family with the sole exception of the patent 1488, would necessarily have given 
 Eglinton the precedence if the Act Rescissory had cut down that patent. The Claimant has shewn that the Earldom of 
 Montgomery continued to be borne long afterwards, 8. Case, pp. 71, 72, and supra, p. lix, where (and in note t) he has 
 also adduced evidence, discovered quite recently, and unknown to Lord Loughborough in 1797, proving that the chief of 
 the Montgomeries was styled " Earl of Montgomery alias Eglinton " by the envoy of Queen Elizabeth in 1564-5. 
 
 X The fact however is precisely the reverse — the Court of Session thought there was evidence, and declared it did 
 satisfy them, to shew that Eglinton was Earl on the 25th March 1503, the first day of the year, whereas Glencaim's earliest 
 appearance as Earl of Glencairn was in 1505, — Eglinton therefore was entitled to precedence unless the original Glencairn 
 patent of 1488 still survived, unaffected by the Act Rescissory. Their whole decision consequently rested and necessarily 
 depended on the question whether the Act Rescissory had heen effective or not : — If effective, Eglinton would have been entitled 
 to the precedency ; if not effective, Glencairn, — and they decided for Glencairn, and therefore against the Act Rescissory. 
 Moreover thky actually say so ; for, so far from the Decreet stopping at the point stated by the Lord Advocate, supra, 
 
 p_ 250 so far from what follows being " mere narrative of the incidental procedure in the cause," as represented — it proceeds 
 
 to affirm the " reasons " or pleas of the Earl of Glencairn, as previously recited in the document, amd to repel those of 
 
 Eglinton those pleas entirely turning ■upon the question of the efficacy or non-efficacy of the Act Rescissory, and Glencaim's 
 
 " reasons," so affirmed, thus forming an integral part or the judgment. The Claimant would refer to the Decreet as 
 printed in extenso in the Appendix, infra, pp. 446 sqq., and to the Analysis subjoined to it. 
 
 § It is not a question of what they might have said or done, but of what they did actually say and do — not a matter of 
 speculation but of fact. The Claimant submits that there is no mystery or difficulty either as to the principles on which the 
 Court of Session proceeded or the decision thiy came to .-—For, 
 
 1 . It appears from the " Minutes of Process," founded on by the Lord Chancellor and thus admissible in the Claimant's 
 
 favour,('') that Eglinton 's counsel " declairednE dispute only against the ressounepoundit upone the Patent 
 " and the Act of Parliament against the samyne," i. e. the Act Rescissory, irfra, p. 442— which 
 declaration is also quoted from the Minutes in the Decreet of Parliament, 9th March 1649, infra, pp. 475, 482. 
 
 2. It appears from the Decreet 1648 itself, as above stated, that the Court decided in favour of Glencairn against 
 
 Eglinton on the ground of the evidence and argument adduced by Glencairn, pursuer in the action,— that evidence 
 and argument being headed by and grounded upon the patent 1488 as not affected by the Act Rescissory 
 —apart from which patent Eglinton would have been entitled to the precedence in consideration of his Sederunt 
 as Earl of Montgomery 26th March 1503— Glencaim's earliest evidence of Earldom (setting aside the patent 1488) 
 being in 1505. — And, lastly, 3. It 
 
 (a) These Minutes stand, to say the least, on as high ground, successive interlocutors or judgments of that Court— from which 
 
 as evidence, as the Speech of Lord Loughborough preserved there was no appeal. They were produced, and are cited and 
 
 in the Glencairn Charter-chest, and to which such importance founded upon in the Parliamentary Decreet 9th March 1649, as 
 
 (almost amounting to an identification with the Resolution of the the basis " quhairapon the Decreet in anno 1648 proceeded." 
 
 House) has been assigned by the Lord Chancellor (as will ap- Videm/ra, pp. 475, 480, 482. While the contemporary transcript 
 
 pear) in the present case. They even stand on higher ground, adduced by the Claimant comes from the Charter-chest of the 
 
 being the record, duly drawn up at the time, under authority of Eglinton famUy— the hostile and unsuccesstiil parties in 1648. 
 
 the Supreme Civil Court, not only of the pleadings but of the See the Address, p. ix, n. *, and the Analysis, p. liv, n. *, supra. 
 
 2 X 
 
( 340 ) 
 
 would be really to shut your eyes to what must have been the truth of the case. The 
 Court of Session decided one way, and as a matter of course Parliament decided the other 
 way. And afterwards, when the tables were again turned, the new Parliament revoked 
 what the former Parliament had done.* It is very difficult indeed to arrive at anything 
 satisfactory from transactions occurring at that period, especially in matters of this 
 special nature relating to the precedence of persons no doubt taking a great part in the 
 troubled affairs of those times.f I must however remark this, although it may seem 
 like a paradox. I believe we have much better means of judging of the truth of the 
 case after the lapse of three hundred and fifty years, than they had after the lapse of 
 one hundred and fifty years. That seems, I say, paradoxical, but there is nothing like a 
 paradox in it when the matter is looked at calmly, — one hundred and fifty years is a space 
 of time just as completely annihilating anything like oral testimony, or even traditionary 
 testimony, of the transactions which had preceded it, as three hundred and fifty years.| 
 I was going to say that we know no more or little more of transactions one hundred and 
 fifty years back, than of those which occurred three hundred and fifty years back ; but 
 perhaps it would not be quite correct to say that, because the altered state of society, and 
 the multiplication of printing, and the great facilities for transmitting knowledge, render 
 our position very different in that respect from that of our ancestors ; but I very much 
 doubt whether in the reign of Charles I., even independently of the troubles of the times, 
 they were in the least better position to investigate the truth of a case which happened in 
 the reign of James III., than we are in the reign of Queen Victoria.§ I am the more 
 
 3. It appears from the Parliamentary Decreet 2iid March 1649, annulling the Glencairn patent 1488, that " the Lords 
 
 "of Sessioun pronounced interloquutor and sentence " on that patent in the process 1 648 (infra, p. 463) ; and from 
 
 the Parliamentary Decreet 9th March 1649, annulling the Decreet 1648, that the latter was annulled " as 
 
 " MAYNELIE PKOCEEDiNG AND DEPEMDiMO UPON THE FOHSAiD PKETENDiT PATENT, quhilk IS rcduced and dcclaired 
 
 ' ' null, as said is," infra, p. 483 : — 
 
 — The patent 1488, as not affected by the Act Rescissory, being thus first, last, and everything in the discussion and 
 
 judgment, everything else being of minor weight and consequence — nothing else being sufiBcient to give Glencairn the 
 
 precedency if that were absent. The Decreet of the Court of Session in 1648 decided therefore that the Glencairn patent 
 
 stood, unaffected by the Act Rescissory — it was a decision on the Act Rescissory itself, and on a patent identical in every 
 
 respect with that of the Montrose Duhedom — and there is no Dirricni.Tr on mystery in the matter. 
 
 * Assuming (in disregard of all that has been proved by the Claimant) that the Court of Session and Parliament were 
 equally liable to undue influence, equally corrupt — and that Parliament had as much right to adjudicate in the matter as the 
 Court of Session — while constrained to admit that the decision of the Court of Session ultimately stood, and has ruled ever 
 since — the Lord Chancellor concludes that we ought to reject all evidence on the subject one way or the other! The 
 Claimant cannot but inquire whether it is fair to make the rescinded proceedings of the incompetent and rebellious Parlia- 
 ment in 1649 weigh in the discussion ; and, still more, to put them on a level with, and as actually controlling and rebutting 
 the legal effect and bearing of the final and legitimate decision of the Court of Session iu 1648 ? The Lord Chancellor 
 takes no notice of the fact, proved by the Claimant, that the Court of Session, independently of its inherent jurisdiction in 
 honours, adjudged in the Glencairn case on a reference from the Crown, (as expressly provided in the Decreet of Ranking 
 5th March \Q0&) precisely such as the Committee of Privileges have sat wnder in the present claim ; and also that the Parlia- 
 ment, when loyal and unexceptionable, in 1641, pointedly refused to adjudicateon the Olencairn and Eglintmi precedency, as 
 not " competent" thereto. Vide supra, pp. xlvii, xlix, and infra. Appendix, pp. 418, 431. 
 
 t All this is sadly ex parte pleading,— and it may be asked, how, upon principles of investigation like these, can any 
 rather old point — much less an ancient one, which this is not — be fixed at all ? The above is inconsistent too with what follows. 
 
 J The Claimant would dissent from this as regards traditionary testimony. But the matter is of no importance here. 
 
 § Independently of the fact that much evidence has been lost during the last two hundred years, particularly during 
 the usurpation, the Court of Session in 1648 had this great advantage over the Committee of Privileges now, that they were 
 more familiar with feudal law, especially as regards tlie question of honours, and that they were Scottish lawyers instead of 
 English. It is true that in theory the House of Lords, in considering a Scottish case, is a Scottish court, judging in questions 
 of appeal, and advising the Crown on matters of reference, by Scottish law.(*) But practically it is a foreign judicature. 
 
 C) On this point the Claimant may quote the following 
 authorities : — 
 
 " I am clear that in the case of a Scotch Peerage the House 
 " of Lords ought and will judge by the rules of the 
 " laws of Scotland, if they can be discovered." — Legal 
 Opinion of Lord Mansfield on the claim to the Barony of 
 Boss of Halkhead, dated 31st March 1755. 
 
 " This case, however, must certainly be determined upon 
 " the general principles of the law of the country where 
 " the case itself took its rise," viz. Scotland. — Speech of 
 
 Hugh Earl of Marchmont on the Cassillis claim, 22nd 
 January 1762. 
 
 " I speak with great diffidence ; but I can see no argument 
 " that can be urged from the law of Scotland, to oppose 
 " the construction of the charter in the way I have laid 
 " down." — Speech of Lord Mansfield on the Cassillis 
 claim, 1762. 
 
 " This case may be said to resolve itself into a question of 
 " prescription, a doctrine of great weight iu the law of 
 " Scotland, by which law our decision should be regu- 
 
( 341 ) 
 
 borne out in saying that by this circumstance — that I observe that there are a great 
 quantity of documents now before your Lordships, illustrating and throwing light upon 
 this subject, which were not before the Court of Session ; because all the documents which 
 they had are referred to your Lordships, and you have now many which they had not 
 the advantage of consulting.* Therefore I am of opinion, that that which can only be 
 
 * The Claimant thinks he is justified in affirming that, while many documents have been brought before the Committee 
 which were not before the Court of Session in 1648, none of them, if produced in 1648, could have had the slightest adverse 
 hearing upon the decision then given im, favour of Glencairn. These documents consist of two classes : — 
 
 1. Proof, adduced by the Crown, of the descent of the estates of Drummond and Duchray, granted by the patent 1488, 
 
 in families other than that of Glencairn ;(') 
 
 2. Proof, also adduced by the Crown, that the son and grandson of Alexander Lord Kilmaurs, the patentee as Earl of 
 
 Glencairn in 1488, continued to bear the style of ' Lord Kilmaurs ' only till 1603 :(^) — To which may be added, 
 
 3. The testimony of the herald Young (in shape, however, quite unauthenticated and legally inadmissible), that 
 
 Cuihbert Earl of Glencairn was " belted" or inaugurated as Earl of Glencairn in 1503. (■■) 
 With respect to the first of these classes, viz. the titles of Drummond and Duchray, adduced by the Crown to prove 
 that those estates, granted by the Glencairn patent 1488, were not enjoyed by the Glencairn family through the effect of the 
 Act Rescissory, the Court of Session had before them in 1648 the Decreet of Reduction 1516-7 , by which it appears that 
 the Glencairn family were deprived of those estates, not through the Act Rescissory (which is never once alluded to as a 
 ground of objection, although certainly a most cogent one if then in force), hut through incompetent conveyance hy James III. 
 and on other technical informalities ; while the eifect of the patent as creating the Earldom is fully recognised and upheld by 
 the Lords of Council and Session who pronounced that Decreet, as elsewhere shewn. ('') With this Decreet before them in 
 1648, the Court of Session had everything requisite to enable them to form their judgment — all that followed, in the successive 
 tenure of the estates, as proved by the Crown on the present occasion, heing wholly superfluous and immaterial : — 
 
 With respect to the second class of evidence, the proofs adduced of non-assumption between 1488 and 1503, evidence 
 v;as hefore the Court in 1648 that those whom they finally adjudged to have heen legally Earls of Olencaim from the 
 date of the patent in 1488 were designed ' Lord Kilmaurs,' simply, hetween 1488 and 1498 — a period of eleven years, which 
 vjos enough for the argument : (") — 
 
 And, thirdly, with respect to the narrative attributed to the herald Young, describing the inauguration of the three Earls 
 in 1503, the Court in 1648 were equally aware of the inference (as drawn by the opponents of the Glencairn family) tint the 
 Earldom miist have heen created hy a new patent shortly hefore 1505 — precisely tlie same inference (for it is nothing more 
 than an inference) that is drawn hy the Crown and assumed and argued upon as a fact by the Lord Chancellor in the present 
 case — but which the Court of Session in 1648 pekemptokilt scouted and contemned. (') 
 
 The Committee has had indeed one advantage now, which the Court of Session necessarily had not, namely, 
 
 1. The testimony of the Parliamentary Decreets in 1649 to the character and eflfect of the Decreet 1648, as " maynlie 
 " proceeding and depending" on the Patent 1488 as not affected by the Act Rescissory, (^) — 
 
 2. The proof from the rescission of those Decreets after the Restoration, in 1661, C") — 
 
 3. The fact of the pointed appeal to the Decreet 1648 in Parliament, on the solitary occasion, in 1667, when the Earl 
 of Eglinton was ranked through inadvertency before Glencairn — hut which misranhing was immediately rectified on Glencaim's 
 appeal to the ruling Decreet in question,^') — and, lastly, 
 
 4. The uniform maintenance of the Olencaim precedency in virtue of the Decreet of 1648, and of the patent 1488, till 
 the death of the late Earl of Olencaim in 1796. (') 
 
 — But all these latter facts have been oveklooked and diseegaedbd hy the Committee. 
 
 " lated." — Speech of Lord Loughborough on the Moray " ment, — consequently there is no one conceivable argument 
 
 claim, 29th April 1793. — And lastly, " which would go to shut out the judicial determinations of the 
 
 " We (the Committee of Privileges) are sitting in a Scotch " Irish Parliament from being authorities to hind you in the 
 
 " Court, as a Court of Appeal, and as attended by " United Parliament which would not apply to shut out similar 
 
 " Scotch Peers." — Speech of Lord Brougham on the " determinations of the English Parliament as applicable to 
 
 Polwarth claim, 25th June 1835. — How indeed Lord " matters within their jurisdiction. However, I find that ... it is 
 
 Brougham can have considered that case — a case which " explicitly admitted that the decision of the Irish House of 
 
 came solely before the House of Lords by a reference " Lords is binding upon your Lordships as much as a judgment 
 
 from the Crown — to have been an Appeal Case, it is " of this House as now constituted, or a decision of the English 
 
 difficult to imagine. " House of Lords touching an English Peerage." Clark and 
 
 But the principle here involved has never been laid down Finnelly's Reports, vol. vi, pt. i, pp. 133 sqq. — All this of course 
 
 more clearly and distinctly than by Lord Brougham in the Water- equally and a fortiori applies to Scotland, and to the decisions of 
 
 ford claim, decided by him as Lord Chancellor in 1832 — in which the tribunal which by Scottish law and usage (different from that 
 
 claim, the Crown officers having (at first) contended that a deci- of England and Ireland) held the inherent and undisputed juris- 
 
 sion of the IrishHouseof Lords before the Union was not binding diction in honours in 1648 and previously (at least) to the Union, 
 
 on the Parliament of the United Kingdom, the Lord Chancellor viz. the Court of Session. And that the decisions of that Court 
 
 stated that " the Irish House of Peers is . . a tribunal . . actually in claims to dignities were respected by the House of Lords, as 
 
 " existing in this House, not even merged, but in union with this binding on themselves, till near the close of last century, may be 
 
 " House ; and this House is in respect of this claim the Irish seen by reference to the Speeches in the CassiUis claim, printed 
 
 " House of Peers, and as much bound in the exercise of its in the Appendix, infra, pp. 555 sqq. See also the ' Narrative and 
 
 " jurisdiction by a decision of the Irish House of Peers as it is ' Inquiry,' supra, pp. lii. sqq, ; and especially Lord Eldon's dicta 
 
 " by any decision of this House since the Union touching the at p. Ixv, supra. 
 
 " Irish Peerage or the British Peerage. It is not only the same (") Supra, p. xlii. ; Infra, p. 407. (•■) Supra, p. xxxvi ; Infra, 
 
 " by argument and identity, but it is identical. . . I cannot per- (■=) 5«pTO,p.xxxvi; /n/ra,p.412. p. 410. 
 
 " ceive the least distinction between the jurisdictions." And (d) Supra, p. Ixvi. C) Supra, p. Ixi. 
 
 again, " There is now no more an English Parliament, though (f ) Supra, p. Ix. (^) Infra, p. 483. 
 
 " locally the seat of your decisions is in England. . . The English (•■) Infra, p. 484. (') Infra, p. 486. 
 
 " Parliament is as much succeeded by that now constituted, and (t) Infra, pp. 486 sqq. 
 " as much merged in the United Parliament, as the Irish Parlia- 
 
 2X2 
 
( 342 ) 
 
 looked at as a precedent is not a precedent which can or ought to be looked at as a pre- 
 cedent guiding your Lordships in this case. But if it is to be relied upon at all as a 
 precedent, it appears to me that, taking the whole of the Glencairn case, it is a precedent 
 against, and not for the Claimant. The grant in the Glencairn case was an original grant 
 to Lord Kilmaurs " et heredibus suis " — that is, in the immediate line of the Earls of 
 Glencairn.* Those who resist the Claimant's case say that the Earldom must be dated, 
 not from that Patent, but from some lost Patent about the year 1503. f But the imme- 
 diate male line became extinct in the year 1796. J Now, my Lords, the presumption of 
 law is, if you have not the grant of a dignity, that the grant is to the party and to the 
 heirs male of his body. That line thus becoming extinct, the party who would not be 
 the heir male of the first Earl of Glencairn, but who would be the heir general of the 
 party to whom the grant was made in 1488, when the grant was certainly to heirs 
 general,§ petitioned the Crown ; and the question came to be considered in your Lordships' 
 House, whether that party had made out his title to the Earldom of Glencairn. He 
 certainly made out that he was the heir general of the original Earl of Glencairn. Why 
 was it therefore that the House held that he had not made out his title ? For this 
 reason — that the House held that the Earldom of Glencairn had been granted not under 
 that Patent of 1488, but under some lost Patent, the presumption as to which was, that 
 it was not a grant to heirs general but to heirs male.|| Now, my Lords, that decision 
 could proceed only on the presumption that the Act Rescissory was in force ; there was 
 nothing to annihilate the first Patent but the Act Rescissory. That was the judgment of 
 my Lord Loughborough, who entered into the case in a very elaborate manner.^ I do 
 
 * This observation is made in oblivion of the principle of Peerage lavr, that under " heredibus " heirs collateral, as well 
 as lineal, would take — as recognised by the Devon and Annandale decisions in 1831 and 1844, and familiar to Scottish law and 
 practice long before. Lord St. Leonards states this correctly, infra, p. 344. 
 
 t Which therefore is to be held to have existed, contrary to the judgnjent in 1648, and contrary to the rule De rum 
 apparentihus, &c. Even Lord Loughborough did not affirm this in 1797. He went exclusively upon the mere form of ' belting.' 
 
 J This is a mistake. The Cunninghams of Corsehill, still flourishing, are the lineal male heirs of Earl Cuthbert, who 
 is stated by the herald Young to have been inaugurated in 1603. Some intermediate extinctions have hitherto s^ood in the 
 way. But that is the sole bar. See the pedigree, supra, p. xxxv. 
 
 § These expressions might appear to prejudge the Claimant's argument (which he has been debarred from entering upon 
 before the Committee), viz., that hy Scottish law, illustrated by examples innumerable in his own family and others, the word 
 "heirs" is a flexible term, denoting the existing heirs of a family under regulating investitures or grants, including honours or 
 estates, according as they stood to heirs^ male or heirs at law — having besides a marked bias to the male signification, — on which 
 ground he maintains that the limitation " heredibus" in the original Montrose patent implies heirs male — the whole Crawford 
 property being then (and immemorially) destined to that description of heirs. On precisely the same ground that same 
 word in the Glencairn patent would imply heirs male if (as was actually the case) the antecedent and collateral investitures 
 were to heirs male. And this was practically illustrated in that family by the Earldom of Glencairn having, on the death 
 of Alexander 10th Earl of Glencairn in 1670, passed over the head of his daughter Margaret, Countess of Lauderdale, to go 
 to the next collateral male lieir. Earl Alexander's younger brother, John 11th Earl of Glencairn — in terms of the Glencairn 
 patent 28th May 1488 to Alexander Lord Kilmaurs "et heredibus suis." See the Analysis, pp. Ixviii, cxxxviii cxxxix. 
 
 II There is no such finding in the Resolution, which is quite general, viz. " That Sir Adam Fergusson," the Claimant, 
 " has shewn himself to be the Heir General of Alexander Earl of Glencairn who died in 1670, but hath not made out the 
 " right of such Heir General to the dignity of Earl of Glencairn." And if Lord Loughborough's speech, as reported, be 
 considered (as apparently it is) as part of the Resolution, that Noble and Learned Lord held that the peerage was created in 
 1503— not by "some lost patent," as here stated, but simply by " belting," without a patent ; a doctrine at variance alike with 
 fact and principle — unheard of till started in the arguments on the Cassillis claim in 1762, and then repudiated with severe 
 reprehension by the House, although subsequently recognised and affirmed by Lord Mansfield in the Spynie claim in 1785 and 
 by Lord Loughborough in 1797— but which doctrine, it is to be remarked, both the Lm-d Chancellm- and Lord St. Leonards 
 now again and rightly repudiate, — the Lord Chancellor asserting unqualifiedly that Lord Loughborough founded on a supposed 
 " lost patent," and Lord St. Leonards apologising for Lord Loughborough's phraseology on the ground that he merely used it " m 
 " common parlance," and intended, luhen he said that the honour was created by "belting," to say that it was created by "a patent 
 " which cannot be found." Vide infra, pp. 363, 371.— The Claimant submits, however, that after the discussion in 1762 and 
 after the (then) recent Spynie decision in 1785, delivered on the principle that an honour might be created by " belting " alone 
 (a decision peculiarly unfortunate, as there actually was a patent in that particular instance, (") on which the belting proceeded 
 on which the patentee satin Parliament, and which Lord Mansfield overlooked), Lord Loughborough could mo< have used such 
 words by inadvertence, or " in common parlance," as supposed by Lord St. Leonards. For the Cassillis arguments &c. vide 
 pp. 545 sqq. ; for the Spynie decision, p. 568, infra. 
 
 f For Lord Loughborough's Speech see the Appendix, infra, pp. 490 sqq., and Analysis, supra, pp. Ixii sqq. 
 
 C) Vide supra, p. xxxviii; infra, pp. 661 sqq. 
 
( 343 ) 
 
 not feel it necessary to advert further to the arguments upon which that Noble and 
 Learned Lord came to the conclusion that the original grant had been annihilated, — but 
 he was distinctly of that opinion. And for myself I think that that is a precedent upon 
 which your Lordships may rely with infinitely more satisfaction than upon what took 
 place in the Court of Session and in Parliament in the troublous times which occurred 
 at the end of the reign of Charles I.* 
 
 My Lords, for the reasons I have stated, I think that these precedents do not at 
 all touch the case or impugn the conclusion at which I have arrived. It seems to me 
 to be abundantly made out that the Act Eescissory, even if there had been no authority 
 upon the subject, must have annihilated these dignities. All contemporaneous usage 
 shews that it was so understood. f Everything that has been done since has been done 
 upon the assumption and upon the footing of these having been annihilated.^ Three 
 centuries and a half have elapsed without any claim to this Dukedom being made, which 
 is at least a strong argument to shew that there was some reason why the Claim has 
 not sooner been made ;§ and for the reasons I have stated I am of opinion that this Claim 
 has not been made out. 
 
 I shall therefore take the liberty of moving your Lordships to come to this 
 Resolution: — " That the Charter bearing date the 18th of May 1488, by which James the 
 " Third of Scotland granted the Dukedom of Montrose to David Earl of Crawford ' et 
 " ' heredibus suis,' was annulled and made void by the Act of the first year of the reign 
 " of King James the Fourth of Scotland, called the ' Act Rescissory. '|| And further. That 
 " the Petitioner, James Earl of Crawford and Balcarres, has not established any title to 
 " the Dukedom of Montrose (created in 1488)." 
 
 * If the arguments of Lord Loughborough were based, as the Claimant has proved, upon error and misconception 
 from beginning to end — and neither the Crown, the Lord Chancellor, nor Lord St. Leonards have ventured to dispute this 
 proof except by general statements, such as that his arguments were " elaborate,'' that he is always spoken of " with great 
 " reverence " in the House of Lords, &c. (") — then the conclusion come to by Lord Loughborough upon those premisses must 
 be as worthless as the premisses themselves ; and the Claimant is at a loss to imagine how either premisses or conclusion can 
 be relied upon with " satisfaction " in preference to the decision of the only lawful Court, the Court of Session, arrived at after 
 years of inquiry, in 1648 — A decision standino and bdling at the pbbsbnt day, beyond the powee of tHE House op 
 Lords to eeversb it in 1797 ob now. The Lord Chancellor couples the proceedings of the rebellious and rescinded Parlia- 
 ment in 1649 (which occurred, not at but after the end of the reign of Charles I.) with those of the Court of Session in 1648, 
 as grounds of reliance equally to be combated and superseded by the judgment in 1797. But those Parliamentary proceedings 
 have never been seriously founded on as valid by any party in this case. For Lord Campbell's character of Lord Lough- 
 borough as a judge, the Claimant may refer to his annotations on Lord St. Leonards' speech, infra, p. 364, n. J 
 
 f The contemporary proofs adduced by the Claimant — the enjoyment of the estates, and the deliberate and irrevocable 
 Royal recognition as Duke at Hailes Castle on the 6th November 1488, during the interval between the two patents — the 
 continued possession of their property by the grantees of James III., and their retention of their charters, in the face" both of 
 the Act Rescissory and the Supplemental Act 15th Feb. 1489-90 — the non-existence of any proof of the Act itself having 
 taken effect (the only instances adduced by the Crown being either lefore the Act Rescissory or after the Act 1493) — the 
 omission of the clause affecting "dignities" in the Supplemental Act 1489-90 and the Act 1493 — the mere fact of these 
 two statutes, and especially the latter, having passed at all— and lastly, the Retour 1515-6 and Decreet of Reduction 1516-7, 
 the latter in especial recognising the validity of the Glencairn patent 1488 as conferring the Earldom, although incom- 
 petently conveying the estates — all facts directly contemporary, and for the most part entirely overlooked hy the Lord Chancellor 
 
 induce a conclusion directly the reverse of that in the text. While it must never be forgotten, as repeatedly urged by the 
 
 Claimant, that, if the Act Rescissory did itot per se, by the mere fact of its passing, out down all the grants 
 OF James III. within the proscribed period, without inquiry and without judicial process, then the patent 
 
 SURVIVES and is VALID AT THE PRESENT DAY — ^ALL THAT FOLLOWED BEING LEGALLY A MATTER OF INDIFFERENCE. For if the 
 
 Act Bescissm-y did not destroy the patent, and the Dukedom was not resigned (which latter fact is admitted), neither misnomer, 
 NOR NON- assumption, NOR RESUMPTION OP THE ESTATES, CAN BE ANY LEGAL BAR — nor is it pretended that tJwy are so. 
 
 i Not, at least, in the case of the Earldom of Glencairn. 
 
 § The Claimant has supplied reasons, good (as he conceives) and sufficient, for the non-claim, as may be seen supra, 
 pp. cxvii sqq. 
 
 II An additional clause was afterwards introduced into the Resolution at this point, at the suggestion of Lord St. Leonards 
 — for which (and for the Resolution as finally carried) vide infra, p. 373. 
 
 C) For the apologies and admissions of the Crown vide supra, p. Ixvi. 
 
( 344 ) 
 
 SPEECH OF LORD St. LEONARDS. 
 
 My Lords, my Noble and Learned Friend has gone so very much at length into 
 the facts of this case, which facts have also been so recently before your Lordships, 
 that I shall trouble you very little by a recapitulation of those facts. 
 
 My Lords, if you look at a few of the leading points of this case it will be seen 
 at once with what great difficulties the Claimant has had to contend all through. Inde- 
 pendently of any nice questions arising, the case lies in the smallest possible compass.* 
 The Dukedom was created in May 1488, and created in most express terms, so as to 
 give the estate of inheritance to all the heirs. f I am not now entering into the question 
 whether it ought or ought not to be confined to heirs male, but the words conveyed it 
 generally to heirs. J The King who granted it died within a few weeks of the grant. 
 It was granted in consequence of the aid which the newly created Duke had personally 
 given to the Monarch who granted it on the field of battle. The Monarch himself died 
 on another field of battle within a few weeks afterwards, and his successor, upon 
 ascending the throne, issued a Proclamation, annulling all grants which had been made 
 by his predecessor from the 2nd of February,§ which date overreached the date of the 
 grant of this Dukedom ; and all the accounts we have of those times would lead to 
 this conclusion, that the reign of James III. was considered by his successors and by 
 Parliament to have ended really upon the 2nd of February, although he did not die till 
 the latter end of that year.|| 
 
 Now, my Lords, under those circumstances, after a Proclamation had been made, 
 
 * Unquestionably so, if treated in accordance with the strict interpretation imperative in penal statutes, and with, the 
 received principles of Peerage Law. See the Analysis, supra, pp. xiv sqq. 
 
 f Thus (at all events, and con-ectly) including collaterals, in contradiction to the Lord Chancellor's view, supra, 
 p. 342. See the Patent infra, p. 375. 
 
 % Elsewhere, however, notwithstanding the Noble and Learned Lord's reservation, he appears to consider " heredibus '' 
 as including heirs female, — with respect to which vide supra, pp. cxxxviii sqq. — It is of course unnecessary for the Claimant to 
 protest against any undue prejudice being thus excited against his claim, the Noble and Learned Lord not having heard 
 the Claimant upon the question of heirs — which is by no means to be appreciated per saltum by any English (or even 
 Scottish) lawyer. 
 
 f Even as admitted by the Attorney General, nothing is known of this Proclamation except from the first line of the 
 Act Rescissory, and from an allusion in a subsequent enactment (also on the 17th October 1488), ordering certain " gudis 
 " takyne efter the Kingis Proclamacioun maid the xii day of Junii last by-past " to be " restorit agane to the personis thay 
 " were takin fra," (^c^s, vol. ii. p. 207), and which is printed at length, supra, p.ix,n.*. At any rate, the Proclamation could 
 not legally annul or rescind hy its own force, as is indeed subsequently admitted bj- Lord St. Leonards — although grants of 
 James III. were disregarded, and the properties illegally seized and regranted in two instances in virtue of it, before the Act 
 Rescissory, — nor does the enactment just cited as referring to it take notice of such grosser acts of wrong. 
 
 II James III. fell, not towards the end of 1488, but on the 11th of June 1488. — Theabove broad and unqualified asser- 
 tion, originally advanced by Lord Loughborough but refuted by the Claimant in both his Original and Supplemental Case, 
 p. 63 and p. 63, and before the Committee, supra, pp. 162, 163, — and which Lord St. Leonards repeats at different 
 points of his Speech, building upon it the important conclusion that the grants of James III., including the Dukedom, were 
 considered void as not having been granted by u King in possession of his lawful authority, infra, p. 348, — is ftuiTE 
 EKROSEOCS ; as will appear from the simple fact that, on the 14th October 1488, James IV. describes himself, with reference 
 to the period between the 2nd Feb. 1487-8 and the 11th June, the day of the Battle of Stirling, as " hos tunc existentem 
 " Pbincipem," that is. Prince of Scotland, according to the constant style of the heirs to the Crown of Scotland, — and in another 
 statute, entitled " the Debaite and caus of the feild of Sterviling (Stirling)," passed on the same day as the Act Rescissory, 
 the 17th Oct. 1488, it is stated with reference to James III. " in the quhilk [battle] umquhile James King of Scotlande, 
 " quham God assolze, faider to our Soveran Lord, happinit to be slane,'' Acts, vol. ii. pp. 204, 210, and Appendix, infra, 
 p. 383. So too, in the Act suspending the holders of hereditary offices for three years, of the same date, that suspension 
 is stated to be in consequence of the " gret and hie displessour that our Soverane Lord has takyne again thame that wer of 
 " that ilk opinzoun and in feild at Sterviling agane him, contrar the comone guid of the realme and distruccioun of the 
 " samyne, and wes the caus of the slauchter and deces of umqhile the King his faider," &c. Acts, p. 207. — And the 
 dates of James IV. 's subsequent charters, as in the second, third, fourth, or later years of his reign, are calculated from the 
 death of his father as the commencement of his own sovereignty, as shewn by the Claimant in his Original Case, p. 64, 
 and s«pra, p. iv. — James III. therefore was recognised all along as lawful King till the day of his death, viz. the llth 
 June 1488, and the Noble and Learned Lords inferences from the contrary supposition, with all the consequences of this 
 grievous error, fall to the ground. 
 
( 345 ) 
 
 Parliament met, and this Act, which has been commonly called the Act Rescissory, was 
 passed. Without entering at this moment into its construction, nobody will deny that at 
 least it was open to the construction which has now been put upon it, namely, that it 
 struck at this newly-created dignity, and annulled that dignity. We find that that con- 
 struction was acted upon — if not acted upon by the Duke himself, it was certainly acted 
 upon by the Crown. The Duke, ceasing then to be Duke, and being Earl of Crawford, 
 not being in favour, of course, with his successor, was put under terms very onerous to 
 himself; but ultimately, in the very next year, was received into favour. What was the 
 favour ? A regrant of the Dukedom to him for life. I am not now talking of the pro- 
 perty which, with the Dukedom, had been granted a few months before— less than 
 twelve months — to him and his heirs general. A regrant of the same Dukedom was 
 made to him for life ; he married, and the Duchess, as his widow, enjoyed her rank and 
 title as Duchess during the whole of her life, which extended to a very late period. But 
 the Duke's successor took no title of Duke, and no claim has been ever made to that 
 Dukedom for three centuries and a half. You see, therefore, my Lords, what difficulties 
 the Claimant must have had to contend with to establish his claim to the Dukedom : 
 primd facie, upon half a dozen facts, it seemed almost impossible that such a claim could 
 be substantiated.* 
 
 I wish to say one word about time. Time, as time, in regard to dignities, goes, I 
 may say, for nothing. The great title, which is possessed by a Noble and Learned friend 
 of mine now present,f had certainly not been claimed for a very long time ; but then, 
 observe, there was nothing striking at that dignity. The title, if it were good, remained 
 just as good as it was the moment after the grant was made. But it was a question of 
 construction of the limitation, no question arising as to the annulling or destruction of the 
 title which had been granted. J But, my Lords, it may well deserve consideration, whether 
 it would not be wise to put some limit of time upon a claim to Peerage, in order to 
 prevent such enormous expense and such consumption of time as myst very often take 
 place in regard to claims of ancient Peerages. § In the case which is before your Lord- 
 ships at this moment, look at what you have had to travel through, look at the mass of 
 evidence before you, more or less bearing upon the case.|| And if the investigation of the 
 case had been left to the Crown alone, and the Crown had not thought proper to incur 
 the expense of procuring evidence counter to the claim — although my apprehension is 
 that your Lordships would have come to the same conclusion, yet you would not have 
 come to that conclusion so satisfactorily as you will probably now do.^ But then that claim 
 has aroused another of your Lordships. Naturally enough the Noble Duke who possesses 
 his title under a later grant must have felt unwilling, unless with right on its side, that 
 the more early Dukedom of the same name should be established. No doubt the Noble 
 Claimant, in the most handsome way, declared, that if he should succeed, he would be 
 
 * The points alluded to in this summary of prima facie difficulties and impressions will be more fitly noticed hereafter. 
 
 t The Earldom of Devon. 
 
 t The Devon and Montrose cases are parallel, inasmuch as the point turned in the former, and turns in the latter, 
 upon the import and construction of certain words occurring, in the Devon case in a patent, in the Montrose in an Act or 
 ordinance of Parliament. Besides, the Claimant has adduced the non-user of the Norfolk title between 1399 and 1425— 
 which is not alluded to or answered by Lord St. Leonards. 
 
 § The proposition of Lord St. Leonards, to introduce. prescription in peerages, is against all law and principle, as 
 hitherto accepted in this country. On this point and on the impressions as to the Peerage generally from which this 
 proposition seems to have emanated, the Claimant would refer to his Address to Her Majesty, mpra, pp. xiii, xiv. 
 
 II On this point, of the time expended on this case, see the Address, supra, pp. xni sqq. 
 
 \ The inquiries alluded to by Lord St. Leonards are not optional but obligatory on the Crown officers, and those 
 inquiries must be made, not for the purpose of defeating a claim (as assumed by the Noble and Learned Lord), hut of 
 a scertaining tetjth — a principle which has been entirely lost sight of (although urged by the Claimant) on the present occasion. 
 On all these points see the Address, mpra, pp. xv sqq. 
 
( 346 ) 
 
 willing, with the aid of Parliament, to take another title, and not to interfere with that 
 of the Noble Duke. But still it was natural that there should be that feeling ; and it has 
 led to a great mass of evidence being produced, no doubt at great expense, not by the 
 Crown, but by the Noble Duke who is now in the House, which, having been produced 
 by him, has been made use of by the Crown, and which has elucidated this case in a 
 manner in which it never could have been without that evidence.* 
 
 My Lords, there are a few questions of law, and some other matters arising, upon 
 which I shall detain your Lordships for as short a time as I possibly can, after the ample 
 discussion Avhich this case has undergone by my Noble and Learned friend.f The first 
 document, the Charter, admits of no doubt; J and when you come to contrast it with the 
 regrant, it is of great importance to bear in mind that the original grant was to the Earl 
 of Crawford as Duke,§ and to his heirs general. || And there was a grant in the same 
 patent of certain estates, which I have no doubt were then of considerable importance, 
 which were erected into a regality, and which would constitute the Dukedom, and would 
 descend to the heirs general. 
 
 Then, my Lords, when James IV. ascended the throne, as I have already stated, 
 he, by a Proclamation, annulled all the previous grants of his father, his predecessor, from 
 the preceding 2nd of February.^ That Proclamation, as has been truly staled at the bar, 
 could not by law operate to destroy those grants. That I freely admit. But it shews 
 the intention of the Crown to strike at those grants. It is probable that some of the 
 property which had been granted to the Duke, or to others, had been resumed by the 
 CrowUj and had been granted away before the Act Rescissory. That was considered as 
 impugning the authority of that Act ; and it was said, ' This was a mere act of violence 
 ' and power ; for you find that this property was regranted by the Crown before the 
 ' original grantee had lost his title to it.' That may be true enough, — but it was granted 
 after the Proclamation, with the intention of the Crown, and with the knowledge of the 
 Crown, that those grants would be defeated by Parliament. And almost the first Act of 
 the Parliament which met early in October 1488 was to pass the Act Rescissory.** 
 
 * Here, as before, the Claimant would refer to his observations in the Address, supra, pp. vi sqq. 
 
 f The Claimant must remark here — and as a general observation applying to the whole of the succeeding argument 
 
 that the Noble and Learned Lord omits and overlooks the most important of all the points of law involved in this case viu. 
 the STRICT interpretation which must be applied to the penal Act Rescissory. 
 
 X Herein agreeing with the Lord Advocate, and disagreeing with the Attorney General and with the Lord Chancellor — 
 so far as is to be gathered from the Speech of the latter, supra, p. 311. See also the observations, supra, p. xli, n. (y). The 
 Resolution accepts the patent as validly granted, which settles the question. 
 
 § Certainly not " as Duke." It is granted to him as ' Earl of Crawford.' But the above passage is rather obscurely 
 expressed. 
 
 II No— to his heirs, ' heredibus,' simply. Who those ' heirs ' were, whether heirs male (as contended by the Claimant) 
 or heirs general, may be matter for future discussion. 
 
 T[ As already stated, nothing is known of this Proclamation, from which Lord St. Leonards, as above, is not afraid to 
 argue ex terminis. — The Claimant, the Crown, and the Committee are quite ignorant of its contents in omnibus. Vide supra, 
 pp. viii, ix. 
 
 ** No, — it was the last enactment but two of the whole Session. — The Claimant will not comment on the preceding 
 apology for the acts of violence in question. He will merely remark, with reference to the facts themselves, that, if such 
 were committed in the instances in question, if injustice and cruelty — or, to use the Lord Chancellor's words, if " force or 
 "fraud" — were illegally practised against the Dulte of Montrose in the matter of the Sheriffdom, (all of which is admitted in 
 the Speeches now commented upon,) then it isimpossible to attribute legal weight to any the most extreme (asserted) facts which 
 
 are dwelt onto the Claimant' s prejudice — impossible, even if the Duke was forced to accept a regrant for life only impossible 
 
 even if the estates were resumed by the Crown by violence (and not through the Act 1493), to the prejudice of his heirs 
 after his death ; every one of such acts of oppression being in themselves futile and innocuous in law if only the Act 
 Rescissory did not per se cut down and annihilate evert grant of James III. without exception made during the proscribed 
 
 period, and ?/only (as is admitted on all sides) the Duke never resigned his rights under the original patent : While, from the 
 
 injustice and oppression thus rife at the period, greater and overpowering weight ought necessarily to be attributed to those 
 instances in which the Duke's rights were recognised, in spite of that injustice. It cannot escape notice how pre- 
 eminently requisite is stbict interpretation in a case attended with such admitted specialties as these. — The Claimant 
 may also observe that Lord St. Leonards entirely passes over the cases adduced by the Crown as illustrating the 
 operation of the Act Rescissory —ail subsequent to the Act of 1493 adduced in explanation of those cases by the 
 
( 347 ) 
 
 Now, my Lords, a question has been raised upon the meaning and effect of this 
 Act of Parliament. Your Lordships have heard a great deal about a rebel Act of Par- 
 liament, and about a loyal, dutiful, and excellent subject, and so on. Those are subjects 
 which have occupied a great deal of time at the bar, but which cannot receive the 
 slightest attention from your Lordships in disposing of this matter. It signifies not 
 whether they were loyal or disloyal. The question is, ' What is the true construction in 
 ' law of the grants, and what was the operation of the Act of Parliament ? ' Because it 
 should be borne in mind that loyalty to one Sovereign was disloyalty to another. He 
 who was loyal in his last moments to James III. was disloyal to James IV.* It would 
 have been just the reverse if the other party had succeeded ; and every step in these 
 proceedings shews that that was the principle that was acted upon.f 
 
 My LordSj I now come, first, to the construction of this Act. The learned 
 counsel at the bar, dwelling upon the supposed merits of the Duke of Montrose as a 
 loyal subject, said, ' How can it be possible to construe these words as striking at the 
 ' dignity conferred upon so loyal and excellent a subject ? '| — that is, a loyal and excellent 
 
 Claimant, and of all which the Noble and Learned Lord thus admits the futility —the result being, that not oke case remains 
 in which the Act Rescissory is maintained to have taken effect except that of tlie Glencaim patent — the validity and sub- 
 sistence of which is, however, res judicata by the final and standing Decreet of the Court of Session in 1648. 
 
 * James IV., as already proved, was not King till his father's death. Here again the Claimant declines to comment 
 on the Noble and Learned Lord's argument — further than by citing in illustration of it his Lordship's own words in the 
 discussion, when, in answer to an observation of the Claimant, he declared that the passing of the Act Rescissory, visiting the 
 loyalty of the faithful followers of James III. with deprivation and penalties, and branding them as the murderers of their King, 
 '• would have sat very lightly on "his " own conscience !" (") — The Claimant cannot however admit that it is immaterial whether 
 David Duke of Montrose was loyal or disloyal to James IV., for on that loyalty or disloyalty, as affecting the question 
 whether the grant of the Dukedom was ^'prejudicial" or not to James IV., depends in a great measure — not the application, but 
 the applicability of the Act Rescissory to the Dukedom. Even if the decision of this question rested on the evidence afforded 
 by the Duke's Protest 29th Oct. 1488 (urged against the Claimant by the Crown and in the present Speeches), and by 
 the instruments effecting and recording the Duke's resignation of the hereditary Sheriffdom of Forfarshire, those documents 
 prove (as already stated) that, by a contract entered into between the King and the Duke, the King (James IV.) remitted 
 to the Duke his whole displeasure (" omnimodam hujusmodi displicientiam ") on account of the part he had taken in the 
 recent troubles, on one sole condition (the resignation of the Sheriffdom), which condition the Duke implemented, and in the 
 implementing of which condition the King himself recognised him as Duke, and in a manner which, by Scottish law, would 
 have restored him entirely, even if he had been attainted by Parliament (as in the contemporary case of Ross of Montgrcnan, 
 Case, pp. 13 sqq., S. Case, pp. 109 sqq., and others), and a fortiori against the mere Act Rescissory. But, independently 
 of this, James IV., in the preamble of the Regrant 18th Sept. 1489, bears express testimony to the loyalty of the Duke to 
 himself as well as to his father, — i.e. that from the moment of his father's death and his own accession the Duke had been a 
 loyal subject; while he asserts that it is an honour and glory to Kings and a benefit to the commonwealth that such loyal 
 subjects as the grantee should be raised to higher dignities. It is impossible therefore to hold, either legally or otherwise, that the 
 creation of the Dukedom of Montrose, by Patent HtliMay 1488, in reward of the loyalty of David Earl of Crawford and his 
 family, coidd be ' ' prejudicial " to James I V. — to whom that loyalty descended on his father's death, as not the least valuable part 
 of his inheritance. — After all, it must be remembered that all this collateral and contemporaneous evidence is in strict fact 
 superfluous, and that the Act must stand or fall by its ovm words alone as interpreted according to the rules of legal 
 construction applicable by Scottish law, and with the strictest interpretation in a. penal statute striking ai honours. While 
 Sir Edward Coke lays it down in the broadest terms — even beyond what the Claimant has urged in this case^that " Acts of 
 " Parliament are to be so construed as no man that is innocent or free from injurie or wrong be by a literal construction 
 " punished or endamaged" {First Institute, c. 685), — with reference to which the loyalty and innocence of the Duke of 
 Montrose is strictly relevant and important. 
 
 t The question is, not whether actions of a certain description were or were not perpetrated, but ivhether those actions 
 were borne out by law. If not, they cannot be urged as controlling law and as constituting law. The disobedience of man cannot 
 repeal the Decalogue or re-enact the ten commandments to the effect of " Thou shall commit parricide, thou sJialt steai, thou 
 " sMi bear false witness. " — But, in point of fact, how comes it, (if the principle acted upon was such as the Noble and 
 Learned Lord assumes,) that the grants of James III. to Collace of Balnamoon, to Somyr of Balyordie, to Gordon of 
 Lochinvar, to the Cunninghams of Polmaise, to the Burgh of Brechin, &c. actually stood, as proved by the Claimant, and 
 as is not denied by the Noble and Learned Lord and by the Lord Chancellor, who pass them over entirely sub silentio ? 
 If the Act took effect in the manner asserted, all fell. But these subvived. The inference is obvious — and the 
 assertion of the Noble and Learned Lord that " the principle" he assumes was that " acted upon," and " in these 
 " proceedings," is at utter variance with fact. 
 
 J Not exactly, — the Claimant's argument was this : — ' The Act Rescissory is a penal statute, striking only at grants 
 
 * " which might be prejudicial " to James IV., and it must be most strictly interpreted. A grant to a loyal subject for 
 
 * supporting the throne to which James IV. was heir (even against himself) cannot be legally deemed " prejudicial" to him 
 
 (") Supra, p. 87. 
 
 2 Y 
 
( 348 ) 
 
 subject to James III., but not so esteemed by James IV- till he restored him partly 
 again to his favour.* The original grant of the Dukedom set forth expressly that one 
 consideration for that grant Avas the Duke's services upon the field of Blackness. Why, 
 of course, there was nothing that could have operated so strongly against the Duke 
 with James IV. as that very act, which had caused this special favour to be shewn to 
 him by James Ill.f 
 
 Then comes this Act of Parliament— upon which I have never been able, from 
 the first moment down to the present, during all the arguments day by day, to entertain 
 the slightest doubt. It is in these words :— " Item, regarding the Proclamation made at 
 " Scone, it is statute and ordained that all alienations of lands, heritage, long leases, 
 " feu firms, ofiices, tailzies, blench firms, creation of new dignities, granted or given 
 " to any person or persons, what estate, condition, or degree that ever they be of," (which 
 certainly would include Nobles, Earls as well as Dukes,) " since the 2nd day of February 
 " last by-past "—(Your Lordships will recollect that that is the date which, beyond all 
 possibility of doubt, they had assigned as the real termination of the reign of James III.) — 
 by whom? — not 'by our late Sovereign James III.,' but "by late our Sovereign Lord's 
 " father : "■ — Throughout these Acts of Parliament, in all the places in which he is 
 referred to, he is spoken of as the present King's " father," and not as 'the late King;' it 
 is not till a later period that they refer to him as ' the late King ;' they treat him 
 therefore as a person who made these grants without having the authority to do so.| — 
 Then it proceeds, " by late our Sovereign Lord's father, whom God assoil, which 
 " might be prejudicial to our Sovereign Lord and to the Crown that now is, be cassed 
 " and annulled, and of none effect nor force in any time to come ; because such alienations, 
 " gifts, and privileges were granted since the said time for the assistance to the per- 
 
 ' after his accession as King of Scotland ; and James IV. himself testifies to the Duke's individual loyalty, and to the profit 
 ' accruing to the Crown from the elevation of deserving subjects such as the Duke to exalted dignities. Therefore the Act 
 ' did not apply to the Dukedom.' — Tlie dignity and estates, it must always he remembered, were quite independent of each 
 other, and the dignity might descend apart from tJie estates, as in the Glencairn case, and in the unexceptionable and 
 unchallenged contemporary case of the Earldom of Bothwell in 1488 and 1492, on the principle reddendi singtda singulis, 
 as fully proved supra, p. cxiv. So that even if the grant of Crown property in the Montrose patent had been considered 
 "prejudicial," the dignity, all that the Claimant is interested in, would not necessarily have been so considered. While, 
 in point of fact, it is proved that the Duke actually held the property, notwitlistanding the Act Bescissory, during the 
 interval hetiueen the Patent and the Segrant. 
 
 * Not partly, but absolutely, entirely, and without qualification, as testified by the statement in the Duke's Protest 
 (urged against the Claimant throughout this discussion), and already cited at the corresponding passage in the Speech of the 
 Lord Chancellor, supra, p. 316, n. §. — The argument built on this misapprehension of the extent of the Duke's restoration to 
 favour will appear presently. 
 
 t It is matter of history, that, shortly after the Battle of Stirling, the society and ghostly counsel of the priests 
 of the Chapel Royal, founded by his father at Stirling, induced remorse and repentance in the mind of James IV. for 
 his rebellion and parricide — in consequence of which he girt himself with an iron girdle, which he increased in weight 
 and severity every year, in the hope of expiating his sin. From this fact alone it is improbable that he viewed Duke David's 
 loyalty at the Battle of Blackness, or at that of Stirling, with bitterness — -beyond, possibly, the first moment ; although the 
 expression of his feelings may have been controlled by those around him, who used him (as is admitted) as their tool and 
 instrument. It is at least singular that, whenever the King's own uncontrolled voice is heard, whenever he speaks fw himself, it 
 is in recognition of the DuJee's loyalty and merits — supporting his rights to tlie rents of Kinclevin, in virtue of the original 
 Patent, when tlie question was referred to him — recognising him as Duke, in virtue of that Patent, m the transfer of the 
 8heriffdom-^<ind passing tlie highest and most unqualified eulogium on his loyalty in the llegrant ISth September 
 1489— which eulogium cannot but have its weight in support of the view here suggested, whether that Rcgrant was, as 
 maintained by the Claimant, an hereditary grant, or restricted, through the influence of the councillors who surrounded the 
 King, merely to the Duke's lifetime, as contended by the Crown and held (as the Claimant conceives, prematurely held) by 
 the Committee — a question with which the argument arising from the testimony of the Regrant to tlie Duke's i^oyalty has 
 nothing tvhatever to do. — The Claimant does not by any means affirm that James was a spotless character, — if there were 
 bright lights, there were also dark shadows, broad and marked discrepancies and inconsistencies, in his character— as 
 shewn (for the first time) in the romantic history of Janet Kennedy, Countess of Angus, and otherwise, in the Hvpiilemental 
 Case, pp. 140 sqq. ; but the Claimant is entitled to the full benefit op every act of recognition, every word 
 
 OF FAVOUR and APPROBATION— AND WHERE THE OONTEAEY IS INFEEEED AGAINST inM, NOTHING IS TO BE PRESUMED WITHOUT 
 THE STRICTEST PSOOP AND EVIDENCE. 
 
 t This astounding assertion, originally advanced by Lord Loughborough, but adopted and amplified by the Noble and 
 Learned Lord, and made the basis apparently of his whole Opinion, has been refuted already, s^ipra, p. 344, n. ||. 
 
( 349 ) 
 
 " verse council that were contrary [to] the common good of the realm, and cause of the 
 " slaughter of our Sovereign Lord's father."* 
 
 Now the true construction of this, I submit to your Lordships, admits of no 
 doubt. All grants are struck at " which might be prejudicial to our Sovereign Lord and 
 " the Crown that now is" — all are to be " cassed and annulled." The expression is not 
 all ' -which may be prejudicial,' but the expression is, all " which might be prejudicial;" 
 that is to say, *' which " but for this Act, but for what we are now doing, " might be pre- 
 " judicial/' because they were granted from bad motives against the Crown " that now is." 
 It would have been a totally different thing if they had said ' which may be prejudicial.' 
 Then there might have been some opening for the argument that has been attempted to 
 be founded upon those words, but there is no possibility of arguing the thing, as it 
 appears to me, when you take the words as they actually are. All grants are struck at 
 "which might be prejudicial;" therefore they are struck at, because so they might 
 have been if they had not been struck at. It clearly means "which" but for this 
 provision " might be prejudicial ; " because they were granted to persons who had 
 been acting adversely to the King " that now is," who, by their evil counsels, caused the 
 slaughter of the late King : — that is to say, — ' We are not to be answerable for killing the 
 ' King, but they are to be held responsible for the death of the King, who gave him bad 
 ' counsels, and induced him to go into the field against the true rights of his own subjects, 
 * and against his son,' whom the nobles had selected as their future Sovereign, and had set 
 him at their head.f I apprehend therefore, my Lords, that, with respect to this Act of 
 
 * For the Act Rescissory see the Appendix, infra, p. 381. 
 
 t What is all this but importing words into the Act of Parliament — the very thing the Claimant is blamed {infra, p. 357) 
 for doing in the case of the abridged memorandum of the Litera, or second patent, 19th September 1489, where, however, a 
 limitation, not found in the memorandum, must necessarily be presumed if, according to Peerage Law, as accepted hitherto, the 
 warrant is to regulate the patent ? But this is an Act of Parliament, standing hy itself, entire and complete, hy its words to he 
 justified, or by its luord-s to he condemned ; and the Claimant has asked, and asks again, Wliy was not the anmdment absolute and 
 unqualified (as e. g. in the Act 1493), and why was a qualification introduced at all, ttnless it was intended by introducing a 
 qualification to restrict the application of the Act to such grants as should be fixed arid determined hy a legal process to be " pre- 
 " judicial" to " the Crown that now is," i. e. to James IV. ? The proposition which the Claimant has had to battle with, and 
 which the Noble and Learned Lords who have spoken upon this claim have affirmed, is this, that all the grants were struck 
 at and annulled per se by the mere passing of the Act Rescissory. Sow then comes it, he must again ask, that ahy one op 
 THEM STOOD ? How is it that the grants to Collace of Balnamoon, to Somyr of Balyordie, to Gordon of Lochinvar — or, if it 
 be urged that these were confirmed by James IV. (notwithstanding the Claimant's explanation and proof that such confirmations 
 were merely for the sake of registration, the charters being equally valid and effective without confirmation), how is it that the 
 grants to the Cunninghams of Polmaise, and to the Burgh of Brechin, which received no confirmation, stood and were acted 
 upon in the teeth of the Act Rescissory? How is it that the Glencairn patent 1488 was recognised and acted upon in 
 1515-6, as conferring the lands of Drummond and Duchray upon " Alexander Earl of Glencairn," if cut down by the Act Res- 
 cissory ? How is it that the Lords of Council and Session, the Supreme Civil Court, in deciding in 1516-7 that those lands granted 
 by the Glencairn patent 1488 were incompetently conveyed, recognised nevertheless the validity of the patent in conferring 
 the Earldom ? And how came it that the Court of Session in 1648 decided that that patent stood and ruled, unaflTected by the 
 Act Rescissory ? How comes it moreover that the Crown have produced no one instance of the Act itself having taken effect 
 
 no reference to it in the qtiequidem or recital of any posterior grant, where it must necessarily have appeared, by invariable 
 
 practice, if it had been effective? And, finally, how comes it that the Supplemental Act of 1489-90, passed to 
 sustain the tottering legs of the Act Rescissory (but equally, as proved, inefi'ectual), and the Act 1493, which re-enacted it, 
 so far as could legally be done, although ex tunc, and without the slightest allusion to it, direct or indirect, both 
 pointedly omit dignities? The Claimant submits that these facts, which lie conceives to be unrefuted and unanswerable, 
 and to furnish the most cogent contemporary exposition of the effect of the statute, give A dibect contkadiction to 
 the proposition contended for and (as above stated) affirmed by the present decision ; and that, consequently, if all the grants 
 struck at were not annulled by the simple passing of the Act Rescissory, without a piocess, none were — and least of all, the 
 Dukedom. The Claimant has only further to observe that, inasmuch as the Noble and Learned Lord feels himself obliged to 
 import an entire additional clause into the Act Rescissory, and the Lord Chancellor to strike out the ivords he finds there as 
 " inaccurate," and substitute other ivords which are not there, beibre either of the Noble and Learned Lords can satisfy 
 himself that the Act applies to the Dukedom of Montrose — the presumed intention or motive of the enacters of the 
 statute being the apology for this unusual mode of dealing with an Act of Parliament in both instances, — the Claimant cannot 
 but think that legal grace ought to have decided when such learned doctors disagreed — or agreed only on terms of such 
 antipodal difference ; and that, in a word, the kule op strict interpretation and the maxim " In duUis semper 
 " benigniora " ought to have made their still small voices heard through the lips op the Noble and Learned 
 Lords on the present question. The Claimant need hardly repeat his protest against the doctrine of interpretation by 
 the presumed intention of the legislator in a case like this ; but he may once more observe that it is not what the framers of 
 the Act llescissory meant, hut what tliey actually said, that is here in question. Even had they intended vihat the Crown 
 
 2 Y 2 
 
( 350 ) 
 
 Parliament, there is no room for any doubt or question.* But, if there could have been 
 a question at the time, what are we to say after three centuries and a half of acqui- 
 escence in the construction which I am now stating to your Ijordships to be, in my 
 apprehension, clearly the right construction ; and with every act which is entitled to 
 any weight, that has taken place during that long course of time, being, as it appears to 
 me, when properly considered, consistent with the construction which I now submit to 
 your Lordships to be the true construction ?f It is clear that the Duke never sat in Par- 
 liament upon that title, and he had no opportunity of doing so. J It is shewn that there 
 might be a question (which I will not enter into) whether Letters Patent had been 
 granted.§ I will assume that there was a Patent granted. Now, as regards the other 
 dignity, let us see how it stands. The Duke insisted, as much as any man could do, 
 upon his title as Duke. |1 Whenever he had an opportunity of making use of the title in 
 a way which could not be prevented, he did use that title, — that is beyond all question.^ 
 It appears that he was received partially into favour ; ** and it has been much contended 
 at your Lordships' bar that it was impossible, when you read the Regrant, to say that he 
 was a person whose title was to be destroyed, because, referring to the words " which 
 " might be prejudicial," it is asked, — ' How could it be prejudicial to preserve the title 
 ' of the man to whom this Regrant was made, and he so worthy a subject ? ' But if we 
 want to know the terms upon which James IV. and the Duke were, Ave have only to turn 
 to the Protest which the Duke of Monti'ose executed at his own place, with his own 
 dependents around him ; and there, when he was forced to surrender the Sheriffdom of 
 Forfarshire, he takes care, behind the back of his Sovereign (for which I do not blame 
 him), to express his griefs, and to make the Protest in question — looking forward to 
 better times — in order to save his right, if by law it could be saved.f f I will read these 
 
 and the Committee attribute to them, still, if like Balaam, they have said one thing when they meant another, the Claimant — 
 as the representative of innocence and loyalty assailed by rebellion and guilt — is entitled to the benefit that the actual words 
 convey ; and all that can be said of the framers of the Act is, that " Quod voluerunt non fecerunt." 
 
 * The Lord Chancellor, arriving at the same conclusion as Lord St. Leonards, though (as just observed) by a somewhat 
 different line of route, expresses less confidence than his Noble and Learned brother, and admits that " all is in great 
 " obscurity." The Claimant cannot but think that — what between excess of light on the one hand and privation of it on the 
 other — the eagle eye of the one Noble and Learned Lord scorning, and the less favoured vision of the other bewildered by, 
 the calm, equable, and modest light afforded by ancient Peerage Law in its application to cases of this description — both 
 archers have missed the mark. 
 
 t If but one grant of James III. stood, as above stated, that construction fails. Neither the Lord Chancellor nor Lord 
 St. Leonards take notice of the instances above mentioned, in which the grants stood. They theretbre, the Claimant conceives, 
 admit that the Act was ineffectual as regards those grants. And if so, the construction fails, and the Dukedom also stands. 
 Moreover, the decision in the Olencairn case in 1648, ruling at the present day, has fixed the construction against the Noble 
 and Learned Lord and favourahly for the Claimant. 
 
 X This admission, so far, answers the objection. But, as the Claimant has urged, the acceptance (even) of a second 
 patent could not neutralise the first, if not annulled by the Act Rescissory ; and the Duke might ascribe his sitting to the first 
 patent after the passing of the second (") — and there can be no doubt, from his admitted determination to uphold his rights, 
 that he did so ascribe it. — In so far as the objection proceeds on the proposition that a sitting is required in order to found a 
 peerage right, — this (as has been already stated) is not the case ; a sitting is not essential, especially in Scottish peerages. 
 
 { This is obscure, but seems to refer to the Letters Patent, 19th Sept. 1489, regranting the Dukedom in obedience to 
 the Act or warrant, by James IV. with advice of Parliament, 18th Sept. 1489. The Claimant does not however deny that the 
 ' Litera' passed — he only denies that the curtailed abstract or memorandum of it can be held to supersede, govern, and control 
 the interpretation of the Act, its warrant, which is preserved in extenso. 
 
 II How then, it may be asked, did he "acquiesce "in the contrary, as urged by the Crown, supra, pp. xci, ci? 
 
 ^ He always used the title, — there is no room for the qualification. 
 
 ♦* Not partially, but absolutely, as already observed. The argument built on this misconception will now appear. 
 
 +t The unbounded weight laid on the Protest, as bearing against the Claimant, and proving a mere partial restoration to 
 favour, entitles the Claimant to the full benefit of it, as rightlt read and quoted — as ivell as to the full benefit of the Duke's 
 fulfilment of his part of the contract or bargain into which he liad been forced by the King or the successful faction. It is 
 scarcely necessary to observe that, even if the restoration to favour had only been " partial," as misstated by the Noble and 
 
 (») This was in fact urged by the Counsel for Glencairn in the process 1637-48, as may be seen in the 'Minutes of Process,' 
 Appendix, infra, pp. 443, 444. 
 
( 351 ) 
 
 words in answer to the argument which was urged so much at length. It was asked 
 over and over again, — How could James IV. possibly consider this subject as a person 
 who fell within the former Act of Parliament, when he himself treated him with so 
 much kindness?* Now the kindness was this — he wishes all men to know this — he 
 " very lamentably set forth, from his certain knowledge, how, after the great displeasure 
 " which our most illustrious and serene Prince, James King of Scots, the Fourth, had 
 " conceived against his person and against his kinsmen, friends, and men, because that 
 " he had stood, and constantly adhered to the last, to his most excellent King, of revered 
 " memory, James III., at Stirling and elsewhere, where he closed his last day — to whose 
 " soul the most high God be propitious ! in which place he sustained many blows, cap- 
 " tures, detentions, injuries, wounds, and was ransomed with his followers,"- — and then 
 the King " indulged and remitted to him, by his Letters Patent sealed with his Privy 
 " Seal, his displeasure of every sort in this manner conceived against him."t In short, he 
 was pardoned, provided he renounced and resigned this Sheriffdom in favour of Lord 
 Gray, who was to hold that pardon in his own possession until the former Duke had 
 resigned this hereditary office. And then " the said Lord Duke solemnly protested, for 
 " remedy of law at a fitting season, that whatever he may do respecting the donation of 
 " his office foresaid, or of his lands or other goods or things, shall not prejudice him or 
 " his heirs in time to come, since truly he is constrained to do this through such fear of 
 " death as may befall a constant man, and of the loss of his heritage," and so on.J 
 
 Your Lordships see there what the feelings of James IV. were towards this noble- 
 man, and the steps which he took. And what follows upon that ? There is a Pro- 
 curatory of Resignation, which comes out of Lord Gray's muniment room, and which, 
 for the purpose, I will take to be a genuine instrument. That purports to be a Resigna- 
 tion by the Duke, calling himself by that name, of this office to the Crown. And that 
 is stated to have been at Hailes, which is near to Edinburgh. It is stated also to have 
 been in the King's presence. § 
 
 Learned Lord, or even had James IV. and the Duke been on the worst of " terms," personally, up to the very day of the 
 Regrant, that could not countervail James's testimony (in the Megraiit) to the Duke's ccmsistent loyalty from the moment of the 
 late King's death, or deprive the Claimant of the henefit of that testimony in reference to the Act Rescissory. 
 
 * The Claimant's argument, as actually urged, has been already vindicated. That argument proceeded on the broad 
 proposition that the grant of the dignity of Duke of Montrose could »of be legally considered to be " prejudicial " to James IV. 
 when James IV. himself asserts, 1. That it is both honourable and advantageous to the Crown, generally, to grant the dignity 
 of Duke to a loyal subject, and 2. That the Duke of Montrose, in particular, his father's grantee, had always been a loyal 
 subject, as well to his father as to himself. — It must never be overlooked that James IV. was very young at the time, and in 
 the hands of the successful faction, who may have counteracted to a great extent, though not wholly, his own better impulses. 
 Moreover the Claimant' s argument does not turn upon what the Duke thought or said ahout lloyal kindness or favour, hut 
 upon what the King is made openly to do in the Act lieseissory (supposing him to figure properly therein), subject always to 
 tliat strict interpretation which from heginning to end has been overlooked in tlie consideration of this case. 
 
 t " Omnimodam hujusmodi displicientiam," &c. For the Protest (with a translation) vide infra, p. 519. 
 
 J It is to be observed that the King had already fully forgiven him by the absolute Remission executed under the 
 Privy Seal. Having executed this deed, the King was legally fmictus, and could not undo what he had done. It was, 
 therefore, strictly speaking, by injustice that the Duke was called on to redeem this Remission out of Lord Gray's hands by 
 the surrender of the Sheriffdom ; and against this injustice he thus protested, in regular and usual legal Ibrm, " pro reroedio 
 " juris tempore opportuno." And upon this Protest, thus solemnly executed, the Duke's " heirs" (that is, in illustration of 
 the Claimant's construction on that point, his collateral heirs male, the later Earls of Crawford, intermediate heirs 
 female being then alive), (") maintained a litigation against the Gray family for the recovery of the Sheriffdom for above half a 
 century — though unsuccessfully, owing to the validity and (as urged by the Gray family) the posterior date of the Procuratory 
 of Resignation 1st November 1488, and Instrument of Resignation and Donation, 6th November 1488, by which Duke 
 David's right had been legally and for ever alienated.C") See the S. Case, pp. 97, 98°, ai\d supra, pp. Ixxxiv, cxli ; infra, 
 p. 524. 
 
 § The two most important documents, the Procuratory of Resignation, executed by David Duke of Montrose, 1st 
 Nov. 1488, and the Instrument of Resignation and Donation, 6th Nov. 1488, executed by the King's notary at the request 
 of Lord Gray, recording the resignation by the procurators of Duke David and the grant to Lord Gray — on whitih the 
 Claimant has laid such stress — are here actually confused into one instrument, represented as emanating exclusively from the 
 
 (°) The original charter of the Sheriffdom to Duke David, while Earl of Crawford, is limited " heredibus suis," precisely the 
 same words as those in the Dukedom patent. Vide s'(pra, p. cxli. (*■) Vide supra, p. Ixxxiv. 
 
( 352 ) 
 
 Then, my Lords, when the Crown comes to act upon it, you see at once the 
 difference which has just been pointed out. The Crown, in its regrant to Lord Gray, 
 refers to a surrender by the former owner, but a surrender by the " Earl of Crawford," 
 which would be his proper title if that Act of 1488 had struck at the Dukedom; and it 
 regrants the office to Lord Gray as having been surrendered by the "Earl of Crawford." 
 Then that is followed by another document of the Crown, a Precept of Sasine ; and that 
 Precept of Sasine is in precisely the same terms as the actual regrant by the Crown to 
 Lord Gray.* So that, as far as this goes, there is nothing which tells with such wonderful 
 effect against the title as the very attempts which the Duke made to set up his title as 
 Duke ; because he never set up his title as Duke in the presence of the Crown — with the 
 exception of that charter, for example, in which it might have passed without observa- 
 tion, and it amounts in reality to nothing— the Duke never did one single act by 
 which he attempted to set up his title as Duke with the Crown which was not imme- 
 diately repelled by the Crown.f In the very case to which I have just referred, the 
 
 soi-dismt Duke of Montrose ; and a douU is cast on Us {on their) genuineness — that genuineness having been proved by the 
 Claimant, in a manner absolutely unparalleled, in his S. Case, pp. 93sqq., insomuch as to extort the acknowledgment of the 
 Duke of Montrose himself to its authenticity. (") The Claimant will merely repeat, briefly, here, that the five documents lefore 
 tlie Committee— the Procuratory of Resignation and the Instrument of Resignation adduced by the Claimant, and the Charter, 
 the Precept of Seizin, and the Instrument of Seizin adduced by the Crown— uZZ helmg to the Gray charter-chest ; they Jiave 
 never been separated — they were all discovered togetlier : if the two produced by the Claimant, the first and second in the series, 
 are forgeries, so are the three produced ly the Grown, tlte third, fourth, and fifth; and if all five are forgeries, lord Gray lias 
 no title deeds to shew for tlie Slieriffdom which his ancestors undoubtedly acquired from the Lindsays in the fifteenth century. 
 WJiile the converse equally holds, that if tlte three deeds produced by the Grown are genuine, the two former must also be so, to 
 the refutation of any possible objection. Lord St. Leonards must make his election between these alternatives.^It may be 
 observed that the Crown itself has stated in evidence that no other instruments relating to this particular transaction exist in 
 the Gray repositories. See the Appendix, infra, p. 524. The Procuratory and Instrument of Resignation are printed, with 
 translations, infra, pp. 521, 522. 
 
 * Vide infra, pp. 528, 529. All this has been explained, supra, p. Ixxxv. After the acceptance of the Sheriffdom 
 from Duke David as Duke at Ilailes Castle, and the grant to Lord Gray, (as recorded by the protonotary, Andrew 
 MacBrek, at Lord Gray's request, in the Instrument of Resignation and Donation, which, with the Procuratory, 
 formed the foundation-stone of Lord Gray's right to the office,) the Crown (as repeatedly observed) was functus so far as 
 the Duke was concerned, and could not undo what it had done. The Charter, subsequently executed, was the mere 
 work of tlie Clerks of Chancery, carrying out the will of the King as recorded in the Instrument of Besignation and 
 Donation, based on the Procuratory — but out of the Boyal presence, supervision, and control. The Precept of Sasine and 
 Instrument of Sasine, which followed on the Charter, (of which latter document neither the Lord Advocate nor Lord St. 
 Leonards take any notice,) were mere subordinate accessaries to that Charter. And all these later documents fall to be governed, 
 controlled, and corrected by the warrants, the Proctcratory and Instrument of Resignation, which alone passed under the eye 
 of the King, and can alone fix the true and proper designation and style of the Duke, — as by recognised and accepted Peerage 
 Law (supra, p. Ixx), never questioned till the present moment. The description of the Duke as ' Earl of Crawford ' in these 
 later documents may pos.<iibly have arisen from the clerk having copied his description as ' Earl of Crawford ' in the original 
 charter of the Sheriffdom, 19th October 1466, which charter was given over to Lord Gray (as proved by the testimony of 
 Patrick, Master of Gray, sujyra, p. Ixxxiv) on the occasion of the transfer, besides being enrolled in the Great Seal Piegister. 
 At all events, that designation, as well as the assertion that the resignation took place at Perth, instead of Hailes Castle, 
 were mere clerical errors, which are at once refuted by reference to the original and actual documents themselves. While the 
 Claimant has shewn that similar and far more serious errors are of frequent occurrence in ancient, and even in comparatively 
 modern charters and patents ; and in the Napier case, in 1790, when a vital flaw, arising from a similarly erroneous reference 
 (in point of date) to a former investiture in the ruling regrant of the Napier peerage, was brought before the House of Lords, 
 on an objection by the late Earl of Lauderdale to the right of the heir of the patentee, the House adjudged the investiture 
 in question to rule and be the criterion of the descent of the dignity — construing and disregarding the faulty reference in the 
 regrant as a clerical error. This furnishes an a fortiori precedent in the present Claimant's favour — the omission of a date 
 and the misstatement of the place of resignation, as in the charter 14th Dec. 1488, being, in fact, matters of indifference when 
 the broad and ruling fact that the resignation actually and duly took place is fully and distinctly set forth and enforced — as it 
 is in the charter in question. All this may be seen at length in the S. Case, pp. 98*" sqq. And see Andrew Stuart's words, 
 supira, p. Ixxi. The distance of Hailes Castle, where the resignation took place, from Perth, where the charter, with its 
 accessaries, the Precept and Instrument of Seizin, is dated — and the lapse of time between the date of the resignation, viz. on 
 the 6th November, and the execution of the charter, &c. on the 14th December — may partly account for the discrepancy in the 
 present instance. But that discrepancy is quite immaterial under the circumstances. 
 
 t The one single act referred to is the Duke's charter to Margaret Carmichael, 20th October 1488, confirmed by the 
 Crown (Appendix, infra, p. 514). But the Claimant has shewn that the Duke "set up his title as Duke in the presence of 
 " the Crown " in the Procuratory 1st Nov. 1488, and that that title, so set up, ivas recognised by theCrown in the circumstances 
 of the resignation, as recorded by the King's own officer in the Instrument of Resignation and Donation, 6th Nov. 1488. 
 The Crown thus fully admitted the Duke as Duke, in the fairest and most unexceptionable manner, so as to foreclose any 
 future question. 
 
 (") Duke of Montrose's Supplemental Case, p. 12, note '. And vide supra, pp. Ixxxiv, Ixxxv. 
 
( 353 ) 
 
 Crown called him by his proper title of " Earl of Crawford," and in effect rejected his title 
 as Duke of Montrose.* Therefore, I think, that in itself is a thousand times more strong 
 than any assertion of his title by the Duke himself, which he could not maintain. If 
 you look at the grant to his wife, that required the confirmation of the Crown.f There 
 he called himself Duke ; and what does the Crown do ? The Crown, in confirming 
 the charter, takes care to prefix to it his proper title, calling him "Earl of Crawford," and 
 confirming the grant by that title. Surely, therefore, all these acts are quite conclusive 
 as regards the question 4 
 
 Then we come to a matter that is enough to startle anybody, and to make any 
 one doubt whether it is possible to maintain this claim,— and that is, the Regrant, after 
 he had been stripped of the Sheriffdom of Forfar. He was compelled to give it up, 
 there is no doubt about that ; and he says he only gave it up because he had that 
 reasonable fear of death which a brave man might fairly feel. He desires not to be 
 considered in mere cowardice to have yielded it; but he says, 'There is such a fear of 
 ' death hanging over me, that I am justified, as a man of sufficient physical and moral 
 * courage, in giving way to the Crown.' Then what follows ? Very shortly after he is 
 partially restored to favour ;§ and then comes the Regrant of the Dukedom, upon which 
 there has been so much discussion. Now, my Lords, compare that Regrant with the 
 original grant, which was only a few months before, and what do you find? The 
 original grant was in the strictest and strongest terms hereditary to him and to his heirs. 
 What do you find in the Regrant ? which is to be carried further into effect by a regular 
 charter. II You find it Avholly silent about any hereditaiy right or succession ; you find it 
 wholly silent as to any heirs of any sort or kind beyond the grantee's own life. Therefore, 
 my Lords, I should have been of opinion, upon that document alone, that the Dukedom 
 Avas granted only for life.^ You find also, that the estates which had been granted by 
 
 * That is, in the case of the charter to Margaret Carmichael. 
 
 t The Duke's charter did not legally require the Confirmation of the Crown, — the Confirmation, as elsewhere explained 
 {aupra, p. xxvii), was a mere public registration. 
 
 % The charter is confirmed " in omnibus punctis," in every tittle — and the contemporary title in the Register, as 
 inserted by the public officer or clerk, describes it as the " carta Dncis de Moktkoss," — shewing that no disallowance of 
 the Dukedom was thought of. In an instance adduced by the Claimant, precisely parallel to this (with the exception of the 
 title), a charter by "Johannes Comes de Levenax et Dominus Dernly," dated the 26th April 1489, is confirmed by 
 James IV., on the 6th May 1489, osiAc cAarfer (so described in the preamble of the Confirmation) " Johcmnis Domini Dertilie." 
 Infra, p. 515. — Lennox was sitting in Parliament and receiving charters from the Crown as Earl of Lennox at that very 
 moment, the title being fully recognised in him, as by proof adduced before the Committee. But hy the Xoble and 
 Learned Lord's argument, this designation of the Earl of Lennox as Lord Darnley, only, amounts to a rejection of his title as 
 Earl of Lennox— by which rejection Royal rights, including those of James I., Charles I., and Charles II., are directly ques- 
 tioned and assailed. NeitJier tlie Lord Ghancellor nor Lord St. Leonards have noticed this most important parallel document — 
 nor indeed the various other instances adduced by the Claimant, proving that Scottish peers were frequently designated at the 
 period and afterwards by their lower titles, precisely as David Duke of Montrose is occasionally designated Earl of Crawford. 
 
 § Again the misapprehension that the restoration to favour' was on\y partial (refuted supra, p. 316), — this misappre- 
 hension leading to the direct and immediate inference that the Regrant of the Dukedom was only partial, i. e. for life. But 
 the restoration being absolute, as has been proved, the Begrant, if not in tlie same hereditary terms as the original Batent, and 
 virtually a recognition or Confirmation of it, would have been a violation of the contract into which the Duke luid been comp)elled 
 to enter — the King would have been in mala fide — and, as tlie consequence of a gross breach of faith, and of injustice and 
 oppression, offensive alike to God and man, the Begrant, so limited, would be, and must necessarily be, rescinded by the Act 
 Bevocatory 1503-4. See the terms of that Act, in the Appendix, infra, p. 387. 
 
 II The Act of Regrant, by James IV. with assent of Parliament, 18th Sept. 1489, preserved in extenso on the Rolls of 
 Parliament, creates the Dukedom of Montrose, which is to be enjoyed " secundum formam et tenorem carte dicti Domini nostri 
 " Regis dicto David Duci de Montross super premissis conficiende." Vide infra, p. 531. The charter or patent, thus ordained 
 to be expede in Chancery, falls therefore to be extended in conformity with the conditions premised in tlie Act, and of course 
 (even ex termmis) to be governed and controlled by it as the warkanx ob signatuke, as in other familiar cases, by Peerage Law. 
 
 1 There is no allusion whatever in the Act or warrant \8th September 1489 to the grantee's own life — nothing to imply 
 a restrictive or life-rent grant — and much to imply. and necessitate an hereditary grant. As elsewhere shewn, the Act follows 
 the original Patent word for word as far as it goes, but, for the reference to the Battle of Blackness, substitutes an additional 
 clause, introduced for the first time, stating that, because the Eabls of Ckawfokd had hitheeto held theie patbimonial 
 
 POSSESSION'S ("DOMINACIONES") BY THE TITLE OP " EaRL," THEREFORE THAT TITLE OF EaRL WAS TO BE NOW CHANGED INTO THAT 
 
 OP "Duke" — necessarily implying that tlie Earldom thus changed into aDukedom was to descend to heirs, and to the same heirs as 
 
( 354 ) 
 
 the original charter, and had been created a regality and constituted a Dukedom to go 
 with the dignity, are regranted with the same dignity ; and the same title is regranted 
 Avitliout the former words of limitation which I have stated to your Lordships.* And 
 what does the Crown state in making a regrant of these estates ? It asserts the title of 
 the Crown to those estates ; it calls them the estates of the Crown. Now they could 
 only be the estates of the Crown if that grant of 1488 had been annulled. If that had 
 not been annulled they would still have been the estates of the Duke (he would 
 still have been Duke), and therefore not the estates of the Crown. Therefore, that of 
 itself would go a great way.f But what does the Regrant state ? The services and con- 
 siderations which induced James IV. to make this grant — nearly the same, mutatis 
 mutandis, as in the original grant — which is almost copied here. It was then services 
 which were to be performed, not to the dead monarch, of course, but to the living 
 monarch. % To whom is the grant? To the " Earl of Crawford." Why, what a mockery 
 it is to talk of that being a confirmation to the Duke ! How is it possible for any man 
 living, as a lawyer, to say that it was a confirmation to the Duke ?§ What would have 
 
 it previously did. Vide supra, p. cii, and n. J. — The grant of the Dukedom of Lennox, 5th August 1581, which the Claimant 
 has cited, supra, p. cviii, n. t, imA. infra, p. 531, and to which, and his full investigation of it, supra, pp. i,xxvi sqq., ho 
 would refer the reader, is conceived in exactly parallel terms — without any limitation or allusion to heirs except a retro- 
 spective reference to the ancient Earls of Lennox, whose Earldom ((hen newly granted to Esme Lord of Aubigny) was to be 
 elevated into a Dukedom, and this reference expressed in terms even less strong than those in the Montrose Regrant. Accord- 
 ing to the argument of Lord St. Leonards, this ought to have been a mere life-rent grant, and yet the Dukedom descended 
 under it to heirs, to heirs male of the body, and, if the assertion of Charles II. in 1675 be correct, to heirs male whatsoever ; 
 under which character the dignity ultimately vested in His Majesty (on failure of the direct male line) as collateral heir 
 male, and necessarily in virtue of the patent 1581, although expressed without any limitation. The Noble and Learned Lord's 
 inference from the non-mention of heirs in the Montrose patent is thus (on this additional ground and precedent) quite unwar- 
 ranted. Noris the preceding the only case of this kind in Scotland that could be specified. Even in England, the mere writ 
 of summons to Parliament to transact public business, although without the slightest apparent indication of an intention to 
 
 grant an hereditary honour, constitutes, after sitting in Parliament, a peerage descendible to lineal heirs, including females. 
 
 The Claimant thei-efore conceives that the Regrant 18th Sept. 1489 tuas,from its phraseology and context alone, an hereditanj 
 grant. It certainly loas not a restrict iue one — and, not being so, no restriction could legally be introduced into the -patent of 
 ivhich it was the coktrolling wabrakt. 
 
 * This obsei-vation refers only to the ' Litera ' or second patent, in its abridged and suspicious form. It is to be observed 
 that no mention of the estates is made in the Regrant itself by James IV. with advice of Parliament, creating the Dukedom de 
 novo, 18th Sept. 1489, — the Glerhs of Clmncery who drew uj) the Litera were therefore necessarily referred to the obiginjIL 
 Patekt 18th May 14:88, where alone tJwse estates (with their limitation) were to be found: — Which is supported moreover 
 by the fact that both the Kegrant and the Litera echo the original patent verbatim so far as they go, (which may by itself 
 account for the style of ' Earl of Crawford ' given to the grantee) ; while the abridger of the Litera (supposing the memorandum 
 to be genuine and trustworthy, however confessedly careless and hasty in its execution) must have intended to refer to 
 the original patent by his reference at the close of the memorandum, "cum omnibus clausulis secundum formam carte ''—not 
 " litere "— (the Litera itself being only known by the abridgment thus made)— and this the more especially if, as the Lord 
 Advocate maintains, no " carta " or charter under the Great Seal was extended (although ordained by the Act 18th September, 
 the warrant), but only a " Litera " or Letter under the Privy Seal. On this point the Claimant would refer to his observations 
 supra, pp. cv sqq. 
 
 t The words " nunc Regi pertinentibus " and " Regi pertinentibus " were probably simply copied by the clerk (like 
 the description ' David Earl of Crawford ') from the original patent, in which they occur in precisely the same place and 
 order. If not a clerical error, it must (after what has been proved) have been a direct misstatement. The Claimant has 
 already observed that, even after the grant of Kinclevin to the Wardropers, founded on by the Crown and the Lord 
 Chancellor, the estates are kept on the Books of Exchequer. But no misrepresentation, no difficulty, hoivever puzzling, of 
 subsequent occurrence, can stand in the way of the broad facts and principles mi which, and on the nde of prior obligation and 
 of strict interpretation, the Claimant takes his stand in this case. 
 
 X The considerations for the grant were-^asi services to the dead monarch, /«forc services to the living monmch—pasf 
 services by the Duke and his predecessors to James IV. and his predecessors (" predecessoribus dicti domini nostri Regis, Scotie 
 " Regibus, ao eidem supremo domino nostro Regi '')~future services to be paid by the House of Crawford (whose hereditary 
 male Earldom was changed by the grant into a Dukedom) to the living monarch, undoubtedly, but also, necessarily, to all 
 future sovereigns of Scotland, as implied by the words "suis iervKih fiduris temporibus," antithetically contrasted w'ith the 
 " db antiquis teraporihus " referential to the tenure of the Earldom of Crawford— the King moreover addressing himself— not 
 only to the actual generation but to all future generations—" Pateat igitur universis, tarn presentibus quam futuris," &c.— in 
 making the grant in question.— While it is true that the original grant "is almost copied here," as remarked by Lord St. 
 Leonards (and by the Claimant in the preceding note), both the eulogy and the reasons for making the grant are greatly 
 amplified in the Regrant, as shewn supra, p. cii,— which, of itself alone, induces the Claimant's conclusion that the grant was 
 hereditary. 
 
 § The Duke being actually at the moment in the enjoyment of the estates granted by the original patent, and of the 
 Dukedom, as recognised by the King himself, and in such a manner too as to have entirely rehabilitated him even if the Act 
 
( 355 ) 
 
 been the true mode of drawing a confirmation, according to any mode of conveyancing, 
 or according to any law, if the object had been to confirm to the Duke the Dukedom 
 granted to him in 1488 ? Could there be any question about it ? When King Charles 
 in 1 637 attempted to confirm the other title of Glencairn, he expressly confirmed it to 
 the Earl as under the old Patent of 1488. And so this must have been if that had been 
 intended.* But there is not a single word in that grant which can be twisted or made 
 into anything like a confirmation ; but the whole points to a new grant. And it regrants 
 to the " Earl of Crawford " the title of Duke. 
 
 Then, my Lords, it is said, first of all, upon this instrument, that you are to imply 
 a limitation to heirs, that it was a creation of a Dukedom which in itself would carry it 
 to heirs. We are not, as it appears to me, under the necessity of discussing this question, 
 because we know what follows. f There is upon the Register a Litera which affects to 
 tell you J what the contents of the grant were ; it begins by telling you, in so many words, 
 that the Dukedom had been regranted to the Duke for his life, in the most plain and 
 explicit terms,§ and also that there had been granted the estates — because the grant of the 
 Dukedom the second time said nothing about the estates. The grant of the estates 
 depended entirely upon the Litera. || That was the only evidence they had that the 
 estates had been granted ; it states them to have been given ; it speaks generally of rights 
 and privileges; and then you find the words " et cetera." Your Lordships are probably 
 not quite so conversant as my Noble and Learned Friend and myself are with those 
 words ; perhaps you are not aware that Lord Coke, in his work upon Littleton, speaks 
 of the extreme importance of et cetera, and he actually collects every instance of an et 
 cetera which he can find, and he tells you you will find all these et ceteras at such and 
 such places.^ Now I never before knew so much weight laid upon an et cetera as there 
 
 Rescissory had been effective against him — no resignation having taken place — and Lords Mansfield and Hardwicke having 
 both laid it down that without a resignation no proper regrant of a dignity lawfully vested in an individual can take place, 
 (supra, p. cii ; infra, pp. 358, 360,) the Claimant is a sufficiently bad lawyer to hold that the Regrant could by no possibility be 
 anything else than a virtual confirmation. 
 
 * Not necessarily so. A virtual confirmation is all that the Claimant contends for. Compare the patent, by way of 
 confirmation or recognition, of the Earldom of Home, 22nd May 1636, in the Appendix, ivfra, p. 538, with the note thereon. 
 
 t A most insufficient test. Antecedents govern. 
 
 X Sic. The words of the Noble and Learned Lord may have been, " the effect of which is to tell you," or " whose 
 " effect is to tell you." 
 
 § Not so, inasmuch as all known of the Litera is a brief abstract, of unparalleled character, an ex post facto interpolation 
 in the Great Seal Register. The Noble and Learned Lord, like the Lord Advocate, argues throughout on the assumption that 
 what is tantamount to the entire instrument is before the Committee. Vide supra, p. cvii, paragraph (6). 
 
 II The Litera must have had a warrant, or how could the Clerks of Chancery know what estates to convey with the 
 Dukedom, and with what limitation ? The original Patent 18th May 1488 (as referred to and recognised by the words 
 " de novo " and by the general context of the Regrant by James IV. with assent of Parliament 18th September 1489— while 
 forming, in truth, the ultimate warrant of the Regrant in toto) was the especial and only existing warrant for the conveyance 
 of the estates; and, as the Claimant has shewn, that original Patent must necessarily be referred to in the Memorandum of the 
 Litera where an " etc. " is followed by "cum omnibus clausulis secundum formam car/e "—that is, with all the clauses 
 according to the limitation of the original patent or charter 18th May 1488, already recorded and accessible in the Great 
 Seal Reo-ister,— it being impossible to hold that this reference for further information was to the Litera itself, which would be 
 merely explaining obscurum per obscurius, or rather by what was absolutely ignotum. While on the Lord Advocate's view 
 that no 'carta' was ever executed (although ordained by the Act 18th September), this conclusion is absolutely clenched in 
 the Claimant's favour.— It certainly appears to the Claimant very difficult to give the adverse interpretation to all these docu- 
 ments, unless by abandoning all the ancient and accepted principles of interpretation in Peerage and indeed in ordinary law. 
 Truth, it has been well said, is sometimes very difficult to establish, but it is impossible to demonstrate error. 
 
 <^ The passage in Coke upon Littleton, referred toby Lord St. Leonards, occurs in the commentary upon the tenth 
 Section. It is as follows,—" En tiel manuel occupation, §-c.— There is nothing in our Author but is worthy of observation. 
 « Here is the first (&c.), and there is no (&c.) in all his three Bookes (there being, as you shall perceive, verie many) but it is 
 " for two purposes. First, it doth imply some other necessarie matter. Secondly, that the Student may, together with that 
 " which our Author hath said, inquire what authorities there be in law that treat of that matter,— which will work three notable 
 " effects : First, it will make him understand our Author the better : Secondly, it will exceedingly adde to the Reader's 
 " invention : And, lastly, it will fasten the matter more surely in his memorie,— for which purpose I have for his ease in the 
 " beginning set downs in these Institutes the effect of some of the principal! authorities in Law, as I conceive them, con- 
 " cerning the same. In this place the (&c.) implyeth possession or receipt, and such other matter as appeareth by my notes 
 
 2 Z 
 
( 356 ) 
 
 has been at your Lordships' Bar. It is said that that et cetera is to import, contrary to 
 the very words of the Litera, that there is some limitation beyond a limitation for life ; 
 and we have had produced and referred to documents of all sorts to shew that there 
 have been in the Law of Scotland grants for life in so many words, and that in one or 
 two instances those grants extended to heirs.* Generally speaking, they were grants to 
 other persons; what in this country would be called remainders.f There is nothing 
 extraordinary in that ; but in one instance there was an attempt to prove that there was a 
 grant to a man during his life in most express terms, tenendum to him and to his heirs 
 generally. That turned out to be a mistake. In point of fact, the words of the grant 
 referred to the homage he had done, and which he was to continue to do during the 
 whole of his life ; he was always to be a good subject ; and the tenendum was the only 
 matter in the grant which referred at all to the quantity of estate which the grantee was 
 to take. J That took away the force of that argument, and left the qase to stand, as it 
 does stand, upon the construction of the grant itself and upon the Litera. § My Lords, 
 
 " in this Section. As for the authorities of law, }'ou shall finde the effect of them in this Section, and the like of the rest of 
 " the (&c.) which yoii shall finde in the Sections hereafter mentioned, omitting those (for avoyding of tediousnesse) that either 
 " are apparent or which are explaned in some other places, viz. Sect. 20, 48, 102, 108, 120, 125, 136, 137, 146, 149, 154 " 
 and so on in enumeration, ending with Section 749. " All which I have observed and quoted here, once for all for the ease 
 " of the studious Reader. " The Claimant does not see how this bears upon the ' etc' in the Memorandum of the Litera here 
 in question. 
 
 * The Claimant adduced at least a dozen patents of peerage, so expressed, in his Case, p. 26, and S. Case p 
 124. Four instances are given in evidence in the Appendix, infra, pp. 536 sqq. Such grants are extremely common in 
 Scotland. 
 
 t The Claimant would refer here to the evidence. They are grants to the individual for his life-time, and to his heirs 
 after him. The Claimant's argument therefrom is stated in note § infra. 
 
 % This last statement is quite erroneous, and on this point, and generally, the Claimant must refer to the document 
 itself, as printed in the ' Minutes of Evidence,' p. 140, and in the Appendix, infra, p. 539. See also the note immediately 
 subsequent to this. 
 
 § When the Noble and Learned Lord speaks, as above, of importing a limitation " contrary to the very words of the 
 " Litera," he overlooks the fact (already noticed by the Claimant) that the Litera exists— not in extenso, but only in an 
 extremely curtailed shape, and that the word "etc." necessarily implies that something is omitted— something which may 
 possibly be important— in the Litera, or second patent. If therefore anything is found in the warrant which is not in the 
 charter, although ordained to be in it, (as, for example, the change of the ancient and hereditary Earldom of Crawford into a 
 
 Dukedom,) that " etc." may well cover such omission. The Claimant's argument on this point was briefly this ■ That the 
 
 words " pro toto tempore vite sue," or equivalent expressions, being often prefixed to a limitation to heirs in the dispositive 
 clause in Scottish charters, and the limitation frequently appearing only in the tenendas clause of another class c^ such charters 
 —while in one charter, adduced by the Claimant, a property is granted in the dispositive clause to the gra. ee "pro toto 
 " tempore vite sue," without more, but with a limitation to heirs in the tenendas, — therefore, 
 
 1. Supposing the Litera or second patent, in its entire state, to have been conformable to the first class of these instances— 
 
 in other words, supposing the grant in tlic dispositive clause to have been to David Earl of Crawford " pro toto 
 " tempore vite sue, et heredibus suis "—the clerk, in abridging the Litera, so expressed, into the Register (and espe- 
 cially in such a careless, hasty, and slovenly manner as in the present instance),^) may have omitted the words 
 " heredibus suis," and thus given it, in the Memorandum, the appearance of having been for life only —And 
 
 2. Supposing the entire Litera to have been conformable to the second class of instances, in which the limitation appears 
 
 only in the tenendas clause, in that case the limitation may have been omitted through the fact that in this (as the 
 Attorney General rightly characterises it) " somewhat unartistie " document, the iSenenrfos is omitted altogether 
 and only represented by the " etc." commented upon by Lord St. Leonards.('') While " ' 
 
 3. In either case, the deficiency, as in analogous instances, is fully made up by the intimation at the conclusion (imme- 
 
 diately after the " etc."), " cum omnibus clausulis secundum formam carte," according, that is to say, to the ' carta ' 
 
 or patent, 18th May 1488, from which the destination falls therefore to be supplied— the words " secundum formam 
 
 " carte," analogous to the English " per formam doni," corroborating the hereditary interpretation contended for. 
 
 The Claimant further submits that this limitation must he presumed to have leen so omitted, seeing that a restriction to 
 
 the life of the grantee would he at variance with tJie warrant, while a cimnge of the ancient liereditary Earldom into a Dukedom 
 
 — necessarily to follow the limitation and descent of the Earldom — is prescribed by the warrant that warrant fallinq hi 
 
 Peerage Law to govern and interpret the Patent, and not vice versa. Such restriction moreover would have been directly in 
 the teeth of the continued tenure of the estates, the Royal Recognition, and the contract between the King and the Duke 
 proved by the Protest,— while such restriction would have been quite impotent, a mere brutum fulmen, under the 
 
 circumstances. ,—•., 
 
 U ith 
 
 (») In proof of this see the facsimile at pp. 60, 61 of the Original Case, and in the Appendix, infra, facing p. 531. 
 
 O Vide siipra, p. 355, note "f. 
 
( 357 ) 
 
 my clear opinion is that the Regrant was for life only, that the evidence clearly shews 
 it to be so, and that it is impossible to feel any doubt upon that point, that the Regrant 
 was not beyond an estate for life. But even supposing there were a question about it, 
 contemporaneous usage, as my Noble and Learned Friend said, must guide, and always 
 has guided, in these cases, particularly if you are called upon to supply certain words in 
 an ancient grant which are not found there.* You must then look at the acts ; or, in 
 the case of a Peerage, you must look at the sitting. If you find a constant sitting on the 
 part of male heirs, you do not let in heirs general. Why ? Because you find the act of 
 the parties indicating that which you cannot discover from the Patent itself (the Patent 
 being lost), what the original grant was ; and the continued sitting of heirs male to the 
 exclusion of heirs general shews that it must have been a grant to heirs male. Now, if 
 we look to see what was done in this case, I think I never saw facts in all my experience 
 which with so much force proved the real construction of these instruments, not now at 
 the end of three centuries and a half, but then, at the moment when the rights were to 
 be enjoyed, at the moment the claim was to be made; and for three and a half centuries 
 from that time, there has never been any doubt or dispute, either on the part of the 
 Crown, as to its rights, or on the part of the grantee, as to claiming rights adverse to the 
 Crown.f Could there be a stronger fact than this, that the Duke having married whilst 
 he was Duke, the Duchess, his widow, continued after his death to be called the 
 Duchess, and to enjoy the dignity of Duchess, whilst the Duke's heir at once took upon 
 him the lower title of Earl of Crawford ? Let it be attempted to be explained as it may, 
 every successor, in his turn, has taken that, and no other title, and never set up the 
 slightest pretence to claim the Dukedom of Montrose. 
 
 My Lords, it would have required a body of evidence, and it would have required 
 an overpowering case, such as one can hardly suppose could have been produced in any 
 
 With reference to the case alluded to, in which a grant is made to Sir David Lindsay of Glenesk, 2nd January 1390, 
 for services to be paid "pro toto tempore vite sue," and to which the Claimant — not having noticed the attendant 
 expression " pro horaagio . . impendendo," and this omission (very natural under the circumstances) being pressed against him by 
 the Committee — was unable, in the hurry of the moment, to do justice (°) — he would now remark that this case was perfectly 
 in point for the purpose for which it was adduced — the expression objected to in no wise interfering with the argument. 
 The grant in question is to Sir David Lindsay, without mention of heirs, for homage to be rendered to the King (a mere 
 ordinary form at the period) "pro toto tempore vite sue,'' and with the limitation to heirs only in the tenendas clause. If 
 therefore tliat grant liad heen abridged into the Great Seal Secord on the principle on which the Montrose ' Litera ' has heen 
 abridged, that is to say, by omitting the whole tenendas clause (which exclusively contains the limitation), and representing 
 that clause merely by an " etc.,'' then, supposing the original and its warrant to have heen lost, the grant in question would 
 now most certainly he held and esteemed to have been a mere life-rent grant "pro toto tempore vite sue," and not hereditary : — 
 The inference from which, in illustration of the Claimant's argument, is sufficiently obvious. The charter in question was 
 adduced as evidence {Minutes, p. 140), and is printed, with an abridgment on the principle on which the Litera is abridged, 
 and other illustrative documents, in the Appendix, infra, pp. 539 sqq. 
 
 The Claimant will conclude by remarking, what must have struck the reader all along, that it is impossible that this 
 argument could have been properly and adequately appreciated unless after due consideration of the evidence in pkint ; 
 whereas the proceedings were hurried to a close, the hour for decision was fixed, and the decision given, before a single 
 syllable of the evidence had been printed — a proceeding unparalleled in peerage claims. 
 
 * Not " in an ancient grant," an e7itire document — but in tlie Memorandum, the hasty, curtailed, and interpolated 
 Memorandum, of an ancient grant. Much prejudice has accrued to the Claimant from the Noble and Learned Lord's adoption of 
 this inveterate error. — With regard to contemporaneous exposition, the Claimant has never shrunk from it when fuUy given 
 and duly interpreted hy relevant Peerage Law ; and he appeals here to the contemporaneous evidence of the Act 18th September 
 1489, the warrant for the abridged Litera, as ordaining what the Litera does not carry out, and prescribing what the Noble 
 and Learned Lord would be bound to import into the Litera (in obedience to that warrant) even were it not the hasty, 
 slovenly, unbusiness-like, and suspicious nondescript that it actually is. 
 
 t The honour only, the Dukedom, as conferred by the original patent, is here in question — the estates reverted to the 
 Crown, as contended, either in virtue of the Act 1493— entirely disregarded by Lord St. Leonards and the Lord Chancellor, 
 but which distinctly and unquestionably strikes at them — or of the oppression rife at the period ; and that the honour has been 
 dormant ever since has been accounted for by the fratricide of John Earl of Crawford, the peculiar circumstances which dis- 
 qualified his successors from claiming, and the opposition invariably made by the Scottish nobility to the introduction of the 
 title of Duke among them. While, even if absolutely uMaccounted for (as in the Devon case), tJie Claimant's rights, granting 
 that they exist, are as fresh now, by Peerage Law, as if they had been asserted three hundred and fifty years ago. In reply to 
 
 (°) The Claimant would refer the reader to the Keport of the discussion, XTfra, pp. 295 sqq. 
 
 2 Z 2 
 
( 358 ) 
 
 case, in order to countervail the strong preponderating circumstances in favour of the 
 legal construction which I have, in common with my Noble and Learned Friend^ taken 
 the liberty of submitting to your Lordships. In an early stage of the case I asked the 
 Learned Counsel what had become of the estates ? because, let it be as it may as regards 
 the dignity, and supposing, with respect to that, there had been a difficulty, there could 
 be no difficulty as to the estates. By the first grant the estates were granted to the Duke 
 in fee-simple, as we should call it ;* at the time of the Regrant the Crown had seized 
 them,f — that your Lordships know, because the Crown, in regranting the very same 
 subjects, stated them then to belong to the Crown, which I have shewn your Lordships 
 could not have been the case if that former grant had not been annulled by the Act 
 Rescissory. Then what became of the estates ? J They were regranted; as I apprehend, 
 regranted for life, and for life only.§ What followed ? The Duke's successors never put 
 forward the slightest claim to the estates ; the Crown took possession of the estates, and 
 disposed adversely of them, and they have been enjoyed for three centuries and a half by 
 the grantees of the Crown, adversely both to the original grant, and adversely also to the 
 Regrant upon which so much reliance has been placed. || Yet these estates were intended 
 to form a regality for the Duke, both in 1488 and in 1489 — to a limited extent. How, 
 then, is it possible, with such facts before you, to have any possible doubt as to the con- 
 struction which we now advise your Lordships to put upon these acts and grants; a 
 construction which all men at all times have adopted from the very first moment down 
 to that at which I am now addressing your Lordships ?^ 
 
 My Lords, certain Acts of Parliament were relied upon as destroying the opera- 
 Lord St. Leonards' assumption that " rights" to a peerage are " adverse to the Crown," the Claimant would refer to the 
 observations in the Address, supra, p. xii. 
 
 * No, — to the Duke and his heirs after him. 
 
 t An important admission, the Noble and Learned Lord holding the views he does. But the Claimant doubts whether 
 it was intentional, and will not push his vantage. 
 
 X The Claimant has answered, — tlie Act of 1493, legally recalling the grants made hy James III. within tlie proscribed 
 period, necessarily comprising the lands of Kinclevin and customs of Montrose, hut without mention of dignities, and 
 WITHOUT QUALIFICATION, would account per sc for their resumption. Vide supra, pp. cxiv, cxxiv. 
 
 <5 IF, as proved by the Claimant, the Duke was in the enjoyment of the estates at the moment of the Regrant, and if, 
 as admitted, there was no resignation, they could not have been regranted otherwise tlian in accordance with the original 
 grant, — tliat is, otiierwise than hereditarily — or if otherwise, such grant was irapoterit in law. 
 
 11 The Claimant relied upon the Regrant 18th September 1489 — not, as he has expressly protested, as a basis of the 
 present claim, but only and exclusively as affording James IV.'s testimony to the effect that the Act Rescissory could not 
 have annihilated the Dukedom as created by the Patent 18th May 1488. The Claimant has not claimed hitherto under the 
 Regrant. The resumption of the estates by the Crown, if not through the Act 1493, must, the Claimant contends, 
 have been an act of that injustice and tyranny which the Crown and the Committee admit to have been rife at the period. 
 And it must always be held in remembrance that resumption of the estates could not affect the honour, the Dukedom, as 
 by the Bothwell and many other precedents — all that is material here. — The Claimant would further observe, that in 
 
 representing the resumption of the estates as "adverse . .to the Regrant" as relied upon by the Claimant that is as 
 
 adverse to the Act of James IV., with advice of Parliament, 18th September 1489, which includes the estates undoubtedly, 
 but only through implied reference to the original patent (») — the Noble and Learned Lord, by a happy but unintentional incon- 
 sistency, adopts the Claimant's view of the matter, viz. that the Regrant was a mere recognition, reissue, and virtual con- 
 firmation of the original patent; and moreover acknowledges that the Act 18th September, the warrant of the Litera 
 prescribed an hereditary grant— although he makes the Litera (curtailed as it is) the dominant instrument. The Claimant 
 cannot but congratulate himself on possessing the Noble and Learned Lord as an auxiliary, even although it be by an over- 
 sight and for a moment only — the lapsus being immediately, as will be seen, retracted. 
 
 U This is no argument — while contradicted by the facts of enjoyment and recognition, on the part of the Duke 
 repeatedly alluded to, and by the proofs given that the Act Rescissory did not take effect in other instances. It may be again 
 remarked here, that neither the Noble and Learned Lord nor the Lord Chancellor take any notice of the instances adduced bv 
 the Crown as illustrating the effect of the Act Rescissory — all of which are either antecedent to that Act or subsequent to the unex- 
 ceptionable Act of 1493, and which thus afford the strongest support to the Claimant's argument. Vide supra pp. xxxiii xxxiv. 
 
 (") The Litera 19th September conveys the estates. But the patent or ' carta ' is referred to in the Memorandum of the Litera, 
 
 Act 18th September, which was the warrant for the Litera, does in the words substituted for the tcnendas clause, viz., " etc. cum 
 
 not mentioQ the estates,— it merely grants the Dukedom de novo " omnibus clausulis secundum formam carie,"— that is ' with all 
 
 to the original patentee. Therefore the authority for the convey- ' the clauses according to the form and tenor,' i. e. according to 
 
 ance of the estates in the Litera must have been the original the limitation— not of the Litera itself (which would reveal 
 
 patent, as referred to by the intermediate Act, or warrant, 18th nothing), but of another document, accessible to inquiry through 
 
 September. And in conformity with this conclusion, the original the same Register, viz. the original Patent. 
 
( 359 ) 
 
 tion, and as in fact repealing the Act of 1488* I am clearly of opinion, after the best 
 attention I could give to those Acts, that they do not any of them touch the question, 
 but that they rather corroborate the operation of the Act of 1488. The first of these 
 Acts, which requires the parties to bring in their documents, j is perfectly conclusive, as it 
 appears to me ; my Noble and Learned Friend has called your Lordships' attention to 
 what the recital is there, which shews clearly that the Parliament treated the Act of 
 1488 as an Act of Parliament which had annulled and destroyed all the grants. That 
 Act of Parliament did not refer to dignities, but it required the persons to whom the 
 property had been granted to bring in their deeds, speaking of the grants as pretended 
 grants, as they were spoken of in several instances.^ And the reason of that was, because 
 they chose to treat James III. as having ceased to reign on the 2nd of February.§ There- 
 fore, of course, those grants were not allowed to continue as real grants, and were not 
 treated as real grants by the Monarch on the throne. || The result was, that no doubt 
 they were struck at. That Act of Parliament in truth aided and assisted the former 
 Act of Parliament. So far from being adverse to the Act of 1488, it was actually in aid, 
 in confirmation, in corroboration, and in extension of the powers of that very Act of 
 Parliament.^ It did not relate to dignities. Why not ? There were but two dignities 
 which had been granted ; one the Dukedom of Montrose, which we are now discussing, 
 and the other the Earldom of Glencairn. Both the noble persons to whom those great 
 dignities had been granted had acquiesced in the Act of 1488. The Duke had acquiesced 
 by accepting the Regrant, limiting to him for life the same dignity. How inconsistent 
 it would be to attempt to set up the former grant in fee when the latter grant was 
 accepted by the same man from the successor of the King who granted the first dignity, 
 limited only for life ! The Earl of Glencairn had not claimed, he died on the field of 
 battle with his master ; and his son had not claimed the dignity, and therefore there was 
 no claimant.** It is not clear that there were any Patents to bring in in these cases, but 
 
 * The Acts 1489-90, 1493, and 1503-4, for which vide i-nfra, pp. 381, 382, 387. 
 
 f That is, the Supplemental Act, 15th February 1489-90, which, in referring to the Act Rescissory and ordaining that 
 the charters of James III. should be brought in and destroyed, markedly, and twice, omits dignities. 
 
 X The Claimant has already observed that the character of the Act Rescissory is not to be gathered from a mere 
 incidental and general reference to it in a posterior Act, which cannot be expected to contain attendant qualifications, — it 
 'must stand or fall hy its own intrinsic words and merits. Moreover, the very passing of this Supplemental Act proves that 
 the original one had proved inoperative ; and the very fact tliat in every instance in which the original duzrters can he traced 
 (as in the case of the CoUace and Somyr charters, the Brechin charter, the Gordon of Lochinvar charter, the Glencairn 
 patent, &c.), they are found to he still in the custody of the representatives oftlie respective grantees, entire, uncancelled, and 
 carefully preserved in tlue very face of the Supplemental Act, ordering them to he hrought in for the purpose of cancellation and 
 destruction — this simple fact, by itself alone, proves that neither the one Act nor. the other took effect in those instances, aiid 
 consequently that the Montrose Patent was not cut down hy the Act Rescissory. The Noble and Learned Lords, as already 
 remarked take no notice whatever of this important fact — although it is impossible to conceive more strict and relevant con- 
 temporaneous exposition, — as by the finding in the Norfolk case (supra, p. xvii) and otherwise. The very Lochinvar grant 
 was confirmed by James IV. during the interval hetween the Act Rescissory and the Supplemental Act (supra, p. xxvii) — 
 additionally proving the contempt and disregard into which the Act Rescissory fell from the moment of its birth. 
 
 § Distinctly incorrect, as shewn supra, p. iv. 
 
 II The Claimant has shewn that they were treated as real grants— some of them being conj-ibmed in regular course, 
 not as requiring confirmation through any flaw or obstacle, but like any other valid charters, for the purpose of registration (») — 
 while others stood firm and valid WITHOUT ANY contirmatiox at ail ; the Crov/n foregoing, alike in the one class of instances 
 and in the other, Eoyal revenues and privileges, which of course lessened its pecuniary resources and its ieudal power. 
 
 K It attempted to enforce by a distinct enactment the annulment which the Act Rescissory had attempted but failed to 
 effect. The grantees struck at by the Act Rescissory had kept possession of their grants — this new Act endeavoured to 
 attain the desired object by commanding the grantees to bring in their charters — this was the extent of the "confirmation," 
 " corroboration," and "extension" of the powers of the Act Rescissory worked by the new enactment— but unfortunately 
 (so far as can be traced) not one of the grantees oheyed — and at last hoth Acts were abandoned as impotent and useless, and the 
 legislature passed a third Act in 1493, rescinding the grants over again ex tunc, in hopes of a more satisfactory result— 
 which however, even then it only partially obtained. Both the Act 15th Feb. 1489-90 and the Act 26th June 1493 
 pointedly omit dignities — thus witnessing either to the illegality or the futility of the attempt to strike at them in the Act 
 Ilescissory. 
 
 ** A little further back the Noble and Learned Lord states that the Duke "insisted as much as any man could do 
 
 (*) This has been amply illustrated supra, p. xxvi sqq. 
 
( 360 ) 
 
 if there had been they were clearly struck at, and it was unnecessary to refer particularly 
 to them ;* that Act of Parliament therefore was confined to grants, lands, and heritages, 
 and so on, and did not refer to dignities. 
 
 And, my Lords, when you come to look at the other Acts of Parliament, they 
 really have no bearing upon the case. The Act of Parliament of 1 493 is for further 
 annulling grants and referring to resignations, and it evidently does not at all touch the 
 question.f Then the Act of 1503 has been relied upon ; but if you look at that Act 
 
 " upon his title as Duke." Here he is represented as "acquiescing" in the Act Rescissory, and "accepting" a llegrant 
 for life. If so, his tenacity of purpose must have strangely failed him. It may be as plausibly maintained, and with infinitely 
 greater probability, that it was — if a life-rent grant only — thrust upon him against his will. And, after all, what would it 
 amount to ? The Duhe's " acquiescence " in the Act Rescissory could not give it validity and force if inherently deficient in 
 those attributes ; nor could the Duke's " acceptance " of a life-rent grant impair his right (or that of his heirs — always to be 
 kept in view, as by the Norfolk judgment, supra, p. xvii) under the original grant — that right not heing affected by the Act, and 
 not having been resigned. Her Majesty, for example, is perfectly competent to create the Claimant Earl of Crawford for 
 life — the Earldom so created would expire with him — but his son would not the less succeed and serve her Majesty as Earl of 
 Crawford in right of the original creation. The Duke asserted and maintained his right to the Dukedom and the estates, 
 luithout a single break, from the date of the original grant till his death in 1495 ; and lie might, and doubtless did all along, 
 ascribe his Ducal right, his sitting in Parliament, &c. to tlie first or original patent, after as well as before the passing of 
 the second. Under either the one or the other patent he was the premier peer and first Scottish subject, not of the Royal 
 family. The Claimant submits therefore, that the supposed "acquiescence" and "acceptance" on the part of the Duke 
 cannot account for the pointed and evidently intentional omission of the cardinal words " creacion of new digniteis" in 
 the Supplemental Act 1489-90 — as well as in the Act (presently to be adverted to by the Noble and Learned Lord) of 
 June 1493. It is evident, indeed, that if acquiescence could give effect to the Act Rescissory, non-acquiescence could defeat it. 
 With respect to the Earldom of Glencairn, the non-claim on the part of the Glencairn heirs, within two years only 
 after the Act Rescissory, could not have given validity to the Act, nor could it have barred future claim to or assumption of 
 the dignity. The legal advisers of the Crown and the Parliament must have known this ; and it is impossible therefore to 
 suppose that they would have omitted "dignities" while endeavouring to prop up and enforce the Act Rescissory — even if 
 inspired by the considerate desire, attributed to them by the Attorney General, of sparing the " feelings " of the two noblemen 
 struck at. If anything, indeed, could illustrate the very modern medium through which this feudal case has been viewed, whether 
 by the representatives of the Stewarts, Nisbets, and Dalrymples of Scotland, or of the Cokes, Crewes, and Seldens of England, 
 it would be the constant and familiar use and application of ideas and terms belonging to the nineteenth century to persons and 
 things appertaining to the fifteenth. The feudal fortress of the haughty Hepburn Earl of Bothwell has thus been frittered 
 down into his " place " and " seat " in the country (") — we have heard of the Glencairn heirs, those bold and bearded barons, who 
 a few years afterwards invaded the Montgomeries, and burnt their castle, their patent of Earldom, and all their muniments, Q') 
 as calling themselves Lords Kilmaurs " in society "(°) — when leaving their cards, as the Claimant presumes, on the gallant 
 Grahams in the morning, or announced at dinner at the " J*oi«a(/e?- Duchess" of Montrose's ('') in the evening: — But, most 
 wonderful of ali, it has been suggested, with reference to an Act of Parliament drawn up to enforce a prior Act intended to 
 annul grants of a particular description, including patents of peerage, and the grantees of those peerages having, as stated, 
 " acquiesced" in that Act, in the one case by accepting a Regrant not proceeding on a resignation, and in the other by not 
 claiming — it has been suggested, the Claimant repeats, that the framers of that Act, having planted their feet on the necks 
 of those grantees, omitted the words annulling their dignities out of a desire to spare their " feelings !"(") The Claimant is 
 only astonished that he has not heard of the " nerves " of the King and his satellites at Hailes Castle having been a little 
 shaken at the sight of the Duke's seal, twice "as big as a crown-piece,'' appended to his Procuratory ; which shock might 
 unquestionably have accounted — more plausibly perhaps than other explanations which have been offered — for the unlucky 
 fact that, in that unguarded moment, they let the cat of recognition out of the bag of reserve and repudiation — no longer to 
 be caught and replaced there, but only to be hunted down and killed without benefit of clergy or law — whether the law of 
 sport or the law of peerages and empires. The Claimant may be excused these slight criticisms. He does not see why those 
 only should laugh who win. 
 
 * The Claimant does not understand this. The Glencairn patent exists still — it was received in evidence in 1797 ; 
 it was in the House ready for production, if required, during the recent discussion, — and the Montrose patent is on record, 
 and is admitted by the Noble and Learned Lord and by the Committee to have duly passed the Great Seal. 
 
 t The Act 1493 annuls ex tunc the same class of grants by James III. (including such as proceeded on resignations) 
 as were attempted to be struck at by the Act Rescissory, but without any reference to the Act Sescissory or the Supplemental 
 Act of 1489-90, just as if those Acts had never existed ; and, like the Supplemental Act, it also omits dignities. The question 
 is inevitable— Wi?/, if the Act Sescissory and tlie Supplemental Act Toad been valid and effective, as contended— why have 
 recourse to this later Act f— It dhtinctly shews, to the Claimant's apprehension, 1. That the Act Rescissory had been null 
 and void ab initio ; and 2. That in re-enacting that Act, so far as its provisions wore legal or justifiable, the legislature did 
 
 KOX consider dignities as falling within its legal scope or as liable to be struck at in the new enactment, while this new 
 
 statute actually and legally resumes the estates granted with the Montrose dignity, although the enforcement of that 
 resumption might have been delayed, through favour or fear, till the Duke's death. All therefore is in accordance here vi'ith the 
 Claimant's argument. And if it be held that there be any doubt, either as regards this or the Supplemental Statute— (and the 
 Claimant cannot but regard the desperate expedient of resorting to "acquiescence" and "non-claim" as sufficient to account 
 
 C) Supra, pp. 324, 325. .when he described Lord Glencairn as having been prosecuted 
 
 (i-) As proved by documents adduced in the Glencairn and for "an assault on Lord Eglinton," supra, p. 242. 
 
 Eglinton process 1G37-48. Vide infra, p. 453. This raid (°) Supra, p. 334. (d) Supra, p. 201. 
 
 would appear to have been in the mind of the Lord Advocate, f) Si'pra, p. 219. 
 
( 361 ) 
 
 you will see that it is wholly dealing with the affairs of his own soul and of his church. 
 It begins by dissolving " the annexation of the Kirk of Kirkandrews from the Lord of 
 " Galway and his Crown to the Priory of Whitehorn." It then revokes " all donations, 
 " gifts, Acts, Statutes of Parliament, or General Council, and all other things done by 
 " him " — that is, the King — " in times bygone, either hurting his Soul, his Crown, or 
 " Holy Kirk." It is quite clear that to bring any former Act within the operation of 
 these words, you must shew that the Act had one of these effects. Then it ratifies in the 
 third part " the foundation and infeftments made to the college of Stirling, called his 
 " Chapel Eoyal, both of kirks, prebends, canonries, and lands," &c. It is clear, there- 
 fore, that the Act of Parliament, as it is in the Statute Book, wholly relates to the 
 church and its possessions, and that it is to be confined to those matters, and has not the 
 slightest bearing upon the Act of 1488.* 
 
 Then, my Lords, the operation of the Act of 1488 being thus proved by contem- 
 poraneous usage, and being what I have stated to your Lordships, I apprehend there can 
 be no difficulty in point of law in this case.f If it remained here, without going further 
 into the case, I should consider that it admitted of no doubt. But two authorities have 
 
 for the omission of " dignities" in the Act Supplemental 1489-90, as well as the extreme precipitancy with which the Noble 
 and Learned Lord lets the Act of 1493 drop the moment after taking it up, as suggestive of a certain doubt and discomfort 
 felt by the Noble and Learned Lord in handling them) — the benefit of that doubt ought, the Claimant submits, to have been 
 given in his favour. 
 
 * The Noble and Learned Lord represents the three Acts referred to hy the Claimant, of which the second exclusively 
 is the Act Revocatory, as merely thkee chapters or clauses of one statute ; and, having assumed this unity and 
 identity (which has been reserved to his own ingenuity to discover, and for which, the Claimant submits, there is no warrant 
 whatever), he interprets the hroad and sweeping rescission of ^' all donations, gifts. Acts, Statutes of Parliament or General 
 " Council, and other things done" by James IV. " in times bygone, either hurting his Soul, his Crown, or Holy Kirh,^' as a 
 rescission of "all donations, gifts. Acts, Statutes of Parliament or General Council, and other things done by him in times 
 " bygone, either hurting his Soul, his Crown, or" — not tlw Holy CatJwlic Church, which, by the mouth of Pope Innocent VIII., 
 had visited the King with censure, and his partisans, the rebels against his father, with excommunication, but—" his church " 
 — HIS individual church, his private chapel, the Chapel Royal op Stirling ! If this were all, if the possessions ot the 
 Chapel Royal were alone in view (and the Noble and Learned Lord gives them almost exclusive weight in his allusions to 
 this Act), the Act was indeed, in the language of the Lord Chancellor, " a sort of flourish of trumpets, that meant nothing 
 " at all." But, seriously, the Claimant would ask, what were the "Acts," " Statutes," and " other things" too numerous for 
 specification, which James IV. had directed against that institution, vMch had been the clierished object of his regard and 
 patronage ever since his accession ? He submits that the Act Revocatory, disentangled from its two sister enactments, from 
 which it is quite distinct (each of the three in question beginning in the usual style of " The quhilk day Our Soverane Lord, 
 " with autorite of Parliament," and thus being far more distinct and explicit than e.g. the Act Rescissory), (") has broad and general 
 reference to the many questionable and unjust actions of James IV. 's past life— actions which had deeply offended "Holy 
 " Church,'' and of which the statutory enactments of the Parliament which met in his name in October 1488, and confiscated 
 the grants of James III. to his loyal subjects, were, by the testimony of later Parliaments, of James himself, and of history, 
 the most disgraceful, and which must be presumed to have been in view when this Revocatory Act of 1503-4 was passed, 
 and to have been rescinded thereby. — Vide supra, pp. cxxvii sqq. 
 
 + Contemporaneous usage is a good test, but the Noble and Learned Lord, like the Lord Chancellor, Jtas not gone 
 fidly into it. He has not touched on the utter silence observed as to the Act Rescissory subsequently to 1489, so unpre- 
 cedented in the case of Acts that did take effect ; nor on the numerous instances in which the Claimant has shewn that the 
 grants of James III. stood, unaffected by the Act. Nor does he allude to the weighty argument from the enjoyment of the 
 Lordship of Kinclevin by David Duke of Montrose during the interval between the Act Rescissory and the Regrant— as to 
 which even the Lord Chancellor admits that the Duke actually received the rents and that there existed " doubts and 
 "disputes" as to his right to do so, which " doubts and disputes " could only have arisen from an uncertainty as to the legal 
 efficacy and bearing of the Act Rescissory, and which he conceives to have been solved by a compromise — admissions which 
 ought to have been conclusive in the Claimant's favour, on the strict interpretation of penal statutes. The recognition 
 of the Glencairn Earldom in 1515-6 and 1516-7, in the face of the Act Rescissory, is equally in point as contemporaneous 
 evidence, and equally passed over by the Noble and Learned Lord. As already observed, the assertion of the Lord 
 Chancellor and of the Noble and Learned Lord, that the Act Rescissory per se cut down all the grants of James III. without 
 exception, by the mere force of its passing, without judicial process, can only be justified by proof that not one of those grants 
 is found to have survived the Act. But this proof is not forthcoming. On the contrary, not one grant lias been shewn to Jiave 
 been affected by the Act Rescissory — while many grants are shevm to have survived it. 
 
 C) If any further proof were needed of the independence of been inserted,— in consequence of which the Act, so far as 
 
 the Act Kevocatory, as distinguished from the two enactments written, was expunged and afterwards reinserted, but in a still 
 
 which accompany it, that proof might be found in the fact that more full and authoritative style— illustrating the great im- 
 
 so impatient were the King and Parliament— or at least the portance attached to it. The deleted words are as follows :— 
 
 officials who drew up the record of the Parliament— to give " The quhilk day our Soverane Lorde revokit all donationis, 
 
 verbal expression and utterance to the Act, that they com- " ^ftis, actis, statutis, or ony uther thingis done be him and 
 
 menced inserting it too soore— after the catalogue of the peers " his autorite"— where it abruptly breaks off and ends.—Acte, 
 
 present had been inscribed, but before that of the " Lords of the 
 " Articles" and the " Lords for discussing of dooms" had 
 
 vol, ii. p. 239. And vide the Appendix, infra, p. 387. 
 
( 362 ) 
 
 been relied upon — the case of the Duke of Norfolk in this country, and that of the Earl 
 of Glencairn in Scotland — and your Lordships have had a most unusual difficulty thrown 
 upon you. You have really been for days trying the Glencairn Peerage, which was 
 decided in this House in 1797. You have been trying the Glencairn Peerage day after 
 day, travelling through a great mass of evidence in order to see who was entitled to the 
 Glencairn Peerage, and that not for the purpose of its having the slightest effect upon 
 that Peerage, but in order to see how far the proceedings in that case can be brought 
 forward as a precedent in this.* Now I think both of these precedents are easily 
 disposed of. 
 
 As regards the case of the Duke of Norfolk, your Lordships have only to refer 
 to the Rolls of Parliament ; you will see there, in the third volume, that the creations in 
 question were not by Parliament, but they are, as clearly as words can make them, by 
 the King being in Parliament. In the third volume, page 355, your Lordships will see 
 this entry : — " On the Feast of St. Michael, in the same Parliament, the King announced 
 " openly, and shewed his Parliament that he wished f that certain honorable persons 
 " of his kingdom should be honored and enhanced, and changed to greater honor and 
 " estate ; that is to say, some should be made Counts," and so on. Then it goes on 
 and states what they are to have, — " On which the King, sitting in Parliament, crowned," 
 and so on, "holding in his hand the royal sceptre, made and created his cousin," and 
 so on. He makes the creation — there is not a single word there of Parliament assisting 
 in the creation. It was not an unusual thing that the King did in Parliament declare 
 his intention, and did in Parliament create those Peerages. The distinction therefore 
 was this — they were created in Parliament, but they were not created by Parliament. 
 That, I think, is a clear answer to the Duke of Norfolk's case.J 
 
 Now, as regards the case of the Earl of Glencairn, your Lordships will find it 
 exactly tallying in all its circumstances with the Dukedom of Montrose. It is a sin- 
 gular thing, and it only shews the truth of the transaction, that it exactly follows the 
 same fate, barring the different circumstances which were occasioned by the different 
 acts which took place.§ The Earl of Glencairn died on the field of battle ; he was the 
 
 * The Montrose and Glencairn cases being identical in essentials and involving the effect oi" the Act Rescissory in 
 1488, it was imperative on the Claimant to go into the Glencairn case — more especially as the Noble Duke whose case, cause, 
 and counsel had been adopted by the Crown, had laid stress upon that case as the chief difficulty the Claimant had to get 
 over. It is to be observed that in the Norfolk claim in 1425, the descent of the other peerages (of Worcester, West- 
 moreland, &c.) granted in pari casu with the Dukedom of Norfolk, formed an element of consideration, and the fact of their 
 survival was founded upon as follows, as a ratio of decision : — " Pro eo quod quamplures alii, quorum quidam in Oomites . . 
 " per prefatum Eegem Sicardum . . modo consimili creati fuerunt, suis stilis, titulis, nominibus, et lionorihus ex tunc 
 " continue usi aunt et gavisi, . . dicta generali revocatione et adnullatione Parliamenti . . non ohstante." Sijpra, p. xvii. — 
 The Claimant was therefore fully justified by usage, and indeed compelled under the peculiar circumstances, to furnish the 
 House with information on this important precedent. The Claimant has therefore " thrown" no such " unusual difficulty" 
 upon the Committee as that which the Noble and Learned Lord complains of. 
 
 t The original word, as already stated in reference to the Lord Chancellor's similar translation, is " voet " — " wills,^' — 
 supra, p. 328. 
 
 J The passage in the Rolls of Parliament, referred to by the Noble and Learned Lord, is only descriptive of the inaugu- 
 ration of the Duke of Norfolk and other peers in Parliament upon their patents. Vide infra, p. 389. But the creations 
 effected by those patents, and especially that of the Dukedomof Norfolk, being by the King with express assent of Parliament, 
 were Acts or Parliament and bt Parliament, that is, possessed the force of Statutes, by the decision in the Cornwall or Prince's 
 Case, reported by Sir Edward Coke, as shewn by the Claimant in his Supplemental Case, pp. 171 sqq. and sripra, pp. xviii sqq. 
 and Appendix, infra, pp. 393 sqq. Lord St. Leonards entirely passes over this all-impm-tant fact. The Claimant would refer 
 here to his observations on the corresponding passage of the Lord Chancellor's speech, supra, p. 329. The Norfolk patent, 
 having thus the subsidiary character of an Act of Parliament, a Statute, was struck at by the Act Rescissory of 1 Henry IV. — 
 But the Claimant must remark that the Noble a7id Learned Lord entirely passes over the rationes in the Norfolk judgment (vihich 
 would be equally binding even if the patent were not a statute, and to which the Claimant attaches the greatest importance), 
 viz., that a patent of peerage cannot be affected by a general Revocatory Act without SPECIAL mention of the grantee or of his 
 heirs either within the Act itself or in some contemporary though distinct Act of Parliament ; and also that when other peerages 
 created in pari casu have suhvited in the face of such Eevocatory Act, the same survival must be presumed with regard to 
 the peerage under discussion. The Claimant founds throughout on these rafiWies.— For the documents in the Norfolk case 
 vide infra, pp. 388 sqq. 
 
 § If so, why blame the Claimant for adducing it ? 
 
( 363 ) 
 
 only other person who had a grant of a dignity which was struck at by the Act of 
 1488. His son, Lord Kilmaurs (which he really was), sat in that very Parliament of 
 1488, and he sat by the title of Lord Kilmaurs.* Can any man persuade me that, if he 
 was entitled to the Earldom of Glencairn, he would not have taken that title ?t He 
 must have been perfectly persuaded at that time, and everybody who advised him must 
 have known, that he had no right to it. Why did he not take the title if it properly 
 belonged to him— if it had just descended to him ? But he sat as Lord Kilmaurs, he 
 executed many deeds, he did many acts, and he never aflTected to assume the title of 
 Earl of Glencairn. That, my Lords, is quite clear. 
 
 Then comes the sitting of 1505, and this House, I may say, decided that that 
 sitting was not under the grant of 1488. The House has, in a former case upon that 
 very dignity, actually and positively decided that,— and it would have been impossible 
 to have decided it otherwise. J How does it stand in 1797? You find the Earl of 
 Glencairn sitting in 1505, and you have to ascertain how these sittings took place. In 
 order to do what ? To draw a presumption as to what must have been the limitation 
 in a Patent which cannot be found.§ You would have wanted no such presumption to 
 be drawn if you had had the actual grant of 1488 before you, which granted the dignity 
 to the man and to his heirs general. || That would at once have given Sir Adam Fer- 
 gusson a right to the dignity, if it could have been substantiated.^ 
 
 My Lords, I will just for a moment go on with the acts of these parties. Lord 
 Kilmaurs continued to keep his title till 1505, and in 1505 he sat as Earl of Glencairn. 
 Now we have historically some circumstances which occurred at this period, and we 
 have a right here to look at history. We find in Leland a most elaborate account of 
 
 * This has heen inferred from the insertion of his name, like that of the ' Earl of Crawford,' in a Commission 
 appointed on the last day of the Parliament of October 1488. But, as shewn elsewhere with reference to the Dulce, the 
 name of Lord Kilmaurs does not appear in the Roll or list of the peers and commoners who composed the Parliament of 
 October, inscribed in the front of the statutes then passed. The Claimant would refer to his observations on this point, 
 supra, p. xxxvi. The Roll of the Parliament and the Commission in question are printed in the Appendix, infra, p. 526. 
 
 t Then how does the Noble and Learned Lord account for the identical non-assumption (by no means then, or subse- 
 quently, unprecedented) in the Norfolk case — which, taken with Dr. Lingard's remarks as given supra, p. 329, at once solve 
 the difficulty ? 
 
 X That is, on the Glencairn claim in 1797. Even if the House did so decide (or rather report such an '' opinion " to 
 the Sovereign) then, it was in ignorance that the point in question had been already and finally decided by the Court of 
 Session (acting through inherent right as well as on reference from the Crown) in 1648 — a decision binding on the House now 
 (as by the dicta of Lord Chancellor Brougham in the Waterford claim in 1832, independently of all other argument and prin- 
 ciple), and which decision the Committee were fully aware of in 1853, as by the admission of the Lord Chancellor and the 
 affii-mation of the Chairman, Lord Redesdale {supra, pp. Ixi, Ixii). But, in point of fact, there is no such finding as that sup- 
 posed by Lord St. Leonards in the Resolution, the words of which are quite general, as may be seen supra, p. Ixv. Lord 
 Loughborough, in his Speech in moving that Resolution, undoubtedly took it for granted that the Act Rescissory had taken 
 efifect ; but there was no actual decision on the point — unless indeed on the supposition that the Noble and Learned Lord's 
 Speech is to be considered as part of the Resolution. 
 
 § There was no idea in 1797 of a patent which could not "be found " — no idea of any other patent than that of 1488. 
 Lord Loughborough, in conformity to the views and decision in the Spynie claim in 1785, (°) presumed that the inauguration 
 by ' belting' described by the herald Young was the sole creation, and that that ceremony, by itself alone, could create an 
 Earldom ! Vide supra, pp. Ixiii, Ixiv. 
 
 11 No, — to the patentee " et heredibus suis " — precisely the same limitation as that in the Montrose patent. Vide 
 infra, p. 407. The Noble and Learned Lord assumes here that " heirs " imply (of course) heirs general, including females. 
 
 ^ This does not follow, 1. Because heirs male descended from the body of Earl Alexander, the grantee, and from 
 his grandson Earl Cuthbert, (who were then and are still existing,) would have had a prior right ; 2. Because, by Scottish 
 law, as pleaded in his own case by the present Claimant, the word " heirs " is flexible and its interpretation governed by 
 antecedent and collateral investitures— on which investitures Lord Loughborough himself founds in his Speech as one of the 
 grounds of his opinion that the Earldom was limited to heirs male,— And 3. Because on the death of Alexander Earl of Glen- 
 cairn in 1670, the Earldom actually ^assec^ over his daughter, the heir of line, to his younger brother, the heir male collateral 
 
 the patent 1488, limited to " heredibus," being then admittedly the regula regulans in the matter by the decision of 1648. 
 
 Lord St. Leonards' opinion, as expressed in the text, may probably resuscitate more than one peerage claim, which had sunk into 
 dormancy owing to the prevalence of those sounder Scottish views which the Noble and Learned Lord has now departed from. 
 
 (=•) See the notes of Lord Mansfield's Speech on the Spynie claim in the Appendix, infra, p, 568. 
 
 3 A 
 
( 364 ) 
 
 the solemnities upon the marriage.* He tells you that the King called three persons to 
 new dignities : one of them was the Earl of Montrose ; another was the Earl of Glen- 
 cairn— the former title of Lord Kilmaurs— he seems then to have been very much in 
 favour, for he was one of the parties assisting in the tournament on the Queen's mar- 
 riage ; and the other was Lord Hamilton, who was created Earl of Arran. Now, here was 
 a clear creation wanting the patents {sic). Exceptions have been taken to Lord Rosslyn's 
 opinion, delivered in this House in 1797. It is stated that there was great ignorance 
 on the part of that Noble and Learned Lord, of whom we always speak with great 
 reverence, for that he spoke of the creation of those Earldoms by " belting." Suppose he 
 did make use of that expression, he was only speaking in common parlance. The King, 
 who created by words these different dignities in the presence of all his people upon 
 this grand occasion, finished the ceremony by belting them ; f and, therefore, the Lord 
 Chancellor of the day, when this matter came before the House in 1797, said that they 
 were created " by belting ;" and antiquaries are now perfectly shocked to think that the 
 Noble Lord in 1797 should have described the creation of Earls " by belting," and they 
 say that it takes away the whole weight which otherwise would have been due to that 
 decision.| My Lords, I have read more than once or twice that Noble Lord's judgment, 
 and I think that it is perfectly right. I think he was perfectly justified in the case then 
 before him, in putting an end to that Claim. 
 
 * It is not the distinguished antiquary, Leland, the contemporary of Henry VIII., who gives the narrative in ques- 
 tion ; but an (alleged) subordinate herald, whose journal, full of inaccuracies, and under no circumstances admissible legal 
 evidence, is printed, for the first time, from an unauthenticated MS., described as " late in the possession of John Anstis, 
 " Esquire, Garter King at Arms," and (which is not known now to exist) in the second edition of Leiand's ' Collectanea,' 
 published in 1774. (°) The narrative is printed in the Appendix, infra, p. 412. 
 
 t The Inauguration of a dignity was finished, not by the belting, but bi/ the delivery of the Patent. See Selden's 
 ' Titles of Honour,' passim, and as quoted infra, p. 412. 
 
 X The Claimant meets this representation by appealing to the Report of Lord Loughborough's Speech, corrected by 
 that Noble and Learned Lord himself C") — on which Lord St. Leonards lays the greatest and most unbounded weight on every 
 other occasion, as if the actual decision or judgment of the House — and from which it appears that Lord Loughborough used 
 the expression in question, not "in common parlance," but deliberately, and in accordance with the Spynie judgment in 
 1785, to express a creation of the Earldom of Glencaim, not by a patent but hy the ceremony of " belting " alone, as performed 
 in 1503, — he never dreamt of the " patent which cannot be found," the " lost patent," here, and by the Lord Chancellor, 
 represented as being in his thoughts and words. With respect to the " antiquaries " alluded to, they are in the same 
 category with Dugdale and SeldeU' — with all the great peerage-lawyers and judges of the elder time — and with the Noble and 
 Learned Lord, Lord St. Leonards, himself — who equally recognises the sine-gud-nonsh\p of a patent, and condemns Lord 
 Loughborough by his apology for expressions which, the Claimant submits, cannot be explained away. In a word, no 
 pjeerage (higher at least than that of Barmi) can be created without a patent — there is no other Olencaim patent but that of 
 1488 — patents were granted to tlie Earls of Arran OAid Montrose in 1503-4, and those patents are registered in the Oreat Seal 
 Record, but none appears therein to Olencaim — none such exists in the Olencaim charter-chest, or has ever been heard of — 
 therefore the inauguration of 1503 tooh place {if Young'' s evidence of the fact be admissible), not on a " lost patent" of that 
 year, but on the original Olencaim patent of 1488. For Lord Redesdale's observation on this point, vide supra, p. xxxix. 
 
 The error respecting belting is however only one among a host in Lord Loughborough's Speech, as the Claimant has 
 shewn supira, pp. Ixiii sqq., and among which the assertions that the reign of James IV. was dated, not from his father's death 
 but from the 2nd Feb. 1487-8 (adopted by Lord St. Leonards), and that the Decreet of the Court of Session in 1648 is not 
 founded upon the Glencaim patent of 1488 (the inaccuracy of which is admitted by the Lord Chancellor), are the most grave. 
 Except on these points, neither the Grown, the Lord Chancellor, nor Lord St. Leonards have ventured to defend or excuse 
 Lord Loughborough's Speech, save in general terms, — and yet they insist that a decision based upon such a quicksand of 
 fallacies and misrepresentations is binding — the pjoint in question moreover having been already decided the opposite 
 way — finally and without appeal to lying or Parliament — and irreversibly so far as the House of Lords was and is con- 
 cerned — m 1648 ! The merits of the incompetent decision of 1797 are thus, in fact, legally, matter of indifference. 
 
 The Claimant will only subjoin, in illustration of the " great reverence " with which Lord Loughborough is " always" 
 spoken of by Lord St. Leonards' Noble and Learned brethren in the House of Lords, the following character of him by not 
 the least distinguished of their number : — " I must likewise censure him " (Lord Loughborough) " for not making himself better 
 " acquainted with English jurisprudence. He had a very fine legal understanding, and, with proper application, he was 
 " capable of comprehending and expounding the most abstruse questions debated in our Courts, but /te was contented with 
 " the superficial knowledge of his profession, which enabled him, by means of a cursory examination of authorities and a 
 " cautious concealment of his ignorance of all beyond what he had got up for the occasion, decently to get through the business 
 " of the day." — Lives of tJie Chancellors, by John Lord Campbell, vol. vi. p. 337. 
 
 (») This edition of the ' Collectanea' was styled by Lord St. (>>) Vide supra, pp. Ixiii, Ixiv.— The Speech of Lord Lough- 
 
 Leonards, in the discussion, " a book of authority." — Supra, p. 90. borough is printed in the Appendix, infra, pp. 490 sqq. 
 
( 365 ) 
 
 But let me pursue the Glencairn Case a little further. Lord Kilmaurs, when 
 created Earl of Glencairn, at once takes his title, and he goes on enjoying it for years. 
 He gets into great discussions with Lord Eglinton about precedence, and King Charles 
 thinks fit, in 1637, to attempt to give to the Earl the benefit by confirmation of the 
 original grant of 1488, if there was such a thing, but which could not be done by law.* It 
 introduced, however, an element into that Case, which is not to be found here. There- 
 fore, to attempt to make that a precedent here would be impossible.! ^^^ ^^^ "^^^ ^^ 
 which I understand it to be put is this, — that in 1648 the Court of Session in Scotland 
 alone had the right to adjudicate upon peerages.^ That proposition, however, is not 
 made out at all to my satisfaction. § It is said that Lord Karnes, to whom I referred 
 
 * As observed elsewhere, the King of Scotland had power to do this, and more than this — to reverse Acts of 
 Attainder by his simple recognition, and to supersede Acts of Parliament. See the S. Case, p. 107, and supra, p. Ixxxix. 
 — In cases like this, the question is not whether such or such a prerogative is enjoyed now, but whether it was enjoyed then — 
 that is, in the century, the age under discussion. To argue from the present to the past under circumstances like these is to 
 abandon the first and fundamental principles of historical, legal, and scientific criticism. — The Claimant need scarcely remark 
 upon the unvaried tone of disrespect with which King Charles I. is spoken of whenever this Ratification comes upon the tapis. 
 It might appear to proceed from zeal for constitutional government, for the monarchy of the people, — but the Noble and 
 Learned Lord apologises for gross acts of arbitrary and unconstitutional power by James IV., the confiscation of his father's 
 grants under colour of the Proclamation and before the Act Rescissory, &c., — thus identifying himself with the cause of 
 treason, usurpation, and absolutism. Without therefore attempting to reconcile these slight inconsistencies, the Claimant will 
 merely again observe, in justice to His Majesty, that there was no attempt in this instance to give undue advantage to 
 Glencairn or to contravene right and justice ; the King merely acted in accordance with the previous decision of the Court 
 of Session in 1610, the finding and principle of which had not been impugned in 1617 — and with the recognition by that 
 Court in 1516-7 ; and if the Ratification be indeed guarded and qualified, as urged by the Earl of Eglinton in 1648 (infra, 
 p. 438), then — a process being about to commence between Glencairn and Eglinton, the King would not prejudge it, while 
 giving the patent, with advice of the Crown lawyers, the full benefit of his ratification and approval, i/" valid. Tfie authority of 
 the Court of Session as the ultimate and supreme judicatory in cases of honours was thus recognised throughout by Charles I. 
 
 t The Claimant lays no especial stress on this Ratification — it was practically disregarded in the judgment of 1648 — 
 and it cannot in any manner aflfect the character of the Glencairn case as a precedent. 
 
 + Yes,— and that, independently of this inherent jurisdiction, the Court of Session judged in 1648 upon Am express 
 KEFBBENCE FROM THE Ckown, precisely such as the Committee of Privileges now sit under — although even upon that 
 reference their award was final, and not a mere Opinion reported to the Crown (as now), but a judgment. Neither the 
 Chancellor nor Lord St. Leonards notice this last point of view, which is per se conclusive, and renders all further speculation 
 (strictly speaking) superfluous. For the ruling Decreet 19th Jan. 1648, see the Appendix, wfra, pp. 446 sqq. 
 
 J The testimony of the great Lord Stair, the luminary of the law of Scotland, a contemporary, flourishing during the 
 seventeenth century, and a man of most unquestionable integrity, as laid before the Committee (S. Case, p. 54, and supra, 
 p. xlviii), ought (the Claimant submits) to have been sufficient to remove the Noble and Learned Lord's scepticism as to 
 the final jurisdiction of the Court of Session in questions of peerage and precedency in 1637-1648 and before the Revolution — 
 THE SOLE poixT HERE IN QUESTION — a jurisdiction which has never been seriously questioned till now, except by the 
 rebellious Parliament in 1649. Even in the course of last century, the jurisdiction of the Court of Session during the 
 period in question was fully recognised by the House of Lords, — as by Lord Mansfield, in his Speech on the 
 Cassillis claim in 1762, where he bases part of his argument on " the case of the Earl of Sutherland and the Earl of 
 " Crawford concerning precedency, . . determined in the Court of Session in 1706, when there was an opposition on the 
 "same grounds; and the Court of Session had then most certainly a competent jurisdiction." Appendix, wfra, p. 
 558. And although Lord Mansfield subsequently, in his Speech on the Sutherland claim in 1771, endeavoured to evade the 
 force of the Crawford and Sutherland decision in 1706 (in so far as it held that the Earldom of Sutherland had been re-created 
 in 1513) by stating, " There was no direct definite judgment upon the point, . . the Court of Session did not then determine 
 " the point, hut it is clear they would not presume a female descent," {Sidherlwnd Speeches, pp. 10, 11,)W he fully admitted 
 and recognised the jurisdiction of the Court at that time ; and indeed speaks elsewhere, in that Speech, of " the period when 
 " they" (the Court of Session) " liad an undoubted jurisdiction to try such questions," &c. {ihiil. p. 9) — thus introducing 
 his notice of the Oliphant decision in 1633 (in which case the whole proceedings took place in virtue of the inherent jurisdic- 
 tion of the Court without any reference frmn the CrOTwre)— almost immediately preceding the great Glencairn and Eglinton 
 process in 1637-48. And again, — "Since the Union of the Kingdoms all the other judgments incases of peerages have 
 " passed in this House, your Lordships being the only judges in such questions," {ibid., p. 10)— from which, however, while 
 markino- the assigned epoch " since the Union," the Claimant dissents otherwise, both as matter of fact and law, on grounds 
 which will presently appear ; although this is matter of pure indifference to the present argument, as the Claimant founds 
 simply and solely, as he again repeats, on fact and law as existing in 1648 and before tlie Eevolution, and as testified 
 to hy the contemporary, Scottish, and paramount authority of Lord Stair. On the whole of the question here involved, and 
 discussed in the Ibllowing pages, the Claimant would refer to the ' Narrative and Inquiry,' appended to the Address, supra, 
 pp. Lir sqq. 
 
 (») I may state here that the precedency of the Earldom of sim for more than four centuries — the Earls of Crawford irmariahhj, 
 
 Crawford over that of Sutherland does not rest exclusively either without a single exception, preceding the Earls of Sutherland in the 
 
 upon the decision in 1606 or that in 1706, neither of which were Soils of Parliament, Sedenmis, lists of peers, rankings, and cere- 
 
 final although in its favour; but upon iAe broad fact of posses- monials of all kinds, during that period. 
 
 3 A 2 
 
( 366 ) 
 
 in the course of the argument, is no great authority. I am not speaking of Lord 
 Karnes as a lawyer ; I am speaking of him as knowing what the opinions of the day 
 were. He must have known thoroughly well what was passing in men's minds generally 
 in regard to that supposed jurisdiction.* We know perfectly well how the jurisdiction 
 arose. It was originally in the Lords of Session: they were themselves members of 
 Parliament, and therefore it was a Committee of Parliament to whom the matter was 
 referred.f Whether there was an appeal or not to the body of the House is now utterly 
 unimportant-! But when the Courts of Justice were created — and that was done by the 
 authority of Parliament § — your Lordships will find that they were created only with 
 jurisdiction in civil actions. The words are, "jurisdiction in all civil actions."j| 
 
 * The Claimant certainly understood Lord St. Leonards as founding, in the discussion, on Lord Karnes as a legal and 
 irrefragable authority, to the effect of the Scottish Parliament having exclusively the innate cognisance in honours, and not the 
 Court of Session. Vide supra, pp. 220, 301. The Noble and Learned Lord may have modified his tone, in this concluding Speech, 
 in consequence of the Claimant having referred him to the exposure of Lord Kames as a lawyer in the well-known and learned 
 speech of Lord Stowell, when deciding the important case oi Dairy mple aga.\nst Salrymple, reported by Sir John Dodson. 
 That Noble and Learned Lord characterised him as " a man of an ingenious and inquisitive turn of mind, and of elegant attain- 
 " ments, but whose disposition, as he [himself] admits, did not lead him to err on the side of excessive deference to authority 
 " and establishment." To which he adds, " that Ids extreme inaccuracy in what he ventures to state luith respect both to the 
 " ancient canon law and to the modern English law, tends not a little to sliake tlie credit of his representations of all law what- 
 " ever." Report, &c. p. 43. — But, viewing Lord Kames merely as a witness to the opinions of the day, the Claimant would 
 represent that he flourished, not in the seventeenth century, but in the eighteenth — not as the contemporary of Lord Stair 
 (who died the year before Lord Kames was born), but rather of Hume, Robertson, and Adam Smith — among whom he 
 occupied but a subordinate position, being chiefly remembered as an ingenious essayist and agriculturist — while his 
 political and legal lucubrations are quite repudiated and forgotten. Those " opinions," and " what was passing in men's 
 " minds " during the last century on the subject of the jurisdiction of the Court of Session in peerages, may be more fittingly 
 gathered from the facts that the Court of Session decided the question of the Lovat peerage without controversy or oppo- 
 sition, and with complete acquiescence on the part of the unsuccessful competitor, in 1730, — that in 1740, when it was considered 
 desirable by the House of Lords that they should possess exact information as to the state of the Scottish peerage, they applied 
 for that information to the Court of Session, who drew up a learned Report on the subject, in which they moreover notice, in 
 illustration of " the difficulty that occurs in settling . . questions" affecting " the descent of peerages, where the original consti- 
 " tution or new grants upon resignation do not appear," the identical Lovat case in 1730, as having been brought before them as 
 " the Court where actions of the sams hind had been thought competent and as such sustained bkfobe the Union for trial and 
 " adjudication," (') — that in 1745 Lord Lovat was tried as a peer on the preceding decision by the Court of Session, — and that in 
 1762 and in 1771 Lord Mansfield distinctly recognised the competency of the Court of Session in peerages before the Union 
 (as shewn in the preceding note), — while the like testimony is given by Wallace, the only writer on Scottish Peerage Law in 
 the eighteenth century, and who flourished from 1760 to 1785, in his treatise quoted infra, p. 368, n. JJ. And lastly. Lord 
 Loughborough in 1797 equally recognised the competency of the Court of Session, as may be seen by reference to his Speech 
 on the Glencairn claim, infra, p. 491. 
 
 t Even if they were a Committee of Parliament, they were still a judicial body, invested loith plenary authority, com- 
 pletely independent of Parliament, and from which there lay no appeal to King or Parliament — constituting in short the 
 ' Supreme Civil Court ' of the kingdom. But they were not (correctly speaking) a Committee of Parliament, being appointed 
 — not by Parliament, but by the King, as by the Act constituting the Session in 1425, supra, p. lii, and as remarked by Lord 
 Stair, who describes the opinion held by Lord St. Leonards as " a great mistake." (•■) 
 
 X Not so — but MOST important, the Claimant conceives,— as on that fact depends the question whether or not there 
 was a right of appeal to Parliament against the decisions of the later Court of Session, as organised in 1532. 
 
 § That is, the Court of Session, as created by James V. and Parliament in 1532. For the Act of Parliament esta- 
 blishing that Court, and vesting in it the full authority of the Lords of Session, vide supra, p. ur. 
 
 II This passage seems to be the development of a doubt expressed by Lord St. Leonards in the course of the discussion 
 as follows : — " If civil cases in the words of the Act of Parliament " 1532 " included dignities, then they " (the Court of 
 Session) " had the power and used the power beyond all question." Supra, p. 301. It is almost superfluous to state that a 
 right to a peerage was a civil question in Scotland. It is one of those truisms which are difficult to prove from the mere 
 fact of their absolute and universal truth and acceptance. Indepercdently of the unanswerable argument of uninterrupted 
 usage, there is no other general division of rights, either in Scotland or indeed in England, under which peerages can possibly 
 fall ; and wherever jurisdiction is centered in " all " matters of civil rights — as was confessedly the case as regards the Court 
 of Session — that jurisdiction must necessarily comprehend peerages, unless expressly exempted. But the Claimant may 
 refer, in additional illustration of the fact, to a passage in a very able and learned Petition presented by William Earl of 
 Glencairn to Parliament in 1649, remonstrating against the intended annulment of the Decreet 1C48 in which he contends 
 in the outset that his case " is res already Judicata be the Lordis of Session, quich is the Supireme Court and Senate appointed 
 " be the lawes of this land for the utter and fynal decision of all civil richtis among the subjectes." S. Case Addenda 
 p. 209, and infra, p. 458. So too in the Letter of Charles II., 16th June 1679, to the Court of Session respecting the dispute for 
 
 (') Printed in the Acts of Sederunt of the Court of Session, " ' the Chancellor, and with him certain persons of the Three 
 
 1790, p. 348. And vide supra, p. lxx, n. *. " ' Estates ;' but they advert not to the words that follow, viz., 
 
 (t) " It is a great mistake in some, who pretend that the " ' to be chosen and depute by our Sovereign Lord the King."' 
 
 " Session at first was a Committee of Parliament, because it bears Institutions, B. iv. Tit. i. § 23. 
 
( 36? ) 
 
 The first q^uestion which naturally arises is this, — ' Can it be properly said that a 
 ' question of dignities, which imports so much to the Crown, to the country, and to the 
 ' House itself,* was a question solely committed to the Court of Session ? And committed 
 * to the Court of Session without the possibility of appeal ? 'f — But it is said there could 
 be no appeal, because there was no appeal from the Lords of Session. But the Lords of 
 Session were a part of the Parliament ;l and the Court of Session was a court of justice, and 
 not the proper forum to refer such matters to.§ But, my Lords, if it were a proper forum, 
 there is nothing to shew that an appeal did not still remain to Parliament itself, which, 
 from the necessity of the case, and from the nature of the case, would remain, if it had 
 not been excluded by the express words of the Act of Parliament.|| I have asked, and 
 
 precedency between the Earls of Lothian and Roxburghe, the King states in the brondest manner, that "all questions of law 
 " and right" belong to their jurisdiction, including matters " of nobility and honour ■" and commands them to award the 
 precedence " to him who hy law has right and ought to have it." S. Case, p. 23, and supra, p. liv. And Parliament itself 
 refused to entertain the question of the Glencairn and Eglinton precedency in 1641 as not " competent," as the Claimant has 
 shewn supra, p. 1, and infra, p. 485. (») But, after all, the simplest answer to the Noble and Learned Lord is, that, 
 as repeatedly stated, there is no instance whatever (and the Crown admits it by their silence on the subject) of a Scottish 
 peerage case heing considered or adjudged by any other tribunal than the Privy Council in the first instance, in an interim 
 ■manner, and finally by the Court of Session, jrreviously to the Union. Vide supra, p. Ivi. 
 
 The Court of Session, it may be added, had moreover (although unknown to English legal authorities) what was 
 called their "nobile officium," or cognisance superior to and above their ordinary jurisdiction, derived from the Roman law. 
 The various departments of law were consolidated in one Court in Scotland, differently from England, where they are 
 divided and apportioned out to different ones.C") 
 
 * The Noble and Learned Lord appears to forget that there was no separate House of Peers in Scotland. The Three 
 Estates all sat together, and voted in one chamber. 
 
 t The Claimant does not see why such a possibility should excite astonishment, and that it should do so appears to him 
 to be the reverse of respectful to the Sujjreme Civil Court of Scotland. As matter of opinion, the Claimant ventures to think 
 that the ends of justice were much better secured by the jurisdiction being vested in such a Court than in a political assembly, 
 over which every description of influence and control was occasionally exercised. Compare moreover the opinion of Lord 
 Stair, as quoted supra, p. lviii. But, whether right in theory or not, the fact is fact — while neither the Noble and Learned 
 Lord nor the Crown has been able to adduce anything to the contrary. The Court of Session simply succeeded to the old 
 Lords of Session, and were, like them, supreme in civilibus. 
 
 X They were not, under any point of view, " a part of the Parliament." See note f on the preceding page. 
 
 § With submission, it vjos, practically, the forum to which such matters were referred, and therefore must be pre- 
 sumed to be the proper forum. The distinction indicated here between the ' Lords of Session ' as " a part of the Parliament " 
 and the ' Court of Session' as " a Court of justice " is quite unwarranted. Both were Courts of justice. Both were styled 
 ' the Supreme Civil Court.' Both the 'Lords of Council and Session' before, and the 'Senators of the College of Justice' 
 (as they were also styled) as organised after, 1532, equally bore the title of ' Lords of Session.' 
 
 II This is mere and pure speculation. " All civil causes " were made over to tJw Supireme Civil Court — peerages were civil 
 causes — and, practically, peerage cases were adjudged by tlie Supreme Civil Court, and exclusively so, and not by Parliament. 
 
 (') Even in England, the nobility and what pertained to mentaries,' moI. iii. pp. 10.3 sqq., edit, ut supra. — It may be added 
 
 them were and are reckoned inter civiles and civilia. " The lay that (in the words of Cruise) " a civil and criminal jurisdiction 
 
 " part of his Majesty's subjects," says Blackstone, " . . may be " was uniformly annexed" to ancient Earldoms (On Dijnities, 
 
 " divided into three distinct states, the Cicil, the Military, and p. 58) ; and that " the Civil jurisdiction was called soca et sacha, 
 
 "Maritime. . . The Ci»i7 state includes all orders of men, /rom " the Criminalinfangtheof and outfangtheof." (/6ia. on the autho- 
 
 " the higliest nobleman to the meanest peasant. The Civil state rity of Glanville and Spelman, p. 27.) Dignities were thus 
 
 " consists of the nobility," &c. &c. — after which he discusses originally identified with civil rights, springing from feudalism, 
 
 the dignities of Duke, Marquis, Earl, &c. — Commentaries, ^c. It was on this ground that, according to Yorke, " titles of honour 
 
 vol. i. p. 396, edit. 1770. — Such then being the case, the Peerage " and dignities by tenure were always forfeitable in the law of 
 
 itself being " ciml" and forming part of the " Civil state," their " England, as following the feudal reason of land,"— or, as he 
 
 rights or interests are necessarily ciml and fall under the class elsewhere states it, " Titles, dignities, and honours were for- 
 
 of civil causes. But, independently of this, the expression " civil " feited, as following the reason of lands, being originally derived 
 
 "jurisdiction" was legally used in England to denote cogni- " out of them, or annexed to them by tenure." — Considerations on 
 
 sance or jurisdiction in matters of honours, which thus came, as the Law of Forfeiture, pp. 76, 86, edit. 1778. — They were thus held 
 
 in Scotland, to be classed inter civilia—as may be seen by refe- to be a civil right or interest rations terra, with which they 
 
 rence to Blackstone's observations on the " Military Court, or were identified, and hence, like land, amenable to the civil 
 
 " Court of Chivalrj', presided over by the Lords Constable and jurisdiction. It is always to be remembered that although 
 
 " Marshal," to which claims to dignities were originally and peerages became less and less feudal through succeeding 
 
 usuallyreferredby the Crown, and where he observes" that the centuries, the forms, character, and accessaries of feudalism 
 
 " civil jurisdiction of this Court of Chivalry is principally in two attached to them still, as in fact they continue to do in great 
 
 " points, the redressing injuries of honour and correcting en- measure. And this continued much longer in Scotland than in 
 
 " croachment in matters of coat armour, precedency, and other England. 
 
 " distinctions of families;" — And again, "As to the other point C") " Every sovereign Court," says Lord Stair, " must have 
 
 " of its civil jurisdiction, the redressing of encroachments and " this power" (Me no6ife q^ct'um), " uuless there be a distinct Court 
 
 " usurpations in matters of heraldry and coat-armour, it is the " for equity from that for law, as it is in England. . . , Other 
 
 " business of this Court, according to Sir Matthew Hale, to adjust " nations do not divide the jurisdiction of their Courts, but supply 
 
 " the rights of armorial bearings, &c. and also rights of place of " the cases of equity and conscience by the noble office of their 
 
 " precedency" in short, exactly what the Court of Session did in tlie " supreme ordinary Courts, as we do." Institutions, B. iv. Tit. 
 
 matter of honours in the Glencairn and Eglinton distance. — Com- iii. § 1 . 
 
( 368 ) 
 
 nobody has answered the question, ' How did this House get any jurisdiction in the matter 
 ' of Peerage claims ? '* We are told that we are not sitting here as a court of justice, but 
 we are sitting here upon a reference from the Crown. I am perfectly aware of that ;t but 
 the question is simply this — ' To what forum was the Crown to refer the matter ? J I want 
 ' to know what there is in the Act of Union that would take away the right of the Court of 
 * Session over Scotch Peerages ?§ If it existed before the Act of Union, why should it not 
 ' exist now? ' Nobody has answered that question — ' why should it not have remained? ' || 
 It has not remained. It has passed entirely, as it ought to have passed, by the authority 
 of the Crown, to this House, in regard as well to Scotch Peerages as English Peerages.^ 
 It is much better that it should be so, as I apprehend. Whether it was a usurped juris- 
 diction by the Court of Session I do not stop to inquire.** I conceive that nothing can 
 take away the right of the Crown to refer it to the House of Lords, ff and it has been so 
 ever since the Act of Union. |J But there is nothing in the Act of Union to disturb the 
 
 * The question was distinctly answered, supra, p. 300, — the House has no Jurisdiction whatever in peerage claims. 
 
 t The Claimant certainly thought, from the expressions of the Noble and Learned Lord during the discussion, supra, 
 pp. 215, 221, 300, that he supposed that the House was possessed of inherent jurisdiction in peerages. 
 
 X If this question relate to the Glencairn and Eglinton controversy, the simple answer is, that the Crown did refer 
 the matter to tlie Court of Session (although for their judgment, not their mere opinion or advice) by the Decreet of 
 Ranking under the Royal Commission in 1606 ; and the Court of Session accordingly adjudicated upon that reference, 
 independently altogether (although by no means to the superseding) of their inherent jurisdiction. While, moreover. Parlia- 
 ment, in 1641, on being petitioned by Glencairn to take up the question, refused (as has been stated) to do so, as not " com- 
 " potent.'' What more can be required ? — If the Noble and Learned Lord's question refer to the present or any modern 
 claim, the Claimant's answer is, that, in accordance with general usage. Her Majesty has referred the Claimant's Petition to 
 the House of Lords, not for their judgment hut for their consideration and advice, — upon which Her Majesty will, as on 
 former occasions, act as She may think just, — the Report of the House (which amounts to nothing more than an expression 
 of their Opinion) being in no wise binding upon Her Majesty or conclusive in the matter. See on this point the Address, 
 supra, p. v. 
 
 § There is nothing that could have that effect. This was admitted in the discussion, supra, pp. 2] 5, 220, and is affirmed 
 infra by the Noble and Learned Lord. The fact is, that the Act of Union effectually reserves and protects what Lord St. 
 Leonards styles " the right of the Court of Session over Scotch Peerages," as may be seen supra, pp. i,ix sqq. 
 
 II The question was answered, supra, pp. 300, 301, 302, 303, — the right still remains in the Court of Session, although 
 it liasfdlle7i latterly into disuse. 
 
 ^ By no means. This is pure dogmatism and assumption. The inherent right of the Court of Session is still in it — 
 dormant, hut not alienated. The Eouse of Lords has no inherent right whatever, more than any other tribunal — it merely 
 considers such questions, on reference {exclusively) from the Crown, and reports its Opinion to the Crown — which Opinion does 
 not (as has been stated) bind the Crown. 
 
 ** In answer to this suggestion the Claimant would refer to the proofs of the origin and practice of the jurisdiction 
 in question, in and by the Supreme Civil Court, given at p. Ivi, and in the 'Narrative and Inquiry,' pp. ui sqq., supra. 
 
 tt In the case of English peerages — admitted. 
 
 IX This is erroneous. The House of Peers, indeed undertook to consider the claim of the Duke of Ormonde to the 
 Scottish Barony of Dingwall, and adjudged it to him in 1711 and 1714, but this was quite illegal and an usurpation, even by 
 English law and practice, as they had no authority or scmction by reference or otherwise frcm the Sovereign. The claims of 
 James Somerville of Drum to the Barony of Somerville, and of John Lord Colville to the Barony of Colville of Culross, were 
 in 1723 considered by the House on reference from the King, and subsequently recognised by the King on the report of the 
 House. And the unsuccessful claim to the Barony of Duffus in 1734 equally proceeded on reference from the Sovereign — who, 
 however, by English practice, might have delegated the inquiry to any other tribunal. But, notwithstanding these proceedings 
 in England, the Court of Session by no means reckoned their jurisdiction foreclosed. Tliey adjudged, finally and without 
 contradiction or question, in the case of the peerage of Lovat in 1730, as has been already mentioned — a judgment directly 
 founded upon as valid by Lord Mansfield in his speech on the Cassillis claim in 1762 (although he subsequently, in the 
 Sutherland claim in 1771, characterised the Court of Session as incompetent at that time), and by Lord Loughborough in his 
 speech on the Glencairn claim in 1797.('') It was upon this decision moreover that Lord Lovat was tried and attainted as a 
 peer in 1745. They similarly sustained their own competency in dignities, after full argument, in the case of the Viscounty 
 of Oxenfurd, in 1733. C") Moreover the House of Lords tliemselves applied to the Court of Session (as has been stated) in 
 mo for information as to the state of the Scottish Peerage, and the Court, in a Report " formed," according to Lord Mansfield 
 " with great thought and carej''^) gave them the information they required. Instances of jurisdiction by the Court of Session 
 in matters appertaining (indirectly at least) to peerages occurred in 1733, in 1745, in 1746, in 1764, 1790, and 1833, resjiecting 
 which the Claimant may refer to the ' Narrative and Inquiry,' supra, p. lix, and to Mr. Riddell's Peerage and Consistorial 
 Law, pp. 290 sqq. But the change of feeling which has led to the impressions recently avowed in the House of Lords 
 had established itself in 1783, as may appear from the following extract from ' The Nature and Descent of Ancient Peerages ' 
 by George Wallace, Advocate (already mentioned), a judge of the Commissary or Consistorial Court of Scotland and the 
 only writer upon Scottish Peerage law and practice in the eighteenth century,— a passage which accurately resumes the 
 historical facts which have been, as above, narrated :— 
 
 " The Court of Session, the Supreme Judicature established in Scotland to determine in most questions of property 
 
 (») Vide Appendix, infra, p. 491. (>•) See the ' Narrative and Inquiry,' 8ic. supra, pp. Lxvni sqq. 
 
 (*) Vide Appendix, infra, p. 557. 
 
( 369 ) 
 
 right and powei-s of the Court of Session, if that Court really had the exclusive jurisdic- 
 tion.* Then, my Lords, the exclusive jurisdiction of the Court of Session falls to the 
 ground.f But I do not myself see that this matter has any important bearing upon the 
 argument either one way or the other.J Your Lordships see, that, exactly as either the 
 one power or the other preponderated, so was the decision.§ If you will tell me the date 
 of the Parliament,!! ^^^^ ^^ant to know the decision, I will tell you what it was; because, 
 knowing who was in power, I should know what the decision was. The decision always 
 went according to the power which at the moment ruled ;% and that very resolution of 
 
 " and invested with an exclusive authority to judge concerning landed estates, exercised a jurisdiction in competitions about 
 " peerages. Claims entered to them were held after, as well as before the Union, to fall within its ordinary department. In 
 " 1730 that Court judged in the suit brought for ascertaining the person who had right to the Lordship of Lovat ; and a 
 " doubt seems not then to have been entertained, either on the Bench or at the Bar, concerning their power to take cognisance 
 " of the matter. It was only lately that Scotch lawyers were taught to number among the privileges acquired to the Peers of 
 " Scotland by the Treaty of Union, (•) that of subjecting their legal pretensions to the arbitrary decision of the Crown " 
 — that is, obviously, to the despotism of the English system or practice, quite unknown previously and foreign to the Scottish, 
 and which only crept in by assumption, gradually, and through non-user on the part of the competent and legitimate Scottish 
 tribunal. — ' Nature and Descent,' &c. 1785, p. 398. 
 
 The sum of the matter, as the Claimant conceives, is this, that the jurisdiction is still inherently in the Court of Session, 
 and has been exercised since the Union ; but that it has gradually sunk into dormancy, although not extinction. All this 
 however (although necessarily introduced out of due respect to the Noble and Learned Lord who has mooted the question) is 
 
 lERELEVANT TO THE PRESEKT CLAIM. 
 
 * Which it certainly had, as proved, and therefore must still possess. 
 
 f The argument of the Noble and Learned Lord, as advanced in this amended and guarded form, amounts (to the 
 Claimant's apprehension) simply to this : — ' 1. It is the usage in 1853 for claims to Scottish peerages to come, some-how or 
 ' other, before the House of Lords. 2. There is nothing in the Treaty of Union to deprive the Court of Session of any juris- 
 ' diction that they may have possessed over peerages previously to that treaty. 3. That jurisdiction was consequently vested 
 ' before the Union, not in the Court of Session but in Parliament' (although the Noble and Learned Lord has not stated 
 whether he means by Parliament the Estate of the Barons — there being no separate House of Lords in Scotland — or Parliament 
 in its corporate capacity, including the Clergy and Boroughs) — ' and it is from the Parliament therefore that the House of 
 ' Lords derive their present jurisdiction. — Therefore, 4, and lastly, the Court of Session were not invested with the authority 
 ' ascribed to them by the Claimant, in 1648.' This, however, as elsewhere, is reversing the proper order of things, arguing 
 from the present to the past, and, in homely language, putting the cart before the horse, — while, even were this per- 
 missible, the facts and analogies on which the argument is based are imperfect and incorrect. The Claimant has cited the 
 authority of Lord Stair, the greatest lawyer and judge that Scotland ever produced, as to the facts here in dispute, and given 
 the most cogent and unanswerable proofs of the practical jurisdiction of the Court of Session over peerages during the period 
 to which he has restricted himself, anterior to the devolution of 1688, — he has shewn by the Decreet of Ranking in 1606 that 
 parties prejudiced by that ranking were to have " recourse to the ordinar remeed of law, he reducfioun before the Lords of 
 " Counsell and Sessioun" of the obnoxious Decreet, — he has shewn that in 1613 the Privy Council (the Star Chamber of 
 Scotland) declined to entertain the question of the succession to the Earldom of Eglinton, declaring that such " disputationis" 
 were not "proper nor competent to be handlit in this judgement (judicatory), but behoqffif to abyde be the course of law in the 
 " ordinar judgment of the Session," or Court of Session, and apologising further to the Sovereign (James VI.) for their 
 " refuisall to take upon wss " (the Privy Council) " the decisioun of" what they characterise as " a mater no waycs jilting 
 " nor competent to oure placeis," — he has also adduced the Decreet of the Privy Council, 26th January 1682, by which, alter 
 having summarily heard the competing claimants of the Earldom of Rothes, John Lord Lindores and Margaret Countess of 
 Rothes (in her own right), they " doe remit the said mater in debaite to the Lords of Session, to he discust by them as accordes 
 
 " of the law " whereupon Lord Lindores desisted from what would have been a hopeless suit in the face of the clear and 
 
 undoubted right of the Countess Margaret, whose descendants have ever since enjoyed the honour accordingly without question 
 
 or hindrance, besides other numerous illustrations given supira, pp. Ivi, Ivii. — He has demonstrated that interference on the 
 
 part of Parliament was never dreamt of in peerage cases, — that when Parliament was entreated by William Earl of Glencairn 
 to take up the precedency question in 1641, they declined to do so as not " competent,"— and that the solitary instance of 
 their actual interference is in 1649, when in rebellion after the death of Charles I., — an interference punished by res- 
 cission of the Decreet then pronounced, after the Restoration. But all this has been disregaeded by the Committee 
 js THE present claim, AND ESPECIALLY BT LoRD St. Leonakbs— whosc argument, as from present usage to past principle 
 (irrespectively altogether of the preceding evidence), has been analysed and dissected (and, as the Claimant believes, fully 
 
 refuted), ut supra. 
 
 The Claimant may be excused for once more referring to the ' Narrative and Inquiry,' appended to the Address 
 to Her Majesty (supra, pp. lii sqq.), in which he has endeavoured to meet the difficulties started by Lord St. Leonards by an 
 historical exposition of the subject. 
 
 t In one point of view it has none — inasmuch as the Court of Session adjudicated in 1648 (as has been stated) on 
 A REFERENCE FROM THE Crown (independently of, though not superseding, their inherent jurisdiction)— which reference 
 from the Crown is sufficient ^jer se, although entirely overlooked in the present Speeches. 
 
 § The votes or acts of a political body like the Parliament might veer about according to the wishes of the ruling 
 party ; but not so those of an independent judicial body like the Court of Session. 
 
 II The ruling Decreet of 1648 was not a decision of the Parliament. 
 
 If The ruling Decreet of the Court of Session in 1648 was pronounced at the moment when Charles I. was a prisoner 
 in the hands of the Republicans, and while his opponents were in the ascendant. By Lord St. Leonards' argument it ought 
 therefore to have been in favour of Eglinton, not Glencairn. 
 
 C) On this point see the ' Narrative and Inquiry,' supra, pp. LXVii, Lxviii. 
 
( 370 ) 
 
 1648 * was upset by a resolution of Parliament in 1649 ;f and that Parliament itself was 
 again struck at by a subsequent resolution.^ But what does it all amount to ? Only 
 that there is a continual uncertainty, a continual fluctuation in the decisions upon the 
 subject, which detracts from the weight which otherwise might be given to any one of 
 those decisions, or to all of them taken together. § 
 
 * It was not a Resolution of Parliament, but a judgment inforo contentiosissimo, by the sole and ultimate judicatory, 
 the Court of Session. — This is actually the first, last, and only direct allusion in the Noble and Learned Lord's Speech to this 
 all-important judgment — by which, on the admission of the Lord Chancellor, ana as moreover pointed out by the Noble 
 Chairman of the Committee in the course of the discussion, the Court of Session decided that the Glencaim patent 1488 was 
 valid and governed the precedency of the Earldom — inevitably, as not having been affected by the Act Rescissory. And the 
 effect of this allusion is to create a completely erroneous impression as to the source from which the judgment emanated, as well 
 as to avoid giving any statement at all as to wluit tlie judgment actually was \ 
 
 t The Decreet of the Court of Session 1648 was not " upset" by the jwasj-judicial Decreet of Parliament 9th March 
 1649, here called a Resolution — Parliament being incompetent to the matter, besides being in rebellion after the execution of 
 Charles I., and the whole proceedings of that Parliament having been specially rescinded after the Restoration. 
 
 % Not by a Resolution, but by a special Act of Parliament, passed on the 9th February 1661, rescinding the whole 
 proceedings of the Parliament in 1649, without any reservation, owing to the enormity and flagrant injustice of the procedures 
 in that Parliament. Vide infra, p. 484. Lord St. Leonards appears to question its having been rebellious, supra, p. 152. 
 
 § The Claimant cannot but remark upon what he must consider the unfairness of this statement, suppressing all 
 mention of the illegality at the time and the special rescission in 1661 of the proceedings in Parliament in 1649. TTte Noble 
 and Learned Lord thus confounds wliat was fairly and legally done with what was unfair and illegal. The Claimant must 
 again repeat, what he has elsewhere stated, that the whole legal proceedings in the case of the Glencaim and Eglinton 
 precedency were uniform and consistent, and tending to the same result, without the slightest uncertainty or fluctuation — 
 the only disturbing influences being the illegal proceedings in 1649, subsequently annulled in 1661. To recapitulate : — 
 
 1. The Decreet of Ranking, under the authority of James VI. and the Privy Council, in 1606, placed Eglinton before 
 
 Glencaim, on the ground of the Sederunt 25th March 1503 being prior to the earliest evidence of the Earldom of 
 Glencaim, which (Glencairn not appearing, nor producing the patent 1488) was in 1505. The Decreet however 
 EEFERRED Glencairn, and other peers similarly circumstanced, to the Court of Session, for recovery of his due 
 precedency by the adduction of authentic and earlier evidence.C) 
 
 2. The Decreet of the Court of Session, in 1610, restored Glencairn to his due precedence, in consideration of the 
 
 patent 1488, then first produced ; which gave him the pas before Eglinton, whose earliest evidence was, as stated, 
 the Sedemnt 25th March 1503,('') 
 
 3. The Decreet of the Court of Session, in 1617, reduced the preceding Decreet on technical grounds, explained supra, 
 
 p. xliii, not in the least affecting the merits of the question between Glencairn and Eglinton as depending on the 
 validity and subsistence of the patent 1488. (") 
 
 4. The Decreet of the Court of Session, in 1648, proceeding carefully and in all respects on the technical grounds 
 
 which had been overlooked in 1617, reduced the Decreet pronounced in that year, which had annulled the Decreet 
 of 1610 in favour of Glencaim and the patent 1488, and thus restored the Decreet of 1610 to its full pristine 
 vigour ; while, the question having been raised whether or not the Act Rescissory annulled the patent, it (the 
 Decreet 1648) decided — inforo contentiosissimo, and thus finally — that the patent was effective in spite of that 
 Act Rescissory . ('') 
 
 5. Parliament, in 1649, passed two Decreets, severally rescinding the patent 1488, and the Decreet 1648 as " maynlie 
 
 " proceeding upon " that patent; but, independently of Parliament possessing no jurisdiction in the matter and 
 being in rebellion at the time, after the death of Charles I., these Decreets were rescinded in 1661, insomuch that 
 they became as if they had never existed. (") 
 
 6. The Earls of Glencairn enjoyed precedence over the Earls of Eglinton in virtue, exclusively, of the Decreet of 
 
 1648, from the Restoration to the Union, and from the Union till the death of the late Earl of Glencairn in 1796,— 
 and when an Earl of Glencairn makes good his claim to the honours, he will immediately assume his due precedence 
 in virtue of the Decreet 1648, and of the patent 1488, in the face of any Opinion that may have since been 
 pronounced, whether on right or wrong grounds, by the House of Lords. The Earl of Eglinton during all this 
 period is only ranked on one single occasion before the Earl of Glencairn, and that misranking (in 1667) occasioned 
 an immediate appeal to the Decreet of 1648, the consequence of which was the rectification of the blunder.(') 
 Finally, the Claimant cannot but ask. What is the object of the Noble and Learned Lord's disquisition— which ha» 
 
 necessitated these ample comments ? What does it tend to ? — Is it, by destroying the landmarks of history and law is it, by 
 
 confounding truth and fiction— is it, by imputing injustice and corruption to legal and judicial tribunals — is it, by representing a 
 series of decisions, all tending uniformly (so far as they were legal) in one and the same direction, as amountino- to a stale of 
 continual uncertainty, continual fluctuation — is it, in short, by "darkening knowledge," to create in the mind of the House an 
 impression that the ruling decision of 1648 was pronounced by incompetent authority and is unworthy of consideration— to 
 sweep it, in a word, out of the Noble and Learned Lord's path— in order to open the way for the adverse decision of Lord 
 Loughborough in 1797 ?— The Claimant would be sorry to believe that such was the case ; and, on the contrary, would far rather 
 ascribe it to the causes he has already pointed out and commented upon in his appeal for redress addressed to Her Majesty and 
 prefixed to this volume. C) 
 
 9 ^'^^ '"•^™' P- *'^- <:'') ^"■^™' P- *20. (0 Infra, pp. 486 sqq. These last named facts are also totaUy 
 
 ( ) Infra, p. 423. (d) infra, p. 446. overlooked by the Lord Chancellor and Lord St. Leonards. 
 
 C) Infra, pp. 462. 464, 484. (B) Supra, p. xxvi. 
 
( 3^1 ) 
 
 Then the thing remains untouched; and what happens then? In 1797 Sir 
 Adam Fergusson, who seems to have been a gentleman highly competent to consider 
 this case, and who was highly complimented for his knowledge upon such subjects by 
 the then Lord Chancellor, came forward to this House and made a claim, which he set 
 up as heir general, to this very Earldom of Glencairn. What was the decision ? It is 
 of no use attempting to retire from that decision, for, according to my apprehension, it 
 is a decision which binds your Lordships.* The decision distinctly was, first of all, that 
 the Patent of 1488 was struck at and destroyed by the Act of 1488. And the decision 
 further was, that, finding a sitting of the Earl of Glencairn in 1505, you must not refer 
 that sitting to the Patent of 1488, for it did not exist, and that therefore you cannot 
 infer a limitation to heirs general, but you must refer it to some other Patent which you 
 have not got. And then, on looking to see how the sitting was, and finding that it was 
 always in the succession of heirs male, to the exclusion of heirs general,f the presumption 
 of law is, that the last grant must have been to heirs male. And the Claimant was 
 therefore held not to have made out his title. It would, indeed, require a strong case 
 to have persuaded your Lordships that you have now the power to come to a different 
 conclusion upon this case.J This is brought forward simply as a precedent ; and your 
 Lordships have had to travel day after day through the case of the Earldom of 
 Glencairn as if you really were re-trying that very case, when it is only quoted as a 
 
 * If, as laid down by Lord Chancellor Brougham in the Waterford case in 1832, the decisions (as they are styled) of 
 the Irish House of Lords in an Irish Peerage claim before the Union with Great Britain are binding upon the House of 
 Lords of the United Kingdom as at present constituted (vide supra, p. 340, note W) ; then the DECISIONS of the tribunal to 
 which the jurisdiction in cases of Scottish Peerage and Precedency inherently and exclusively appertained by Scottish law, 
 and which judged moreover in the Glencairn case in 1648 under a reference from the Crown — viz. the Court of Session 
 (the Scottish Parliament having no jurisdiction in dignities and the Crown being entitled, in England at least, to refer such 
 questions to anj/ tribunal whatever) — are a fortiori binding upon the House op Lords at the pbesent moment. If there- 
 fore the Glencairn decision in 1797 be held (as by the Lord Chancellor and by Lord St. Leonards) to have affirmed that the 
 ' Act Rescissory of 1488 cut down the Glencairn patent of that year, that decision must in like manner be held (so far) a 
 mere brutumfulmen, null and void — the point in question having been already decided against the Act Rescissory by the 
 only competent Court and under Royal reference in 1 648, and the House being impotent (either in 1797 or now) to reverse 
 that decision. 
 
 t As when the Earldom passed over Margaret Countess of Lauderdale, on the death of her father Alexander Earl of 
 Glencairn in 1670, to go to that father's younger brother, the heir male — the patent 1488, to Alexander Lord Kilmaurs 
 " et heredibus suis," being then (as indeed now) in full recognition and validity — and the whole Glencairn estates being 
 strictly entailed on heirs male whomsoever in 1488 and long previously, as in the Montrose instance. — Vide infra, p. 494. 
 
 X The Speech of Lord Loughborough, as corrected by himself and urged against the Claimant in this claim, is here 
 represented as the Decision, the actual Judgment (or, more correctly speaking, the Opinion), of the House of Lords; 
 whereas, as elsewhere shewn, the Resolution was quite general, without a word of what is stated in the text, — and in 
 assenting to that Resolution it does not (as the Claimant conceives) necessarily follow that the House committed itself to 
 the accuracy, whether in point of fact or law, of everything the Noble and Learned Lord propounded. On that principle 
 the House would be equally committed in the present instance. On this principle, the dicta of Lords Mansfield and Hard- 
 wicke, that a peerage cannot be properly granted by novodamus where there is no resignation, founded upon by the Claimant 
 in proof that the Montrose Regrant 18th Sept. 1489, must have been a virtual Confirmation, and hereditary— c?(cto under any 
 circumstances, like those of Lord Loughborough and of the Noble and Learned Lords who have advised Her Majesty upon 
 the present claim, entitled to the highest /)nmd/ac2e weight and authority — receive even increased sanction and weight. 
 And on that principle, finally, the House is bound A fortiori to consider the " reasons " assigned by the Court of Session as 
 the grounds of their judgment as part of that judgment — those " reasons " being an inherent and integral part of the Decreet 
 of 1648, and thus authoritatively published to the world — which the Speeches of Noble and Learned Lords in peerage claims 
 are not. 
 
 The Claimant has already demurred against the Noble and Learned Lord's representation that Lord Loughborough's 
 Opinion proceeded on the supposition of a lost patent, — which he apprehends to be quite at variance with fact. He refers 
 to the Speech itself, as printed in the Appendix, infra, pp. 490 sqq. 
 
 And he submits, that Lord Loughborough's Speech in question, as proceeding, 
 
 1. Upon the hypothesis that James III.'s reign ended, and James IV.'s began, on the 2nd February 1487-8 ; 
 
 2. Upon the hypothesis that the inauguration in 1503, described by the alleged herald Young, was a creation of 
 
 the dignity by the form of belting alone, thereby creating a peerage descendible only to heirs male j and 
 
 3. Upon the hypothesis that the ruling Decreet 1648 was not founded upon the patent 1488 — 
 
 each of which hypotheses has been proved to be unfounded — amounts to a misdirection bt a judge to a jury, and would 
 fall to be entirely disregarded— even were it not {as it is) an opinion on a point already, finally, and for evek 
 DECIDED, settled, AND ESTABLISHED AS res judicata (beyond the power of the House of Lords or of any tribunal to reverse 
 it) by THE JUDGMENT OF THE COURT OF SESSION inforo contentiosissimo IN 1648. 
 
 3 A* 
 
( 372 ) 
 
 precedent. And if precedents that are quoted are to occupy so large a portion of time, 
 there is no reason why a claim of this sort should not last as many months instead of so 
 
 many days.* 
 
 Disposing, then, my Lords, of those two precedents, the case appears to me to be 
 perfectly clear. ' After all the labour that has been bestowed upon it, and the great 
 mass of evidence which has been produced, and its importance to the Claimant of the 
 title, considering the great Dignity claimed, I have looked at it with as much anxiety 
 as I ever looked at any case, and with a sincere desire, if there had been any well- 
 founded grounds for the claim, to give every possible effect to those grounds; on the 
 other hand, with an equal desire to render fairness and justice towards the Crown and 
 the public,t and towards those persons who think themselves aggrieved by the claim, J to 
 see that the claim was not allowed, except upon solemn legal grounds; and I have 
 come to a very clear conclusion, never more clear upon any point in my life, that there is 
 no foundation for the claim which has been set up; and I entirely concur in the Resolu- 
 tions which have been moved by my Noble and Learned friend. 
 
 I ought to state to your Lordships that my Noble and Learned friend Lord 
 Brougham authorized me to say, that he concurs entirely in the Resolutions which have 
 been just proposed to your Lordships.§ And my Noble and Learned friend Lord 
 
 * And if so, (and the Claimant does not assert this with reference to his own peculiar interest,) the House could scarcely 
 he engaged in a matter of higher public importance. Lord Lyndhurst, in the course of the discussion, did the Claimant the 
 justice to remark that he was entitled " to take the time necessary to establish" his case. Supra, p. 302. The sti-ictures of 
 Lord St. Leonards would amount fo this, that precedents in point are not to be gone into in processes and lawsuits. The 
 whole legal practice of both kingdoms is adverse to such a notion. The Claimant cannot however but add, that if he has been 
 compelled to occupy much more time than would have otherwise been necessary, in affording the Noble and Learned Lord the 
 means of avoiding the pitfall of error into which Lord Loughborough fell in 1797, it has been his misfortune, not his fault,— 
 and he can only regret that the Noble and Learned Lord should have shut his ears to the voice which was anxious to avert, 
 for the sake of all parties, a similar catastrophe. 
 
 t So far from losing, the Crown and the public would gaik by the establishment of the Claimant's pretensions— by the 
 acquisition, that is to say, of another Dukedom of the fifteenth century to the Peerage of Great Britain. The Claimant may 
 refer on this point, as well as others on which he might otherwise have indulged in some remarks here, to his Address to Her 
 Majesty prefixed to this volume, supra, p. xni. 
 
 % The plural number, used here, might appear to indicate other dissatisfied parties, independently of his Grace the 
 Duke of Montrose— who, even himself, is not a party, as by the decision of the House in April 1851. 
 
 § That is, as proposed by the Lord Chancellor, supra, p. 343. The clause declaring that the Regrant oftlie Duhedom 
 in 1489 was restnctive and for life only, having been subsequently added, as an after-thought, at the suggestion of Lord 
 St. Leonards, cannot be presumed to have Lord Brougham's explicit sanction. (") 
 
 C) The Claimant may cite here an important passage from the 1610 and in 1648 (in foro contentiosissimo) that the Gleneairn crea- 
 
 Speech of Lord Chancellor Brougham in moving the Kesolution tion of 1488 was valid and subsisting, unaffected by the Act Ee- 
 
 on the Waterford claim in 1832 :— " It cannot he denied that in scissory— that Parliament, after declaring itself (in 1641) not 
 
 " some cases the plain meaning of an Act of Parliamerd has been "competent" to adjudicate in the matter, followed up and obeyed 
 
 " changed by a course of judicial decisions, each going a little that decision, and defended the Gleneairn family in the prece- 
 
 " and a little further, so that at length the Courts have adopted dency awarded by it, from the Restoration (and specially in 1667) 
 
 " a construction widely different from that which would but for to 1796 (that precedency being still unaffected and inherent in the 
 
 " such interpretations have been put upon the plain intent of the Earldom of Gleneairn, though now for the moment dormant) — 
 
 " words. In all such cases you are to take into consideration thatthfe Court which decided in 1648 was most distinctly "com- 
 
 " not merely the words of the Act of Parliament but the decisions on " petent," both inherently and by the Royal reference in 1606, 
 
 " them, which mai/ be said to have leen all but imported into the words and had " before it properly and judicially the matter on 
 
 " of the Act, so that the Act is to be construed with reference to such " which it was pronouncing a judicial decision," viz. the question 
 
 " decisions. But I am not aware of any case in which a single of the applicability of the Act Rescissory against honours— and 
 
 " decision, even of a Court of competent jurisdiction, having that the Earldom of Gleneairn, then adjudged to be unaffected by 
 
 " before it properly and judicially the matter on which it was the Act Rescissory, was one of the only two dignities struck at by 
 
 " pronouncing a judicial decision, has been held to operate so the Act in question,— consiienng these facts, this uniform current 
 
 " upon the plain meaning of a statute. There has been a course of authorities — together with the fact of David Duke of Mon- 
 
 " of decisions, . . a current of authorities," &c. — According to trose having held the revenues and been recognised by the title 
 
 this doctrine, and assuming (of course merely p-o argumento) conferred by the patent of 1488, in both cases by authority of the 
 
 that the Act Rescissory, so far from requiring the excision or Crown, subsequently to the Act Rescissory — the Claimant might 
 
 importation of words to make it apply, is plain and distinct in have expected that Lord Brougham would have held in 1853, as 
 
 meaning and without any qualification whatever — then, con- he did in 1832, that the decisions and practice in question must 
 
 sidering the facts that the Supplemental Act of 1489-90 and the be said "to have been all but imported into the words of the Act" 
 
 Act of 1493, both in pari materia, omit " dignities" in their Sescissory, "so that the Act is to be construed with reference to such 
 
 enumeration of the grants of James III. struck at since the 2nd " decisions" and practice. But the Noble and Learned Lord ap- 
 
 February 1487-8— that those grants remained unchallenged in pears to have acquiesced in toto in the views adopted by the 
 
 the hands of the grantees — that the Court of Session decided in Lord Chancellor and by Lord St. Leonards. The Claimant 
 
( 373 ) 
 
 Lyndhurst desired me to state on his behalf, that he entirely concurred upon these two 
 points,— first of all, that the Act of 1488 was a revocation of the Dignities ; and, secondly, 
 that he thought that the construction was clearly that which I have just pointed out to 
 your Lordships. But he desired me to add, that he gave no opinion upon any other 
 part of the case, as he had not heard the whole of the arguments, and had not sufficiently 
 followed the case in its subsequent bearings. Therefore, he begged me to confine his 
 concurrence to those two grounds ; namely, as to the general effect of the Act as 
 rescinding or annulling the Grant which had been made, and as to the true construction 
 of the Act.* 
 
 Resolution of the Committee. 
 
 The Committee eesolyed, that the Chaeter bearing 
 
 DATE the 18th DAY OF MAY 1488, BY WHICH JaMES THE ThIRD 
 
 OP Scotland granted the Dukedom op Montrose to Dayid 
 Earl op Crawford ^ et heredibus suis; was annulled and 
 made yoid. by the act op the first year of the reign of 
 King James the Fourth of Scotland, called the ' Act Ee- 
 'SCissoRY:'— That the Grant op the Dukedom made by King 
 James the Fourth to the said David Earl of Crawford in 
 
 1489 WAS A GRANT FOR THE TERM OP HIS LIFE ONLYrf— AnD THAT 
 
 THE Petitioner, James Earl of Crawford and Balcarres, 
 
 HAS NOT ESTABLISHED ANY TITLE TO THE DuKEDOM OF MONTROSE 
 (CREATED IN 1488)4 
 
 » It thus appears that Lord Lyndhurst gave no opinion, and indeed felt doubtful (so far), whether or not the Regrant 
 was an hereditary grant, and whether or not the Act Revocatory of 1503-4 had the effect of rescinding the Act Rescissory. 
 
 t The Claimant has not as yet claimed under the Grant in question, and therefore this clause in the Resolution, being 
 an Opinion upon a point not brought before the Committee by the Petition of the Claimant and by the Reference thereupon 
 by Her Majesty, is as if it had never been uttered. See the Address, supra, p. xxvii. 
 
 X The Claimant may refer to his preliminary Address to Her Majesty (supra, pp. xviii sqq.) for the results which 
 (he apprehends) must necessarily follow in Peerage Law from the adoption of the line of procedure and the principles of legal 
 interpretation which have guided the Committee of Privileges to this Resolution. 
 
 cannot moreover but regi'et, on many accounts, that Lord part of the Claimant's Reply to the objections urged by the 
 Brougham was absent (doubtless unavoidably) during the whole Crown in opposition to him. 
 of the concluding day of hearing, — that is, during the greater 
 
 3 A 2 * 
 
APPENDIX, 
 
 CONTAINING 
 
 THE LEADING DOCUMENTS 
 
 ADDUCED AND EEFEBEED TO, 
 
 AND THE OEAL EVIDENCE DELIVERED, 
 
 BY AND ON BEHALF OF 
 
 THE CLAIMANT AND THE CROWN, 
 
 IN THE PRESENT CLAIM. 
 
 3 B 
 
APPENDIX. 
 
 LEADING DOCUMENTS ADDUCED AND REFERRED TO, AND ORAL EVIDENCE 
 DELIVERED, BY AND ON BEHALF OF THE CLAIMANT AND THE CROWN, IN 
 THE PRESENT CLAIM.* 
 
 Deciding Speeches on the Pkeliminary Question of the right of James Duke of Montrose (under 
 
 THE later creation) TO OPPOSE IN THE ClAIM ; WITH SUBSEQUENT CONVERSATION, AND THE RESOLU- 
 TION, 14th April 1851.— From the Short-hand Notes of Mr. Gurney.— (Referred to supra, 
 
 p. VII.) 
 
 (No. L) 
 
 " Lord Brougham. — My Lords, it appears to me, and I understand that my Noble and Learned friend the 
 Lord Chancellor, -j- who has been obliged to leave the House on important business elsewhere, takes the same view 
 of the case, that, upon the whole, there can be no doubt of this House having the power to exercise a large discre- 
 tion in admitting parties standing more or less on the same ground with the present Noble Petitioner. That it 
 has exercised that discretion in certain cases is equally clear, — but in those cases there were reasons moving the 
 House so to exercise it ; and it does not appear to me that there is any peculiarity in the present case 
 WHICH OUGHT TO CALL UPON YOUR LoRDSHiPS TO EXERCISE THAT DISCRETION. The mere admitting of another 
 Contradictor, in addition to the Attorney General and the Lord Advocate, does not appear to be a sufficient ground 
 of inducement to have that Contradictor, as well as the Officers of the Crown, as the Assessor of your Lordships 
 in this Case. A general statement is made at the close of this Petition, as if those representing the Noble 
 Petitioner had some peculiar information, some peculiar facts, which, if introduced by them, might prevent the 
 Noble Claimant from prosecuting his Claim. They will have an opportunity of suggesting those facts and com- 
 municating that information to those who are to aid your Lordships on the part of the Crown. Upon the whole, 
 
 I DO NOT SEE ANY GROUND FOR RECOMMENDING YOUR LoRDSHIPS TO GRANT THE PRAYER OF THIS PETITION. 
 
 I should, therefore, in that case, if no other Noble Lord is disposed to address your Lordships, move that no 
 
 STEP BE TAKEN UPON THIS PETITION, THAT NOTHING BE DONE UPON IT. I bclicve it is USUal rather tO do 
 
 nothing upon it than to reject it formally. 
 
 Lord Campbell. — My Lords, I would merely say that, if I thought that the Case would be better heard 
 by admitting a Contradictor, which I think we clearly have the power to do, I should move that the prayer of the 
 Petition be granted. But as the Noble Petitioner in his Petition does not allege that he has any peculiar means 
 of information, as Sir Hugh Campbell did with regard to the Marchmont Case, it seems to me that the Case is 
 
 LIKELY TO BE BETTER HEARD WITHOUT A CONTRADICTOR, LEAVING IT IN THE HANDS OF THE ATTORNEY GeNERAL 
 
 AND THE Noble Candidate. I speak, my Lords, from considerable experience, having had the honour of 
 holding the office of Attorney General for the Crown for a great many years ; and I have n,o doubt that, if 
 THE Attorney General does his duty (and I know that he does his duty in the most exemplary manner), we 
 
 SHALL HAVE THE CaSE LAID BEFORE US IN A MORE SATISFACTORY MANNER BY HIM AND THOSE WHO ASSIST HIM 
 
 THAN BY ADMITTING THE INTERPOSITION OP AN Amicus CuricB. For thesc rcasous, my Lords, I feel, with my 
 Noble and Learned friend, that we ought not to do anything upon the Petition ; and I have no doubt that 
 the Case will be more satisfactorily heard in the usual manner, and that your Lordships will come to a sound 
 conclusion. — I would merely add this observation, that I am sure that any information which the Noble 
 Petitioner has in his power he v.ill most willingly hand over to the Officers of the Crown ; and I am sure that 
 they will most gratefully receive it. With the greatest respect for the most learned and able Counsel who are 
 retained by the Duke of Montrose, I still think that, if that evidence is handed over to the Crown, it probably 
 will be brought before us as effectually as if a third party interposed. 
 
 Mr. ^qpe.— Perhaps, my Lords, I may be allowed to observe that I trust the power to circulate a Case 
 will be granted to us. The Crown never circulates a Case.| 
 
 Mr. Holt.— It will be material if that be so, my Lords. Really, my Lords, this Case is one of vital 
 importance, the Case being of such a peculiar character. It is a documentary Case of the most extraordinary 
 character, the documents requiring to be collated with other documents to be stated, and not to be stated at the 
 Bar, but to be stated in print and to be read. 
 
 Sir FitzBoy Kelly.— 1 may perhaps be permitted to say, on behalf of the Noble Claimant for whom I 
 
 * For the principles on which the ensuing e-vidence is printed see the ' Advertisement and Introduction,' sxipra. 
 
 t Lord Truro. % In refutation of this, vide ' S. Case,' pp. 231, 232. 
 
 3 B 2 
 
374 * APPENDIX. 
 
 appear, that, if there be any documentary or other matter which it is in the power of His Grace the Duke of 
 Montrose to suggest, far from making any opposition, we should be very happy to afford every facility for it, 
 provided it be done in conformity with the rules of your Lordships' House and of the Committee. 
 
 Mr. Eoli. — It would be exceedingly convenient if the Attorney General could lodge a Case. 
 
 Sir FitzRay Kelly. — Any Statement or Case prepared on behalf of the Duke of Montrose, and lodged 
 through the Attorney General, so that of course the Noble Claimant could have access to it, we should be very 
 glad to facilitate. 
 
 Lm-d Brougham. — The course which I ventured to suggest to their Lordships, and which their Lordships 
 have adopted, of making no Order, will leave it open to making any arrangement. 
 
 Mr. Bolt. — If it is left to arrangement, I apprehend my learned friend would hardly consent to an 
 arrangement. We should be anxious that the documents should be circulated among your Lordships in some 
 authentic form ; and if your Lordships simply make no order and leave us to make an arrangement, I fear we 
 shall not have an arrangement to that effect. 
 
 Lord Crmiivorth.* — You can communicate the information to the Noble Claimant, he giving you an 
 undertaking tliat he will bring it before us. 
 
 Mr. Roll. — Yes, my Lord, — but will he give that undertaking ? 
 
 Chairman. — This is a sepakate an'd distikct application fkom the application to be heard. 
 
 Mr. Rolt. — Yes, my Lord. — If your Lordsliips would give us liberty to lodge a printed Case without 
 liEixG heard upon IT, it would he A great concession. It is quite prepared and quite ready. That is part of 
 the prayer, my Lord. 
 
 Lord Cranworth. — I think that is rather for the benefit of the Claimant. 
 
 Sir FitzRoy Kelly. — I should venture to think, my Lord, that it would be done through the Attorney 
 General. 
 
 Earl of Devon. — No, it would involve other Cases. 
 
 Lord Campbell. — The arrangement seems to me to be very satisfactory, and it really will assist us. As 
 my Noble and Learned friend behind me sayt^, it can be of no prejudice to the Claimant. 
 
 Lord Brougham. — It is better for the Claimant. 
 
 Sir FitzRoy Kelly. — I entirely agree, my Lord. 
 
 Lord Cranworth. — ily only reason for suggesting the contrary, that, instead of lodging a Case, you 
 should communicate it to the Claimant, was rather in favour of the Noble Duke who is opposing ; because 
 printing a Case and circulating it, althougli not a matter of great importance, yet throws a certain burthen upon 
 him which perhaps is not quite fair. 
 
 3Ir. Rolt. — It is done, my Lord. 
 
 Sir FitzRoy Kelly. — Of course that Case will be furnished like\^ise to the Claimant ? 
 
 Mr. Rolt. — Certainly. 
 
 Lord Brougham. — By this form we do not i^reclude the possibility of your ever being heard afterwards 
 when we shall see the Case, — therefore that course of proceeding has the benefit of leaving it open. 
 
 Sir FitzRoy Kelly. — Of course, my Lord, any such Order would be without prejudice to any application 
 on the part of the Claimant to lodge a Supplemental Case. 
 
 Mr. Rolt. — I understand then, my Lord, that the Order is, that the Prayer of the Petition be complied 
 Avith so far as regards lodging a Case. 
 
 Lord Brougham. — Yes. 
 
 Sir FitzRoy Kelly. — It will be done without delay, I presume, as I understand it is ready ? 
 
 Mr. Rolt. — Quite ready." 
 
 RESOLUTION, &c. 
 Die Luna, 14 Aprilis, 1851. 
 
 " Dukedom of Montrose (created in 1488), Claim to the.— Committee for Privileges, to whom it 
 was referred to hear Counsel upon the preliminary question as to the Right of James Duke of Montrose to appear 
 and be heard in opposition to the claim, met. Then the Petition of James Duke of Montrose, praying that he 
 may have leave to be heard before the Lords Committees for Privileges by himself, his counsel, agents, and 
 witnesses in opposition to the claim of James Earl of Crawford and Balcarres to the ancient honour and dignity 
 of Duke of Montrose, created by James III., King of Scotland, with all the rights and privileges thereto apper- 
 taining ; that he may also have leave to lodge a printed Case therein ; and that, to enable him to make the 
 searches and investigations that are necessary on his behalf, the proceedings on this claim may be stayed till the 
 next Session of Parliament (presented to the House on the 11th of June, 1850), was considered, and Counsel for 
 the Petitioner heard thereon. Then the Committee resolved. 
 
 That the Prayer op the said Petition be complied with so par as it prays that leave be given 
 
 to James Duke op Montrose to lodge a printed Case in opposition to the said claim : 
 
 Report thereof to be made to the House." 
 
 * Lord Chancellor in 18.^3 and now (1854). 
 
APPENDIX, 
 
 II. 
 
 Chaeter, oe Patent, by James III, ]8th May 1488, CHANGma and elevating the Earldom of 
 Crawford, as borne by David fifth Earl of Crawford, into a Dukedom, to be entitled the 
 Dukedom of Montrose, with limitation to Earl David "et heredibus suis."-From the 
 Eegister of the Great Seal of Scotland, preserved in Her Majesty's -Gexneral Register 
 House, Edinburgh._Printed in the 'Minutes of Evidence' in this Claim, p. 12.-(Referred 
 to m the Cases of the Claimant, and in the present volume, passim.) 
 
 1. Chabtee, OB Patent, ut supra, 18th Mat 1488. 
 
 (No. II.) 
 " Carta David Comes [sic] Crawfurdie. 
 
 " Jacobus, Dei gratia Rex Scotorum, Omnibus probis 
 hominibus totius terre sue, clericis et laicis, Salutem. 
 
 Cedit namque regibus ad gloriam et honorem, dum 
 persone preclari generis, suis preclaris exigentibus 
 meritis, dignitatibus inclitis preferutitur ; ut exinde, cum 
 sues cernerint status et nomina majoribus titulisdecorari, 
 ad graiidiora virtuosiora perageuda, magis ae magis, in 
 suam laudem, regnique reipublice decorem et frugem, 
 studeant se ferventius insudare,— Hinc est quod Nos, 
 sedula meditatione pensantes obedientiam actualem, gra- 
 tamque obsequendam gratificandam promptitudinem, 
 quas fidelis et carissimus consanguineus noster David, 
 Comes Craufurdie et Dominus Lindesay, nobis indefessa 
 intentione exhibuit multis modis ; et perspectatius atten- 
 dentes, quod liberaliter, ut debebat, personam suam, 
 suosque nobiles et vassallos, pro persone nostre et 
 corone tutamine et defensione, nostro etiam honore con- 
 servando, frequenter exposuit periculis cum effectu, et 
 precipue ac novissime contra nostros infideles ligeos, qui 
 se contra nostram majestatem et vexillum in campo 
 bellico apud Blal^ness opponebant, — et pro suo servitio 
 nobis in futurum impendendo ; Eundem David, nostrum 
 consanguineum, ampliori volentes fulgere dignitate, et 
 
 COMITIS TITULOM SUPKADICTUM IN MaJOEEM ExCEL- 
 
 LENSiOREMQUE MuTANTES, dictum David, consangui- 
 neum nostrum, DucEM, ex nostris certa scientia, potestatis 
 plenitudine, et gratia speciali, sublimavibus, fecimus, et 
 creavimus, ac tenore presentis carte nostre sublimamus, 
 facimus, et creamus, perpetuis futuris temporibus Ducem 
 HEBEDiTABlE DE MoNTKOss intitukndum et nuncu- 
 pandum, — volentes et decernentes dictum David, con- 
 sanguineum nostrum, et sues in dicto Ducatu succe- 
 dentes, DacES appellari. Dedimusque et conces.><imus, 
 tenoreque presentis carte nostre damus et eoncedimus, 
 eidem, hereditarie, capitale messuagium et locum castri 
 de Montrose, vulgariter nuncupatum le Castelsted, 
 necnon totum et integrum burf^um et villam nostram 
 de Montrose, cum redditibus, firmis burgalibus, magnis 
 et parvis custumis, ac libertatibus et commoditatibus 
 eorundem, nunc nobis de eisdem burgo et villa per- 
 tinentibus ; ac etiam dedimus, et tenore presentis carte 
 nostre damus, eidem nostro consanguineo portum et 
 stationem navium ejusdem burgi, cum pertinentibus, 
 cum lirmis aquarum et piscationibus nobis de eodem 
 burgo pertinentibus, et infra libertatem ejusdem exist- 
 entibus, jacentibus infra vicecomitatum nostrum de 
 Forfare. Insuper dedimus et concessimus, tenoreque 
 presentis carte nostre damus et eoncedimus, heredi- 
 tarie, eidem Duci capitale messuagium et locum Castri 
 dorainii nostri de Kinclevin, ac terras dominicales 
 ejusdem quas sponsa quondam Willielmi Haket nunc ad 
 
 " James, by the grace of God King of Scots, to all 
 honest men belonging to his whole territory, clergy and 
 laity, wisheth health. 
 
 Forasmuch as it contributes to the glory and honour 
 of Kings wlien persons of illustrious race, their illus- 
 trious merits exacting this, are preferred to exalted 
 dignities, in order that when they perceive their rank 
 and name decorated with higher titles, they may hence- 
 forward study and labour more and more fervently in 
 doing noble and virtuous actions, to their own praise 
 and the honour and profit of the realm and common- 
 wealth; Hence is it that We, reflecting upon the 
 actual obedience and the grateful and commendable 
 promptitude which our faithful and most dear cousin 
 David, Earl of Crawford and Lord Lindsay, has exhi- 
 bited towards us, with unwearied zeal, and in many 
 modes; and especially considering that he has freely, 
 frequently, and effectually exposed his own person, his 
 nobles, and his vassals, to perils for the protection and 
 defence of our person and crown, also preserving our 
 honour, and chiefly and most recently against our faithless 
 lieges who opposed themselves against our majesty and 
 standard in the field of battle at Blackness, — as well as 
 for his service to be paid unto us in future ; We [there- 
 fore], willing that the same David, our cousin, should 
 shine with ampler dignity, and Changing the fore- 
 said TITLE OP EaEI into A GREATER AND LoPTIER 
 
 ONE, have, from our certain knowledge, plenitude of 
 power, and special grace, exalted, made, and created, 
 and by the tenor of our present charter we do exalt, 
 make, and create the said David our cousin, a Dlike, to 
 be entitled and called in all future times Duke, here- 
 ditarily, OF Montrose, — willing and ordaining the 
 said David, our cousin, and liis successors in the said 
 Dukedom, to be called Dukes. And we have given 
 and granted, and by the tenor of this our present 
 charter we give and grant, to the same [David] here- 
 ditarily the capital messuage and place of the castle of 
 Montrose, vulgarly called the Castle-stead,— also our 
 whole and entire burgh and town of Montrose, with 
 the rents, burgh-maills, great and small customs, and 
 liberties and privileges of the same, now appertaining 
 to us from the said burgh and town ; and we also have 
 given, and by the tenor of this present charter give, to 
 the same our cousin the port and haven of the same 
 burgh, with its pertinents, with the water-rights and 
 fishings appertaining to us from the said burgh, and 
 being within the liberty of the same, lying within our 
 Sheriffdom of Forfar. Moreover we have given and 
 granted, and by the tenor of this present charier we 
 give and grant, hereditarily, to the same Duke the 
 capital messuage and castle-stead of our Lordship of 
 
376 
 
 APPENDIX. 
 
 vitam habet, ac omnes et singulas alias terras dicti 
 dominii de Kinclevin, cum molendinis, multuris, et pis- 
 cariis earundem, ac cum omnibus aliis pei-tinentibus, 
 tenentibus et tenandriis, nobis de dicto dominio per- 
 tinentibus : — 
 
 QuoDQUiDEM capitale messuagium et locum Castri 
 de Montrose, ac burgum et villam de Montrose, cum 
 firmis burgalibus, aquaticis, magnis parvisque custumis, 
 dicti burgi, cum libertatibus aliis eorundem, necnon 
 capitale messuagium et locum Castri dicti nostri dominii 
 de Kinclevin, ac terras dominicales ejusdem, ac omnes 
 et singulas alias terras dicti dominii de Kinclevin, cum 
 tenentibus, tenandriis, molendinis, multuris, piscariis, et 
 omnibus aliis pertinentibus, jacentibus in vicecomitatu 
 nostro de Perth, creavimus, univimus, arinexiviraus, et 
 incorporavimus, ac tenore presentis carte nostre cream us, 
 unimus, annectimus, et incorporamus, in unum merum 
 et liberum Ducatum, perpetuis futuris temporibus 
 Ddcatum de Montrose nuncupanduni, ac tenendum 
 in libera regalitate pro perpetuo : — 
 
 Tenendum et habendum predictum capitale mes- 
 suagium et locum Castri de Montrose, vulgariter nun- 
 cupatum le Castelsted, ac burgum et villam de Mon- 
 trose, cum libertatibus eorundem superius dictis, necnon 
 capitale messuagium et locum Castri de Kinclevin, et 
 terras dominicales ejusdem, ac omnes et singulas alias 
 terras dicti dominii de Kinclevin, cum molendinis, mul- 
 turis, piscariis, tenentibus, tenandriis, et aliis omnibus 
 pertinentibus, nobis de dicto dominio spectantibus, nunc 
 per nos in unum merum et liberum Ducatum creatum 
 et incorporatum, Ducatum de Montrose (ut premittitur) 
 nuncupandum, dicto David et hekedibus suis, de 
 nobis et successoribus nostris, Kegibus Scotie, in feodo 
 et hereditate, ac in libero Ducatu, necnon in libera 
 regalitate, imperpetuum — per omnes rectas metas suas, 
 antiquas et divisas, prout jacent in longitudine et lati- 
 tudine, in boscis, planis, moris, maresiis, viis, semitis, 
 aquis, stagnis, rivulis, pratis, pascuis, et pasturis, molen- 
 dinis, multuris, et eorum sequelis, aucupationibus, vena- 
 tionibus, piscationibus, petariis, turbariis, carbonariis, 
 lapicidiis, lapide et calce, fabrilibus, brasinis, brueriis, 
 et genestis, ac cum curiis Justiciarie, Camerarie, et 
 aliis curiis, tam infra dictum burgum quam in libertate 
 ejusdem, et infra dictas terras de Kinclevin, et earum 
 exitibus et amerciamentis, ad usum et proficuum dicti 
 David suorumque lieredum levandis et percipiendis ; Ac 
 cum omnibus aliis et singulis libertatibus, commodi- 
 tatibus, et asiaraentis, ac justis pertinentibus quibus- 
 cimque, tam non nominatis quam nominatis, ad predictum 
 [sic] capitalia messuagia, loca Castrorum, burgum ac 
 villam de Montrose, et terras, cum omnibus pertinentibus 
 suis spectantibus sen spectare valentibus quomodolibet — 
 IN FOTUKUM, adeo libere, quiete, plenarie, integre, hono- 
 rifice, bene, et in pace, sicut aliquis Ducatus cuicunque 
 persone infra nostrum regnum temporibus retroactis 
 datur, seu conceditur, aut dari, seu concedi poterit, 
 qualitercunqup, in futurmn : — 
 
 Reddendo inde annuatim dictus David et heredes 
 sui nobis et tuccessoribus nostris, Regibus Scotie, unam 
 rubeam rosam, apud dictum capitale messuagium de 
 Montrose, in festo Sancli Johannis Baptiste, in estate, 
 nomine albe firme, si petatur tantum, pro omni alio 
 servitio seculari, seu demanda, questione, aut exactione, 
 que exinde juste exigi poterint quomodolibet vel requiri. 
 
 Insuper volumus et concessimus, tenoreque presentis 
 
 Kinclevin, and the dominical lands of the same, which 
 the spouse of the late William Haket nove has for life, 
 and all and singular the other lands of the said Lord- 
 ship of Kinclevin, with the mills, multures, and fishings 
 of the same, and with all other pertinents, tenants, and 
 superiorities, appertaining to us from the said Lord- 
 ship : — 
 
 [Quodquidem, &C.J Which capital messuage and 
 castle-stead of Montrose, and burgh and town of Mon- 
 trose, with the burgh-maills, water-rights, great and 
 small customs of the said burgh, with the other liberties 
 of the same, and also the capital messuage and castle- 
 stead of our said Lordship of Kinclevin, and the domi- 
 nical lands of the same, and all and singular the other 
 lands of the said Lordship of Kinclevin, with the tenants, 
 superiorities, mills, multures, fishings, and all other 
 pertinents, lying within our Sheriffdom of Forfar, we 
 have created, united, annexed, and incorporated, and by 
 the tenor of this our present charter do create, unite, 
 annex, and incorporate, into a real and free Dukedom, 
 to be called in perpetual future times the Dukedom 
 OF Montrose, and to be held in free regality for ever. 
 
 [Tenendum, &c.] The aforesaid capital messuage 
 and place of tiie castle of Montrose, vulgarly called the 
 Castle-stead, and the burgh and town of Montrose, 
 with the liberties of the same above recited, also the 
 capital messuage and castle-stead of Kinclevin, and the 
 dominical lands of the same, and all and singular the 
 other lands of the said Lordship of Kinclevin, with the 
 mills, multures, fishings, tenants, superiorities, and all 
 other pertinents, belonging to us from the said Lord- 
 ship, now created and incorporated by us into a real 
 and free Dukedom, to be called (as is premised) the 
 Dukedom of Montrose — To be held and had by 
 the said David and his heirs, of us and our suc- 
 cessors, Kings of Scotland, in fee and heritage, and in 
 free Duchy, as also in free regality, for ever — through- 
 out all its right bounds, ancient and divided, as they 
 lie in length and breadth, in woods, plains, moors, 
 marshes, ways, paths, waters, ponds, rivulets, meadows, 
 and pasturage, [with] mills, multures, and their services, 
 hawkings, huntings, fishings, rights of peatary, turbary, 
 collieries, stone - quarries, stone and lime, smithies, 
 breweries, briar, and broom, — and with Courts of Jus- 
 ticiarship and Chamberlainry, and other Courts, as well 
 within the said burgh as in the liberty of the same, and 
 within the said lands of Kinclevin, and with their exit- 
 dues and fines, to be levied and uplifted for the use 
 and profit of the said David and his heirs ; and with all 
 other and singular the liberties, commodities, and ease- 
 ments, and just pertinents whatsoever, as well not 
 specified as specified, belonging, or which may possibly 
 belong in whatsoever mode, to the foresaid capital 
 messuages, castle-steads, burgh and town of Montrose, 
 and lands, with all their pertinents — in future, as 
 freely, quietly, fully, entirely, honourably, well, and in 
 peace, as any Dukedom hath been given or granted to 
 any person whatsoever within our realm in past times, 
 or may be given or granted in any manner hereafter : — 
 
 [Reddendo, &c.] The said David and his heirs 
 rendering from thence annually to us and our successors. 
 Kings of Scotland, a red rose, at the said capital mes- 
 suage of Montrose, on tlie feast of St. John the Baptist, 
 in summer, in name of blanch-ferm, if only it be 
 demauded, in lieu of all other secular service, or demand, 
 question, or exaction, that might in any mode what- 
 soever be justly exacted or required therefrom. 
 
 Moreover vve will and have granted, and by the tenor 
 
APPENDIX. 377 
 
 carte nostre volumus et concedimus, quod burgum dicti of this our present charter we will and grant, that the 
 
 burgi de Montrose et inhabitantes ejusdem, ac omnes burgesses of the said burgh of Montrose and the inha- 
 
 alie persone inhabitantes libertatem ejusdem, reple- bitants of the same, and all other persons inhabiting 
 
 gientur per dictum David, suosque heredes et ballivos, the liberty of the same, may be repledged by the said 
 
 ad libertatem et privilegium itinerum Camerarie tenen- David, his heirs and bailiffs, to the liberty and privilege 
 
 dorum infra dictum burgum ; ac etiam pariformiter of the Chamberlain's ayres to be held within the said 
 
 burgenses et inhabitantes dictum burgum, una cum burgh; and also, in similar manner, the burgesses and 
 
 omnibus et singulis tenentibus et inhabitantibus pre- inhabitants of the said burgh, along with all and singular 
 
 fatum dominium de Kinclevin, nunc dicto David datum, the tenants and inhabitants of the said Lordship of Kin- 
 
 veresimiliter per dictum David, et sues heredes ac bal- clevin now given to the said David, may similarly be 
 
 livos, replegientur de itineribus nostris Justiciarie de repledged by the said David and his heirs and bailiffs, 
 
 Forfare et Perth. Quare universis et singulis justi- from our Justiciary-ayres of Forfar and Perth. Where- 
 
 ciariis et camerariis nostris, qui pro tempore fuerint, fore we command by strict injunction to all and singular 
 
 stricte precipiendo mandamus, quatinus vos et vestrum our Justiciaries and Chamberlains who may be such for 
 
 quilibet dictos burgenses, et libertatem ejusdem, pre- the time, that you and each of you shall admit the said 
 
 fatosque tenentes, et inhabitantes dictum dominium de burgesses and liberty of the same, and the foresaid 
 
 I Kinclevin, ut prefertur, ad plegium admittatis sen ad- tenants and inhabitants of the said Lordship of Kin- 
 
 mittat, sub omni pena que [sic] competere poteritis in clevin, as is premised, to pledge, — under every penalty 
 
 hac parte. which it may be possible for you to incur in this 
 
 matter. 
 
 In cujus rei testimonium, presenti carte nostre magnum In testimony of which thing we have ordered our 
 
 sigillum nostrum apponi precipimus. Testibus ut supra, great seal to be appended to this our present charter. 
 
 Apud Edinburgh, decimo octavo die mensis Mail, "Witnesses as above. At Edinburgh, on the eighteenth 
 
 anno Domini millesimo quadringentesimo octuage.simo day of May, in the year of our Lord the one thousand 
 
 octavo, et regni nostri vicesimo octavo." four hundred eighty and eighth, and of our reign the 
 
 twenty-eighth." 
 
 Obseevation. 
 
 For proof, by the testimony of James IV. and Parliament in 1488 and afterwards, that James III. was lawful 
 and acknowledged King of Scotland at the time when he granted the Dukedom of Montrose and till his 
 death at the Battle of Stirling, 11th June 1488, see the Analysis of the Argument, supra, p. iv. 
 
 2. EVTDENCE AND EXAMINATION OP GrEOEOB BeOWN EobEETSON, ESQ., ASSISTANT DEPUTY KbEPEB OE THE ReCOEDS, 
 
 Edinbitegh, on his peodtjction op the Volume of the G-eeat Seal EEaisiEs coNTAiNiNa the peecedino 
 Patent. — ' Mmutes op Etidesoe,' pp. 8 sqq. — (Eeferred to supra, pp. v, vi.) 
 
 (No. III.) 
 
 " Mr. Stuart Wortley. — Do you hold the Office of Clerk in the Eegister House in Edinburgh ? 
 
 Mr. Robertson. — I have acted for ten Years past as Assistant to my Father and Uncle, the Deputy 
 Keepers of the Eecords. 
 
 Mr. Stuart Wortley.— Haye you in that Capacity become acquainted with the Eegister of the Great Seal ? 
 
 Mr. Robertson. — I have. 
 
 Mr. Stuart Wortley. — Do you produce a Volume of that Eegister which you have brought from the 
 Eegister House ? 
 
 Mr. Robertson. — I do {producing the same). 
 
 Mr, Stuart Wortley. — For what Year is that ? 
 
 Mr. Robertson. — It contains a great Number of Years. I could not say precisely what Years, but, among 
 others, it contains Part of the Year 1488. 
 
 Mr. Stuart Wortley.— In the Year 1488 do you find recorded in the Register the Patent of the Dukedom 
 of Montrose ? 
 
 Mr. Robertson.— I do, in Volume Ten of the Eegister of the Great Seal, No. 69. It is entitled ' Carta 
 ' David Comitis Crawfurdie de Titulo et Dignitate Ducis de Montrose.' It is dated the 18th of May, 1488. 
 
 Cross-examined by the Lord Advocate. 
 
 Lord Advocate.— WiW you be kind enough to look at the End of that Charter, at the Testing Clause ? In 
 what Way is the Testing Clause expressed ? 
 
 Mr. Robertson.—' In cujus rei testimonium presenti carte nostre magnum sigillum nostrum apponi pre- 
 ' cipimus. Testibus ut supra. Apud Edinburgh, decimo octavo die mensis Mali, anno Domini millesimo quadrin- 
 ' gintesimo octuagesimo octavo, et regni nostri vicesimo octavo.' 
 
 Lord Advocate. — "What "Witnesses are those referred to ? 
 
 Mr. Robertson. — It refers to the "Witnesses in previous Charters recorded in the same Book. 
 
 Lord Advocate. — The immediately preceding Charter ? 
 
 Mr. Robertson.—' Ut supra ' may refer either to the immediately preceding one or to any preceding one 
 
 of the same Date. 
 
 Lord Advocate.— There is no Testing Clause as a Eeference to the "Witnesses in the Charter preceding? 
 
378 APPENDIX. 
 
 Mr. Robertson. — No. 
 
 By a Lord.—'Does it refer to the Charter preceding ? 
 
 Mr. Robertson.— It does not. It says ' Testibus ut supra.' 
 
 3Ir. Stuart Wortley.— Are there any other Charters of the same Date immediately preceding it ? 
 
 Mr. Robertson.— The immediately preceding Charter in this Volume bears the same Date. 
 
 Mr. Stuart Worthy. — The next but one preceding ? 
 
 Mr. Robertson.— The next but one is the 24th of May, of a later Date, but registered before it. 
 
 By a Lord. — Who are the Witnesses to the one immediately preceding ? 
 
 Mr. Robertson.—' William Bishop of Aberdeen, the Chancellor, Andrew Bishop of Murray, our well- 
 ' beloved Cousins David Earl of Crawford, Lord Lindsay, our Great Chamberlain, John Earl of Atholl, John 
 ' Lord Maxwell, Alexander Lord Kilmaurs, Alexander Lord Forbes,' &c. 
 
 By the same. — What is the Date of it ? 
 
 Mr. Robertson. — It is of the same Date as the Patent in favour of the Earl of Crawford. 
 
 By the same.— Then the Earl of Crawford was a Witness to One of the Charters entered in this Book 
 bearing the same Date as the Patent to himself? 
 
 Mr. Robertson. — Yes. 
 
 By the same. — And to that he is stated to be a Witness? 
 
 Mr. Robertson. — Yes.* 
 
 By the same. — What is that First Charter to which the Names of the Witnesses are attached, and to which 
 Lord Crawford was a Witness ? 
 
 Mr. Robertson.— The First Charter is a Charter to Thomas Turnbull, No. 68 of Book 10 of the Eegister 
 of the Great Seal. 
 
 By the same. — What is the Date ? 
 
 Mr. Robertson.— The 18th of May 1488. 
 
 By the same. — What is the Nature of the Grant ? 
 
 Mr. Robertson. — It is a Grant to Thomas Turnbull of certain Lands. 
 
 Mr. Stuart Wortley. — Will you read the Grant ? 
 
 The same was read as follows : — 
 " ' Carta Thome Turnbull. 
 
 " - Jacobus,' &c. t ' Sciatis nos, pro bono, fideli, gratuitoque servi[tio] nobis impenso et impendendo 
 ' per dilectum familiarem nostrum Thomam Turnbule de Grenewod, militem, et specialiter pro suS. assistentia et 
 ' auxilio nobis per eundem Thomam in campo bellico apud Blaknes impenso, ubi ipse vexillum nostrum regium 
 ' in defensione nostre persone regie et corone portabat, eidem Thome dedisse, concessisse, et hac present! carta 
 ' nostra confirmasse, totas et integras terras nostras de Tarinzane, cum pertinentibus, extendentes ad viginti mercatas 
 ' terrarum antiqui extentus, jacentes infra Vicecomitatum nostrum de Are : — Tenendas et Habendas totas et 
 ' integras predictas terras de Tarrinzane, cum pertinentibus, prefato Thome et heredibus suis, de nobis et succes- 
 ' soribus nostris, in feodo et hereditate, imperpetuum, per omnes rectas metas suas,' &c. : — ' Reddendo inde 
 ' annuatim dictus Thomas et heredes sui nobis et successoribus nostris,' &c. ' In cujus rei testimonium,' &c. 
 ' Testibus reverendis in Christo patribus, Willielmo Episcopo Abirdonensi, Cancellario nostro ; Andrea Episcopo 
 ' Moraviensi, avunculo nostro ; dilectis nostris consanguiniis, David Comite de Craufurd, Domino Lindesay, 
 ' Magna Camerario nostro; Johanne Comite Atholie, Domino de Balvany, avunculo nostro; Johanne Domino 
 ' Maxwel ; Alexandro Domino Kilmawris ; Alexandro Domino Forbes ; Johanne Domino Carlile ; Magistro 
 ' Archibaldo Quhitelaw, Archidiacono Laudonie, Secretario nostro ; et Domino Alexandro Scot, Rectore de 
 ' Wigtoun, Clerico nostrorura Rotulorum et Registri. Apud Edinburgh, decimo octavo die mensis Mali, anno 
 ' Domini millesimo quadringentesimo octuagesimo octavo, et regni nostri vicesimo octavo.' 
 
 3Ir. Stuart Wortley. — Will you pass on to the next Charter to which there are any Witnesses, and state 
 what is the Date? 
 
 Mr. Robertson. — The Date is, Edinburgh, 18th May 1488. The Witnesses are not specified nominatim. 
 There is a Reference in these words, ' Testibus ut supra.' 
 
 Mr. Stuart Wortley. — ^That comes immediately after the Charter of which you have been reading the 
 Testing Clause? 
 
 Mr. Robertson. — Yes, immediately after. 
 
 Lord Advocate.— Is that Form of referring to the Witnesses in the preceding Entries common in that 
 Register ? 
 
 Mr. Robertson. — It is very common. 
 
 Lord Advocate.— T)o those Words generally refer to the immediately preceding Charter ? 
 
 Mr. Robertson. — No ; I have sometimes seen them referring to the immediately preceding, and sometimes 
 they refer to the Second or Third preceding.| There are different Modes of Reference back to the Witnesses. 
 
 By a Lord. — Do they sometimes refer to One that is entered afterwards ? 
 
 * The Claimant, in his ' Supplemental Case,' cited " the " of the charter immediately preceding one of the -witnesses is 
 
 " registration in the Great Seal liegister of a Charter, 26th .Tune " ' Andrei Domino Gray.' " — S. Case, p. 4. 
 
 " 1490, hy James IV., to Andrew Lord Gray, High Justiciar of f TheCharterisprintedatlengthin the 'Minutesof Evidence," 
 
 " Scotland, of Broughty Castle, the key of Forfarshire, as pre- but is slightly abridged here, for the sake of brevity. 
 
 " cisely similar in form, as regards the testing clause, with the % A first, a fifth, a fourteenth, and a tenth preceding charter are 
 
 " Montrose patent. The words in the testing clause are, ' testibus referred to at pp. 401, 403, 50.3, 504, injra; and ' other preceding 
 
 " ' ut in carta immediate precedenti;' and in the testing clause ' charters,' generally, at p. 541. 
 
APPENDIX. 
 
 379 
 
 Mr. Robertson. — No ; I never saw a Reference to one that was entered afterwards. 
 
 Lord Advocate. — Do there occur in the Register instances of Charters engrossed, not in full, but in an 
 abbreviated Form ? * 
 
 Mr. Robertson. — Yes, there are several instances of Entries of that kind. 
 
 Lord Advocate. — Of what Nature are those Gifts generally ? Are they Heritages or Life Grants ? 
 Mr. Robertson. — I never examined the Register so as to take upon me to answer that Question. I know 
 that a Number of Life-rent Grants are recorded in this Register in an abbreviated Form. 
 By a Lord. — Can you turn to any One ? 
 
 Mr. Robertson. — I think I can : not in this Volume ; but I think I can turn to various Instances in another 
 Volume which I have. 
 
 By the same. — In that Register Book are the Entries consecutive according to the Dates, or is an Entry 
 of a later Date to be found frequently before an Entry of an earlier Date? 
 
 Mr. Robertson.— Yery frequently indeed. You will find an Entry of a later Date entered in the Register 
 before One of an older Date. 
 
 By the same. — Are there many Instances of that ? 
 
 Mr. Robertson. — A great many. 
 
 Lord Advocate. — In point of fact, with reference to this particular Entry of the Grant to the Duke of 
 Montrose, is it entered in the Order of Time ? 
 
 Mr. Robertson. — Oh no. It would be almost impossible to say, with reference to any Charter in the 
 Register of the Great Seal, that it was recorded precisely in the Order of Time. 
 
 Lord Advocate. — Are not they sometimes Two or Three Years out of the Order of Time in this Volume ? 
 
 Mr. Robertson.— 1 could not say without a critical Examination of the Volume. 
 
 Lord Advocate. — You have not examined it with that View ? 
 
 Mr. Robertson. — No. 
 
 By a Lord. — What Difference have you ever observed in point of Time ; how many Months or Years ? 
 
 Mr. Robertson. — I have seen a Difference of several Years. 
 
 By the same. — That is to say, an Entry of 1488 might be made before an Entry of 1480 ? 
 
 il/r. Robertson. — Yes ; I should not be at all surprised to find that. 
 
 By the same. — Does any Means exist in the OfRce of telling us from what Originals those Entries were 
 copied ? 
 
 Mr. Robertson. — This Register is a Register made in Chancery of all the Writs which have passed 
 the Seal. 
 
 By the same. — Is the Charter of the Earldom of Glencairn recorded in that Register ? 
 
 Mr. Robertson. — I do not know the Date of the Earldom of Glencairn. I never had occasion to 
 search for it. 
 
 By the same. — When a Party takes a Patent to be entered in that Book, does he leave a Copy, or does the 
 OfRce make a Copy of the Patent or a Memorandum of the Patent before entering it in that Book ? 
 
 Mr. Robertson. — I believe there is a different Practice now from what there was in old Times with regard 
 to recordino- Charters passing the Great Seal. Prior to 1672 no Charter was entered in the Register of the 
 Great Seal which had not actually had the Seal appended to it. In 1672 there was an Act of Parliament 
 passed, ordering the Director of Chancery to record the Writ before he gave it out to get the Seal appended. 
 
 Mr. Stuart Wortley. — Then prior to 1672 no Charter was recorded in that Register, except such as had 
 actually passed the Seal ? 
 
 Mr. Robertson. — Yes. 
 
 Mr. Stuart ]Vortley. — But since 1672, under the Authority of that Act of Parliament, they have regis- 
 tered Writs before the Great Seal was appended ? 
 
 Mr. Robertson. — Yes. 
 
 Lord Aduocate. — How do you know that ? 
 
 Mr. Robertson.- — ^I state it upon the Authority of a Report which I have had occasion to consult, made by 
 Mr. Thomas Thomson, late Depute Clerk Register, to the Record Commissioners, in the Year 1807. 
 
 By a Lord. — There was an Act of Parliament passed in 1672 authorizing Charters to be registered 
 before the Great Seal had been appended '? 
 
 Mr. Robertson. — Yes, in order to remedy the inconvenience which had resulted from Parties neglecting, 
 after the Seal had been appended, to return the Writ to the Keeper to enable him to rerord it.\ 
 
 By the samc — Swce 1672 is there to be found in the Book the same Circumstance which existed before, 
 of the Dates not being followed, but a later Patent sometimes being entered before an earlier one? 
 
 Mr. Robertson. — Yes ; that may arise from this Cause, that the Date of the Charter is the Date of its 
 Warrant ; for instance, the Warrant for a Charter is a Precept under the Privy Seal, and the Date of the 
 Charter is the Date of that Warrant. After a Charter has passed the Privy Seal, it might be several Years 
 before the Party chose to get the Great Seal appended.X 
 
 By the jfome.— But there could not be a Difference of some Years from that cause? 
 
 Mr. Robertson. — It is not likely ; but there might be a Difference of a few Months." 
 
 * This and the two succeeding questions have reference to the of Sir Thomas Hope, as given supra, pp. v, vi, and in the 
 
 ' Litera' or re-grant of the Dukedom of Montrose, adduced ' S. Case,' p. 5. 
 
 infra, p. 532. J Illustrations of the above are given in the ' S. Case,' pp. 
 
 t On this point the Claimant would also refer to the testimony 7, 8 sqq. 
 
 3 C 
 
380 APPENDIX. 
 
 III. 
 
 Proof that David Duke of Montrose, the Patentee in 1488, did not resign the dignity :— 
 
 1. Evidence or GtEOEaE Meltilee, Esq.*—' Minutes ov Evidence,' p. 119.— (Eeferred to supra, p. vii.) 
 
 (No. IV.) 
 
 «• Mr. Stuart Worthy. — Have jow examined the ' Acta Dominorum Concilii,' the Eecords of Parliament, 
 and the Registers of the Great Seal, and the Privy Seal, from the 18th of May 1488 to the end of 1489, in order 
 to ascertain whether there was any Resignation recorded of this Dukedom by the Duke of Montrose ? 
 
 31r. Melville.— 1 have examined all these Registers for the Period in question, except that of the Privy 
 Seal, there not being any Privy Seal Record for that period. 
 
 Mr. Stuart Worthy. — Have you examined the other Registers I have mentioned ? 
 
 Mr. Melville. — I have. 
 
 Mr. Stuart fVortley.—Do you find in these Records either any Resignation itself, or any Reference to 
 any such Resignation ? 
 
 Mr. Melville.— 'No. 
 
 Mr. Stuart Wortley. — Do you know any other Place where such a Resignation would be likely to be 
 recorded ? 
 
 Mr. Melville.— No. 
 
 Mr. Stuart Wortley. — I believe there is no such Thing as a Register of Resignations ? 
 
 Mr. Melville. — No, there is not. 
 
 3Ir. Stuart Wortley. — Nor any Place of separate Deposit for Resignations ? 
 
 Mr. Melville.— No. 
 
 Mr. Stuart Wortley.— JIow would they appear ? 
 
 Mr. Melville. — They would appear in the new Charters or new Grants of what had been resigned. 
 
 Mr. Stuart Wortley. — Tliey would appear in the Recital of the new Charters? 
 
 Mr. Melville. — Yes. 
 
 Mr. Stuart Wortley. — But there is no process of Registration for mere Resignations as separate from the 
 Charters which proceed upon them ? 
 
 Mr. Melville. — There is no separate Record for Resignations." 
 
 2. PkOOP that even in ABBIDaED ENTEIE3 OE ChAETEES PEOCEEDING ON EeSIGNATION THE NOTICE OF THE EeSIONA- 
 TION IS NETEE OMITTED. 
 
 i. Abridged entry, in the Privy Seal Register, of a Precept for a Charter of the Sheriff- 
 ship of Aberdeen in favour of William Earl of Errol, proceeding on the Resignation 
 of John Earl of Crawford, 10th February IblO.—' Minutes of Evidence,' p. 119.— 
 (Referred to supra, p. vii.) 
 
 (No. V.) 
 
 " Preceptum carte Willielmi Comitis Erolie super officio Vicecomitatus de Aberdene, cum feodis, devoriis, 
 et pertinentiis ejusdem : — Quod fuit Johannis Comitis Craufurdie, et per suos procuratores in manihus Regis 
 BESiGWATUM, ctc. : — Tenendum sibi et heredibus suis de Domino Rege, etc. : — Faciendo servicium in dicto officio, 
 etc. : — Apud Edinburgh, decimo Februarii, anno v'x°, et regni Regis predicto." 
 
 Observation. 
 
 For a similarly abridged entry in the Privy Seal Register, 26th February 1506, of a grant of the Sheriffdom 
 of Stirling to Robert Master of Erskine, proceeding on the resignation of Sir Alexander Cunningham of 
 Polmaise and his son Robert, as well as for other illustrations and observations, vide supra, p. viii. — The 
 Claimant also, in putting in his evidence, invited the attention of the Committee to the grant of the Sheriff- 
 dom of Stirling under the Great Seal, 12th October 1501, and the similar grant to Robert Master of 
 Erskine, 26th February 1506 (which arc entered in extenso upon the Register), as showing ..." that 
 " when grants proceeded on Resignations, it was the universal practice in Scotland to specify the Resig- 
 " nations." Minutes of Evidence, p. 116. For other illustrations vide infra, pp. 515, 528, 536. 
 
 The Claimant's argument here is an h fortiori one, shewing that if, even in abridged notices of charters pro- 
 ceeding on resignation, the resignation is never omitted to be specified, it is impossible that the regrant 
 of the Dukedom by James IV. with advice of Parliament, 18th September 1489, (objected to the 
 Claimant by the Crown, infra, p. 531) can have proceeded on a resignation — which otherwise indeed 
 \s fully admitted by the Crown and the Committee. If therefore the Claimant succeed in additionally 
 proving that the original Patent was not annulled by Act of Parliament, that Patent must be still (as he 
 contends) in force at the present moment. 
 
 * The gentleman employed by the Claimant to make searches in the records, and the certified copies of documents adduced in 
 this Claim. 
 
APPENDIX. 
 
 381 
 
 lY. 
 
 The Act (which has been styled the Act) Eescissoey, 17th October 1488 ; and later Statutes in 
 pari materia: — 
 
 1. The Act Eescissoey, 17th Ociobee 1488-oedaining ik geneeal teems that such geanis of lands, oeeices, 
 
 DIGNITIES, &C. MADE BT JaMES III., SINCE THE 2ND FsBEUAET PEECEDING, AS " MIGHT BE PEE JUDICIAL " TO JaMES 
 IV. " BE GASSED AND ANNULLED," BECAUSE GEANTEDIN EEWAED OP AID AND COUNSEL EENDEEED TO THE LATE KiNG : 
 AND WHICH Act is held by THE OefICEES OP THE CeOWN AND BT THE COMMITTEE TO HAVE CUT DOWN THE 
 
 Dukedom op Montbose, per se, without qualipication, and without enquiet oe teial, although neithee 
 THE Dukedom noe the Duke aee named in it, although the Act, as the Claimant contends, bequiees legal 
 application to make it eppective, and although (as will appeae) it was a dead lettee, took no eppect, 
 AND WAS NULL AND TOID, ab m«4o.— Feom THE AcTS OP Paeliament, LAST EpiTioN, vol. ii. p. 211.*— (Referred to 
 supra, p. Tiii, a,nd pasHm.) 
 
 (No. VI.) 
 
 " In Parliamento . . Jacobi Quarti, Dei gratia Regis Scotorum, . . tentoapud Edinburgh, . . die Veneris, xvij 
 die mensis Octobris, anno Domini millesimo quadringentesimo oetuagesimo octavo, coram prefato 
 Supremo Domino nostro Rege, ibidem personal iter sedente. 
 
 ******* 
 " Hec sunt Acta et Statuta facta et confirmata in Parliamento prescripto. 
 
 ******* 
 
 " Item, anent the Proclamacione t maid at Scone, it 
 is statut and ordanit that all alienacions of landis, here- 
 tage, lang takkis, feivfermez, officez, tailzeis, blance- 
 /erWjCREAClON OF NEWDiGxiTEis, gpantit or gevin to ony 
 persone or persons, quhat estate, condicioun, or degre 
 that ever thai be of, sene the secund day of Februar 
 last by -past, be umqiihile our Soverane Lordis faider, 
 quham God assoilze, quhilk mycht be pkejudiciaie 
 TO OUR Soverane Lord and to the croune that now 
 IS, be cassit and adnullit, and of nane effect nor force in ony 
 tyme to cum, becaus that sic alienacion, giftis, and privi- 
 legis war grantlt, sene the said tyme,ybr the assistance 
 to the perverst counsale that xcar contrar the comon gud 
 of the realme, and cans of the slauchter ofoure Soverane 
 Lordis fader." 
 
 " Item, regarding the Proclamation made at Scone, 
 it is statute and ordained that all alienations of lands, 
 heritage, long leases, feu-firms, offices, tailzies, blench- 
 firms, CREATION OP NEW DIGNITIES, granted or given to 
 any person or persons, what estate, condition, or degree 
 that ever they be of, since the second day of February 
 last by-past, by late our Sovereign Lord's father, whom 
 God assoil ! which might be prejudicial to our 
 Sovereign Lord and to the Crown that now is, be 
 cassed and annulled, and of none effect nor force in any 
 time to come, because that such alienations, gifts, and 
 privileges were granted, since the said time,_/or the as- 
 sistance to the perverse council that were contrary [to] 
 the common good of the realm, and cause of the sloLughter 
 of our Sovereign Lord's father." 
 
 2. The latee oe Supplemental Act, 15th Febeuaet 1489-90, which, in eeciting and endeatoubing to peop up 
 THE Act Eescissoey, pointedly, and twice, omits dignities ; and which moeeotbe oedees the qeants op 
 James III. to be beought in and desteoted, undee penalties — but which oedee was (in many peoted oases) 
 
 NOT OBEYED, AS WILL APPEAE HEEEAPIEE. — !FeOM THE AcTS, LAST EDITION, Tol. ii., p. 222. — (Eeferred to 
 supra, p. cxxi.) 
 
 (No. VII.) 
 
 " Item, it is thocht expedient that, becaus tharewes a 
 Statut maid in our Soverane Lordis Parliament, that now 
 is, haldin at Edinburgh on Wednisday the viij [sic] day 
 of October, th'ere of God j^iiij^Ixxxviii zeris, declarand 
 all alienacions of landis, heretagis, lang takkis, few- 
 fermis, officez, tailzeis, blanch fermis landis mad of 
 ward, of nane avale efter the secund day of Februare, 
 quhilk wes the day of our Soverane Lord that now is 
 cuming furth of Strivilin, unto the coronacioun of our 
 Soverane Lordis Hienes, maid be his faider of maist 
 noble mynd, maid of nane avale, force, nor effect, for 
 
 " Item, it is thought expedient that, because there was 
 a Statute made in our Sovereign Lord's Parliament that 
 now is, holden at Edinburgh on Wednesday the eighth 
 (sic) day of October, the year of God one thousand four 
 hundred eighty-eight years, declaring all alienations 
 of lands, heritages, long lease's, feu -firms, offices, 
 tailzies, blench-firm lands made of ward, of none avail 
 after the second day of February, which was the day 
 of our Sovereign Lord that now is coming forth of 
 Stirling, unto the coronation of our Sovereign Lord's 
 Highness, made by his father of most noble mind, made 
 
 * It is to be observed that, as a general rule, the Acts of 
 Farliament founded upon by the Claimant and the Crown are 
 not printed in the ' Minutes of Evidence,' the Lord Advocate, on 
 the Claimant proposing to put in the Act Eescissory, having 
 stated " that it appeared to him unnecessary to prove this or any 
 " other Acts which were printed in the Statutes. Minutes, p. 14. 
 
 And again, — " The Lord Advocate stated, in reply to a Question 
 " by Mr. Stuart Wortley, That he admitted all the Acts of 
 " Parliament that were in the printed Collection of the Statutes, 
 " and that it was unnecessary to prove them." — Ibid., p. 19. 
 t Eespecting this Proclamation, vide supra, pp. viii, ix. 
 
 3 C 2 
 
382 
 
 APPENDIX. 
 
 certane causis conteiiit in the said Act and Statut ; That 
 therfore all thai quhilkis gat the pretendit giftis of alie- 
 nacioun of heretage, lang takkis, fewferm.es, ofjicez, 
 tailzeis, geving of blanchferme of ward landis, suld 
 bring thair lettrez and evidentis grantit herapon to our 
 Soverane Lord within fourtj dais, to be distroyit ; Cer- 
 tifying thaim that bringis nocht, the King will mak 
 thaini to be specialy callit and punist for thare in- 
 obedience." 
 
 of none avail, force, nor effect, for certain causes con- 
 tained in the said Act and Statute ; That therefore all 
 they which got the pretended gifts of alienation of heri- 
 tage, long leases, feu-jirms, offices, tailzies, giving of 
 blench-firm of ward lands, should bring their letters 
 and evidents granted hereupon to our Sovereign Lord 
 within forty days, to be destroyed ; Certifying them that 
 bring not, [that] the King will make them to be specially 
 called and punished for their disobedience." 
 
 3. Act, 26th June 1493, conceited in the usttai; poem pob eescinding nuPKOTrDENT ob undue asANis or Ceowit 
 
 PEOPEETT, AND WHICH, IN EESCINDINO ex tunc THE SAME CLASSES OP GEANTS THAT ABE STEUCK AT BY THE ACT 
 
 Eescissoet, also omits di&nities. — Feom the Acts, last Edit., toI. ii., p. 235. — (Referred to supra, pp. cxxiii sqq.) 
 
 (No. VIII.) 
 
 " Item, it is statute, concludit, and ordanit in this 
 present Parliament be the haill Thre Estatis, that, be- 
 caus thai have avisit, considerit, and understandin that 
 onre Soverane Lord that last decessit, quhom God as- 
 solze ! beand the tyme commovit and displesit throw evill 
 counsall that was about him in the tyme a title befoir 
 his deceiss, analyit and put away baith of his awin landis 
 and possessioun pertening to his Hienes in propertie, 
 and als, agane justice and gude conscience, ressavit and 
 tuke resignatiounis of divers landis, and gaif infeftmentis 
 in exhteredatioun and disherysing of the rychtwis airis, 
 be the solistatioun and persuasioun of the evill counsall 
 that was about him, as said is, without ony ressonabill 
 caus, to the displesor of God, contrare justice, and to 
 the hurt of his .saule ; That therfor all the saidis 
 donatiounis and infeftmentis maid and gevin be himfra 
 
 the seca/id day of Fehr 
 
 in the zeir of God ane 
 
 thousand foure hundreth foure scoir sevin zeiris to the 
 day of his deceis, sal be ofnane aiale, force, nor effect 
 in tyme to cam ; hot at our Soverane Lordis Hienes 
 that now is sal be restorit and reintegratit to all landis, 
 rentis, possessiounis, that was be ony maner of way 
 analyit and gevin be Ids father to quhatsumevir persounis 
 within the said tyme. And in like wis, that all resig- 
 natiounis ressavit be him ;md infeftmentis that he gaif 
 to the exheredatioim and disherysing and putting of 
 ony landis and possessiounis fra the rychtwis airis sal 
 be of nane avale, force, nor effect in tyme to cum ; Bot 
 at our Soverane Lord and all utheris persounis that 
 was hurt within the said tyme sal be and is be vertew of 
 this Act restorit in integrum to all rychtis as' thai war 
 of befoir the said day. And cassis and annullis all dona- 
 tiounis, gifti'^, and infeftmentis maid efter the resigna- 
 tionis within the said tyme, and decernis thame to be of 
 nane avale, force, nor effect in jugement nor without in 
 tyme to cum." 
 
 " Item, it is statute, concluded, and ordained in this 
 present Parliament by the whole Three Estates, that, 
 because they have advised, considered, and understood 
 that our Sovereign Lord that last deceased, whom God as- 
 soil! being [at'] the time commoved and displeased through 
 evil council that was aboict him in the time a little 
 before his decease, alienated and put away both of his 
 own lands and possession pertaining to his Highness in 
 property, and also, against ju.-^tice and good conscience, 
 received and took resignations of divers lands, and gave 
 infeftments in exheredation and disinheritance of the 
 righteous heirs, by the solicitation and persuasion of the 
 evil council that was about him, as said is, without any 
 reasonable cause, to the displeasure of God, contrary 
 justice, and to the hurt of his soul ; That therefore all the 
 said donations and infeftments made and given by him 
 from the second day of February * in the year of God 
 one til ousand four hundred four score \_and~\ seven years 
 to the day of his decease, shall be of none avail, force, 
 nor effect in time to come, but that our Sovereign Lord's 
 Highness that now is shall be restored and reintegrated 
 to all lands, rents, possessions, that were by any manner 
 of way alirnated and given by his father to whatsoever 
 persons within the said time. And in like wise, that 
 all resignations received by him and infeftments that he 
 gave to the exheredation and disinheritance and putting 
 of any lands and possessions from the righteous heirs 
 shall be of none avail, force, nor effect in time to come ; 
 But that our Sovereign Lord and all other persons that 
 were hurt within the said time shall be and is by virtue 
 of this Act restored in integrum to all rights as they 
 were before the said day. And casses and annuls all 
 donations, gifts, and infeftments made after the resigna- 
 tions within the said time, and decerns them to be of 
 none avail, force, nor effect in judgment nor without in 
 time to come." 
 
 which Mr. Thomson considers {Preface, vol. ii.) " as the surest 
 " and most aulhoritative basis of an accurate text,"— as well as 
 
 * It is to be observed here that the original record of this 
 Parliament does not now exist, and the date here retrospectively 
 
 referred to is not " February " but " September " in the editio in the edition set forth by Sir John Skene, Lord Clerk Register, 
 princeps of the Scottish Acts, called the ' Black Acts,' printed in 1597, and in that called ' Glendoick's,' printed in 1681. The 
 under the superintendence of a Eoyal Commission in 156G, and reading ' Februar ' appears for the first time in Mr. Thomson's. 
 
APPENDIX. 
 
 383 
 
 V. 
 
 Acts of Parliament and Documents bearing upon the present validity of the Act Eescissory :- 
 
 1. The Act commonlt styled ' The Peopositioit oe the Debate op the Field of Stip.lino,' passed on the 17th 
 
 OCTOBEB 1488, THE SAME DAY AS THE AOT EESOISSOEY, BUT BEPOEE IT — F0E1IIN& THE BASEMENT OP WHAT EOL- 
 lOWED — ADDITIONALLY ILLUSTEATINa THE PEINCIPLE ON WHICH THAT AOT PEOOEEDED. — FeOM THE ACTS, Tol. ii. 
 p. 210.— (Eeferred to swpra, pp. be, x.) 
 
 (No. IX.) 
 
 " Item, in this present Perliament, Oure Soveran 
 Lord beand present togidder wit his Thre Estatis of the 
 Eealnie, wes proponit the debaite and caus ofthefeild 
 of Stervilin, in the quhilk umquhile James King of 
 ScoTLANDE, quham God assolze, faider to our Soveran 
 Lord, happinit to be slane ; and, the caus and occasioun 
 beand tharof commonit, oppynit, and arguit amangis 
 the Lordis of the Thre Estatis, Jhonn Lord Glamys 
 present and schew certane Articlis subscrivit wit the 
 forsaid umquhile King James' hand, the tenor of the 
 quhilk folowis, etc. : — 
 
 ' Tliir ar the Articlis, uppone the quhilkis Our Soveran 
 ' Lord sail gif commissioun under his Grete Sele to 
 ' thir Lordis underwrittin, that is to say, the Bischop 
 ' of Aberden, Chancellar, theErlis of Huntlie, Erole, 
 ' Marschiale, Lord Glamys, and Alexander Linde- 
 ' say, to comone, conclude, and end with thir Lordis 
 ' followand, that is to say, the Bischop of Glasgw, 
 ' the Erlis of Angus, Ergile, Lord Halis, Lord Lile, 
 ' the quhilkis Lordis sail haffe full commissioun of 
 ' my Lord Prince and of all the Lordis beand wit 
 ' him : — 
 
 ' In the first, to comone and conclud that the 
 ' Kingis hie honor, estate, riale autorite, be exaltit, 
 ' conservit, and borne up, at he may exhers justice 
 ' universaly to all his liegis in all the partis of his 
 ' realm, — 
 
 ' Item, at his maist noble persone be at all tymes 
 ' in honor, securite, and fredome ; and at thar be 
 ' Prelatis, Erlis, Lordis, and Baronis, and utheris 
 ' persons of wisdome, prudence, and of gud dis- 
 ' posicioun, and unsuspect to his Hienes and evinly * 
 ' to all his liegis, dayly about his nobill persoun, to 
 ' the gud giding of his realme and liegis, — 
 
 ' Item, that all the persons being about my Lord 
 ' Prince, that has in tym bygane done displesor 
 ' to his Hienes, mak honorabile and aggreabile 
 ' amendis to his Hienes, be the wisdome and dis- 
 ' cretione of the said Lordis, thar liffis, heretage, 
 ' and honouris, except . . . t, — 
 
 ' Item, that the Kingis Hienes sail gif honorabill 
 ' sustentacioun and levin to my Lord Prince, his 
 ' sone, at the consideracione of the said Lordis, — 
 
 ' Item, at wis Lordis and honorabill persons of 
 ' wisdome and discrecioun, evinly, and of gud dispo- 
 ' sicione salbe dayly about my Lord Prince, for the 
 ' gud governance of him and securite of his person 
 ' in his tender age, — 
 
 ' Item, to avis, comone, and conclud, how my 
 ' Lord Prince sail in all tymes tecum be obedient to 
 ' his faider the King, and how that faiderly luff and 
 ' tendernes sail at all tymes be had betuex thame, 
 
 ' etc.,— 
 
 ' Item, how the Lordis and uthir persons being 
 ' about my Lord Prince sail haf our Soverane Lordis 
 • favorisand grace, favourisand hertly forgevinys, and 
 ' thar persons to be in securite, as best can be 
 
 " Item, in this present Parliament, Our Sovereign 
 Lord being present together with his Three Estates of 
 the Realm, was proposed the debate and cause of the 
 field of Stirling, in the which tuts, late .James King 
 OF Scotland, whom God assoil, father to Our Sove- 
 reign Lord, happened to be slain; and, the cause and 
 occasion thereof being communed, opined, and argued 
 amongst the Lords of the Three Estates, John Lord 
 Glammis presented and shewed certain Articles sub- 
 scribed with the foresaid the late King James's hand, 
 the tenor of the which follows, &c. : — 
 
 ' These are the Articles, upon the which Our Sovereign 
 ' Lord shall give commission under his Great Seal 
 ' to these Lords underwritten, that is to say, the 
 ' Bishop of Aberdeen, Chancellor, the Earls of 
 ' Huntley, Errol, Marischal, Lord Glammis, and 
 ' Alexander Lindsay, to commune, conclude, and 
 ' end with these Lords following, that is to say, the 
 ' Bishop of Glasgow, the Earls of Angus, Argyle, 
 ' Lord Hales, Lord Lyle, the which Lords shall 
 ' have full commission of my Lord Prince and of all 
 ' the Lords being with him ; — 
 
 ' In the first place, to commune and conclude 
 ' that the King's high honour, estate, royal authority, 
 ' be exalted, conserved, and borne up, that he may 
 ' exercise justice universally to all his lieges in all 
 ' the parts of his realm, — 
 
 ' Item, that his most noble person be at all times 
 ' in honour, security, and freedom ; and that there be 
 ' Prelates, Earls, Lords, and Barons, and other 
 ' persons of wisdom, prudence, and of good dispo- 
 ' sition, and unsuspect to his Highness and impartial * 
 ' to all his lieges, daily about his noble person, to 
 ' the good guiding of his realm and lieges, — 
 
 ' Item, that all the persons being about my Lord 
 ' Prince, that have in time bygone done displeasure 
 ' to his Highness, make honourable and suitable 
 ' amends to his Highness, by the wisdom and discre- 
 ' tion of the said Lords, their lives, heritage, and 
 ' honours, except . . . f, — 
 
 ' Item, that the King's Highness shall give 
 ' honourable sustentation and living to my Lord 
 ' Prince, his son, at the consideration of the said 
 ' Lords, — 
 
 ' Item, that wise Lords and honourable persons of 
 ' wisdom and discretion, impartial, and of good dis- 
 ' position shall be daily about my Lord Prince, for 
 ' the good governance of him and security of his 
 ' person inJiis tender age, — 
 
 ' Item, to advise, commune, and conclude, how 
 ' my Lord Prince shall in all times to come be obe- 
 ' dient to his father the King, and how that fatherly 
 ' love and tenderness shall at all times be had be- 
 ' twixt them, &e., — 
 
 ' Item, how the Lords and other persons being 
 ' about my Lord Prince shall have our Sovereign 
 ' Lord's favour and grace, favour and hearty forgive- 
 ' ness, and their persons to be in security, as best 
 
 * " Evinly 
 
 IndiflFerent, impartial, not engaged to either party."— Jamieson's Scottish Dictionary , in voce. f Blank in orig. 
 
384 
 
 APPENDIX. 
 
 ' devisit be the said Lordis, for ony displessor done 
 ' to the Kingis Hienes in ony tym by gane, — 
 
 ' Item, at my Lord Prince sail tak in hertlie favoris 
 ' all Lordis Spirituale and Temporale, and all uthir 
 ' persons, that has ben with the Kingis Hienes in 
 ' consale or uthir service now in this tym of truble, 
 ' etc.,— 
 
 ' Item, at al discencions and discordis now stand- 
 ' and or beand betuex ony Lordis or gret Baronis of 
 ' baith the partis salbe drawin be the wisdome of the 
 ' said Lordis to unite, concord, sa that luf and favour 
 ' may stand ymangis oure Soverane Lordis liegis, and 
 ' peax to be had, and justice to proced, — and specialy 
 ' betuix the Erie of Buehain and Lord Lile, etc' 
 
 The quhilkis beand red, and schewin that the saidis 
 Articlis wes divers tymes grantit to and brokyne he the 
 perverst counsale of divers persons beand wit him for 
 the tym, quhilkis counsalit and assistit to him in the 
 inbringing of Inglismen and to the perpetuale suhjec- 
 cione of the realm, and under dissale and colour maid 
 and refusit, and that our Soverane Lord that now is 
 ewer consentit to for the comoun gude of the realme, — 
 for the quhilkis the Erie of Huntlie, the Erie of Erole, 
 the Erie Marschell, the said Lord Glamys, and utheris 
 divers baronis, and utheris the Kingis trew liegis, left 
 him and his dissaitful and perverst counsale, and anherdit 
 to oure Soverane Lord that now is and his trevif opyn- 
 zoun, for the comone gud of the realme : — The quhilk 
 mater beand schewin, comonit, examinit, and under- 
 standing be the Thre Estatis and haile body of the 
 Parliament, thai riply avisit, declarit, and concludit, 
 and in thar lawtez and allegeance ilk man for himself 
 declaris and concludis, that the slauchteris committ and 
 done in, the feild of Stervilin, quhar our Soverane Lordis 
 fa'ider liappinit to be slane and utheris divers his baronis 
 and liegis, wes aluterly in thar defalt and colourit dys- 
 sate, done be him and his perverst counsale divers times 
 befor the said feild ; And that our Soverane Lord that 
 now is, and the trew Lordis and baronis that wes ivith 
 him in the sarnyn feild, war innocent, quhyt, andfre of 
 the saidis slauchteris, feild, and all persute of the occa- 
 sioun and cause of the samyn ; And that a-parte of the 
 Thre Estatis forsaid, Bischopis, Prelattis, Gret Baronis, 
 and Burgessis, gif thar sells herapoun, togidder with our 
 Soverane Lordis gret sele, to be schewin and proriucit 
 to our Haly Faider the Paipe, the Kingis of France, 
 Spanze, Denmark, and utheris realmez, as sal be sene 
 expedient for the tyme, etc." 
 
 ' can be devised by the said Lords, for any displea- 
 ' sure done to the King's Highness in any time 
 ' bygone,— 
 
 ' Item, that my Lord Prince shall take into hearty 
 ' favour all Lords Spiritual and Temporal, and all 
 • other persons, that have been with the King's 
 ' Highness in council or other service now in this 
 ' time of trouble, &c., — 
 
 ' Item, that all dissensions and discords now 
 ' standing or being betwixt any Lords or great 
 ' Barons of both the parties shall be drawn by the 
 ' wisdom of the said Lords to unity [and] concord, so 
 ' that love and favour may stand amongst our Sove- 
 ' reign Lord's lieges, and peace to be had and justice 
 ' to proceed,^and specially betwixt the Earl of 
 ' Buchan and Lord Lyle, &c.' 
 
 The which being read, and [it being] shewn that the 
 said Articles were divers times consented to and broken 
 by the perverse council of divers persons being with him 
 for the time, who counselled and assisted him in the 
 inbringing of Englishmen and towards the perpetual 
 subjection of the realm, and under deceit and colour 
 made and refused, and that our Sovereign Lord that 
 now is ever consented to for the common good of the 
 realm, — for the which the Earl of Huntley, the Earl of 
 Errol, the Earl Marischal, the said Lord Glammis, and 
 other divers barons, and other the King's true lieges, 
 left him and his deceitful and perverse council, and 
 adhered to our Sovereign Lord that now is and his true 
 opinion, for the common good of the realm : — The 
 which matter being shewn, communed, examined, and 
 understood by the Three Estates and whole body of the 
 Parliament, they ripely advised, declared, and con- 
 cluded, and in their loyalty and allegiance each man for 
 himself declares and concludes, that the slaughters com- 
 mitted and done in the field of Stirling, where our 
 Sovereign Lord's father happened to he slain and other 
 divers his barons and lieges, were ail-utterly in their 
 [own'] default and coloured deceit, done by him and his 
 perverse council divers times before the said field; And 
 that our Sovereign Lord that now is, and the true Lords 
 and barons that were xvith him in the same field, were 
 ifinocent, quit, and free of the said slaughters, feld, 
 and [of] all pursuit of the occasion and cause of the 
 same; And that each part of the Three Estates fore- 
 said. Bishops, Prelates, Great Barons, and Burgesses, 
 give their seals hereupon, together with our Sovereign 
 Lord's Great Seal, to be shewn and produced to our 
 Holy Father the Pope, the Kings of France, Spain, 
 Denmark, and other realms, as shall be seen expedient 
 for the time, &c." 
 
 2. Bdll op Pope Innocent VIII., 5th July 1491, peovino that the paction who had eebelled AaAiNST James III. 
 
 WEEE THEN, AND WHEN THET PASSED THE ACT ReSOISSOEY, UNDEE SENTENCE OP EXOOMMtmiCATION ON ACCOUNT OP 
 THAT EEBELLION — THAT THEY EEPENTED AND SOUaHT POE ABSOLUTION, OONPESSINO THEIE CRIME — AND THAT 
 ABSOLUTION WAS GEANTED TO THEM ON CONDITION OP PENANCE. — FkOM THE OEIOINAL IN THE DoUGLAS ChAETEE- 
 
 CHEST." — ' Minutes op Evidence,' p. 142. — (Referred to supra, pp. x, cxxvi.) 
 
 (No. X.) 
 
 " Innocentius Episcopus, Servus Servorum Dei, 
 dilectis filiis de Pasleto et de Gedworth, Glasguensis 
 diocesis, Monasteriorum Abbatibus, ac Cancellario eccle- 
 sie Glasguensis, Salutem et Apostolicam Benedictionem. 
 Exuberans Apostolice Sedis dementia recurrentium ad 
 earn post excessum cum humilitate personarum statui 
 
 " Innocent the Bishop, Servant of the Servants of 
 God, to his beloved sons the Abbots of the Monasteries 
 of Paisley and Jedworth, of the diocese of Glasgow, 
 and to the Chancellor of the Church of Glasgow, sendeth 
 greeting and the Apostolical benediction. The over- 
 flowing clemency of the Apostolic See hath been wont 
 
 * As by proof of custody given by the Claimant in this, and in all similar instances, before the Committee, and recorded in 
 the ' Minutes of Evidence.' 
 
APPENDIX. 
 
 385 
 
 libenter consulere, eisque se propitiam exhibere, con- 
 suevit, atque benignam, Exhibita siquidem nobis 
 nuper, pro parte nonnullorum regnicolarum regni Sco- 
 tie, Petitio continebat, quod olim, postquam per nos 
 intellecto, quod nonnulli domini tarn spirituales quam 
 iemporales dicti regni adversus dare memorie Jacohum 
 Tertium, ipsius regni Regent, illiusve statum, insur- 
 gere, immo et Regem ipsum a dicti regni regimine expel- 
 lere intendebant et moliebantur, nosque, per quasdam 
 litteras nostras, nonnullas sententias, censures, et penas 
 ecclesiasticas, etiam privationis dignitatum et benefi- 
 ciorum ecclesiasticorum, necnon ad ilia inhabilitationis, 
 contra in ipsum Regem insurgentes et eorundem insur- 
 gentium fautores promulgaveramus ; que postmodum in 
 partibus illis publicate faerunl, nonnulli regnicole ejus- 
 dem regni carissimo in Christo filio nostro, Jacobo 
 Quarto, ejus filio, modemo Regi, tunc Principi Sco- 
 TIE, qui pro salute et utilitate defuncti Regis et regni 
 predictorum statum et consilium ipsius Regis reformare, 
 et quosdam Regis predicti defuncti falsos consiliarios 
 vi et potentia expellere deliberaverunt, adheserunt et 
 illius fautores exiliterunt ; ac cum, pro parte tarn de- 
 functi quam moderni Regum predictorum, exercitus 
 paratifuissent, et inter se manus conseruissent, prefatus 
 Rex defunctus in conjiictu, cum diversis aliis perso?tis, 
 occubuisset, notinullis ex prefatis exponentibus in dido 
 conjiictu presentibus, alijs vera absentibus qui ejsdem 
 presentibus in premissis adheserunt, et alias aliquotiens 
 ipsi regnicole que pretextu duntaxat dicti conflictus 
 contra ipsum Regem defunctum insurrexerunt ; unde 
 tam presentes quam absentes adherentes et alias contra 
 dictum Kegera defunctum insurgentes prefati dubitant 
 sententias, censuras, et penas incurrisse : — Cum autem, 
 sicut eadem Petitio subjungebat, exponentes prefati de 
 premissis ab intimis doleant, cupiantque pro commissis 
 penitentiam agere salutarem ; Pro parte ipsorum nobis 
 fuit humiliter supplicatum, ut ipsos a sente/itiis, cen- 
 suris, et penis prefatis, in ipsis litteris nostris quomo- 
 dolibet contentis, absolvere, ac alias ipsis, et eorum statui 
 in premissis oportune providere de benignitate Aposto- 
 lica, dignaremur ; Nos igitur, attendentes quod prefate 
 Sedis dementia ad eam recurrentibus post excessum cum 
 humilitate personis sue pietatis gremium favorabiliter 
 aperire consuevit, ac volentes exponentes predictos, 
 apud nos alias de probitatis et virtutum meritis commen- 
 datos, hojum intuitu favoribus prosequi gratiosis, eorum 
 in hac parte supplicationibus inclinati, discretioni ves- 
 tre per Apostolica scripta committimus et mandamus, 
 quatenus vos, vel duo, aut unus vestrum, omnes et sin- 
 
 GULOS QUI IN DICTO CONFLICTU INTERFUERUNT, AC AB- 
 SENTES QUI iIlLIS ADHESERUNT, et auxillum, consilium, 
 assensum, consensum, et favorem, verbo vel facto, quo- 
 quo modo, prestiterunt, necnon qui alias quam pretextu 
 duntaxat dicti conflictus contra ipsum Eegera defunctum 
 insurrexerunt, et contra dictas nostras litteras quovis- 
 modo devenerunt, ac si eorum nomina et cognomina 
 presentibus insercrentur, si hec humiliter petierint, ab 
 
 OMNIBUS ET SINGULIS SENTENTIIS, CENSURIS, ET PENIS, 
 
 in dictis nostris litteris quomodolibet contentis, et per 
 eos premissorum occasione qualitercunque et quoties- 
 cunque incursis, quas ac si littere predicte de verbo ad 
 verbum inserte forent presentibus, haberi volumus pro 
 expressis, auctoritate nostra, hac vice duntaxat, absol- 
 VATis, in forma Ecclesie consuetd, injunctis ipsis, et 
 eorum cuilibet, pro modo culpe, penitentia salutari, et 
 aliis que de jure fuerint injungenda, eosque, et eorum 
 siNGULOs, unitati Sancte Matris Ecclesie, et sacra- 
 
 MENTORUM ecclesiasticorum PARTICIPATION!, COMMU- 
 
 joyfully to regard, and shew itself propitious and benign 
 to the condition of such persons as return to it with 
 humility after going astray. Forasmuch as a Petition 
 lately exhibited to us on the part of certain inhabitants 
 of the Kingdom of Scotland did set forth, that, some 
 time ago, on intelligence reaching us that certain Lords, 
 as well spiritual as temporal, of the said kingdom, were 
 purposing and plotting to rise in insurrection against 
 James the Third, of illustrious memory, of that king- 
 dom King, and against his rule — yea, rather to expel 
 the said King from the government of the said kingdom, 
 we did, by certain our letters, promulgate certain sen- 
 tences, censures, and ecclesiastical pains, as well as 
 deprivation of ecclesiastical dignities and benefices, and 
 of the capacity of being advanced to any such, against 
 those insurgents, — and that, after these letters had been 
 promulgated in those parts, certain inhabitants of that 
 kingdom, who had resolved, for the safety and behoof 
 of the said King and of the kingdom of the same, to 
 reform the stale and council of the said King, and to 
 expel certain councillors of the said King ly force and 
 power, did adhere to our very dear son in Christ, James 
 the Fourth, son of the said lute King, then Prince of 
 Scotland, and stood out as his favourers, and on the 
 part as well of the defunct as of the present King armies 
 were arrayed and came to blows, and the late King fell 
 in battle, with divers other persons, certain of the said 
 declarants being present in the said battle, and others, 
 their adherents, being absent, — and that, in other wise 
 and at other times than on the occasion (to wit) of the 
 said battle, the said inhabitants [of Scotland] had risen 
 in insurrection against the said defunct King, — whence, 
 as well the present as the absent adherents [to the 
 Prince], and those who have on other occasions risen 
 in insurrection against the said defunct King, fear that 
 they have incurred [the said] sentences, censures, and 
 pains : — But since, as the same Petition subjoined, the 
 said declarants grieve from the bottom of their hearts 
 for the fore-mentioned things, and wish to perform 
 salutary penance for the deeds committed, supplication 
 was humbly made to us on their part that we should 
 deign, of our Apostolic benignity, to absolve them from 
 the foresaid sentences, censures and pains, howsoever 
 contained in those our letters, and otherwise provide 
 fittingly for their condition under the circumstances 
 foresaid : — We therefore, considering that the clemency 
 of the Apostolic See aforesaid has been wont to open 
 the bosom of its mercy favourably to such persons as 
 return with humility to it after going astray, and willing 
 to pursue with gracious favours the foresaid persons, 
 commended to us by their merits of probity and virtues 
 (well ascertained) in other respects — being inclined by 
 their supplications thereto, — do commit and commend 
 by Apostolical writ to your discretion how far you, two 
 or one of you, shall, by this our authority, for this time 
 only, ABSOLVE, in the customary form of the Ciiurcn, 
 
 from all and singular censures AND PAINS, hoWSO- 
 
 ever contained in the said our letters, and in whatever 
 manner or how often soever incurred [by them] on 
 account of the foresaid things — which censures we will 
 to be for expressed, as if the foresaid letters were in- 
 serted word for word in the present — all and each one 
 of the parties being enjoined salutary penance according 
 to the measure of guilt, and other things which it were 
 rio'ht to enjoin, — and [further] restore by the same 
 autliority to the unity op Holy Mother Church, and 
 
 TO THE PARTICIPATION OF THE SaCBAMENTS OF THE 
 
 Church and to the Communion of the Faithful — 
 
386 
 
 APPENDIX. 
 
 NIONIQUE PIDELIUM, eAdEM AUCTORITATE EESTITUATIS, 
 
 — non obstantibus premissis, ac constitutionibus et ordi- 
 uationibus Aposlolicis, ceterisque contrariis quibus- 
 ciinque. Datum Rome, apud Sanctum Petrum, anno 
 incarnationis Domiuice millesimo quadringentesimo no- 
 nagesimo primo, quinto kalendarum Julii, Pontificatus 
 nostri anno septimo." 
 
 ALL OB EACH WHO WERE PRESENT IN THE SAIB BATTLE 
 OR WHO ADHERED TO THEM WHILE ABSENT, and in any 
 
 manner afforded them aid, counsel, assent and favour, 
 by word or deed, and also who otherwise than on the 
 occasion (to wit) of the said battle, rebelled against the 
 King, and in any manner acted in opposition to the said 
 our letters — even as if their names and surnames were 
 inserted in the present writ — provided they shall seek these 
 things humbly, — nothing of what has passed, whether 
 Apostolical constitutions and ordinations, or other things 
 contrary, being an obstacle hereto. — Given at Rome, at 
 St. Peter's, in the year of the incarnation of our Lord 
 one thousand four hundred ninety and one, on the 
 fifth of the kalends of July, in the seventh year of our 
 Pontificate." 
 
 3. Act op Pakliament, 20th Feeettabt 1491-2, TiETtrAiLT msowiriNa- the Act Rescissoet and the peihciple oh- 
 WHICH THAT AoT PEOOEEDED. — Feom THE AoTS, vol. 11. p. 230. — (Referred to supra, p. x.) 
 
 (No. XI.) 
 
 " Alsua, be the command and avertissyment of Oure 
 Soverane Lord the King, it is avisit and ordinit be the 
 Lord is of the Articlisj^b?- the escheioin and cessing of 
 the hevy murmor and voce of the peple of the ded and 
 slauchter of umquhile our Soverane Lordis faider and 
 progei},itor , quham. God assolze ! King James the Thrid, 
 that the persone or personis that put violent handis in 
 his persone and slew him ar nocht piniist, — the quhilhis 
 personis to be knawin and punist eftre thare demerilis 
 Oure Soverane Lord is maist desyous ; and for the 
 knawlege tharof, qnhat persone or personis wer comit- 
 taris of the said odious and ceuell deid with thare 
 handis, it is now statiit and ordinit in this present Par- 
 liament, that qukat persone or personis will cum and 
 schew to the King, and mak it suthfastly knawin of 
 veray verite, quhat persone or personis tver the slaaris 
 of his faider with thair handis, the scheware and re- 
 velare tharof sail haf to his reward 'f merkis worth of 
 land of the King, in fee and heretage, to him and his 
 airis ; and, because the King is not zit at his complet 
 age, the said donacioun and gift salbe maid be autorite 
 of Parliament unrevocable, wit clause of werrandice ; 
 and gif ony ane persone that wes at the said slauchter 
 will cum to the King and revele of the laifof his falowis 
 that wer comittaris of the said deid wit thare handis, 
 so that it be knawin of treuth for his revveling and 
 schewing of the said mater, sail have a remissioun to 
 him for that actioun and all other actions, to caus the 
 remanent of the personis to be punist. And attoure, 
 the canceling of the said slauchter in ony personis or 
 person that hnawis the doaris with thair handis and 
 will nocht revele the samyn sail be tressoun to the con- 
 celaris ipso facto. And dittay to be taken of this 
 actioun in all partis quhare the Justice Clerkis takis 
 inditmentis." 
 
 " Also, by the command and advertisement of Oar 
 Sovereign Lord the King, it is advised and ordained by 
 the Lords of the Articles, for the eschewing and ceasing 
 of the heavy murmur and voice of the people of the 
 death and slaughter of late our Sovereign Lord's father 
 and progenitor, whom God assoil! King James the 
 Third, that the person or persons that put violent hands 
 on his person and slew him are not punished, — the 
 which persons to be known and punished after their 
 demerits Our Sovereign Lord is most desirous; and 
 for the knowledge thereof, what person or persons were 
 committers of the said odious and cruel deed with 
 their hands, it is now statute and ordained in this pre- 
 sent Parliament, that zvhat person or persons will come 
 and shew to the King, and make it soothfastly known of 
 very verity, what person or persons were the slayers of 
 his father with their hands, the shewer and revealer 
 thereof shall have to his reward one hundred marks' 
 worth of land of the King, in fee and heritage, to him 
 and his heirs ; and, because the King is not yet at his 
 complete age, the said donation and gift shall be made 
 by authority of Parliament irrevocable, with clause of 
 warrandice ; and if any one person that was at the said 
 slaughter will come to the King and reveal of the rest 
 of his fellows that were committers of the said deed with 
 their hands, so that it be known of truth through his 
 revealing and shewing of the said matter, {he'] shall 
 have a remission to him for that action and all other 
 actions, to cause the remaining of the persons to be 
 punished. And moreover, the concealing of the said 
 slaughter by any persons or person that knows the doers 
 [thereof] with their hands and will not reveal the same 
 shall be treason on the part 0/ the concealers ipso facto. 
 And dittay to be taken of this action in all parts where 
 the Justice Clerks take indictments." 
 
APPENDIX. 387 
 
 4. Act Eetocatoet, 13ti1 Maech 1503-4, bescinding in genebal teems " am . . . Acts, Statutes of Paeliament 
 " ob greneeal council, and all otheb things done " by the klng " in times bygone, eithee hueting his 
 " Soul, his Ceowtt, ob Holy Chuech," — contended by the Claimant to have neoessaeily bescinded the 
 
 GENEEAL ACT KeSOISSOEY, — WITH THE OBIGINAL AND DELETED DBAUGHT OF THAT ACT, THE ACT EATIEYING THE 
 
 Queen's dowbt, aud two Statutes, distinct eeom the Act Eevocatoby, but bounded on by the Claimant in 
 connection with it, the one immediately beeceding, the othee following it, additionally endowing the 
 Chapel Eoyal of Siieling, and impoetant as fuethee showing that the Act Eevooatoey thus inteeposed 
 
 BOBB BBFEEENCE TO THE OIECUMSTANCES ATTENDING AND SUBSEQUENT TO THE DEATH OF JaMES III. — FeOM THE 
 
 Acts, vol. ii., p. 239. — (Eeferred to supra, pp. cxxvi sqq.) 
 
 (No. XII.) 
 
 " . . Parliamentum Jacobi, Dei gratia, Scotorum Regis, tentum et inchoatum apud Edinburgh, undecimo 
 die mensis Marcii, anno Domini millesimo quingentesimo tercio, . . . 
 
 Tercia dies Parliamentj. 
 
 Decimo tercio die Mensis Marcij, anno Domini millesimo quingentesimo tercio. 
 
 Peesente Domino Eeqb. 
 
 Presentes dicto die, 
 
 Episcopi, 
 
 Archiepiscopus Glasguensis, 
 Dunkeldensis, 
 Abirdonensis, . . . 
 
 Ahhates, 
 
 Prior Sancti Andree, 
 Abbas Sancte Crucis, . . . 
 
 Comites, 
 Huntlie, 
 Ergile, 
 Craufurde, . . . 
 
 Domini Barones, 
 Hume, 
 Gray, 
 Montgomry, . . . 
 
 Tlie quliilk day ova Ouvudiiu LmJu iLroLiC all dmiatiom, giflij, .iLlis, bUtnlib, ui uii^ ullitji ' tUiiig duiib bb liliu 
 aud Lis d i ituiile. 
 
 Tlie Lordis of the ArtikiUis, 
 
 Archbischop of Glasgw, 
 Dunkeldensis, . . . 
 
 For Barouns, 
 Huntlie, 
 Ergile, . . . 
 
 Burgesses, 
 Alexander Lauder, prowest of Edinburgh, 
 Alexander Menzeis, prowest of Aberdene, . . . 
 
 The Lords for discussing of Dumys, 
 
 The Bischop of Ergile, 
 
 The Priour of Sanct Andro's, . . . 
 
 For the Barons, 
 
 The Erie Morton, 
 The Lord Seton, . . . 
 
 For Burgesses, 
 
 Master George Striveling, for Montros, 
 Edward Spittale, for Striveling, 
 Andro Broune, for Pertht. 
 
 The quhilk day our Soverane Lord ratifijt, apprevit, The which day our Sovereign Lord ratified, approved, 
 
 and, be the autorite of Parliament, confirmit the dona- and, by the authority of Parliament, confirmed the 
 
 tion and gift of our Soverane Lady the Qwenis drowry donation and gift of our Sovereign Lady the Queen'^ 
 
 and morwyngift, after the forme of the charteris, etc., dowry and morning gift, after the form of the charters, 
 
 hora undecima. &c. hora undecima. , , ., ,, ., 
 
 The auhilk day our Soverane Lord, with autorite of The which day our Sovereign Lord, with authority 
 
 ^ 3D 
 
388 
 
 APPENDIX. 
 
 Parliament, dissolute the anexatione of the kirk of Kirkc- 
 andros fra the Lord of Galway and his croune to the 
 Priory of Quittorn, to remane with it in tyme to cum, in 
 nberioij forma, for Kirkiner to he anext to the Chapell 
 Ryale, &c. Super quibus M. Jacobus Hennrisone, advo- 
 catus Regis, at Episcopus Galwidie, petierunt instru- 
 menta, &c. hora undecima. 
 
 Tlie quhilk day our Soverane Lord kevokit, with 
 consent of the Thre Estatis of the Parliament, all 
 donatio7is, giftis, Actis, Statutis of Paeliament oe 
 Gexekale Consale, and all uthee tiiingis done be 
 
 HIM IN TYMIS BIGAKE OTHEE HURTAND HIS SaULE, HIS 
 
 Ceoune, oe Halt Kiek ; and that the said donations, 
 giftis, actis, statutis, or utheris thingis thus revokit, 
 be had for not done, and to be put furtht of the bukis 
 and writingis. 
 
 The quhilk day our Soverane Lord, with autorite of 
 Parliament, ratifjs and apprevis the fundatione and in- 
 feftmentis maid to the College of Striveling, callit his 
 Chapell Riale, baith of kirkis, prebendis, chanonrijs, and 
 landis, and the unions of the samyne, efter the forme of 
 the fundacione writtis and evidentis maid theruppon, not- 
 withstanding ony anexations or unione maid of the said 
 landis, prebendis, or kirkis, of befor." 
 
 of Parliament, dissolved the annexation of the kirk of 
 Kirkandrews from the Lord (Lordship?) of Galloway 
 and his crown to the Priory of Whitehorn, to remain 
 with it in time to come, [as] in fuller form [is there 
 stated], for Kirkiner to be annexed to the Chapel Royal, 
 &o. Upon which Mr. James Henrison, King's Ad- 
 vocate, and the Bishop of Galloway, asked instruments, 
 &c., at the hour of eleven. 
 
 The which day our Sovereign Lord eevoked, with 
 consent of the Three Estates of the Parliament, all 
 donations, gifts, Acts, Statutes of Paeliament oe 
 General Council, and all othee things done by 
 HIM in times bygone eithee hueting his Soul, his 
 Ceown, oeHoly Chuech ; and that the said donations, 
 gifts, acts, statutes, or other things thus revoked, be 
 had for not done, and to be put forth of the books and 
 writings. 
 
 The which day our Sovereign Lord, with authority of 
 Parliament, ratifies and approves the foundation and 
 infeftments made to the College of Stirling, called his 
 Chapel Royal, both of kirks, prebends, canonries, and 
 lands, and the unions of the same, after the form of the 
 foundation writs and evidents made thereupon, notwith- 
 standing any annexations or union made of the said 
 lands, prebends, or kirks, of before." 
 
 VI. 
 
 Parallel Case and Precedent of the Dukedom of Norfolk, created in 1397, struck at by a 
 General Act Eescissory in 1399, but decided in 1425 not to have been affected by the Act, 
 — the judgment establishing that a grant of peerage cannot be annulled by a general act 
 Eescissory without specific mention of the honour struck at and of the grantee, — that when 
 OTHER Peerages in -pari cam have not been affected by an Act Eescissory, the particular 
 Peerage claimed cannot be affected by it, — that non-assumption, or dormancy, is no bar, &c. 
 
 1. Chabtee oe Patent by Eiohabd II., with assent oe the two Houses oe Parliament, 29IH Septembee 1397, 
 ooNFEKEiNG THE Dukedom OP Woeeolk on Thomas Eaei oe Nottinoham. — Eecoeded in the Chaetee Koiis 
 
 AT THE TOWEE, AND EHTEEED IN THE EOLLS OF PAELIAMENT, ToL iv., p. 273. EnGEOSSED AXSO AT FULL LENGTH 
 IN THE CONFIEMATION THEEEOF BY HeNEY VI. IN 1444. " MiNUTES OF EVIDENCE," pp. 21, 22.— (EefeiTed tO at 
 pp. XV, xviii, supra.) 
 
 (No. 
 
 " RiCARDus, Dei gratia, Rex Anglie et Francie et 
 Dominus Hibernie, Archiepiscopis, Episcopis, Abbati- 
 bus, Prioribus, Ducibus, Comitibus, Baronibus, Justi- 
 ciariis," &c. " Salutem. Inter cetera regni insignia et 
 solicitudines varias Regiis humeris incumbentes, nostre 
 providencie racio arbitratur quod potissime firmat Regale 
 solium effluens a justicia condigna premiacio meritorum ; 
 ibi namque continue virtus crescit et colitur ubi a 
 debito sibi premio non frustratur. Cum igitur honor 
 sit virtutis premium, constat quod virtuosis et strenuis 
 ex Regali justicia debentur fasces honoris et premia 
 dignitatum, — que utique si dignis conferantur, non 
 debent simpliciter estimari donum seu exhibicio favoris, 
 sed pocius debita recompensacio meritorum. Quid 
 enim, in retroactis seculis et felicium principum tem- 
 poribus rempublicam amplius provexisse comperimus, 
 quam quod pie Regnantes virtuosos et strenuos sub se 
 habeant, oneris eis injuncti participes, quos, juxta exi- 
 genciam meritorum, excellenciis honoris et distribu- 
 cionibus dignitatum successive fecerant, ex debito regalis 
 justicie, gloriosos, — quia quod soli non poterant provida 
 
 XIII.) 
 
 " Richard, by the grace of God, of England and 
 France King, and Lord of Ireland, to the Archbishops, 
 Bishops, Abbots, Priors, Dukes, Earls, Barons, Jus- 
 ticiaries," &c. &c. " Greeting. Among the other in- 
 signia of rule, and among the various cares pressing 
 upon Royal shoulders, it is the deliberate sentence of 
 our wisdom that the condign reward of merit, flowing 
 from justice, most strongly fortifies the throne of Kings ; 
 for there where virtue fails not of her just reward doth 
 she continuously upspring and receive culture. Since 
 therefore honour is the meed of virtue, it standeth clear 
 that the badges of honour and the rewards of dignities 
 are due from Royal justice to the virtuous and the brave, 
 — the which rewards, thus conferred on the deserving, 
 ought not to be esteemed in simplicity mere gifts of 
 grace or tokens of favour, but rather the due recom- 
 pense of desert. For what, in past ages and in the days 
 of happy princes, have we found to have borne ampler 
 profit to the State than that pious Kings have had bold 
 and virtuous men under them, participators of their own 
 burdens, and whom, according to the exigency of their 
 
APPENDIX. 
 
 virtuosorum hxijusmodi provisione supplebant :— Hiis 
 sane consideracionibus inducti ad carissimum consan- 
 guiiieum nostrum Thomam Comitem Notyngham et 
 Marescallum Ariglie, qui, juxta innatam sibi nobilitatis 
 affluenciam, nobis semper obsequiosum se exhibuit, 
 mentis nostre aciem dirigentes, aliosque actus sues vir- 
 tuosos et preclara merita, quibus se Virtdtum Dominds 
 insignivit, in profunde discucionislibramineponderantes; 
 De assensu Prelatorum, Ducom, Magnatum, et 
 
 ALIORUM PrOCERUM, ET CoMMUNITATIS REGNI NOSTRI 
 
 Anglie, in instanti Parliamento nostro afud West- 
 monasterium convocato extstencium, ipsum Comitem 
 in DucEM NoKFFOLCHiE, cum Titulo, Stilo, ac Nomine, 
 et Honore, eidem debitis, prefecimus. Ac inde pruden- 
 cialiter, per apposicionem cappe suo capiti ac tradi- 
 cionem virge auree, investlmus in premium eximie 
 virtutis sue et attiiiencie predictarum, — Habendum et 
 Possidendum Stilum, Titulum, Nomen, et ITonorem 
 pvedicta prefiito Duel et heredibus masculis de corpore 
 suo exeuntibus imperpetuum. Et ut ad exaltacionem 
 nominis sequatur augraentacio facultatum, cum semper 
 honoribus onera slut annexa, de assensu predicto dedi- 
 mus et concessimus, ac tenore presencium damus et 
 concedimus, eidem Duci et heredibus suis predictis, 
 quadraginta marcas,percipieridas singulis annis ad Scac- 
 carium nostrum ad terminos Pasche et Sancti Michaelis, 
 per equales porciones, imperpetuum. Hiis testibus, Ve- 
 nerabilibus patribus R. Archiepiscopo Eboracensi, 
 Anglie primate, E. Londoniensi, W. Wyntonensi, E. 
 Exoniensi, Cancellario nostro, Episcopis ; Johaniie 
 Aquitanie et Lancastrie, Edmundo Eboraci, Ducibus ; 
 Albredo Oxonie, Henrico Northumbrie, Comitibus ; 
 Rogero Walden, clerico, Thesaurario nostro ; Guidone 
 Mone, Custode Privati Sigilli nostri, — et aliis. Datum 
 per manum nostram apud Westmonasterium, xxix die 
 Septembris, anno regni nostri vicesimo primo." 
 
 merits and from the debt of Royal justice, they have 
 successively made glorious by excellence of honour and 
 distribution of dignities, — forasmuch as what, standing 
 alone, they were unequal to accomplish, they supplied 
 by the provident wisdom of those virtuous men ? Led 
 therefore by these considerations, and directing our 
 attention towards our most dear cousin Thomas Earl 
 of Nottingham and Marshal of England, who, in 
 accordance with his innate affluence of noblesse, hath 
 ever shewn himself dutiful to us, and weighing in the 
 balance of our deliberate thought the other virtuous 
 actions and outshining merits with which the Lord of 
 Virtues hath marked him out ; We, with the assent 
 OF THE Prelates, Dijkes, Magnates, and other 
 Chiefs, and of the Commonalty op our Realm 
 OP E^GLAND, assembled in this present Parlia- 
 ment AT Westminster, have preferred the said Earl 
 unto [the dignity of] Duke op Norfolk, with the 
 Title, Style, Name, and Honour due thereto. And 
 hence, advisedly, by the placing of a cap [of mainten- 
 ance] on his head, and by the delivery of a rod of gold, 
 we invest him in the reward of his eminent virtue and of 
 his attinence aforesaid, — to Have and to Hold the Style, 
 Title, Name, and Honour aforesaid, to the foresaid 
 Duke and to the heirs male of his body proceeding, for 
 ever. And in order that an augmentation of his means 
 may follow the exaltation of his dignity (seeing that 
 burdens are ever annexed to honours), we have given 
 and granted, and by the tenor of these presents do give 
 and grant to the same Duke and his heirs aforesaid, forty 
 marks, to be received yearly at our Exchequer, at the 
 terms of Easter and Michaelmas, by equal portions, for 
 ever. Before these witnesses. Venerable Fathers in 
 God, Robert archbishop of York, primate of England ; 
 Robert of London, William of Winchester, Edmund of 
 Exeter (our Chancellor), Bishops ; John of Aquitaine 
 and Lancaster, Edmund of York, Dukes ; Aubrey of 
 Oxford, Henry of Northumberland, Earls; Roger 
 Walden, clerk, our Treasurer ; Guide Mohun, Keeper 
 of our Privy Seal, — and others. Given under our 
 hand at Westminster, on the 29th day of September, in 
 the twenty-first year of our Reign." 
 
 2. NaEEATIVE of the IHAtTGUEATION- OP THE DuKEDOM OE NonjOLK (aHD OTHEE EEEEASES) XS PaELIAMENT ON 
 
 Michaelmas bat 1397.— Feom the Kolls op Paemamekt, vol. iii. p. 355.— (Eeferred to sui^ra, pp. xv, xTiii.) 
 
 (No. 
 
 " Item, mesme le Samady, en le fest de Seint Michel, 
 en mesme le Parlement, le Roy fist pronuncier et mon- 
 strer overtement en Parlement, qu'il voet que certeins 
 honorables persones de son Eoialme soient honorez, et 
 enhancez, et changez a greindre honour et estat ; c'est 
 assavoir, ascuns qui sont Contes a I'estat et degree de 
 Dues, et un Count a I'estat de Marquys, et certeyns 
 autres qi sont Barons et Banerettes a I'estat et degree 
 des Contes, — et ceo pur trois choses: — Primerement, 
 pur ceo que la greindre supportation de chescun Roialme 
 en est des dignes Persones d'estat et de honour deinz le 
 Roialme, qi purront enfoncer et fortifier le Septre du 
 Roy. Secondement, pur ceo que mesmes les Persones 
 sont Cousyns au Roy, et de son sank propre, lequele 
 cliescun Roy est tenuz de honorer et enhancer a dignitee 
 et haut estat devant autres. Tiercement, que mesmes 
 les Persones ont fait grant honour a Roialme en diverses 
 journees et travailx d' outre meer en pleusours lieux, et 
 moement pur les grants travalx et perils de lour corps 
 
 XIV.) 
 
 " Also, that same Saturday, on the feast of St. 
 Michael, in the same Parliament, the King caused it to 
 be pronounced and openly shown in Parliament, that 
 he wills that certain honourable Persons of his Realm 
 shall be honoured, and exalted, and changed into greater 
 honour and estate; that is to say, some who are Earls 
 to the estate and degree of Dukes, and an Earl to the 
 estate of a Marquis, and certain others who are Barons 
 and Bannerets to the estate and degree of Earls, — and 
 this for three reasons : — First, for that the greatest 
 support of every Realm is in those worthy Persons of 
 estate and honour within the Realm who can enforce and 
 fortify the sceptre of the King. Secondly, for that 
 these same Persons are Cousins to the King, and of his 
 own blood, whom every King is bound to honour and 
 promote to dignity and high estate before others. 
 Thirdly, that these same persons have done great 
 honour to the Realm in many journeys and travels 
 beyond sea in many places, and especially by the great 
 
 3 D 2 
 
390 
 
 APPENDIX. 
 
 en queux ils se mistrent, et les diligences et costages 
 q'ils ont faitz a ceste foitz pur I'onour et salvation du 
 Roy, et pur luy mettre en son estat, dignitee, et seiiretee 
 de sa persone : Dont reson et chose naturele en est, que 
 chescun bienfait soit duement recompensez. — Parquoy, 
 le Hoy, seant en Parlement, coronez, en sa Roiale Ma- 
 geste, teignant en mayne la Verge Roiale, ad fait et 
 creez son Cousyn Sire Henry de Lancastre Cont de 
 Derby en Due, et luy ad donez le noun et le stile de 
 Due DE Hebefokd, a avoir et tenir a luy et ses heirs 
 mats de so?i corps engendrez. Et sur ceo bailla a 
 
 LUY SA ChAETRE EoIAXE DE LA DITE CbEATION, quclc 
 
 feust lue en Parlement. Et le Roy sur ceo ceynta le 
 
 DIT Due OVESQUE UNE EsPEE, et MIST SUR SON CHIEF UN 
 Cap DE HONOUB ET DIGNITE DE DuC, et PRIST SON 
 HOMJIAGE EN LA MANEBE ACOSTOME DEVANT CES HEUUES. 
 
 Item, mesme le jour, et en mesme la forme et manere. 
 Sire Edward Cont de Eoteland feust fait et creez en 
 Due d'Aumarle. 
 
 Item, mesme le jour, et en mesme la fourme et 
 manere, Sire Thomas de Holand Cont de Kent feust 
 fait et creez en Due de Surrey. 
 
 Item, mesme le jour, et en mesme la fourme et 
 manere, Sire Johan de Holand Cont de Hunlyngdon 
 feust fait et creez en Due d'Excestre. 
 
 Item, mesme le jour, en mesme la fourme et 
 MANERE, Sire Thomas Mouhray Cont de Notyngliam 
 feust fait et creez en Due de Norffolk. 
 
 Item, Nostre Seigneur le Eoy, veullant honorer, en- 
 hauncer, et encrescer le noun et I'estat de sa honorable 
 Cousine Margarets Mareschall Contesse de NoriFolk, 
 mesme le jour, en plein Parlement, en absence du dlte 
 Contesse, ad fait et creez mesme la Contesse en Du- 
 chesse, et luy ad donez le stile, title, honour, et noun de 
 Duchesse de Norffolk, a avoir pur terme de sa vie. Et 
 sur ceo luy envoia sa Chartre de la creation suis dite.* 
 
 Item, mesme le jour, en Parlement, Sire Johan 
 Beaufort Cont de Somerset feust fait et creez en Mar- 
 quys de Dorset, et ceyntuz de son Espee, et une Cercle 
 mys sur son chief, par le Roy, en manere et fourme 
 accustumez. 
 
 Item, mesme le jour, feust fait et creez Sire Thomas 
 Sire leDespenser en Contede Gloucestre, et ceyntuz de 
 son Espee en manere et fourme accustumez. 
 
 Item, mesme le jour, et en mesme la fourme et 
 manere, Sire Eauf Sire de Nevill feust fait et creez en 
 Conte de Westmerland. 
 
 Item, mesme le jour, et en mesme la fourme et 
 manere. Sire Thomas de Percy feust fait et creez en 
 Conte de Wircestre. 
 
 Item, mesme le jour, et en mesme la fourme et 
 manere, Sire William le Scrop feust fait et creez en 
 Conte de Wiltescire." 
 
 labours and perils of their bodies to which they have 
 exposed themselves, and the diligent service and ex- 
 penses which they have undertaken at this time for the 
 honour and safety of the King, and for maintaining him 
 in his estate, dignity, and security of his person: — For 
 which it is reasonable and natural that each benefit 
 should be duly recompensed. — Wherefore the King, 
 sitting in Parliament, crowned, in his Royal Majesty, 
 holding in his hand the Royal Sceptre, hath made and 
 created his Cousin Sir Henry de Lancaster Earl of 
 Derby a Duke, and hath given him. the name and style 
 o/'DuKE of Hereford, to have and to hold to him and 
 his heirs male of his body engendered. And thereupon 
 the King delivered to him his Royal Charter op 
 the said Creation, which luas read in Parliament. 
 And the King thereupon belted the said Duke 
 WITH A sword, and put on his head a Cap of 
 honour and op the dignity op Duke, and took his 
 homage, in the manner accustomed before these 
 days. 
 
 Also, the same day, and in the same form and man- 
 ner. Sir Edward Earl of Rutland was made and created 
 Duke of Albemarle. 
 
 Also, the same day, and in the same form and man- 
 ner. Sir Thomas de Holland Earl of Kent was made 
 and created Duke of Surrey. 
 
 Also, the same day, and in the same form and man- 
 ner. Sir John de Holland Earl of Huntingdon was 
 made and created Duke of Exeter. 
 
 Also, the same day, in the same form and manner, 
 Sir Thomas Mowbray Earl of Nottingham was made 
 and created Duke of Norfolk. 
 
 Also, our Lord the King willing to honour, advance, 
 and increase the name and estate of his honourable 
 Cousin Margaret Mareschall Countess of Norfolk, the 
 same day, in plain Parliament, in absence of the said 
 Countess, hath made and created the said Countess a 
 Duchess, and hath given her the style, title, honour, 
 and name of Duchess of Norfolk, to hold for the term 
 of her life. And the King tliereupon sent her his 
 charter of the above-said creation.* 
 
 Also, that same day, in Parliament, Sir John Beau- 
 fort Earl of Somerset was made and created Marquis of 
 Dorset, and belted with his sword, and a coronet put 
 on his head by the King, in manner and form ac- 
 customed. 
 
 Also, the same day. Sir Thomas Sire le Despenser 
 was made and created Earl of Gloucester, and belted 
 with his sword in manner and form accustomed. 
 
 Also, the same day, and in the same form and man- 
 ner. Sir Ralph Sire de Neville was made and created 
 Earl of Westmoreland. 
 
 Also, the same day, and in the same form and man- 
 ner, Sir Thomas de Percy was made and created Earl 
 of Worcester. 
 
 Also, the same day, and in the same form and man- 
 ner, Sir William le Scrope was made and created Earl 
 of Wiltshire." 
 
 * She, as a woman, being incapable of belting. 
 
APPENDIX. 391 
 
 3. Act Eescissoet ov the 1 Heney IV. passed in Paeuament " en le eest de Seinte Feie ia Viegine, l'an de 
 
 " SON BEONB PEIMEE," i.e. ON THE 6tH OoIOBEB 1399, ANNULLING THE PaeLIAMENT OP ElCHAED II. WITH THE 
 ASSENT OE WHICH THE DuKEDOM OE NOEFOLK HAD BEEN CEEATED, WITH ALL THE DEPENDENCIES, &0. OE THAT PAELI- 
 AMENT.— FeOM THE Statutes, last edit., feinted by Authobity, toI, ii. p. 112.— (Referred to supra, pp. xv, xis.) 
 
 (No. XV.) 
 
 « Item, come le Lunedy proschein apres le fest del " Item, Whereas the Monday next after the Feast of 
 
 Exaltacion de la Seinte Croce, l'an du regne le dit the Exaltation of the Holy Cross, the xxi Year of the 
 
 nadgairs Eoi Eichard vignt primer, un Parlement feut Eeign of the said late King Eici.ard, a Parliament was 
 
 soraonez et tenuz a Westminstre et dilloesqes adjournez summoned and holden at Westminster, and from thence 
 
 a Salopbirs, a quelle ville certeine feut commys par was adjourned to Salop, at which Town a certain Power 
 
 auctorite du Parlement as certains persones de pro- was committed by Authority of the Parliament to cer- 
 
 ceder sur curtains articles et matiers comprisez en rolle tain Persons to proceed upon certain Articles and 
 
 du Parlement ent fait, come par mesme le Eolle y matters comprised in the Roll of the Parliament thereof 
 
 purra apparoir, en quel Parlement et auxint par I'auc- made, as by the same Roll may appear, in which Par- 
 
 torite suisdicte diverses estatutz, juggementz, ordinances liament, and also by Authority aforesaid, divers Statutes, 
 
 et establissementz feurent faitz, ordinez, et renduz erron- Judgments, Ordinances, and Stablishments were made, 
 
 onsement et tres dolorousement en graunde desheriteson ordained, and given, erroneously and dolefully ; in 
 
 et final destruccion et anientisment des plusours honur- great disherison and final Destruction and undoing of 
 
 ables Seigneurs et autres lieges du roialme, et de lour many honourable Lords and other liege People of the 
 
 heirs as touz jours : Nosire Seigneur le Hoi, consideriint Realm, and of their Heirs for ever :° Our Sovereign 
 
 lestres graundes meschiefs avant dictes, rfe Vadvys et ZorJ^Ae /ir%, considering the great mischiefs aforesaid, 
 
 assent des toutz les Seigneurs Espirituelx et Temporelx, hy the Advice and Assent of all the Lords Spiritual 
 
 et de tout la Communialtee de roialme, ad adjuggez and Temporal, and of all the commonalty, hath judged 
 
 le dit Parlement tenuz le dit an vingt primer, et the said Parliament, holden the said xxi Year, and the 
 
 Vauctoritee ent done, come desuis est dit, ove toutes les Authority thereof given, as afore is said, tvith all the 
 
 circumstances et dependences d'icelle, d'estre de nulle Circumstances and Dependents thereupon, to be of no 
 
 force ou value : et qe mesme le Parlement, ove I'auc- Force nor Value : And that the same Parliament, with 
 
 torite susdicle, et touz les circumstances et dependences the authority foresaid, and all the Circumstances and 
 
 d'icelle, soient de tout reversez, revokez, irritez, cassez. Dependents thereupon, be wholly reversed, revoked 
 
 repdlez, et adnullez pur touz jours." voided, undone, repealed, and adnulledfor ever." 
 
 4. JUDGIIENT IN THE NoBEOLK CLAIM, PBOCEEDING ON THE PETITION OE THE CLAIMANT, 1425. — FbOM THE ROLLS 
 
 OF Pabliament, vol. iv., p. 274.—' Minutes op Evidence,' p. 23. — (Eeferred to swpra, pp. ivi sqq.) 
 
 (No. XVI.) 
 
 " Our Soverain Lord, like it your noble Grace to be remembred howe I, John Erie Marescall, have sued in 
 diverses your Parlementz, in tyme of youre graciouse regne, desiryng to have declaration made for my place in this your 
 hie Court of Parlement above my Cousyn of Warwyk, as I and all my auncestres and predecessours have had at all 
 tymes, of which no mynde is the contrarie, as Erlesof Northfolk, as well for the blode riall (royal) and armes rialx, that 
 I am come fro and here, as for the said Erldome, as by diverses evidenses, writynges, and recordes, in this your present 
 Parlement declared, fully in my conseit ys proved ; which proves (proofs) notwithstanding, that hie and myghti Prince, 
 my Lord of Gloucestre,* your beal uncle, f and your other Lordes by your hie auctorite in your Parlement assembled, for 
 diverses causes hem (them) moevyng, will not take upon hem declaration for my said place. Whereupon the Commu- 
 nite of your Realme, at this time by your commaundement callid to this your Riall Court of Parlement, seyng this 
 delaye, of which were like to growe unease and unfrendely love betwene me and my said Cousin of Warwyk, hav in 
 all humble wise instaunced your innocent and benygne soverain Lordship,J consideryng howe thei here (hear) say by 
 commone langage that I shuld be born to be Due of Norffolk, which, if so were, your seid Communite supposeth shold 
 make finall conclusion of the determination of my seid place, above my seid Cousyn of Warwyk ; at the reverence of 
 whiche Communite, as wej as for the desire that hove (I have) to have peas (peace), rest, and tranquillile with my said 
 Cousyn of Warwyk ; and in especiall desiryng to save the right and inheritaunce of me and my heiers, that God of liis 
 grace hath suffred me to be borne unto, [I] cley me to be Due of Norfolk, declaryng to your noble Grace, to that hie and 
 myghti Prince your beal uncle, my Lord of Gloucestre, and to all your other Lordes in your present Parlement assem- 
 bled, howe that yt liked to Kynge Rychard the Seconde after the Conquest, your worthi predecessour, for diverses 
 notables causes him moevyng, in his Parlement holden at Westminstre the xxix day of Septembre, the yere of his 
 regne xxi, by his Lettres Patentes to cree Thomas, that tyme Erell of Notyngham and Marescall of Ingelond, into 
 Due of Norftblk, with the Stile, Title, Name and W^orship.to the same Duchie appendant ; to have the said Stile, Title, 
 Name and Worship to the said Due and to his heiers males of his body commyng for evermore. And over that, the said 
 Kyng Rychard, that same tyme, by his said Lettres Patentes, graunted to the said Due and his heirs males of his body 
 commyng, for the better sustentation of the said Stile, Title, Name, and Worship, xl Marcs yerly, to be take in his 
 Eschequierat the Testes of Pasqueand Seint Michell. Whiche Thomas, Due, hadde issue Thomas, and me ; and of this 
 Stile, Title, Name, Worship, and annuell rent of xl Mark, the said Thomas Due dyed seised in tyme of the saide Kyng 
 Richard ; after whos decesse, the said Stile, Title, Name, Worship, and annuell Rent of xl Mark, decended to the 
 said Thomas, the sonne, as sonne and hier ; which Thomas the sonne died therof seised within age, and withoute issue 
 
 * Humphrey Duke of Gloucester, Protector of England during epithet "innocent," Henry VI. being only four years old when 
 the absence of his brother, the Duke of Bedford. this Petition was (in due form) addressed to him. 
 
 t Bel oncle. 
 + The reader will remark the beautiful propriety of the 
 
392 
 
 APPENDIX. 
 
 of his body commyng ; after wlios deccsse, the said Stile, Title, Name, Worship, and annuell Rent of XL Marcs 
 descended to me, as Brother and Heir, be force of the said Creation and Graunt. And so I clayme to be Due of 
 Norfolk, and to have the Stile, Title, Name, Worship, and annuell Rent of xi. Marcs aforsaid ; and that I may by your 
 (you), our soverain Lord, my saide worthi Lord your beal uncle, and all your other Lordes, be so reputed, holde, and 
 declared, in this your Riall Court, and have and enjoie my place therto accordant: Saving alweis the Title, Right, and 
 Possession of me, and myn heirs of myn body commyng, as Erels of Norfolk, to my place in this hie Court above my 
 said Cousyn of Warwyk and his heirs ; by cause the name of Due of Norffblk is tallied to me and to my heirs males of 
 my body commyng ; and the name of Erel of Norffolk is tallied to me and to my heirs of my body commyng generaly. 
 Besechying mekely unto your hie and noble Grace, that this my supplication, and all other materes into this your said 
 Parlcment by me and myn Counseill notified, mynystred, and declared, in proef of my place for to be hadde as Erell of 
 Norffblk above my said Cousyn of Warwyk, may be in this your Parlement entred, and of record enacte. 
 
 " Quaquidem Petitione in Parliamento predicto lecta. 
 plenius et intellecta, ac habita inde, cum Justiciario, et 
 Servientibus Domini Eegis ad Legem, ac aliis peritis 
 de Consilio ipsius Domini Regis, matura et diligent! 
 deliberatione ; consideratoque quod, licet prefatus nuper 
 Kex Ricardus in dicto Parliamento sue Thomam nuper 
 Comitera Notyngham in Ducem Norffolk in formS, pre- 
 dict! creaverit ; ac idem Pari iam en turn, cum suis cir- 
 cumstaniiis et dependentiis quibuscumque, postmodum 
 in Parliamento Domini Henrici nuper Regis Anglie, 
 avi Domini Regis nunc, apud Westraonasterium, in festo 
 Sancte Fidis Virginis, anno Regni sui primo tento, ge- 
 KEBALiTER revocutum extiterit, et penitus adrmllatum, 
 
 PRO EG TAMEN QUOD HUJUSMODI CREATIO DuCUM 
 
 siVE CoMiTUM aut aliarum Dignitatum ad solum 
 Regem pektinet, et NGN AD Paeliamentum ; pre- 
 fatusque nuper Dux diu ante dictum festura Sancte 
 Fidis diem suum clausit extremum, prout per diversas 
 inquisitiones, post mortem ejusdem nuper Ducis, virtute 
 quorumdem brevium ipsius nuper Regis Henrici captas, 
 et in Cancellaria sua retornatas, ac in presenti Parlia- 
 mento de avisamento Dominorum Spiritualium et Tem- 
 poralium predictorom exhibitas et ostensas, plenius 
 poterit apparcre, — sicque revgoatio dicti Parlia- 
 ment! ipsius nuper Regis Ricardi prepatum nuper 
 
 DuCEM, AUT HeUEDES SUOS, ABSQUE SPECIALI MEN- 
 TIGNE DE EIS FACtA I-\ eAdEM, NULLATE-NUS LEDERE 
 rOTUIT, NEC STATUM EORUM ALIQUALITER ENERVARE, 
 
 — ac etiam pro eo, quod, inspecto Rotulo ejusdem Parlia- 
 menti prefati nuper Regis Henrici, nulla fit mentio 
 in eodem de aliquA speciali revocatione sive 
 adnullatione Still, Tituli, Nominis, vel Honoris 
 ipsius nuper Ducis vel dictorum Heredum suormn, — ■ 
 necnon pro eo, quod quamplures alii, quorum quidam 
 in Comites, quidam in alios status sive dignitates per pre- 
 fatum nuper Regem Ricardum in dicto Parliamento suo 
 modo consimili ciiEATi fuerunt, suis stilis, titulis, 
 
 NOMINIBUS, ET HOXORIBUS EX TUNC CONTINUE USI 
 
 SUNT ET GAVisi, ac cis in presenti gaudent et utuntur, 
 
 DICtA GENERALI REVGCATIONE ET ADNULLATIONE Par- 
 
 liamenti ipsius nuper Regis Ricardi in dicto Parliamento 
 prefati nuper Regis Henrici, ut premittitur, facta, non 
 OBSTANTE, — aliis quoque quampluribus notabilibus de 
 causis tunc ibidem diligenter attentis: — Tandem, per 
 Dominum nostrum Regem, de avisamento et assensu 
 Dominorum Spiritualium et Temporalium predictorum, 
 ac Communitatis Regni Anglie, in dicto presenti Par- 
 liamento existentium, necnon Justiciarii et Servientium 
 Domini Regis ad Legem, et aliorum peritorum de 
 Concilio eju-idem Domini Regis predictorum, Decla- 
 
 RATUM PUIT ET UNANIMITER CoNCORDATUM, QUOD PRE- 
 FATUS JoHAN'NES, Comes Marescallus, nt filius predicti 
 Thome Ducis, et frater et heres predicti Thome filii 
 Thome, virtute carte et successionis predictarum, de 
 cetero Dux Norffolk keputetur et teneatur, ac 
 stilo, titiilo, nomine, et honore Ducis Norffolk gaudeat 
 et wtdXwc juxla tenorem carte stipradicte. Quamquidem 
 
 " Which Petition having been fully read and under- 
 stood in the foresaid Parliament, and mature and diligent 
 deliberation having been held thereupon with the Jus- 
 ticiary and with our Lord the King's Serjeants at Law, 
 and with other learned of his Council ; and it being 
 considered that, although the aforesaid late King Richard 
 had created Thomas late Earl of Nottingham Duke of 
 Norfolk in his said Parliament in form aforesaid ; and 
 that same Parliament, with all its circumstances and 
 dependencies lohatsoever, was afterwards generally 
 revoked and entirely annulled in the Parliament of our 
 Lord the late Henry King of England, grandfather of 
 our Lord the King that now is, held at Westminster, 
 on the feast of St. Faith the Virgin, in the first year of 
 his reign, — yet forasmuch as the creation in this 
 WISE GF Dukes gr Earls or of other dignities apper- 
 tains tg the King algne, and not to Parliament ; 
 and the late Duke aforesaid died long before the said 
 feast of St. Faith, as may more fully appear by divers 
 inquests taken after the death of the same late Duke, 
 by virtue of certain briefs of the same King Henry, 
 returned to his Chancery, and exhibited and shewn in 
 this present Parliament by advice of the Lords Spiritual 
 and Temporal foresaid, — and as also the revocation 
 OF THE SAID PARLIAMENT of the Same the late King 
 Richard could in no wise hurt the aforesaid late 
 Duke or his heirs, nor in any manner weaken 
 
 THEIR status, WITHOUT SPECIAL MENTION MADE OP 
 
 THEM THEREIN ; — and also forasmuch as, on inspection 
 of the Roll of the same Parliament of the foresaid late 
 King Llenry, there is no mention made in the same 
 OF any special revocation or annulment of the 
 style, title, name, or honour of the same late Duke or 
 of his said heirs, — also inasmuch as many others, 
 some of ^vhom were in similar manner created Earls, 
 some [elevated] to other stations or dignities by the 
 said late King Richard in his said Parliament, have 
 
 CONTINUALLY PROM THAT TIME USED AND ENJOYED THEIR 
 
 STYLES, TITLES, NAMES, AND HONOURS, and cujoy and 
 use them at this present time, the said general revo- 
 cation AND ANNULMENT 6f the Parliament of the same 
 the late King Richard, made (as premised) in the said 
 Parliament of the foresaid late King Henry, notwith- 
 standing,— and other very many notable points being 
 also then diligently considered : — It was at length 
 
 declared and UNANIMOUSLY RESOLVED, by OUT Lord 
 
 the King, with the advice and assent of the Lords 
 Spiritual and Temporal foresaid, and of the Community 
 of the Kingdom of England, in the said present Parlia- 
 ment assembled, and also of the Justiciary and of our 
 Lord the King's Serjeants at Law, and of other learned 
 men of the Council of the same our Lord the King 
 aforesaid, that the aforesaid John, Earl Marshal, 
 shall, as the son of the foresaid Thomas the Duke [of 
 Norfolk], and as bi-other and heir of the foresaid 
 Thomas the son of Thomas, by virtue of the charter 
 and succession aforesaid, be reputed and held to be 
 
APPENDIX. 393 
 
 declarationem et concordiam prefatus Dominus Can- otherwise Duke of Norfolk, and shall enjoy and use 
 cellarius, auctoritate Regia, postmodum, videlicet xiiii the style, title, name, and honour of Duke of Norfolk 
 die Julii, ultimo die hujus Parliamenti, de avisamento according to the tenor of the foresaid charter. Which 
 Domiiiorum Spiritualium et Temporalium prediotorum, declaration and resolution the foresaid Lord Chancellor, 
 in pleno Parliamento predicto, in presentia Domini by the King's authority, did afterwards, viz. on the 
 nostri Eegis publiee declaravit. Super quo, prefatus 14th day of July, on the last day of the Parliament, by 
 Johannes ut Dux Norffolk homagium ligeum eidem advice of the Lords Spiritual and Temporal foresaid, 
 Domino nostro Eegi tunc ibidem immediate fecit ; quo publicly declare in the full Parliament aforesaid, and in 
 facto, idem Dominus noster Eex, de avisamento et the presence of our Lord the King. Whereupon the 
 assensu predictis, ipsum Ducem inter Pares Parliamenti said John immediately paid his liege homage to the 
 predicti in loco competenti sedere demandavit; quod said our Lord the King then present, as Duke of 
 idem Dux gratanter fecit ibidem." Norfolk ; which having been done, the same our Lord 
 
 the King, by the advice and with assent aforesaid, 
 requested the same Duke to sit in his befitting place 
 among the peers of the said Parliament ; which the 
 said Duke gratefully there did." 
 
 5. EXTEACTS PEOM SlE EdWAED CoKe'sEePOBT OF THE ' PeINCE'S CaSE,' TOTJCHING- THE DuCHT OP CoENWALl, IN 1605, 
 — PE0TIN& THAT THE PATENT OP THE DtrKEDOM OP JVOBPOLK HAD THE OHAEAOTEE AND ATJTHOEITY OP AN AcT OP 
 PaELIAMENT, a StaTTJTE, and was CONSEQUENTLY STETJOK AT BT THE AOT EeSCISSOEY, 1399. — FeOM: SiE EdWAED 
 Coee's Eepoeis, vol. iv. pp. 168, sqq. — (Referred to supra, pp. xt, xyiii.) 
 
 (No. XVII.) 
 
 " The King, at the petition of the most noble Prince Henry, his first begotten son, Duke of Cornwall, 
 brought a Scire facias against Henry Lindley, Knight, and J. Hele, Sergeant at law, to repeal Letters Patent of 
 the late Queen Elizabeth, bearing date the 2nd of May in the 37th year of her reign, by which the Queen granted 
 to the said H. Lindley and to one Gelly Mericke (now dead), and their heirs, the manors of West Taunton, 
 Trelowin, and Landalph, in the County of Cornwall, to the end that the King might make livery of them to the 
 said Duke, as members and parts of the Duchy aforesaid : and that by fokce of three Acts of Pakliambnt, 
 
 TWO IN 11 E. 3, WHEREOF THE OXE IS IN FORM OF A CHARTER BT AUTHORITY OF PARLIAMENT, by which the 
 
 Prince was created Duke of Cornwall, and the possessions of the Dukedom of Cornwall thereby given to him, 
 with special limitation, and the possessions annexed to the said Duchy so as they shall not be severed, with a 
 special clause of revivification, although the special limitation at any time should cease, &c., and of the Act of 
 32 H. 8, by which the three manors are made parcels of the Duchy of Corn« all for ever, to all intents and 
 purposes, &c. The SheriflP returned Sir Henry Lindley and Sergeant Hele and one Warwick Hele, Knight, terre 
 tenants of the said three manors summoned; and, after four imparlances, Sir Henry Lindley, as to the said two 
 several Acts of Parliament anno HE. 3, severally pleaded Nid tiel Record: Sergeant Hele and the said Warwick 
 pleaded the said Letters Patent of Queen Elizabeth, with a non obstante the said Act of 3-2 H. 8, and conveyed to 
 themselves a joint estate to them and to the heirs of the said Sergeant : and further pleaded the Act of Confirma- 
 tion of Letters Patent at the Parliament held 43 Elizabeth. And, as to the pleas of Sir Henry Lindley, the 
 King's Attorney replied, and shewed an Exemplification by Inspeximus of the said Charter of 11 E. 3, 
 UNDER the Great Seal, (as in the Record where it is entered in hcBc verba,) and demanded judgment if against 
 the same he should be permitted to plead Nul tiel Record; and demurred in law upon the plea of Sergeant Hele 
 and Warwick, who joined with him. And, further, ut amici curiae, and to inform the Court of the truth and of 
 the state which the King that now is hath in the residue of the said manors, parcel of the said Duchy, they 
 repeated to the Court part of the Act of 1 H. 7 concerning the said Duchy of Cornwall. And H. Lindley 
 demurred in law upon the replication of the Attorney-General, with whom the Attorney joined. 
 
 The reason why I have made an abstract of tlie Case so compendious, is because I have added the whole 
 Record at length, and if the Case should also be put at large, it would extend, as this Case is, to an unnecessary 
 prolixity. 
 
 In this Case four questions were moved, as being thought worthy of consideration : — 
 
 I. If the Instrument made 17 Mar. anno 11 E. 3 to Prince Edward be a Charter m.ide in time 
 of Parliament, or a Charter established by authority of Parliament ? — And this is the 
 principal and fundamental point on which the whole depends. 
 
 II. If there was any other Act of Parliament but the said Charter; and, if there is no other Act, if the 
 King's writ be good which alleges another Act ? 
 
 III. Admitting the Prince to be Duke of Cornwall, what estate has the Prince in the honour and Dukedom 
 of Cornwall ; and how has he it, by descent or by purchase? For if the Prince has but a particular 
 estate, then, after the particular estate ended, the said Sergeant Hele and his heirs shall have the said 
 
394 APPENDIX. 
 
 manors until, &c. And then a special judgment ought to be given. with a quoad, &c., and no general 
 judgment, that the Letters Patent shall be void nor the inrolment cancelled. 
 
 IV. If against such Act of Parliament Nul tiel Record may be pleaded ? 
 And the Lord Chanceli-or, because the cause was op great importance and consequence, assisted 
 
 HIMSEUF with A JuDBE OF EACH OF THE CoURTS OF WESTMINSTER, SciUcet, CoKE, ChIEF JuSTICE OF THE COMMON 
 
 Pleas, Fleming, Chief Baron of the Exchequer, and Williams, one of the Judges of the King's Bench 
 (for Sir John Popham, Knight, late Chief Justice of the King's Bench, who was called to it, and heard some of 
 the arguments at the bar, died pendente placito). And this Case was argued very well at the bar. 
 
 I. And as to the First Point, it was unanimously resolved by the Lord Chancellor and the said Justices, 
 
 THAT the said ChARTER WAS MADE BT AUTHORITY OF PARLIAMENT. And, bCCaUSC duO SUtlt instru- 
 
 menta ad omnes res aut conjirmandas aut impugnandas, ratio et authoritas, they confirmed their 
 opinions, i. by Reason, and then [ii.]* by Authorities in law. 
 
 I. \_Ratione, or by reason.] For the first they gave two reasons, ex visceribus causce : — 
 
 i. Ex impossibili, — and that for three causes, — 
 
 L It would be impossible, if the said Charter was not established by Parliament, 
 that the Estate, either of the Honour to be Duke of Cornwall, or of the 
 possessions thereof, being limited in such special manner as it is, should be 
 sufficient in law. For the limitation of both is " habendum et tenendum 
 " eidem Duci, et ipsius, et heredum suorum, Regum Angliee filiis primogenitis, 
 " et dicti loci Ducibus, in regno Anglise hsereditate successuris." So that he 
 who ought to inherit by force of this grant ought to be the first begotten son 
 and heir apparent of the King of England, and of such King as is heir to 
 Prince Edward.* * * * * Which course of inheritance being against 
 
 THE RULES OF THE CoMMON LaW CANNOT BE CREATED BY A CHARTER WITHOUT 
 THE FORCE AND STRENGTH OF AN ACT OF PARLIAMENT. 
 
 2. It would be impossible that the possessions of the Duchy should be so annexed 
 
 by the Charter in the same manner as the Charter purports, for the clause of 
 annexation is " Qusequidem omnia castra, &c. praedicto Ducatu praesenti charta 
 " nostra, pro nobis et hseredibus nostris, annectimus et unimus eidem, imper- 
 " petuum remansura, ita quod ab eodem Ducatu aliquo modo nullatenus 
 " separentur, nee alicui seu aliquibus aliis, quara dicti loci Ducibus per nos 
 " vel hasredes nostros donentur, seu quomodolibet concedantur,'' which 
 
 INDISSOLUBLE AND INSEPARABLE ANNEXATION CANNOT BE MADE IN SUCH 
 MANNER BY CHARTER ONLY WITHOUT ACT OP PARLIAMENT. 
 
 3. It would be impossible by the rule of law, that an Estate in land should cease 
 
 and revive again, as by the clause of revivification is intended, by Charter 
 only. 
 
 The second reason was 
 
 ii. Ex absurdo, — that, six others being created Earls at the same time for the honour 
 of the Prince, all their creations and donations should be firm and good in law to 
 some of them and the heirs of their bodies, and to others in fee simple, and that the 
 creation of the Prince himself, and of such a most noble Prince, and the grant to 
 him of the said castles, manors, &c. should be either void in law or but an estate at 
 will ; and especially in such a time when the judges (who always attended the 
 Parliament) were the most wise and learned in the law. 
 
 II. \_Authoritate, or by authorities in law.] It remains then to see what authorities and prece- 
 dents there are in law to prove the said Charter has the force of an Act of Parliament. And 
 
 * Numbers, words, or headings, enclosed as here within with the more clear and methodical practice of still earlier times, 
 
 brackets, have been added by the Claimant for the sake of It is scarcely necessary to add that Sir Edward's Report is given 
 
 clearness, either as necessarily implied and accidentally omitted, verbatim, with the exception of the passages irrelevant to the 
 
 or as occurring in Sir Edward Coke's original Eeport in Latin present argument, and the absence of which is here marked by 
 
 and Norman French, Reports, vol. viii. pp. 1, sqq. The typo- asterisks, 
 graphical arrangement has likewise been modified, in accordance \ 
 
APPENDIX. 395 
 
 that was proved four manner of ways, — i. Oct of the Charter itself, and authorities 
 IN LAW agreeing TO IT : — ii. By grants and estates made by the Prince, and by Letters 
 Patent of Kings : — iii. By judgments given according to the ordinary course of law, and 
 resolutions of the judges in the King's Courts : — iv. By resolutions in Parliament by the 
 King and the whole body of the realm. 
 
 i. [_Out of the Charter itself and authorities in law agreeing to it.'\ In the Charter 
 
 ITSELF TO the PrINCE TWO CLAUSES WERE OBSERVED, WHICH PROVE THAT IT HAD 
 THE AUTHORITY OP AN AcT OP PARLIAMENT : 
 
 1. In the beginning of the Charter it is said, " Considerationis nostras intuitus 
 
 " ad personam dilecti et fidelis nostri Edwardi, Comitis Cestriae, filii 
 " nostri primogeniti, intimos convertentes, volentesque personam ejusdem 
 " honorari, eidem, filio nostro, nomen et honorem Duels Cornubiae, de 
 
 " COMMUNI ASSENSU ET CoNSILIO PrJELATORUM, CoMITCM, BaRONUM, 
 " ET ALIORUM DE CONSILIO NOSTRO IN PRjESENTI PaRLIAMENTO CONVO- 
 
 " cato existent', dedimus," &c. — Br which it appears that the 
 Charter was made by authority op Parliament. And it was 
 resolved that this clause extends to all the parts of the Charter, which 
 clause of itself had been sufficient. 
 
 2. In the close and end of the Charter, which is parcel of the record, it is 
 
 said, " Dat' per manum nostram apud Westmonast', 17 die Martij anno 
 " regni nostri 11, Per ipsum Regem et totum Consilium in Parlia- 
 " MENTO.'' Which also proves that it was made by authority op 
 Parliament. And it was more for the honour of the King that the 
 creation and donation should be in the form of a Charter, and that 
 witnesses should be called to it, so that nothing should be omitted which 
 belonged to a complete Charter, and so principally to proceed from 
 the King, as the fountain of all honour and dignity, than if the 
 creation and donation had been only by Act of Parliament, in which all 
 would be donors. 
 
 In all creations to honour and dignity by Letters Patent, the ancient 
 form of conclusion " Hijs testibus " is continued to this day ; and that 
 Acts op Parliament do go in the form op the King's Charter, 
 
 WE HAVE many EXAMPLES IN LAW : 
 
 (i.) Magna Charta, made 9 Hen. 3, which begins, " Imprimis con- 
 " cessimus Deo, et hac prsesenti charta nostra confirmavimus 
 " pro nobis et hseredibus nostris imperpetuum,'' &c. ; and the 
 Charter concludes with " Hijs testibus," [&c., and] " Datam 
 " per manum nostram," as ours doth. And although it doth 
 not appear in the Charter itself by express words that it was 
 made by authority of Parliament, yet because many parts of it 
 cross and change the common law, which a Charter alone 
 cannot do, and it appears by the last chapter that for the said 
 grand Charter " Archiepiscopi, Episcopi, Abbates, Priores, 
 " Comites, Barones, Milites, Liberi tenentes, et omnes de 
 " regno nostro dederunt nobis quintodecimam partem omnium 
 " mobilium suorum'' — this clause in the conclusion op 
 THE Charter proves it by implication to be an Act in 
 FORM of a Charter. And, lastly, it hath always had the 
 allowance of an Act of Parliament, and therefore ought to be 
 so taken, — which is a stronger case than ours is ; for here are 
 full and express words, and anno 21 H. 3, brev. 881, in the 
 Earl of Chester's Case, the 11 chapter of Magna Charta, 
 " quod communia placita non sequantur curiam nostram," is 
 cited to take away the jurisdiction of the King's Bench ; and 
 this Grand Charter had been allowed and confirmed above 
 thirty times by Acts of Parliament. 
 
 (ii.) \_Item.'\ * * Two statutes made anno 14 E. 3, one " pro 
 "clero" and the other concerning England, that it should 
 not be in subjection to France, and many other Acts op 
 
 3 E 
 
396 APPENDIX. 
 
 Pakiiament, are made in the form of the King's 
 Chaetee. 
 
 And it was besolved that these words in an Act oe Chabteb, 
 
 " BY authority of PARLIAMENT," ABE SUFFICIENT TO MAKE IT AN AcT 
 
 OF Parliament. 
 
 The Couet of Parliament is called the Great Council. And 
 many other Acts to this purpose were cited, to shew the variety of 
 penning of Acts of Parliament. 
 
 If an Act of Parliament be penned by assent of the Kino 
 
 AND OF the LoBDS SpIEITUAL AND TeMPOEAL AND OF THE COMMOKS, 
 OE IT IS ENACTED BY AUTHOEITY OF PARLIAMENT, IT IS A GOOD AcT ; 
 BUT THE MOST USUAL WAY IS, THAT IT IS ENACTED BY THE KiNG, BY THE 
 ASSENT OF THE LoEDS SPIRITUAL AND TeMPOEAL AND OF THE COM- 
 MONS, 7 H. 7. 14 a. b., and (39) 34 Ed. 3. 12 a. And there it is said 
 that there are many statutes which are indited " Quod dominus Rex 
 " statiiit," yet if they be entered in the Parliament Roll, and always 
 allowed for Acts of Parliament, it shall be intended that it was by 
 authority of Parliament ; but if an Act be penned with the assent 
 OF THE Lords, oe with the assent of the Commons, it is no Act of 
 Parliament, — for three ought to assent to it — the King, the 
 Lords, and the Commons ; or otherwise it is not an Act of Par- 
 liament. And by the record of the Act it is expressed ■^^■llich of them 
 gave their assent, and that excludes all other intendments that any other 
 gave their assent, and so there is a difference between a general and 
 particular penning of an Act of Parliament. Vide 8 H. 6, c. 29 ; and 
 5 E. 2, c. 2, of fugitives ; 21 E. 3. 6 (GO), the Bishop of Norwich his 
 Case. And at this very Parliament of 11 E. 3, Henry son of Henry 
 Earl of Lancaster was created by Charter " ad eequisitionem Pe^e- 
 " latorum, et Phocerum, et Communitatis eegni nostei in 
 " instante Paeliamento nostro apud Westm. convocato," to be Earl 
 of Derby, to him and the heirs male of his body. Also, by another 
 Charter, the King created William de Bohun " de communi assensu 
 " Petelatoeum, Comitum, Baeonum, et alioeum, de Consilio nostro 
 " in pe^sexti Paeliamento nosteo," Earl of Northampton to him 
 and the heirs of his body. And at the same Parliament he by charter 
 created Hugh de Audley Earl of Gloucester " de definito dicti Pae- 
 " LiAMENTi nostei Consilio," &c. And by Charters with the like words, 
 the King at the same Parliament granted William de Clynton Earl of 
 Huntingdon in tail, Robert de Ufibrd Earl of Suifolk in fee simple, 
 William de Monte Acuto Earl of Salisbury in fee simple. And 
 all these were creations with donations of lands " ad sustinendum 
 " noraen et onus " by authority of Parliament in form of the King's 
 Charter, with the conclusion of " hijs testibus," and some with such 
 subscription, " Per Regem et Consilium in Parliamento,'' and some 
 " Per Regem et Consilium in pleno Parliamento," and others " Per 
 " ipsum Regem et totum Consilium in Parliamento," &c., all which are 
 of one and the same effect. 
 
 And those weee the peoofs collected out of the Chaetee itself 
 AND othee Acts of Paeliament, which are penned in the form of the 
 King's Chaetee. 
 
 "• {.^y grants and estates made hy the Prince, and by Letters Patent of Kings.'] 
 
 ****** 
 
 iii. [By judgments given according to the ordinary course of law, and resolutions of 
 the judges in the King's Courts.'] — The same is peoved by judgments and 
 EESOLUTiONS OF THE JUDGES. In 18 Ass. pi. 5, Thorp saith that it was adjudged 
 in Parliament, that if a gift be made to one and to his heirs males, that his si.sters 
 
APPENDIX. 397 
 
 and other heirs collateral as well as heirs males shall be inheritable, because by 
 such gift he hath fee simple, and it was inferred that such resolution might well 
 be at the Parliament 11 E. 3, where the said creation of the Prince and annexation 
 of the said lands were, in consideration, and because it could not take effect 
 
 BY GIFT OB. GRANT; IT WAS ADVISED THAT IT SHOULD BE BY AcT OF PARLIAMENT, 
 
 because there was not any such descent or course of inheritance by the Common 
 Law, 21 E. 3, 41. The manor of Berkhamsted was by the said Charter annexed 
 to the said Duchy, the judges there allowed the gift of the said manor to be good 
 to the Prince, which could not be, as it hath been often said, if it had not 
 
 THE FORCE OF AN ACT OP PARLIAMENT. 
 
 iv. [By resolutions in Parliament by the King and the whole body of the realm.] — It 
 
 IS PROVED BY judgments AND RESOLUTIONS IN PARLIAMENT THAT THE SAID 
 
 Charter op creation hath the authority and force of Parliament. 1. Ex 
 Rot. Parliam. anno 5 Hen. 4, — a judgment given in Parliament against Sir John 
 Cornwall and his wife Countess of Huntingdon, for certain manors which she had 
 of the Duchy of Cornwall, and which were annexed to it ; also by the Act of 
 33 H. 6, which see inter originalia de 35 H. 6, Eot. 29, ex remem. Thesaurar. in 
 Scaccario et ex Rot. Parliam. de 9 H. 5, where it is resolved and affirmed 
 by both Acts of Parliament that the said King Edward 3, by his Charter 
 17 Mar. an. 11 E. 3, op the common assent and counsel op the Prelates, 
 Earls, Pjarons, and others op his Council, in his Parliament, gave, &c., as 
 IN the Charter. And it is provided by the same Act of Parliament of 9 H. 5, 
 that the manor of Isleworth, which is annexed by the said Charter, &c., should be 
 severed and disannexed, in which two things were observed : 1. That the said 
 Charter of King Edward 3'^ hath the authority and force of Parliament ; 2. That 
 the said manor of Isleworth was so annexed, &c., that it could not be severed and 
 disannexed but by Act of Parliament. And all this is likewise affirmed by 
 another Act of Parliament. 
 
 And all that hath been said is resolved and affirmed by authority of Parlia- 
 ment anno 32 H. 8, mentioned in the Scire facias. 
 
 Wherefore it was resolved by the Lord Chancellor and the Lord Justices, 
 
 THAT THE SAID ChABTER HATH THE AUTHORITY AND FORCE OF AN ACT OF PARLIAMENT. 
 
 II. As to the Second Point, it was resolved, that the Charter, having the authority and force of Parliament, 
 is SUFFICIENT IN ITSELF WITHOUT ANY OTHER AcT ; and if the King's Scire facias hath sufficient 
 matter, it shall never abate for surplusage not material. 
 
 III. As to the Third Point, it was resolved, that the Prince hath an estate in fee simple in the said 
 Dukedom. 
 
 IV. As to the Fourth Point, it is resolved, that against a general Act of Parliament, or such an Act 
 whereof the Judges ex officio ought to take notice, the other party cannot plead Nul tiel record ; for 
 OP SUCH Acts the Judges ought to take notice ; but, if it be misrecited, the party ought to demur 
 in law upon it. And in that case the law is groulided upon great reason, for God forbid, if the record 
 of such Acts should be lost or consumed by fire, or other means, that it should tend to the general 
 prejudice of the commonwealth, but rather although it be lost or consumed, the Judges, either by the 
 printed copy, or by the record of it which it was pleaded, or by other means, may inform themselves 
 of it. See Partridge and Croker's Case, &c. Placil. Com., fol. 78. 
 
 And it was resolved, that this Act, which concerns the King and the Prince, who is 
 
 THE first begotten SON OP THE KiNG, AND HEIR APPARENT TO THE CrOWN FOR THE TIME, BEING 
 " PERPETUIS FUTURIS TEMPORIBUS," IS SUCH AN AcT WHEREOF THE JuDGES AND ALL THE KiNGDOM 
 OUGHT TO TAKE NOTICE." 
 
 3 E 2 
 
398 APPENDIX. 
 
 6. CONFIEMATION OP THE NoEroLK PATENT 1397, BT Henet VI., llTH Maboh 1444, ON THE PEINCIPLE accvmulandi jura 
 jurihus, IN EATOUE or John eofeth Duke ofNoeeolk, the son op John Eael Maeshal, strccESSPUi Claimant in 
 1425.— Feom the Patent Kolls. — ' Minutes op Evidence,' p. 22. — (Keferred to mpra, p. xviii.) 
 
 (No. XVIII.) 
 
 " Pro Duce Norffolchie. — Rex omnibus ad quos &c. Salutem. Inspeximus Litteras Patentes Domini 
 Eicardi nuper Eegis Anglie Secundi post conquestum, facias in hec verba : — ' Ricardus, Dei gratia Rex Anglie,' " 
 &c, &c. &c.* " Nos aiitem Litteras predictas, ac omnia et singula in eisdem contenta, rata habentes et grata, 
 ea pro nobis et heredibus nostris quantum in nobis est acceptamus, approbamus, et carissimo consanguineo nostro 
 Johanni nunc Duci Norffolchie ratificamics et confirmamus, prout Littere predicte radonabiliter testantur. Et 
 ulterius, de uberiori gratia nostra speciali, concessimus dicto consanguineo nostro quod ipse, et heredes sui masculi 
 de corpore suo exeuntes, habeant sedes et loca sua in summa curia nostra Parliament!, et consiliis nostris, ac alibi in 
 presentia nostra, proxime carissimo consanguineo nostro Duci Exonie, et quod nullus Dux post creationem predicti 
 Ducis Exonie factus sive creatus, vel imposterum fiendus sive creandus, minime habeat sedem superiorem dicto 
 consanguineo nostro Norffolchie, nee heredibus suis predictis, in presentia et locis supradictis, exitu de corpore 
 nostro gratia Divina favente procreando omnino excepto. In cujus &c. Teste Rege apud Westmonasterium, xj 
 die Marcij. 
 
 " Per breve de private sigillo et de dat^ predicts, auotoritate Parliamenti." 
 
 YII. 
 
 Instances eelied upon by the Claimant to prove that grants made by James III. within the 
 
 PERIOD STRUCK AT BY THE ACT EeSCISSORY STOOD UNAFFECTED BY IT, — THE CLAIMANT'S PROPOSITION 
 BEING THAT IN NO ONE INSTANCE AS YET ASCERTAINED DID THE AcT EeSCISSORY TAKE EFFECT : 
 
 1. Instances in which James III.'s Chaetees -week conpiemed in eeouiae couese by James IV., not in conse- 
 quence OP ANT FIATV (iN WHICH CASE THEEE WOULD HAVE BEEN INSEETED A ' non ohstante ' CLAUSE), BUT IN THE 
 USUAL POEM, FOa BEaiSTEATION, AS IN THE CASE OF OTHES GENUINE AND UNEXCEPTIONABLE CHAETEES : 
 
 i. Charters of Confirmation of yxhiD Charters, for the purpose of registration — adduced to 
 shew the regular form of such Charters of Confirmation. Vide ' S. Case,' p. 35, and 
 supra, pp. xxvi sqq. : — 
 
 (1) Cliarter of Confirmation hy James III., 24tt October 1481, of a Charter hy Patrick Eaitliwy, 
 18th October 1481. — From the Great Seal Register. — 'Minutes of Evidence,'' p. 116.— (Re- 
 ferred to supra, p. xxviii.) 
 
 (No. XIX.) 
 
 " Carta Confii-macionis Johannis Dundas de eodem. 
 
 " Jacobus, Dei gratia Rex Scotorum, Omnibus probis hominibus tocius terra sue, clericis et laicis, salutem. 
 Sciatis nos quandam Cartam dilecti nostri Patricii Haithwy, burgensis de Linlithgw, factam et concessam dilecto 
 nostro Johanni de Dundas de Eodem, de omnibus et singulis terris de Portaresid, cum pertinentiis, jacentibus infra 
 vicecomitatum nostrum de Linlithgw, de mandato nostro visum, lectam, inspectam, et diligenter examinatam, 
 
 SANAM, INTEGRAM, NON RASAM, NON CANCELLATAM, NEC IN ALIQUl SUI PARTE SUSPECTAM, od plenum intellexisSB, 
 
 sub hie forma : — ' Omnibus lianc Cartam visuris ml audituris Patricius Haithwy, burgensis de Linlithgw, 
 ' salutem in Domino sempiternam. Noveritis me, cum consensu et assensu carissime sponse mee Isabelle 
 ' Borthwic, non vi aut metu ducte nee errore lapse, sed sua mera et spontanea voluntate, utilitate nostra undique 
 ' previsa, concessisse, vendidisse, et titulo venditionis alienasse, ac ipsas concessionera et venditionem presenti 
 ' Carta, mea confirmasse, Nobili viro Johanni de Dundas, domino ejusdem, Omnes et singulas terras meas de Por- 
 ' taresid, cum pertinentiis, jacentes infra vicecomitatum de Linlithgw, pro quadam certa summS, pecunie michi 
 ' per dictum Johannem in mea necessitate in pecunia nuraerata premanibus gratanter et integre persoluta, de 
 ' quaquidem summa fateor me bene contentum et plenarie persolutum, et dictum Johannem et omnes suos exinde 
 ' quittos denuncio imperpetuum per praesentes ; ac totum jus et clameum juris, proprietatem, et possessionem, 
 ' que et quas in vel ad dictas terras de Portaresid cum pertinentiis habeo, habui, sen quovismodo habere potero 
 ' infuturum, pro me et heredibus meis dicto Johanni et heredibus suis et assignatis quittclamo imperpetuum, ita 
 ' quod nee ego, dictus Patricius, nee heredes mei, nee aliquis alius nomine nostro, aliquod jus vel clameum in 
 ' dictis terris cum' pertinentiis exigere seu vendicare poterimus seu poterit, set [sic] ab omni actione ejusdem simus 
 ' exelusi in perpetuum per presentes. Tenendas et habendas Omnes et singulas dictas terras de Portaresid, cum 
 
 ♦ The original patent, as given svpra, is here inserted verbatim. 
 
APPENDIX. 399 
 
 ' pertmentiis, predicto Johanni, heredibus suis et assigiiatis, in longitudine et latitudine, prout jacent, a me et 
 ' heredibus meis, de domino nostro Rege in capite, in feodo et hereditate imperpetuum, per omnes reotas metas 
 ' suas, antiquas et divisas, in moris, marresiis, viis, semitis, aquis, stagnis, rivolis, pratis, pascuis, et pasturis, in 
 ' domibus et edificiis, petariis, turbariis, et earbonariis, lapicidiis, lapide et calce, aueupationibus, venationibus, 
 ' piscationibus, columbis et columbariis ; Ac cum omnibus aliis et singulis libertatibus, comraoditatibus, et asia- 
 mentis, ac justis suis pertinentiis quibuscunque, tam non nominatis quam nominatis, tam subtus terra quam supra 
 ' terram, tam procul quam prope, ad dictas terras cum pertinentiis spectantibus seu juste spectare valentibus quo- 
 ' modolibet in futurum, libere, quiete, plenarie, integre, honorifice, bene et in pace, sine aliquo retinemento seu 
 ' contradictione qu^cunque. Faciendo inde annuatim dictus Johannes, heredes sui et assignati, supremo domino 
 ' nostro Regi servicia de dictis terris debita et consueta. Et ego vero, dictus Patricius, et heredes rnei, totas et 
 ' integras dictas terras de Portaresid ctim pertinentiis prefato Johanni, heredibus suis et assignatis, adeo libere in 
 ' omnibus et per omnia, ut predictum est, contra oranes mortales warantizabimus, acquietabimus, et imperpetuum 
 ' defenderaus. Eeservato tamen et retento miclii, Patricio, et Isabelle sponse mee, et nostrum diutius viventi, 
 ' libero tenemento omnium et singularum dictarum terrarum de Portaresid cum pertinentiis pro toto tempore vite 
 ' nostre, absque revocatione, impedimento, seu obstaculo quocunque. Et ad preraissa omnia et singula fideliter et 
 ' irrevocabiliter observando dicta Isabella, tactis sacrosanctis Dei evangeliis, juramentum prestitit corporale. In 
 ' cujus rei testimonium sigillum meum presenti carte mee est appensum, unacum sigillo providi viri Willielmi 
 ' Listoun de Hundby, per dictam Isabellam in signum sui consensus et assensus instanter procurato. Coram hiis 
 ' testibus, Michaele de Hamiltoun de Lochhouse, Johanne Bissate, Johanne Logy, Johanne Litill, Johanne Steill, 
 ' et Alexandro Fowlis, publico notario, cum multis aliis. Apud Dundas, decimo octavo die mensis Octobris, anno 
 ' Domini millesimo quadringentesirao octuagesimo piirao:' — Quamquidem Cartam ac concessionem, venditionem, 
 et alienationem in eadem contentas, in omnibus suis punctis et articulis, conditionibus, et modis, ac cib- 
 
 CUMSTANCIIS SOIS QUIBUSCUNQUE, FOKmA PAHITEK ET EFFECTU, IN OMNIBUS ET PER OMNIA, UT PREMISSUM EST, 
 ApPROBAMUS, RaTIFICAMCS, et pro NOBIS ET SUCCESSORIBUS NOSTEIS PRO PERPETUO CONPIRMAMUS, Salvis 
 
 nobis heredibus et successoribus nostris juribus et serviciis de dictis terris ante presentem confirmacionem debitis 
 et consuetis. In cujus rei testimonium presenti carte nostre confirmacionis magnum sigillum nostrum apponi 
 precepimus. Testibus ut in precedenti Carta. Apud Edinburgh, vicesimo quarto die mensis Octobris, anno 
 Domini millesimo quadringentesimo octuagesimo primo, et regni nostri vicesimo secundo." 
 
 (2) Charter of Confirmation hy James IV., 29th June 1489, of a Charter hy James II. in 
 favour of Sobert Bruce of Stenhouse, 26th December 1451. — From the Great Seal Begister. — 
 ' Minutes of Evidence,' p. 117. — (Referred to supra, p. xxix.) 
 
 (No. XX.) 
 
 Observation. 
 This is not given at length here, being in precisely the same form as the preceding. 
 
 ii. Charters of Confirmation,, containivg a ' non-ohstante ' clause intended to salve FLAWS in 
 the grants confirmed, — adduced to shew the peculiar form of such Charters of Confirma- 
 tion in the case of INVALID grants. Vide ' S. Case,' pp. 37, 38 sqq., and supra, pp. xxix, 
 XXX sqq.) : — 
 
 (1) Charter of Confirmation hy James IV., Sth May 1509, of a Charter hy himself to John 
 Murray of Cockpule, 15th February 1507. — From the Great Seal Begist»r. — ' Minutes of 
 ' Evidence,' p. 109. — (Referred to supra, p. xxx.) 
 
 (No. XXI.) 
 " Confirmacio carte Domini de Cokpule ex auetoritate Parliamenti. 
 " Jacobus, Dei gratia Rex Scotorum, omnibus" &c., " salutem. Sciatis nos, in nostro Parliamento tento et 
 inchoato apud burgum nostrum de Edinburgh, in pretorio ejusdem, die Martis, octavo die mensis Maij, anno Domini 
 millesimo quingentesimo none, nobis in propria, persona unacum Tribus Regni nostri Statibus presentibus, et de eorum 
 expresso consensu et assensu requisito, habito, et deliberate, communi proficuo et utilitate corone nostre premissis 
 et intellectis, ac multis aliis et diversis caiisis et consideracionibus racionabilibus precedentibus rimatis et discussis, 
 illas nostras Cartam, donationem, et concessionem, factas et conccssas dilecto nostro Johanni Murray de Cokpule, 
 militi, de terris et baronid de Cokpule, cum annexis et pertinentibus suis, secundum formam et tenorem dicte 
 nostre Carte sub nostro magno sigillo sibi Johanni desuper confecte et inferius inserte, de data apud Edinburgh 
 decimi quinti diei mensis Februarij, anni Domini millesimi quingentesimi septimi, et regni nostri vicesimi, de 
 mandato nostro visas, lectas, inspectas, et diligenter examinatas, sanas, integras, non rasas, non cancellatas, 
 NEC IN ahqua sui PARTE suspECTAS, ad plenum intellexisse, sub hdcformd : — ' Jacobus, Dei gratia Rex Scotorum,' 
 &c. ' Sciatis nos dedisse . . dilecto nostro Johanni Murray de Cokpule, militi, omnes et singulas terras subscriptas, 
 ' viz. terras de Cokpule,' &c. 'jacentes in Senescallia nostra Vallis Anandie,' &c.; 'terras de Laik,' &c. 'infra 
 
400 APPENDIX. 
 
 ' Senescallatum nostrum de Kirkcudbricht.' ' In cujus rei testimonium,' &c. . . ' Testibus,' &c. ' Apud Edinburgh, 
 ' decimo quinto die mensis Februarij, anno Domini millesimo quingentesimo septimo, et regni nostri vicesimo :'*— 
 QuASDAM [sic] CABTAM, dofiationem, et concessionem predictas in omnibus suis punctis et articulis, conditionibus, 
 et modis, et circumstantiis suis quibmcunque, in omnibus et per omnia, approbamus, ratificamus, et pro nobis 
 et successoribus nostris, ac heredihus nostris, omnibus melioribus modo, forma, et effectu, de consensu et delibera- 
 cione Trium regni Statuum predictorum, ut premissum est, pro perpefuo confirmamus, — non obstantibus 
 ALiQuiBDS Annexacionibus SEC Unionibus qdibuscunque Dominii Gaxwidie corone nostre per nos aut 
 predecessores nostras quoseunque in contrarium factis seu expeditis, prout in actis nostri Parliamenti predicti 
 desuper coiifectis plenius continetur. Salvis nobis et successoribus nostris serviciis et devoriis in prefata nostrfi 
 CartS, superius expressatis et contentis. In cujus rei testimonium present! Carte nostre Confirmacionis, de consensu 
 et deliberatione dicti nostri Parliamenti facte, magnum sigillum nostrum, unacum appensione sigillorum non- 
 nullorum dominorum, prelatorum, baronum, et burgorum commissariorum, regni nostri, in eodem congregatorum, 
 prout in talibus fieri consuetum est, apponi precepimus. Apud Edinburgh, predicto octavo die mensis Maij, anno 
 Domini millesimo quingentesimo nono, et regni nostri vicesimo primo." 
 
 (2) Cliarter of Confirmation ly James IV., 8th May 1509, of a Charter ly himself to William 
 Ogilvy of Strathern, lOi/j March 1508. — From the Great Seal Register. — ' Minutes of 
 ' Evidence,' p. 106. — (Referred to supra, p. xxx.) 
 
 (No. XXII.) 
 Observation. 
 
 This is not given at length, being in the same form as the preceding. 
 
 (3) Cliarter of Confirmation hy James VI., 27ih December 1580, of a Charter hy Eohert Com- 
 mendator of Dunfermline and the Convent of the same to Colin Earl of Argyle, 4:th April 
 1579. — From the Oreat Seal Register. — ' Minutes of Evidence,' p. 104. — (Referred to 
 supra, p. XXX.) 
 
 (No. XXIII.) 
 
 " Carta Confirmationis Colini Argadie Comitis et sue sponse, etc. 
 
 "Jacobus, Dei gratis, Rex Scotorum," &c.t " Sciatis nos quandam Cartam feudijirme, locationis, et 
 donationis factum per venerabilem in Christo patrem, Eobertum Commendatarium Monasterii de Dunfermeling , 
 et Conventum ejusdem predilecto nostro consanguineo Colino Comiti Argadie, Domino Campbell et Lome, et 
 dilecte nostre consanguinee Domine Agneti Keith, Comitisse de Murray, ejus sponse, et heredibus masculis," 
 &c. &c. " de totis et integris terris vocatis lie Over et Nethir Manys de Dolar," &c., " de mandato nostro visam, 
 lectam, inspectam, et diligenter examinatam, sanam, integram, non basam, non cancellatam, nec in aliqu.^ 
 SDi PARTE SUSPECTAM, ad plenum intellexisse, sub hac forma : — ' Omnibus banc Cartam visuris vel audituris 
 ' RoBERTus,' &c. ' Noveritis nos . . dedisse,' &c. ' Colino Argadie Comiti et Domine Agnete Keyth, 
 ' Comitisse Moravie, ejus sponse,' Ac, . . ' terras,' &c. &c. ' In cujus rei testimonium, presentibus per nos sub- 
 ' scriptis sigillum commune capituli dicti nostri Monasterii est appensum. Apud idem nostrum Monasterium, quarto 
 ' die mensis Aprilis, anno Domini millesimo quingentesimo septuagesimo nono. Coram his testibus,' &c. — " Quam- 
 QUIDEM CARTAM feicdijirme, locationem, et dofiaiionem in eadem contentam, in omnibus suis punctis et articulis, 
 conditionibus, et modis, ac circumstantiis suis quibuscum [sic], in omnibus et per omnia, forma pariter et effectu 
 ut -premissum est, approbamus, ratificamus, ac pro nobis et successoribus nostris per perpetuo confirmamus, — 
 salvis omnimodo nobis et successoribus nostris sufFragiis et precibus dictorum Commendatarii et Conventus, cum 
 juribus et servitiis antedictarum terrarum nobis ante presentem nostram Confirmationem debitis et consuetis. 
 Insuper volumus et concedimus, ac pro nobis et successoribus nostris decernimus et ordinamus, quod hec presens 
 nostra Confirmatio est et omnibus temporibus futuris erit tanti valoris, roboris, fortitudinis, et effectus prefatis 
 nostro consanguineo Colino Comiti Argadie etc., et Domine Agneti Keytli, ejus sponse, heredibus suis et assignatis 
 predictis, ac si eadem ipsis per nos sub nostro magno sigillo in majori forma ante sasine susceptionem per eos de 
 dictis terris cum suis pertinentibns data et concessa fuisset ante presentem nostram Confirmationem, non obstante 
 SasinA per ipsos de eisdem susceptA aut aliquibus Actis nostri Parliamenti, Statdtis, Constitutionibus, 
 Legibus Canonicis, Civilibus, vel Municipalibus^ atit aliis quibuscunque e contra, circa que et omnes alios 
 defectus qui desuper sequi poterunt nobis et successoribus nostris per presentes oisfe^samvs. In cuius rei testi- 
 monium," &c.— " Testibus ut in aliis cartis consimilis date precedentibus. Apud Halierudehous, vicesimo septimo 
 die mensis Decembris, anno Domini millesimo quingentesimo octuagesimo, et regni nostri decimo quarto." 
 
 * The Charter confirmed is here abridged, owing to the length of the document. 
 t This Charter is abridged, in the unimportant parts. 
 
APPENDIX. 401 
 
 iii. The Kilgarry grant hy James III. to Collace of Balnamoon :— 
 
 (1) Charter ly James III., under the Oreat Seal, llth May 1488, within the period struck at hy 
 the Act Rescissory, to Thomas Collace of Balnamoon, of half the forest of Kilgarry, with the 
 royal rights of vert and venison, &c.—From the Fife Charter-chest, where it is still preserved 
 uncancelled, notwithstanding the Act 15th February 1489-90 (supra, p. 381). — ' Minutes of 
 ' Evidence,^ p. 94.— (Referred to supra, pp. xxvi sqq.) 
 
 (No. XXIV.) 
 
 Observation. 
 
 Tins Charter is not printed here, being recited in the ensuing Confirmation. 
 
 (2) Charter of Confirmation hy James TV., 23rd March 1499-1500, of the preceding Charter,— 
 hei-ng in the precise form of Charters of Confirmation o/ valid grants, as above illustrated.— 
 Fromthe Oreat Seal Register. —' Min. of Evidence,' p. 95.— (Referred to sitpra. pp. xxvi sqq.) 
 
 (No. XXV.) 
 
 " Carta Thome Culase de Balnamone super fogagio foreste de Kilgarry. 
 
 " Jacobus, Dei gracia Rex Scotorum, Omnibus probis hominibus tocius terre sue, clericis et laicis, 
 salutem. Sciatis nos quandam Cartam donacionis factam per quondam excellentis-simum patrem et progenitorem 
 nostrum Thome Culase de Balnamone de dimedietate foreste de Kilgarry, unacum dimedietate viridium arborum 
 et venationum, viz. le vert et venysoun ejusdem, jacente infra vicecomitatum nostrum de Forfar, de mandato nostra 
 visum, lectam, inspectam, et diligenter examinatam, sanam, integram, non rasam, non cancellatam, kec ijj 
 ALiQuA sui paete susfectam, ad plenum intellexisse, sub hac forma: — 'Jacobus, Dei gratia Rex Scotorum, 
 ' Omnibus probis hominibus tocius terrse suae, clericis et laicis, salutem. Noveritis quod dilectus noster Thomas 
 ' Culace de Balnamone et predecessores sui hereditaria infeodantur per nostros predecessores de fogagio foreste 
 ' de Kilgarry, jacente infra vicecomitatum nostrum de Forfar, viridibus tamen arboribus et venationibus ejusdem, 
 ' vulgariter dictis le vert et venysoun, nobis reservatis ; Et nos vero nunc sane attendentes quod dictus Thomas in 
 ' nostro exercitu apud Blaknes, in defensione nostre persone et corone Regie, sub nostro vexillo nobiscum 
 ' extiterat, dedimus et concessimus, ac tenore presentis carte nostre damns et concedimus, eidem Thome, 
 ' hereditarie, pro suo bono et fideli servicio nobis ibidem facto et in futurum fiendo, ac pro singular! favore quern 
 ' gerimus erga eundem, totam et integram dimedietatem dicte foreste de Kilgarry, unacum dimedietate viridium 
 ' arborum et venacionum, viz. le vert et venyson ejusdem, cum proficuis et pertinentiis earundem. Tenendam et 
 ' habendam totam et integram dictam dimedietatem foreste de Kilgarry, unacum dimedietate de le vert et veneson 
 ' ejusdem, ac proficuis et pertinentiis earundem, diclo Thome et heredibus suis de nobis et successoribus nostris 
 ' in feodo et hereditate ac libera foresta imperpetuum, per omnes rectas metas suas, antiquas et divisas, prout 
 ' jacent in longitudine et latitudine, in boscis, planis, moris, marresiis, viis, semitis, aquis, stagnis, rivolis, pratis, 
 ' pascuis, et pasturis ; cum curiis et earum exitibus, herezeldis, bludwitis, et merchetis mulierum, ac cum omnibus 
 ' privilegiis et libertatibus libere foreste, tarn subtus terrS, quam supra terram, procul et prope, ac cum omnibus 
 ' aliis et singulis libertatibus, commoditatibus, proficuis, asiamentis, et justis pertinentiis suis quibuscunque, tarn 
 ' non nominatis quam nominatis, ad predictam dimedietatem foreste de Kilgarry, unacum dimedietate de le vert et 
 ' veneson ejusdem, cum proficuis et pertinentiis earundem, spectantibus seu juste spectare valentibus, quomodolibet, 
 ' in futurum, libere, quiete, plenarie, integre, honorifice, bene et in pace, sine aliqua revocatione aut contradictione 
 ' nostri aut successorum nostrorum quorumcunque. Reddendo inde dictus Thomas et heredes sui nobis et succes- 
 ' soribus nostris wardam, relevia, et maritagia dicfarum terrarum, cum contigerint, dummodo dictus Thomas nobis 
 ' fideliter deserviat, et quod nobiscum cum suis servitoribus durante toto tempore instantis discordie commoretur 
 ' et remaneat. In cujus rei testimonium praesenti Carte nostre magnum sigillum nostrum apponi precepimus. 
 ' Testibus, Reverendis in Christo patribus Willielmo Episcopo Aberdonensi, Cancellario nostro, Andrea Episcopo 
 ' Moraviensi, Johanne Episcopo Lismorensi ; dilectis consanguineis nostris David Comite Craufurdie, domino 
 ' Lindesay, Magno Caraerario nostro, Johanne Comite Atholie, domino Balvany, David domino Lindesay de 
 ' Biris, Willielmo domino Grahame, Alexandro domino Forbes, 'Willielmo domino Borthuik, Johanjie domino 
 ' Carlile, Magistro Archibaldo Quhitelaw, Archidiacono Laudonie, Secretario nostro, et domino Alexandro Scott, 
 ' Rectore de Wigton, Clerico nostrorum Rotulorum et Registri. Apud Edinburgh, decimo septimo die mensis 
 ' Mail, anno Domini millesimo quadringentesimo octuagesimo octavo, et regni nostri vicesimo octavo :' — Quam- 
 QuiDEM CARTAM ac donationem, et concessionem in eadem contentas, in omnibus suis punctis et articulis, 
 
 CONDICIONIBUS, ET MODIS, AC CIRCUMSTANCIIS SUIS, QUIBUSCUNQUE, FOEmA PABITER ET EFFECTU, IN OMNIBUS ET 
 PER OMNIA, APPROBAMUS, KATIFICAMUS, ET PRO NOBIS ET SUCCESSORIBUS NOSTRIS, UT PREMISSUM EST, PRO PERPETUO 
 
 CONFIRMAMUS, — Salvls uobis et successoribus nostris juribus et serviciis de predicta dimedietate foreste de 
 Kilgarry, unacum dimedietate viridium arborum et venacionum, viz. le vert et veneson ejusdem, cum pertinentiis, 
 ante presentem nostram confirmationem nobis debitis et consuetis. In cujus rei testimonium, presenti carte 
 nostre confirmacionis magnum sigillum nostrum apponi precepimus. Testibus ut in prima carta precedeute. 
 Apud Jedburgh, vicesimo tercio die mensis Marcii, anno Domini millesimo quadringentesimo nonagesimo nono, et 
 regni nostri duodecimo." 
 
402 APPENDIX. 
 
 iv. The Kilgarry grant by James III. to Somyr of Balyordie : — 
 
 (Nos. XXVL, XXVII.) 
 
 (1) Oharterly James III., zmdertJie Great Seal, nth May 14:88, to Thomas Somyr of Balyordie, 
 
 of the other moiety of the forest of Kilgarry, with vert and venison, &c.—From the Southesk 
 Cliarter-chest, where it is still preserved uncancelled, notwithstanding the Act 1489-90. — 
 ' Minutes of ' Evidence,' p. 97.— (Referred to supra, p. xxvii.) 
 
 (2) Charter of Confirmation hy James IV., IZrd March 1499-1500, of the preceding Charter— 
 
 leing in the precise form of Confirmations of valid grants. From the Great Seal Register. 
 —'Minutes of Evidence,' p. 98.— (Referred to supra, p. xxvii.) 
 
 Observation. 
 
 This Charter and Confirmation are not printed here, being in precisely the same form as the preceding." 
 
 V. The Kenmure grant by James III . : — 
 
 (Nos. XXVIII., XXIX.) 
 
 (1) Charter hy James III., 2Zrd May 1488, to Alexander Cordon, erecting the lands of Kenmure 
 
 into a harony, to he held blench of the Crown. — From the Kenmure Charter-chest, where it is 
 preserved uncancelled, ut supra. — ' Min. of Evidence,' p. 100. — (Referred to supra, p. xxvii.) 
 
 (2) Charter of Confirmation hy James IV., 25th July 1489 (thus before the Act ISth February 
 
 1489-90), of the preceding Charter — being, as before, in the precise form of Confirmations of 
 VALID grants. — From the Great Seal Begister. — 'Minutes of Evidence,' p. 101. — (Referred to 
 supra, p. xxvii.) 
 
 Obseevation. 
 
 This Charter and Confirmation are not printed here, being identical in point of form with the preceding. 
 
 2. Instances in which James III.'s Chabteks (oeanted, as above, dueing the pbosckibed pekiod) stood, on theie 
 OWN &EoirND, without Conpiemation, in the eace oe the Act Ebscissoet. 
 
 i. Grant of the Sheriffdom of Stirlingshire : — 
 
 (1) Abstract, in the Great Seal Begister, of a Charter by James III., Uth February 1487-8, to 
 the Cunninghams of Folmaise, father and son, of the office of Sheriff of Stirling, as well 
 within as without the burgh so named. — 'Minutes of Evidence,' p. 111. — (Referred to 
 supra, pp. xxx sqq.) 
 
 (No. XXX.) 
 
 " OfEcium Vicecomitis de Stirling Alexandri et Eoberti Cmiinghame. 
 
 " Data fuit Litera sub Magno Sigillo Alexandre Cunynghame de Polmayis, militi, et Roberto Cunyng- 
 hame, sue filio et apparenti heredi, et eorum alteri diucius viventi, conjunctim etdivisim, de officio Vicecomitis de 
 Striveling, tarn in burgo quam extra burgum, pro toto tempore vite dicti Alexandri, et Roberti : — Quodquidem 
 
 * On the adduction of the preceding grant and its confirmation Sy a Lord. — How do you know that they are so? 
 
 the following examination took place : — _ Mr. Melville. — The Fact is generally explained by the Deed 
 
 " Mr. Stuart Wortley. — Is that Confirmation in the ordinary itself. 
 
 Form of a Confirni,ation of a valid Title, or has it a ' non Mr. Stuart Wortley. — Do you mean that there is generally a 
 
 ' obstante ' Clause, s^ich as is sometimes found in such a Charter Recital that there is some Defect, and then that there is that 
 
 when the Title may be defective ? Clause ? 
 
 Mr. Melville. — Nothing of that sort occurs here. It is in the Mr. Melville. — Yes, I think so. 
 
 usual Form, apparently. ^ Mr. Stuart Wortley. — You say you ' think so.' Have you 
 
 Mr. Attorney-General. — You say that there is no 'non ob- had Occasion to see Charters setting out a Defect in the original 
 
 ' stante ' Clause. ' Non obstante ' Clauses are very uncommon, Title, and then proceeding to confirm that Title by a ' non 
 
 are not they, in Scotch Charters of Confirmation ? ' obstante ' Clause ? 
 
 Mr. Melville. — They do occur sometimes. Mr. Melville. — Yes, I have seen such Charters, 
 
 Mr. Attomey-Generul. — But not often ? Mr. Stuart Wortley. — I suppose Confirmations of invalid Titles 
 
 Mr. Melville.— Not often ; but they do occur. are not very frequent in Grants from the Crown ? 
 
 Mr. Attorney-General. — ^How many Instances have you ever Mr. Melville. — No, I should say not. 
 
 met with ? Mr. Stuart Wortley. — Are you aware that you have ever seen 
 
 Mr. Melville. — I know of Three or Four, I think. any Confirmation upon a Recital of an invalid Title without 
 
 Mr. Attorney-General. — In the whole Course of your Experi- that Clause ? 
 
 ence in this Matter? Mr. Melville. — I am not prepared to answer that." 
 
 Mr. Melville. — Perhaps more than that ; but that at any rate. — Minutes of Evidence, p. 97. — The Claimant need only add 
 
 Mr. Stuart Wortley. — In these Cases in which you find those that Charters of Confirmation with the " non obstante " clause 
 
 ' non obstante ' Clauses are inserted, is it upon a valid Title, or are much more common than is here represented, although 
 
 upon one that is affected in some way ? charters of ordinary confirmation for the purpose of registration, 
 
 Mr. Melville. — Upon questionable Titles. like those here adduced, are necessarily far more numerous. 
 
APPENDIX. 403 
 
 officium Vicecomitis Thomas Dominus Erskin, et Alexander Erskin, suus filius et heres apparens, prius habuerunt, 
 et ex suis propriis motibus et spontaneis voluntatibus, unanimi consensu, resignaverunt et sursum reddiderunt : — • 
 Etc., cum omnibus feodis et proficuis dicti officii, pro toto tempore vite dicti Alexandri, et Eoberti : — De data 
 xiiij mensis February, anno Domini millesimo iiij" octuagesimo septimo, et regni Begis vicesimo octavo." * 
 
 (2) Decreet and Deliverance ly the lords Auditors of Parliament, 3rd June 1493, " that Alex- 
 " ander Cunynghame of Polmayis, Knycht, Scheref of Striveling, has done na contemptioun 
 " to the Kingis Hienef" &c. — Proving that Sir Alexander Ounningham was still exercising 
 the office of Sheriff of Stirling under the grant of James III., lith of February 1488, 
 although struck at hy the Act Rescissory. — From the ' Acta Parliamentorum Jacohi IF.' — 
 (^Printed also in the 'Acta Dominorum Auditorum,' p. 171.) — 'Minutes of Evidence,' 
 p. 112. — (Referred to supra, p. xxxi, n. *.) 
 
 (No. XXXI.) 
 Observation. 
 
 This is not given at length, the only material words being those above quoted. 
 
 (3) Decreet hy the Lords of Council and Session, the Supreme Civil Court of Scotland, 2Srd May 
 1497, "in the actione and caus perseivit he Oeorg Erie of Huntlye, etc. apone Robert of 
 " Conynghame, the son and apperand aire of Schir Alexander Conynghame of Polmaithis, 
 " Knicht, Scheref of Striveling, &c." — proving, like the preceding document, that Sir Alex- 
 ander Cunningham of Polmaise was still Sheriff under the grant \^th February 1488. — 
 From the ' Acta Dominorum Concilii.' — ' Minutes of Evidence' p. 112. — (Referred to 
 supra, p. xxxi, n. *.) 
 
 (No. XXXII.) 
 Observation. 
 
 This also is not given at length, for the reason above assigned. 
 
 (4) Confirmation hy James IV., 13th October 1501, to the Burgh of Stirling, of the office of 
 Sheriff of Stirling withis the Burgh, which the magistrates had obtained through a special 
 resignation by the Cunninghams, father and son, as holding under the above Charter lith 
 February 1487-8, which is expressly referred to in the Confirmation. — From the Great Seal 
 Register. — ' Minutes of Evidence,' p. 114. — (Referred to siqwa, p. xxx.) 
 
 (No. XXXIII.) 
 
 " Carta Burgi de Strivelin super officio Vicecomitatus infra dictum Burgum. 
 
 '' Jacobus," <&c.f •' Sciatis quod, pro singulari favore quem gerimus erga Burgum nostrum de Stri- 
 veling, et pro communi comraodo et utilitate ejusdem, necnon pro fideli et gratuito servitio nobis per dilectos 
 nostros Prepositum, Ballivos, Consules, et Communitatem dicti nostri Burgi impenso, dedinmS, concessimus et 
 commisimus, et hac present! carta nostra damus, concedimns, et committimus dictis Preposito, Ballivis, Consulibus, 
 et Communitati officium Vicecomitatus de Striveling infra Burgum nostrum de Striveling, territorium et libertatem 
 ejusdem, cum omnibus et singulis libertatibus, privilegiis, proficuis et devoriis dicti officii : — Qdodqdidem 
 OFFICIUM ruiT Alexandei Cunyghame de Polmays, MiLiTis, Vicecomitis nosthi de Striveling, et sibi 
 
 PERTINEBAT PER DONATIONEM EJDSDEM EI ET UNI HEREDI SIBI PROXIMO ET IMMEDIATE SGCCESSUEO DESUPER 
 
 CONFECTAM ; ET QUOD OFFICIUM IDEM ALEXANDER, 9ion VI aut metu ductus, uec errori lapsus, sed sua merd et 
 spontanea voluntate, in manus nostras apud Striveling, per fusiem et haculum, et sues procuratores ad hoc legitime 
 constitutos, sursum reddidit, pureque simpliciter resignavit, et toiumjus et clameum quod in eodem habuit seu 
 habere potuit pro se et her edibus suis omnino quittclamavit iinperpetuum. Et nos igitur," &c. "Tenendum et 
 habendum dictum officium," &c. "In cujus rei testimonium," &c. " Testibus ut in quinta carta precedenti. 
 Apud Striveling, duodecimo die mensis Octobris, anno Domini millesimo quingentesimo prime, et regni nostri 
 decimo quarto." 
 
 * It will be remembered (as explained in the Advertisement pre- colon and break between each of them, run currently on, 
 
 fixed to this volume) that the punctuation in these documents has without break or distinction, in the original record. The 
 
 been supplied by the Claimant. The portions of the present Claimant remarks this with reference to a point discussed be- 
 
 abstract representing the Dispositive, the Quodquidem, and Tenen- tween himself and the Crown, supra, p. xxxi. 
 das clauses, and which are distinguished by the interposition of a f The unimportant portions of this Charter are here omitted. 
 
 3 F 
 
404 APPENDIX. 
 
 (5) Confirmation hy James IV., 2Qth February 1506, to Sir Rohert Ersldne, of the Sheriffdom, of 
 Stirling without the Burgh, proceeding on a resignation of the SJieriffdom into tJie hands of 
 the King by Sir Alexander Cunningham and his son JRobert, holding under the above 'Charter 
 lith February 1488. — From the Great Seal Segistcr. — ' Minutes of Evidence,'' p. 115. — 
 (Referred to supra, p. xxxi.) 
 
 (No. XXXIV.) 
 
 " Carta Robert! Magisti-i de Erskin. 
 " Jacobus," &c.* " Scias [sic] quia Alexander Cunykgham be Poxmais, miles, et Robertus Cuntng- 
 HAME, EJTJS FiLius ET AppAREi>fs HEKES, ex suis Ubevis et spontutieis ooluntatibus, tion cnmpulsi aut choacti, 
 
 TOTUM INTEGRUM OFFICIUM VlCECOMITATDS NOSTRI DE StKIVELING, QUOD PRIUS IPSI IN VITALI REDDITU 
 
 HABUERUXT, ui munibus nostris apud Edinburgh, per fustem et baculum, pureque et simpliciter dimiserunt, 
 RENUNCIAKUNT, AC SURSUM REDDiDERDNT, ac totum jus et clameum que vel quod ipsi in seu ad dictum officium 
 habuerimt, habent, aut habere poterint, seu eorum alter habuit, habet, aut quovismodo habere poterit, sic quod 
 nos super hvjusmodi officium ad nostre libitum voluntatis libere disponere possimus et valemus ; Quodquidem 
 OFFiciuM, nunc vacans et IN MANiBus NOSTRIS, sic ut premittitur, existens, dedimus et concessimus, et hac present! 
 carta nostra damns et concedimus dilecto consanguineo nostro Roberto Erskin, filio et apparcHti heredi dilecti 
 consayiguinei nostri Alexandri Domini Erskin; Ac etiam fecimus, constituimus, et ordinavimus, et hac present! 
 carta nostra constituimus et ordinamus, prefatum Robertum nostrum Vicecomitem tocius et integri Vicecomitatus 
 nostri de Striveling predict!, pro suo bono et gratuito servitio nobis impenso et impendendo, — necnon pro eo quod 
 ipse Robertus Erskin in manibus nostris dimisit, sursum reddidit, et simpliciter resignavit officium Vicecomitatus 
 nostri de Selkirk, quod sibi hereditarie pertinebat, ad nostre libitum voluntatis disponendum : — Tenendum et 
 habendum dictum officium Vicecomitatus nostri de Striveling dicto Roberto Erskin, consanguineo nostro, et 
 heredibus suis masculis de nobis et successoribus nostris, in feodo et hereditate, imperpetuum ; cum omnibus et 
 singulis libertatibus," &c. &c. " Faciendo iude," &c. " In cujus rei testimonium," &c. " Apud Edinburgh, 
 vicesimo sexto die mensis Februarij, anno Domini millesimo quingentesimo sexto, et regni nostri decimo nono." 
 
 ii. Grant of the Petty Customs of the Burgh of Brechin : — 
 
 (1) Charter by James III., Wth April 1488, to the Burgh of Brechin, of the Petty Custom,s of 
 the Burgh, for ever. — From the Archives of the Burgh, where it is still preserved, uncancelled, 
 notwithstanding the Act 1489-90.—' Minutes of Evidence,'' p. 16. — (Referred to supra, 
 p. xxxii.) 
 
 (No. XXXV.) 
 " Jacobus, Dei gracia Rex Scotorum, Omnibus probis hominibus totius terra sue, clericis et laicis, Salutem. 
 Noveritis quod bona comniunia et res publice Civitafis Brecliinensis sunt modici valoris, et eadem Civitas liber 
 existit burgus, ac de eadem taxte et contribuciones sumuntur, ut de ceteris nostris burgis ; necnon, pro Jideli 
 gratuito servicio per ballivos et communitatevi ejusdem Civitalis et burgi nunc tempore inquietacionis et guer- 
 rarum nobis muUipliciter impenso et impendendo, Dedimus igitur et concessimus, ac tenore preseutis carte nostre 
 damns et concedimus pro perpetuo, dictis ballivis et communitati, nunc presentibus et futuris, nostram liberam 
 licentiam, libertatem, et privilegium speciale, sumendi, levandi, et percipiendi de singulis rebus et bonis custu- 
 malibus venientibus ad dictam Civitatem et forum ejusdem, unum oblum [sic], videlicet, de unaquaque sarsina sive 
 pondere equino, tam lignorum quam aliorum bonorum quorumcunque, ad quautitatem dicte sarsine sive ponderis 
 uriius equi, ut premittitur ; et sicde omnibus aliis rebus unum oblum, secundum exigentiam et quantitatem sarsine 
 sive ponderis equini, ut prefertur :— T[enen]dum et habendum dictum privilegium recipiendi unum oblum de singulis 
 rebus et bonis venientibus ad dicfam Civitatem et aliis rebus custumalibus, tam de [lignis qua]m aliis rebus 
 secundum exigentiam Sarsine sive ponderis unius equi, ac qualitatem et quantitatem ejusdem, dictis ballivis et 
 communitati, presentibus et futuris, de nobis et successoribus nostris imperpetuum ; Unaciim potestate sub eis 
 substituendi et deputandi unum seu plures officiarium seu officiarios, ad levandum et suscipiendum dictum oblum 
 de unaquaque sarsina sive pondere equino, ut prefertur, ac dictum oblum de singulis rebus prescriptis, ad com- 
 munem usum et utilitatem dicti burgi et Civitatis dispOnendum; Necnon cum potestate contradictores et 
 inobedientes ac eorum bona pro eisdem custumis dislringendi ; Necnon omnia alia et singula que ad recepcionem 
 dicte custunie incumbunt faciendi, sine aliqu^ revocatione aut contradictione nostri vel successorum nostrorum inde 
 faciendis in futurum. Quare universis et singulis quorum interest vel interesse poterit stride precipimus et 
 mandamus, quatinus dictis ballivis et communitati, presentibus et futuris, in omnibus et singulis dictam custumani 
 concernentibus, prompte respondeant, pareant, et intendant, sub omni pena quam erga nostram regiam incurrere 
 poterint majestatem. In cujus rei testimonium presenti Carte nostre magnum sigillum nostrum apponi precipimus. 
 Testibus reverendis in Christo patribus, Willielmo Episcopo Aberdonensi, Cancellario nostro, AndreS, Episcopo 
 Moraviensi, Andrea Episcopo Orchadiensi; dilectis consanguineis nostris, David Comite Craufurdie, Domino 
 Lindesay, Magno Camerario nostro, Georgio Comite de Huntly, Domino Gordoun, Willielmo Comite de Eroll, 
 Domino le Hay, Constabulario Regni nostri, Willielmo Comite Mariscalli, Domino Keith, Jacobo Comite 
 Euchanie, Domino de Uchtirhous, Johanne Domino Glammys, Alexandre Domino Forbes, Thoma Domino 
 Innerraeith, et Willielmo Domino Ruven. Apud Brecb[in], vicesimo \pct'\avo die mensis Aprilis, anno Domini 
 millesimo quadringentesimo ocluagesimo octavo, et Regui nostri vicesimo octavo." 
 
 * The unimportant parts of this Charter are here omitted. 
 
APPENDIX. 405 
 
 Observation. 
 
 On the adduction of this Charter by the Claimant, the following examination of Mr. Melville took place, on 
 behalf wf the. Crown, in order to prove that the Charter in question is not recorded in the Great Seal 
 Eegister : — 
 
 " Lord Advocate.— That Grant appears to have been made in consideration of Services done in War ? 
 Mr. Melville.—Yes. 
 
 Lord Advocate.~Is that Document on the Eegister of the Great Seal ? 
 Mr. Melville.—'No, it is not. 
 
 Lord Advocate.— Yon have searched the Register, and you find that that Document is not recorded ? 
 Mr. Melville. — It is not. 
 
 Mr. Stuart Wortley.— Were Documents of that Description recorded on the Eegister in those 
 
 Times ? 
 Mr. Melville.— They might be. 
 
 Mr. Stuart Worthy. — Is there any Eegister of that Date ? 
 Mr. Melville. — Yes. 
 
 Mr. Stuart Wortley.— Do you find in the Eegister of that Date any Documents of that Description ? 
 Mr. Melville.—Yes. 
 
 Mr. Stuart Wortley.— Are you aware whether in those Times the Documents were regularly regis- 
 tered ? 
 
 Mr. Melville.— They ought to have been ; but this One has not been, and others may not have been. 
 
 Lord Advocate.— That is a Charter under the Great Seal? 
 
 Mr. Melville.—Yes. 
 
 Lord Advocate.— And there was a Register of the Great Seal, as we know.? 
 
 Mr. Melville.—Yes. 
 
 Lord Advocate. — But you do not find that Charter recorded in it ? 
 
 Mr. Melville. — It is not recorded. 
 
 Mr. Stuart Wortley.— You have searched the Register to see whether it is recorded? 
 
 Mr. Melville. — I did search." 
 — Minutes of Evidence, p. 17. — And when the evidence for the Crown was put in, 
 
 " Mr. Innes stated that the Charter of Brechin had already been given in, but that he wished to put 
 a question to the witness" (William Fraser, Esq.*) " respecting that Charter. 
 
 Mr. Innes.— Have you searched in the Register of the Great Seal for the Record of the Charter of 
 Brechin ? 
 
 Mr. Fraser. — I have made such a Search, and I do not find it to be on the Great Seal Register." 
 — Minutes of Evidence, MSS.f :— On which the Claimantmay observe, that the fact of non-registration, 
 insisted on (as above) by the Lord Advocate and Mr. Innes, is quite immaterial,— many most important 
 charters are in the same predicament, as, for example, the very next document hereafter given, the Glen- 
 cairn patent 1488, which was received as evidence notwithstanding in the Glencairn claim in 1796-7, the 
 patent of the Earldom of Eglinton circa 1505, &e. &c., — and in later times, the patent of the Barony of 
 Balfour of Burleigh in 1607, the patent of the Earldom of Airth in 1633, and that of the Earldom of 
 Breadalbane in 1682.$ And other instances could be given if necessary. — The Claimant may further 
 remark that, while endeavouring to throw discredit on the Brechin Charter on account of its not having 
 been registered, and setting it completely aside (apparently) in consequence, the Crown and the Committee 
 attribute the greatest weight (as has been elsewhere noticed) to the non-existent and imaginary " lost 
 " patent" of the Earldom of Glencairn, presumed to have passed in 1503— apologising for its non- 
 appearance on the ground of its not having been registered] — Vide supjra, p. xxxviii. — Evidence will be 
 found under the next article, proving that the Brechin charter duly passed the Great Seal. 
 
 (2) Evidence In/ David Bakers Black, of Kergord, Esquire, Town Clerk of Brechin, to the effect 
 that the Petty Customs have heen drawn hy the Burgh of Brechin, in right exclusively of the 
 preceding Chartev hy James III., ever since ; that no Confirmation of that Charter exists in 
 the archives of the Burgh ; and (in ansiuer to a question hy the Lord Advocate), tliat the Seed 
 remained p/artly attached to the Charter till unfortunately knocked off hy one of the mem- 
 hers of the Council of Brechin on the occasion of the a/pplication of the Claimant to he 
 
 permitted to adduce it on the present occasion. — ■' Minutes of Evidence,' pp. 17, 18, 19, 
 
 (Referred to supra, p. xxxii.) 
 
 (No. XXXVI.) 
 
 " Mr. Stuart Wortley. — You said that you were the Town Clerk of Brechin. Have you the Custody of 
 the Charters and Muniments of that Burgh ? 
 
 * The gentleman employed by the Duke of Montrose in col- ments and comments will be easily found in the printed Minutes 
 
 lecting evidence, &c. for his Cases in opposition to the present (when completed ) by reference to the documents as here numbered, 
 
 claim, — formerly a Solicitor in the Supreme Courts of Edinburgh, J Lord Mansfield accordingly stated in his Speech on the 
 
 and now Assistant Keeper of the Register of Sasines in Her Cassillis claim in 1762, that "certainly there were several 
 
 Majesty's General Eegister House, Edinburgh. " peerages by patent" before the reign of James VI., " though 
 
 t The evidence for the Crown, oral and documentary, not "not upon record. In the present case" (that of Cassillis) 
 
 having heen yet printed (May 1854), the Claimant is unable to " there is no patent, yet that is no proof that the Peerage was 
 
 refer to the pages of the ' Minutes,' as in the case of his own " not granted by writ. The Peerage of Glencairn was granted 
 
 evidence. His references must therefore be to the Numbers of " hy patent in the reign of James III., in 14S8, yet it does not 
 
 the documents adduced, as they will appear in the 'Minutes' "appear on record." Vide infra, p. 557. — The Airth patent, 
 
 when completed. The statements or comments by the learned moreover, although existing solely in the charter-chest of the 
 
 gentlemen who appeared on behalf of the Crown on this occasion, Duke of Montrose, not being recorded, was adduced before and 
 
 are quoted from the ' Minutes of Proceedings ' as taken down in admitted by the Committee of Privileges in the recent (indeed 
 
 short-hand by Mr. Gumey, and which are still in MS. These state- pending) claim to the Earldom of Airth by Mr. Barclay Allardyce. 
 
 3 F 2 
 
406 APPENDIX. 
 
 3Ir. Black. — I have. 
 
 Mr. Stuart Wortley. — Have you searched those Muniments, to see whether there is any Confirmatiou of 
 that Charter? 
 
 Mr. Black. — I do not recollect searching- specially for that Purpose ; but I have gone over the 
 Muniments frequently for other Purposes, and I am not aware that there is any Confirmation of that Charter. 
 Mr. Stuart Wortley. — Do the Town Council of the Burgh of Brechin still receive those Customs ? 
 Mr. Black. — They receive the Petty Customs. 
 
 Mr. Stuart Wortley. — Are you aware of any other Documents or Title under which they receive them 
 than that which you have produced ? 
 
 Mr. Black. — I am not. I have always understood this to be the Eight which we have to the Petty 
 Customs. 
 
 3Ir. Stuart Wortley. — Can you inform the Committee what is the Nature of the Petty Customs ? 
 Mr. Black. — I can. 
 Mr. Stuart Wortley. — What are they ? 
 
 Mr. Black (reads). — " For each Boll of Wheat, Corn, or Meal, two farthings," &e. 
 
 Mr. Stuart Wortley. — They are certain Payments upon all Provisions or Goods coming into the Burgh? 
 Mr. Black. — Yes ; upon all Sorts of Goods brought into the Burgh. 
 
 By a Lord. — Have you amongst your Charters any Charter of Confirmation of other Grants ? 
 Mr. Black. — We have Charters of Confirmation of the Eight of Market, but ^I'e have not any of the 
 Grant of the Eight of Customs. 
 
 By the same. — Have you read those Charters of Confirmation which you have in your Custody ? 
 Mr. Black. — I have. 
 
 By the same. — And you have found none which relate to those Customs and the Matters granted by the 
 Charter ? 
 
 Mr. Black. — No. All the Charters to which I have referred are previous in Date to this. 
 By the same. — Have you no Charter of Confirmation of a later Date than that ? 
 Mr. Black.— ^o. 
 
 Mr. Stuart Wortley. — As far as you know, have the Town of Brechin continued to receive Customs from 
 the Time of the Charter ? 
 
 Mr, Black. — I have always understood so from my Predecessor and others. 
 By a Lord. — How long have you had the Means of knowing this ? 
 
 Mr. Black. — I have been Town Clerk of Brechin since the Year 1825 ; and I knew it for some Time 
 before that. f 
 
 By the same.- — They have always received these Customs since 1825 ? 
 Mr. Black. — Since 1825, and long before that. 
 By the same. — As far back as you know ? 
 Mr. Black. — As far back as I know. 
 
 3Ir. Stuart Wortley. — You have always understood, from your Predecessors, as well as from the Persons 
 in your Office, that this Eight existed under the Charter ? 
 Mr. Black. — I have. 
 
 By a Lord. — Do the Sums actually received tally with the Sums mentioned in the Charter ? 
 Mr. Black. — There are a Variety of Alterations. The " Obolus " is said to be a Halfpenny ; — so we 
 construe the Latin Word " Obolus." * Some of the Customs are a Halfpenny, some a Penny, and some Twopence ; 
 but we understood the Charter to be the Foundation of the Claim of Petty Customs. 
 
 Mr. Stuart Wortley. — Are the Articles upon which Payment is now taken the same as in the Charter? 
 Mr. Black.— Thw List which I hold in my Hand is a List of the Articles. I found it in the Town 
 Clerk's Office, having been printed in 1 809 ; and I have caused it to be reprinted twice. 
 
 Mr. Stuart Wortley. — Does it correspond with the Description of Goods mentioned in the Charter ? 
 Mr. Black. — The Load of Wool is exactly the same. 
 
 Cross-examined by the Lord Advocate. 
 
 Lord Advocate. — Has the Burgh of Brechin any other Charter which mentions the Customs at all ? 
 
 Mr. Black. — Not that I am aware of. 
 
 Lord Advocate. — Is the Seal appended to that Charter in existence? 
 
 Mr. Black.— When I first knew this Charter it had a little Bit of Seal attached to it. It was lent to 
 Mr. Chalmers, who was writing a History of Forfar ; and when Lord Lindsay applied for it, it was exhibited to 
 Thirteen Members of the Council, and One of them unfortunately knocked off what remained of the Seal." 
 
 * Owing to the extreme scarcity of money at the end of the fifteenth century, the oholus was of much greater value then than at present. 
 
APPENDIX. 407 
 
 iii. Grant of the Earldom of Glerwairn: — 
 
 (1) Charter or Patent ly James III., 28th May 1488, granting the Earldom of Olencairn, %vith 
 the lands of Drumraond and Duchray, to Alexander Lord Kilmaurs " et heredihus suis." — 
 From the Minutes of Evidence in the Olencairn claim in 1796-7. — 'Minutes of Evidence,' 
 p. 26.* — (Referred to supra, p. xxxiv and passim.f See also p. 557, and n. {, infra.) 
 
 (No. XXXVII.) 
 
 " Jacobus, Dei gratis Rex Scotorum, omnibus probis hominibus totius terra sue, clericis et laicis, salutem. 
 Noveritis nos, pro fideli gratuitoque servitio nobis per nostrum dllectum consangiiineum Alexandrum Comifem de 
 Glencarne et Dominum Kilraawris retroactis temporibus impeuso, et novissime in suo adventu cum suis amicis et 
 parentibus ad exercitum nostrum de Blaciines, et pro suis assistentia et consilio nobis ibidem exiiibitis in defensione 
 persone nostre, [regni,] et corone, necnon pro suo servitio nobis temporibus futuris impendendo, et pro singulari 
 favore quem erga ipsuni gerimus ; fecimus et creavimus, ac tenore presentis carte nostre facimus et creamus 
 eundem nostrum consanguineum Comitem, inexaltationemsui honoris, perpetuis temporibus futuris | Comitem de 
 Glencakne et Dominum de Kilmawris nuncupandum ; Ac etiam, in augmentationem sui vitalis redditus et § 
 ad sustentationem sui status et honoris, dedimus et concessimus, tenoreque presentis carte nostre damns et concedimus 
 hereditarie prefato nostro consanguineo, triginta libratas terrarum [nostrarum] de [Drummond], et decem libratas 
 terrarum nostrarum de Duchrie de extentu in nostro rentali contento, cum suis pertinentiis, jacentibus in comitatu 
 nostro de Levenax et infra vicecomitatum de Stirling : — Tenendas et habendas omnes et singulas predictas triginta 
 libratas terrarum de [Drummond], et dictas decem libratas terrarum de Duchrie de extentu predicto, cum pertinentiis, 
 prefato Alexandro Comitide Glencarne et Domino de Kilmawris et hehedibus suis, de nobis et successoribus 
 nostris, in feodo et hereditale, imperpetuum, per omnes rectas metas suas, antiquas et divisas, prout jacent in longi- 
 tudine et latitudine, in boscis, planis, moris, marresiis, viis, semitis, aquis, stagnis, rivolis, pratis, pascuis et pas- 
 turis, molendinis, multuris, et eorum sequelis, aucupationibus, venationibus, piscationibus, petariis, turbariis, 
 carbonariis, lapide et calce, cuniculis, cuniculariis, columbis, columbariis, fabrilibus, brassinis, brueriis et genestis, 
 cum curiis et earura exitibus, lierezeldis, bluduitis, el marchetis mulierum, ac cum omnibus aliis et singulis liber- 
 tatibus, commoditatibus, et asiamentis, acjustissuis pertinentiis quecuraque [sic] tam nonnominatis quam nominatis, 
 tam subtus terra quam supra terram, procul et prope, ad predictas terras cum pertinentiis spectantibus seu juste 
 spectare valentibus quomodolibet in futurum, libere, quiete, pleuarie, integre, honorifice, bene et in pace, sine 
 revocationeautcontradictionequamcumque [sic] : — Reddendo inde annuatim dictus Alexander Comes de Glencarne 
 et heredes sui nobis et successoribus nostris tres sectas ad tria placita capitalia vicecomitatus nostri de Stirling, ac 
 vardas et relevias earundem terrarum cum pertinentibus, cum contigerint, dummodo dictus Alexander Comes de 
 Glencarne nobis iideliter deserviat et nobiscum cum suis servitoribus durante toto tempore instantis discordie com- 
 raoretur et remaneat. In cujus rei testimonium presenti carte nostre magnum sigillum nostrum apponi prece- 
 pimus. Testibus reverendis in Christo patribus, WiDielmo episcopo de Aberdene, Cancellario nostro, Andrea 
 episcopo Murraviensi, Joanne episcopo Lismorensi, Jacobo episcopo Dumblanensi ; dilectis consanguineis nostris 
 Davide Comite de Crawfurd, domino Lindesay, Magno Camerario nostro, Joanne Comite Atholie, domino Balvanie, 
 Willielmo domino Grahame, Joanne domino Bothuell, "Willielmo domino Borthuick, Joanne domino Carleill, 
 Magistro Archibaldo Whytlaw, domino, Secretario nostro, domino 
 
 Alexandro Scot, rectore de Wigtoun, Clerico Rotulorum uostrorum et Registri. Apud Edinburgh, vigesimo octavo 
 die mensis Maij, anno Domini millesimo quadringentesimo et octuagesimo octavo, et regni nostri vigesimo 
 octavo." 
 
 (2) Evidence adduced by the Crown, to prove that the lands of Drummond and Duchray, granted 
 by the Olencairn Patent 28th 3£ay 14:88, were not enjoyed under it, — the assertion being that 
 the grant had been cut down in toto by the Act Rescissory .\ — 'Minutes of Evidence^ Nos. 
 107 sqq.1l— (Referred to supra, p. xlii.) 
 
 (Nos. XXXVIII. to LXVIII. inclusive.) 
 
 (i.) Tack by James IV., 6th June 1489, to John Lord Drummond, of the lands of Drum- 
 mond for five years from the date hereof, for payment of the duties and services in 
 
 * The following passages occur in the ' Minutes of Evidence :' at full length in the Decreet of Parliament, 2nd March 16*9, for 
 
 — " Mr. Stuart Worthy further stated, That the original Patent which vide infra, p. 462. The words within brackets, omitted in 
 
 " was in the Register House at Edinburgh ; and that before the the recitation in question, are here supplied from the Glencairn 
 
 " Conclusion of the Case steps would be taken to bring it up Minutes. 
 
 " before the Committee."— And subsequently, when all the evi- t The words are inverted, ' futuris temporibus,' in the 
 
 dence had been given in, " Mr. Stuart Worthy stated. That the original. 
 
 " only Document which had not been produced was the original § The original reads " ac ad sustentationem." 
 
 " Patent of the Earldom of Glencairn, a Copy of which had || The following was the statement by Cosmo Innes, Esq., in- 
 
 " already been given in." Whereupon " Mr. Attorney -General troductory of this class of the evidence for the Crown :— " Mi. 
 
 " stated, That he would dispense with the Necessity of producing " Innes stated that he proposed next to show tlie possession of the 
 
 " the Original." Minutes pp. 25, 144. " lands of Drummond and Duchray, which he used as illustrative of 
 
 t This patent being considerably abridged in the Minutes of " the possession of the Earldom of Glencairn." Minutes of Proceed- 
 
 Evidence in the Glencairn claim (from which it is printed in the ings, MSS. 
 
 ' Minutes of Evidence ' in the present), it is here given as recited f The Claimant would refer here to note t at p. 405, supra. 
 
408 APPENDIX. 
 
 the King's Eental.— From the Duke of Montrose's Charter-chest.*—' Minutes of 
 ' Evidence,' No. 107. 
 
 (ii.) Charter by James IV,, 31st January 1495, in favour of John Lord Drummond, of the 
 lands and lordship of Drummond, in the Lordship of Mouteith and Sheriffdom of 
 Stirling.— From the Drummond Charter-chest.—' Minutes of Evidence,' No. 108. 
 
 (iii.) Precept by James IV., 31st January 1495, for infefting John Lord Drummond in the 
 lands and lordship of Drummond, in terms of the preceding Charter.— From the 
 Drummond Charter-chest.—' Minutes of Evidence,' No. 109. 
 
 (iv.) Charter by James IV., 26th August 1498, in favour of John Lord Drummond, of the 
 lands and lordship of Drummond, in Monteith.— From the Duke of Montrose's 
 Charter-chest. — ' Minutes of Evidence,' No. 110. 
 (v.) Precept by James IV., 26th August 1498, for infefting John Lord Drummond in the 
 lands and lordship of Drummond, in terms of the jjreceding Charter.— From the 
 Duke of Montrose's Charter-chest.—' Minutes of Evidence,' No. 111. 
 
 (vi.) Instrument of Sasine, 30th October 1498, in favour of John Lord Drummond, in the 
 lands and barony of Drummond.— From the Duke of Montrose's Charter-chest.— 
 ' Minutes of Evidence,' No. 112. 
 
 (vii.) Receipt and Discharge, 9th December 1509, by Thomas Yongman, Chamberlain 
 Depute of Monteith, to John Lord Drummond, for the " maill " of the lands of 
 Drummond. — From the Duke of Montrose's Charter-chest. — ' Minutes of Evi- 
 'dence,' No. 113. 
 (viii.) Precept by James V., 22nd September 1525, for infefting David Lord Drummond in 
 the lands and lordship of Drummond, as heir to the deceased John Lord Drummond. 
 —From the Drummond Charter-chest. — ' Minutes of Evidence,' No. 114. 
 
 (ix.) Obligation by James V., 5th January 1585, that he will infeft David Lord Drummond 
 in all lands, &c. which pertained to the late John Lord Drummond, great-grandfather 
 to the said David Lord Drummond, in the King's hands through the forfaulture of 
 the said John for assaulting the Lord Lyon King-at-Arms. — From the Drummond 
 Charter-chest. — ' Minutes of Evidence,' No. 115. 
 
 (x.) Signature, under the sign manual of James V., 5th March 1535, ordaining a Charter 
 to be made under the Great Seal in favour of David Lord Drummond, of the lands 
 of Drummond in the Sheriffdom of Stirling, and others, which pertained to the late 
 John Lord Drummond, great-grandfather to the said David. — From the Drummond 
 Charter-chest. — ' Minutes of Evidence,' No. 116. 
 
 (xi.) Signature, under the sign manual of James V., dated 1541, ordaining a Charter to be 
 made under the Great Seal to David Lord Drummond, of the lands and barony of 
 Ochterarder, &c. in the Sheriffdom of Perth, which pertained to the late John Lord 
 Drummond, great-grandfather to the said David,— also the lands and barony of 
 Drummond, in the lordship of Monteith. — From the Drummond Charter-chest. — 
 ' Minutes of Evidence,' No. 117. 
 (xii.) Charter by James V., 25th October 1542, in favour of David Lord Drummond, great- 
 grandson of John Lord Drummond, of the lands and barony of Drummond, and 
 others. — From the Drummond Charter-chest. — ' Minutes of Evidence,' No. 118. 
 
 (xiii.) Instrument of Sasine, 1st and 2nd November 1542, in favour of David Lord 
 Drummond, in the lands and barony of Drummond, and others, as heir of John 
 Lord Drummond, his great-grandfather. — From the Drummond Charter-chest. — 
 ' Minutes of Evidence,' No. 119. 
 
 (xiv.) Discharge by Mary Queen of Scots, 22nd November 1554, to David Lord Drummond, 
 of the feu-duties of the lands of Drummond, in the Lennox, and others, life-rented 
 by the Queen. — From the Drummond Charter-chest. — ' Minutes of Evidence,' 
 No. 120. 
 
 (xv.) Discharge by James VI., with consent of James Earl of Morton, Regent of Scotland, 
 5th March 1574, to Patrick Lord Drummond, of the feu-duties of the lands of 
 Drummond, in the Lennox. — From the Drummond Charter-chest. — ' Minutes of 
 ' Evidence,' No. 121. 
 
 (xvi.) Instrument of Sasine, 3rd and 7th November 1587, in favour of James Drummond, 
 eldest son of Patrick Lord Drummond, in the lands and barony of Drummond, and 
 others. — From the Drummond Charter-chest. — ' Minutes of Evidence,' No. 122. 
 
 (xvii.) Renunciation by John Drummond at the mylne of Drummond, dated the 12th and 
 registered on the 21st December 1605, in favour of James Earl of Perth Lord 
 Drummond, of the lands of Spittell, and others, " lying in the said Noble Lord his 
 " barony of Drummond." — From the Duke of Montrose's Charter-cliest. — ' Minutes 
 ' of Evidence,' No. 123, 
 
 * The descriptions of these documents are given as nearly as Mr. Fraser. — They were in the King's Eental ; they were 
 possible in the words used by William Fraser, Ksq., agent for the part of the King's Property. 
 
 Duke of Montrose, as examined by Mr. Innes when producing Mr. Times. — And now first granted in Tack to John Lord 
 them in evidence before the Committee. The following addi- Drummond ? 
 
 tional comment was made upon the Tack in question : — Mr. Fraser. — Yes." 
 
 " Mr. Innes. — Does that shew in whose Hands the respective — Minutes of Proceedings, MS8. 
 Lands then were ? 
 
APPENDIX. 409 
 
 (xviii.) Extract, or office copy, of a Disposition and Assignation by John Earl of Perth, dated 
 the 17th November 1631, and recorded on the 17th March 1632, in favour of 
 William Earl of Stratherne and Monteith and Lady Agnes Gray, his Countess, in 
 conjunct fee, of the lands and barony of Drummond, alias Drymen, lying in the 
 parish of Drymen, lordship of Monteith, and sheriffdom of Stirling. — From the 
 Duke of Montrose's Charter-chest. — ' Minutes of Evidence,' No. 124. 
 (xix.) Charter by John Earl of Perth, 17th November 1631, in favour of William Earl of 
 Stratherne and Monteith, &c., of the lands of Drummond, alids Drymen.* — 
 ' Minutes of Evidence,' No. 125. 
 (xx.) Precept of Sasine by Charles I., 2Gth November 1631, in favour of William Earl of 
 Stratherne and Monteith, and Lady Agnes Gray, his spouse, of the lands and barony 
 of Drummond, which formerly belonged to John Earl of Perth, and were resigned 
 by him in favour of the said Earl and Countess. — From the Duke of Montrose's 
 CharterTchest. — ' Minutes of Evidence,' No. 126. 
 (xxi.) Instrument of Sasine, 21st February 1632, in favour of William Earl of Stratherne 
 and Monteith and Dame Agnes Gray, his Countess, in the lands and barony of 
 Drummond, and others, proceeding on the preceding Precept by Charles I. — From 
 the Duke of Montrose's Charter-chest. — ' Minutes of Evidence,' No. 127. 
 (xxii.) Charter by Charles L, 11th January 1644, in favour of William Earl of Airth and 
 Monteith, &c. and Lady Agnes Gray, his spouse, in life-rent, and to John Lord 
 Grahame of Kiiipont, and his heirs in fee, of the Earldom of Monteith, the lands 
 and barony of Drummond, alias Drymen, and others. — From the Duke of Mont- 
 rose's Charter-chest. — ' Minutes of Evidence,' No. 128. 
 (xxiii.) Instrument of Sasine, 30th March 1644, in favour of William Earl of Monteith, &o. 
 and Lady Agnes Gray, his spouse, in life-rent, and John Lord Graham of Kinpont 
 and his heirs in fee, of the Earldom of Monteith and lands and barony of Drum- 
 mond, alias Drymen, and others, — proceeding on a Precept by Charles I., dated 
 the 11th January 1644. — From the Duke of Montrose's Charter-chest. — ' Minutes 
 ' of Evidence,' No. 129. 
 (xxiv.) Disposition and Assignation by Dame Agnes Gray, Countess of Airth, 13th April 
 1667, to William Earl of Monteith and Airth, her grandson, of her life-rent of the 
 lands and barony of Drummond. — ' Minutes of Evidence,' No. 130. 
 (xxv.) Receipt and Discharge by David Gourlay, Chamberlain of Monteith, 20th April 1668, 
 to the Earl of Monteith, for the feu-duty of the lands and barony of Drummond, 
 due at Martinmas 1666 and Whit-Sunday 1667.—' Minutes of Evidence,' No. 131. 
 (xxvi.) Receipt and Discharge by Mr. James Edmondstoune, Chamberlain of Monteith, 
 7th December 1669, to the Earl of Monteith for the feu duty and mart silver of the 
 lands of Drummond, belonging to the said Earl, for crop and year 1668. — ' Minutes 
 ' of Evidence,' No. 132. 
 (xxvii.) Receipt and Discharge by Mr. James Gillespie, minister at Drymen, 6th November 
 1671, to the Earl of Monteith, for the vicarage of Drummond and Duchray, for 
 crop and year 1671. — ' Minutes of Evidence,' No. 133. 
 (xxviii.) Certified copy of a Disposition by William Earl of Monteith, 14th February 1680, in 
 favour of James Marquis of Montrose, of the Earldom of Menteith, comprehending 
 the lands and barony of Drummond and others, — certified and subscribed by the 
 Marquis of Montrose as a just copy of the principal Disposition. — ' Minutes of 
 ' Evidence,' No. 134. 
 (xxix.) Instrument of Resignation, dated at New Market, 18th March 1680, of the Earldom of 
 Monteith and of the lands, lordships, baronies, and dignities belonging thereto, in 
 favour of William Earl of Monteith, &c., in life-rent, and James Marquis of Mont- 
 rose, in fee. — From the Duke of Montrose's Charter-chest. — ' Minutes of Evi- 
 ' dence,' No. 135. 
 (xxx.) Charter by James V., 15th November 1532, in favour of George Buchquhanane of 
 that Ilk, of the five-merk land of Duchra, lying in the lordship and stewartry of 
 Monteith. — From the Duke of Montrose's Charter-chest. — ' Minutes of Evi- 
 ' dence,' No. 136. 
 (xxxi.) Feu-contract, 27th March 1671, between John Buchanan of that Ilk and Thomas 
 Graham, fiar of Duchray, of the lands of Corregrenan, alihs Wester Duchray. — 
 From the Duke of Montrose's Charter-chest. — ' Minutes of Evidence," No. 137. 
 
 Observation. 
 
 To the above evidence (supplied by the Duke of Montrose and adduced by the Crown) the Claimant may add 
 from his 'Supplemental Case,' p. 68, the follow ing — already adduced hy himself — from the 'Acta 
 ' Dominorum Auditorum,' under date 17th February 1439-90 : — 
 
 *■ Owing to the haste with which the evidence for the Crown " hadheen laid upon the Table on behalf of the Dvke of Montrose." — 
 was poured in, rather than adduced, at the bar of the House, no But this must have been through inadvertence, for the deficient 
 statement was made, nor any inquiry raised, as to the custody of information will not be found on reference to that Case. The 
 various documents tendered by the Crown. The Claimant documents here in question are only referred to in that 
 cannot therefore a£Srm that the present article, and those num- Case collectively under the following general description, — 
 bered xxiv, xxv, xxvi, xxvii, and xxviii, infra, come from the " From the Drummonds the lands of Drymen " (Drummond) 
 Duke of Montrose's Charter-chest, although he entertains no " and part of the lands of Duchray have come by a regular pro- 
 doubt that they do so. — He may observe here, that it appears in " gress of titles into the possession of the Petitioner " (the Duke 
 the ' Minutes of Proceedings ' on the behalf of the Crown, that of Montrose). " Theremainingpart of Duchray, passing through 
 " the Counsel stated in reply to a question from the Committee, " the same channel, is now the property of Mr. Graham Stirling 
 " that all Documents now produced were in the printed Case which " of Duchray." Case, p. 35. 
 
410 APPENDIX. 
 
 (No. LXIX.) 
 
 " The Lordis Auditoris decrettis and deliveris that Johne Kessesome of Enynbog, John of Galbraith 
 of Ballynkell, Finlaw MacGilhois," &c. " sail restore, content, and deliver again to Johne 
 Lord Driimmond for nyne hundreth thre skore of thraifis of aitis," &c. " and for dampnage, 
 scaifhis, and expenses sustenit he the said Jdhnne Lord Drummond in the sobering of the said 
 cornez, wanting of the said gudis, and laying waist of his landis of Drummond, xx li. ; quhilkis 
 gudis abone writtin wer spulzeit and distroyit be saidis personis and thair complicis in the saidis 
 landis of Drummond, as wes sufficiently preffit before the Lordis," &c. — Acta, &c., p. 139. 
 
 The Claimant has not given the preceding documents at length, inasmuch as the fact thus laboriously proved 
 hy the Grown — viz. that the estates of Drummond and Duchray luere not enjoyed under the Olencairn 
 Patent 1488 — is pakt of the Claimant's own argument, as proving that the practical non-enjoyment 
 of estates granted with an honour cannot, and did not in the instance in question, prejudice or impair the 
 validity of the grant of the honour. (' S. Case,' pp.75, 137, and supra, p. xlii.) — The Claimant of course 
 demurs to the assumption of the Grown that the non-enjoyment of Drummond and Duchray was in 
 consequence of the Act Rescissory. That non-enjoyment is fully explained and accounted for (with 
 simultaneous recognition of the honour as conferred by the patent 1488) in the Decreet of the Lords of 
 Council and Session, 12th January 1516-7, founded ori by the Claimant, and printed infra, p. 415. 
 This Decreet, and the above fact of the non-enjoyment of the estates, and the inference as now drawn 
 from it by the Crown, were all before the Court of Session ivhen they pronounced their ruling 
 Decreet 19th January 1648, — as is proved by the ' Minutes of Process,' printed in the ' S. Case,' 
 Addenda, pp. 190 sqq,, and infra, pp. 434, 435, 439. Under these circumstances, and considering the 
 inevitable bulk of this Report, the Claimant conceives it unnecessary to do more than give the titles 
 of the preceding evidence — for which otherwise he is much beholden to the Crown and to the Duke 
 of Montrose. 
 
 (3) Evidence, adduced by the Crown, to prove that the proper style of the son and grandson of 
 Alexander Lord Kilmaurs, the patentee as Earl of Olencairn in 1488, was — not Earl of 
 Olencairn but ' Lord Kilmaurs,' simply, down to the IWi July 1503, — the assertion being 
 (as before) tJiat the patent had been cut down by the Act Bescissory. — ' Minutes of Evidence^ 
 Nos. 88 sqq. — (Referred to supra, p. xxxvi.) 
 
 (Nos. LXX. to LXXXVI. inclusive.) 
 
 (i.) Entry on the Books of Parliament of the name of " the Lord Kilmauris " as appointed 
 upon a Commission, 17th October 1488, — for which vide infra, p. 526.* 
 (ii.)t Entry in the ' Acta Dominorum Auditorum,' 15th February 1491, in which the widow 
 of Robert, son and heir of Alexander Lord Kilmaurs, the patentee in 1488, is 
 designated " Cristiane Lindesay, Laidy of Kilmawris." — Acta, &o. p. 167. 
 
 (iii.) Entries in the ' Acta Dominorum Concilii,' 9th October 1490 and 7th March 1490-1, 
 of suits at the instance of 'Cuthbert Lord Kilmaurs.'— ^cto, &c., pp. 144, 172. 
 
 (iv.) Entry in the ' Acta Dominorum Auditorum,' 19th June 1493, of an action at the 
 instance of the executors " to umquhile Alexander Lord of Kilmawris " against 
 John Hamilton and Robert Campbell, for recovery of certain goods taken by them 
 " efter the felde of Striveling out of the barony of Glencarn." — Acta, &c. p. 179. 
 
 (v.) Charter by Cuthbert Lord Kilmaurs, 13th August 1496, in favour of William Cun- 
 ningham of Craigends, of the lands of Knappis, &c.— From the Craigends Charter- 
 chest. — ' Minutes of Evidence,' No. 88. 
 
 " By Mr. Jnnes. — Is that subscribed by the Earl of Glencairn ? 
 Mr. Eraser. — It is subscribed by ' Cuthbert L. K.' 
 Mr. Innes. — What is meant by 'L. K. ?' 
 Mr. Eraser. — Lord Kilmaurs, as he is described in the outset. 
 Mr. Innes. — Has that Charter a Seal annexed to it? 
 Mr. Eraser. — It has. 
 
 Mr. Innes. — Can you read the Legend round that Seal ? 
 Mr. Eraser. — ' Sigillum Cuthberti Domini Kylmaurs.' " 
 (vi.) instrument of Sasine, 21st August 1496, in favour of Cuthbert Lord Kilmaurs, in the 
 
 * This is represented by the Crown and considered by the ander Lord Kjlmaurs had never been inaugurated in the Earl- 
 
 Committee to have been a sittiwj in Parliament under the title of dom, this was the proper style of description • but it is singular 
 
 Lord Kilmaurs. Sirpra, p. 209, 334, 363. that, judging from the passages quoted, Robert Cunninehsfm is 
 
 t I he Attorney-General stated {svpra,^. xxxv) that Robert, the not even styled ' Lord ICilmaurs,' the title to which he had un- 
 
 son and heir of Alexander Lord Kilmaurs (the patentee in 1488), doubted right after being served his father's heir— a case in 
 
 " IS served heir to his father, .m the lands and barony of Eeid- which no inauguration was required. It is evident that if not 
 
 "hall.. on the 24th November 1488." This is in conformity styled ' Lord Kilmaurs,' although entitled to that barony his 
 
 with a statement in the Duke of Montrose's Original Case, p. 39, father might just as well have been simply called ' Lord Kilmaurs ' 
 
 where the document is referred to as the " original lietour in the although entitled to the Earldom, that is, by his inferior anpel- 
 
 '■ Gleneairu Charter-chest." It is further referred to and quoted lation— and this independently altogether of the Question of 
 
 in the Noble Duke's ' S. Case,' p. 22, as describing Alexander inauguration. These remarks are of course only made upon the 
 
 the patentee in 1488 as " Alexander Vominus de Kilmauris, ^atev glimpse of the document afforded through the Noble Duke's 
 
 " Itoberti Cunyngham, latoris presentium," that is, the father of Case, for, from whatever cause, the document in qmstion has not 
 
 Robert Lord Kilmaurs. It, as would otherwise appear, Alex- been adduced by the Crown in evidence. 
 
APPENDIX. 411 
 
 lands of Findlaystoun-Cunningham, lying in the barony of Renfrew, proceeding on 
 a precept from Chancery.* — 'Minutes of Evidence,' No. 89. 
 
 (vii.) Instrument, 25th January 1496-7, bearing that Archibald Earl of Angus, Lord 
 Douglas, Chancellor of Scotland, transferred to Cuthbert Lord Kilmaurs all right 
 and title which he, the said Earl, had to the lands and lordship of Kilmaronock, 
 lying in the county of Ayr, and that in conformity to letter by the King (James IV.) 
 to the said Cuthbert Lord Kilmaurs. — ' Minutes of Evidence,' No. 90. 
 
 (viii.) Charter by Cuthbert Lord Kilmaurs, 6th October 1497, in favour of William Cun- 
 ningham, son and heir of William Cunningham of Craiganis, of the lands of Cairn- 
 hill, &c.— ' Minutes of Evidence,' No. 91. 
 
 (ix.) Instrument of Sasine by Cuthbert Lord Kilmaurs, 8th October 1497, in favour of 
 William Cunningham of Craiganis, of the lands of Over and Nether Danystoun. — 
 ' Minutes of Evidence,' No. 92. 
 
 (x.) Instrument of Sasine by Cuthbert Lord Kilmaurs, 10th October 1497, in favour of 
 William Cunningham of Craganis and Marian Auchinleck, his spouse, of the lands 
 of Nether Denaistoun. — ' Minutes of Evidence,' No. 93. 
 
 (xi.) Charter by Cuthbert Lord Kilmaurs, 9th October 1497, in favour of William Cun- 
 ningham, his uncle, and Marion Auchinleck, his spouse, in life-rent, and to William 
 Cunningham, son and apparent heir of the said William, in fee ; whom failing to 
 the heirs of William Cunningham, senior, of the lands of Wester Craganis, to be 
 held blench of the Earl and his successors. (Subscribed " Cuthbert Lord Kil- 
 " maurs," and has been sealed, but the seal is broken.) — ' Minutes of Evidence,' 
 No. 94. 
 
 (xii.) Instrument of Sasine by Cuthbert Lord Kilmaurs, 10th October 1497, in favour of 
 William Cunningham, his uncle, and Marion Auchinleck, his spouse, in life-rent, of 
 the lands of Wester Craganys. — ' Minutes of Evidence,' No. 95. 
 
 (xiii.) Instrument of Excambion, 9th October 1497, by Cuthbert Lord Kilmaurs in favour 
 of William Cunningham of Craganis, of the lands of Cairnhill, &c. — ' Minutes 
 • of Evidence,' No. 96. 
 
 (xiv.) Instrument of Sasine, 10th September 1498, in favour of William Cunningham, son 
 and heir of Cuthbert Lord Kilmaurs, in the barony of Kilmaurs, lying in the county 
 of Ayr, in the lands of Finlaystoun-Cunningham and lands of Waterston and Ran- 
 furly, in the barony of Renfrew ; proceeding on a precept from Chancery. — ' Mi- 
 ' nutes of Evidence,' No. 97. 
 
 (xv.) Attestation, 9th Mai-ch 1498-9, that Cuthbert Lord Kilmaurs, Archibald Cunningham, 
 his brother, Andrew and Guido Cunningham, Patrick Stormont, George Kelso, and 
 John Mowat compeared before George Earl of Huntley, Justice General South of 
 the water of Forth, at a Court holden at Ayr, and were found guilty, art and part, 
 of forethought felony committed by them on Hugh Lord Montgomery when holding 
 a Court of the Bailiary of Cunningham, and also for breaking of the King's protec- 
 tion ; for all which they were fined. — ' Minutes of Evidence,' No. 98. 
 
 (xvi.) Renunciation by Philip of Craik, burgess of Edinburgh, ult. May 1499, in favour of 
 Cuthbert Lord Kilmaurs, of all right which the said Philip had to the lands of 
 Baddis. — ' Minutes of Evidence,' No. 99. 
 
 (xvii.) Instrument of Sasine, 19th July 1503, proceeding on a precept by Cuthbert Lord 
 Kilmaurs for infefting Archibald Cunningham, his brother, in the lands of Auchin- 
 bothy.— ' Minutes of Evidence,' No. 100.— This, as stated by Mr. Innes, is " the 
 " last notice " which has been found of ' Cuthbert Lord Kilmaurs ;' and " the;?i-st in- 
 " stance" in which he is designated ' Earl of Olencairn ' (that is, the Claimant 
 presumes, in a legal document) is in a Remission by James IV., 14th May 1505, 
 to be given presently. 
 
 Observatiox. 
 
 None of the preceding documents are given at length, because the Claimant does not dispute, hut mi the con- 
 trary admits and founds tjpon the fact which they are adduced to prove, viz. that the Olencairn family 
 did not assume the Earldmn previously to the inauguration {presently to he proved) in 1503, — which fact 
 of non-assumption is moreover fully proved by the evidence adduced in the process for precedency in 1648 
 and recited in the ruling Decreet 19th January 1648 {infra, p. 454) :— The Claimant's argument, based 
 upon this fact and proof, is this— that if non-assumption was not prejudicial to the Kilmaurs family , non- 
 assumption cannot he prejudicial to that of Crawford. The whole of this evidence, therefore, like that of 
 the descent of the lands of Drummond andDuchrayin families other than that of Olencairn, is superfluous 
 — as proving what neither the Claimant now, nor the Earl of Glencairn in 1648, nor any one at any time, 
 has ever thought of denying. Tlie very facts of non-asswmption of the title and non-enjoyment of the 
 estates in this case of the Earldom of Glencairn are prominent points of the Claimant's argument. 
 
 * The observations made in the opening sentences of note * on Most of them would appear to come from the Craigends Charter- 
 the penultimate page, apply to the present document and all the chest, 
 succeeding ones to the close of the present batch of evidence. 
 
 3 Q 
 
412 APPENDIX. 
 
 (4) Narrative, objected to the Claimant hy the Crown, of the Inauguration of the Earls of Arran, 
 Montrose, and Olencairn, by belting and other ceremonies, at the marriage of James IV., mt 
 the 13th August 1503, by John Young, Somerset Herald, — as printed in Leland's ' Collec- 
 ' tanea,' edit. 1774, vol. io. p. 300, from a MS. stated to have been " late in the possession of 
 " John Anstis, Esquire, Carter King-at-Arms :" — Held by the Clixmcellor Lord Louyh- 
 borough in 1797 to be the narrative of a new creation, by belting alonb, of the Earldom of 
 Olencairn, — by the Crown and by the Committee in the present claim to be the narrative of 
 the inauguration tipoir A (presumed) costkmporabt patent, which was kevbe regis- 
 TERED AND HAS BEEN LOST (and which lost patent the Committee hold to have been in Lord 
 Loughbm-ougKs mind when he spoke of the Earldom having been created by belting), — but 
 maintained by the Claimant to be the narrative of the inauguration of the Earldom of Olen- 
 cairn, in usual form, upon the original Patent 28th May 1488, the only one ever 
 HEARD or liNOWN OF, and previous to which ceremony the family would not by admitted 
 practice have assumed the title — the hypothesis of there having been a new patent in 1503 
 having moreover been finally and irreversibly disposed of in the negative in 1648 hy the 
 Supreme Civil Court of Scotland. — While the Claimant further submits that this ' Narra- 
 
 ' TIVE ' WHICH HAS NEVER BEEN OFFERED IN EVIDENCE, EITHER IN 1797 OR NOW is 
 
 INADMISSIBLE AS SUCH, for rcasons stated in the ' S. Case,' p. 63, and sup/ra, p. xxxvii, — 
 protesting nevertheless that if loeight be given to it by the Committee, he is entitled to the 
 benefit of its testimony, rightly understood and interpreted. — (Referred io supra, p. xxxvi.) 
 
 (No. LXXXVII.) 
 
 " The xiiith Day of the said Monneth, being Sonday, the Qwene was led to the Churche accompayned by 
 the Prelats, the Erie of Surrey, the Lord Chaniberlayne, and the Ladyes ricliely arayd. She was arayd in a 
 Gowne of Perple fygured Velvett,'' &c. 
 
 After hyr cam the Kynge, in the Manere of the Dayes before said . . . "When he arryved at his Cortyne, 
 he maid an humble Curtaisy to the Qwene, as she also did to hym. 
 
 At the Offrynge wer assembled three Noble Lords to be maid Erles in the Qvvene's Presence, and when tlie 
 Masse was done, they wer presented to the King by Marchraont, Herawld. Fyrst, they promysed to hold their Otlies, 
 and then the Einge gyrdled them with the Swerd ahouffe their schoulder, and gaffe them their Lordschips to them and to 
 their Heires.* 
 
 Then Merchemont, Herauld, togeder with his Companions, cryed Largesse in the self place ; and 
 
 Fyrst. Largesse, Janiys t D'Arene, Lord of Hamilton, Baron, Banerett, and Lord of Parlement. 
 
 2nd]y. Largesse, William Conte de Montros, Lord of Granne,J Baron, Banerett, and Lord of Parlement. 
 
 3rdly. Lakgesse, Cuthbehd Conte de Glencarne, Lord de Kylmarres, Baron, Banerett, and Lord of 
 Parlement. 
 
 After this doone, the Kynge take the Qwene, and layd hir to the Company, but for Cause that it renned, 
 she passed thorough the King's Chamber for to go in hyr awne, and all the Ladyes war served. The Erie of 
 Surrey and other Lords dynned with him. After Dynnar, a Moralite was played by the said Master Inglishe and 
 hys Companyons, in the Presence of the Kyngand Qwene, and then Daunces war daunced. 
 
 At the Hour customed the Kyng and the Company beforesaid went to Even Song, and sum Knights, to tlie 
 JSfomhre of xxvi, should have been maid, bot,for that that the Qwene was not there, they wer put off to the next Day fw 
 the Luffe of hyr. 
 
 The Even Song said, the King was brought ageyn into his Chambre, and was served at the Soupper. And 
 that doon, every Man went his Way." 
 
 (5) Evidence, adduced by the Crown, to prcme (as the Claimant presumes) the creation of tlie 
 Earldom of Olencairn in 1503, in accordance with Young's testimony just given — but 
 ivhich testimony the Claimant interprets as ivitnessing to the inauguration above noticed. — 
 ' Minutes of Evidence," No. 101. — (Referred to supra, p. xxxvii.) 
 
 (i.) Remission by James IV., 14th May 1505, to Cuthbert Earl of Glencairn, Archibald 
 Cunningliam, his brother, and nine other persons, for being art and part guihy of 
 oppression committed by them on Sir Patrick Houston of that Ilk, knight, in the 
 
 * The word 'Lordschips' is here used for the charters or "' respected within the bonds of your Commission or elsewhere 
 
 patents (including the limitations to heirs) hy which those " ' His Majesty allows you to the wearing of this Cap and Circle 
 
 lordships were necessarily granted, as may be illustrated by " ' or Coronet.' After which the Charter of Creation is giveji him." 
 
 comparison of the passage with Selden's description of the in- Titlesof Honour, p. 101. The Charter or Patent thus given to Glen- 
 
 vestiture of Scottish Earls as customary in the seventeenth cen- cairn, conveying to him his ' Lordschip ' with limitation to him 
 
 tury — which agrees, step by step, with the above: — "The and his ' heires,' was Me on^mai cAwte- 28iA ifni/ 1488, the only 
 
 " dignity of an Earl there, .is now given (after such an Oath in Glencairn patent ever heard of, and which has ever since been 
 
 " substance taken as a Duke does) by a Sword put on, the Lord carefully preserved in the Glencairn Charter-chest, and uni- 
 
 " Commissioner (in case it be done with Ceremony, besides the formly recognised and upheld by the Scottish Kings, by the 
 
 " Patent or Charter, and by Commission ; and the Investiture Supreme Civil Court, and by the Parliament of Scotland and of 
 
 " used by a Commissioner gives light enough to that which is the United Kingdom down to the death of the late Earl of Glen- 
 
 " done by the King himself) using these or the like words, 'In cairn in 1796 — no other Glencairn patent being, or having ever 
 
 " ' sign and token that His Majesty communicates authority to been, in existence. 
 
 " ' you within the bonds of your Commission I gird you viith this + The word ' Conte ' is evidently omitted here. 
 
 " ' Belt and Sword.' Then he puts on his head a Cap and Circle J This word should be ' Grame,' or Graham. 
 " or Coronet pointed, saying, ' To make you the more to be 
 
APPENDIX. 413 
 
 taking of his person from the house of Robert Paric in Finlaystoun-Maxwell.* — ' Mi- 
 'nutes of Evidence,' No. 101. — This, as stated by Mr. Innes,is " the first instance " 
 in which the peer who had been designated' Cuthbert Lord Kilniaurs' down to 
 the 19th July 1503, is " designated ' Earl of Glencairn.' " 
 
 (No. LXXXVIII.) 
 Observatiox. 
 
 This is not given at length, the fact not being disputed that Cuthbert Earl of Glencairn was Earl in 1505. 
 
 (6) Evidence adduced hy the Grown to prove (as the Claimant presumes) the creation of the Earl- 
 dom, of Montrose in 1503, tra accordance with the testimony of the herald I'ouiig, tit supro. — 
 'Minutes of Evidence,' Nos. 102 sqq. — (Referred to supra, p. xxxvii.) 
 
 (Nos. LXXXIX. to XCIII. inclusive.) 
 
 (i.) Charter of Confirmation by James IV., 28th June 1503, in favour of William Lord 
 Graham, confirming a Charter granted by the said William Lord Graham, 
 14th March 1502, to William Rogy of Durdysane, of the lands of Pettinclcrach and 
 the Bullands of Foulis, in the stewartry of Strathem. — From the Duke of Montrose's 
 Charter-chest. — ' Minutes of Evidence,' No. 102. 
 
 (ii.) Charter by James IV., 16th March 1503-4, in favour of William Earl of Montrose, 
 Lord Graham, of the lands of Wardroptoun, with fishings on the Water of North 
 Esk. — From the Duke of Montrose's Charter-chest. — ' Minutes of Evidence,' 
 No. 103. 
 
 (iii.) Warrant or Signature by James IV., 3rd March 1504-5, for a Charter in favour of 
 William Earl of Montrose, Lord Graham, and Janet Edmondston, his spouse, and 
 the longest liver of them, in conjunct infeftment, of the lands and barony of Aber- 
 athven (excepting Inchbrakky and Pettinclcrach). — From the Duke of Montrose's 
 Charter-chest. — ' Minutes of Evidence,' No. 104. 
 
 (iv.) Charter by James IV., 3rd March 1504-5, in favour of William Earl of Montrose, 
 Lord Graham, granting to him, on his resignation, the " terras de Aid Montross," 
 which are erected and incorporated (substantially as in the case of the patent of the 
 Dukedom of Montrose) " in liberam baroniam et Comitatum, perpetuis futuris 
 " temporibus baroniam et Comitatum de Montross nuncupandum," with limitation 
 to himself and certain heirs. f — ' Minutes of Evidence,' No. 105. 
 
 (v.) Charter by James IV., 3rd March 1504-5, in favour of William Earl of Montrose, Lord 
 Graham, of the lands of Kynnabre, Charltoun, Burrowfield, and fishings in the 
 Water of Esk.f— ' Minutes of Evidence,' No. 106. 
 
 Observation. 
 
 The preceding documents are not given here at length, as being unnecessary, the creation of the Earldom of 
 Montrose in or about 1503 not being matter of dispute. The Charter 3rd March 1504-5, erecting the 
 lands of Auld Montrose into the Earldom of Montrose, has been also adduced by the Claimant, ' Minutes 
 ' of Evidence,' p. 125 (as recorded in the Great Seal Register), with the two-fold view of proving that the 
 Earldom of Montrose and Dukedom of Montrose were derived from distinctly separate localities, and 
 that the Earl of Montrose was an Earl at the time when, as will be shown, his own brother describes 
 him, according to frequent Scottish usage, as simply ' Lord Graham.' Vide infra, p. 518. 
 
 (7) Evidence adduced hy the Crown to prove the creation of the Earldom of Arran in 1503, 
 ut supra. — ' Minutes of Evidence,' No. 138. — (Referred to supra, p. xxxvii.) 
 
 (i.) Charter by James IV., 11th August 1503, granting to James Lord Hamilton the Earl- 
 dom of Arran. — From the Great Seal Kegister. — ' Minutes of Evidence,' No. 138. 
 — Mr. Innes stated, in adducing this evidence, " that this Grant purported to have 
 " been made for Service to the King on the Occasion of his Marriage ; and that it 
 " was dated two Days before the Date fixed by the English Herald for that Cere- 
 " mony."— Minutes, MSS. 
 
 (No. XCIV.) 
 Observation. 
 
 This is not given at length, as unnecessary, the Claimant never having disputed that the Earldom of Arran was 
 created in 1503. He has to observe however that this Cliarter, like that of the erection of the Earldom 
 
 * The place of custody was not stated at the bar. 
 
 t Without doubt, from the Duke of Montrose's Charter-chest, although the place of custody was not stated at the bar. 
 
 3 G 2 
 
414 APPENDIX. 
 
 of Montrose (above gioeii), is carefully recorded in the Oreat Seal Register, — that no registration of a 
 Patent of the Earldom of Olencairn is there to he found ; and that, while it was by no means indispen- 
 sable that a Charter or Patent under the Great Seal should be recorded, still, if a new Patent had been 
 granted of the Earldom of Olencairn simultaneously or about the same period with those of the Earldoms 
 of Arran and Montrose, it is a fair presumption that that new Patent would also have been recorded, and 
 the fact that no such new Patent was recorded suggests the natural inference (under such peculiar circum- 
 stances) that no such Patent was granted, but that the inauguration in 1503 proceeded (as contended by the 
 (Jlaimant) on the original Patent : — Which conclusion is moreover in full keeping with the fact that Cuth- 
 bert Earl of Glencairn was recognised as heir to his grandfather Alexander Earl of Glencairn under the 
 Patent of 1488 both by the Crown and the Supreme Civil Court in 1515-6 and 1516-7, as will appear 
 immediately. 
 
 (8) Evidence, adduced by the Claimant, to pirove that CutJihert third Earl of Olencairn, who 
 flourished in 1503 and 1615— 6, made up titles to the estates of Brummond and Duchray 
 under the Patent 2Sth May 1488, as grandson and heir of ' Alexander Earl of Olencairn ' 
 (explicitly so styled), the patentee in that year, and that the Patent was thus distinctly recog- 
 nized by the Crown as the source and origin of Earl Guthbert's right to the dignity. Brieves 
 of Service were obtained with the utmost difficulty from Chancery, and the Act Rescissory 
 would have been objected at once and ' in limine ' as annihilative of the Patent if the Act had 
 been effective or applicable. — See the ' Minides of Evidence,^ p. 27. — (Referred to supra, 
 pp. xxxix sqq.) 
 
 (i.) Statement in the Decreet of Reduction 12th January 1516-7, presently to be adduced, 
 that a " breif " of inquest " was direct " from the Chancery of James IV. " to tak 
 " inquisicioun of quhat landis and annuell rentis, with the pertinentis, umquhile 
 " Alexandeb Bele op Glenoaene, gkaktschie " (i. e. grandfather) " to the 
 " SAID CuTHBERT " Earl of Glencairn, " deit last vestit and sesit as of fee witliin 
 " the . . Scherefdom of Dunbertane." Iifra, p. 416. 
 
 (ii.) Statement in the Decreet of the Court of Session in the question of the Glencairn and 
 Eglinton precedency, 19th January 1648 (presently to be adduced), that there was 
 produced before the Court and received as evidence, a Retour of Cuthbert Earl of 
 Glencairn, 15th January 1515-6, as heir to his grandfather Alexander Earl of 
 Glencairn in the lands of Drummond and Duchray, and which is described as 
 follows: — " Item, ane Eetoure, of the xv of Januar 1515, whereby Cuthbert Erie of 
 " Olencairne is serveit aie to Alexander Eelb of Glbnoaiene, his guidschib. 
 " (grandfather). The Retour beires the landis to have bene in non-eutrie since 
 " Eblb Alexander his decease, wha deceast 27 yeeres befoir the daite foirsaid of 
 " tlie Retour." Vide infra, p. 452. 
 
 (iii.) Statement in the Decreet 1648, as above, respecting another document connected with 
 the same transaction, and then produced and received in evidence, as follows : — 
 " Item, ane Instrument taken ' in plenS, et plana curiaVicecomitatus de Dumbertane,' 
 " upone the serveing, proclaiming, and verifieing of the breives of the said Cuthbert 
 " Erie of Glencairne as air to Erle Alexander, his guidschir ; daittit 15 Januar 
 " 1515,"— that is, 1515-6. Vide infra, p. 452. 
 
 (iv.) Entry in the ' Liber Eesponsionum ' or llespondee-Book of the Sheriffs of the Scottish 
 counties, including that of Dumbarton — (a public record, preserved in Her Majesty's 
 General Register House, Edinburgh, wherein the Sheriffs entered and recorded the 
 feudal profits and casualties that they drew and for which they were responsible on 
 behalf of the Crown), — proving that Cuthbert Earl of Glencairn had been duly 
 seised and entered in the lands of Drummond and Duchray, upon the preceding 
 Retour, on the 20th January 1515-6. — ' Minutes of Evidence,' p. 27. — Referred to 
 supra, pp. xxxix, xl. 
 
 (No. XCV.) 
 
 " Liber Eesponsionum de aimo Domini M° v" xvj'", etc. 
 
 " ViCECOMES DE BuTE respondebit pro j'xx libris de firmis novem mercatarum terrarum de Dunrudir, 
 cum pertinentiis, jacentium infra insulam de Arane et balliam suam, existentium in manibus Regis per spacium 
 viginti annorum elapsorum ratione warde, que firme se extendunt annuatim ad vj libras. Et pro xv libris de 
 firmis earundem terrarum, existentium in manibus Regis per spacium duorum annorum et unius termini dehinc 
 ultimo elapsorum, sasin^ non recuperatl. Et pro vj libris de relevio earundem Regi debitis per sasinam datam 
 Johanni Fullertoun de eisdem, apud Edinburgh, xiij Decembris, anno regni Regis tercio.* 
 
 "ViCECOMES DE Ddnbertane resjjon&&jt pro ij" vii° 1 fe'im de firmis triginta lihratarum terrarum antiqui 
 extentiis de Drummond, et de decern lihratarum terrarum antiqui extentus de Duchray, cum pertinentiis, jacentium 
 
 » That is, for the seisin granted to John FuUevton on the important as fixing the year in -which the seisin of Cuthbert 
 
 1.3th December, in the third year of James V. That reign began Earl of Glencairn took place, as by the notice immediately 
 
 on the 13th September 1513; and therefore the date of the seisin following, 
 in question was the 13th December 151."). This entry is only 
 
APPENDIX. 
 
 415 
 
 intra balliam suani, existentium in manibus Regis per spatium viginti septem annorum et septem mensium ultimo elap- 
 sorum, sasind non recuperafd ; que firme se extendunt annuatim ad centum libras :— Et pro j' libris de relevio 
 earundem terrarum Eegi debitis^er sasinam datam Cvthb-erto Comiti de Glencakne, -Dommo Kilmawi-is, de 
 eisdem, apud Edinburgh, xx° Januarij, anno regni Hegis predicto." * 
 
 (9) Decreet of Reduction hy the Lords of Council mid Session, the Supreme Civil Court of Scot- 
 land, 12th January 1516—7, by which Cuthbert Earl of Olencaim, toho had been served heir 
 to his Grandfather Alexander Sari of Olencaim on the 15th January 1515-6, and duly 
 entered in tJie lands of Drummond and Duchray, on the Patent 28th May 1488 (as above 
 proved), was deprived of those estate— kot howbvee in conseciuenck of the Act Rescis- 
 
 SOKT, BUT OWING (SUBSTANTIALLY) TO THE ORIGINAL POSSESSORS NOT HAVING BEEN FOR- 
 FEITED pkeviouslt TO THE GRANT BY James III., and other technical causes recited; while 
 THE Patentee in 1488, Earl Alexander, is fully recognised retrospectively im the 
 Decreet as Earl of Glekcairn under the Patent, without any of the adjuncts invariably 
 applied in doubtful cases of ' callit,' ' pretendit,^ &c.— proving that the Act Rescissory, which 
 is not once mentioned or alluded to in the Decreet, had taken no effect on the grant. — From the 
 ' Acta Dominorum Concilii.'—' Minutes of Evidence,' p. 27.t— (Referred to supra, p. xl.)t 
 
 (No. XCVI.) 
 
 " Xii Januarij, anno etc. v" xvj"". 
 " Sederunt Cancellarius," &c. &c. &c. 
 ********* 
 " Anent the Summondis of Error raisit at the instance of our Soverane Lord ; Johnne Lord Drummond, lord 
 of the landis of Drummond, lyand within the Scherefdome of Striveling ; and Dormond Drummond, lard of the 
 landis of Duchra, lyand within the said Scherefdome, 
 
 Aganis 
 Andro Galbraith of Culcreuch, Johnne Logan of Garthconnell, allegit Scheref Deputis of Dunbertane, Johnne 
 Erie of Levinax, Johnne CamiDbell of Lowdoun, Johnne Striveling, Patrik Maxwell of Newwerk, Robert 
 
 * That is, on the 20th January in the third year of James V., 
 which gives the date of 20th January 1515, or in more modern 
 style (the year then beginning on the 25th March) the 20th 
 January 1515-6. 
 
 f With reference to the mode in which the present and other 
 Decreets are here printed, see the ' Advertisement and Introduc- 
 tion' prefixed to this volume. 
 
 X Analysis of the Decreet 12th January 1516-7. 
 
 ' xn Januarii 1516-7, — 
 
 Anent the Summons of Error raised at the instance of our 
 Sovereign Lord (James IV.), John Lord Drummond, 
 Lord of the lands of Drummond, and Dormond Drummond, 
 Laird of the lands of Duchray, against John Earl of 
 Lennox, Sheriff principal of Dumbartonshire; against the 
 Lairds of Culcreuch and Gartbconn-ell, alleged Sheriffs 
 Depute of that county ; against John Campbell or Lou- 
 doun, John Stirling, and other members of a jury -who 
 ■were upon the serving of a brief of inquest, 1 5th January 
 1515-6, upon the lands of Drummond and Duchray, impetrated 
 hy Cuthbert Earl of Glencairn through the decease oj the late 
 Alexander Earl of Glencairn, his Grandfather ; and 
 against Cuthbert Earl of Glencairn, for his interest, — 
 
 ON THE FOLLOWING GROUNDS, viz., 
 
 1. That the alleged Sheriffs Depute were not competent 
 
 or legally authorised to act as Sheriffs or judges in 
 the matter ; 
 
 2. That the Earl of Lennox, Sheriff principal, who offici- 
 
 ally sanctioned or put " his authority " to the proce- 
 dure, was present and might himself have acted as 
 Sheriff; 
 
 3. That the said alleged Sheriffs, to whom the said brief 
 
 had been directed by Chancery to take inquest of what 
 lands, Sfc. the late Alexander Earl of Glencairn, 
 grandfather to the said Cuthbert, had died seised 
 within the shire of Dumbarton, had proceeded upon 
 the serving of the said brief in respect to the lands 
 of Drummond and Duchray as Sheriffs Depute of 
 Dumbarton ; whereas Drummond and Duchray lie 
 within the Sheriffdom of Stirling,— and therefore the 
 said Sheriffs had acted without jurisdiction or com- 
 mission ; 
 
 4. That the said alleged Sheriffs had proceeded in the 
 
 service without warning being given to the King for 
 his interest forty days previously, — and, 
 
 5. That the inquest had reloured that the late Alexander 
 
 Earl of Glencairn, grandfather to the said Cuthbert 
 Earl of Glencairn, died last vested and seised in the 
 lands in question, although in fact James III. did, 
 
 and they were afterwards held by James IV. and the 
 pursuers, — 
 
 As at more length is contained in the Summons, 
 &c. :— 
 
 The King appearing by the Lord Advocate; John Lord 
 Drummond being present; but the Sheriffs Depute, John 
 Earl of Lennox, and the other members of the inquest, and 
 Dormond Drummond, although called, not appearing, — 
 
 And the rights, reasons, and allegations of the parties present 
 having been heard, seen, understood, and ripely advised. 
 
 The Lords of Council decree and deliver, 
 
 I. That the said Sheriffs Depute have proceeded disorderly 
 
 and unjustly iu serving of the said brief, 
 
 1. Because the lands of Drummond and Duchray lie 
 
 in the Sheriffdom of Stirling and not in that of 
 Dumbarton; And, 
 
 2. Because they proceeded upon the serving of the 
 
 said inquest without due warning to the King, 
 as superior, within forty days, and while John 
 Lord Drummond was in ward within the Castle 
 of Blackness, and unable to appear and shew his 
 lawful exceptions and defences in the matter, — 
 
 II. That the said John Earl of Lennox, principal Sheriff, 
 
 and the members of the inquest 15th January 1515-6, 
 have manifestly and wilfully erred in retouring and 
 delivering of the said brief, 
 
 1. Because they retoured and delivered that the late 
 Alexander Earl of Glencairn, grandfather 
 to the said Cuthbert Earl of Glencairn, died last 
 vested and seised in the lands of Drummond and 
 Duchray; whereas James III. died last vested 
 and seised in the said lands as pertaining to him 
 in property, and after his decease James IV. 
 enjoyed them continually in property and peace- 
 able possession, till he infefted John Lord Drum- 
 mond in the lands of Drummond, and Dormond 
 Drummond in those of Duchray, in few form, 
 &c., as was clearly proved : — 
 
 And therefore decern the aforesaid Ketour, sasine, pro- 
 cess, and all that followed, Sfc, to be cassed and annulled, 
 
 &c.. 
 
 jpor X^z tauSES fortsaiii, — 
 
 And decern the persons who passed upon the inquest to 
 have incurred the pains of temere jurantium, their goods to 
 be confiscated, and their persons imprisoned during the 
 King's pleasure ; — 
 
 And that Letters be directed thereupon accordingly.' 
 
416 APPENDIX. 
 
 Denelstoun of Culgraiiane, George Striveling of Cragbernard, Andre Cunyghame of Drumquhassil, Andro Mac- 
 farlane of Arachare, Alane Ardincaple of that Ilk, Williams Cunyghame of Craganis,' Williame Striveling of 
 Glorat, Williame Berclay of Parstoun, Robert Coquhon of Camstrodane, Johnne Spreule of Couldoun, and 
 Williame Lindissay [ofj Bolloule, utherwayis being apoun the serving of ane hreif of inquest in the tolbuth of the 
 lurjh of Dunbertane, the xv day of the moneth of Januar, the zeir (year) of Godfv" and xv zeris, apoun the landis of 
 Drummond and Duchra forsaid, with the pertimntis, impetrat he Cuthbert Erie of Glencarn Lord Kilmauris be the deceiss 
 of umquMk Alexander Erle or Glencarn]::, his grantschir, — That is to say, 
 
 [1. Against]* the said Andro and Johnne, as ScherefRs, for thair injust and inordinat process, becau.s^ 
 thai accept on thaim as jugis the proceding apon the serving of the said breif, the said Jolinne 
 Erie of Levinax, principale Schereff of the said schir, beand present and na cause of suspitioun 
 beand proponit aganis him at that tyme, and als without ony sufficient commissioun thereto, — 
 And als 
 
 [2.] Aganis the said Johnne Erie of Levinax, principale Schereff, puttand his auctorite to the said 
 inquisitioun, usand double office, aganis the consuetud and lawis of the realm, — And als 
 
 [3.] Aganis the said Schereffis, becaus thai procedit apoun the serving of the said breif on the landis- 
 of Drummond and Duchra as Schereffis Deputis of Dunbertane, to quham the said breif was direct 
 to tali inquisicioun of quhat landis [a,nd'\ annuell rentis with the pertinentis umquhile Alexander 
 Erle of Glencarne, grantschir to the said Cuthbert, deit last vestit and seisit as of fee, within the 
 said Scherefdome of Dunbertane, howbeit the saidis landis of Drummond and Duchra lyis within 
 the Scherefdome of Striveling ; and therfor the said allegit Schereffis had na jurisdictioun to 
 proceid apoun the servyng of the said breiff without sufficient commissioun, as said is, — And als 
 
 [4.] Agane the said allegit Schereffis, becaus thai procedit on the serving of the said breif apoun the 
 said landis of Drummond, pertenyng to our said Soverane Lord in superiorite and to the said 
 Joimne Lord Drummond in fewferme, and inlikwise the said landis of Duchra pertenyng to our 
 said Soverane Lord, as said is, and to Dormond Drummond in fewferme, our said Soverane Lord 
 beand of less age, and his goveniour nor audvocat not beand warnit thairto apoun the premonitioun 
 of xl dayis efter the uise and consuetude of this realm, — 
 
 [5.] And aganis the said Johnne Erie of Levinax, Johnne Campbell of Loudoun, and the remanent 
 of the saidis persouns beand apoun the said inqueist, for thar manifest and wilfull errour in thar 
 unrychtwise retouring and delivering apoun the said breiff, becaus thai retourit and deliverit that 
 umquhile Alexander Erle op Glencarne, grantschir to the said Cuthbert Erie of Glencarne, deit 
 last vestit and sesit as of fee of xxx U. loorth of land of auld extent of Drummond, and x li. worth 
 of land of Duchra, with thair pertinentis, lyand within the said Scherefdome of Dumbertane ; howheit 
 that of verite King James the Thrid, quham God assolze, deit last vestit and sesit of the saidis landis of 
 Dnmimond and Duchra, as his landis pertenand to him in properte, and brukit the samin peceablefcn' 
 his If tyme ; and efter his decess King James the Ferd inlikwise brukit the samin continualie in pro- 
 perte, quhill (till) the infeftment of the said Johnne Lord Drummond in the said landis of Drummond 
 in feivfei-me, and the said Dormond in the said landis of Duchra in fewferme, — And for certane uther 
 causis, — 
 
 [6.] And agane the said Cuthbert Erie of Glencarn for his entress, — 
 
 Lik as at mair lenth is contenit in the Summondis tharupoun : — • 
 
 Our Soverane Lord comperand be Master James Wischard his Advocat, and the said Johnne Lord 
 Drummond beand personaly present, and als the said Schereffis Deputis, Johnne Erie of Levinax and the remanent 
 of the personis that past apon the said inqueist being, and the said Dormond Drummond, lauchfuliie summond to 
 this actioun, oftimes callit and not comperit, — 
 
 The partys presentis rychtis, resonis, allegatiouns herd, sene, and undirstand, and thairewith being 
 ripelie avisit : — 
 
 The Lordis op Counsale Decretis and Dehveris, 
 
 [I.] That the said Andro Galbraith of Culcreich and Johnne Logane of Gartconnell has unordourlie 
 and injustlie procedit, as Schereffis Deputis forsaid, in the serving of the said breif, 
 
 [1] Becaus thai causit the said breif to be proclamit at the mercat corse of Dunbritane, to 
 be servit in the tolbuth of the samyn, apoun the saidis landis of Drummond [and] 
 Duchracy [sic], and thair procedit to the serving of the said breif, and put the samyn 
 to ane inqueist ; howbeit the said landis lyis within the Scherefdome of Striveling, 
 and undir the jurisdictioun thairof, and callit in the Schereff courtis of the samyn, haif- 
 and na commissioun thairto, as said is ; and als 
 
 [2] Becaus thai procedit apoun the serving of the said breif of the saidis landis of Drummond, 
 pertening to our said Soverane Lord in superiorite and to the said Johnne Lord 
 Drummond in fewferm, payand thairfor zerly xliiii li., and inlykwise the saidis landis 
 of Duchray [belong] to his Hienes in superiorite and to the said Dormond Drummond in 
 
 * The words and numbers within brackets have been added here and elsewhere, for the sake of distinctness. 
 
APPENDIX. 417 
 
 fewferme, payand thairfor zerly xx li, usuale usuale [sic] money of this realm, our said So- 
 verane Lord beii)g of less aige, and not warnit thairto nor zit his tutour nor advocat apoun 
 the premiinitioun of xl dayis, after the louable use and conswetud of this realm ; and alse 
 the said Johnne Lord Drummond being in our Soverane Lordis ward within the castell 
 of Elakness in the meyne tyme, sa that he micht not cum to schew his lauchfull 
 exceptionis and defensis in the said mater, — 
 
 And alse Dechetis and Delivehis 
 [II.] That the saidis Johnne Erie of Levinax, Johnne Campbell of Lowdone, Johnne Striveling, and 
 the remanent of the saidis personis at (that) past apoun the said inquest, has manifestly and 
 wilfully errit in the retouring and delivering of the said breif, 
 
 [1] Becaus thai have retourit and deliverit that umquhile Alexander Erle op Glencarn, 
 Lord of Kilmaui-is, grantschir to the said Cuthhert Erie of Glencarn, deit last vestit and 
 saisit as of fee at th» faith and pace of our Soverane Lord of thretty pundis worth of land of 
 aidd extent of Drummond, and ten K. worth oflandofDuohray,Uiith the pertinentis, lyand 
 within the Scherefdome of Dunhritane, howheit that umquhile our Soverane Lord King James 
 the Tlirid deit vestit and saisit in the saidis landis of Drummond and Duchray, as pertening 
 to him in propirtie ; and, efter his decess, King James tlie Ferd hroikit the saidis landis con- 
 tinualy in propirte and in peceahle possessioun thairof, quhill {till) tJie infefting of the said 
 Johnne Lord Drummond in the saidis landis of Drummond in fewferme, and inlyhwyse the 
 said Dormxind Drummond in the saidis landis of Duchray in feiiferme ; the quhilk Johne 
 Lord Drummond was infeft and saisit be our said Soverane Lord King James the 
 Ferd in the saidis landis of Drummond be the spaice of xxiiii zeris syne, or thairby, and 
 the said Dormond Drummond in the saidis landis of Duchray be the spaice of five zeris 
 bypast, or thairby ; as was clerly previt be thar charteris and infeftmentis maid tharapon, 
 schewin and producit befoir the saidis Lordis ; and the said Johnne Lord Drummond has 
 haldin his courtis apoun the saidis landis of Drummond, sett the samyn at his plesQur, 
 rasit and uptaking the malis and devvitis thairof, and maid compt in the chekker for 
 his said few, be the spaice of xx zeris last bypast, continualy ; and inlykwyse the said 
 Dormond be the spaice forsaid sen his enteris ; as was inlikwyse cleriy previt be the 
 acquittance of the said malis pait to our said Soverane Lord and his comptrollaris for 
 the tyme, schewin and producit befor the saidis Lordis, 
 
 And tharfor Decernis the Eetour, saising, process, and all that followit tharapoun, to be Eetbetit, 
 Cassit, and Adnullit, and Retretis, Cassis, and Adnullis, and Declaris the samyn of nane avale, ferce, nor 
 effect in jugement nor itwith (outwith) in tyme to cum, 
 
 #or i\)t rau£ii5 forsaflj,— 
 
 And Decernis the personis at (that) past apoun the said inquest, for thar manifest and wilfull error, till 
 have incurrit the panis of temere jurantium, and tharfor all thar movable gudis to be confiskit and applyit to the 
 Kingis use, and thar personis to be put in presone for ane zer and ferrar, induring the Kingis will and my Lord 
 Oovernoris, — 
 
 And that letterez be direct tharapoun in dew forme, as efferis." 
 
 (10) Grant, under the Privy Seed, hy Mary Queen of Scots, 24i7i A^yril 1550, to William, Bishop 
 of Argyle, of the non-entries of the Olencairn estate, including Drummond and Duchray, 
 ' he resoun of non-entres sen (since) the deceis of umquhile Robert Ekle op Glenoabnb, 
 ' CutKbert, or William, Erlis of Olencarne,' &c. : — Constituting kts additional Royal kecog- 
 
 NIXION OF THE BIGHT TO THE EaRLDOM OP GlBNCAIHX, IN VIRTUE OF THE PATENT 28tH 
 
 May 1488, as in Robert, the son of the patentee, commonly called Lord Kilmaurs 
 (as not having assumed the title or been inaugurated) but de Jure, as here styled retrospectively. 
 Earl op Glencairn, and who died in 1492. — From the Privy Seal Register. — ' Minnies 
 ' of Evidence,' p. 30. — (Referred to supra, p. xiiii.) 
 
 (No. XCVII.) 
 
 " Ane Lettre maid to William Bischope of Ergile, his airis and assignais, ane or ma, off the gift of the 
 non-entres, males, fermes, profittis, and dewiteis of all and sindrie the landis and baronyis undirwrittin ; That is to 
 say, the landis and barony of Kilmawris, with the castell, toure," &c.* " the landis and barony of Stevinstoun, and 
 ten li. land of Challotwark, . . the landis and barony of Ramfarlie, . . the landis and barony of Fyndlastoun, . . the 
 landis and barony of Kilmaranok, . . the landis and barony of Reidhall, . . with the lands of Colintoun, Dreghorne, 
 and Swanstoun, . . the landis and barony of Hiltoun, . . and the landis and barony of Hassinden, . . the landis, 
 barony, and Erledome of Glencarne, . . the ten li. landis of Dothall, . . and the landis of Duchray and Drum- 
 
 * This Letter is abridged here, in the non-important passages. 
 
418 
 
 APPENDIX. 
 
 mond, with thair pertinentis, lyand within the Scherefdome of Striveling ; of all zeris and termes bigane 
 that the samyn hesbene, or be reductioun of retowris, sesingis, infeftmentis is, orbs quhatsumever uther maner of 
 way sal happin to be, decernit to have bene and to be in our Soverane Ladyis handis, or her Grace's predecessouris, 
 as superiouris tharof, be resoun of non-entres, sen (since) Me (?ecej« q/'wmg'M/jj'Ze Eobekt Ekle op Glencarne, 
 Cuthhert or William Erlis of Glencarne, or ony ofthaim, or ony uther last lauchfull possessour of the foirnemit 
 landis and haronyis, immediat tennentis to hir Grace's predecessores or hir Hienes of the samyn ; and 
 siclike, of all zeris and termes to cum during the tyme of the non-entres thairof, and ay and quhill (until) the 
 lauchfull entre of the rychtuus air or airis thairto, being of lauchfull age, with the releif thairof quhen it sail 
 happin, with power, etc. At Edinburgh, the xxiiii day of Aprile, the zeir of God j" v" and fyftye zeris. Com- 
 positio vf librce." 
 
 (11) Decreet of Banking of the Scottish Peerage, under authority of the King (James VI.) and 
 the Privy Council, 5th March 1606 ; but with a eeseevation and eefekence op 
 ag&rieved parties to ' the ordinab eemeed op law ' in the couet op session, ok 
 Supreme Civil Coubt, fob further peooeedings and ebctipioation in case of beeor : 
 — By tuhich Decreet the Earl of Olencairn (through non-appearance) was postponed to the 
 Earls of Eglinton, Cassillis, Caithness, and Montrose. — From a certified or official copy taken 
 from the Boohs of the Privy Council, and preserved in Her Majesty's General Begister 
 House. — ' Minutes of Evidence,' p. 35.* — (Referred to supra, p. xliii.) t 
 
 (No. XCVIII.) 
 
 " Decreit anent the Ranking and Placeing of the Nobilitie of Scotland in their ordour in Parliamentis and Generall Counsallis. 
 " At Edinburgh, the fyft day of Marche, the yeere of God j" vi"" and sax yeeres, 
 
 Anent our Soverane Lord's Letters direct, makand mentioun, iforsameekle as his Majestic and Lords of 
 Secreit Counsell, considering and remembering the great contentiouns and differences whilks manie tymes occurred 
 and>fell out among the Nobilitie of this kingdome of Scotland anent thair precedencie and prioritie in ranking and 
 voiting in Parliaments and Generall Counsells, and how that this thair contentioun lay ever over unremembered, 
 or agitat but at the verie instant of thair meetings at his Majestie's Parliaments and Conventiounes, at whilk tyme 
 thair wes greater mater of impashement (empechement) offered to the Estaits to compone thair differences then to 
 intreat upon the principall subject for whilk thay wer assembled ; His Majestic and the saids Lords thairfoir being 
 cairfuU to have this contentioun removed, and the controversies and eyleists (offences) which arise among the 
 Nobilitie for that cans sattled and pacified, whairthrow the Nobilitie and Estaits, being fred and releeved of suche 
 mater of contentioun, thay may in peace, love, and amitie concurre together and deliberat upon suche maters as 
 sail be intreated and motioned in Parliament heerafter, — His Majestic for this effect hes givin his Hienesse' Com- 
 missioun under the great seale to a number of his Hienesse' Nobilitie and Counsell who ar most indifferent and 
 nawayes suspect of partialitie, to Conveene and call before thame the whole noblemen of this Kingdome, and, 
 according to thair productions and veriiicatioun of thair antiquiteis, to set doun everie man's ranke and place, — 
 As in the Commissioun foresaid, past under the great seale, at lenth is conteanit, — 
 
 And Anent the Charge givin to Ludovick Duke of Lennox, Johne Marqueis of Hammiltone, George Erie 
 of Huntlie, Patrik Erie of Orkney, George Erie of Caithnesse, Alexander Erie of Sutherland, James Erie of 
 Murrey, Francis Erie of Erroll, George Erie Marshall, David Erie of Crawfurd, James Erie of Atholl, Johne 
 Erie of Montrose, Erie of Perth, Erie of Menteith, Andrew Erie of Eothesse, Alexander Erie 
 
 * This Decreet Tvas also received in evidence and is printed in 
 the Minutes of the Herries claim, now pending before the House 
 of Lords. 
 
 t Analysis of the Decreet of Ranking, 5th March 1606. 
 
 ' At Edinburgh, the 5th March 1606, 
 
 Anent the Letters of the King, James VI., imder the Great 
 Seal, constituting a Commission of peers of Scotland and 
 members of the Privy Council, empowered to convene before 
 them the whole noblemen of the realm and rank them 
 according to their proofs of antiquity, — 
 
 And anent the charge given to the said noblemen, to wit, to 
 Ludovick Duke of Lennox, John Marquis of Hamilton, &c. 
 &c. to appear before the said Lords Commissioners, and 
 produce their proofs accordingly, to be seen and considered. 
 
 and to hear and see their ranks and precedency appointed 
 to them according to the antiquity of those proofs, &c. ; 
 with certification to those who do not appear that the pre- 
 cedency thus awarded shall stand in full force until a 
 Decreet shall be recovered and obtained to the 
 contrary before the Ordinary Judge in each in- 
 stance, — 
 
 As at more length is contained in the said Letters, &c., 
 And. .John Earl of Montrose, . .Hew Erie of Eglinton,. .John 
 Earl of Cassillis,.. and others, appearing, some personally, 
 others by their procurators; and the remaining peers" being 
 called, but not appearing, — 
 
 And the writs and evidents produced by the persons appear- 
 ing, by which they claimed precedency, having been dili- 
 gently examined and considered, — 
 
 The Lords Commissioners decern the ranks and places following : 
 
 DukG of Lennox, 
 Marquis of Hamilton, 
 Marquis of Huntley, 
 
 Earl of Angus, 
 Earl of Argyle, 
 Earl of Crawford, 
 
 Earl of Errol, 
 Earl of Rothes, 
 Earl of Morton, 
 
 Earl of Menteith, 
 Earl of Eglinton, 
 Earl of Mmitrosc, 
 
 Earl of Cassillis, 
 Earl of Caithvess, 
 Earl of Glencairn, 
 
 l&c. 
 
 And ordain acquiescence in this Decreet ; — 
 
 But without prejudice to aggrieved parties to have re- 
 course to the ordinary remedy of law, by reduction 
 or this present Decreet before the Lords of Council 
 AND Session, for recovery of their due place and rank by 
 production of more ancient and authentic writs 
 
 THAN HAVE BEEN USED AGAINST THEM IN THIS PROCESS, — 
 
 Summoning thereto alt such persons as they shall think un- 
 justly ranked before them, &c. : — 
 
 This present Decreet nevertheless to stand in full force until 
 
 THE said AGGRIEVED PARTIES OBTAIN LAWFULLY A DECREET 
 BEFORE THE SAID LORDS OF CoUNCIL AND SESSION, OS Said is.' 
 
 Including Glencaim. 
 
APPENDIX. 419 
 
 of Dumfermling, Archibald Erie of Argyle, James Erie of Glencarne, Johne Erie of Cassills, Erie of 
 
 Eglintoun, William Erie of Angus, William Erie of Mortoun, Johne Erie of Marr, Alexander Erie of Linlithgow, 
 Countesse of Buchan, Erie of Wyntoun, Alexander Erie of Home, Simon Lord Eraser of 
 
 Lovatt, Edward Lord Bnice of Kinlosse, Johne Lord Forbes, Patrick Lord Glammis, James Lord Ogilvie, 
 Alexander Lord of Spynie. Patrick Lord Gray, Lawrence Lord Oliphant, Johne Lord Murrey of Tullibairdin, 
 David Lord of Skoone, Jairies Lord Lindesay, Lord Sinclair, James Lord of Balmerinoch, Patrik Lord 
 
 Lundores, James Lord Colvill of Culrose, Johne Lord Fleming, Alexander Lord Elphingstoun, Andro Lord 
 Stewart of Uchilfrie, Thomas Lord Boyd, Allane Lord Cathcairt, Hew Lord of Lowdoun, Eobert Lord Sempill, 
 Claud Lord of Paisley, James Lord Abercorne, Johne Lord Maxwell, James Lord Hereis, Robert Lord Creich- 
 toun of Sanquhare, James Lord Carlile, Eobert Lord Roxburgh, Lord Rosse, James Lord Hay of Tester, 
 
 Mark Lord of Newbottle, James Lord Torphichin, James Lord Eorthuick, Lord Thirlestane, Thomas 
 
 Lord Dirltoun, and Lord Saltoun,— and the tutors and curatours of the saids Dukes, Marqueissis, Erles, 
 
 and Lords, if thay anie have ; To have compeerit before the saids Lords Commissioners at a certane day bygane, 
 And to have brought and produceit with thame suche writts, evidents, documents, and testimoneis as they have or 
 can use for acclaming of that ranke and place of precedencie and prioritie challengit be thame befoir uthers, To 
 have beene seene and considerit be the saids Lords Commissioners, And to have heard and scene thair rankes and 
 places of prioritie and precedencie appointit and sett doun to thame according to the antiquitie of thair produc- 
 tiouns, and that whilk sould be verified in thair presence, and thay and everie one of thame decernit to take that 
 place whilk sould be appointit and prescryved unto thame be the saids Lords Commissioners, as said is,— Certifeing 
 all suche persouns as sould not compeere be thameselves or thair procuratours in thair names, that the saids Lords 
 Commissioners would goe fordward in setting doun everie man's ranke according to that whilk sould be verified, as 
 said is, and sould proceed according to the speciall instructions givin be his Majestic to the saids Lords Commis- 
 sioners for this purpose ; And that the determinatioun of the saids Lords Commissioners sould stand in.fullfwce 
 and effect ay and whili (until) ane Deckeit before the Okdinae Judge be becoveeit and obteainit in 
 
 THE CONTKAIR,: — 
 
 Lykeas at mair lenth is conteanit in the saids Letters, executiouns, and indorsatiouns thairof, — 
 
 Quhilks being callit, and diverse termes and dyets being keepit to this effect; and the said Johne Erie of 
 Montrose, Alexander Erie of Dunfermling, Francis Erie of Erroll, George Erie Mairshall, and Alexander Erie 
 of Lmlithgow compearand persondllie ; and the said Alexander Erie of Sutherland compeerand be Mr. Robert 
 Learmonth, [his] procuratour ; the said Johne Erie of Marr compeerand be Mr. Thomas Hoip, his procuratour ; 
 the said David Erie of Crawfurd compeerand be Laurence Scot, his procuratour ; the said Andrew Erie of Rothesse 
 compeerand be Mr. David Ayttoun, his procuratour ; the said William Erie of Mortoun compeerand be the said 
 Mr. Robert Learmonth, his procuratour ; the said Erie of Menteith compeerand be Grahame, his 
 
 procuratour ; the said Hew Erie of Eglintoun compeerand be Johne Bell, his procurator ; the said Johne Erie of Cassils 
 compeerand he Robert Hammiltoun and Gilbert Rosse ; And the saids Andrew Lord Stewart of Uchiltrie, James Lord 
 of Balmerinoch, and James Lord Abercorne, compeerand personallie ; the said James Lord Lindesay of the 
 Byres compeerand be the said Mr. Robert Learmonth, his procuratour ; the said Johne Lord Forbesse compeerand 
 be James Fogo, his procuratour ; the said Patrik Lord Glammis compeerand be Mr. Johne Schairpe younger, his 
 procuratour ; the said Patrik Lord Gray compeerand be Patrik Whytelaw of Newgrange, his procuratour ; the 
 said John Lord Saltoun compeerand be Mr. William Livingstoun, his procuratour ; the said Allane Lord Cath- 
 cart compeerand be George Angus, his procuratour ; the said James Lord Cairlile compeerand be the said Robert 
 Hammiltoun, his procuratour ; the said Robert Lord Sanquhair compeerand be Crichton of Lugtoun, 
 
 his procuratour ; the said James Lord Hay of Tester compeerand be Mr. George Butter, his procuratour ; the 
 said Robert Lord Sempill compeerand be the said Johne Bell, his procuratour ; the said Johne Lord Hereis com- 
 peerand be Cuthbert Cuninghame, his procuratour; the saids Alexander Lord Elphingstoun compeerand be the 
 said James Fogo, his procuratour ; the said James Lord Torphichin compeerand be the said Mr. Robert Lear- 
 month, his procuratour ; the said Lord Thirlestane compeerand be Thomas Fleeming, his procuratour ; 
 the said Alexander Lord of Spynie compeerand be the said Mr. Robert Learmonth, his procuratour ; And the 
 haill remanent Lords particularlie abovewrittin being oftymes called and not compeerand, diverse termes and 
 dyets being assigned to thame for this effect, — 
 
 The writts, evidents, testimoneis, and documents produced be the saids persouns compeerand, whairby 
 thay and everie one of thame acclamed thair prioritie and precedencie befoir uthers, being diverse tymes and 
 at dyverse dyets verie diligentlie and exactlie sichted, tryed, examinat, and considerit be the saids Lords Com- 
 missioners, and the saids Lords being thairwith, as alsua with the rankes and places of suche Erles and Lords 
 as wer promoved and created in his Majestei's owne tyme, weill and throughlie advised, — 
 
 The SAIDS Lords Commissioners hes decernit, decreittit, afpointit, and sett doun, and be thir presents 
 
 DECERNIS, DECREITTIS, APPOINTS AND SETTIS DOUN THE RANKES AND PLACES FOLLOWING TO THE HAILL NOBLEMEN 
 
 OF THIS KiNGDOME, to be bruikcd, keeped, and possessed be thame in all Parliaments, Generall Counsells, and 
 publict meetings heerafter : — In the first, the saids Lords Commissioners decerns and ordains the Duke of Lennox 
 to have the first place, the Marqueis of Hammiltoun the secund place, and the Marqueis of Huntlie the thrid 
 place, — becaus, be the custome inviolablie observed in all kingdoms, the place of honour and dignitie among 
 nobilitie is first in the persons of Dukes, nixt Marqueisses, and then in the persons of Erles and Lords. And nixt 
 unto thame the saids Lords Commissioners decerns and ordains the Erles abovewrittin to have, bruike, and 
 
 3 H 
 
420 
 
 APPENDIX. 
 
 possesse thair rankes and places according as thay ar heere writtin, ranked, and sett doun, in order following, viz., 
 Angus, Argyle, Crawfurd, Erroll, Mairshall, Sutherland, Mar, Rothesse, Mortoun, Menteith, Eglintoun, Montrois, 
 Cassills, CaitJmes, Olencaime, Buchane, Murrey, Orkney, Atholl, Wyntoun, Linlithgow, Home, Perth, Dumferm- 
 ling, and Dumbar. And siclyke the saids Lords Commissioners decerns and ordains the Lords particularlie above 
 writtin to have, bruike, and possesse thair rankes and places according as thay ar heere writtin, ranked, and 
 sett doun, in order following, viz., Lindesay, Forbes, Glammis, Fleeming, Saltoun, Gray, Ucliiltrie, Cathcart, 
 Carlile, Sanquhair, Tester, Sempill, Sinclair, Hereis, Elphingstoun, Maxwell, Oliphant, Lovat, Ogilvie, Borth- 
 uick, Rosse, Boyd, Torphichin, Paislay, Newbottle, Thirlestane, Spynie, Roxburgh, Lundores, Lowdoun, 
 Dirltoun, Kinlosse, Abircorne, Balmerinoch, Murray of Tullibairdin, Colvill of Culrosse, and Skoone. And 
 decerns and ordains all the Erles and Lords particularlie abovewrittin to keepe, bruike, and possesse thair rankes 
 and places in tyme comming according to the ordour and rankis abovewrittin, now appointit, prescryvit, and 
 sett donn unto thame ; And to make na questioun, trouble, or pley in this mater to anie appointed to have place 
 and rank before thame in this mater foresaid : — 
 
 But {i. e. without) pdejddice alwayes to sucTie persoun or persons as sail find thameselves interest and prejudgit he 
 thair present ranking, to have recourse to the Ordinar Remeed of Law be Reductioun before the Lords 
 OF CouNSELL AND Sessioun OF THIS PRESENT Decreit, for recoverie of thair owne dew place and rankis, be produc- 
 
 TIOUN OF MAIR ancient AND AUTHENTICK RIGHTS NOR (than) HES BEENE USED IN THE CONTRAIB. OF THIS 
 
 PROCESSE, — Summoning thairto all stiche persouns as thay sail thinks wrangouslie rankit and placeit before thame : — 
 
 And in this meantyme this present Decreit and determinatioun to stand in full force, strenth, and effect, ay 
 
 AND WHILI, (until) THE PAIRTIE INTEREST AND PREJUDGIT OBTEANE LAWFULLIE A DeCKEIT BEFORE THE SAIDS 
 
 Lords of Counsall and Sessioune, as said is. 
 
 And ordains thir presents to be insert and registrat in the Books of Privie Counsell, and an authentick 
 Extract heerof to be delyverit to the Clerk of Register, and another extract to be delyverit to the Lyoun herauld, 
 to be keeped be thame for their better knowledge and informatioun of everie man's rank and place when the 
 occasioun of thair ranking sail be presented." 
 
 " Extractum de Libris Actorum Secret! Counsilii S. D. N. Regis per me, Jacobum Prymrois, Clericum 
 ejusdem, sub meis signo et subscriptione manualibus, — Jacobus Pbymkois." 
 
 (12) Decreet of the Court of Session, the Supreme Civil Court, 7th July 1610 — peoceeding on the 
 
 EESBKVATION AND REFERENCE IN THE PEECEDING DECREET OP RANKING IN 1606, inde- 
 
 pendently of inherent jurisdiction — rescinding the said Decreet of 1606 in, so far as to restore 
 the precedence to the Earl of Glencairn over the Earls of Eglinton and Cassillis, IN viktue 
 OF the Patent 28th May 1488, which had not heen produced iefore the Royal Commission 
 in 1606.* — From an old official copy preserved in the Eglinton Charter-chest.^ — ^Minutes 
 ' of Evidence,' p. 77. (Referred to supra, p. xliii.) J 
 
 (No. XCIX.) 
 
 " Extract Decreet James Earl of Glencairn, &c., against Hew Earl of Eglinton. 
 
 " At Edinburgh, the sevint day of July, the yeir of God j° \'f and ten yeiris, [Before] the Lordis of 
 Counsall underwrittin, they ar to say, Alexander Erie of Dumfermling, Lord Fyvie, etc. High Chancellar of 
 
 * This Decreet was preceded by a Protest by Glencairn before 
 the Privy Council, 16th June 1609, that his acquiescence pro 
 tempore in the Decreet of Ranking should not prejudice him here- 
 after; that his proofs of precedency " micht be red in audience of 
 " the Parliament ^' and " that he micht have summair proces and 
 ^^ justice before the Lordis of Counsall and Sessioun in the Actioim of 
 " Beductioun cjuhilk he hesintentit (j)rosecuted) for reduceing of the ^* 
 siiid "Beerite," — which protestation " the saidis Lordis " of Privy 
 Council ** admittitr i^Privy Council Pcgisfer,) — And either on 
 that or the preceding day the patent 28th May 1488 was accord- 
 ingly " producit befor the Lords of Secret Counsell, in tyme of Par- 
 " liament, haldin 15 Junii 1609," as by the testimony of Sir 
 .lames Balfour. See the S. Case, pp. 44, 45, and supra, p. 36. 
 
 + The Decreet is fully recorded in the Act and Decreet 
 Register of the Court of Session, preserved in the General 
 Register House, Edinburgh, and the Claimant had provided a 
 certified copy for adduction, but that copy having been acci- 
 dentally mislaid, and the agent for the Earl of Eglinton having 
 brought up the ancient official copy in question, it was given in 
 evidence by the Claimant accordingly. 
 
 X Analysis of the Decreet 7th July 1610. 
 ' At Edinburgh, the 7th July 1610, &c. 
 
 In the Action pursued at the instance of James Eael of 
 Glencairn against Hugh Earl of Eglinton and John 
 Earl of Cassillis, 
 
 Calling for production before the Lords of Council and 
 Session of 
 
 The pretended Decreet of Sanhing, 5th March 1606, — by 
 
 which Glencairn is postponed to Eglinton and Cassillis 
 — but which contains an express provision that such 
 peers as shall be unjustly ranked may have recourse to 
 the ordinary remedi/ of lavj by reduction of the said 
 Decreet before the Lords of Council and Session for reco- 
 very of their rightful precedency by production of more 
 ancient and authentic writs than were used against them 
 in 1606, — together with the Commission, &c. on which 
 the said Decreet proceeded, 
 
 To be seen and considered, and to hear and see the said 
 Decreet of Ranking rescinded and declared to have been 
 from the beginning null, in so far as Glencairn is postponed 
 to Eglinton and Cassillis, and Glencairn to be restored to 
 his just place and precedency according to the antiquity of 
 his evidents, 
 
 jpor t^e reasons after spettfictr, — 
 
 As is contained at more length in the Summons, acts, 
 letters and process, &c. &c. preceding this present 
 Decreet : — 
 
 And the pursuer, Glencairn, appearing by his procurators ; 
 and Eglinton and Cassillis, defenders, although lawfully 
 summoned, not appearing, — 
 
 And the rights, reasons, and allegiances of the pursuer, 
 Glencairn, and his evidents and writs produced for proving 
 the reason underwritten, having been heard, seen, under- 
 stood, and ripely advised, — 
 
 The Lords of Council reduce, cass, and annul the 
 foresaid pretended Decreet of Ranking 1606, and decern 
 
APPENDIX. 
 
 421 
 
 Scotland ; Mr. Johne Prestoune of Pennycuik, President ; "Williame Coramendatour of Tungland ; Sir Arclibald 
 Douglas of Quhittinghame ; Sir Richard Cokburne of Clerkingtoune, younger, Lord Privie Seale ; Sir Johne 
 Cokburne of Ormestoune, Justice Clerk, knichtis ; Andro "Weymis of Maircairnie ; Sir Thomas Hammiltoune of 
 Byiris, knycht, his Majestie's Advocat ; Sir John Skene of Curriehill, knycht. Clerk of Eegistre ; David Lyndesay 
 of Edzell, knycht ; Sir Ludovick Craig of Wrichtisland, knycht; Mr. Alexander Hay of Forrestersait ; Sir Andro 
 Hammiltoune of Redhous, knycht ; Sir Alexander Drummond of Medhope, knycht ; Sir Williame Levingstoune of 
 Kilsyith, knycht ; and Waltir Lord Blantyre ; Alexander Maister of Elphingstoune, Lord Kildrymmie ; Sir Robert 
 Melvill of Bruntyland, knycht ; and Johne Bisliope of Glasgow, 
 
 In the Actioune and eaus persewit at the instance of ane Noble and Potent Lord James Ekle op Glex- 
 CAIKNE, Lord Kilmaweris, 
 
 Aganis 
 
 ane Noble Lord Hew Eule op Eglingtoun, Lord Kilmaweris, and Johne Erle of Cassillis, 
 TuiCHEiNG THE PRODucTiouNE before the Lordis of Counsall off 
 
 Ane pretendit Decreit, alledgit given and pronuncit be tlie Lordis of Secrete Counsall, as haveing his 
 Hienes' commissioon direct to thame to call and convene before tliem the haill noblemen of tJte Kingdome 
 of Scotland, and, according to thair productions and veriflcatiounes of thair antiquities, to deceme everie 
 man' s rank and place in Court and Parliament ; in the quhilk Decreit the saidis Lordis, upon the 
 alledgit sight, tryell, and examinatioune, and the haill verificatiounes and documentis producit, 
 and thairin being advyised, they fand and set doune the ordour of the haill Erles according to 
 tliair antiquities, to be rankit in Parliament and Counsall in tyme comeing, and utheris places 
 of counsall and justice, — in the quhilk ordor of rankyng they have postponit the said Noble Lord, 
 James Erie of Glencairne, to the saidis Erles of Eglingtoune and Cassillis, — The said Decreit eon- 
 teining ane express provisioune that the said Decreit of Eankyng salbe but {without) prejudice 
 alwayis to sick persone or persones as sail find themselfis interest and prejudgit he the wrangous rankyng 
 of the said pretendit Decreit, to have recourse to the ordinar remeid of law be Beductioune before his 
 Majestie's and his Hienes' Counsall and Sessioune of the said pretendit Decreit, ffor recoverie of thair 
 rankis and dew places, be productioune of mair antient and autentick writtis nor (than) wer usit in thair 
 confrairin the said pretendit proces, — As in the said pretendit Decreit, of tlie date the fyift day of 
 2i(irch, tlie yeir of God /" vj' and sex yeiris, at mair lenth is contenit : — Togither with the Com- 
 missioune quhairupon the said pretendit Decreit proceidit, with his Hienes' ratificatioune thairof 
 of the date the day of , or of quhatsumevir day or dates the samen 
 
 be of, — 
 
 To HAVE BENE SESE AND CONSIDERED be the saidLs Lordis of Counsall, And to have hard and sene the 
 said pretendit Decreit of Ranking of the saidis Lordis, and postponing of the said noble Lord James Erie of 
 Glencairne in dignitie, rank, and honour to the Erles above specifeit, bene retreittit, rescindit, cassit, annullit, 
 decernit, and declarit to have bene [null] from the begining, at the least the said Decreit in that pairt sua far as the 
 said noble Lord is postponit to the Erles above specifeit ; And the said noble Lord to have bene restored and rein- 
 tegrat intill his just place and dew ordor of rankyng, according to the antiquities of his evidentis and richtis, in 
 Parliament and Counsall, 
 
 Lyke as at mair lenth is contenit in the principall Summondis raisit in the said matter, actis, lettres, 
 and haill proces led and deducit thairintill of before : — 
 
 The said noble Lord, persewar, compeirand be Mr. Thomas Hendirsone and Johne Belshes, his procura- 
 touris ; And the saidis Hew Erie of Eglingtoune and Johne Erie of Cassillis, defenderis, being laufullie summond 
 to this actioune divers tymes of before, oftymes callit and not compeirand, — 
 
 The richtis, ressones, and allegatiounes of the pairtie compeirand, as said is, hard, sene, and understand. 
 
 IT TO HAVE BEEN NULL FROM THE BEGINNING, in SO far aS 
 
 Glencairn is postponed to Eglinton and Cassillis, and 
 RESTORE Glencairn to his just place and precedency, 
 
 ACCORDING TO THE ANTIQUITY OF HIS EVIDENT8, 
 
 1. Because the Decreet 1606 was given against Glencairn 
 
 for non-appearance and null deferwe, and therefore he 
 ought, by provision of the said Decreet and by the 
 common law of the realm, to be admitted to produce 
 in the second instance such evidence as was not pro- 
 duced in the first, but which, if then produced, would 
 have been conclusive in his favour ; 
 
 2. Because his predecessor Alexander Lord Kilmaurs WAS 
 
 CREATED Earl of Glencairn by James III. in 
 May 1488, before which time neither Eglinton nor 
 Cassillis is able to shew the dignity of an Earl ; 
 
 3. Becausk, by common law and practice, and by the 
 
 Decreet of 1606, precedency is regulated by antiquity 
 
 of creation, and, neither Eglinton nor Cassillis being 
 able to shew such ancient proofs of their dignities as 
 Glencairn, Glencairn is entitled to the precedency, — 
 
 Which allegiance, if proponed in the first instance, would 
 have been sufficient to have altered the ranking in the 
 Decreet 1G06, and now, being proponed and verified in the 
 second instance, is sufiicient to reduce that Decreet in so far 
 as he (Glencairn) is postponed to Eglinton and Cassillis, 
 
 jpor t]&e reason forcsaitf : — 
 
 Which reason and cause above written being found relevant by 
 the Lords, and (after repeated summonses and nonappear- 
 ance on the part of the defenders) verified and proved by 
 the production of the Patent 28th May 1488 by the pur- 
 suer, Glencairn, — 
 
 The Lords decerned accordingly, as said is.' 
 
 3 H 2 
 
422 APPENDIX. 
 
 togither with certane evidentis and writtis producit be the said noble Lord for proving of the ressone under- 
 wriitin ; And thairwith being ryiplie advyissit, — 
 
 The Loedis of Counsall Eeducis, Eetreittis, Cassis, and Annullis the foresaid pretendit 
 Decreit given and pronuncit be the Lordis of Secrete Counsall, be the quMlk they have postponit the said 
 noble Lord James Erie of Glencairne to the saidis Earles of Eglintoune and Cassillis, of the date above specifeit ; And 
 Dec ernis the samen Decreit to have bene from the begining null {at the least that pairt thairof contenit in 
 the said Decreit, sua far as the said noble Lord is postponit to the Erles ahovewrittin) ; And Restoieis and Reinte- 
 geatis the said Noble Lord in ms dew and just place of ordor and eankyng (according to the 
 antiquitie of his evidentis and richtis) in Parliament and Counsell, as said is, 
 
 [1] Becaus it is of veritie, that the said pretendit Decreit is given againis the said noble Lord /or not 
 cc?npeirance, he never being laufullie summond to have compeirit to the giving thairof, nor to 
 liave sene the said noblemen rankit in Counsall and Parliament deducit and made, nor to have 
 producit his evidentis and documentis of dignities, — at the least, the said Decreit is given againis 
 him for tmll defence and not compeiraiice, as said is : — And thairfore the said noble Lord aucht, 
 be the provisioune of the said Decreit and be the comoune law of this realme, now in the second 
 instance to be admittit to produce sick evidentis and documentis as was not producit in the first 
 instance, quhilkis evidentis, in caise they had bene producit, wald have bene sufficient to have 
 verifiet the said noble Lord to have bene mair ancient in the dignitie of ane Erie nor (than) anie 
 of the Erles above specifeit, — 
 
 [2] And TREW IT IS that the said nolle Lord his predecessouris [sic], viz. Alexander than Lord of Kilmaiceris, 
 foirgrandsiris (great-grandfather s) father to the said persewar, was great Erle op Glencairne be 
 his Hienes' predecessor, of good memorie, King James the Theid, in the moneth of May, the 
 yeirop Godj" fouee hundeeeth fourscoure aucht yeieis, — before thequhilk tyme nane of 
 the Erles abovenamit is able to shaw the dignitie of ane Erledome either in Parliament or 
 Counsall, or uther laufull creatioune, grantit unto them, — 
 
 [3] And seing, of the comoune law and prattique of this realme and Commission directed to his 
 Hienes' Counsell, and be the said Decreit, it is maist certane that, amongst noblemen provydit to 
 dignities, he that is first provydit to ane dignitie, and is maist ancient in title thairof, aucht to be 
 preferred to them that ar posterior ; And the said noble Lord, persewar, being maist ancient in 
 title and dignitie and before anie of the Erles foresaidis, he aught and sould be in Parliament and 
 Counsall rankit and have the formar place above them, seing nane of them ar able to shaw sick 
 ancient evidentis of thair dignities as the said noble Lord : — 
 
 — Quhilk alledgeance, if the samen had bene proponit in the first instance, wald have bene sufficient to have 
 altered the ranking of the said noble Lord in postponing of him in honour and dignitie to the Erles above specifeit, 
 quhair he ought to have bene preferrit to them ; And now in the second instance, the samen, being proponit and 
 verifiet, is sufficient to reduce the said pretendit Decreit in sua far as he is postponit to them, and sua aucht and 
 sould be preferrit, now and in all tym comeing, baithe in Counsell and Parliament, to the Erles above specifeit, in 
 thair ranking and dignities, according to thair antiquities, and the said Decreit reducit in that pairt, 
 
 Quhilk ressone and caus abovewrittin being fund relivant be the saidis Lordis and admittit to the said 
 persewaris probatioune, (eftir that the saidis persones, defenderis, wer diverse tymes laufullie summond to have 
 compeirit before the saidis Lordis at diverse dayis bypast, to have hard and sene Decreit bene given in the said 
 matter in maner abovewrittin, and not compeirand) ; the said persewar instantlie verifiet and provit the pointis of 
 the said ressone sufficientlie be productioune of the foresaid Infeftment * mentioned in the said ressone, beirand the said 
 noble Lord his predecessor, viz. Alexander, than called Lord of K{lmaweris,foirgrandschiris father to the said noble Lord, to 
 have bene creat Erie of Glencairne in the moneth of May, anno j'" four hundereth fourscore aucht yeiris, be his Majestie's 
 predecessor, of good memorie, King James the Thrid, — lyke as was clearlie understand to the saidis Lordis, — 
 
 And thairfore they deceenit, as said is, — 
 
 And ordanis lettres to be direct to the effect foresaid, if neid beis, in forme as effeiris." 
 
 " Extractum de Libro Actorum per me, Dominum Willielmum Scot de Clerkingtoune, militem, Soribam 
 Consilii : — W. Scott." 
 
 • That is, the Patent 28th May 1488 (according to common Scottish phraseology), as will further appear. 
 
APPENDIX. 
 
 423 
 
 (13) Decreet of the Court of Session, the Supreme Civil Court, Uth February l%ll^iroceeding,as 
 hefore, on the reference in the Decreet of Banking in 1606, independently of inherent Juris- 
 diction in honours — reducitig the preceding Decreet of 1610 on the ground tJuit the Earls of 
 Montrose and Cassillis, to whom (as well as to Eglintm and CassiUis') precedency had been 
 awarded over Olencairn in tlie Decreet of Banking 1606, luid not heen duly summoned in 
 1610, thus creating an anomaly, &c., hut without at all beoaching the merits of the 
 
 QUESTION BETWEEN GlENOAIEN AND EgLINTON AS DEPENDING ON THE PATENT OF 1488, the 
 
 reduction proceeding entirely on technical grounds. — From the Act and Decreet Begister of 
 the Supreme Civil Court.—' Minutes of Evidence,' p. 38.— (Eeferred to sux<ra, p. xliv.)* 
 
 (No. C.) 
 
 " Apud Edinburgh, undecimo die Februarii, 1617. 
 " Sederunt Domini Sessionis, Alexander Comes Dunfermeling, Cancellarius, Byning, preses, Advocatus, 
 Clericus Registri, Clericus Justiciarie, Privie Seall, Quhittinghame, Reidhous, Ricartoun, Forestersait, 
 Kilsyth, Medojie, Curryhill, Elibank, Carnegie. 
 
 " In the Actionn and cans persewit at the instance of Alexander Montgomerie Erll of Egglintoun, 
 Lord Montgomerie, the air of tailzie and successour in the richt and titell of the said Erldome of Eglintoun to 
 umquhile Hew Erll of Eglintoun, Lord Montgomery, that last deceist, aganis quhome the pretendit Decreit 
 Keductive efterspecifeit wes gevin and pronuncit and thairby the said Alexander Montgomerie now Erll of 
 Eglintoun haveing gude richt and sufficient entres to persew the Actioun of Reductioun eftirmentionat, 
 
 Aganis 
 
 James Erll of Glencarne, Lord Kilmaweris, at quhais instance the pretendit Decreit Eeductive efterspecifeit 
 wes obteneit, William Master of Glencarne, Lord Kilmaweris, his sone, and all utheris haveing or pretending 
 to have entres in the, mater eftermentionat, — 
 
 TwiCHiNG THE EXHiBiTioDN AND pRODDCTiouN in presence of the saidis Lordis of 
 
 The p-etendit Decreit Reductive, gevin and pronuncit be the saidis Lordis in favouris of the said James 
 Erll of Glencarne aganis the said umquhile Hew Erll of Eglintoun, off the date, at Edinburgh, the 
 sevint day of July, f^ vf and ten zeiris ; quhaireby the saidis Lordis reduceit, retreittit, and rescindit 
 the Decreit and sentence gevin be the Lordis of Secreit Counsall, as haveing Commissioun from 
 his Majestie direct to thame to that effect ffor ranking and placeing of the nobilitie of the realm 
 of Scotland in Parliament, conventionis, and utherwayis, — And that in sua far as be the said 
 Decreit the said James Erll of Glencarne wes postponeit in rank and place to the said umquhile 
 Hew Erll of Eglintoun ; And whairby the said James Erll of Glencarne is restoirit and redin- 
 tegrat in his allegit just and dew place of order, rank, and dignitie according to his rychtis, as 
 in the said pretendit Decreit of Reductioun of the date foirsaid at lenth is conteneit, — 
 
 To HAVE beine seine AND coNsiDDERiT be the saidis Lordis, and to have hard and seine the said Decreit 
 Reductive annullit, retreitit, and rescindit, and the said Alexander now Erll of Eglintoim be reponeit and restoreit 
 aganis the samen pretendit Decreit, to the effect that he and his successouris may have, bruik, retine, and enjoy 
 
 * Analysis of the Decreet 11th Febbuaby 1617. 
 ' At Edinburgh, the 11th February 1617, &c. 
 
 In the Action pursued at the instance of Alexandek Earl of 
 Eglinton (heir of entail and successor in the Earldom of 
 Eglinton to Hugh late Earl of Eglinton) against James 
 Earl of Glencaien, William Master of Glencaibn, his 
 son, and all others interested, 
 
 Calling for production before the Lords of Council and 
 Session of 
 
 Tlie pretended Decreet Reductive 7th July 1610, — whereby 
 the Lords reduced the Decreet of Ranking 1606, in so 
 far as Glencairn was postponed to Eglinton, and restored 
 the former to his alleged just order and precedency,— 
 
 To be seen and considered, and to hear and see the said 
 Decreet 1610 reduced and Eglinton restored to his just place 
 assigned to him by the Decreet of Ranking 1606, 
 
 jpor tS« reasoK antr cause after gpctifieft, — 
 
 As is contained at more length in the Summons, &c. &c. 
 
 The pursuer, Eglinton, appearing personally and by his 
 counsel (who produced the Decreet 1610), and Glencairn 
 likewise appearing personally and by his counsel ; but 
 William Master of Glencairn and the remaining defenders, 
 although lawfully summoned, not appearing, — 
 
 And the rights, reasons, and allegiances of the respectiye 
 parties, appearing, having been heard, seen, understood, and 
 ripely advised, — 
 
 The Lobds of Council rescind and annul the foresaid 
 pretended Decreet 1610, and restore Eglinton against the 
 same, to the effect that Eglinton may enjoy the place and 
 precedency assigned to him by the Decreet 1606, 
 
 1. Because the said Decreet 1610 was given against him 
 
 (Eglinton) for null defence and non-appearance, he not 
 having been lawfully summoned thereto ; 
 
 2. Because the Earls of Montrose and Caithness, who are 
 
 also ranked before Glencairn in the Decreet 1606, 
 were not summoned in 1610, — 
 
 3. Because the effect of this oversight is as follows: — That, 
 
 the Decreet of 1606 not having been rescinded as regarded 
 Montrose and Caithness, those Earls still, ex terminis of 
 tlie Decreet 1606, precede Glencairn; while Eglintmi, lij 
 t/\e same Decreet of 1606, equally so far unresoinded, still 
 precedes, Montrose and Cassillis, although postponed by 
 the Decreet 1610 to Glencairn; which is a heavy preju- 
 dice to the pursuer, Eglinton : — 
 
 ^nij t!)c«fott, §rc. :— 
 
 Which reason, &c. being found relevant by the Lords, and 
 Glencairn's allegations to the contrary being repelled, and 
 the pursuer (Eglinton) having sufiiciently verified and 
 proved the same, 
 
 The Lords rescind and annul the said Decreet 1610 
 AND restore Eglinton against the same, as said is, — 
 
 And order letters, &c. &c.' 
 
424 APPENDIX. 
 
 the place, rank, and dignitie gevin and assignit to the said umquhile Hew Erll of EgHntoun be vertew of the said 
 Decreit of Secreit Counsall, quhilk is of the date the fyft of Marche, j" vj" and sex zeiris, 
 
 jToi* tf)t itsisione antr rausJ tftersperi'feit,— 
 
 And anent the charge gevin to the said James Erll of Glencarne, his said sone William, and all utheris 
 haveand or pretendand to have interes in the said mater, to have compeirit befoir the saidis Lordis at ane certane 
 day bigane, bringeand and produceand with thame in presence of the saidis Lordis the foirsaid Decreit Eeductive, 
 to have bene sene and considderit be the saidis Lordis, and to have hard and sene the samin annullit, retreitit, 
 rescindit, and rescindit [sic], and the said Alexander now Erll of Eglintoun reponit and restorit aganis the samen 
 to the effect foirsaid, — 
 
 As at mair lenth is conteneit in the principall Summoundis raissit in the said mater, articles, lettres, 
 and haill proces led and deducit thairintil : — ■ 
 The said Alexander Montgomerie Erll [of] Eglintoun, persewer, being personallie present, togidder witli 
 Maisteris Thomas Hope, Thomas Nicolsoun, and Laurence Scot, his proloquutoris, quha, for satisfeing of the 
 productioun according to the desyre of the said principall Summoundis, producit in presens of the saidis Lordis 
 the foirsaid Decreit Eeductive obteneit befoir the saidis Lordis of Counsall and Sessioun be the said James Erll of 
 Glencarne aganes the said umquhile Hew Erll of Eglintoun, reduceand and rescindand the said Decreit and 
 sentence gevin be tlie saidis Lordis of Secreit Counsall in favouris of the said umquhile Hew Erll of Eglintoun, 
 beirand and conteinand as is above specifeit, of the date the said sevint of July, j" vj"^ and ten zeiris, — And thair- 
 wpoun the said perseweris proloquutoris in his name askit instrumentis : — And the said James Erll of Glencarne 
 being lykwayes personallie present, togidder with Mr. Alexander Peiblis, Johnne Dawling, and Johnne Belsches, 
 his proloquutoris : — And the saidis William Master of Glencarne, Lord Kilmaweris, and remanent defenderis. 
 and utheris haveand or pretendand to have interes in the said mater, being laufullie summoned to the haill dyettis 
 led and deducit in the said mater, oftyraes callit and not corapeirand, — 
 
 The foirsaid parteis compeirand, all thair ryte [rights], ressonis, allegationis, togidder with the Retour and 
 Seising following thairwpoun eftermentioned, twa Decreittis befoirspecifeit, diverse utheris writtis, and probatioun 
 producit for the pairt of the said Alexander now Erll of Eglintoun, persewer, for preving the ressone and cans 
 of reductioun underwrittin, hard, sene, understand, and the saidis Lordis thairwith being rypelie advyssit, — 
 
 The Lordis op Coumsall ketkeittis, eescindis, and annullis the foiisaid pretendit Dscu'eit 'Redvctiyi: 
 obteneit befoir tliarm at the instance of the said James Erll of Glencaime aganis the said umquhile Hew Erll of Eglintoun, 
 beirand and contenand as is dbovewrittin, op the date the sevint op July i" vi° and ten zeiris ; And reponis and 
 KESTOiRis tlie said Alexander now Erll of Eglintoun aganis the samin Decreit Reductive, to the effect that the said Erll 
 [o/] Eglintoun and his successoris may have, bruik, retene, and enjoy tlie place, ranh, and dignitie gevin and assignit to tlie 
 said umquhile Hew Erll of Eglintoun be vertew of the said Decreit of Secreit Consall, quhilk is of the date the fyft of 
 Marche, f^ vf and sex zeiris, — 
 
 [1] Becaus the said pretendit Decreit Reductive was gevin and pronuncit aganis the said umquhile 
 Hew Erll of Eglintoun for null defence and not compeirance, he not being laufullie summouued to 
 the geving thairof ; And gif he had bene laufullie summound and had compeirit in the first 
 instance, he micht and wold have allegit (the productioun being first satisfiet be productioun of 
 the said Decreit gevin be the saidis Lordis of Secreit Counsall), lyke as he now alledgis, that 
 absolvitor aucht to be grantit fra the resone of reductioun, — 
 
 [2] Becaus the said Decreit of Secreit Counsall could nawayes be drawin in questioun except the 
 Erllis following, viz. the Erll of Montrois, Cassillis, and Caithnes, quha ar rankit eftir the said 
 Erll of Eglintoun and befoir the said Erll of Glencarne, had beine summound to the geving of 
 the said Decreit Reductive, quha, at leist the saidis Erllis of Montrois and Caithness, wer nawayis 
 suramond, — 
 
 [3] Lykeas the not citatioun of thame furnischit to this peremptor exceptioun following, viz. that 
 the said Erll of Glencarne could nawayes have the precedencie of place to the said umquhile 
 Hew Erll of Eglintoun and his successoris, becaus the said Erll of Glencarne, in respect of the 
 said Decreit of Secreit Counsall, standing in favoris of the saidis Erllis of Montrois and Caithnes, 
 man (must) be in place posterior to thame. And tlie said Erll [of] Eglintoun haveing the prior 
 place to baithe the saidis Erllis of Montrois and Caithnes, quha are prior to the said Erll of 
 Glencarne, as said is, man (must) also have prioritie of place to the said Erll of Glencarne 
 ay and quhill (until) he be preferrit to the saidis Erllis of Montrois and Caithnes, quha ar 
 posterior to the said Erll of Eglintoun, eis said is ; utherwayis, gif it sould happin all the saidis 
 four Erllis to meit in Parliament, the said Erll of Eglintoun sould be postponit to the saidis Erllis 
 of Montrois and Caithnes, quha, be vertew of the said Decreit of Secreit Counsall standing, hes 
 the precedencie of place befoir the said Erll of Glencarne, — quhilk wes ane heavie prejudice to 
 the said Erll of Eglintoun, — 
 
 ^ntr tftairfoir, ttt,:— 
 
 Quhilk resone and caus of reductioun foirsaid being fund relevant be the saidis Lordis, and adraittit to the 
 said persewer his probatioun, and that notwithstanding the haill alledgeances proponit for the pairt of tlie said 
 
APPENDIX. 
 
 425 
 
 Erll of Glenearne in the contrair, the quhilkis wer all repellit be the saidis Lordis ; the said persewer than 
 instantly verifeit and previt tlie samen resone and suinmoundis of reductioun sufficientlie, be productioun of ane 
 Ketour extract furthe of the Chancellary and subscryvit be Mr. John Scot of Scottistarvet, director thairof, 
 beirand the said Alexander Erll of Eglintoun to be servit and retoreit neirest air of tailzie and provisioun to 
 the said umquhile Hew Erll of Eglintoun, his mother brother sone, in the said Erldome of Eglintoun and 
 landis belonging to the said umquhile Erll, off the date the twentie day of October, j" vj° and twelff zeiris ; And 
 als be productioun of ane Instrument of Seasing gevin be vertew of ane precept direct furthe of the Chancellarie 
 upone the said Retour, bearand seasing gevin to the said Alexander Erll of Eglintoun, air of tailzie and provi- 
 sioun to tlie said umquhile Hew Erll of Eglintoun that last deceist, of the said Erldome of Eglintoun and landis 
 of Eglintoun, and divers utlieris landis conteneit in the said Eetour and precept, as at raair lenthe is conteneit in 
 the said Instrument of Seising, gevin under the signne and subscriptioun manuell of Williame Caldwell, noter 
 public, off the dait the penult day of October, j" vj° and twelff zeiris ; And likewayes be the productioun of the 
 saidis twa Decreittis, beirand and conteneand as is abovewrittin, off the dates respective abovespecifeit, and 
 be the productioun of divers utheris writtis and probatiounes, — Lyke as wes cleirlie understand to the saidis 
 Lordis, — 
 
 And TiiAiRPom thej betreit and rescixdit, retbeitis, kescindis, and annullis, in maner 
 THE SAID Decreit Eeductive, and REPONis and restoiris the said Erll aganes the samen, as said is,- 
 
 And ordaind lettres to be direct heirupoun in forme, as effeiris." 
 
 in 
 
 (14) Setour, penult. April 1630, of James seventh Earl of Olencairn to Alexander Earl of Qlen- 
 caim, his greatgrandfather's greatgrandfather, the patentee in 1488, — an additional recogni- 
 tion of the Patent,^in conformity with tlie recognitions in 1515—6, in 1516—7, in 1550, and 
 in 1610.— From the Records of Chancery.—' Minutes of Evidence,' p. 32.— (Referred to 
 supra, p. xliv.) 
 
 (No. CI.) 
 
 " Hec Inquisitio facta fuit in pretorio burgi de Dunbertane, die penuUimo die {sic] mensis Aprilis, anno Domini 
 ilksimo sexcentesimo trigesimo, Coram . . Villielmo Sempill de Foulwod, Vicecomite principali Vicecomitatus de 
 Dunbartane, et Joanne Dennestoun de Dalquhorne, ejus Vicecomite deputato ejusdem Vicecomitatus, . . per hos 
 honorabiles, probos, et fideles patrie hommes subscriptos, viz. Joannem Colquhone de Luss, Willielmum Cunyng- 
 harae de Cunynghameheid," &c. " Qui juratl dicunt, Magno Sacramento interveniente, quod quondam Dominus 
 Willielmus Cunynghame, abavus abavi nobilis et potentis Comitis Jacobi nunc Comitis de Glencairne, latoris 
 presentium, obiit ad pacem et fidem quondam S. D. N. Eegis pro tempore existentis ; et quod dictus . . Comes 
 Jacobus nunc Comes de Glencairne, lator presentium, est legittimus et propinquior heres dicti quondam Domini 
 Willielmi," &c. &c. " In cujus rei testimonium," &c.* 
 
 " Alia Inquisitio facta fuit dictis die et loco. Coram dictis judicibus et per easdem Inquisitionis personas, 
 Qui jurati dicunt, Magno Sacramento interveniente, quod quondam Alexander Comes de Glencairne, proavus 
 proavi nobilis et potentis Ccmitis Jacobi nunc Comitis de Glencairne, latoris presentium, obiit ad pacem et fidem quondam 
 S. D. N. Reois pro tempore existentis, etc., ut in precedente retornatu, solo nomine mutato, etc." 
 
 (15) Satificatim, or Crniflrmatim, by Charles I., 21st Jidy 1637, under tlie Boyal Sign 2Iaimal, 
 after fuU inquiry, and in tlie Scottish form of an Inspeximus, of the original and only Glen- 
 cairn Patent 1488, in conformity (as before) with the previous recognitions in 1515-6, 
 1516—7, 1550, 1610, and 1630. — From the Great Seal Register. — ' Minutes of Evidence,' 
 p. 33. — (Referred to supra, p. xliv.) 
 
 (No. CII.) 
 
 " Litera Ratificationis Diplomatis quondam Alexandri Comitis de Glencairne, de Titulo, Honore, et Dignitate 
 Comitis de Glencairne. 
 " Cabolls, Dei gratis,, Magne Britannie, Francie, et Hibernie Rex, Fideique Defensor, Omnibus probis 
 hominibus totius terre sue, clericis et [laicis, Salutem.J Sciatis, quia nos, compertum habentes quod quondam noster 
 jllustrissimus attavus. Jacobus Tertius, Dei gratia Rex Scotorum, perenni [sic] memorie,^er suas LiterasPatentes sub suo 
 magno sigillo, de data apud Edinburgum vigesimo octavo die mensis Maii, anno Domini millesimo quadringentesimo octuagesimo 
 octavo, expeditas, pro causis inibi specificatis, dedit et contuUt in quondam Alexandrum Comitem de Glencairne, 
 Dominum Mmaires, predecessorem predilecti nostri consanguinei Willielmi nunc Comitis de Glencairne, Domini 
 Kilmaires, tUulum, honorem, et dignitatem Comitis de Glencairne, Dominum Kilmaires, omni tempore affuturo 
 nuncupandum, prout dicte Litere Patentes de data predicta latius proportant ; idque secundum easdem prefatus 
 quondam Alexander Comes de Glencairne suique successores continuo a datd predictarum Literarum Patentium dictis 
 honore et dignitate Comitis de Glencairne fruebantur, et sic per nostras nobilissimos progenitores in Parliamento, consiliis 
 publicis, conventibus, et comitiis, estimabantur ; et nos niemoria nostra recolentes bonum, gratum, et fidele servitium 
 
 * This prelimiuaiy inquest is slightly abridged here. 
 
426 
 
 APPENDIX. 
 
 nobis et illustrissimis nostris predecessoribus per dictum Comites [sic] de Glencairne suosque predecessores omnibus 
 temporibus elapsis, absque aliqua violatione fidei aut interruptione, prestitum et impensum ; Idcirco nos, nunc 
 diu post nostram perfectam etatem viginti quinque annorum completam, et post omnes nostras revocationes tam 
 speciales quam generales, Eatificavimus, Approbavimus, et Confirmavimus, tenoreque presentium, ex nostra scientiii 
 proprioque motu, Ratificamus, Approbamus, ac pro nobis et successoribus nostris pro perpetuo Confirmare [sio\ prefatas 
 Literas Patentes per dictum quondam Jacobum Tertium, Scotorum regni [sic], sub suo magno sigillo datas et concessas 
 prefato quondam Alexandre Comiti de Glencairne, de prefatis titulo, honore, et dignitate Comitis, cum omnibus 
 aliis literis patentibus, scriptis, et evidentiis prefato quondam Alexandre Comiti de Glencairne, vel alicui ipsius 
 predicessorum aut successorum, quoad attinet dictum honorem et dignitatem Comitis tantummodo datis et concessis, 
 in omnibus et singulis punctis, artioulis, dausulis, et drcumstantijs quibuscunque ; ac volumus et concedimus, et pro 
 nobis ac successoribus nostris decernimus et declaramus, quod hec presens nostra generalis Eatificatio est et erit 
 tam valida, efficax, et sufRciens ac si predicte Litere Patentes de verbo in verbum presentibus inserentur. Quocirca 
 nos dispensavimus, tenoreque presentium dispensamus, nunc et imperpetuum, prseterea volumus et concedimus ac 
 pro nobis et successoribus nostris decernimus et declaramus, quod pre/ate Litere Patentes, facte et concesse per 
 dictum quondam Jacobum Tertium, Scotorum Regem, dicto quondam Alexandre Comiti de Glencairne, et hec 
 presens nostra Ratificatio earundem, sunt et erunt validum, perfectum, et sufficiens jus et titulus unde prefatus WiUielmus 
 nunc Comes de Glencairne, heredes sui et successores, omni tempore futuro. Mere, quiete, et pacifice prefatis honore et 
 dignitate Comitis, secundum validitatem predictamm Literarum Patentium,fruentur et gaudebunt. Et nos per presentes, 
 in verbo principis, Literas Patentes supra specificatas, et hanc presentem nostram Confirmationem earundem, in 
 proximo parliamento infra regnum nostrum Scotie tenendo, ratificaturas et approbaturas fore fideliter promittimus. 
 In cujus rei testimonium presentibus magnum sigillum nostrum apponi precepimus. Apud aulam nostram de 
 Oatlandis, vigesimo primo die mensis Julii, anno Domini millesimo sexcentesimo trigesimo septimo, et anno regni 
 decimo tertio." 
 
 " Per signaturam manu S. D. N. Regis suprascriptam, etc." 
 
 (16) Summcms, James Earl of Olencairn against Alexander Earl of Eglinton, the Earls of Cas- 
 sillis, ilontrose, and Caithness, &c., 16i7i August 1637 — the initiatory step in the great and 
 final process for precedency hetioeen the Earls of Olencairn and Eglinton befm-e the Court of 
 Session, decided by Decreet of that Court 19ft January 1648, in favour of Olencairn — and 
 which Summons is the foundation on which that Decreet proceeded, and is repeatedly alluded to 
 in it. — From a contemporary copy in the Eglinton Charter-chest. — Printed in the S. Case, 
 Addenda, pp. 187 sqq. — (Referred to supra, p. xliv.)* 
 
 (No. cm.) 
 
 " Charles, be the grace of God King of Great Brittain, France, and Ireland, defendar of the faith. To 
 our lovittis our shirriffis in that pairt, conjunctlie and sewerallie, speciallie constitut, greitting: — 
 
 Our will is, and we chairg yow, that ye peremptorlie sowmond, wairne, and chairge our richt traist 
 
 « Analysis of^he Summons, Glencaibn against Eglinton 
 and others, 16th acgust 1637. 
 
 ' Chakles, by the grace of God, King, &e. to our Sheriffs, &c. 
 greeting, — 
 
 Our will is, that ye Summon, •warn, and charge George Earl 
 OF Caithness, Alexander Eael of Eglinton, John 
 Earl of Montrose, John Earl of Cassillis, their eldest 
 sons and grandsons (specified), the High Treasurer, the Trea- 
 surer Depute, the Lord Advocate, the Clerk of Register, 
 &c. &c.,— 
 
 To appear before Us and the Lords of Our Council and 
 Session and to answer at the instance of William Earl of 
 Glencairn, 
 
 As son and heir of William Earl of Glencairn, against 
 whom the pretended Decreet of Reduction 1617 was 
 given, being therein designated Master of Glencairn ; 
 
 As successor in the dignity of Earl of Glencairn to James 
 Earl of Glencairn, his grandfather, against whom the 
 said Decreet 1617 was pronounced, and in whose hurt 
 and prejudice the Decreet of Ranking ,5th March 1 606 
 was pronounced ; 
 
 As successor in the dignity of Earl of Glencairn to Alex- 
 ander Earl of Glencairn, Lord Kilmaurs, his great- 
 grandfather's grandfather, on "Whom that dignity was 
 
 conferred by JaJIES in., BY A CHARTER AND LeTTER 
 
 Patent under the Great Seal, &c. ; 
 
 And in whose favour We, by our Letter of Ratification 
 under the Great Seal, 21st July 1637, ratified and con- 
 firmed the foresaid Patent granted by James IIL, — 
 
 And who thus hath undoubted right to the honour and 
 dignity of Earl of Glencairn, and sufficient interest to 
 remove all impediments hindering the enjoyment of the 
 
 same according to the antiquity and precedency thereof, 
 and to pursue the Action of Reduction underwritten ; 
 
 And to bring, exhibit, and produce before the said Lords of 
 Our Council and Session 
 
 1. J7w pretended Decreet Seductive 1617, obtained before 
 
 the said Lords at the instance of Eglinton against 
 Glencairn,— whereby the said Lords rescinded the 
 Decreet Reductive 1610, obtained at the instance of 
 Glencairn against Eglinton, and by which Decreet 
 (of 1610) the Lords reduced the Decreet of Ranking 
 1606, by which Glencairn was postponed in rank and 
 place to Caithness, Eglinton, Montrose, and Cassillis, 
 —together with the Summons, &c. &c. on which the 
 said Decreet 1617 proceeded; 
 
 2. The Decreet of Hanking 1606, — whereby Glencairn was 
 
 postponed to the four Earls in question, — but by which 
 power is reserved to such as should find themselves preju- 
 diced by the ranking then made to have recourse to the 
 ordinary remedy of law for recovery of their place and 
 precedency by reduction of the said Decreet of Ranking 
 before the Lords of Council and Session, by production of 
 more ancient and authentic evidence, — together with the 
 Commission, &c. &c. whereon the said Decreet 1606 
 proceeded, — And, 
 
 3. All other charters, writs, &c. granted in favour of the 
 
 said Earls of Caithness, Eglinton, Montrose, and 
 Cassillis, by which they can claim precedency over 
 Glencaini, — 
 
 To be seen and considered by the Lords, and to hear and see 
 the said Decreet 1617, the said Decreet of Ranking 1606, 
 and the remaining writs and evidents particularly and gene- 
 rally mentioned, reduced and decerned to be, &c. &c. null and 
 void, in so far as Glencairn is postponed in place and dignity 
 to the said four Earls thereby ; and to hear and see it found 
 
APPENDIX. 
 
 427 
 
 cowsing, Georg Erle op Caithnes ; Lord Berridell, his sone ; Master of Berridell, his oy 
 
 (grandson) ; our richt trest cowsing Alexander Erle op Eglingtoun ; Hew Lord Montgomrie, his sone ; 
 our richt trest cowsing, John Erle op Montrois ; Lord Grahame, his sone ; our richt trest 
 
 cowsing, John Erle op Cassillis ; Lord Kennedie, his sone ; our riclit trest cowsing and coun- 
 
 sallour, John Erie of Traquhair, Lord Lintoun and Caverstoun, our Hee Thesaurer ; our trustie and weillbelovit 
 counsallour, Sir James Carmichaell of that Ilk, knicht, our Thesaurer Deputt ; Sir Thomas Hop of Craighall, 
 knicht, OUR Advocat; Sir John Hay of Baro, knicht, Clerk of our Registre ; James and Mr. Gilbert Primrose, 
 Clerkis of our SecreittCounsall,and Clerkis to theCommission underwrittin ane(and) Decreitt efterspecifeit following 
 therupoune, and haveares of the forsaid Decreitt and haill proces quherupoun the samen procedit in their custodie 
 and keeping; Mr. Alex' Gibsone, Mr. William Scott, Mr. William Hay, Clerkis of our Sessioun, haveris in their 
 handis of the Decreitt of Reductioun eftermentionat and proces quherupoun the samen proceidit, as followis ; viz. 
 swa manie of them as are not within this our realme, personallie or at their dwelling places, and swa many of 
 them as are furth therof, be oppin proclamatioun at the mercat croces of our burgh of Edinburgh, peir and shoir 
 of Leith, and utheris places neidfull, upoun thrie scoir dayes' wairning, and the Tutores and Curatores of swa 
 many of them as are rainores, if they any have, for thair entress (interest), and all utheris haveand or pretendand 
 to have entres, be oppin proclamatioun at the mercat croce of our burgh of [sic] and utheris places neidfull, — 
 
 To COMPEIR befor Ws and the Lordis of our Counsall and Sessioun at Edinburgh, or quher it sail happin 
 them to be for the tyme, the aucht day of Januar, if it be lawful!, and faillzeing therof, the next la«full day 
 following, in the hour of cans of caus [sic], witli continewatioun of dayes ; to answeir at the instance op our 
 richt trest cowsing William now Erle op Glencairne, Lord Killmaeris, 
 
 Sone and aire of umquhile (late) William Erie of Glencarne, Lord Killmaweris, his father, againes 
 quhom the pretendit Decreitt of Reductioun efterspecifeit was giwin and pronouncit, therin 
 designit William Master of Glencairne, Lord Killmaweris ; 
 
 And alse successor in the styll, tittill, dignitie, and Erldome of Glencairne, to umquhile James Erie 
 of Glencairne, his guidschir (grandfather), againis quhom likwayes the said pretendit Decreitt of 
 Reductioun was giwin and pronounced, and in whais Iiurt and prejudice the uther Decreitt efter- 
 specifeit was giwin and pronouncit be the Lordis Commissioneris for Ranking of the Nobilitie of 
 tliis our kingdome iu maner eftermentionat ; 
 
 And quhilk William now Erie of Glencairne, persewar, is also successor in the forsaid styll, tittill, and 
 dignitie of Erie of Glencairne, to umquhile Alexander Erle op Glencairne, Lord Kill- 
 maweris, hisforgrandguidshire's [sic~] grandschir, in whom the forsaid honor, tittill, style, and 
 dignitie op Erle op Glencairne, Lord Killmavieris, was conferhit, giwin, and grantit be 
 
 OUR MAIST NOBILL PROGENITOR, UMQUHILE KiNG JaMES THE ThIRD, of WOrthie memorie, BE 
 VERTEW OF AND CONPORME TO ANE ChARTOUR AND LeTTRE PaTENT OF THE FORSAID DIGNITIE, 
 
 GRANTIT UNDER THE Gbeat Seall OP THIS OUR KixGDOME, qukerhy the Said umquhile King 
 James [the] Third did mak and creat the said Alexander Erie of Glencairne and his aires in all tyme 
 coming perpetuallie therefter Erlis of Glencairne and Lordis of Killmaweris ; 
 And to and in favoures of the quhilk William now Erie of Glencairne, persewar. We be our Lettre 
 of Ratificatioun, under our Great Seall, of the dait the 21 of Julii 1637 yeires^ haw ratified,, 
 approwit, and perpetuallie confirmed the forsaidis Lettres Patent grantit be the said.umquhile 
 
 and declared by Decreet of the Lords, that the pursuer 
 (Glencaim) is entitled to precedency in time coming, 
 
 jpor tf)E reasons antr causes follotning, bt?., — 
 
 I. The Decreet of Ranking 1606, in so far, &c. : — 
 Because the Decreet 1606 was given against the then 
 Earl of Glencaim for null defence and non-appearance, 
 and therefore the pursuer (Glencaim), as succeeding 
 in the dignity, ought now in the second instance 
 (conformably to the provision in the Decreet and by 
 the law of the realm) to be reponed against the same, 
 and be admitted to produce and use such documents 
 for proving his dignity and precedency as, if produced 
 in 1606 in the first instance, would have sufficiently 
 verified that dignity and precedency. And true it is, 
 that Alexander Lord Kilmaurs, predecessor to the said 
 Earl of Glencaim, WAS created Earl of Glencairn 
 EV James III. on the 28th May 1488; by virtue 
 OF WHICH Patent Cuthbert Earl of Glencaim, grand- 
 son of Alexander, is designed, by Decreet of the Lords, 
 ' Earl of Glencaim ' in 1 504, and sat in Parliament in 
 1505 as Earl — in which Parliament Hugh Lord Montgo- 
 nfiery (^Eglinton's predecessor') sat as Lord only; as also 
 a Charter was granted to the said Cuthbert as Earl of 
 Glencaim in 1507 : — Conformably to the which 
 Patents, Sederunts, ^c. the House of Glencaim have 
 enjoyed the dignity of Earl without question for seven or 
 eight score years, — before which time rume of the four 
 Earls mentioned are able to prove the dignity of Earldom. 
 And, precedency being regulated by antiquity of 
 creation, and neither of the four Earls, defenders, 
 
 being able to shew anterior proof, Glencairn is entitled 
 to precedency : — Which allegiances, if proponed in 
 the first instance, would have been sufiicient to have 
 altered the ranking in the Decreet 1606, and now, 
 being proponed and verified in the second instance, 
 are sufficient to reduce that Decreet in so far as 
 he (Glencairn) is postponed to the said four de- 
 fenders, — 
 
 II. The Decreet of 1617, &c.:— Because the Decreet 
 1617 was only obtained in consequence of the mm citation 
 of Montrose, Cassillis, and Caithness to the giving of the 
 said Decreet, and, the said three Earls being n^w duly 
 summoned, their citation removes the only ground and 
 cause of the reducing the Decreet 1610, and renders 
 the Decreet 1617 null, void, and extinct : — 
 
 The said Decreet 1617 and Decreet 1606 ought to 
 and should be reduced, &c. in so far us Glencaim 
 and his successors are or may be postponed in rank 
 and dignity to Caithness, Eglinton, Montrose, and 
 Cassillis, and their successors ; 
 
 And it ought to be declared by Decreet of the 
 Lords of Council and Session, that Glencairn and 
 his successors have and are entitled to precedency 
 before the four Earls in question and their successors, 
 notwithstanding the foresaid Decreets, &c., 
 
 Jpor li)£ reasons anti causes abobe^ton'ttcn. 
 
 Given under Our Signet at Edinburgh, 16th August 1637, &c.' 
 
 3 I 
 
428 APPENDIX. 
 
 Kirjg- James the Third, of worthie memorie, to and in favoures of the said umquhile Alexander 
 Erie of Glencairne, forgrandsire's guidsire to the said persewar, of the forsaid tittill and dignitie 
 of ane Erie, with all utheris lettres patentis, wriltis, and evidentis, maid and grantit to the said 
 umquhile Alexander Erie of Glencairne, his predecessores or or [sic] successores, of the forsaid 
 styll, tittill, or dignitie of ane Erie, in the haill pointis and articles therof ; and have willed and 
 declaired that the forsaidis Lettres Patentis grantit be the said umquhile King James the Third to 
 the said umquhile Alexander Erie of Glencairne, and our Ratificatioun forsaid of the same, are 
 and sail be valid, perfitt, and sufficient riclitis, quherby the said William Erie of Glencairne, 
 persewar, and his successores forsaidis may bruik and injoy the forsaid honor, tittill, and dignitie 
 of ane Itrle, according to the saidis Lettres Patentis in all pointis ; 
 
 And swa the said William now Erie of Glencairne, persewar, hawing guid and undoutted 
 richt to the honour, tittill, styll, and dignitie of Erie of Glencairne, Lord Killmaweris, 
 and sufficient entres to remove all impedimentis qnhilkis may anywayes stop, hinder, or 
 imped him in the peaceable bruiking and joysing of the samen according to the pre- 
 cedencie and antiquitie thairof, and consequentlie to persew the actioun of reductioun 
 underwrittin, that is to say. 
 
 The saidis defendares to bhing with them, exhibit, and produce befoee the saidis Lordis op ouk 
 
 COUNSALL AND SeSSIOUN, 
 
 [1. The Decreet 1617 :] — The pretendit Decreitt Eeductive, alledgit obtenit befor the saidis Lordis 
 upoun the day of Februar, j° vi' and sevintein yeires, at the instance of the said 
 
 Alexander Erie of Eglingtoun againis the said umquhile James Erie of Glencairne, Lord 
 Killmaweris, guidsir to the said persewar, and againis the said umquhile Master of Glencairne, 
 his sone ; quherby the saidis Lordis alledgit retreittit, rescindit, and anullit ane Decreitt Decreitt 
 [sic] Reductive obtainit befor the saidis Lordis at the instance of the said umquhile James Erie 
 of Glencairne againis umquhile Hew Erie of Eglingtoun, of the dait the sevint day of July, 
 j" vi° and ten yeires, be the quhilk Decreitt Reductive, and for the reassons therin contenit, the 
 saidis Lordis of our Sessioun reducit the pretendit Decreitt efterspecifeit, giwin and pronouncit 
 be the saidis Lordis Commissioneris appointit be our said umquhile dear fayther, of worthie 
 memorie, for the Ranking of the Nobilitie of this our kingdome, quherby the said umquhile 
 James Erie of Glencairne was alledgit postponit in rank and place to the said Erie of Cathnes, 
 Eglingtoun, Montrois, and Cassillis, in manner theirin mentionat; togidder with the principale 
 lybellit sowmondis of reductioun, actis, and lettres of continewatiounes, executiones, and indorsa- 
 tionis, that the saidis sowmondis and lettres, and haill remanent actis, lettres, interloquitores, 
 minutes of proces, groundis and warrands, quherupoune the forsaid Decreitt Reductive, alledgit 
 obtainit at the instance of the said Alexander Erie of Glencairne, was sowmondit and proceidit ; 
 And sicklyk, the saidis defendares to bring with them, exhibit, and produce befor the saidis 
 Lordis of our Counsall and Sessioun, 
 
 [2. Tlie Decreet of Banking 1606:] — The forsaid pretendit Decreitt, giwin and pronouncit be the 
 saidis Lordis Commissioneris appointit for Ranking of the Nobilitie of this our kingdome, of 
 the dait the last day of March, j° vi° and sex yeires, or of quhatsumevir uther daitt or daittis the 
 same be off; be the quhilk Decreitt the said umquhile James Erie of Glencairne was alledgit 
 postponit in place, rank, and dignitie to the saidis Erlis of Eglingtoun, Caithnes, Montrois, and 
 Cassillis, and quherby the saidis Lordis Commissioneris ordainit the haill nobilitie of this our 
 kingdome to keep and bruik their rankis and places according to the ordour therein appointit and 
 sett doune to them, but (without) prejudice to such as souldfind themselffis prejudged to have thair course 
 [sjc] to the Or dinar Remeid of Law for recoverie of thair awin dew places and rankis, be Reductioun 
 befor the Lordis of Counsall and Sessioun of the saidis Lordis Commissioneris their Decreitt of Ranking 
 abovwrittin, and be productioun ofmair ancient lorittis nor was then used and produced befor the saidis 
 Commissioneris in that proces, as the said pretendit Decreitt of Ranking beires, — togidder with the 
 haill Commissione, lettres of publicatioune, executiounes therof, actis of productioune, and all 
 utheris groundis and warrands quherupoun the forsaid Decreitt of Ranking proceidit, and 
 following and depending thairupoun ; Togidder also with 
 
 [3:] All and quhatsumevir uther warrandis, charteris, lettres patentis, erectionis of Erldomis, and 
 utheris writtis, evidentis, and richtis, and tittillis, quhatsumevir, maid and grantit in favoures of 
 the saidis Erlis of Caithnes, Eglingtoun, Montrois, and Cassillis, or ony of them, and their pre- 
 decessoures, or in favoures of any of the remanent personis, defendares abovnamed, and their 
 predecessoures ; be the quhilk they or onie of them claime or pretend to have richt of precedencie 
 and prioritie of place and rank befor the said Willaim now Erie of Glencairne, persewar, in 
 Parliament, Counsall, privat or publick Conventionis or meittingis, of quhatsumevir dait or daittis, 
 tennor or contentis, the samen be of, — 
 
 To BE SEINE AND coNsiDERiT be the saidis Lordis of Counsall and Sessioun, and to heir and sie the pretendit 
 
APPENDIX. ^29 
 
 Decreitt of Bedtwtioun, alledgit obtainit at the instance of the said Alexander Erie of Eglingtoiin againis the said 
 umquhile James Erie of Glencairne and the said umquhile William Maister of Glencairne, his sone, with all that 
 hes followit or may follow therupoune ; togidder with theforsaid Decreitt of the noUlitie [_sk] of this our hingdome, 
 and postponing of the said umquhile James Erie of Glencairne in place, rank, and dignitie, to the saidis Erie of 
 Caithnes, Eglingtoun, Montrois, and Cassillis, with all that hes followit or may follow therupoune; togidder also 
 with the haill remanent writtis and evidentis, particularlie and generallie abovmentionat, callit for as said is, be 
 reducit, retreittit, rescindit, cassit, anullit, decernit, and declairit to have leinfrom the beginning, to he now, and in all 
 tyme coming, null in themselffis, and^ofnaine availl, force, strength, nor effect, with all that hes followit or may follow 
 therupoun, in swafar as be the samen Decreitt and remanent evidentis and writtis forsaidis, or onie of them, the 
 said William now Erie of Glencairne, persewar, his aires and successores, Erlis of Glencairne, is or may be postponit in 
 rank, place, and dignitie, to the saidis Erlis of Caithtes, Eglingtoun, Montrois, and Cassillis, or any of them, or thair 
 successores; and alse, to heir and sie \t fund and declairit he "DecreitX oi the saidis Lordis of our Counsall and 
 Sessioun, the said William now Erie of Glencairne, persewar, his aires and successores, Erlis of Glencairne, presentlie 
 hes and aucht (ought), and sould, and sail have in all tyme coming, the richt of precedencie and prioritie of place and 
 wotting in Parliamentis, Counsallis, Conventionis, and utheris publick and privat meitlingis, 6e/br the saidis Erlis of 
 Caithnes, Eglingtoun, Montrose, and Cassillis, and their successores, notwithstanding of their forsaidis Decreittis and 
 utheris writtis callit for, or of anie uther richt or tittill of honour and dignitie grantit to them, or onie of them, or 
 their predecessoures, 
 
 jTor tf)e rfasssoni'ei anti cau^^iss foUolaing,— 
 
 [i. The Decreet op EANKI^'G 1606:] — 2. [sic] Becaus the forsaid pretendit Decreitt of Banking, 
 giwin and pronouncit be the saidis Lordis of Secreitt Counsall and utheris having his Hienes' 
 Commissioun for that effecl, in anno 1606, quherby the said umquhile James Erie of Glencairne, 
 guidsire to the said persewar, was alledgit postponit to the saidis Erlis of Eglingtoun, Montrois, 
 Cassillis, and Caithnes, quhilk [sic] was giwin againis the said umquhile Jams Erie of Glerxairrui for 
 'iwt compeirance, he newir being lawfullie sowmondit tothegiwing theirof, nor to have produced his 
 evidentis and documentis of dignities, at the least the pretendit Decreitt was giwin againis him 
 for null defence and not compeirance ; and theirfoir the said persewar, as now succeiding in the 
 richt and tittill of the forsaid dignitie in manner forsaid, conforme to the provisioun forsaid 
 contenit in the said Decreitt, and be the law of this kingdorae, aucht now in the secund instance 
 to be reponit againis the samen, and be admittit to produce and use such evidentis and documentis 
 for cleiring of his dignitie and richt of precedencie befor the saidis defenders, or onie of them, as 
 was not producit nor usit in the first instance ; quhilkis evidentis and documentis, incaice they 
 had bein producit in prima instantid, wald have beine sufficient to have verified the said per- 
 seware's guidsire to have beine mair ancient and prior in the dignitie of ane Erie nor ony of the 
 saidis defendares or their predecessoures forsaidis. And trew it is, that the saidis persewares 
 his predecessoures [sic'], viz. Alexander than Lord Killmaweris, forgrandschir to the said said [sic] 
 persewar, was great Erle of Glencairne be our be our [sic] said Eoyall predecessour, 
 of worthie memorie. King James the Third, upoune the 28 op Mat, 1488 yeires, be wertew 
 OP the quhilk patent Cuthbert Erie of Glencairne, oy to the said Alexander, first resawer therof, 
 (the said Alexander hawing beine killit at the feild of Stirling some ten dayes efter the dait 
 therof, and Robert, sone to the said Alexander, died shortlie efter his fayther,) is designit be 
 decreitt of the Lordis, the 12 of March 1504, Erie of Glencairne, and satt in Parliament haldin be 
 Xing James the Fourt anno 1505 as Erie, and was so aoknowledgit be him and be the Estattis of 
 Parliament, in quhilk Parliament Hew Lord Montgomrie, the Erie of Eglingtonis predecessour, satt a 
 lord; likasalso their was [a] chairtonr grantit of the landis and barronie of Hiltoun be the said umquhile 
 King James the Fourt in anno 1 507, to the said umquhile Cutlibert Erie of Glencairne : — Conforme 
 TO THE QUHILKIS pATENTis, documentis, and richtis the persewaris haill predecessores of the Hous of 
 Glencairne hes bruikit the tittill and dignitie of Erie witfiout questiffun, peiceabileie, now be the space of 
 sevinscoir or auchtscoir yeires, befor the quhilkis tyme naine of the saidis Erlis abovmentionat did shaw 
 anything anterior, nether war their predecessoures abill to verifie and shaw the dignitie of Erlis, or uther 
 lawfull creatioun of Erlis, grantit to them or onie of them or thair predecessoures forsaidis. And, 
 seing be the law and practick of this kingdome invioalabillie (inviolably) observit, and be the 
 forsaid Decreitt of Ranking of the Nobilitie of the kingdome in the said yeir of God 1606, it is 
 manifest that amongst nobillmen providit to dignities those who are prior in dignitie and first 
 providit thairto, and are most ancient in the tittill therof, aucht to be and evir preferrit to all 
 otheris being posterior to them in tittill and dignitie, and the said persewar and his predecessoures 
 forsaidis being maist ancient and prior in dignitie befor any of the saidis defendares and their 
 successores in all Parliamentis, Counsallis, privat and publick meittingis, seing non of them are abill 
 to shaw such ancient evidentis of their dignities as the said persewar : — In [sic] quhilk alled- 
 geance forsaid, if the samen had bein proponit in the first instance, wald hav beine sufficient to 
 hav altered the ranking of the saidis perseware's guidschir, and to have giwin him the richt of pre- 
 cedencie and prioritie of tittill and dignitie to any of the saidis defendares, thair predecessoures 
 forsaidis, and now, being proponit and verified in the secund instance, the samen [sic] to reduce 
 
 3 12 
 
430 APPENDIX. 
 
 and anull the said pretendit Decreitt of Eanking swa far as the said persewar and his said 
 guidschir ar, war, or may be postponed in rank [and] dignitie to any of the saidis defendares or thair 
 forsaidis ; and consequentlie sufficient to reduce the forsaid pretendit Decreitt Reductive, alledgit 
 obtainit at the instance of the said Alexander Erie of Eglingtoun againis the said persewar 
 father and guidsir ; and, notwithstanding of the forsaidis pretendit Decreittis, or ather of them, 
 the said AVilliam Erie of Glencairne, persewar, and his successores, aucht and sould have the 
 richt of precedencie, and be preferrit, now and in all tyme coming, in all Parliaments, Counsallis, 
 privat and publick meittingis, to the defendares abovnamed, 01* any of them, or thair successores, 
 perpetuallie in all tyme coming, — 
 
 [11. The Decreet 1617:]— Secundlie, the forsaid pretendit Decreit of Reductioun, alledgit obtainit 
 at the instance of the said Alexander Eglingtoun [sic] against the said umquhile James Erie of 
 Glencairne, guidschir, and William, than Lord Killmaweris, his sone, and father to the said 
 persewar, upoun the said ellevint day of Februar 1617, reducing the said Decreitt Reductive 
 obtenit, at the instance of the said James Erie of Glencairne, againis umquhile Hew Erie of 
 Eglingtoun upoun the sevint of July, 1610 yeires, was oneIjI-e giioin and ohtainit againis the said 
 perseware's father and guidsir upoune this ground, viz. hecaus the Erie of Montross, Cassillis, and 
 Caithness, wha war ranMt after the Erie of Eglingtoun and lefor the said persewaire's guidschir, sould 
 have bein sowmondit and war not sowmondit to the giving of the said Decreitt ; likas the citatioun of 
 them was the onlie ground and reassone of the reducing of the forsaid Decreitt Reductive obtenit 
 be the said persewar againis the said Erie of Eglingtoun, as is manifest be the samen Decreitt of 
 Reductioune alledgit obtenit be the said Erie of Eglingtoun againis the saidis perseware's father 
 and guidschir abovnamed, as at mair length is contenit therin ; and the not sowmondiiig of them 
 being the onlie ground and caus of the reduceing of the said Decreitt Reductive, the saidis three 
 Erlis of Montros, Caithnes, and Cassillis being now sowmondit in this instance, that citatioun eleidis, 
 remowing [sic'], and taiis away the forsaid pretendit reassone and caus of reductioun in anno 1617 
 forsaid, randeris the samen pretendit Decreit and reassone forsaid, therin contenit, merlie null, votd, 
 AND EXTINCT, with all that hesfollowit or may follow therupoun : — 
 
 ^ntJ tf)tiifoir 
 
 The forsaid pretendit Decreitt of Reductioun, alledgit obtenit at the instance of the said 
 Alexander Erie of Eglingtoun againis the said umquhile James Erie of Glencairne and 
 the said umquhile William Master of Glencairne, his sone, with all that hes followed or 
 may follow therupoune; togidder with the forsaid Decreitt of Ranking the Nobilitie of this 
 our kingdome, and postponing of the said umquhile James Erie of Glencairne in place, 
 rank, and dignitie, to the said Erlis of Caithnes, Eglingtoun, Montros, Montros [sic]^ 
 and Cassillis, with all that hes followed or may follow therupoun ; togidder also with 
 the haill remanent writtis and evidentis, particularlie and generallie abovmentionat, 
 eallit for to be reducit, as said is, aucht, and sould he reduced, retreittit, rescindit, 
 CAssiT, ANNULLIT, DECERNiT, AND DECLAIRIT TO BE, have heine from the beginning, to be 
 now, and in all tyme coming, null in themselffis, and op naine availl, force, 
 STRENGTH, NOR EFFECT, with all that hes followcd or that may follow therupoun, in 
 SWA FAR as be the samen Decreittis and remanent evidentis and writtis forsaidis, or anie of 
 them, the saidis William now Erie of Glencairne, persewar, his aires or successores, Erlis of 
 Glencairne, is, or may be, postponit in rank, place, or dignitie, to the saidis Erlis of Caithnes, 
 Eglingtoun, Montrois, and Cassillis, or any of them or thair successores ; 
 
 And alse it aucht and sould be fundin and declairit be Decreitt of the saidis Lordis of our 
 Counsall and Sessioun, that the said William now Erie of Glencairne, his aires and successores, 
 Erlis of Glencairne, presentlie hes, and aucht, and sould, and sail have in all tyme coming, 
 THE richt of precedencie AND pRioRiTiE OF PLACE AND WOTTING in all Parliamentis, 
 Counsallis, Conventiones, and utheris meittingis, privat and publick meittingis, befor the 
 SAIDIS Erlis of Caithnes, Eglingtoun, Montross, and Cassillis, and thair suc- 
 CESSOURES, notwithstanding of the forsaidis Decreittis and utheris writtis eallit for, or of 
 ony uther richt of tittill, honor, and dignitie, grantit to them or onie of them or thair 
 predecessoures, 
 
 JFoi* tf)t itag^oni'g anti causses afiofatDii'ttin, 
 
 according to justice, and for the costis and skaithis to be maid andsustenit be the said 
 persewar thairthrow ; And farder to answeir at his instance in the said matter, in swa 
 far as law will. Makand intimatioun to the saidis defendares, as effeires. 
 
 Attour, that ye lawfullie sowmond, wairne, and chairg 
 
 to compeir befor Us and the saidis Lordis of our Counsall and Sessioun, the said day and place, in 
 the hour of caus, with continuatioun of dayes, to beir kill and suithfast witnessing, in swa far as they knaw or sail 
 
APPENDIX. 431 
 
 be speirit (enquired) at them, in the said matter, under all hiest paine and chairg that efter may follow, as ye will 
 answeir to "Ws therupoun. 
 
 Given under Our signet at Edinburgh, the sexteine of August, and of our reigne the threttein yeir, 1637. 
 Signet the 16 August 1637." 
 
 (17) Deliverance of parliament, 15th July 1641, in answer to a petition presented hy James Earl 
 of Olencaim, requesting the Estates, " as the only proper amd competent judges thereto," to 
 ordain him to " he restored in integrum, against" the Decreet of Hanking 1606 and the Decreet 
 1617 — refusing to entertain the question, and referring the Earl to a "judge competent, as 
 " accords of the law." — Proving that when Paeliament, at a peeiod oe loyalty and 
 
 LAW, WEEE EBQUESTED TO TAKE ITP A QUESTION OF HONOUE, THEY DECLINED TO DO SO, 
 
 AS NOT COMPETENT THERETO. — From the Acts of Parliament, vol. v., p. 337. — ' Minutes of 
 ' Evidence,^ p. 79. — (Referred to supra, p. xlix.) 
 
 (No. CIV.) 
 
 " L. Glencairn his Supplicatioun, and Delyverance thereupon. 
 
 " Unto the Honourable memberis and Estaits of the Soverane Court of Parliament of this Kingdome, now con- 
 venit, humblie menis (means) and schawls Williame Erie of Glencairne, etc. : — Thatquhan, out of my affectioun to 
 the advancement of the publict wark now in hand, and out of my ernest desyre to contribute my best indevors for 
 setling of the happie peace long wissit for and now expectit in this kingdome, and in obedience of the lettres and 
 ernest desyre of the Comittie of the Estaitis of Parliament, requyring my presence at this present dyct of the said 
 Parliament, 1 am now cum heir to attend the Parliament and to doe that dewtie and to witnes that affectioun to the 
 advancement of all our viset endis, as becumes a guid patriat and trew cuntrie-man ; but in the dischargeing and 
 acting of my dewtie and place (as haveing the honor to be ane nobleman and member of Parliament) I doe forsie that 
 I am to incounter with sum difBcultie and scroppell anent my place and dignitie in Parliament, in sua far as be ane 
 pretendit Decreit, gevin againesumquhile James Erie of Glencairne, my guidschir, in anno 1606, be warrand of ane 
 Commissioun from His Majestic for Ranking of the haill Nobilitie of this kingdome, my said uraquhile guidschir 
 wes alledgit postponit in place of dignitie and voce of Parliament [to] the Erles of Cathnes, Montrois, Eglingtoun, 
 and Cassels ; quha, haveing taikin advantage be the absence of my said guidschir, did obtene preference, as said is, — 
 howbeit I and my predecessoris be indouttitlie prior to thame in richtand place of dignitie, as I am hable presentlie 
 to certifie : — Lykas be the forsaid Decreit it is expreslie provydit, that gif any nobleman be thereby prejudgit and 
 postponed in thair just place of dignitie, they sal be hard to seik redress and to be restorit againes the samyne 
 Decreit ;* and accordinglie my said umquhile guidschir upoun prioritie of richt and tytle did obtene reductioun of 
 the said former Decreit,t— quhilk Decreit Reductive wes thairefter reduceitat the instance of the Earl of Eglingtoun 
 in anno 1617, et [sic, lege ex] hoc allanerlie, that the saidis Erles of Caithnes and Montrois wer not callit thairto ;| 
 quhilk wes onlie ane meir defect of formalities without ony farder ground, — so that undoutitlie the prioritie of 
 place, voce, and dignitie doeth justlie pertene to me, — Nather can I guidlie, without prejudice of my place and 
 dignitie, appeir, sit, voce, or ryde in Parliament, unles your Lordships tak the samyne to your consideratioune, 
 as the imlie proper and most competent judges thereto, and efter consideratioun of my rychtis and tytle, to ordane 
 me to be restorit and reponit in integrum againes the saidis Decreitis ; and as it sail be ane greit discontentment 
 to me to be absente or deficient frome the present wark in hand, so I cannot guidlie in honor doe any voluntar art 
 quhilk may wrong my place and dignitie forsaid : — Heikfoib (therefore) I humblie desyre your Lordships to tak 
 the said mater, togidder with my fwsaidis tytles to the forsaid dignitie, to your serious consideratioune, and to 
 appoint and decerne to me my just and richt place, voce, and dignitie in Parliament according to my tytles, quhilk 
 I saM presentlie instruct ; or M^AaVmaj/is, that your Lordships will be pleisit to tak such uthir courss in the said 
 mater as the present greit effairis now depending be not interruptit, nor I wrongit nor prejudgit in my place and 
 dignitie foirsaid, that I may saiflie joyne with the rest of the memberis of Parliament without prejudice, as said is. 
 And your Lordships' answer." 
 
 " Apvd Edinburgh, 15 Julii 1641. 
 
 " The Estaittis of Parliament, haifing takin the desyre of this Bill to thair consideratioune, findis and 
 declairis that Williame Erie of Glencairne his sitting and voyting in Parliament at this tyme shall nowayis be 
 prejudicial! to him in the right of his place whensoever he shall intend persute for the same befoir any .tudge com- 
 petent ; and siclyke, that this answer or reference shall not in any sort prejudge these other Noblemen, or any of 
 thame, in thair richtis or possession, and just defensses of the same, as accoedis of the law." § 
 
 • But before the Court of Session, exclusively. n. §.— In consequence of this refusal on the part of Parliament, 
 
 t That is in 1610. Glencairn resorted, upon his old Summons of 1637, and upou a 
 
 t This is quite correct. Summons of Wakening (or renewal of a dormant process), to 
 
 § On the force of these words vide supra, p. LV, n. | ; ixn, and the Court of Session— as by the succeeding evidence. 
 
432 APPENDIX. 
 
 (18) Concluding portion of the ' Minutes of Process ' between the Ea/rls of Qlencairn and Eglinton 
 before the Court of Session from 1642 to 1648, printed at full length in the Claimants ' Sup- 
 'plemental Case,' pp.ldOsqq.,— on which Minutes (including the successive interlocutors of the 
 Court) the final and riding Decreet 19th January 1648 in favour of Qlencairn likewise pro- 
 ceeded :— Proving, that the whole question and pleadings weeb geaditallt naeeowed 
 
 AND BEDUOED TO THE SINGLE AND SIMPLE POINT, WHETHEB OB NOT THE ACT EeSCTSSOET 
 HAD OUT DOWN THE PATENT 28tH MaT 1488 ; WHICH THE COUET DECIDED IN THE NEGA- 
 
 liVE,— and showing moreover that on the supposition being suggested at the last moment hy the 
 Earl of Eglinton that A new ob second patent of the Earldom of Qlencairn had been granted 
 between 1503 and 1505, that supposition was eejeoted bt the Couet ttnlbss suppoeted 
 BY PEOOF, and was ultimately withdeawn bt Eglinton himself as untenable.— From two 
 ancient contemporary MSS. preserved in the Eglinton CfMrter-chest.—(ReieneA to supra, 
 p. xlv.) 
 
 Preliminary Observation. 
 
 On these Minutes being adduced by the Claimant, through the agents of the Earl of Eglinton, the following 
 conversation took place : — 
 
 " Mr. Attorney Qeneral asked, Whether these Minutes were anything more than private Minutes ? 
 
 Sir FitzRoy Kelly stated, That they were Minutes which purported to give an Account of the whole 
 Proceedings in the Court of Session from their Commencement to their Termination, and 
 which appeared to him to stand upon the same ground as the Note taken by Mr. Robertson of 
 the Opinion delivered by Lord Loughborough in the Qlencairn Peerage Case; that he did not 
 offer them as evidence ; but that in order that they might be before the Committee he wished to 
 prove that they came from the Eglinton Charter Chest, and that they were in the Handwriting 
 of the Period. 
 
 The Counsel was informed. That as this paper was not offered in Evidence, it was unnecessary to 
 hear any Evidence with respect to it." 
 
 — ' Minutes of Evidence,' p. 53.— The Claimant need only add that at least as much weight must be 
 assigned to this evidence as to the report of Lord Loughborough's Speech, to which so much importance 
 has been attributed in this case; and this a fortiori, when the Crown and the Committee lay such 
 unbounded stress upon the unauthenticated narrative of the herald Young, as given supra, p. 412. 
 Moreover the Minutes in question were produced and are expressly referred to and founded upon in the 
 (illegal) Decreet of Parliament 9th March 1649 {infra, pp. 475, 480, 482). And they are adduced by 
 the Claimant from the Charter-chest of the unsuccessful competitor. On the character of these Minutes 
 see the Address, supra, p. ix, note * ; and, on the character of the Counsel engaged on both sides, the 
 Analysis, supra, p. xlv. 
 
 (No. CV.) 
 " The Mynutis of Proces." 
 
 ^ ^ ^F ■?(• * ** 
 
 " 28 Decembris 1642, partibusut supra.* 
 ***** 
 
 My Lord Advocat \ et Nicolsone | [for Eglinton, &c.] § resuraet their former disput, for urging the 
 
 persewer to instruct and condiscend upoun the pedigrie lybellit ; and alledgit, quhat is necessar to be lybellit 
 
 most be notourlie knowin or instructed, and it being necessar to be lybellit that the persewer is succeseour to Erie 
 
 Alexander," theirfor most be instructed. And he repeitis his alledgeance now against the 
 * Of which there could r i ,■ i i i v i i i • • t i n. 
 
 not be a doubt,— while thus reason 01 reductioun, that the persewer most condiscend, becaus this enumeratioun lybellit 
 
 revertingtothePateiitl488 is onlie of 7 degreis, being foirgrandsire's guidsir to the persewer, and, being condiscendit 
 
 upoun, he ofFeris to prove 10 degreis. 3 [sic]. The persewer most condiscend, becaus, he 
 
 condiscending, Ik offeris to prove that some of his predecessoris was onlie Lordis KUmaweris, as Cuthbert sone to Alexander, 
 
 as salbe instructed be ane Decreit recoverit at Normand Drummondis instance against the said Cuthbert, designing him 
 
 onlie Lord Kilmaweris, and also "William sone to the said Cuthbert, designit Lord Kilmaweris. 3°. The Summondis 
 
 b Then r as 11 ^^ ""*' relevant, not being lybellit that the persewer is air of lyne, becaus the patent is ather 
 
 the heir of line, as well as personall or to the airis of lyne, and cannot interest except he lybell as air of lyne, quhilk 
 
 ^''' "^''- most be instructed.*' 
 
 Answeris Sir Lues Stewart [for GlencairnJjIT — thair is no necessitie of condiscending or instructing 
 in respect of his lybell, quhairintill the perseweris title and entress is sufficientlie qualifeit to give him entress to 
 
 "•.The preceding portion of the 'Minutes' relates to mere § The notices "for Eglinton, &c.," "for Glencairn," and 
 
 preliminary points, unconnected with the substantial merits of " Interlocutor," inserted within brackets, are added by the 
 
 the question. The portions omitted, the absence of which is Claimant for the sake of clearness, 
 
 marked by asterisks, are likewise of this description. || These marginal notes are by the Claimant, and given as in the 
 
 ■|- The celebrated Sir Thomas Hope, of Craighall. Supplemental Case. 
 
 j Sir Thomas Nicolson, acting for Eglinton and all the de- *[ Sir Lewis Stewart, of Kirkhill, the first legal antiquary of 
 
 fenders. He was one of the most eminent lawyers of the age. his time. 
 
APPENDIX. 
 
 433 
 
 call for reductioun of that Decreit, quhairby he is postponit to the defender vvha does not clame any entress to the 
 aires of blood of any of the perseweris predicessoures, and sua is jus tertii to them wha cannot be hard to impugne 
 the title of dignitie ; and craved that the word guidsir may be mendit in the lybell, and say forgrandsire's grandsir. 
 Nather is thair any necessitie of condiscending, except the defenderis wold alledge them to be narrest of blood nor 
 (than) this persewer, of the quhilk exceptioun they ar not declairit nor of any uther that they can propone to 
 annull the patent, or for mantenance of their precedencie. leather can any alledgit designatioun of any of t?ie per- 
 seweris predecessoris interveneing betwixt Erie Alexander infer ane annulling of the patent, hot that they micht thaireftir 
 assum, thair dew title and sit as Erlis when they pleisit by the Kingis allowance' quhilk is cleir by „ ^ . , ^^^ King's 
 the Rollis of Parliament producit, both of King Jamis the 4 and 5, and Quene Maryis allowance, but de jure, as 
 tyme, quhairby it will be evident that the Erles of Glencairne are prior in the EoUis, and }°u,.\°„stauce' '^'"^^ 
 satt as Erlis, when the Erie of Eglingtonis predecessoris is designit Lordis Montgomrie. — 
 And contendis that this persewer hes no necessitie to condiscend or instruct any farder bot that his Lordship is 
 successor to Erie James against whom the Decreit of Precedencie in anno 1606 was recoverit, quhilk Erie James 
 was successor to Erie Alexander, becaus be the expres reservatioun in the Decreit ar [sic] pairties grevit thairby 
 ar to have their redress befor the Judge Ordiner be productioun of mair ancient titles of dignitie nor (than) was than 
 producit, quhilk wold than have bene sufficient if Ihe pairtie postponed had compeirit, as is now done in this 
 instanc ; and sua, haveing lybellit and condiscendit successor to Erie James who is acknowledgit be the same 
 Decreit be the ranking of him immediatlie eftir the defenderis to be successour to his predecessoris in the dignitie, 
 quhilk is sufficient. 3. This persewer cannot be urgit to produce any farder to instruct his pedegree nor was 
 producit be the Erie of Eglingtoun for instructing his pedegree, quhairunto he was not urgit the tyme of the 
 Decreit, — no moir now this persewer in this instanc. 
 
 Answeris Advocatus et Nicolsone [for Eglinton, &c.],— the defenderis hes guid entres to impugne 
 the lybellit interest, for if the Summondis be cassin,"" they bruik their dignities conforme to 
 
 , . . , , . , -r^ , ^ T^ 1- , 1 • • i.u' T/in '' That is, if the patent 
 
 their wonted possessionis, and quhair the Erie of Eglington hes bene m possessioun thir 141) ^^gg ^^ rejected. This is 
 
 zeires," and sua tliey have jus projmum to exclude the perseweris entrest. Nather can the very impoi-tant. 
 
 persewer mend his Summondis, bot most summond the defenderis de novo. And to the c ^^^ ^-^^ f^^_ 
 
 reservatioun in the Decreit 1606, that cannot be respected to tak away this exceptioun, that 
 
 the perseweris pedegree most be instructed ; for he contendes that if any pairtie had compeirit and have urgit the 
 
 Erie of Eglington to instruct his pedegree, the samyne behovit to be shawin, and sua the reasone cannot be 
 
 relevant unles the pedegrie war condiscendit upoun. And repeittis the Lords' interloquitor, reserveing this 
 
 alledgeance in causd. And ffarder alledgit their difference betuix this persuit of reductioun and declarator of 
 
 richt, and that quhilk was done befoir the Commissioneris wha gave the Decreit, quhair this exceptioun was ever 
 
 competent, that some of the Erie of Glencairne's predecessoris, they being condiscendit upoun, war onlie Lordis 
 
 Kilmaweris, quhilk was ane passing from any prior patentis. And offeris to prowe that diverse of the pedegrie, being 
 
 condiscendit upoun, efter Erie Alexander, war onlie Lordis and sua inrolled in the Parliament Rollis, and be uther 
 
 authentick writtis. 
 
 Answeris Stewart [for Glencaibn],— He opponis the Lordis Interloquitour and title and reasone 
 lybellit, that the persewer is successor to his guidsir, wha hes [sic] acknowledgit ^ which evidently no party had ever 
 be Decreit lybellit of Ranking to be successor to Erie Alexander, except the heard of. This allegation was after- 
 defender will alledg that the said persewer bruikit the honor with ane uther ^^^g^^^^^' I'nteKor rf^'the Co{7t', 
 patent grantit efter this in 1488.'' And albeit any efter Erie Alexander had bene p. 445. He ultimately retracted it, 
 designit Lord of Kilmaweris, that wold not have excludit any of the succeeding in the '»/™' P- **8- ^^ ^^ 
 
 blood to assum the title of Erie, thair being no claus irritant in the patent.' 
 
 19 Januarii 1643, partibus ut supra. 
 
 Stewart, for the persewer, for instructing of his title and pedegrie lybellit, producit Erie James his 
 retour,' quhairby he is retourit air to Erie Alexander, to quhome the patent is grantit anno ^ ^^ ^^^^^ ^^^^ ^^^^^^^ 
 1488 ; and cravit that the Summondis may be mendit in the enumeratioun of the degreis „„ by the Claimant. 
 conforme to the retour, beiring Erie Alexander to be foirgrandsiris forgrandsir to Erie 
 James. 
 
 Advocatus and Nicolsone, for the 3 noblemen defenderis, compeirand be the Erie of Eglintoun, Caith- 
 nes, and Montrose, alledgit absolvitour, and that the persewer cannot be hard to crave preferren^e be vertew of ths 
 patent grantit to Erie Alexander, becaus the samyne is annullit and rescindit be diverse Actts of Parlmmsnt, as in the 5 
 Act of King James the 4,^ quairby all donatioun of landis, creatiounis of mw digniteis, ar ^ ^^^ ^^^ Rescissory. 
 annullit, grantit be his Majestie's father, efter the 2 February 1487, and the cans expressit in 
 the 5 and 14 actis in the blak book, becaus the samyne war granted/or assisting his father m perverse counsall at the 
 feiU of Stirling, quhilk is the reasone of the granting of this patent, as the samyn beires, ffor the said Alexander his 
 cuming to the armie at Blacknes with his freindis befor the feild of Stirling ; and the samyn being rescindit, the 
 persewer cannot ascryve any richt thairto-especiallie seing Cuthbert, sone to Alexander satt m P^>ament that 
 same yeir tn anno 1488, as Lord Kilmaweris, when the Act Eescissorie was voited, [and] m anno 1492 and 1498 
 
434 APPENDIX. 
 
 resavit infeftmentes under the great Seall as Lord Kilmaweris, quMk most imply ane direct passing from the 
 
 patent and acquiescing to the rescissing therof. — 2. The patent, in sua far as concernes 
 
 "■ No; the rule in Law reddendi ,, . , . i ■/.•. ^ i ^.^^.1,1 j-„ «„ ™„;» 
 
 singula Imgulis here applies. Vide S. the landis disponit thairintill, IS reducit, and if It stand not for the landis, no moir 
 
 Case, pp. 75, 137 ; and supra, p. riii. g^n it stand guid for the dignitie." 
 
 [Answeris] Stewart [for Gxencairn], — ^This exceptloun is not corapitent to no subject bot onlie to the 
 
 ^ Kingis Majestie, wha is the funlan of all honor. And opponis the Ratificatioun,'' quharby 
 
 ' Precisel theCIaimant's *^^ ®^™® patent is ratifeid " in omnibus et singulis punctis quoad dignitatem."— 2. As for 
 
 argument, S. Case,' p.Vg; the Actis of Parliament annulling giftes and dotiationis, the samyne is onlie ofcreationis of new 
 
 supra, f-p. XX sqq. dignifeis prejiidiciall to the Croun," of which nature this patent of Erie cannot be estemit, thair 
 
 h ^hrCLta-rpreamhle **'"5' ^^'^V Erlis created ofhefoir, or digniteis or donationis prejudiciall to the Croun, quhilk nwst 
 
 of the Montrose regrant onliefall wider the compas of the act, as the Duik of Mmtroise,^ thair not being any Duik befoir 
 
 18th Sept. 1489. j^-^ j^^ ^j. ^j^ j^^^ ^^^^^^_ ^^^ -^ j^.^ j^,^^ ^^^ 4 ^^ ^^^^^ Parliament, quhair that act of 
 
 1489^90 ''^"Vrinted^ s™r7 ^^^fi''^^ Parliament is explanit,' thair is no mentioun of dignitie bot onlie donatioun of landis, with 
 p. 381. ' ' ane certificatioun, quhilk posterior act of [sic'] explanatorie of the first mast be ane passing from the 
 
 ' Again the Claimant's first for quhat is not ratifeit in the secund ;' for it seames that cam efter the Duik of Montrose his 
 ZT^wm, p.'cx^r ^' '^^' %*"^ *™ ^^ dignitie,'^— the prior act was satisfeitand rehersit passed from except donatioun of 
 
 " He never laid it ao\Tn landis and offices. Nather can the caus of rescissioun mentionat in the actis of the blak book 
 —see note* below. This militat aganis this patent, becaus the samyne was grantit for assistance [io] his Majesteis persone. 
 "JffnfoiTaTionT" ™°' "^ Nather can it be qualefeit that Erie Alexander vvas partaker or had any hand in that evill 
 counsall, he having onlie come to Blacknes to the armie about aucht dayes befoir the battell 
 of Stirling, for Buchanan makis mentioun thair was non with his Majestie bot sura of the boyis or of the barest 
 sort, sua it cannot be thoght that Erie Alexander was with the King or pertaker of the evill counsall. — 3. [In] the 
 Decreit of Ranking be the Commissioneris of Parliament Erie James is rankit immediatlie efter these defenderis, 
 quhairto they acquiesced, and he acknowledgit Erie, quhilk most be ascryvit to this patent except they will snhaw 
 he bruikit be ane uther title. And albeit Cuthbert sat in Parliament in the trublsum tymes efter King James 3 deceis, 
 that Gould not debar him from assumeing that dew place quhairto he had a richt quhill \sic~] lie pleisit, thair being no claus 
 
 " The Act Revooatory, irritant in this patent to mak him lose the benefit thereof.— 4. He opponis the Revocatioun^ maid 
 
 1503, founded upon also jg Xing James the 4 in the end of the G parliament, with advyse of tJie Esteatis, [which] revokis 
 
 Claimarf^'^S™ Cas" p^ 32, <tll c^tis and statutis done in prejudice of the Kirk, Saull, or Croun, upoun remorse, within the 
 
 and supra, p. cxxvi. quhilk Revocatioun any actis done in prejudice of these who had assisted his father in persone most 
 
 be apprehendit, speciallie seing in the yeiris of God 1505 they ar sitting as Erlis, ressavit as Erlis, and acknawledgit sua be 
 
 King and Parliament, and resaveing infeftmentis, quhilk cannot be ascryvit to no other richt bot this patent, — nather 
 
 . „, , , „^ war [sici ther any uther title. And to the Jieductioun,' the samyne is onlie of landis quhairintill 
 ' Of the lands of Drum- ljo" t^ t r, j ■ i ■ 
 
 mond and Duchray by De- Alexander was nevir infeft, nor Cuthbert retourit to landis, bot King James 3 deit last vest jure 
 
 creet of the Supreme Civil Corone, and not richtlie recoverit conforme to the lawis of this cuntrie, quhilk is the caus of 
 Court 12th Jan. Ial6, for ' „„,,,. -^ , . , ■ • ■ -n i- 
 
 which vide S. Case, p. 66, reductioun, for thair not being infeft m the landis. Bot he opponis the sitting in Ji'arliament 
 
 and supra, pp. 415 sqq. j„ ^„^g j^gQS, efter the Revocatioun in anno 1503, as Erie, quhilk most be ascryvit to the first 
 
 " No; theGlencairnsre- pj^^^ENT, beinff with consent of the King and Parliament, wha was the interpreturis of thair 
 sumed the honour ae ^Mre, 'o o j..j. 
 
 on the same principle as in awin actis ; for any intromissioun (intermission) was onlie m respect of the tymes, and it is ordinar 
 the Norfolk case. And the j.^ 2;jtj„jg jq revive honoris that had sum intromissioun, as war done to the Erie Nithisdaill 
 
 Nithsdale case is not appli- ° 
 
 cable. efter the restoring of the Erie of Mortoun.*- 
 
 Answeris Nicolsone [for Eglinton, &C.J, — the defender hes competent entres to exclude the persewer 
 from anterioritie upoun ane null richt. And he declairis he proponis this onlie for tliat end, that the defender may 
 ' There was no such bruik his place conforme to his 140 yeires' possessioun.' — 2. The Decreit of Ranking gives 
 possession, but e contra. \^[,^ entres to object against any title of anterioritie to mainteane the defenderis precedencie. 
 And to the secund member of his reply he opponis the Actis of Parliament, and contendis that this creatioun in the 
 Patent most ever be thoght new, being new to the ressaver, and ergo revokit. And if this creatioun of Erie to the Hous of 
 Kilmaweris he not 7iew, nae mair can that of Duik \to the] Hous of Montrose, thair being many Duikis in this natioun 
 befor his creatioun. And opponis cleirlie prejudiciall to the Croun, the tyme and caus of the granting of the patent being 
 for assisting of the King at Blacknes, and from thence to Stirling, quhilk is the caus quhairfoir the samyne is annullit, at 
 length sett doun in the 14 act of King James 4 in the blak actis, for his assistance to his Majestie in perverse cou7isall 
 contrair the commone guid of the natioun. And for ony of Alexander his successoris sitting as Erlis be connivance of 
 the King or Parliament, he does not quarrell the samyne bot to quarrell this Patent annulled. And to the Revocatioun 
 1503, thair is no expres revocatioun of thair actis quhairby the actis are annullit, bot the wordis ar devisit sic Actis as ar 
 prejudiciall to Kirk, Croun, or Saull. Bot sua it is, that their actis ar standing actis, and cannot be imployit under 
 the Revocatioun, never being deleit. And to the alledgit innovatioun and passing fra the first revocatioun in the 
 first parliament be the subsequent act in the 2 parliament, that cannot be respected except the first war repellit 
 
 * The Earl of Eglinton was quite unaware of the new evi- Had Eglinton or his advisers known of the important Gray 
 
 DEKCE IN DIRECT KEFCTATiON OF THE ABOVE HYPOTHESIS — • -writs, Only first adduced by the Claimant from a private reposi- 
 
 neither known nor adduced before — legally proving the constant tory in a remote county unconnected with Ayrshire, and her- 
 
 use by Duke David of the Ducal dignity, as well as of the Ducal metically sealed to them — they "would not have argued as they 
 
 insignia, even in the King's presence — with his recognition did, in blind assumption and confidence, 
 accordingly — all subsequently to the date of the Act Rescissory. 
 
APPENDIX. 435 
 
 (repealed) be the secund, fFor it is ordinarie that 2 actis for ane purpois may have their awiii sewerall ordinancis, 
 and the ane not destructive of the uther. And that quhilk was done in favoris of the Erie of Nithisdaill does not 
 meitt this caice, for that was ane gift be the King of ane dignitie with that antiquitie he bruikit befor the restoiring 
 of the Erie of Mortoun, nather was his dignitie revokit, quhilk is the caice heir." And to » True. There was no 
 the last point foundit upoun the Revocatioun [Ratification] purchest from King Charles, 'evocation. 
 that cannot be respectit, being 1 . Purchest surreptitiouslie suppressd veritate, not having notified to his Majestic 
 that the patent was revoked in parliament: — 2. Purchest upoun sinistrous inforraatioun that the Erie of 
 Grlencairne was still in possession of that title efter the patent, and sua estimat in parliament and counsallis : — ■ 
 3. That confirmatioun cannot tak away ane act of parliament quhilk does revok that patent to mak the samyn 
 revive, except it war done be his Ma,jestie with advyse of the Esteatis. And be ratificatioun his Majestic did 
 promeis to ratifie the patent in the nixt parliament thairefter, quhilk being socht from his b There is no proof of 
 Majestic, efter dew informatioun was refuisit in the lait parliament.'' such refusal. 
 
 Answeris Stewart [for Gi,encairn], — he opponis this Patent, quhairto he ascryvis his possessioun in 
 sitting at parliament be the acknawledgment of King and Esteat, and Ratificatioun thairof, as Erlis, quhilk most be 
 be vertew of his prior patent, there being no uther richt quhairby he can injoy the dignitie, the perseweris predecessoris 
 being Erlis and sitting Erlis in Parliament when the defenderis predecessoris war onlie Lordis Montgomrie, and 
 the perseweris predecessoris anno 1505 sitting in Parliament Erlis and acknawledgit be the King and Parliament, 
 quhilk does imply ane direct passing fra any alledgit revocatioun in his first parliament, this being done be his 
 Majestic, quha maid any alledgit revocatioun. And his sitting thus in parliament within 16 or 17 yeires efter the 
 granting of the patent, his sitting and place can be ascryvit to no uther richt, being ane act following his Majestei's 
 revocatioun ob prejudicium in anno 1505, that he could not doe any act mair prejudiciall for his Majestei's honor 
 nor (than) sie thir restorit to thair dew titlis wha had sufferit for his father. And he oppones the Ratificatioun 
 grantit be his Majestic, of certaine knowledge, not impugneing any act of parliament. Likas the treuth of pos- 
 sessioun is constant be the rolroentis of Parliament, and the perseweris predecessoris infeft under the great seall 
 with all uther authentik writtis. Nather was it requisit that the Kingis Majestic sould have bene informed of the 
 actis of parliament. 
 
 24 Januarij 1643, partibus in processu. 
 
 Stewart [for Glenxairx] craved his reasone to be red as it standis now mendit, and produced the Decreit 
 
 of the daite the 12 Merche 1504 be the Lordis, and ane chartor granted to Hew Lord Montgomrie, 27 Nov. 1506, 
 
 with ane chartour granted to Cuthbert Erie of Glencairne, 27 Febr. 1507, with diverse sederuntis quhairby the 
 
 perseweris predicessoris are sitting Erics and the defender the Erie Eglintoune's predicessoris sitting Lordis ; and 
 
 be the Decreit recovered at Dormond Drummondis instance against Cuthbert ' he is designit " The Decreet of the 
 
 Erie, and Alexander Erie ; and there is na mentioune thairin of the patentis or honor Supreme Civii Court, 12th 
 
 ' .... ■'^°- 1516> on which the 
 
 therintill, but only of the landis. And he usit these writtis for cleiring his title and reasoune Claimant similarly founds. 
 
 to the Judg. 
 
 NicoLSOKE [for Eglinton, &c.] resumed his former dispute, and cravit answer thereto, and aledgit that 
 the additioun and mending in the Summondis cannot be respected, bot liie persewer must insist as the sumraondis 
 stood befoir mending ; and as the caus «es reassoued and left in the Lordis handis, efter full heiring, the persewer 
 cannot be hard to eik now efter dispute without warrand to eik in substantialibus now efter divers Interloquitoris : — 
 2°- He cannot add, there being ane pertie absent, bot he behoved to be summond, this additioun being ane new 
 summondis :— 3°. Thir defendaris came prepared to answer to the summondis as it stood, and now, this being ane 
 new summonds, the pertie must be cited of new, — and oppones the practique betuixt the Erie of Mar and the Lord 
 Elphingstoune. 
 
 Answeris Stewart [for Glencairn], — Any mending, that is not foundit upone ane new ground bot his 
 prior patent, and this is bot to cleir the actis of Parliament allegit and his predicessoris possessioun, and that the 
 meaneing of the actis of Parliament did not militat against the patent ; and the defender hes na prejudice be the 
 mending more nor giff he had replyed that whilk is mendit, — and als, that this Patent cannot come within the compos 
 of the Act, becaus not prejudiciall to the Croune, quhilk is only the ressoune and caus of the making and granting the 
 act 1488 ; and the mind of the law-giver is declaired be the Kingis Majestie and Parliament ™ ^ „ 
 anno 1505, acknawledging Cuthbert to be Erie,"- and be his sitting constat de mente legislatoris, view, by theTe'cognitL by 
 specialie seinj? it cannot be schawine, neyther be story nor uthyrwayes, that Erie Alexander James IV. of Duke David 
 
 '^ ° . ,-_.,. .,..,. as Dulte subsequently to 
 
 wes pertaker of the perverse counsall given to the King, this perseweris predicessoris being jj^^ ^^^^ Rescissory. 
 in possessioune be vertew of the patent. 
 
 Answeris Advocatus [for Eglinton, (Src.J— He craves thebenefeit of the Lordis interloquitor, in respect 
 the persewer does not insist as the Summondis stood unmendit the tyme of the interloquitor, and now must be 
 delayed quhill the first of Junij : — And to the Patent," it is cleir the samyne fallis within the « Tlie great element of 
 act, being granted " pro assistentid," as the samyne beires, and remaneing with his Majestie during discussion in the case. 
 the discorde, and swa will fall under the act, the ressaver of the patent being present at the feild, whilk is the caus of 
 the making of the act and reasone of the Estaittes their procedor against them wha did assist the contrair, to the 
 more guid of the countrie. 
 
 3 K 
 
436 APPENDIX. 
 
 Answeris Stewart [for Glencaikn], — The Act is repelled (repealed) be ane posterior Act in the 2 Parliament,'^ 
 
 " Tfi 4 f <; ^'^'^ ^^^ perseweris predicessoris diutina possessio, — and quhere the law is dubius, recurrendum 
 
 ary to the Act Rescissory, ad posteriores leges to cleir any prior lawes ; and quhere the law is hard, recurrendum ad legem 
 
 15Feb. 1489-90, for which heniqniorem ;^ and therefore contendis that the act rescindis nothing hot what is vreiudiciall to 
 
 vide siinrct T)381 •• -*■' 
 
 •> In strict interpretation ^^« Croune ; and the law is interpreit he the posterior sitting as Erie, and must be ane interpre- 
 of the Act— favourable to tatioune in favoris of the sitter conforme to his owne place, — and posterior cariage of the prince 
 
 " The Claimant's aro-u- w^^ *^6w ^^O'i ''« ^^'^ remorse for his faytheris death," and consequentlie wald not doe any deid in 
 ment. S. Case, p. 32, and prejudice of these wha had bene killed in defence of his faytheris persons : — And oppones the 
 ' ' perseweris 160 yeeres' right, and ratified by King Charles, quha is the fountaine of honour, 
 
 and the defender cannot be hard to quarrell the patent, being ratified, — and therefore oppones the ratificatioun and 
 designatioun of the perseweris predicessoris [as] Erlis both in Parliament and writtis under the great seale, whilk 
 cannot be ascryved to any right but this patent. 
 
 Answeris [■ for Eghnton],- — He reservis the narrative of the patent and actis of Parliament of King 
 
 James 4, and 14 act in the book of the black prynt, et ratio semper terminat legem; and craves first ane answer anent 
 the mending of the Summonds. 
 
 25 Januar 1643. 
 
 The quhilk day my Lord Kerse declaired he wald declyne himselfF, and wald not voite in this caus, becaus 
 he wes not satisfeid whidder (whether) he wes imployed in this caus be the Erie of Eglintoune or not.* 
 
 [Interlocutor.] 
 
 The Lordis ressaves the ehc , and findis na necessitie of ane new citatioune ; and 
 continewis all farder proceiding in this caus quhill the first of junij nixt, at 
 quhilk tyme oedawes all the perties to produce all writtis whilk they will 
 anywayes use in this caus for cleiring their rightis of precedencie, and then to 
 answer without sight of proces or any writtis eot sich as hes not bene produced 
 
 OF BEFOIR AND SALL BE THEN PRODUCED. AND THE SAIDIS LORDIS DECLAIRES THAT THEY 
 WILL THEN PROCEID TO ADMINISTRAT JUSTICE WITHOUT DELAY, RESERVANT TO THE PERTIES 
 
 THEIR OBJECTIOUNES contra prodiicenda. 
 Advocatus [for Eglinton, &c.] craved ane sight of thois writtis whilk are alreddie produced. 
 
 [Interlocutor.] 
 
 The Lordis ordaines the defenders to sie the writtis, ajsid that the [they] be repro- 
 duced to the clerk betuixt and the twentie of Tebruar nixt. 
 
 23 Novembris 1643, paribus ut supra. 
 
 9 Fehruarii IGU, partibw ut supra. 
 To sie. 
 
 Prima Junij 1646, partibiis ut supra. 
 To sie. 
 
 8 Junij 1647, partibus ut supra. 
 With Murray /oi" the Erie Caithnes. To sie ut processu in Nicolsone's hous. 
 
 23 Novembris 1647, partibus ut supra. 
 
 4 Decembris 164.7 , partibus ut supra. 
 
 Stewart et Hepburne [for Glencairn] produced certaine writtis, whilkis they were content sould be 
 given to sie ; and craved that the defenderis procuratoris may produce any writtis they will use, conforme to the 
 Lordis interloqutor, and to be readdy to answer against Tuysday. 
 
 * This was Sir Thomas Hope of Kerse, appointed a Lord of Session in 1641, and who may have been employed as counsel 
 for Eglinton before his elevation to the bench. 
 
APPENDIX. 437 
 
 [Interlocutoe.J 
 The Lordis oedaines the defenderis procueatoris to produce all the weittis they have 
 
 OR WILL USE m THIS CAUS BETUIXT AND WeDDENSDAY NIXT, AXD TO SIE BETUIXT AND 
 
 Thursday as they will be served, and to answer then without delay. And they 
 declaire that na regairde sall be had to any writtis quhilkis sall not be pro- 
 DUCED BETUIXT AND WedDINSDAY NIXT. 
 
 The writtis produced be Sir Lues Stewart were instantlie given up at the barr to Nicolsone. 
 
 8 Decembris 1647, partibus ut in prooessu. 
 
 Hepburne [for Glekcairn] craved that the Erie Eglintoune's procuratoris may reproduce quhat wes 
 produced of befor, and what farder tliey will use in this cans, coiiforme to former interloquutoris. 
 
 Nicolsone * [for Eglinton, &c. j craved, in respect of tlie weightines of this cans and of the numerous writtis 
 produced, that there may be ane farder delay, to advyse the proces and to produce sick writtis as he will use, 
 especialie seing he is bot laitlie imployed in this caus. 
 
 [Interlocutor.] 
 
 The Lordis arydis by their former interloquutoris, and ordainis the defenderis procu- 
 eatoris TO produce all the writtis they will use in this caus presentlie, except 
 they will tak Tuysday of their owne consent to produce, conforme to former 
 interloquitoris ; ^VITH this certificatioun, that they sall not be hard to produce 
 
 any farder bot quhat SALL BE PRODUCED BETUIXT A^^d THE SAID DAY, AN^D THAT THEY 
 BE REDDIE TO DISPUTE BETUIXT TUYSDAY CUM 8 DATES, OF THEIR AWNE CONSENT, WITHOUT 
 ANY FARDER DELAY. 
 
 Octavo Decemhris 1647. 
 
 Nicolsone et Nisbit j [for Eglinton, &c.J allegit that there can not be any sic certificatioun as is pro- 
 uunced in tlie interloquitor, the productioune in the reductioune being satisfied ; and whill the reasone be discussed 
 the defender cannot be urgeit to produce any farder in course of proces, nether can they be haldin to produce any 
 writtis but such as the reason strickis, there being na certificatioun craved by proces; and he contendis that the 
 reasone must be first discussed, for, if he can elyd (elide) this reasone upoune any ground, there can be no necessitie 
 of farder productioune, for the persewer behoved to lybell and instruct ane interes of prioritie befoir the Decreittes 
 called for ; bot, the defenderis proponeing new alledgances upone wreittis, he must have ane day to produce, and 
 cannot in course of proces produce any wreatt before he propone therupone. 
 
 Answeris Stewart [for Glencaibn],— he oppones the proces and interloquitoris, the persewer haveing 
 produced all he will use, and there can be no necessitie of disparitie betuixt the perties, the Lordis haveing taken 
 this course in justice upone the discussing of the reasone, there being exceptiounes proponed upone atiterioritie of 
 wreattis, and this proces is riot onlie ane Eeditctioune bot importis lykwayes Declarator, — nether is the certificatioun craved 
 by the pertie but by justitia by the Judge, as is ordourlie done in diverse processis. 
 
 [Interlocutor.] 
 The Lordis ordaines both perties to produce all the writts they have or will use in 
 
 this caus presentlie, with this DECLARATIOUNE, that na REGAIRDE SALL BE HAD TO 
 ANY WRITTIS BOT SUCH AS SALL INSTANTLIE BE PRODUCED, AND TO DISPUTE THE MORNE, 
 EXCEPT BOTH PERTIES' PROCURATORIS WILL TAK TUYSDAY NIXT OF THEIR OWNE CONSENT 
 TO PRODUCE, CONFORME TO THEIR INTERLOQUUTOR, AND TO DISPUTE UPONE TUYSDAY COME 
 AUGHT DAYES, WITHOUT FARDER DELAY. 
 
 Nicolsone [for Eglinton, &c.J craved that ane contract of freindship betuixt the IIous of Glencairne and 
 Eglintoune, and divers utheris, may be excepted frome the interloquutor, being in Corshillis handis, as is acknow- 
 ledged by his lettre, quhilk he instantlie produced, and therefter wes red ; and the defender hes done dilligence for 
 recoverie therof : And he alledges that it is probabill the contract is in the perseweris handis, Corshill being ane of 
 the Erie Glencairne's freindis ; and craves that the Erie may declaire anent the haveing therof. 
 
 His Lordship declaired that he had not any sick contract. 
 
 Nicolsone [for Eglinton, &c.J craved that he may have ane tyme for recoverie of the contract, flPor, if it 
 were exhibite, it will cleire that the perseweris predicessoris had the precedency both by the write and subscrip- 
 
 * This was Thomas Nicolson the younger, afterwards Lord t Afterwards the celebrated Sir John Nisbet of Dirlton, and 
 
 Advocate. Lord Advocate. 
 
 3 K 2 
 
438 APPENDIX. 
 
 tiounes. And he allegit that if there sail be any new emergent exceptioune upone any writt whilk he will referr 
 to the perseweris oath the haveing therof, it cannot be denyed in justice that there be ane tyme granted for recoverie 
 therof. 
 
 Answeris Stewart [for Glencairn], — Albeit the writt were produced, nihil probat, granting it were of 
 the tennor allegit; nether is the alledgance relevant; and if there be any thing foundit upone any writtis which 
 sail be allegit to be [in] any of the parties' handis, lett thame depone therupone. 
 
 [Interlocutor.] 
 The Lokdis ordaines that if other perties sall heirefter found any alledgances upone 
 
 ANY writt, ALLEDGING THE WRITT TO BE IN THE PERTIES' HANDS, ThAT THEY SALL BE 
 OBLEIST to GIVE THEIR OATH ANENT THE HAVEING THEROF. 
 
 The lettre given up to Nicolsone, wlia, being present with the Erie of Eglintoune, declaired that they 
 acquiesced to the interloquutor, and wald produce on Tuysday nixt, and be reddle to dispute upone Tuysday come 
 aught dayes. 
 
 " 30 Decembris 1647, partibus ut in processu. 
 
 NicoLsoxE [for Eglinton, &c.] allegit absolvitor frome the reasone^ in swa fair as the samyne is foundit 
 
 » That is, from Glencaim's argument, 'u^pone THE PATENT granted be King James the 3. in anno 1488,* becaus that Patent is 
 
 *■ The Patent 28th May 1488, the annulled be am Proolamatioun maid be King James 4., the yeere the samyne wes granted, 
 
 great object of discussion here, and and declaired null as falling under the compas of the said Proclamatioun maid be the said 
 
 °"^ " ■ Kina James 4.,° and Act of Parliament, whereby all creatiounes of new dignities granted 
 
 Nothing is known of this Pre -t v -j x 7 t^- v o 
 
 clamation, regarding whicli vide supra, to any persone since the second day of Februar preceuhng the said Act by King James 3. 
 
 pp. viii, ix. are annulled, as being granted for assistance and perverse counsell gevin contrair the 
 
 commoune guid of tlie realms; and swa this Patent being granted be King James 3., efter tJie 2 Februar 1487, to the 
 
 perseweris predicessor for his assistance to the King by his evill counsell, as the motive caus of the granting therof beires, and 
 
 being granted "pro assistentid etconsilio et adventu ad exercitum de Blaknes," King James 3. haveing gone within some 
 
 few dayes therefter to Stirling, qujiere he wes hilled, cleirlie evinces that the ressaver of the patent wes ane of those evill 
 
 counselloris ; and the evill counselloris are sufficientlie cleired by the 14 Act of King James the 4., and all done in their 
 
 favoris annulled by the 17 Act therefter, — therefore the said Patent, being annulled, can not be ane ground to inferr 
 
 the reasone lybellit, — especiallie the said Alexanderis successoris having acquiessed to the annulling therof by their sitting 
 
 in Parliament as Lordis, which behoved to be in obedience of the said Act ; fFor Cuthbert Lord of Kilmawris satt as Lord 
 
 in Parliament 1489, and there is ane Decreit in favoris of the executoris of the Lord Kilmawris 1491, whilk 
 
 behoved to be the Lord [who] died at Stirling ; and there is infeftment given to Cuthbert Lord Kilmawris, 1492, 
 
 of the landis of Drumalbane ; and they are designed Lordis in anno 1 498, — quhilk cleirlie implyis ane passing frome 
 
 the said Patent in obedience of the Act of Parliament. And this Patent being once annulled, na posterior Act, 
 
 except expres, could raak the samyne revive. Nether can the Act 5, 1488, be thought to be revocked by the 
 
 ^ The Act 15th Feb Revocatiouu 1489,'' except the samyne had bene express, — especiallie the ressaver of the 
 1489-90, supplemeutaiy to Patent his successoris sitting as Lordis after the Patent. And that the meaning was practised 
 
 e c lescissory. upone the Duke of Montrose, wha did quyte his title of Duke and tak ane new Patent for his 
 
 " Mere assumption, and lyfetyme ;° nether can the Act be interp-eit to be of new titles as Duke, bot of all new creationes 
 Montrose ha'vino- held the of new dignities, being new to the receaver. And the Patent, being publictlie annulled, behoved 
 title of Duke and the es- to be publictlie revived by King and Parliament. And he declaires in name of the defender, 
 sequently to the Act Re- that he does not propone thir nullities to quarrell the perseweris right to tjie title of Erie efter 
 soissory, and never having 1505; bot ONLiE AGAINST THIS PATENT. And, to the Eatificatioun by King Charles in 
 the Sme, as harbeen proved 1637, — that Cannot be respected, becaus the Patent could not be revived bot be those wha 
 by the Claimant 61/ £!Bj(?enc(? had annulled the samyne, viz. King and Parliament, the Eatificatioun being obreptitiouslie 
 Montrose party was then ^"^ surreptitiouslie purchased, suppressd veritate that the defender and his predicessoris hes 
 in the field, to contradict bene continuallie in possessioune thir 140 yeeres, and that the Patent wes annulled both by 
 ^gj„^ ' Proclamatioun and Act of Parliament, and insinuating that whilk wes false, that the per- 
 
 ' All or principally pure scweris predicessoris had bene in possessioune.' And to schaw the justice of the prince, 
 assumption. quhen he granted the Eatificatioun of the patent, he ratifies the samyne " secundum vali- 
 
 " ditatem dictarum literarum pateiitium," and, being revocked, it hes na validitie. And by the Eatificatioun 
 his Majestic promises " in verbo principis" to ratifie tlie samen the nixt Parliament, and being craved to be ratified, 
 it was refuised by the Kingis Majestie quhill the defender sould be heard. 
 
 * Duke David might -well ascribe his Ducal possession to the second patent he was premier Duke. The argument urged for 
 patent 1488 in any point of view, for both by the first and by the Glencairn infra, pp. 443, 444, also applies here. 
 
APPENDIX. 439 
 
 6 JaRuarlj 1648, partibus ut in processu. 
 
 Stewart [for Glencaibn] answered to the alledgance proponed be Nicolsone upone the 30 of December, 
 
 that the samyne aught to be repelled, in respect of the Patent, be vertew quherof tlie perseweris predicessmis hes bruiked 
 
 their title of dignitie, [having been'] acknawledged by King and Parliament ever since the granting therof, as is evident 
 
 by Sederuntis in Parliament and Sessioune and uther evidentis lying in proces, as be ane act of Sessioune 
 
 1504," designeing Cuthbert, wha wes oy (grandson) to Alexander, ressaver of the Patent, . j,^^ „f the tords of 
 
 Erie Eobert his father being dead ; and it is evident be Sederuntis of Parliament and Session, 12th March 1504. 
 
 Sessioune that the said Cuthbert is Erie 1505 ;'' and swa, being acknawledged to be Erie by b Sederunt of Parliament, 
 
 King James 4. and Estaites of Parliament, alledged revockeris of the same, na subject can 18* Nov. 1505. 
 
 be hard to quarrell ane dignitie bruiked for swa many yeeres, neyther is [it] competent to any bot the prince, 
 
 or his successoris, or some pretending right therto. As for that pairt of the alledgance foundit upone the 5 Act 
 
 of Parliament 1488, quherby all dignities &c. is revocked, that Act is only to be ascryved to new dignities prejudiciall 
 
 to the Croune," which is cleare by the Duke of Montrois his quyteinq tlie heretable title therof;^ ^, ,„ 
 
 ,,, .J,.,.,,., ,.j,,„ , J. J ^ J • c Thg Claimants argu- 
 
 and this Act is cleired by the posterior Act 1489,' quherby it is statute that all these wha gatt ment. 
 
 dispositiounes or tackis of landis, Sfc. sould bring them in to be cancelled, and implyis ane ratifica- '' This was taken for 
 
 tiounandexpositiouneof the prior Act, the samyne being satisfied for any dignity meaned uther ck"mfnt'^tin%iscwer-™f 
 
 ther by Erie Craufurdis leying doune the dignitie of Duke,' being only pecidiar to the royall the new evidence now ad- 
 
 \family'], the dignitie of Erie to Glencairne never being questioned, bot acknawledged by King and '*"f'^' 
 
 Parliament. And gif the law were dubius, in dubiis benigniora semper sequenda, — the per- 1489-90. " '^ ^^"^ 
 
 seweris predicessoris possessioun cleires sufRcientlie the homologatioun of the right, for by f Assumption again, and 
 
 law diutina obsenatio in dubiis facit observationem, et diutina observatio facit actum nullum "''"""^ misrepresentation. 
 
 validum, especiallie heir in this caice, ubi constat de mente legislatoris, the King and Parliament never quarrelling 
 
 the perseweris title, quhich is not competent to any subject. — 3°. Tliis Patent can never be included under the lievo- 
 
 catioune as given for evill councell, becaus the Patent caries the religious cans, moveing the prince for defence of his sacred 
 
 persone, whairto wee are tyed by dewtie ; and it can never be cleired that the receaver of the Patent wes accessory to the 
 
 perverse counceU, or wes ever called in questioune theruponef And to the Reductioune against Erie g The Claimant' 
 
 Cuthbert^ that wes only of tlie landis being the Kingis propertie, in the whilk reductioune Erie ment. 
 
 Cuthbert and Alexander are acknawledged Erles.' And such as were quyltie of the perverse ^ "^^^^ Reduction of Earl 
 
 „ , . ,, . ,. . , . „,..,. C'uthbert'sseiTiceinDrum- 
 
 councell was processed, nane of the persewens predwessons being called m questioune. — 4 . This mond and Duchray, 1516, 
 
 defender can never be hard to quarrell the dignitie or Patent, becaus, be Actis and °° ^J'^'^'' ""= Claimant also 
 
 Sederuntis and Decreittis of Parliament and Sessioune produced, the perseweris predicessoris i p • i th Ci • 
 
 are sitting Erles quhen the defenderis predicessoris are sitting Lordis, both in Parliament argument, supra, p. xl. 
 
 and Sessioune ; and in debaittis befoir the Sessioune, both perties present, the persewer is '' So too the Claimant, 
 
 acknawledged both by the Lordis and defenderis predicessor to be Erie, and the uther Lord ; ^-9^^' PP- 12, 104, 111 ; 
 o ./ L 7 7 ana supra, p. vii. 
 
 and, be wreittis under the privie seale and authentick services, Alexander, Cuthbert, and i e ? - the wr't und 
 
 Robert acknawledged Erles} And to any alledged designatioun of the perseweris predicessoris to be the Privy Seal 28th April 
 
 Lordis efter the Patent, answeris, Alexander dying within 1 dayes efter the Patent, and Robert ^j'. """ ^ ™ supra, 
 
 shortelie thereftir, and Cuthbert being young, the countrey in confusioune, wes the ressoune they did m g^ ^^^ ^j^^ Claimant 
 
 not assume tJie dignitie ; Bot that wold not importe ane passing frame the samyne,'" — And efter S. Case, pp. 62, 63; supra, 
 
 the yeere 1 506, when the defenderis predicessoris were Erles, they are designed Lordis in tioa 1 P' ' ' " ■ 
 
 7 , „ "No argument. 
 
 sederuntis. 
 
 GriLMOUR [for Glencairn'] askcd instrumentis upon the Precept 1500, Seasing 1502, and Sederunt 1503 ; 
 and alledgit na respect can be had therto : — First, the Precept is of ane false daitte, in anno 1500, the yeere of the 
 reign 8°, and granted with consent of the Governore and upon the resignatioun in the Bishope of Glasgowis handis 
 as Chancellor, quhilk cleires that trewlie to be 1522 ; for Duke Albany wes Governor to King James 5., and the 
 Bishope wes Chancellor to him, — King James 4. had never ane Governor, and it is cleir be uther writtis produced 
 be both thir perties, that 1522 is the true daite. As to the Seasing, it is onlie ane copie, and the assertioune of 
 the pertie, and the nottar callis him, and in the indictio beires to be in the fyme of Pope Leo XL, wha wes not 
 Pope whill 40 yeeres therefter, and be Sederuntis, Actis, and charteris the said Erie is designed Lord therafter. 
 And for the Sederunt 1503, that is only ane errour in the wryttar ; for that same efternoone, and the morne thereftir, 
 and [in] many uther Sederuntis, he is onlie Lord Montgomerie, never being Erie of Montgomrie.* 
 
 * The objections on the part of the Earl of Glencairn to the Eglinton's argument was, that, the Glencairn patent 1488 
 
 Precept and the Seisin were well founded, but not so as to the being annulled by the Act Rescissory, he was entitled to the 
 
 Sederunt 1503. precedency in virtue of the Precept 1500, the Sasine 1502, and 
 
 It appears by the Decreet 19th January 1648 and relative the Sederunt 25th March 1503 — all and each of these documents 
 
 proceedings that the Earl of Glencairn adduced the following being of date anterior to the Act 12th March 1504, the earliest 
 
 documents in support of his precedency, — founded on by Glencairn subsequently to the patent 1488. 
 
 1. The Glencairn patent 28th May 1488 ; The present Claimant conceived, when the Supplemental Case 
 
 2. An Act of the Lords of Session, 12th May 1504; was printed, that the Precept 1500 and the Sasine 1502 were 
 
 3. A Sederunt of Parliament 18th November 1505,— valid evidence on the part of the Earl of Eglmton, and proved 
 , ., , . , . ^ . , , T, ,. , J J J ,1 the existence of his Earldom at those respective dates; but a 
 besides others of later date :-And that Eglmton adduced the subsequent search in the Eglinton charter-chest disclosed the 
 following, in support of his adverse claim,— originals of the two documents in question, and the untenability 
 
 1. A Royal Precept, 18th December 1500; of this supposition; and he corrected it accordingly in the 
 
 2. A Sasine, 10th April 1502; < Addenda' to the ' S. Case.' These documents, as more fully 
 
 3. A Sederunt of Parliament, 25th March 1503, in which there there described, are as follows : — 
 
 appears the " Comes Montgomery "-which was objected to by i_ Original Precept by James King of Scotland, dated " apud 
 
 Glencairn as an error for " Dominus Montgomery, - " Glasgw, decimo octavo die mensis Decembris, anno 
 
 besides others of later date. "Domini millesimo quingentesimo," i.e. 1500, — but 
 
440 APPENDIX. 
 
 Answeris Nicolsone [for Eglinton, &c.], — He oppones his alledgance of befoir, whilk he joynes with the 
 defenderis reasone of reductioune foundit upone the Act Rescissorie 1488 and the cans of the Patent being both one, the 
 perseweris predkessoris acknawledging the Act by taking the title of Lord efter the daite of the pretendit Patent, for they 
 satt as Lordis in Parliament 1488 and 1489, and accepted twa instruments 1492 and 1498, and be Decreit of Par- 
 liament 1491, the Patent being new to the Rous of Glencairne, and fallis under the compas of these Actis annulling the 
 samynefor the perverse councell in leading and assisting the King at thefeild of Stirling, quher his Majestie wes MM, and 
 the narrative of the 14 Act, intitulate the Bebaite at Stirling, defynes these that counselled the King against the commoune 
 gude of the realme is evident by the Patent, the Sevocatioune being in concrete of this Patent, the finall cam being for 
 endurance with the King during the discord, which wes rather evill service done to his Majestie then any defence of his 
 persone. And the Patent being annulled could not be revived bot by King and Parliament. And for the Sede- 
 runtis in Parliament and Sessioune, that the successoris to the receaver satt Erie therin, that cannot importe any 
 acknowledgment of the Patent, being annulled ; netlier can the Sederuntis revive ane null right. And therfoir it can 
 " This insinuates that the Earls of never be thought that the Erie of Glencairne satt be vertew of that Patent, being reduced ; ° 
 Glencairn must haye sat under a later fo^ Erie Cuthbert is amerciat in ane iustice Court at Air 1505, and designed Lord 
 
 Patent. 1 lie Earl of Kglinton after- " ~ -r, ■,. ,. jtjj-tt-i 
 
 wards asserted this, mfra, p. 443; but Ivilmawris, and is in several! Sederuntis of Parliament designed Liord oi Kilmawns, 
 
 the Lords decided, iafra, p. 445, that as lie hes condiscendit. And the Patent, being publictlie annulled, behoved to be 
 the supposition could not be entertained , , . .,,-.-,. ,-,,■,. v ^t i ■ .-, i i i • • .. 
 
 iinless proof -were given of such a publictlie revived by King and Parliament." Nether is the law dubius in respect 
 P»'«"'- of the Actis of parliament, and if it were, he contendis benignipr interpretatio est in 
 
 .■,lu\Tr'nZ'X%^t'TZ /«^°™'" Peipubliccp. And to that poynt of the perseweris possessioune, na posses- 
 Cunningham family to their Earldom, sione can mak ane null right valide, and tlie perseweris can never alledge posses- 
 sioune auhill (till) tlie 1511, that he qatt the infeftment as E. Glencairne." This 
 " The regrant 1511 proves a pre- -' ^ ' ' "^ . ni- -i-i, 
 
 mous right to the Earldom, clearly defenderis predicessor being in possessioune of preceuencie, as is cleir by ane con- 
 from the Patent 1488. Vide supra, tj-^gt ^f freindship betuixt the Hous of Eglintoune and Glencairne, quherin the 
 p. xxxviii. It is printed i>i/ra, p. 503. _,„„.. . n i i , i • i i i t -it 
 
 Erie of Eglintoune is nrst named and subscryves upone tlie right hand, qunilk 
 
 ^ Ko argument, — Glencairn in the implyis ane acknowledgment of anterioritie in the defenderis predicessoris.'' And 
 
 E^^^:^Z^:^:! tl"« defender hes just interes to quarrell the Patent, haveing causam a dono Regis 
 
 wha gave his predicessor ane Patent of its daite, for the dew place, which gives him 
 
 , „ , ,„ enteres to impunge ane null title to be ane ground of preference to the defender- 
 Regarding Innes s and 1 urnbull s x o o i ^ 
 
 cases, vide supra, p. xxxiii. Neyther did King James 4. any dead (deed) to mak the Patent revive, for ther were 
 
 diverse giftis granted by King James the Thrid, which proved inefFectuall to the 
 
 f Ko Lord Lyle was so forfeited, . ij.- ^iUT-j^T j« 'r ut e 
 
 and Bothwell's forfeiture was for trea- receaveris, as landis given to the Laird of Innes and to Trumble," 
 
 son, conspiring with the English, &c. quha never bruiked the samyne, and the Lord Lyell and Bothwell forfaulted for 
 
 ^^^' ^P' ' ^^'^' being upone King [James] 3. Counsell,' contrair to the gude of the realme. And 
 
 to the Ratificatioun by King Charles he repeittis his former exceptioune, ratified " secundum validitatem dictarum 
 
 " literarum patentium," whilk is only ane ratificatioun of ane null title, and must be taken restrictive to the Patent, 
 
 being dead, not being ane simple ratificatioun of the Patent, quhilk could not be ratified in the prejudice of this 
 
 nobleman, not being heard, — the ratificatioun being purchast suppressa veritate that the Patent was annulled, and 
 
 upone false suggestioune that the perseweris predecessoris had bene in possessioun of the title be vertew of the 
 
 Patent. 
 
 NiSBiT [for Eglixtox, &e.J alledgit farder, that the Patent is includit under the wordis of ' creatioune of 
 ' new dio-nities ' in the Act ; and, the posterior Act 1489 being for explaineing the prior, he contendis that tlie revocking, 
 
 s This does not follow diu-nities not being of tackis, most be thought farr more of dignities f And if the Act had only poynted 
 being mentioned. at the Duke of Montrois, that would have bene exp-es, the samyne caus in the Act mili- 
 
 >■ Quite just,— and Nisbet the Eg- tating against this Patent. Neyther can it be thought that thes wes in respect of the new 
 
 linton Counsel does not misrepresent ^-^^^ of Duik, there being many Duhs of befoir;' and that title wes offered to the Erie 
 
 the Montrose Case like the others. ■' ' ■; » 
 
 of Angus and refuised by him. And the secund Act addis to the former, being recis- 
 sorie of landis. And to the alledgit diutinus possessioun, that cannot be respected, becaus there could be na pos- 
 sessioune ascryved to that Patent bot frome 1505 to the yeere 1511 when the infeftment of wes granted, 
 which is not nor cannot be thought to be diutina possessio. — And the Eatificatioune by King Charles surreptitious, 
 not shawing the Patent to be granted for assistance and perverse counsell, and the Ratificatioun sould carie insert 
 therin what' is ratifeid. Neyther can the Ratificatioun be drawne bak in prejudicium tertii. 
 
 which date is proved (ut supra) by the internal evidence 1502, in unison with what is stated in the text. There is 
 
 of the instrument, where mention is made of John Duke no proof, however, that the error was other than acci- 
 
 of Albany, Protector and Governor of the realm, as well dental. 
 
 as by the date of the Kind's reign, " regni nostri octavo," -r. . , •, xi • .i. » j * ^i, t> » j 
 
 to be erroneous, through omission of the concluding B"t, while the error in these two documents, the Precept and 
 
 numeral-the true reading being " anno Domini miUesimo *« ^.'T'ol"', ■ ■^^'^'*^^^> ^ ' f • ="=^,T^' *=^"^'y f""'^'^^ }'J 
 
 " quingentesimo vicesimo," or'' vicesimo primo,"-i. e. ^e Larl of Eghnton and his advisers, this was not the case ^nh 
 
 I^a0orl521 the Sederunt 25th March 1503, Glencairn s assertion that there 
 
 never was an Earl of Montgomery being quite unfounded (as 
 
 2. Original parchment, endorsed " Sasine grantit to Robert shewn in the S. Case, p. 71, and supra, p. lix), — they accord- 
 
 " Montgomerie, sone naturell to Hew Erie of Eglinton, of ingly concentrated their argument on the Sederunt 25th March 
 
 " the lands of Alhallow Chapill," and extracted from the 1 503, which equally gave them the precedence if the Glencairn Patent 
 
 protocol book of George Baxter, notary, by Thomas 2&th May 1488 mas out of the lanj, and it was consequently, as 
 
 J^axter, notary, — the instrument of seisin bearing to be will be seen hereafter (infra, p. 476), exclusively specified and 
 
 "anno incarnationis Dominice miUesimo quingentesimo founded upon in the subsequent and illegal Decreet of Parliament 
 
 " secundo, die vero mensis Aprilis xi, indictione primii, 9th March 1649 in their favour. It was therefore absolutely 
 
 " Pontificatusque Sanctissimi in Christo patris et domini necessabt for Glencairn to recur to the Patent, in order to prevail 
 
 " nostri Domini Leonis diving providentiS, Pape Undecimi in the contest — as in fact, he did recur to it — in full refutation of 
 
 " anno primo." Leo XI. was not Pope until long after Lord Loughborough's assertion to the contrary. 
 
APPENDIX. 441 
 
 Answeris Stewart [for Glencauin],— Pmw, by last Act 1489, ratifieing the first, there is na mentioim of 
 digmim, the first le^ng satisfied by Montrois laying doune the Dukdmne," and by the last a -pi,e same erfcctl roadless -is 
 Act rightis oflandis are questioned without rrwntioime of dignities, and the landis given to sumption '(fronfTg^oriJife)"™ hive', 
 the laird of Jnnes and Turnebull tailing {are taken) bak, being the Einqis promrtie —To T''^''^ ',' "," P™"^ °^ Montrose laying 
 
 +1.0 -fnit-folt^,,,. olln^ :4. •ij.i-r-iT-T., ,,,- J I 1 down the dignity, but e contra. Ihere 
 
 the lorlaltour alledgit against the Erie Bothvvell [and] LordLyell being guilty of was no satisfaction in the matter, as 
 perverse councell, that is cleired by the 14 Act of the black book for bringing in '■^'■^'^• 
 
 tlm Inglish, and it never can be shawne that any of the Erles of Glencairne wes upone that course ; and tliat con- 
 firmes the persevveris title, ffor if tliey had beene guUtie they wald have beene processed," , ^ ^ , , „ 
 
 and there neidit na expres a,t for remveing of the Patent, n^ver being annulled. And trosefbltVJwas i^t! °"'^^°"'™- 
 the perseweris predicessoris sitting as Erles can be ascryued to na uther title bot 
 
 THE PATENT, uuhs it Were alledgit tliey accepted am posterior title." And as to the mfr^^^! ulMTnlZltlj vct^oUd 
 Justice Court designeing him Lord 1505, [this is] not to be respected, becaus at ^"-f''"' P- **^' ^^ "'^ ^'"'' "^ I'^gl'"'''"- 
 that same tyme he is sitting a^ Erie in Sessioune and acknawledged Erles in diverse sederuntis.— And, to the 
 Chartour 1511 ,— he is acknawledged Erie, and the erectioune is taken upone the recognoscing of the landis. And 
 to the l^tificatioun 1637,— na writt can be utherwayes bot " secundum validitatem," the Patente being valide. 
 Neyther is there Veritas suppressa or falsitas expressa, for the Patent wes never called in questioune, bot still 
 
 ACKNAWLEDGED BY ALL THE KiNGIS SINCE KiNG JaMES 3. 
 
 Hepburne [for Glencairn] referred the writtis produced to the Lordis, which clearis the possessioune, 
 ranking the persevveris predicessoris inter Comites and the defenderis among the Lords, and their predicessoris both 
 Lordis of Sessioune, designeing Erie of Glencairne and Lord Montgomrie, and being pleading, Montgomrie 
 acknawledged Glencairne to be Erie, there never being ane Erie of Montgomrie.'' 
 
 And the Decreitt Arbitrall 1523 shawes when that tliey were both Erles the Erie eisewhe'r^^'' '^™°° ^''"' "' '^'"™ 
 of Glencairne had the place. And Glencairn, when on all hands Earl, is proved 
 to have been styled Lord Glencairn, and Lord Kilmaurs, only. 
 
 Octavo Januarij 1648, partibus in pi-ocessu. 
 
 . Stewart [for Glencairn] referred his former dispute and reasone /owncfecZ upone the Patent, acknowledged by 
 the Prince and Estates and by the defenderis predicessoris, as he hes condiscendit upone his former dispute ; ffor if 
 the perseweris predicessoris bruik not the title by that Patent he bruikis by na right, quhilk is absurd. Nether can the 
 excipient impunge the Patent upone ane absolute (obsolete) Act of Parliament, to ley such ane blott upone the Hous 
 of Glencairne that they had bene traittoris, nathing being done by the King and Estaittesfor that end, bot, in the contrair, 
 the King and Parliament suffering the perseweris predicessoris [to] bruik the dignitie, whilk they have bruiked 
 past memorie of man. And he contendis that tacitus consensus of the King and Parliament takis away any alledgit 
 revocatioune of the Patent, be vertew quherof the perseweris predicessoris hes diutina possessio et immemorialis, — 
 ffor it is utherwayes in dignities than rightis to lands, ffor in prescriptiounes to rightis of landis requiritur titulus 
 cum possessione, bot in materis of honor possessioune reullis the antiquitie, this perseweris predicessor being con- 
 tinuallie in possessioune of the dignitie efter the Patent. Nether can this defender, being of paritie in dignitie with 
 the persewer, quarrell his Patent upone this nuUitie, not inherent in the Patent. Neyther can it be thought to be 
 includit under the Act of Parliament, not being new to the ressaver ; for be the Patent Alexander is acknawledged 
 to be Erie, for Alexander might have the title during his lyfetyme, and the King might have given this Patent to 
 him and his successoris. — And referris the writtis produced for verifieing of his ressoune, as the samyne standis, with 
 his reply to the exceptioune, in fortificatioune of the ressoune. 
 
 Answeris Nicolsone [for Eglinton, &c.] ut supra, and declairis that his dispute is only against the 
 Eessoune as being foundit upone the Patent, and that it fallis under the compas of the Act of Parliament 
 which Patent wes never acknawledged by King and Parliament, bot, by the contrair, passed fra by the 6 severall 
 deidis he hes condiscendit upone, quher the perseweris predicessoris were Lordis efter the Patent, and the defenderis 
 predicessoris had the precedencie ; " and, the Patent being null, na posterior Actis of Sede- « xr «, f 
 
 runt could mak that whilk was dead revive, — the Act quherupone he foundis his alledgance 
 
 standing in the new Actis efter the Act ordeining all actis which were done in prejudicium anime to be 
 delete,' swa this Act Eecissorie cannot be thought to have beene repelled or absolute (obso- 
 lete), for the meaneing of the Estates was that nane sould have any favour for their evill ^^^ obeved ''"^ '^"^ ^*'' 
 oflSces about the King against the weill of the countrey. And the Act being ane publict 
 
 ^ Act of Parliament, for ane law to the leidges for byganes and ad terrorem for the future, na taciturnity could annull 
 the samyn. And this he declaires he does not propone against the perseweris title of Erie,'' g jj j^ j^g™!- j^j v 
 bot only to defend this defender in hoc judicio possessorio haveing the precedencie conforme to the Earldom could stand in 
 the Decreit of Counsell,'' quhilk gives him sufficient entres to defend against any craveing there^ein? n"' th^^°T^J 
 reductioune therof upone ane null right. — And oppones quhat is said of befoir to cleare the or creation. 
 Patent to be new to the receaver, being in exaltationem sui honoris. And the calling Alex- '' The Decreet of Eank- 
 ander Erie, that hes beene the informalitie of the wryttar in these ancyent tymes. And to ""=' • 
 the diutina possessio, — that cannot be respected, for there wes not diutina possessio betuixt the yeere 1488 to the 
 yeare 1505, there being for that tyme na possessione. And this is only 6 or 7 yeeres frome the Sederunt to the 
 infeftment of Erledome 1511 quhairto any diutinus possessioune can be ascryved." And to • xhg infftm t 1511 
 the prescriptioune of title of dignitie, he contendis that possessio sine titulo in dignities cannot was only a re-grant of the 
 prescryve against ane third pertie without any valyde right. — And to the Act of Sessioune, °™''^*"^- 
 
442 APPENDIX. 
 
 quher it is alledged that the defenderis predicessor being only Lord acknawledges the perseweris predicessor to be 
 Erie, that hes bene only the Erles sone. 
 
 Maxwell [for Eglinton, &c. J farder added to that poynt of the dispute upone the Act of Parliament, tiiat 
 
 " Of 15 Feb. 1489-90. it can never be thought that the subsequent Act 1489 " does revoke the prior, bot confirmes the samyne, 
 
 *■ But the Patent never becaus it cdllis in all infeftmentis to be annulled ; and sica this Patent, being such am writt quher- 
 
 was destroyed; it still upgne seasing behoved to follow, contening lands, is aTie infeftment, and therfoirfallis under the Act 
 
 „ „, , Recissorii ; ^ for Kinq James 3. qave na dignities without landis, and, beinq revolted for landis, could 
 
 ' 1\i& mis reddendi sm- ,, -r-ii.!,- ui 
 
 gula singulis here refutes not stand for the dignitie," for he contendis that, as Erie Alexandens successor could not have 
 
 this cavil. )3gjjg served to him bot per viam gratios in respect of the 6. Act in the black book, being ana 
 
 persone that was lyable to these deids expressed tharin, that clearlie shawis that what was dona in his favoures wes 
 
 revoked, ffor all the following revocatioune of King James 4. of prior giftis ather quherof the parties had not beene 
 
 in possassioune wes revoked, Erie Alexander never being in possessiouna of the title or landis in the Patent. And 
 
 "i The Act Revocatory ^^ ^^ ^'^^ Revocatioune of King James 4., quher all Actis prejvdiciall to Saull or Croune are 
 
 March 1503, founded on ordained to be delett,"^ yet this Act Rescissory stands against these wha had done deidis prejudiciall 
 
 '' ' ' to the Croune, — and that the Patent wes for ane dead prejudiciall to the Croune, he oppones the 
 
 Patent, Actis of Parliament, and what hes bene formerlie said. And for tha instructing of alledgance for the defender, 
 
 with the ressouna of reductioune at his Lordshipis instance, this persawar repeittis the writtis, sederuntis, and utharis 
 
 produced. 
 
 NisBiT [for Eglinton, &c.j farder added, that (/u/ier a«y writt is rescindit by ane prior Act, na necessitie of ane 
 
 posterior, for the ressoune making of the second is for landis ; and adds to tha former, 
 
 " The lands and honours were so far ., . ^, j. j. ^^ _e ■ i± j. i j- j j- v c /• iu • ^• 
 
 hoth in pari casu and equally fell to neyther IS ther any dtstmctioune of right to landis and dignities," for the prescriptioune 
 
 be included in the Supplementary Act and Actis of Parliament standing against committers of evill offices against the 
 
 ctalLnTcontendsW i^vfew!''" *^' countrey cannot be taken away by illatioune, being maid publict by tha legislative 
 
 power for the government of the countrey and examplary ad deteiTendum. Nether 
 
 can consuetude nor tract of tyme niak that which is null convalass. 
 
 NicoLSONE [for Eglinton, &c.J uf supra, declaired he dispute only against the ressoune foundit 
 uPONE THE PATENT AND THE ACT OF PARLIAMENT AGAINST THE SAMYNE.* 
 
 lUt Stewart [for G-lencairn] opponed his lybell and resissone as it standis, with the Lordis interloquutor 
 susteining the samyn, as it is mendit, with his reply in fortificatioun therof, verifyed by the writtis produced for 
 instructing therof, and conjoyned the samyne reasone and reply, and referred the samyn to the Lordis. And it wes 
 Hew Lord Montgomrie, his sone Johne being Master than. 
 
 Undecimo Januarii 1648. 
 
 The Eele of Eglintoune with his procuratoeis being called in in presence 
 OF the Loedis, and it being asked if they desyeed to be faeder hard 
 
 BEFOIR the dispute SOULD BE ADVYSED, THEY REFERRED THE DISPUTE TO THE 
 
 Lordis. 
 
 [Interlocutor.] 
 
 It being DEBAITTED whether this CAUS SALL be REMITTED TO THE PARLIAMENT, OR IF THE 
 
 eemitt to the Parliament sall be reserved to be taking [taken] ixto considera- 
 
 TIOUN with the dispute IN THE CAUS, It WAS FUND BE THE LORDIS THAT THE DISPUTE 
 SOULD BE ADVYSED WITHOUT EESEEVATIOUNE.t 
 
 14 January 1648. 
 
 [Inteelocutoe.] 
 
 The Lordis repellis the exceptioune and duply IN EESPECT OF THE EESSOUNE 
 AND REPLY, WHICH THEY FAND RELEVANT AND PROVEN BE THE 
 WRITTIS PRODUCED.! 
 
 Stewart [for Glencaibn] asked instrumentis upone the interloqutor. 
 
 * That is, THE Act Rescissory. This is further asserted in J This is most important. The Court sustained what 
 
 the Parliamentary Decreet 9th March 1649, infra, p. 475. had been urged by Glencairn's Counsel in respect to the 
 
 t Hence the Court rejected the authority of Paulia- Patent 1488. 
 ment in the matter. Conf. S. Case, pp. 20, 22, 23 1 53, 54, 
 65 ; and supra, pp. LII sqq. ; xlvii sqq. ; Ivi sqq. 
 
APPENDIX. 
 
 443 
 
 Aliquid deesse videtur," ' Sic in orig. 
 
 NicoLSONE [for Eglinton, &c. j alledgit that, if the Lordis interloquutor be foundit upone that pairt of the 
 
 reply that the Patent is revived by the Sederunt of Parliament 1605, that Sederunt b Evidently a supposititious new 
 
 cannot be ane ground to revive the Patent, becaus he offeris to prove that the Patent, in accordance with the sup- 
 
 ,. , , , , „ ^ , position thrown out supi-a, pp. 433, 
 
 persemns predKessor ressaved ane evident under the great seale from Kimj Ja. 4. 440, and as presently broadly asserted. 
 
 hefoir the daite of the Sederunt,^ swa that Cuthbert's sitting Erie must be ascn/ved to that No such new Patent ever passed. Vide 
 ., ,., „ 7,., .,^,,..„ infra, p. 446, where Eglinton retracts 
 
 evident, which was the ground of the said Cuthbertis sitting Erie, and therefoir cannot ti{e assertion. 
 
 be thought to be ane ground for reviveing of the alledgit Patent. 
 
 Answeris Stewart [for GxENCAmN],-he oppones the Lordis -^nter- ^;^^XJ^^^,U 'i:I;1:lnlt'^s 
 loqutor, and he may ascryve the sitting to any of his titles." sittings to his first Patent. 
 
 [Interlocutor.] 
 The Lordis repellis the alledgance. 
 
 NicoLSONE [for Eglinton, &c.J alledgit, that the pretendit Patent cannot be revived by the posterior Act 
 of Sederunt in Parliament 1505, becaus he offeris to prove that Erie Cuthbert ressaved an'e new patent /rome King 
 James 4. efter theyeere 1488,'* quherto the said Cuthbertis sitting Erie must be ascryved, a xhe same hypothesis, thrown out 
 the Patent being null, being for assisting to the evUl councell against tlie Estaittes wha ^' ^ venture, ut supra, 
 annulled the samyn. Neyther can the said Act of Sederunt 1505 be drawne bak to mak the said Patent revive in 
 prejudice of ane thrid pertie haveing ane sufficient interveining right, for by law non datur retroactus in prejudicium 
 tertii ubi intervenit medium impedimentum, which is heir by the defenderis predicessor being Ekle by the Sederunt 
 1503, which slopes the efficacy of Erie Cuthbertis sitting to goe bak to the Patent to mak the samyn revive. — 
 2°. The reassone of reductioune quadratts not with the termes of the reservatioun of the Decreit of Banking 1606, 
 becaus the samyne is to be rectified upone productioun of more authentick writtis then wes then produced. The 
 Patent, being null quhill (till) it was revived, is not authentick ; and the Act of Sederunt of the 
 defenderis predicessor as Erle 1503, with the Seasing, being found sufficient and auctentick evidentis 
 IN 1606 by the Commissioneris of Parliament for the defenderis bruikeing the dignitie, in rcbpect of the infeftment 
 given efter the burneing of the defenderis predecessoris hous quher his evidentis wes brunt by William Master of 
 Glencairne, which occasioned that they had not uther auctentick doubles then wes produced the tymeof the giveing 
 of the said Decreit, quherby they are found sufficient evidentis to bruik the title of that daite, and cannot now be 
 quarrelled in respect of the Decreit given by the Commissioneris of Parliament, which is to be respected as ane 
 Decreitt of the Parliament itself, not to be questioned bot in Parliament, — the perseweris predicessoris being in 
 causd that the defenderis caimot produce more auncient evidentis, and ane seasing being ane perfect evident of its owne 
 nature, does instruct the title sufficientlie, as wes found betuixt the Erles of Cassillis and Montrois. 
 
 Answeris Stewart [for Glencairn], — he oppones his former dispute against the writtis. And defenderis 
 Sederunt is not to be respected, for that same day the Lord Montgorarie is said to e q^jj^ ^^^^^^ ^^ ^-^^^^^ ^^^^^ 
 be Erie, he sittis Lord, thair never being ane Erie of Montgomrie," and they are Lordis Vide S. Case, pp. 71, 203; and supra, 
 many yeeres thereftir. And repeittis his former dispute upone that poynt, and P- '^■ 
 the Decreit of Eanking and reservatioun therof, and adhearis to the Lordis interloquutor. 
 
 15 Januar 1648. 
 NicoLSONE [for Eglinton, &c.J craved ane delay whill Tuysday, in respect of Nisbit's absence, quha 
 is seik. 
 
 [Interlocutor.] 
 
 The Lordis delayis this caus whill (till) Tuysday ; and they declaire that they will 
 NOT grant any delayis heireftir upone the absence of any of the procuratoris. 
 
 18 Januar 1648, partibus in processu. 
 NicoLSONE [for Eglinton, &c.] resumed his dispute, and alledgit that ther must be answer given to the 
 nullitie of the Patent ^er- se, becaus if the Patent be revived in respect of the Sederunt 1505, that cannot mak the 
 samyn revive, becaus non datur retroactus in prejudicium tertii ubi intervenit medium impedimentum, quhilk is prior, this 
 defenderis predicessoris haveing right to be Erie, 1503, by the Sederunt the said yeere, and Seasing, acknawledged 
 by the Commissioneris of Parliament ' to be guid evidentis to bruik the dignitie.— To the i By the Decreet of 
 perseweris Sederunt 1505 and infeftment 1507,— that cannot be ascryved to the Patent, becaus Ranking leoe-but which 
 
 ,. . , , j^j. J.I o J i proceeded trom the Kind, 
 
 he will offer to prove that the perseweris predicessoris accepted ane new patent efter the Sederunt not the Parliament. 
 1503,B_therfore the reassoune and dispute, in swa farr as it is foundit upone any uther g The same assertion as 
 writtis efter the Sederunt 1503, cannot be respected to fortifie the Patent; and the Eik, ^j[°^'^t^^™ P^ned X 
 being emendatio in substantialibus post litem deductam in judicic, cannot be ane ground per se Eglinton himself, infra, 
 to inferr the conclusioune, in swa farr as it is foundit upone ane null Patent, not to be P- **6. 
 revived for the reason adduced ; and the accessory titles 1505 and 1507 cannot tah away the defenderis prior title 1503, 
 found sufficient by the Decreit 1606. 
 
 Answeris f for Glencaikn],— He oppones his former dispute and interloquutor, — and that 
 
 3 L 
 
444 APPENDIX. 
 
 Sederunt of the persevveris predicessoris as Erie Montgomrie 1503, that is only tlie error of tU wryttar, 
 for that same day he sittis Lord Montgomrie, and 1505 they are Lordis Montgomrie, and in anno 1506, and 
 both predicessoris sitting in Sessioune, the defenderis predicessor Lord and the perseweris Erie. Natlier does the 
 
 ' Vide simra p lix defender shew any enteres to ane &ie of Montgoimrie, — ther never being sick ane Erie."- And 
 he repeittis the former nullities against the Seasing.' And to that pairt of the alledgance, 
 
 b Of 10th April 1502. ^j^^^ j^^,j^ Cuthhert accepted ane new Patent, efter tU defenderis Sederunt 1503 [ffl?i(f| hefoir the 
 perseweris 1505, that cannot be respected, not being relevant, — Becaus the persewekis pbedicessob, might tak ane 
 
 NEW EIGHT AND NOT PAS FBOME HIS FORMEE, AND ASCRYVE THEIR [hIS] SITTING TO ANY OF THEIR [hIs] RIGHTIS, 
 
 ^ . THE FIRST NEVER BEING PASSED FROME." And to the objectioune against the eik of the 
 
 lybell, he oppones the Lordis interloquutor susteaning the samyne, foundit upoune the 
 writtis to fortifie his title, as it is lybelled. 
 
 GiLMODR [for Glencaien] added, that the alledgance of the perseweris predicessoris accepting ane new Patent 
 efter the Sederunt 1503 cannot be respected except it were referred to the perseweris oath. And he contendis that if, the 
 tyme of the obteining of the Decreit 1606, that if the persewer had produced the Patent, and the defender had 
 then alledged this objectioune upone ane new Patent, the Commissioneris could not have delayed their determina- 
 tioune upone that objectioune, bot wald have ordained the persevveris predicessoris to have bruiked their place 
 conforme to the writtis then produced. — And to the allegit impediment by the defenderis predicessoris sitting Erie 
 1503, and the Sederunt efter could not mak ane null title revive ; the alledgance aucht to be repelled in respect 
 of the Patent, quherfra the perseweris predecessoris could never be secludif ; for, albeit it had bine (been) stoppit for 
 ane tyme, the posterior actis resussitats the same. 
 
 Answebis Nicolsone [for Eglinton, &c.J, — the reasoune is found relevant, either as it is foundit upone 
 the Patent j5er- se or upone the writtis produced. Non relevant upone the Patent per se, becaus annulled, as he 
 hes dispute — Not relevant upone the writtis produced, becaus the defender hes prior titles, as he lies condiscendit, 
 acknawledged sufficient! ie be Decreit of the Commissioneris 1606, not to be quarrelled ot hoc judicio : Swa, the 
 accessary titles being elydit efter the yeere 1503, they cannot be ane ground to mak the null Patent revive. 
 And he craves ane answer, first, to the nullitie, befoir the exceptioune upone the new title 1 504 by Erie Cuthbert. 
 
 Answeris Stewart [for Glencairn] ut supra, — Oppones his former dispute and interloqutor, and the 
 d All H ti F V t exceptioune upone the new Patent 1504,'' not relevant to be proven bot by the perseweris 
 oath, in respect of the former interloquutoris ordeining both perties to produce all the 
 writtis ather of the perties sould use, and, giff any exceptioun sould be proponit upone any writt which wes in the 
 perties' handis, he to give his oath anent the haveing therof ; and, this being ane evident of tlie perseweris predi- 
 cessoris, he sail depone upone the haveing therof. 
 
 [Interlocutor.] 
 
 " Sapra, p. 442. ThE LOEDIS ABYDIS BY THEIR FORMER mTERLOQUUTOE UPONE THE 14 OF THIS INSTANT,' AS THE 
 SAMYNE STANDIS. 
 
 Nicolsone [for Eglinton, &c.J alledged, that, seing the ground for reviveing the Patent is the Sederunt 
 of Parliament 1 505, quherby Erie Cuthbert sittis Erie, that Sederunt cannot be ane ground to mak the samyne 
 revive, becaus he offeris to prove that the said Cuthbert, being Lord in anno 1504 or some tyme before the Sederunt 
 1505, and efter the defenderis Sederunt 1503, accepted ane new patent of Erue, to which new Patent the 
 said Sederunt most be ascryved. 
 
 Answeris Stewart [for Glencairn], — He oppones the Lordis former interloqutoris, quherby both perties 
 are ordained to produce all the writtis they sould found any alledgance upone in this caus, except such wreittis 
 which sould be alledged to be in any of the perties' handis, which pertie sould be haldin to give his oathe upone 
 
 , „ , , „ the haveing therof; swa, this being ane exceptioune foundit upone ane writt presumed' to be 
 
 ' Only by the defender. . , . i i- , . . , . 
 
 m the perseweris handis, the exceptioune is not relevant except it were referred to the 
 perseweris oath or instantlie verified. — 2°- The exceptioune, being verified, is not relevant, becaus the accepta- 
 
 TIOUN OF ane new PATENT DOES NOT PREJUDGE THE FOBMER, BOT HE MAY ASCRYVE HIS POSSESSIOONE TO ANY 
 
 "■' So too, as already ob- ^F HIS TITLES HE PLEASED.^ — 3°.— This defender has na entres, his predicessor not being 
 
 served, might David Duke Erie in anno 1503, these Sederunt 1503 and Seasingl521 [1502?] being null, for the ressounes 
 
 alledged. Neyther wald this exceptioune upone the new Patent, albeit obtenit the tyme 
 
 ^ Evidently by the old of the obteining of the Decreit 1606, have beene ressaved to impeid the persewer frome 
 
 on y a en ■, . bruiking this right of anterioritie,"" — na mair can the samyn be receaved heir except it were 
 
 instantlie verified. 
 
 Answebis [ for Eglinton, &c.], — The Patent \4S&being null, the possessioune be vertew of tlie Sederunt 
 
 ' Thus admitting it to ^^^'lo^^D TO BE ASCBYVED TO THE NEW CREATiouNE,' and, this being ane duply to the 
 be only an m/ermoe or sup- reply upone the Act of Sederunt for reviveing of the Patent, he must have ane day to 
 P"^'*'""' prove the samyne ; ifor the interloqutor wes onlie for produceing of writtis quherupone ather 
 
 * There having of course been no resignation of it. In precise was thus no necessity in 1648 to have recourse to the untenable 
 
 acco.-dance with this argument, David Duke of Montrose " migkt assumption that the Duke " laid down" his first right under the 
 
 " tak a new right iinder the second Patent 19M September 1489, Patent 18th May 1488,— an assumption taken up by the contending 
 
 ' and not pas frome his former ' of ISt/i May U88—his rights under parties in ignorance of conclusive evidence discovered by the 
 
 which lie never resigned— as stated in the S. Case, p. 10. There Claimant to the contrary, and adduced in this claim. 
 
APPENDIX, 445 
 
 perties wald found their alledgances, bot this, being ane duply, quliertohe is forced be ane reply, could not consist 
 m his knowledge befoir the reply, and swa, being ane new emergent, he must have ane day to prove, according to 
 the usuall forme of proces. And to that interloqutor, quherby both perties are ordained to give tlieir oathes 
 upone the haveing of writtis, that wes onlie upone the urging the persewer to produce the contract of freindship 
 alledged to be in Corshillis handis. And the Decreit of Eanking 1606 gives the defender guid entres to propone 
 any exceptioune to exclude the persewer and to defend himselff in hoc judicio possessorio. Keylher can the Sederunt 
 1503 and Seasing with the infeftment 1528 [1502?], be quarrell [sic] heir, being produced befoir the Commissioneris 
 of Parliament 1606, and allowed be thame as guid evidentis to bruik the place of authoritie; and that Decreit 
 gives not this persewer entres to reduce except upone valyde anterior evidentis, thair not being declaratour than 
 socht. Bot heir formalitie of proces must be keept. 
 
 Answeris [ for Glencairn],— The Decreit 1606 is only upone Comissioune fronie the Kingis 
 
 Majest,e, and not frome the Parlia,nent,^ in the whilk there is ane reservatioun to . ^ „,,, ,,,,,_, ,„, ,„,,„,,,, 
 all perties grived to crave redres befoir this judicatorie." And he referris to the objection in dignities. 
 Lordis the former dispute and interloqutoris, this exceptioune being competent '' The Conrt of Session. 
 against the suraraondis for elyding the title, that tJie perseweris predicessoris had passed frome the title lyhelled and 
 accepted ane new title, which behoved to be verified instantlie or referred to oath,_<te being swa maliciouslie 
 proponed m ane mater of this kynd, that proces may not tak ane decisioun injustice. 
 
 19 Janiiarij \Q4:S, partihus vt in processu. 
 
 [Interlocutoe.J 
 
 The Lordis eepellis the alledgance peoponed upone THE NEW PATENT 1504, 
 UNLESS IT BE INSTANTLIE VERIFIED BY PRODUCTIOUNE OF THE 
 PATENT QUHERUPOSE THE SAMYNE IS FouNDiT, OR REFERRED TO THE PER- 
 SEWERIS OATH.<= ^ See note *beW. 
 
 NicoLsoNE [for Eglinton, &c.] craved up his wkittis and declaihed he wald 
 
 BE ABSENT." " ®'=' ""'"t ^dow. 
 
 GiLMOUB [for Glencairn] opponed the estaitt of the proces, and interloqutoris, duplyes, and replyes, 
 fund proven by the writtis produced, conforme to the Lordis' ordinance, and objectiounes against these writtis fund 
 relevant ; and he must have his sentence upone these writtis. 
 
 Nicoi^ONE [for Eglintox, &c.J alledgit he may crave up his writtis and be absent ante conclusionem in 
 causa, and befoir litiscontestatioun, he never founding any defensses upone any of these writtis. Bot the sentence 
 is upone the reasoune foundit upone the writtis produced by the persewer ab initio. 
 
 Answeris [ for Glencairn],— He oppones the estaite of the proces, quher the ressoune is fund 
 
 relevant and provin, which is more then litiscontestatioun. M Gilmoub allegit, giff the perties were in ane 
 double poynding and produceing writtis, they will not gett up the writtis nor be suffered to be absent ; and as in 
 ane reduction the party produceing writtis will not be suffered to be absent, and instrumentis taken upone the 
 productioune therof, and he must have the transumpt therof. And as the persewer wald not get up his proces if 
 the exceptioune had beene fund relevant, na mair can the defender be absent efter the reply is found relevant 
 and proven. And ther is no more than litiscontestatioun in this caus, being sentence in this caus. 
 
 Answeris [ for Eglixton, &c.], — The perties in ane double poynding holdis not heir, for the 
 
 pertie proponer of tlie exceptioune upone his richt is in loco actoris wha cannot be absent, and he hes proponed 
 nothing against the probatioun, bot only against the ressoune. And he hes proponed upone no writtis bot upone 
 the Sederunt 1503 and Seasing 1501 [1502?]. And he can have transumpt of na utheris except he will alledge and 
 qualifie ane right to these writtis quherof he craves transumpt. And his desyre is mast just. M Nisbit alledgit, 
 that the parity of the double poynding holdis not, for ther is ane Act of Parliament that pairties compeiring in 
 ane double poynding can not thereftir be absent, and it is the constant forme of proces to perties to be absent 
 befoir litiscontestatioune. And ther is nathiug heir bot ane interloqutor, na act being therupone, and may yit 
 (yet) propone ane exceptioune. 
 
 [Interlocutoe.J 
 The Lordis eefuiss to suffee the defendeeis procueatoueis to pas feome theie compeir- 
 
 AIs^CE, AND OEDAINES THE DECEEIT TO BE EXTEACTED parte COmparente. AnD THEY 
 OEDAmE THE WRITTIS PRODUCED TO BE TRANSSUMED, AND THE PERSEWER GETT ANE 
 TRANSUMPT THEROF. 
 
 * This is MOST IMPORTANT. The Court woni-D NOT enter- Patent in 1488, as is perfectly borne out by the Decreet 19th 
 
 tain THE NOTION OF A NEW PATENT UNLESS PROVED — TThich it January 1648 and the other evidence. 
 
 ■was not, the conceit being ever afterwards abandoned by the f In other words, attempted to back out from the process and 
 
 defender, Eglinton. The Court must hence have decided, as escape a final decision — which the Lords, as will appear, would 
 
 they did, for the pursuer, Glencairn, in virtue of the original not permit. 
 
446 
 
 APPENDIX. 
 
 NicoLsoNE [for Egunton] declaired he wald not compeir, being comandit by the Erie Eglintoune to be 
 ' Knowing the case sHent.'^ Et HE PASSED FROME THE EXCEPTIOUNE UPONE THE NEW 
 would go against him. PATENT BY ERLE CUTHBERT EFTER THE YEERE 1503 AND BEFOIR 
 I See note * below. THE PERSEWERIS SEDERUNT 1505." 
 
 [Interlocutor.] 
 The Loedis permittis the exceptioune [sic — lege ' permiti'IS the defender '] to pas fromb 
 
 THE exceptioune. BOT THEY WILL NOT SUFFER HIM TO BE ABSENT. AnD REDUCES AND 
 DECLAIRES against- THE REMANENT DEFENDERIS IN ABSENCE FOR THE RESSOUNES PROVEN. 
 
 And ordaines the laite Erle of Montrois, swa designed in the summondis, to be 
 
 " Vide note t below. NOW DESIGNED JamES GrAIIAM."" 
 
 Concluding Observation. 
 
 The Claimant may remark in conclusion, that the sole cardinal point in the preceding disciission was, 'Had 
 ' there been a new or second Patent?' — to the assertion of which the Defenders ivere indispensably driven 
 and anxiously betook themselves. If there had been a second patent, the aspect of the case would have 
 changed ; but if not — as was at length admitted on all hands — then it behoved, ex necessitate, to fall back 
 upon the original and only Patent in 1488, as the exclusive and effectual constitution of the Earldom and 
 rule of descent — and the decision took place accordingly. 
 
 It is also especially to be observed, that by no Interlocutor, or finding, did the Lords touch or in the least 
 detract from the force or validity of the Parliamentary entry or Sederunt 1503 (which had been already 
 sustained in the Decreet of Ranking 1606), proving the existence then of the "Comes Montgomery," 
 — upon which Sederunt the Earl of Eglinton founded, which stood, and which therefore could only be met 
 (in terms of the Decision) by the original Glencairn patent 18th May 1488, to account for the constitu- 
 tion of the Earldom of Glencairn and mode of its descent. 
 
 (19) Decreet, l%th January 1648, by the Codkt of Session — the Supreme Civil Court in ques- 
 tions of dignity as well as in other civil causes— from which there was no appeal bithbe to 
 King or Parliament, and which acted moreover in this instance by special reference 
 FROM THE King and Privy Oovsoyl, under tJie Decreet of Banking 1606 (thus 'accumtdando 
 'jura Juribus'), — awakdino the contested precedency to the Earl of Glencairn in 
 virtue of the Patent 28th May 1488, as unaffected by the Act Hescissory, — a 
 Decreet pronounced ' in foro contentiosissimo,' and therefore, by Scottish law, final and 
 irreversible ; and which has ever since regulated the said peecbdency. — From tlie 
 Act and Decreet Register of the Supi-eme Civil Court. — ' Minutes of Evidence,' p. 40. — 
 (Referred to supra, p. xlv.)t 
 
 (No. CVI.) 
 
 DECREET OF PRECEDENCY, WILLIAM EARL OF GLENCAIRN, &c., AGAINST ALEXANDER EARL 
 
 OF EGLINTON, &c. 
 
 " Decimo-nono Januarii, 1648. 
 " Sederunt Domini Sessionis ut in die precedente, &c. &c. &c. 
 
 "In the Actioune and caus of Reductioune and Declarator, perssewed at the instance of Williame, now 
 Erle of Glencairne, Lord Kilmawris, 
 
 Sone and air to umquhill William Erie of Glencairne, Lord Kilmawris, his father, againes whome 
 
 * Thus kenouncJng that objection, and acknowledging 
 THAT THE Glencairn dignity depended solely and exclu- 
 sively upon the patent 1488. This tallies with the utter 
 silence of the Great Seal Record as to any other patent, though 
 containing both the Arran and Montrose constitutions in 1503 
 and 1504. Nor is there any trace of such other patent else- 
 where. 
 
 t This decision was followed by the final and ruling 
 Decreet, issued on the same day, 19th January 1648, which 
 forms the following article in this Appendix of evidence. 
 
 I Analysis of the (final) Decreet 19th January 1648. 
 
 ' XIX January 1648, Sederunt, &c. 
 In the Action of Reduction and Declarator pursued at the 
 instance of William Earl of Glencairn, 
 
 As son and heir of William Earl of Glencairn, against 
 whom, under the designation of Master of Glencairn, 
 the pretended Decreet i5f Reduction 1617 was pro- 
 nounced ; 
 As grandson and successor of James Earl of Glencairn, 
 against whom, as Earl of Glencairn, the Decreet 1617 
 was pronounced, and who had been prejudiced by the 
 Decreet of Ranking 1606 ; 
 As successor in the title and dignity of Earl of Glencairn to 
 umquhile Alexander Earl of Glencairn, Lord Kil- 
 maurs, his great-grandfather' s great-grandfather, ON whom 
 THE SAID Earldom was conferred by James III. by 
 A Charter or Patent under the Great Seal ; 
 
 And in favour of whom the King (Charles I.), by his 
 Letters of Ratification under the Great Seal, 21st July 
 1637, confirmed the said Patent 1488, declaring and 
 willing that the said patent shall be a valid and sufficient 
 right whereby he and his successoi's shall enjoy the 
 dignity,— 
 
 And who thus hath good and undoubted right to the 
 said honour and dignity, and sufficient interest to 
 remove all impediments which may hinder his 
 peaceable enjoyment of the said dignity according 
 to the precedency thereof, — 
 
 Against 
 
 Alexander Earl of Eglinton, George Earl of Caith- 
 ness, James Graham, designed in the Summons Earl of 
 Montrose, but now forfeited by the Estates of the realm, 
 John Earl op Cassillis, and theif eldest sons and grandsons 
 (specified), the High Treasurer, the Lord Advocate, &c. &c. 
 and all having interest in the matter, — 
 
 Calling for production before the Lords of Council and 
 Session, of 
 
 1. The pretended Decreet of Seduction Uth February 1617, 
 whereby the Decreet 7th July 1610, which restored 
 Glencairn to his due precedency against the Decreet 
 of Ranking 1606, was rescinded in favour of Eglinton, 
 — with the Summons, acts, minutes, &c. upon which 
 the said Decreet 1617 was founded ; 
 
APPENDIX, 
 
 447 
 
 the pretendit Decreit of Eeductioune efterspecifeit wes given and pronunceit, designit thairin 
 William Master of Glencairne, Lord Kilmawris ; 
 And als successor in the styll, title, dignitie, and Erledome of Glencairne, to umquhill James Erie of 
 
 2. The pretended Decreet of Ranking 5th March 1606, by 
 
 •which Glencairn was postponed to Caithness, Eglin- 
 ton, Montrose, and Cassillis, but whereby power was re- 
 sei-ved to such peers as should find themselves prejudiced 
 by the ranking then made, to have recouxse to the ordi- 
 nary REMEDY OP lAW for recovery of their due place 
 and precedency by reduction of the said Decreet of 
 Ranking before the Lords op Council and Ses- 
 sion, by production of more ancient and authentic im-its 
 and eoideiUs, — together with the Commission, &c. 
 ■whereon the said Decreet 1606 proceeded; And, 
 
 3. All other charters, writs, &c. granted in favour of the 
 
 said Earls of Caithness, Eglinton, Montrose, and 
 Cassillis, by which they can claim precedency over 
 Glencairn, — 
 
 To be seen and considered by the Lords, and to hear and see 
 the said Decreet of Keduotion 1617 and the Decreet of 
 Ranking 1606, and the remaining writs and evidents parti- 
 cularly and generally above-mentioned, reduced and decerned 
 to have been and to be now and hereafter null and void, in 
 so far as Glencairn is postponed in place and dignity to the 
 said four Earls thereby ; and to hear and see it found and 
 declared by Decreet of the Lords that the pursuer (Glencairn) 
 is entitled to the precedency in time coming, 
 
 jpor tI)E wasons follotoing, bt?., — 
 
 L The Decreet of Ranking 1606, in so far, &c. : — 
 Because the Decreet 1606 was given against the then 
 Earl of Glencairn for null defence and non-appearance, 
 and therefore the pursuer (Glencairn), as succeeding 
 in the dignity, ought now in the second instance 
 (conformably to the provision in the Decreet and by 
 the law of the realm) to be reponed against the same, 
 and be admitted to produce such documents for 
 proving his dignity and precedency as, if produced 
 in 1606, in the first instance, would have sufficiently 
 verified it. And true it is, that Alexander Lord 
 Kiltmiurs, great-grandfather s great-grandfather to the 
 said Earl of Glencairn, WAS created Earl of Glen- 
 cairn BY James III., on the 28th May 1488 ; by 
 VIRTUE OF WHICH Patent Cuthbert Earl of Glencairn, 
 grandson of Alexander, is designed by Decreet of the 
 Lords ^ Earl of Glencairn' in 1504 and sat in Parlia- 
 ment m 1 505 as Earl — in which Parliament Hugh Lord 
 Montgomery (Eglinton's predecessor) sat as Lord only ; 
 as also a Charter was granted to the said Cuthbert Earl 
 of Glencairn in 1507 : — Conformably to the which 
 Patents,* Sederunts, ^c. the House of Glencairn have 
 enjoyed the dignity of Earl without question for seven or 
 eight score years, — before which time mme of the four 
 Earls w/irdioned are able to prove the dignity of Earldom. 
 And, precedency being regulated by antiquity of' 
 creation (both by the law and practice of Scotland 
 and by the Decreet of Ranking 1606), and neither of 
 the four Earls, defenders, being able to shew anterior 
 proof, Glencairn is entitled to the precedency, — Which 
 allegiances, if proponed in ; the first instance, would 
 have been sufficient to have altered the ranking in 
 the Decreet 1606, and now, being proponed and 
 verified in the second instance, are sufficient to reduce 
 that Decreet in so far as he (Glencairn) is postponed 
 to the said defenders ; 
 
 n. The Decreet 1617: — Because the Decreet 1617 was 
 only obtained in consequence of the non-citrition of Mon- 
 trose, Cassillis, and Caithness to the giving of the said 
 Decreet ; and, the said three Earls having now been 
 lawfully summoned, their citation removes the ONLY 
 ground and cause of the reducing the Decreet 1610, and 
 renders the Decreet 1617 NULL, void, and extinct; 
 As at more length is contained in the Summons 
 and in the acts, &e. &c. 
 The pursuer, Glencairn, appearing by his procurators, who, 
 for proving his interest, &c. produced the writs and evidents 
 following,'' — viz. , 
 
 1. Decreet of Ranking 1606. 
 
 2. Decreet of Reduction 1610. 
 
 3. Decreet of Reduction 1617. 
 
 4. The GlencaiHn Patent 28th May 1488. 
 
 5. The Ratification by Charles I., 1637. 
 
 6. The Retour of James Earl of Glencairn, in 1630, as 
 
 heir to Alexander Earl of Glencairn (the patentee in 
 
 1488). 
 S."" Act of the Lords of Council and Session, I2th March 1504, 
 
 designing Cuthbert ' Earl of Glencairn.' 
 9. Sederunt of Parliament, \8th November and 5th February 
 
 1505, in which Cuthbert is styled ' Earl of Glen- 
 
 ' cairn.' 
 10. Sederunt of Parliament, 3rd February 1505, in which 
 
 Glencairn appears inter Comites and Montgomery inter 
 
 Dominos, on the same day. 
 12^ Charter under the Great Seal to 'Cuthbert Earl of 
 
 ' Glencairn,' 7th February 1507. 
 
 13. Charter under the Great Seal, 20th March 1503, de- 
 
 signing Eglinton ' Dominus de Montgomery.' 
 
 1 4. Charter to Hugh ' Dominus Montgomery,' 25th April 
 
 1505, — and several others of the like description. 
 
 18. Charter by James III., 24th July 1511, of the Earldom 
 
 and Barony of Glencairn, proceeding on a recog- 
 noscing of the (prcviousli/ existing) Earldom, and 
 anew erecting it into a free Earldom. 
 21. Sederunt of Parliament, 22nd June 1.508, 'Comes de 
 ' Argyll, Dominus de Montgomrie.' 
 
 25. Retour, I5th January 1515, of Cuthbert Earl of Glencairn 
 ' as heir to Alexander Earl of Glencairn, his grandfather 
 
 {the patentee in 1488), — stating the lands to have 
 been in non-entry since Earl Alexander's decease. 
 
 26. Instrument, 15th January 1515, taken on serving of 
 
 the brieves of Earl Cuthbert as heir to Alexander Earl 
 of Glencairn, his grandfather. 
 
 30. Gift by Queen Mary, 24th April 1505 {lege 1550), to the 
 Bishop of Argyle, of the non-entry of lands fallen in 
 non-entry by decease of Robert Earl of Glencairn (son 
 of the patentee), Cuthbert, or William Earls of Glen- 
 cairn, &c., — ^in which they are all designed Earls. 
 
 36. Sederunt in Parliament 2 1st {lege 25th) March 1503, 
 bearing ' Comes de Montgomery * to sit in Parliament, — 
 and the same day in the afternoon, and on the 
 morrow, he is designed Dominus Montgomery : — 
 
 And the defender, Eglinton, appearing by his procurators, 
 who, for proving Eglinton to be Earl before Glencairn, and that 
 Glencairn was Lord Eihrmurs only after the date of t/ie Patent 
 1488, produced the writs and evidents following, — viz., 
 
 1. Charter by James V., 23rd January 1528, to Hugh 
 Earl of Eglinton, reciting that the Master of Glencairn 
 had burnt the castle of Eglinton and ffie family charters 
 and evidents.'^ 
 
 ■2. Precept of Sasine, 1500.'' 
 
 3. Sasine, 1502.° 
 
 4. Sederunt op Parliament 25th March 1503, bearing 
 
 ' LLugh Earl of Montgomery ' to sit in Parliament. 
 
 5. Four Sederunts in Council and Session, March 1506, 
 
 among whom the ' Earl of Eglinton,' — and many 
 others of subsequent date, making mention of the 
 Earl of Eglinton. 
 8. Precept of Clare Constat, 10th May 1507, by Hugh 
 ' Earl of Eglinton.' 
 
 15. Sederunt of Parliament, October 1488, where 'Lord Kil- 
 
 ' maurs ' sits among the Lords. 
 
 16. Charter by James LV., 1492, to Cuthbert Lord Kilmaurs. 
 
 17. Charter by James IV., 1498, to William Cunningham, 
 
 apparent heir to William (lege Cuthbert) Lord Kil- 
 maurs. 
 18.' Sederwrit of Parliament, 3rd February 1489, ' Lord Kil- 
 ' maurs ' among the Lords. 
 
 19, 20. Extracts from the Books of Adjournal of a Justi- 
 
 ciary Coui-t held at Ayr, 2nd June 1505, where 
 ' Cuthbert Lord Kilmaurs.' occurs six times. 
 21-26. Sederunts of Session, January 1508, February 1508, 
 and February 1508 ; Sederunt of Parliament 1524; 
 Sederunt of Parliament 1558 ; and Sederunt of Parli- 
 ament 1584, — in which Eglinton is ranked before-Glen- 
 cairn. 
 
 27. Contract between the families of Eglinton and Glen- 
 
 cairn, making mention of a Decreet Arbitral given 
 by the Duke of Albany, Governor of Scotland, betwixt 
 Hugh Earl of Eglinton, Cuthbert Earl of Glencairn, 
 and William Master of Glencairn, and their respective 
 kin and friends, dated the 14th December 1537, in 
 which Contract Eglinton and his friends are first 
 named, and whicl^is subscribed by Eglinton and his 
 friends first, and by the Master of Glencairn and his 
 friends last.f 28. Act 
 
 " Although the plural word is used, only one Patent is 
 alluded to— the ' LittersE Patentes ' of 28th May 1488. 
 
 '■ The less important writs are not noticed in this Analysis. 
 
 ' This was to account for the family not being able to produce 
 their Patent of Earldom ; which moreover was not registered. 
 
 •■ Not insisted upon, as untenable. Vide supra, p. 439, n. *. 
 
 ' Not insisted upon, like the preceding. 
 
 ' There is some confusion about this document. Glencairn 
 does not sign at all, but only his son {infra, pp. 455, 478). And 
 Earl Cuthbert was dead, Albany banished, and James V. in full 
 power as King, in 1537. A Decreet Arbitral was pronounced by 
 Albany between Eglinton and Glencairn in 1517, but it does not 
 exactly tally with the above document. Vide infra, p. 518. 
 
448 
 
 APPENDIX. 
 
 Glencairne, his guidschir (grandfather), againes whome lykwayes the said pretendit Deoreit of 
 Eeductioune was given, and in whais hurt and prejudice the uther Decreit efterspecifeit wes 
 given and pronuriced be the Lordis Commissioneris appoynted for ranking of the nobilitie of this 
 kingdome in maner efter-mentionat ; 
 
 And whilk now William Erie of Glencairne, perssewer, is also successor in thefoirsaid styll, title, and 
 dignitie of Ei-le of Glencairne, to umquhill Alexander Ekle of Glencaibne, Lord Eilmawris, 
 his foirgrandschiris foirgrandschir (great-grandfather's great-grandfather). In whome the roin- 
 
 SAID TITLE, HONOB, AND DIGNITIE OP EbLE OP GlENCAIRNE, Lord KHmaWris, WES CONFEBRED, 
 GIVEN, AND GBANTED BE UMQUHILL KiNG JaMES THE ThEID, of WOrtUe memorie, BE VEETEW 
 AND CONFORME TO ANE ChARTOB AND LeTTRE PATENT OF THE FOIRSAID DIGNITIE GBANTED 
 TJNDEE THE GBEAT SEALL OF THIS KINGDOME, WHAIBBY K. JaMES 3 DID MAK AND CREAT 
 
 THE SAID UMQUHILL Eble OF Glencairne and Ms aires perpetvallie, in all tyme tlmirafter, Eele 
 OP Glencairne and Lord Eilmawris ; 
 
 And to and in favoris of the whilk "William, now Erie of Glencairne, the Kingis Majestie that now 
 is, be his Lettres of Eatificatioun under the great seal], of the dait the 21 day of July, \Q^1 
 yeeres, hes ratified, approven, and perpetuallie confirmed the foirsaid Lettres Patent, gi-anted be 
 the said umquhill King James the 3, of worthie memorie, to and in favoris of the said umquhill 
 Alexander Erie of Glencairne, foirgrandschiris foirgrandschir to the said perssewer, of the 
 foirsaid title and dignitie of ane Erie, with all utheris Lettres Patentes, writtis, and evidentis 
 maid and granted to the said umquhill Alexander Erie of Glencairne, his predicessoris or 
 successoris, of the foirsaid styll, title, and dignitie of ane Erie, in the haill poyntis and articles 
 thairof; and hes willed and declaired that the foirsaidis Lettres Patentis grantit be the said 
 umquhill King James the 3 to the said umquhill Alexander Erie of Glencairne, with the Eatifi- 
 catioun thairof foirsaid, are and salbe valyde, perfyte, and sufficient rightis whereby the said 
 Williarae now Erie of Glencairne, persewer, and his successoris foirsaidis may bruik and injoy 
 the foirsaid honour, title, and dignitie of ane Erie, according to the saidis Lettres Patentis in all 
 poyntis : — 
 
 And swa the said Williame, now Erie of Glencairne, persewer, haveing guid and undoubtit 
 right to the foirsaid honor, title, styll, and dignitie of Erie of Glencairne, Lord 
 
 28. Act of Justice Court, 17th March 1567, where 'Hugh 
 
 ' Earl of Montgomery ' protests, &c. 
 
 29. Signature by James IV., June 1513, in favour of 
 
 O'Neil, Prince of Cowal, in which Eglinton is ranked 
 before Glencairn. 
 
 30. Charter to David Earl of Crawford, Duke of Montrose, 
 
 18th May 1488. 
 
 34. Charter to Andrew Lord Gray, 14th December 1488. 
 
 35. Another Charter to the Earl of Crawford, Duke of 
 
 Montrose, 19 th September 1489. 
 
 36. Charter by James III., 25th May 1488, to Innes of 
 
 that Ilk. 
 
 37. Charter by James III., 18th May 1488, to TurnbuU of 
 
 Greenwood, of the lands of Terrinzean. 
 
 38. Charter, 1492, on the resignation of ' Cuthbert Lord 
 
 ' KilmaursJ' ' 
 
 39. Decreet of Parliament, 1491, in favour of the executors 
 
 of ' Alexander Lord Kilmaurs.' 
 
 40. Sederunt of Parliament, 1479 (lege 1497), where 
 
 ' Kilmaurs ' anfbng the Lords. 
 &c. :— 
 
 And the pursuer (Glencairn) having produced a Summons of 
 Walkening," raised, &c. &c., — 
 
 And the rights, reasons, allegiances, and answers respective of 
 the afore-named parties, with the writs, cvidents, decreets, 
 sederunts, and other documents produced by both parties, 
 having been heard, seen, considered, and advised by the 
 Lords of Council and Session, — 
 
 The said Lords bedcce, eescind, and annul 
 
 I. 'V^'E pretended Decreet of Bedcction 1617 ; 
 
 II. The ^ireiCTt&i Decreet OF Banking 1606; and 
 
 III. The remaining '.rrits and evidents particularly and gene- 
 rally specified, — 
 
 and DECERNS and declares them to have been, Sfc. and to he 
 NULL AND OF NONE AVAIL, &c. IN SO FAR as by the Decreets 
 and writs foresaid Glencairn and his successors is or may be 
 postponed in rank and precedency to the Earls of Caithness, 
 Eglinton, Montrose, and Cassillis, and their successors; 
 
 And find and declare that William Earl of Glencairn, pur- 
 suer, his heirs and successors, ha^, and shall have the right of 
 PRECEDENCY before the said Earls of Caithness, Eglinton, 
 Montrose, and Cassillis, and their successors. 
 
 jfor tj&e masons anii causes ahobe iatitttn : — 
 
 Because the said Lords, having heard and advised the 
 allegiances and objections proponed in process on the 
 part of Eglinton against the pursuer's (Glencairn's) inte- 
 rest and title above- written, with the pursuer's (Glen- 
 cairn's) answers thereagainst, in fortification of his said 
 interest and title ; Thei sustained the phrsbek's 
 
 INTEREST and TITLE ABOVE-MENTIONED AS THE SAME 
 STANDS LIBELLED, AND AS PROVED EST THE WRITS 
 FORESAID PRODUCED BY THE PuRSUER FOR THAT EF- 
 FECT ; Notwithstanding the said allegiances made 
 THEREAGAINST by EijUnton, which they repelled in re- 
 spect of the foresaid interest and title libelled, and proofs 
 tliereof, and answers proponed in fortification thereof: — 
 And having, at Eglinton's desire, taken Glencairn's oath * 
 calumiiid, that he had just cause to insist upon the reasons of 
 reduction above mentioned, as they stand libelled, &c., — 
 And having appointed to both parties the 21st of December 
 last to produce any further evidence not then already pro- 
 duced, and both parties having appeared on that day and 
 produced and repeated the evidence forsaid, &c., and both 
 parties having been heard at length thereupon in presence 
 of the whole Lords, — ■ 
 
 And the dispute being closed, and Eglinton, on being asked 
 whether he desired to be heard further before the decision, 
 having referred the dispute to the Lords' decision, — 
 
 And the Lords, having taken to their consideration the forsaid 
 reasons of reduction, with the allegiances, answers, ^c. proponed 
 against them by Eglinton, and the writs, evidents, ^c. produced 
 by both parties, and having at length read, heard, considered, 
 and advised the same, — 
 
 The Lords, after full debate and reasoning thereupon, Have 
 
 FOUND AND FIND THE REASONS OF REDUCTION ABOVE-MEN- 
 TIONED relevant and SUFFICIENTLY PROVEN by the foresaid 
 writs produced by the pursuer (^Glencairn) to thai effect. Not- 
 withstanding OF THE WRITS, EVIDENTS, &C. PRODUCED 
 
 BY Eglinton, and of the allegiances proponed for 
 HIM thereupon — which the Lords repelled and 
 REPEL : — 
 
 In respect whereof, and of the pursuer's oath de 
 calumnid, &c., the said Lords reduce and declare 
 against Alexander Earl of Eglinton, as said is,— 
 And ordains Letters to be directed hereupon, &c.' 
 
 ° The form adopted on the renewal of a legal prosecution after a break, or temporary dormancy. 
 
APPENDIX, 449 
 
 Kilmawris, and siifficient entres (interest) to remove all inipedimentis wliilkis may any- 
 wayes stopt, hinder, or impeid him in the peaceable bruiking and joyseing of the 
 samyne dignitie according to the preaedencie and antiquitie thairof, and consequentlie to 
 persew the Actioune of Reductioune under-writtin 
 
 Againes 
 
 Alexander Erle of Eglintoune ; Hew Lord Montgomrie, his sone ; Geokge Erle of Caithnes ; 
 Lord Berriedaill, [his] sone ; Master of Berriedaill, his oy (grandson) ; James Grahame, 
 
 designit in the Summondis James Erle of Montrois, wha is now forfaulted be tiie Estaites of this kingdoms ; 
 James Grahame, his sone, designit in the said Summondis James Lord Grahame, his sone; Johne Erle of 
 Cassillis ; Lord Kennedy, bis sone ; Johne Erie of Traquair, Lord Lyntoune and Caberstoune, 
 
 High Thesaurer of Scotland for the tyme ; Schir James Carmichaell of that ilk, Thesaurer Depute ; umquhill 
 Schir Thomas Hope of Craighall, Knyght, our Soverane Lordis Advocat the tyme of the raiseing of the raisseing 
 [sic] of the Summondis in this mater ; Schir Johne Hay of Baro, Knyglit, than Clerk of Registre ; umquhillis James 
 and Mr. Gilbert Prymroses, Clerkis of his Hienes' Secreit Councell, and clerkis to the foirsaid Comissioune under- 
 ^vrittin and Decreit efterspecifeit following thairupone, and haveris of the foirsaid Decreit and haill proces 
 quhairupone the samyne proceedit in thair custodie ; Schir Alexander Gibsone of Durie, Knyght, Clerk of 
 Eegistre, than designit Mr. Alexander Gibsone ; Mr. William Scott, now designat Schir William Scott ; and 
 Mr. William Hay, Clerkis of Sessioune, haveris in thair handis of the foirsaid Decreit of Reductioune efterspecifeit, 
 and haill proces quhairupone the samyne proceedit ; and the tutoris and curatoris of swa many of the saidis 
 defenderis as are minoris, giff they any have, for thair entress ; And all utheris haveand or pretendand to have 
 entres in the actioune eftermentionat, 
 
 TUICHING THE PRODUCTIOUNE BEFORE THE SAIDIS LoRDIS OF CoUNSALL AND SeSSIOUNE, OF 
 
 [1. Tlie Decreet 1617 :] — T/ie pretendit Decreit Reductive, alledgit ohtenit befoir the saidis Lordis upone 
 tlie xj day of Felruar, 1617 yeeres, at the instance of the said Alexander Erie of Eglintoune, 
 againes the said umquhill James Erie of Glencairne, Lord Kilmawris, guidschir to the said 
 persewer, and against the said William Master of Glencairne, his sone ; whereby the saidis Lordis 
 alledgit retreittit, rescindit, and adnullit ane Decreit Reductive obtenit befoir the saidis Lordis 
 at the instance of the said umquhill James Erie of Glencairne againes umquhill Hew Erie of 
 Eglintoune, of the daite the sevint day of July, 1610 yeeres, be the whilk Decreit Reductive 
 and for the ressounes thairincontenit the saidis Lords of Counsall and Sessioune reduceit and 
 reschindit the pretendit Decreit befoir and efterspecifeit, given and pronunced be the said Lords 
 Comissiouneris appoyntit by his Majestie's umquhill darrest father of worthie memorie for Ranking 
 of the Nobilitie of this kingdome, whairby the said umquhill James Erie of Glencairne wes 
 alledgit postponit in rank and place to the saidis Erles of Caithnes, Eglintoune, Montrois, and 
 bassillis, in maner thairin mentionat,^ — together with the principall lybellit Summondis of Reduc- 
 tioune, actis, and lettres of continuatioun, executiounes and indorsatiounes of the said Summondis 
 and lettres, and haill remanent actis, lettres, and interloquittoris. Minutes of Proces, groundis and 
 warrandis quhairupone the samyne Decreit Reductive alledgit obtenit at the instance of the said 
 Alexander Erie of Eglintoune wes foundit and proceedit, — And sicklyke the saidis defenderis to 
 brino- with thame, exhibits, and produce befoir the saidis Lords of Counsall and Sessioune, 
 
 [2. Tlw Decreet of Ranking 1606:] — The foirsaid pretendit Decreit given and pronunced be the saidis 
 Lards Commissiouneris appoyntedfor Ranking of the Nobilitie of this kingdome, \f tlie daite thefyft day 
 of Merch, 1606 yeeres, or of quhatsumever uther daite or daittis the samyne be of; be the whilk 
 Decreit the said umquhill James Erie of Glencairne wes allegit postponit in place, rank, and 
 dignitie to the saidis Erles of Caithnes, Eglintoune, Montrois, and Cassillis ; and whairby the 
 saidis Lordis Comissiouneris ordained the haill nobilitie of this kingdome to keepe and bruik thair 
 rankis and places according to the ordor thairin appoynted and sett doune to tliame, but {without) 
 prejudice to such as souldfind thameselves prejudgeit, to ham thair recourse to the Ordinar Remeid of 
 Laic for recoverie of thair owne dew places and rankis, be Reductioune befoir the saidis Lordis of Counsall . 
 and Sessioune of the saidis Lordis C'omissioneris thair Decreit of Ranking above writtin, and be pro- 
 ductioune of mair auntient writtis nor {than) loas then useit and produceit befoir the said Comissioneris 
 in that proces, as the said pretendit Decreit of Ranking beires, — togither with the haill Comissioune, 
 lettres of publicatioun, executiones thairof, actis of productioune, ratification nes, and all utheris 
 groundis and warrandis quhairupone the foirsaid Decreit of Ranking proceedit, and following or 
 depending thairupone, — Togither also with 
 
 [3.] All and quhatsumever utheris warrandis, chartoris, lettres patentis, erectiounes of erledomes, and 
 utheris writtis, evidentis, rightis, and titles whatsumever, maid and granted in favoris of the saidis 
 Erles of Caithnes, Eglintoune, Montrois, and Cassillis, or ony of thame or thair predicessoris, or 
 in favoris of ony of the remanent persones defenderis abovenamed, and thair predicessoris, be the 
 whilk they or ony of thame clame, or pretend to have right of precedencie and prioritie of place 
 and rank befoir the said William now Erie of Glencairne, persewer, in Parliament, Counsall, 
 
450 APPENDIX. 
 
 privat or publict, or [sic] Conventiounes and meetinges, of whatsomever daite or daittis, tennoris 
 or contentis, the samyne be of, — 
 
 To HAVE BENE SEENE AND coNsiDDERiT be the saidis Lordis, and to have hard and seene the foirsaid 
 pretendif Decreit of Eeductioune, with all that hes foUowit or may follow thairupone, Togither with the said Decreit 
 of Banking of the Nobilitie of this kingdome and postponeing of the said umquhill James Erie of Glencairne in 
 place, rank, and dignitie to the saidis Erles of Caithnes, Eglintoune, Montrois, and Cassillis, with all that hes 
 followed or may follow thairupone, Togither also with the haill remanent writtis and evidentis particularlie and 
 generalie abovementionat, callit for as said is, Be [sic] keduceit, eetheittit, eeschindit, cassit, annulled, 
 
 DECERNED AND DECLAIRED TO HAVE BENE FBOME THE BEGINING, [tO be] NOW, AND IN ALL TYME COMEING, NULL 
 
 AND OF NANE AVAILL, FORCE, STRENTH, NOR EFFECT, with all that hss followed Or may follow thairupone, in swa 
 farr as be the samyne decreittis and remanent evidentis and writtis foirsaidis, or ony of thame, the said WUliame 
 now Erie of Glencairne, perswer, his aires or successoris, Erles of Glencairne, is or may he postponed in place, rank, 
 and dignitie to the saide Erles of Caithnes, Eglintoune, Montrois, and Cassillis, or ony of thame or thair successoris ; 
 And als to have heard and seene it fund and declaired that [sic] be Decreit of the saidis Lords that the said 
 William now Erle of Glencairne, persewer, his aires and successoris, Erles of Glencairne, oitght and sould 
 and sail have in all tyme cumeing the right of precedency and priobitie of place and voiteing in all Par- 
 liamentis, Councellis, Conventiounes, and utheris publict and private meetinges, befoir the said Erles of Caithnes, 
 Eglintoune, Montrois, and Cassillis, and thair successoris, notwithstanding of the foirsaidis Decreittis and other 
 writtis callit for, or of any uther right or title of honor and dignitie granted to thame or ony of thame, or thair 
 predicessoris, 
 
 jffor tfit itsigomsi folltitouis:,— 
 
 [i. The Decreet of Ranking 1606:] — Becaus the foirsaid Decreit of Banking, given be the saidis 
 Lordis of Secreit Councell and utheris haveing his Hienes' Comissioune for that effect, in anno 
 1606, quhairby the said umquhill James Erie of Glencairne, guidschir to the said persewer, wes 
 alledgit postponed to the said Erles of Eglintoune, Caithnes, Montrois, and Cassillis, wes given 
 againes the said umquhill James Erie of Glencairne for not compeirance, he never being laufullie 
 
 sumoned to the giveing thairof, nor to have producit his rightis and documentis of dignitie, at the 
 
 leist, the said pretendit Decreit wes given againes him for null defence and not compeirance ; And 
 thairfore the said persewer, as now succeiding in the right and title of the said dignitie in maner 
 foirsaid, conforme to the provisoune contenit in the said Decreit, and be the law of this kingdome 
 aught now in the second instance to be reported againes the samyne, and be admitted to produce 
 and use suche evidentis and documentis for clearing of his dignitie and right of precedency 
 befoir the saidis defenderis, or ony of thame, as wes not produceit nor useit in the first instance ; 
 whilkis evidentis and documentis, in caice they had bene produced in prima instantia. wald have 
 bene sufficient to have verified the said perseweris guidschir to have bene more auntient and 
 prior in the dignitie of ane Erie nor any of the saidis defenderis or thair predicessoris foresaidis. 
 And trew it is that the said perssewer his predicessore, viz., Alexander than Lord Eilmawris,foir- 
 grandschiris foirgrandschir to the said WUliame Erie of Glencairne, persewer, was great Erle of 
 Glencairne be King James the Thbid, of worthie memorie, upone the 28 day of Maij 
 1488 YEERES; Be vertew of the whilk patent Cuthbert Erie of Glencairne, oy to the said 
 umquhill Alexander, first receaver thairof (the said Alexander haveing bene killed in the feild of 
 Stirling some ten dayes after the daite thairof, and Robert, sone to the said Alexander, haveino- 
 deceast shortelie efter his father), is designit be Decreitt of the Lordis, the twelff of Merch 1504 
 Erie of Glencairne, and satt in the Parliament holden be King James the 4, in anno 1505, as Erie and 
 wes so acknmdedged be him and be tlie Estates of Parliament, — in the quhilk Parliament Hew Lord 
 Montgomrie, the Erie of Eglintoune' s predicessor, satt as Lord ; Lyhas also there wes fal charter 
 granted of the landis and baronie of Hiltoune be the said umquhill King James the 4 in anno 1507 
 yeeres, to the said umquhill Cuthbert Erie of Glencairne, — Conforme to the whilk patentis 
 sederuntis, and rightis, the perseweris haill predicessoris of the Hous of Glencairne has bmked tlie title 
 and dignitie of Erles without questioune peaceablie now be the space of sevin or aught scoir yeeres ; 
 Befoir the whilk tyme nane of the saidis Erles above mentionat did schaw any thing anterior, neyther 
 was thair predicessoris hable to schaw and verifie the dignitie of Erles or uther laufull creatioune of 
 Erles granted to thame or ony of thame or thair predicessoris foirsaidis. And, sieing be the law and 
 practique of this kingdome inviolablie observed, and be the foirsaid Decreit of Ranking of the 
 nobilitie of this kingdome in the said yeere of God 1606, it is manifest that amongst noblemen 
 provydit to dignitie those who are prior in dignitie, and first provydit thairto, and are most 
 auntient in the title thairof, ought to be and are ever preferred to all utheris being posterior to 
 thame in title and dignitie, and' the said persewer and his predicessoris foirsaidis being raaist 
 auncient and prior in dignitie befoir any of the saidis defenderis or thair predicessoris, the said per- 
 sewer and his successoris aught and sould be ranked and have prioritie and precedencie in place, 
 voite, title, and dignities befoir any of the saidis defenderis and thair successoris in all Parliamentis, 
 Counsallis, private and publict meetinges, seing nane of tham are able to show such auncient 
 evidentis of thair dignitis as the said persewer :— Whilk alledgance foirsaidis, if the samyne had 
 
APPENDIX. 451 
 
 bene proponed in the first instance, wald have bene sufficient to have altered the ranking of the 
 said perseweris guidschir, and to have given him the right of precedencie and prioritie of title 
 and dignitie to any of the saidis defenderis thair predicessoris foirsaidis ; and now being proponed 
 and verified in the second instance, the samyne is sufficient to reduce and anull the said pretendit 
 Decreit of Ranking in swa farr as the persewer and his said guidschir are, ware, or may be 
 postponed in rank and dignitie to any of the saidis defenders or thair foirsaidis, and, consequentlie, 
 is sufficient to reduce the foirsaid pretendit Decreit Eeductive, alledgit obtenit at the instance of 
 the said Alexander Erie of Eglintoune againes the perseweris father and guidschir ; and not- 
 withstanding of the foirsaidis pretendit Decreittis or either of thame, the said Williame Erie of 
 Glencairne, persewer, and his successoris, aught and sould have the right of precedencie, and be 
 preferrit now and in all tyme cumeing, in all Parliamentis, Councellis, private and publict 
 meetinges, to the defenderis above named, or ony of thame and thair successoris, perpetuallie in all 
 time cuming : — 
 
 [ii. The Decreet 1617:] — Secondlie, tJie foirsaid pretendit Decreit of Eeduotioun, aWegit obtenit at 
 the instance of the said Alexander Erie of Eglintoune againes the said umquhill James Erie of 
 Glencairne, the perseweris guidschir, and William than Lord Kilmawris, the perseweris father, 
 upone thexj day of Februar, 1617 yeeres, reduceing the said Decreit Reductive obtenit at the 
 instance of the said James Erie of Glencairne againes umquhill Plew Erie of Eglintoune upone 
 the sevint day of Julii, 1610 yeeres, wes only given and obtenit againes the said perseweris father 
 and guidschir upone this ground, viz., becaus the Erles of Montrois, CassUlis, and Caithnes, who were 
 ranked efter the said Erie of Eglintoune, and before tlie perseweris guidschir, sould have been sumond, 
 and were not sumond to the giveing of the said Decreit Seductive ; Lykas the not citatioune of thame 
 was the onlie ground and ressoune of the reduceing of tlw foirsaid Decreit Reductive obtenit be the said 
 perssewer againes the said Erie of Eglintoune, as is manifest by the samyne Decreit of Reductioune 
 allegit obtenit be the said Erie of Eglintoune againes the persseweris father and guidschir above 
 named, and as is at mair lenth contenit thairin ; And the not sumonding of thame being the only 
 ground and caus of the reduceing of the said Decreit Seductive, the saidis thrie Erles of Montrois, 
 Cassillis, and Caithnes being now sumond in this instance, thair citatioune elydis, removes, and takes 
 away the foirsaid pretendit ressoune and caus of reductioun contenit in the said Erie of Eglintoune his 
 pretendit Decreit of Seductioune in anno \6Vl yeeres foirsaid, and consequentlie randeris the samyne 
 pretendit Decreit and ressoune foirsaid thairin contenit ??ieerKe null, voyd, and extinct, with all that 
 hes followed or may foUow thairupone, — 
 
 As at mair lenth is contenit in the said Sumondis, and in the actis and lettres and haill 
 proces led and deduceit in the said mater :■ — - 
 
 The said pekseweb compeikand be Schir Lues Stewart, M' Johne Gilmour, Robert Hepburne, and 
 his procuratoris, wha for instructing of the perseweris entres, and for satisfieing of the productioune of 
 the said Sumondis of Reductioune and verificatioun of the ressounes thairof above mentionat, produceit the 
 writtis and evidentis following, viz., — 
 
 [1] The Decreit of Counssell anent the Ranking of the Nobilitie thairin mentionat, daittit the fyft day 
 
 of Merch, 1606. 
 [2] Item, the Decreit of Reductioune obtenit at the instance of James Erie of Glencairne againes Hew 
 
 Erie of Eglintoime and Johne Earl of Cassillis, reduceing the foirsaid Decreit of Ranking of 
 
 the daite the sevint day of Julij, 1610 yeeres. 
 [3] Item, the Decreit Reductive obtenit at the instance of Alexander Erie of Eglintoune againes 
 
 the Earl of Glencairne, daittit the xj of Februar, 1617, reduceing the foirsaid Decreit 
 
 Reductive. 
 [4] Item, the first Patext of the dignitie granted to Alexander Erie of Glencairne, the 28 of May, 1488. 
 [5] Item, the Satificatioun of the said patent and of all utJisr evidentis of the foirsaid dignitie be King 
 
 Charles, 21 Mii, 1637. 
 [6] Item, the Retoure of James Erie of Glencairne as air to umquhill Alexander Erie of Glencairne, 
 
 daittit the penult day of Appryle, 1630. 
 [7] Item, "Williame now Erie of Glencairne his Seaseing as air to umquhill Erie Williame, his father, 
 
 upone ane precept furth of the Chancellarie, relative to ane retoure daittit the nynt day of 
 
 November, 1635. 
 [8] Item, ane Act of the Lordis of Sessioune of the twelf of Merch, 1504, designeing Cuthbert 'Erie of 
 
 ' Glencairne.' 
 [9] Item, ane Rolement and Sederunt of Parliament of the 18 of November and fyft of Februar, 1505, 
 
 quhair Cuthbert Erie of Glencairne satt as ' Erie of Glencairne' the 18 of November 1505, and 
 
 fyft of Februar foirsaid, and whair John Master of Montgomrie is called at the kingis 
 
 Majestie's instance the said 18 day of November, 1505. 
 [10] Item, ane Sederunt of Parliament the thrid of Februar, 1505, bearing ' Glencairne' to sitt inter 
 
 Comites and ' Montgomrie ' to sit inter Dominos, both in one day, — with 
 [11] Ane uther Sederunt of Parliament, of the daite the 23 of Februar, 1524, bearing ' Glencairne' 
 
 and ' Efflintoune' to sitt both as Erles in one day. 
 
 3 M 
 
452 APPENDIX. 
 
 [12] Item, the Extract* of ane Charter under the great seale grantit to Cuthbert Erie of Glencairne, 
 daittit 7 Februar, 1507. 
 
 [13] Item, ane Chartor under the great seale, extractit, of the 20 of Merche, 1503, designeing Eglin- 
 toune ' Dominus de Montgomrie.' 
 
 [14] Item, ' Carta Hugonis Domini Montgomrie,' 25 Apryle, 1505. 
 
 [15] Item, ' Carta Hugonis Domini Montgomrie,' 27 November, 1506. 
 
 [16] Item, 'Carta "Willielmi Cunynghame, filii Cuthberti Comitis de Glencairne,' 10 Julij, 1509. 
 
 [17] Item, 'Carta Cuthberti Comitis de Glencairne,' 17 Februar, 1510. 
 
 [18] Item, ' Carta Cuthberti Comitis de Glencairne,' 24 Julii, 1511, of the Erledome and Baronie of 
 Glencairne, lehilk Erledome was recognoscit and he the said new chartor is of new uneit and erectit in 
 anefrii Erledome. 
 
 [19] Item, ' Carta Hugonis Comitis de Eglintoune,' 27 Junij, 1509. 
 
 [20] Item, ane Sederunt of Parliament, 24 Apryle, 1505 ; inter dominos ' Dominus de Montgomrie' is 
 designit to sitt in Parliament. 
 
 [21] Item, ane Sederunt of Parliament, ' Comes de Argyll, Dominus de Montgomrie,' 22 Junij, 1508. 
 
 [22] Item, ane Sederunt of Parliament, of the first of October 1545, and 29 May 1592,— inter Comites 
 ' Comes de Glencairne.' 
 
 [23] Item, ane Decreit of Eecognitioune befoir the Lordis of Sessioune, of the 14 of Junij 1505, sub- 
 scryvit be M' Gawin Dumbar, Clerk Registre, whairin Glencairne sittis and is designed Erie 
 and Montgomrie as Lord, they being both Lordis of Sessioune for the tyme. 
 
 [24] Item, ane Precept of Seasing, under the quarter seale, to Cuthbert Erie of Glencairne of the 
 baronie of Hassindeane, daittit 17 Februar, 1510. 
 
 [25] Item, ane Retoure of the xv of Januar, 1515, whereby Cuthbert Erie of Glencairne is serveit air to 
 Alexander Erie of Glencairne, his guidschir. The retour beires the landis to have bene in nonentrie since 
 Erie Alexander his decease, ■wha deceast 27 yeeres befoir the daite foirsaid of the retour. 
 
 [26] Item, ane Instrument taken ' in plenfi, et plana curia Vicecomitatus de Dumbertane ' upone the 
 serveing, proclaiming, and verifieing of the breives of the said Cuthbert Erie of Glencairne as 
 air to Erie Alexander, his guidschir, daittit 15 Januar, 1515. 
 
 [27] Item, an Instrument of the 27 of May 1516, bearing that Johne Erie of Lennox and Cuthbert 
 Earl of Glencairne, for thaipe, thair friendis, kinsman, and tennentis, requyred the judges arbi- 
 tratoris contenit in the instrument to concurr with ane uther number of thair arbitratoris 
 thairin nominat in decydeing of all debattis betwixt the saidis noble Erles and thair freindis, 
 conforme to the compromitt thairinspecifeit, — John Moresone nottar to the said instrument. 
 
 [28] Item, ane Lettre of Regres, under the privie seall, the 8 of September, 1524, whairby the Kingis 
 Majestic gives ane regres to Cuthbert Erie of Glencairne, Lord Kilmawris, of certane lands 
 thairinspecifeit, wodsett (mortgaged) be thame to Hew Erie of Eglintoune, for implement of 
 ane decreit arbitrall betwixt the Erles of Glencairne and Eglintoune. 
 
 [29] Item, ane Gift of Nonentrie under the privie seall be Queene Marie to William Erie of Glencairne, 
 of the nonentrie of the baronie of Duchall and utheris thairin contenit, daittit the 20 Februar, 
 1547. 
 
 [30] Item, ane Extract out of the register of the privie seall, the 24 Apryle, 1605 (sic, — lege 1550), to 
 William Bischope of Argyll, of the nonentrie of the baronie of Kilmawris and ane number of uther 
 lands thairin spedfeit, fallin in nonentrie be the deceis of Robert Erie of Glencairne, Cuthbert or 
 William Erles of Glencairne, or ony of thame, last tennentis to the Queenis Majestic thairof, — 
 In the quhilk gift they are all designit Erles. 
 
 [31] Item, ane Chartor be Queene Marie under the great seall to Alexander Erie of Glencairne, of 
 ane number of landis thairin specifeit, upone the resignatioun of the Lord Lyell, daittit 20 
 Junii, 1551. 
 
 [32] Item, the just double and transumpt of Schir Alexander Montgomrie, now Erie of Eglintoune, 
 his dimissioune and resignatioun in the Kingis handis of all clame and right quhilk he may 
 pretend to the style, honor, and dignitie of Erie of Eglintoune, subscryvit at Edinburgh, 
 1 Februar, 1615, befoir the Erie of Dumfermling, Lord Chancellor, the Erie of Wintoune, 
 and Schir William Seatoune, being his owne brother and two uncles. This double is docquett 
 be the Erie of Hadingtoune his owne hand, being than Secretare, and be Schir William 
 Oliphant, being thane Advocat to his Majestie, and is subscryvit be the saidis Lordis Secretare 
 and Advocat thair handis. 
 
 [33] Item., ane Act of the Lordis of Sessioune, of the 19 of Januar, 1505, bearing ane actioune per- 
 sewed be the Erie of Glencairne againes Hew Lord Montgomrie to be continewed till the thrid 
 of Februar thairefter, be the Kingis speciall comand in writt. In this Act Glencairne is Erie 
 and Montgomrie only Lord, and is twyse thairin repeitted Lord, viz., first in the sederunt of 
 the Act and nixt as pertie thairin. 
 
 [34] Item, ane uther Act of Sessioune of the 5 of Februar, 1505, bearing Glencairne to sitt as Erie, 
 and Montgomrie only as Lord, they being than both Lordis of Sessioune. 
 
 * That is, a full office copy. 
 
APPENDIX. 453 
 
 [35] Item, ane uther Act of Sessioune, of the 9 of Februar 1505, bearing Hew Lord Montgomrie, 
 personallie present, to protest that he could not answer to the Erie of Glencairne till he were 
 sumond againe ; and lykwayes be that same Act the Lordis of Sessioune designes Glencairne 
 Erie, and Montgomrie Lord only. 
 
 [36] Item, ane Extract of ane Sederunt of Parliament of the 21 (sic, — lege 25th) of Merche, 1503, hearing 
 ' Gonus de Mmitgomria ' to sitt in Parliament; and the same day in the afternoone, as also in the 
 morrow thairefter, he is designit in the samyne rollis ' Dominus Montgomrie.' 
 
 [37] Item, ane Chartor be King James 5, with consent of the Lordis Eegentis in absence of Johne Duke 
 of Albania, Protector and Governor of the kingdome, of certane Jandis tliairinspecifeit to 
 Alexander Stewart, upone the resignatioune in the handis of James Archbiscliope of Glasgow, 
 Chancellor, daittit the twelffday of Junij, 1521, anno regni regis octavo. 
 
 [38] Item, 8 severall Sederuntis of Sessioune in Februar and Merche, 1523, bearing Glencairne and 
 Eglintoune to sitt as Lords of Sessioune, and Glencairne alwayes first in place, and that in 
 sundrie of these Sederuntis thair is no uther Erles bot these two than sitting. 
 
 [39] Item, ane Act of Sessioune in Merche 1523, bearing the productioune of ane decreit arbitrall 
 pronunced be the the [sic] Duke of Albania, governor, and the Lord Chancellor, betuixt the 
 Erie of Glencairne and his freindis on the ane pairt, and the Erie of Eglintoune and his 
 freindis and Master thairof on the uther pairt ; in the whilk Act the Erie of Glencairne is in 
 the first place. 
 
 [40] Item, ane Decreit of Transferring, the thrid of Julij, 1647, at the instance of the Erie of Glen- 
 cairne, persewer, transferring this sumondis and actioune above writtin, with the executiounes 
 thairof againes the defenderis above named, and the tutoris and curatoris of the minoris, gifF they 
 any have, for thair entress, togither witli the haill proces, actis, minutis, and interloqutoris of 
 the said sumondis and actioune, in George, now Erie of Caithnes, and Francis Sinclair, his 
 granduncle, and his tutoris and curatoris, if he any hes, for thair entress passive in maner upone 
 the passive titles, and to the effect contenit in ^e decreit of transferring : — 
 
 Upon the productioune of the quhilkis particular writtis, evidentis, and utheris respective 
 and particularlie above mentionat, of the daittis, tennoris, and contentis abuve 
 writtin, the said perseweris procuratoris above writtin asked instrumentis. 
 
 And the said Alexander Ekle of Egeintoune and I^ew Lord Montgomrie, his sone, compeihand be 
 Mr. Thomas Nicolsone, Mr. Johne Nisbit, Mr. William Maxwell, and Mr. Johne Fletcher, thair procuratoris, 
 wha for obedience of divers former interloqutoris, ordinances, and of ane Act of the saidis Lordis of Sessioune in the 
 actioune above mentioned upone the 8 day of December last by-past, ordaineing baith the saidis Erles of Glencairne 
 and Eglintoune Mnc inde to produce befoir the saidis Lordis, at ane certane day specifeit in the said Act and ordi- 
 nances, all sick writtis as they or ather of thame had or wald use in this caus without farder delay, declairing 
 that the saidis Lordis wald have no regaird to any writtis that were not then alreddie produced be ather of the 
 saidis perties, betwixt and the 14 of December last, except that giff" ather of the perties sould heirefter found 
 any alledgance or answer upone any writtis, and alledge the samyne writtis to be in the uther pertie's 
 hands, in that caice the saidis Lordis be the said Act and ordinances ordained the saidis pertieis and ather of 
 thame, to whais oathes the haveing of these writtis sail be referred, to give thair oathes of veritie anent the 
 haveing of the samyn ; Lykas be the said Act the saidis Lords did assigne to both perties, personallie present with 
 thair procuratoris, the said 14 day of December last, of thair owne consentis, hino inde to produce all sick writtis 
 (not formerlie produced) as they or ather of thame had or will use in this actioune, — produced the particular 
 writtis, evidentis, and uthers following, viz., — 
 
 [1] First, ane Chartor granted be King James the 5, under the great seall, daittit the 23 Januar, 
 1528, to Hew Erie of Eglintoune, of the lands and baronie of Ardrossane and sundrie uther 
 landis inumerat in the said Chartor, beirand that the principall hous and maner place of Eglintoune 
 wes brunt and destroyed be William Cunynghame, Enyght, Master of Glencairne, with his friendis 
 and complices, whair thair Chairtoris, infeftmentis, and evidentis of the said landis contenit in the 
 fdrsaid Chartor were in keeping, and were destroyed and brunt. 
 [2] Item, ane Precept of Seasing under the quarter seall, daittit tlie 18 of December, 1500 yeers, 
 bearand tliat the Kingis Majestic, with consent of the Lordis governoris of the realme, in absence 
 of Johne Duke of Albanie, his Majestie's tutor, protector, and governor of the realme, had 
 disponed to Hew Erie of Eglintoune, Lord Montgomrie, etc. the landis of Langschaw, with the 
 right of patronage of the chappell of the blissed Virgine, whilk pertinet to Thomas Home 
 heretablie, and quhilk he resignit in the handis of James, Archbischope of Glasgow, Chan- 
 cellor of Scotland, in absence of the Duke of Albanie, tutor to the King ; and thairfore giveing 
 precept and warrand to give seasing thairof to Hew, Erie of Eglintoune. 
 [3] Item, ane Seasing daitit the xj of Apryle, 1502, to Eobert Montgomrie, sone to the Erie of 
 Eglintoune, of the landis of Oldhallow Chappell, subscryvit be Schir Thomas Baxter, notar 
 publict, and extractit out of the prothogall* of Schir Thomas Baxter, notar, proceeding 
 upone ane precept granted be Hew, Erie of Eglintoune, daittit the tent day of Appryle, 1502.-J- 
 
 * Protocol-book. f Eespecting these two instruments vide supra, p. 439, note *. 
 
 3 M 2 
 
454 APPENDIX. 
 
 [4] Item, AHE Sederunt of Parliament, 25 Merche, 1503, hearing Hew Erle of Montgomeie to sitt 
 in Parliament. 
 
 [5] Item, 4 Extractis of Sederuntis in Councell and Sessioune, daittit the 2, 3, and 5 dayes of Merche, 
 1506, designeing the Erie of Eglintoune to sitt as ane of the Lordis of Sessioune. 
 
 [6] Item, ane Indentor betuix Hew Erie of Eglintoune and Robert Francis of the Stane, daittit 
 the 20 day of .Januar, 1507, whairby the Earle of Eglintoune contractis in marriage William 
 Montgomrie, his sone, to Elizabeth Francis, docliter to the said Robert Francis of the Stane. 
 
 [7] Item, ane Charter of Confirmatioun under the great seall, daittit the last of October, 1509, con- 
 firmeing twa chartors, ane thairof daittit the 22 of January 1508, grantit be Robert Francis of 
 the Stane to William Montgomrie, naturall sone to Hew Erie of Eglintoune, Lord Mont- 
 gomrie, etc., and to Elisabeth Francis, spous to the said William Montgomrie, of the lands of 
 Stane and utheris ; andtheuther charter granted be the said Hew Erie of Eglintoune to his said 
 sone and his spous of ane annual rent of foure chalderis meill and ane pund of peper furth of 
 the landis of Stane, daittit the 22 of Januar, .1508. 
 
 [8] Item, ane Precept of Clare Constat granted be Hew Erie of Eglintoune for giveing seasing to 
 .Johne Dunlope, as air to his father Constantine Dunlope, of the landis of Craig, daittit the 10 
 of May, 1507. 
 
 [9] Item, ane Instrument daittit the xj of November, 1507, upone ane actorney out of the Chancellarie 
 daittit the 2 of the same moneth, whair his Majestie gives ane actorney out of the Chan- 
 cellarie to Hew Erie of Eglintoune of 6 chalderis of meill and 6 pund of pepper out of the 
 landis of Stane yeerlie. 
 
 [10] Item, ane Tak sett be the Abbot of Kilwining to Hew Erie of Eglintoune, of the teyndis of 
 Warrikhill, daittit the xv of Julij 1508. 
 
 [11] Item, ane uther Tak sett be the said Abbot to Hew Erie of Eglintoune, of the saidis teynds, the 
 penult Julij 1509. 
 
 [12] Item, ane Charter daittit the 8 of Apryll 1508, granted be Patrick Watsoune and Walter 
 Mitchell and , aires portioneris of Mr. Robert Broune, to Hew Erie of Eglintoune, 
 
 of twa tenementis of lands in Irving. 
 
 [13] Item, ane uther Charter granted be theKingis Majestie to Hew Erie of Eglintoune, of the landis 
 of Uttermuire, daittit the 17 of Junij 1509. 
 
 [14] Item, ane Act under the Clerk of Secreit Councell his hand, daittit the 5 and 19 of Februar 1606, 
 * bearing the production of the saidis twa chartoris befoir the Lords Commissioneris. 
 
 [15] Item, ane Sederunt in Parliament in October 1488, quhair the Lord Kilmjawris sittis in Parliament 
 amongst the Lordis in lung James the 4 his tyme. 
 
 [16] Item, he repeittis out of the perseweris productioune ane Chartor, daittit in anno 1492, granted he 
 the Kingis Majestie to Cuthhert Lord Kilmawris, of the landis of Drumalbane and utheris thairin 
 contenit ; and 
 
 [17] Ane utlier' Chartor in anno 1498, under the great seall, to William Conynghame, appeirand air to WiUiam 
 Lord Kilmawris, of the landis of Kilmawris, and utheris thairincontenit. 
 
 [18] Item, ane Sederunt in Parliament, 3 February, 1489, whair the Lord Kilmawris is among the 
 Lordis, and not ranked amongst the Erles. 
 
 [19, 20] Item, twa Extractis subscryved by Johne Ballandene, clerk depute to the Justice Clerk, ane 
 thairof bearand to be extractit out of the Bukis of Adjurnall of the Justice Court holden at 
 Air the 27 Junij 1505, and the uther act out of the Buikis of the Justice Court holden at 
 Air the 13 Junij 1505, wherein Cuthbert Lord Kilmawris is sex tymes designit Lord 
 Kilmawris. 
 
 [21-23] Item, thrie Sederuntis and Actis of Sessioune, ane the 19 Jatmar 1508, whair the Erie of 
 Eglintoiine is merked in that sederunt befoir the Erie of Glencairne ; the uther the fyft of 
 Februar, 1508, whair the Erie of Eglintoune is bulked in that sederunt befoir the Erie of 
 Glencairne ; and ane S*", daittit the tlirid of Februar, 1508, bearing (the King being present) 
 Hew Erie of Eglintoune asked ane note that Cuthbert Erie of Glencairne granted in presens 
 of our Soverane Lord, that the Kingis Grace willed him to take the said Erie be the hands, and 
 said to him he wald that all his baronnes and leidges were at amitie and concord,— Cuthbert 
 Erie of Glencairne asked ane note, that he allegit that wes but allanerlie at the Kino-is com- 
 mand, the quhilk he wald have fulfilled at his command and * the Lord Eglintoune had slaine 
 his father ; Hew Erie of Eglintoune offered him to prove that the Erie of Glencairne came to 
 his ludging in this toune, and wes sene attendit at coUatioune. — And 
 
 [24] Item, ane Sederunt in Parliament, the 23 Februar 1524, whair the Erie of Eglintoune and Glen- 
 cairne are ranked amongst the Erles, and Eglintoune ranked befor Glencairne. 
 
 [25] Item, ane uther Sederunt in Parliament, penult. November 1558, whair the Erie of E-T-lintoiine is 
 ranked amongst the Erles and ranked befoir Glencairne. 
 
 [26] Item, ane uther Sederunt in Parliament the 22 of May, 1584, whair the Erie of Eglintoune is 
 ranked befoir the Erie of Glencairne. 
 
 * That is, if—even if. 
 
APPENDIX. 455 
 
 [27] Item, ane Extract of ane Contract, under the Comissar Clerk of Glasgow his hand, betuixt the 
 Erie of Eglintoune and his freindis on the ane pairt, and Cuthbert Erie of Glencairne and 
 William Master of Glencairne and thair freindis on the uther pairt, makeand relatioune of ane 
 decreit arbitrall given be the Duke of Albanie, governour of Scotland, betuixt Hew Erie of 
 Eglintoune, for him, his kyne and freindis, etc., on the ane pairt, and Cuthbert Erie of Glen- 
 cairne and William Master of Glencairne, his son and aire, for thame, thair kyne and freindis, on 
 the uther pairt, daittit the 14 day of December, 1537 yeeres, marked above the head ' die Sabbati, 
 ' mensis Decembris 1537,' subscryvit be Thomas Hamiltoune, notar, as Clerk to the Consistoriall 
 of Glasgow,— in the quhilk Contract the Erie of Eglintoune, his kyne and freindis, are first 
 placed, sett doune, and named, as also in the Contract quhairunto the decreit is relative ; and 
 thairefter the Erie of Glencairne and the Master of Glencairne, and his kyne and freindis, are 
 last placed, named, and sett doune, baith in the contract and decreit arbitrall. This Contract 
 is subscryved be William Master of Glencairne at the end thairof nixt to the mefgyne, and 
 under his subscription be Alexander Conynghame, Johne Cunynghame of Capringtoune, David 
 Cunynghame of Robertland, and James Cunynghame in Mongrenane. It is also subscryvit, 
 within the uther subscription at the end of the contract toward ye midle thairof, be the Erie 
 of Eglintoune, Master of Eglintoune, M' William Montgomrie of Stane, and Neill Montgomrie 
 of Langschaw, with his hand on the pen led be M' Gawen Eos, notar publict. 
 
 [28] Item, ane Extract of ane Act of the Justice Court, daittit the xvij of Merche, anno, etc., Ixvij, bearing 
 that Hew Erie of Montgomrie, heretabill baillie of the regalitie of Kilwining, in presens of 
 Schir John Ballanden of Auchinoule, knyght. Clerk of our Soverane Lordis Justiciarie, conipeired 
 and protested that he, for furtherance of'justice and obeying of the Lord Regentis comand, 
 assignit the 22 of Merche instant for administratioun of justice upone Thomas Maxwell, and 
 repledgeit be the said Erie, as baillie forsaid, to the priviledge and jurisdictioune of the said 
 regalitie, that thairfoir the samyne sould nawayes be as preparative or prejudiciall to him and 
 the priviledge of the said regalitie. 
 
 [29] Item, the Extract of ane Gift or Signator, subscryvit be the Clerk Registre, grantit be the Kingis 
 Majestie in Junij 1513 to Odo O'Neill,* Prince of Cowall ; in the quhilk Hew Erie of Eglin- 
 toune, Lord Montgomrie, is insert befoir Cuthbert Erie of Glencairne, Lord Kilmawris. 
 
 [30] Item, ane missive Lettre subscryvit be the laird of Corshill, daittit the 24 of December, 1642, 
 direct thus, viz. ' For the trewlie noble lord the Erie of Eglintoune,' bearing he had receaved 
 the Erie's lettre desyreing to have the liane (loan) of ane band of freindschip past betuixt the 
 Erie's predicessor and the Erie of Glencairne with uther noblemen, whilk is in Corshillis cus- 
 todie, 4 Junij 1578 ; and intreating the Erie to hald-him excused that?'he had not send liim that 
 band leist he be blamed be utheris, but that he had not onlie showne it to the bearer, bot this 
 is the tennor thairof: — ' Your Lordship's guidschir and his Lordship's sone, callit Master of 
 ' Eglintoune, Erie of Glencairne and his sone callit Master, also the Lord Boyd and his son, the 
 ' scheretF of and his sone, the Laird of Craigie and his sone, hes obleidged 
 
 ' themselves to keepe freindschip with utheris (with each other) in all actiounes that concernis not 
 ' the Kingis Majestie.' 
 
 [31] Item, Sumondis, actis, and lettres of Exhibitioune in 1643 at the instance of the Erie of Eglin- 
 toune againes the Erie of Glencairne, the Laird of Corshill, and utheris, for exhibitioune of the 
 foirsaid contract or band, and uther writtis thairinmentionat. 
 
 [32] Item, ane Sumondis of Reductioune, with actis and lettres thairupone, at the instance of the Erie 
 of Eglintoune againes the Erie of Glencairne, for reduceing of his titles of precedencie, raised 
 and execute in anno 1642. 
 
 [33] Item, ane Charter to David Erie of Crawfurd, Duke of Montrois, 18 May 1488.t 
 
 [34] Item, ane Charter to Andro Lord Gray, daittit 14 December 1488.J 
 
 [35] Item, ane uther Charter to the Erie of Crawfurd, Duke of Montrois, daittit 19 September 1489.§ 
 
 [36] /ten, ane Charter to James Innes of that ilk for his service in the armie at Blaknes, daittit 
 25 Maij, 1488.11 
 
 [37] Item, ane Charter lo Thomas Trumble of Greinwood, of the landis of Tarringzeane, daittit 
 18 Maij, 1488.ir 
 
 [38] Item, ane Charter to Mareone Dowglas, dochter to the Erie of Angus, of the landis of Kilmornek, 
 upone Cuthbert Lord of Kilmawris his resignatioun, daittit the 25 Junij, 1492. 
 
 [39] Item, ane Decreit of Parliament in favoris of tlie executoris of Alexander Lord Kilmaweris, 
 decerneing Johne Hamiltoune and Robert Campbell to restore to the executoris of the Lord 
 Kilmawris certane scheep and utheris guids thairincontenit, daittit the 19 Junij, 1491. 
 
 [40] Item, ane Extract of ane Sederunt of Parliament of King James 3, holden at Edinburgh the 
 
 " Written ' O'Donnell' in the Decreet 9th March 1649, infra, ' Extracts,' or office copies from the Register, of Nos. 33, 34, and 
 
 p. 478 Cowal is probably -written for ' Connal'— i.e. Tirconnel. 35, produced in 1648, were recently found, with the 'Minutes 
 
 t The patent of the Dukedom of Montrose. ' of Process ' and other documents then adduced, in the Eglinton 
 
 J The charter of the Sherifidom of Forfarshire, on the resig- Charter-chest, 
 nation (as stated) of ' David Earl of Crawford.' Vide infra, || Now again adduced by the Crown in this case. Vide siqjra, 
 
 p 528 P- xxxiii ; riifra, p. 507. 
 
 ' § The abridged registration of the ' Litera' or grant de now 1|' Now also adduced by the Crown. Vide supra, p. xxxiii ; 
 
 of the Dukedom of Montrose, for which vide infra, p. 532. The infra, p. 508. 
 
456 > APPENDIX. 
 
 20 of November, 1479 {sic, — lege 1497), wherein Kilmawris is designit and marked amongst 
 the Lordis. 
 
 [41] Item, ane Extract the 19 February, 1606, bearing Gilbert Ros for the Erie of Cassillis to produce 
 befoir the Commissioneris for ranking the nobilitie ane Charter be King James 4 to David Erie 
 of Cassillis of certane landis thairinspecifeit, daittit the 5 Januar, 1511. 
 
 [42] Item, ane Indentor daittit the 16 Junij, 1425, betwixt the worschipfull Lordis Schir Johne of 
 Montgomrie, Lord of Ardrossane, on the ane pairt, and Schir Eobert Cunynghame, Lord of 
 Kilmawris, on the uther pairt, haveing ane seal! appendit and subscryvit. 
 
 [43] Item, ane Chartor under the great seall be the Kingis Majestie for hiraselfF, and as tutor and 
 administrator to Charles Prince and Stewart of Scotland, his sone, to Hew Erie of Eglintoune 
 and his aires maill laufullie gotten of his owen boilie, whilkis failzeing, to Schir Alexander 
 Seatoune of Foulestruther, Knyght, now Erie of Eglintoune, and his aires maill gotten of his own 
 bodie, whilkis failzeing to Thomas Seatoune his brother, and his aires maill laufullie gotten of 
 his bodie, whilkis failzeing, to John Seatoime his brother, and the aires gotten of his bodie, whilkis 
 all failzeing, to the aires maill of the said Hew Erie of Eglintoune quhatsumever, bearand the 
 surname and armes of Montgomrie, of the lordschip and baronies of Kilwining, Beath, Dreg- 
 home, and utlieris thairinspecifeit, daittit at Edinburgh, 28 November, 1611. 
 
 [44] Item, ane Chartor under the great seall to Alexander Montgomrie, Erie of Eglintoune, Lord 
 Montgomrie, and his aires maill and of tailzie specifeit in the infeftmentis of the Erledome of 
 Eglintoune, of the landis, lordschip, and baronies of Kilwining, and utheris thairinspecifeit, daittit 
 at Edinburgh, the 26 Apryle, 1625. 
 
 [45] Item, ane Act of Parliament in King James 4 his tyme, daittit 17 October, 1488, quhairby the 
 King and Parliament gives and dispones ane number of landis and utheris thairinspecifeit to 
 Patrick Lord Hailles, quhilkis pertenit of befoir to JohnEamsay, sumtyme called Lord Boith- 
 well, and became in his Majestie's handis be forfaltor of the said John Eamsay ; whilk Act hes 
 the great seall, togither with ane number of the seallis of the memberis of Parliament, appendit 
 thairto : — 
 
 Upone the productioune of the whilkis writtis, sederuntis, and utheris respective, befoir 
 rehearsit, of the daittis and contentis above writtin, the defenderis procuratoris above 
 named asked instrumentis, and repeated the samyn for instructing respective the Erie 
 of Eglintoune to be Erie befoir the Erie of Glencairne, and that the Erie of Glen- 
 cairne wes Lord efter his patent produced. 
 
 Lykas the perseweris procuratoris above named did also produce ane Summondis of Walkning, raised and 
 execute at his instance upone the foirsaid Decreit of Transferring, againes the said George Erie of Caithnes, and his 
 tutoris and curatoris for thair entress ; Francis Sinclair, his granduncle ; Alexander Erie of Eglintoune ; Hew Lord 
 Montgomrie ; Johne Erie of Cassillis ; James Grahame, sumtyme Erie of Montrois ; Lord Grahame 
 
 his sone, and his tutors and curators ; Johne Erie of Crawfurd, High Thesaurer of Scotland ; Schir James Car- 
 michaell, Thesaurer-depute ; Schir Alexander Gibsone, Clerk Eegistre ; Schir Archbald Johnestoune, his Majestie's 
 Advocat; Schir William Scott, Schir Johne Gibsone, and Mr. "William Hay, Clerkis of Sessioune ; Schir Arch- 
 bald Prymrose, Clerk of Secreit Counsall, as the samyne sumondis and executiounes thairof at mair lenth beires : — 
 The saidis George Erie of Caithnes, Lord Berridaill his sone, , Master of Berridaill, his oy, three of 
 
 the defenderis againes whome the principall Sumondis wes first raised and execute, being now deceast ; And the said 
 George, now Erie of Caithnes, and Francis Sinclair his granduncle, and his tutoris and curatoris for thair entress, 
 againes whom the foresaid Sumondis and actioune is transferred and waliiened, being lawfuUie sumond be the said 
 walkning, were oftymes called and not compereand ; And als the said James Grahame, sumtyme Erie of Montrois, 
 designit in the foirsaid principall Sumondis and lettres of continuatioun thairof James Erie of Montrois, being now 
 forfaulted be the Estaites of this kingdomesen the citatioun and executioun of the foirsaid principall Sumondis, and 
 he and the said Grahame, his eldest sone, and his tutoris and curatoris, giff he ony hes, for thair entress, 
 
 being also laufullie sumond be the foirsaid walkning, were lykwayes oftymes callit, and not compeirand ; And the 
 said Johne Erie of Cassillis being also diverse tymes laufullie sumond be the principall Sumondis, continuatioun 
 thairof, and walkning above mentionat, wes in lyk maner oftymes callit, and not compeirand ; And the said 
 Lord Kennedy his sone is now deceast, sen the citatioun of the first Sumondis and befoir the walkning ; 
 And the said James and Mr. Gilbert Prymrosse, Schir Thomas Hope, his Majestie's Advocat, wha are convened 
 and cited be the first Sumondis, are also now deceast ; And the said Johne Erie of Traquair,Thesaurer of Scotland 
 the tyme of the raiseing of and intenting the foirsaid Sumondis and actioune above mentionat, and Schir Johne Hay 
 of Baro, than Clerk Registre, not being now in these offices ; And the saidis Johne Erie of Craufurd and Lindsey, 
 now High Thesaurer of Scotland ; Schir Alexander Gibsone, of Durie, now Clerk Registre ; Schir Archbald 
 Johnestoune, of Wariestoune, now his Majestie's Advocat ; Schir John Gibsone, of Pentland, Schir William Scott, 
 and Mr. William Hay, Clerkis of the Sessioune, and Schir Archbald Prymrose, present Clerk of Counsall, being 
 all lawfullie sumond for thair entres in the actioune above mentionat be vertew of the foirsaid Sumonds of Walkening, 
 raised and execute upone the foresaid decreit of transferring, were oftymes callit, and not compeirand, — 
 
 The bightis, eessodnes, alledgances and answeris respective of the foirnamed perties compeirand 
 in maner above written, with the wkittis, evidentis, decreittis, sederuntis, and uther documentis 
 
APPENDIX. 457 
 
 respective above specifeit, hinc inde produced be thame and ather of tharae, as is befoir exprest, being hard, 
 
 SEENE, CONSIDDEBIT, AND ADVYSED BE THE LoRDIS OP COUNSALL AND SeSSIOUNE ; 
 
 The saidis Lobdis reduces, retreittis, reschindis, casses, and anullis 
 
 [i. The Decreet 161Y:] — The foirsaid pretendit Decreit op Eeductioune obtenit at the 
 instance of the said Alexander Erie of Eglintoune againes the said umquhill James Erie of 
 Glencairne and the said umquhill William Master of Glencairne, his sone, with all that hes 
 followed or may follow thairupone, — Togither with 
 
 [ii. The Decreet op Ranking 1606 :] — The foirsaid Decreit op Ranking of the nobilitie op 
 this kingdome, and postponing of the said umquhill James Erie of Glencairne in place, rank 
 and dignitie, to the said Erles of Caithnes, Eglintoune, Montrois, and Cassillis, with all that 
 hes followed or may follow thairupone, — Togither also with 
 
 [iii.J — The Mill remanent writtis and evidentis partkularlis and generallie mentionat in the said Sumondis, 
 thairby called for to be produced ; 
 
 And decernis and declairis the samyne to have bene frome the begining, to be now, and 
 in all tyme cuming, null in thameselves, and op nane availl, force, strenth, nor effect, with all 
 that hes followed or may follow thairupone, in swa farr as \h'y] the samyne Decreittis and remanent writtis and 
 evidentis foirsaidis, or ony of thame, the said William, now Erie of Glencairne, persevxr, his aires or successoris, Erles 
 of Glencairne, is or may be postponeit in rank, place, and dignitie to tlie saidis Erles of Caithnes, Eglintoune, 
 Montrois, and CassiUis, or ony of thame or thair successoris ; 
 
 And pinbis and declairis that tJie said Williame, now Erie of Glencairne, persewer, his aires and successoris, 
 Erles of Glencairne, presentlie hes, and aught and sould and sail have in all tyme cumeing, the right of prece- 
 DENCIE and prioritie op PLACE AND voiTEiNG in all parlia,mentis, councellis, conventiounes, and utheris privat and 
 publict meetinges, befoir the saidis Erles of Caithnes, Eglintoune, Montrois, and Cassillis, and thair 
 successoris, notwithstanding of the foirsaidis Decreittis and utheris writtis callit for, or of ony uther right or title 
 of honour and dignitie granted to thame or any of thame, or their predicessoris, 
 
 jfor t\)t regsJounesi anU caus^fi^ aijohttDiittm :— 
 
 Becaus the saidis Lordis, haveing first heard, considdered, and advysed the alledgances and 
 objectiounes proponit in proces for the pairt of the Erie of Eglintoune and Lord Montgomrie 
 againes the perseweris interes and title abovewrittin, with the perseweris answeris maid thair- 
 againes in fortificatioun of liis said entres and title foirsaid. They Susteaned the perseweris 
 interes and title above mentioned, as the samyn standis lybellit and instructit 
 
 BE the writtis FOIRSAIDIS PRODUCED BE THE PERSEWER FOR THAT EFFECT, NOTWITHSTAND- 
 ING OF THE SAID ALLEDGANCES MAID THAIRAGAINES, WMlk they RePELLIT, W respect of the 
 
 foirsaid interes and title lybellit, and instructiounes thairof, and answeris proponit in fortificatioun of 
 the samyn, extant in proces. 
 
 And haveing also, at the desyre of the Erie of Eglintoune's procuratoris, tane the oath de calumnid of the 
 said William Erie of Glencairne, persewer, that he had just caus to insist upone the ressounes of reductioune 
 above mentionat, as the samyne standis lybellit, the saidis Lordis, be thair Act of the 8 of December last by-past, 
 haveino- than considdered the ressounes of reductioune, with the dispute hinc inde proponit thairagaines and in 
 fortificatioun thairof respective be ather of the parties' procuratoris, with the writtis and documentis than hinc inde 
 produced be ather of thame in the said mater, ordained both the perties and thair procuratoris, compeirand in 
 maner foirsaid, to produce hinc inde, at ane certain day thairefter, now bypast, all sicli uther writtis as they or 
 ather of thame had or wald use in this caus, and were not than produced. And the Lordis than declaired that 
 they wald have no regairde to any writtis that were not alreddie produced or sould not be produced be ather of 
 the perties at the day and conforme to the ordinance foirsaid : Except that giff" ather of the perties sould thair- 
 after found any alledgance or answer upone any writtis, alledging the samyne to be in ather of thair handis, in 
 that caice the Lordis ordained the perties and ather of thame, to whais oathes the haveing of these writtis sould 
 be referrit, to give thair oathes of veritiethairanent ; and for this eflfect the saidis Lordis assignit to William 
 Erie of Glencairne, than personallie present with his procuratoris, and to the said Alexander Erie of Eglintoune, 
 also personallie present with his procuratoris, and to the fFourtene day of the said moneth of December, with con- 
 tinuatioun of dayes, of thair owne consentis, hinc inde to produce all sick writtis not than alreddie produced as they 
 or ather of thame hald or wald use in the actioune above mentionat, conforme to the ordinance above writtin, and 
 with the exceptioune foirsaid ; 
 
 And als the saidis Lordis, upone the said 8 day of December last by-past, of consent foirsaid, assignit to the 
 said perties and procuratoris, compeirand as said is, the twentie ane day of the said moneth of December, with 
 continuatioun of dayes, hinc inde to dispute the caus without any farder delay ; and than declaired na regairde sould 
 be had to any writtis that sould not be produced at the day and in maner befoir ordained, with the exceptioun 
 foirsaid, — as the Act maid heiranent beires : — 
 
 Conforme to the quhilk Actand Ordinance, baith the said perties and thair procuratoris above named, com- 
 peirand in maner foirsaid, did hinc inde produce and repeate respective the foirsaidis haill Chartoris, infeftmentis, 
 
458 APPENDIX. 
 
 patentis, sederuntis, aetis, and utheris writtis and documentis respective particularlie above mentioned, produced in 
 maner above written, and of the daittis and tennoris respective above specifeit ; 
 
 And they thairupone being at lenth Una inde hard vivd voce in presence of the saidis haill Lordis to ressoune and dis- 
 pute againes the Ressounes of Jieductioune above mentionat and instructioune and probatioune thairof, and in fortificatioun 
 of the samyne ressounes respective, as also for and againes respective the foirsaidis writtis and evidentis hinc inde 
 produced be thame and ather of thame in the said mater, — conforme to the dispute, alledgances, and ansvferis hinc 
 inde proponit be ather pertie againes utheris heiranent, extant in proces ; 
 
 And the dispute being closed, and the parties and thair procuratoris removed, they were called in 
 presence of the Lordis ; And the Erie of Eglintoune and his procuratoris being asked if they desyred to be farder 
 heard befoir the dispute sould be advysed, wherunto they answered that they kepeeked the dispute to the Lohdis : — 
 
 Whaikupon the saidis Lobdis, haveing tane to thair consideratioun tJie foirsaidis Ressounes of Reductioune, 
 with the alledgances, answeris, and haill dispute respective hinc inde proponit and alledgit againes the saidis Ressounes of 
 Reductioune and in fortificatioun thairof be ather partie, extant in proces ; Togither with the haill writtis, evidentis, patentis, 
 sederuntis, actis, and utheris particularlie befoir reherest, produced be ather of the perties compeirand in maner above 
 writtin, with the ohjectiounes maid and proponit be ather pertie againes the writtis produced be utheris ; And the saidis 
 Lordis haveing at lenth red, heard, considdered, and advysed the samyne, — 
 
 They, efter full debaite and ressouning thairupone, Hes fundin and findis the Ressounes op Reduc- 
 tioune ABOVE mentionat BELEVANT AND SUPFICIENTLIE PBOVEN BY THE POIBSAIDIS WRITTIS pTOduCed and 
 
 repeitted be the perseweris pbocubatobis respective to that effect, notwithstanding op the wkittis, evidentis, 
 
 AND UTHERIS ABOVE SPECIFEIT, PRODUCED FOB THE PAIBT OP THE EbLE OP EgLINTOUNE, AND OP THE ALLEDG- 
 ANCES PBOPONIT FOR HIM THAIBUPONE, WHILK.IS THE SAIDIS LoBDIS REPELLIT AND BEPELLIS : In RESPECT 
 
 QUHAiBOF, and of the perseweris oath de calumnid foirsaid, declairing that he had just caus to insist upone the 
 saidis Ressounes of Reductioune as tlie samyne standis lybellit. The saidis Lordis reduced and declaibed 
 AGAINES THE SAID ALEXANDER Erle OF Eglintoune and Hew Lord Montgomrie, compeirand, as said is, 
 IN MANER BEFOIR DECERNED. And als, bccaus the saidis Erles of Caithnes, Cassillis, and James Grahame, 
 sumtyme Erie of Montrois, and remanent defenderis above named, were absent and not compeirand, in maner 
 foirsaid, being diverse tymes laufullie sumoned to have compeired befoir the saidis Lordis at diverse days bygane, 
 to have heard and scene Decreit and Sentence bene given againes thame in maner and to the effect foirsaid ; and, 
 being oftymes callit, they compeirit not to alledge any reasonable caus in the contrair, bot failzeit thairintill, as 
 wes cleirlie understand to the saidis Lords, in respect quhairof the said Lordis reduced and declaired againes 
 thame in favoris of the persewer in maner before decerned, fFor the Ressounes proven in absence, and not com- 
 peirand againes thame. 
 
 And ordanes lettres to be direct heirupone, giff neid beis, upone ane simple charge of fyftene dayes, 
 conforme to ane Act and ordinance maid thairanent." 
 
 (20.) Petition to Parliament .by William Earl of Olencairn, presented on the Srd Jamiary 164:9 , 
 subsequently to the final and ruling Decreet of the Court of Session in his favour, 19i/i 
 January 1648, and previously to the illegal and rescinded Parliamentary Decreets of the 2nd 
 and 9th March 1649 (presently to he given), annulling the original and only Glencairn 
 Patent 28<A May 1488, and the Decreet of the Court of Session 19th January 1648, — the 
 Earl of Olencairn therein protesting against the jurisdiction and interference of Parliament 
 in the matter, on precisely the same legal and constitutional grounds as are urged by the 
 Claimant in his S. Case, pj]. 20 s(^q., 53 sqq. ; and supra, pp. xlvii sqq., Ivi sqq., — and also 
 in the ' Narrative and Inquiry,' supra, pp. lii sqq. From a copy preserved, among the war- 
 rants of process and other relative documents, in the Eglinton Charter-chest, and printed 
 (luith marginal notes, ut infra') in the ^Addenda' to the S. Case, pp. 209 sij'y. — (Keferred 
 to supra, p. Ivi.) 
 
 (No. CVII.) 
 
 " To the Honorabill Estaittes of Parliament, the humble Supplicatioune of William Earle of Glencairn. 
 
 " Quhairas your Supplicant is convenit befoir your Honouris at the instance of Alexander Earle of 
 Eglintoune for improbatioune and reductioun of ane Decreit purchest at his instance befoir the Lordis of Sessioun 
 against the said Earle and certane uther nobilmen, declaring his richt of precedencie ; and creavenge (craving) 
 that notwithstanding therof the said Erie of Eglintoune may be fund to have the prioritie of place to your Sup- 
 plicant, — quich (which) being such a noveltie as lies never been hitherto hard (heard) in this kingdome, derogatorie and 
 prejudiciall, if it [sic] not distructive of the just richtis and liberties of the subjects, the Supplicant's humble desayre is, 
 that your Honouris may be pleasit to take sick course that this and siclyk process be not hard and admitted befoir 
 the Court of Parliament, so much takine up with the publict affaires of the Kingdome, nor this Supplicant 
 necessitat to compeir and defend against the same, for the reassones following : — 
 
 I. Fiirst, — Becaus it is res alvl'eavy judicata be the Lordis op Session, quich is the Supreme Court and 
 . „, „ , Senate" appointed be the lawes of this land for the utter and fynal decision 
 
 Inen oupreme in civihbus, as ^^ 
 
 the Claimant has proved, and as OF ALL CIVIL RICHTIS AMONG THE SUBJECTES, and whose decisions are and ever have 
 
 can still farther be corroborated. |jgg^ j,g](j g^ reulles and lawes to bind the ledges in all calces contraverted and deter- 
 All that here follows is quite in ° 
 confoi-mity with Lord Stair, supra, mined by them, WITHOUT ANY APPELLATION, conforme to the institutione of the said 
 
 P- xlviii. Senate and to many uther Actis of Parliament, old and late, mainlie the 65 Act of 
 
APPENDIX. 459 
 
 King James I. his third Parliament, quherin it is ordainit that the Sessioun for the tynie sail sit, examine, and 
 CONCLUDE, AND FiNALLiE DETERMINE all and sundrie complaintis and causses that may be determined befoir the 
 King and his Coimsall. And in the 83 Act of the said King, his tent Parliament, ane oath is ordained to be 
 gevin '■ut omnes et singulas causas et querelas coram iis proponendas et determinandas absque favore vel odio,fraude seu 
 ' calore aliquo, juxta suas scientias, fideliter et juridice tebminabunt.' Item, be the 63 Act K. James II., his 14 
 Parliament, it is ordainit, that all causses perteining to the Itnawledge of the Lords of Sessioun sail be utterlie 
 
 DECYDIT AND DETERMINED by thalm, BUT (without) ANY REMEID OP APPELLATION TO THE KiNG OB THE PAR- 
 LIAMENT. Lykas in K. James IV. his tyme, be the 58 Act of his 6 Parliament, it was appoynted that a 
 constant Coun,<ell should be chosen be the Kingis Hienes, quhilk sould sitt continuallie in Edinburgh, or quher 
 the King maks his residence, at quher it pleasses him, to decyd all manner of summones in civil matteris, com- 
 plaintes and causses, dallie (daily) as sail happin to occur ; and sail have the same power as the Lordis of the 
 Sessioun. And be the institutioun of the College of Justice and Sessioun, quhilk now is mentionat, in King 
 James V. his 5 Parliament, and 39 Act therof, it is ordainit that [their] processes, sentences, and decreitts sail have 
 the same streuth, force, and effect as the decreits of tlie Lordis of Sessioune hed in all tymes bygane, quhilk wes 
 
 UTTERLIE AND FINALLIE TO DETERMINE, WITHOUT REMEID OP APPELLATIOUN, as Said is. LykaS be the forSaid 
 
 institution it is declaired be the Kingis Majestic, that the Lordis presentis his Bienes' persone, and beares his auctoritie 
 in doing of Justice. And in the younger age of the King James the VI., in his 6 Parliament, cap. 92, it is 
 clearlie declared, that his Hienes' auctoritie and jurisdictioun of the saidis Lordis wes greatlie troubled and 
 called in doubt be reasson of sundrie privat wrettingis and chairges quliilk were direct be the Kingis Majestie 
 and his Privie Counsall, sometyme to forbear to proceed in civil causses befoir intenting thairof, sumtyme to stay 
 process and remit the matter to the Parliament, quhilk castes the pairties in great doubt quhen (when) they find 
 not an outgait to have ther causses decydit quher they ar intentit, — and the Kingis Majestie his Parliament and 
 Privie Counsall sail have letell tyme and opportunitie to consider his awin affaires and the causes of the common 
 welt, if at the inopportune suit of privat perties the civil causses alreadie belonging to the Colledge of Justice 
 shall be hrought befoir them, as in the foirsaidis Actis or [sic] at mair lenth is conteinit. By quich, and many 
 other Actis of Parliament, it is manifest that the decisiouns of Session ar ultima judicia in this Kingdom, prom 
 
 QUICH NO APPELLATION, AND AGAINST QUICH NO OTHER REMEID, CAN BE ADMITTED." . ^11 this, though contemned by 
 
 the rebellious Parliament,was legally 
 
 II. This is consonant to the lawes of other Kingdomes, thair being every Stils'S^he^ Restoration^; ^so' 
 quhere ordinar Supreme Courtes for administratioun of Justice, without remeid or that, even without the reference in 
 appeliatioun to King or Parliament. t^::::^^^:!i^:^^^ 
 
 Session in honours and precedency 
 
 III. As it is the law of the land, so it is the inveterat custome qice pro lege 
 hahetur, and uncontrolled power ande libertie of the Colledge of Justice, never any 
 
 •> As also afBnned by Lord Stair, 
 OF THAIR SENTENCES AT ANY TYME BEING APPELLBD FROM OR CALLED IN QUESTION „( supra. 
 
 BEFOIR THE HIE CouRT OF PARLIAMENT,*" — SO that, albeit thair were no express 
 
 law, yit haveing this ever enjoyed prescryved libertie, and th& leidges bruiking (holding) now fra tyme to tyme 
 thar estaittis and possessiones be virtew of the decisiounes and sentences of the saidis Lordis uncontroverted, this 
 libertie, belonging to the leidges and thame, cannot now be brought in questioun quoad preterita nee quoad futura, unles 
 thair were a new law repealling the former lawes and denuding thaime of their saidis liberties. 
 
 IV. This law, libertie, and custom is foundit upon many guid reassones, mainlie, that, the Parliament 
 being takine up with the publick affaires of the Kingdome and making of lawes be ther legislative power, they 
 have ever thought it necessar that thar should be a constant ordinar Supreme Court of Justice, consisting of the 
 most habile and choyce men, best skilled in law and of g^id experience, within the Kingdom, to be Judges of tiie 
 law and of all civil matters, and quhilks Judges be all retissoune and all law have the power of interpretation 
 and application of the law to particular caicas among privat pairties. And, because lawes cannot be so maid ut 
 omnes causas comprehendere possunt, the said Judges have ever, wytout all controversie, ut suggerit iis recta ratio, [had] 
 power to determine caices not formerlie determined be law, whose determinatione as senatus consulta are equipol- 
 lent TO the law ; and sua haveing power jurisdicien (Jurisdicendi) in the way of determination of particular 
 caices, quher no positive law is, wytout any farder remeid, muche more [must they have power] of expositioun, 
 applicatioun, and tempering of lawes, quatenus mens et verba legis patiuntur. 
 
 V. This their power is manifest by comparing the same with inferior Courtes and Judges of this Kingdome, 
 who, once having gevin furth ther sentences against perties, quhether hard or unhard (heard or unheard), present 
 or absent, they are no more Judges of ther awin sentences in secundd instantid, but be [sic] the samyne most be 
 brought to the Lordis of Sessioun, as the Supreme Judge over all inferior Courtes in civilibus, be way of suspension 
 or reduction, quich is that we have in civilibus in place of appeliatioun. Yit the saidis Lordis are sole Judges of 
 thair awne sentences in secundd instantid, before quhome the matter may ever be hard and retracted be way of 
 suspension and reduction, if this onlie impediment do not hinder, that ther sentences are alreadie gevin in 
 foro contradictorio, parte auditd, — in quhilk caice sentences nequidem pretextu novorum ' All this is in conformity with 
 instrumentorum aid novorum allegatione possunt retractari." *^ Claimant's main argument. 
 
 VI. Thair hes scarce any decreit bein pronounced, of matters of far greater moment, vnore deliberatlie and seriouslie 
 than your Supplicant's sentence was; fforhis guidschir (grandfather), in anno 1610, haveing gottin his place declared 
 befoir the saidis Lordis against the Earle of Eglintoun, for the tyme not compeirand, the Earle of Eglinton 
 
 3 N 
 
460 APPENDIX. 
 
 thereftir, in anno 1616, intendit a reductioun of the said sentence, and upon a mere errour in forme obtenit the 
 
 same Ted\icit,—thairefter followed the distress of the Rous of Glencairne in your Supplicandis guidschiv and father's 
 
 " The Claimant was not aware tymes ;" and so soon as God gave himself abilitie to goe about his awne affairs, he did 
 
 of this fact previously to the dis- jnfend and raise the foirsaid process, and efter many yeires' dependence and dispuit^ to 
 
 covery of the present document. ,. ,, „, ,..,-,,x7^7 ttj 
 
 his great chairge and loss of muche tyme, his just richt at tenth was declared, foundit 
 " Obviously from 1637 down to tt- t ttt c ' j 
 
 lg48_ ' BOTH UPON HIS PREDECESSOUKIS PATENT GRANTIT BE K.IN& JAMES iii. and upOU 
 
 •^ The right being thus, as ever, many Actes of Sessioun, Parliament, Infeftmentis, and uther evidentis, cleirly 
 grounded upon the patent. proveing his precedence ; and against quhilks, although his Patent had not been [m] 
 
 rerum natura, the Earle of Eglinton could not, as he did not, make any objection in proces, — the first evidentis 
 produced be your Supplicant after his said patent being in anno 1505, the Earle of Eglintoun producing no 
 such ancient evidentis, bot allenarlie (only) thrie, quherof tua your Supplicant and his Procuratouris made the 
 
 ■< Regarding these documents, daitis appeir manifestlie false and long posterior to his ;'' and the third, produced be 
 ■Bide supra, p. 439, n. *. t},e Earle of Eglintoun, wes onlie ane Sederunt in Parliament in 1503, bearing that 
 
 ' This was clearly not an error, ' sedebat Comes de Montgomerie,' quhilk wes maid appeir to be ane manifest error 
 but e contra. See note * infra. gf ^^j^^ probare," because that same efternoon and the nixt day ' sedebat inter dominos ' 
 onlie ' Dominus de Montgomerie,' and, till many yeires efter, never a, word of * Comes de Eglintoun,' far les 
 ' Comes de Montgomerie ;' bot be the contrary, in many wryettes, actes, and decreites it wes maid cleir that thair 
 [your] Supplicante's predecessor was ' Comes de Glencairne ' quhen Eglintoune's predecessor wes onlie ' Dominus de 
 
 f This is palpably unfounded. 'Montgomerie' in Scotland.' Against quhilks evidentis, produced by your Suppli- 
 S. Case, p. 71, and supra, p. lix, cant, the Earl of Eglintoune's advocates did not, nor could not, make any objection, 
 ^eToteVbeToV.™'''''^''^''''''''' ^ot did onlie retard his process, grounding thair disput onlie against his Patent,^ as 
 
 being allegit taken away and revokit be some old Acts of Parliament, maid be King 
 
 » A mistake, for Eglinton stood _ __° , ,, •,. j ,• 7- 17 _, _,7 j- 1 
 
 directly and cogently upon the James IV; quheras the saidis Actis were NOT applicable to the saidis patentis ; and 
 
 Sederunt in Parliament 1503, to albeit they miffht have been applicable for the tyme, zit (yet) be that same King and 
 overcome which the Patent in 1488 , . -J. -,. .,,.,. , ^ , .j-r,' , -j . • 
 
 was indispensable- while the de- sundrie Parliamcntis, both m his tyme and eiter, the said Jratent wes maid to revive, 
 
 eision in 1648, so far from reject- and your Supplicantis predecessouris admitted as Earles, — and even then admitted 
 
 Earles quhen the Earle of Eglintounis predecessouris wes not Earle.*" All quhilk 
 
 r^at^^ ^^it'inter '0^"^^° the "'^'"^ ^* ^^^^ '*^"*^'' dispuit viva voce, the Lordis, efter consideratioun therof, and of 
 
 Sedenmt 1503. Of course there our haill evidentis produced hiiic inde, did find [your'] Supplicantis rightis produced 
 
 steteme'^ts^'asTn ever" ^r ^"'^^^ *" '''^'"''■^ '''™ ^° ^''^ preoede7ice ; and altho it micht be allegit, as it cannot, that the onlie 
 
 T. ,, ■ J., r :, ground of the decision was the Patent,' against quhilk the law wes allegit ; yet the 
 
 ' It was the main, the funda- ° ) d i o ' j 
 
 mental, ground, and was directly SUPREME JUDGES OF THE LAW, HAVEING INTERPRED (INTERPRETED) THE SAME AND 
 
 ounded upon, as proved. FOUND IT NOT APPLICABLE TO THE CONTROVERTED cAicE, howsoever preceis and strick 
 
 Thus the Lords found that law words of the law might be lookit upoun, THIS ther determination and decision 
 
 — 1. e. the Act Rescissorv — did not v , , , 1 ., 1 , , . . 
 
 strike against or affect the Patent HOLDS FOR LAW, and therbyjMS est acqmsitum parti, quhilk be no other decision 
 
 1488, which per se is everything can be taken from him. And withal it is knawine that ther be many Absolut 
 
 for the Claimant. 
 1 rp, . . , „. . (obsolete) actes ANp LAWES QUICH consuetudine OR contraria tollerantid legislatoris 
 
 ment. S. Case, pp. 30, 31 ; and AR OFT TYMES TAKEN AWAY ;' as lykwayes that THE LORDIS OF SESSIOUN HAVE THE 
 supra, pp. CIXIV, cxxv. FULL POWER OF INTERPRETATIOUN AND OP DECYDING QUHEN AND IN QUHAT CAICES 
 
 SUCH LAWES ARE NOT OBLiGATORiE, given, as was fund be the saidis Lordis efter your Supplicantis sentence, in 
 a Process betwixt the Laird of Stobs and Margaret Scott, quher, it being allegit be the saidis Margaretis 
 procuratours, that scho had a richt of certane kirke landis, quherof albeit Stobs had ane anterior richt, yet his 
 richt wes null be the Act of Parliament in anno 1597, quherin it is ordainit that all infeftmentis of kirk landis 
 sail be null be way of exceptione unless they be exhibeit to the Thesaurer of Augmentationes befoir the first of 
 January 1598, and Stobs his infeftment was nawayes exhikiet, though then the heritouris of Kirk landis did sua 
 bring in ther infeftmentis; yit nevertheless the Lordis repellit the alledgeance, and wold not find Stobs his 
 infeftment null, notwithstanding the Act of Parliament, nemine of the Lordis, for aught is knawin, contradicente. 
 Lykas ther are many other old actes in dissuetude, quhilks, if the Lordis of Sessioun, quha are the interpre- 
 touris of the lawes and actis of Parliament, sould rigidlie interpret and apply conforme to the preceis wordis of the 
 lawe, the same micht and wold produce great inconvenience to the leidges. 
 
 And, last, your Supplicant doeth humblie represent to your Honouris the dangerous consequence that may 
 follow upon such a preparative as this, and is confident that your Honouris will not allow that to the Earle of 
 Eglintoun quhilk you wold deny to the rest of the leidges. And, if it sould not be denayed hot that the leidges may 
 call in question befoir the Court of Parliament the decissiounes of Session, considder how it is not onlie possible, lot verie 
 liklie, and probable, and inevitable, that contentious and unsatiable men wold bring in questioun the maist pairt of all 
 descisiones that haive been fra tyme to tyme, efter muolie debait and trouble among the pairties, concludit be the Lordis, or 
 that sail be concludit in tyme to cume; and then quhat uncertaintie haith the haill leidges of thair honouris, fortunes, and 
 estaitis, and quhat confusion will thence aryse, may be obvious to the sense of anye — it being manifest that the maist 
 pairt of the subjects of the Kingdome h'uikis thar fortunes and estaittis be virtew of the lawes of the Kingdoms and 
 sentences of the Senate and Supreme Court of the Sessioun, as onlie Judgeis in all matteris op richt and 
 heritage— !/ea in (e'en, even) tJie very act of prescriptiom sould not secure thame in thair present for tounes, for even 
 
 * The insertion ' Comes de Montgomerie,' a valid family f And at that very time and afterwards Glencairn's prede- 
 
 title, was quite genuine as fully proved, S. Case, pp. 71, 214, cesser was in like manner styled " Lord Kilmaurs." 
 and supra, p. lix, and n. t ; and effect was given to the evidence 
 in question. 
 
APPENDIX. 461 
 
 thay may contravert decissiones lefoir a preseryvit tyme, seeing they may affirm Imam fidem in not ccntraverting the 
 same hefoir this noveltie and new act of the Erie of Eglintoune's, if the same sould he admitted and granted, contrar to 
 tlie receivit practeis of all former tymes and liberties of the Sessioun and leidges. And zit (yet), for all this, it is cleir 
 be the law and be the very institution of the Colledge of Justice, that the Lordis of Sessioun ar not exempt from 
 punishment if they sail malverse or behave thamselffes baselie in thair places be brybeing, partial counsell, or 
 suche lyk misdemeanours, against all quhich the leidges have ther awin proper remedies and may geive in thir 
 lawful complaints, quhilks can na wayes tak away the richtis of pairties obtenit be thair saidis decisiones ; and if 
 
 THIS DeCKEIT and SENTIENCE," OBTAINED BIT YOUK HoNOUBIS' SuPPLICANT EFTER » The Decreet 19th January 
 SO LANG DISPUT AND PLEY OF LAW, BEFOIR THE ONUE SuPREAME JuDGE OF ALL l^*^- 
 
 MATTERIS OF HICHT AND HERETAGE, SOULD BE NOW CALLED IN QUESTION, THEN IT SALL NECESSARILIE FOLLOW, 
 BE INEVITABLE CONSEQUENCE, THAT ALL DeCREITIS GEVIN BE THAT SAME SeNATE OF SeSSIOUN MAY BE 
 RAIWERSIT (reversed) AND ANNULLIT, QUHILK WERE THE OPENING OP ANE DOOBE TO OVERTUBNE ALL THE 
 RICHTIS OF THE SuBJECTIS, BRUIKIT BE THAIME BE VERTEW OF DeCREITS OF THE LORDIS OF SeSSIOUN. And 
 
 quther (whether) or not this be of ane deep and dangerous consequence, to put all the leidges in uncertaintie of 
 thair richtis, is hurablie ofFerit to the Consideratioun and Justice of the Parliament." 
 
 " 3^ Januarii 1649. 
 
 " Producit be Robert Cunynghame, brother to the Earle of Gleneairne, and red in audience of Parliament, 
 And, after remoweing of the said Robert, and in-calling of him agane, he wes enquyred if he did pro- 
 duce the same in name of his brother the Earle of Gleneairne, or not. To the quhilk he did answer, 
 that he wold advyse quhill (until) the morne, quhither or not." 
 
 Observation. 
 
 There is no trace of this Supplication in the Books of Parliament, which is accounted for by the following Act 
 in the record (Acta, &c., MSS., General Register House) : — 
 
 " Vigesimti February' 1649. 
 
 Prayeris said, Bollis called, 29 dies Parlemewtj. 
 
 Act in favours of the Earle of Eglintoun. 
 
 The Estats of Parlement, &c. having heard the supplicatioun of Alexander Earle of Eglintoune, Craving, 
 That, seino- William Earle of Glencarne is holdin be the saidis Estatis as not compeirand in the proces persued 
 at the instance of the said Earle of Eglintoun against him," That thairfoir the petition ^ ^j^^ ^^^^^^^ ^g^g ^^^^^^ ^^^ 
 givin in to the saidis Estatis in name of the said Earle of Glencarne," quhilk is yet rebellious Parliament in favour of 
 lying in proces, might be removed out thairof, and cancelled as if the samyne had ^^s]""™- Vide m/m, pp. 479 5^. 
 neve°r bene produced. Quhilk desyre being takin in consideratioun be the saidis j^Jj ^i^^'ed!^ ^''^ -^^""^ 1S49, 
 Estatis, They ordaine the Supplicatioun above writtin, givin in be the said William Earle of 
 
 Gleneairne to be CANCELLED, with the declaratioun givin in theranent. And the prodiKtimn therofto be deleit out of the 
 EECORDis OF Paelement. Quhilk accordingly was then done in face of Parlement, conforme to the ordinance forsaid, be 
 Sir William Scot, Clerk of Parlement." 
 
 (21.) Paper entitled ' Memorandum far tlie Earle of Eglintone,' evidently dravm up ly the legal 
 advisers of the Eylinton family upon the occasion of the appeal to Parliament from the 
 Decreet of the Lm-ds of Session Vith January 1648 ; and illustrative, 1. Of the fact (recog- 
 nised and affirmed on all sides at the time, although denied in 1797 and now) that ike Decreet 
 IGiS proceeded and depended fundamentally upon the Patent 1488 versus the Act Bescisscrry ; 
 and 2. Of the political motives connected with the creation of the Marqicisate of Montrose and 
 V the cause of loyalty which influenced the passing of the Parliamentary (but illegal) Decreets 
 
 2nd March and 9th March 1649, immediately hereafter to be adduced. — From, the Eglinton 
 CJiarfer-chest, and printed in the ' Addenda ' to the Claimant's Supplemental Case, p. 213. — 
 (Referred to supra, p. xlvi.) 
 
 (No. CVIII.) 
 " Memorandum for the Earle of Eglintone. 
 
 " It is to be thought upoun and advysed anent the question of precedence betwixt his Lordship and the Earle 
 of Glencarne, and anent the Decret of the Lordis of Sessioun pronounced therintill in Januar last, sustaining the 
 Reason of the Earle of Glencarne his Eeductimn,foundit upon the Patent grantit be King James 3 in anno 1488, quhUk 
 Patent was therefter revoked be King James 4 and Estaites of Parliament in October 1488, in the 5 Act of that 
 
 Parliament, — 
 
 If the Earle of E^-lintown sail bring that question of the precedence to be agitat and handled in Parliament 
 
 3 N 2 
 
462 
 
 APPENDIX. 
 
 be a Summondis of Reductioun befoir the Parliament of the foirsaid Decreit pronounced be the Lordis of Sessioun, — 
 if this course be invitted, the Reason of Reductioun must be iniquitie of the Judge sustaining a Patent quhilk wes 
 revocked he the King and Parliament in anno 1488 : — 
 
 Or if, quhen the Parliament sail sit douue, the Erie of Eglintoun sail protest at the order of voting on the 
 first calling of the Roll, and withal heve a Supplicatioun ready to produce, making mentioun that his Lordship and 
 his predecessores hes bruiked the precedence as Erles before Glencairne and his predecessors for 100 yeiris and 
 more, and that his Lordship haveing been of lait trubled in the bruiking and possessing of the same be a proces 
 and action persewed aganes him be the Erie of Glencairne befoir the Lordis of Session, in that actioun ane Patent 
 OP Earle, gkantit be King James 3, in anno 1488, to the EarU of Glencairne his predicessor, was susteined a 
 VALiDE PATENT AND A GOOD EVIDENT to tak from the Earle of Eglingtoun his richt of precedence, albeit that Patent 
 was grantit be King James 3 to Erie Alexander, Glencairne his predecessor, fFor assistance and perverse counsall 
 given be him to King James 3 aganes the common guid of the realme, he having assisted King James 3 in arraes 
 in the field aganes the Kingis guid subjectis and the good of the realme, for which assistance and perverse counsall 
 the said pretendit Patent and all giftis and new creationes of dignities of that nature wer annullit be the 5 Act of 
 the first parliament of King James 4 in October 1488, 6e the quhilk Decreit of the Lordis of Sessioun, susteinin the 
 said annulled Patent, quhilk wes annulled for service done againes the common guid of the Kingdome, the Earle 
 of Eglintoun is bereaved of his ryt (I'ight) of precedence as Earle hefoir the Earle of Glencaim, quherof he and his pre- 
 decessouris hes been sa lang in possessioun, quhilk is a matter of iAe greatest grief and resentment that can befal his 
 Lordship, not so much for liis ovvne privat interes as that the sustening op such a Patent, gevin fob so evile 
 
 A CAUS, MAY BE OF A BAD AND SAD CONSEQUENCE IN THIS KiNGDOME IN THIB. (tUESE) TTTMES, QUHEN MANY HAVE 
 DARRED, UPON EVIL GROUNDIT PRETENCES OF DOEING SERVICE TO HIS MaJESTIE, TO EYSE IN OPEN HOSTILITIE 
 
 AGANES THE EsTATES OF THIS KiNGDOM, — and therfoir concluding, that the Estaites of Parliament wold be 
 pleased to tak that questioun and debait of precedence and the invaliditie of the said pretendit Patent to ther con- 
 sideratioun, that nother (neither) any evil consequence in thir tymes may fall out upon the Decreit of the Lordis of 
 Sessioun, nor yit the Earle of Eglintoun be hurt or damnified be the Earl of Glencairn in bruiking his precedence 
 befoir him. This second cours semes to he more plausible, eecaus therby the Earle op Eglintoun does not 
 
 DRECTLIE (directly) PUT INJUSTICE UPON THE LoRDIS OF SeSSION : 
 
 Or, if a third way shall be followed, — that some statesman tak occasione, upon the Earle of Eglintoun his 
 protesting aganes the Earl of Glencairne his voyting befoir him, to remonstrat to the Estaitis of Parliament, that, 
 in the process betuixt the li!arles of Eglintoun and Glencairne anent the precedence, their is A pretendit Patent 
 sustained be the Lordis op Sessioun as a valide evident, quhilk wes gevin be King James 3 for assistance 
 and perverse counsall aganis the Estate and the common guid of the realme, — the susteining of quhilk Patent 
 drawes so far upon the interes op the Estates op the Kingdom at this tyme, as that, be the lyk 
 eeasone and upon the same ground, patents of honour grantit in thir troublesome tymes may 
 
 BE ESTEEMED APPROBABLE OR APPROVIN, SUCH AS JaMES GrAHAME's PaTENT AS MaRQUIS OF MoNTROSE ; and 
 
 thairfor representing to the Estates, if thai think it not fit, both for the publict well and utherwyis, for settling 
 of that question betwixt the two noblemen, that, as the course for ranking of the nobilitie did first flow from the 
 Estates of Parliament * in 1600 (1606) yeir of God, so now thai would be pleased to consider quhat hes procedit 
 befoir the Lordis of Sessioun anent the sustaining of the said pretendit Patent and decyding of the precedence 
 betwis the saidis two noblemen.'' 
 
 (22) Decreet hy Parliament — tJien in rebellion, after the execution of Charles I., and possessing at 
 no time any jurisdiction in such matters — at the instance of the Procurator of Estate, 2nd 
 March 1649, annulling the Olencairn Patent 28th May 1488 (on which " the Lords of Session 
 " had pronounced interlocutor and sentence in January 1648 ") for political beasoks. 
 — Acts of Parliament, MSS., in Her Majesty's General Eegister House, Edinburgh. — 
 ' Minutes of Evidence^ p. 54. — (Referred to supra, p. xlv.) f 
 
 (No. CIX.) 
 
 " Seeundo Martij, 1649. Prayeris said, Rollis called. 36 dies Parlementi. &c. &c. &c. 
 
 " DECREET AT THE INSTANCE OF THE PROCURATOR OF ESTATE AGAINST THE EARLE 
 OF GLENCARNE, ANNULLING THE SAID EARLE HIS PATENT OF EARLEDOME, 
 DATED 18 MAII, 1488. 
 
 " The Estats of Parlement, etc., understanding that William Earle of Glencairne in ane Actioun persned 
 at his instance before the Lordis of Sessioun aganst Alexander Earle of Eglintoun, in Januar 1648 yeris, did 
 
 * No, — from the King and his Lords of Secret Council, 
 and NOT FROM Parliament. See the preamble of the Decreet, 
 supra, p. 41S. 
 
 t Analysis of the (illegal and rescinded) Decreet of 
 Parliament, at the instance of the Procurator of 
 Estate, 2nd March 1649. 
 
 ' II'' March 1649, 36th day of the Parliament,— 
 
 The Estates, &c. understanding that William Earl of Glen- 
 cairn, in an Action pursued before the Lords of Council and 
 
 Session against Alexander Earl of Eglinton in January 1648, 
 did produce a pretended Patent, under the Great 
 Seal, by James III., dated the 28th May 1488, to his 
 predecessor Alexander Earl of Glencairn, whereupon 
 the Lords of Session pronounced interlocutor and 
 sentence, and of which the tenor is as follows, — 
 
 " Jacobus, Dei gratis,," &c. &c. &c. 
 
 And considering, 
 
 1. That, after the death of James III,, James IV., by Act of 
 
APPENDIX. 
 
 463 
 
 produce before thame ane pretendit Patent under the Great Seill, graunted be umquhill King James 
 THE Thrid upon the 28 DAY OF May, 1488 yeris, to ane of his predecessoris, umquhill Alexander Earle of 
 Glencarne, receiver of the said Patent, quhairupon the Lords of Sessioun pronounced interloquutor and 
 sentence, of the quhilk Patent the tenner foUowes, — 
 
 ' Jacobus, Dei gratia,' &c. &c. &c.* 
 
 As als the saidis Estatis, taking to their consideratioun 
 
 Q.J That, after the death of King James the Thrid, King James the 4th, be his seventeenth Act of his first 
 Parlement, in October, 1488 yeris, did he advyse of Parlement casse and annull all creatiounes of new 
 dignities, granted be his umquhill father King James the Thrid, fra the first of Februar, 1487 yeris, 
 becaus theywer graunted for the perverse counsall and assistance thairof, quhilk was aganst the comoun 
 good of the realme, and was the occasioun of the death of the said King James the Third and many of 
 his barons and leidges ; And the Estatis of Parliament, considering 
 
 [2.] That the said Patent, graunted to the said Earle of Glencarne his predicessor, was for his assistance 
 and counsall given to King James the Thrid, quhilk was perverse counsall and pernicious assistance to 
 the King, hee was found and declared be the 14th Act of the first Parlement of King James the 
 4th, in the book of the black impressioun, intitulat The propositioun of the debate of the field 
 at Stirling, and sua fell under the compas of the said Act of Parlement made be King James 
 the 4th, — And, 
 
 [3.] That it is of dangerous consequence and example in relatioun to the troubles of this kiagdome, occasioned 
 by evil counsall given to the King^s Majestie and assistance thairto, that the said gift atid Patent, 
 graunted for evill counsall and assistance given to the King, should be of any force or validity, or should 
 be made use of, — 
 
 And anent the two severall charges given to the Earle of Glencarne, to have compeired before the Parlia- 
 ment and Committee of Parlement at diverse dayes bygane, to have heard and seene the decreet and certificatioun 
 given against the foirsaid pretendit Patent in maner above and after mentioned, as the forsaid precept and execu- 
 tioun of the severall charges proceeding thairupone bears ; quhilk precept being publiclie red in Parlement, and 
 Mr. Thomas Nicolsoun, ane of the Procurators of Estate, being personallie present, for himselfF and for the 
 remanent Procurators of Estate, and the Earle of Glencarne, defender thairintill, being called be his name and 
 desin'natioun three several tymes in the Parlement hous, and at the most patent doore thairof, he nor nane for him 
 did compeir ; bot the Earle of Lowdoun, Lord Chancellor, president of Parlement, produced ane letter direct to 
 him be the Earle of Glencarne, and subscryvit be the said Erie, shewing that hee had received citatioun before the 
 Parlement for exhibitioun of his Patent, and that, in respect of the troubles of the tyme, lie had put the samyne 
 with the remanent of his evidents out of the Kingdome for preservatioun thairof; 
 
 Efter reading of the quhilk precept and lettre, the Estatis remitted the consideratioun of both, with the 
 relevancie of the forsaid precept, and what was to be done anent the precept and lettre, to a Committe of three 
 of everie State, who were ordained to report thair opinione to the Parlement thairanent ; 
 
 Quhairupon, the Committee having convened upon the day of , they ordained 
 
 and gave warrant to a measser to have warned the Earle of Glencarne to have compeired before thame, to have 
 given his declaratioun concerning the forsaid Patent, and the being theirof furth of the kingdome ; quho, being 
 accordinglie warned and oftymes called, compeired not: — 
 
 Therafter, the Committe having tane the foirsaid precept, contayning the Patent ingrost thairintill, with 
 the relivancie and probatioun thairof, to their consideratioun, with the Earle of Glencarn's lettre forsaid, and 
 his citatioun and contumacie, and in [sic] not compeirance, and thairupon having reported thair opinione thairanent 
 
 to the Parlement, — 
 
 Quhilk precept above specifeit and probatioun thairof, the pretendit principall Patent transsumed be way of 
 
 Parliament in October 1488 (the Act Eescissory), did 
 by advice of Parliament annul all creations of new dignities 
 since the first {lege second) day of February 1487-8, 
 because granted for the perverse counsel and assistance 
 which was against the common good of the realm and was 
 the occasion of the death of James III. and many of his 
 barons and lieges • 
 
 2. That the Patent granted to the said Earl of Glencaim 
 
 was for assistance and counsel given to James HI., which 
 was perverse counsel and pernicious assistance to the 
 King (as was declared by an Act of the said Parlia- 
 ment entitled ' The Proposition of the Debate of the 
 ' Field of Stirling'), and so fell under the compass of 
 the said Act of Parliament (the Act Rescissory),— 
 And 
 
 3. That it is of dangerous consequence and example in relation 
 
 to the troubles of this kingdom, occasioned by evil counsel 
 given to the King's Majesty {King Charles I.) and assist- 
 ance thereto, that the said gift and Patent, granted for 
 evil counsel and assistance given to tlie King, should be of 
 any force or validity, or should be made use of, — 
 And Glencaim having been charged to appear before Parlia- 
 ment, to hear and see Decreet given against the said Patent, 
 —but he did not appear ; and the Lord Chancellor produced 
 
 a Letter from the said Earl, acknowledging receipt of the 
 citation, and stating that, in respect of the troubles of the 
 time, he had put the Patent, with the remainder of his 
 evidents, out of the kingdom, for preservation thereof, — 
 
 And the Estates having remitted the consideration of the 
 above to a Committee, composed of three of every 
 Estate, — 
 
 And the Committee having considered the Patent, Glencaim's 
 Letter aforesaid, his contumacy, and his non-appearance, — 
 
 And the said Patent of 1488, transumed by way of Instrument 
 before the Lords of Session, with the Acts of Parliament 1488, 
 and the report of the Committee, with Glencaim's citation, 
 &c., having been read, heard, considered, and ripely 
 advised, — 
 
 The Estates of Parliament rescind, cass, and annul 
 
 THE SAID PRETENDED PaTEST OF 28TH MAY 1488, AND 
 
 declare it to have been, and to be now and here- 
 after, unlawful, null, and of no force nor effect: — 
 And statute and ordain that if Glencairn or his 
 
 SUCCESSORS SHALL EVER MAKE USE OF THE SAID PaTENT IN 
 ANY MANNER OF WAY, THEY SHALL BE INCAPABLE OF THE 
 DIGNITY OF Earl and shall not enjoy the DIGNITY BY 
 VIRTUE OF ANY OTHER RIGHT.' 
 
 • Omitted here, having been already printed, supra, p. 407. 
 
464 
 
 APPENDIX. 
 
 instrument before the Lordis of Sessioun, upon tlie day of , together with the foresaids 
 
 particular Acts of Parlement above specifeit, together also with the report of the said Committee concerning the 
 samene, with the citatioun of the Earle of Glencarne before the Parlement and Committee, and his not compeir- 
 ance, being at length red, heard, and considered be the Estatis of Parlement, and thay thairwith being weell and 
 ryplie advysed, — 
 
 The said Estatis op Parlement rescinds, casses, and annulls the foirsaid pretendit principali, 
 Patent graunted to the said umquhill Alexander Earle op Glencarne be King James the 3d, of 
 the date the 28 op May, 1488, and whereof the just double is insert in the precept above mentiond, and 
 
 PINDIS and DECLAIRES THE SAMYNE PRETENDIT PRINCIPALL PATENT TO HAVE rflENE, TO BE NOW, AND IN ALL 
 
 TYME COMBING UNLAUFULL, NULL, AND OP NO FORCE NOR EFFECT, with all that has followcd or may foUow 
 thairupone, — 
 
 As ALSO STATUTS, DECEBNIS, AND ORDAINES, THAT IP THE SAID WiLLIAM EabLE OF GlENCAIKNE, OB 
 ANY OTHER HIS AIRES OB SUCCESSORIS, SHALL AT ANY TIME HEIEAFTER MAK USE OF THE FORSAID PBETENDIT 
 
 PRINCIPALL Patent in judgement or outwith the samene any maner of way, the said Earle of Glen- 
 carne, AND HIS AIEES AND ASSIGNAYES FORSAIDIS, MAKERS USE OF THE FORSAID PRETENDIT PRINCIPALL PaTENT> 
 ARE AND SHALL BE INCAPABLE OF THE DIGNITY OF EaBLE THAIRINSPECIFEIT, AND SHALL NOT BROOK NOB ENJOY 
 THE DIGNITY AND TITLE OP EaBLE BY VEBTUE OP ANIE OTHER EIGHT AT NO TYME HEEEEAFTEE." 
 
 (23) Decreet hy ParliaTnent — then in rebellion, and having no jurisdiction in honours, and to which 
 there lay no appeal from the Court of Session — 9th March 1649, annulling the Decreet of tJie 
 Court of Session 19iA January 1648, " AS matnlie proceeding and depending upon the 
 " FORESAID PRETENDIT PATENT " of 28th May 1488 (os also anmdling the Patent itself, the 
 Uatification 1637, and the Decreet of the Court of Session 1610, in so far as they gave prece- 
 dency to Olencairn over Eglinton). — Fro'm the Acts of Parliament, MSS., in Her Majesty's 
 General Register House, Edinburgh. — ' Minutes of Evidence,' p. 56. — (Refen'ed to supra, 
 p. xlvi.) * 
 
 (No. ex.) 
 
 " Nono Martij 1649. Prayers said, RoUis called. 42 dies Parlementj. &c.*&c. &c. 
 
 "DECREET AT THE INSTANCE OF THE EARLE OF EGLINTOUN AGANST THE EARLE OF 
 
 GLENCARNE. 
 
 " Anent THE suMMONDis raised at the instance of Alexander Earle of Eglintoun, Lord Montgomrie 
 and Kihvyning, etc., and Ilugh Lord Montgomrie, Master of Eglintoun, his sonne, 
 
 Aganst whom the pretendit Decreit of Eeductioun and Declarator aftermentionat is given and pro- 
 nounced be the Lords of Counsell and Sessioun ; 
 And als quhose predecessor umquhile Hugh Earle of Eglintoun, be Decreet of the Lordis of Privie 
 
 * Analysis of the (illegal and rescinded) Decreet of 
 Parliament, 9th March 1649. 
 
 ' IX March 1649, 42nd day of the Parliament,— 
 
 Anent the Summons at the instance of Alexander Earl op 
 Eglinton, 
 
 Against whom the pretended Decreet of Reduction and 
 Declarator, 19th January 1648, was pronounced by the 
 Lords of Council and Session ; 
 
 As successor of Hugh Earl of Eglinton, who by the 
 Decreet of Ranking 5th March 1606 was preponed and 
 ranked before James Earl of Glencairn, grandfather to 
 William now Earl of Glencairn, at whose instance the 
 Decreet 19th January 1648 was pronounced; 
 
 As successor in the title and dignity of Earl of Eglinton 
 to Hugh Earl of Eglinton, against whom the said 
 James Earl of Glencairn, grandtather to the said Eai-1 
 William, obtained the pretended Decreet 7th July 1610 
 before the Lords of Session, reducing the Decreet of 
 Ranking 1606 " hi) production of the pretended Patent 
 " underwritten," for null defence ; 
 
 And as having on the llth February 1617 obtained a 
 Decreet before the said Lords, reducing the Decreet 
 1610,— 
 
 And also at the instance of Sir Archibald Johnstone 
 of Waristoun, the Lord Advocate, for His High- 
 ness' interest, — 
 
 The pursuer, with concurrence of the Lord Advocate, 
 having therefore good and sufficient interest to 
 pursue the Action of Reduction, Improbation, and 
 Declarator undenvritten. 
 
 Against 
 William Earl of Glencairn, and others,- 
 Calling for production before the Estates of Parliament of 
 1. The pretended Decreet of Reduction and Declarator 19th 
 January 1648, (by which the Lords of Session reduced 
 
 the Decreet in favour of Eglinton 1617, and the 
 Decreet of Ranking 1606, in so far as by either of 
 them Glencairn is postponed to Eglinton, and found 
 and declared that the precedency belonged to Glen- 
 cairn,)— together with the Summons, acts and letters, 
 &c.. Minutes of process, &c., whereupon the said 
 Decreet was founded and proceeded, — 
 The pretended Letter of Patent 28th May 1488, by which 
 it is alleged that Alexander Lord Kilmaurs, great-grand- 
 father's great-grandfather to William now Earl of Glen- 
 cairn, was created Marl of Glencairn by James III., — 
 together witlx 
 
 i. The pretended Decreet of the Lords, 12th March 
 1504; 
 
 ii. The Sederunt of Parliament 1505 ; 
 
 iii. The Charter 1507, in which Cuthbert, grand- 
 sou of the patentee in 1488, is styled Earl of 
 Glencairn ; 
 
 iv. The pretended Ratification by Charles I. 1637; 
 
 V. All other charters produced by Glencairn in the 
 Decreet 1648 ; — and 
 
 vi. The Decreet 1610, by which the Lords reduced 
 the Decreet of Ranking 1606, in so far, &c.— 
 with the Summons, &c. &c., — 
 
 Generally, all other warrants, charters, &c. by which 
 the Glencairn family claim precedency over that of 
 Eglinton, — 
 
 And, particularly, 
 
 i. The Retour of James Earl of Glencairn, 1630, to 
 Alexander Earl of Glencairn, the patentee in 
 
 1488; 
 
 iii. The Decreet 12th March 1504; 
 iv. The Sederunt of Parliament 1505; 
 
APPENDIX. 
 
 465 
 
 Counsall anno 1606, anent the Ranking of the Noblemen within this kingdome of Scotland, was 
 prseponed and ranked before umquhill James Earle of Glencarne, goodschir to this William now 
 
 V. The Charter 1507; 
 
 viii. The Charter to Cuthbert Earl of Glencairn, 
 24th June 1511, of the Earldom and Barony 
 of Glencairn, which Earldom is thereby alleged 
 to have been recognosced, and by the said 
 Charter is erected and united into a new 
 Earldom ; 
 
 X. The Retour, 15th January 1515, of Cuthbert 
 Earl of Glencairn to his grandfather, Alex- 
 ander Earl of Glencairn, the patentee in 1488 : 
 
 xi. The Instrument upon serving his brieves, &c. 
 of that same date ; 
 &c. 
 
 Together with all other writs and evidents men- 
 tioned in the Decreet 1648, — 
 
 To be seen and considered in Parliament, and to see and hear 
 them reduced and declared to be null and void, in so far as 
 Eglinton is thereby postponed to Glencairn; and to hear 
 and see it declared hy Decreet of Parliament that Eglinton 
 ought to have precedence over Glencairn notwithstanding 
 the Decreet 1648, &c. ; and to hear and see the said charters, 
 patents, &c. improven as false and feigned, counterfeit and 
 devised, at least produced and used by the defenders, and, 
 being improven, to hear and see them declared by Decreet of 
 Parliament to make no faith in judgment, ^c. in time coming, 
 
 Jpor t^e IJlBasons anlj CtausEa follofoing, bt?., — 
 
 I. The Patent op the Earldom of Glencairn, 1488, 
 
 1. Because annulled by a Proclamation of James IV. 
 
 at Scone ; for, 
 
 i. James III. having made divers grants of 
 lands and dignities to his adherents, and 
 the said Patent amongst the rest, and 
 having fallen at the battle of Stirling with 
 many of his barons and adherents ; 
 
 ii. And the first Parliament of James IV. 
 having declared, by the Act entitled ' The 
 ' Proposition of the Debate of the Field 
 • of Stirling,' that his (James III.'s) 
 death and that of his adherents was the 
 result, or act, of his " perverse counsall;" 
 and having passed an Act (the Act Rescis- 
 sory), by which aU creations of new dig- 
 nities granted by James III. since the 
 2nd February 1487-S, which might be pre- 
 judicial to James IV. and his Crown, were 
 cassed and annulled, because granted for 
 assistance to the "perverse counsall" that 
 were contrary to the common good of the 
 realm and cause of the King's slaughter ; 
 
 iii. And it being the fact that the Patent in 
 
 QUESTION WAS granted TO ALEXANDER 
 
 Lord Kilmacrs in reward of assist- 
 ance AND COUNSEL FURNISHED TO JaSIES 
 III. and with the view of securing a continvr 
 ance of that assistance and counsel, and the 
 Patentee having fallen with the said 
 James III. at the battle of Stirling, — 
 
 iv. The Patent therefore, as having been granted 
 for assistance and counsel given to the said 
 King James III., which by the said Acts of 
 Parliament are declared to have been against 
 the common good of t/ie realm and the cause 
 of the King's death, fell directly under 
 THE SAID Act [Rescissory], and was 
 
 THEREBY revoked AND ANNULLED : — 
 
 And, 
 
 2. Because acknowledged to have been so annulled, by 
 
 James IV. and by Parliament, and also by Cuth- 
 bert Lord Kilmaurs, grandson of the patentee, through 
 reiterated acts, sederunts in Parliament, SfC. from 
 1488 to 1499, wJiereby he acknowledged that 
 he was only lord Kilmaurs and m>t Earl of Glen- 
 cairn, and acquiesced to the revoking and annidling 
 of the Patent, — 
 — And therefore the Patent, having been revoked by Act 
 of Parliament, and acknowledged to be revoked by Cuthbert 
 Lord Kilmaurs, ought to be reduced, and it ought to 
 be found and declared that Eglinton is entitled to 
 the precedency, notwithstanding, &c. &c. 
 
 II. The Decreet 1610, 
 
 1. Because given against the Earl of Eglinton for 
 null defence and non-appearance, he not having 
 been lawfully summoned, &c. ; and now, Alex- 
 ander Earl of Eglinton alleging that the Decreet 
 1610 WAS pronounced on a reason founded 
 
 ON THE Patent 1488, and that that Patent was 
 not an authentic document, because annulled and 
 reooked in 1488, and acknowledged as such by Cuth- 
 bert Lord Kilmaurs, this allegiance, which would 
 have been sufficient, if urged in the first instance, 
 to stay the pronunciation of the Decreet in ques- 
 tion, is sufficient now, being urged in the second 
 instance, to reduce and annul it, — 
 — And therefore the said Decreet, &c. ought to be 
 reduced, &c. &c. 
 
 III. The Charter of Ratification 1637, 
 
 1. Because privily obtained by Glencairn and not 
 
 done in Parliament ; whereas the Patent, having 
 been annulled by the King in Parliament, could 
 not be revived but in Parliament ; 
 
 2. Because granted without hearing of Eglinton, 
 
 who, if heard, would have proved the invalidity 
 of the said Patent by reminding the King of the 
 Act Rescissory ; 
 
 3. Because obtained, i. On erroneous information, 
 
 viz. that Alexander Earl of Glencairn, the 
 patentee, and his successors, had enjoyed the 
 dignity continually since the creation in 1 488 ; 
 whereas the Patent was revoked, and Cuthbert 
 Earl of Glencairn was designed Lord Kilmaurs 
 from 1488 to 1499, thereby acknowledging the 
 revocation of the Patent, — and, ii. Through 
 suppression of the facts of revocation and acqui- 
 escence ; 
 
 4. Because the declaration in the said Charter of 
 
 Ratification that the Patent 1488 should be a 
 valid right cannot prejudice Eglinton's right to 
 allege the nullity of the Patent in proof of his 
 right of precedency, conformable to the Decreet 
 1606; 
 
 5. Because the Ratification is merely " secundum 
 
 " validitatem dictarum litterarum patentium," — 
 but the Patent, having been revoked, has no 
 validity : — 
 — And therefore the said Ratification ought to be re- 
 duced, &c. &c. 
 
 IV. The Decreet 1648, — as reducing the Decreet 1617 and 
 the Decreet of Banking 1606, 
 
 1. Because the reason libelled against the Decreet of 
 
 Banking 1606 in the Summons on which the Decreet 
 1048 proceeded, was, that the Decreet 1606 was 
 pronounced against Glencairn for null defence, 
 he never having been lawfully cited to produce 
 his evidents, and that if he had been cited he 
 would have produced his evidents, &c., — 
 
 2. Because in the, said reason it was libelled that 
 
 Alexander Lord Kilmaurs was created by 
 Patent 28th May 1488 Earl of Glencairn, 
 BY VIRTUE OF WHICH PATENT Cuthbert Earl of 
 Glencairn, grandson of the patentee, is designed as 
 Earl in the Decreet 1 504 and the Sederunt of Parli- 
 ament 1505 — in which Parliament Eglinton sat as 
 Lord only, and is also designed Earl of Glencairn in 
 the Charter 1507; conform to which patent, 
 sederunts, ^x. Glencairn Ms sat as Earl for seven or 
 eight score years, — Whereas it was alleged by 
 Eglinton, that THE SAID reason was founded 
 ON THE Patent 1488, and that Patent is no 
 valid ground, because revoked by the act 
 [Rescissory] 1488, and acknowledged to be 
 revoked and acquiesced in by cuthbert (as 
 is at large m/intiuued in the first reason of 
 
 REDUCTION ABOVE WRITTEN, LIBELLED AGAINST 
 
 THE Patent, and as is contained in the Minutes of 
 Process wliereon the Decreet 1648 Jiroceeded), so that 
 Patent could be no valid evident : — Notwith- 
 standing which relevant allegiance, the 
 forsaid reason of reduction was sustained, 
 AND THE Patent found a good and valid 
 EVIDENT, which in justice could not have been 
 done, — 
 
 3. Because the Decreet 1648 reduces all writs, &c. 
 
 granted to Eglinton, whereby he might claim 
 precedency ; and the Decreet ought in that part 
 to be reduced, forasmuch as there was no reason 
 libelled against any charters, patents, ^c. granted to 
 Eglinton, but allenarly (solely) the foresaid 
 REASON of reduction, libelled against the Decreet 
 of Banking 1606, which was FOUNDED ON THE 
 Patent, — neither in all the disputes was any alle- 
 giance proponed for Eglinton bnt ONLY the said 
 REASON OF reduction AS FOUNDED ON THE 
 
466 
 
 APPENDIX. 
 
 Earle of Glen came, at whose instance the said pretendit Decreet of Eeductioun and Declarator 
 aftermentionat is given and pronounced ; 
 And als at the instance of the said Alexander Earle of Eglintoun as successor in the title, dignitie, 
 
 Patent ; and on the contrary, Eglinton's procurator 
 declared on the 8th and llth January 1648 that he 
 
 DISPUTED ONLY THE NCLUTr OF THE PATENT 
 
 and craved answer thereto, and desired that the 
 decision might be remitted to Parliament, &e. 
 as is clear by the Minutes, and, on the said llth 
 January, craved up his writs and declared he 
 would be absent, which was just and reasonable, 
 but the Lords refused to allow him to do so, — and 
 therefore, there being no reason libelled against 
 any other writs granted to Eglinton, those writs 
 could not have been reduced, — 
 
 4. Because, whereas the Decreet states that both 
 parties were heard to dispute at length against 
 the reasons of reduction, and for and against the 
 writs respectively produced, the contrary appears 
 from the Minutes of Process, where NO REASON "WAS 
 
 DISPUTED BUT ONLY THE FIRST REASON FOUNDED 
 
 UPON THE Patent, and where no allegiance was 
 proponed nor dispute made against any of the writs 
 produced but allenably (solely) against the 
 Patent : — 
 
 — And therefore the Decreet 1648 ought to be reduced, 
 &c. &c. 
 
 The Decreet 1 648, — as finding and declaring that Glen- 
 cairn shall haic precedency before Eglinton, &c., whereas it 
 ought to be found and declared that Eglinton is entitled 
 to precedency over Glencairn, notwithstanding the 
 Decreet 1648, 
 
 Because by the Decreet of Ranking 1606 it is provided 
 that any party grieved thereby may obtain redress by 
 production of more ancient and authentic 
 EVIDENTS ; but in the Decreet 1648 there are no 
 evidents produced for Glencairn older or rrwre au- 
 thentic than those that were produced for Eglinton in 
 1606, — for, whereas Glencairn produced, in the 
 Decreet 1648, 
 
 i. An Act of the Lords of Session 1 504 ; 
 
 ii. A Sederunt of Parliament 1505, bearing 
 Glencairn to sit inter Comites, and Mont- 
 gomery among the Lords ; 
 
 iii. A Sederunt of the Lords of Session 1505, 
 where Glencairn and Montgomery appear 
 as Earl and Lord; — and, 
 
 iv. A Sederunt 1 508, where sit ' Comes de 
 ' Argyle ' and ' Dominus Montgomery ;' 
 
 Eglinton opposes to these 
 
 The Sederunt 1503, in which his prede- 
 cessor SITS AS ' Comes Montgomery,' — 
 
 than which Sederunt Glencairn produces no earlier 
 right," although obliged thereto by the Decreet 
 1606 ; and therefore Glencairn's Sederunts, &c. 
 of later date cannot prejudice him — he (Eglinton) 
 having possessed his precedency 140 years, as 
 appears by Sederunts ( produced) of 1524, 1558, 
 and 1584, in which Eglinton is ranked before 
 Glencairn: — With reference to which, and to 
 the validity of the Sederunt 1503, it is to be 
 observed, 
 
 i. That in the Sederunts adduced by Glen- 
 cairn, either ' Lord Montgomery' has 
 been written erroneously for ' Earl Mont- 
 'gomery,' he being Earl in 1503; or his 
 son. Lord Montgomery, has been com- 
 missioner for him, — 
 
 ii. That the Sederunt 1503 ought to have 
 more weight, being printed, than the 
 Sederunt 1 505, which is not printed, — 
 
 iii. That even in 1505, in the same month in 
 which Cuthbert Earl of Glencairn sat as 
 Earl, he is styled, before and after, simply 
 ' Lord Kilmaurs,' — 
 
 iv. That, whereas it was alleged, in the ftlinutes 
 of Process of the Decreet 1648, on behalf 
 of Glencairn, that the Sederunt of the 
 
 Earl of Montgomery in 1503 ought to 
 have no weight, because he is styled 
 ' Lord ' Montgomery in the afternoon of 
 the same day, and is never designed Earl 
 of Montgomery thereafter, Eglintmi's pro- 
 curators, HAVING IN 1648 disputed 
 against NOTHING BUT THE PaTENT, nOW 
 
 allege, in fortification of the said Sederunt, 
 that 
 
 (1) It was s^istained by the Lords of 
 
 Secret Council in the Decreet of 
 Hanking 1606; 
 
 (2) The designing Eglinton ' Lord ' is 
 
 not privative of the dignity of 
 Earl, it being usual, then as now, 
 to speak of Earls as Lords ; And, 
 
 (3) In the Act of Justice Court 1567, 
 
 produced in the Decreet 1648, 
 ' Hugh Earl of Montgomery ' 
 appears and protests, &c.,'' — 
 
 so that Eglinton has been designed promiscu- 
 ously ' Earl of Eglinton ' and ' Earl ofMont- 
 ' gomery,' — which should not prejudge 
 Eglinton of the title of Earl in the said 
 Sederunt 1503, — And 
 
 V. That Glencairn's Sederunts, produced in 
 1648, cannot be respected against the 
 Sederunt 1503, forasmuch as Eglinton has 
 shewn that in 1505 Cuthbert Earl of 
 Glencairn is six times designed ' Lord 
 ' Kilmaurs :' — 
 
 And therefore Eglinton opposes 
 
 i. To all Glencairn's Sederunts " 
 
 (1) The Sederunt 1503, 
 
 (2) Continual possession of precedency, 
 
 and 
 
 (3) The burning of his evidents by the 
 
 Glencairn family in or about 
 1524; 
 
 ii. To the Decreet of the Lords of Session 
 1504, which relates only to an act of 
 Glencairn's own court, 
 
 The Acts, above written, of the Justi- 
 ciary Court 2nd June 1 505, in which 
 Cuthbert is styled ' Lord Kilmaurs ; ' 
 iii. To the Infeftments 1507 and 1508, pro- 
 duced by Glencairn in the Decreet 1648, 
 
 (1) The Sederunt 1503,'' 
 
 (2) Four Sederunts in Council and 
 
 Session 1506, designing Eglinton 
 ' Earl,' and 
 
 (3) Precept of Clare constat 1507, by 
 
 the ' Earl of Eglinton,'— 
 
 all anterior to Glencairn's first charter as 
 Earl, which was in 1507 ;" and which 
 ought to be sustained as valid because 
 Eglinton's writs were burnt in 1524 by 
 Glencairn's ancestors : — 
 
 And he adduces, in proof of having ever since 
 enjoyed the precedency, 
 
 i. Three Sederunts in 1524, 1558, and 1584, 
 ii. The Signature by James IV., under the 
 Great Seal, March 1 5 13, in which Eglinton 
 is ranked among the witnesses before 
 Glencairn, — and 
 
 iii. The Contract 1537, between the Earls of 
 Eglinton and Glencairn, and their families 
 and friends, in which Eglinton is described 
 and subscribes first and on the right hand, 
 and the Master of Glencairn second and 
 on the left hand : ' — 
 
 So 
 
 that it is clear that Eglinton produces more 
 
 " That is, of course, the Patent 1488 being (held to be) 
 annulled. 
 
 ii The Claimant has given much additional proof of the style 
 of ' Earl of Montgomery ' in his S. Case, p. 71, and supra, p. lix, 
 and n. t- See also infra, p. 505 of this evidence. 
 
 " In 1505 (two), and 1508. 
 
 " The Patent 1488, as above stated,'being set aside, as annulled 
 
 and out of the question. Eglinton's whole plea rests on the 
 Sederunt 1503. 
 
 " This is a charter to Cuthbert Earl of Glencairn, 7th February 
 1507, of the lands of Hilton,— not in the slightest degree par- 
 taking of the nature of a patent or instrument of creation. Vide 
 supra, p. xxxviii. It is printed at length infra, p. 502. 
 
 ' With respect to this Contract see note ' , p. 447, supra. 
 
APPENDIX. 
 
 467 
 
 and estate of the Earledome to umquhill Hew Earle of Eglintoune, aganst whom uraquhillJames 
 Earle of Glencarne, goodschir to this William now Earle of Glencarne, to quhom lie is air or 
 appearand air, immediatlie or be progres, anno 1610 obtained aiie Decreet Eeductive, before the 
 Lords of Counsall and Sessioun for the tyme, of that Decreet of Ranking givin be the Lords of 
 Privie Counsall anno 1606 aganst the said umquhill Hugh Earle of Eglintoun, the persewaris 
 predecessor, be productioun of the pretendit patent underwritten, for null defence ; 
 And als at the instance of the said Alexander Earle of Eglintoun, within \lege, who in] the moneth of 
 
 ancient and authentic evidents than Glencairn did in 
 1648. And full respect ought to be paid to 
 Eglinton's productions, seeing that Glencairn's 
 ancestor burnt the writs of the Eglinton family, 
 in their castle, in 1524, &c., as is testified by a 
 charter of James V. in 1528, 
 
 — And therefore the Decreet 1648 ought to be reduced, 
 and Eglinton ought to be declared entitled to the prece- 
 dency over Glencairn, and all the writs called for 
 and mentioned in the Decreet 1648 should be reduced 
 in so far as by them Eglinton is postponed to Glen- 
 cairn, and Eglinton should be restored in integrum 
 against the Decreet 1648 and all former Decreets, 
 and should have precedency, &c. notwithstanding the 
 said Decreet 1648, or any other Decreets, Patents, 
 Ratifications, &c. &c., and the said pretended charters, 
 ratifications, patents, services, retours. Decreets, &c. 
 to be improven as false and feiqned, &c. — as likewise 
 Eglinton, with concurrence of the Lord Advocate, 
 offers to improve the same per testes, &c. as false and 
 feigned, &c. &c. 
 
 And anent several charges and citations, &c. 
 
 Which Summons having been duly read and the parties called 
 in face of Parliament, and none appearing for Glencairn 
 and the other defenders, — 
 
 The Parliament appointed a Committee, consisting of three of 
 each Estate, to consider the said Summons, with the whole 
 writs, &c. produced and used by Eglinton, — 
 
 And the said Committee having publicly called on Glencairn, 
 &c. to appear and answer to the said Summons, and none 
 appearing, save that Mr. Maxwell, on behalf of Sir John 
 Gibson, clerk to the process in 1 648, appeared and produced 
 the said process, with the whole Minutes, &e. on which it 
 proceeded, — 
 
 And the procurators for the pursuer, Eglinton, appearing and 
 repeating the writs and evidents founded on by Eglinton, as 
 follows, 
 
 1 . The Decreet of Banking 1 606, and proof of Eglinton's 
 
 predecessor having tlien produced THE Sederunt 
 1.503; 
 
 2. Charter to Hugh Earl of Eglinton 1508 ; 
 
 3. Charter to Hugh Earl of Eglinton 1509 ; 
 
 4. Decreet of Reduction 1617 ; 
 
 5. Charter to Hugh Earl of Eglinton 1611 ; 
 
 6. Charter to Alexander Earl of Eglinton 1615; 
 
 7. Certificate of production in 1606 of the Sederunt 
 
 1 503 and two other charters ; 
 
 and, for satisfying the production in respect of the defender, 
 Glencairn's, non-appearance, 
 
 8. The Decreets of 1610 and 1648 : 
 
 9. The double of the Patent 1488 and Confirmation 
 
 1637, extracted in form of instrument, 
 
 10. Retour of James Earl of Glencairn, 1630, to Alex- 
 
 ander Earl of Glencairn, the patentee in 1 488 ; 
 
 11. The Minutes of Process whereupon the Decreet 1648 
 
 proceeded; 
 
 12. Act of Session 1504; 
 
 13. Sederunt 1505; 
 
 14. Infeftment 1507,— 
 
 And, generally, the other writs mentioned in Glencairn's 
 Decreet 1648,— 
 and declaring that they insisted on the reasons of reduction 
 ABOVE SPECIFIED against THE Patent 1488, against the 
 Confirmation 1637, the Decreet 1610, the Decreet 1648, &c., 
 and referring the Summons, reason of reduction above spe- 
 cified, with the writs produced and repeated, &c. to the 
 consideration of the Committee, — 
 
 And further, Eglinton's procurator having appeared lefore the 
 Committee and produced the extract of an Act and Decreet of 
 Parliament, 2nd March 1649, given at the instance of the Pro- 
 curators of Estate, declaring Glencairn's Patent 1488 null and 
 ■unlawful, and that if Glencairn or his successors use it, he or 
 they, so using it, shall be incapable of the dignity ; and adding 
 and repeating it to the remaining writs founded on by 
 Eglinton for proving the first reason of reduction above 
 specified against the Patent 1488, — 
 
 And the Committee having read and considered the whole 
 matter, and reported their opinion to the Parliament^ — 
 
 And the Summons of Reduction and Improbation above- 
 specified, the reasons of reduction above-written, together 
 with the double of the Patent, the Decreets 1610 and 1648, 
 the processes and Minutes whereupon the Decreet 1648 pro- 
 ceeded, and remaining writs, acts, sederunts, &c. produced 
 for the pursuer (Eglinton), and the Report of the Committee, 
 having been read in audience of Parliament, and at length 
 debated, considered, and advised by the Estates of Parlia- 
 ment, and the said Estates being thereanent well and ripely 
 advised, — 
 
 The Estates of Parliament reduce, rescind, cass, and 
 
 ANNUL, 
 
 I. The foresaid pretended Patent 1488 — in so far as 
 
 Glencairn can pretend precedency over Eglinton 
 thereby, — witliout prejudice of the foresaid Decreet given 
 at the instance of the Procurators of Estate, 2nd March 
 1649, which is to remain in full force, unprejudiced 
 hereby : — Because the Estates find the First 
 Reason of Reduction, above-specified, used 
 against the said Patent, relevant and proven hy the 
 Revocation [the Act Rescissory], Acts of Parlia- 
 ment, and Decreet of Parliament 2nd March 1649, — And 
 therefore, none appearing to allege cause to the con- 
 trary, they reduced, &c. the said Patent : — ■ 
 
 II. The Decreet 1610— in so far, &c. : — Because the 
 
 Estates find the Second Reason of Reduction, above- 
 specified, &c. relevant and proven, seeing the cause of 
 that Decreet was only the Patent 1488, which is 
 now reduced upon the First Reason, as above, — And 
 therefore, &c. : — 
 
 III. The Charter of Confirmation 1637, &c. : — Be- 
 cause the Estates find the Third Reason of Reduction, 
 above specified, &c. relevant and proven, — And 
 therefore, &c. : — 
 
 IV. The Decreet 1648, as reducing the Decreet 1617 and 
 Decreet of Ranking 1606, ^c: — Because the Estates 
 find the Fourth Reason of Reduction, above specified, 
 &c. relevant and proven ; and it is clear hy the Minutes 
 produced, that Eglinton's procurators did, on th(p 8th 
 and 11th January 1648, declare that they disputed 
 ONLY THE nullity OF THE PATENT, and Craved that 
 answer might be given thereto, and also desired that 
 the decision might be remitted to the Parliament (as 
 depending upon James IV.'s Revocation and the Acts 
 of Parliament following thereupon), and craved up 
 their writs and declared that they would be absent' 
 — all which was refused by the Lords ; vihereby the 
 earnest care ^ of the Judge appears : — In respect whereof, 
 and Eglinton's non-appearance, the Estates reduce 
 
 AND ANNUL THE SAID DECREET 1648 AS MAINLY 
 PROCEEDING AND DEPENDING UPON THE PATENT 
 
 1488 :— And, lastly, 
 
 V. The Decreet 1648 — as finding and declaring that 
 
 Glencairn has precedency before Eglinton : — Because 
 the Estates find the Fifth Reason of Reduction, 
 above-specified, (which militates only against the 
 Declaratory part of that Decreet,) relevant and sufii- 
 ciently proven to infer Decreet and Declarator of prece- 
 dency in favour of Eglinton against Glencairn BY pro- 
 duction OF THE Sederunt 1603 and remaining writs 
 above-specified, &c. — especially against Glencairn, by 
 whose predecessor the castle and the family evidents 
 of the Eglinton family were burnt in 1524 : — 
 
 glntr therefore, 
 
 And in respect that Glencairn, being ofttimes summoned, did 
 not appear to shew cause to the contrary, the Estates find 
 and declare that Eglinton has right of precedency 
 BEFORE Glencairn ; 
 And decern the Patent 1488, together with the foresaid 
 charters, ratifications, &c. to make no faith in judgment, 
 &c. IN time coming, in so far as Glencairn can claim pre- 
 cedency over Eglinton thereby : — But, 
 
 Without prejudice to the Decreet of Parliament 2nd 
 March 1649, which is to remain in full force, unpre- 
 judiced hereby.' 
 
 " That is, craved leave to retire before judgment was pronounced, that it might be given in absence and thus not be final. 
 See the ' Minutes,' supra, p. 445. ^ That is, the partiality. 
 
 3 
 
468 APPENDIX. 
 
 1617, obtained [ane] Decreet Reductive before tlie saids Lords of the Decreet abovwrittin, obtained 
 be the said Earle of Glencarne, anno 1610, of the said Decreit of Eanking thairby allegit reduced ; 
 And als at the instance of Sir Archbald Johnstoun of Waristoun, Knyght, his Majestie's 
 Advocat, for his Hienes' interest in the matter underwritten, — 
 
 And thereby the saids persewaris, with concurse of his Majestie's said Advocat, for 
 his Hienes' interest, liaving good and sufficient actioune, title, and interest to 
 persew the Actioun of Reductiouii, Improbatioun, and Declarator underwritten, 
 
 Aganst 
 William Eakle of Glencarne; Lord Kilmawris his sonne ; Johnne Earle of Crawfurd, principall 
 
 Thesaurer ; Schir James Carmichaell, Thesaurer Depute ; Schir Archibald Johnstoun of Waristoun, Knyght, his 
 Majestie's Advocat ; Schir Alexander Gibsoun of Durie, Knight, Clerk of Eegistre ; Schir William Scot of 
 Clerkingtoun, Knyght ; Mr. William Hay, and Schir Johnne Gibsoun of Pentland, Knight, his deputis ; Schir 
 Johnne Scot of Scottstarvet, Knight, Director of his Majestie's Chancellarie ; and the tutoris and curatoris of the 
 said Lord Kilmawris, if hee anie hes, for thair interests ; and all uthers haveand or pretending to have 
 
 interest in the matter aftermentionat. 
 
 Touching the productioun before the Estatis op Parlement of 
 
 [1. The Decreit 1648:] — Am pretendit Decreet of Reductioun and Declarator obtained before the saids 
 Lords of Counsell and Sessioun upon the nynteinth day of Januar anno 1648, at the instance of the 
 said William now Earle of Glencarne, and his said sonne, aganst the said Alexander now Earle of 
 Eglintoun, and his said sonne, and aganst certane uther persons thairin nominat ; quhairby the 
 saids Lords of Counsall have reduced, retreated, rescinded, cassed, and annulled the forsaid 
 Decreet of Eeductioun obtayned at tiie instance of the said Alexander Earle of Eglintoun 
 aganst the said umquhill James Earle of Glencarne, and umquhill William Master of Glen- 
 carne, his sonne, dated the ellevint day of Februar, 1617 yeris, and also reduced the Decreet of 
 Ranking of the Nobility of this kingdome, pronounced be the Lords of Secret Counsall, anno 
 1606, be quhilk Decreet of Ranking the said persewar his predecessor was praeponed in the 
 place, rank, and dignitie of Earle to the said defender's predecessor, with all that hes followed 
 or may follow thairupon ; and hes decerned and declaired the same to have bene from the 
 begyning, to be then, and in all tyme thairafter, null in thameselffis, and of nane avail], force, 
 strength, nor effect, with all that had followed or might follow thairupone, in so far as be the 
 same Decreitis and remanent wrytis and evidentis forsaid, or any of thame, the said William 
 now Earle of Glencarne, then persewar, his aires or suceessoris, Earles of Glencarne, was or 
 might be postponed in rank, place, and dignity to the saids Earles of Eglintoun, Caithnes, 
 ^ Montrose, and Cassillis, or any of thame or thair suceessoris ; and whereby likwise the saids 
 
 Lords hes found and declaired, that the said William now Earle of Glencarne, defender, his 
 aires and suceessoris, Earles of Glencarne, then had and ought, should and shall have in all 
 tyme thairafter, the right of precedencie and priority of place and voteing in all Parlementis, 
 Cqunsallis, Conventiounes, or other privat and publict meetings, before the saids Earles of 
 Eglintoun, Caithnes, Montrose, and Cassillis, and thair suceessoris, notwithstanding of the 
 forsaidis Decreitis, and other wryts called for, or anie other right or title of honour and dignitie 
 granted to thame, or any of thame, or thair predecessoris — together also with the principall 
 lybelled Summondis of Reductioun and Declarator, acts and lettres of continowatioune, execu- 
 tiounes, and indorsatiouns of the said Summondis, and lettres, and haill remanent acts, lettres, 
 interloquutoris, Minutisof Proces, groundis, and warrantis, quhairupon the said Decreet Reduc- 
 tive and Declarator, alleadged obtained at the instance of the said William now Earle of 
 Glencarne upon the said 19th of Januar 1648, was founded and proceeded: — And lykwise 
 the saidis defenders to bring with thame and produce before the said High Court of Parle- 
 ment, day and place abovwrittin, in the hour of cans, with continuatioun of dayes, 
 
 [2. The Patent 1488 :] — Ane pretendit Lettre of Patent dated the 28 day of May, 1488 yeris, alleadged 
 made and graunted be umquhill King James the Thrid of worthie niemorie, quhairby it is allegit 
 that umquhill Alexander Lord Kilmawris, foirgrandschiris foirgrandschir to the said William noio 
 Earle of Glencarne, was creat Earle of Glencanie he the said King James tlm Thrid, — Too-ether 
 also with 
 
 [i] A pretendit Decreit of the Lordis, of the date the 12 day of March 1504 yeris, 
 quhairby the said umquhill Alexander, first pretendit Earle of Glencarne, his 
 oy (grandson) Ciithbert is allegit to be designed Cuthbert Earle of Glencarne, — 
 Together also with 
 
 [ii] The Sederunt of Parlement haldin be King James the 4th in anno 1505, quhairby 
 it is allegit that the said umquhill Cuthbert, pretendit Earle of Glencarne, sat in 
 the said Parlement as Earle, — ^Together also with 
 
 [iii] The pretendit Charter, alleadged graunted be umquhill King James the , of 
 
 worthie memorie, of the lands and barony of Hiltoun to the said umquhill Cuth- 
 
APPENDIX. 469 
 
 bert, pretendit Earle of Glencarne, quhairby it is allegit that the said umquhill 
 Cuthbert is designed Earle of Glencarne, — Together also with 
 
 [iv] The pretendit Chartor of Eatifioatioun allegit made and graunted be his Majestie's 
 umquhill father of worthie memorie, dated the 28 day of July, 1637, quhairby 
 his Hienes is allegit to have ratified the forsaid pretendit Patent graunted 
 to the said umquhill Alexander, first pretendit Earle of Glencarne, be the said 
 umquhill King James the Thrid, of the forsaid honor, title, and dignity of ane 
 Earle, and als ratifeing all others lettres patents, wryts, and evidents graunted 
 to the said umquhill Alexander, pretendit Earle of Glencarne, or to anie of his 
 predecessoris or successoris, concerning the said title, honor, and dignity of ane 
 Earle, — Together also with 
 
 [v] All other chartoris, evidents, sederunts in Parlement and Counsall, and other wryts 
 whatsoever, produced be the said William Earle of Glencarne in the said 
 pretendit Decreet, of whatsoever daitis, tennor, or contents the samyn be of, — 
 Together with 
 
 [vi] The forsaid pretendit Decreet Reductive obtained before the saids Lords of Coun- 
 sall and Sessioun at the instance of the said umquhill James Earle of Glencarne, 
 goodschir to the said William now Earle of Glencarne, defender, aganst umquhill 
 Hugh Earle of Eglintoun, the persewaris predicessor, of the date the sevint day of 
 July, 1610 yens; quhairby the saids Lords of Counsell and Sessioun reduced and 
 rescinded the Decreet before and afterspecifeit, given and pronounced upon the 
 day of , 1606 yeris, be the Lords Commissioneris appointed 
 
 be King James the Sixt of worthie memorie, for Ranking of the Nobility of this 
 kingdome, quhairby the said umquhill James Earle of Glencairne was postponed 
 in rank and place to the said Earle of Eglintoune, — together with the principall 
 lybelled summondis of reductioun and declarator, acts and lettres of continua- 
 tioune, executiounes, and indorsatiouiies of the said summondis, and lettres and 
 haill remanent acts, lettres, minutis of proces, interloquutoris, grounds and war- 
 rants, quhairupon the said Decreit Reductive and Declarator, allegit obtained at 
 the instance of the said umquhill James Earle of Glencarne upon the day abov- 
 writtin, and yeir of God forsaid, was founded and proceeded ; 
 
 — And lykwise the saids defenders to bring, exhibite, and produce with thame before his 
 Majestie and his high Court of Parlement, the saids day and place, in the hour of cans, with 
 continuatioun of dayes, 
 
 [3.1 All and whatsoever other warrantis, chartoris, lettres patentis, erectiounes of Earldomes, and others 
 wrvts, evidents, rights, and titles whatsoever made and graunted in favoris of the said William 
 now Earle of Glencarne or his predicessoris, and the said his sonne, or thair 
 
 predicessoris ; be the quhilk the saids defenderis claimes or pretends to have the right of pre- 
 cedency or priority of place and rank and voting before the said Alexander Earle of Eglintoun, 
 persewar, in Parlements, Counsallis, Conventiounes of estats, private and piiblict meetings and 
 conventiounes, of whatsoever date or dats, tennor or contentis, the same be of, — with all that hes 
 followed thairupone, — 
 
 [4. And also to bring, exhibit, and produce] 
 
 [i] Item, the Retour of the said umquhill James, Earle of Glencarne, alleadged air of 
 
 the said umquhill Alexander, Earle of Glencarne, dated the penult day of Apryl, 
 
 1630 yeris. 
 [ii] Item, William now Earle of Glencarne his Saising as air to umquhill Earle 
 
 William, his father, upon a precept furth of the Chancellarie, relative to a 
 
 retour, dated the nynt day of November, 1635 yeris, with the pretendit service, 
 
 retour, and precept of saising quhairunto the said Saising is relative. 
 [iii] Item, ane Act of the Lords of Sessioun, dated the 12th day of March, 1504 yeris, 
 
 designing the said umqutiill Cuthbert to be Ej-le of Glencairne. 
 [iv] Item, a Rolment and Sederunt of Parlement, quhairby the said umquhill Cuthbert, 
 
 pretendit Earle of Glencarne, is allegit to have sittin as Erie, the 18th of 
 
 November, 1505, and fyft day of Febrnar, 1505. 
 [v] Item, the Extract of a Chartor, under the Great Seall, graunted to the said 
 
 umquhill Cuthbert, Earle of Glencarne, dated the 7th day of Februar, 1507. 
 [vi] Item, a Chartor graunted to William Cunynghame, sonne to umquhill Cuthbert, 
 
 Earle of Glencarne, dated the 10th of July, 1509. 
 [vii] Item, a Charter of umquhill Cuthbert, Earle of Glencarne, the 17 of Februar, 
 
 1510 yeris. 
 
 3 2 
 
470 APPENDIX. 
 
 [viii] Item, a Charter of uraquhill Cuthbert, Earle of Glencarne, the 24 of June, 1511 
 yeris, of the Earledome and Barony of Glencarne ; quhilk Earledome is thairby 
 allegit to have been recognosced, and be the said new Charter is erected and 
 united in a new Earledome. 
 
 [ix] Item, a Precept of Saising, under the Quarter Seall, to the said umquhill Cuthbert, 
 pretendit Earle of Glencarne, of the barony of Hasindeane, dated the 17th of 
 Februar, 1510 yeris. 
 
 [x] Item, a Eetour of the 15th of Januar, 1515 yeris, quhairby Cuthbert, Earle of 
 Glencarne, is servit air to ye said umquhill Alexander his guidschir, who was 
 the first pretendit Earle, quhairby it is allegit that the Retour bearis the landis 
 to have bene in non-entrie since Earle Alexander his deceis, who deceist 27 
 yeris before the date of the said service. 
 
 [xi] Item, atie Instrument taken in plena et planS, curia vicecomitatus de Dunbartane 
 upon the serving, proclaiming, and verifying of the brieves of the said Cuthbert 
 as air to the said Alexander, pretendit Earle, his goodschir, dated the 15th of 
 Januar, 1515 yeris. 
 
 [xii] Item, a Lettre of Eegres under the privie seall, the 8th day of September, 1524, 
 quhairby the King's Majestie for the tyme gives a regres to Cuthbert Earle of 
 Glencarne, Lord Kilmawris, etc., of certane lands thairinspecifeit, wodset be 
 thame to Hugh Earle of Eglintoun, for implement of a decreet arbitrall betuix 
 ye saids Earles. 
 
 [xiii] Item, a Gift of Nonentrie under the privie seall, grannted be umquhill Queene 
 Marie of worthie memorie to William Earle of Glencarne, of the nonentry of the 
 Barony of Duchall, and utheris thairin contained, dated the 20 of Februar, 
 1547, — Together with 
 
 [xiv] All utheris wryts and evidents mentionat in the forsaid pretendit Decreet of 
 Reductioun and Declarator, obtayned at the instance of the said William Erie 
 of Glencarne aganst the saids persuaris upon the said 19th of Januar, 
 1648 yeris, — 
 
 To BE SEENE AND CONSIDERED be the Kings Majestie and his High Court of Parlement and Estatis 
 yairof, and to hear and sie the forsaidis pretendit Decreitis, Sentences, Patents, Ratificatiounes, and others wryts 
 and evidents particularly and generallie above mentionat, called for to be produced and mentioned in the said 
 pretendit Decreit of Reductioun and Declarator given in Januar, 1648 yeris, produced or alleadged for instructing 
 of the said William now Earle of Glencarne his interest, or for proving of his allegit reasoun of reductioun, and 
 for instructing of his alleadged right of precedencie and prioritie of place and rank in voting in Parlement, con- 
 ventioun of estatu, counsall, privat and publict meetings, as Earle, before the said persewar and his successoris 
 Earles of Eglintoun, Reduced, retreitted, rescinded, cassed, annulled, decerned and declaired to have bene from the 
 hegining, to he now and in all time comeing, voyd, null, and of none availl, force, strength, nor effect, with all that hes 
 followed or may follow thainipoune, in so far as be the saidis pretendit Decreitis, Lettres Patentis, Sederunts, 
 Ratificatiounes, Retours, and others writs particularlie and generallie abovwrittin called for, or any of thame, the 
 said Alexander, noio Earle of Eglintoun, persewar, his aires and successoris Earles of Eglintoun, is or may be 
 postponed in rank, place, and dignitie to the said William Earle of Glencarne, defender, or his successoris ; and the 
 saidis persewaris reponed and restoired in integrum aganst the said last pretendit Decreet of Reductioun and 
 Declarator, and all former Decreitis obtained at the instance of the saids defenderis or thair predicessoris aganst 
 Ihe said Earle of Eglintoun and his predicessoris, siclyk as if the samyne had never bene given nor pronounced : — 
 And to heir and sie it fund and declaired he Decreet of the saids Estatis of Parlement, that the said Alexander Earle of 
 Eglintoun, his said sonne, and thair aires and successoris, Earles of Eglintoun, presentlie hes, aucht, and should, and 
 shall liave in all tyme comeing, the right of precedencie and priority of place, rank, and voting in Parlement, C'onventiounes 
 of Estats, counsalls, and other privat and puhlict meetings, before the said William now Earle of Glencarne, his said 
 sonne, thair aires and successoris succeeding to them in the said Earldome, title, and dignity of ane Earle, not- 
 withstanding of the forsaid Decreet of Reductioun and Declarator last givin be the saids Lords of Sessioun in 
 Januar 1648 yeris, or of anie other pretendit Decreit, Patent, Ratificatioun, or other wryts quhatsoever now called 
 for or produced be the saids defenders in the said last pretendit Decreet of Reduction and Declarator, or of any 
 other right or title quhatsoever of tiie honor and dignity of ane Earle granted to the saids defenders or any of 
 tliair predicessors be his Majestie or any of his Hienes' progenitoris, of whatsoever dates, tennors, or contents the 
 samen be of: — And als to hear and sie the samyne pretendit Chartoris, Patents, Ratificatiounes, Services, Retouris 
 Decreitis of Declarator and Reductioun, grounds, and warrants tliairof, tirst and second Sumnionds quhairupone 
 the same proceeded, executiounes, indorsatiounes thairof, civillie and lawfullie improvin per testes insertos et onini 
 alio modo quo de jure, as weel directlie as indirectlie, as false andfayned, counterfoote and devysed, at the least pro- 
 duced and. used be the saids defenders ; and, being improvin, to heir and sie the same decerned \and'\ declaired, he Decreet 
 of the said High Court of Parlement and Estatis thairof, to mak no faith in judgement ivyr outwith in tyme comeing. 
 
APPENDIX. 471 
 
 jffor [tfte] reasons; anti rausses follotomg,— 
 
 [i. The Patent 1488 :]— First, the said pretendit Patent, dated tue 28th op May, 1488 yeris, 
 allegit made and graunted be umquhill King James the Thrid of worthie memorie—quhaii-bt/ it is 
 aMegit that umquhill Alexander Lord Kilnawris, foirgrandschiris foirgrandschir to the said William now 
 Earle of Glencarne, was cheat Earle of Glencarne be the said King James the Thrid — aught to 
 be reduced and declaired null and of no availl in tyme comeing, in so far as the said William Earle 
 of Glencarne, or his successoris, can thairby pretend any right to the precedencie and prioritie as Earle 
 before the said Alexander Earle of Eglintoun, and his aires and successors, 
 
 [l.J Becaus, the said pretendit Patent haveing bene graunted be the said umquhill King James 
 the 3rd, the 28 day of May, 1488 yeris, in his army at Blaknes, to the said umquhill 
 Alexander alledged Earle of Glencarne, receiver thairof, ' pro ejus assistantia et consilio et 
 ' adventu ad exercitum Eegis de Blaknes,' the said pretendit Patent be a froclamatioun 
 made at Scone he umquhill King James the ith was cassed and annulled, — ffor, 
 
 [i] Umquhill King James the Thrid having givin and graunted diverse alienatiounes 
 of lands and heritages and creatiounes of new dignities to severall noblemen 
 and others who were with him in his army at Blaknes shortly before his 
 death, and having graunted the said pretendit Patent at that tyme to the said 
 umquhill Alexander pretendit Earle of Glencarne amongst the rest, and the 
 said umquhill King James the Thrid having some few dayes therafter gone 
 with the armie to Stirling, where he died, 
 
 [ii] King James the 4th and the Estatis of Parlement in October thairafter, anno 
 1488, by the 14 Act of the first Parlement haldin be the said King James 
 the 4th upon the first of October 1488, intituled The propositoun of the 
 debate of the field at Stirling, did find, declare, and conclude that the 
 slaughter done and committed in the field at Stirling, where the said umquhill 
 King James the Thrid and diverse of his barons and Hedges happened to be 
 slaine, was done by his perverse Counsall, as is cleared by the said 14th Act 
 in the old Acts of Parlement of the blak impressioun, — likas in the 17th Act 
 of the said Parlement, in the book of the blak impressioun, quhilk is the fift 
 Act of the new impressioun, it is statute and ordained that all creations of 
 new dignities granted to any persons of whatsoever estate, degree, or con- 
 ditioun they be of, since the second day of Februar, 1447 {sic, — lege 1487) 
 yeris, graunted be umquhill King James the Thrid, quhilk might be pre- 
 judiciall to King James the Fourth and his Croune, are cassed and annulled, 
 and declaired to be of no force nor eifect in all tyme therafter, becaus that 
 such gifts and priviledges were graunted sen the said t3rme for the assistance 
 to the perverse Counsall that were contrarie to tlie commoun good of the 
 realme and cause of the slaughter of King James the Thrid and diverse 
 others of his barons and Hedges ; 
 
 [iii] And true it is that the said pretendit Patent, allegit granted be the 
 SAID umquhill King James the Thrid to the said umquhill Alexander, 
 
 PRETENDIT EaRLE OF GlENCARNE, IN MaY, 1488, WAS GRAUNTED TO THE 
 
 said umquhill alexander for his assistance and counsall given to 
 King James the Thrid, and for his comeing with his friends and 
 
 KINSMEN TO THE SAID KiNG JaMES THE ThRID HIS ARMY AT BlAKNES, 
 
 and was given to him to move him and his servants and followers to remains still 
 with the said King James tlie Thrid all the tyme of the discord that was then betuix 
 him and his Hedges, as the words of the said Patent bears, — Lykas, immediatlie 
 after his graunting of the said pretendit Patent, the said umquhill Alexander, 
 pretendit Earle of Glencarne, within few dayes therafter went with the said 
 King James the Thrid and his army towards Stirling, where they both 
 happened to be killed ; 
 
 [iv] And THAiRFOR THE SAID PRETENDIT Patent, OS being grauutedfor assistoncB and 
 counsall given to tlie said Kiitg James the Thrid, quhilk he tlie saids Acts of Parle- 
 ment are declaired to have bene aganst the commoun good of the realme, and the caus 
 of the death of the said King James the Tlirid, did fall directlie under the 
 
 SAID FYFT act OF THE SAID FIRST PaRLEMENT OF KiNG JaMES THE 
 
 Fourth, and was thairby revoc ked and annulled : — 
 
 [2.] Lykas, the samyn pretendit Patent, and the dignity of Earle graunted thairby, was acknowledged 
 be diverse and sundrie reiterat acts, for the space of many yeires continowed togetlier, both be the 
 King's Majestie, be the Estatis of Parlement, and he umquhill Cuthbert iM-d Kilmawris, oy 
 
472 APPENDIX. 
 
 (grandson) to the said Alexander first pretendit Earle of Glencarne, to have hem annulled 
 and revocked, in so far as 
 
 [i] The said umquliill Cuthbert Lord Kilmawris sat as Lord Zilmawris in the said 
 first Parlement of King James the 4th, in the quhilk Parlement the forsaid 
 Act was made quhilk revocked all creatiounes of new dignities, — 
 
 [ii] Secondlie, the said umquhill Cuthbert Lord Kilmawris sat in the second Parle- 
 ment of King James the 4th, in anno 1489, as Lord Kilmawris, — 
 
 [iii] Thridlie, in the thrid Parlement of King James the 4th, in anno 1491, thair is 
 ane Act of Parlement made in favoris of the executoris of umquhill Lord 
 Kilmawris, — 
 
 [iv] Fourthlie, the said umquhill Cuthbert Lord Kilmawris received ane infeftment 
 under the Great Seall from King James the 4th, in anno 1492, of the lands 
 of Drumalbane, wherin he is designed Cuthbert Lord Kilmawris, and not 
 Earle of Glencarne, — 
 
 [v] Fyftlie, the said umquhill Cuthbert Lord Kilmawris, anno 14 , resigned the 
 lands of Kilmarnok in favoris of Mariota Douglas, dochter to the Earle of 
 Angus, quhairupon she hes a charter under the Great Seall, quhairin the 
 said Cuthbert is designed Cuthbert Lord Kilmawris, and not Earle of 
 Glencarne, — 
 
 [vi] Sixtlie, umquhill Master of Kilmawris, sonne to the said umquhill Cuthbert, 
 gets ane infeftment under the Great Seill from King James the 4th, in anno 
 1498, of the lands of Kilmawris, quhairin he is designed sonne and appearand 
 air to umquhill Cuthbert Lord Kilmawris, and not to Cuthbert Earle of 
 Glencarne ; 
 
 — Be all quhilk sederuntis and infeftments, from the yeir of God 1488 to the yeir of God 1499, 
 tl>e said umquhill Cuthbert Lord Kilmawris, predicessor to the said William now Earle of Glen- 
 carne, defender, acknowledged that he was onlie Lord Kilmawris and not Earle of Glencarne, 
 and ACi^VTESCEX) to the revoking and annulling of the said pretendit Patent in the said King 
 James the 4th his first Parlement ; 
 
 —And therefore, the said pretendit Patent having been revolted and annulled be the said Act of 
 Revocatioun in tl)e said umquhill King James the 4th his first Parlement, and acknowledged revoked 
 be the said umquhill Cuthbert I^ord Kilmawris be the sederunts and infeftments abovespecifeit, the 
 samyne ought now to be reduced, retreitted, rescinded, cassed, annulled, decerned, and declaired to be null 
 and of nane availl, force, strength, nor effect in all tyme comeing : — And it ought to he found and 
 declaired, that, notwithstanding thairof, the said Alexander Earle of Eglintoun, and his said sonne, 
 and thair successoris Earles of Eglintoun, hes had, presentlie hes, and ought, and should, and shall 
 have, in all tyme comeing, the right of precedencie, and priority, and place, and rank, and voting in 
 all Parlements, Conventiounes of Estate, Counsallis, and other privat and publict meetings, befm-e the 
 said William now Earle of Glencarne, his said sonne, and thair aires and successoris, notwithstanding 
 of the forsaid pretendit Patent : — 
 
 [ii. The Decreet 1610 :] — Secondlie, The forsaid pretendit Decreet op Reddctioun, given and 
 pronounced be the Lordis of CounsaU and Sessioun at the instance of umquhill James Earle of Glencarne, 
 guidschir to the said William now Earle of Glencarne, aganst the said umquhill Hugh Earle of 
 Eglintoun, predicessor to the said Alexander Earle of Eglintoun, persewar, op the date the 
 sevint day op July, 1610 yeris, — quhairby the Lords of Counsall and Sessioun reduced, 
 retreitted, and rescinded the Decreit and sentence givin be the Lords of Secreit Counsall upon the 
 day of , 1606 yeris, as having commissioun from umquhill King James 
 
 the 6th, of worthie memorie, direct to thame for that effect, for Ranking and placeing of the 
 Nobilitie of this kingdome of Scotland in Parlementis, conventiounes, and otherwise, and that in so 
 far as be the said Decreet of Ranking the said umquhill James Earle of Glencarne was postponed 
 in rank and place to the said umquhill Hugh Earle of Eglintoun ; and be quhilk [Decreet] reductive 
 in anno 1610 the said umquhill James Earle of Glencarne was restoired and redintegrat in his 
 allegit just and dew place of order, and rank, and dignity, before the said Hugh Earle of Eglintoune 
 — aucht and should be reduced, retreated, and rescinded, 
 
 [1] Becaus the samyne was given and pronounced aganst tlie said umquhill Hew Earle of Eglintoun 
 for null defence and not compeirance, hee never having bene laufullie summounded thairto ; 
 whereas, if he had bene summonded, he wald have compeired and proponed the 
 alleadgance under written, quhilk wald have stayed the pronounceing of the said 
 Decreet Reductive, — Lykas now the said Alexander, now Earle of Eglintoun, air of tailzie 
 and provisioun, and successor to the said umquhill Hugh Earle of Eglintoun in the 
 title and dignity of Earle of Eglintoune, alleadged that the forsaid Decreet of Beductioun, 
 
APPENDIX. 
 
 473 
 
 in anno 1610, for reduceing of the forsaid Decreet of Ranking, was peonounced upon 
 A Reasoun founded upon the forsaid pbetendit Patent gbaunted be umquhill 
 King James the Thbid, in May 1488, to the said umquhill Alexander, pretendit 
 first Earle of Glencarne, and thereby the said umquhill James Earle of Glencarne 
 alleadging [sic, — lege alleadged] that liee had produced a more auncient and autlientilt 
 evident, graunted to his predicessoris, of the title and dignity of Earle then any tliat was 
 produced he the_said umquhill Hugh Earle of Eglintoun in the forsaid Decreet of Ranking, 
 in anno 1606, and thairfor craved the forsaid Decreet of Ranking to be reduced in so 
 far as be the samyne the said umquhill James Earle of Glencarne was postponed in rank 
 and dignity to the said umquiiill Hugh Earle of Eglintoune, [wAsreas] tlie said pretendit 
 Patent could not have bene anie laufull prohatioune of the said Reason, nor ane authentik 
 evident, becaus the same ivas cassed, annulled, and revoked be King James the 4th in his first 
 Parlement and 5th Act thairof, haldin in October 1488, and was so acknowledged thairafler 
 for many yeiris be umquhill Ctithbert Lord Kilmawris, oy to the said umquhill Alexander, 
 for diverse yeires, as is at length exprest in the Reasoun of Reductioun immediatlie abovwrittin, 
 lyhelled aganst tlie said pretendit Patent, — Quliilk alledgiance, if it had bene proponed in 
 prima instantid, wald have bene sufficient to have stayed the pronounceing of the forsaid 
 Decreet of Reductioun pronounced in anno 1610; and now, being proponed and 
 verified in the second instance, the same is sufficient to reduce and annull the forsaid 
 pretendit Decreet Reductive ; 
 
 — And thairfor the said pretendit Decreet Reductive ought and should be reduced, retreited, 
 rescinded, cassed, annulled, and declaired to iiave bene from the begining, to be now, and in all 
 tyme comeing, null and unlawfull, with all that lias followed or may follow thairupone, and the 
 persewars reponed and restoired, as is before rehearsed : — 
 
 [hi. The Ratification 1637:] — Thridlie, the forsaids [sic] pbetendit Chabtor of Ratificatioune, 
 allegit made and graunted be his Majestie, dated the 21 op July 1637 yeeis — quhairby it is allegit 
 that his Majestie hes ratified the forsaid pretendit Patent of the forsaid honor, title, and dignitie of ane 
 Earle, and that his liienes hes decerned and declared that the forsaid pretendit Lettres Patentis, 
 with his Majestie's forsaid pretendit Ratificatioun theirof, are and shall be a valide, perfyte, and 
 sufficient right and title to the said William now Earle of Glencarne, his aires and successoris, to 
 brook and joyse the honor, title, and dignity of ane Earle thereby — aucht and should be reduced, 
 retreitted, rescinded, and annulled, and declaired to be voyde and inefFectuall in all tyme comeing, 
 in so far as be the samyne the said William Earle of Glencarne, and his aires or successoris, can or 
 may pretend right and title to the right of precedencie of rank and voting as Earle before the said 
 Alexander now Earle of Eglintoun, and his aires or successors, 
 
 [1] Becaus the said pretendit Ratificatioun was privilie purchast (obtained) be the said 
 William Erie of Glencarne, and not done in Parlement ; quhairas the said pretendit 
 Patent, thereby ratified, having bene annulled be King James the 4th in plaine Parle- 
 ment, could not have bene revived to have bene of strength and force from its true date 
 bot in plaine Parlement, — 
 
 [2] 2°, Be the said pretendit Ratificatioun, the said persewar and his successoris cannot in 
 law be prejudged thairby, it being a privat purchassed wryte, graunted without hearing 
 of the said Earle of Eglintoun ; quhairas, if hee had beine heard, hee would have maid 
 cleir the invaliditie of the said pretendit Patent, be remembering his Majestie of the 
 forsaid Act of Parlement, made be the said umquhill King James the 4lh, revoking 
 the same,— 
 
 [3] 3°, The said pretendit Ratificatioune is obreptitiouslie and surreptitiouslie purchast, 
 expressing ane erroneous informatioun made to his Majestie, that the said umquhill 
 Alexander first pretendit Earle of Glencarne and his successoris continowallie sin the 
 date of the said pretendit Patent had brooked the said title, honour, and dignitie of 
 Earle of Glencarne be vertue of the said pretendit Patent :— Quhairas, be the con- 
 trarie, the said pretendit Patent was revocked in anno 1488, and that [sic] umquhill 
 Cuthbert Lord Kilmawris for many yeires thairafter brooked not the said dignity as 
 Earle, bot sat in Parlement and received infeftment as Lord Kilmawris, thairby 
 acknowledgeing the revocatioun and annulling of the said pretendit Patent, — as is 
 contained in the forsaid first Reasoun of Reductioun abovwrittin, lybelled aganst the 
 said pretendit Patent. Neither was thair anie true informatioun givin to the King's 
 Majestie, at the granting of the said pretendit Ratificatioun, that the said pretendit 
 [Patent] was so revoked be King .James the 4th, and was so acquiesced unto and 
 acknowledged be the said umquhill Cuthbert Lord Kilmawris,— as is exprest at lenth 
 in the forsaid first Reasoun of Reductioun, — 
 
 [4] And whereas, be the said pretendit Ratificatioun, it is declared that the said pretendit 
 
474 APPENDIX. 
 
 Patent should be a perfect and valide right and title for the said William Earle of 
 Glencarne, his aires and successoris, to brook in all time comeing the honor and 
 dignitie of Earle according to the validitie of the saids Lettres Patents, the samyn 
 cannot prejudge the said Alexander Earle of Eglintoun, persewar, hot notwithstanding 
 thairof the said persewar may alleadge and propone the nullitie of the said pretendit 
 Patent, and that the samyn was revolved ia anno 1488, as is abovementionat, for 
 defending his right of precedencie and prioritie before the said Earle of Glencarne, 
 conforme to the Decreet of Ranking in anno 1606,^ — 
 
 [5] Lykas, where the said pretendit Patent in the said pretendit Eatificatioun is declared to 
 be a good and valide right and title for brooking the said dignitie, it is ' secundum 
 ' validitatem dictarum litterarum patentium,'— bot true it is that the said pretendit 
 Patent had no validitie, becaus they were revoked, as said is, and declared to be of no 
 force nor effect ; 
 
 — And thairfor the said pretendit Eatificatioun aught to be reduced, retreitted, rescinded, cassed, 
 annulled, decerned, and declaired to have bene from the beginning, to be now, and in all tyme 
 comeing, null, and of nane availl, force, strength, nor effect, with all that hes followed or may 
 follow thairupon, in so far as be the samyne the said William Earle of Glencarne, and his aires and 
 successoris, can or may pretend right and title to the right and precedencie of rank and voting as 
 Earle before the said Alexander Earle of Eglintoun, and his said sonne, thair aires and successoris ; 
 And it ought to be found and declaired that the said Alexander Earle of Eglintoun, and his said 
 Sonne, thair aires and successoris, Earles of Eglintoun, hes had, presentlie hes, and shall have in all 
 tyme comeing, the precedencie and priority of place, rank, and voting, in all Parliamentis, Con- 
 ventions of Estate, Counsallis, privat and publict meetings, before the said William Earle of Glen- 
 carne and his sonne, and thair foirsaids, notwithstanding of the forsaid pretendit Eatificatioune : — 
 
 [iv. The Decreet 1648, — as reducing the Decreet 1617 and tlm Decreet of Banking 1606 :] — Fourthlie, 
 THE FORSAID PRETENDIT Decreit OP Rbductioun AND DECLARATOR, proTWunced he tJie Lords of 
 Counsall and Sessioun upon the nynteinth day of Januar, 1648 tekis, in favoris of the said 
 William Earle of Glencarne, and his said sonne, aganst the said Alexander Earle of Eglintoun, and 
 his said sonne, reduceing the forsaid Decreet of Banking of the nobilitie of this kingdome, anno 
 1606, in so far as be the samyn Decreet of Ranking the said William Earle of Glencarne, his 
 aires or successoris, Earles of Glencarne, is or may be postponed in rank, place, or dignitie, to the 
 said Alexander Earle of Eglinloune, or his successoris ; and finding and declareing that the said 
 William now Earle of Glencarne, his aires and successoris, Earles of Glencarne, presentlie then 
 had, ought, and should have in all tyme thairafter, the right of precedency and prioritie of place 
 and voting in all Parlements, Conventiones of Estats, Counsallis and other meetings, before the 
 said Alexander Earle of Eglintoun, and his successoris, notwithstanding of the said Decreet of 
 Ranking — aught and should be reduced, retreitted, rescinded, cassed, annulled, decerned, and 
 declared to have bene from the begining, to be now and in all tyme comeing, voyde, null, and 
 of nane availl, force, strength, nor effect, with all that hes followed or may follow thairupone, 
 
 [1] Becacs the Eeasoun lyhelled aganst the said Decreet of Ranking in the Summons quhairupon the 
 said pretendit Decreit of Reduotioun in anno 1 648 proceeded was that the Decreet of Rankin"- 
 was pronounced aganst the Earle of Glencarne his predicessor, anno 1606, for null 
 rfe/ence, hee never having bene laufullie cited to produce his evidents ; and that if hee 
 had bene cited, he would have compeired and produced his evidents and documents of 
 his dignitie as Earle ; and that thairfor the said William Earle of Glencarne ought to be 
 admitted to produce his evidents and wryts and documents for clearing of his dio-nitie 
 and right of precedencie before the said Alexander Earle of Eglintoun, that ware 
 not produced and used in the Decreet of Ranking, anno 1606, — 
 
 [2] Lykas in the said Reasoun it was lyheUed, that Alexander Lord Kilmawris, foir- 
 grandschiris foirgrandschir to the said William now Earle of Glencarne, be the said King 
 James the Thrid was creat Earle op Glencarne upon the 28 day op May, 1488 
 yeris, be a Patent of that date ; be vertue op quhilk Patent Cuthbert Earle of 
 Glencarne, oy to the said Alexander, first receiver thairof (the said Alexander having 
 bene killed in the field of Stirling some ten days after the date thairof, and Robert, 
 sonne to the said Alexander, having deceist shortlie after his father) is designed, be 
 Decreet of the Lords, the 12 of Marche 1504, Earle of Glencarne, and sat in Parlement 
 haldin be King James the Ath in anno 1505 as Earle, and was so acknowledged by him, 
 and he the Estats of Parlement ; in the quhilk Parlement Hugh Lord Montgomrie sat as 
 Lord,—Ukas thair was [ane] charter graunted of the lands and barony of Hiltoun he King 
 James the 4th, in anno 1507 ; Conform to the quhilk Patent, sederunts, and rights, the 
 said Earle of Glencarne and his predicessoris have acknowledged [«c] the said Title as Earle thir 
 sevin or eight score yeires ; Aganst the quhilk Reasoun it wes alleadged he the Earle of 
 Eglintoun, that hee be [sic'] aught to he assolyied from the Reasoun of Reductioun, becaus the 
 
APPENDIX. 475 
 
 SAMTNE WAS FOUNDED UPON THE SAID PKETENDIT PATENT GRAUNTED IN ANNO 1488, 
 
 AND TRUE IT IS THAT PRETENDIT PATENT WAS NO VALIDE GROUND, BECAUS THE 
 SAMYNE WAS REVOKED BE KiNG JamES THE 4tH, AND EsTATS OF PaRLEMENT, IN 
 
 October, 1488, and acknowledged to be revocat and acquiesced unto be 
 UMQUHiLL Cuthbert Lord Kilmawris, tJie Earle of Glencarn's predicessor, as is at large 
 mentioned in the first Eeasodn op Reductioun above written, lybelled aganst 
 THE SAID PRETENDIT PATENT, and is Contained in the Minutis of Froces quhairupon the 
 said pretendit Decreet of Reductioun proceeded, — sua that the said pretendit Patent could he no 
 valide evident or document of dignitie quhairupon to reduce the Deoreit of Banking in anno 
 1606 : —Notwithstanding of quhilk relivant alledgeance the forsaid Reasoun 
 OP Reductioune was Sustained and the pretendit Patent found a Good and 
 A Valide Evident, quhilk in justice could not have heen done : — And thairfor the said 
 pretendit Decreit ought and should be reduced, retreated, rescinded, cassed, annulled, 
 decerned, and declaired to have bene from the begining, to be now and in all tyme 
 comeing, voyde, null, and of nane availl, force, strength, nor effect, with all that hes 
 followed or may follow thairupone ; and, notwithstanding thairof, it ouglit to be found 
 and declaired that the said Alexander Earle of Eglintoune, and his said sonne, and 
 thair aires and successoris, Earles of Eglintoun, hes, and shall have in all tyme comeing, 
 the right of precedencie and priority in rank, and place, and voting in Parlements, 
 Counsalls, Conventiounes of Estats, privat and publict meetings, before the said William 
 Earle of Glencarne, and his said sonne, and thair forsaids, Earles of Glencarne, — 
 
 [3] And, whereas the said pretendit Decreet of Reductioun in Januar 1648 reduces all wryts, 
 evidents, chartoris, patents, sederunts, wryts, or evidents graunted to the said Alexander 
 Earle of Eglintoun, or his predicessoris, quhairby he might claime right to the forsaid 
 priority and precedencie before the said Earle of Glencarne, the samyn Decreit in that 
 part thairof ought to be reduced, becaus thair wes no reason lyMled aganst any chartoris, 
 patentis, sederunts, rights, wryts, or evidents graunted to the Earle of Eglintoun or his pre- 
 dicessoris of the title and dignitie of Earle, but allenarlie the forsaid Reason op 
 Reductioun lybellit aganes the said Decreet of Ranking quhilk was founded upon the 
 said pretendit Patent, — nather in all the disputis was thair anie alleadgeance proponed 
 for the Earle of Eglintoun, hot allenarlie aganst the said Reason op Reductioun 
 AS IT was founded UPON THE SAID PRETENDIT PATENT ; hut, he the contrurie, Mr. 
 Thomas Nicolsoun, procurator for the Earle of Eglintoun, the tyme of the dispute, viz. upon 
 the eight and ellevint dayes of Januar 1648, did declare that he disputed only the 
 NuLLiTiE OF THE Patent, and craved that answer might he given thairto, as also desyred 
 that the decisioun of the bussines might be remitted to the Parliament, — as is clear by 
 the Minutis and disputis the day forsaid ; and further, the said Mr. Thomas Nicolsoun, 
 procurator for the persewar, did, upon the ellevint [sic — lege 19tli] day of Januar, 
 quhilk is the date of the Decreet, crave up the wryts then produced be him, and 
 declare hee wald be absent (quhilk desyre is just, and is usuallie graunted in the lyk 
 caices, and the interloquutoris in that cais onlie to be extracted to the other pairtie), 
 notwithstanding quhairof it is cleir by the Minuts of Proces, that the Lordis refuised 
 to suffer the Earle of Eglintoun' s procurators to tak up the wrytis and pas fra tliair com- 
 peirance ; albeit that Reductioun and Declarator had no priviledge above others of that 
 nature quhair the forsaid desyre has beene usuallie graunted, — sua that, thair be [sic, — 
 lege being] no other reasoun lybelled aganst any other wrytis graunted to the Erie of 
 Eglintoun, the samyn wrytis could not have been reduced, — ■ 
 
 [4] And where the said pretendit Decreet of Reductioun bears that both the parties' pro- 
 curators were heard to dispute at length against the reasons of reductioun, in \sic'\ 
 instructiounes and probatiounes thairof in fortificatioun of the same, and for and aganst 
 the wryts produced hinc inde by ather parties, tlie contrarie appeares by the Minutis of 
 Proces, quhair no Reason was dispute bot onlie the first Reasoun founded upon 
 the said pretendit Patent ; and where there was not any alleadgeance proponed, nor 
 any dispute made aganst any of the wryts produced, bot allanerlie aganst the 
 Patent ; 
 
 And therefor the said pretendit Decreet aught to be reduced, retreated, rescinded, cassed, annulled, 
 
 decerned, and declared to have bene from the begining, to be now, and in all tyme comeing, 
 voyd, null, and of none availl, force, strength, nor effect, with all that hes followed or may follow 
 thairupone : — 
 
 [v. The Decreet 1648, — as finding and declaring that Glencairn shall have precedency before Eglinton:] — 
 Fyftlie, the said pretendit Decreit of Reductioun and Declarator, in anno 1648, in so far as in the 
 same it is found and declaired that "William now Earle of Glencarne, his aires and successoris, 
 Earles of Glencarne, hes, and shall have in all tyme comeing, the right of precedencie and priority 
 
 3 P 
 
476 APPENDIX. 
 
 in rank, and place, and voting in all Parlements, Conventiounes of Estate, Counsallis, and other 
 privat and publict meetings, before the said Alexander Earle of Eglintoun, and his said sonne, 
 and thair foirsaids, Earles of Eglintoun, ought to be reduced, retreitted, rescinded, cassed, annulled, 
 decerned, and declaired to have bene from the beginning, to be now and in all tyme comeing, 
 voyde, null, and of nane availl, force, strength, nor effect, with all that hes followed or may follow 
 thairupoun ; And it ought to be found and declaired that the said Alexander Earle of Eglintoune, 
 and his said sonne, and thair foirsaids, Earles of Eglintoun, hes, and shall have in alltyrae comeing, 
 the right of precedencie and prioritie in rank, and place, and voting, in all Parlements, counsalls, 
 conventiounes of estatis, and other privat and publict meetings, before the said William Earle of 
 Glencarne and his said sonne, and thair forsaids, notwithstanding of the forsaid pretendit Decreit 
 of Eeductioune and Declarator w anno 1648, — and that notwithstanding of any wrytis produced 
 thairin be the said William Earle of Glencarne, 
 
 Becaus be the Decreet of Ranking in anno 1606 it is praoyded, that any pairtie grieved thairhy 
 might crave redres of thair greivance be productkmn of more auncient and authentik 
 EViDENTis of thair dignitie then wes produced be other Noblemen to quhom they were post- 
 poned in dignitie be the said Decreet ; bot true it is that in the vryts and evidents produced 
 be the said William Earle of Glencarne, in the forsaid pretendit Decreet of Reductioun and 
 Declarator, in anno 1648, thair was no evidentis produced be the said Earle of Glencarne 
 more old and more authentik then the writs produced for umquhill Hugh Earle of Eglintoun, 
 in the forsaid Decreet of Ranking, anno 1606 ; lykas, be inspectioun and consideratioun of 
 the forsaids evidentis produced hinc inde for the saidis pairties, it is evident that thair 
 are more auncient and authentik evidents produced for the Earle of Eglintoun then 
 wer produced for the Earle of Glencarne : — Lykas, for clearing thairof, the said 
 Alexander Earle of Eglintoun, pei-suar, represents that the Earle of Glencarne be no 
 wryt produced be him in the Decreet 1648 can crave the right of precedencie, but, 
 notwithstanding of any wryte produced be him, the Earle of Eglintoun ought to have 
 the right of precedencie declaired in his favoris ; becaus, whereas thair was produced for 
 the Earle of Glencarne in the Decreet, anno 1648, 
 
 [i] Ffirst, ane Act of the Lords ofSessioun in March 1504, designing Cuthbert ' Earle 
 * of Glencairne ;' 
 
 [ii] 2°. A Rolment of Parlement in anno 1505, bearing Glencarne to sit inter Comites, 
 Lord Montgomrie amongst the Lords ; 
 
 [iii] 3°. A Sederunt of the Lords of Sessioun in June 1505, quhair Glencarne sat 
 as Earle and Hugh Lord Montgomry as Lord ; 
 
 [iv] 4°. A Sederunt in 1508, quhair ' sederunt Comes de Argyle et Dominus de 
 ' Montgomrie,' — 
 
 The Earle of Eglintoun, persuar, oppons to these Sederunts, ffirst, 
 
 Ane Sederunt anno 1503, quhair Eglintoun's predicessor sat as Earle,* — 
 
 — And the persewar is tyed be the Decreet 1606 to produce anterior rights, and thairfor the 
 Sederunts ather in Parlement or Sessioun cannot be trusted in prejudice of the Earle 
 of Eglintoun, who has bruiked his anterioritie now thir 140 yeris, as appears be the 
 Sederunts produced be him in anno 1524, 1558, 1584, quhar both Eglintoun and 
 Glencarne are sitting together Earles, and Eglintoun is still first ranked, — 
 
 [i] 2°,| In these Sederunts ather the error has beene in the wryting ' Lord 
 ' Montgomrie' for the ' Earle of Montgomrie,' he having Earle 
 
 in anno 1503, or els his sonne hes bene Commissioner for his father, or 
 some other nobleman ; ffor the Earle of Argyle his sonne is designed Lord 
 Lome, and Mar his sonne designed Lord Erskin,- — ■ 
 
 [ii] 3°, The Rolment in Parlement, 1503, ought to have more weight, being a 
 printed extant Parlement, then the Rolment 1505, it not being printed — ^ 
 no, not in the Blak Acts, — 
 
 [iii] 4°, That samyn moneth, in that samene yeir that hee sat amongst the 
 Lords ofSessioun as Earle, hee is called upon, the 13, 15, and 25 dayes of 
 June 1505, before the Justice Aires as Cuthbert Lord Kilmawris, quhilk 
 is both before and after his sitting in Sessioun, the 14 of June, 1505 
 
 [iv] And, albeit it was allegit in the Minutis of Proces of the forsaid Decreet, in 
 anno 1648, for the Earle of Glencarne aganst the forsaid Sederunt in 
 Parlement 1503, that the Rolment in Parlement 1503 ought to have no 
 faith, becaus in the efternoone the Earle of Montgomrie is desio-ned ' Lord 
 
 * The Sederunt 25th March 1503, on which Eglinton's whole plea rested. f Sic, and afterwards. 
 
APPENDIX. 477 
 
 ' Montgomrie,' and that he is never designed ' Earle of Montgomrie ' 
 therafter ; the Earle of Eglintoun his procurators in the foirsaid Decreet, anno 
 
 1648, HAVING DISPUTE AGANST NOTHING BUT AGANST THE PRETENDIT 
 
 Patent, does now alledge, in fortificatioun of the said Sederunt, anno 
 1503, 
 
 [a] That the samyn was sustained be the Lords op Secueit 
 
 COUNSALL IN the DeCREET ANNO 1606, 
 
 [b] And that the designeing of him Lord is not privative to his dignity 
 
 of Earle, hee having bene designed the same day as Earle, — ■ 
 lykas it hes bene of old, and is now as yet usual), to speak of 
 Earles under the designatioun of Lords, 
 
 [c] As is clear lykas be ane extract of ane Act of a Justice Court 
 
 haldin at Galloway 1567, [where] Hugh Earle Montgomrie, 
 heretabill baillie of the regality of Kilwyning, is corapeiring 
 before the Justice, and protesting for his priviledge of regality ; 
 
 — so that PROMiscuousLiE hee has bene designed Earle of Eglintoun and Earle 
 of Montgomrie, — quhilk promiscuous designatioun should not prejudge the 
 Earle of Eglintoun of his title of Earle, being designed Earle in the 
 Sederunt in anno 1503, — 
 
 [v] As to the forsaids Sederunts produced in the said Decreet 1648 be Glencarne 
 aganst the Earle of Eglintoun, thay cannot be respected as of force aganst 
 THE Sederunt anno 1503, becaus the Earle of Eglintoun hes produced 
 and showne that, in anno 1505, Cuthbert Lord Kilmawris is six tymes 
 designed Cuthbert Lord Kilmawris ; 
 
 And thabfor, 
 
 [i] To all the Sederunts the Earle of Eglintoun oppons 
 
 [a] His Sederunt anno 1503, — 
 
 [b] And his continowall possessioun of the prioritie, — 
 
 [c] And burning of his evidents ; 
 
 [ii] And as to the Decreet of the Lords of Sessioun anno 1504, quhilk relatis 
 only to ane Act of the Earle of Glencarne his owin Court, the Earle of 
 Eglintoun oppons 
 
 [a] The Acts above writtin of the Justice Courtis, after the forsaid 
 Decreet of Sessioun, quhairin Glencarn's predicessor is designed 
 Lord Kilmawris, — lykas the designatioun of the Lordis of Sessioune 
 is only relative to ane Act of his owine Court, quhilk ought to 
 have no weight ; 
 
 [iii] And as to the infeftmentis, the 7 of Februar 1507, and infeftmentis in the year 
 thairafter, produced be the said Earle of Glencarne in the said Decreit, 
 the persewar oppons 
 
 [a] His Sederunts [sic], 1503 years, — 
 
 [b] His four Sederunts in Counsall and Sessioun in anno 1506, 
 
 designeing the Earle of Eglintoun to be Earle, — 
 
 [c]. 3°, Oppons the precept of Clare Constat, the 10th of May 1507, 
 graunted be Hugh Earle of Eglintoun to the Laird of Dunlope, of 
 the landis of Craig, quhilks lands ane of the cadents of the Hous 
 of Dunlope hes as yet ; and ane Indentor, of the 20 of Januar 
 1507, betuix Kobert Frances of the Stane and Hugh Earle of 
 Eglintoun, quhair the Earle's sonne, William Montgomrie, gets 
 the lands of Stane with Elizabeth Francis, daughter to the said 
 Eobert; with a Confirmatioun under the Great Seall in anno 1509, 
 confirming anotlier Charter graunted be the said Eobert Frances 
 to the said William Montgomry and Elizabeth Frances of the 
 lands of Stane, and confirming another Charter graunted be the 
 Earle of Eglintoun of ane annual rent of four chalder victuall 
 out of the saids lands of Stane, conforme to the said indentor, — 
 in the quhilk indentor Hugh Earle of Eglintoun is designed throw 
 all the partis of it Earle continowallie ; And also oppons ane 
 Instrument of Eequisitioun, of the ellevint of November, 1507, 
 quhair Johnne Gastoun produces lettres of actornay out of the 
 
 3 P 2 
 
478 APPENDIX. 
 
 Chancellarie, of the 2d of November, 1507, constituteing him 
 actornay for Hugh Earle of Eglintoune ; 
 
 — all quhilkis evidentis are anterior in date to the Earle of Glencarn's first 
 Charter as Earle, quhilk is dated the 7 of Febraar'1507, and all quhilkis 
 proves that the Earle of Eglintoun was Earle before the Earle of Glen- 
 carne, and ought to be sustayned as authentik evidentis in favoris of the 
 Earle of Eglintoun, whose evidentis were burnt be the Earle of Glencarn's 
 predicessoris : — 
 
 Lykas, ever since, the said Earle of Eglintoun's predicessoris hes bruiked the pre- 
 cedencie, as witness 
 
 [i] Three Sederiintis, one in anno 1524, the second in anno 1558, and the thrid 
 in anno 1584, where in Parlement Eglintoun is sitting amongst the Earles 
 before Glencarne, Glencarne being present ; 
 [ii] Lykas also, in a Signator under the Great Seall in March, 1513, givin be 
 King James the 4th to O'Donnell, Prince of Cowall, the Earle of Eglintoun 
 is designed amongst the witnesses before the Earle of Glencarne ; 
 
 [iii] And in anno 1537, in a Contract betuix the Earle of Eglintoun his sonne and 
 friends, and the Earle of Glencarne his sonne and friends, the Earle of 
 Eglintoun his sonne and friends are first insert and subscryving [sic] on 
 the right hand, and the Master of Glencarne and his friends subscryves on 
 the left hand, — 
 
 And sua it is cleir that the Earle of Eglintoun does produce more auncient and authentik 
 evidentis to instruct his right to the precedende as Earle then was produced be the Earle of 
 Glencarne in the forsaid Decreet, 1648: — And full respect ought to be had to the Earle 
 of Eglintoun's productioun, consideratioune being had that the Earle of Glencarne his 
 predicessor, William Master of Glencarne, in the yeir of God 1524, or thairaboute, 
 burnt the Earle of Eglintoune his house of Eglintoun and his haill wryts and evidentis, 
 as is publiclie and authentiklie testified be King James the 5th, in anno 1528, be his 
 Charter under the Great Seall, quhairby King James the Fyft declares that it was 
 notourlie knowne to him and his Counsall that the Earle of Eglintoune's haill wryts 
 were burnt at that tyme, — and thairfor, seing the Earle of Eglintoun wants his own 
 proper evidentis quhairby to instruct his antiquity of Earle, and wants thame be the 
 cruel burning done be the House of Glencarne, it is consonant to justice and equitie 
 that the wryts now produced be the Earle of Eglintoun be sustained and estimat as 
 sufficient evidentis of the antiquitie of his dignity as Earle, becaus in anno 1606 lesse 
 authentik evidentis are sustained in favoris of noblemen, to wit, a Seasing produced in 
 favoris of the Earle of Cassillis ; lykas in thir present troubles the Estatis of Parle- 
 ment are pleased in the behalff of pairties whose wryts are burnt, to sustayne extracts of 
 Saisings for making up a perfyte security of landis,— multo magis aught the evidentis 
 produced be the Earle of Eglintoun, which of thair owne nature are valide and authentik 
 evidentis, be sustained as sufficient evidentis of the Earle his antiquitie aganst the 
 Earle of Glencarne, whose predicessor, unto quliom he is air, burnt the Earle of 
 Eglintoun his evidentis, and whose predicessoris cryme ought neither to be 
 to the Earle of Eglintoun, nor lucrative to the Earle of Glencarne ; neither could the 
 Earle of Glencarne, if hee were compeirand, alleadge that the Earle of Eglintoun does 
 not produce authentik evidents as Earle under the Great Seall, quia per eum stat quo 
 minus the Earle of Eglintoun does not produce thame, in so far as per per [sic] predi- 
 cessorem ejus, cujus persona, vice, et jure fungitur, stat that the Earle of Eglintoun does not 
 produce his old auncient wryts, and be the law si per aliquem stat quo minus aliquodnon 
 jiat vel aliqua conditio non impliatur, Ulud non factum hahetur pro facto, et ilia conditio [mo»] 
 habetur pro comp/letd ; 
 
 — And thairfoir the said pretendit Decreit ought and should be reduced, retreitted, rescinded, cassed, 
 anmdled, decerned, and declaired to have bene from tlie begining, to be now and in all tyme comeing, voyd, 
 null, and ofnane availl, force, strength, nor effect in judgement nor outwith, with all that hes followed or 
 may follow thairupone ; And it ought and should he found and declaired that the said Alexander Earle 
 of Eglintoun, and his said sonne, and thair forsaidis, Earles of Eglintoun, presentlie hes, and shall have 
 in all tyme comeing, the right of the precedencie and priority in rank and place and voyceing in all Parlementis, 
 Counsallis, Conventiounes of Estatis, privat and publict meetings, before the said William Earle of Glencarne, 
 and his said sonne, and their forsaids ; And therefor all and sundrie the saids pretendit Decreitis of 
 Reduciioun and Declarator, and als the forsaids pretendit Patentis, Ratiflcatiounes, and others wryts and evidentis 
 particularlie and generallie abovementionat, called for to be produced and mentioned in the said 
 last Decreet of Eeductioun and Declarator given in in [sic] Januar, 1 648, produced or alleadged for 
 
APPENDIX. 479 
 
 instructing of the said William now Earle of Glencarne his interest, or for proving of his alledgit 
 Reason of Reductioun, or for instructing of his allegit right of precedencie and prioritie of place, 
 rank, and voting in Parlements, Counsalls, Conventiounesof Estats, privat and publict meetings, as 
 Earle before the said persewar and his successoris, Earles of Eglintoun, auoht and should be reduced, 
 retreated, rescinded, cassed, annulled, decerned, and declared to have bene from the begining, to be now and in 
 all time comeing, voyde, null, and ofnane availl, force, strength, nor effect, with all that hes followed or 
 may follow thairiipone, in so far as be the saids pretendit Decreetis, Lettres Patentis, Sederunts, 
 Ratificatiounes, Retouris, and others wryts particularlie and generallie abovewrittin, called for, or 
 any of thame, the said Alexander now Earle of Eglintoun, persewar, his aires and successoris, Earles 
 of Eglintoun, is or may be postponed in rank, place, and dignitie to the said William Earle of 
 Glencarne, defender, and his successoris ; and tlie saids persewars repmed and restoired in integrum 
 aganst the said last pretendit Decreit of Reductioun and Declarator, and all former Decreitis obtained at 
 tlie instance of tJie saids defenders or thair predicessoris aganst tlie Earl of Eglintoune and his predicessoris, 
 siclyk as if the samen had never beine given nor pronounced ; And lykwise it ought and should be 
 found and declaired that the said Alexander Earle of Eglintoun, his said Sonne, their aires and successoris, 
 Earles of Eglintoun, presentlie hes, and cntght, and should, and sJiall have in all tyme comeing, the right of 
 precedencie and prioritie of place, rank, and voting in all Parlements, Conventiounes of Estate, CounsaUis,and 
 other privat and publict meetings, before the said William now Earle of Glencarne, his said sonne, thair aires 
 and successoris, succeeding to thame in the said Earldoms, title, and dignitie of ane Earle, notwithstanding of 
 thefwsaid pretendit Decreet of Eeductioun and Declarator last givin be the saids Lords of Courisall and 
 Sessioun, in Januar 1648, or of any other pretendit Decreet, Patent, Ratiflcatioun, or other wryts what- 
 soever now called for or produced be the saids defenders in the said last pretendit Decreet of Reductioun 
 and Declarator, or of anie other right or title quhatsoever of the honour and dignitie of Earle 
 graunted to the saids defenders or anie of their predicessoris be his Majestic, or anie of his Hienes 
 progenitors, of whatsumevir daitis, tennor, or contents they be of; And last, the saids pretendit 
 Chartoris, Ratificatiounes, Patents, Services, Retours, Decreitis of Reductioun and Declarator, 
 grounds, and warrantis thairof, first and second summondsses wherupon the same proceided, execu- 
 tiounes and indorsatiounes theirof, and others wryts abovwrittin, called for to be produced as false 
 andfayned in thameselffis, lykas the said persewaris, with concurse of his Majestie's said Advocat for 
 his Hienes' interest, offers them to improve the samen per testes insertos et omni alio modo quo dejure, as 
 weel directlie as indirectlie, asfals andfayned, counterfoote and devysed, at the least produced and used 
 be the saids defenders : — 
 
 And anent severall charges and citatiounes used and execute upon the forsaid Summondis of Reductioun 
 and Improbatioun, and upon the second Summondis of continovvatioun direct be the Parlement thairupone, aganst 
 the said William Earle of Glencarne ; Lord Kilmawris his sonne ; Johnne Earle of Crawfurd, principal! 
 
 Thesaurer; Schir James Carmichaell, Thesaurer Depute; Schir Archibald Johnstoun ofWarestoun, Knight, his 
 Majestie's Advocat ; Schir Alexander Gibsoun of Durie, Knight, Clerk of Registre ; Schir William Scott of Clerk- 
 ingtoun. Knight ; Mr. William Hay, and Sir Johnne Gibsoun of Pentlands, Knight, his deputis ; Schir Johnne Scot 
 of Scottstarvet, Knight, director of his Majesties Chancellarie ; and the tutoris and curatoris of the said William 
 Lord Kilmawris, if he ony hes, for thair interests; and all other having or pretending to have interest in the 
 said matter, to have compeired before the Parlement at dyverse days bygane, to have produced and exhibite the 
 forsaid Patent, Decreitis, and remanent wryts above mentionat called for, and to have heard and sene Decreit and 
 Declarator givin and pronounced thair-aganst in maner and to the effect above mentionat, — as at mair length 
 is contained in the said Summondis and executiounes theirof respective ; 
 
 Quhilk Summondis and pairties above named being three severall tymes called in face of Parlement, upon 
 the 25 day of Januar last, 1649, compeired Masteris Thomas Nicolsone and William Maxwell, Advocats, 
 procurators for the Earle of Eglintoune, persewer, with Schir Archibald Johnstoun of Waristoun, Knight, his 
 Majestie's Advocat for his Hienes' interest ; and als compeired Robert Hepburne, Advocat, as procurator for the 
 Earle of Glencarne and remanent defenders, and desyred to sie the proces, with the instructioun of the persuaris 
 interest, quhilk accordingly was graunted : — Thairafter, the forsaid proces being redelyvered, the samene and 
 pairties above named wer, upon the day of , of new againe publictlie called three 
 
 severall tyraes in open and plaine Parlement, and, the persuar's procurators being, with the King's Advocat, 
 present, as aforsaid, none compeired for the defenders ; 
 
 Quhairupon the Parlement, having tane the matter to their consideratioun, they then appointed a Com- 
 mittee, consisting of three of everie Estate, to consider the said Summonds, with the haill wrytts and evidents 
 produced and used be the persuar and his procuratoris, ather for instructing his interest, satisfying the produc- 
 tioun, or verifying the reasons of reductioun, «ith the relivancy of the said Summondis and reasons of reductioun 
 above mentionat ; 
 
 Quhilk Committee having, in obedience of the power and warrant given to thame be the Parlement, 
 convened upon the 29 day of Januar last by-past, they then caused publictlie call the Earle of Glencarne and 
 remanent defenders to have compeired and answered to the forsaid Summondis and persute :~Bot nane compeired 
 for the Earle of Glencarne, nor for no others of the defenders above named,— except onlie that the said Mr. 
 William Maxwell compeired for the said Sir Johnne Gibsoun, clerk to the forsaid proces at tlie Earle of 
 Glencarn's instance aganst the Earle of Eglintoun, quhairupon the Decreet in anno 1648, now quarrelled, pro- 
 
480 APPENDIX. 
 
 ceeded, and produced for him the samen proces with the haill Minutis contayning the dispute thairof, and thair- 
 upon asked instruments ; 
 
 Lykas the, said Mr. Thomas Nicolsone and Mr. William Maxwell, compeirand for the saids persuars, repeated 
 the wryts and evidents as followes : — 
 
 [1] Ffirst, thair is produced for instructing the persuaris interest, quhilk are in the blak buist 
 (box), tlie Decreet of the Commissioners for Banking the Nobilitie, dated the fyft day of 
 May 1606, quhairby Hugh Earle of Eglintoun is prseponed to James Earle of Glencarne, — 
 and that in regard of the Earle of Eglintoun his productioun, upon the 5th and 19th dayes of 
 Februar, 1606, before the saids Lords Commissioneris, [of] viz., ane Sedeuunt of Pakle- 
 
 MENT, UNBER THE ClERK EeGISTRE HIS HAND AND SUBSCRIPTIOUNE, BEARING THAT HUGH, 
 
 Earle of Montgomrie, sat in Parlement as ane Earle, haldin at Edinburgh, the 
 21 [sic] OP March, ISOSxeris: — 
 
 [2] Item, a Charter made be Patrick Wastoun and Walter Mitchell, airs portioners to Mr. Robert 
 Broune, to Hugh Earl of Eglintoun, of two tenements of land lying in the toune of Irwine, 
 dated the 8th of Apryle, 1508, — together with 
 
 [3] A Charter, under the Clerk of Registre his subscriptioun, made be James, King of Scottis, to 
 Hugh, Earle of Eglintoune, of the landis of Utermure, Little Kirkhead, and halff merk land 
 of Kirkindone, dated the 26 of June, 1509, — - 
 
 [4] Item, the Decreit of Reductioun obtained be this Earle of Eglintoun, upon the ellevint of Februar, 
 1617, aganst the said James, Earle of Glencarne, and William, Master of Glencarne, his 
 Sonne, reduceand the said Decreit Reductive of the said Decreit 1606, obtayned in anno 1610, 
 anent the place of precedencie, and reponand the Earle of Eglintoun to his place before 
 Glencarne, — 
 
 [5] Item, a Charter under the Great Seall, be the King's Majestic for himselif, and as tutor and 
 administrator to his sonne the Prince, to Hugh, Earle of Eglintoun, and his airs maill of his 
 own bodie, quhilkis failyeing, to this Earle of Eglintoun, thairin designed Schir Alexander 
 Seatoun, of , Knight, and his airs male, of the Earldom of Eglintoun, 
 
 dated 28 November, 1611 yeris ; — 
 
 [6] Item, a Charter under the Great Seall, to Alexander Montgomrie, Earle of Eglintoun, Lord 
 Montgomrie, and his airs maill and of tailzie, specifeit in his infeftment, of the Earldom of 
 Eglintoun, and of the lands thairof, and others thairin contained, dated 28 of Apryll, 
 1615,— 
 
 [7] Item, the Extract of ane Act of productioun of the two Chartoris underwritten, and of ane Sederunt 
 and note under the Clerk Register's hand, bearing that Hugh Earle of Montgomrie sat as ane 
 Earle in Parlement, haldin at Edinburgh the 21 [sic] of March, 1503 yeris ; quhilk wryts were 
 produced before the saids Commissioners, for instructing of the said Earle of Eglintoun his 
 ordor and precedencie, upon the fyft and nynteinth dayes of Februar, 1606 yeris, — under the 
 signe and subscriptioun of Sir Archibald Prymeiose ; 
 
 — And farder they, /or satisfying the productmun in respect of the defender's not compeirance, produced 
 
 [8] The Earle of Glencarn's Decreet, anno 1610, with his Decreet 1648,— 
 
 [9] Item, THE DOUBLE OF HIS Patent, May, 1488, and Confirmatioun tlieirof, in anno 1637, extract 
 in forme of instrument, under the subscriptioun of ihe said Schir Johne Gibsoun, clerk to the 
 forsaid proces, quhairin both the principall Patent and Coniirmatioun theirof were produced 
 be the Earle of Glencarne, and instrumentis taken thairupon be the Earle of Eo-lintoune's 
 procuratoris, — 
 
 [10] Item, umquhill James Earle of Glencarne's Retour as air be progres to uraquhill Alexander 
 Earle of Glencarne, to whom the Patent in May 1488 was graunted, — And [they] repeated 
 
 [11] The forsaid proces and Minutis produced, quhairupon the Decreet in anno 1648 proceeded; 
 together with 
 
 [12] Ane Act in anno 1504, 
 
 [13] Ane Sederunt, anno 1505, 
 
 [14] Ane Infeftment in anno 1507, with 
 
 [15] The remanent wryts mentionat in the Earle of Glencarn's Decreet, 1648, and produced be him 
 in the proces, — 
 
 And thairupon, and upon the forsaids wryts above specifeit, produced for the persewar, the saidis Masteris Thomas 
 Nicolsone and William Maxwell, procuratoris for the persewar, held the productioun satisfied in the reductioun 
 be productioun of the wryts abovwrittin produced be thame, and the productioun of the said Decreet, 1648: — 
 Quhilk Decreet they repeat for satisfying the production in the reduction for all the wryts now called for to be 
 produced, quhilkis are mentionat in that Decreet, 1648, and have bene thair produced for the Earle of Glencarne ; 
 
APPENDIX. 481 
 
 And declaired that they held the productioun of thair Summondis satisfied be the forsaids wryts produced and 
 repeated be thame, as said is, respective; And that they insisted upon the Reasons of Reductioun above 
 SPECIFEIT AGANST THE FORSAiD PATENT ANNO 1488, whereof the double, under forme of instrument, is now 
 produced, and aganst the Confirmatioun of the Patent 1637, the Decreet 1610, the Decreet 1648, the Act 1504, 
 the Sederunt 1505, and the Infeftment of the lands of Hiltoun, anno 1507, and aganst the remanent wryts called 
 for, quhairof the productioun is haldin satisfied as aforesaid, according as the samen Reasons of Bed tictioun above specif eit 
 are lybelkd and militats aganst the saids wryts; And tiiat they craved the certificatioun of the improbatioun of the 
 Summondis aganst the forsaid pretendit principal! Patent, quhairof the double is onlie produced, and aganes the 
 Act 1504, the Sederunt 1505, the Infeftment 1507, and aganst the haill remanent wryts, sederunts, and others 
 mentionat in the Earle of Glencarn's Decreet, in Januar 1648, produced be him in that proces, and now called 
 for in this reductioun and not produced, as is aforsaid ; And referred the forsaid Summondis, Reasoun of 
 Reductioun above specifeit, with the wryts produced and repeated in manner abovwritin, and remanent proces, to 
 the consideratioun of the said Committee, to be considered and advised be thame : — 
 
 Upon THIS, the Committee having met upon the day of Marche instant, tlie said Mr. Thomas Nicolsoun, 
 
 procurator fm- the Earle of Eglintoun, persewar, compeired before the Committee, and produced the extract of ane Ad, 
 and Becreit of Parlement, of the date the day of , givin be the Parlement, at the instance 
 
 of the Procuratoris for the Estate, aganst the Earle of Glencarne, after citatioun of him,^ — declairing his pretendit 
 ■piincipall Patent forsaid, ingrost in the Decreit, to be null, unlawfull, and of no force from the beginning, now and in all 
 tyme comeing, with all that hes followed or may follow thairupone, and that the Earle of Glencarne, or any other 
 loho should hdrefter mak use theirof, shall he incapable of the dignitie thairin contained, conform to the said Decreet 
 and Act givin thairanent. And thairupon the said Mr. Thomas Nicolsoun added and repeated the same Act and 
 Decreit to the remanent wryts forsaid, produced be him for proving of the First Reasoun of Reductioun above 
 specifeit aganst the forsaid pretendit Patent in anno 1488, and referred the samene, with the saids remanent wryts 
 and premisses, to be considered and advysed be the said Committee ; Who did accordinglie read, consider, and 
 advyse the samene conforme to the warrant of Parlement given to tiiame, and thairupon gave in thair opinion and 
 what they found anent the premisses to the Parlement, to be tane in consideratioun be thame that they might give 
 out thair Decreet and sentence in the said mater, as they should find just and reasonable : — 
 
 QuHiLKis Summondis of Reductioun and Improbatioune above specifeit, with the Reasons of Reduc- 
 tioune above writtin thairin contained, together with the double of the forsaid Patent, under form of instrument, 
 Decreitis in annis 1610 and 1648, Processes and Minutis quhairupon that Decreit 1648 proceeded, and haill remanent 
 other writs, acts, sederunts, and others respective before rehearsed, produced and repeated for the persewar, in manner 
 and to the effect above mentionat, with the report of the said Committee concerning the haill premisses, being red 
 in audience of the Parlement, and at length debated, considered, and advysed be the Estatis of Parlement; 
 and the said Estatis being thairanent weel and rypelie advysed. 
 
 They reduce, hetreit, rescind, cass, and annull 
 
 [i. The Patent 1488:] — The forsaid pretendit Patent of the 28 of May 1488, alleadged 
 MADE AND GRAUNTED BE UMQUHiLL KiNG James THE Thrid, qukairby it is allcgit that 
 umquhill Alexander Lord Kilmawris, foirgrandschiris foirgrandsciiir to the said William now 
 Earle of Glencarne, was creat Earle of Glencarne be the said King James the Thrid; And decernis 
 and declaires the samen pretendit Patent to have bene from the beginning, to be now and in 
 all tyme comeing, null, and of nane availl, force, strength, nor effect, with all that hes followed 
 or may follow thairupone, in so far as the said William Earle of Glencarne and his successoris 
 can pretend thairby any right to the precedencie and prioritie as Earle before the said Earle of 
 Eglintoun and his aires and successoris, — but (without') prejudice of the forsaid Decreit, givin at the 
 instance of the Procurators of Estate aganst the forsaid Patent, quhilk is to remaine in full force, 
 unprejudged heereby : — Becaus the said Estatis of Parlement (after that the said Earle of 
 Glencarne and remanent defenders wer diverse tymes laufullie summonded, oftymes called, and 
 not compeirand, as is aforesaid), haveing red and considered the First Reasoun op Reduc- 
 tioun ABOVE specifeit, USED AGANST THE SAID PATENT, with the writs and othcrs above 
 specifeit, quhairupon the Reasoun is founded, produced, and repeated, respective, be the persewar 
 for verifying theirof, together with the report of the said Committee concerning the relivancie 
 and probatioun of the samen, the said Estatis fand the first Reasoun of Reductioun abov- 
 ■WRiTTiN relevant and sufficientlie provin be the Revocatioun Acts of Parlement, double of 
 the Patent above m^entionat. Decreet and sentence of Parlemsnt at the instance of the Procuratoris of 
 Estate aganst Glencarne, declaireing the said Patent unlawfull, null, and voyde from the 
 begining and in tyme comeing, with the others writs forsaids, produced and repeated be the 
 saids persewaris procurators for that effect, — And thairfor, and in respect nans compeired to 
 alle^dge any reasonable and relivant caus in the contrarie heirof, they reduced and declaired 
 null the said Patent in manner above specifeit : — And als the saidis Estatis op Parlement 
 
 REDUCES, retreats, RESCINDS, AND ANNULLS 
 
 fii. The Decreet 1610 :] — The forsaid pretendit Decreet of Reductioun given he the Lordis 
 of Counsall and Sessioune at the instance of umquhill James, Earle of Glencarne, guidschir to 
 William now Earle of Glencarne, aganst the said umquhill Hugh Earle of Eglintoun, predicessor 
 
482 APPENDIX. 
 
 to Alexander now Earle of Eglintoun, of the 7 of July, 1610, qnhairby tlie saids Lords 
 reduced the Decreet and sentence givin be the Lords of Secreit Counsall upon the 
 day of , 1606, anent the Banking of the Nobilitie ; and that in so far as the said 
 
 umquhill James Earle of Glencarne was postponed in rank and place to the said umquhill 
 Hugh Earle of Eglintoune, and be the quhilk Decreet Reductive, 1610, the said umquhill 
 James Earle of Glencarne was restoired to the place and dignitie before the said umquhill 
 Hugh Earle of Eglintoun ; And declaires the samene Decreet Reductive, 1610, to be voyd and 
 null, with all that hes followed or may follow thairupone, conforme to the Second Reasoun of 
 Reductioune above mentionat, quhilk militatis aganst tiie said Decreet : — Becaus the Estatis 
 of Parlement, having red and considered the said Second Reason of Reductioun, with the wryts 
 and probatioun produced for instructing theirof, and report of the Committee thereanent, they 
 fand the samen Second Reasoun relivant and suflScientlie provin for reduceing the forsaid Decreet 
 Reductive 1610, seeing the cans of that Decreet was onlie the pketendit Patent above 
 MENTIONAT, quhilk is now reduced upoun the First Reasoun above specifeit, — And thairfor, and 
 in respect the Earle of Glencarne, being diverse tymes lawfullie summonded to the effect above 
 writtin, and oftymes called, did not compeir to alleadge any reasonable relivant caus in the 
 contrarie heirof, the said Estatis reduced, retreatted, and rescinded the forsaid Decreit Reductive, 
 in anno 1610, in manner forsaid : — And siclyk the saidis Estatis of Paelemekt reduces, 
 
 KETBEATS, RESCINDS, AND ANNULS 
 
 [ill. The Ratification 1637 :] — The forsaid pketendit Chartor of Confirmatioun or Rati- 
 FicATiouN, allegit graunted be the King's Majestie, of the 21 of July, 1637, quhairby it is 
 alleadged that his Hienes ratified the forsaid pretendit Patent, 1488; and declaires the same 
 Charter of Ratiiicatioune to be voyd and ineffectuall in all tyme comeing, in so far as the said 
 William Earle of Glencarne, his aires and successoris, can or may pretend right to the title of 
 precedencie in rank and voting as Earle before the said Earle of Eglintoun, and his aires and 
 successoris : — Becaus the Estatis of Parlement, after reading and considering of the Thrid 
 Reasoun of Reductioun abovwrittin, used and lybelled against the forsaid Charter of Ratifica- 
 tioune, with the writs and other probatioun quhairupon that Reasoun is founded, produced and 
 repeated respective be the persuaris procuratoris for proving theirof, together with the report 
 of the forsaid Committee thairanent, thay fand the forsaid Thrid Reasoun of Reductioune 
 above mentionat relivant and suflScientlie provin to infer reductioun on [_sic, — lege of] the fors.aid 
 pretendit Charter of Ratificatioun of the Patent above specifeit, as being a Ratificatioun of the 
 said pretendit Patent, quhilk is reduced and declaired null in maner above specifeit, — And 
 thairfor they reduced and declaired null the said Chartor of Ratificatioun thairof, as said is : — 
 And in lyk manner the saidis Estatis of Parliament reduces, retreatis, rescindis, 
 
 CASSES, AND ANNULLS 
 
 [iv. The Decreet 1648, as reducing the Decreet 1617 and Decreet of Ranking 1606, ^o.j — The for- 
 said pretendit Decreet op Reductioun and Declarator pronounced he the saids Lords of 
 Sessioun upon the 19th day of Januar, 1648, infavoris of the Earle of Glencarne and his sonne 
 aganst the Earle of Eglintoune and his sonne, with all that hes followed or may follow upon the 
 same Decreit : — Becaus the saidis Estatis of Parlement, having lykewise red and considered 
 the Fourt Reasoun of Reductioun lybelled and used againes the forsaid Decreit of the 19 of 
 Januar, 1648, together with the forsaids wryts and adminicles produced be the persewar's 
 procurators for verifying that Reasoun, with the haill disputis and Minutis of Proces quhair- 
 upon that Decreet, 1648, proceeded, witli the report of the said Committee anent the rele- 
 vancie and probatioun of the said Reason, they fand the samyn Fourt Reasoun of Reductioun 
 relivant and sufficientlie verified and provin be the forsaidis writs and adminicles produced and 
 repeated respective be the persuaris procuratoris for that effect, and that it is cleir and evident be 
 the Minutis produced, contayning the said dispute quhairupon that Decreet was givin, that the 
 Earle of Eglintoune's procuratoris, the tyme of the said dispute, viz. upon the eight and ellevint 
 dayes of Januar, 1648, did upon these dayes declare that they disputed onelie upon the 
 nullitie op the forsaid Patent, and craved that answer and interloquutor might be givin 
 thairto, — as also then desyred that the decisioun of the forsaid actioun might be remitted to the Parle- 
 ment, seing the samyne depended upon King James the 4th his Revocatioun and Acts of 
 Parlement following thairupone ; bot it is not found in the said Minutis of Proces that any 
 answer was given be the Lords to ather of thair desyres, — lykas it is evident be the saids Minutis 
 that the Earle of li^glintoun's procuratoris did upon the 19th day of Januar, quhilk is the date 
 of the Decreet, crave up the wryts produced for him and declaired thay wald be absent, and, 
 albeit this desyre be just and usuallie graunted in the lyk caices, it is clear be the Minutis of 
 Proces that the Lords, after hearing of the pairties thairanent, refuised to suflPer the Earle of 
 Eglintoune's procuratoris to tak up the wryts produced for thame and pas from thair compeirance 
 (as is and hes bene usuallie graunted in the lyk caisses, and the other pairtie in these caisses to 
 have the extract of the interloquutoris, but the Decreit to be given out in absence,) — by the 
 denying quhairof in this case, and refuising to give answer to the dispute anent the nullitie of the Patent 
 
APPENDIX. 483 
 
 per se, the earnest care of the Judge may appear in giving and pronounceing sentence infavoris of the 
 Earle of Glencarm aganst the Earle of Eglintoun : — In respect quhairof and that the Earle of 
 Glencarne, being lawfullie sumniondit, oftymes called, did not compeir to shew any reasonable 
 caus why Decreit should not be givin aganst him in manner forsaid, the said Estatis of 
 Pablement reduced, ketbeated, rescinded, cassed, and annulled the foksaid De- 
 creet of the 19th Januar, 1648 yeris, in manner abov vmttin, as matnelie proceeding and 
 DEPENDING UPON THE FORSAID PRETENDiT PATENT, quMlk is reduced and declaired nidi, as 
 said is : — 
 
 [v. The Decreet 1648 — as finding and declaring that Glencairn has precedency lefc/re Eglinton :]~As 
 lykewyse the saidis Estatis of Parlement ffinds and dbclaires that the said Alexander 
 Earle of Eglintoune, and his said sonne, and thair forsaids, Earles of Eglintoun, hes, and shall have in 
 alltymecomeing, the right of precedencie and prioritie in rank, place, and voting in all Parlements, 
 counsalls, conventiounes of estatis, privat and puhlict meetings, before the said William Earle of 
 Glencarne, and Jus said sonne, and thair foirsaids, notwithstanding of the forsaid pretendit Decreet 
 of Beductioun and Declarator in anno 1648, quhairby the said precedency and prioritie is found 
 to pertaine to the Earle of Glencarne before the Earle of Eglintoun, in maner specifeit in the 
 said Decreet, and notwithstanding of any wryts, sederunts, or other evidents mentionat in the 
 forsaid Decreet 1648, then produced be the Earle of Glencarne thairintill : — Becaus, the said 
 Estatis of Parlement having red and considered the Fyft Reasoun of Reductioun, quhilk 
 militatis onlie aganst the declaratorie part of the said Decreet, finding that the Earle of Glen- 
 carne hes the right of precedencie and prioritie before the said Earle of Eglintoune, together 
 with the haill Sederunts, Acts, precepts of Clare Constat, chartoris, contracts, and haill remanent 
 wryts and adminicles mentionat in the said Fyft Reason and quhairupon the same is founded, 
 produced and repeated respective be the persewaris procuratoris for instructing of that Reason, with 
 the report of the said Committee concerning the same, they f and the forsaid Fyft Meason relivant 
 and sufficientlie provin to infer the Decreet and Declarator of Precedencie in favoris of the Earle of 
 Eglintoun aganst the Earle of Glencarne, in manner as is before declaired, be productioun op the 
 Sederunt op Parlement in anno 1503, and remanent writs and evidents above specifeit, pro- 
 duced and repeated respective be the Earle of Eglintoun's procuratoris for instructing of the said 
 Fyft Reasoun, and that part and member theirof, that the Earle of Glencarne his predicessor, 
 viz. "William Master of Glencarne, m anno 1524, or thairabout, burnt the Earle of Eglintoune's 
 house of Eglintoun and haill writs and evidentis being thairintill, — quhilk cruell fact of burning 
 done be the Hous of Glencarne, and verified in maner mentionat in the Fyft Reasoun, the saidis 
 Estatis findis ought in all equitie, conscience, and reasone to corroborat the Sederunts, wryts, 
 and other evidentis abovementionat, produced be the Earle of Eglintoune for instructing of his 
 ryght of precedencie as Earle forsaid, especiallie aganst the Earle of Glencarne, be whose pre- 
 dicessor the said cruell fact of burning was committed, and quhairby the Earle of Eglintoune's 
 wryts [were] burnt and lost, being thairintill for the time : — 
 
 smu tj^at'rfoir, 
 
 And in respect the Earle of Glencarne, being lawfullie summondit, and oftymes called, did not 
 compeir to alledge and shew any' reasonable cause against this Decreet and Declarator now graunted be the 
 Parlement, the saidis Estatis of Parlement fand and declaired that the said Earle of Eglintoun 
 
 AND his POKSAIDIS HES, AND SHALL HAVE IN ALL TYME COMEING, THE RIGHT OP PRECEDENCIE AND PRIORITIE IN 
 
 BANK AND PLACE BEFORE THE Earle OF Glencarne AND HIS FORSAiDis, in maner bcforc declared : — 
 
 And lastlie the saidis Estatis of Parlement decernis the forsaid pretendit principall Patent, 
 quhairof the double, under forme of instrument, is produced in maner above specifeit, together with the forsaid pre- 
 tendit Chartoris, Ratificatiounes, Services, Retouris, and utheris writs and evidents particularlie and generallie above 
 rehearsed, called for be the said Summons, to mak no faith in judgement nor outwith in tyme combing, 
 in so far as the Earle of Glencarne, his aires or successoris, can or may pretetfd any right or title be the saids wryts 
 to the precedencie in rank and voting before the Earle of Eglintoun, his aires or successoris,— 
 
 But (without) prejudice of the forsaid Decreet pronounced at the instance of the Procuratoris of Estate, 
 quhilk is to remaine in full force unprejudged heereby : — 
 
 —Becaus the said William Earle of Glencarne, being diverse tymes laufullie summonded to have compeired before 
 the Parlement at diverse dayes bygane, and to have exhibited and produced the forsaid pretendit principall Patent 
 and haill remanent writts, evidentis, and others forsaids, generallie and particularlie called for be the Summondis, 
 with certificatioun, if hee failyied, the samyn pretendit principall Patent and others forsaids should be decerned to 
 mak no faith in judgement nor outwith in tyme comeing, and, being so summonded, and oftymes called, did not 
 COMPEIE and produce, nor yet shew any reasonable caus aganst the graunting of the forsaid certificatioun abov- 
 writtin,— in respect quhairof the saidis Estatis of Parlement decerned the said pretendit principall Patent, and 
 remanent writs forsaids, particularly and generally called for be the said Sunmiondis, and for the quhilk the certi- 
 ficatioun in the improbatioun is craved be thame, to mak no faith in judgement nor outwith in tyme comeing, in 
 maner forsaid." 
 
 3 Q 
 
484 APPENDIX. 
 
 (24) Act of Parliament, 9th February 1661, annulling the Parliament of 1649 — which passed the 
 two preceding Decreets, of the 2nd March and 9th March 1649, directed against the Olencairn 
 Patent 1488 and the Decreet 19th January 1648 — without besbrvation, as having 
 " USURPED " the lawful authority of the realm. From, the Acts of Parliament, last edition, 
 vol. vii., pp. 30, 31, 32.—' Minutes of Evidence,' p. 79.— (Referred to swpra, p. 1.) 
 
 (No. CXI.) 
 
 Pkeliminaby Observation. 
 
 For Lord Stair's testimony to the effect of this Act in reference to the Glencairn and Eglinton case, vide supra, p. xlviii. 
 
 "At Edinburgh, February ix, M.DG.LXI. 
 
 " ACT APPROVEING THE ENGADGMENT, 1648, AND ANNULLING THE PARLIAMENT AND 
 
 COMMITTEES, 1649. 
 "Forasmuch as in the yeer 1648 the Estates of Parliament of this kingdome, and his Majestie's good 
 subjects therin, from the sense of their duetie to Almightie God and the King's Majestic, did cheerfully undertake 
 and concur in ane engadgement for releiff of his late Majestic of glorious memorie from his imprisonment, and for 
 his restitution to the Royall Government of his kingdomes ; and the Estates of Parliament now conveencd by his 
 Majestie's speciall authority, takeing that engadgement to their consideration, doe find it to have been ane honour- 
 able, just, necessary, and seasonable discharge of that indispensible duetie wherunto this kingdome and the subjects 
 thereof are by the law of God, by the law of nature and nations, by the municipall lavves of the land, by their 
 alledgeanoe, and by all the strictest bonds of conscience and honour, obleidged to the most sacred persone and 
 royall authority of their King's Majestic ; and therfor our Soverane Lord, with advice and consent of his Estates 
 of Parliament, doth ratifie and approve that engadgement for his Majestie's relieff and restitution to his Royall 
 Government, and doth declare that, as it wes a most noble and pious testimony of the loyaltie of his Majestie's good 
 subjects of his antient kingdome, and of their affection and zeall to his Majestie's person and Government, so his 
 Majestie, for himselfF and his successors, doth assure that they will alwayes retean a gratefull resentment thereof, 
 and have appointed these presents to remaine upon record for the due honour of these persons who did engagde 
 therin, and of their posteritie for ever. 
 
 And, whereas the necessity and justice of this undertakeing, with the interest this kingdome had in his 
 Majestie's person by tlie honour of his royall birth, and by these many and singular acts of 'grace he had latelie 
 conferred upon it, might justly have claimed a readie concurrence of all the subjects ; yet ther wanted not some, 
 and even such whom, not long befor, his Majestie had obleidged by marks of his Royall favour, both of honour 
 and profFeit, who made it their work to disappoint and oppose the same ; and for that end haveing gathered some 
 mutinous commons and others, wlio, by a few seditious Ministers, had been preached into ane open Rebellion, 
 they in the moneth of September, 1648 yeers, without any lawfull authority (and not giveing the oath 
 mentioned in the Commission of Parliament, without which it wes expreslie provided they wer not to have accesse 
 to, nor place in the Committee), did usurpe to themselffs the name and power of a Committie of Estates ; 
 and haveing, by their oune edicts, declared all such persones as had given testimony of their duetie and loyaltie to 
 the King to be uncapable of being Members of Parliament, or of haveing voice in the elections to the Parliaments, 
 they then, without any lawfull authority, called a packt meiting op Parliament, to consist only op 
 persons op their oun stamp and faction, who accordingly met in January, 1649 teers, and assumeing 
 TO themselffs the soverane authority and government of the kingdome, intendit to establish and fix the 
 power in their oun persones for ever ; ffor which purpose, haveing publictly declared against that necessary and just 
 engadgement for his Majestie's releiff and restitution to his royall government ; haveing approven all the opposi- 
 tions and riseings in armes against the same, and by oath soleranlie engadged themselffs to a constant adherence 
 therunto ; haveing for their assistance called in the usurper Cromwell, and a parte of his army ; haveing by publict 
 engadgement given up the honour and safety of this antient kingdome to the English, and declared that his Majestie 
 should be obleidged to ratifie that wnworthie act befor any treaty wer with him for his releiff; haveing given order 
 to their commissioners to protest against any agreement betwixt his Majestie and his subjects in England in the 
 treatie at the ysle of Wight ; haveing\ so far as in them lay, weakned and dissolved the common alledgeanoe of the 
 subjects to the King's Majestie, by proclameing his right to the croun with base restrictions and limitations, and 
 pressing the subjects against their consciences to subscryve the same ; haveing disowned his Majestie's interest in 
 the quarrel betuixt them and the English, who had invaded this kingdome meerly to destroy his Majestie's interest 
 in it ; haveing taken the lives of some, and forced others of his Majestie's good subjects of best quality to flie to 
 forraign parts for their safety ; haveing fyned, confyned, imprissoned, and seized upon the lyvelyhood of many ; 
 haveing put disgracefull characters and incapacities upon all who witnessed any affection to his ^Majestie's Govern- 
 ment ; haveing injustly pronunced, and with crueltie executed, sentences of forfaltour against the lives and fortunes 
 of such as from conscience of their dueties did oppose them ; haveing in their publict meltings appointed that the 
 innocent wives and children of those who offered to vindicate his Majestie's authority should be seized on and 
 transported to forraign cuntries ; haveing once and again soUicite their breethreen in England that such of this 
 kingdome as (for ventering their lives for the King) wer then prissoners in England, should be still keept prissoners 
 as pledges of the peace ; haveing thrust out of the offices of state, places of judicatore and publict trust, all such as 
 wer willing to engage for his Majestie's releiff and restauration to his Government, and put such in their places as 
 did oppose the same ; haveing layd on and raised great exactions and sums of money from the people, and employed 
 them for their oun uses ; having seized on his Majestie's revenewes, and bestowed them upon themselflfs and such 
 
APPENDIX, 485 
 
 others as wer in open opposition and armes against him ; haveing also seized upon the propperties and due rights of 
 the subjects, and the patronages by law secured unto them ; and having by these, and many such like acts, endea- 
 voured to perpetuat themselffs in their usurped power, they prorogated the meltings of their pretendit Parliaments 
 from time to time, substituteing some of their trusties for careing on of their designes in the while : — And the 
 Estates of Parliament, haveing taken these proceidings into their serious consideration, doe find that ther wes no 
 LAW NOR LAWFULL AUTHORITY /or the meitings of these pretendit Parliaments and Committies of Estates; but that the 
 persones meiting therin did, without any lawfull warrand, and in contempt op his Majestie's authority, 
 
 USURPE THE POWER TO THEMSELVES. AnD THERFOR THE KiNG'S MaJESTIE, WITH ADVICE AND CONSENT OF HIS 
 
 Estates of Parliament, doth rescind and annull these pretendit meitings of Parliament and Com- 
 mitties ABOVE MENTIONED, and all other meitings of any pretendit Parliaments or Committies flowing from the 
 same, and all acts, deids, and treaties done by them or their warrand; excepting alwayes all such acts as wer past in any 
 meitings of Parliament or Committie of Estates authorised by his Majestie's presence, and are not inconsistent with 
 this present Act ; and also declares any ratification which therafter wes past of those meitings and acts to have been 
 voyd from the beginning, except in so far as is exprest in the indempnity, declarations, and provisions aftermen- 
 tioned. Yet notwithstanding of all these provocations, the King's Majestic, from his innate goodnesse, being more 
 desireous to reclame his subjects to their duetie by acts of mercie then to reduce them by their too much deserved 
 censure, doth of his meer favour and grace, with advice and consent forsaid, indempnifie all such persones who sat 
 and acted in these pretendit Parliaments and Committies, or who acted in order therunto, or by vertew of and in 
 obedience to the same, to be in all time comeing unquestioned in their lives and fortunes for these their actings, 
 excepting such as shall be excepted in ane generall act of indempnity to be past by his Majestie in this Parliament. 
 And forasmuch as the ordinary Courts of Justice did sit and act by warrand of these meitings, the King's Majestie, 
 for the good and ease of the people, doth, with advice forsaid, declare that non of the acts, decreits, or sentences 
 given by these who sat as Lords of Session, or as inferiour Judges, within this kingdome, these yeers, nor no execu- 
 tion following therupon, are for want of lawfull authority to be questioned, wheranent his Majestie, with advice 
 forsaid, by these presents dispenses. And also his Majestie, considering that by a pretendit Act and commission 
 from the said pretendit meitings or Parliaments augmentations wer granted to ministers, kirks wer divyded, new 
 kirks were erected, and lands from one paroch to another disjoyned and annexed ; and diverse other particulars 
 decerned in relation to the plantation of kirks ; which commissions, one or more, though they had no lawfull authority 
 but in themselifs wer and are null, yet his Majestie, being desireous to give all due encouragement to the Ministers 
 of the Gospell, doth, with advice and consent forsaid, declare that all Acts, decreits, and sentences pronunced and 
 given forth be the saids Commissioners, and all executions therupon, are and shall stand valid in tyme comeing, 
 except sucli as upon the complaint of any partie shall be fund to have been injustly or exorbitantly pronunced and 
 decerned ; the determination whairof is hereby referred by iiis Majestie, with advice and consent forsaid, to the 
 Commission for plantation of kirks to be established by his Majestie in this present Parliament ; that they, after 
 heareing of parties and consideration of particulars, may take such course for altering, annulling, or allowing of what 
 wes done by vertew of the saids Commissions in the years 1649 and 1650, as they shall think just, conforme to the 
 standing lawes and Acts of Parliament preceiding the yeer 1649 ; and ordaines processe upon supplication to be 
 summerly granted, parties being always ceited, and that without any reduction ; as also with pouer to the saids 
 Commissioners to be appointed, upon the dependence of the saids complaints and processe, to discharge execution 
 upon the forsaids decreits in whoU or in parte, as they shall find just, ay and wbill the mater may be determined 
 by them. And forasmuch as by a pretendit Commission for the Exchequer, diverse infeftments, gifts, and others 
 wer past in the forsaids years 1649 and 1650, his Majestie, with advicce forsaid, declares that all such gifts, infeft- 
 ments, and others are and shall be valeid, excepting alwayes new gifts and dispositions of lands and others granted 
 and past to his Hienes' preiudice, and such other gifts as, upon the complaints of parties, shall by his Majestie's 
 Thesaurer and Commissioners of Exchequer be fund to have been uniustly granted or past in prejudice of prior 
 gifts under his Majestie's hand, though not past in Exchequer. And whereas, by a pretendit Act of the forsaid 
 pretendit Parliament, entituled Act abolishing the Patronages of Kirks, all patronages and presentations of kirks, 
 whither belonging to the King, or any laik patron, Presbetries, or others, wer discharged, and all acts, gifts, and 
 rights granted theranent rescindit ; and yet nevertheles it wes therby declared that the takeing away of the patronages 
 should not prejudge the patron's rights to the teinds, nor weaken his infeftment wherein the same is contained ; and 
 that the teiths of the kirks, whereof the presentations wer abolished, should belong heretably to the patrons, and be 
 inserted in their rights and infeftments in place of their patronage, with power to the patron to dispone upon the 
 saids teinds in maner and with tiie exception contained in the said Act, — and notwithstanding that the forsaid Act and 
 whole Parliament be declared null, yet nevertheles his Majestie, with advice forsaid, doth by these presents declare. 
 That it shall be lawfull to laik patrons or heritors to agree with the beneficed persons, for tacks, or rights of teinds, 
 belonging to the said beneficed persone, according to the lawes of the kingdome; with this provision, that the saids 
 tacks shall be nowayes prejudiciall to the stipend and mantenance of the ministers and persones to be presented, 
 according as the same hath been alreadie modified, or shall be modified in tyme comeing,— and that, notwithstanding 
 of any Acts or Statuts made in the contrare, all which Acts his Majestie, with consent forsaid, by these presents 
 discharges. And in lyk maner his Majestie, with advice forsaid, declares. That as to such persones who are 
 presently in possession of kirks perteaning to the saids laik patronages, the saids persones and ministers shall, 
 dureing their service, clame no right nor possession to the teinds of their saids kirks and paroches other then they 
 had formerlie befor the makeing of this Act, they haveing alwayes a sufficient mantenance allowed and granted to 
 them according to the lawes of the kingdome." 
 
 3 Q 2 
 
486 
 
 APPENDIX. 
 
 (26) Proofs, from the Records of Parliament, of the Precedence enjoyed hy the Earls of Glencairn 
 over the Earls of Eglinton, OassiUis, and Caithness, in itirtue of the final and ruling Decreet 
 of the Court of Session Idth January 1648, amd of the Patent 28th May 1488, upon which 
 that Pecreet proceeded. — Erom the Acts of Parliament, vols, viii., ix., x., and xi. — ' 
 ' of Evidence,' p. 83 ; Supplemental Case, pp. 176 sc[q. — (Referred to supra, p. li.) 
 
 (Nos. CXII. to CXXXIV. inclusive.) 
 
 Preliminary Observation. 
 
 William Earl of Glencairn was appointed Lord Chancellor in 1661, after the Restoration, and continued to 
 hold the office till his death in 1664.* He thus ranked above all the nobility ex officio during those years. 
 After his death, his son Alexander Earl of Glencairn had precedence over Eglinton (in virtue of the 
 Decreet 1648), as is proved by a Protest in Parliament, 11th August 1665, by the Earl of Winton (on 
 calling the Rolls) "in behalife of the Earle of Eglintoun, that the calling of the Earle of Glencarne 
 " befor the Earle of Eglintoun in this present Conventioun should noways prejudge the Earle of Eglin- 
 " toun of any Decreits or uther rights he had of precedency before the said Earle of Glencarne." {Acts, 
 vol. vii. p 529. )t But this vague protest was unavailing, and Glencairn retained the precedence until 
 the 9th January ] 667, on which day, in that single diet of Parliament only, the Eglinton family obtained 
 a momentary precedence. But, on that same day, immediately thereafter, Glencairn protested (as below), 
 appealing to the ' Decreet of the Lords,' i. e. of the Lords of Session, 19th January 1648 — the standing 
 and only conceivable Decreet of the kind, J — while Eglinton "protested in the conlrair " — or in general 
 terms, not venturing to found upon the Parliamentary Decreet 1649, or anything else. Glencairn's 
 protest and appeal to the Decreet 19th September 1648 were evidently decisive, for in the next Roll of 
 Parliament that is extant, under date 19th October 1669 (as below), he is expressly entered and ranked 
 (evidently /itre possessorio) before Eglinton — which identical precedence both he and his representatives 
 are proved (by the most indisputable evidence, also given before the Committee) to have held invariably 
 thereafter, on every occasion, down to the latest period — in spite of occasional protests by the Earls of 
 Eglinton, who yet never ventured to moot or discuss the question before any tribunal, that being already 
 legally barred and settled. — The accidental, momentary, and unwarranted ranking of Eglinton above Glen- 
 cairn in 1667 makes the Claimant's argument even stronger than before, having elicited the adduction of 
 the Decreet of the Lords of Session in 1648 as the sovereign and unap/pealahle rule and standard of the 
 Olencairn precedency, which was at once decisive on Ihe point and acted upon thereafter — proving the 
 question to be res judicata, and 'directly through the confessed fokce akd opKKAxioif or the 
 Glencairn patent 28th Mat 1488 — -which thus stood, and was held to be PEKrECTLT binding 
 and valid in law, instead of null and abrogated, as contended by the Crown and affirmed by the 
 House in this case. 
 
 i. " Apud Edinburgh, ix die Januarii, a.d. mdclxvii." — Eoll of " the Convention of Estates haldin 
 " at Edinburgh, the nynt of Januar 1667," &c. 
 
 " John Earle of Rothes, His Majestie's Commissioner. 
 " Archbishop St. Andrews. 
 " Archbishop Glasgow. 
 
 " Earl Marischal, Privy Seal. 
 " Duke Hamiltoun. 
 " Marquis Montrose. 
 " Earl Argyl. 
 
 " Earl Airthe. 
 " Eael Eglinton. 
 " Eael GLENCAIRNE," 
 &c. 
 
 " The Earle of Glencarne protestit. That the calling of the Earle of Eglintoun before him in the 
 rolls of the Convention should be but {withont) prejudice of his right of precedende before the 
 Earle of Eglintoun and of the DECREir of the Lords to that effect.§ And the Earle of 
 Eglintoun protestit in the contrair." 
 — Acts, &c., vol. vii. pp. 536, 539. 
 
 * His death is proved by his Confirmed Testament, penult. 
 September 1664, on record. 
 
 t It may be mentioned here, that Sir George MacKenzie, 
 Lord Advocate in 1666 and thereafter, in his ' Treatise on Pre- 
 ' cedency,' gives a full list of the Scottish Peerage, where he thus 
 ranks the parties in question : — 
 
 " Areskine Earl of Bnchan. 
 " Cunningham Earl of GLENCAIRN. 
 " Montgomery Earl of Eglinton. 
 " Kennedy Eabl of Cassillis." 
 — Works, vol. ii. pp. 545, 546. 
 
 X See note §, infra. 
 
 § That the " Decreit of the Lords," founded upon by the 
 Earl of Glencairn, could only be the Decreet of the Lords of 
 Council and Session in 1648 is evident, 
 
 1. Because it could no* be the Decreet of the Lords of Par- 
 liament, inasmuch as they only pronounced one Decreet 
 of the kind, in 1649; and this was against and not in 
 favour of the Earl of Glencairn, — independently of its 
 being every way and specially annulled and rescinded. 
 
 2. Because it could not have been a Decreet of the Lords of 
 
 the Privy Council, who might summarily (though not 
 finally) in some way or other (being rather a usurping 
 body, like the English Star Chamber) have interfered 
 in the matter, — although still, as might be presumed, it 
 would have been in favour of the Earl of Glencairn. 
 But, after a careful examination of the entire record of 
 the Privy Council's Acts and Decreets, from 1661 
 (when they begin, immediately after the Restoration) 
 until 1672 inclusive, nothing of the kind is to be 
 found. And, 
 
 3. Because there is no other tribunal except the Lords of 
 
 Council and Session, or Supreme Civil Court, to whom 
 the Decreet in question can possibly be attributed,— and 
 therefore the "Decreit of the Lords" appealed to by 
 the Earl of Glencairn in Parliament must have been 
 THE Decreet of the Lords of Council and Session 
 19th January 1648, — which has been otherwise shewn 
 to have stood and regulated the Glencairn and Eglinton 
 precedency. 
 
APPENDIX. 487 
 
 ii. " Apud Edinburgh, xix die Octobris, a.d. mdcxxix." — Roll of " the Second Parliament of Our most 
 " High and Dread Sovereign, Charles the Secoud," &c. 
 
 " The Earl of Eothes, Lord Chancellor. 
 
 
 * * * 
 
 # 
 
 
 Eaei,es. 
 
 
 " Argyll. 
 
 " Airth. 
 
 " Cassills. 
 
 " ErroU. 
 
 " GLENCARNE. " Caithnes," 
 
 " Marr. 
 
 " Eglingtoun. 
 
 &c. 
 
 — Acts, &c., vol. vii. p. 548. 
 
 
 
 iii. « The Roll of the 2 Session 
 
 2 Parliament holden in 
 
 July 1670,"— following ( 
 
 and where sit, among the Earls, 
 
 
 
 " Argyl. 
 
 « Mar. 
 
 " GLENCAIENE. 
 
 " Crafurd. 
 
 " Airthe. 
 
 " Eglinton. 
 
 " ErroU. 
 
 " Morton. 
 
 " Cassh-ls. 
 
 " Sutherland. 
 
 " Buchan. 
 
 " Caithnes." 
 
 — Acts, &c., vol. viii. App., p. 1. 
 
 
 
 iv. " The Rolls of the fourt Session of his Majestie's Second Parliament, begun at Edinburgh 12th Novem- 
 " ber 1673," — ^and also following the order of Precedence, and where sit among the Earls, 
 
 " Argyl. " Mar. « GLENCAIRNE. 
 
 " Crawford. " Airthe. " Eglinton. 
 
 " Marischal. " Morton. " Cassillis. 
 
 " Sutherland. " Buchan. " Caithnes.'' 
 
 — Acts, vol. viii., App., p. 26. 
 
 V. Roll of the Parliament 28th July 1681, — wherein are enumerated among the Earls, 
 
 " GLENCAIRNE. 
 " Eglintoune. 
 " Cassillis. 
 " Caithnes." * 
 —Ibid., p. 231. 
 
 vi. Roll of the Parliament 23rd April 1685, wherein are similarly enumerated, 
 
 " GLENCAIRN. 
 
 " Eglintoun. 
 " Caithness," 
 
 — Cassillis being apparently absent. — Ibid., pp. 451, 452. 
 
 vii. Roll of the Parliament 29tli April 1686, wherein are enumerated, as above, among the Earls, 
 
 " GLENCAIRNE. 
 
 " Eglintoun. 
 " Linlithgow. 
 " Home," 
 &c. 
 
 — Cassillis and Caithness (who certainly preceded Linlithgow and Home, creations of the seventeenth century) 
 not being mentioned, presumably from absence. — Ibid., p. 576. 
 
 • Reference may be made also to " A true and correct Cata- " John Cunningham Earl of GLENCAIRN. 
 
 logue of tbe Lords Temporal and Spiritual of the Kingdom of " Alexander Montgomery Earl of Eglinton. 
 
 Scotland," published by the celebrated Sir William Dugdale, " John Kenned? Earl of Cassillis. 
 
 Garter King of Arms, in his " Ancient Usage of Arms," in 1 682 ; " George Sinclair Earl of Caithness. ' 
 where, at p. 171, the following Earls are thus ranked ; — 
 
4:88 APPENDIX. 
 
 viii. Roll of the Convention " 14th Martii 1689," wherein are enumerated among the Earls, 
 
 « GLENCAIRNE. 
 
 " EGLmTOUN. 
 
 " Cassillis. 
 " LinlithgOTv," 
 &c. 
 ^—Acts, &c. vol. ix. p. 3. 
 
 ix. Eoll of the first Parliament of King "William, " 5 Junii 1689," — in which are enumerated, among the 
 Earls, 
 
 « The Eael of GLENCAIEN. 
 
 " The Eabl of Eglzntoun. 
 
 " The Earl of Cassillis." 
 — Ihid., p. 95. 
 
 X. These three Earls are mentioned in the same order in the Roll of Parliament 15th April 1690. — Ibid., 
 p. 106. 
 
 xi. Roll of the Parliament 3rd September 1690, wherein are enumerated, as before, 
 
 " GLENCAIRNE. 
 " Eglintoun.'' 
 —lUd., p. 230. 
 
 xii. Roll of the Parliament 18th April 1693, wherein are enumerated, as before, 
 
 " Earl of Morton. 
 " Eael of GLENCAIRNE. 
 " Earl of Eglintox. 
 " Earl of Cassillis. 
 " Earl of Linlithgow." * 
 —Ibid., p. 238. 
 
 xiii. Roll of the Parliament 9th May 1695, — wherein are enumerated among the Earls, ut supra, 
 
 " Earl of Mortoun. 
 " Eael of GLENCAIRNE. 
 " Eael of EGLiSTOmsr. 
 " Eael of Cassillis. 
 " Earl of Linlithgow." 
 -Ibid., p. 347. 
 
 xiv. Roll of the Parliament 8th September 1696, — wherein are enumerated, id supra, 
 
 " Earl of Mortoun. 
 
 " Eael of GLENCAIRNE. 
 
 " Eael of EGLiNTOira". 
 
 " Earl of Strathmore," 
 
 — ^the Earldom of Strathmore being a creation of the seventeenth century. — Acts, &c., vol. x. p. 3. 
 
 * Reference may likewise be made to the KoUs of the current follows : — 
 
 Parliament, anno 1694 — full and according to the due prece- n Areskin Earlof Buchan 
 
 dency, published by Mr. James Dalrymple, Advocate (afterwards .. Cdkningham Earl of GLENCAIRNE. 
 
 Sir James Dalrymple, the celebrated antiquary), and then Clerk » Montgomem Earl of Eglinton. 
 
 of Parliament, and necessarily the best authority, in his edition « Kennedy Earl of Cassillis. 
 
 of Camden's Description of Scotland, published at Edinburgh in << Sinclair Earl of Caithness." 
 1695; and in which among the Earls there are ranked as 
 
APPENDIX. 489 
 
 XV. Eoll of Parliament 19th July 1698, wherein, &c. — ut supra, 
 
 " Morton. 
 " Buchan. 
 « &LENCAIRNE. 
 
 " Eglintoun. 
 " Strathmore," 
 
 —Buchan being here inserted as originally (in 1673), thus not compromising the material point under illus- 
 tration. — Ibid., p. 113. 
 
 xvi. Roll of the Parliament 21st May 1700, wherein, &c. 
 
 " Morton. 
 " Buchan. 
 « GLENCAIRNE. 
 
 " EGLrNTOUN". 
 
 " Cassillis. 
 " Strathmore." 
 -Ibid., p. 183. 
 
 xvii. The same relative order is observed in the Roll of Parliament 29th October 1700. — Ibid., p. 196. 
 
 xviii. Roll of Parliament 9th June 1702, wherein are enumerated among the Earls, 
 
 " Crawford. 
 
 " Morton. 
 
 " Buchan. 
 
 " GLENCAIRNE. 
 
 " EGLisTomr. 
 
 " Kellie," 
 
 -this last Earldom having been created in the seventeenth century. — Acts, &c. vol. xi. p. 3. 
 
 xix. The same order is observed in the Rolls of the Parliament 6th May 1703, with the exception that the 
 Earl of Home, created also in the seventeenth century, is inserted instead of Kellie, who was probably absent. — 
 Tbid., p. 29. 
 
 XX. Roll of the Parliament 6th .July 1704, wherein are enumerated among the Earls, 
 
 " Cromarty, Secretary" (ranking as an officer of State). 
 
 " Crawford. 
 
 " Buchan. 
 
 " GLENCAIRN. 
 
 '• EGLDfTOUN". 
 
 " Caithness. 
 " Plome." 
 
 — Caithness, who here reappears, was a defender, as proved, in the action of precedence by the Earl of Glencairn, 
 in which the latter prevailed, in 1648. — Ibid., p. 113. 
 
 xxi. Roll of the Parliament 28th June 1705, wherein, &c. ut supra. 
 
 " Loudon, Secretary " (ranking as such). 
 
 " Crawford. 
 
 " Buchan. 
 
 « GLENCAIRNE. 
 
 " EGLnSTTOUN. 
 
 " Home." 
 —Ibid., p. 206. 
 
490 APPENDIX. 
 
 xxii. Roll of the Parliament 3rd October 1706, wherein are enumerated among the Earls, 
 
 " Mar, Lord Secretary " (ranking as such). 
 " Loudon, Lord Secretary " (ranking as such). 
 " Crawford. 
 " Buchan. 
 
 " GLENCAIENE. 
 " Eglintoun. 
 " CASsn,Lis." 
 —Ibid., p. 300. 
 
 The precedence among these noble parties was thus uniform and in keeping exclusively with the final 
 Decreet by the Court of Session in 1648 down to the period of the Union in 1707, — the above 
 being the last Boll of the Scottish Parliament in the Books of Parliament. 
 
 xxiii. Lastly, the same precedency was observed and adopted in the Union Roll in 1707, still the existing 
 regulating authority, and called over (as is well known) at all Elections of the sixteen Representative Peers of 
 Scotland, as by this concluding excerpt : — 
 
 " Earls. 
 
 " Earl of Crawford, 
 &c. 
 
 " Earl of Buchan. 
 " Emil of GLENCAIENE. 
 " Earl of Eglintocwe. 
 " Eakl of Cassillis. 
 " Earl of Caithness. 
 &c. &c. 
 
 — See Robertson's Peerage Proceedings, pp. 12, 13. 
 
 Observation. 
 
 In adducing the Protest 1667, and the Sederunt l9th October 1669, before the Committee, Mr. Stuart 
 Wortley stated, " That he relied upon all the Sedevunts of Parliament from the year 1667 to the Time 
 " of the Union, which were set out at page 176 of the Supplemental Case of the Claimant, showing that 
 " uniformly without Exception during that Time the Earl of Olencaim had retained his Precedency over 
 " the Earl of Eglinton, founded upon the Deckeet op the Court of Session ; and that he would 
 " further call the Attention of the Committee to the Soil of the Union, where the Earl of Glencairn 
 "appeared as taking Precedence of the Earl of Eglinton, and to the subsequent sittings in Parliament 
 " down to the time of the death of the last Earl of Glencairn in 1796, in all of which the scume Pre- 
 " cedency was continued." Minutes of Evidence, p. 83. 
 
 (26) Speech of the Lord Chancellor Loughhoroiigh (afterwards Earl of Bosslyn) in moving the Reso- 
 lution upon the Olencairn claim, 18th July 1797. — ' From a note in the Kilkerran Gharter- 
 ' chest, collated with original notes of Mr. David Robertson, " corrected by the Lord Clvrn- 
 ' " ceUor." ' * — (Eeferred to supra, pp. Ixii sjj.) 
 
 (No. CXXXV.) 
 
 " This matter comes before your Lordships by a petition from Sir Adam Fergusson, claiming the title of 
 Earl of Glencairn and Lord Kilmaurs, as heir-general of Alexander Earl of Glencairn, who died in possession of 
 these titles in 1670. 
 
 In this claim he is opposed by Sir Walter Montgomery Cuningham, stating himself to be heir-male of the 
 family ; but whether he be such heir-male or not, is not in evidence before your Lordships. He has given some 
 general evidence of his propinquity in the male line, and therefore has an interest to say that the titles descend 
 to heirs-male. The heir-general of the last Earl of Glencairn, and the Crown, also oppose the claim of Sir Adam 
 
 * This is the description given of the Report in the margin of the Original Case of the Duke of Montrose, Appendix, p. x,— 
 from which the Speech is here reprinted. The notes subjoined are by the present Claimant. 
 
APPENDIX. 491 
 
 Fergusson. Lady Harriet Don is the sister and undoubted heir-general of this last Earl, and defends the pos- 
 session of the title by her family. 
 
 The claim of Sir Adam Fergusson is stated in his printed case to be founded on a muniment discovered in 
 the repositories of that branch of the family which last obtained possession of the titles,* but not entered upon any 
 public record; and it was produced by a person who inspected these repositories, together with an inventory of 
 the writings of the family, which he found along with it. Sir Adam insists that this instrument, which bears 
 date the 28th of May 1488, is in the nature of letters patent, with words of limitation to carry the honours to 
 heirs-general. 
 
 The argument at the Bar on behalf of the Claimant took a larger scope than in his printed case. It was 
 contended, that though this patent should be found not to regulate the descent of the honours, the peerage was to 
 be decided upon general principles in favour of heirs-general ; and the argument upon this point was supported 
 by Sir Adam's counsel with much ingenuity. Had the matter rested here, I should have had no occasion to 
 trouble your Lordships much at large. 
 
 It has been fixed by repeated determinations of this House, (and I know of no other authority competent 
 to decide in matters of this nature,) that where the limitation of a peerage is not to be discovered, the presumption 
 is, that it descends to the heirs-male of the body of the original grantee. In the case of the peerage of Lovat, 
 where there was a competition between the heir-general and the heir-male, it was determined h/ the Court of Session 
 in favour of the latter, and on the ground of that opinion Lord Lovat was tried as a Peer, j The judgment of this 
 House, in the case of the peerage of Cassillis, was penned expressly to mark the opinion of their Lordships, that 
 the presumption of law was against the heir-general, in favour of the heir-male, f The judgment in that case was 
 followed in several other instances by this House, down to the cases of Sutherland and Spynie. In the case of the 
 peerage of Sutherland, the heir-general obtained the title by a judgment of your Lordships; yet the reason was, 
 because, in the middle of the sixteenth century, the title had been taken up and enjoyed by the heir-general, and 
 transmitted to her descendants ; so the ground of the decision there was, that the general presumption of law was 
 done away by the facts in that particular case. 
 
 The case of the peerage of Spynie, which afterwards occurred, turned upon the same question. In that 
 title several charters and instruments were referred to as creating the title ; but all attempts to prove the limita- 
 tions by collateral evidence were fruitless ; the creation of the title was by the form of Belting, after which the 
 person so created sat in Parliament, and his son sat also. And this House decided, that the presumption of law 
 carried the title to heirs-male.§ I recollect not only the speech of Lord Mansfield upon this occasion, but also 
 a consultation I (not then having a seat in this House) had with his Lordship previous to the decision. 
 
 Lf there be any thing certain in the law of peerage, it is this presumption in favour of heirs-male. \\ Though there 
 be many ingenious arguments in favour of the heir-general in that elaborate paper, the 'Additional Case' in the 
 peerage of Sutherland, it is remarkable that in the speech of Lord Mansfield, in giving judgment upon that claim 
 of peerage, his Lordship brought the greater part of the instances, stated in the Sutherland Case, in aid of the 
 doctrine laid down by this House in the case of Cassillis. 
 
 The other question, therefore, in this case must determine the right of the Claimant. If the creation of the 
 title be referable to the patent 1488, we must take the limitation from the construction of that instrument. In it 
 the lands are limited to Alexander the grantee and his heirs in fee, and from the probability that the titles and the 
 lands would be limited in the same manner, an argument was raised upon the patent, which bore with considerable 
 force in favour of the Claimant. 
 
 The question here arising is rather a question of fact than of law, namely, whether the origin of the title 
 be referable to this instrument, or to some other creation. Our inquiry upon this point is much narrowed by the 
 evidence. In 1505 Cuthbert appears sitting in Parliament as Earl of Glencairn. From him all the parties state 
 themselves to be descended ; and this is the first time that an Earl of Glencairn is to be found sitting in Parlia- 
 ment. The question therefore is, whether this Cuthbert sat in Parliament as Earl of Glencairn in 1505, by descent 
 from Alexander the grantee in the patent 1488, or whether his sitting was to be attributed to some other, and what 
 other mode of creation ? 
 
 In examining this instrument, it must have occurred to your Lordships, (it occurred to the counsel at the 
 bar, and it is admitted in the printed Case,) that it is of a singular nature, but it does not seem to be a grant 
 confined to the person of the grantee. It received existence under very particular circumstances, and at a turbu- 
 lent period respecting which there is a good deal of confusion among historians. A gentleman of much accurate 
 research (Mr. Pinkerton) has, however, thrown great light upon this entangled portion of history, the latter end of 
 the reign of King James the Third, and the commencement of the reign of his successor. What T am to state to 
 your Lordships on this subject, I have collected not so much from history as from Acts of Parliament.^ 
 
 A great part of the nobles had rebelled against James the Third, and on the 2d of February 1488, the 
 
 * Which lawfully succeeded to them in 1670 (as heirs male, § The decision did not go exclusively on that presumption, as 
 
 excluding heirs general) under the patent granted to Alexander appears from the Notes of I^ord Mansfield's Speech preserved in 
 
 Lord Kilmaurs " et heredibus suis " by James III. in 1488. Vide the Spynie charter-chest, and which may be seen, with relative 
 
 supra, pp. Ixiii, Ixviii, and infra, p. 494, note **. comments, in the statement of the case of the Barony of Spynie, 
 
 t Manifestly in full recognition of the authority of the Court infra, pp. 561 sqq. Lord Mansfield founded likewise on the 
 
 of Session in cases of Peerage, as elsewhere vindicated in this family investitures, as being to heirs male, precisely as Lord 
 
 volume Loughborough does on the Glencairn investitures at the end 
 
 t Important testimony, founded on in the Claimant's ' S. Case,' of his Speech, and as the Claimant does in the present claim, 
 
 p 147 with reference to the Claimant's argument on the subject || Important, for the reason already stated, 
 
 of the limitation of the Montrose Patent. For the Keport of the ^Published in 1797, the year of the Glencairn decision. 
 
 Speeches in the Cassillis claim vide infra, pp. 535 sqq. Compare Lord Brougham's opinion, supra, p. 211. 
 
 3 E 
 
4:92 APPENDIX. 
 
 Prince, his son, then about sixteen years of age, was taken out, or took himself out, of Stirling Castle, and joined 
 the rebellious party. With them he set up his standard, and the Government was usurped. An action took place 
 soon after at Blackness, in which the advantage appears fo have been on the side of the King. (All this I state 
 from the Acts of Parliament.) A proposal was afterwards made for a treaty between the opposite parties, and, 
 accordingly, articles were drawn up for that purpose. These articles appear to have been very unfavourable to 
 the King and his party. * The articles were not observed, and it appears from an Act of Parliament, that the 
 Prince's party accused the other of having entered into a treaty with England. Several of the northern lords, the 
 Earl of Huntly, the Earl of Erroll, the Earl of Marischal, the Lord Glammis, and many others, left the King's 
 party, and went over to the confederates. The war broke out again, and the King's camp was somewhere near 
 Stirling. About this time many grants were made by King James the Third, and this patent, 1488, has an 
 evident relation to the circumstances of those times. The Lord Kilmaurs was then very powerful, and had, with 
 his forces, assisted the King's party in the action at Blackness. His services were also to be rendered in future, 
 as appears from the words of the patent : ' Et quod nobiscum cum suis servitoribus durante toto tempore instantis 
 ' discordise commoretur et remaneat.' 
 
 Several grants of a similar nature were made about the same time ; the then Earl of Crawford, who had 
 become an adherent of the King, was by a patent, dated the 18th of May 1488, created Duke of Montrose, and 
 had a grant of the town of Montrose, which, in his favour, was erected into a regality. 
 
 The grant in question, in the present case, creates Alexander Earl of Glencairn and Lord Kilmaurs. 
 Lord Kilmaurs he certainly was before this period. It also grants to him the thirty pound lands of Drummond, 
 and the ten pound lands of Duchray. The lands of Drummond, as appears from the name itself, were the estate 
 of the Lord Drummond, who was of the Prince's party ; and it is stated that the lands of Duchray are in a similar 
 situation, and belonged to the family of Lennox. These lands of Drummond and Duchray are never mentioned 
 in any of the posterior deeds of the family, nor in the inventory of those deeds, in which the lands are generally 
 marked with exactness. As to them, therefore, the patent, 1488, must have had no effect.| 
 
 There is another singular circumstance attending this patent. Though the grant to the Earl of Crawford 
 as Duke of Montrose was dated the 18th of May 1488, yet as one of the witnesses to this patent, on the 28th, he is 
 still stated to be Earl of Crawford. And "William Bishop of Aberdeen is here mentioned as Chancellor, though, 
 from several instruments in Rymer's Foedera, it appears that Colin Earl of Argyle is styled ' Cancellarius Scotiae ' 
 about this period. If it be proper to mention a supposition, I would be inclined to suppose that he continued to be 
 taken as Chancellor by the Prince's party, and that the Bishop of Aberdeen then became the King's Chancellor. 
 Certain it is, that the Earl of Argyle was Chancellor both before and after this period ; and in that turbulent 
 interval the office may have been used by both parties. :]: 
 
 This scene closed upon the 10th of June 1488. The King was killed in an action with the opposite party, 
 and with him fell Alexander, the grantee in this patent. The only period, therefore, when this instrument could 
 have had any effect was from its date, 28th May 1488, till the death of the grantee ; for, on the 12th of June, two 
 days after the action, the young King made a proclamation, which was followed up by an Act of Parliament 
 annulling every grant made by his father from the 2d of February preceding. 
 
 The new Parliament, after the death of the King, met upon the 6th of October 1488. In the collection of 
 the Acts of Parliament, known in Scotland by the name of the Black Acts, the Acts of this period are fully 
 stated, though omitted in the later editions. At their first sitting, the Parliament began mth several acts of great 
 violence against the late King's party. All persons having hereditary offices, who had been in the field of Stirlmg, were 
 suspended from their offices for three years. There were Acts of forfeiture passed against several persons, and 
 amongst others John Eamsay Earl of Bothwell, a very conspicuous character, who flourished about this time ; yet 
 I can hardly say flourished, for he was stripped of his honours and large possessions. 
 
 The 14th chapter of the Acts of this Session was an Act for their own justification. It recites that a treaty 
 had been made, but that the same had been broken by the late King's party. They afterwards passed tlie Act of 
 Revocation, which, after mentioning the proclamation that had been made on the 12th of June, ordained 'that all 
 ' alienation of lands, heritages, long tacks, &c., and creations of new dignities, granted to any person, &c., since 
 ' the 2d day of February last bypast, by umquhile our Sovereign Lord's father,' {and that he is thus described, and 
 not styled King, is worthy of notice,) ' which may be prejudicial to our Sovereign Lord that now is, be cassed and 
 ' annulled,' &c. 
 
 Against this Act it would certainly have been difficult to set up any claim; but another Act shows more 
 plainly that Jam^s the Third was not held to be King from the 2d of February. This Act enables all those whose 
 fathers fell in the field of Stirling to complete a service to them, ' though (the Act says) it may be objected that 
 ' their fathers and antecessors died not in the faith and peace of the King.' To do away this, the Kino- consented 
 to grant letters under the Privy Seal, without which the brieves were not to be given. There cannot be a 
 stronger assertion, that the Government in defence of which they died was not a legal Government, than that they 
 did not die ' at the faith and peace of the King ;' and it was on this account that the Privy Seal was given. § I do 
 not take upon me to say whether this was good law or good morality, or not. 
 
 They were not yet satisfied, however, but in the next Parliament they made another Act, reciting the 
 former Act, declaring all alienations of lands, heritages, &c., to be of ' no avail after the 2d day of February,' and 
 
 * These articles have been printed from the Acts of Parlia- Loughborough, see the Analysis, supra, pp.lxiv, Ixv ; and, for a 
 
 ment, supra, p. 38a. fuUei- refutation, the Supplemental Case, pp. 58 sqq. 
 
 t OnthispomtOTieswpra, pp. xxxixsjg., andlxiv. § This has been fully answered and accounted for in the 
 
 X On this and subsequent statements and inferences of Lord Claimant's ' S. Case,' pp. C2, 63 
 
APPENDIX. 493 
 
 they add in a parenthesis, ' which was the day of our Sovereign Lord who now is comin- forth of Stirlin- ' They 
 took that day as the commencement of the mw reign* from which all grants made by the late King were to b'e deemed 
 null, and they ordained all persons to bring in such grants to be destroyed, under a penalty. 
 
 Under the circumstances of those times, we would not expect to find a person claiming under a patent like 
 that now in question. Accordingly, in that first Parliament of King James the Fourth, (the Sessions in those 
 days were of short endurance,) on the 17th of October 1488, we find Eobert, the son of Alexander, the grantee 
 in the said instrument, sitting in Parliament under the title of Lord Kilmaurs. He took the benefit of the 
 before-mentioned Act, for on the 4th of November he served himself heir to his father, Alexander Lord 
 Kilmaurs, upon a Privy Seal warrant, to do away the objection that the father did not die at the faith and peace 
 of the King. 
 
 In the next Parliament, on the 14th of February 1489, this Robert is also present, and he is also marked as 
 sitting as Eobert Lord Kilmaurs. He died soon after. The exact date of his death does not appear, but from a 
 paper in the inventory produced to your Lordships, of 20th October 1492, it appears that Cuthbert his son was 
 then Lord Kilmaurs. This Cuthbert, I believe, must then have been a young man, for he lived till 1540. There 
 is another circumstance which tends to confirm this ; in the account of the ceremonial of the marriage of King 
 James the Fourth with Margaret of England by Mr. Young, Somerset Herald, to be afterwards mentioned more 
 particularly, Cuthbert Lord Kilmaurs appears at a tournament as a challenger against James Lord Flamilton, who 
 was then a very young man, as appears by the date of the marriage of his father with the Princess Mary, sister of 
 James the Third. 
 
 This Cuthbert married the daughter of the Earl of Angus, a very powerful nobleman. I find an instru- 
 ment mentioned in the inventory, which I can only describe as it is entered there. It is dated the 20th of January 
 1493, and is called ' A Declaration by King James, and that the Parliament made no farther inquisition, and so 
 ' was sufficient to purge Alexander Lord Kilmaurs.' This seems to have been intended to do away all incapacity 
 on the part of Cuthbert on account of his father's acts. Two other papers are material, Nos. 24 and 48 of the 
 inventory. The first is a charter in 1498 by King James to Cuthbert Lord Kilmaurs, and Marieta, his wife, and 
 the other a charter to William, son to Cuthbert Lord Slmaurs, also dated in 1498. Till this period, therefore, 
 Cuthbert was treated only as Lord Kilmaurs. 
 
 In 1505 it appears clearly that he was Earl of Glencairn. On the part of the Claimant, it was argued as 
 probable, that the title had been somehow or other continued since the date of the patent, 1488. His counsel had 
 some difficulty how to account for this. They say, there may have been an Act of Parliament for that purpose, 
 but no such Act appears ; and such a measure would have been opposed by the proprietors of the lands of Drum- 
 mond and Duchray. It might be said that the title was continued without the lands, by some grant from the 
 Crown ; but it is straining too much to say that any such grant was made. 
 
 Accidentally an historical account comes to our aid in this difficulty, the before-mentioned account of the 
 marriage of James the Fourth, given by Mr. Young, Somerset Herald. This is but historical, it is true, but the 
 Herald appears to have taken down the occurrences with accuracy, and from day to day. It is found in Leland's 
 Collectanea. In this account Cuthbert Lord Kilmaurs was a principal figure, and the Lord Hamilton another. 
 The author describes a tournament where Cuthbert was a challenger, and Lord Hamilton a defender. Re after- 
 wards describes the creation of three Earls hy Belting .f Marchmont Herald proclaims Largesse— 1st, Of James 
 Lord Hamilton, as Earl of Arran ; 2d, Of "William Lord Graham, as Earl of Montrose ; and, 3d, Of Cuthbert 
 Lord Kilmaurs, as Earl of Glencairn. 
 
 The Earl of Arran took his seat in the Parliament 1503, but neither the Earl of Montrose, nor the Earl 
 of Glencairn, sat till 1505. The Parliament of that year was held by a commission, a copy of which was given in 
 evidence by Sir Walter Montgomery Cuningham. In this commission Cuthbert Earl of Glencairn is stated the 
 last in order of all the Earls, though, if he had come in upon the old titles, he would have had precedency of some 
 of the Earls mentioned in it. In the ordinary sittings in Parliament, the marking of the Peers present on the rolls 
 has little regard to precedency : I suppose their names were taken down as they came in, without regard to that 
 point. But in a commission a due precedency would probably be given to the several noblemen. In it the Earl 
 of Bothwell (not the John Ramsay already mentioned, but Patrick Lord Hailes, created Earl of Bothwell in 1490) 
 takes place of the Earl of Glencairn ; therefore the latter did not sit in virtue of the patent 1488. 
 
 Under all these circumstances, it was impossible to found upon this patent by itself. The claimant there- 
 fore called in aid of it a charter granted by King Charles the First to William Earl of Glencairn, in July 1637. 
 This charter is not in the form of an Inspeximus, but begins with an assertion, not as usual, that the King had 
 
 * This is the same error which has been adopted by Lord St. likewise " by belting, without writing or mention of descent," in 
 
 Leonards in the present claim, but which the Claimant had 1503.° Lord St. Leonard's apology for Lord Loughborough, Tiz. 
 
 amply confuted by the contemporary testimony of the Acts of that he merely used the word ' belting' "in common parlance," 
 
 Parliament, royal charters, &c. Vide ' Case,' p. 63, ' S. Case,' fully, though tacitly, recognising the necessity of a Patent, &c., 
 
 p. 62, and supra, p. iv. (supra, p. 364,) is thus quite unfounded. The finishing blow 
 
 t Comparing this expression with the narrative of the thus unconsciously given by the Noble and Learned Lord to 
 
 (alleged) creation of the Peerage of Spynie " by belting," and Lord Loughborough's decision in 1797 — (every other point of 
 
 with the judgment of Lord Mansfield upon that Peerage, that it special defence having been abandoned by Lord Loughborough's 
 
 was "created by belting, without writing or mention of descent," chivalric defenders in 1853) — may now be added to the numerous 
 
 i'lfra, p. 568,) there can be no doubt as to Lord Loughborough's instances in which injudicious friendship has sealed a man's 
 
 views in 1797, viz. that the Earldom of Glencairn was created ruin. 
 
 * Lord Loughborough, when Mr. Wedderburn, had suppoi-ted engaged, received the distinct denial by the House elsewhere 
 the same views in the Cassillis claim, on behalf of Lord Ruglen cited, infra, pp. 555 sqq. 
 
 (infra, p. 553) — views which, as held in fact by all the counsel 
 
 3 E 2 
 
494 APPENDIX. 
 
 seen the former, but ' nos compertum habentes,' that such a patent had been granted. Then it confirms the former 
 patent, and promises that the King- will give consent to an act of coniirmation. This was giving nothing but what 
 the patent 1488 had granted; but it is clear that the King was deceived in several particulars. It was impossible 
 that the King could give effect to the former patent, which had been done away by Act of Parliament. It says, 
 too, that the dignity of Earl of Glencairn had been enjoyed continually from the date of that patent, which was 
 not the fact. The Claimant in his printed Case states, that the patent 1488 was produced in the action of reduc- 
 tion relative to precedency against the Earl of Eglintoune, and, consequently, against some others, the Earls of 
 Caithness, Cassillis, and Montrose. I have looked into the Decree pronounced in that action, and find this patent 
 among the productions ; but the Decree is not founded upon it* The three noblemen last mentioned did not appear 
 to the action, though summoned, except, indeed, the Earl of Montrose, whose sons were made parties, for the 
 Scots judicatures did not then treat that nobleman, who was afterwards put to death for his attachment to the 
 King, as a Peer. The contest, in fact, was only with the Earl of Eglintoune, and to prevail against him there 
 was no necessity for recurring to the patent 1488, for the Earl of Glencairn produced sittings in Parliament and 
 in Council, where the Earl of Glencairn and the Lord Montgomery were both marked as present. The Earl of 
 Eglintoune's claim to precedency was founded on an error in the books of Session, where Comes Montgomery 
 is entered in one place along with Dominus Kilmaurs, they being then Judges of that Court, and on an allegation 
 that his house had been burnt by the Earl of Glencairn, where all his deeds and writings were destroyed. 
 
 The creation, therefore, cannot be referred to the patent 1488, but to Young's account of its origin. The 
 patent appears to have had no force at all, and to have been rather of prejudice to the family than in their favour. 
 Jf the question be brought to this point, and the creation referred to the date of 1503, and the mode op creation then 
 OBSERVED, t the presumption of law established by so many cases must prevail. 
 
 It was ingeniously argued, that where no express limitation of the descent of honours appeared, it might be 
 proved by collateral circumstances. I think that under such an inquiry, the circumstances of the present case would confirm 
 the presumption of law.X 
 
 At the time of the creation in 1503, the then Earl of Glencairn could not have any other idea or wish than 
 that his title should descend in the male line.§ In 1498 he had made a very accurate entail of his estates, putting 
 his son in the fee, and reserving his own liferent. The son must then have been an infant, otherwise it would not 
 answer to the age of liis father and mother by any system of chronology. He begins with obtaining a charter of 
 the 1st of June 1498, containing the lands of Finlaystoune Cuningham, to himself and his wife in conjunct fee and 
 liferent. On the 16th of June he takes a charter of seven baronies, Kilmaurs, Finlaystoune, Kilnarnock, || Glencairn, 
 Eeidhall, Hasselden, and Hiltonn, most of them holding ward of the Crown or of the Prince, and in two of them 
 there were manor-places and fortalices. These are conveyed to himself in liferent, and to his son and his heirs- 
 male in tailzie. Finlaystoune is excepted from this destination, because settled on Cuthbert and his wife in conjunct 
 fee and liferent. 
 
 After Cuthbert took the title of Earl of Glencairn, there cannot he a question in what line he would have chosen 
 to settle his lands, if the title went to heirs-general. But on the marriage of William his son, in 1509, he settles 
 the baronies of Eeidliall and the castle and demesnes of Kilmaurs to his son and wife, in conjunct fee and 
 liferent, and the heirs-male of the marriage, whom failing, to the heirs-male of Cuthbert. It is particu- 
 larly provided in the charter, that the lands disjoined from the barony of Kilmaurs were only to be held 
 separately during the lives of the son and his wife, but after their decease should be reunited, and held as one 
 entire barony. 
 
 Some stress was laid by Sir Adam Fergusson upon a charter 1511, erecting certain lands in comitatum to 
 be held by Cuthbert and his wife in liferent, and by William, their son, and his heirs, in fee. Whoever reads this 
 charter will see it does not relate to the present question. The object of it was to change the barony of Glen- 
 cairn, which was before held in ward, or military tenure, to a blench holding, for the annual payment of a pair of 
 spurs. This was of immense consequence to the family ; and in order to make this grant available Cuthbert 
 Marieta, and William, are all made grantees, in respect of their several interests under the subsistino- charter of 
 1498. But this was merely an accessory right, and did not change the entail in any sort, nor the successicm of tlie family 
 from the ancient investitures. 
 
 In 1614, {tlie succession had always hitherto gone to heirs-male,') the then Earl of Glencairn makes a long 
 entail of his estates, calling to the succession many persons of the name of Cuningham, and the heirs-male of their 
 bodies. 
 
 His son, in 1642, but five years after he had attained 1[ the charter 1637 from King Charles the First instead 
 of altering the succession of his estates, and limiting them to Mrs-general, as a man thinking that his title went to lieirs- 
 general would naturally do, still continues them to the heirs-male, and passes a new charter under the entail of 
 1614. And thus it went on till 1670, when the second son of this Earl took up the title in prejudice of his 
 grand-daugliter. ** 
 
 * This is the astounding and untenable assertion which has || Kilmaronock 
 
 been elsewhere so fully refuted. Vide mpm, pp. xlv, Iviii sqq. "f " Obtained," in Mr. Maldmenf s ' Reports of Claims ' &c- 
 
 + That, as above stated, by 6.?«%,-that is, as in the (sup- ** Not " in prejudice," at least according to the popular im- 
 posed) Spynie instance, " without writing or mention of descent," port of that word,-the second son succeeded his elder brother 
 ss contrasted with creation by writing or patent. in exclusion of that elder brother's daughter according to the 
 
 X This IS quite in keeping with the Claimant's argument. See usual rule, as " heir " under the regulating' patent 1488- he 
 
 the Analysis, s,«p™, p. cxxxviii, n. *. Glencairn estates (like those of Crawford) beino- nrefr^Wv 
 
 § Nor in 1488, the entire Kilmaurs estates being then pre- destined to heirs-male, with only the most remotf openine to 
 
 ferably entailed on heirs-male, ever smce the fourteenth century. females, from at least (as above stated) the conclusion of the 
 
 Vide mpra, p. cxxxix, u. (-). fourteenth centuiy. John Earl of Glencairn succeeded therefore 
 
APPENDIX. 495 
 
 I have delivered my opinion upon this case with regret. I must have much respect for the opinion of 
 others more conversant with such subjects; and I know not any person to whose opinion, in a question of this 
 nature, I should have more respect than for that of Sir Adam Fergusson, from my knowledge of his learning and 
 judgment. I am sure he was convinced that he had a right to this Peerage ; and this had much weight with me 
 when I came first to consider the subject. I regret it in another point of view ; for if the claim could have been 
 sustamed, there could have been no doubt that your Lordships would have had the benefit of the claimant's abilities 
 and judgment m this House, by that election which his character would have secured to him ; and if the opinion 
 I have given be agreed to by the House, it will deprive your Lordships of much valuable assistance in one branch 
 of your judicial authority. 
 
 The proposition which I have, upon the whole matter, to submit to your Lordships' consideration is, that 
 Sir Adam Fergusson has shown himself to be heir-general of Alexander Earl of Glencairn, who died in 1670, but 
 hath not made out the right of such heir-general to the dignity of Earl of Glencairn. 
 
 Which was agreed to by the House." 
 
 Observation. 
 
 For the Resolution, as recorded in the Journals of the House of Lords, vide supra, p. Ixv. 
 
 (27) Correspondence betiveen Charles II. and the Court of Session in 1674 respecting appeals from 
 the Court of Session to Parliament ; and relative Minutes, — illustrating the fact, founded 
 upon hy the Claimant, that the decisions of the Supreme Civil Court were final and without 
 appeal to Parliament or any other tribunal. — From the Books of Sederunt of the Lords of 
 Council and Session. — ' Minutes of Evidence,' p-p. 75 and lib, sqq.* — (Referred to supra, 
 p. xlix.) 
 
 (No. CXXXVI.) 
 Preliminary Observation. 
 
 The following is the statement of the matter out of which this correspondence arose, as reported by Lord 
 Stair in his Decisions of the Court of Session, vol. ii. p. 263 : — 
 
 " The Lord Almond presented an Appeal in writ, appealing- from that Interlocutor to the Parliament ; which 
 " Appeal being this day considered by the Lords, all being present, they found that there was never an 
 " Appeal from the Lords given in in writ ; and though in the Peocess betwixt Glencaien and 
 " Eglinton is anno 1648, mention was made verbally of an Appeal, yet it was never entered in writ ■ 
 " and that by the Act of Parliament 1537, cap. 39, it is declared that the Sentences of tlie Senators of the 
 " Colledge of Justice" (the later or present Court of Session) " shall have the same strength and effect as 
 " the Sentences of the Lords of Session " (or what was commonly called ' the Session,' the civil tribunal 
 antecedent to the Court of Session) " had in time by-gone, which is declared by the 63" (lege 62) " Act 
 " Pari. 14 K. Ja. 2, to be final without ant eemeid by Appellation to King and Parliament ; 
 " which hath been in constant observance ever since. For the Parliament never sustained an Appeal 
 "from the Lords " (of Session, the Court of Session), "neither was there ever any reduction of their 
 " Decreets sustained, except as to the title of honour betwixt Glencairn and Eolinton which 
 " WITH THAT Parliament, is simply annulled and rescinded, without any reservation. 
 " Therefore the Lords declared they would proceed in this case" (and thoroughly determine it) " not- 
 " withstanding the Appeal, and would suffer nothing thereof to remain upon Record, or any instrument 
 " to be given thereupon, and that they would represent to the King the whole matter, that such pre- 
 " paratives might be prevented in time coming." — S. Case, p. 54, and supra, p. xlviii. 
 
 On the adduction of the following correspondence "the Lord Advocate stated. That it appeared that a great 
 " Controversy had arisen upon this Subject between the Bar and the Court" (of Session) " with respect 
 
 as a matter of course in 1670 — the titles, estates, family papers, It will be remembered that there was no doubt in 1670 as to 
 
 and the whole Glencairn and Kilmaurs representation, passing the effect of the Glencairn patent 1488, which had been finally 
 
 over the head of his niece, his elder brother's daughter and established as valid by the Decreet (still ruling at the present 
 
 heir-at-law, Margaret Countess of Lauderdale, to vest in him- day) of 1648, and which Decreet had been recently and tri- 
 
 self, as 'heir' of Alexander Lord Kilmaurs, created Earl of umphantly referred to in Parliament only three years before 
 
 Glencairn in 1488. No one ever questioned this at the time, viz. in 1667, as shewn mpra, pp. li, 486. ' 
 
 whether in Parliament, before the Courts of Law, or otherwise, — * The two first Letters of this correspondence were acci- 
 
 the King, the Court of Session, Parliament, the family, and the dentally not put in, and consequently do not appear in the 
 
 country, all acquiesced and recognised him as Earl of Glencairn ' Minutes of Evidence.' The material passages are quoted in 
 
 — and nothing, it is conceived, can more forcibly illustrate the the Claimant's Supplemental Case, p. 55. 
 Claimant's argument as to the limitation of the Dukedom of Montrose.i^^) 
 
 C) The argument in the Claimant's case is even still stronger rigidly entailed on heirs male whomsoever, in absolute exclusion 
 and a /oriiori, inasmuch as the Crawford estates stood in 1488 of females, forever. 
 
496 APPENDIX. 
 
 " to the Riffht of appealing to Parliament, and which Right was never given up, and that the existing 
 " Appeal to the Hoase of Lords arose out of the old Right of Protest for Remeid of Law to Parlia- 
 " ment." — Minutes of Evidence, p. 76. 
 For an inquiry into the jurisdiction of the Court of Session in civil causes (including peerages), the origin of 
 the practice of appeals, and the intervention of the House of Lords in Scottish cases, see the Appendix 
 to the Address, supra, pp. wi sqq. 
 
 " Vigesimo tertio Februarij 1674, being Munday, 
 
 His Majestie's Commissioner present. 
 
 Sederunt 
 
 Comes de Rothes, Cancellarius ; Staire, Preses; Carintoun, Clericus Registri ; Collingtoune, Strathuird, Nevay ; 
 Dirletoun, Advoeatus ; Newbyth, Castellhill, Gosfuird ; Hattoun, Thesaurarius Deputatus ; Pitreichie, 
 Prestoun, et Comes de AthoU. 
 
 The Duke of Lauderdale, His Majestie's High Commissioner, did produce a letter from the King's Majestic 
 direct to His Grace the Lord Chancellor, the President and Remanent Senators of the Colledge of Justice, in 
 answer to a letter formerlie written by the Lords of Session to His Majestie upon the seventh of this month ; which 
 letter being read in audience of the whole Lords, they ordained both the letters to bee recordit in their Bookes of 
 Sederunt. 
 
 Followes the tenor of the Lordis thair letter to the King's Majestie : — 
 ' May it please your Sacred Majestie,^ — 
 
 ' Our dutie obligeth ws to give your Majestie the trouble of this addresse in ane affaire wherin, we humbly 
 ' conceave, your Majestie's authoritie and honour, and the authoritie and reputation of your Colledge of Justice, 
 ' alsweill as the interest and securitie of your Majestie's subjects of this kingdome, are not a little concerned. 
 
 ' There being a suite of law depending before ws at the instance of the Earle of Dumfermling against the 
 ' Earle of Callendar and the Lord Almond, after the process had been enrolled and called in the ordinarie way by 
 ' one of our number in the Utter Hous, and the dispute (as is usual in cases of importance) by him reported to ws, 
 ' we did, for our further information and cleiring, allow the parties to be heard presently in presence of ws all upon 
 ' some points of the debate witliout enrolling in the Roll of the Inner House ; and accordingly, the cause being 
 ' called before ws in the Inner House, a delay for some dayes was desyred by the Defenders' Advocates upon the 
 ' account of the Earle of Callendaris absence, which was granted ; and the process being again called the Defenders' 
 ' Advocates craved another delay to a certain day, at which tyme they declared they wold answer peremptorie. 
 ' But, that day being corned, a dilator defence was only proponed, foundit on the late Act of Parliament concerning 
 ' the maner of calling and discussing of processes, the Defenders' Advocates alledging that they were not obliged 
 ' to answer until the process should be enrolled, according to the date of the ordinance appointing the same to be 
 ' heard in our presence, and called according to its course. Which defence we repelled, in respect the ordinance 
 ' was for a present hearing the cause in our presence, and in regard the Defenders' Advocates had undertaken to 
 ' debate peremptorilie. And we declared that if the Defenders' Advocates would proceed to the cause, they should 
 ' be heard presentlie, which if they refused to doe, wee wold proceed in advising the points reported by the Ordinarie 
 ' not formerlie discussed. At pronouncing of which interlocutor the Lord Almond did present and give in under 
 ' his hand two papers containing Appeals from us to the Parliament, which are herewith transmitted to your 
 ' Majestie. 
 
 ' This Appeal heing ane act without any former precedent, it was considered which [sic] was incumbent on us to 
 ' doe in this case, and finding that the lawes and Acts of Parliament are verie express and cleare as to the import and 
 ' extent of our jurisdiction and power, in so far as by the 63 Act of the 14 Parliament of King James the Second, 
 ' relating to the power which the Lords of Session had before the institution of the College of Justice, it is statute 
 ' that all causes pertaining to the knowledge of the saids Lords should be utterly decydit and determined by them without any 
 ' remeid of appellation to the King or Parliament ; and by the 39th Act of the 5th Parliament of King James the 
 ' Fifth, it is declared that the processes, sentences, and decreets of the Senators of the Colledge of Justice shall have the 
 ' same strength, force, and effect as the decreets of the Lords of Session had formerly, whereby it appears that the sentences 
 ' of the College of Justice are ultimate decisions from which there can be no appeal ; and the commission granted by your 
 ' Majestie to us runs in the same strain ; and by the 68 Act of the said Parliament of King James the fyfth, 
 ' entituled " The King's good mynd anent the Lords of the Session," His Majestie declares that he will authorize 
 ' maintaine, and defend the saids Lords in their persones and estates, and declares that, because the Lords of Session 
 ' representis His Majestie's persone, and beares his authoritie in doing of justice, he shall have them in special 
 ' honour and maintenance, and will give no credit to any man that will murmure against them or any of them by 
 ' doing wrong,— lykas by many posterior Acts of Parliament the power and privileges of this court are ratified, 
 ' and the Lords of Session declared to be the supreme Judges under your Majestie in all civil causes : — Upon considera- 
 ' tion whereof, and that there is nothing remaining upon record which may make it appear that this Appeale had 
 ' any former precedent since the institution of the College of Justice, and in respect of the dangerous consequences 
 
APPENDIX. f 497 
 
 ' which wold ensue if litigious persones, not acquiescing in the sentences of this judicatiorie as ultimate decisions, 
 ' should offer such Appeales, whereby our Decreets would be rendered altogether ineffectual and elusorie ; and in 
 ' regard of many other inconveniences, which wee have represented to the Duke of Lauderdale, your Commissioner, 
 ' and whereof he will give your Majestie a full accompt, we did unanimouslie reject the Appeale and declare wee 
 ' wold proceed to advise the cause. Which being intimate to the Lord Almond and his Advocates, hee declared 
 ' that he adheared to his Appeale and discharged his Advocate to plead. 
 
 ' This accompt of that Appeale, and our proceedings in relation thereto, wee did communicate to your Com- 
 ' missioner, and now wee humbly offer the same to your Majestie, that, after consideration of the import and 
 ' consequence of the matter, your Royal pleasure may be made known to us ; not doubting both that your Majestie 
 ' will take such course for vindicating the honor of this court as no person may offer to do the like hereafter ; and 
 ' what commands your Majestie will be pleased to lay upon us, or any other affair wherein your service may be 
 ' concerned, shall receive that due and thankful obedience from us which becomes your Majestie's most humble, 
 ' most faithful, and most obedient subjects and servants (sic subscribitur), 
 
 ' Rothes Cancell., Atholl, Ja. Daieymple, Peimeeose, Jo. Nlsbet, Ch. Mattland, Ja. Foulis, Rob. 
 ' Naiene, D. Nbvay, Jhone Baied, Jo. Lockhaet, Pet. Weddeebuene, Tho. Wallace, Ric. Mait- 
 
 ' LAND, RO. PeESTOUN.' 
 
 This letter is daitted, ' At Edinburgh, the seventh of ffebruary, 1674.' 
 
 Followes the tenor of His Majestie's Letter : — 
 ' Chaeles R. 
 
 ' Right trusty and right entirely beloved Cusine and Councellor, Right trusty and well-beloved Cousines 
 ' and Councellors, Right trusty and welbeloved Councellors, and Trusty and well beloved. We greet you weell. 
 ' Wee have receaved your Letter of the 7th of Februarie instant, concerning the two papers given in to you by the 
 ' Lord Almond, containing Appeales from you to the Parliament ; and, by what you write upon that subject, we are 
 ' fully convinced both of the illegality and of the dangerous and inconvenient consequences of such Appeales, as well in 
 ' regard to our authoritie and honour, as tfie authority and reputation of our CoUedge of Justice and the interest and securitie 
 ' of our subjects in tJiat our ancient hingdome. And therefore we cannot but have a great dislike of and displeasure 
 ' against such proceedings ; and we do assure you that we will, according to the example of our Royal predecessors, 
 ' maintaine you in all your privileges and in the reputation of your persons and sentences against all indignities, 
 ' reproaches, and appeales. And therefore we do require you to take exact tryal who were the contryvers of this 
 ' Appeale, in the strictest manner which is consistent with law ; to the end that we may receave a full accompt, and 
 ' then declare our farther pleasure. And so we bid you heartily farewell. Given at our Court at Whythall, the 
 ' 17 day of February, 167f , and of our raigne the 26th yeare. (Subscryved thus) By His Majestie's command, in 
 ' absence of the Duke of Lauderdale, 
 
 ' KlNCAEDINE.' 
 
 Lykas, in pursuance of His Majestie's commands in the above written Letter, a Missive was written to the 
 Lord Almond to attend the Lords upon Wednesday the twenty-fifth of this instant, and lykwise a summonds was 
 issued for his appearance the twenty-sixth of this instant, to hear and see tryal taken anent the said Appeale." 
 
 " Ultimo Fehrimrii, 1674. 
 The Duke of Laudeedale, His Majestie's High Commissionare, present. 
 
 Sederunt 
 Comes de Rothes, Caneellarius ; Stair, Preses ; Caringtoun, Clericus Registri ; Colintoun, Strathoord, Nevay ; 
 Dirletoun, Advocatus; Newbyth, Castilhill, Gosfuird ; Hatton, Thesaurarius Deputatus; Craigie, 
 Pittrichie, Prestoun, et Comes de Atholl, Privati Sigilli Gustos. 
 This day the letter underwritten is direct from the Lords to the King's Majestie, wherof the tenor 
 followes: — 
 ' May it please your most Sacred Majesty, 
 
 ' The many and constant testimonies of the Royall favour and protection which your Majesty hath been 
 ' pleased to vouchsafe to this Judicatorie of your Session, wherin wee have the honour to serve you, are so refreshing 
 ' to our spirits that wee can not forbear this occasion wherin wee may with all humility and thankfulnes present 
 ' the tender of our dutifull acknowledgements therof, and of the obligation therby lyeing on us that the faithfuU 
 ' discharge of our dutie in your Majestie's service may in some measure render us worthy of your royall favors. 
 ' Wee doe with the same dutie and gratitude acknowledge your Majestie's eminent grace and goodnes in your 
 ' resolution to maintaine us in our priviledges, and in the reputation of our persones and sentences against all 
 ' indignities, reproaches, and appealles, most graciously exprest in your letter of the 1 7th of this moneth, in answer 
 ' to ours of the 7th. And in persewance of your royall commands to us therin to take tryall who were the con- 
 
498 . APPENDIX. 
 
 ' tryvers of that Appeale given in to us be the Lord Almond, in the strictest maner consistent with law, wee thought 
 ' it just and fitt that the Lord Almond should be called to hear tryall taken in that affaire, and that the laweyers 
 ' who appeared in that cause should each of them for himself declare upon oath if he were contryver or advyser 
 ' of it. And accordingly the Lord Almond having appeared on Thursday last, he adhered to the Appeal), but 
 ' refused to depone if he had advyce in the contryvance therof. Therafter, the laweyers being called, two of them 
 ' freelie upon oath denyed any accession to it ; the other foure, after offering some pretences why they should not, 
 ' refused to give their oathes. The Court having taken to consideration what was offered be them, did unanimously 
 ' declare that, notwithstanding of ther pretences, they ought to give ther oathes. The laweyers being again called, 
 ' and our Interloquitor read unto them, they were accordingly requyred to be readie to give ther oathes the next 
 ' day. At which tyme being againe called, and at length heard why they should not declare upon oath, and the 
 ' Court finding that what they offered was for the most part but some inlargements of what they represented the 
 ' day befor, and contained nothing satisfactorie, did of new requyre them to declare upon oath, which they refused. 
 ' This being the true accompt of our proceedings, we doe, in obedience to your Majestie's commands, humbly offer 
 ' it to your Majesty, that your Majesty may take such farther course therin, as in your Eoyall Judgement shall be 
 ' thought fit. Wee have, for your Majestie's further information, sent a more particular and full accompt of this 
 ' affaire and of the grounds and reasons of our proceedings to the Earle of Kincardine, who, att your Majestie's 
 ' convenience, will acquaint your Majesty with it. And wee have presumed to entreat the Duke of Lawderdale, 
 ' your Majestie's Commissioner, be whose presence and countenance wee have been much assisted in this busines, 
 ' to convey this to your Majesty, with the deep sense wee have of your Royall Majesty's justice and goodnes, 
 ' which wee will be alwyse ready to witnes with the hazard of our lyves and fortunes, for the advancement of your 
 ' Majestie's authority and greatness, with that duty and chearfulnes becometh your Majestie's most humble, most 
 ' faitlifull, and most obedient subjects and servants (Sic subscribitur), Rothes, Atholl, Ja. Daleymple, A. Pbime- 
 ' ROSE, Jo. NisBET, Ch. Maitland, Ja. Foulis, Ro. NAmNE, D. Nevay, Jhon Baied, J. LocKAET, Pet. Weddeebuene, 
 ' Tho. "Wallace, R. Maitland, R. Peeston.' 
 
 Foil owes the postscript subjoined to the said letter : — 
 
 ' After this our letter was written, the Earle of Aboyn, being in the house attending our downsitting, did 
 ' immediately therafter give in the inclosed Appeale, which we look upon as a consequence of the former Appeall, 
 ' and is lyke to be a precedent for more heerafter if be your Majestie's authority the same be not prevented. But 
 ' as to what may coucerne this Appeale in particular, the Information sent to the Earle of Kincardine will give 
 ' your Majesty a more full accompt of it.' " 
 
 " Decimo Septimo Junij, 1674. 
 Sederunt 
 
 Comes de Rothes, Cancellarius ; Staire, preses ; Carintoun, Clericus Registri ; Collington, Strathuird, Nevay; 
 Dirletoun, Advocatus ; Newbyth, Castellhill, Gosfuird ; Hattoun, Thesaurarius deputatus ; Craigie, 
 Pitriechie, Prestoun, Forrett, Glendoig ; Comes de Atholl, Privati Sigilli Custos ; et Comes de 
 Argyle, et Comes de Kincardin. 
 
 This day the Lord Thesaurer depute did produce in presence of the saids Lords a Letter direct from the King's 
 Majestic to the Lord Chancellor, the Lord President, and Remanent Senators of the CoUedge of 
 Justice, whereof the tenor foUowes : — 
 
 ' Chahles R. 
 
 ' Right trusty and well beloved Cusings and Councellors, Right trusty and well beloved Councellors, and 
 ' Trusty and well beloved, wee greet you well. Wee receaved your letter of the 28th February last, with ane 
 ' account of those Appeals given in to you by the Lord Almond and Earl of Aboyne, but could not then returne 
 ' any answer, the Sessione being up. And now, upon full consideration of that whole affaire, wee find it Mis- 
 ' pensablie necessary for our service and the maintenance of our authority, and for the quiet and security of our subjects in 
 ' ther fortunes and estates, that the honour and authority of our Colhdge of Justice he inviolably preserved, and that ther be 
 ' ane entire confidence in and deference to all the decreets and sentences thereof. And, after the laudable example of our 
 ' Royall Progenitors, wee doe assure you that wee will constantly maintaine our authority exercised in that Court 
 ' against all incroachments, indignities, and reproaches that may be attempted against the same or against any of 
 ' the Lords of Session, whom wee shall always cause to be held in speciall honour as those who represent our 
 ' persone and bear our authority. And as we cannot but declare our dissatisfaction with and abhorrence of these 
 ' Appealls, so it is our express pleasure that speciall care be taken to prevent the like practices for the future ; 
 ' and to that effect, that you cause solemne intimation to be made to all Advocats, Clerks, Wryters, and others 
 ' who are members of or have the dependance upon the CoUedge of Justice, and others whom it may concerne, 
 ' that none of them presume to advyse, consult, propose, plead, speak, or suggest anytiiing that doth express or 
 ' import the charging of any of the decreets or sentences of the Lords of Session with unjustice, whether in the 
 ' terms of appeales, protestation, supplication, information, or any other manner of way, either publickly in the 
 
APPENDIX. 499 
 
 ' exercise of ther function or privatlie in ther ordinarie conversation with ther clients or others, xrnder the paine 
 ' of being excluded from exercing any office in or depending upon the CoUedge of Justice. And that all Advocats 
 ' to be admitted heerafter have the same declared to them as a part of the oath defideli a,nd obedience to the 
 ' Lords, which is accustomed to be given by Advocats at ther entrie. And wee are graciouslie pleased that you 
 ' proceed no further against those who gave in those late Appeales, nor against those Advocats who refused to 
 ' give ther oathes concerning their accession therto, provyding these Advocats doe solemnly disown those Appeales 
 ' and all other appeales and protestations which may any wayes import a charging of the sentences of the Lords or 
 ' their interloquitors with injustice ; and in case they refuse to disowne the same, wee peremptorily command you 
 ' to debarre them from the exercise of any part of ther function as Advocats in tyme coming. And wee doe 
 * authorize and strictly command yow to declare any member of the Colledge of Justice, or others who depend 
 ' thereupon, who shall not give obedience in the particulars above mentioned, incapable to exerce any Office in or 
 ' depending upon the Colledge of Justice. And for the better discovering contryvances, you are to receive no 
 ' supplications but such as are signed by ane Advocat. As also you are heerby requyred, if need be, to putt all 
 ' who depend upon the Colledge of Justice to give ther oathes as parties or witnesses for discovering the con- 
 ' tryvances. And in case of any others having no dependence upon the Colledge of Justice shall present anything 
 ' expressing or importing the charging of any of yowr sentences with unjustice in the termes aforesaid or any other 
 ' way, wee doe authorize and command yow that yow immediately secure ther persones if they be present, and if 
 ' they be absent that yow issue forth charges and all other execution against them for that effect. And that yow 
 ' give ane account thereof to us, that wee may signifie our further pleasure therein. For doeing of all which this 
 ' shall be yowr sufficient warrant. And so wee bid you farewell. Given at our Court at "Whythall the 19th day 
 ' of May, 1674, and of our raigne the 26th year. (Sic subscribitur) By His Majesty's Command, 
 
 ' Lauderdale.' 
 
 Efter reading of the forsaid letter, the Lords ordained the same to be recorded, and a letter of thanks to be 
 written to the King's Majestic, and that his Majestie's commands exprest in the said letter should receave present 
 obedience. Lykas in pursuance thereof, the Lords having called the whole Advocates in their presence imrae- 
 diatlie, His Majestie's pleasure was intimate to them by reading the letter in their audience. Therefter, the rest 
 of the Advocates being removed, Sir George Lockhart, Sir Johne Cunyng}Mme, and Mr. William Weir, who were 
 Advocates for the Lord Almond, and had refused to depone concerning their accession to the Appeales given in hy him, were 
 requyred to give obedience to that part of His Majestie's letter which concerned them, and were allowed the nixt day to 
 give their answere." 
 
 " Tertio Julii, 1674. 
 
 Sederunt 
 
 Stair, preses ; Carintoun, Clericus Registri ; Colintoun, Strathurde, Nevay ; Dirletoun, Advocatus ; Neubyth, 
 Castlehill, Gosfuird; Hattoun, Thesaurarius deputatus; Craigie, Pittrichie, Prestoun, Ferret, et 
 Glendoigh. 
 The Lords of Councill and Session, taking to their consideration that after the solemne intimation to the 
 whole Advocates in the House of His Majestie's letter of the nyneteenth of Maij last anent appealles and the 
 cariage of Advocats, that upon the twenty fourth of June last the Lords' sentence was intimat to Sir George 
 Lockhart Sir John Cuningham, and Mr. William Weir, debarring them from the exercise of any part of their function 
 as Advocates in time coming for not giving satisfaction in disowning Appealles as is requyred by his Majestie's Letter, the 
 Advocates aftermentioned did the said day, while the House was sitting, for the most part withdraw ; wherupon 
 the Lords did give warrand to the Massers to requyre every one of them to attend ther duty in the House as 
 Advocates, that justice might not be hindered by ther absence. Lykas, upon the twenty sixth of June, the Lords, 
 considering that notwithstanding of the forsaid intimation made by the Maissers be ther warrand, yet many of the 
 Advocates did continue wilfully to desert ther attendance on the House as Advocates ; therfor the Lords declared 
 that those Advocates, who, without a lawfuU excuse to be approven by the Lords, should be absent that day, the 
 day following, and upon Tuesday therafter att eleven a'clock in the forenoon, should be debarred from exercising 
 the office of Advocates in time coming; and ordained intimation to be made therof in the Gutter House by the 
 Ordinary, which was accordingly done. And in regard many of the Advocates did not give obedience, the Lords 
 upon the first of Jully instant did give warrand to the Maissers of new againe to requyre the Advocates who had 
 withdrawen to returne to their employment in the House, with Certification if they falyied the Lords wold appoint 
 ther names to be called in the Outer House this day at eleven a'clock in the forenoon, and apply the Certification 
 without further delay. And, intimation being accordingly made by the Maissers to the Advocates underwryttine, 
 personally or att their dwelling houses or chambers wher they use to reside and consult, and the Lords having 
 caused call publickly this day att eleven a'clock, the Advocates after named, viz. Mr. John Eleis, Mr. David 
 Dinmair James Browne, Mr. Patrick Smith, Mr. John Inglis, Mr. David Dewar, George Gibsone, Mr. Alexander 
 Andersone Mr. James Huntar, Mr. Eward Wright, Mr. John Lauder, Mr. Robert Deanes, Mr. Archibald Hope, 
 Mr. William Clark, Mr. William Bailzie, Mr. John Colvill, Sir Coline Campbell, Mr. William Moir, Mr. 
 Rohderick McKeinzie, Mr. John Bailyie, Sir John Harper, Mr. William Murray, Mr. William Hamiltone, 
 Mr. Alexander Spotiswood, Mr. John Kincaid, Mr. William Dundas, Mr. James Binning, Walter Pringle, Sir 
 
500 APPENDIX. 
 
 Eobert Sinclair, Mr. Thomas Lermonth, Mr. William Maxwell, Mr. William Monipenny, Mr. Eobert Stewart, 
 Mr. Hugh Wallace, Mr. George Benrierman, Mr. James Brisbane, Mr. Eobert Bennet, Mr. David Cuningham, 
 Mr. Alexander Campbell, Mr. James Falconer, Mr. James Grant, Mr. Eichard Duglas, Mr. George Dicksone, Mr. 
 Ehoderick M°Kenzie younger, Mr. Coline M'Kenzie, Mr. James Borthwick, Mr. Eobert Buchanan, — And in 
 regard none of them compeard to officiat as Advocates in the House, to the great detriment of his Majestie's 
 service and prejudice of the lieges : — Therfor the Lords did admitt the forsaid Certification, and doe declare that the 
 persones above named are debarred from exercising the office of Advocates in tyme coming." 
 
 " Quarto July 1674. 
 Sederunt 
 Comes de Eothes, Cancellarius ; Staire, preses ; Carintoun, Clericus Eegistri ; Collingtoun, Strathurd, Nevay ; 
 Dirletoun, Advocatus ; Newbyth, Castellhill, Gosfuird ; Hattoun, Thesaurarius deputatus ; Craigie, 
 Pitrechie, Prestoun, Forret, Glendoick ; Comes de AthoU, Privati Sigilli Gustos ; et Comes de 
 Kincardin. 
 The Letter underwryttine direct to the King's Majestie is ordained to be recorded, wherof the tennor 
 followes : — 
 ' May it please your sacred Majestie, 
 
 ' This Judicatory of the Session wherin your Majestie is pleased to make use of our service is so sensible of 
 ' the many renewed testimonies of your Eoyall bounty, favour, and protection bestowed on it, that wee must in all 
 ' humility beg leave to assure your Majestie that wee doe embrace the same as new and solemne obligations upon 
 ' us to improve every occasion wherby wee may witnes to the world our duty and loyalty to your Majestie, and 
 ' our faithfulness in your service ; but above all wee doe with humble duty and thankfulness acknowledge your 
 ' Majestie's extraordinary care and tenderness of the honour and authority of this Court, and your Eoyall resolu- 
 ' tions to maintain your Majestie's authority exercised therein against all incroachments, indignities, and reproaches 
 ' that may be attempted against the same or any of the Lords of Session, whom your Majestie willes to be honoured 
 ' as those who represent your Eoyall persone and bear your Eoyall authority, mth your Majestie's dissatisfaction 
 ' against these Appealles latly offered tlierein, and your Roy all care to prevent the like practices for the future. 
 
 ' Wee doe with the same duty and thankfulness acknowledge the signification of your Eoyall pleasure that 
 ' these places which shall heerafter vaik in this Court be supplied with men of integrity, able and qualified to 
 ' adniinistrat justice, and that wee should offer to your Majestie's consideration what tryall should be best and 
 ' fittest for cognoscing ther qualifications ; all which are more fully exprest in your Majestie's Eoyal Letters of 
 ' the 19th of May, which we have appointed to be recorded in our books, and have taken such course for prose- 
 ' cation of your Eoyall pleasure exprest therin as wee judged most suitable to our duty and obedience, and the 
 ' advancement of your Majestie's service, wherof wee have given a particular and full accompt to his Grace the 
 ' Duke of Lauderdale, your Majestie's Secretarie, to be offered to your Majesty. 
 
 ' And now upon the whole affaire wee most with sincerity acknowledge that wee are not able suiRciently 
 ' to expresse the sense wee have of your Majestie's royall favours ; but that we are resolved, through God's 
 ' assistance, to use our utmost endeavours that our diligence and faithfulness in the discharge of this trust wee 
 ' have from your Majestie may in some measure be answerable to so much grace and goodness ; and in every thing 
 ' els wherin your Majestie's honour or authority may be concerned our cariage shall witness the loyalty of our 
 ' hearts, and that it is our greatest ambition to deserve the title of your Majestie's most faithfull, most obedient, 
 ' and most humble subjects and servants. Datted at Edinburgh, the 4th of July, 1674. (Sic subscribitur) Rothes, 
 ' Cangell. ; Atholl, Kincabdine, Ja. Daleymple, Ch. Maitland, A. Pemeeosb, Jo. Nisbet, Ja. Foulis, Rot. 
 ' Najene, D. Nevay, Jhon Baikd, Jo. Lockhaet, Pet. Wedderbuene, Tho. Wallace, R. Maitland, R. Peestodw, 
 ' David Balfoue, Tho. Mueeay.' 
 
 The Letter underwryttine, direct to the Duke of Lauderdale, is also ordained to be recorded, wherof the 
 tennor followes : — 
 
 ' May it please your Grace, 
 
 ' Wee have made a return to His Majestie's two gracious letters ; the one concerning the tryall of Lords 
 ' of the Session at their entry, and the other concerning Appealles, in which we have signified to His Majestie 
 ' that wee have informed your Grace more fully concerning that affaire which now wee present to your Grace. 
 
 ' For the first, it is our opinion that heerafter, when any new Lords of Session shall be presented by his 
 ' Majestie for tryall of ther qualifications, they shall sitt three dayes besyde the Ordinary in the Gutter House, 
 ' and shall have inspection of such process as shall be caried to Interloquitor, and shall make report of the points 
 ' caried to Interloquitor in presence of the whole Lords. As also, for compleating their tryall, they shall sitt one 
 ' day in the Inner House, and after any dispute is brought to ane period and the Lords are to advyse the same in 
 ' ordour to the pronouncing ther Interloquitor, they shall resume the dispute and first give ther opinion theranent 
 ' in presence of the whole Lords. 
 
 ' The other Letter aneiit Appealles was presented as soon as the House was full and the Extraordinary 
 ' Lords present, and then the Advocats were called, and His Majestie's Letter read and obedience therto injoyned ; 
 ' and when all were removed except those concerned in these former Appealles, they being inquyred if they m ould 
 ' disowne these Appealles, they scrupled att the word disowne as importing a contradiction to the advyce they had 
 
APPENDIX. 501 
 
 ' given to ther clients and reflecting upon ther reputation ; but wee, judging ourselves obliged to see His Majestie's 
 ' letter receive due obedience in all the parts therof, and particularly in that which relates to those former 
 ' Appealles concerning which His Majestie's commands are so peremptory and express, and yet being desyrous 
 ' to gaine those gentlemen with clemency, we did prescryve a forme of words in which they should disown those 
 ' former Appealles, viz.. That they should not heerafter prosecute the Appealles which were given in be the 
 ' Earles of Callendar and Aboyne, nor be accessory to the lyke in tyme coming ; and did graunt them some dayes 
 ' to deliberat therupon, and to give ther positive answer under the Certification in His Majestie's Letter. After 
 ' which, they being upon Wednesday the 24th of June called for that effect, they were not only unfree to disowne 
 ' those former Appealles in the termes forsaides for the reasons insisted upon by them, but they did likewyse declare 
 ' themselves no lesse scrupulous at the rest of His Majestie's Letter, as rendering ther practise difficil in the 
 ' observance therof,— wherupon wee were necessitate to apply the Certificatione in His Majestie's Letter ; and so 
 ' they removed. And that same day many other Advocats who pretended the lyke difficulties did remove also, 
 ' leaving only behind them some eighteen or twenty Advocats who have still remained at their duty. The House 
 ' being so emptied of Advocats, wee caused make particular intimation to all who had withdrawn, that if they 
 ' did not returne to the House betwixt and Twesday now last by-past at eleven a'clock, they should be debarred 
 ' from re-entering therafter. And in regard the objections moved by those who withdrew had begotten some 
 ' scruples in the minds of those who remained, wee did, as a testimony of our kindness to them, declare unto them 
 ' the true meaning of his Majestie's Letter, to the effect they might goe chearfuUy about ther employment without 
 ' scruple or hesitation, which sence was exprest to them in these termes, viz., Wheras some Advocats seem to 
 ' apprehend that they, being strictly prohibit by his Majestie's Letter to expresse anything by word or wryte 
 ' that may import the charging of the Lords' sentences or Interloquitors with injustice, they may therby be 
 ' hindered to question the delyverance of one single Lord, being Ordinary in the Outer House, and that after the 
 ' pronouncing of any Interloquitor of the Lords, they may not desire the samine to be altered upon any consider- 
 ' ation which might still imply a charging of the said Interloquitor with injustice— these apprehensions are 
 ' groundless ; and wee did declare that the Advocats might still as formerly (if they were not satisfied with the 
 ' answer given by the Ordinary in the Outer House) crave the answer of the whole Lords, and if that were 
 ' refused, they might represent the same to the whole Lords by Bill or Supplication, and that they might, befor 
 ' extracting of any Interloquitor of the whole Lords, offer, either by pleading or petition, such considerations or 
 ' motives as they should thinke fit for altering the Interloquitor befor it were extracted, being done with due 
 ' respect, and in discreet terms. And wheras some Advocats doe apprehend that the Oath mentioned in His 
 ' Majestie's Letter may oblidge them to depone upon and discover the secrets of their clients or others, wee did 
 ' declare that his Majestie's Letter imports no such sence, for the oath relates only to appealles, or protestations, 
 ' or other papers charging the Lords' sentences with injustice, which, being acted and presented by such con- 
 ' tryvances as the authors therof can not easily be discovered, in that case only his Majestie's Letter allowes the 
 ' Oathes of Advocats and all others depending upon the Session to be taken for discovering such contryvances. 
 
 ' Upon Wednesday last wee fell upon consideration of the Advertisement 
 
 ' appointed to be given to those Advocats who have withdrawen, and what effect the samine had produced, and 
 ' fand that all had been advertised, but oifly two or three more had therupon re-entered, yet out of the great zeall 
 ' wee had to regain them with fairnesse, wee did delay the pronouncing of the Certification till Fryday last, and 
 ' in the mean tyme did of new ordaine a Maisser to give them a citation in wryte to returne to their duty upon 
 ' Fryday, with Certification. And last of all, wee having re-assumed the consideration of that affaire upon 
 ' Fryday last, and finding that all had been of new advertised, and yet few moe Advocates returned to their duty, 
 ' wee conceaved ourselves obliged to apply the forsaid Certification against all who have withdrawen ; a double 
 ' wherof wee have transmitted heer-inclosed to your Grace. 
 
 ' By all which wee hope wee have sufficiently evidenced how ready we are to condescend to and lay hold 
 * upon all just meanes, suitable to and consistent with the honour of this Judicatory, for regaining those gentlemen 
 ' to their station ; and concerning which wee doe humbly expect his Majestie's returne, wherby wee may know if 
 ' his Majestie be satisfied with and approve what wee have already done, with what further his Majestic shall 
 ' thinke fitt to requyre us to doe therin. And whatever commands his Majestie shall be graciously pleased to lay 
 ' upon us, they shall be chearfully gone about and receave due obedience from your Grace's humble servants.' — 
 Datted and subscryved as the other letter." 
 
 " Vigesimo prima July, 1674. 
 
 Sederunt 
 
 Comes de Eothes, Cancellarius ; Stair, preses ; Carintoun, Clericus Eegistri ; Colintoun, Strathord, Nevay ; 
 
 Dirletoun, Advocatus ; Newbyth, Castlehill, Gosfuird; Hattoun, Thesaurarius deputatus; Craigie, 
 
 Pittrichie, Prestoun, Forrett, Glendoigh ; Comes de Athole, Privati Sigilli Custos ; Comes de Argyle, 
 
 et Comes de Kincardin. 
 
 The Letter underwritten, directed from the King's Majestie to the saids Lords, being reade in their 
 
 presence, was ordained to be recorded, of which Letter the tenor followes : — 
 
 ' Chaeles R. 
 
 ' Right trusty and welbeloved Cousines and Councellors, Eight trusty and welbeloved Councellors, and 
 
 3 S 2 
 
502 APPENDIX. 
 
 ' Trusty and welbeloved, wee greet yow well. Wee have receaved your Letter of the 4th instant, and have con- 
 ' sidered your longer Letter to the Duke of Lauderdale, to which wee returne you this answer. Wee doe very 
 ' well approve the Eule you have offered for the tryall of such as shall be heerafter presented by us as ordinary 
 ' Lords of the Session ; and wee doe desyre you to enter it in your Books of Sederunt as the constant Eule 
 ' hereafter. 
 
 ' As to what have been done be yow concerning Appealles, wee doe not disapprove of the lenity yow have 
 ' used towards those who owned the first Appealles, which they having so peremptorily refused, wee doe very well 
 ' approve of your sentence against them. Wee doe also approve of your explanation of our letter, which you 
 ' offered for satisfieing such who dutifully remained in the exercise of ther calling ; and wee well approve your 
 ' sentence of the third instant against those who wilfully did continue obstinate in deserting ther charge, notwith- 
 ' standing the lenity you had used towards them. And because it is a contempt of our authority as well as of yours, 
 ' and that it looks too lyke a designe to have interrupted the administration of justice, wee doe requyre you to readmitt 
 ' none of those whom you have turned out untill first they shall manifest their repentance to your satisfaction, 
 ' and untill you make their names knowen to us. And because wee are informed those mutinous Advocates did 
 ' keep meetings, did enter into a combination and endeavour to make others enter into ther combination, wee doe 
 ' requyre you to examine who were the ringleaders in that combination, and if any of them have spoken or 
 ' written reproachfully of the Lords or of those Advocates who remaine in their duty, and to report their names 
 ' to us, to the end wee may take such a course as may lett the Kingdome see wee will not endure such indignities. 
 ' On the other hand you shall incourage those who dutifully remaine in the exercise of their calling, and you shall 
 ' assure them of our favour and of our protection, so that they shall not need to fear the threats of such who wold 
 ' divert them from their duty. Yow have faithfully discharged your trust at this tyme (for which wee returne 
 ' you our hearty thanks). And wee are confident you will continue in dew administration of justice to our good 
 ' subjects, and in punishing according to law such under your authority who shall presume to reproach yow or 
 ' endeavour to seduce the people by misrepresenting yow or your proceedings in obedience to our commands. 
 ' We shall not be wanting in protecting yow by our authority. And so wee bid you farewell. Given at our 
 ' Castell att Windsor, the 14th day of Jully, 1674, and of our raigne the 26th year. — (Sic subscribitur) By his 
 ' Majestie's command, 
 
 ' Lauderdale.' " 
 
 (28) Charter Try James IV., 7th Fehruwry 1507-8, in favour of Cuthbert Earl of Qlencairn, of the 
 lands of Hilton, which had been recognosced in consequence of alienation of the said lands 
 without the Boy al permission. Beferred to by the Lord Advocate (supra, p. 243) as if he 
 supposed it to be the cmistituting charter of the Earldom of Qlencairn {of which he considers 
 the " installation " to have taken place in 1503) ; and therefore printed here at fuB, length, in 
 order to show that it had nothing to do with the creation of the Earldom. — From the Great 
 Seal Begister. — (Beferred to supra, p. xxxviii.) 
 
 (No. CXXXVII.) * 
 
 " Jacobus, Dei gratia Rex Scotorum, Omnibus probis hominibus totius terre sue, clericis et laicis, salutem. 
 Sciatis nos dedisse, concessisse, et hac presenti cart& nostr^ confirmasse, dilecto consanguineo et consiliario nostro 
 CuTHBERTO CoMiTi DE Glencarne, Domino Kilmairis, totas et integras terras et baroniam de Hyltoun, cum tenen- 
 tibus, tenandriis, ac libere tenentium serviciis, earundem, jure patronatus, advocatione et donatione ecclesie de 
 Hiltoun, et suis pertinentibus, jacentibus infra Vicecomitatum nostrum de Berwic : — Quequidem terre et baronia, 
 cum tenentibus, tenandriis, libere tenentium serviciis, jure patronatus, advocatione et donatione dicte ecclesie, cum 
 suis pertinentibus, fuerunt Willidmi Cunynghame, filii et heredis apparentis dicti Cuthberti hereditarie, in feodo ; et 
 liberum tenementum earundem fuit ipsius Cuthberti ; et in manibus nostris recognite fuerunt ob alienationem earundem. 
 Et, lapsis anno et die post dictam recognitionem, prefatisque terris et baronia ad plegium nunc dimissis, dictoque 
 Cuthberto et ceteris omnibus interesse habentibus seu habere presumentibus ad instanciam nostram legitime citatis, 
 ad videndum et audiendum seipsos proprietatem et possessionem predictarum terrarum et baronie amisisse, et 
 easdem nobis ob prefatam alienationem, cum pertinentibus, decerni ; Decretum fuit et deliberatum per Consilij nostri 
 Bominos, quod dictus Cuthbertus Comes de Glencarne de ipsius proprio consensu, et ceteri omnes ad prefatas terras et 
 baroniam de Hiltoun, cum pertinentibus, interesse habentes, seu assumentes, suas proprietatem et possessionem earundem 
 amiserunt et easdem nobis pertinere et ad nostre libitum voluntatis disponendas fore infuturum, idem Domini decreverunt, 
 ex et pro eo quod prefate terre et baronia, cum pertinentibus, de nobis immediate per dictum Willielmum tente in capite, 
 absque consensu, licentid, vel confirmatione nostri aut predecessorum nostrorum, totaliter alienate fuerunt, prout in decreto 
 per prefatos Dominos pro nobis desuper promulgato plenius continetur : — Tenendas et habendas totas et integras 
 prefatas terras et baroniam de Hiltoun, cum tenentibus, tenandriis, libere tenentium serviciis earundem, una cum 
 jure patronatus, advocatione et donatione dicte ecclesie de Hiltoun, et suis pertinentibus, dicta Cuthberto Comiti de 
 Glencarne et heredibus suis masoulis in tallia secundum tenorem carte nostre tailie dicta Willielma Cunynghame et heredibus 
 suis masoulis sub nostro magna sigillo prius desuper confecte,* de nobis et successoribus nostris in feodo et hereditate, 
 imperpetuum, per omnes rectas metas suas, antiquas et divisas, prout jacent in longitudine et latitudine, in boscis, 
 planis, moris, maresiis, viis, semitis, aquis, stagnis, rivolis, pratis, pascuis et pasturis, molendinis, multuris et eoriim 
 
 * Evidently the Eoyal Charter of entail, 1st June 1498, of Finlayston, Kilmaronoc, and Hilton, noticed by Lord Loughborough 
 in his Speech, supra, p. 494. 
 
APPENDIX. 503 
 
 sequelis, aucupationibus, venationibus, piscationibus, petariis, turbarils, carbonariis, lapicidiis, lapide et calce, fabri- 
 libus, brasinis, brueriis et genistis, cum curiis et earum exitibus, herezeldis, bludewitis, et merchetis mulierum, 
 cum furcS, foss^, sok, sak, tholl, theme, infangtheif, outfangtheif, pitt et galhouss, etc. cum omnibus aliis et singulis 
 libertatibus, commoditatibus, proficuis, et asiamentis, ac justis suis pertinentiis quibuscunque, tarn non nominatis 
 quam nominatis, tam subtus terrS, quam supra terram, procul et prope, ad predictas terras et baroniam adtenentibus, 
 tenandriis, libera tenentium serviciis earundem, una cum jure patronatus, advocatione et donatione ecclesie predicte, 
 cum suis pertinentibus, spectantibus seu juste spectare valentibus quomodolibet in futurum, libere, quiete, plenarie, 
 integre, honorifice, bene et in pace, sine aliqua revocatione seu contradictione aut obstaculo aliquali : — Reddendo 
 inde annuatim dictus Cuthbertus et heredes sui masculi nobis et successoribus nostris unum par calcarium deaura- 
 torum, vel pro eis summam sex solidorum octo denariorum usualis monete Regni nostri, annuatim, nomine albe 
 firme, tantum. Dedimus insuper et concessimus, et hie presenti cartS, nostri damns et concedimus, pro nobis et 
 successoribus nostris, nostrum plenariuin consensum et assensum, ac lieenciara specialem dicto Cuthberto Comiti de 
 Grlencarne ad alienandas prefatas terras et baroniam, in toto vel in parte, tenentibus qui easdem prius possedebant et 
 tenebant de ipso Cuthberto et prefato Willielmo ejus filio, et ad infeodandum ipsos tenentes et heredes suos in 
 eisdem per cartam et sasinam hereditarie, tenendas de dicto Cuthberto et heredibus suis simili modo et adeo libere 
 sicut prefatas terras de dicto Cuthberto vel "Willielmo ejus filio eorumve predecessoribus ante dictam recognitionem 
 liberius tenuerunt. Volumus etiam et concedimus pro nobis et successoribus nostris, quod alienationes, carte, et 
 infeodationes que per dictum Cuthbertum facte fuerint prefatis suis tenentibus de terris et baroniS, antedictis, in toto 
 vel in parte nulla erunt causa recognitionis vel forisfacture earundem nee dampnum aliqua [sic] vel prejudicium 
 dicto Cuthberto nee heredibus suis, nee persone vel personis ejus tenentibus qui per ipsum in prefatis terris infeodati 
 fuerint, nee eorum heredibus in pacific^ possessione earundem in futurum pro perpetuo, Et in majorem ipsorum 
 securitatem, approbavimus, ratificavimus, et confirmavimus, et hie presenti cart^ nostra approbamus, ratificamus, et 
 pro nobis et successoribus, nunc prout ex tunc et e converso, pro perpetuo confirmaraus, cartas, donationes, alienationes, 
 et infeodationes, per dictum Cuthbertum prefatis personis ejus tenentibus et heredibus suis de dictis terris et barjjBia, 
 in toto vel in parte, cum pertinentibus, ip omnibus suis punctis, articulis, modis, circumstanciis, veluti prefate carte 
 specialiter expressate et inserte fuissent in cartS, nostra dicto Cuthberto nunc desuper confecta, sine aliquo impedi- 
 mento, revocatione, seu contradictione nostri aut successorum nostrorum quorumcumque, quovismodo inde faciendS 
 in futurum. In cujus rei testimonium presenti carte nostre magnum sigillum nostrum apponi precipimus. Tes- 
 tibus ut in Decima quarta Carta precedente. Apud Edinburgh, septimo die mensis Februarij, anno Donjini 
 mUlesimo quingentesimo septimo, et regni nostri vicesimo." 
 
 (29) Charter h/ James IV., 24<A July 1511, m favour of Cutlibert Earl of Olencairn, granting to 
 him the entire lands of the " Comitatus " and Barony of Olencairn, which had been recog- 
 nosced in consequence of undue alienation without the royal permission, and which the Charter 
 proceeds to unite and erect into a free " Comitatus " and Barony, to he styled hereafter the 
 Comitatus and Barony of Olencairn. This Charter proves the previous existence of the Earl- 
 dom. — From ihe Oreat Seal Register. — (Referred to supra, p. xxxviii.) 
 
 (No. CXXXVIII.) 
 
 " Carta Cuthberti Comitis de Glencarne. 
 
 " Jacobus, Dei gratis Rex Scotorum, Omnibus probis hominibus totius terre sue, clericis et laicis, 
 salutem. Sciatis nos dedisse, concessisse, et hac presenti carta nostra confirmasse, dilecto consanguineo nostro 
 Cuthberto Comiti de Grlencarne, et Mariote Douglace, ejus sponse, in vitali redditu, et dilecto nostro Willielmo 
 Cunynghaim, filio et heredi apparenti dictorum Cuthberti et Mariote, in feodo et hereditate, omnes et singulas 
 terras Comitatus etBaronie de Glencarne, viz. in proprietate, terras de Auchineane, Lochquhir, Darnangill, 
 Manquhirnane, Kirkcubre, Uver Glencorse, duas mercatas terrarum de Cragnestoun, Powrane, Courait, Mynnes- 
 grill; et in tenandriis, terras de Glenneslane, Soundenell, Bardannoch, Creichane, Stronchilloch, Drimloch, 
 Dalmacurane, Glen, Jame, Dalquhot, Collegawpoch, Trorarane, Manuulloch, Cormyligane, Marganyd, Cor- 
 rochdow, Blaroch, Benbowy, Stronbay, Uvercorrochdowis, Nethercorrochdowis, Craggannoch, Cadiltath, Neise, 
 Brigand, Stronemelygane, Awpyn, Merkmanny, Clochquhannoch, Kirkconnell, Croglingmask, Queatstoune, 
 Lawn, Stanehous, Thristanink, Margmalloch, Tanelagoch, Margwastane, et Margragoch,— cum suis pertinentiis, 
 tenentibus, tenandriis, partibus, pendieulis, le owtsettis, libere tenentium servitiis, cum advocatioiiibus at dona- 
 tionibus ecclesiarum earundem : — Quequidem teeke Comitatus et bakonie de Glencarne, tam in proprietate 
 quam in tenandria, cum suis tenentibus, tenandriis, liberetenentium servitiis, advocationibus et donationibus 
 ecclesiarum earundem, fuerunt dieti Willielmi prius hereditarie in feodo, et dictorum Cuthberti et Mariote ejus sponse in 
 libera tenemento ; et in manibus nostris Recognite fuerunt oh alienationem majoris partis earundem per ipsos et eorum 
 predecessores absque consensu, lioentid, aut confirmatione nostri aut predeoessorum nostrorum desuper obtentis ; et postea 
 per Bominos nostri Consilii decretum extitit et deliberatum quod dicti Willielmus Cuthbertus et Mariota, ac omnes alii 
 interesse habentes seu pretendentes ad hujusmodi terras, tenentes, tenandrias, cum advocationibus et donationibus eccle- 
 siarum seu ad aliquam partem earundem cum suis pertinentiis, suam proprietatem et possessionem hujusmodi terrarum, 
 cum suis pertinentiis suprascriptis, amiserdnt et forisfecerunt ; et omnes et singule hujusmodi terre, cum 
 suis pertinentiis, pendieulis, le owtsettis et tenandriis, nobis adjudicate fuerunt, nobiscumet successoribus nostris 
 in proprietate permansure et ad nostre libitum voluntatis disponende futuris temporibus : — Et quasquidem terras dictorum 
 Comitatus et Babonie de Glencarne, tam in proprietate quam in tenandrid, cum advocationibus et dona- 
 
504 APPENDIX. 
 
 tionibus ecclesiarum, ut prernittitur, pro bono gratuitoque servicio nobis et successoribus nostris per dietos 
 Cuthbertum et Willielmuni ac heredes suos inipenso et impendendo, univimus, annexivimus, inoorporavimus, 
 creamnus, et ereximus, et hdc presanti cartd nostrd unirmis, annexamus, incorporamus, creamus, et erigimus in- 
 liheros Comitatum et Baroniam, omnibus futuris temporibus Comitatum et Baromam de Glencarne nuncupandos; 
 ac villain et mansionem in terris de Darnangill suprascriptis, prope ecclesiam, de Glencarne, esse 
 principale messuagium ejusdem Comitatus et Baronie ; et quod sasine earundem, omnibus futuris temporibus 
 capiendo apud dictum capitale messuagium, sufficient et stabunt pro omnibus Comitatu et Baronia predictis, 
 et extendent ad quamlibet partem earundem, absque aliqua alia particulari sasinS, super hujusmodi 
 Comitatu et Baronia, seu aliqua parte earundem, in proprietate seu tenandria, aliquibus temporibus affuturis 
 capienda. Ac eciam pro nobis et successoribus nostris dedimus, concessimus, et confirmavimus, et hkc. presenti 
 cart^ nostra damns, concedimus, et confirmamus, dicto Cuthberto et Mariote ejus sponse, pro toto tempore vite 
 ipsorum, prefatoque Willielmo et heredibus suis pro perpetuo, omne jus, juris clameum, titulum, interesse peti- 
 torium seu possessorium, que vel quam predecessores nostri, nos, aut nostri successores habuerunt, habemus, seu 
 habere poterimus, aut poterint, in, seu ad dietos Comitatum et Baroniam, seu aliquam partem earundem, pro- 
 prietatem seu tenandriam, advocaciones seu donaciones ecclesiarum, vel ad firmas, proficua, et devorias earundem 
 ratione forisfacture, recognitionis, alienationis majoris partis eschaete, resign ationis, seu ratione nostre proprietatis 
 nonintroitus heredum, aut alias quovismodo ; cum suplemento omnium defectuum pro qudcunque causS preterit^ 
 usque in diem date presentium. Ac quiete clamavimus, exoneravimus et renunciamus [sic] et hac presenti cartft 
 nostrft quieteclamamus, exoneramus, et renunciamus, pro nobis et successoribus nostris, dictis Cuthberto, Mariote 
 ejus sponse, Willielmo, et heredibus suis, omnibus juri, actione, clanieo, et lite juris que nos aut successores nostri 
 habemus, seu habere poterimus, dictis Comitatui et Baronie, proprietati seu tenandrie, aut alicui parti earundem, 
 ratione recognitionis, forisfacture, eschaete, nonintroitus, aut aliarum causarum quarum inceptio est transacta, 
 promittendo, ex nostra certa scientifi et proprio motu, pro nobis et successoribus nostris, litem desuper minime 
 movere in futurum : — Tenendas et habendas omnes et singulas dictas terras predictorum Comitatus et Baronie de 
 Glencarne, viz. in proprietate, terras de Auchineane, Lochquhir, Darnangill, Manquhirnane, Kirkcubre, Uver 
 Glencorse, Nether Glencorse, duas mercatas terrarum de Cragnestoun, Powrane, Courait, Mynnisgrill ; et in 
 tenandriis, terras de Glenneslane, Soundenell, Scalistoun, Bardannoch, Creichane, Stronchilloch, Drumloch, 
 Dalmacurane, Glen, Jame, Dalquhot, Collegawpoch, Trorarane, Mannulloch, Cormyligane, Mergansyd, Cor- 
 rochdow, Blaroch, Benbowy, Stronbay, Uvercorrochdovt'is, Nethecorrochdowis, Craggannoch, Cadiltach, 
 Neise, Brigend, Stronemyligane, Awpyn, Clochquhannoch, Kirkconnell, Croglingmag, Queatistoun, Lawn, 
 Stanehouse, Thristenink, Margmalloch, Tanelagoch, Mergwastane, et Mergragoch, cum suis pertinentiis, tenen- 
 tibus, tenandriis, partibus, pendiculis, le owtsettis, liberetenentium serviciis, cum advocationibus et donationibus 
 ecclesiarum earundem, nunc de novo unitas, annexatas, incorporatas, creatas, et erectas et [sic — lege j'n] Comitatum 
 et Baroniam nuncupates Comitatum et Baroniam de Glencarne, et dictam villam et mansionem terrarum de 
 Darnangill esse principale messuagium earundem, ut prernittitur, dictis Cuthberto et Mariote ejus sponsa ac 
 eorum alteri diucius viventi, in vitali redditu, et dicto "Willielmo ac heredibus suis in feodo et hereditate imper- 
 petuum, per omnes rectas metas suas, antiquas et divisas, prout jacent in longitudine et latitudine, in boscis planis 
 moris, marresiis, viis, semitis, aquis, stagnis, rivolis, pratis, pascuis et pasturis, molendinis, multuris, et eorum 
 sequelis, aucupationibus, venationibus, piscationibus, petariis, turbariis, carbonariis, lapicidiis, lapide et calce 
 fabrilibus, brasinis, brueriis, et genestis, cum curiis et earum exitibus, herezeldis, bludewitis, et merchetis mulierum 
 cum feodi forisfactura, cum furci, fossa, sok, sak, thole, theme, infangtheif, outfangtheiff, pitt et gallons cum 
 liberi forestaria ubi silve et arbores crescunt, cum vert et venysoun, et amerciamento earundem le^ibus forestarum 
 concordanti, et bondagiis ; ac cum omnibus aliis et singulis libertatibus, commoditatibus, et asiamentis ac iustis 
 suis pertinentiis quibuscunque, tam non nominatis quam nominatis, tam subtus terra quam supra terram procul et 
 prope, ad predictos Comitatum, Baroniam, et terras, cum tenentibus, tenandriis, liberetenentium servitiis advoca- 
 tionibus et donationibus ecclesiarum earundem, et suis pertinentiis, spectantibus seu juste spectare valentibus 
 quomodolibet in futurum, libere, quiete, plenarie, integre, honorifice, bene et in pace, absque aliquo obstaculo 
 questione, contradictione, seu revocatione quacunque : — Reddendo inde annuatim dicti Cuthbertus et Mariota 
 durante ipsorum vita, et post eorum decessus dictus Willielmus et heredes sui, nobis et successoribus nostris unum par 
 calcarium deauratorum ad festum Penthecostes, nomine albe firme, apud dictum principale messuagium si petatur 
 tantum, pro omnibus aliis serviciis, exactionibus, questionibus, seu demandis, que de dictis Comitatu Baronia 
 terris, tenentibus, tenandriis, liberetenentium serviciis, advocacionibus et donationibus ecclesiarum earundem et 
 suis pertinentiis, per quoscuuque juste exigi poterint quomodolibet vel requiri. Insuper dedimus, concessimus et 
 hac presenti carta nostra damus et concedimus, plenariam licentiam, consensum, et assensimi eidem Willielmo cum 
 consensu et assensu dicti Cuthberti sui patris, ad infeodandum omnes suos liberetenentes dictoruni Comitatus et 
 Baronie, qui de ipsis seu de ipsorum aliquo ante hujusmodi forisfacturam tenuerunt, in suis tenandriis adeo libere 
 et simili modo sicut tenuerunt die date hujusmodi forisfacture, salvis et reservatis dictis Cuthberto et Mariote et 
 dicto Willielmo et heredibus suis, similibus juribus, privilegiis, et devoriis dictarum tenandriarum et tenentium 
 sicut ante hujusmodi forisfacturam tenuerunt ; quasquidem infeodationes per dietos Cuthbertum et Willielmum 
 dictis suis tenentibus dictorum Comitatus et Baronie faciendas, pro nobis et successoribus nostris nunc prout 
 extunc et e converso, Eatiiicamus, approbamus, et pro perpetuo confirmamus ; et quod hujusmodi infeodationes 
 nullum dampnum, prejudicium, seu periculum recognicionis seu forisfacture quovismodo erunt, sed ita sufficientes 
 sicut sub nostro magno sigillo in debita forma confirmate extiterant. In cujus rei testimonium presenti 
 carte nostre magnum sigillum nostrum apponi precepimus. Testibus ut in Decimft cartft precedents Apud 
 Edinburgh, vicesimo quarto die mensis Julij, anno Domini millesimo quingentesimo undecimo, et Regni nostri vice- 
 sirao quarto." 
 
APPENDIX. 505 
 
 (30) Proof, from the ' Acta Dominorim, Concilii,' that Hugh fibst Ea/rl of Eglintcm subscribed 
 himself " Erie of Mungumby," or Montgomery, (as his just title,) in 1516, additimally 
 proving that the designation " Oomes Mungumry " im. the Sederunt 25th March 1503 — the 
 basis and corner-stone of Eglinton's claim to precedency, and which was fully recognized as a 
 valid and authentic evident in 1606 and 1648 — was not incorrect, as maintained by the oppo- 
 nents of this claim, — the Claimant having elsewhere shown* that the titles " Earl of Montgo- 
 " mery " and " Earl of Eglinton " were used continuously cmd indifferently by the family down 
 to a late period, and that, as the original patent is not preserved and was never recorded, it 
 may be doubtful whether ' Eglinton ' or ' Montgomery ' was the original title.— From the Act 
 and Decreet Register of the Supreme Oivil Court* — Adduced in the Addenda to the S. Case, 
 p. 214. — (Referred to supra, p. lix.) 
 
 (No. CXXXIX.) t^ 
 
 " xii Aprilis. * 
 " Domino Gubernatorb presente," — i. e. John Duke of Albany, Regent 
 "Sederunt Archiepiscopus Sancti Andrea, Legatus, cum potestate, &e., Cancellarius ; Comitos de Levinax, 
 Murray, Glencam, Eglintoun, Rothess, Prior Sancti Andree, Abbates Jedburgh, Culross, Hay de 
 Zester, Patricius Dominui! Lindesay, Ninianus Dominus Ross, Willielmus Dominus Simple, Clericus 
 Registri, Willielmus Ogilvy, M. Patricius Covintre, M. Gavinus Dunbar, M. Jacobus Wischart. 
 
 * * 1= * * 
 
 " xij° Aprilis, anno &c. v" xvj'°, ut supra. 
 
 " In presens of the Lordis of Consell comperit William Lord Simple on that ane part, and Dame Margret 
 Crechtoun Lady Simple, the relict of umquhile Johnne Lord Simple, fader to the said William, on that uthir 
 part, and gaif in this appunctuament and contract underwrittin, and desyrit the sammyn to be put in form of Act, 
 and to have the strenth and effect of the Decrete of the saidis Lordis in tyme cuming, and that our Soverane 
 Lordis Lettres be direct to command and charge, compell and distrenze baith the saidis pertiis for the fulfilling 
 of the said appunctuament. And baith the saidis pertiis has sworn in jugement never to cum in the contrar therof. 
 Of the quhilk the tenor followis : — 
 
 " ' At Edinburgh, the xii day of Aprill, the zer (year) of God j" v° and xvi zeris, it is appunctit, con- 
 ' cordit, and finaly aggreit betuix ane noble and michtie Lord, Williame Lord Simple, on that ane part, and 
 ' Dame Margret Crechtoun Lady Simple, the relict of umquhile Jhone Lord Simple, fader to the said Williame, 
 ' on that uther part, anent the assedatioun and setting in tak of all hir landis pertening to hir be resoun offeree and 
 * conjunct fee, and utheris pointis eftir specifeit, in manor, forme, and effect as eftir followis, — that is to say, the 
 ' said Lady sail set and to male left, and be this present writt settis and to male lettis, to the said Lord and his 
 ' airis, all and haile hir landis of the park of Lochbunzhoo, Southanane, Knowglas, Claddanys, and Skeocht, 
 ' pertening to hir and [sic] liverent and conjunct fee, togidder with all utheris landis and tercis pertening to hir 
 ' be deceise of umquhile the said Jhone Lord Simple hir husband, with the houssis of Castell Simple, Southanane, 
 ' and all utheris houssis and bigynnis pertening to hir saidis conjunct feis, liferentis, or tercis ; with milnis, 
 ' multuris, woddis, yardis, medovvis, fischingis, and all utheris commoditeis and proffittis that scho micht have had 
 ' of the saidis landis ffor all the dais and termis of the said Ladyis life. The entre of the said Lord in and to 
 ' the tak and assedatioun of the saidis landis to be at the feist of Witsounday nixt, and immediatlie following the 
 ' date of thir presentis ; and to the saidis houssis of Simple and Southanane within tuenty dais nixt eftir the date 
 ' of thir presentis, — and fra thyne furth till endur for all the dais of hir lif, as said is. Ffor the quhilk cause the 
 ' said Lord and his airis sail content and pay to the said Lady or hir factoris, ilk zer during hir lifetyme, the sowm 
 ' of four hundreth pundis, gold and silver, gud and usuall money of Scotland, at tua usuall termis in the yer, 
 ' Mertimes and Witsounday, be equale portiounis, or within tuenty dais efter the said termis, to be deliverit 
 ' within the toun of Edinburgh, in the house and biging pertening to the airis of umquhile Schir Adam Crechtoun 
 ' of Eothvennis, knycht, now occupyit and inhabit be Thomas Hume, the sone of Schir Thomas Hume of Lang- 
 ' schaw, knycht, — the first payment of the said sowm to be at the feist of Mertimes nixt efter the entre of the said 
 ' Lord to the saidis landis ; ftbr the payment of the quhilk sowm, yerly and termlie, as said is, the said Lord and 
 ' his airis sail cans thir personis underwrittin to be actit in our Soverane Lordis Buikis of Consall, and in the 
 ' OflScialis or Commissaris of Lautheane, renunciand thar awn jurisdictioun and submittand thame in that cais to 
 ' the jurisdictioun of Lautheane, — that is to say. Noble Lordis, Hew Erie of Eglintoun, Niniane Lord Eoss of 
 ' Halkheid, Jhone Master of Montgomery, James Colvile of Uchiltre, and Robert Brus of Arth, togidder with 
 ' the said Williame Lord Simple, conjunctiie and severalie renunciand the benefite of divisioun doli malt auctentici 
 ' prouf de fidejussor ilms, and uther exceptioun of law, baith civile and canoun, grantit to souerteis or borrowis, bot 
 ' sua that the foirnemit personis, and ilk ane of thaim conjunctiie and severalie, be actit as principale dettouris 
 ' for payment of the said sowm at termis forsaid, sua that it sail be lefull to the said Lady or hir factouris to 
 ' curse or poynd the forsaid personis, or ony ane of thame, for payment of the forsaid sowm, without ony uther 
 ' process or ordour of law ; and sa mony of the forenemmit souerteis and dettouris as is within age, that thai be 
 ' sworn nocht to cum in the contrar of this band and punctis contenit in the samyn at thar perfit age, nor desir 
 ' restitutioun therof, nor allege na uther exceptioun nor privilege grantit to thame beand of less age of the law, 
 
 * The certified copy of this document having been accidentally mislaid, it -was not given in evidence, and consequently is not 
 printed in the ' Minutes.' 
 
506 
 
 APPENDIX. 
 
 ' bot thai, curaand to thar perfit age, to ratify and appreif the samyn. And gif it sail happin ony of the forsaidis 
 ' personis to deceis befor the said Lady, or to be insufficient ony way, the said Lord sail in that caise cause utheris 
 ' of als greit leving and als sufficient to be actit in thar steid ; and that it sail nocht be lefull to the said Lord nor 
 ' his airis, nor nane of the fornemit personis, agains the payment of the said sowm, to propone recompensatioun 
 'nor nane uther exceptioun, peremptour nor dilatour, except payment or remissioun alanerley (solely), nor 
 ' desir the saidis actis to be retretit for na causis bigane nor to cum, bot that the said sowm be payt till hir 
 ' yerlie and termlie, as said is, during hir lifetyme, but (without) ony play, stop, or impediment ; nor that na 
 ' sowmis optenit or to be optenit be the said Lord or ony uther personnis be allowit in payment of the said sowm 
 ' to be gevin to hir, sche findand sufficient caussioun to be responsall to all creditouris quhilkis sail happin to 
 ' optene ony sowmes apon hir. And that the said Lady sail haif the Witsounday termis mail nixt efter the date of 
 
 ., . , „. , . ' thir presentis of all her landis, liverentis, conjunct feis, and tercis, togidder with all 
 
 ' Mem. The said Lord Simple is \ ' ...,.,,,. 
 
 • content to tak the said Lady ackit ' utheris dewiteis and proffittis pertening to the saidis landis, quhill the said term of 
 
 ' raussioun to be responsall for the ' Witsounday nixt to cum inclusive. And the said Lord sail tak in favouris the 
 
 ' redding of all the creditouris that '' 
 
 ' sail happin to optene ony sowmes ' Lady Beghawis barnis, the Curat of Lochinzho, and all uther tenentis and servandis 
 
 ' apon hir. i quhilkis has done for the said Lady, and that he has takyn displesour atour for hir 
 
 ' cause, and thai that has takyn ony land at hir, that thai be nocht removit therfra, thai doand therfor as utheris 
 
 ' dois for siclik, and that Alexander Broun be restorit to his paroch-clerkschip of the Glassfurd, and to bruk the 
 
 ' samyn peceably in tym to cum, without interruptioun, ay and quhill he be put lauchfuUy therfra, and that he 
 
 ' have met, drink, and housing, on the said Alexanderis resonable expensis, in ony place of the saidis Lordis 
 
 ' landis maist ewest (nearest), for his said office and service of clerkschip. And that the said Lord sail cause the 
 
 ' said Lady tenentis, servandis, and all utheris awand in ony malez, fermes, or ony utheris dewiteis of termes 
 
 ' bigane, unto the terme of Witsonday nixt to cum inclusive, to mak compt therof and to pay the samyn betuix 
 
 ' this and the fest of Witsonday nixt to cum, without thai get ane sufficient discharg of hir ; and to cause hir 
 
 ' guidis, sic as nolt, scheip, and uther gudis movable and unmovable, to be kepit apon the said grond apon hir 
 
 ' expenses quhill the said terme of "Witsonday nixt to cum ; and than or sonar, to gif it pleise hir, to cawse 
 
 ' hir awn tenentis or utheris to have and bring the saidis gudis to Striveling, Strowykne, or Edinburgh, quhat it 
 
 ' pleise hir. And gif it pleise the said Lady to tak ony of the said Lord Simple's landis in souertie of payment 
 
 ' of the said sowm, that he sail gif the samyn be his charter and saising, as scho sail devise, quhilk beand done, 
 
 ' the said Lady sail discharg the said souerteis sa fer as gettis, landis, in securite as said is. And the said Lord 
 
 ' and his airis sail releif the said Lady of all taxtis, tributis, exactiounis, and service to the King in weris or ony 
 
 ' uther thing concerning the saidis landis, except generale taxtis, impositionis our all the realm, of the quhilk the 
 
 ' said Lady sail pay afFerand to hir pairt, stia that the said Lord tak na nathing fra the tenentis for the said 
 
 ' impositiounis, — and gif he sa dois, that scho be relevit therof. And als the said Lord sail discharg, and be this 
 
 ' writ dischargis, the act maid befor the Lordis of Consell, be the quhilk Johne Striveling of the Kier, knycht, 
 
 ' sone to the said Lady, wes oblist efter hir deceise to restoir the housses, woddis, and orchardis of the landis 
 
 ' pertening to hir in lifrent, conjunct fee, and terce, als gud as thai war the tym of the making of the said ak 
 
 ' (act). And gif it sail happin the said Lord, or his airis, or his souerteis, to failze in the payment of the said 
 
 ' sowm at the termes forsaid, or the said Lord to failze in ony of the premissis, swa that it pleise the said Lady 
 
 ' this tak and assedatioun to be cassit and adnullit, and to be of nane effect nor avale, bot now as than and than as 
 
 ' now, the said Lord dischargis the samyn ; and in that caise the said Lord or his airis, for costis, skaithtis, and 
 
 ' expensis sustenit and maid be the said Lady, sail content and pay the sowm of thre hundretht merkis, money 
 
 ' forsaid, ane third therof to be applyit to the King, ane thrid to the Kirk of Glasgw, and a uther thrid to the 
 
 ' party, — nevertheles this principal band and eontrak, sua that it pleise the said Lady, to remane in force and effect. 
 
 ' — Ln' witnes of the quhilk think (thing) baith the saidis pertiis, togidder vyitli the fornemit souerteis and dettoueis, 
 
 ' HAS stJBSCRiviT THIS PRESENT WRIT WITH THAIR HANDis, day, zer, and place forsaid ; Befor thir witnes, Georg 
 
 ' Craufurd of Lochtmoriss, Johne Mowat of Busby, Maister Abraham Crechtoun, John Simple, Thomas Giffert, 
 
 ' Maister Thomas Bruse, and Johne Dikson, notar public, with utheris divers. 
 
 ' fiilt of JKuttgumri). 
 
 ' William: Lord Simple. 
 ' NiNiANE Lord Eoss. 
 ' Johne Master of Mdngumey. 
 ' James Colvile of Uchiltre. 
 
 ' Margret Simple. 
 
 ' Robert the Bruse of Arte.' " 
 
APPENDIX. 507 
 
 YIII. 
 
 Instances relied upon by the Crown in which James IV. is stated to have resumed the lands 
 
 GRANTED BY HIS FATHER DURING THE PERIOD STRUCK AT BY THE ACT EeSCISSORY, AND TO HAVE 
 REGRANTED THEM, — THE PROPOSITION BEING, THAT THIS RESUMPTION AND REGRANT PROVE THAT THE ACT 
 EeSCISSORY took EFFECT, AND NECESSARILY DESTROYED THE DUKEDOM OF MONTROSE : — WHEREAS THE 
 
 Claimant has pointed out that these instances of resumption were all either before the Act 
 Rescissory, when such resumption was illegal, as is admitted by the Committee — or after the 
 Act 1493, by which the grants of James III. during the proscribed period were rescinded, 
 
 ex tunc, WITHOUT QUALIFICATION AND WITHOUT THE SLIGHTEST REFERENCE TO THE ACT EESCISSORY, 
 AS IF THE LATTER HAD NEVER EXISTED ; AND ALSO THAT THE CrOWN HAS DISCOVERED nO 0716 instance 
 
 OF THE Act Rescissory itself taking effect. 
 
 1. The Bakt geaut : — 
 
 (Nos. CXL. to CXLIII. inclusive.) 
 
 i. Charter ly James III., 13fA May 1488, to Alexander Lindsay, son and heir apparent of 
 David Earl of Crawford, " pro bono et jideli servitio nobis per eundem Alexandrum 
 " multipliciter impenso, et specialiter pro sua existentia nobiscum in exercitu nostra apud 
 " castrum de Blakness," of the fourth part of the lands of Bahy, which had fallen to 
 the King by reason of the bastardy of the late David Lindsay of Bdky. 
 
 ii. Precept by James III., IMi May liS8, for infef ting {the preceding) Alexander Lindsay, 
 Master of Crawford, in the fourth part of the lands of Baky. 
 
 iii. Instrument of Sasine, 2^rd May 1488, in favour of Alexander Master of Crawford, in 
 terms of the preceding charter and precept. 
 
 iv. Charter by James IV., 2nd August 1488, in favour of John Lyon, son and heir apparent 
 of John Lord Glammis, and Elizabeth Gray, spouse of the said John Lyon, of the 
 fourth part of the lands of Bahy, which had fallen to the King by reason of the bastardy 
 of the late David Lindsay of Bahy. 
 
 —All, PEOM THE StEATHMOEE OE aLAMMIS CHAETEE-CHEST.— ' MlNTTTES OP EVIDENCE,' NoS. 76, 77, 78, 79.— 
 
 (Referred to supra, p. xxxii.) 
 
 Observation. 
 
 These documents are not given at length, the fact of the grants having been made not being disputed. 
 They are described as nearly as possible in the words used by Mr. Fraser in adducing them on behalf 
 of the Crown, and as in the Duke of Montrose's Cases.— The grant by James IV. is hefore the Act 
 Rescissory. 
 
 2. The WALKMTXTOlf, &C. GEAITT : — 
 
 (Nos. CXLIV. to CXL VI. inclusive.) 
 
 i. Charter by James III, 2ith May 1488, to James Innes of Innes, in consideration of 
 services rendered to tlw King by the grantee " cum suis servitoribus et amicis in exercitu 
 " nostra apud Blahnes, sub nostra vexillo, in defensione nostre persone Regie et corone, et 
 " pro suis servitiis nobis futuris temporibus impendendis," of the lands of Walkmylton, the 
 Hatch of Depil, ^c, — with this provision, " PROVISO etiam quod dictus Jacobus Innes 
 " nobis fdeliter deserviat, et quod nobiscum pro toto tempore instantis discordie cum suis 
 " servitoribus commoretur et reman£at." 
 
 ii. Charter by James IV., 28th June 1488, to John Mawar of Drumsheuch, of the lands of 
 Walkmylton. 
 
 iii. Charter by James IV., 1st June 1490, to James Douglas of Pittendriech, of the lands 
 of Halch of Depil. 
 —Ili, eeom the aEBAT Seai, Begistee.— ' MiNUTES OE EVIDENCE,' Nos. 85, 86, 87.— (Referred to supra, p. xxsiii.) 
 
 Observation. 
 
 Not given at length, for the reasons alleged above.— The property in this case had been resumed by 
 James IV., and regranted (in part), hefore the Act Rescissory. This renders the observation that the 
 grant was merely conditional comparatively superfluous. ■ 
 
 3 T 
 
508 APPENDIX. 
 
 3. The Kiisaeey (Hiakt to Bainamooit : — 
 
 (Nos. CXLVIL, CXLVIII.) 
 
 i. Charter hy James III., llth May 1488, to Thomas Collace of Balnamoon, on the consi- 
 deration " (juod dictiLS Thomas in nostro exercitu apud Blahness in defensione nostre 
 ^' persone et corone Regie sub nostro vexillo Twhiscum extiterat" and ^^ pro suo bono et 
 " Jideli servitio nobis ibidem facto et in futurum fiendo, ac pro singulari favore quern 
 " gerimus erga eundem," of half the forest of Kilgarry, with the royal rights of vert and 
 venison, 8j-c., — with this provision, " DuMMODO dictus Thomas nobis fideliter deserviat, 
 " et quod nobiscum cum suis servitoribus durante toto tempore instantis discordie com- 
 " moretur et remaneat." 
 
 ii. Charter by James IV., 23rd March 1499-1500, reciting and confirming the preceding 
 Charter. 
 
 — The Chaeteb as James III. from the Piee CnAETBE-OHESi ; the Chaetee oe CoHErEMATiON eeom the 
 Geeat Seai Eegisteb. — ' Minutes oe Evidence,' p. 94. — (K«ferred to swpra, p. xxxiii.) 
 
 Observation. 
 
 This Charter and Confirmation have been already adduced by the Claimant, supra, p. 401, to shew that 
 the grants of James III. stood firm and valid notwithstanding the Act Rescissory, — the Confirmation 
 by James IV. being one in the usual form applicable to valid grants, without any non obstante clause ; 
 but they are founded upon by the Crown (as adduced by the Claimant) under the present head of the 
 argument, to shew that the grant of James III. had been cut down by the Act Eescissory, and was 
 only rendered valid and perpetuated by a Confirmation salving the flaw. It has however been shewn 
 elsewhere that the Confirmation is not in the form indispensable for salving a flaw, and the objection of 
 the Crown here is met at once by the fact that the grant by James IV. (the Confirmation) is subsequent 
 to the Act 1493, — independently of the original grant of James III. having only been a conditional one. 
 
 4. The Kiioaeet geant to Baitoedie ; — 
 
 (Nos. CXLIX., CL.) 
 
 i. Charter by James III, Vlth May 1488, to Thomas Somyr of Balyordie, for the same 
 consideration and on tlve same condition as in the Charter to Collace of Balnamoon 
 granted on the same day, of the j-emaining half of the forest of Kilgarry. 
 
 ii. Charter by James IK, 23rd March 1499-1500, reciting and confirming the preceding 
 Charter. 
 
 — The Chaetee oe James III. eeom the Southesk Chaetee-chest ; the Chahtee op Coneiemation eeom the 
 Geeat Seal Eeq-iseee. — ' Minutes of Evidence,' pp. 97, 98. — (Eeferred to supra, p. xxxiii.) 
 
 Observation. 
 
 Whatever has been said with respect to the preceding Charter and Confirmation to Collace of Balnamoon 
 applies to the documents here in question. 
 
 5. The Teeeinzean geant : — 
 
 (Nos. CLI. to CLIII. inclusive.) 
 
 i. Charter by James III, 18th May 1488, to Sir Thomas Turnbull of Greenwood, knight, 
 bearing to be granted "pro bono,fideli, gratuitoque servitio nobis impenso et impendendo, 
 " et specialiter pro sua assistentid et auxilio nobis per eundem Thomam in campo bellico 
 " apud Blakness impensis, ubi ipse vexillum nostrum regni in defensione nostre persone 
 " Regie et corone portabat," of the lands of Terrinzean, in the county of Ayr. 
 
 ii. Charter by James IV., ISth April 1497, to Sir John Ramsay, for life, of the lands of 
 Terrinzean. 
 
 iii. Charter by James V., llth April 1534, to William Ramsay ofBalmain and his spouse, 
 of the lands of Terrinzean. 
 —All eeom the Geeat Seal Eegisteb.—' Mintttes of Evidence,' Nos. 80, 81, 82. — (Eeferred to stipra, p. xxiiii.) 
 
 Observation. 
 
 The Charter by James III., 18th May 1488, is also adduced by the Claimant, ' Minutes of Evidence,' p. 9, 
 and may be seen (slightly abbreviated) supra, p. 378. The other charters (as above) are not given 
 at length, for the reason stated under the Baky and Walkniylton grants, supra. — The grants by 
 James IV. and James V. are after the Act 1493. 
 
APPENDIX. 500 
 
 6. The Taetes, Bamtageith, &c. G-eant : 
 
 (Nos. CLIV., CLV.) 
 
 i. Charter hy James III., 20th May 1488, to James Dunbar, bearing to be granted for 
 « special^service rendered to the King in the defence of his person and crown at that 
 « time,"* of the lands of Tarves, Balnageith, and others,— with the condition, " Tam 
 J^ PEOVISO etiam quod dictus Jacobus Dunbar nobis fideliter deserviat, et quod nobiscum 
 " cum suis servitoribus durante toto tempore instantis discordie commoretur et remaneat" 
 ii. Charter by James IV., 1st June 1501, to Janet Kennedy, fur life, of the preceding lands. 
 -Both tbom the Geeat Seai Eegistee.-' Minutes oe Evidence,' TSos. 83, 84..-(Eeferred to supra, p. xxxiii.) 
 
 Observation. 
 
 Not given at length, for the reason above stated.— The grant by James IV. is after the Act 1493, indepen- 
 dently of the grant by James III. being conditional. 
 
 General Observation. 
 
 On the Counsel for the Crown being " asked," in the course of the adduction of the evidence just given, 
 " whether it appeared from these Documents how these lands came into the hands of the Crown," 
 " Mr. Innes stated that the Documents contained nomention of am/ former Oramt whatever." Minutes 
 of Proceedings, JlfyS&— Although this question and answer appear subsequently to the adduction of the 
 Baky, Terrinzean, and Tarves grants, and with immediate reference to the latter, and previously to 
 the Walkmylton grant, the Claimant apprehends that they are intended to refer to (as they moreover 
 accurately, so far, describe) all the instances of regrant (with the exception, of course, of the 
 confirmations to Collace and Somyr) founded upon by the Crown. The Claimant must observe 
 here that his argument is — not that the grants in question were actually resumed through the 
 Act of 1493 in every or in any instance, but— that if it be held (as by the Crown) that grants 
 of James III. were resumed at a period subsequent to the Act of 1493, which distinctly struck 
 at those grants, the said resumption may be, and indeed (on the hypothesis of the Crown) must be, 
 attributed to that Act and not to the Act Rescissory, which had proved ineffective and impotent, and 
 the object of which the Act of 1493 was intended to effect— although with the marked exclusion of 
 dignities. The fact of the Act 1493 being passed at all proves the non-effect and impotence of the 
 Act Rescissory ; and if the grants in question were resumed, the resumption must in fairness be attri- 
 buted to the later of the two statutes. But even the Act 1493 seems to have been for the most part 
 ineffectual, there being no allusion to it (as admitted by the Crown) in the Collace, Somyr, or other 
 confirmations ; which moreover (as the Claimant has elsewhere shewn) are not in the special ' non 
 ' obstante ' form appropriate to invalid grants, but mere ordinary confirmations for the purpose of regis- 
 tration. The Claimant's conclusion therefore is— that either these grants (of Baky, Terrinzean, Tarves, 
 and Walkmylton) came into the hands of the Crown in regular course during the interval between 
 the Act Rescissory and the dates of the regrants, or that they were resumed through the exercise of 
 that injustice and oppression which were rife at the period, irrespectively altogether either of the Act 
 Rescissory or the Act of 1493. While, under any circumstances, the fact of there being no reference 
 in the quequidems of the regrants to any Act of Revocation (at direct variance with the practice in 
 the case of effectual deprivatory statutes) is decisive in the Claimant's favour, as disproving the theory 
 of the Crown, that the lands had vested in the Crown through the Act Rescissory. 
 
 IX. 
 
 Instances adduced by the Claimastt, m which David Duke of Montrose asserted his rights both 
 TO the lands and the dignity conferred by the Patent 18th May 1488, and in which those 
 eights were allowed and recognised by the Crown during the interval between the date of 
 
 THE said original PATENT AND THAT OF THE EeGRANT SEPTEMBER 1489, — PROVING THAT THE ACT 
 
 Rescissory, whether aimed at the Duke or not, took no effect upon the Patent : — 
 
 1. Enjoyment oe peopeety geanted with the Dukedom dueing the ceitioal inteevai. : — 
 
 i. Notices in the Exchequer Rolls of 1491 and 1492, proving that David Duke of Montrose 
 received the rents of the Lordship of Kinclevin, granted by the Patent 1488, during the 
 whole interval in question AS proprietor, and not " ex gratia " or by indulgence of the 
 
 This is stated from the Duke of Montrose's S. Case, p. 17.— " contains a Provision of Adherence to the King during the 
 
 "Discord." Minutes of Proceedings, MSS. The Claimant has no 
 doubt that the inductive clause was as stated above. 
 
 In reply to a question by Mr. Innes, " Does it bear the Cause of 
 " its being granted ? " Mr. Fraser replied, " At the inductive 
 " Clause the Record is very much defaced, but in another part it 
 
 3 T 2 
 
510 APPENDIX. 
 
 Crown.— From the original Rolls, preserved in Her Majesty's General Register House, 
 Edinburgh. — 'Minutes of Evidence,' pp. 91, sqq. — (Referred to supra, p. Ixxi.) 
 
 (1) Compotum of Thomas Wardroper, receiver of the rents of the Lordships of Kindevin, Strath- 
 hrawn, &c., 4fe July 1491. 
 
 (No. CLVI.) 
 
 " Compota Ballivorum ad extra, anno Nonagesimo primo," i. e. 1491. 
 
 " ScAccAEiuM Serenissimi Principis et Domini nostri metuendissimi, Jacobi, [Quart!,] Dei gratia Scoforum Regis, 
 illustrissimi, tentum et inchoatum apud Linlithgw, decimo tercio die mensis Junii, anno Domini millesimo 
 quadringentesimo nonagesimo primo. 
 
 &c. &c. &c. 
 
 " Compotum Thome Wardropar, R^ceptoris firmarum dominiorum de Kindevin, Strathbrawn, Glenlyon, et 
 aliarum terrarum infrascriptarum, redditum apud Linlithgw quarto die mensis Julii, anno Domini, etc. nonagesimo 
 primo, de omnibus receptis suis et expensis per firmas et redditus earundem a die vicesimo sexto mensis Junii, anni nona- 
 gesimi, usque in diem hujus compoti, et sic de dudbus terminis infra hoc compotum. 
 
 Idem onerat se in primis de vj'lxxviij lib., ij s., viij d., ij'viij salmonibus, xlj martis, per arreragia ultimi 
 compoti sui, ut patet in pede ejusdem. 
 
 Summa arreragiorum patet. 
 
 Item, idem onerat se de Ixxij lib., Ixxvj salmonibus, per integras firmas dominii de Kinclevin, que particu- 
 lariter scribuntur in Rotulo anni octua[ge]simi sexti, — Et de lij [lib.], xiij s., iiij d. per integras firmas terrarum de 
 Apnadul de dictis terminis, ut supra, — Et de xlvij lib., xiiij s., iiij d. de firmis terrarum de Strathbrawn, — Et de 
 Ixxxxvj lib., xvj stuk martis, de firmis terrarum de Dischir et Toyer, ex utrique parte lacus de Taya, preter viginti 
 marcatas terrarum que sunt in manibus Prioris et Conventus domus Cartusie prope Perth, — Et de xl lib., vj s., viij d. 
 de firmis terrarum de Glenlyon, de duobus terminis infra hoc compotum, — Et de xviij lib. de firmis terrarum de 
 Forthirgill, — Et de xx lib. de firmis terrarum baronie de Rannauch, — Et de v lib. de Drumfyn et de Drum- 
 quhassill in Apnadul, citra onerationem predictam, — Et de xiij lib., vj s., viij d. de firmis foreste de Cluny, preter 
 firmas terrarum lacus et aliarum terrarum dicti dominii, occupatarum per Jacobum Bering, pro quibus vocandus 
 est,* — Et de xl s. annul redditus de Kinblauthmond, — Et de xx s. annul redditus de Torsappy, — Et de v s., iiij d. 
 annul redditus [de] Monorgont, — Et de iiij s. per vendetionem octo latarum sagittarum, redditus assise de Drum- 
 louchty, — Et de v s. per vendetionem unius libre piperis albe firme terre de Rait, que vocatur Freland, debite ad 
 festum Penthecostes infra hoc compotum, que terre suprascripte particulariter scribuntur in rotulo anni octuagesimi 
 sexti. 
 
 Summa totalis onerationis proprietatis, iij'lxviij lib., xiiij s., iiij d., Ixxvj salmones, xvj stuk marte. 
 
 Summa totalis onerationis cum arreragiis, j^xlvj lib., xvij s., ij"lxxxiiij salmones, Ivij marte. 
 
 Et non onerat se de grassumis dominii de Kinclevin, quia Compotans asserit Dominum Ducem de Monthrose levasse 
 firmas dictarum terrarum, una cum grassumis earundem, ad manus proprias. Nee de grassumis aliarum terrarum supra- 
 scriptarum, quia non assedantur, ut patet in Rentali. 
 
 Expense ejusdem : — In primis allocatur Compotanti, per solutionem factam Episcopo Dunkeldensi de 
 
 firmis molen f de Inver et molendini ejusdem, ut patet in rotulis precedentibus, de anno compoti, xl s. Et eidem 
 
 de firmis terrarum de Dulmerno, concessarum eidem Episcopo et ecclesie sue, ut patet in dictis rotulis de dicto 
 anno, iij lib., vj s., viij d,, — et maro de Glenlioun pro feodo suo, de anno compoti, xx s., — et maro de Strathbrewne 
 pro feodo suo, de dicto anno, xx s., — Et maro de Apnadul pro feodo suo in anno, xxvj s., viij d., — et maro de 
 Desscher et Toyer pro feodo suo, xxvj s., viij d., — Et eidem de firmis terrarum de Manlorne, deputatarum vastarum 
 pro foresta, ut patet in rotulis precedentibus, de anno compoti, xxvj s., viij d., — Et eidem de firmis terrarum de 
 
 Bynnoir in Desscher, etiam deputatarum vastarum, pro forest^, ut patet in rentali et rotulis, de anno compoti xl s. 
 
 Et eidem de firmis terrarum de Manlorne in Desscher, similiter deputatarum vastarum, pro foresta ut patet in 
 eisdem rentali et rotulis, xxvjs., viijd., — Et per solutionem factam Thome Forest, compotatori, fatenti solutionem 
 super compotum per literas suas sub suo signeto, subscriptas manu sua, ostensas super compotum, j'xv lib. iljs. 
 pro quibus respondebit,| — Et eidem per solutionem factam quondam Jacobo Dowglas, militi, de pensione ducen- 
 tarum librarum sibi alias concessarum, de quibus percipit de redditibus Compotantis annuatim centum viginti unam 
 libram, sex solidos, octo denarios, de duobus terminis hujus compoti, pro debitis suis solvendis et sub periculo 
 Compotantis, j°xxj lib., vj s., viij d., — Et eidem de restancia duarum marcarum dicte pensionis de termino Penthe- 
 costes anni nonagesimi, solutarum factoribus dicti quondam Jacobi, et sub eodem periculo, xxvj s., viij d. ■ Et de 
 
 firmis terrarum de Erntuly in manibus Episcopi Dunkeldensis, in excambium pro terris de Abbirchorn, de anno 
 compoti, xiij lib., vj s., viij d. 
 
 Summa expensarum, jjlxv lib., xvjs., iiij d. :— Et sic restant vij'lxxxj lib., viijd., ijixxxiiij salmones, 
 Ivij marte : — De quibus pendent, § de firmis terrarum de Cluny, sicut pendebant anno octuagesimo octavo, exten- 
 dendo ad decemannos cum dimidio, super Comitem Adolie, ut patet in dicto compoto, ex deliberatione Dominorum 
 
 * Margin, " Vocandus est Jacobus Hering." J Margin, " Eespondebit T. Forest, Eotulator." 
 
 + ' Molen ' ought to have been erased in the Eoll. § Nearly opposite to this, on the margin, " Nota pendencias." 
 
APPENDIX. 511 
 
 j-'xl lib.,— Et super Episcopum Dumkeldensem, de terris de Mulkarsy, in excambium pro cana de Kingorn, de annis 
 Domini octuagesimo septimo et octavo, xviij lib., xiij s., iiij d.,— Et super Nigellum Stewart, capientem ad manus 
 proprias de terris de Eannauch, de anno compoti et tribus annis ante hoe compotuin, ]xxxlih.,—Et super Dominum 
 David Ducem de Montross, similiter capientem ad manus proprias de terris de Kinclevin, preter viginti marcatas terrarum 
 de Erntuly in manibus Episcopi Dunkeldensis, de anno compoti et duobus annis preaedentibus hoc compotum, flxxvj lib., 
 fv'^viij * salm<mes,—Et super Patricium Leicli, qui habebat alias in feodo suo quatuordecim marcas annuatim, 
 de anno compoti et duobus annis precedentibus hoc compotum, xxviij lib.,— Et super Compotantem, de feodo suo 
 Camerariatus usque quo faciat plenam solutionem et compotum, de anno compoti et et [sic] tribus annis preceden- 
 tibus hoc compotum, xxvjlib., xiij s., iiijd. 
 
 Summa harum pendenciarum, iiijlxix lib., vjs., viijd., j^v'-viij salmones:— Et sic restant iij°xjlib., xiiij s., 
 Ixxxxvj salmones, Ivij martis if— De quibus allocatur Compotanti, per solutionem factam dicto domino Jacobo 
 Dowglas de anno precedenti hoc compotum, ex eo quod recepit allocationem solum de sexaginta duabus libris, ut 
 in eodem compoto, lixlib., vjs., viij d. 
 
 Summa hujus expense patet :— Et sic restant ijlij lib., vij s., iiij d., Ixxxxvj salmones, Ivij martis." 
 
 (2) Compotum of Thomas Wardroper, receiver of tU rents of the Lordships of Kinclevin, &c., 
 ISth July 1492. 
 
 (No. CLVII.) 
 
 " Ballivorum ad extra, anno Ixxxxij, 1492. — Jacobi IV. 
 &e. &c. &c. 
 
 " Compotum Thome Wardropar, Receptoris firmamm dominiorum de Kinclevin, Strathbravvn, Glenlyon, 
 Descher, et Toyer, et aliarum terrarum infrascriptarum, redditum apud Edinburgh, decimo tertio die mensis Julii, 
 anno Domini etc., rumagesimo secundo, de omnibus receptis suis et expensis per firmas et redditus terrarum suprasoriptarum 
 et infra, a die quarto ejusdem mensis, anni Domini etc., nonagesimi primi, usque in diem hujus compoti, et six; de diMbus 
 terminis infra hoc compotum. 
 
 Idem onerat se in primis de ij°lij lib., vij s., iiijd., Ixxxxvj salmonibus, Ivij martis, per arreragia ultimi 
 compoti sui, preter pendentias restantes in pede ultimi compoti sui, et super quibus consulendus est Eex, ut patet 
 in eodem. 
 
 Summa arreragiorum patet. 
 
 Item, idem onerat se de Ixxij lib., Ixxvj salmonibus per intigras firmas dominii de Kinclevin, que particulariter 
 scribuntur in rotulo anni octuagesimi sexti, — Et de lij lib., xiij s., iiij d., de firmis terrarum de Apnadull, de dictis 
 terminis, ut supra expressis, — Et de xlvij lib., xiij s., iiij d., de firmis terrarum de Strathbraw^n, — Et de Ixxxxvj lib., 
 xvj stiik martis, de firmis terrarum de Descher et Toyer, ex utraque parte lacus de Taya, preter viginti marcatas 
 terrarum que sunt in manibus Prioris et Conventus domus Cartusie prope Perth, — Et de xl lib., vj s., viij d., de 
 firmis de Glenlyon, — Et de xviij lib. de Eorthirgill, — Et de xx lib. baronie de Rannauch, — Et de v lib. de Drumfin 
 et Drumquhassell, in Apnadull, citra onerationem predictam ejusdem, — Et de xiij lib., vj s., viij d., de firmis 
 foreste de Cluny, preter firmas terrarum lacus et aliarum terrarum occupatarum per Jacobum Hering, pro quibus 
 vocandus est,J — Et de xl s. annul redditus de Kinblauthmont, — Et de xx s. annul redditus de Torsoppy, — Et de 
 V s., iiij d., annul redditus de Monorgund, — Et de iiij s. per vendetionem octo latarum sagittarum, redditus assise de 
 Drumlouchty, — Et de v s. per vendetionem unius libre piperis de Rait, que vocatur Freland, debite ad festum 
 Penthecostes infra hoc compotum. 
 
 Summa hujus onerationis, iij^lxviij lib., xiiij s., iiij d., Ixxvj salmones, xvj stuk martis. 
 
 Item, Idem onerat se de xxxiij lib., vj s., viij d. de grassum^ terrarum de Desscher et Toyer, asse- 
 
 datarum Duncano Campbell infra hoc compotum. 
 Summa hujus onerationis patet. 
 
 Summa totalis onerationis, preter arreragia, iiijlj lib., xij d., Ixxvj salmones, xvj stuk martis. 
 Summa totalis onerationis cum arreragiis, vj'liiij lib., viij s., iiij d., j'lij salmones, Ixxiij stuk marte. 
 Expense ejusdem : — In primis allocatur Compotanti, per solutionem pactam Episcopo Dunkeldensi de 
 firmis de Inver cum molendino ejusdem, ut patet in rotulis precedentibus, de anno compoti, xl s., — Et eidem de firmis 
 terrarum de Dulmerno concessarum eidem Episcopo, ut patet in dictis rotulis, de dicto anno, iij lib., vj s., viij d. ; 
 et maro de Glenlioun pro feodo suo, de anno compoti, xx s. ; et maro de Strathbrawne in feodo suo, de dicto 
 anno xx s. • et maro de Apnadull pro feodo suo, de dicto anno, xxvj s., viij d. ; et maro de Desscher et Toyer 
 pro feodo suo xxvj s. viij d., — Et eidem de firmis terrarum de Manlorne, deputatarum vastarum, pro forest^, ut 
 patet in rotulis precedentibus, de dicto anno, xxvj s., viij d., — Et eidem de firmis terrarum de Bynmoir in Desscher, 
 etiam deputatarum vastarum, ut supra, de anno compoti, xl s., — Et eidem de firmis terrarum de Manlorne in 
 Desschier, similiter deputatarum vastarum, ut patet in rotulis precedentibus, de dicto anno, xxvj s., viij d., — Et 
 eidem pee solutionem factam Magistro Hugoni Martyne, Compotatori, per suas literas sub signeto et sub- 
 scriptione, etiam ipso fatente solutionem super compotum, ij'^xxj lib., xiiij s., vij d., pro quibus respondebit,§— Et 
 eidem per solutionem factam dicto Magistro Hugoni, fatenti receptionem super compotum, iiij lib., pro quibus 
 
 * That is one hundred, five score, and eight. J Margin, " Vocandus est Jacobus Hering." 
 
 t The Scottish word is used, instead of the Latin, here and § Margin, " Kespondebit H. Martyne, Eotulator." 
 
 occasionally afterwards. 
 
512 APPENDIX. 
 
 etiam respondebit ; et Episcopo Dunkeldensi, in excambium pro terris suis de Abbircome, de anno compoti, 
 xiij lib., vj s., viij d. ; et Domino Duci de Monthkose, defirmis terrarum de Kincleoin de tribus annis ante 
 HOC COMPOTUM, que PENDEBANT in votulo auni precedentis, et de termino sanoti Martini hujus compoti, ex eo quod 
 DoMiNus Rex in consilio mandavit allocationem fieki de pbecedentibus, * preter terminum Penthe- 
 costes ultimum; de dicto termino Sancti Martini, xxix lib., vj s., viiij d.,— Et per solutionem factam Duncano Forestar, 
 Compotatori, de firmis de Torquho et Drumgarrow, termini Penthecostes ultimi, dicto Rotulatore fatente solu- 
 tionem super compotum, xxx s., pro quibus respondebit ; j et Patricio Leith, in feodo suo, de speciali mandato 
 Domini Regis, hoc anno tantum, ix lib., vj s., viij d. ; et Comiti Atholie, de firmis de Cluny, per cartam Domini 
 Regis defuncti usque ad legittimam etatem Domini Regis, et de speciali mandato, xiij lib., vj s., viij d. 
 
 Summa expensarum, iij'vij lib., iiij s., vij d. :— Et sic restant iij°xlvij lib., iii s., ix d., j'lij salmones, 
 Ixxiij stuk marte." 
 
 ii. Analysis of, and observations upon, the Accounts of the Great and Small Customs of 
 Montrose, as inserted in the Exchequer Rolls, with reference to the question whether 
 David Duke of Montrose did or did not receive the revenues of those Customs during the 
 important interval. — From the Claimant's ' Supplemental Case,' p. 180. — (Referred to 
 supra, p. Ixxii, n. *.) 
 
 (No. CLVm.) 
 
 I. The Great Customs. 
 
 In the account ofWalter Lichtoun of Osan, Customer of Montrose, rendered 21st August 
 1488, for the period from the 10th July 1486 to the date of the account, the sum of the Charge, 
 or receipts of the Customer, is ............ • £65 5 5| 
 
 And the Customer discharges himself by the following payments, — 
 
 " Allocatur compotanti in feodo suo de summa onerationis predicte . .£119 
 
 " Et Tronatori pro feodo suo de summ& lane pondate . . . .014 
 
 " Et David Comiti Craufurdie, percipienti annuatim quadraginta marcas 
 " de magnis custumis dicti burgi, ut patet in rotulis precedentibus, in 
 " plenam solutionem earundem de anno octuagesimo sexto, ut patet in 
 " eodem compoto . . . . . . . . . .691 
 
 " Et eidem Comiti de duobus annis hujus compoti percipient! ad manus 
 
 " proprias . . . . . . . . . . . 53 6 8 
 
 " Et eidem per solutionem factam Magistro Alexandre Inglis, Archi- 
 
 " diacono Sancti Andree, compotatori, recipient! super compotum . 4 6 7 
 
 Making the Discharge (or disbursements) equal to the Charge (or receipts) . . . £65 5 5 
 
 The above £53 6s. 8d. which Duke David took " ad manus proprias " is exactly the amount of his 
 hereditary pension of forty marks for the two years of the account. 
 
 This account, it will be observed, closes only three months after the date of the original Montrose patent 
 18th May 1488. 
 
 The whole free surplus for the two years of the account was only £4 6s. Id.; and the proportion of that surplus 
 corresponding to the three months for which the Duke had had right to the Customs must have been trifling indeed; and his 
 not claiming or not receiving it canrwt be of much weight, especially considering the state of public affairs and the Duke's 
 own position at the period. 
 
 There is no account of the Great Customs to be found in the Exchequer Rolls from the above, ending 
 21st August 1488, till the death of the Duke. 
 
 * For the import of the words " solntlo '' and " alloeatio," as " Comes Craufurdie sibi spectari hereditarie, et Dominus Rex 
 
 interpreted by Ducange, see the Analysis, sv.pra, p. Ixxiii. That " clare memorie mandavit per literas suas sibi allocari annuatim," 
 
 import may be practically illustrated by reference to the charter — the "solutionem" or payment of which the Duke is further 
 
 of Robert II., 2nd January, 1390, adduced in this Appendix, stated to have acknowledged by his acquittance duly sealed, &c. : 
 
 infra, p. 539 ; by which the King grants to Sir David Lindsay an — From which it appears that the question of the Earl's (Duke's) 
 
 hereditary pension of forty pounds — " persolvendas," to be paid, right to the hereditary pension had been raised and settled in the 
 
 annually at Easter and Martinmas ; and with respect to which he same manner as the Duke's right to the rents of Kinclevin in 
 
 instructs the Lord Chamberlain and the Customers of Aberdeen 1492 — viz. by reference to the King, who ordered the pension 
 
 as follows :— " Quasquidem quadraginta libras sibi in compotis suis " sibi allocari annuatim," — the same expression as that employed 
 
 " annuis inde reddendis, visis ipsius David et heredum suorum on the corresponding occasion in 1491-2. — There is no idea in 
 
 " Uteris de recepto, plene 'volumus allocari:" — That is, the 401. either of these cases of the payment being merely one by grace 
 
 were to be paid to the Duke yearly, and, on his acquittance or or indulgence (which, in fact, is otherwise negatived, as shewn 
 
 receipt having been obtained, were then to be allocated or in the Analysis, supra, p. Ixxv). The sums of money are paid to 
 
 admitted as paid in the annual accounts. Similarly, on the page the Duke as of right. And the term " allocari " refers to the 
 
 following the present, will be found the narrative of the Customer responsibility of the compotator. 
 
 of Dundee after the death of David Duke of Montrose ; in which f Margin, " Respondebit D. Forestar, Rotulator.'' 
 
 he states with respect to an annual pension of forty marks per- I The Arabic numerals are employed here, as more convenient 
 
 taining to David Earl of Crawford (the Duke) hereditarily— " Et in an Analysis of this description. 
 " de annua pensione quadraginta marcarum quas clamabat David 
 
APPENDIX. 513 
 
 After that event, an account appears by Robert Erskyn, Customer of the Burgh, rendered 15th July 1496, 
 " a die obitus domini David Duels de Monthrose, qui erat in die Sancti Stephani ultimo preterite, qui habuit 
 " dum vixerat hujusmodi magnas custumas per literas domini Regis ab anno Domini nonagesimo usque in dictum 
 " diem obitus sui." * 
 
 The sum of the Charge is £19 6 4 
 
 And the Discharge is as follows : — 
 
 " Compotanti pro feodo suo de summS, onerationis predicte . . . £0 6 5 
 
 " Et de annu&. pensione quadraginta marcarum quas clamabat David 
 " Comes Cravpfurdie sibi speetare hereditarie, et dominus Rex clare 
 " memorie mandavit per literas suas sibi allocari annuatim, qui etiara 
 " confirmavit donationem factam per dictum dominum Comitem Mer- 
 " garete CarmicheU super quadraginta marcis ad vitam,| ut latius 
 " patet in compoto Custumarii de Dunde, ipsam fatenti solutionem 
 " super compotum, per literas suas patentes sub suo sigillo, — de termino 
 
 " Penthecoste ultimo 13 6 8 
 
 " Et Duncano Forest, compotatori, recipient! super compotum . . . 5 13 3 
 
 Making the Discharge equal to the Charge ......... £19 6 4 
 
 There is thus no proof that the Crown received any part of the Great Customs between the date of the 
 first and second patents of the Dukedom of Montrose, except the mere trifle included in the account rendered 
 21st August 1488, at which time the Duke, for obvious reasons, may be supposed not to have obtained full posses- 
 sion under his original patent. From that date to 1490 there is no positive evidence as to who drew the Customs ; 
 
 but as they were not accounted for in Exchequer, the presumption, to say the least, must he, that having been granted to 
 the Duke by the first patent, they were drawn hy him. On that supposition there is nothing extraordinary; tut it would be 
 very extraordinary, if the Customs were drawn for the Crown, that there should be no trace of them in the Exchequer Bolls. 
 
 II. FiRMa; BDRGALES, OB, PeTTY CuSTOMS. 
 
 The ' firmae burgales ' appear not to have been drawn by the Duke till after the 
 
 Second Patent. They seem however not to have been much worth looking after. 
 
 Thus, by the account of the baillies rendered 29th July 1488, the Charge (for which 
 
 these Customs appear to have been leased to the burgh) is £16 
 
 And they Discharge themselves by the following payments, — 
 
 To the Bishop of Brechin " ex elymosina Regis antiqua " . . .£12 5 4 
 
 And to the Prior of Restennet " ex ejusdem elimosina " . . . .2120 
 
 And to Mr. Alexander Inglis, Archdeacon of St. Andrews, the Compotator 12 8 
 
 £16 
 
 From this it appears that, of the rent of £16, for which the ' firmae burgales' had been let or granted to 
 the burgh, there had been premmsly appropriated to the Bishop of Brechin and the Prior of Bestennet £14 7 4,— 
 leaving only £1 2 8— which trifling sum was all that was carried to the Duke from this source by his patent. 
 
 The Discharge is similar in the accounts of these ' firmae burgales' rendered 13th July 1489 
 and 10th July 1490,— the £l 2 8 being paid, not to the Duke, but to the Compotator. The next 
 account is rendered on the 5th July 1496, being for the period from the 10th July 1490,— i. e. for 
 
 six years. The Charge consists of ^9^ ^ ° 
 
 And the Discharge consists of the following payments,— 
 
 To the Bishop of Brechin (being six times £12 5 4). . . • £73 12 
 
 To the Prior of Restennet (being six times £2 12 0) . . . .15120 
 
 " Et eidem per solutionem factam quondam domino David Duci de Monthtoss 
 
 « per literas domini Regis sub private de dictis firmis annuatim de 
 
 " quinque annis hujus compoti, percipienti viginti duos solidos et octo 
 
 " denarios" (£1 2 8) " sibi ad vitam concessos, ut patet per dictas 
 
 " literas ostensas super compotum 5 13 4 
 
 " Et per solutionem factam Duncano Forestar de Skipnich, militi, com- 
 " potatori, recipienti super compotum " (the overplus, that is to say, 
 "for the year ffl/ier the Duke's death) I ^ ^ ^ ^gg ^ ^ 
 
 AU that the DuU got hy the whole five years, as abme, was but £5 13 4 ; and the £1 2 Sfor the two years 
 during which it seem to have been mthheldfrom him was hardly worth claiming or contending for. 
 
 J t xt, /-I .,., ^^A^-n^o otm'Tnst ini^tances of tlie inaccuracy of the clerks whose accounts are 
 
 '''rFt''wal''L"estL'but James IV. who confirmed the 1 This Account is also adduced by the Crown as evidence, 
 
 grant to Margaret Carmichael-as will be seen by the very next «/ra, p. 542. 
 piece of evidlnce here adduced. This affords one among many 
 
514 APPENDIX. 
 
 2. Enjoyment op the title of Duke op Montbose dtteino- the ceitical intebtal : — 
 
 i. Grant to Margaret Carmichael hy David Duke of Montrose as Duke, and Royal Con- 
 firmation thereof. 
 
 (1) Charter hy " David Dux de Montross," 20th October 1488, subsequently to the Act Rescissory, 
 granting an annval rent 0/ 160 marks end of the Or eat Customs of Aberdeen to Margaret 
 Carmichael; and Confirmation thereof by James IV. under the Great Seal, 20th October 
 1488, after full and minute examination amd approval, reciting it verbatim and confirming 
 it after recitation in all its points. In the preamble (merely^ of the Confi/rmatimi it is 
 described as the charter of ' David Earl of Crawford,'' — but this, as the Claimant will imme- 
 diately prove, is in accordance with the occasional and even frequent usage at that period of 
 giving to peers their older, more celebrated, and more farmiliar titles in preference to higher but 
 newer and less familiar ones ; and an instance precisely parallel and contemporary in the 
 case of am, unquestionable and recognized dignity will be given in illustration of it. In the 
 (contemporary') title of the Confirmation the charter is described as the "carta Ducis de 
 " Montrose.'" — From the Great Seal Register. — ' Minutes of Evidence,' p. 84. — (Referred to 
 supra, p. Ixxviii.) 
 
 (No. CLIX.) 
 
 " Carta Confirmationis Margarets Carmychell super carta Dticis de Montrose, penes annuam pensionem j°lx mercarum. 
 
 " Jacobits, Dei gratia Rex Scotorum, Omnibus probis hominibus tocius terra sue, clericis et laicis, Salutem. 
 Sciatis nos quamdam Cartam, factam per dilectum consanguineum nostrum David Comitem Ceaufukdie, Dominum 
 Lindesay, dilecte nostra Margarata Carmichell, pro toto tampora vita sue, da tota et integra annua pansione, sive 
 annuo redditu, extandendo annuatim ad summam centum et sexaginta marcarum usualis moneta regni nostri, 
 annuatim dicto consanguinao nostro debitam et sibi hereditarie pertinentem da magnis custumis at aquarum firrais, 
 nuncupatis le water males, burgi de Abirdene, de mandato nostro visam, lectam, inspectam, et diligenter examinatam, 
 sariam, integram, non rasam, non cancellatam, nee in aliqud sui parte suspectam, ad plenum intellexisse, sub hSc 
 forma: — ' Omnibus hanc Cartam visuris vel audituris, David Dtix de Montrose et Comes Craufurdie Salutem 
 ' in Domino sempiternam. Noveritis nos, pro singulari favore at dilectiona quos gerimus et habemus erga Mar- 
 ' garetam de Carmychell, ac pro gratuitis et [sic] servitiis no is multipliciter impensis, dedisse, concessisse, et h&c 
 ' presenti carta nostra confirmasse, necnon dare, concedere, et hac present! carta nostra confirmare, dicte Margarete 
 ' in vitalem radditum, pro toto tempore vite sue, totam et integram illam nostram annuam pensionem, sive annuum 
 ' redditum, extendendo annuatim ad summam centum et sexaginta marcarum usualis moneta regni Scotie, quam 
 ' seu quem habemus annuatim, nobis debitum et hereditarie pertinentem, de magnis custumis et aquarum firmis, 
 ' nuncupatis le water males, burgi de Abirdene, viz. de predictis custumis centum marcas, et aquarum firmis 
 ' sexaginta marcas, annuatim, de eisdam percipiendas et levandas ad duos anni terminos consuetos, Penthecostes, 
 ' viz. et Sancti Martini in hieme, per equales portiones : — Tenendam et habendam totam et integram predictam 
 ' annuam pensionem centum et sexaginta marcarum, cum pertinentiis, prefate Margarete Carmichell, in vitalem 
 ' radditum, pro toto tempore vite sue, a nobis, heradibus nostris* at assignatis, de supremo Domino nostro Ren'e et 
 ' suis successoribus ; cum omnibus et singulis libertatibus, comnioditatibus, proficuis, et aismentis, ac justis 
 ' pertinentiis suis quibuscunque, tam non nominatis quam nominatis, procul et prope, ad predictam annuam 
 ' pensionem cum pertinentiis spectantibus seu juste spectare valantibus, quomodolibet, in futurum ; et adeo libere 
 ' quiete, plenarie, integre, honorifice, bene et in pace, sine aliquo retenemanto, ravocatione, aut obstaculo aliquali 
 ' sicut aliqua pausio aut annuus redditus infra Kegnum Scocie alicui per aliquem liberius datur seu conceditur, 
 ' aut dari vel concedi poterit qualitercunque ; et adeo libere sicut nos et predecessores nostri ipsam annuam 
 ' pensionem cum pertinentiis de prefato Domino nostro Eege, aut suis predecessoribus temporibus retroactis, 
 ' tenuimus seu possedimus, tenuerunt seu possederunt. Et nos vero, prefatus David Dux de Monteose, heredes 
 ' nostri et assignati, totam et integram predictam annuam pensionem centum et sexaginta marcarum cum perti- 
 ' nentiis dicte Margarete Carmichell adeo libere et quiete in omnibus et per omnia, forma pariter et effectu, ut 
 ' prescriptum est, contra omnes mortales warantizabimus, acquietabimus, et pro toto tempore vite ipsius Margarete 
 ' in vitalem redditum defendemus, — Proviso quod post ejus decessum prefata annua pensio centum et sexaginta 
 ' marcarum nobis, heredibus nostris et assignatis, liberfe revertetur. — In cujus rei testimonium sigillum nostrum 
 ' huic presenti carte nostre est appensum : — Apud Edinburgh, vicesimo die mensis Octobris, Anno Domini millesinw 
 ' quadringentesimo octuagesimo octavo : — Coram hiis testibus, carissimo fratre nostro, Alexandre Lindesay de 
 ' Uchterrounsy, dilecto consanguineo nostro, Alexandre Guthre de eodem, militibus ; Thoma Fothringhame de 
 ' Powry, armigero ; Domino Alexandro Scot, rectore de Wigtoun ; et Magistro Gilberto Tiry, rectore de Lyne, 
 ' cum diversis aliis :' — Quamqtjidem Cartam, ac donationem, et concessionem in eddem cantentas, in omnibus suis punctis 
 et artioulis, conditionihus et modis, ac ciroumstantiis suis quibuscunque, fonnd pariter et effectu, in omnibus et per omnia, 
 approbamus, ratificamus, et pro nobis et successoribus nostris, ut premissum est, pro perpetuo conflrmamus, — Sal vis nobis 
 et successoribus nostris juribus et servitiis de dicti annua pensione sive annuo redditu, cum pertinentiis, ante 
 
 * That is, to be held of the Duke's heirs male, on whom the decease. Here, as uniformly elsewhere, reference must be made 
 
 revenues in question were entailed, and of whom, his heirs male to the standing investitures for the true legal interpretation of 
 
 collateral, and not of the nearer and direct heirs of line, the the term " heirs." 
 Duchess accordingly held till her death, long after her husband's 
 
APPENDIX, 515 
 
 esentem^ nostram confirmationem nobis debitis et consuetis. In cujus rei testimonium present! Carte nostre 
 Confirmationis magnum sigillum nostrum apponi precepimus :- Testibus Eeverendis in Christo patribus, Roberto 
 Episcopo Glasguensi, Georgio Episcopo Dunkeldensi; dilectis consanguineis nostris, Colino Comite de Ergile, 
 Domino Campbell et Lorn, Cancellario nostro ; Patricio Comite de Bothvile, Domino Halis, Magistro Hospicii 
 nostn ;^ Johanne Domino Drummond, Justiciario nostro ; Alexandro Hume de eodem, Magno Camerario nostro ; 
 Andrea Domino Gray ; Laurentio Domino Oliphaunt ; Venerabili in Christo patre, Johanne Priore monasterii 
 nostn Sancti Andrea, nostri Secreti Sigilli Custode ; Willielmo Knollis, Preceptore de Torphichin, milite, 
 Thesaurario nostro; et dilectis clericis nostris, Alexandro Inglis, Archidiacono Sancti Andree, Compotorum 
 iiostrorum Rotulatore, Rotulorum nostrorum et Registri ac Consilii Clerico ; et Archibaldo Quhytelaw, Subdecano 
 Glasguensi, Secretario nostro :— Apud Edinburgh, vkesimo die mensis Octobns, anno Domini mOesimo quadringentesinw 
 octuagesimo octavo, et regni nostri primo." 
 
 (2) Proof that Scottish peers were frequently designated by their inferior hut older titles, ut 
 supra : — 
 
 (i.) Charter by " Johannes Comes de Levenax," 26th April 1489 ; and Confirmation 
 thereof by James IV. under the Great Seal, 6th May 1489, after full and minute 
 examination and approval, reciting it verlatim and confirming it after recitation in 
 all its points, — but in the preamble of which (merely) the charter is described as 
 the charter " Johannis Domini Dkknlie " simply, the Earl's inferior title, although 
 he was then sitting in Parliament and in lawful and recognised possession of the 
 Earldom, — a case pi-ecisely parallel to the preceding one, in which David Duke 
 of Montrose is similarly described in the preamble of the Confirmation 20th 
 October 1488 as " Earl of Crawford." *— From the Great Seal Register,^ 
 ' Minutes of Evidence,' p. 122. — (Referred to supra, pp. Ixxviii, xc.) 
 
 (No. CLX.) 
 
 " Carta Confirmans Jacobo Crawfurd de Seidhill terras de Kilwynnet. 
 " Jacobus, Dei gratia Rex Scotorum, Omnibus probis hominibus tocius terre sue, clericis et laicis, Salutem. 
 Sciatis nos quandam Cartam Johannis Domini Deenlie, factam et concessam dilectis nostris Jacobo Craufurde et 
 Elizabeth Galbraith sponse sue, et eorum alteri diutius viventi, et heredibus inter ipsos legittime procreatis sen 
 procreandis, quibus deficientibus, veris heredibus sen assignatis dicti Jacobi quibuscunque, de omnibus et singulis 
 terris de Kilwynnet, cum pertinentiis, jacentibus infra Vicecomitatum nostrum deStrivelin, de mandato nostro visam, 
 lectam, inspectam, deligenter examinatam, sanam, integram, non rasam, run cancellatam, noc in aliqua sui parte suspectam, 
 ad plenum intellexisse, sub hac forma : — ' Omnibus hane cartam visuris vel audituris Johannes Comes de Levenax et 
 ' Bominus Dernly Salutem in Domino sempiternam. Noveritis nos dedisse, concessisse, et hSc presenti carta nostra 
 ' confirmasse, necnon dare, concedere, et hSc presenti carta nostra confirmare, dilectis nostris Jacobo Craufurde de 
 ' Seidhill et Elizabeth Galbraith sue sponse, et eorum alteri diucius viventi, et heredibus inter ipsos legittime pro- 
 ' creatis seu procreandis, quibus deficientibus, veris heredibus seu assignatis dicti Jacobi quibuscunque, pluribus aut 
 ' uni, pro suis serviciis nobis impensis et impendendis, omnes et singulas terras nostras de Kilwynnet, cum perti- 
 ' nentiis, jacentes in Comitatu nostro de Levenax, infra Vicecomitatum de Strivelin : — Quequidem terre de Kil- 
 ' wynnet, cum pertinentiis, fuerunt hereditarie Johannis Blar de Adamtoun et Elizabeth Colquhone ejus sponse, et 
 ' quas idem Johannes et Elizabeth ejus sponsa, non vi aut metu ducti, nee errore lapsi, sed suis meris et spontaneis 
 ' voluntatibus, in manibus nostris tanquara in manibus domini superioris earundem, ob eorum et suorum heredum 
 ' raagnam utilitatem, commodum, et proficuum, prout nobis luculenter constabat, per se, apud raonasterium de 
 ' Pasleto, in presentia multorum, sursum reddiderunt ac per fuslem et baculum pureque simpliciter resignarunt ac 
 ' totum jus et clameum, proprietatem, et possessionem, que et quas in dictis terris cum pertinentiis habuerunt aut 
 ' quovismodo pro se et heredibus suis habere poterunt, nobis, tanquam domino suo superiori, omnino quiete clama- 
 ' verunt imperpetuum : — Tenendas et habendas omnes et singulas prenominatas terras de Kilwynnet, cum pertinentiis 
 ' prefatis Jacobo et Elizabeth sue sponse, et eorum alteri diucius viventi, et heredibus inter ipsos legittime pro- 
 ' creatis seu procreandis, quibus deficientibus, veris heredibus seu assignatis dicti Jacobi quibuscunque, pluribus aut 
 
 • uni, de nobis et successoribus nostris, Comitibus de Levenax, in feodo et hereditate, imperpetuum, per omnes rectas 
 ' metas suas, antiquas et divisas, prout jacent in longitudine et latitudine, in domibus, edificiis, boscis, planis, 
 ' moris, marresiis, pratis, pascuis, et pasturis, viis, semitis, aquis, stagnis, silvis, rivolis et lacubus, petariis, turbariis 
 ' carbonis, carbonariis, columbis, columbariis, cuniculis, cuniculariis, brueriis et genestis, lignis, lapicidiis, lapide et 
 ' calce, cum molendinis, multuris, et eorum sequelis, aucupationibus, venationibus et piscationibus, cum curiis et 
 ' earum exitibus, amerchiamentis, herezeldis, bludwitis et merchetis mulierum, cum communi pastura, ac libero 
 ' introitu et exitu, ac cum omnibus aliis et singulis commoditatibus, libertatibus, proficuis, et asiamentis, ac justis 
 ' pertinentiis, spectantibus seu juste spectare valentibus quomodolibet in futurum ; et adeo libere, quiete, plenarie 
 
 ' integre, honorifice, bene et in pace, in omnibus et per omnia, sicut dictus Johannis Blar aut predecessores sui 
 ' prenominatas terras cum pertinentiis de nobis aut predecessoribus nostris, Comitibus de Levenax, ante presentem 
 
 * resignationem nobis factam, liberius tenuit seu possedit, tenuerunt seu possederunt, sine retinemento, revocatione, 
 
 * The only difference is in favour of the Claimant — Lennox not being mentioned at all in the title of the Confirmation. 
 
 3 U 
 
516 APPENDIX. 
 
 ' aut contradictione quacunque : — Eeddendo inde annuatim dictus Jacobus Crawfurde et Elizabeth ejus sponsa, 
 ' et eorum alter diucius vivens, et heredes inter ipsos legittime procreati seu procreandi, quibus deficientibus, heredes 
 ' dicti Jacobi et assignati quicunque, plures aut unus, nobis et successoribus nostris, Comitibus de Levenax, eadem 
 ' servicia et jura sicut dictus Johannes Blar aut predecessores sui nobis aut predecessoribus nostris, Comitibus 
 ' antedictis, pro predictis terris facere consiieverant. Et nos vero, predictas Johannes Comes de Levenax, heredes et 
 ' successores nostri, omnes et singulas supradictas terras de Kilwinnet, cum pertinentiis, prefato Jacobo Craufurde 
 ' et Elizabeth sponse sue, et eoruni alteri diucius viventi, et heredibus inter ipsos legitime procreatis seu procreandis, 
 ' quibus deficientibus, veris legitimis et propinquioribus heredibus seu assignatis dicti Jacobi quibuscunque, pluribus 
 ' aut uni, adeo libere et quiete, in omnibus et per omnia, forma pariter et efFectu, ut predictum est, contra omnes 
 ' mortales varantizabimus, acquietabimus, et imperpetuum defendemus : — In cujus rei testimonium huie presenti 
 ' carte nostre sigillum nostrum appendi fecimus : — Apud monasterium de Pasleto, vicesima sexto die mensis Aprilis, 
 ' anno Domini millesimo quadringentesimo octuagesimo nono : — Coram hiis testibus, Venerabili in Christo patre, Georgio, 
 ' permissione divina Abbate de Pasleto ; Roberto Sympill de Fowlwood ; Johanne Eailstoun de eodem ; Roberto 
 ' Caveris ; Thoma Sympill ; et Johanne Paris, — cum multis aliis :' — Qltamquidem Cartam, ac donationem et con- 
 cessionem in eadem contentas, in omnibus suis punctis et artioulis, conditionibus et modis, ac drcumstantiis suis, quibuscunque, 
 forma pariter et effeotu, in omnibus et per omnia, approbamus, ratificamus, et pro nobis et successoribus nostris, ut premissum 
 est, pro perpetuo confirmamus, — Salvis nobis et successoribus nostris juribus et serviciis de dictis terris cum pertinentiis 
 ante presentem cnnfirmationera nobis debitis et consuetis. — In cujus rei testimonium presenti Carte nostre Con- 
 firmacionis magnum sigillum nostrum apponi precipimus : — Testibus Reverendis in Christo patribus, Roberto 
 Episcopo Glasguensi ; Georgio Episcopo Dunkeldensi ; dilectis consanguineis nostris, Colino Comite de Ergile, 
 Domino Campbell et Lome, Cancellario nostro ; Patricio Comite de Boithvile, Domino Halys, Magistro Hospicii 
 nostri ; Johanne Domino Drummond, Justiciario nostro ; Alexandre Hume de eodem, Magno Camerario nostro ; 
 Andrea Domino Gray, Laurentio Domino Oliphant ; Venerabili in Christo patre, Johanne Priore monasterii nostri 
 Sancti Andree, Secreti Sigilli Custode ; Willielmo Knollis, Preceptore de Torphichin, milite, Thesaurario nostro ; 
 et dilectis Clericis nostris, Magistris Alexandre Inglis, Archidiacono Sancti Andree, Compotorum nostrorum Rotu- 
 latore, ac Clerico nostrorum Rotulorum Registri et Consilii ; et Archibaldo Quhitelaw, Subdecano Glasguensi, 
 Secretario nostro. — Apud Edinburgh, sexto die mensis Maij, anno Domini millesimo quadringentesimo octuagesimo nono, 
 et regni nostri primo." 
 
 (ii.) Charter by " Johannes Comes de Levenax," 16th August 1477 ; and Confirmation 
 thereof by James IV. under the Great Seal, 25th June 1489, — wherein the charter 
 is described in the preamble as a charter granted by " Johannem Dominum 
 " Dernleb " simply, the Earl's inferior title — precisely as in the preceding piece of 
 evidence, and in the charter confirming Duke David's grant to Margaret Car- 
 michael. — From the Great Seal Register.—' Minutes of Evidence,' p. 120. (Re- 
 ferred to supra, pp. Ixxviii, xcv.) 
 
 (No. CLXI.) 
 
 " Carta Confirmans Thome Stewart de Minto terras de Househill. 
 
 " Jacobus, Dei gratia Rex Scotorura, omnibus" &c.* " Salutem. Sciatis nos quandam cartam per consan- 
 guineum nostrum Johannem Domindm Dernlee dilecto arraigero nostro Thome Stewart de Mynto et Isabelle 
 Stewart ejus sponse, in conjunct^- infeodatione, et heredibus suis, de omnibus et singulis terris de Househill, cum 
 pertinentiis, jacentibus infra Vicecomitatum nostrum de Renfrew, de mandato nostro visam, lectam, inspectam, diligenter 
 examinatam, sanam, integram, non rasam, non cancellatam, nee in aliqud sui parte suspectam, ad plenum intellexisse, sub 
 hac forma : — ' Omnibus hanc cartam visuris vel audituris Johannes Comes de Levenax et Dominus Dernlee Salutem in 
 ' Domino sempiternam. Noveritis nos dedisse . . . dilectis consanguineis nostris Thome Stewart de Mynto et 
 ' Isabelle Stewart, sponse sue . . . totas et integras terras de Househill,' &c. ' Et nos vero dictus Johannes Comes 
 ' DE Levenax et Dominus Dernlee, ac heredes nostri, totas et integras prefatas terras . . contra omnes mortales 
 ' warantizabimus,' &c. ' Apud Edinburgh, decimo sexto die mensis Augusti, anno Domini millesimo quadringentesimo. 
 ' septuagesiino septi7no,' &c. &c.—QuAMqnwEM OARTAM . . . in o^nnibus suis punctis et artioulis, conditionibus, et modis, og 
 drcumstantiis suis quibuscunque, formd pariter et effectu, in omnibus et per omnia, approbamus, ratificamus, et pro nobis et 
 successoribus nostris, ut premissimi est, pro perpetuo confirmaw.us," &c.— " Apud Edinburgh, mcesimo quinto die mensis 
 Junii, anno Domini millesimo quadringentesimo octuagesimo nono, et regni nostri secundo." f 
 
 Observation. 
 
 Of the two preceding documents the Claimant adduced the latter— the Confirmation by James IV., 25th 
 June 1489, of a Charter by John Earl of Lennox, 16th August 1477— in his Original Case, pp. 7, 30, 
 
 * This document, being in the satne form as the preceding, is being in the first and the second year of the King's reign addi- 
 
 abridged here. It may be seen in extenso in the second of the tionally refute Lord St. Leonards' assumption (adopted from Lord 
 
 two pages of the Great Seal Register, given in facsimile infra, Loughborough) that the reign of James IV was reckoned not 
 
 between pp. ,530 and 531. from the death of his father on the 1 1th June 1488, but from the 
 
 T The respective dates ot this and the preceding charter, as 2nd of February preceding. Vide supra, p. iv, note t. 
 
APPENDIX. 517 
 
 as in all respects resembling the Confirmation of Duke David's charter to Margaret Carmichael. The 
 Duke of Montrose having objected to this illustration that in 1477 and down to 1488 the Earldom of 
 Lennox was not considered rightfully to appertain to the Darnley family, the Claimant adduced in his 
 Supplemental Case, p. 121, the former of the two documents in question, the Confirmation, 6th May 1489, 
 of a Charter by John Earl of Lennox in April 1489, which is equally in point and quite unexceptionable 
 — Lennox being fully recognised as Earl by James IV. and otherwise in 1489, the year when loth the 
 Charter and Confirmation passed, — as by the following evidence : — 
 
 1. Roll of the Parliament which met on the 6th October 1488 and passed, on the 17th of that month, 
 the Act Rescissory. — Acts of Parliament, vol. ii. id. 199. — ' Minutes of Evidence,' p. 124. — 
 (Referred to supra, p. Ixxix, n. *.) 
 
 (No. CLXII.) 
 
 " Parliamentum . . Jacobi Quarti, Dei gracia," &c. " tentum . . apud Edinburgh, die 
 Lune, sexto die mensis Octdbris, anno Domini milUsimo guadringentesimo octiutgesimo 
 octavo," &c. 
 • ,♦*** 
 
 " Secunda dies Parliamenti. Presente supremo domino nostro Rege. 
 " Presentes eodem die. 
 
 " Fro Clero. 
 
 " ArehiepiscopuB Sancti Andres. 
 " Episcopi Glasguensis 
 
 " Dunkeldensis," &c. &c. 
 
 " Pro Baronibus. 
 " Colinus Comes de Ergile, Cancellarius, etc. 
 " Archibaldus Comes Angusie. 
 
 " Comes de Huntle. 
 " Jacobus Comes de Mortoun. 
 " Wilelmus Comes de Erole. 
 " Willelmus Comes de Merschell. 
 " Johannes Comes dk Levenax. 
 " Georgius Comes de Rothes. 
 
 " Comes Atholie. 
 
 " Comes Buohanie." 
 &c. 
 
 2. Entry of a Charter hy James IK, 20th October 1488, to ' John Earl of Lennox.'— From the 
 Chreat Seal Register.—' Minutes of Evidence,' p. 125.— (Eefened to supra, p. Ixxix, n. *.) 
 
 (No. CLXIIL) 
 
 " Carta Duncani Forestare super terris de Torwood et Torwodhede, etc. 
 
 " Jacobus, Dei gracia. Rex Scotorum," " Apud Edinburgh, vicesimo sexto die mensts 
 Nmembris, anno Domini miUesimo quadringentesimw octnagesimo octavo, et regni 
 nostri primo." * 
 
 " Litera facta fuit Johanni Comiti de Levenax, Domino Dernlee, et Matheo Stewart, 
 suo filio et heredi apparent!, ac eorum alteri diucius viventi, pro vita eorundem, 
 super custodia castri de Dunbertane ac fortaliciorum et domorum ejusdem, cum 
 omnibus terris, feodis, proficuis, et devoriis, quas et que quondam Andreas Dominus 
 Avandale habuit pro custodia eorundem. Etc. Apud Edinburgh, xx" Octdbris, 
 anno Drnnini et Regis prius notatis." 
 
 It is almost superfluous to remark that the objection started by the Duke of Montrose and adopted by the 
 Crown in their opposition to the present claim has no real foundation or validity. The Earldom of 
 Lennox having been recognised in 1488 as rightfully appertaining to the Darnley family, the Crown in 1489 
 necessarily regarded John Lord Darnley as having been Earl of Lennox ' dejure ' as well as ' de facto ' in 
 1477 amd cannot be supposed to have stultified itself by intentiorwlly withholding the title which it had 
 just recognised. But, the Claimant having adduced an illustbation quite unexceptionable on the 
 HYPOTHESIS OF THE NoBLE Duke's OBJECTION BEING WELL FOUNDED, and On which (to obviatc unneces- 
 sarv discussion) he Imd laid his chief dependence, he cannot but express his astonishment that the Crown 
 in their addresses to the Committee should have completely ignored that illustration and laid exclusive 
 weight upon the instance originally brought forv)a/rd. 
 
 * This is quoted merely to shew the date of the subsequent Charter, founded upon. 
 
 3 U 2 
 
518 APPENDIX. 
 
 (iii.) Protest before the Supreme Civil Court, 17th November 1505, by George Graham, 
 brother to William first Earl of Montrose (in whose favour the Royal Charter, 
 adduced by the Crovpn and by the Claimant, sv^pra, p. 413, erecting the lands of 
 Auld Montrose into the Earldom of Montrose, was granted on the 3rd March 
 1504-5, and who was therefore unquestionably Earl of Montrose in November 
 1505), — in which Protest the Earl is styled simply ' Loed Gbaham.' — From the 
 ' Acta Dominorum Concilii.' — ' Minutes of Evidence,' p. 127.— (Referred to supra, 
 p. xcv.) 
 
 (No. CLXIV.) 
 
 "xv'o Novembris, anno v" v'° " (1505). 
 
 "Sederunt," &c. &c. 
 
 " xvj*" Novembris, anno ut supra. 
 
 " Comperit," &c. 
 
 " xvij Novembris. 
 
 " Sederunt," &c. &c. 
 
 " George Grrahame, brother to the Lord Geahame, protestit quhat ever war done betuix the Lord Oliphant 
 and Johne Oliphant, suld [sic] anent the warrandice of Dunfally, or ony uther wais, suld not turn him to prejudice 
 anent his landis of the Bunzeane, in the quhilk he was feft, as he allegit, hord decimd." * 
 
 (iv.) Contract, 22 May 1517, between the Earls of Eglinton and Glencairn, registered 
 in the Books of the Supreme Civil Court, in the endorsement of which the Earls 
 are described, in a contemporary hand, as Lords 'Montgomery' and ' Kilmaurs,' 
 simply. — From the ' Acta Dominorum Concilii.' — ' Minutes of Evidence,' p. 127. 
 — (Referred to supra, p. xcv.) 
 
 (No. CLXV.) 
 " (Dorso.) Contractus inter Dominos db Montgom'bt bt Kilmaweis. 
 " At Edinburgh, the xxii day of May, the zere (year) of God j" v" and xvij zeris, We Johne Duke of 
 Albany, . . tutor to oure Soverane Lord the King, protector and governor of his realme of Scotland, in the actioun 
 and caus of controversy debait . . [between] . . Erie of Eglintoun Lord Montgomery, and John Montgomery Maister 
 of Eglintoun, his son and apperand air, thare kyn and freyndis, . . and Cuthbert Erie of Glencarne Lord Kilmawris, 
 and William Cunynghame Maister of Glencarne, his sone and apperand are, thare kyn and freyndis," &c. &c. 
 
 Observation. 
 
 Not printed at full length, the document being extremely decayed, and in places hardly intelligible. After 
 the preamble, as above, the Duke proceeds to pronounce a Decreet Arbitral between the parties, and 
 orders it to be enrolled in the Books of Council, and copies to be given to them. The ' Domini' 'de 
 ' Montgomery et Kilmawris' are styled Earls of Eglinton and Glencairn throughout the body of the 
 document. 
 
 For other similar proof, shewing that Alexander first Lord Home, so created in 1473, and Alexander second 
 Lord Home, are both occasionally styled as commoners at the close of the fifteenth and beginning of 
 the sixteenth century, seethe S. Case, p. 121, 122, and Addenda, pp. 215 sqq. ; and supra, p. xcv. 
 
 (3) Proof that David Duke of Montrose was occasionally styled ' Earl of Crawford ' even after 
 the Regrant in Septemher 1489 : — 
 
 (i.) Statement in the Exchequer Rolls, 5th July 1491, that a payment was made to the 
 ' Eabl of Ckawfoed ' — the Earl being then unquestionably Duke of Montrose. — 
 From the Rolls preserved in Her Majesty's General Register House, Edinburgh. 
 — ' Minutes of Evidence,' p. 129. — (Referred to supra, p. xciii.) 
 
 (No. CLXVI.) 
 " Compota Custumariorum, anno nonagesimo primo" (1491). 
 
 " Compotum Walter! Drummond et David Rollok, Custumariorum burgi de Donde, redditum apud Lin- 
 lithgw quinto die mensis Julii, anno Domini etc. nonagesimo primo, de omnibus receptis suis et expensis per magnam 
 custumam dicti burgi a die sexto mensis Julii, anni nonagesimi, usque in diem hujus compoti. 
 
 * * * « # * 
 
 " De quibus allocatur eompotantibus," &c. — " Et Comiti Ceawfuedie, percipient! annuatim centum marcas 
 de magnis costumis dicti burgi, de anno compoti et sub periculo compotantis, Ixvi lib., xiii s., iiij d." 
 
 * " It need scarcely be added that the ' LordGrahame' alluded " and who besides is stated in aU the family pedigrees to have 
 " to could be no other than William first Earl of Montrose, who " actually had a younger brother of the name of George, — while 
 " bore and was entitled to that honour at least as early as 1504, " he had no son of that name." — Supplemental Case, p. 122. 
 
APPENDIX. 519 
 
 (ii.) Statement in the Exchequer Rolls, 29th July 1492, that a payment had been 
 made to the ' Earl of Cbawfoed,' ut supra. — From the same locality. — ' Minutes 
 ' of Evidence,' p. 130.— (Referred to mpra, pp. xciii, xcv.) 
 
 (No. CLXVII.) 
 " Coinpota Custumariorum, anno nonagesimo secundo " (1492). 
 
 * * « 
 
 « * # 
 
 " Compotum Walteri Drummond et David Rollok, Custumariorum burgi de Dunde, redditum apud Edin- 
 burgh xix die rmnsis Jalii, anno Domini etc. nonagesimo secundo, de omnibus receptis suis et expensis per magnam 
 custumam dicti burgi a die quinto dicti mensis, anno Domini etc. nonagesimo prima, usque in diem Aujus compoti. 
 * ***** 
 
 " De quibus allocatur compotantibus," &c.— " Et Comiti Ceaufuedie, percipienti annuatim centum marcas 
 de dictis custumis de anno compoti, ut patet per literas suas sub signeto et subscriptione fatentes receptionem 
 super compotum, Ixvi lib., viii s., iiii d." 
 
 Observation. 
 
 Independently of the fact that the ' Earl of Crawford ' in 1492 was by universal acknowledgment ' Duke of 
 ' Montrose ' in that year, the Accountant in this instance expressly states that he had immediately under 
 his eye tlie Duke's acquittance or receipt, bearing his seal and signature— jc^tic^ were unquestionably those 
 of 'Duke op Montrose' in 1492; notwithstanding which he styles him i4< sitpm, simply, 'Earl of 
 ' Crawford.' Both the preceding Compota are abridged here. 
 
 ii. Resignation op the hebeditabt Shemepdom op Poeeaeshiee to James IV. by Datid Duke oe Montbose, 
 AXD THE King's acceptance theeeop pbom Duke Datid, as Duke : — 
 
 (1) Notarial Protest by David Duke of Montrose, 2dth October 1488, against the compulsory 
 extortion of the Sheriffdom ; nari-atiny the circumstances which preceded and attended 
 it — the full, unqualified, and absolute Remission and Pardon granted to the Duke 
 under the Privy Seal by James IV., for his (the Duke's) adherence to the late King, 
 and the conditions subsequently imposed upon him — transactions constituting {as the 
 Claimant contends) a contract between the King and the Duke, the terms of which the 
 Duke fulfilled, entitling himself to full and absolute recognition as Duke, Sfc. Sfc. — 
 From the original, preserved among the collections of Sir James Balfour, Lord Lyon 
 King-at-Arms to James I. and Charles I., now in the Library of the Faculty of Advo- 
 cates, Edinburgh. — ' Minutes of Evidence,' p. 86. — (Referred to supra, p. Ixxx.) 
 
 (No. CLXVIII.) 
 
 " In Dei nomine. Amen ! Per hoc presens publicum " In the name of God, Amen ! Let it appear evidently 
 
 instrumentum cunctis pateat evidenter et sit notum, quod to all men and be known by this present public instru- 
 
 anno Domini millesimo quadringentesimo octuagesimo octavo, die ment, that in the year of our Lord one tJumsandfour hundred 
 
 vicesimo nono mensis vero Octobris, indictione sexta Ponti- and eighty-eight, on the twenty-ninth day of the month, 
 
 ficatus sanctissimi in Christo patris, et domini nostri, namely, of October, in the sixth Indiction, and in the 
 
 Domini Innocentii, divina providently Pape, Octavi, fifth year of the pontificate of the most holy father in 
 
 anno quinto — in mei, notarii publici, et testium sub- Christ, and our Lord, the Lord Innocent, by divine 
 
 scriptorum presenci^ personaliter constitutus, nobilis, Providence Pope, — the noble, magnificent, and potent 
 
 magnificus,et potens dominus, David Dux de Montrose, Lord, David Duiceof MoNTKOfeE, Uarl of Crawford, and 
 
 Comes Craufurdie, et Dominus Lindesay, ex sua certa Lord Lindsay, in the presence of me, notary public, and 
 
 scientia ostendit et declaravit, et multum lamentabiliter of the witnesses underwritten, shewed and declared, and 
 
 exposuit, qualiter post magnam displicientiam quam illus- very lamentably set forth, from his certain knowledge, 
 
 trissimus et serenissimus princeps noster, Jacobus Scotorum how, after the great displeasure which our most illustrious 
 
 Bex:, Quartus, conceperat contra personam suam, ac contra and serene prince, James, King of Scots, the Fourth, had 
 
 consanguineos, amicos, et homines suos, ex eo quod steterat et conceived against his person, and against his kinsmen, friends, 
 
 constanter permansit cum reoollendissime memorie excellentis- and men, because that he had stood and constantly adhered 
 
 simo Rege suo, Jacobo Teroia, apud Strivelyng et alubi, ubi to the last to his most excellent King, of revered memory, 
 
 diem suum clausit extremum, cujus animabus [sic] Altissi- James the Third, at Stirling and elsewhere, where he closed 
 
 mus propicietur Deus ! in quo loco multos sustinuit ictus, his last day — to whose soul the most high God be pro- 
 
 captus, detentus, lesus, vulneratus, atque cum suis re- pitious ! in which place he sustained many blows, 
 
 demptus fuerat,^ — Nichilominus, hiis transactis, predictus captures, detentions, injuries, wounds, and was ran- 
 
 exceUentissimus Sex noster Jacobus modernus, ex suo spedali somed with his followers, — Nevertheless, our said most 
 
 favare et innatd regali gratia, eemisit et indulsit sibi excellent King, James that now is, from his special favour 
 
 OMNIMODAM HUjusMODi DiSPLiciENCiAM PEE LiTTEEAS SUAS and innate royal grace, indulged aot) remitted to him, by 
 
 Patentes SUO SiGiLLO Peivato signatas, et ipsas Litteras his Letters Patent sealed with his Peivt Seal, his 
 
520 
 
 APPENDIX. 
 
 DISPLEAStJEE OF EVERY SORT IN THIS MANNER CONCEIVED 
 
 AGAINST HIM, and delimred these Letters into the hands of a 
 nolle, Lord Andrew Lord Gray, to remain with him until 
 THE SAID Lord Duke should deliver and assign [tohimJhis 
 OFFICE of the Sheriffdom of Forfar, heritably and in 
 no other manner : — For this cause the said Lord Duke 
 solemnly protested, /or remefll!/ of law at a fitting season, 
 that whatever he may do respecting the donation of 
 his office forsaid, or of his lands or other goods or 
 things, shall not prejudice him or his heirs in time to come, 
 since truly he is constrained to do this through such 
 fear of death as may befall a constant man, and of the loss 
 of his heritage, — and this that he doth, he doth, in fact, as he 
 asserted, against his will, for the preservation of his life and 
 heritage, as also for the preservation of his kinsmen, friends, 
 and men, who still stand and remain under the royal ban 
 from the cause above noted. "Whereupon the said Lord 
 Duke required from me, notary public, subscribed, an 
 instrument and instruments, one or more, to be exe- 
 cuted for him. These things were transacted in the 
 manor-place of the said Lord Duke at Dundee, at the 
 tenth hour before noon or thereabouts, year, day, month, 
 indiction, and pontificate as above ; being there present 
 provident and discreet men, Thomas Fotheringham, of 
 Powrie, Sir Alexander Guthrie, Eector of Lundychty, 
 of the diocese of Moray, Sir David Guthrie and Sir 
 David Colstoun, presbyters, witnesses simimoned to the 
 things premised. 
 
 " And I, Henry Barry, priest of the diocese of St. 
 Andrew, Notary Public by authority of the Pope, 
 the Emperor, and the King, forasmuch as I, 
 along with the forenamed witnesses, was present, 
 knew, saw, and heard, and took note of each and 
 all of the premisses while thus, as is premised, they 
 were acted, said, and done; I, here subscribing, 
 have subscribed this present public instrument, 
 written from my note, by the hand of another, and have 
 reduced {redige) it into this public form, and have 
 signed it with my accustomed and wonted sign, name, 
 and subscription, for a testimony of the truth of the 
 premisses, — being called on and required so to do." 
 
 With Henry BaiTy's autograph monogram and subscription, in usual form.* 
 
 Observation. 
 
 On the preceding document being tendered in evidence, " Mr. Attorney General stated. That this appeared 
 " to him to be a private Document, without the Sanction of any Person of Authority, but that he had no 
 ' ' Objection to its being received de bene esse." ' Minutes,' p. 86. — The Claimant must observe, however, 
 that, this document having been adopted and tjegbd against him by the Grown and the Committee, 
 who have laid the greatest stress upon it in their arguments and Speeches, it must he considered 
 as having been accepted to all intents and purposes as evidence, and the Claimant is entitled 
 
 TO THE full benefit OF THE FACTS ESTABLISHED BY IT IN HIS FAVOUR — EIGHTLY AND COKEEOTLY 
 
 STATED AND EEPBESBNTED. The Claimant has sufficiently vindicated the importance and legal validity 
 of Notarial Instruments of this description; the admissibility of the present document, as evidence; the 
 fact that it became the basis of long litigations, enduring through more than half a century, between the 
 Gray and Crawford families ; the fact that an ancient copy is preserved in the Gray Charter-chest along 
 with the other papers appertaining to the litigation, &c. &c., in the Supplemental Case, pp. 91, 92. That 
 Protests of this description were not "private" documents, as supposed by the Attorney General, is 
 sufficiently clear from the colophon of the present instrument, as just given. 
 
 ad manus nohilis domini Andree Domini Gray tradidit, secum 
 remansueas quousque idem Dominus Dux suum officium 
 Vicecomitis de Forfab hereditaeie, et nullo alio modo, 
 traderet et assignaeet: — Pro quibus, prefatus Dominus 
 Dux solemniter protestabatur, pro remedio juris tempore 
 opportune, quod quicquid faceret penes donacionem officii 
 sui predicti sen terrarum suarum, aut aliorum bonorum, 
 seu rerum, non prejudicaret sibi aut heredibus suis tempore 
 futuro, cum enim hoc facere, revera, astringitur propter 
 metum vite qui cadere potest in virum constantem, et 
 amissionis hereditatis sue, et hoc quodfadt, de facto, ut 
 asseruit, facit invite, ad conservandam vitam et hereditatem 
 suam, necnon ad conservandos consanguineos, amicos, et 
 homines suos, qui adhuc slant et remanent sub accusatione 
 regid pro causa superius notatd. Super quibus, idem 
 Dominus Dux a me, notario publico subscripto, sibi 
 fieri petiit instrumentum, et instrumenta, unum vel 
 plura. Acta fuerunt hec in manerio dicti Domini 
 Due is apud Dunde, hora quasi decima ante meridiem, 
 vel eocirca, sub anno, die, mense, indictione, et ponti- 
 ficatu quibus supra ; presentibus ibidem providis et 
 discretis viris, Thoma Fothringhame de Poury ; Dominis 
 Alexandro Guthre, Eectore de Lundychty, Moraviensis 
 diocesis, David Guthre, et David Colstoun, presbyteris, 
 testibus ad premissa vocatis pariter et rogatis. 
 
 "Et ME, Heneico Baeey, Presbytero Sancti Andree 
 diocesis, Apostolica, Imperiali, et Eegali autorita- 
 tibus Notario Publico, qui [_sic, — lege quia] premissis 
 omnibus et singulis, dum sic, ut premittitur, ageren- 
 tur, dicerentur, et fierent, una cum prenominatis 
 testibus presens interfui, scivi, vidi, et audivi, ac in 
 notam sumpsi, ex qua. presens publicum instrumentum, 
 aliens, manu scriptum, hie, me subscribendo, sub- 
 scripsi et in hanc publica/m formcmi redegi, signo, 
 nomine, et subscriptione meis solitis et consuetis 
 signavi, in testimonium veritatie premissorum, rogatus 
 et requisitus." 
 
 * Mr. Haig, who produced this document, being asked by Mr. 
 Stuart Wortley, " Are you sufficiently acquainted with Docu- 
 " ments of that date to state whether there was a Notary of that 
 " Name" (i.e. of the name of Henry Barry) " at that Time ? " 
 replied, " I am not." — Minutes of Evidence, p. 85. — Had Mr. 
 Melville been examined on the point, he could have produced 
 documents drawn up and signed by the Notary in question, and 
 other proof noticed in the S. Case, pp. 91, 92. But such proof 
 was unnecessary, as by the precedent in the Roxburghe case in 
 1822, in which a Notarial Instrument, an infeftment in 1499, was 
 
 admitted as probative by the House of Lords in an appeal from 
 the Court of Session, although not coming from the charter-chest of 
 the party affected, its proper custody, and actually affecting the Rox- 
 hurghe peerage and estates ; and by the dicta of Chief Justice Holt, 
 to the effect " that it was reoi necessary to prove a Notarial Instru- 
 " imnt, for that . . would destroy commerce and public transac- 
 " tions of this nature," — and of Lord Eldon, that " a Notary 
 " Public, by the law of nations, has credit everywhere; the Court 
 " therefore will give credit to him." See the ' S. Case,' 
 pp. 91, 92. 
 
APPENDIX. 
 
 521 
 
 (2) Procurator^/, or Power of Attorney, by David Duke of Montrose, signed and sealed hy 
 that title, 1st November 1488, addressed directly to James IV., and commissioning 
 certain noblemen to resign into the King's hands the Sheriffdom of Forfarshire. — From 
 the Gray Charter-chest. — '■Minutes of Evidence,' p. 87.— (Referred to supra, p. Ixxx.) 
 
 (No. CLXIX.) 
 
 " Excellentissimo Principi ac Domino nostro mctuen- 
 dissimo, Dei gratis Regi Scotorum, Illustrissimo, Vestre 
 Serenitati si placeat, humilis ligius David Dux de 
 Montrose ao Gomes Craufurdk reverencias omnimodas 
 cum honore. Ad sursum reddendum, resignandum, ac 
 pro nobis et iieredibus nostris* pro perpetuo, pure et sim- 
 pliciter, quieteclamandum totum et integrum ofRcium 
 Vicecomitis de Fforfar, cum universis et singulis suis 
 feodis, commoditatibus, consuetudinibus, proficuis, et 
 justis suis pertinentiis quibuscunque, in manus Vestre 
 Celsitudinis, tanquam in manibus Domini mei superioris 
 ejusdem, non vi aut metu ductus, nee errore lapsus, set 
 [sic] mea mera et spontanea voluntate, Nobiles et potentes 
 ac honorabiles viros, Patricium Comitem de Bothvele ao 
 Dominum Halis, Alexandrum Hume de eodem, Alexandrum 
 Lyndesay de Ochtermunsy, militera, Johannem Schaw 
 de Alvay, David Schaw, fratrem ejusdem, Thoraam 
 Fothringam de Powry, et Willielmum Monorgond de 
 eodem, et eorum quemlibet, conjunctim et divisim, meos 
 veros, legittimos, et indubitatos Procuvatores irrevo- 
 cabUiter facio, constituo, et ordino, tenore presencium 
 literarum : — Quod vero officium cum pertinentiis in 
 manus Vestre Celsitudinis sursum reddo, ac pure et 
 simpliciter reddo ; ita quod Vestre Regie Serenitati de 
 eodem disponere liceat ad vestre libitum voluntatis : — 
 Eatum et gratum habendo, et pro perpetuo irrevo- 
 cabiliter habituro, totum et quicquid dicti mei Pro- 
 curatores vel eorum aliquis in premijsis juste duxerint 
 seu duxerit faciendum : — In cujus rei testimonium 
 Sigillum meum presentibus est appensum : — Apud Bur- 
 gum de Dunde, prima die mensis Nmembris, anno Domini 
 millesimo quadringentedrrno octuagesimo octavo : — Hiis tes- 
 tibus, Thoma Fothringam de Poury, Alexandro Guthre 
 de eodem, Johanna Dempster de Ochterles, Nicholao 
 Fothringam, Magistro Henrico Barry, Eectore de 
 CuUace, Willielmo Maxwel de Tellyng, et Roberto 
 Seres, notario publico. 
 
 [Subscribed] '< p. Bot'C Off iWontrOSS." 
 
 " To my most excellent Prince and dread Lord, by 
 the Grace of God King of Scots, most illustrious, if 
 it may please Your Serenity ; I, your humble liegeman, 
 David Duice of Montrose and Earl of Crawford, offer 
 all manner of reverence and honour. By the tenor of 
 these present letters, I, being neither induced thereto by 
 force nor fear, nor falling into error, but of my own 
 mere and spontaneous will, do irrevocably make, con- 
 stitute, and ordain noble, potent, and honourable men, 
 Patrick Earl of Bothwell and Lord Haiks, Alexander Home 
 of that Ilk, Sir Alexander Lindsay, of Ochtermonzie, 
 Knight, John Shaw of Alva, David Shaw, his brother, 
 Thomas Fotheringham of Powrie, and William Monor- 
 gund of that Illf, and each one of them, conjunctly 
 and severally, my true, legitimate, and undoubted pro- 
 curators, for the purpose of rendering, resigning, and 
 purely and simply quitclaiming, on behalf of myself and 
 my heirs, for ever, the whole and entire Office of Sheriif 
 of Forfar, with all and each its fees, connnodities, 
 customs, profits, and just pertinents whatsoever, into the 
 hands of Your Highness, as in the hands of my Lord 
 Superior of the same : — Which Office, with its per- 
 tinents, I do up-render, and purely and simply resign, 
 in such manner that it may be lawful for Your Royal 
 Serenity to dispose of the same at the freedom of Your 
 will : — Holding as ratified and agreed, and for ever 
 irrevocably thus to hold, everything and whatsoever 
 the said my procurators or any one of them shall justly 
 do or judge right to be done in the premisses : — In 
 testimony of which thing my Seal is appended to these 
 presents:— At the Burgh of Dundee, on the first day 
 of the month of Nmernhefr, in, the year of our Lord one 
 thousand four hundred and eighty-eight, — Before these 
 witnesses, Thomas Fotheringham of Powrie, Alexander 
 Guthrie of that Ilk, John Dempster of Ochterless, 
 Nicholas Fotheringham, Mr. Henry Barry, rector of 
 Collace, William Maxwell of Teling, and Robert Seres, 
 notary public. 
 
 [Subscribed] " Baijiit iButtE of iWoitttose." 
 
 * That is, on behalf of himself and his heirs male— not general. See p. 514, n. ", supra ; and Analysis, p. cxli. 
 
522 APPENDIX. 
 
 Observation. 
 
 The following questions and answers passed upon the production of the preceding document :— 
 
 "Mr. Stuart Wmtley {to James Carnegie, Esq. jun., W.S.) .—Tlo yoa produce the original Procura- 
 
 tory of Resignation by David Duke of Montrose and Earl of Crawford of the Sheriffdom of 
 
 Forfar, which you received from Mr. Dundas ? 
 Mr. Carnegie. — I do (jjroducmg the same). 
 
 Mr. Stuart Wortleij.— Mr. Dundas is the Agent of Lord Gray of Kinfauns ? 
 Mr. Carnegie. — He is. 
 
 Mr. Stuart Wortley.—Jias it the Ducal Seal upon it ? 
 Mr. Carnegie.^lt has the Ducal Arras and Coronet." 
 — Minutes of Evidence, p. 87 :— And afterwards, 
 
 " Mr. Stuart Worthy (to George Melville, Esq.).— In the course of your Researches amongst ancient 
 
 Documents, have you become acquainted with the Handwriting of David Duke of 
 
 Montrose ? 
 Mr. Melville. — Yes. 
 
 Mr. Stuart Worthy . — Have you examined that Procuratory with the Seal attached to it ? 
 Mr. Melville. — I have, 
 
 Mr. Stuart Worthy.— Does it bear the Signature of David Duke of Montrose ? 
 Mr. MelviUe. — It does. 
 
 Mr. Stuart Worthy .-Th.^ Instrument of Resignation itself does not bear his Signature ? 
 Mr. Melville. — No.* 
 Mr. Stuart Worthy.— From your Knowledge of other contemporaneous Documents bearing his 
 
 Signature, do you believe that to be his original Signature ? 
 Mr. Melville. — I do. 
 Mr. Stuart Worthy (to James D. Eaig, Esq.).— Bo you produce a Book called ' Lindsay's 
 
 ' Heraldry ' from the ' Advocates' Library ?' f 
 Mr. Eaig. — I do (producing the same). 
 
 Mr. Stuart Worthy stated. That he produced this only for the Purpose of shewing that the Em- 
 blazonment which it contained corresponded with the Seal." 
 —Minutes of Evidence, p. 89. 
 
 (3) Notarial Instrument, executed by Andrew MacBrek, chaplain and protonotary to James 
 IV.,% Qth November 1488, narratiny and recording the Resiynation of the Sheriffdom 
 by David Duke of Montrose, as Duke {styled so throuyhout), throuyh his procurator 
 (acting upon the foreyoiny Procuratory, which, witJkits seal, exhibiting the Ducal arms 
 and title, was carefully examined and scrutinized in the Kinys presence before the 
 Resiynation was proceeded vnth) ; and recordiny also the oriyinal and fundamental 
 act of Donation and Regrant of the office by the King to Andreio Lord Gray — 
 at whose special and sole request the instrument was drawn up.- — From the Gray 
 Charter-chest. — ' Minutes of Evidence,' p. 87. — (Referred to supra, p. Ixxxi.) 
 
 (No. CLXX.) 
 
 " Ix Dei nomine, Amen. Per hoc presens publicum " In the name of God, Amen. By this present 
 
 instrumentum cunctis pateat evidenter, quod anno incar- public instrument let it appear evidently to all men, 
 
 nationis Bominice millesirrw quadringentesimo octuagesimo thai, in the year of the incarnation of our Lord one thousand 
 
 octavo, die vera mensis Novemhris sexto, indictione septima four hundred and eighty eight, on the sixth day of the month 
 
 pontificatus sanctissimi in Christo patris ac Domini of November, in the seventh indiction, and in the fifth 
 
 nostri, Domini Innocencii, Pape, Octavi, anno quinto, year of the pontificate of the most Holy father in Christ 
 
 Coram excellent'issimo serenissimoque prinoipi, ac domino and our Lord, the Lord Innocent the Eighth, Pope, 
 
 nostra. Domino Jacoho Quarto, Lei gratia Scotorum JRege there appeared before the most excellent and serene prince, 
 
 Ulustrissimo, ac regni sui anno primo, ac mei Notarii and our Lord, the most illustrious Lord James the Fourth, 
 
 Publici subscripti, ad hoc vocati et rogati, presentia, by the grace of God King of Scots, and in the presence of ■ 
 
 Gomparuit nobilis et potens dominus Alexander Home de me, Notary Public, underwritten, called and requested 
 
 eodem, procurator irreoocabilis ad infra-scripta magnifici et to this eflfect, a noble and potent Lord, Alexander Home 
 
 potentis domini, David Ducis de Montrose ac Comitis of that Ilk, Procurator irrevocable for the purposes under- 
 
 Craufurdie,f actus et constitutus, et legitime ordinatus pee written of a magnificent and potent Lord, David Duke 
 
 UNUM Procdkatorium sigillo propria dicti Ducis sigillatum of Montrose and Earl of Crawford, made and con- 
 
 roboratum, et munitum, prout mihi, Notario Publico sub- stituted and lawfully so ordained by A Peocueatory sealed, 
 
 scripto, meis intuentibus oculis, evidenti constabat docu- strengthened, and fortified with the said Duke's own seal, 
 
 mento, viz. ad resignandum, sursum reddendum, pure as appeared evidently to me, the Notary Public sub- 
 
 simpliciterque quittclaraandum, et libere deliberandum, scribed, my eyes beholding it, by the document in ques- 
 
 nomine et ex parte dicti David Ducis, totum et integrum tion, to wit, for the purpose of resigning, uprendering, 
 
 * Instruments of Resignation were only signed by the notary | For full proof of this, and of the close attachment of 
 
 who drew them up. Andrew MacBrek to James IV,, the Earl of Both well, Lord 
 
 f This was the original Matriculation Register of Sir David Gray, and the successful faction, see the ' Supplemental Case,' 
 
 Lindsay, Lord Lyon King-at-Arms,— the earliest record of pp. 95 sqq. See also the Analysis, supra, p. Ixxxiii. 
 Scottish heraldry. 
 
APPENDIX. 
 
 523 
 
 suuni officium Vicecomitatus de Forfar, cum universis 
 et singulis suis feodis, commoditatibus, consuetudinibus, 
 proficuis, et justis suis pertinentiis quibuscunque, in 
 manibus prefati domini nostri Regis, tanquam domini 
 superius [sic] ejusdem : — 
 
 QUOQDIDEM PeOCUEATOEIO viso, lectO, et IS PRESENTiA 
 
 DOMrai Regis totaliter intellecto, virtute, vigore, et potestate 
 prefati Proeuratorii dictus Alexander Heme, Procuratw et 
 nomine Procuratorw quo supra, coram celsitudine dicti 
 domini Regis, cum omni subjectione, famulatu, et reve- 
 rencia,, genibus flexis, ut decuit, sedens, totum et integrum 
 dictum officium Vicecomitatus de Forfar, cum universis et 
 singulis suis feodis, commoditatibus, consuetudinibus, 
 proficuis, et justis suis pertinentiis quibuscunque, in 
 manibus prefati domini Regis, tanquam ejusdem officii 
 domini superioris, donavit, sursum dedit, pure simplici- 
 terque, per fustem et baculum, ut moris est in talibus, 
 EISIGNAVIT ET DELIBEBAVIT, ac dictum dominum Ducem et 
 suos heredes* de dicto officio Vicecomitatus de Forfar, 
 cum universis suis pertinentiis, ut prefertur, exoneravit, 
 ac ipsum et ipsos de eodem omnino et imperpetuum quiete 
 inde chmavit, sic qmd dictus dominus noster Rex de eodem 
 officio cum pertinentiis prescriptis ad sueproprie libitum 
 voluntatis licite dispcmere valeat : — 
 
 Qdibusquidem donatiojte, resignacione, deliberatione, 
 et quittclamatione sic factis, receptis, et adraissis, pre- 
 fatus dominus noster Rex totum et integrum dictum officium 
 Vicecomitatus de Forfar, cum universis et singulis suis 
 feodis, commoditatibus, consuetudinibus, proficuis, ac 
 suLs justis pertinenciis quibuscunque, provide viro, Vil- 
 lielmo Liddale, tunc presenti, et coram Regia Majestate, 
 genibus flexis, ut decuit, sedenti, vero, legitime, et indu- 
 bitato actornato, et eo nomine, nobSis et potentis domini 
 Andree Domini le Gray, ut asseruit, pro bene meritis et 
 serviciis sepius et gratanter per dictum Andream 
 Dominum ly Gray prefato domino nostro Regi impensis 
 et impendendis, hereditarie et imperpetuum dedit, 
 donavit, ac per fustem et baculum, ut moris est, dicto 
 Villielnio Liddale, actornato, ut asseruit, et eo nomine, 
 dicti Andree Domini le Gray, assignavit et libere deli- 
 beravit, cum omnibus suis juribus et pertinentibus 
 superius annotatis, secundum vim, formam pariter, et 
 tenorem carte Regie dicto Andree Domino le Gray et 
 heredibus suis desuper conficiende : — 
 
 Super quibus, omnibus et singulis, dictus Villielmus 
 Liddale, actornatus ut supra, et eo nomine, et ex parte 
 dicti Andree Domini le Gray, a me, Notario Publico 
 subscripto, sibi fieri petiit unum vel plura, publicum vel 
 puUica, instrumentum vel instrumenta. 
 
 Acta erant hec in CamerA ReqiA apud castrum de 
 Halis, hord octavd ante meridiem vel eocirca, sub anno, die, 
 mense, indictione, et pontificatu quibus supra, presentibus 
 ibidem nobilibus et potentibus dorainis, Patricio Comite 
 de Bothvile ac Domino Halis, Alexandro Cockburne de 
 Ormistoune et Joanne Cockburne, ejus filio priraogenito 
 et herede apparente, Patricio Home de Fastcastell, 
 Alexandro Hepburne de Quhitsura, Thoma Home de 
 Colburnispetht, David Schaw, filio Jacobi Schaw de 
 Sauchy, Jacobo Quhitlaw, Petro Crechtoune, Andrea 
 Vod, et David Caldwellis, cum multis alps in prefatd 
 camerd in magna numero congregatis, testibus ad premissa, 
 vocatis specialiter et rogatis.' 
 
 purely and simply quit-claiming, and freely delivering 
 over, in the name and on the part of the said David 
 THE Duke, his whole and entire office of the Sheriflxlom 
 of Forfar, vtfith all and singular its fees, commodities, 
 customs, profits, and just pertinents whatsoever, into the 
 hands of the said our Lord the King, as of the Superior 
 Lord of the same : — 
 
 Which Peocueatory having been seen, read, and in 
 whole understood m the presence of cue Lord the King, 
 by virtue, strength, and power of the Procuratory fore- 
 written, the said Alexander Home, Procurator and in the 
 name of Procurator as above, kneeling with all subjection, 
 service, and reverence, on his bended knees (as behoved), 
 before the celsitude of the said mir Lord the King, gave, gave 
 up, \jmxr\ purely arid simply, by staff and baton (as is the 
 custom in such resignations), resigned and delivered 
 the whole and entire office of the Slieriffdom of Forfar 
 foresaid, with all and singular its fees, commodities, 
 customs, profits, and just pertinents whatsoever, into 
 the hands of our said Lord the King, as Superior Lord of 
 the said office, and exonerated the said Lord Duke and 
 his heirs of the said office of the Sheriffdom of Forfar, 
 with all its pertinents, as aforesaid, and quit-claimed him 
 and them of the same, wholly and in perpetuity, thence- 
 forth for ever, in such wise as that the said our Lord the 
 King might be able lawfully to dispose of the said office, with 
 its pertinents (Acme written, according to his own will : — 
 
 Which donation, resignation, delivery, and quit- 
 claim having thus been made, received, and admitted, 
 the said our Lord the King gave \_and'\ granted, here- 
 ditarily and for ever, the said whole and entire office of the 
 Sheriffdom of Forfar, with all and singular its fees, 
 commodities, customs, profits, and just pertinents what- 
 soever, unto a discreet man William Liddell, then present 
 and kneeling (as behoved) on his bended knees before 
 the King's Majesty, [as unto] the true, lawful, and un- 
 doubted attorney, and in that name (as he asserted), of a 
 noble and potent Lord, Andrew Lord Gray, in consider- 
 ation of the merits and good services often and freely 
 rendered and to be rendered to tlie said our Lord the 
 King by the said Andrew Lord Gray ; and, by staff and 
 baton (as is the custom), assigned and freely deliveeed 
 [the said office], with all its rights and pertinents above- 
 noted, to the said William Liddell, attorney (as he asserted) 
 and in that name of the said Andrew Lord Gray, — 
 [to be held] according to the force, form, and tenor of 
 the King's Cliarter to be executed in favour of Andrew 
 Lord Gray and his heirs upon the above terms : — 
 
 Upon which things, all and singular, the said William 
 Liddell, attorney, as above, and in that name, and on the 
 PAET OF the said ANDREW LoRD Gray, demanded one 
 or more public instrument or instruments to be executed for 
 him by me, Notary Public, subscribed. 
 
 These things were done in the Royal Chamber at 
 THE Castle of Hailes, at the eighth hour before noon or 
 thereabouts, year, day, month, indiction and pontificate, as 
 above, there being present noble and potent Lords, 
 Patrick Earl of Bothwell and Lord Hailes, Alexander 
 Cockburn of Ormistoun and John Cockburn his eldest 
 son and heir apparent, Patrick Plome of Fastcastle, 
 Alexander Hepburn of Whitsome, Thomas Home of 
 Cockburnspath, David Shaw, son of James Shaw of 
 Sauchie, James Whitlaw, Peter Crichton, Andrew Wood, 
 and David Caldwell, with many others congregated in great 
 number in the chamber fm-esaid, witnesses, specially called 
 and sought, to the things premised. 
 
 * Vide supra, p, 514, n. *, 521 ; and Analysis, p. cxli. 
 
 3 X 
 
524 APPENDIX. 
 
 "Et ego, Andreas Macbeek, Presbyter Dunkeldensis " And I, Akdkew MacBrbk, Priest of the diocese of 
 
 diocesis, Publicus auctoritatibus Imperiali et Regali Dunkeld, Notary Public by authority of the Empe- 
 
 Notarius, quia prefati officii Vicecomitatus de For- ror and the King, forasmuch as I, along with the 
 
 far dona'tioni, resignationi, et quittclatnationi ejus- witnesses forenamed, was present at the donation, 
 
 dem officii dicto Villielmo Liddale, actornato ut resignation, amd quitclaim of the said office of the 
 
 supra, per dictum Dominum Regem, donacioni et Sheriffdom of Forfar, and at the donation and assig- 
 
 assignacioni, ceterisque omnibus et singulis, dim sic, nation of the said office to the said William Liddell, 
 
 ut premittitur, agerentur, dicereniur, etfierent, una attorney as above, by the said Lord King, and at 
 
 cum prenominatis testibus, presens interfm, eaque the other things, all and singular, while thus, as is 
 
 omnia et singula sic fieri vidi, scivi, et audivi, ac in premised, they were acted, said, and done, and saw, 
 
 notam cepi, ideoque hoc presens publicum instru- knew, heard, and took note that they, all and singu- 
 
 mentum, manu mea propria fideliter scriptum, exinde lar, were thus done ; I, therefore, have made there- 
 
 confeci, et in banc publicam forniam redegi, signoque, from this present public instrument, faithfully writ- 
 
 nomine, et subscriptione meis solitis et consuetis sig- ten with my own hand, and have reduced (redige) 
 
 navi, rogatus et requisitus, in fidem et testimonium it into this public form, and have signed it with 
 
 veritatis omniumque et singulorum premissorum." my accustomed and wonted sign, name, and sub- 
 
 scription, being called on and requested so to do 
 for faith and testimony of the truth of all and sin- 
 gular the things premised." 
 With Andrew MacBrek's autograph monogram and subscription, in usual form. 
 
 Observation. 
 
 For the Charter, Precept, and Instrument of Seizin that followed upon this Resignation and Donation, vide 
 infra, pp. 528, 529. — The following questions and answers passed on the adduction of these three latter 
 Documents by Mr. Innos and Mr. Eraser on behalf of the Crown : — 
 
 "Sir John Bayley. — Have you brought with you or have you found any other Documents than 
 those which you have produced relative to the Resignation of the Sheriffdom of Forfar ? 
 
 Mr. Fraser. — I have none here. 
 
 Sir John Bayley. — Have you found any others except those which you have produced ? 
 
 Mr. Fraser. — Yes, — there are several others. 
 
 Sir John Bayley. — Why have you not brought those ? 
 
 Mr. Fraser. — Because I was not desired to do so by the Counsel in this cause. 
 
 Sir John Bayley. — Can you specify what those other Documents are which you have not brought ? 
 
 Mr. Fraser. — Not being prepared for the Question being put, I cannot specify them. 
 
 Sir John Bayley. — But there are several ? 
 
 Mr. Fraser. — There are several, which have all been communicated to the Counsel and Agents on 
 the other side. Tliere were many other Charters which were brought from the same Reposi- 
 tory " (that is, as previously stated, from " the private custody of Lord Gray "), " which were 
 all communicated to the Agents and Counsel for the present Claimant. 
 
 Mr. limes. — Were there any other Documents touching the Besignation and Begrant of the Sheriffdom 
 on this Occasion other than those which have been produced now f 
 
 Mr. Fraser. — None tJtat T recollect. 
 
 The Counsel for the Claimant were informed that if there were any other of these Docu- 
 ments which they desired to produce, they were at liberty to do so. 
 
 Mr. Innes (to Mr. Fraser). — / understand you to say that you have now produced all the Documents 
 that you have found touching the Besignation and Begrant of the Sheriffdom of Forfarshire ? 
 
 Mr. Fraser. — Yes. 
 
 By a Lord.— By ' other Documents,' which you say were found, you mean other Documents relating 
 to other matters ? 
 
 Mr. Fraser. — Yes." 
 
 —Minutes of Froceedings, MSS. — It thus appears from the evidence of the Crown (tendered by the 
 agents of the Duke of Montrose), that no other Frocuratory of Besignation and Instrument of Besigno/- 
 tion and Donation of the Sheriffdom of Forfarshire than the Procuratory of Resignation executed by 
 David Duke of Montrose on the 1st November 1488, and the Instrument of Resignation and Donation 
 executed by Andrew MacBrek on behalf of Andrew Lord Gray on the 6th November 1488, exist in the 
 Oray repositories. The " other documents " alluded to by Mr. Fraser are the series of papers (referred to 
 supra, pp. Ixxxiv, cxli), relating to the litigation carried on by the Earls of Crawford against the Lords 
 Gray, from 1532 and during the remainder of the sixteenth century, for the recovery of the Sheriffdom — 
 the Crawford family founding on the Protest of Duke David, above adduced, and figuring throughout, 
 without question or objection, as entitled to the Sheriffdom under the original Charter of the 19th October 
 1466 to David Earl of Crawford " et heredibus sot's " — if only the Besignation \st November 1488 were 
 out of the luay. The Claimant had proposed to found upon these later documents under the Second Head 
 of his argument, as proving that the limitation ' heredibus ' in the patent of the Dukedom 1488 must be 
 interpreted in the same manner as the identical limitation ' heredil)us' in the Charter of the Sheriffdom 
 1466, viz. as implying heirs male, not heirs general, — the Earls of Crawford who prosecuted this 
 litigation, and who figure in it admittedly as ' heirs ' of the grantee of the Sheriffdom under the regulating 
 investiture of 1466, being merely the collateral male representatives of that grantee, while intermediate 
 and nearer heirs general, the direct descendants Of the grantee, then existed — who would have had a 
 prior claim on the interpretation opposed (by the Duke of Montrose) to that of the Claimant, but whose 
 (supposed) rights were never either advanced by themselves or objected by the Gray family.* 
 
 * The argument derived from the parallelism of the two to David Earl of Crawford and to his " heirs " simply, — that is, 
 grants may be stated as follows : — The Sheriffdom was granted to the heirs of the family or House of Crawford succeeding under 
 
APPENDIX. 525 
 
 For proof that the recognition established by the preceding evidence would have been sufficient to rehabilitate 
 David Duke of Montrose even if actually attainted,— that the Scottish Kings had power to restore 
 against Attainder and Forfeiture, &c. &e. (supplying arguments a fortiori in the present instance), 
 vide supra, pp. Ixxxviii, Ixxxix. 
 
 iii. INBENTTJEE BETWEEN DaVID DuKE OF MONTEOSB AND THE FeANCISCANS OP SCOTLAND, 2ND AuG0ST 1489.— FeOM 
 
 THE Chaeteb-chest oe THE CLAIMANT.— ' MiNUTES OF EVIDENCE, p. 90.'— (Referred to wpra, p. Ixxxviii.) 
 
 (No. CLXXI.) 
 " This Endentur, maid at Innerkethin the secunde day of August, the yer of Goda thousand foure hundreth auchti 
 and nyn yheris, proportis and beris witnes, that it is appounfit and accordit betuix thir pairties undirwrittin in 
 maner and forme as efter folowis,— That is to say, a rycht noble and mychtti Prince David DuK op Montiwse and 
 Erie of Craufurde on the ta (one) pairt, and his humile bedmen and oratouris, Frer Jhon Yhare, Minister Pro- 
 vincial of the Freris Minoris of Scotland, togider with consent antl assent of the hale Cheptour Provincial, 
 Wardanis, Discretis, and Diffinitouris,* and speciali the Wardan and Convent of the Freris of Dunde, on the 
 toder (other) pairt : — That, becaus the said mychtti Prince has giffin be stat and possession twe'nti merkis of usual 
 mone of Scotland, of annuel rent be^lier, to be takyn up at tua usual termes in the yer, Witsonday and Mertimes 
 in winter, be ewin porcions, of his landis of Drumcarn in the Lordschip of Glennesk, within the Scherefdome of 
 Forfar, to his forsaid place and oratouris, Wardan and Conventual of Dunde, beand and for to be for the tym, 
 throu his special cherite and grace, for uphaldin and continuation of Goddis service in the samyn : Quharefor the 
 said Minister Provincial, al hale the said body of the Cheptour, Wardans, Discretis, Diffinitouris, Wardan and 
 Convent of the said place of Dunde, ar bunding and be this present writ bindis and oblis thame, in n)ast strat 
 forme of obligation, and thar successouris, yhereli for to do and fulfil, lelili and treuli, in thar bodili athis and 
 conscience, and under al payn and charge that thai may inryn anense (before) God and man, this service and 
 observance underwrittin, for the heil (health) of saule and bodi of the said mychtti Prince, Lady Margret, Princes, 
 his spous, his noble progenitouris and successouris, and for the saul of a noble lady, of hali memor, Margory 
 grandame to the said mychtti Prince, and all Cristyn saulis : — That is to say, that the said Wardan and 
 Convent of Dunde, that sal be for the tym, every yhere, perpetuali and daily, sail say a mess at the 
 he altar of the said place, and every Friday sal sing a mess of the Eequiem at the said altar with the hall 
 [haill] Conventual of the said place, beand for the tym, for the saulis forsaid ; the quhilk mess sal be opynly 
 callit the Duns mess of Montrose, And, mareatour (moreover), the said Wardan and Convent sal graitht 
 an honorable epitafe (monument) coverit with a honorable tapet, with tua sergis (wax-candles) born with tua 
 angel of bras as chandelaris, to be lychttit at the said mess, the quhilk epitafe the ministeris of the altar principal, 
 efter the veneration and honoring of the Sacrament, sail incense honorably. Mareatour, the said Wardan and 
 Conventual sail twyise in the zer solemptly sing, with not, wyth all detful cerymonis, in mast honorable vise, 
 ' Placebo ' and ' Dlrige,' with mess on the morn, with not, and every brother that is prest a prive mess, that is 
 to say, an for the faderis saule of the said mychtti Prince al the dayis of his life, and efter the deces of the said 
 mychtti Prince, yhereli and perpetuali for his saule ; and an other for the saule of Dame Margory forsaid the 
 day of hir obit. And in the tym of the obit doing of this said mychtti Prince, the mane (name?) of this Lady 
 Margret, Princes, and spouse till hym, sal [be] nemmyt and prayit for. And to the mare agnientacion, the said 
 Wardan and Conventual sail perpetuali and nychttly syng efter complen, befor the prier bel, in the quher (choir) 
 of the said place, solemptly, this Anteme of Our Lady the gloriouse Virgin Mary, 'Alma redemptoris,' for the 
 saul of an he and mychtti prince, James the Thrid, our Soveran Lord the King of Scotland, of hali memor, 
 quham God assolze and all Cristin saulis ! And at (that) all thir thingis abufwrittin sal lelili and treuly be don, 
 to the pairt of this Endentur to reman with the said mychtti Prince the sells of the Minister and Wardanis principal 
 of his province is to-hungyn ; and to the pairt of this Endentur to reman with the Wardan and Convent of 
 Dunde, the said mychtti Prince has hungyn to his seil, — day, yher, and place beforvvritin : — The quhilk day 
 this said mychtti Prince and Lady Margret, Princes, his spouse, was rasa\it in the Provincial Cheptour to the 
 confraternite of the ordour of Sanct Francis and to the suffrage therof." 
 
 With the four seals of the Minister and Wardens, &c., still attached to the document. 
 
 the existing and ruling investitures. The Dukedom was granted sively to the present Claimant as the " heir " to the honour in 
 
 to the same David Earl of Crawford and to his " heirs " simply, question. In one only point is this parallelism imperfect, — to 
 
 under the same technical view and understanding. And as Earl wit, in this, that, whereas the Sheriffdom was in the fullest sense 
 
 David's collateral heirs male would have been entitled, by general of the word a rmvum feodum, the Dukedom was merely {ex terminis 
 
 admission, to the Sheriffdom except for the Resignation 1st of the Patent) the old hereditary Earldom, transmuted or changed 
 
 November 1488, the sole interventns which stood in the way, so into a Dukedom, and so regi-anted to the Earl pro tempore and to 
 
 Earl David's collateral heirs male, including the Claimant, would his "heirs" — necessarily as succeeding to the Earldom. But 
 
 have been, and would be now, entitled to the Dukedom of this additionally and a fortiori proves the Claimant's right — those 
 
 Montrose, Unless some similar interventus barred their succession. " heirs " being exclusively heirs male. 
 
 The Committee have decided (rightly or wrongly) that the Act * The office of diffinitor was tantamount to that of cansxdtor in 
 Kescissory annulled the Montrose Patent— the Act Eescissory a Franciscan monastery,— the diiiinitors therefore may be con- 
 forms therefore the similar interventus in question, and makes the sidered as a species of council or conventual parliament. The 
 two cases parallel. But if, as may be hoped from the justice of discretce in Franciscan nunneries were nuns selected for their 
 Her Majesty, the iniquitous Act Rescissory be rescinded and the supposed judgment and experience to assist the superior in the 
 " heirs" of the Dukedom be restored per modum justitice, as in the government of the community. The discretis probably filled the 
 Marr, Staiford, and other cases, then the parallelism of the same office in the monasteries of the order. 
 Sheriffdom and Dukedom grants points irresistibly and conclu- 
 
 3X2 
 
526 APPENDIX. 
 
 X. 
 
 Instances eelied upon by the Croavtst to shew that the King and the public functionaries 
 
 CONSIDERED DAVID DuKE OF MONTROSE TO BE ONLY EARL OF CRAWFORD DURING THE INTERVAL 
 BETWEEN THE FIRST AND THE SECOND GRANT OF THE DUKEDOM — THAT IS, BETWEEN THE 18tH MaY 
 1488 AND THE 18th SEPTEMBER 1489; THAT THEY DISALLOWED THE PATENT 18tH MaY 1488, BOTH 
 AS REGARDED THE TITLE AND LANDS ; AND THAT THE DUKE ACQUIESCED, BY NON-ASSUMPTION OF THE 
 TITLE, IN THE ANNULMENT OF THE DUKEDOM BY THE ACT EeSCISSORY, — WITH VARIOUS RELATIVE 
 EVIDENCE CITED BY THE CLAIMANT. 
 
 1. Notice in the Excheqitee Eolls, in an acooitnt op the customs op Dundee kendeeed on the 6fh July 1488, 
 
 OF THE PAYMENT OP 100 MAEKS TO " DaTIDI COMITI CEAWPUBDIE."— ' MiNUTES OP EVIBENCE,' No, 74— 
 (Eeferred to supra, p. xeii.) 
 
 (No. CLXXII.) 
 Observation. 
 
 This payment was heforre the Act Eescissory. 
 
 2. SlMIlAB NOTICE IN AN ACCOUNT OP THE CUSTOMS OP MONTEOSE, EENBEEED ON THE %lst August 1488, OP THE PAYMENT 
 
 OP 40 MAEES TO " David COMITI CEAWTUEDIE."— Eeom the Exchequeb Eoils.— ' Minutes op Evidence,' 
 , No. 74. — (Eeferred to supra, p. xoii.) 
 
 (No. CLXXIII.) 
 
 Observation. 
 This also was before the Act Rescissory. 
 
 3, Notice, in the Teeasueeb's Accounts, 14(A July 1488, op a payment in eepeeence to the " Eael op CEAW- 
 " FOED." — Eeom the Exohequee Eoils. — ' Minutes op Evidence,' No. 7S. — (Eeferred to supra, p. xoii.) 
 
 (No. CLXXIV.) 
 
 " Item, to Sperdour, to pass with a Letter of the King's to summon the Eaele of Craufuede and Johne 
 amsay of Corston to their compts to the Chequer in Stirling, 5s." 
 
 Observation, 
 
 This also was before the Act Rescissory. 
 
 4. Commission by James IV. and the Estates op Pabhambnt, 17th Octobee 1488 (beinh the last Act of the 
 Session), in which the (adle&ed) Duke op Monteose is inseeted as ' Eael op Ceawpoed' only, — the inpee- 
 
 ENCE OP THE CeOWN BEING- THAT HE ATTENDED THE PaEIIAMENT AND ACQUIESCED IN THE ANNULMENT OP THE 
 
 Dukedom: — But on which it is to be obseeved, that the Commission includes all the heads of the 
 
 UNSUCCESSFUL AND DISCONTENTED PAETY (aDHEEENTS OP JaMES III.), e. g. THE EaBL OF LeNNOX, liOED LylE, 
 LOED KiLMAUES, &C., — OF WHOM LeNNOX AND LylE BEOKE OUT INTO OPEN EEBELLION IN THE SUMMEB AND AUTUMN 
 OP 1489 ; AND THAT NEITHEE THE NAMES OP THE DUZE OP MoNTEOSE NOB OF LOED KiLMAUBS (de jure EaEL OF 
 
 Glencaien) appeab in the Eoll op the membees op Paeiiament pbepixed to the peoobedings OF THE Ses- 
 sion, (" Acts," vol. ii., p, 199,) and in which list ceetain names have been subsequently inteelined, peobablt 
 
 AS THE PEEES IN QUESTION JOINED THE ASSEMBLY,* — PEOM WHICH PACTS THE CLAIMANT INFBE3 THAT THE DUKE 
 DID not SIT IN THE PaELIAMBNT OF OOTOBEE 1488, NOE ACQUIESCE (a3 SUPPOSED) IN THE EFFECT OP THE ACT 
 EeSCISSOEY — WHICH ACQUIESCENCE MOEEOVBE COULD NOT GIVE LEGAL VALIDITY TO THAT AcT. — FeOM THE AcTS OF 
 
 Paeliambnt, vol. ii, p. 211, — (Eeferred to supra, p. xci.) 
 
 (No. CLXXV.) 
 
 "The xvij day of October foresaid, Our Soverane "The 17th day of October foresaid, Our Sovereign 
 
 Lord, with avise of his Thre Estatis, has continewit Lord, with advice of his Three Estates, has continued 
 
 the Parliament foresaid to the xiiij day of Januare nixt the Parliament foresaid to the 14th day of January next 
 
 to cum, with continuacioun of dais, with all accions to come, with continuation of days, with all actions and 
 
 * The list of barons who were present at the opening of the It has been already adduced, supra, p. 517, but may be here in- 
 Parliament, prefixed to the statutes of the Session, is given in serted in fuller form : — 
 the 'Minutes of Evidence,' p. 124, from the EoUs of Parliament, " Parliamentum excellentisslmi priucipis ac domini nostri 
 
APPENDIX. 
 
 527 
 
 and materis folowand thairapon. And has comitt the 
 hale power of the body of the Parliament to thir Lordis 
 and Prelatis underwrittin, to procede in all the saidis 
 materis ; and als to avise, comoun, and conclude apon 
 sic utheris materis as sail occur in the meyntyme ; 
 Exceptand that it sail be lefull to the Lordis Audi- 
 touris of Causis and Complantis, now chosin, to sitt and 
 decide all actions, causis, and complantis that cumis 
 before thaim unto Sonday the xxvj day of the said 
 instant moneth of October. And gif thair be ony of 
 the saidis Lordis, Prelatis, Baronis, or Comissaris of 
 Burrowis that passis or removis out of this toun or the 
 said xxvj day, it sail be lefull to thaim that remanis to 
 cheis utheris in thair absence, and to caus thaim be 
 sworne, hafand als full power to decide all accions and 
 causis foresaid as the saidis Auditoris haid the tyme of 
 this Parliament unto the said xxvj day of October 
 instant. 
 
 Thir ar the namez of the Lordis : — 
 
 matters following thereupon. And has committed the 
 •whole power of the body of the Parliament to these 
 Lords and Prelates underwritten, to proceed in all the 
 said matters ; and also to advise, commune, and con- 
 clude upon such other matters as shall occur in the 
 mean time ; Except that it shall be lawful to the Lords 
 Auditors of Causes and Complaints, now chosen, to sit 
 and decide all actions, causes, and complaints that come 
 before them unto Sunday the 26th day of the said instant 
 month of October. And if there be any of the said 
 Lords, Prelates, Barons, or Commissioners of Burghs, 
 that pass or remove out of this town before the said 26th 
 day, it shall be lawful to them that remain to chuse 
 others in their absence, and to cause them be sworn, 
 having as full power to decide all actions and causes 
 foresaid as the said Auditors had the time of this Par- 
 liament unto the said 26th day of October instant. 
 
 These are the names of the Lords: — 
 
 Pro Clero. 
 
 The Archibischop of Sanct Androis. 
 
 » » * » » 
 
 Pro Baronibus. 
 
 The Chancellare. 
 The Erie of Angus. 
 The Eele of Crawfued. 
 The Earle of Huntle. 
 The Erie of Erole. 
 The Erie of Eothes. 
 The Erie of Levenax. 
 The Erie Marischell. 
 
 * * * * 
 The Lord Lile. 
 
 » * * * 
 The Lord Kilmauris. 
 
 « * * » 
 
 Commissarii. 
 Edinburgh.— James Crechtoun de Kothven." 
 
 metuendissimi, Domini Jacobl Quarti, Dei gracia Ke^s Scotorum 
 iUustrissimi, tentum et inchoatum apud Edinburgh die Lnne, 
 sexto die mensis Octobris, anno Domini miUesimo quadrmgen- 
 tesimo octuagesimo octavo ; Quo die, &c. 
 
 ****** 
 " Secunda dies Parliamenti. Presente supremo dommo nostro 
 
 ^ ' Presentes eodem die, 
 
 Fro Clero, 
 Archiepiscopus Sancti Andree. 
 ,♦**»* 
 Fro Baronibus. 
 Colinus Comes de Ergile, Cancellarlus, etc. 
 Archibaldus Comes Angusie. 
 
 Comes de Huntle. 
 Jacobus Comes de Mortoun. 
 Wilelmus Comes de Erole. 
 Willelmus Comes de Merschell. 
 Johannes Comes de Levenax. 
 Georgius Comes de Kothes. 
 Comes Atholie. 
 
 Comes Buchanie. ... 
 
 Dominus Halis, Magister Hospicu. 
 
 Domlnus Hamlltoun. 
 Dominus Lile, Justiciarius. 
 Dominus Glamis. 
 
 Gray. 
 
 Olyphant. 
 
 Montgumry. 
 
 Drummond. 
 
 Maxwell. 
 
 Grahame. 
 
 Carlile. 
 
 Dirltoun. 
 Alexander Hume, Camerarius. 
 Magister de Ergile. 
 Magister de Levenax. 
 Alexander Stewart de Avandale. 
 Constabilarius de Dunde." 
 &c. 
 
 Comviissarii, 
 
 Edinburgh. Strivelin. 
 
 Dunde. Perth." 
 
 &c. &c. 
 
 See also the ' Acts of Parliament,' vol. ii. p. 199. 
 
528 APPENDIX. 
 
 5. CONITEMATION BY JaMES IV., 20tH OCTOBEE 1488, (bLSEWHEEE ADDUCED BY THE ClAIMAS'T,) OF THE ChAETEE BY 
 
 David Duke op Mohtteose, BXECtrTED on the same day, in eavotte oe Maeoaeet Caemichaei;, — the Duke's 
 Chaetee being- desoeibed in the peeamblb of the Coneiemation as a Chaeteb oe " David Eael op Ceaw- 
 
 " POED," — FOUNDED ON BY THE CeOWTT AS PEOVING- THAT JaMES IV. DISALLOWED THE TITLE OE DUKE, — WHEEEAS 
 
 THE Claimant has eepeesented, and the insteument itself shows, that the Coneiemation attaches, 
 
 WITHOUT EESEEVATION, TO THE WHOLE CHAETEE CONEIEMED, IN ALL ITS POINTS, INCLUDING THE DuCAI STYLE AND 
 DESIONATION ; AND ALSO THAT THE TITLE OE THE CONFIEMATION IN THE GeEAT SeAL EeGISTEE DESCEIBES IT AS THE 
 
 Coneiemation of a Chaetee ' Buds de Monteobe.' — (Already given, swpra, p. 514. — Eeferred to swpra, p. xoli.) 
 
 6. In the mattee of the Sheeiffdom of Foefaeshiee : — 
 
 i. Charter hy James IV., dated at Perth, lith December 1488, to Andrew Lord Gray, of 
 the Sheriffdom of Forfarshire, stated therein to have been resigned — not at the castle of 
 Hailes, but at Perth — not by David Duke of Montrose, hut by " David Earl of 
 " Crawtord," — and which style, so applied, the Crown relies upon as proving intentional 
 disallowance of the Ducal title : — But which style the Claimant maintains to be erroneous 
 and imperfect, and of no iceight or importance, as being the words merely of the clerks 
 of Chancery, out of the Royal presence or control, and being moreover disconform to the war- 
 rant {viz. the Instrument Gth November ]488, adduced by the Claimant, supra, p. Ixxxi.) 
 on which the Charter proceeded and by which it falls to be interpreted and corrected, — 
 the King, it is to be observed, having already, in the acceptance of the Sheriffdom, 
 recognized the Duke as Duke {as testified by the Instrument in question'), and being thus 
 'functus' and unable to undo what he had done. — From the Gray Charter-chest. — 
 ' Minutes of Evidence' No. 70. — (Referred to supra, p. xcii.) 
 
 (No. CLXXVI.) 
 
 " Jacobus, Dei gratia Rex Scotorum, Omnibus probis hominibus tocius terre sue, clericis et laicis, salutem. 
 Sciatis quod dedimus et concessimus, ac tenore presentis carte nostre damus et concedimus dilecto consanguineo et 
 consiliario nostro Andree Domino Gray ofRcium Vicecomitatus nostri de Forfare : — Quodquidem oiBcium Vice- 
 comitatus fuit dilecti nostri consanguinei David Comitis Ceaufurdie, Domini Lindesay, hereditarie, et quod officium 
 cum pertinentiis dictus David, non vi aut metu ductus nee errore lapsus, sed sua mera et spontanea voluntate, in 
 maims nostras apdd Perth, per fustem et baculura, et suos procuratores ad hoc legittime constitutes, sursum red- 
 didit, pureque simpliciter resignavit, ac totum jus et clameura que ad dictum ofRcium cum pertinentiis habuit seu 
 habere potuit pro se et heredibus suis omnino quiete clamavit imperpetuum : — Tenendum et habendum dicium 
 officium Vicecomitatus de Forfare dicto Andree Domino Gray et heredibus suis de nobis et successoribus nostris in 
 feodo et hereditate imperpetuum, cum pertinentiis et proficuis eidem officio pertinentibus, ac cum consimilibus 
 feodis sicut alii Vicecomites prius de eodem officio habuerimt, et adeo libere, quiete, plenarie, integre, honoriiice 
 bene et in pace, sicut dictus David Comes Ceaufurdie aut predecessores sui dictum officium Vicecomitatus cum 
 pertinentiis de nobis aut predecessoribus nostris ante presentem resignationem nobis inde factam liberius tenuit seu 
 possedit, tenuerunt seu possederunt : — ^Faciendo inde dictus Andreas Dominus Gray et heredes sui nobis et succes- 
 soribus nostris jura etservitia de dicto officio cum pertinentiis ante prefatam resignationem nobis debita et consueta. 
 Ac etiam, &c." * 
 
 ii. Precept by James IF., dated at Perth, 14th December 1488, for giving sasine to 
 Andrew Lord Gray of the office of Sheriff of Forfarshire, in terms of the preceding 
 Charter — the resignation being described, as in the Charter, as by " David Earl of 
 " Crawford" a7id at Perth.— i^rowz the Gray Charter-chest.— ' Minutes of Evidence,' 
 No. 72. — (Referred to supra, p. xcii.) 
 
 (No. CLXXVII.) 
 Observation. 
 
 Not given at length, being a mere echo of the preceding Charter. 
 
 » The ' Minutes of Evidence' for the Crown not having yet in the Great Seal Eegister, in order to shew that it " is in nre- 
 
 been printed the preceding Charter is printed here from the " cisely the same Terms as the one which is in the private 
 
 Appendix to the Original Case of the Duke of Montrose. The " Custody of Lord Gray. "-M mutes of I'roceeclinqs, MSS -This 
 
 Crown adduced also a copy of the registration of the above .charter copy will appear as No. 7 lin the ' Minutes of Evidence '' 
 
APPENDIX. 529 
 
 iii Instrument of Sasine, dated at Perth, Uth December 1488, of Andrew Lord Gray in 
 the Sheriffdom of Forfarshire,— in which mention is made of "David Earl of Craw- 
 " FORD," as in the two preceding documents, executed on the same day. — From the same 
 Charter-chest.—' Minutes of Evidence,' No. 73.— (Referred to supra, p. xcii.) 
 
 (No. CLXXVIII.) 
 Observation. 
 
 Not given at length, for the reason above assigned. 
 
 7. Decbeet by the Lgkds Atjditoes op Causes and CoMPLAiifTs, 21st Januaet 1488-89, aspabentli at the ck>se 
 
 OP A L0N&-PBKDDfG IITIOAIION, AaAtNST " DaVID EaEL OP CeaWPOBD," ADJUDGING HIM TO SUBEENDBE THE LANDB 
 
 OF Beechin aot) Navae.— Feom THE ' AoTA DoMUfOEUM Atoitoeum,' p. 123.— (Referred to supra, p. xci.) 
 
 (No. CLXXIX.) 
 
 " xvi'° Januarii, anno Domini etc. Ixxxviij". 
 
 Sederunt Domini Auditores. 
 
 * ******* 
 
 " xxi" Januarii. 
 " Sederunt Domini Parliamenti, videlicet, Pro Clero," &c. 
 
 " In the actioun and cause persewit on the behalf of our Soverane Lord aganis David Erle of Ceawfurd 
 and Lord Lindesay, for the wrangwis occupation of the landis of the lordschipis of Brechin and Newar pertening 
 to James Duk of Eoss, &c. ; and apon the wrangwis uptakin and withhaldin of the malez and profittis of the saidis 
 landis sen the tyme of the said Dukis entre to the samyn. The said David Eem of Ckawfubd beand lauchfully 
 and personaly summond, oft tymes callit, and not comperit ; And ane annexatioun of umquhile King James the 
 Secund of noble mynd, quham God assolze, of the date of the xvij day of Junij,* the zere of God j" iiii" fiftj and 
 five zeris, and of his regno the xix zer, eontenand the said lordschipis of Brechin and Neware, with their perti- 
 nentis, producit on the behalf of our Soverane Lord, at lenth sene, hard, and understandin :— The Lordis decretis 
 and deliveris that the said David Eele of Crawfded dois wrang in the occupatioun and manuring of the said landis 
 of the lordschipis of Brechin and Neware, with their pertinentis ; and therefore ordanis him to devoid and red the 
 samyn, to be broikit and joisit be the said James Duk of Ross ; and sail refound, content, and pay to him the 
 malez and profittis of the saidis landis and lordschipis, with the pertinentis, takin up be the said David sen the tyme 
 of the gift of the samyn maid to the said James Duk of Boss be his faider of noble mynd, quham God assolze ; 
 and ordanis lettrez be direct in dew forme herapon ; and als to summond certane witnesses to the v day of Maij 
 nixt to cum, with continuation of dais, to pref the avale (value) of the saidis malez and dewities ; and the said David 
 Erle of Ceawfded to here thaim svvorne, — becaus it is contenit in the said annexatioun that it sail be lefull to our 
 Soverane Lord that is and sail be for the tyme to tak and resave all froitis and proffitis of all the saidis landis anext 
 for all the tyme of ony gift of thaim maid to ony persouns, nochtwithstanding ony sic gift or alienacioun," 
 
 8. Deceeets by the Loeds or Coitncil and Session, the Supeeme Civil Coitet, 31st Januaey and 3ed Febeuaey 
 
 1488-9 — APPAEENTLY at the close op a LONa-PENDINO PEOCESS — DECIDIN& AGAINST " DaVID EaEL OF CeAW- 
 
 " poED " AND OTHBES. — Feom THE ' AcTA DoMiNOEUM CoNCiLii,' pp.^103, 105. — (Referred to mpra, p. xci.) 
 
 (No. CLXXX.) 
 
 " xiiii" Januarii, anno Domini etc. Ixxxviij". 
 
 * ^ * * * * 
 
 " Ultimo Januarii. 
 " Sederunt Episcopi Glasguensis," &c. 
 
 " In the'accioun and caus persewit be Cristiane Balfour, the spous of umquhile Wilzam Bonar, aganis David 
 Erle of Ceawfued, for the wrangwis furth-putting of hir and her tenentis out of the twa- parte landis of Donboug 
 and Contrahillis, with thair pertinentis, liand in the Scherefdom of Fif, pertening to her in conjunct feftment, as is 
 allegiit ; and for the wrangwis uptakin and withhaldin fra hir of the malez, profittis, and dewiteis of the saidis 
 landis ; and for the costis and skaithis sustenit be hir thairthrow,— and aganis James Bonare, zoungare, for his interes 
 in the said mater ; all the saidis partiis beand present be thaim self and thare procuratoris, and als James Bonare, 
 sone and are of the said umquhile William, beand personaly present, — thare richtis, ressonis, and allegationis at lenth 
 sene hard and understandin v — The Lordis of Consale decrettis and deliveris that the said David Eele of Ceawfued, 
 deliverand and payand to the said Cristiane and James Bonar eldare, the soume of money contenit in the reversioun 
 
 * A clerical error for the 4th of August. 
 
530 APPENDIX. 
 
 maid be the said iimquhile Williame Bonare for the redemyn of the said iandis, that he sail remane with the twa- 
 parte of the said landis of Donboug, and that the said Cristiane and James Bonare eldare sail deliver to the said 
 Erie all charteris and evidentis that thai haf of the said landis, the said soume beand pait to thaim, as said is, 
 becaus the assignacioun maid be the said Cristiane to the said James Bonare, eldare, for the ressate of the said soume 
 preferrit the date of the assignacioun maid to the said James zoungare therapon. And ordanis our Soverane Lordis 
 lettrez be direct to compell baith the partiis herto." 
 
 » * * * « « 
 
 " Tertio die mensis Februarii. 
 "Sederunt Episcopi Glasguensis," &e. 
 
 " The Lordis decrettia and deliveris that David Eele of Cea^vfued dois wrang in the occupacioun and 
 raanurin of the third parte of the landis of Donboug, with the pertinentis ; and thairfore ordanis him to devoid and 
 red the samyn, to be broikit and joisit be Cristiane Balfour, the spous of umquhile William Bonare, ay and quhill 
 it be lauchfully redemit fra hir, becaus the said David Eele of Ceawfued allegiit to proif the samyn thrid parte 
 redemit lauchfully fra the said umquhile Willzam, and failzeit in his preif the day assignit to him. And thairfore 
 ordanis our Soverane Lordis lettrez be direct in dew forme herapon." * 
 
 9, Act of James IV. and the Estates of Pabmameut, 4th Jttit 1489, (BEiNa the iast bat of the Session,) 
 APPOiNTiNa the " Eakl of Cbawfoed" (or HIS absence) and ail othee peelates and geeat baeons, as thet 
 
 AEEIVE AT COUET, " TO BE OF COUNSEL " TO THE KiNG " TILL THE NEXT PaELIAMENT," — AND ALSO APPOINTING 
 ANOTHEE MOEB CONFIDENTIAL AND SELECT COUNCIL, CHOSEN FEOM AMONG THE LEADEES OF THE SUCCESSFUL FACTION, 
 TO EESIDE CONTINUALLY WITH THE KiNG — BUT WITH WHOM THE ' EaEL OF CeAWFOED ' HAD NOTHING TO DO. 
 
 Feom the Acts or Paeliament, toL ii., p. 215. — (Referred to supra, p. xci.) 
 
 (No. CLXXXI.) 
 
 *'Item, anent the article of the Lordis to be chosin " Item,* with respect to the article of the Lords to be 
 
 and be of Consale to our Soverane Lord, it is avisit chosen to be of Council to our Sovereign Lord, it is 
 
 and concludit that thir Lordis underwrittin be of Con- advised and concluded that these Lords underwritten be 
 
 sale to his Hienes quhill the nixt Parliament, — that is of Council to his Highness till the next Parliament, — 
 
 to say, THE Eele of Ceawfued and the Erie of Huntle that is to say, the Earl of Ceawfoed and the Earl of 
 
 QiniEisr thai cum, aU Prelatis and Great Baronis elikwis Huntley when they come, all Prelates and Great 
 
 at thair cuming : — And, to be contenualy of Consale to Barons likewise at their coming: — And, to be con- 
 
 his Hienes, thir Lordis underwrittin, or vj of thaim at tinually of Council to his Highness, these Lords under- 
 
 the lest, with all the Kingis Officiaris ; and thai ay to written, or six of them at the least, with all the King's 
 
 be with the Kingis Hienes, to deliver apon al debatable Officers ; and they always to be with the King's High- 
 
 materis and be of Consale to him, — that is to say, ness, to deliver upon all debateable matters and be of 
 
 Eobert Bischop of Glasgw, William Bischop of Abir- Council to him, — that is to say, Robert Bishop of Glas- 
 
 den, Johne Prior of Coldinghame, and Maister Alex- gow, William Bishop of Aberdeen, John Prior of 
 
 ander Inglis, Archiden of Sanctandrowis, as for the Coldingham, and Master Alexander Inglis, Archdean 
 
 Clergy ; and for the Baronis, William Erie of Erole, of St. Andrews, as for the Clergy ; and for the Barons, 
 
 Johne Lord Glamis, Andro Lord Gray, Laurence Lord William Earl of Errol, John Lord Glamis, Andrew 
 
 Olyphant, Johne Lord Drumond, William Lord Borth- Lord Gray, Lawrence Lord Oliphant, John Lord Drum- 
 
 wik, Patrik Home of Fastcastell, and Walter Ogilby. mond, William Lord Borlhwick, Patrick Home of 
 
 And that nane of the forsaid Lordis pas or remove fra Fastcastle, and Walter Ogilvie. And that none of the 
 
 the Kingis Hienes without speciale licence of him or his foresaid Lords pass or remove from the King's High- 
 
 Chancellare, and that for schort tyme ; and ay vj to ness without special licence of him or his Chancellor 
 
 remane .'at the lest, but variance, with the Officiaris and that for short time ; and always six to remain at the 
 
 forsaid." least without variance, [together] with the Officers 
 
 foresaid." 
 
 10. Notice nr the Exohequee Bolls, in the account of the Customs of Abeedeen, 11th Jult, 1489, of a 
 
 payment made to " Datid EAB.L OP OEAWEOED."— Not adduced in the ' Minutes of Evidence.' (Ee- 
 
 ferred to snpra, p. xcii.) 
 
 (No. CLXXXIl.) 
 
 * ^' ^Fr.^^ remarked here that on the 19th October 1490 the " hand, of the date of the xviii day of Jiinii, in the zere of God etc , 
 
 Lords of Council and Session decree against "David Duk of " Ixxxviii zeris." Acta, &c. p. 152— The tack or assedation in 
 
 " Montross' for ejecting Alexander Lovell of Ballumby "out of question, executed by the Duke, as Duke, within a week after 'the 
 
 " the laudis of Bischopkers, and order that the latter shall enjoy accession of James 17., is thus alluded to and enforced as a valid 
 
 the said lands tor all the dais of the said Duk of Montross his grant, without any qualification as by the ' Earl of Crawford ' 
 
 " life efter the forme of his lettre of assedation subscrmt with his by the Supreme Civil Court in 1490. ' 
 
APPENDIX. 
 
 531 
 
 11. The SBAjra " de novo " op the Dukedom op Montkose bt Jambs IV. in Septembeb 1489, to « Datid Bael oj' 
 
 " ObAWPOBD," (bTTT not PROCBEDIUa OK ANT BEOITAi OP EEai&NATION OB POEPEITUEE) —ADDUCED BY THE CeOWN 
 AST) EUIiED BT THE COMMITTEE TO HATE BEEN POE IIPE ONET, AND TO PEOTE THAT THE ACT EeSCISSOEY BAD TA5BN 
 EPPECT ON THE OEiaiNAL PATENT ; BUT WHICH THE CLAIMANT MAINTAINS TO HAVE BEEN NECEgSAEIlT AND ex ter- 
 TJMwis ANHEEEDITAET GEANT— WHILE QUITE IMMATEEIAL TO THE PEESBNTCASE EXCEPT IN SO PAE AS IT PEOTES THAT 
 
 David Dukb op Monteose was, and had always been, a loyal subject to James IT. as well as to his pathee, 
 
 AND that the CEEATION OP THE DuKEDOM COULD NOT THBKBPOEE, ex termiwis OP THE AcT EeSCISSOEY, HATE BEEN 
 " PEEJUDICIAL " TO JAMES IV.— (Referred to svpra, pp. xevi. sq^.) 
 
 i. Act of James IV., with advice of Parliament, lUh September 1489, CHAI^GING AND 
 
 ELEVATING THE EaELDOJI OF CeAWFOED, AS BORNE BY THE ANCIENT EaELS OF CeAW- 
 
 FORD, AND BY DavU) Eael OF Ceawfoed {the grantee), INTO A Dukedom in favour of 
 the said " David Eael of Crawford," in reward of his constant loyalty to the King's 
 predecessors and to the King {James IV.) himself— From the ' Acts of Parliament,' 
 vol. ii., p. 215.— ^(Referred to supra, p. xcvii.) 
 
 (No. CLXXXIII.) 
 
 " Apud Striviling, xviij" die mensis Septembris, anno Domini etc. Ixxxix" : — Presente Domino nostro Rege, 
 Jacobo Quarto, Dei gratia, lUustrissimo ; cum hiis dominis, Colino Comite de Ergile, Cancellario, 
 Comitibus de Bothvile et Buchane, Dominj [sic] Olyphant, Drummond, Sancti Johannis, Prior [sic] 
 Sancti Andree, Alexandre Hume de eodem, Magno Camerario, Clericus [sic] Registrj, Magistro Alex- 
 andre Inglis, Archidiacono Sancti Andree. 
 
 " Eodem xviij" die Septembris, anno quo supra, Su- 
 premus Dominus noster, Jacobus Quartus, Dei gratiS, 
 Scotorum Rex, cum avisamento maturaque delibera- 
 cione Magni Consilii sui antedicti, Recognoscens quod 
 cedit regibus ad gloriam et honorem, dura persone 
 preclari generis, preclaris exigentibus meritis, digni- 
 tatibus inclitis preferuntur, ut exinde, cum suos cer- 
 nerint status et nominis [sic] majoribus titulis decorari, 
 ad grandiora virtuosioraque peragenda magis ac magis 
 in suara laudem regnique et reipublioe decorem et 
 frugem studeant se fervencius insudare: — Pateat igiter 
 universis, tam peesesttibus qitam futtjris, eundem Domi- 
 num nostrum Regem, pensantem obediendam actualem, gra- 
 tamque dbseguendam gratificandam promptitudinem, quas 
 fidelis suus consanguinms David, Comes Ceawfuedie et 
 Dominus Ldndesay, et sui predecessore [su}] incliti, pre- 
 deoessoribus dioti Domini nostri Regis, Scode Regibus, ac 
 eidem supremo Drnnino nostro Regi, indefessd intendone 
 exhibuerunt multis modis ; propter que et alia ipsius condigna 
 rrwrita, et suis servvciis futuris temporibus impendendis, 
 idem supremus Dominus noster Rex, ex debito sue re- 
 gdis magnificencie, volens ipsum David am/plioribu^ prosequi 
 favoribus gratie et honoris, — C0M itaque peedecessoeum 
 stroEDM, Ceawfuedie Comitum, digne eecolenda peioei- 
 TAS TiTULO Comitates suas dominaciones sfpeadictas ab 
 
 ANTIQUIS TEMPOEIBUS TENUEEUNT ; HiNC est, quod SU- 
 
 premus Dominus noster Rex eundem David, suum consan- 
 guineum, volens ampliori fulgere dignitate, et CoMlTis titu- 
 
 LUM SUPEADICTUM W MAJOEEM EXCELSIOEEMQUE MUTANS, 
 
 DICTUM David, suum consanguineum, Ducem de Monteoss, 
 ex suis certa scientia, potestatis plenitudine, et gratia 
 special!, sublimavit, fecit, creavit, et de novo erexit in 
 DucAT0M, Ducatusque nomine et prerogativd volens ipsum 
 gaudere et potiri, secundum foemam et tenoeem caete 
 dicti Domini nostri Regis dicto Damd, Duci de Monteoss, 
 
 SUPER PEEMISSIS, CONFICIENDE." * 
 
 " The same day of September, and year foresaid, our 
 supreme Lord, James IV., by the grace of God King of 
 Scots, with advice and mature deliberation of his Great 
 Council foresaid. Acknowledging that it contributes to 
 the glory and honour of Kings when persons of illus- 
 trious race, their illustrious merits exacting this, are 
 ■ preferred to exalted dignities, in order that, when they 
 perceive their rank and name decorated with higher 
 titles, they may henceforward study and labour more 
 and more fervently in doing noble and virtuous actions 
 to their own praise and the honour and profit of the 
 realm and commonwealth : — Be it known therefore to all 
 men, as well peesent as futuee, that the said our Lord 
 the King, Considering the actuali obedience and the grateful 
 and commendable promptitude ifihich his faithful cousin David, 
 Eael of Ceawfoed and Lord Lindsay, and his illustrious 
 predecessors, have exhibited^ towards the predecessors of the 
 said our Lord the King, Kings of Scotland, and towards the 
 same our supreme Lord the King, unweariedly and in many 
 modes ; On account of which and other his condign merits, 
 and his services to be rendered in future times, the same our 
 supreme Lord the King being willing, from, the debt of his 
 regal magnificence, to pursue the said David with stiU ampler 
 favours of grace and honour, — And since, moreover, the 
 PEEVious Eaels of Ceawfoed, his peedecessoes, woEr 
 
 TH;n,Y TO BE held in WOESHIP, gAVE HELD THEIE FOEESAID 
 LOEDSHIPS FEOM ANCIENT TIIVCES BY THE TITLE OF EaELDOM, 
 
 — Hence is it, that our supreme Lord the King, willing that 
 the said David his cousin should shine with ampler dignity, 
 
 and CHANGING the FOEESAID TITLE OP BaEL INTO A GEEATEE 
 
 AND HiGHEE ONE, hos, by his certain wisdom, plepitude of 
 power, and special grace, elevated, made, created, and anew 
 
 EAISED THE SAID DaVID, Ms COUsin, DUICE OF MoNTEOSE, TO 
 
 A Dukedom, willing him to enjoy and possess the name and 
 prerogative of a Dukedom, accoeding to the form and 
 tenoe of the Chaetee of the said our Lord the King, to 
 BE EXECUTED in favour of the said David, Duke of Mont 
 teqse, upon the teems pbemised." • 
 
 * The Claimant subjoins here the grant of the Dukedom of 
 Lennox, 15th August 1581, (referred to supra, pp. xxix, lxxii 
 sqq., cviii, n. -f,) for the purpose of comparison with the Montrose 
 
 grant 18th September 1489,— the former being *n admittedly 
 hereditary grant, but in which there is no direct limitation to heirs 
 —merely a refereiKe to the ancient Earls of Lennox, 4'0, precisely a? 
 
 3 y 
 
532 
 
 APPENDIX. 
 
 ii. Notice, in the Great Seal Register, of a ' Litera,' dated the l%th September 1489, pur- 
 porting to create the " Earl of Crawford " Duke of Montrose " PEO TOTO TEMPOEE VlTE 
 " SUE," — iut which the Claimant maintains to he a mere imperfect abstract or memoran- 
 dum, not irreconciledble luith the existence of a limitation in the unabridged document, 
 and which, under any circumstances, falls to be governed by its WARRANT, the preceding 
 Act of the 18th September 1489, which not only contains no restriction, but the language 
 of which implies and mcessitates a continuance of the honour in the line of the ancient 
 Earls of Crawford, — while, the original Dukedom not having been resigned, the 
 Claimant submits that it could be nothing else than a virtual Confirmation, ' accumulando 
 '■jura juribus,' of the existing and recognized right. — The Claimant maintains likewise 
 that it appears in a questionable shape, and interpolated In the Great Seal Register (as 
 stated supra, pp. xcviii, civ) ; in support of which he has added a facsimile of the page of 
 the Great Seal Register in which it occurs and also of the immediately succeeding page 
 of the volume. The original Register was exhibited to the Committee. — From the Great 
 Seal Register. — 'Minutes of Evidence,' p. 15. — (Referred to supra, p. xcviii.) 
 
 " Data est litera Comiti Ceaufuedie, creando ipsum 
 Ducem de Montrose peo toto tempore vite sue, et conce- 
 dendo sibi capitals messuagium et locum castri de 
 Montrose, vulgariter nuncupatum le Castelstede, necnon 
 totum et integrum burgum et villam de Montrose, cum 
 redditibus, firmis burgalibus, magnis et parvis custumis, 
 ac libertatibus, et commoditatibus earundem, nunc Eegi 
 de eisdem burgo et villa pertinentibus, ac portum et 
 stacionem navium ejusdem burgi, cum pertinentibus, cum 
 fimjis aquarum et plscationibus Regi de eodem burgo 
 pertinentibus, et infra libertatem ejusdem existentibus, 
 jacentibus infra Vice-comitatum de Forfar ; ac etiam 
 capitale messuagium et locum castri de Kinclevin, ac 
 terras dominioales ejusdem, quas quondam Joneta Fenton, 
 sponsa quondam Willielmi Haket, ad vitam prius habuit, 
 
 (No. CLXXXIV.) 
 
 " A Letter has been given to the Eaul op Crawford, 
 creating him Duke of Montrose foe the whole time of his 
 LIFE, and granting him the capital messuage and place 
 of the castle of Montrose, vulgarly called the Castle- 
 stead, also the whole and entire burgh and town of 
 Montrose, with the rents, burgh-maills, great and small 
 customs, and the liberties and privileges of the same, 
 now appertaining to the King from the said burgh and 
 town, and the port and haven of the said burgh, with 
 the pertinents, with the water-maills and fishings apper- 
 taining to the King from the same burgh, lying within 
 its liberty, within the Sheriffdom of Forfar ; and also the 
 capital messuage and place of the castle of Kinclevin, 
 and the dominical lands of the same, which the late 
 Jonet Fenton, spouse of the late WUliam Haket, had 
 
 in the case of the above regrant of the Dukedom of Montrose. — It is 
 recorded in the Privy Council Register, preserved in Her Ma- 
 jesty's General Register House, Edinburgh." 
 
 *' Apud Dalkeith, quinto die mensis AuguBti, anno Domini j™7^ Ixxxi". 
 ** Sederwnt 
 
 " Esme Comes Joannes Dominus Maxwell. 
 
 Jacobus Andreas Dominus Uchiltrie. 
 
 Willielmus dominus. . Magister de Mar. 
 Patricius. . . . 
 Georgius .... 
 Joannes Dominus. . . 
 
 Commendator Dunfermling. 
 Commendator Newbottill. 
 Commendator Sanct Colme. 
 Compotorum Eotolator. 
 Clericus Registri. 
 
 " Constttutioun of the Erldome of Lennox in a Duikrie.^ 
 
 " The Kingis Majestie, calling to rememberanoe iow the 
 Erldome of Lennox, Lordschip of Demeley, and Barony of 
 Torboltoun, being the ancient heritage of the Erlis of Lennox, 
 of quhom his Majestie is discendit, succedit unto his Hienes be 
 the death of umquhile the King his Hienes' dearest father, and of 
 his Majestie's guidschir Mathew Erll of Lennox, Regent to his 
 Hienes his realme and lieges for the tyme ; And efter dispositioun 
 maid be his Hienes of new of the saidis Erldome, Lordschip, and 
 Barony, to his Majestie's father-brother Charles, likwyse Erll of 
 Lennox, throw default of aires maill in his persoun, and be virteuj of 
 his Majestie's revocatioun, the same Erldome, Lordschip, and Baronie 
 returning agane to his Hienes, his dearest and only great uncle 
 Robert Erll of Marche (quha wes alsua infeft in the saidis 
 Erldome, Lordschip, and Baronie) zeilding his place, His Ma- 
 jestie, having still ane emist desire of the standing of the said Hous 
 of Lennox in the possessimin of his nixt causingis maill of the same 
 hous and blude, thairfore gaif and disponit heritablie to his dearest 
 cousing, Esme ErU of Lennox, Lord Demeley, Aubigny, and 
 Dalkeith 
 
 and his aires, the saidis Erldome of Lennox, 
 
 Lordschip of Demeley, and Baronie of Torboltoun, with the 
 honourts, richtis, and previleges pertening thairto ; quha, 
 movit of great and singular affectioun toward his Majestie, 
 come furth of the realme of France, his native cuntrie, to serve 
 and attend upoun his Majestie and to brouke the title and to 
 occupie the hous and leving quhairof he is descendit, and quhair- 
 unto it hes pleasit his Majestie to advance and promove him, 
 having sparit na panes, perrell, nor chargeis in that quhilk micht 
 furdir his Majestie's auctorite and service : — And now his Ma- 
 jestie, having ^ bre to honoure and advance the Horn 
 quhairof his Majestie on the pairt dearest father 
 is descendit, for the memorie of his noble and worthie 
 
 of his stok and familie, and for the gudc and worthie 
 deserving of the said of Lennox, his dearest cousing, 
 
 toward his Majestie, and for utheris ressonabill causses and 
 considerationes moving his Hienes thairto ; Hes thairfore maid, 
 creat, erectit, and incorporat the said Erldome of Lennox in 
 ANE HAILI. AND FREE DOKERIE, to he callit the Dukerie of Lennox in 
 tyme cuming ; and the said Lordschip of Demeley in ane haill 
 and fre Erldome, to be callit the Erldome of Demeley in tyme 
 cuming ; the said Baronie of Torboltoun in ane haUl and 
 fre Lordschip, to be callit the Lordschip of Torboltoun in tym 
 cuming, — without prejudice of the unioun, annexatioun, 
 utheris previlegeis grantit in the infeftment maid thairupoun of 
 befoir ; And als hes maid, constitute, nemit, and ordanit in 
 tyme cuming his said dearest cotising Esme DuK of Lennox, Erll of 
 Demelie, Lord of Aubigne, Torboltoun, and Dalkeith all honoures, 
 digneteis, prerogatives, richtis, rentis, previlegeis, proffites, com 
 
 , and deweties helangand thairto; To be broukit, joisit, vsit, 
 occupeif, andpossest be him siclike and alsfrelie in all respecteis and 
 conditionis as ony utheris hes broukit the title, richt, and possessioun of 
 qukatsumevir Dukerie, Erldome, Lordschip, or Baronie within this 
 realme in tyme bygane. And that Lettres be direct to mak publi- 
 catioun heirof be oppin proclamatioun at the Mercat Croce of 
 Edinburgh and utheris places neidfuU. Chargeing all and 
 sindrie Erlis, Lordis, Baronis, and utheris his Hienes' subjectis, 
 to acknawlege and reverence his said dearest cousing according to the 
 stile, place, and titillis befoir specif eit. Ordaning him to be investit 
 tliairin with all solemniteis."" 
 
 « The Lennox grant was not adduced in the Claimant's Case 
 or S. Case, its importance having only been recognised since 
 they were both printed. 
 
 •■ This is the marginal description of the document. 
 The blank spaces have been effaced by damp. 
 
APPENDIX. 533 
 
 ac 
 
 secundo." * 
 
 oranes et singulas alias terras dominii de Kinclevin, previously for life, and all and singular the other lands 
 
 cum molendinis, multuris, et -piscariis earundem, ac cum of the Lordship of Kinclevin, with mills, multures, and " 
 
 omnibus aliis pertinentibus, tenentibus, et tenandriis, fishings of the same, and with all other pertinents, 
 
 Kegi ^lam de dicto dominio pertinentibus, jacentibus tenants, and superiorities also belonging to the King 
 
 intra Vice-comitatum de Perth,— creanrfo omnia predicta from the said Lordship, lying within the Sheriffdom of 
 
 m mum merum et Uberum Ducatum de Montrose nuncu- 'Perth,— orecaing all thefm-esaid Mo a real and free Duhe- 
 
 pandum, aa tenendum in liberd regalitate :— 'Etc., cum dam to be called of Mmtrose, and to be held in/ree regality :— 
 
 OMNIBUS OLAUSUUS SECUNDUM FOEMAM CAETE, ac Cum Etc., WITH ALL THE CLAUSES ACCOEDING TO THE FOEM OF 
 
 itinenbus et curiis justieiarie et camerarie :— Etc. :-^ the chaetee, and with itinerary ayres and Courts of 
 Z.l.^^t^^"' '^*® ^'^'^ Septembris, anno regni Regis Justiciary and Chamberlainship :— Etc. :—0/ c?ate the 
 
 19<A day of the month of September, in the second year of 
 
 the King's reign." * 
 
 Observation. 
 
 The following statement and examination took place on the adduction of the preceding document before the 
 Committee : — 
 
 " Sir FitzRoy Kelly stated, That this Document formed no part of the Case of the Claimant, but 
 
 that a Search had been made for it in the Earl of Crawford's Charter-chest, and that he 
 
 would produce the Witness by wliom the Search had been made." 
 " Mr. Stuart Worthy (to Mr. George Melville).— B.aMf: you searched the Muniment Room at the 
 
 Noble Claimant's Seat at Haigh Hall ? 
 Mr. Melville.-=-l have. 
 Mr. Stuart Wortley .—'Ra.ye you searched for the Patent of 1489, of which the Litera purports 
 
 to be a Record ? 
 Mr. Melville. — Yes. 
 Mr. Stuart Worthy. — Have you been able to find any Patent or Charter to which the Act refers, 
 
 and to which the Litera may be referable ? 
 Mr. Melville. — None. 
 
 £y a Lord. — Did you find any Charter granting the Dukedom of Montrose ? 
 Mr. Melville. — No. 
 Mr. Stuart Worthy. — Did I rightly understand you to say that you searched in the Haigh Hall 
 
 Muniment Room among the Charters to see if you could find any Charter under the Act of 
 
 1489? 
 Mr. MdviUe. — Yes ; I have made such a Search, and I found no Charter of that Date. 
 By a Lord. — Where did you search ? 
 Mr, MelviUe. — In the Muniment Room at Haigh Hall. 
 By the same. — In the Book of Register is there any other Entry as to this Charter of 1489 except 
 
 that Litera ? 
 Mr. MelviUe. — No. 
 
 By the same. — Have you looked through the Book ? 
 Mr. Melville. — I have. 
 
 By the same. — And you state that now from your Knowledge of the Book ? 
 Mr. Melvilh. — I do. 
 
 By the same. — You have searched through the Bpok ii) the Custody of the Gfficg ? 
 Mr. Melville. — Yes, I have." 
 '^Minutes of Evidence, p. 14. 
 
 iii. Evidence and examination of George Melville, Esquire, appearing on behalf of the 
 Claimant, on the question whether abbreviated entries of documents, inserted in the Great 
 Seal Register, denote invariably that the original unabridged documents were for life 
 only, as alleged by the Crown, or whether such entries are of grants for life and grants 
 in perpetuity rNDlFFERENTLY, as maintained by the Claimant— who admits however that 
 as a general rule such memoranda denote life-grants : — With an instance {discovered in 
 a search undertaken at request of the Crown in a volume of the Great Seal Record then 
 in London and before the Committee) of a grant in perpetuity, 13th June 1482, inserted 
 in an abridged form, precisely like the ' Litera ' of the Dukedom of Montrose, — although 
 in a much more regular and business-like manner,— ^^ Minutes of Evidence,' pp. 15, 141, 
 — (Referred to supra, p. cv.) 
 
 (No. CLXXXV.) 
 
 22nd July 1853. 
 
 " Mr. Stuart Wortley (to Mr. Melville). — Prom your Knowledge of these old Records can you explain what 
 the ' Litera ' is ? 
 
 * In this abstract the Dispositive and Quequidem clauses of " clausulis," Sec, — the^ Reddendo clause^ is represented by the 
 the document end with the words " tenendum in liberS, regali- second " Etc.," — and the Testing clause by the words, " De 
 " tate," — the tenendas clause begins with " Etc., cum ^omnibus " datft," &o. — Vide infra, p. 539, note ■*. 
 
 3 Y 2 
 
534 APPENDIX. 
 
 Mr. Melville.— These abbreviated Forms, when they are not given in full, are called ' Literse.' They are 
 Abstracts. 
 
 Mr. Stuart Worthy. — Does your Experience enable you to say in what Cases an Abstract or Litera has been 
 entered, and in what Cases the Instrument itself was entered at length? Is there any general Ride about it; or is it 
 sometimes one way and sometimes another ? 
 
 Mr. Melville. — Sometimes one way and sometimes another. Entries in the abbreviated form are not of very 
 frequent occurrence. There are a Number at that Period ; but it is not common at all. 
 
 Mr. Attorney- General. — In the Instances in which you find Entries in the abbreviated Form, do they relate 
 to Grants for Life or a limited Period ? 
 
 Mr. Melville. — Generally to Grants for Life. 
 
 By a Lord. — Is there any particular Sort of Grants with respect to which you find a Litera entered, and not 
 the Instrument itself in full ? 
 
 Mr. Melville. — The abbreviated Form is generally for Life, hut not always. 
 
 Lord Advocate. — Do you know any One instance of an absolute Grant of Perpetuity entered in the abbre- 
 viated Form ? 
 
 Mr. MelviUe. — I do ; but I have not got the Reference to it at present. 
 
 Ijord Advocate. — Can you furnish the House with any Instances ? 
 
 Mr. Melville. — Tes, I (hink I can furnish the House with an Instance of an abbreviated Form, being a Grant 
 in Perpetuity, about this Period. 
 
 Lord Advocate. — Will you look into the Book, and select instances of ' Lit^rae ' in which they are for Life, 
 and Instances in which they are for Perpetuity ? 
 
 Mr. Melville.— 1 will do so." 
 
 25«A July 1853. 
 
 " Mr. StuaH Wortley {to Mr. Melville). — You were asked on a former Day whether there was any Instance 
 of an hereditary Grant appearing in the abridged Form. Have you found any Instance of a Royal Grant abridged 
 as the ' Litera ' of the Duke of Montrose appears to be abridged in the Record ? 
 
 Mr. Melville. — I have. 
 
 Mr. Stuart Wortley. — Is what you now produce a Copy from the Great Seal Register ? 
 
 Mr. Melville. — It is. 
 
 Mr. Stuart Wortley. — Is it a Litera ? 
 
 Mr. Melville. — It is. 
 
 Mr. Stuart Wortley. — To whom is the Grant ? 
 
 Mr. MelvUle.-^To James Rutherford. 
 
 Mr. StuaH Wortley. — Of what Date ? 
 
 Mr. MelviUe.— The 13th of June 1482. 
 
 Mr. Stuart Wortley.— Wha.t is the Effect of it? 
 
 Mr. Melville. — It is a Grant of the Patronage of the Church and Rectory of Bethroule. 
 
 Mr. Stuart Wortley. — In fee ? 
 
 Mr. Melville.— Yes. 
 
 Mr. StuaH Wortley. — But recorded short ? 
 
 Mr. Melville. — Yes. 
 
 By a Lord. — How do you know that it is in Fee except from the Litera ? 
 
 Mr. Melville. — It is so stated here. 
 
 By the same. — It appears upon the Litera that it was in Fee ? 
 
 Mr. Melville. — Yes. 
 
 Mr. StuaH Wortley. — Will you read it ? 
 
 The same was read as follows : — 
 
 (No. CLXXXVI.) 
 
 " Data fuit Litera sub magno sigillo Jacobo Ruthirfurde de eodem super donacione advocacionis et juris 
 " patronatus ecclesie et rectorie de Bethroule, diocesis Glasguensis : — Qctequidem advocatio et jus patronatus concesse 
 " fuerunt quondam Jacobo Ruthirfurd, patri dicti Jacobi per quondam Willielmum Comitem de Douglas, et dictus 
 " quondam Jacobus usus fuit sua possessione presentacionis ad eandem, et Magistrum Jacobum Newtoun, modernum 
 " rectorem ejusdem, presentavit ; et advocacio et jus patronatus ad manus Regis legittime devenerunt per foris- 
 "facturam proditoris Jacobi olim Comitis de Douglas :—Tenendas et Habendas prefatas advocacionem et jus 
 " patronatus ecclesie predicte dicto Jacobo Ruthirfurd et heredibus suis infeodo et liereditate, et proprietate, imperpetuum 
 " sine revocacione aut obstaculo quibuscunque :— Ap0d Edinburgh, decimo tertio die mensis Junii, anno Domini 
 " millesimo quadringentesimo octuagesimo secundo, et regni Regis vicesimo secundo." 
 
 Lord Advocate. — Is that the only Instance you have found of this Kind ? 
 
 Mr. Melville.— It is not the only Instance I have seen ; it is the only Entry of that Nature I have made 
 a Copy of. 
 
APPENDIX. 
 
 535 
 
 Sir F. Kelly. — You have only looked at One Volume of the Great Seal Eegister, which happens to be here ? 
 Mr. Melville. — Yes ; since my last Examination on this Point, 
 Sir F. Kelly. — And in it you find this One Instance ? 
 
 Mr. Melville.— Yes." 
 
 Observation. 
 
 It will be observed how much more regular and business-like the preceding registration of the charter to 
 James Rutherford is than the registration qf the Litera purporting to grant the Dukedom of Montrose. 
 The Claimant has given in the ' S. Case,' pp. 129 sqq., various other instances of abstracts of grants in per- 
 petuity inserted in the Great Seal Register. No instance has been discovered of an abridged grant of 
 Peerage. 
 
 iv. Evidence and examination of William Fraser, Esquire, appearing on behalf of the Crown, 
 on the preceding question — with special reference to the contents of the volume of the Great 
 Seal Eegister which contains the abstract of the Montrose Litera (a different volume from 
 that which contains the preceding Litera of 1482, discovered by Mr. Melville, and the 
 Montrose Patent 18th May 1488). From the ' Minutes of Proceedings,' MSS. — 
 (Referred to supra, p. xcvi.) 
 
 (No. CLXXXVII.) 
 
 " 29itA July 1853. 
 ***** 
 
 " Mr. Innes further stated that the Abridgment of the Second Grant of the Dukedom of Montrose, con- 
 tained in the Great Seal Register, having already been put in Evidence by the Claimant, he desired to examine 
 Mr. Fraser with reference to the Contents of the Volume of the Great Seal Register in which it was found. 
 
 Mr. Innes {to Mr. Fraser). — Have you examined the Twelfth Book of the Great Seal Eegister of Scotland? 
 
 Mr. Fraser. — I have. 
 
 Mr. Innes. — It is in that Volume that the Abridgment of the new Grant of the Dukedom of Montrose is 
 contained ? 
 
 Mr. Fraser. — Yes. 
 
 Mr. Innes. — How many Entries did you iind in all in that Volume ? 
 
 Mr. Fraser. — Three hundred and seventy-five. 
 
 Mr. Innes. — How many of those are recorded in extenso, in full ? 
 
 Mr. Fraser. — Two hundred and ninety-seven. 
 
 Mr. Innes.— ^How many are recorded in the Manner of an Abridgment ? 
 
 Mr. i^raser.— Seventy-eight. 
 
 Mr. Innes.- — Do you find that those two hundred and ninety-seven recorded in ecctenso are all heritable, or for 
 Perpetuity ? 
 
 Mr. Fraser. — Yes, they are. 
 
 Mr. Innes. — Bo you find with Regard to those entered hy Abridgment that they are all for Life, or Term of Years ? 
 
 Mr. Fraser. — They are aUfor Life-rents or for Term of Years. 
 
 By a Lord. — All the seventy-eight ? 
 
 Mr. Fraser. — AU the seventy-eight. 
 
 By the same. — This applies to all Grants of all Descriptions ? 
 
 Mr. Fraser.- — All Grants abridged. 
 
 Sir John Bayley. — Bo all the seventy-eight abridged Entries of which you have spoken relate to Honours and Lands, 
 or to Lands only, or partly the one and partly the other? 
 
 Mr. Fraser.- — / think to Lands and Offices, with the exception of the Buhdom of Montrose, 
 
 Mr. Innes.- — But they are all for Life or for a Term of Years ? 
 
 Mr. Fraser.— All for Life or for a, Term of Years," 
 
536 APPENDIX. 
 
 V. Charters or Patents of creation of Scottish Peerages, adduced by the Claimant (in reply 
 to objections of the Crown on this head) to shew that the words "pro toto tempore vite 
 " sue," or words identical in import, frequently precede a limitation to heirs in the dis- 
 positive clauses of such Patents — the grant being in these cases to the patentee for life 
 audio his heirs after him: — The Claimants argument being, that the words ^'' pro toto 
 " tempore vite sue " in the memorandum of the Litera in the Great Seal Register may 
 have been followed by a limitation to heirs in the original, though omitted by the clerk 
 in the haste of abridging it into the Register. — (Referred to supra, p. cvi.) 
 
 (1) Charter, or Patent, by James VI., 29th July 1587, of the Barony of Alirie, to Robert Keith, 
 Oommendator ofDeir, "pro omnibus sue vite diehus tantimimodo," and, subsequently, " Georgia 
 " Comiti Mariscalli, suisque heredibus masculis." — From the Great Seal Register. — ' Minutes 
 ' of Evidence,' p. 131. — (Referred to supra, p. cvi.)_ 
 
 (No. CLXXXVIII.) 
 
 " Carta Eoberti nuper Commendatarii de Deir et Georgii Mariscalli Comitis. 
 
 " Jacobits, Dei gratia Eex Scotorum," &c. " Sciatis quia nos, memores boni et fidelis servitii quondam 
 nostris . . progenitoribus . . per predicessores . . nostri consanguinei et consiliarii Georgii Comitis Mariscalli, 
 Domini Keyth, etc. . . his multis etatibus preteritis prestiti et impensi ; memores etiam," &c. &c. ; " Ac cum 
 nunc dictus noster consanguineus, suis diligentia et magnis sumptibus, ejus avunculum Eobertum, nuper Com- 
 mendatarium Monasterii de Deir, et conventum ejusdem, resignare, renunciare, simpliciterque exonerare et 
 dimittere, per eorum specialis procuratorii literas, suis subscriptionibus et sigillo capitulari, in manibus nostris 
 efFecerit, omnes et singulas terras, dominia, baronias," &c. &c. " dicto nostro monasterio et patrimonio ejusdem 
 spectantes seu juste spectare valentes, et de quibus abbates et conventus ejusdem ullo tempore preterit© in posses- 
 sione fuerunt, prout in dicta dimissione latius continetur ; necnon nos intelligentes magnam partem terrarum prefato 
 monasterio prius dotatarum processisse et provenisse per dispositionem progenitorum et predicessorum dicti nostri 
 consanguinei, et quod proprietas majoris partis earundem alias in feudiferma locatur prefato nostro consanguineo 
 Georgio Comiti Mariscalli et suis predieessoribus per nos et quondam charissimam nostram matrem," &c. &c., — 
 " Et ideo nos, nunc post nostram perfectam etatem viginti unius annorum in parliamento nostro declaratam, 
 dedimus, concessimus, et disposuimus, tenoreque presentis carte nostre damns, concedimus, et disponimus prefato 
 Roberto, nuper Commendatario dicti nostri monasterii, in libera tenemento sive vitdli redditu, necnon prefato nostro 
 consanguineo Georgio Mariscalli Comiti, suisque heredibus masculis et assignatis, w feodo et hereditate, omnes et singular 
 predictas terras, dominia, baronias, . . dicto nostro monasterio et patrimonio ejusdem spectantes seu juste spectare 
 valentes, et de quibus abbates et conventus ejusdem ullo tempore preterito in possessione fuerunt, viz. manerium 
 de Deir," &c. &c. &c. — " Quasquidem omnes et singulas terras, dominia, baronias, . . nos, pro causis prescriptis, ex certa 
 scientiS, et proprio motu, in unum temporale dominium ao feodum nobile et laicum erigimtts, univimus, et incorporavimus, 
 tenoreque presentis carte nostre unimus, erigimus, et incorporamus, prefato Roberto, nuper Commendatario dicti 
 monasterii, libera tenementa sive vitaii redditu, pro omnibus sue vite didms solummoda, AG dicto nostro consano-uineo 
 Georgio Mariscalli Comiti suisque heredibus masculis et assignatis in feodo et hereditate imperpetuum, cum titulo et demo- 
 minatione Dominii de Altrie ; Dando et concedendo prefato Roberto, nuper Commendatario predicto, PRO omnibus 
 SUE VITE DiEBUs TANTUMMODO, AO dicto nostro predilecto consanguineo Georgio Comiti Mariscalli suisque here- 
 dibus MASCULIS et assignatis predictis omni tempore futuro, titulum, honorem, et statum unius libeei Baronis ac 
 Domini nostri Parliamenti, ratione prefatarum terrarum, votum et suffragium in omnibus parliamentis, gene- 
 ralibus consiliis, et conventionibus habendum simili modo, et adeo libere, sicuti aliquis alius Dominus parliamenti 
 habuit, habet, aut habere poterit ullo tempore preterito aut futuro, et quod dictum dominium honoretur et decoretur 
 insignibus et armis, ut congruit, imposterum Dominium de Altrie nuncupandum," &c. &c. — " Tenendas et habendas 
 omnes et singulas prefatas terras, dominium, et baroniam de Altrie . . prefato Roberto, nuper Commendatario de Deir 
 in vitali redditu, pro omnibus sue vite diehus, AC prefato nostro consanguineo Georgio Mariscalli Comiti suisque heredibus 
 masculis et assignatis, de nobis et successoribus nostris, in feodo et hereditate, dominio et libera baronia, imperpetuum,' 
 &c. — " Reddendo inde annuatim dictus Robertus Commendatarius predictus durante vitd sua, et post ejus decessum 
 prefatus noster consanguineus Georgius Mariscalli Comes suique heredes masculi et assignati suprascripti, nobis et 
 successoribus nostris summam centum quadraginta librarum in die festi Penthecostes, nomine albe firme, tantum. 
 In cujus rei testimonium," &c. " Apud Halyrudhous, vicesirao nono die mensis Julii, anno Domini millesimo 
 quingentesimo octuagesimo septimo, et regni nostri vicesimo primo." 
 
 Observation. 
 
 This Charter being extremely long, the unimportant parts have been omitted here. 
 
APPENDIX. ^^'^ 
 
 (2) Charter, or Patent, hy Cluwles I., ith May 1627, of the Barony of Napier of MercMstoun, to 
 Sir Archibald Napier, Knight, "pro toto tempore vite sue, et heredilm suis maseidis," &c.— 
 From the Great Seal Register.—' Minutes of Evidence; p. 136.— (Referred to supra, p. cvi.) 
 
 (No. CLXXXIX.) 
 
 " Diploma Archibaldi domini Nepare de Merchingstoun, etc. 
 
 " Caeolus, Dei gratia Magne Britannie, Francie, et Hybernie Eex, fideique defensor, omnibus probis 
 
 hominibus suis ad quos presentes litere pervenerint, salutem. Sciatis quia nos, nobiscum considerantes perraulta 
 
 servitia per predicessores fidelis et predilecti nostri eonsiliarii domini Archibaldi Nepare de Merchingstoun, 
 
 militis, nostri thesaurarii deputati infra regnum nostrum Scotie, pacis bellique temporibus majoribus nostris 
 
 illustrissimis felicis memorie, animoque nostro recolentes permulta et egregia servitia prefati domini Archibaldi 
 
 Nepare quondam nostro charissimo patri illustrissime memorie sedulo inservientis, ac etiam fida ipsius servitia in 
 
 nostris redditubus et casualitatibus corone nostre predicti regni nostri Scotie sub dicto quondam nostro charissimo 
 
 patre illustrissimi memorie administrandis, et nunc sub nobismetipsis nostro honori et beneficio bonorumque omnium 
 
 nostrorum subditorum satisfaetioni, prestita ; Neo non perpendentes quam sit idoneum bonoque principe dignum 
 
 omnes illos subditos et ministros ad honores et dignitates provehere, qui per sua egregia servitia et probas actiones 
 
 suorum principum favoris indicia in eos conferri, eorumque benemerita apud posteros inveniri, promeruerunt : — 
 
 Igitur dedimus et coneessimus, tenoreque presentium damns et ooncedimus, prefato domino Archibaldo Nepare 
 
 de Merchingstoun, militi, peg toto tempore vite sxte, et Heeedibus suis mascdlis, de oorpore suo vel eorum legittime 
 
 procreatis vel procreandis, titidum, stUum, honorem, et dignitatem Domini et Baronis in parliamento regni nostri Scotie, 
 
 perpetuo omnibus temporibus afiFuturis Z^omwos Nepare de Merchingstoun nuncupandos et indigitandos, ad gaudendum 
 
 et fruendum hinc inde omnibus temporibus affuturis omnibus honoribus, prehementiis, privilegiis, immunitatibus, 
 
 aliisque prerogativis, quibus aliquis alius Dominus Parliamenti infra dictum regnum nostrum Scotie fruitur, gaudet, 
 
 sen possidet. Ac etiam investivimus et indigitavimus, tenoreque presentium investimus et indigitamus, prefatum 
 
 predilectum nostrum consiliarium dominum Archibaldum Nepare de Merchingstoun, militem, suosque predictos, 
 
 cum dicto stilo, titulo, honore, et dignitate Domini Nepare de Merchingstoun, ita indigitandos, nuncupandos, 
 
 honorandos, et agnoscendos ut Dominos Nepare perpetuo, omnibusque temporibus affuturis, in omnibus nostris par- 
 
 liamentis, conventibus, consiliis, aliis locis, vel actionibus quibuscunque, privatis seu publicis. In cujus rei 
 
 testimonium presentibus magnum sigillum nostrum apponi precepimus. Apud regiam nostram de Quhytehall, 
 
 quarto die mensis Maii, anno Domini millesimo sexcentesimo vigesimo septimo, et anno regni nostri tertio. 
 
 Per signaturam manu S. D. N. Regis suprascriptam." 
 
 (3) Charter, m Patent, ly Charles I., last of February 1628, emferring the Barmy of Cramond 
 upon Elizabeth Lady Eichardson "pro toto tempiyre vite sue," and on Sir Thomas Bichardson 
 " suisque heredibus masculis," &c.—From the Great Seal Register,—' Minutes of Evidence; 
 p. 138. — (Referred to supra, p. cvi.) 
 
 (No. CXG.) 
 
 " Diploma Elizabethe Domine Richardsone Baronisse de Cramond. 
 " Caeolus Dei gratia, . . Rex," &c. " Sciatis quia," &c. &c. " Inter quas personas nos nunc specialem 
 noticiam accipientes bone et approbate vite Elizabethe Domine Richardsone, conjugis domini Thome Richardsone, 
 mUitis iustitiarii principalis foro causarum communi in palatio nostro Westmonasteriensi infra regnum nostrum 
 Anglie,multommquebonorum et gratorum servitiorum per dictam Elizabetham Dominam Richardsone nostre 
 charissime conjugi tanquam unam dominarum ipsius privati cubiculi prestitorum et impensorum, &c. :- Igitur, 
 epotestate nostra regiaet auctoritate regali fecimus, creavimus, et constituimus, tenoreque presentium facimus, 
 creamus et constituimus prefatam Elizabetham dominam Richardsone pro toto tempore vite sue Baramssam de 
 Cramond infra prefatum regnum nostrum Scotie," &c. " AC etiam, post illiv. deoessum, nos, e regia nostra potestate, 
 auctoritate regali, certa scientia, speciali gratia, proprioque motu, creamus, facimus, constitmmus, per presentes 
 ha^ literas nostras pa-quemodum successicmis, DOMimiM Thomam Rici^aedsone, militem, fibum et heredem drctz pnnctpalts 
 fustitiarii, Dominum Baronem de Cramond ; dando et concedendo eidem post decessum dicte domine, suis heeedibus 
 MASCULIS quibus deficientibus, heredibus masculis de corpore dicti domini Thome Richardsone, patns, post decessum 
 prefate domine, titulum, homrem, gradum, et dignitatem Domiaomm Baronum Parlu^m^^ prefaU regm nostn Sootu 
 L " Tenendum et habendum prefatum titulum, honorem, ordinem, et dignitatem Domini Baronis de Cramond, 
 pos"t decessum prefate domine, cum suffragio in Parliamento," &c. " Et interea tempons, durante toto tempore 
 vite dicte domine Elizabethe, voluimus et declaravimus, tenoreque presentium, ' &c. "quod prefatus dominus 
 Thoma. Richardsone, filius, locum et precedentiam habeat sicuti ille qui dictum titu urn Baronis post decessum 
 dicte domine habiturus est," &c. " In cujus rei testimonium," &c. "Apud aulam nostram de Newmercat, ultimo 
 die mensis Februarii, anno Domini millesimo sexcentesimo vigesimo octavo, et anno regm nostri tertio. 
 " Per signaturam manu S. D. N. Regis suprascriptam etc." 
 
 Observation. 
 
 This Patent, like the penultimate, has been curtailed of the superfluous passages. 
 
538 APPENDIX. 
 
 (4) Charter, or Patent, hy Charles I., "ifknd May 1636, hy way of confirmation or recognition, of 
 the Ea/rldom of Ernne, to James Home of Goldenknows, third Earl of Home, "pro toto sue 
 " vite tempore, suisqub heredibus masculis," &c. — From the Great Seal Eegister, — ' Minutes 
 ' of Evidence,' p. 137. — (Eeferred to ^upra, p. cvi.) 
 
 (No. CXCI.) 
 
 " Diploma Jacobi Comitis de Home, 
 
 " Caeolus, Dei gratia, Magne Britannie, Francie, et Hibernie Eex, fideique defensor, omnibus probls 
 hominibus suis ad quas presentes litere pervenerint, Salutem. Sciatis quia nobiscum perpendentes quod quondam 
 noster charrissimus pater eterne memorie, pro bono et fideli servitio sibi suisque preclarissimis progenitoribus 
 prestito et impenso per quondam Alexandrum Comitem de Home, etc., ipsum titulo, gradu, honore, et dignitate 
 Comitis decoravit, et quod dictus quondam Alexander Comes de Home, etc. durante toto tempore vite sue dicto 
 titulo, honore, gradu, et dignitate Comitis gavisus est, quodque ejus filius, quondam Jacobus Comes de Home, 
 etc. pro toto sue vite tempore eundem honorem et dignitatem in sua persona sustinuit ; et nos intelligentes Jacobum 
 Home de Coldounknowis propinquissimum esse consanguineum dicti quondam Alexandri Comitis de Home et 
 quondam Jacobi Comitis de Home, sui filii, ratione agnationis, sic quod dicta dignitas ipsi maxime congruit : — 
 Igitur, proque stabilimento dicte dignitatis in persona dicti Jacobi Home, et ut ipsi animus addatur ad persever- 
 andum in debita erga^nos observantia, et summo conamine in nostrorum mandatorum paratS, exequutione, dedimus 
 et concessimus, tenoreque presentium damus et concedimus, dicto Jacobo Home PEG toto sde vite tempore, sdisque 
 HEEEDiBtrs MASCDXis, titulum, stUum, honorem, et dignitatem Comitis, Domini, et Baronis parliamenti infra regnum 
 nostrum Scotie, imperpetuum et omni tempore futuro ; quodque appellabitur et vocabitur Comes de Home 
 in futurum ; cum potestate dicto Jacobo Home suisque predictis gaudendi et fruendi imposterum omnibus honoribus, 
 preeminentiis, precedentiis, privilegiis, immunitatibus, omnibusque aliis prerogativis, que per dictos quondam 
 Alexandrum et Jacobum Comites de Home in nostris parliamentis aut alio quocunque modo possidebantur. Ac 
 similiter nos tenore presentium investimus et inauguramus dictum Jacobum Home suosque predictos in dicto stilo, 
 titulo, honore, et dignitate Comitum de Home, et quod dicta indigitatio et appellatio agnoscatur in onmibus 
 nostris parliamentis, conventionibus, consiliis, aliisque locis et actionibus quibuscunque, tam privatis quam publicis ; 
 et quod dicta dignitas per eum possideatur via precedentie secundum antiquitatem diplomatis prefati quondam 
 Alexandri Comitis de Home ei per dictum quondam nostrum charissimum' patrem concessi ; quodque preferatur in 
 gradu et dio-nitate omnibus aliis Comitibus post datam dicti diplomatis dicti quondam Alexandri Comitis de Home 
 creatis, aut aliquibus aliis quibus ipsi durante vita sua prelatus fuit, libere, quiete, plenarie, integre, honorifice, 
 bene et in pace, sine aliqua revooatione, contradictione, impedimento, aut obstaculo quocunque. In cujus rei 
 testimonium presentibus magnun) sigillum nostrum apponi precipimus. Apud aulam nostram de Hamptoun 
 Court, vigesimo secundo die mensis Maij, anno Domini mUlesimo sexcentesimo trigesimo sexto, et anno regni 
 
 nostri duodecimo, 
 
 "Per signaturam manu S. D. N. Regis suprascriptam." 
 
 Observation. 
 
 This Patent, like that of the Barony of Napier, is printed at full length, and completely (it is conceived) 
 bears out the Claimant's argument — there being no peculiar or unusual circumstances attending either of 
 these grants ; while even if there had been such (as has been suggested, apparently, with regard to the 
 Altrie and Cramond creations, supra, p. 298), the Claimant's reasoning — from the simple possibility of 
 mistake on the part of a careless and hurried transcriber — remains equally relevant and to the purpose. 
 The Claimant has cited several other instances of the same sort in his Case, p. 26, and S. Case, p. 124.* 
 
 * With respect to the interesting Patent above given, it may the Session in respect to the "Earle of Home's title of honour" 
 be remarked, although not important as regards the argument and succession, to the effect that, seeing " with their approbation 
 immediately here in view, that it is not a creation of the Earldom " breves are raised to serve James Home air maill to the late 
 of Some — which by the patent of the Earldom 4th March 1605 " Earl of Home," all due evidence should be sought after " con- 
 was descendible to heirs-male whomsoever, and, by the context " ceming his Tumours and estait, and that in all actions that shall 
 of the regrant 1636 itself, duly went to the grantee on the death "cum before them tuiching that succession justice without 
 of James second Earl of Home, as nearest heir-male ; but a mere " delay or respect of persones be equallie administrat." Original 
 Charter of Confirmation, on the ancient principle " accumulandi Register of Sir William Alexander, Earl of Stirling, Secretary of 
 " jura juribus," and in recognition of his status, precedency, &c., State for the time, preserved in the Advocates' Library. — The 
 — precisely as in the Glmcaim, Norfolk, and (as may probably be Claimant's pretensions proved to be well founded, and the 
 the case) in the Montrose instance. All this was in regular and Charter or Patent in question, above adduced, was subsequently 
 current course ab initio, according to Scottish practice, however granted, in recognition, by Charles I. It is accordingly described 
 overlooked and ignored in the present day. On the death of as " not a case of re-geant upon a resignation, but. .bierelt 
 James second Earl of Home previously to the 4th March 1633 " A recognition of an already existing right" by Mr. 
 without male issue, his succession had been claimed by his Alexander Sinclair in his learned and ingenious " Dissertation 
 heirs-general and by a collateral heir-male, and the matter came " upon Heirs-Male," p. 74. — This patent affords a conclusive 
 in due course — not by reference from the Crown, but by inherent answer to the assumptions of the Attorney General and of Lord 
 right — before the Court of Session, as the Supreme Civil Court St, Leonards as to the form in which a coijinnation of the Duke- 
 of Scotland; and on the 4th March 1633 Charles I, wrote to dom of Montrose would necessarily be drawn, wpra, pp. 199,355. 
 
APPENDIX. 539 
 
 vi. Charter hy Robert III., 2nd January, 1390, to Sir David Lindsay of Glemsk, knight, 
 granting him — to himself personally and alone — in consideration of homage to be 
 rendered to the King individually "pro toto tempore vite sue" — certain property; 
 and in which Cliarter the limitation to heirs appears only in the ' tenendas ' clause : — 
 Adduced by the Claimant, like the preceding documents, to meet objections of the Croxm, — 
 his argument being. 
 
 That a clerk, hastily abridging such a charter as the grant in question, and omitting 
 
 the ' tenendas ' clause, would omit the limitation to fieirs, and so misrepresent the 
 
 grant as being personal, or for life only, not hereditary :— And, 
 
 That, in like manner, when it appears that the abridgment of the second Montrose 
 
 patent in the Great Seal Register {a most hasty and, according to the 
 
 Attorney -General, "unartistic" performance) represents the 'tenendas' 
 
 clause hy the following words only, " Etc., cum omnibus clausulis secundum 
 
 ''formam carte " (words of themselves technically implying a limitation), " ac 
 
 " cum itineribus et curiis justiciarie et camerarie," * it carinot be held that the 
 
 ENTIRE document did not contain a limitation, in conformity with the Act 
 
 of Parliament 18th September 1489, its warrant— by which loarrant it falls 
 
 under any circumstances to be governed, interpreted, controlled, and corrected 
 
 if necessary, according to the recognised rules and practice of Peerage Law. 
 
 — With an abridgment of the Charter in question on the principle adopted in the 
 
 abridgment of the Montrose Litera 19th September 1489, shewi?ig how it might on that 
 
 principle have been misrepresented as a mere liferent grant.— From the Great Seal 
 
 Register —'■ Minutes of Evidence,' p. 140.— (Referred to supra, p. cvi.) 
 
 (No. CXCII.) 
 " Carta pro Domino David de Lyndesay de quadraginta libris custume burgi de Abirdene. 
 " EoBEETUS, Dei gratia Eex Scottorum, Omnibus probis hominibus tocius terre sue, clericis et laicis, 
 Salutem. Sciatis nos dedisse, concessisse, et hac present! carta nostra confirmasse, dilecto fratri nostro David de 
 Lyndesay de Glenesk, militi, pro homagio suo nobis impenso et PEG toto tempore vite sue impendendo, quadra- 
 ginta libras sterlingorum de magna custuma Burgi de Abirdene, persolvendas annuatim per manus custumari- 
 orum nostrorum ibidem qui pro tempore fuerint proporcionaliter ad festa Pentecostes, et Sancti Martini in yerae 
 (hieme) :— Texendas et Hahendas eidem David et heeedibus suis de nobis et lieredibus nostris in feodo et heee- 
 DITATE, libere, quiete, plenarie, integre, et honorifice, bene et in pace, quousque nos vel heredes nostri dictum 
 David et heredes suos in quadraginta libratis terre in loco competenti alias per cartam nostram cum clausula 
 warandie liereditarie infeodaverimus. Quare caraerario nostro Scocie, custumariisque nostris Burgi de Abirdene 
 qui pro tempore fuerit vel fuerint, districte precipimus et mandamus, quatenus dictum David et heredes suos 
 predictos de dictis quadraginta libris annuatim ad terminos predictos plene faciant deserviri, quousque sibi consti- 
 terit nos vel heredes nostros dictum David et heredes suos predictos, ut premittitur, de quadraginta libratis terre 
 cum pertinentibus, in loco competenti hereditarie infeodasse. Quasquidem quadraginta libras sibi in compotis suis 
 annuls inde reddendis, visis ipsius David et heredura suorum Uteris de recepto, plene volumus allocari. In cuius 
 rei testimonium present! carte nostre nostrum precepimus apponi sigillum : — Testibus venerabilibus in Christo 
 patribus, TValtero et Matheo Sancti Andree et Glasguensis ecclesiarum episcopis; Eoberto de Fif et de Meneteth 
 fratre nostro carissimo, Archebaldo de Douglas, domino Galwidie, consanguineo nostro, Comitibus ■ Jacobo de 
 
 * It is to be observed here, in order to forestall objection and " suis," (then for the first time distinctly specified,) the usual 
 
 secure due appreciation of the Claimant's argument, that, recapitulation of the property granted, and the light to hold 
 
 although the word " tenendum " occurs in the abstract of the courts of justiciary and chamberlainship, &c.° : After which 
 
 Montrose Litera, this word belongs to the ' Qmdquidem ' — not to again comes the Reddendo clause, and lastly the Testmg clause 
 
 the ' Tenendas ' clause of the Litera. This will appear on com- concluding the document. — Such therefore being the case and 
 
 parison of the abridged Litera with the " carta" to which the turning to the memorandum of the Litera, it will be found'that 
 
 abstract refers as its model and authority (" cum omnibus after giving the description of the property in words almost 
 
 " clausulis secundum formam carte ") — in other words, with the literally transcribed from the dispositive and the quodquidem 
 
 original Montrose Patent. The patent, after describing, in the clauses of the original Patent, it concludes that description as 
 
 Dispositive and the Quodquidem clauses, the property granted with follows, — " . . jacentibus infra Vicecomitatum de Perth 
 
 the Dukedom to David Earl of Crawford — individually, yet " creando omnia predicta in unum merum et liberum Ducatum 
 
 " hereditarie," concludes that description as follows : — " Quod- " de Montrose nuncupandum, ao tenendum in liber^ regalitate " 
 
 ." quidem capitale messuagium et locum castri . . ac burgum et these words forming t/te last sentence of the quodquidem in the 
 
 " villam de Montrose, . . necnon capitale messuagium . . et locum Litera as well as in the original Patent. It follows consequentlv 
 
 "castri, . . ac omnes . . terras . . dominii de Kinclevin, cum 1. That the word " tenendum " in the Abstract does not repre- 
 
 " . . pertinentibus, jacentibus in Vicecomitatu nostro de Perth, sent the tenendas clause in the original ; and 2. That the tenendas 
 
 " creavimus, univimus, annexavimus, et incorporavimns, ac clause is represented solely by the words which immediately 
 
 " tenore presentis carte nostre creamus, unimiis, annectimus, et follow in the abstract, viz. " Etc., cum omnibus clausulis " and 
 
 " incorporamus, in unum merum et liberum Ducatum, perpetuis so on ; while the second " Etc.," which follows, represents the 
 
 " futuris temporibus Ducatum de Montrose nuncupandum, ac Keddendo clause (which is entirely omitted), and the " De 
 
 " tenendum in libera regalitate pro perpetuo :" — After which " Data," &c. the Testing or tinal clause of the document. With 
 
 follows immediately the JeKOTdas clause as follows, — "Tenendum this explanation the ensuing argument will be readily appre- 
 
 " et Habendum predictum capitale messuagium," &c. &c. — in- hensible. 
 chiding the limitation to the Duke and his heirs, " heredibus 
 
 ■ This right, although not previously specified individually, vpas involved in the grant of regality conveyed in the Dispositive 
 clause. See Erskine, Institute, B. II., Tit, iii., J 24. 
 
 3 Z 
 
540 APPENDIX. 
 
 Douglas, domino de Dalketh, Thoma de Erskyne, consanguineis nostris dilectis, militibus ; et Alexandre de 
 Cocburne de Langton, Custode magni Sigilli nostri. Apud Ed3'nburgh, secundo die Januarii, anno regni nostri 
 primo." 
 
 Abridijment of the preceding Charter on the above principle. 
 
 "Data est carta David de Lyndesay, dando ipsi, pro homagio et servitio suo nobis impenso et pro toto tem- 
 pore VITE SUE impendendo, quadraginta libras sterlingorum de magna custuma Burgi nostri de Abir- 
 dene, persolvendas annuatim ad festa Penthecoste et Sancti Martini. — Etc., cum omnibus clausulis 
 SECUNDUM FOEMAM OAETE. — Etc. — De data ii diei Januarii, anno regni Regis primo." 
 
 Observation. 
 
 The Claimant would observe that, owing to the reason explained by Sir FitzRoy Kelly at pp. 295, 298, 
 supra, he had not observed the words " pro homagio suo nobis impenso et . . impendendo, " annexed 
 to " pro toto tempore vite sue," in the preceding charter, till the document was produced at the bar, 
 and, in the hurry of the moment, on an objection being raised, grounded upon the annexatory words 
 in question, he apologised for the document ; but, on calmer examination, he sees no cause for such 
 apology — nothing being more common than grants for service to be rendered by the grantee individually 
 to the individual King who makes the grant, necessarily for the mere lifetime of the grantee in the first 
 instance, but with a limitation afterwards to heirs — appearing only in a subsequent clause of the document.* 
 The words " pro toto tempore vite sue " are thus words of pure surplusage in this instance, as the 
 Claimant contends they are in the Montrose Regrant. 
 
 But the argument here is quite independent of the words "pro toto tempore vite sue,'' or of any similar ex- 
 pression — which at best is aflBrmative, not negative or privative. In point of fact, as appears from 
 almost every page of the Great Seal Register, the limitation in ancient charters is very frequently found, 
 not in the dispositive clause, but in the tenendas ;" and every one of these charters, if abridged in the manner 
 in which the Montrose Litera is abridged, would be held, on the principle adopted by the Committee, to be 
 a mere life-rent grant. In illustration of this, he may appeal to the volume of the Register printed by 
 authority, under the Record Commission, passim ; and to the following examples from the evidence 
 adduced by the Crown in the present case : — 
 
 I. Charter of James III., 18th May 1488, recorded in the Great Seal Register, to Sir Thomas 
 
 TurnbuU, granting him, " pro bono . . servitio nobis impenso et impendendo, . . totas et 
 integras terras nostras de Tarinzane, . . jacentes infra Vicecomitatum nostrum de Are : — 
 Tenendas . . prefato Thome et heeedibus suis de nobis et successoribus nostris, in peodo 
 ET HEEEDiTATE, imperpetuum," &c. — " Reddendo inde annuatim dictus Thomas et heredes 
 sui," &c. — " In cujus rei," &c. — Adduced by the Crown, p. 508, supra, and also by the Claimant 
 supra, p. 378, where it is more fully given. 
 
 Abridgment of the preceding Charter, on the above principle. 
 
 " Data est carta Thome Turnbule, dando ipsi totas terras de Terrinzane infra vicecomitatum 
 de Are : — Etc, cum omnibus ci,ausulis secundum tokmam cakte : — Etc. : — De 
 datS, xviii diei Maij, anno regni Regis vicesimo octavo." 
 
 II. Charter of James IV., 31st May 1512, to Andrew and Lawrence Wardroper, (vide infra, 
 
 p. 542,) recorded in the Great Seal Register as follows: — "Jacobus, Dei gratia," &c. f 
 " Sciatis nos, post dissolutionem per nos factam, cum a\isamento et consensu Trium regni 
 nostri Statuum in nostro piano Parliamento, de annexationibus terrarum ad coronam nostram, 
 pro earundem in feodifirma assedatione, in augmentationem rentalis nostri et utilitatem 
 patrimonii Corone nostre, Necnon pro edificationibus et poleciis in regno nostro habendis, 
 dedisse, concessisse, et hac presenti carta nostra ad feodifirniam dimississe dilectis nostris 
 Andree Wardropar et Laurentio Wardropar,falri suo, totas et integras terras nostras domini- 
 cales de Kinclevin, cum piscaria et molendino earundem, que sc nunc extendunt in rentali 
 nostro, ante presentem nostram assedationem feodifirme, ad summam viginti librarum in 
 pecuniis, et quadraginta octo salmones, annuatim ; viz., dicto Andree binam partem dictarum 
 terrarum, molendini, et piscarie, et dicto Laurentio tertiam partem earundem terrarum, 
 molendini, et piscarie, cum pertinentiis ; Necnon predicto Andree Wardropar totas et 
 integras terras nostras de Ballauchtyis, cum piscaria earundem, nunc extendendo in rentali nostro 
 ante presentem nostram assedationem feodifirme, ad summam octo librarum tresdecim solidorum 
 et octo denariorum in pecuniis, et viginti quatuor salmones, annuatim, cum suis pertinentiis, 
 jacentes in dominio nostro de Kinclevin, infra vicecomitatum nostrum de Perth : Tenendam 
 et habendam totam et integram predictam binam partem dictarum terrarum dominicalium de 
 Kinclevin, cum bina parte molendini et piscarie earundem, necnon totas et integras predictas 
 terras de Ballauchytis, cum pertinentiis, dicto Andree Wardropar et heeedibus suis 
 MAscuLis, quibus deficientibus, seniori suarum heredumfeminearum, absque divisione dictarum, 
 terrarum, molendini, et piscarie ; Necnon totam et integram tertiam partem earundem terrarum 
 dominicalium de Kinclevin, ciim tertifi parte molendini et piscarie earundem, et suis per- 
 tinentiis, dicto Laurentio Wardropar et heeedibus suis mascuus, quibus deficientibus, 
 seniori suarum heredum feminearum, absque divisione dicte tertie partis terrarum, molendini 
 et piscarie, ut predicitur, de nobis et successoribus nostris in peodifiema bt heeeditate 
 imperpetuum,— per omnes rectas metas suas," &c. &c.— " Reddendo annuatim dicti Andreas 
 et Laurentius, et heredes sui predicti, nobis et successoribus [nostris], pro dictis terris 
 dominicalibus de Kinclevin," &c. " Summam quadraginta sex librarum, tresdecim solidorum, 
 et quatuor denariorum, usualis monete regni nostri, viz." &c. &c. " Necnon prefatus Andreas' 
 * Erskine states this still more strongly :—" In this clause" Tit. iii., § 23. 
 (the dispositiye) " is also inserted by our present style the order f This charter is abbreTJated here, owing to it= great length— 
 
 "of succession and the limitations upon the fee, which by our ancient but not so as to interfere with the argument 
 " forms were inserted in the clause of ' tenendas.' " — Institute, B. ii., 
 
APPENDIX. 541 
 
 ct heredes sui antedioti reddendo nobis et successoribus nostiis pro dictis terris de Ballauch- 
 tyis," &c. " Necnon heredes dictorum Andree et Laurentii reddendo nobis et successoribus 
 nostris,'' &c. &c. — " In cujus rei testimonium, presenti carte nostre magnum sigillum nostrum 
 apponi precipimus : — Testibus ut in aliis cartis precedentibus : — Apud Striveling, ultimo die 
 mensis Maii, anno Domini millesimo quingentesimo duodecimo, et regni nostri vicesimo 
 quinto." 
 
 Abridgment, as above, of the preceding Charter. 
 " Data est carta Andree Wardropar et Laurentio Wardropar, fratri sua, dando ipsis totas 
 terras dominicales de Kinclevin, cum piscaria et molendino eurundem, viz. dicto Andree 
 binam partem dictarum terrarum, molendini, et piscarie, ct dicto Laurentio tertiam 
 partem carundem ; necnon predicto Andree terras de Ballauchtyis, cum piscaria 
 earundem, jacentes in dominio de Kinclevin, infra vicecomitatum de Perth : — ETC., 
 CUM OMNIBUS cLAUSULis SECUKDUM FORMAM CAETE:— Etc. : — De datS, ultimo die 
 Maii, anno rcgni Regis vicesimo quinto." 
 
 — Reference may also be made to the Patent of the Dukedom of Norfolk, as given supra, p. 388, and to the 
 Charter by James IV., 26th February 1506, to Sir Robert Erskine of the Sheriffdom of Stirling, supra, 
 p. 404; in both of which the limitation to heirs is found solely in the tenendas clause, and which would 
 equally be misconstrued if known only by abridgments executed on the above principle. 
 
 It is perhaps unnecessary to remark, that the above illustrations and arguments were not brought before the 
 Committee — there having been in fact no time for inquiry upon the subject, owing to the strange and 
 unexampled rapidity with which the proceedings went on. 
 
 The Charter to Sir David Lindsay of Glencsk, 2nd January 1390, was duly given in evidence, and has been 
 printed in the ' Minutes of Evidence' — although of course after the decision had been given. 
 
 Finally the Claimant may invite a comparison between the abridged 'Litera' by James III., 13th June 1482, 
 granting the patronage of the Church of Bedrule to James Rutherford of that Ilk and his heirs (already 
 cited, supra, p. 534), and the abridged Litera granting the Dukedom of Montrose, — the one being a 
 regular and careful abstract, without etceteras or marginal additions and corrections, and with the tenendas 
 clause, exclusively comprising the limitation, duly noticed and its tenor recorded ; the other — purporting 
 to convey information regarding the grant of the highest subject imaginable, a Dukedom — hurriedly and 
 carelessly written, and crammed into a corner of the Register after the page in which it now appears had 
 been completed, and the clerk had proceeded to the subsequent one — after in fact he must have finished 
 the volume, — thus being in the strictest sense of the word an interpolation. It may be observed too that 
 if the tenendas clause in the Litera of 1482 had been represented in the abstract by an " etc. cum omnibus 
 " clausulis secimdum formam carte,'' as in the memorandum of the Montrose Litera, the limitation to 
 heirs would have been altogether wanting in the abstract — precisely as is the case in that of the Montrose 
 Litera. 
 
 12. Enteies in the Exchequee Eoixs of the accounts of the Loedship op Kinclevin and the Customs of the 
 
 BUEGH OF MONTEOSE, AND OTHEE EVIDENCE, ADDUCED BY THE CeOWN, TO PEOVE THAT ON THE DEATH OF DaVID 
 
 Duke of Monteose in 1495, the Loedship of Kinclevin and the Customs of Monteose did 'not descend to 
 
 HIS SON AND SUOCESSOE IN THE EaELDOM OF CeAWFOED, BUT IMMEDIATELY EEVEETED TO THE CeOWN ON THE 
 GEOUND (as STATED IN THE EOLLS) THAT THEY HAD BEEN GEANTED merely for life; THE INFEEENCE ON THE PAET 
 OF THE CbOWN being THAT THE ACT KeSCISSOEY HAD CUT DOWN THE OEIGINAL PATENT, AND THAT THE DUKE 
 ENJOYED THE SAID CUSTOMS AND LoEDSHIP UNDEB THE LATER GEANT (THE LiTEEA, 19tH SePTEMBEE 1489) 
 MEEEIT FOE LIFE : — 'WlTH FUEIHEE PEOOF, TEACING THE HISTORY OF THE LOBDSHIP OF KiNOLEVIN DOWN TO THE 
 YEAE 1612 ; AND THAT OF THE CUSTOMS OF MONTEOSB TO THE CLOSE OF THE YEAB 1539, &C., — SHOWING THAT THE 
 CeAWFOED FAMILY RETAINED NO INTEREST IN THEM. 
 
 i. Proof that on the death of David Duke of Montrose the Lordship of Kinclevin did not 
 descend to his son and successor in the Earldom of Crawford, hut immediately reverted 
 to the Crown.*—'- Minvtes of Evidence,' Nos. 139 sqq. — (Referred to supra, p. cxii.) 
 
 (Nos. CXCIII. to CCIV. inclusive.) 
 
 (1) Account rendered to the Exchequer by Thomas Wardroper, the Receiver of the Farm Duties 
 
 of the Lordships of Kinclevin and others, of all the receipts and disbursements thereof for the 
 year liS5-6.— From the Exchequer Boll for I486.—' Minutes of Evidence,' No. 139. 
 
 (2) Account rendered ut supra,/o)- the year 1486-7.— i^rom the Exchequer Roll for 1487.—' Mi- 
 
 'nutes of Evidence,' No. 140. 
 
 (3) Ditto, for the year 14.S7-8.—From the Exchequer Roll for 1488.—' Minutes of Evidence,' No. 141. 
 
 (4) Ditto, for the year 1488-9.— From the Exchequer Roll for USQ.—' Minutes of Evidence,' 
 
 No. 142. 
 
 (5) Ditto, for the year 1489-90.— i^V-om Ditto for UQO.—' Minutes of Evidence,' No. 143. 
 
 (6) Ditto, for the year 1490-1 .—i^rom Ditto for UQl.—' Minutes of Evidence,' No. 144. 
 
 (7) Ditto, for the year U9l-2.—From Ditto for 1492.—' Minutes of Evidence,' No. 145. 
 
 " Question by Mr. Lnnes.— Is the Roll for the year 1493 wanting? 
 Mr. Eraser. — To the best of my Recollection it is." 
 
 (8) Account, ut supra, /or tlie year 1495-6, rendered at Edinburgh on the 11th July 1496,t— i!o 
 
 wit, " Compotum Thome Wardroper, Receptoris firmarum dominiorum de Kinclevin, Apna- 
 
 * The propositions of the Crown and descriptions of evidence f The evidence relied on by the Crown to establish the pro- 
 are here as before, given as nearly as possible in the words of Mr. position above laid down, begins properly at this pomt^the 
 lnnes and Mr! Fraslr, as taken dowrf in short-hand by Mr. Gur- earlier accounts merely shewmg the fact of possession by David 
 nev and which will be printed, in sequence to the evidence Duke of Montrose, 
 for the Claimant, in the ' Minutes of Evidence ' in this claim. 
 
 3^2 
 
542 APPENDIX. 
 
 " dull, Straithbrme, et aliarum terra/rum sulscriptarum, redditum apud Edinburgh undecimo 
 " die 'mensis Julii, anno Domini etc. nonagesimo sexto, de omnihus receptis suis et eocpensis 
 "perfirmas et redditus dictorum dominiorum a die decimo octavo mensis Augustt, anm 
 " Domini, etc. nonagesimi quinti, usque in diem hujus compoti, et sic de duohus termtms 
 " infra hoc compotum." 
 
 " Question by Mr. Innes.—Does the Collector take credit for the Farms and Lands of 
 
 " Kinclevin, formerly granted to David Duke of Montrose ad vitamf 
 Mr. Fraser. — He does, in these words : — 
 " Et plene allocatub oompotanti de fiemis tbbeaeum de Kinclevin, alias conces- 
 " SABUM Domino David Duci de Montbose AD VITAM pee liteeas Domini Eems alias 
 " ostensas supee compotum, de peimo teeming hujus compoti, quia decessit cieca fes- 
 " tum natalis domini, — xxxvi libbe, i" salmones." 
 
 " Question, ly Mr. Jmnes.— What is the Meaning of that? 
 
 Mr. Fraser.— It runs in these terms :— " And full allowance is made to the 
 " Accountant of the eents of the Lands of Kinclevin, foemebly geantbd 
 " to the Loed David Duke ofMonteosb FOE LIFE by Lettbbs of Oue Loed 
 " THE King fobmbely shewn, accounting foe the fiest Teem of this Ac- 
 
 " count ; BECAUSE HE DIED ABOUT THE FeAST OF THE NATIVITY OF OUB LOED, 
 
 " —£36 ; 100 salmon." 
 — ' Minutes of Evidence,^ No. 146. 
 (9) Account, ut supra, /or the year 1498-9.— i'Voro the Exchequer EoU of 1499. 
 
 " Question by Mr. /?mes.— Who appears then to be in possession of Kinclevin? 
 Mr. Fraser. — The balance of the Rents is accounted for to the Crown. 
 Mr. ijimes.— There is no mention of the Duke of Montrose or any of his Family ? 
 Mr. Fraser. — No." 
 — ' Minutes of Evidence,' No. 147. 
 
 (10) Charter by James IV., 31st May 1512, in favour of Andrew and Lawrence Wardroper, of the 
 
 Mains of Kinclevin, with the fishings and miU of the same, and lands of BaMauchtys, and 
 fishings of tlie same. — From the Great Seal Register. 
 
 " Observation by Mr. J?Vaser.— These lands are called ' totas et integras terras nostras 
 ' dominicales de Kinclevin.' 
 
 Mr. Innes. — Meaning, the King's Lands ? 
 
 Mr. Fraser. — Yes." 
 — ' Minutes of Evidence,'' No. 148.* 
 
 (11) Charter by James V., ith July 1525, to John Crichton of Innernytie, of two parts of the Mains 
 
 of Kinclevin, with mill and fishings of the same, sold by Thomm Wardroper of BaZlatheis. — 
 ' Minutes of Evidence,' No. 149. t 
 
 (12) Charter by James VI., SOth January 1612, to George Earl of Wintoun, &c. of the lands of 
 
 Innernytie and the Mains of Kinclevin, and fishings and miln of the same, lying in the 
 Lordship of Kinclevin. — ' Minutes of Evidence,' No. 150. 
 
 ii. Proof that the Great Customs of the Burgh of Montrose, and the Burgh Rents, or Small 
 Customs, did not descend on the death of David Duke of Montrose to his son and 
 successor, John Earl of Crawford, but reverted to the Crown : — ' Minutes of Evidence,' 
 Nos. 151 sqq. — (Referred to supra, p. exii.) 
 
 (Nos. CCV. to CCXXXI. inclusive.) 
 
 (1) Accounts rendered by the Customers of the Burghs of Dundee and Aberdeen, of aU the receipts 
 and disbursements of those Burghs for the year 1495-6, and for the Burgh of Montrose to 
 the 15th day of July 1496 — to wit, " Compiotum Magistri Soberti Erskyn, Cu^tomarii Burgi 
 " de Monthrose, redditum apud Edinburgh, decimo quinto die mensis Julii, anno Domini, etc. 
 " nonagesimo sexto, de omnibus receptis suis et expensis pee magnam custumam dicti Burgi 
 " A DIB obitus Domini David Ducis de Montheose, qui beat in die Sancti Stkphani 
 " ultimo pebteeito, qui habuit DUM VIXEEAT hujusmodi magnas custumas pee 
 " liteeas Domini Ebgis ab anno Domini nonagesimo usque in dictum diem obitus 
 " sui." — As also an account rendered by the Baillies of Montrose for all their receipts cmd 
 disbursements of the Burgh rents from the 10th July 1490 to the 5th July 1496, cmitaining 
 these viords among the disbursements, — " Et bidem pbk solutionem factam quondam 
 " Domino David Duci de Montrose pee liteeas Domini Eegis sub peivatoJ de diotis 
 " FIEMIS annuatim db quinqub annis HUJUS coMpoti, peecipienti viginti duos solidos 
 
 " ET GOTO DBNAEIOS, SIBI AD VITAM CONCESSOS, UT PATBT PEE DTCTAS LITEEAS OSTENSAS 
 
 " SUPEE COMPOTUM, v'^'' xiii' iiii''." — From the Exchequer Boll for the year 1496. — ' Minutes 
 ' of Evidence,' No. 151. 
 (2) Accounts rendered by the Customers of the Burghs of Dundee, Montrose, and Aberdeen, for the 
 year 1497-8 ; and Account rendered by the Baillies of Montrose for the same period. — From 
 the Exchequer Boll for 1498. — ' Minutes of Evidence,' No. 152. 
 
 • This charter is given supra, p. 540. % This curious intimation, creating additional mystery on the 
 
 t The place of custody of this and the succeeding document subject of the Montrose regrant, is referred to supra, p. xcix. 
 was not stated at the bar. Vide supra, p. 409, n. *. 
 
APPENDIX. 543 
 
 (3) Accounts rendered ut supra for the year 1498-9.— -From the Exchequer i:ollfor 1499. — ' Mi- 
 
 ' nutes of Evidence,' Ko. 153. 
 
 (4) Accounts rendered ut supra /or the year UdQ-1500,—aho copy of a Letter from James IV., 
 
 9th September 1500, to the GcmptroUer and Auditors of the Exchequer, to allow Margaret 
 Carmichael, Duchess of Montrose, her life-rent pension out of the Customs of Aberdeen, 
 Dundee, and Montrose. — Frmn the Exchequer Boll for 1499. — ^Minutes of Evidence,' 
 No. 154. 
 
 (5) Accounts rendered hy the Custcmers of the Burghs of Montrose, Aberdeen, and Dundee, 
 
 /or 1501-2 ; and Account rendered ly the BailUes of Aberdeen, from the lift February 
 1499 to the 29th July 1502.— Frmn the Exchequer Boll for 1502.—' Minutes of Evidence,' 
 No. 155. 
 
 (6) Accounts' rendered by the Customers of Montrose, Dundee, and Aberdeen, and by the BailUes 
 
 of Montrose and Aberdeen, for the year 1504-5.— i^Vom the Exchequer Boll for 1 505.— 
 ' Minutes of Evidence,' No. 156. 
 
 (7) Accounts rendered by the Customers of Aberdeen and Montrose, and by the BailUes of Mmtrose 
 
 and Aberdeen, for the year 1505-6.— i^roro the Exchequer Boll for 1506.—' Minutes of 
 ' Evidence,' No. 157. 
 
 (8) Accounts rendered by the Customers of Montrose, Dundee, and Aberdeen, and by tlie BailUes of 
 
 Montrose and Aberdeen, for iZOl-S.—From the Exchequer Boll for 1508.—' Minutes of 
 ' Evidence,' No. 158. 
 
 (9) Accounts, as in the preceding article, for 1508-9.— JVom the Exchequer Bollfm 1509.—' Mi- 
 
 ' nutes of Evidence,' No. 159. 
 
 (10) Accounts, ut supra,/or 1509-10.— JVo?» the Exchequer Boll for IhXO.—'- Minutes of Evidence,' 
 
 No. 160. 
 
 (11) Accounts, ut supra,/or 1510-11.— -From, the Exchequer Bollfw 1511. — ' Minutes of Evidence,' 
 
 No. 161. 
 
 (12) Accounts, ut supra, /or 1511-12.— -From the Exchequer Boll for 1512. — ' Minutes of Evidence, 
 
 No. 162. 
 
 (13) Accounts, ut supra,/or 1512-13. — -From tlie Exchequer Boll for 1513. — ' Minutes of Evidence,' 
 
 No. 163. 
 
 (14) Accounts rendered by tlie Customers of Montrose and Dundee, and by tlie BailUes of Montrose 
 
 and Aberdeen, for 1513-14. — .From the Exchequer Boll for 1514. — ' Minutes of Evidence,' 
 No. 164. 
 
 (15) Accounts rendered by the Customers of Montrose of all receipts and disbursements of that 
 
 Burgh from 12th July 1514 to SOth July 1515 ,- and by the Customers of Dundee of ditto 
 from 25th June 1509 to 1th August 1515 ; am.d by the Customers of Aberdeen of ditto from 
 2Qth July 1513 to 3rd St:ptember 1515 \ and Accounts rendered by the BailUes of Montrose 
 and Aberdeen of the Burgh rents for the year 1514-15. — -From tfte ExcJiequer Bollfm 1515. — 
 ^Minutes of Evidence,' No. 165. 
 
 (16) Accounts rendered by the Customers of Montrose, Dundee, and Aberdeen, and by the BailUes 
 
 of Montrose and Aberdeen, for 1515-16. — -From the Exchequer Boll for 1516. — 'Minutes 
 ' of Evidence,' No. 166. 
 
 (17) Accounts rendered, as in the preceding article, for 1516-17 . — From the Exchequer Boll for 1517. 
 
 ' Minutes of Evidence,' No. 167. 
 
 (18) AccouMt, ut supra,/or 1517-18. — From the Exchequer Boll for 1518. — ' Minutes of Evidence,' 
 
 No. 168. 
 
 (19) Accounts rendered by the Customers of Montrose and Dundee, for tlie period from July 
 
 1518 to November 1520. — -From the Exchequer Boll for 1520. — ' Minutes of Evidence,' 
 No. 169. 
 
 (20) Accounts rendered by tlie Customers of Montrose, Aberdeen, and Dundee, of all receipts and 
 
 disbursements of those Burghs, for Montrose for the year 1520-1 ; for Aberdeen from 20th 
 August 1518 to 1st January 1521 ; and for Dundee from, 22nd November 1520 to 2nd April 
 1522; and Accounts rendered by the BailUes of Montrose and Aberdeen of receipjts and dis- 
 bursements of the Bwrgh rents— for Montrose from 16th July 1516 to 18th February 1521, 
 and for Aberdeen from 20th August 1518 to 28th March 1522. — i^rom the Exchequer Boll 
 for 1521. — ' Minutes of Evidence,' No. 170. 
 
 (21) Accounts rendered by the Customers of Montrose, Dundee, and Aberdeen, of all receipts and 
 
 disbursements of those Burghs,— for Montrose from the 18th March 1523 to 18th July 1525 ; 
 for Dundee from the 6th April 1524 to ZithJuly 1525 ; and for Aberdeen from 1th March 
 1523 to ith August 1525 ; and Accounts rendered by the BailUes of Montrose from the 18th 
 March 1523 to the 18th July 1525, and of Aberdeen from 12th Apiril 1524 to 11th August 
 1525, for all receipts, <&c. of the Burgh rents. — From tlie Exchequer Boll for 1525. — ' Minutes 
 ' of Evidence,' No. 171. 
 
 (22) Accounts rendered by the Customers of Dundee and Aberdeen of all receipts and disbursements 
 
 far 1525-6.— -From tlie Exchequer Boll far 1526.— ' Minutes of Evidence,' No. 172. 
 
 (23) Accounts rendered by the Customers of Dundee, Montrose, and Aberdeen— for Dundee from 
 
 20th July 1526 to 15th July 1527 ; for Mmitrosefram 18th July 1525 to 11th July 1527 ; 
 and for Aberdeen from 1th August 1526 to 20th August 1527 ; and Accounts rendered by 
 the BailUes of Montrose from 18th July 1525 to the 11th July 1527. — From tlie Exchequer 
 Boll for 1521 .—' Minutes of Evidence,' No. 173. 
 
 (24) Accounts rendered by the Customers of Dundee, Montrose, and Aberdeen, for the year 
 
 1527-8 ; and Accounts rendered by tlie BailUes of Mmtrose for the same period, and by the 
 BailUes of Aberdeen from August 1526 to August 1528.— From the Exchequer Boll for 1528. 
 — ' Minutes of Evidence,' No. 174. 
 
 (25) Accounts rendered by the Customers of Dundee, Montrose, and Aberdeen, and by the BailUes of 
 
544 APPENDIX. 
 
 Montrose, for the year 1528-9.— From the Exchequer Boll for 1529.—' Minutes of Evidence,' 
 No. 175. 
 
 (26) Accounts rendered hy the Customers of Dundee, Montrose, and Aberdeen, and by the Baillies of 
 
 Montrose and Aberdeen, for the year 15S6-7 .—From the Exchequer Boll for 1537.— 'Jlfi- 
 ' nutes of Evidence,' No. 176. 
 
 (27) Accounts as in the preceding article, for 15S8-9.— From the Exchequer Boll for 1539.—' Mi- 
 
 ' nutes of Evidence,' No. 177. 
 
 General Observation. 
 
 The Claimant has not given the preceding evidence at full length, because the whole of it is (as it appears to 
 him) superfluous, with the exception of the three notices in the Exchequer Roll for 1496, to the effect 
 that the Customs of Montrose and the Lordship of Kinclevin had been granted to David Duke of Mont- 
 rose for life. The Claimant has distinctly admitted frora the first that the property granted hy the original 
 Montrose Fatent was resumed by the Crown on the death of David Duhe of Montrose, — his only contention 
 being that— inasmuch as the Act Rescissory was impotent jjer se (unless legally applied) to cut down the 
 Patent 1488 ; as the Patent had been recognised and acted upon, both as regards the estates and honours, 
 subsequently to the Act Rescissory (the King, after that recognition, heing functus) ; as there had been, 
 as is admitted on all sides, no resignation (and without a resignation the Duke could not be legally 
 divested, under such circumstances, either of his estates or honours) ; and as, in a word, antecedents 
 GovEBN— the resumption of the estates must either have been by injustice (as in the other cases, uncon- 
 sciously adduced by the Crown, before the Act Rescissory), or must be attributed to the operation of the 
 Act 26 June 1493, which recoMs the grants made by James III. within the proscribed period, necessarily com- 
 prising the lands of Kinclevin and Customs of Montrose, but without mention of dignities and 
 without qualification— a\iNmX\ves between which the Claimant is not concerned to decide :— While, 
 under any circumstances, it is ever to be remembered that the resumption of the estates could not affect 
 the descent of the dignity, as by repeated precedents elsewhere adduced (supra, p. cxiv, S. Case, pp. 75, 
 137).— The Claimant has however to thank the Crown for the adduction of the Charter by James IV. 
 in 1512, granting Kinclevin to the Wardroper family, who had been the collectors of the rents of that 
 Lordship in 1496— thus ^supporting the Claimant's observation elsewhere (supra, p. exiii) with respect 
 to the secondary authority of the evidence here in question, as compared with that afforded hy primary 
 sources, as adduced by the Claimant. 
 
 XI. 
 
 Criminal Letters, 23rd April 1512, backed by the warrant of the King (James IV.), and issued 
 BY Andrew Lord Gray, Sheriff of Forfarshire, against John SIXTH Earl of Crawford, son 
 
 AND successor OF DaVID DuKE OF MONTROSE, AND HIS ACCOMPLICES, ACCUSED OF HAVING MURDERED 
 
 Alexander Lord Lindsay, Master of Crawford, eldest son of the Duke and Earl John's 
 
 ELDER brother ; AND ALSO AGAINST THE TWO SONS OF SiR ALEXANDER LiNDSAY OF OcHTERMONZIE 
 
 (the Duke's younger brother and Earl John's successor as SEVENTH Earl of Crawford), 
 VIZ. Sir David Lindsay, afterwards EIGHTH Earl of Crawford, and Alexander Lindsay, 
 
 FOR CRUEL wounding AND MUTILATION OP VARIOUS PERSONS SPECIFIED, IN COMPLICITY WITH THE SAID 
 
 John Earl of Crawford :* — Adduced (beside other evidence) to account (partly) for the non- 
 claim BY THE Duke's immediate successors. — From the Charter-chest of the Claimant. — 
 ' Minutes of Evidence,' p. 143.— (Referred to supra, p. cxvii.) 
 
 (No. CCXXXII.) 
 
 " AxDRO Lord Gray, Schereff of Forfar, to Eobert Bawbirny, mar of the quarter of Dunde, and his 
 deputtis, Wilzam Merschale, mar of the quarter of Arbrotht, Thomas Proffeit, mar of the quarter of Brechin, 
 and Thomas Schankisand Alexander Scot, maris generaly constitute, gretting. Forsamekle as our Soverane Lordis 
 letters ar direct to me and my deputtis, proportand that it is humlie menyt and complenit be the kyn and frendis 
 of umquhill Alexander Lord Lindesay, Master of Crawfurd, Johne Bel, Cristiane Heris, Alane Spens, Isabell Guthre, 
 Johne Weddale, Alexander Wylkye, and Sir Andro Law, that quhar the said umquhill Alexander Lord Lindesay, 
 Master of Crawfurd, Cristiane Herys, Alane Spens, Isabell Guthry, and Johne Weddale war crually slane and 
 destroit, innocently,'^ be Johne Erll of Crawfurd, David Lyndesay of Halch, Wilzam Arnot, Johne Strivelinc, James 
 Lyndesay, Eobert Poyll, and thair complicis ; and the said uinquhile Alexander Wylkye wes takin furth of his 
 bed, nakit, under silence of nycht, be way of murthir, and haid to Brechin, and thair crualy hurt and mutalet ; and 
 in likw7se the said Sir Andro be David Lyndesay, hiycht, sone to Alexander Lindesay of Ouchternwnse, knycht, and 
 Alexander Lindesay his hrothir, and thair complicis ; and in lykwyse umquhile Patrik Striveling and Johne Lyell 
 [Bel ?] war crualy wondit and mutalet he the said Johne Erll of Craufurd and persmis abowyn {above) writtyn and thair 
 compKcis,— quhilkis as zet remanys unpunyst thairfor, and til tak sikker souerte of the saidis personis for thair 
 entres to the Justice Ayr and soner at the Kyngis will, under grit panis, as in our Soverane Lordis lettres forsaidis 
 
 * See the Pedigree prefixed to this volume. f That is, they being innocent. 
 
APPENDIX. 
 
 545 
 
 direct thairupone, is mair at lynth contenit :— Quharfor I charge zou, this precept beand sein, that ze, or ony ana 
 of zow as ze sal be requirit, appone the execu>ioune of zour office, pas incontinent, but (without) delay, and 
 becauis fayth is maid in presens of the Lordis of Counsale that the saidis slauchteris ar of veritie, that thairfor ze 
 pas and ^ serche and seyk the personis abowwrittin, delaitit {accused) of the saidis slauthms and crymes, and thair 
 complicis, sa money as the parte complenzeand will mak fayth war art or part of the saidis crymes, and gevys thair 
 names to zow in bill ; and, yif thai can be apprehendit, that ze tak sikker souerte of thaim,— that is to say, of 
 like gentilman landit under the pane of j' lib., ilke gentilman unlandit j" markis, and ilke zemman (yeoman) xl lib., 
 that tliai sal comper hefor our Soverane Lordis Justice the thrid day of the next Justice Ayr, to he haldin at the lurgh 
 of Dunde, or quhar it sal pies our Soverane Lord, wpone xv days warning, to underly the law for the saidis crymes; 
 and gif the saidis personis beys fugitywe or refus to fynd the said souerte, thatze certyfe thaim that we will denunce 
 thame the Kyngis rebeUis, and put thaim to his home, and eschete all thair mwahill (moveable) gudis, and inlring the 
 samyn to our Soverane Lwdis use, efter the tenor, forme, and effect of our Soverane Lordis lettres forsaidis, direct 
 thairapone, in all punctis. And this on nay wys ze lefT undone, under all pane and charge that efter may fallou. 
 The quhilkis to dw (do), I commit to zou, conjunctlie and severaly, my deputtis in that part, my full pouer be 
 thir present lettres, delivering thaim be zou, deuly exicute and indorsit, again to the berar. Gewin under the 
 seyll of office at Dunde, the xxiij day of Aprile, in the zer of God j" v" and xij yeris." 
 
 XII. 
 
 Eeport of the Speeches of Lords Marchmont, Mansfield, and Hardwicke on the claims to the 
 Earldom of Cassillis and Lordship of Kennedy in 1762, as preserved in the Charter-chest 
 OF the Marquis of Ailsa. With the Cases of the respective Claimants, Sir Thomas Kennedy, 
 Bart., the heir male, and the Earl of March, the heir female. Printed (by permission) 
 from a small volume, intended for private circulation, entitled ' Eeports of Claims pre- 
 
 ' FERRED TO THE HOUSE OF LoRDS IN THE CASES OF THE CaSSILLIS, SUTHERLAND, SpYNEE, AND 
 
 ' Glencairn Peerages,' by James Maidment, Esquire, Advocate, Edinburgh, octavo, 1840. — The 
 Speeches here printed illustrate several points vs^hich occurred in the recent discussion, 
 and are frequently referred to in the Claimant's S. Case, and in the present volume. 
 (The notes signed ' Ed.' are by the present Claimaj^t.*) 
 
 (No. CCXXXII.) 
 " The Case of Sir Thomas Kennedy, 
 
 {Claiming the title, honour, and dignity of) 
 
 Earl of CASSiLLis.f 
 
 GILBERT KENNEDY, Grandson of Robert III. King of Scotland, (by Mary Steuart, his Daughter,) was created a 
 Lord of Parliament in ]459, by King James II., by the title of Lord Kennedy ; and David, the Grandson of the said Gilbert 
 Lord Kennedy, was created Earl of Cassillis by King James IV. in 1509. 
 
 * The Claimant's notes upon these Cases and Speeches are con- 
 fined to the points which bear upon his oum case and claim. The 
 marginal headings of the Cases are omitted except when of im- 
 portance, in which case they are inserted in the text, in paren- 
 theses, with the addition of the letter m.— Ed. 
 
 + The following brief Analysis of the arguments and decision 
 in the Cassillis claim may be useful here : — 
 
 I. Arguments of the opposing parties. 
 
 It was adopted as common ground that, as Patents (it was 
 assumed) were not introduced till the reign of James VI., 
 who began to reign in 1567," the Lordship of Kennedy, con- 
 ferred in 1459, and the Earldom of Cassillis, conferred in 
 1509, were created by the Sovereign in Parliament by investiture 
 or belting, without any writ or charter containing words of limi- 
 tation ; and that this creation by belting gave the person ennobled 
 an estate of inheritance in the dignity. 
 
 It was also agreed by both parties, that, such being the fact, 
 the right to the honours claimed must be determined by the 
 original law of inheritance in Scotland as affecting creations 
 of dignity by belting without patent : — But it was contended 
 by Sir Thomas Kennedy (the heir-male), that that law 
 preferred the succession of heirs-male as long as any existed, 
 as appeared 
 
 i. From a variety of instances in which peerages without 
 patent descended to distant heirs-mafe where nearer 
 heirs-female existed ; 
 
 ii. From the fact that female-heirs were never entitled to 
 such dignities hut upon a Resignation, and a new grant 
 thereof by the Sovereign, which was the only method 
 
 of defeating the legal succession of the heir-male, — 
 and, 
 lii. From the fact that, when the rule of descent to males 
 (in the case of peerages created before the introduc- 
 tion of patents) was first questioned, viz. in the claim to 
 the peerage of Lovat, decided by the Court of Session in 
 1 730, it was affirmed in favour of the heir-male : — 
 
 While Lord Euglen (the heir-female) argued, that the law 
 in question recognised and included heirs-female, and that 
 when heirs-male succeeded, it was through special provision, 
 and not by legal right, as appeared 
 
 i. From the authority of institutional writers with regard 
 to lands ; 
 
 ii. From the succession of females to ancient peerages in 
 many instances ; And 
 
 iii. From the authority of two adjudged cases, viz. 
 
 (I) The decision of the Court of Session in the 
 claim to the Barony of Oliphant in 163.3, by 
 which it was established that usage was suffi- 
 cient to enable the daughter to succeed where 
 there was no writ to exclude her: — But to 
 which it was replied by the heir-male (Sir 
 Thomas Kennedy), that in that case, which 
 is very indistinctly reported, after the finding 
 that usage was suiBcient to transmit the title 
 to the heir-female, it is added that the heir- 
 female was excluded in the case in question, 
 as not having right, seeing her father had re- 
 signed his right and the King had not confetred 
 it upon tier — the resignation being sufficient 
 
 Patents, in the sense here used, must mean personal grants of honour.— Ed. 
 
546 
 
 APPENDIX. 
 
 As Patents of Honour wore not introduced till long after, in the Reign of James VI., these Dignities were conferred 
 by the Sovereign himself in Parliament, without any Writ limiting the Descent of the Honours, or any mention of particular 
 
 to denude the resigner and his descendants 
 until the King should declare his pleasure — 
 ■wherefore none of the parties could claim the 
 honour, but it remained with the King;— 
 And, 
 
 (2) The allowance by the Court of Session in 1628 
 of a claim to precedency by Christian Countess 
 of Buchan, founded on the right of an heir- 
 female to succeed to a title created by belting 
 ■without a patent: — To ■which the special 
 reply made on behalf of the heir-male does 
 not appear (being probably only stated at the 
 bar), but it ■was doubtless that which is 
 stated by Lord Mansfield in his Speech on 
 moving the Resolution, — 
 
 And to the authority of the Lovat decision, adduced by 
 Sir Thomas Kennedy, he (Lord Ruglen) replied 
 that tlie proceedings which took place in 1730 were without 
 power or jurisdiction ; but that the Lovat case did not 
 apply in the present argument, because the judgment of 
 the Court in that case ■was that the lands had gone 
 perpetually to the heirs-male, but htre the lands had 
 for up^wards of a century beeu limited to heirs-general. 
 
 It was further contended by the heir-female (Lord Ruglen), 
 that, there being no patents in this case, the descent of the 
 honours fell to he regulated by that of the family estate as it 
 stood devised by the investitures at the time when the dignity was 
 conferred: and that, in-fact, when the Earldom of Cassillis 
 was conferred in 1 509, the estate was settled in favour of heirs- 
 qeneral, or heirs of line ; in proof of which he adduced charters 
 "in 1489, 1501, 1505, 1511, and 1536, all to " heirs :"— To 
 which it was replied by the heir-male (Sir Thomas Ken- 
 nedy), 
 
 i. That the Cassillis estates were from the beginning of the 
 Jifteenth century exclusively limited to heirs-male and 
 heirs-male whomsoever, as by charters (adduced) in 
 1404, 1405, 1450, 1501, and 1540,— 
 
 ii. That tlie words ' heredibus suis ' occurring in the charters 
 adduced by Lord Ruglen, did only mean the heirs of the 
 former and existing investitures, — which he proved by 
 the facts that the charter (so adduced) in 1501 ex- 
 pressly specifies that the estate is to be held by the 
 heirs of the grantee " secundum tenorem antiquarum 
 " infeodationum eis desuper confectarum," which in- 
 vestitures are shewn to have been in favour of heirs- 
 male only; that the lands in the charter 1536 are 
 thereby annexed to the barony of Cassillis, and must 
 be understood to descend to the same heirs-mafe who 
 succeeded to that barony; and that the fact that 
 Gilbert Earl of Cassillis obtained a charter of his 
 whole lands and estate, in 1540, to heirs-mafe whom- 
 soever, further demonstrated that there was no inten- 
 tion of altering the course of succession by the general 
 words "heredibus suis" contained in these charters, 
 —And, 
 
 iii. That the uniform settlements of the Cassillis estate on 
 heirs-male was most convincing proof that the dignity was 
 by law descendible in the same channel, as it was not 
 possible to believe that the persons who enjoyed the dignity 
 would for ages have anxiously conveyed their estates to 
 heirs-male, if they had understood that the dignity coidd 
 have descended to a female. 
 
 It was further contended by the heir-female (Lord Ruglen) 
 that the dignity of Earl of Cassillis (exclusively of that of 
 Lord Kennedy) was resigned to the Crown along with the 
 family estates by the sixth and seventh Earls of Cassillis in 
 1642 and 1671 for new investiture, and that two charters 
 then passed, and were subsequently ratified in Parliament, 
 in both of which the Earldom was regranted along with the 
 estates, so as to include heirs-general, those heirs bearing 
 the name of Kennedy and the arms and dignify of Earl of 
 Cassillis, and containing a nomdamus and erection of the 
 estates into a Comitatus, to be held according to the due 
 precedency, conformably to the law and practice of Scotland, 
 and that under the latter charter 1671, operating as a new 
 grant from the Crown, he (the heir-female) was entitled to 
 the dignity of Earl of Cassillis : — But it was replied by the 
 heir-male (Sir Thomas Kennedy), 
 
 i. That the charter 1642 did not proceed on a resignation 
 of the dignity, nor was the Signature or warrant on 
 which it proceeded superscribed by the King (which 
 was indispensably necessary), — and therefore the 
 Charter merely proceeded from the Barons of Exchequer, 
 who had no power to receive Resignations or make new 
 grants of dignity ; 
 
 ii. Thatthe charter 1671 likewise did not proceed on a 
 Resignation of the dignity — that no new limitation of 
 honours ever took place without a special Resignation, — 
 
 and it is abmrd to stjppose that a King would alter a 
 right vested in a subject without his special consent ; 
 iii. That the docquet, subjoined to the original Signature 
 for further security, makes no mention of title or 
 dignity ; 
 
 iv. That the words relating to precedency, &c.,' in the 
 charters 1642 and 1671 could not carry the dignity ; 
 they were merely the words of the attorney who framed 
 the Signature, without warrant from the Procuratories of 
 Resignation on which the Charters and Signature pro- 
 ceeded, — And, 
 
 V. That the Ratifications of these Charters in Parliament 
 passed, like other such Ratifications, of course, and were 
 a m^eform, a general confirmation of the Charters them- 
 selves, which Charters do not carry tli£ dignity. 
 
 II. Speeches of Lord Mansfield and Lord Hardwicke 
 IN moving the Resolution of the Committee. 
 
 That tlie counsel on both sides had greatly erred in assuming that 
 dignities could be created by belting or investiture solely — there 
 was no creation without Charter or Patent. The statement of 
 the Court of Session in their Report in 1740 respecting the 
 Scottish Peerage, which was framed with great thought and 
 care, merely says that they cannot discover any patents in 
 the records earlier than the reign of James VI., but patents 
 there were, although not always on record — the patent of the 
 Earldom of Glencaim, for instance, granted in 1488, and 
 others. (In this Lord Marchmont, who dissented from the 
 remainder of the decision, likewise concurred.) 
 
 That two questions arose in this case : 1. Whether a title of 
 honour, by its own original nature and constitution (the 
 patent, as here, being lost), descends to the heir-male or to 
 the heir-general ; and 2. Supposing it descends to the heir- 
 male, whether in this case there was any new grant with 
 limitations such as would convey it to the heirs of line ? 
 
 i. As regards the first point, (the patent being wanting,) 
 the descent must be determined by a legal presumption 
 — a presumption arising from the nature of the fee ; 
 and, 
 
 (1) Inasmuch as Earldmns and other territorial dig- 
 
 nities (originally and properly offices, and 
 introduced into Scotland by the feudal system) 
 were held by military tenure, and descended to 
 the issue male, as masculine fiefs ; 
 
 (2) Inasmuch as there was usually an erection of 
 
 the lands, at the time when the title of honour 
 was granted, and if the lands were limited to 
 heirs-inale, the title cannot be supposed to descend 
 in a different channel from the lands ; 
 
 (3) Inasmuch as many things concur to prove that 
 
 lands descended to the heirs-male of the body 
 of the original grantee ; 
 
 (4) Inasmuch as in the case of the Earldom of 
 
 Stratheam, granted with the limitation " here- 
 " dibus suis," and in others, " heredcs" witJtout 
 any addition meant heirs-male ; 
 
 (5) Inasmuch as eleven instances of Earldoms, 
 
 adduced by the heir-male in this case, prove 
 the exclusion of females ; and in the only 
 instance adduced to the contrary, that of 
 Buchan, a Resignation took place and a new 
 grant of the honours in favour of the heir-female, 
 with the express consent of the heir-male ; 
 
 (6) As patents of honour in the fifteenth century 
 
 in England were uniformly to heirs-male ; and 
 in the time of Queen Mary and afterwards in 
 Scotland were to heirs-mafe, — thus evincing 
 which was the 7nost frequent mode of limi- 
 tation ; 
 
 (7) As it was ruled by the Court of Session in the 
 
 case of the Crawford and Sutherland prece- 
 dency in 1706 (when the Court of Session had 
 most certainly a competent jurisdiction'), that 
 " an estate did not pass to females, unless 
 " provided heredibus quibuscnnque, males being 
 " only understood by heirs simply, or heredes 
 " inter ipsos ; and where the provision was to 
 " heirs whatsoever, the heir-male was still 
 " preferred, and the female succeeded only 
 " ccquis portionibus ; " 
 
 (8) As numerous Resignations appear on record 
 
 (as in the Rothes, Errol, and other instances), 
 all calculated to let in heirs-female, who would 
 not otherwise have taken the dignities, — 
 thus establishing a further presumption in 
 favour of heirs-male ; 
 
 (9) As the Oliphant decision by the Court of 
 
APPENDIX. 
 
 547 
 
 Heirs ; * and as Service in Parliament, Fidelity and Homage were due in consequence of the Dignity thus conferred, so they 
 have been always understood to be governed by the Rules of the Feudal Law, and to descend uniformly to the Heirs Male of 
 the Person first ennobled, unless Heirs wliatsomever , or Heirs Female, were specially and particularly called to the 
 Succession. 
 
 The Estate and Barony of CassilUs, before the Creation of David the first Earl of Cassillis, in 1509, as aforesaid, 
 appears by the following Grants to have been limited to Heirs Male only. 
 
 By a Charter in 1404 (2nd Nov. 1404, m.), Hobert III. King ol Scotland granted the Lands and Estate of Cassillis 
 and others, in the County of Air, to Sir Gilbert Kennedy, and to James Kennedy, his Son, and the Heirs Male of his Body ; 
 which failing, to Alexander Kennedy, his Brother, and the Heirs Male of his Body ; which failing, to four other Brothers 
 successively, and the Heirs Male of their Bodies ; which all failing, to the Heirs Male wltatsoever of Sir Gilbert, their Father. 
 
 And King Eobert made a Grant (28th Jan. 1405, m.) in favour of the said James Kennedy, then married to Mary 
 Stuart, his Daughter, whereby ho and his Heirs Mah are appointed " the Head of the whole Tribe in all Questions, Articles, 
 " and Affairs that could pertain to the Kenhynol," or Head of the Tribe. 
 
 These two Charters in favour of James Kennedy were, of this Date (2nd Aug. 1450, m.), confirmed by two 
 Charters granted by King James II. 
 
 Who, of this Date (13th Feb. 1450, m.), granted a Charter of the said Lands and Estate of Cassillis and others, in 
 favour of Gilbert Kennedy, Son of the said James Kennedy, and Grandson of King Sobert III., and the Heirs Male of his 
 Body ; which failing, to Thomas Kennedy of Kirkoswald, and his Heirs Male ; which failing, to Gilbert Kennedy, David's 
 Son, and his Heirs Male ; which failing, to the remanent Persons named in the ancient Charters of the Estate. 
 
 By other two Charters of the same Date, JCing James granted the Lands of Dunnure and Castle thereof, and other 
 Lands, and also the Custody of the Castle of LocMune, and Lands thereto belonging, to the said Gilbert Kennedy, and his 
 Heirs Male. 
 
 And by a fourth Charter of the same Date, King James appointed the said Gilbert Kennedy, and his Heirs Male, to 
 be the Head of the whole Tribe, and granted to them the heritable office of Baillie of the Earldom of Carrick. 
 
 By a Charter in 1501 (17th Feb. 1501, m.). King James IV. granted the Lands and Baronies of Cassillis and Denure, 
 and others, to David Kennedy, (soon after created Earl of Cassillis,') upon the Resignation of his Father, Jolm Lord Kennedy, 
 " Teiien' et habend' omnes et singulas prsedict. terras, &e. dicto David Kennedy, et hseredibus suis de nobis et successoribus 
 " nostris, &c. in feudo et hsereditate, &c. secundum tenorem antiquarum infeodationunn diet' terrarum eis desuper confect." 
 
 The said David, created Earl of Cassillis in 1509, was succeeded in his Estate and Honours by his Son Gilbert, the 
 second Earl of Cassillis, to whom succeeded his Son Gilbert, the third Earl of Cassillis, who, in 1 540 (6th Feb. 1 540, m.), obtained 
 a Charter from King James V., granting the whole Estate and Barony of Cassillis, and other Lands therein mentioned, to 
 him and the Heirs Male of his Body ; which failing, to Tliomas, his Brother, and the Heirs Male of his body ; which failing, 
 to David, Quintin, Archibald, Hugh, and James Kennedy, his Brothers, successively, and the Heirs Male of their Bodies ; 
 which failing, to James and Thmnas Kennedy, his Uncles, successively, and the Heirs Male of their Bodies ; which failing, 
 to Hugh Kennedy of Girvain Mains, to William Kennedy of Glentig, to Alexander Kennedy of Bargeny, and to James 
 Kennedy ot Blarquhan, successively, and the Heirs Male of their respective Bodies; which failing, to the lawful and nearest 
 Heirs Male whatsoever of the said Gilbert Earl of Cassillis, bearing the Name and Arms of Kennedy ; which all failing, to his 
 nearest and lawful Heirs Female whatsomever. 
 
 The said Estate and Barony, and the Title and Dignity of Earl of Cassillis, descended in the Male Line from the said 
 Gilbert, the third Earl, to John, the eighth Earl of Cassillis, who died the 8th of August 1759, without Issue, as appears from 
 the Table of Pedigree hereto annexed. 
 
 Upon the Death of the said John, late Earl of Cassillis, the Claimant, Sir Tliomas Kennedy, agreeable to the Laws of 
 Scotland, was duly served and cognosced (28th Jan. 1760, m.), upon the most authentic and indisputable Evidence of Charters, 
 Retours of Services, and Infeoffments, by a sworn Jury of Noblemen and Gentlemen, to be the nearest and lawful Heir 
 Male of the said John late Earl of Cassillis, lineally descended from Sir TJiomas Kennedy of Culzean, the second Son of 
 Gilbert, the third Earl of Cassillis, who was Grandson oi David, first created Earl of Cassillis in 1509, as before-mentioned. — 
 
 Session in 1633 was manifestly wrong and 1671 {the clerk in 1671 having copied from the 
 
 against common sense,— And, charter 1 642), are equally without warrant from 
 
 ' tlie Sovereign, and have nothing to do with 
 
 (10) As the Lovat decision by the Court of Session in ^jjg diqnity • And 
 1730 (stated to have proceeded on evidence 
 
 that the estate was limited to heirs-male, (3) Inasmuch moreover as the title of Lord Ken- 
 shewing that the descent of the title was nedy is not in the Charter 1671, and if that 
 founded only on presumption) was long argued Charter was to operate as a new grant, the title 
 and maturely considered, and was acted upon, of Lord Kennedy must go one way (i.e. to heirs- 
 inasmuch as Parliament proceeded upon it in rmle) and that of Earl of Cassillis be separated 
 the trial of Lord Lovat in 1745,— and it is and go anotlier way [i.e. to heirs-female), which it 
 sanctioned too in sowai measure by the Report of is not possible to believe could ever he intended,— 
 the Court of Sessim on the State of the Scottish —therefore, on these grounds, the Charter 1671 does 
 Peerage m 1 740, j,pf carry the dignity, and the above presumption in 
 —therefore, upon these grounds, the legal presump- favour of heirs-male holds good, and conveys the 
 TiON IN CASES OF pEEKAGES WHERE THE PATENTS ARE Earldom of Cassillis and Lordship of Kennedy to the 
 LOST IS IN PAVODB OF HEIRS-MALE— and the dignity heir-male. — Ed. 
 
 here in question ought to descend on that presumption , .pj^^^g :^^^^ (which both the Claimants shared in, hut which 
 
 to the /leirs-maZe of David first Earl of Cassdlis:— ^^^.^ unanimously repudiated in the decision of this claim) 
 
 ii. Unless indeed it should appear (which is the question appear to have arisen from a misconstruction of the following 
 
 under the second point above indicated) that in this passage in the Eeport of the Court of Session to the House of 
 
 case there was A new grant, upon a Resignation, Lords in 1740 respecting the Scottish Peerage :— " They (the 
 
 to a series of heirs, so as to let in the heirs-general,— " Court) cannot discover m the records any patent of honour 
 
 -puj " creating a peerage earlier than the reign of King James VI. 
 
 ' J 1 c^i " Before that time titles of honour and dignity were created by 
 
 (1) Inasmuch as the Charters 1642 and 16,1 « erecting lands into Earldoms and Lordships, and probably by 
 
 (which last IS the document specially founded „ ^^^^ ^^j^gj, ^gt^od that cannot now in matters so ancient he 
 upon by the heir-female) did nof proceeds a <. ^ith any certainty discovered. For a great many noble 
 Resignation of the dignity, and therefore the >< f^piiiigs appear from the Rolls of Parliament to have sate and 
 King {being unable to grant anything but w/iat „ ^^^^^ ^^ Parliament, as Lords of Parliament, though no con- 
 was resigned) could not grant the digmty by „ gtitution of the peerage or title of honour under which they 
 novodamus ; „ ^^^g g^n now be found in the records." Acts of Sederunt of the 
 
 (2) Inasmuch as the words erecting the lands into Zords of Council and Session, vol. i. p. 347.— All the peerages 
 
 a Comitatus, to be held " secundum prece- alluded to must have had constitutions, although not preserved. 
 " dentiam," &e., in the Charters 1642 and — Ed. 
 
 4 A 
 
648 
 
 APPENDIX. 
 
 The Genealogy and Connection of this Branch of the Family is likewise contained in the Table hereto annexed,* wherein the 
 Proofs are referred to. 
 
 The Claimant, Sir Tlwrms Kennedij, lately presented a Petition to his Majesty, praying. That the Title and Dignity 
 of Earl of CassiUis might be declared to belong to him and his Heirs Male ; and his Majesty has been graciously pleased to 
 refer this Petition to the Consideration of the House of Lords. 
 
 The Claimant most humbly hopes the foresaid Title and Dignity will be found of Right to belong to him, for the 
 following, among other 
 
 Eeasons. 
 
 I. Feus of Lands anciently, before Charters or Grants in Writing were introduced, were conferred by Investiture, in 
 Presence of the Pares Curia. — And in the same Manner, until the Reign of James VI. of Scotland, when Patents appear to 
 have been first introduced, the Dignity of Earl was conferred by the Sovereign himself in Parliament, by Cincture or Girding 
 the Person ennobled with a Sword, and by Proclamation made by Heralds— In Feus of Lands, military Service and Fidelity 
 were due by the Vassals to the Over-Lord or Superior ; so in Dignities the Person ennobled was bound to perform Service 
 in Parliament, Fidelity, and Homage— Feus of Lands, before the Descent was limited by Grants in Writing, uniformly 
 descended to Heirs Male, and could not be aliened without the Consent of the Superior ; so Dignities conferred by Investiture 
 in Parliament descended to the Heirs Male of the Body of the Person first ennobled, and could not be aliened or transferred 
 in any other Manner than by Resignation thereof in the hands of the Sovereign. 
 
 II. As the original Constitution of Feus and Dignities was derived from the Feudal Law, every Question, with respect 
 to Dignities, conferred without Patent, must be governed by the Rules of that Law, which has hitherto, and must always be 
 resorted to as the common Law of Scotland, where the Statutory Law, or a Course of Decisions of the Sovereign Court, has 
 established no certain Rule of Judgment ; and, therefore, in the present Case, the Right to the Title and Dignity of the Earl 
 of Cassillis, conferred on the Claimant's Ancestor in 1509, can only be judged of by the Feudal Law of Scotland, which has 
 ever regulated the Descent of all Dignities, originally conferred by Cincture or Investiture, before any special Grants or 
 Patents were in Use. 
 
 III. By the Feudal Law, the Succession of Lands, in all Cases, devolved on Males only, to the entire Exclusion of 
 Females.— (/Sir Tlio. Craicj, Lib. 1, Dieg. 8, § 2 and 16.— Lib. 1, Dieg. 10, $ 6.— Lib. 2, Dieg. 14, § 3.— m.) This Law 
 was early received in Scotland; and long after the Norman Conquest, when the Succession of Females was inti'oduced into 
 the Law oi England, it continued in its original Purity in Scotland, and the exclusive Privilege of the Male Succession wore 
 out more slowly and gradually. — At first, Females were entitled to succeed by Paction or express Provision, and were understood 
 to succeed only upon the failure of Males. — Afterwards, when the Settlements of Estates were made in favour of Seiy-s 
 whatsomever, Female Heirs were understood to be comprehended under that general Description ; but this can have no 
 Influence on the Succession of Dignities conferred by Cincture in Parliament, which was originally regulated by the Feudal 
 Law ; and the Descent once established in the Male Line will not be presumed to be altered, unless such Alteration appears 
 by the clearest Evidence. — ^The Continuance of the Descent in the Male Line is proved by the History of the several 
 noble Families in Scotland who have possessed these Dignities. — In every Case where the Male Line separated from the 
 Female, the Heir Male was always preferred both in ancient and later Times, which is the strongest Proof that can be had, 
 that the Consuetudinary Law of Scotland has in this Particular never varied from the Feudal Law, to which it owed its origin. 
 
 IV. It appears that the numerous Resignations of Titles of Honour made in the Hands of the Sovereign, for the 
 Purpose of obtaining new Grants, agreeable to the Law and Usage of Scotland before the Union of the Kingdoms, were all 
 uniformly in Favour of Heirs Female, and none of them in Favour of Heirs Male ; which puts it beyond a Doubt, that Heirs 
 J\r<de had ever the legal Right of Succession, and that this Right could only be altered or defeated by a Resignation of the 
 Dignity, and a new Grant thereof by the Sovereign limiting the Descent to Heirs Female. 
 
 V. The ancient Settlements of the Estate of Cassillis, in the present Case, in Favour of Heirs Male only, affords a 
 most convincing Proof, that the Title of Honour and Dignity was by Law understood to descend in the same Channel, as it is 
 not possible to believe that the Persons who enjoyed this Rank and Dignity would for Ages have anxiously conveyed their 
 Estates to Heirs Male, if they had understood that the Dignity could have descended to Heirs Female. 
 
 VI. As the Descent of Peerages (originally conferred without Patents) to the nearest Heir Male of the Person first 
 ennobled, has uniformly taken Place in a great Number of the Noble Families of Scotland : so this Rule of Descent was never 
 
 " A briefer pedigree, shewing the descent of both Claimants, may be here subjoined : — 
 David Lord Kennedy, created Earl of Cassillis in l.^OO. 
 
 Gilbert 2nd Earl of Cassillis. 
 
 Gilbert 3rd Earl of Cassillis, tl558. 
 
 Gilbert 4th Earl of Cassillis, tl.576. 
 
 John 5th Earl of Cassillis, tl615. 
 
 John 6th Earl of Cassillis, tl688. 
 John 7th Earl of Cassillis, tl702. 
 
 Gilbert. 
 I 
 
 John Lord Kennedy, f 1700. 
 
 Anne, married John Earl of Ruglen. 
 
 John 8th Earl of Cassillis, tl759 s. p. Anne Countess of Euglen, 
 
 m. William Earl of March. 
 
 1 
 
 William Earl of March and Euglen, 
 
 (afterwards Duke of Queensberry). 
 
 Claimant 
 
 as 
 
 Heik-genekal. 
 
 Sir Thomas Kennedy of Culzean, tl605. 
 
 Sir Alexander Kennedy of Culzean, f 165.5. 
 
 John Kennedy of Culzean, ■|-1665. 
 
 Sir Archibald Kennedy of Culzean, flTlO. 
 
 Sir John Kennedy of Culzean, tl742. 
 
 Sir John Kennedy 
 of Culzean, 
 tl744, s. p. 
 
 Sir Thomas Kennedy 
 
 of Culzean, Bart. 
 
 Claimant 
 
 as 
 Heir-male. 
 
 —Ed. 
 
APPENDIX. 549 
 
 called in Question until the Year 1729, in a Dispute before the Court of Session, between Simon the late Lord Lavat, the 
 undoubted Heir Male of the Person first ennobled in the Year 1540, and Hugh Fraser, Esq., the nearest Heir of Line, 
 descended ot a daughter of migh Lord Lovat, who died in 1697.— On occasion of this Dispute, many Instances of the Descent 
 ot feerages (without Patents) in the Male Line, to the Exclusion of the nearer Heii's Female, were exhibited and proved to 
 t le satisfaction of the Court of Session. And though some Instances were likewise brought, tending to show that such 
 Uignitieshad sometimes been assumed by the nearest Heir Female, yet the Court, being of Opinion that all Dignities thus 
 conterred before Patents w'ere introduced descended by Law to the nearest Heir Male of the Person first ennobled, they found 
 (M July, 1730, TO.) the Title and Honours of Lord Fraser of Lovat descended to Heirs Male, and of Right belonged to the 
 said bimon late Lord Lovat, as Heir Male of the Family of Lord Fraser of Lovat.— This Judgment was acquiesced in, and 
 has stood unimpeached for thirty Years ; and the said Simon late Lord Lovat having as a Peer of Scotland been impeached, 
 brought to a Irial, and convicted of High Treason for his Accession to the Rebellion 1745, the Law in this Particular must 
 now be considered as established, and cannot be called in Question. 
 
 It may be objected, that by the Law and Usage of England, Dignities as well as Lands, unless limited by special 
 l^rant^ always descend to the right Heirs, or Heirs of Line, and consequently to Heirs Female: and that this Rule ought to 
 take Place in the present Case. 
 
 To this it is answered. That the Feudal Law was only introduced into England at the Norman Conquest; and at the 
 same Time the Female Succession was established agreeable to the Norman Custom.— But it appears from the Laws of 
 Malcolm the Ild, who reigned in 1004, and from the most undoubted Authorities, that the Feudal Law, by which the Female 
 Succession was excluded, took Place much earlier, and continued much longer in its original Purity in Scotland, where it has 
 ever been considered as the proper Law of that Country in Matters of Succession, unless where it has been clearly altered by 
 Custom, which will not be maintained in the present Case.— (ie^es Malcolumhi 2"', cap. i. Reg. Majestat.— Sir Tho. Craig, 
 Lib. I. Dieg. 8, § 2 and 16, " Hoc enim certissimum est, nos purius hoc jus habere quam vicinos.— Hoc jus proprium hujus 
 ^'^ Regni dici potest, cum ex ejus scaturigine et fontibus omne jus, quo hodie utimur in foro, omnisque usus et praxis defluxerit ; 
 " et si quid diibii oriatur, origines semper repetendae sunt, ut inde quod jequum est digiioscatur." m.) 
 
 It may be further objected, That there occurred one Instance of the contested Right to the Title and Dignity of Lord 
 OlijJiant in 1633, where the Court of Session found. That where the Person last deceased had no Male Children, and where 
 there was no Writ extant to exclude the Female, Use was sufficient, conform to the Laws of Scotland, to transmit such Title 
 to the Heir Female.— (Durie's Decisions, 11th July 1633. Oliphant against Oliphant. m.) 
 
 But this extraordinary Case, said to liave been determined in Presence of King Cliarles the 1st, being very indistinctlv 
 reported, without any Mention of the original Constitution of the Peerage, or any Traces of such Dispute appearing from the 
 Records, can have no Influence in the present Case.— The Question appears to have been only with Respect to a Resignation 
 of tlie Title and Dignity made by Lord Oliphant, in Favour o{ Patrick Oliphant, his Heir Male, which was never accepted of 
 by the King. — The Court of Session, on this Occasion, as the Report sets forth, Found, That Usage was sufficient to transmit 
 the Title to the Heir Female ; but no Reason is given for this Determination, nor was this any Part of the Question : And 
 the Report adds, with respect to the real Question before the Court, That the Lords Found, "That the Heir Female, the 
 Daughter of the last Lord Oliphant, was excluded as not having Right to this Dignity, seeing the King had not conferred the 
 same upon her, and her Father had renounced his Right thereto, which, though not sufficient to establish the Right in Favour 
 of the Donee, yet was sufficient to denude the Resigner and his Descendants, until the King should declare his Pleasure ; and 
 they found that none of the Parties could claim the said Honour, but that it remained with the King." * 
 
 William Earl of March and Euglen likewise presented a Petition to his Majesty, (which has been referred to the 
 House of Lords,) claiming the foresaid Title and Dignity of Earl of Cassillis, as nearest Heir General, or of Line, oi David, 
 the first Earl of Cassillis, being the Great-Grandson oi John, the seventh Earl of Cassillis, by Anne, Countess of March, the 
 Daughter of Anne, Countess oi Evglen, who was the eldest Daughter of the said John Earl of Cassillis. 
 
 I. The said William Earl of March insists, that where no Patent exists, the Descent of the Title of Honour is regulated 
 by that of the Family Estate, as it stood devised by the Investitures at the Time the Dignity was conferred ; and that, w hen 
 
 * The following is the Report of this case by Lord Durie, said, the pursuer's father had disponed the title to the defender 
 
 (^Decisions, p. 685,) here and subsequently referred to : — ut supra, in the which thei'e was a procuratory of resignation' 
 
 ,, r\ I r\ Til, i,.oo albeit the King had not conferred the honour accordine thereto 
 
 Oliphant contra Oliphant, July 11, 1633. ^ ,^^ j^ords found that the pursuer had no right to c^ aim this 
 
 " Sir James Douglas having married the only bairn and honour, in respect her father was last possessor, and died in 
 daughter of umquhile the last Lord Oliphant, and she being possession, by the acts foresaid, (there being no seasin requisit 
 served heir-general to her immediate predecessor, who died for the title thereof,) and therefore seeing her father had dis- 
 before her said father, pursues hoc titulo, as heir to her said pre- poned the same, as said is, she could never misken him, who behoved 
 decessor, Patrick Oliphant, nearest heir-male in bloud to her to be repute as in tenemento, and pass to her grandsir in an higher 
 said father, for annulling a contract made betwixt him and her degree, to eschew the deed of her father, whose deed she behoved to 
 father, whereby he dispones all his lands, together with the warraud, if she pursued as heir to him, or by right competent 
 title and dignity of the Lordship of Oliphant, to the said Patrick to her as nearest to him, and therefore the Lords excluded this 
 and his heirs-male, which failing, to return to the disponer and pursuer, as not having right to this dignity, seeing the Xing had not 
 his heirs-male, containing a procuratory of resignation, — to hear conferred the same upon her, and that her father, as said is, by the 
 and see it reduced, because it was a paction for honour, which is foresaid contract, had renounced his right thereof, which albeit it 
 not in commercio, not being allowed by the Prince, qui est fans was not found by the Lords to be a sufficient right, to establish 
 omnis honoris, and so is null, and the defender to be decerned to the honour in the person of the defender, which no subject can 
 have no right to that title, and that the title pertains to the dispone, without the approbation of the Prince, which being 
 pursuer as nearest heir in recta linea to him, to whom that title acquired, then the act convalesces : Yet it was found enough to 
 belongs, notwithstanding of the said contract. The Lords con- denude himself, and his descendants, ay and while the Prince 
 sidering, after that the parties' reasons were hinc inde heard, and should declare his pleasure, and either confer the honour on the 
 at length dispute in presence of the Lords, that the pursuer had pursuer or defender, at which time the act would take perfec- 
 founded the pursuit upon her claim, as heir to her grandsir, and tion. And in the mean time, seeing the Prince had not inter- 
 not upon any succession, as heir to her father, which father was poned himself to allow any of these acts. They found, that none 
 served heir to the same person her goodsir, before his decease ; of the saids parties could claim the said honour, but it remained 
 likeas her father had bruiked the title of Lordship during his with the King, which he might confer to any of them he 
 lifetime, by ryding in Parliament, and by being designed in the pleased : For albeit honour be not annailziable by buying and 
 infeftment of his lands, granted to him by the King (his cousin) selling, yet the Lords found, that the party having it might 
 with the title of Lord Oliphant, and by doing of all other acts, quite his own interest, which albeit it would not avail him in 
 whereby it might appear that he was Lord Oliphant, there being whose favours he had done it, unless the Prince should allow it, 
 no writ more extant, nor patent, to show any erection of it in a yet it was enough to denude him as said is. Actor. Nicolson. 
 Lordship, or whereby he or his predecessors were created Lords, Alter. Stuart. Advocatus for the King present." — The King 
 but only the custom foresaids, and such acts as is before men- confirmed the title to the heir male, and granted the barony of 
 tioned; they found, that this use was enough, conform to the Mordington, with the same precedency, to the heir /irmofe. Thus 
 laws of this realm, to transmit such titles in the heirs-female, vihere the heir male was preferred to the old designation and dignity. 
 the last defunct had no male children, and where there was no writ See Mr. Maidment's ' Report,' p. 69. — Ed. 
 extant to exclude the female. And because, by the contract fore- 
 
 4 A 2 
 
550 APPENDIX. 
 
 the Title of Honour and Dignity was first conferred on the Family of CassilUs in 1509, the Estate was settled in Favour of 
 Heirs General, or Heirs of Line, as appeared by the following Writings. 
 
 1. Charter (9th July 1489, TO.) to David Kennedy, Knight, Son and apparent Heir o^ John liOi-d. Kennedy, of th.& 
 Office of Bailiary of Qarrick, with the Pertinents. " Tenend' praedicto David Kennedy militi et Iweredihus suis." 
 
 2. Ciiarter of the same Date to the said David and Agnes JBorthwick, his Spouse, of the Lands of Balijra. " Tenend' 
 " praefatis David et Sponsas suae, et eorum alteri diutius viventi in conjuncta infeodatione et heredibus suis inter ipsos legitime 
 " procreandis; quibus forte deficientibus, legitimis et propinquioribus hasredibus dicti Joannis Domini Kennedy sui patris 
 " quibuscunque." 
 
 3. Charter before-mentioned (17th Feb. 1501, m.) in Favour of the said David, of the Baronies of CassiUis and 
 Denure. " Tenend' diet' David et haeredibus suis de nobis et successoribus nostris, &c. in feodo et htereditate, &c. secundum 
 " tenorem Antiquarum Infeodationum diet' terrarwm eisdesuper C07ifect." 
 
 4. Charter (12th Feb. 1505, m.) in Favour oi John Lord Kennedy, of the Lands of Coiff. "Tenend' diet' Joanni 
 " Domino Kennedy el hceredibus suis." 
 
 5. Charter (30th March 1506, m.) in Favour oi' David, Son and Heir apparent of Joh?i Lord Kennedy, of the Lands 
 " and Barony of Leswalt. Tenend' diet' David Kennedy et hwredihus suis." 
 
 6. Charter (28th Jan. 1506, m.) in favour of the said David of the Lands of MacJcwardstoun. " Tenend' diet' David 
 " et hceredihus suis." 
 
 7. Charter (5th Feb. 1511, m.) granting to iJaiiid Earl of Oassillis, hori Kennedy, et "hceredihus smis," the Castle 
 and Barony of Oassillis, and Lands of Macmartinston and others. 
 
 8. Charter (20th July 1536, m.) to Gilbert Earl of Oassillis, of the Lands of Balmacawell, which are thereby annexed 
 to the Barony of Oassillis, " Tenend' diet' Oilberto Oomite de Oassillis et hceredihus suis." 
 
 But that these Charters cannot avail the Claimant, the Earl of March, in his Argument, with respect to the Settlement 
 of the Family Estate, will appear from the following Considerations. 
 
 1. As the Charter in favour of David Kennedy, in 1501, expressly specifies, That the Estate is to be holden by his 
 Heirs, secundum tenorem antiquarum infeodationum eis desuper confect., it can only be understood to mean the Heirs of the 
 former Investitures, which are proved to have been in favour of Heirs Male only. 
 
 2. The two Charters in 1489, of the Bailiary of Oarrick, and Lands of Balyra; the Charter in 1505, of the Lands of 
 Coiff ; the Charter in 1506, of the Lands of Leswalt ; the other Charter in the same Year, 1506, of the Lands of Mackward- 
 sioH, are all of them Grants of inconsiderable Parcels of Lands, separate and distinct from the Barony of Oassillis, a.nA have 
 long since been aliened and gone from the Family ; And even admitting the general Destination of Heirs, as contained in 
 these Charters, included Female Heirs, yet most certainly the temporary Grants of these detached Parcels of Land cannot 
 influence the Succession of the Fanjily Estate, which at that time was indisputably limited to Heirs Male only. 
 
 3. The Charters in 1511 and 1536, being subsequent to the Time the Dignity was first conferred on David Earl of 
 Oassillis, in 1509, they can have no Influence in varying the Descent of the Title of Honour. But it will appear, the Words 
 hceredihus suis, contained in these Grants, did then only mean the Heirs of the former Investitures ; and there can be no 
 Reason to construe them otherwise : Because the Lands in the Charter 1536 are thereby annexed to the Barony of Oassillis, 
 and most certainly will be understood to descend to the same Heirs Male who succeeded to that Barony.* 
 
 4. There is demonstrative Evidence, that there was no Intention of altering the Course of Succession by the general 
 Words hceredihus suis contained in these Charters ; for it appears, that Gilbert Earl of Oassillis, a few Years after, in 1540 
 obtained a Charter of his whole Lands and Estate, then of new erected into one entire Barony, in Favour of the Heirs Male of 
 his own Body ; and failing these, in Favour of six Brothers successively, and their Heirs Male ; which failing, to his two 
 Uncles and their Heirs Mcde ; which failing, to several other Heirs Male therein named ; which failing, to his oivn Heirs Male 
 wliatsomever : And last of all, to prevent the Crown's taking the Estate through default of Heirs, to his Heirs Female 
 whatsomever. 
 
 II. The Claimant, the Earl of March, further insists, that, agreeable to the Usage and Practice of Scotland, the Title 
 and Dignity of Earl of Oassillis was resigned along with the Family Estate in the Hands of the Crown ; and thereupon two 
 several Grants were made, limiting the Descent of the Honours to a particular Line of Heirs, whereby the Claimant was 
 entitled to take and enjoy the same, as Great-Grandson of John, the seventh Earl of Oassillis, the Grantee of these Charters 
 by his eldest Daughter Anna Countess of Ruglen, all the Male Issue of his Body being extinct. And in support of this Plea 
 he refers to the two following Charters. 
 
 1st, Charter under the Great Seal (29th Sept. 1642. m.), proceeding upon the Procuratory and Deed of Resignation 
 executed by John, the sixth Earl of Oassillis, whereby he resigned in the Hands of his Majesty's Commissioners, the Barons of 
 Exchequer, the Earldom and lordship of Oassillis, comprehending the Lands therein particularly named and described for new 
 InfeoiFment thereof to be given and granted to the said John Earl of Oassillis in Liferent, and James Lord Kennedy, his eldest 
 Son, and the Heirs Male of his Body ; which failing, to return to the said John Earl of Oassillis, and the other Heirs Male of 
 his Body ; which failing, to the Daughters of Lord Kiincdy, without Division, and the Heirs Male and Female of their Bodies • 
 which failing, to the Daughters of the said John Earl of Oassillis, without Division, and the Heirs Male and Female of their 
 Bodies ; which failing, to the Earl's Heirs Male whatsoever ; which failing, to his Heirs and Assignees whatsoever. And 
 the Charter contains a novodamus and Erection of the Lands and Estate " In unum integrum et liberum Comitatum et Do- 
 " minium, nunc, et in omni tempore, Oomitatum et Dominium de Cassills nuncupand. per diet' Comitem de Cassils duran' 
 " vita sua, et post ejus decessum per prsefat. Jacobum Dominium Kennedy ejus filium, et haeredes suos respective antedict' 
 " secundum proecedentiam et prioritatem loci illis per eorum jura legesque et praxin dicti regni nostri Scotice dehitam et compe- 
 " tentem, omni tempore affuturo, fruen. gauden. et possiden." — And this Charter was ratified in the Parliament immediately 
 following. 
 
 2nd, Charter under the Great Seal,t proceeding upon the Procuratory of Resignation contained in the Contract of 
 Marriage, dated 26th of December 1668, executed between John the seventh Earl of Oassillis, and Lady Susan Hamilton 
 Daughter of James Duke of Hamilton, whereby the said John Earl of Oassillis resigned the Lands and Barcmy of OassiUis com- 
 prehending the particular Lands and others therein mentioned, all united into one whole and free Earldom, called the Earldom 
 of Oassillis, in the Hands of his Majesty, or his Commissioners, in Favour, and for new Infeoffment to be made and granted to 
 the said John Earl of Oassillis, and the Heirs Male of his Body ; which failing, to the eldest Heir Female of the said Marriage 
 without Division ; which failing, to the Sisters of the said Earl successively, and the Heirs Male of their Bodies ; which failin? 
 to his nearest Heirs Male ; which failing, to his Heirs and Assignees whatsoever. — This Charter contains a Reference to the 
 
 * The argument of the heir-female, that the descent fell to and governed in its interpretation by the leading investitures 
 
 be regulated by that of the family estate as it stood at the time, which were to heirs-male. This argument equally applies in 
 
 was sound ; his error was in not perceiving that the word the Montrose case.— Ed. 'i j fv 
 
 " heirs," occurring in the charters founded upon, was flexible t Iii 1671.— Ed. 
 
APPENDIX. 
 
 551 
 
 former Charter passed in 1642, in these Words :— " Quae Integrse Terra;, Baronise, &c. sunt oranes unit, prius annexat. erect. 
 
 et incorporat. in unum integrum et liberum Comitatum et Dominium nuncupat. etnuneupand. omni tempore afFuturo Comitatum 
 
 et Dominium de Cassils, cum titulo, dignitate, pnecedentia, etprioritate diet. Comiti et predecessorihus suis, per leges et 
 
 praxm hujics regni nostri debit, secundum cartam per quondam nostrum, carissimum patrem Carolum primum. Begem 
 
 ' heatissimcB memorice, sub suo magna sigillo liujus regni nostri Scotim concess. de data penult, die Septembris 1642." — And it 
 
 contains lilcewise a new Erection of the Lands " in unum integrum et liberum Comitatum et Dominium, nuncupat. et nuncupan. 
 
 " nunc et in omni tempore future, Comitatum et Dominium de Cassillis, fruend. gaudend. et possidend. per prefatum Joannem 
 
 Comitem de Cassils, ac per haeredes suos masculos provisionis et tallise respective antedict. secundum precedentiam et 
 
 ' prioritatem loci ipsis debit, et competen. per eorum jura et per leges diet, hujus Regni nostri Scotiae, omni tempore future." 
 
 — A Ratification of this Charter likewise passed as usual in the Parliament 1672. 
 
 But that these Charters and Ratifications thereof can have no Effect to alter the legal Descent of the Title of Honour 
 and Dignity of Earl of CassilUs from the Heir Male of the Family, will appear from the following Considerations : — 
 
 1. It appears by the Procuratory of Resignation, upon which the Charter 1642 proceeded, that the title of Honour 
 and Dignity was not resigned by the Earl of CassiUis in the Hands of the Crown, and of consequence no new Limitation 
 could be made, or was intended, by this Grant. 
 
 2. It appears by the Signature or Warrant of the Charter in the Records of Exchequer, that it was not superscribed by 
 the King, which was indisputably necessary ; and accordingly the Charter was only granted by the Lords of Exchequer, who 
 had no power to receive Resignations, or make new Grants of Titles of Honour. 
 
 3. The Charter 1671 proceeds upon the Procuratory of Resignation contained in the Marriage Settlement between 
 John Earl of CassiUis (the Son of the former Earl John, who obtained the Charter 1642) and Lady Susan Hcmiilton. And as 
 there is no Warrant for resigning the Dignity, nor is it once mentioned in the Marriage Settlement, most certainly no Altera- 
 tion could be made of the Descent of the Title of Honour. For though Resignations of this kind are peculiar to Scotland, 
 yet no Instance ever occurred of a new Limitation made of Honours without a special Sesignation ; nor can it, without 
 Absurdity, be supposed that the King would alter or impair a Right vested in a Subject, without his special Consent.* 
 
 4. As the Lands and Estate were only resigned by the Earl of CassiUis, so the Docquet subjoined to the original Sig- 
 nature, which is intended as a Cheque to prevent Grants by Subreption, contains a special Description of the whole Lands and 
 the Substitution of Heirs, but does not once mention tlie Title of Honour or Dignity.i 
 
 5. The Words of the Charter 1642, or of the Charter 1671, cannot, by the most strained Construction, import the 
 Grant of a Title of Honour. — The Erection of the Lands, by both these Charters, into a Lordship and Earldom, to be pos- 
 sessed by the Earl of CassiUis and his Heirs, " according to the Precedency and Priority of Place due and competent to them 
 " by their Eights, and the Laws and Practice of Scotland," can most certainly confer nothing more than the common terri- 
 torial Jurisdiction belonging to Lands thus distinguished by the name of a Lordship and Earldom, and are only the Work of 
 the Attorney who formed the Signature, without any Warrant from the Procuratories of Resignation. J 
 
 6. The Ratifications of these Charters in Parliament passed of Course, and were considered as Matter of mere Form. 
 They were neither read in Parliament, or passed as other Acts, nor do they contain any more than a general Confirmation of 
 the Charters themselves ; which, as has been already shown, do not comprehend the Title of Honour or Dignity in question.^ 
 
 Whebefobe, as the Claimant Sir Tliomas Kennedy is the undoubted Heir Male of the Family of Cassillix, lineally 
 descended from the Person first ennobled in 1509.— As it appears from the most undoubted Authorities, that 
 the Descent of Titles of Honour conferred without Patent, must be regulated by the Feudal Law, which always 
 preferred the Succession of Heirs Male, so long as any existed.— As it appears by a Variety of Instances in 
 many noble Families of Scotland, that Peerages without Patent did in fact descend to a distant Heir Male where 
 a nearer Heir Female existed. — As it appears that Female Heirs were never entitled to such Dignities, but 
 upon a Resignation and a new Grant thereof by the Sovereign, which was the only method of defeating the legal 
 Succession of the Heir Male.— As by the Settlement of the Estate in Favour of Heirs Male, and the continued 
 Descent thereof in that Line, there arises the strongest presumptive Evidence, that by Law the Title of 
 Honour was understood to descend to the same Heirs Male.— And as it appears that no Resignation or new 
 Grant of this Dignity of Earl of CassilUs was ever made in Favour of Heirs Female, it is most humbx-y hoped 
 the said Dignity will be found of Right to belong to the Claimant, Sir TliowMs Kennedy. 
 
 C. YOEKE. 
 
 Ch. Hamilton Goedon.'' 
 
 " The Case of William Eael of Euglen and March, 
 
 {Claiming tJie Titles and Dignities of) 
 
 Earl of Cassillis and Lord Kennedy. 
 
 GILBERT KENNEDY, Grandson of King Robert III. of Scotland, was, in the Reign of King James II., created Lord 
 Kennedy ; and his Grandson David Lord Kennedy was, about the year 1509, created Earl of Cassillis. 
 
 There is no Patent on Record of these Creations extant ; but there is complete Evidence of them from the Rolls of 
 Parliament and from ancient Papers ; which Instruments likewise show that after the Family of Kennedy was ennobled, their 
 Estate was from time to time settled, not upon the Heirs Male, but the Heirs General. || 
 
 * The importance here attributed to resignations and warrants 1. A Charter under the Great Seal of the Lands otmfjrae 
 
 is strictly in accordance with the Claimant's argument in the resigned by John (called therein) Lord Kmnedij, to Sir Vamd 
 
 present claim, supra, pp. yii, 1xx.-Ed. J^^enned!/, his Son and apparent Heir ; and the Limitation of the 
 
 + This was in order to prevent mischief arising from the pre- Lands in this Charter is to the Hetrs^ to be procreat of the Mar- 
 sumption of the Clerks of Chancery, who frequently inserted riage between him ^ndAgmsBoHM, his Wife ; whom failing, 
 what they were not warranted to do, as observed «<pro, pp. Ixx, to the nearest and lawfulffeirs whatsoever of the said /o/m Lord 
 176 and S Case p 93 —Ed -( ' rr x^nedi/. This Charter is dated the 9th July 1489. 
 
 t' Compare what is stated by the Claimant supra, p. Ixx, 2. A Charter of the same Date, upon the Resignation likewise 
 
 176 and S Case p. 93.— Ed. of John Lord Kennedy, of the Office of Bailiff of Carnck, to his 
 
 s'Ouitein accordancewith truth, as illustrated si'^™, p. xxvii, Son Sir David and his Reirs. _ „ , t j j 
 
 with regard to the confirmations of the charters of Kilgarry, 3. A Charter upon the like Resignation, of the Lands and 
 
 & I-Ed Baronies of CassiUis and Dunure. to his Son Sir David and Ms 
 
 ]\ The Instruments are— J^eirs. This Charter is dated the 17th February liJOl. 
 
 rtf O, 0. 
 
552 APPENDIX. 
 
 The Titles of Earl of CassiUis and Lord Kennedy, being come by a regular Course of Succession in the Male Line to 
 John the seventh Earl, he, upon his own Resignation,* obtained a Charter under the Great Seal, (warranted by a Signature 
 under the King's Hand, dated at Wliitehall, 24th April 1671,) whereby the King gives and grants to the said Earl of Cassillis, 
 and the Heirs Male of his Body ; whom failing, to the Heirs Female of his Body, without Division, {Heredes Femellm respec- 
 tive predict, omni tnodo, viro nohili vel (jeneroso qualificato Cognomine de Kennedy nuhen., saltern, imo, qui et heredes inter 
 illos legitime procreand. ad Terras et Statum Subscript. Virtute liujus presentis Tallice et Provisionis Succeden. assutnent, sus- 
 cipiient, ferent, gerent et utentar, omni Tempore faturo Cognomine de Kennedie, Armis et Dignitate Families de Cassillis,) 
 with Divers other Remainders, over the Earldom and Lordship of Cassillis, to be bruiked, enjoyed, and possessed by the said 
 John Earl of Cassillis, and by his Heirs Male, and of Provision and Tailzie, respectively foresaid, cmiform to the Frecedencjf 
 and Priority of Place due and competent to them by their Sights, and Laws and Practice of this Kingdom ; and this Charter 
 was ratified in Parliament Anno 1672. 
 
 This John Earl of Cassillis had issue a Son, John Lord Kennedy, who died in his Father's Life, leaving Issue only one 
 Son, John, the last Earl of Cassillis ; and a Daughter, Lady Anne, married to John Earl of Euglen, by whom she had Issue 
 one Son, who died unmarried, and two Daughters, Anne Countess oi March and Buglen, and Susan, now Countess Dowager 
 of Cassillis. 
 
 By the Death of the last Earl of Cassillis without Issue, in 1759, the Earl of March became entitled to the Honours and 
 Dignities of Earl of Cassillis and Lord Kennedy, as descended from the eldest Daughter of John the seventh Earl of Cassillis^ 
 to whom the Honours were limited by the Charter of 1671, or as Heir at Law of the Earls of Cassillis and Lords Kennedy ; 
 and preferred a Petition to his Majesty, claiming the said Titles to be allowed him. 
 
 Sir Tliomas Kennedy having likewise petitioned, claiming these Titles by Descent to him as Heir Male, his Majesty 
 has been graciously pleased to refer both to the House of Peers. 
 
 The Earl of March's Right is founded, in the fii-st Place, upon the Charter of 1671 ; for if that Charter operates as a 
 now Grant from the Crown of the Title and Dignity of Earl of Cassillis, with the ancient precedency, there is no room for 
 any Question as to the Descent of the Right to the Ancient Peerage. 
 
 The following Propositions are submitted in support of his Claim, as founded upon that Charter: — 
 
 1. That the Earl of March, as Great-Grandson of Earl John, by his Daughter the Countess of Buglen, is the Heir, to 
 whom the Rights conveyed by that Charter have descended, on failure of the said Earl John's Issue Male in the Person of 
 the last Earl. 
 
 2. That by the Law and -Usage of Scotland, a Grant of a Title of Honour upon a Resignation in favorem, did effectually 
 convey the ancient Title to the Heirs therein mentioned. This was proved by the Instances of the Practice of Scotland in 
 such Cases, quoted upon the Claim of the Peerage of Stair, and is now established by the Determination of the House of 
 Lords upon that Case in 1748. 
 
 3. That by the express Words of this Charter of 1671, the Title and Dignity of Earl of Cassillis is conveyed. The 
 Charter, it is true, does also convey the Lands of the Earldom and Lordship of Cassillis. But it was usual in Scotland for 
 Charters to contain a Conveyance, both of the Lands and Honours of the Person upon whose Resignation they passed, espe- 
 cially where (as in the present Case) the Lands were united and erected into an Earldom or Lordship ; and that the Title of 
 Honour, as well as the Lands and Earldom, were meant to be granted by this Charter to Heirs Female on Failure of Male of 
 the Grantee's Body, is evident from the Condition of bearing the Arms and Dignity of Cassillis annexed to the Limitation in 
 Favour of Heirs Female, and from the Grant of the Earldom, " To be enjoyed and possessed by the said Earl of Cassillis and 
 " his Heirs aforesaid, conform to the Precedency and Priority of Place due and competent to them by their Rights, Laws and 
 "Practice of this Kingdom;" Words which can have no meaning as applied to a Grant of Lands, but plainly imply the 
 Grant of a Title of Honour, to which only they are applicable: And it is farther evident from the Circumstance of a Signature 
 .under the King's Hand, having issued as the Warrant of this Charter, which was necessary where a Title of Honour was to 
 be conveyed, but not at all so for a Grant of Lands only. 
 
 But if this Charter should be held not to operate as a Grant of the Title of Honour, then the Earl of March claims the 
 Titles of Earl of Cassillis and Lord Kennedy, as descended upon him the Lineal Heir, by the Law and Course of Descent of 
 Peerages created without special Limitations. 
 
 By the most ancient Usage of Scotland, the Dignities of Earldoms and Lordships were Territorial, and the Title was 
 annexed to the Land. In course of Time they became personal and inherent in the Blood of the Person ennobled. And 
 at this Period there were two Methods by which the Crown could create a Man an Earl or Lord of Parliament ; the one was 
 in analogy to the ancient territorial Dignities, by a Charter granting Lands erected into an Earldom or Lordship, with the 
 Dignity of Earl or Lord, to the Grantee, with such Limitations of Heirs as the King pleased. The other was by a Solemnity 
 of Creation performed in full Parliament, per Cincturam Oladii, and other Ceremonies ; and an entry of this Creation was 
 made in the Rolls of Parliament.f 
 
 This being premised, the following Propositions are submitted in support of the Earl of March's Claim, as founded 
 upon his Right, by Descent and Lineal Heirship, to the Titles of Earl of Cassillis and Lord Kennedy. 
 
 1. That these Titles were originally established by Creation in Parliament, without any Patent or Grant expressing 
 any Limitation of the Descent of the Honour. 
 
 The Proof of this is, that the Lands of Cassillis were not erected into an Earldom till 1642, in which Year there is a 
 Chartei- uniting and erecting them into an Earldom. The older Charters convey no Dignity, but merely the Lands. Patents 
 of Honour were first introduced in the Reign of James VI., which began in 1567. As, therefore, the Title of Earl of Cassillis 
 
 4, 5, 6. Besides these, there is a Charter of the Lands of Coiff and adds, " A third Way of Nobilitating with us is bv Creation 
 
 to John Lord Kennedy, dated 12th February 1505 ; and a Charter " and solemn Investiture," and then mentions the Form used in 
 
 of the Lands of JUarkwardstone to Sir David Remedxj and his the Creation of the Marquises of Hamilton and Hunthj This 
 
 Heirs, dated 12th January 1506; and also a Charter of the Method of Creation is mentioned in an Entry in the Pa'riiament 
 
 Barony of Zeswa« to the s&me ^w David Kmnedy ; and the Bolls of the Creation of PafWrf Lord iTaZes to be Earl of i?ottKc;i 
 
 Limitation in all these is the same as above, to Heirs in general, in 1487, " Ipsumque Dominum Patricium in Comitem creavit 
 
 7. A Charter of the Lands and Barony of CassUUs Tvith " et Comitis Titulo decora^it per prfficinctionem Gladii, ut mos 
 
 several other Lands, to i^amd Earl of Camlbs l^orAIunnedy, the " est, ita quod ipse, et sui heredes, pro perpetuo futuris tempo- 
 YfTrTw^ T^^. ^"'"^ ''"'^ ''" ^^""- ^^" ^''"'"' '' "^""^ C"-"^"^^ "^^ Bothwell vocenturf Comitisque dignitate 
 
 A^ieA 5th February l&U. , . ., '' ^"'g^^^t" The Entry of the Creation of a Peer is seldom so 
 
 By the Exchequer Bolls for 1509 it appears that the said full as this, for commonly it is but a note of the Creation ; as 
 
 Damd IS only mni'ked Lor A Jfennedy; but m the Boll dated 10th in the Lord Hume's Case, the Entry is only in these Terms — 
 
 August 1510 he is marked Earl of amMis. "2 Atuju^ti 1473, Quo die, Alexander Hmi, de eodem, Miles, 
 
 * But not of the %miy, on which everything turned.-En. " factus fuit Dominus Parliamenti."-[With respect o what 
 
 t Sir George M'Kenzie, in his Treatise of Precedency, t. 8, precedes vide infra p. Ixiv.— Ed 1 f ^ ^" 
 
 mentions Peerages by feudal Erection, and by Patent of Honour; ' 
 
APPENDIX. 553 
 
 IS clearly as ancient as 1510, it could not be by Patent, neither was it granted by Ciiarter, and must, therefore, have its 
 Original from a Creation in Parliament. 
 
 2. A Creation in Parliament gave the Person ennobled an Estate of Inheritance in the Honour. 
 
 Of this there can be no Dispute, since the Succession of most of the ancient Peerages has proceeded upon that Ground 
 alone. 
 
 3. This Estate is descendible according to the ordinary Course by which every other Right of Inheritance descends, 
 and therefore will descend to the Daughters and their Issue, on failure of Issue of the Sons. 
 
 The Presumption is in Favour of the Truth of this Proposition, and it ought naturally to lie upon the Party who denies 
 It to prove that Titles of Honour are regulated by a different Law in Point of Descent from every other Inheritance. But, 
 besides the general Keason to support this Proposition, there are strong Authorities in its Favour. 
 
 And, 1st, The Opinion of Lawyers. 
 
 Lord Stair, Instit. B. 3, T. 5, § 11, says, " Heirs Portioners are amongst Heirs of Line ; for, when more Women or 
 their Issue succeed, failing Males of that Degree, it is hy the Course of Law that they succeed ;" and, "though they succeed 
 equally, yet Rights indivisible fall to the eldest alone, without anything in lieu thereof to the rest; as the Dignity of Lord, 
 Earl, &c." 
 
 Sir Georr/e M'Kenzie, Institutions, B. 3, T. 8, § 25, speaks to the same Purpose ; and it is obvious that both those 
 Authorities are directly applicable to the present Question, because both Authors are speaking of the Rules of Descent ly 
 Courseof Law; and, unless an Heir Female is capable of inheriting a Peerage erected by Creation in Parliament, there is no 
 Title of Honour which she can inherit by Course of Law ; for all Peerages by Patent and Charter contain express Limitations 
 of the Honour, by Virtue of which, and not by Course of Law, the Succession thereof descends. 
 
 2dly, The Number of Instances of Females succeeding to ancient Peerages without any Question being made. 
 
 So it was in the Case of the Earldoms of Athoh, Angus, Buchan, Fyfe, Lennox, Mar, Monteith, Ross, and Strathem, 
 created prior to the Reign of James I. of Scotland. And of later Creations, in the Earldoms of Athole and Buclmn, and the 
 Lordships of Carlisle, Dirleton, Harris, Oliplmnt, Saltan, and Stiiipk, all which are set forth in the Proceedings upon the 
 Peerage of Lovat in the Court of Session in 1730. 
 
 3dly, The Authority of two adjudged Cases. 
 
 The first is that of the Title of UlipJiant (July 11, 1633, to.), which was claimed by the Heir Male of Lord Oliphant, 
 and also by the Daughter : There was no Patent to show any Erection of the Lands into a Lordship, and the Peerage was 
 proved only by the Evidence of ancient Papers, and by the Enjoyment of it by the Ancestors of the last Lord, as in the 
 ])resent Case ; and the Court of Session there held, tlvxt this use was enough, conform to the Laws of this Eealm, to transmit 
 such Titles to the Heir Female, where tltere was no Writ extant to exclude her. This Case is reported by Durie, and the 
 Decree was pronounced in the King's Presence. — (^Durie, 685, to.) 
 
 James Stewart was created Earl of Bu-clum Anno 1496. His Grandson, John Earl of Buchan, had two Sons, John and 
 James. John died in the Life of his Father, leaving a Daughter, Christian, who succeeded her Grandfather, and was 
 Countess of Buchan ; she, by her husband, Edbert Douglas, had Issue a Son, who died, leaving only one Daughter, Mary, 
 who, by the name of Mary, Countess of BucJmn, was, on the 20th May 1615, served Heir to her Grandmother, Christian, 
 (Jountess of Buchan, there being then alive an Heir Male, the Grandson of John Earl o( Buchan, by James his second Son. 
 In 1628, this Countess of Buclian brought an Action for declaring her Precedency against six or seven Earls who had been 
 placed before her, and her Claim, founded on the Right of an Heir Female to succeed to a Title without Patent, was allowed 
 by the Court of Session. 
 
 The only Objection, it is apprehended, that can be made against the Doctrine here maintained is, that Titles of 
 Dignity are Masculine Fiefs by the Law of Scotland, and have often so descended, and were so held by the Court of Session 
 in the Case of Lovat. 
 
 The Female Succession is universally received in Scotland, and there never were any Fiefs by their Nature incapable of 
 descending to Females ; the Crown was descendible to an Heir Female, and all hereditary Offices have been so, even at the 
 strictest Periods of the Feudal Law. Wherever the Succession went to the Male Line, it has done so by particular Provision, 
 and not by the Course of legal Descent. 
 
 There is a Fallacy in arguing from the Cases of ancient Peerages that have descended to Heirs Male in Exclusion of a 
 nearer Heir Female, because it might often so happen, and most commonly did, in Peerages created by Charter containing 
 Grants of Lands and special Limitations ; but no Conclusion can be drawn from thence to the Case of Peerages by Creation in 
 Parliament, without any special Words of Limitation. 
 
 The Proceedino-s before the Court of Session on the Peerage of Lovat were without Power or Jurisdiction, and can 
 have no Influence on the present Question (M'Bowall's Instit. B. I. T. 2, § 30, vol. i. p. 52. to.).* But even were any regard 
 paid to the Authority of that Opinion, it does not apply to the present Case ; for what weighed with the Court there was, 
 that the Right to the Lands of the Barony had gone in a perpetual Channel to Heirs Male, and here these Rights have, for 
 upwards of a Century, been limited to Heirs General. 
 
 Al. Foreester. 
 
 Al. WEDDEEBURN.t " 
 
 " Abstract of the Signatuee.J 
 " Charles R. 
 Our Sovereign Lord, &c. ordains an Charter to be past and expede under his Majesty's Great Seal, in due Form, Giving, 
 
 &c. to John Earl of CassiUis, &c. , „ ■ • m 
 
 Fo. 3, {Proviso) The saids Daughters and Heirs Female respective and successive, who shall happen in any Time coming to 
 
 * Lord Kuelen only questioned (however unfoundedly) the Sheriffdom of Forfarsliire 1st November 1488, in which David 
 
 anthoritv of the Court of Session subsequently to the Union ; he Duke of Montrose is distmctly recognised as Duke by James IV. 
 
 admits that authority, and founds on the decision of the Court during the interval between the two patents, is the cardinal 
 
 as nronounced, in 1628 and 16.33.-Ed. warrant, which fell exclusively to be consulted and by which 
 
 + Who was afterwards Lord Loughborough and Earl of the Committee in the recent claim ought to have been guided 
 
 Rosdvn and decided the Glencairn claim in 1797, when he with reference to the question whether the Duke was Duke of 
 
 Kpltl as ChanceUor, that dignities might be created, without Montrose or Earl of Crawford only when that Instrument was 
 
 writ bv simple belting, and ruled that the Glencairn Earldom executed. And on the same principle the Act of James IV., 
 
 creS —Ed ■n'itl^ ^^^^"^ "^ Parliament, 18th September, 1489, granting de 
 
 ^^ This it is to be observed, is the cardinal warrant which fell novo the Dukedom of Montrose, is the cardinal warrant by which 
 
 exclusively to he consulted, and on which the decision partly went— and the Litera (especially as existing only in abbreviate) fell to be 
 
 NOT on the subsequent charter in 1671. On precisely the same interpreted and controlled.— Ed. 
 ijrinciple, the Instrument of Resignation aud Donation of the 
 
554 APPENDIX. 
 
 succeed to the Lands and Estate underwritten, always marrying a Gentleman of Quality, of the Sirname of Kennedy at the least, 
 who, and the Heirs to be procreat betwixt them, to succeed to the Lands and Estate underwritten, by Virtue of this present Taillie 
 and Provision, shall assume, take on, bear, and use in all Time coming, the Sirname of Kennedy, Arms and Dignity of the 
 Family of Oassillis. 
 
 3. All and haill the Earldom and Lordship of Oassillis, &c. 
 
 9. All which remanent Lands, &c. were all formerly united, annexed, erected, and incorporated in an whole and free 
 Earldom and Lordship, called, and to be called in all Time coming, the Earldom and Lordship of Oassillis, with the Title, 
 Dignity, Precedency, and Priority due to the said Earl, and his Predecessors, by the Laws and Practice of this Realm ; 
 conform to a Charter, granted by his Majesty's umquhile dearest Father, King Oharles the 1st, of ever blessed Memory, under 
 his Majesty's Great Seal of this Kingdom, of the Date the penult Day of September, 1642. 
 
 1 ] . Wliilks haill Lands, &c. pertained heritably of before to the said John Earl of Oassillis, holden by him immediately 
 of our said Sovereign Lord for his Highness self, as King, and as Prince and Stewart of Scotland, his immediate lawful 
 Superiors of the same respective ; and Whilks were by him, and his lawful Procurators in his name, to that Effect specially 
 constitute, and by his Letters Patent, duly and lawfully resigned, surrendered, upgiven and overgiven, in the Hands of the 
 Lords, and other Commissioners of his Majesty's Exchequer, &c. as in the Hands of our said Sovereign Lord, for his Highness 
 self, as Prince and Stewart of Scoamrf, immediate lawful Superiors of the same respective above-mentioned, purely and simply 
 by Staff and Baston, as use is, At the Day of together with all 
 
 Right, Title, &c. 
 
 16. As authentic Instruments taken upon the said Resignation in the Hands of 
 
 Notar Publick, at more Length proports. And sice-like, our said Sovereign Lord, for his Highness self, as King, and as 
 Prince and Stewart of Scotland, for the many great, true, and thankful Service done and performed to his Majesty, and his 
 Highness most noble Progenitors, of ever blessed Memory, by the said John Earl of Oassillis, and his Predecessors in Time 
 bygone, and for many other good Respects and weighty Causes and Considerations, moving his Highness, his Majesty for 
 himself, as King, and as Prince and Stewart of Scotland, with Advice and Consent foresaid, has of new given, &c. 
 
 17. The saids Daughters, and Heirs Female respective and successive, who shall happen in any time coming to succeed 
 to the Lands and Estate above- written, always marrying ane Gentleman of Quality, of the Sirname of Kennedy at the least, who, 
 and the Heirs to be procreat betwixt them, to succeed to the Lands and Estate abovewritten, by Virtue of this present Tailzie 
 and Provision, shall assume, take on, bear, and use, in all Time coming, the Sirname of Kennedy, Arms and Dignity of the 
 Family of Oassillis. 
 
 All and haill the Earldom and Lordship of Oassillis, &c. 
 
 Fo, 24. Likeas the haill foresaids Lands, Baronies, &c. are all formerly unit, annext, erect, and incorporat in an haill 
 and free Earldom and Lordship, called, and to be called in all Time coming, the said Earldom and Lordship of Oassillis, with 
 the Dignity, and Precedency, and Priority, due to the said Earl and his Predecessors, by the Laws and Practice of this 
 Realm, conform to the Charter abovementioned, granted under his Majesty's Great Seal of this Realm thereanent. 
 
 28. And in like Manner, our said Sovereign Lord for himself, and as Prince and Stewart of Scotland, with Advice and 
 Consent foresaid, has of new unite, erect, and incorporate, and by these Presents unites, erects, and incorporates, all and 
 SUNDRY the foresaids Lands, Baronies, &c. in an haill and free Earldom and Lordship, called, and to be called in all Time 
 coming, the Earldom and Lordship of Oassillis, to be bruiked, enjoyed, and possessed, by the said John Earl of Oassillis, and 
 by his Heirs Male, and of Provision and Taillie respective foresaid, conform to the Precedency and Priority of Place, due 
 and competent to them by their Rights, and Laws and Practice of the said Kingdom of Scotland, in all Time coming, 
 without any Revocation or Contradiction whatsoever. 
 
 41. Likeas our said Sovereign Lord promises in verba principis to ratify and approve this present Charter with infeft- 
 ment to follow thereupon, and all that shall happen to follow upon the same, in the haill Heads, Articles, Clauses, Provisions, 
 Conditions, and Obligements thereof abovementioned, and that in the next Parliament to be holden by his Majestj' and 
 Estates thereof within his Highness said ancient Kingdom of Scotland." 
 
 " Absteact of the Chaeter 1671. 
 
 " Cakolus, &c Sciatis, nos, pro nobis, &o dedisse, concessisse, disposuisse, et hac presenti Carta nostra, confirmasse, tenoreque 
 ejusdem cum avisamento et consensu praedicto pro nobis metipsis, tanquam Rege, et tanquam Principe et Senescallo Scotite, 
 dare, concedere, disponere, ac pro nobis et Successoribus nostris pro perpetuo, confirmare, confiso et prsedilecto nostro Con- 
 sanguineo et Consiliario, Joanni Comiti de Oassillis, Domino Kennedie, et Heredibus Masculis inter eum et Dominam Susan- 
 nam Hamiltone ejus Sponsam legittime procreat. vel procreand. Quibus deficien. dicto Joanni Comiti de Oassillis, suis 
 Heredibus Masculis de corpore suo legittime procreand. de quovis alio Matrimonio cum quacunque alia legittima Sponsa, 
 Quibus etiam deficien. Heredi Femellae natu maximae legittime procreat. vel procreand. inter dictum Joannem Comitem de 
 Oassillis, et dictam Dominam Susannam Hamilton ejus Sponsam, successive sine divisione, Quibus deficien. Heredi Femellae 
 natu maximae de Corpore dicti Joannis Comitis de Oassillis ex quocunque alio Matrimonio procreand. sine divisione ut dictum 
 est; Heredes Femellae respective praedict. omni modo viro nobili, vel generoso qualificato, Cognomine de Kennedie, nuben., 
 saltem, uno qui et Heredes, inter illos legittime procreand. ad Terras et Statum subscript, virtute hujus presentis Talliffi et 
 Provisionis succeden. assument, suscipient, ferent, gerent, et utentur omni tempore futuro Cognomine de Kennedie, Armis et 
 Dignitate Familiae de Oassillis, et implementes et observantes alias conditionis et provisiones subscript, tantumodo et non 
 aliter, &c. 
 
 Totum et Integrum Comitatum et Dominium de Oassillis, &c. Qusequidem omnes reliquae terras, &c. sunt annexat. creat. 
 et incorporat. in unum Integrum et Liberum Comitatum et Dominium, nuncupat. et nuncupand. omni tempore luturo, Comi- 
 tatum et Dominium de Oassillis, cum Titulo, Dignitate, Frecedentia et Prioritate dicto Ornniti et Predecessoribus suis, per 
 Leges et Praxin. hujus Regni nostri debit, secundum Cartam per quondam nostrum charissimum Patrem Oarolum Primum, 
 Regem beatissimae memoriae, sub suo magno sigillo hujus Regni nostri, concess. de data, penultimo die mensis Septembris, 
 1642. 
 
 Et similiter, &c nos pro nobis, &c pro plurimis magnis fidelibus et gratuitis servitiis, nobis et nostris Progenitoribus 
 beatse memorise, per dictum Joannem Comitem de Oassillis suosque predecessores impensis et prestitis, ac pro multis aliis bonis 
 respectibus, magnis et onerosis causis et considerationibus, nos moven. &c de novo Damns, concedimus, disponimus, ac pro 
 nobis et successoribus nostris Regibus et Principibus Scotice, pro perpetuo confirmamus, dicto nostro confiso et praedilecto Con- 
 sanguineo et Consiliario Joanni Comiti de Oassillis et Heredibus Masculis, inter eum et dictam Dominam Susannam Hamil- 
 tone, ejus Sponsam, legitime procreat. vel procreand. Quibus deficien. Heredibus Masculis, de suo Corpore ex quovis alio 
 Matrimonio legitime procreand. Quibus etiam deficien. Heredi Femellae natu maximae, inter eum et dictam suam Sponsam 
 
APPENDIX. 555 
 
 PTOcr^ P'^ocreat. vel procreand. sine divisione, Quibus deficien. Heredi Femellse iiatu maxima;, de Corpore diet. Comitis 
 
 procrean , ex quovis alio legitimo Matrimonio, sine divisione, ut dictum est ; diet. Heredes Femellae respective omni modo 
 
 oDiiem seu generosum virum qualificatum, Cognominis de Kennedie, nuben. saltem, unum qui et diet. Heredes Masculi 
 
 gi timi mterillos prqjireand. ad Terras et Statum supra et superscript, virtute hujus presentis TaliiEC et Provisionis successuri, 
 
 ^suuient, suscipient, gerent, ferent, et utibuntur omni tempore ^ futuro, Cognomene de Kennedie, Armis et Dignitate 
 
 ami 18B e Cassilhs, et Implementes et Observantes, alias conditiones et provisiones superscrip. tantum modo, et non aliter, 
 
 c. iotum et Integrum predictum Comitatum et Dominium de CcmilUs, &c. Quse quidem omnes sunt per prius unit. 
 
 annexat. erect, et ineorporat. in dictum integrum et liberum Comitatum et Dominium, nuncupat. et nuneupand. omni tempore 
 
 u uro, dictum Comitatum et Dominium de Gassillis, cum Titulo, Dignitate, Frecedentia et Primtate dido Comiti, suisque 
 
 I reaecessoribus debet, per Leges et Praxin hujus regni nostri, secundum tenorem Cartee supra mentionat. sub nostro Magno 
 
 bigillo hujus Regni nostri quatenus coneess. &c. 
 
 Ac similiter, nos, pro nobis et tanquam Princeps et Senescallus Scotice, cum avisamento et concensu prsdicto, de novo 
 univimus, ereximus, et incorporavimus, tenoreque presentis Cartae nostras, de novo univimus, annexamus, et incorporamus, 
 omnes et singulas praedictas Terras, Baronias, &c in unum integrum et liberum Comitatum et Dominium, nuncupat. et nuneu- 
 pand. nunc et omni tempore futuro, Comitatum et Dominium de Cassillis, fruend. gaudcnd. et possidend. per preefatum 
 Joannem Comitem de Cassinis, ac per Heredes suos masculos, provisionis et talliae, respective ante diet, secundum precedentiam 
 et priontatem loci, ipsis debit, et competen. per eorem Jura, et per Leges et Praxin. dicti hujus Regni nostri 8cotice, omni 
 tempore futuro, sine ullo revocatione aut contradictione aliqualis. Tenendum et Habendum, &c. 
 
 Nee non nos promittimus in Verbo Principis hanc presentera cartam nostram, cum Infeofamento de super sequen. et 
 omne quod desuper sequi contigerit, ratifieare et approbare in integris capitibus, artieulis, clausulis, provisionibus, conditionibus, 
 et obligationibus earundem supra mentionat. idque in proximo Parliamento per nos et status ejusdem infra hoc antiquum 
 Regnum nostrum Scotiae prEedict. tenen." 
 
 " Consideration of the two claims was from various causes deferred ; latterly, upon the application of the Earl of March, 
 who petitioned the House of Peers for delay until access should be procured to certain ancient writings preserved amongst the 
 family muniments, and which had, under authority of the Court of Session, been sealed up. Upon the 22nd day of January 
 1762, after a lull discussion, the following opinions were delivered :* 
 
 " The Eael of Maechjiont addressed the Committee in substance as follows. He observed that the cause 
 had been argued at great length. That it was the single cause of Peerage that had come before the House for 
 half a century past, for the few causes which had been determined since the Union, singlyf related to matter of 
 succession upon patents of honour; but this comprehended the constitution of Peerages, and the general rule of 
 descent. That therefore there behoved to be great variety of opinion, as some would found their judgment upon 
 the principles of the law of England, and others would be influenced by a mixt notion of the laws of both 
 countries. That this case, however, must certainly be determined upon the general principles of the law of the 
 country where the case itself took its rise. The case in general is, Whether the heir-male descended of the body 
 of the first Earl of Cassillis, or the heir-general of line, is entitled to the Peerage ? 
 
 The counsel laid the case very properly on two foundations; first on the charter 1671, and then on the 
 notion of a feudal dignity. With respect to the first, he took occasion to enlarge on the nature and importance 
 of charters. That they were evidence, omni exceptione inajores. That nothing could affect their validity. That 
 they were drawn and revised with great accuracy. That their constitution was the same in all ages. That some 
 in Scotland were as old as the time of Malcolm the Fourth, in the eleven hundred and odd, some in 1094. That 
 they all began with the King's name, after which followed the dispositive clause, then the tenendas, and lastly the 
 reddendo. That it was a fixed rule of law, that nothing could be carried by the charter but what is contained 
 in the dispositive clause. That Craig was not clear whether the tenendas carried any thing. That after the 
 dispositive clause followed the quaequidem, which contained the causa and modus vacandi, by what means the estate 
 came into the King's hands. That the interpretation of charters was of the utmost consequence, and merited the 
 greatest attention, as they affected all property. That the cases of Eothes and Kilmarnock, &c. mentioned at the 
 bar, were different from this, as they mentioned the titulum dignitatis separate from the lands. That there was no 
 erection in these charters, therefore the title was separate ; but when the lands are erected into a Lordship or 
 Earldom, as in the present case, then the title is not separated, the expression therefore is different ; and it is very 
 observable in this case, that the expression in the charter 1671 is dominium et comitatum et terras, &c. The reason 
 is, the lands were erected aum titulo ; there was a novodamus in this charter, and this new grant operated as an 
 original charter. It was said that nothing new could be carried by this grant ; but certainly new subjects may 
 be carried by a novodamus. A man may have a fishing and other subjects ; and there are many cases directly in. 
 point which prove this. He then read a paragraph from Dirleton, p. 135. He said that in this charter there 
 was a comitatum, which always contained a dignity ; that this was explained by the words secundum prioritatem, &c. 
 
 That THE COUNSEL IN ARGUING IN THIS CASE HAD BEEN GUILTY OF 6EEAT MISTAKES, PARTICULARLY IN" SAYING THAT A 
 
 Peer could be created in Parliament by cinctuee. That the cincture was merely a symbol. That the 
 next mistake was in saying that these dignities were feudal. That it appeared there were no Lords of Parliament 
 till the feudal law was out of date. That the first were in the time of James the First, who introduced the forms 
 of the law of England. It was a general rule there could be no Peer without writ ; the creation in 
 Parliament was all a mistake; the cincture was merely a symbol. Symbols were very ancient, and pre- 
 vailed in all ages ; they are mentioned in the Bible, in the case of swearing. Craig mentions all the usual symbols, 
 but makes no mention of the symbol of a dignity. The notion of a creation in Parliament has arisen from a very 
 
 * The Claimant would refer here to the Analysis, supra, p. 545, n. f. — Ed. f Simply ? — Ed. 
 
 4 B 
 
556 APPENDIX. 
 
 superficial writer, Sir George M'Kenzie. He read the paragraph from Sir George M'Kenzie, p. 335, concerning 
 Peerage and the solemnity of investiture, and said that it appeared that the patent was always carried, which shows 
 the patent then existed. That it appeared after the solemnity of investiture wore out, the modern patents contained 
 a particular clause, dispensing with the ceremony of investiture ; and he mentioned the pattots of the Earldom 
 of Wigton, Dunfermline, and Lothian. He said there could be no iNVESTirunE without writ. That the Lords 
 of Erection were all made by charter. That there could be no feudal succession where there were no words 
 IN the investiture limiting the descent. He introduced Craig as author of the feudal law in Scotland ; made 
 great encomiums on him for the elegance of his style, and his having been educated with Cujacius, the greatest 
 civilian that ever existed, but that his notions were all derived from the feudal law of Lombardy. That his 
 notions were wrong, for we had certainly the feudal law earlier, the books of the feud being wrote in the eleventh 
 century. That we had charters as early as the year 1094. That Craig makes a doubt with regard to female 
 succession ; but certainly our succession was always lineal and always female, and where there was an heir-male, 
 he was no heir of law, but an heir of provision. That the case of Lovat had no weiglit with him ; the Judges 
 differed in opinion, and Lord Newhall, the greatest of the Judges, supported the female succession. That the 
 question was amicably determined by a decreet-arbitral of Lord Dun and Lord Grange, the first their Lordships 
 had seen in this house, and the other was well known. That the late Lord Lovat, who suffered justly for his 
 crimes, paid a composition of 12,000/., and the heir- female was prohibited from taking the title, under a penalty of 
 3O,000Z. That he had given his clear and impartial opinion upon the general points in this case, still open to con- 
 viction, and under correction when he was mistaken. That he chose to deliver his opinion first, (without claiming 
 any precedency from his knowledge in the law of Scotland,) because he did not doubt there would be a variety 
 of opinions ; but for his own part he could not give up his opinion, in compliance to any authority, or to any 
 character, however respected." 
 
 " Lord Mansfield spoke next, in substance as follows : — 
 
 My Lords, I rise up to deliver my opinion upon this question, which is of great extent. The ratio deci- 
 dendi must be sought for through a load of rubbish, and matters are so involved in obscurity, that I may use the 
 expression of a celebrated author, that the little light which we have, like the flash of lightning in a storm, only 
 serves to make the darkness more visible. 
 
 The facts which gave rise to this question are shortly these. Upon the 10th of August 1510, it appears 
 that David Lord Kennedy was then Earl of Cassillis; and in 1509 it appears by the Rolls of Exchequer that he 
 was only Lord Kennedy. The Eolls of Parliament from 1505 to 1524 are lost; but it appears in 1524 the Earl 
 of Cassillis sat in that Parliament. 
 
 Sir Thomas Kennedy claims this dignitj'^, and derives liis pedigree as heir-male descended of the body of 
 David the first Earl of Cassillis, which he certainly is. The Earl of March claims the same dignity, as heir- 
 general of line by female descent. There are two questions. The first is, "Whether a title of honour, by its own 
 original nature and constitution, descends to an heir-male, or to the heir-general ? And the second question is, 
 Supposing it descends to an heir-male, whether in this case there is any grant, with limitations such as will carry 
 it to the heir of line ? 
 
 The first question is, how we shall discover a rule of descent wliere there is no evidence of an actual creation, no 
 letters patent, no investiture or introduction into Parliament, and no charter of erection ? But in this case we are 
 certain that the Earl of Cassillis must have been made an Earl titulo hereditaria, because he sat in Parliament a^ an 
 Earl, and the heirs-male, who were always heirs-general, enjoyed the dignity successively until the Icist Earl, who 
 died in 1759. In this case, I am of opinion that the descent must be determined by a legal presumption ; but 
 there being no evidence of facts sufficient to determine clearly what that presumption should be, there is a great 
 difficulty in the question. I have in this case taken great pains, and I think I have found some probable reasons 
 which have satisfied me, and on M'hich I have founded my opinion. I will only trouble your Lordships with the 
 general grounds of my opinion, without attempting to support it by authorities, or to give the reasons at large, 
 which would run to a great extent, and be the work of days. 
 
 It appears that the feudal system was very early introduced into Scotland. It brought with it Earldoms and 
 other territorial dignities, which in their proper original and first tiature were territorial offices, accompanied with a power 
 and jurisdiction. They were held in capite by a military tenure, and were unalienable without consent of the King 
 or Lord Paramount. They most certainly descended to the issue male, and the representation was in the right line, 
 that is, the heir always took under the first grantee, and as descended of his body, not as connected with the last 
 successor. How long these territorial dignities continued we are totally in the dark ; how, or when, the lands of 
 territorial Earldoms became alienable, and got into commerce, no where appears, but tliey were certainly MASCUiaNE 
 fiefs. "When they came to be in commercio, the alteration from territorial to personal dignities followed by degrees. 
 Territorial dignities could not remain after the fee was dismembered. The dignity could not fall to any particular 
 parcel or part of the lands more than to another, unless the dignity had been annexed to the capital seat or some 
 other part of the fief; but nothing of this kind can be shown. Lord Kames, in his Essays, conjectures, but it is 
 merely a conjecture unsupported by evidence, that when feus began to be split and divided, personal dignities 
 •were first introduced. There is great ground to believe the territorial dignities ceased long before the 1424, when 
 King James the First returned from England. The territorial form continued, though the substance was gone. 
 There are many charters granting in appearance territorial Earldoms and Lordships-, and yet before 1424 all 
 lands were in commercio, and the territorial honours must have been gone when the lands were sold. This is most 
 
APPENDIX. ^^^ 
 
 evident, for we find in 1467 a judicial sale was introduced for debt as to all lands, wliether noble or not. Personal 
 dignities gave rise to new ceremonies by investiture. * 
 
 The Lords of Session's Eeport to your Lordsiiips concerning the Peerages of Scotland was formed with 
 great thought and care. It says, " Titles of honour were created before the reign of King James the Sixth, by 
 erecting lands into Earldoms and Lordships, and probably by some other method that cannot now, in matters so 
 ancient, be with any certainty discovered." * 
 
 But I incline to be of opinion with the noble Lord who spoke last, that there was no ceeation op any 
 Earl or Lord of Parliament, without some charter or writinq; but though these creations sprung from 
 territorial dignities, yet there is no proof that they are the same in any respect. The form and words accom- 
 panying territorial dignities continued, though the substance was gone. The creation of Patrick Lord Hailes as 
 Earl of Bothwell, in 1487, is a creation by writ, with a limitation of heirs. The words are, " eundemque Dominum 
 Patridum in Comitem creavit, et Comitis titulo deooravit, per prwcinctionem gladij ut mos est, ita quod ipse et sui ficeredes 
 pro perpetuo futuris temporibus Comites de Bothwell vocentur, Gomitisque dignitate fulgeant."-\ From this there may be 
 several observations drawn, and particularly that at this time, in 1487, girding with the sword alone did not make him 
 an Earl; there behoved to be words of limitation, ita quod hceredes sui, &c. Sir George M'Kenzie says, "that 
 none were nobilitated by patent before the time of King James the Sixth." The Lords of Session, in their report 
 concerning the Peerages of Scotland, don't lay it down as certain that there were no Peerages by patent before 
 this time ; they only say, " They can't discover any in the records earlier than the reign of King James the 
 Sixth ;" but certainly there were several Peerages by patent, though not upon record. In the present case there 
 is no patent, yet that is no proof that the Peerage was not granted by writ. The Peerage of Glencaim was granted 
 iy patent in the reign of James Third, in 1488, yet it does not appear on record.^ I observe in a note, mentioning the 
 creation of Lord Darnley in 1565, it is added, " that if need bees, letters patent should be expede." Iliis shows 
 that patents then were thought necessary. In the year 1592, when church lands and tithes were erected into temporal 
 Lordships, King James Sixth, by an express act, " excepts and reserves all erections, charters, and infeftments 
 granted to such persons as had then received the honours of Lords of Parliament, by the solemn form of belting, 
 and other ceremonies used in such cases." Thus it plainly appears, that the ceremony of belting existed even 
 after charters of erection were introduced. Sir George M'Kenzie says, there was a form of nobilitating besides 
 letters patent and the ceremony by investiture. He mentions the creation of the Earl of Huntly in 1599. He 
 there states that the patent was carried in the procession ; and though it was not read, it was delivered as a part of 
 the title, and therefore was not for the first time introduced. It was not proved at the bar, that any Earl was 
 created without words of limitation. Lords of Parliament have been compared to Barons by writ, and were said 
 to have been brouo-ht from England by King James First. But every authority contradicts this. Before the 
 1458, the King's vassals all sat in Parliament. The Lords of Parliament who did not sit there as vassals of the 
 Crown must have been some way created or made. The creation of the Lord of the Isles in 1476 was by writ, 
 though the record only mentions " quo die factus fuit Dominus Parliament!." 
 
 It appears that mast frequently there was a charter of erection of the lands at the time the title of honour 
 was conferred. If ike lands were limited to heirs-MALE, the title of honour cannot be supposed to descend in a different 
 channel from the lands in the charter. Therefore, every creation of a Peerage must have been of words some way or 
 other, and there is no authority to the contrary. And as to there being no letters patent before James Sixth, it 
 is plainly a mistake. The first question must therefore be, what is the presumption as to the descent of these 
 titles of honour where there are no words to direct us ? This can only be determined by presumption. Many 
 things concur to prove that lands descended to the heirs-MAJ.E of the body of the person to whom the fee ivas originally 
 granted. The presumption of law follows properly the nature of the fee. Every fee was presumed to be 
 held by a military tenure, unless a soccage or some other tenure was shown. It was therefore presumed that the lands 
 descended to heirs-UMM. This presumption is strongly supported by the instance mentioned at the bar, that ' H jseedes,' without 
 ANY addition MEANT HEIRS-MALE ; and as this tooli place in lands, so the same rule followed in noble feus. This is 
 proved by the case of the Earldom of Stratheam, which was granted ' hwredibus suis,' and Buchanan mentions that it 
 was considered as a masculine fief, and returned to the King on failure of heirs-male.% There is a more modem 
 instance in the title of Lennox. || Other authorities confirm this ; and the presumption is supported by the 
 authority of Craig, who says, if a feu is limited to heirs-male and female, the females cannot take till the male 
 line is extinct. But further, besides the fees being feudal, another circumstance confirms the presumption in 
 favours of the heir-male— Lord March has only been able to bring one instance of an Earldom descending to a 
 female. It was the case of Buchan. But the force of this instance was taken ofi"; by the resignation, and the 
 new grant of the honours in favour of the heir-female, with the express consent of the heir-male. On the other 
 hand the eleven instances brought by the heir-male afford convincing evidence of the exclusion of females. There 
 was only one answer made to these, and that was, that the titles of honour might possibly have been so limited by 
 charters of erection, though these did not appear. But this can have no weight. WMre there is no light to direct 
 v^ THE WAY MOST FREQUENT must be presumed. In England, patents of honour in the fifteenth century were uniformly 
 in favour of the heirs-MALE. Patents of honour in Scotland, in the time of Queen Mary and afterwards, were limited 
 
 * On the subiect of this Eeport vide supra, p. Lxx, and note *. J The Glencairn patent is here recognised, precisely as in 
 -p 1648. It was only at a later period, and by Lord Loughborough, 
 
 f Lands however were also granted,— the Lordship (territory) the unsuccessful counsel in the Cassillis claim, that that patent 
 
 of Bothwell was in the first instance erected into a free Earldom, was questioned, as in his Speech elsewhere given.— Ed. 
 
 to be caUed hereafter the Earldom of Bothwell ; and then the § Compare the late Lord Eedesdale's dicta, S. Case, App., p. 
 
 Lordship (territory) of Crichton was annexed, united, and incor- 221, and infra, p. 572.— Ed. 
 
 Dorated into the said Earldom,— the whole in favour of Patrick |1 In the case of the Earldom, as created m 1572, as shewn by the 
 
 Lord Hailes &c &c.— ' Acts of Parliament,' vol. ii. p. 206.— Ed. Claimant, Case, p. 44 ; S. Case, p. 152 ; and supra, p. lxxvi.— Ed. 
 
 4 B 2 
 
558 APPENDIX. 
 
 to heirs-MKis. The reason of the presumption subsists now as strongly as in former times ; and it cannot be 
 doubted, that if the question had occurred in these times, the presumption would have stood in favour of heirs- 
 male. This is farther confirmed by the case of the Earl of Sutherland and the Earl of Crawford, concerning pre- 
 cedency. There is no bad report of the case in Forbes' Collection of Decisions. He says, the Commissioners 
 who determined the precedency in 1706 proceeded on this general ground, that " an estate did not pass to females, 
 unless provided haredibus quibuscunque, maies being only understood by heies simply, or hceredes inter ipsos ; and 
 where the provision was to heies whatsoever, the heir-male was still preferred, and the female succeeded only 
 aquis pm-tionibus. It was yet much later that an heir-female was allowed to succeed to a dignity with jurisdiction, 
 upon the account of personal unfitness, and the absurdity of possessing the indivisible title with a part of the 
 divided estate. The dignity in this case was not feminine by King David's charter to William Earl of Sutherland 
 and the Lady Margaret his spouse, for that neither conveyed the estate nor the dignity, but only added a regality 
 to it." The Court of Session proceeded on the same grounds, that where no limitation appeared, they presumed 
 in favour of the heir-male 'of the body of the person first ennobled. The case was determined in the Court of 
 Session in 1706, when there was an opposition on the same grounds, and the Court of Session had then most 
 
 CERTAINLY A COMPETENT JURISDICTION. 
 
 It is a farther presumption in favour of heirs-male, that so many resignations appear on record, all calcu- 
 lated to let in the heirs-female, who could not otherwise have taken the dignities. Four of these were read at the 
 bar, viz. Eothes, Errol, Kilmarnock, and Kinghorn. There is no authority to presume otherwise than in favour of 
 the heirs-male, except in the case of Oliphant, determined in 1633. But I pay no regard to that case. It does 
 not appear that there was any evidence whatever of the original constitution of the dignity ; nor does the reason 
 appear why the heir-female v/as preferred to the succession. Besides, there are two points determined in that 
 case, which are manifestly wrong, and against common sense. 1st, A man resigns upon condition that a new 
 grant may be made in favour of particular heirs ; the Lords say he has lost his fee, and the King may keep it ; 
 and, 2ndly, They say a Peerage might be surrendered without the King's leave. I therefore pay no regard to 
 that decision. It has been said the King was present, but I rather think it was the Lord Advocate on behalf of 
 the King* I hold the case of Lovat as a good authority, though there was a difference of opinion among the 
 Judges. The case was long argued, and maturely considered. At least, I hold it to be as good authority as that 
 of Oliphant. The gentleman who argued the case of Lovat, Mr. Duncan Forbes, afterwards President of the 
 Session, was strongly with the determination ; and the judgment so far acquired an authority, that the Parliament 
 proceeded upon it in the trial of Lord Lovat. But let the case have what authority it may, it appears the Report 
 of the Lords of Session^ gives sanction to it in some measure. It says, that there is not any maxim established in 
 the law of Scotland, that can be applied universally to determine the descent of Peerages, when the original 
 constitution, or new grant upon resignation, do not appear ; yet, on mentioning the case of Lovat, it is added, tliat 
 they found the title descendible to heirs-male. One of the books of Eeports says, that the Court of Session 
 determined this case on the evidence that the estate was limited to heirs-male. This shows that the descent of the 
 title of honour was founded only on presumption. And as in the present case there is no proof of a limitation of 
 the title of the Earl of Cassillis, I am of opinion it ought to descend to the heir-male of David first Earl of Cassillis. 
 If so, it is necessary to consider the 2d question. Whether in this case there was a new grant, upon a Resignation, to a 
 series of heirs, so as to let in the heir-general ? And in this I shall give such reasons as fully satisfy me that I cannot 
 agree with the noble Lord who spoke before me. I have seen and considered the charters, and I take the charter 
 of 1642 to explain and illustrate the charter 1671. 
 
 In 1642 the title of honour was personal, without any connection with lands. There was no charter of 
 erection till this time ; and though the lands are in the instruments preceding this charter called the Earldom, yet 
 they were only so called in vulgar speaking. They were not erected into an Earldom at that time.lj: The instru- 
 ment of resignation runs thus : — " For establishing the fee of the estate in favour of my heirs after-mentioned." 
 Here there is no word in the resignation which has any tendency to an Earldom. The intention is to establish the fee of 
 the estate, but no word of the title of honour. Then follows, — " in favours, and for new infeftments," of what ? not 
 the title of honour, but of the lands of the Earldom. It is agreed that this charter was not signed by the King; and of 
 consequence the erection could not be good. There are many words in this charter which have a strange appearance ; 
 but these can have no weight. Chaxters ^ass periculo petentis ; many lands are inserted in charters to which the 
 grantee has no title. I take it that nothing can pass by such right. It is clear the King could grant nothing 
 BUT ivhat was resigned. Here the honours were not resigned, and therefore COULD not pass. The dispositive clause 
 does not contain any word relative to honours ; and nothing could be granted but what is contained in the disposi- 
 tive clause. The novodamus can give nothing but what was resigned, unless casualties of superiority, feus, 
 jurisdictions or privileges, immediately flowing from the King. This charter contains a clause erecting the lands into an 
 Earldom; after this follows a sweeping clause, to be enjoyed "secundum praecedentiam et prioritatem loci, illis, 
 per eorum jura legesque et praxin regni nostri Scotise, debitum et competentera." The import of this is, that what 
 
 * " Notwithstanding," observes Mr. Maidment, " Lord Mans- for Sir James and his ladle, quha is heir of lyne ; and my Lord 
 
 field's scepticism as to the case having been argued before Advooate for the King. They have taken great paines to 
 
 Charles L, there can be little doubt on the point, and the fol- prepair themselfis, swa that we think it sail be a creditable 
 
 lowing extract from a letter preserved in the Pollock charter- despitt.' " — Report of Cassillis Claim, p. 69. 
 
 chest, from William Maxwell, advocate, to his cousin. Sir John f That is, the Report vt supra, furnished in 1740. — Ed. 
 
 Maxwell of Pollock, may be considered as pretty decisive proof I Quite correct. The estate of an Earl was called a Comi- 
 
 on the subject : — ' His Majestic to-morrow is to heir a despitt tatus, even although not erected into a Comitatus. Thus the 
 
 (dispute), in the matter of the tytell of the Lord Oliphant, estate of Glencairn is called the Comitatus of Glencalrn in the 
 
 betwixt Sir James Douglas and the Lord Oliphant's brother's charter 24th July 1511 {supra, pp. xxxviii, xxxix), by which it 
 
 sone ; Mr. Lewis [Stewart] is for him, and Mr. Thomas Nicolsone was for the first time erected into a Comitatus. — Ed. 
 
APPENDIX. ^^^ 
 
 was then erected could be enjoyed only according to law. The personal title never was granted, and the old title 
 never could follow this new erection. No person can conjecture whether it related to an old or new title. I 
 won't pretend to guess what the words do mean, whether to give any rank or not ; but it is plain the title was not 
 granted. 
 
 Thus the charter 1642 can have no effect; there was no connection between the lands and the title. The 
 Earl of Cassillis might have sold the one and kept the other. The new resignation in 1671 is only relied on. 
 This resignation don't appear; but it makes no difference. The contents of it are sufficiently clear, and appear 
 two ways ; 1st, by the docquet subjoined to the signature, which makes no mention of tlie dignity ;* and, 2dly, by 
 the dispositive clause, which grants the Earldom and Lordship exactly as in 1642. M ward of tlie title of Jionmir. 
 No general words which can carry it. After the description of the lands, there follows two Qucequidems. Tlie first 
 mentions that the lands were erected by the charter 1642 ; but here it is shown there was NO distinct grant or 
 RESIGNATION OF HONOUR OR DIGNITY. Theu foUows another Qumquidem, which mentions what was resigned, and 
 this distinctly mentions that the lands only were resigned. Then follows a novodamus, which erects the lands into 
 an Earldom, as in the charter 1642 — secundum prcecedentiam et prioritatem loci, &c. The words are the same in 
 both. In the charter 16Y1, the clerk copied them exactly from the charter 1642. It is not easy to know what 
 meaning these words have, nor of another clause relating to the husband of the heirs-female assuming the dignity on 
 marrying such heir-female. If those words could carry a title of honour, it would create strange consequences. 
 At any rate, xhe title of Lord Kennedy is not in this charter. If, therefore, this charter was to operate 
 
 AS A NEW GRANT, THE TITLE OF LORD KENNEDY MUST GO ONE WAY,! AND THAT OP EaRL OF CaSSILLIS BE SEPAHATED, 
 AND GO IN" A DIFFERENT CHANNEL.| BuT IT IS NOT POSSIBLE TO BELIEVE THAT THIS COULD EVER BE INTENDED.§ 
 
 I speak with great diffidence ; but I can see no argument that can be urged from the law of Scotland to 
 oppose the construction of the charter in the way I have laid down. The charter 1671 passed when every notion 
 of territorial dignities had ceased for above a century. The whole estate might have been sold or adjudged, and 
 yet the title of honour have remained with the family. The very form of resignation, and of the new grant of a 
 dignity, was established before this time, and there were four instances read at the bar, which clearly and properly 
 conveyed the title and dignity, as separate and distinct from the lands. I remember several other instances that 
 occurred in the question with respect to the Peerage of Stair, where the dignity alone was resigned for the 
 purpose of a new grant. Many of them were about the same time with the present charter in 1671- For these 
 reasons, I am inclined to be of opinion that the charter 1671 does not grant the title or dignity. I ask pardon for 
 speaking at so great length, but the question is of great consequence." 
 
 " Lord Marchmont answered — 
 
 My Lords, I do not rise up to dispute. There are two things very material in the proceedings, which I 
 wish to mention to your Lordships. The first is the Interpretation of the charter 1671 from the charter 1642. I 
 never saw the charter 1642, so that I could not found any reasoning upon it ; all I said respected only the charter 
 1671. — The next material circumstance is with relation to the proceedings in passing of charters. I repeat what I 
 formerly said, that charters do not pass periaido petentium. By the practice of the Exchequer, they are regularly 
 examined and revised. If the Barons should neglect their duty in this particular, they are liable to forfeit their 
 office. It is true, lands may be repeated in a charter, though they no longer belong to the grantee ; but this 
 happens seldom, for as the composition paid for the charter is stated in proportion to the value of the lands, it is 
 not to be imagined that any person would pay composition for lands when they do not belong to him. I beg 
 pardon for troubling your Lordships, but it was necessary to mention this." 
 
 " Lord Mansfield replied — 
 
 The charter in 1642 was fully stated at the bar. It was indeed waved, except in so far as it served 
 to explain the charter in 1671, which recites it. I saw and read the original charter, and the instrument of 
 resignation upon which it proceeded, having been attended by the agents on both sides.- 1 stated the very words 
 of tiie charter itself." 
 
 " Lord Hardwicke spoke next, in substance as follows— 
 
 My Lords, I shall trouble your Lordships with a few words on this occasion, which I would not have done, 
 but that I find there is a difference of opinion. 
 
 There is a great deal of obscurity in the case, but no doubt one or other of the two claimants are entitled 
 to the peerage in question. The difficulty is, which by law is entitled to it? There were two questions made, 
 and both were very ably treated at the bar. I was determined to have heard the pleadings at large, but unfortu- 
 nately I was not able to attend on the last day, having been disabled by sickness. I heard, however, what passed, 
 and I find that nothing very material occurred. j , , . , 
 
 The first question is, what was the original nature and constitution of peerage, and to what heirs they 
 ought to descend, where no patent appears ? The second question is, whether in this case any alteration has been 
 
 , . . T,„ , q^T,„t Jo tn ffeneral, and the Earldom of Crawford another way— viz. to 
 
 * Vide p. 551, supra, and "°t^. ^^^p ^^^._,,+i ^eI ' fe"r/-male ; the Dukedom being moreover merely and specife- 
 
 heirs-male.— Ed. _ + A "at is, to neirs g?°«"'; frjl; , ,, jj^ i^ Earldom chamjed into a Dukedom in reward of the 
 
 prlse^nrSaTt Z^^^"^ ^L^^ :^^^ t ^^d in .der to seeniAe future services of the House of 
 
 Dukedom of Montrose was intended to go one way-to heirs- Cia^Nlord.-iii). 
 
560 APPENDIX. 
 
 made in the legal descents by a new grant ? This last depends upon the construction of the resignation and charter 
 in 1671 ; for the charter 1642 cannot be used but to assist in explaining the charter in 1671. 
 
 The first question is very large, and of great importance. If ancient peerages, where no patents appear, are 
 found to descend to the heir-general of line, it may have very extensive consequences. It is agreed that theee was 
 
 NO CREATION OF SUPERIOR PEERAGES, SUCH AS DUKES OR EAKLS, WITHOUT SOME 1VEIT LXMrTING THE DESCENT.* If nO 
 
 limitation appears then for supplying thereof, some method must be followed for discovering the heirs entitled to 
 succeed. If the instrument of limitation is lost, the Court will raise a presumption on the most probable grounds. 
 The loss of the instrument won't prevent the Court from proceeding on those grounds. — In Scotland, it appears by 
 some cases that were mentioned, that the cincture in parliament was the ceremony used ; but it does not appear 
 that it was the actual creation or constitution of the peerage. Here, in England, every constitution of a peerage 
 is supposed to be attended with a particular ceremony, though in fact that ceremony is now laid aside. In Scot- 
 land, it appears the ceremony has been particularly dispensed with, by a clause for that purpose in the patent; 
 but in England it is not so. In all creations of peerage in England, the patent bears, " Tenend. de nobis et 
 successoribus nostris sicuti nos tenemus coronam," &c., and the ceremony of the sword is always mentioned. If 
 the instrument of limitation is lost, soTue presumption must he found to regulate the descent ; and I think that pre- 
 sumption ought to arise /rom the nature of the fee. Peerages in early times were attended with offices, and were 
 certainly masculine riErs. This fmnds A presumption in favoue of the descent of the heir-male. — Another 
 presumption, when the instrument is lost, arises from the method most frequent. It appears that peerages most 
 frequently descended to heirs-male, and that the resignations were only introduced to let in heirs-female. What 
 possible occasion could there have been for a resignation, if the peerage would have gone so otherwise? There 
 has been only one instance proved of the descent of a peerage to an heir-female where no patent appeared. — 
 Therefore, where the instrument is lost, I think there is the strongest presumption m favour of the heir-male,. 
 and I think this is by much the safest method of proceeding in cases of ancient peerages. 
 
 The second question is more doubtful. I think it would be very dangerous to hold that the dignity passed 
 by the charter 1671. In England, the honours only are contained in the patent or grant. In Scotland, the 
 lands are erected into a Lordship or Earldom, and the dignity is at the same time granted. It is agreed, that by 
 the charter 1642 no honours passed, because it was a personal honour, and was not resigned — the words secundum 
 prcBcedentiam et prioritatem loci, and so forth, could not possibly carry the dignity. One cannot say what these 
 words mean. The noble Lord who spoke first said that they meant the precedency of the old peerage ; but it is 
 of no importance. As tlie honours were not granted, no precedency of peerage could be granted. There are two 
 old charters which constitute the family — the head of the Tribe or Kenkynnull. — I think this shows some note of 
 distinction or precedency, though I have not been able to discover the meaning of the word Kenkynnull — 
 possibly this may be the precedency and priority of place alluded to in the charter 1642. But this is only an 
 imaginary construction of words. The Qusequidem] of the charter 1671 says, " Qusequidem omnes terrse erectse 
 fuerunt in unum integrum comitatum, secundum cartam concess." in 1642. It is manifest this gives only such 
 right as the charter 1642 gave. Then follows another Qusequidem, which mentions that the lands only were 
 resigned. As the peerage was not resigned, it could not be granted. The Crowtst could not grant it by the 
 NOVODAMUS. And as there is no appearance of words to convey the dignity, it is impossible to say that it passed 
 by this charter. I therefore incline to be of opinion that this charter cannot operate as an alteration of the legal 
 succession, which I think is to be presumed to be in favour of the heir-male. 
 
 Eesolved, It is the opinion of this committee that Sir Thomas Kennedy has a right and title to the 
 dignity of Earl of Cassillis, as heir-male descended of the body of David first Earl of Cassillis ; and also 
 has a right and title to the dignity of Lord Kennedy, as heir-male descended of the body of Gilbert the first 
 Lord Kennedy. 
 
 Upon tlie 27th January 1762, the "Lord Willoughby of Parliam reported from the Lords Committees of 
 Privileges, to whom it was referred, to consider of the petition of William Earl of March and Ruglen, claiming 
 the titles and honours of Earl of Cassillis and Lord Kennedy, and also the petition of Sir Thomas Kennedy of 
 Colzean, Baronet, claiming the same titles and honours, with his Majesty's reference thereof to this House : That 
 the Committee had met and considered the matter to them referred, and have heard counsel for the petitioners upon 
 their respective claims ; and after debate and full consideration, heard what was offered and produced in evidence 
 by the counsel on either side, their Lordships are of opinion that the petitioner, Sir Thomas Kennedy, hath a right 
 and title to the honour and dignity of Earl of Cassillis, and that lie hath also a right and title to the honour and 
 dignity of Lord Kennedy, as heir-male of the body of Gilbert the first Lord Kennedy. 
 
 " Which report being read twice by the Clerk, was agreed to by the House. 
 
 " Resolved and adjudged, by the Lords Spiritual and Temporal in Parliament assembled, that the 
 petitioner, Sir Thomas Kennedy, hath a right and title to the honour and dignity of Earl of Cassillis, as heir- 
 male of the body of David the first Earl of Cassillis, and that he hath also a right and title to the honour and 
 dignity of Lord Kennedy, as heir-male of the body of Gilbert the first Lord Kennedy. 
 
 " Ordered, That the said resolution and judgment be laid before his Majesty by the Lords with white 
 staves." 
 
 * Thus the three Noble and Learned Lords all agree on this important point.— Ed. 
 
APPENDIX. 561 
 
 XIII. 
 
 Case of the Barony of Spynie, created m 1590— furnishing a singular and remarkable parallel 
 
 TO THAT OP THE DuKEDOM OF MONTROSE, AND ILLUSTRATING THE CLAIMANT'S ARGUMENT THROUGH- 
 OUT, BOTH AS REGARDS THE NULLITY OF THE ACT EeSCISSORY AND THE LIMITATION OF THE MONTROSE 
 
 PATENT :— With Notes of the Speech of Lord Mansfield in deciding the claim to that 
 Barony in 1785, as preserved in the Charter-chest of the Spynie representative, and 
 printed in Mr. Maidment's ' Reports,' &c.— furnishing additional proof that, by the usage 
 
 AND understanding OF THE HoUSE OF LORDS, THE DESTINATION 'HeIRS' IN A SCOTTISH PATENT OF 
 HONOUR FALLS TO BE INTERPRETED, AS HEIRS JfALE OR HEIRS GENERAL, BY THE DESTINATION OF THE 
 LANDS OR FAMILY ESTATE AT THE TIME WHEN THE DIGNITY WAS GRANTED.— NOT ADDUCED BEFORE 
 
 THE Committee of Privileges, for reasons stated supra, p. xxxviii, n. (') ; but inserted here, 
 IN order to furnish the fullest means of estimating the Claimant's pretensions to the 
 honour CLAIMED BY HIM. (Referred to supra, pp. xxxviii.)* 
 
 (No. CCXXXIV.) 
 I. Act of Annexation 159,1 —parallel to Act Rescissory 17th October 1488. 
 An Act of Parliament, entitled " Annexatioun of the temporalities of benefices to the Crown," was passed 
 on the 29th July 1587 by "oure Soverane Lord and his Thrie Estaitis of Parliament," with great solemnity, 
 precision, and fullness, annexing and incorporating, to and with the Crown, all the temporalities " quhilkis at the 
 " day and dait of thir presentis, viz. the tuentie nyne day of Julij, the yeir of God j" v° fourscoir sevin yeiris, per- 
 " tenis to quhatsumevir Archibischope, Bischop, Abbot, Prior, Prioresse, quhatsumevir uther prelate, uther 
 " ecclesiasticall or beneficit persoun," &c. " to be in all tymes heireftir takin, haldin, and reput as it wer the 
 " propertie and patrimonie of the Croun, to remane thairwith in all tyme cuming, efter the forme, tennour, and 
 " ordour of the Act of Annexatioun maid in the tyme of oure Soverane Lordis maist noble predicessour King 
 " James the Secund," &c.,— with certain specified exceptions.— ^cfo of Parliament, vol. iii., pp. 431, sqq.— 
 Nothing could be more deliberate and solemn than this Act of Annexation 29th July 1687,— a statute of great 
 length, filling several folio pages, and of a nature at once comprehensive and discriminating— and enacted 
 moreover in a time of internal peace, with concurrence of the whole Parliament of Scotland— quite differently 
 from the hasty, summary, and party Act Eescissory of 17th October 1488, the offspring of a political crisis, and 
 with which it stands, as will appear, alike in parallel and in contrast. 
 
 II. Spynie Patent 6th May 1590— parallel to Montrose Patent 18th May 1488. 
 But, notwithstanding this Act of Annexation in 1587, King James VI., by a Eoyal charter and patent, 
 dated 6th May 1590, and recorded in the Great Seal Eegister, erected the various lands and regalities which 
 formerly constituted the patrimony (including the chief castle and messuage) of the Bishopric of Moray, into the 
 free barony of Spynie— conferring moreover and granting at the same time the " titulum, honoeem, okdinem, 
 " £T STATUM MBEHi BARONis,"— that is, according to usual phraseology, and as will further appear, the title and 
 rank of an hereditary Lord of Parliament f — in favour of Alexander Lindsay, younger brother of David eleventh 
 Earl of Crawford, with limitation " hekedibds suis et assignatis " % — " qui " — that is, the patentee and his heirs 
 " nunc et imperpetuum Barones de Spynie nuncupabuntur ." This grant of the Spynie dignity, by patent 
 1590, stood, it will appear, ever afterwards, and will be found parallel with that of the Dukedom of Montrose 
 conferred by James III. on David fifth Earl of Crawford by patent 18th May 1488. 
 
 III. Due inauguration and possession — both in the Spynie case and the Montrose. 
 
 The patent in question, 6th May 1590, was manifestly in the face of and in direct opposition to the pro- 
 hibitory Act 29th July 1587, annexing the temporalities of all bishoprics to the Crown, and was thus more 
 
 * For a tabular parallel between the cases of Montrose and letter, equally authentic, addressed to Jean Lyon, Dowager 
 
 Spynie see the Analysis, supra, p. cxlv. Countess of Angus, whom Alexander afterwai-ds married, that 
 
 t The words used as above in the patent 6th May 1590 were he (King James) designed to raise him even to a higher grade 
 
 technically applied to describe the rank of a great baron, or in the peerage, inasmuch as he there says, " I ame resolute to 
 
 peer, or hereditary Lord of Parliament ; as can be proved by other " advance this mann of myne, whomfor I have nou sa lang delt 
 
 nearly contemporary charters of constitution of Scottish dignities. " vith you, to the ranke that ye vas last joyned with," — namely. 
 
 While the inauguration which followed upon the charter in that of an Earl, her deceased husband having been Archibald 
 
 question (as will be shewn immediately) proves per se that it Earl of Angus. Thus, if any doubt were entertained as to the 
 
 conferred the dignity. The grant of the Spynie peerage was in relative or precise import of the charter 1590, it would be fully 
 
 direct implement of a solemn promise made by James VI. when explained and removed by these antecedent Royal demonstra- 
 
 in Denmark in 1 589, the year preceding the grant, as expressed tions of intention on the part of the sovereign, as well as by the 
 
 in an autograph letter still extant in the Advocates' Library ; subsequent inauguration. 
 
 wherein he engages to give to Alexander Lindsay the said J "Assignatis" was a word commonly of mere sui'plusage as 
 
 " temporalitie of Murraye in a temporall lordschipp, with all to honours. 
 " honouris thareto appartening." And it appears from another 
 
562 APPENDIX. 
 
 unfavourably circumstanced than the Montrose patent 18th May 1488, which had nothing of the kind to struggle 
 ■with wlien it passed, the Act Rescissory having only been enacted five months afterwards. Nevertheless inaugura- 
 tion duly followed upon the Spynie patent, necessarily and of course including the usual ceremony of belting or 
 " cinctura gladii," on the 4th November 1590, as by the following evidence : — 
 
 i. Autograph statement by Sir James Balfour, Lord Lyon to Charles I., that the " same yeire " ( 1 590) , 
 " 4 Novembris, Alexander Lindesy, brother german to David Earll of Crauford, ves knighted, 
 " and immediatlie thereafter made Lord of our Soveraigne Lord's Parliament, and Tzam'd Lord 
 " Spynie," {Annals, MSS., Adv. Library) — thus in exact conformity to the patent : — And, 
 
 ii. Statement in the Memoirs of David Moysie, a legal contemporary, from 1577 to 1603, — that " Upon 
 " the feird (fourth) of November" (1590) "Mr. Alexander Lyndsay, brother to the Erie of 
 " Crafurde, wes maid Lord of Spynie, and with him Sir George Home and Sir James Sande- 
 " landis knichtit."- — Edit. Bann. Club, p. 85. 
 
 — This intimation of the creation of knights, together with the " naming " or nomination mentioned by Sir James 
 Balfour and Moysie, fix the above to have been the attendant investiture or inauguration, knights being invariably 
 dubbed on such occasions, as has been proved (S. Case, pp. 7 sqq., 64 ; infra, p. xxxvii), and as may be also 
 illustrated by the statement of Marjoribanks, a contemporary chronicler, who, after relating the creation of Lord 
 Ruthven as Earl of Gowrie, of Lord Maxwell as Earl of Morton, and of Lord Robert Stewart as Earl of Orkney, 
 adds that " every ane of thir noblemen at ther creation had certaine knights made, conforme to the ancient custom- 
 " of Scotland," {Annals, edit. 1811, pp. 39, 40.) — And, besides this inauguration in terms of the patent. Lord 
 Spynie took his seat in Parliament as Lord Spynie on the 6th August 1591, being then ranked, as lowest of the 
 hereditary Lords of Parliament, under the specific title of " Spynie," {Acts, vol. iii., p. 525.) And he figured 
 repeatedly in that year and in 1592, and afterwards, in the same capacity, as Lord Spynie, in the Rolls of 
 Parliament {ibid., pp. 530, 562, 593, 594, &c.), before (it is to be remarked) a confirmatory Act and regrant, 
 presently to be mentioned, in 1592 — and obviously and necessarily in virtue of the original constituting patent 
 6th April 1590 — which is indeed fully acknowledged afterwards by Crown and Parliament — there being moreover 
 no other grant in force at that time. Lord Spynie receives the same unvarying title and designation of " Lord 
 " Spynie" in all other documents and proceedings of the period. And he held the fief of Spynie in virtue of the 
 patent in full right, which was also acknowledged by Crown and Parliament subsequently. — All this is so far 
 parallel to the Montrose case, — David Duke of Montrose having been inaugurated a few days before the death of 
 James III., as proved by evidence given in the S. Case, p. 9, and infra, p. vi, by the designation of Duke of 
 Montrose applied to him subsequently to the Act Rescissory and before the regrant, and by his drawing the rents 
 of Kinclevin during the interval, as to the efiect of which the maxim nulla sasina nulla terra is conclusive. While 
 it cannot be asserted that he did not sit in Parliament previously to the regrant, and even afterwards he might still 
 ascribe his title to the original patent. 
 
 IV. The Act of Annexation 1587 inoperative — like the Act Rescissory in 1488. 
 
 Nothing therefore can be more clear, from the preceding evidence, than that the patent 6th May 1590 was 
 the valid creation of the Barony of Spynie, and that the Act of 1587 was quite null and inefficacious so far as 
 the peerage conferred by the said patent was concerned, — exactly as the Act Rescissory 17th October 1488 has 
 been proved by the Claimant to have been null and ineflScacious with reference to the Dukedom of Montrose as 
 created by the patent 18th May 1488. It appears indeed that at the time of the claim to the Spynie peerage 
 presently to be mentioned in 1785, Lord Mansfield, who decided the claim, disregarded the patent 6th May 1590 
 as a grant of peerage, and the counsel for the Claimant most unaccountably gave it up as such ; but this must 
 have been owing to the fact that the preceding evidence of full and technical inauguration was not adduced or 
 indeed likely to be understood on that occasion, and that the full and distinct recognition of the patentee as "now 
 " Lord of Spyne" and "Domino de Spynie" throughout the Act and regrant presently to be adduced — in virtue 
 solely of the patent 1590 — escaped notice. 
 
 V. Spynie grant specially excepted in a later Act 1592, and hence per se valid and sufficient. 
 
 The Act 1587 having thus proved in great measure if not wholly abortive, notwithstanding the confessed 
 solemnity and deliberation with which it passed, and the object in view being still considered most weighty and 
 important, another Act was passed, on the 5th June 1592, " concerning " (as by its title) "the erectioun of Kirk- 
 " landis and teyndis in temporall Lordschippis ; " in which it is stated that " the Kingis Majestie and Estaittis of 
 " this present Parliament, ffbr eschewing of the greit inconvenientis liklie to arryse throw erectioun of tempo- 
 " ralities and teyndis of Kirk-landis in temporall Lordschippis and levingis, to the prejudice of the Kirk and 
 " hurte of his Majestie's estait and privilege of his croun, ordanis and declairis that na erectiounes of the foirsaidis 
 " landis and teyndis maid sen the Act of Annexatioun " — that is, since the above Act in 1587 — " sal be ratifijt 
 " or gevin in this Parliament nor in na tyme heirefter ; and in cais ony erectionis happynis to be obtenit in ony 
 " tyme cuming, the Kingis Majestie and Estaittis foirsaidis declairis the same to be null and of na eflPect in the 
 " self," — after which,follows this important exception and reservation — " Exceptand alwayes " (that is to say, 
 wholly and entirely from what precedes), " lykas our said Soverane Lord and Estaittis abone writtin expreslie 
 " exceptis and reservis, all erectionis, charteris, and infeftmentis grantit " (that is, in the past sense) " be his 
 
APPENDIX. 563 
 
 Hienes, of sic pairtis and portionis of the Kir^-landis already erectit in temporall LordscUppis and Baronies 
 to SIC persounor persounes as hes alredy sen the said lait Act of Annexatioun" (that is, since the Act 1587) 
 ressamt the honoris, ordouris, and estaittis of Lordis of Parliament be the solempne forme of belting and 
 uttiens ceremonies observit in sic caissis* and hes sensyne enterit and sittin in Parliament as temporal Lordis, 
 voitvt m Parliament and Articles, ressavit and admittU to that effect."-Acts, vol. iii., p. 544. 
 It hence results, 
 
 1. That even the Act of Annexation 1587, though from its terms and compass much more solemn and 
 
 weighty than the hasty and summary Act Rescissory 1488, was but little attended to or 
 respected, grants of Church lands and erections into temporal lordships still continuing as 
 before, and being still meditated and likely to happen, which imperatively called for and neces- 
 sitated this new declaratory Act in 1592, which would have been wholly unnecessary and 
 certainly would never have taken place if tlie former had been valid and effectual. And, 
 
 2. That even this new declaratory Act did not cut down all previous erections of Church property into 
 
 temporal lordships; it excepted or protected those granted since the Act of Annexation 1587, 
 and in the very face of that Act, upon which belting, or inauguration, and a sitting in Parlia- 
 ment had obtained— within vi^hich category the erection of the temporal barony of Spynie with 
 the dignity by patent 6th April 1590 precisely came, as above shewn. 
 —On the simple principle of exceptio probans regulam, this public Act in 1592, in favour actually of the Spynie 
 patentee, proves the nullity of the Act of Annexation in 1587-the general rule being that it (the Act of 
 Annexation) was in non-observance. 
 
 The Barony of Spynie— that is, the temporal erection of the church lands of Spynie into a barony and 
 peerage by the patent 6th May 1590, upon which belting and a parliamentary sitting had duly passed, was 
 therefore fixed and legally established by this later Act 1592 per se as a valid grant and creation-the Act 1587 
 having, in the first place, been null and inept almost, if not absolutely, from its birth, and at all events never 
 having taken effect upon the said patent ; and the grant of the fief and barony of Spynie by that patent being 
 moreover specially excepted and conclusively protected in and by the said Act 1592, which admits the efficacy 
 of all antecedent temporal erections of church property that, like that of Spynie, had been followed by inaugura- 
 tion and sitting in Parliament. The patent 6th May 1590 stood therefore and stands a valid grant of peerage, 
 independently of any further sanction or authority, and could not be touched or prejudiced by anything that 
 might thereafter happen— unless by forfeiture or resignation by the patentee or his heirs— neither of which ever 
 took place. 
 
 VI. Spynie regrant by Act of James VI. with advice of Parliament 1592 and Royal charter 1593— parallel to 
 Montrose regrant by Act of James IV. with advice of Parliament and Royal charter 1489— both equally 
 superfluous, the original patents being valid and there having been no resignation. 
 
 Yet, notwithstanding this, and subsequently to the Act just quoted— (in the same Parliament, that is to 
 say, bearing the general date 5th June 1592, but at the very close of it, as the Act just quoted was at its 
 commencement— the earlier Act being the 13th and the Act now to be adduced being the 181st, and the very 
 last of the Session) — a second, posterior, and private Act of Parliament passed under the general title " Act 
 " ratifiand my Lord of Spynie's infeftment of the Lordship of Spyne, and ordaning ane new infeftment thairof 
 " to be maid, and als dissolvand the same from the Croun to that effect " — by which Act the King and the 
 Estates, having " sene, red, and diligentlie considderit the charter and infeftmentis heretable maid and grantit 
 " be his Majestic of befoir, under his Hienes' greit seill, efter his perfit aige of tuentie ane yeiris compleit, and 
 " eftir the annexatioun of all kirklandis within this realme to his Hienes' croun " (the Act 1587), . . " to his 
 " traist cusing and counsellour Alexander now Lord of Spyne, than callit Mr. Alexander Lyndsay, vice- 
 " chalmerlane to our Soverane Lord, his airis and assignais, heretable, of all and sindry the landis, lordschipis, 
 " baronies, regalities, castellis . . and utheris quhatsumevir, specifeit particularlie in the said charter, pertening of 
 " auld to the Bischoprik of Murray, . . all unitit, annexit, and incorporat be wertew thairof in ane frie barronie 
 " callit and to be callit the baronie of Spyne, . . of the dait at Halyrudhous the sext day of Maij, the yeir of 
 " God f^ vF fourscoir ten yeiris" . . "findis, decernis, and declairis that the said former infeftment was iauch- 
 
 " rOLLIE MAID AND GRANTIT TO THE SAID ALEXANDER LOHD OF SpYNE AND HIS FOIKSAIDIS," after which 
 
 they (the King and Parliament) " be the tennor heirof ratifies, apprevis, and perpetuallie confirmis the samen " 
 — reciting the patent in extenso and verbatim, and declaring " That the samen foirmer charter, infeftment, and 
 " saising was from the beginning, and sal be in all tymes cuming, gude, valiable, sufficient, and 
 
 " EFFECTUALL RICHTIS AND TITILLIS TO THE SAID ALEXANDER LORD OF SpYNE AND HIS FOIRSAIDIS for 
 
 " bruiking, josing, using, and posseding of all and sindrie the foirnamit landis, baronies, lordschip, and wtheris 
 " abone rehersit, specifeit thairintill, heretablie and perpetuallie efter the tennor thairof, notwithstanding the Act 
 " of Parliament maid vpoun the tuentie nynt day of Julij, the yeir of Godj" if fourscoir sevin yeiris, anent the 
 
 * It need hardly be observed that inaugurations did not by the respective patents) of the Marquisates of Hamilton, 
 
 require in Scotland to be in Parliament, though sometimes Huntley, and .Douglas, and the Earldom of Ancrum, in the 
 
 occurring there; nor does the Act 1592 any way imply this. reigns of James VI. (of Scotland) and Charles I., &c. &c. {S. 
 
 They might take place just as well out of Parliament, at the Case, pp. 7, 8, 154.)— Hence the silence of the Scottish Parlia- 
 
 King's palace, or elsewhere, as distinctly proved by the inaugu- mentary records as to the Spynie inauguration or " act of 
 
 rations or " acts of creation " (backed and waiTanted moreover " creation" is quite immaterial. 
 
 4 C 
 
^4: APPENDIX. 
 
 " foirsaid annexatioun of all kirklandis within this realme to his Majesties croun, and of all his Hienes' 
 " revocationis speciall and generall, (fra the quhilk our Soverane Lord and Estaittis foirsaidis decernis and 
 " declairis the said former infeftment to be now and in all tymes cuming expreslie exceptit)." — After which the 
 Act dissolves the lands mentioned in the patent 6th May 1590 from the Crown " sa far as [they] micht 
 " have fallin under the said Act of Annexatioun" (that is, of course, if it had been effectual or had been 
 applied) ; and then proceeds to grant them de novo, — " Lykas our Soverane Lord, with avise and consent of the 
 " foirnamit Estaittis, be the tennor heirof . . of new gevis, grantis, and disponis to the said Alexander Lord of 
 " Spyne and Dame Jane Lyoun, Countes of Angus, his spous, the langest levar of thame tua, in conjunct fie, 
 " and to the airis lauchfullie gottin or to be gottin betuix thame, quhilkis failzeing, to the narrest and lauchfull 
 " airis maill of the said Alexander Lord of Spyne quhatsumevir, and thair assignais, heretablie, all and sindrie 
 " tlie foirnamit landis, baronies, and wtheris abone rehersit, specifiet in the said former infeftment, . . to be all 
 " unitit, annexit, and incorporat . . in ane temporall lordschip and baronie callit and to be callit in all tymes 
 " cuming the said lordschip and baronie of Spyne ; And gevis and grantis to the said Alexander Lokd op 
 " Sptne and his foirsaidis the honor, kstait, dignitie, and preeminence of ane trie Lord op 
 " Parliament, to be intitulat Lordis of Spyne in all tyme cuming, with all privilegis belanging 
 " THAiRTo." — And the Act ends by ordering a new charter and infeftment to be passed under the Great Seal 
 " thereupon," " to the said Alexander Lord of Spyne, his spous abone nominat, and thair foirsaidis, . . quhilk 
 " new infeftment sua to be past his Hienes and Estaittis abone mentionat decernis and declairis to be sufficient, 
 " valiable, and efFectuall in all tymes cuming," — though not of course to the exclusion or depreciation of the 
 original charter or patent 6th May 1590, and the infeftment and seisin thereupon, previously declared to have been 
 " lauchfullie maid and grantit to the said Alexander Lord of Spyne," and as such ratified and " perpetuallie " 
 confirmed, and which, it is further expressly stated, as above, " was from the beginning, and sal be in all tymes 
 " cuming, gude, valiable, sufficient, and efl^ectuall richtis and titillis to the said Alexander Lord of Spyne and 
 " his foirsaidis," and must necessarily, as earlier documents, take precedence. — Acts, vol. iii., pp. 650, sqq. 
 
 This Act of Parliament was followed up accordingly, in compliance with the preceding command, by a 
 Royal charter under the great seal, dated the 17th April 1593, and recorded in the Great Seal Register, in 
 complete conformity wilh the Act in question ; and which, after stating that the King, " post nostram legitimam 
 " et perfectara etatem viginti quinque annorum completam, et omnes nostras revocationes tam speciales quam 
 " generales, dedisse, concessisse, disposuisse, et hac presenti carta nostra confirmasse . . predilecto nostro consan- 
 " guineo et consiliario Alexandre Domino de Spynie ac Domine Jeanne Lyoun Comitisse de Angus, sue sponse, 
 " eorumque alteri diutius viventi, in conjunct^, infeodatione, et heredibus inter ipsos legitime procreatis seu 
 " procreandis, quibus deficientibus, legitimis et propinquioribus heredibus masculis dicti Alexandri Domini de 
 " Spynie quibuscunque, et suis assignatis, hereditarie, omnes et singulas terras, dominia, baronias, regalitates," 
 &c. . . "jacentes infra diocesim de Murray ac olim Episcopatui ejusdem tanquam partes patrimonii ejusdem 
 " pertinentes," proceeds as follows : — " Qcequidem tote et inlegre predicte terre et baronia de Spynie, ut dictum 
 "est . . perprius prefato nostro consanguineo et consiliario Alexandro Domino de Spynie, virtdte anterioris 
 "carte et infeopamenti sibi suisque heredibus et assignatis de eisdem per nos, post nostram legitimam et 
 " perfectam etatem viginti unius annorum, sub nostro magna sigillo, de data sexto die mensis Maij, anno 
 " Domini millesimo quingentesimo nonagesimo, facte et concesse, hereditarie pertinuerunt "■ — this 
 being the actual original Spynie charter 1590 ; "Et qdas ipse, per procuratores ad hoc legitime constitutes, et 
 " literas suas patentes, ?Vj manibus nostris tanquam in manibus sui immediati superioris earundem, apud 
 " * sursum reddidit ac per fustim et baculum pure et simpliciter resignavit, ac totum jus et clameum, 
 
 " proprietatem et possessionem, que et quas in eisdem habuit, habet, vel quovismodo in futurum habere potuit, 
 " omnino quiete clamavit imperpetuum, Pro hac nostrS. novI cartA et infeodatione prefato predilecto nostro 
 " consanguineo et consiliario Alexandro Domino Spynie, sue sponse predicte, eorumque heredibus et assignatis 
 " supra specificatis, ^jer nos nostro sub magno sigillo de eisdem iterum, in debitd et competenti forma, dandI et 
 ■' conpiciendA." — After which the King regrants them as follows, — " Ideo . . de novo damus, concedimus, et 
 " disponimus, ac pro nobis et successoribus nostris pro perpetuo confirmamus, prefatis nostro predilecto consan- 
 " guineo et consiliario Alexandro Domino de Spynie et Domine Jeanne Lyoun Comitisse de Angus, sue sponse," 
 &c. &c. " totas et integras predictas terras," &c. — and with the following distinct and separate addition, 
 "Dando et concedendo dicto nostro predilecto consanguineo et consiliario Alexandro Do- 
 " MiNO DE Spynie, suisque heredibus et assignatis suprarecitatis, titulum, honorem, ordinem, et 
 " statum liberi Baronis et Domini nostrorum Parliamentorum, qui Domini de Spynie omni tempore 
 " apputuro nuncupabuntur et intitulabuntuk." 
 
 It is evident, on consideration of these two documents, the second Act 1592 and the Royal Charter 1593, 
 regranting the fiefs and peerage of Spynie, 
 
 1. That, as the earlier Act 1592 "concerning the erectioun of kirk-landis and teyndis in temporall 
 " lordschippis," passed in order to compensate for the inefficiency of the Act of Annexation 1587, 
 had already effectually excepted the creation of the Barony of Spynie by patent 6th May 1590, 
 as already shewn, there coidd be no possible pretence of any flaw or deficiency in the original 
 Spynie right to account for the Eegrant by King and Parliament and Royal charter just 
 adduced — which nevertheless passed — the former, or Act of Parliament, explicitly recognising 
 
 * Left blank in the original, as of minor importance, according nation never being omitted, as shewn at large in the " S. Case," 
 to frequent careless practice m Scotland,— the /aci itself of resig- p. 101. 
 
APPENDIX. 565 
 
 the right of the King to grant the patent 1590 and the validity of that patent, and both the Act 
 and the Charter fully and repeatedly recognising the patentee as " Alexander now Lord of 
 "Spyne" and " Alexandre Domino de Spynie" under that patent. 
 
 2, That in the Royal charter 17th April 1593, the Crown, the best possible authority, directly admits 
 and testifies that Alexander Lord Spynie had duly and lawfully possessed the fief of Spynie 
 previously — " quequidem . . terre et baronia de Spynie . . perprius . . Alexandre Domino de 
 " Spynie virtute anterioris carte et infeofamenti sibi suisque heredibus et assignatis de eisdem 
 " per nos . . sub nostro magno sigillo, de data sexto die raensis Maij, anno Domini millesimo 
 " quingentesimo nonagesimo, facte et concesse, hereditarie pertinuerunt " — thus explicitly 
 grounding his hereditary right on (he Spynie charier 6th May 1590, in the very face of the 
 prohibitory Act of Annexatian 1587 : — And not only so, but the Eoyal charter specially states 
 that the above fiefs had been formally resigned — "pure et simpliciter resignavit" — into the 
 King's hands, with all due ceremonies, "pro hdc nostra, nova carta et infeodatione prefato . . 
 "Alexandre Domino de Spynie" &c. "iterum, in debitsl et competenti forma, dandd et 
 " conjicienda," — additionally proving that Lord Spynie was the proprietor by right of the fiefs 
 in question up to the moment of his resignation — apart from which resignation he could not haye 
 been denuded of them, and which resignation was the sole warrant for the new charter ; and that 
 the Crown lawyers, however anxious to maintain the principle of the illegality of the alieilStien 
 of Church property from the patrimony of the Crown, did not consider the warrant in the Act 
 1592 alone as sufficient, but found it imperative to have recourse to the cardinal step of a 
 resignation by Lord Spynie, though not mentioned or contemplated in the Act 1592. Tlie 
 resignation by Lord Spynie was thus clearly and distinctly the warrant for the regrant; and the 
 charter 1593 additionally proves thereby that the patent 1590 was valid and effective in the face 
 of the Act 1587 — thus a mere brutum fulmen, though far superior in every way to the Act 
 Keseissory 1488. The new charter 1593 is an echo of the original charter 1590 (the limitations 
 in the latter being actually the same as in the former), and must be regarded therefore as a 
 simple confirmation on the principle accumulandi jura juribus. — And, lastly, 
 
 3. That, while \hefiefs were thus resigned by Alexander Lord Spynie for the preceding new charter, 
 the dignity or peerage of Spynie was not resigned by him; and therefore must be held still to 
 descend in terms of the original patent 6th May 1590, in conformity with the acknowledged and 
 obvious principles of peerage law — by which the most distinct and articulate mention must be 
 made of honours, quite apart from fief or lands, in order to carry them in a resignation. [S. 
 Case, pp. 12, 13 ; supra, p. viii.) Yet, notwithstanding this non-resignation, the dignity and 
 peerage of Spynie is literally carried in the de novo clauses of the charter 1593 — " Dando et 
 " concedendo . . Alexandre Domino de Spynie," &c. " titulum, honorem, ordinem, et statum 
 " liberi Baronis et Domini nostrorum Parliamentorum, qui Domini de Spynie omni tempore 
 " afiuturo nuncupabuntur et intitulabuntur " — although such regrant in the absence of a resignation 
 was quite supererogatory, futile, and inoperative. The regrant in question therefore shews that 
 
 A PEERAGE LAWFULLY GRANTED, ACTUALLY ENJOYED, DULY RECOGNISED, UNCHALLENGED 
 ON ALL HANDS, AND UNCHALLENGEABLE, like that of Spynie in 1590, MIGHT BE REGEANTED 
 A SECOND TIME BY THE KiNG, WITH ADVICE OF PARLIAMENT, WITHOUT ANY IMPEACHMENT 
 OF THE VALIDITY OP THE ORIGINAL CREATION; AND ALSO THAT SUCH REGRANT MUST HAVE 
 BEEN MERELY AND a fortiori A CONFIRMATION BY THE KiNG, WITH ADVICE OP PARLIAMENT, 
 
 OF A PREVIOUS VALID RIGHT ON THE PRINCIPLE accumulundi jura juribus, as in the similar 
 instances adduced and founded en by the Claimant. It must now be abundantly clear that Lord 
 Mansfield was quite mistaken in holding, and the counsel for the Spynie family in admitting, that 
 the patent 6th May 1590, on which inauguration and parliamentary sitting duly followed, did not 
 carry the honours — the validity of that patent being admitted by the Crown and Parliament in 
 1592 and 1593, and the patentee in 1590 not having resigned the peerage. 
 
 The Claimant need hardly point the parallel here to the Montrose case — in which an Act of the King, with 
 advice of Parliament, passed on the 18th Sept. 1489, unmistakeably referring to the original Montrose patent 18th 
 May 1488, regranting both fief and peerage " de novo" in terms (as shewn by flie Claimant) implying an here- 
 ditary grant, and ordaining a charter to be executed "super premissis" or in conformity therewith ; which was 
 accordingly passed on the following day, the 19th September 1489, though a brief, hurried, and obscure 
 memorandum of it is all that has been preserved— but which charter must, by the Claimant's argument elsewhere 
 and by analogy with this new and parallel case of Spynie, have been merely a confirmation and echo of the original 
 patent, or else null and void — the Act Rescissory net liaving taken effect on that original patent, Duke David 
 never having been forfeited, and there having been no resignation. The argument here is afortipri in favour of 
 the Claimant, for while the Act Rescissory might (if applicable at all to honours, which the Claimant denies) have 
 been applied up to the very moment of the Montrose regrant 18th September 1489, the Act of Annexation 1587 
 could not possibly be applied to the Spynie creation through the exception in the public and previous Act of 
 1592, which jaer se legalized that creation. And yet, notwithstanding this, the regrant by Act of Parliament and 
 Royal charter 1592 and 1593 took place. Much more therefore might such subsequent regrant by Act of 
 Parliament and Royal charter have taken place in the Montrose case— although indeed quite superfluous. 
 
 4 2 
 
566 APPENDIX. 
 
 VII. Belting, which followed upon the original Spynie grant, did not follow upon the second, the original grant 
 
 being sufficient and effectual. 
 
 The Claimant has elsewhere proved, both by legal authority and numerous precedents {S. Case, pp. 64 sqq. ; 
 supra, pp. Ixiv, 555 sqq.), that the theory of a peerage being constituted by mere ' belting ' is quite modern and 
 wholly unfounded and untenable — belting having been simply a formality, which, with other ceremonies, such as the 
 creation of knights, &c., accompanied and constituted the " act of creation " or inauguration— as in fact is clear 
 from the phraseology of the first or public Act of Parliament in 1592, above cited. Lord Mansfield, who, as will 
 presently be shewn, decided the claim to the peerage of Spynie in 1785 against the heir female who then claimed 
 it, gave force to belting or the " act of creation " in the Spynie instance as an alternate ratio decidendi for deciding 
 in favour of the heirs male — therein departing from his earlier and sounder opinion, as expressed, in concurrence 
 with Lord Marchmont and Lord Hardwicke, in the Cassillis claim in 1762 — in conformity moreover with all 
 ancient precedent, authority, and fact — that " there was no creation of any Earl or Lord of Parliament without 
 " some charter or writing."* It is important therefore to state here, that, while belting or inauguration, with all 
 the highest forms and solemnities, special sitting in Parliament, and adoption there and everywhere else by the 
 patentee at the critical time of the title and appellation of Lord Spynie, duly followed upon the patent 6th May 
 1590, which contained also explicit and hereditary limitation of the dignity, these material forms and acts did 
 NOT obtain nor were repeated in 1593 — ^evidently because the regrant of the peerage was merely supererogatory, 
 from want of a resignation as stated. The Barony of Spynie was therefore created, or heritably constituted, not 
 by belting, but by the patent 6th May 1590 ; and that patent was the sole and regulating one, and duly transmitted 
 the honom — not a vestige of any other, or of what by any construction could heritably pass the dignity, being any- 
 where discoverable. 
 
 VIII. Alienation of the Spynie fief did not affect the descent of the peerage. 
 
 It has been shewn that ihefiefoi Spynie was truly and legally carried, as well as the dignity, by the original 
 Spynie patent 6th May 1590, and that it was regranted, on the resignation of the patentee for that special purpose, 
 by the second patent or charter I7th April 1 593. But the same patentee, Alexander first Lord Spynie, subsequently 
 resigned it to the Crown on the restoration of Episcopacy by James VI., as narrated in a Royal charter by that 
 monarch, 26th July 1621, presently to be mentioned, in favour of Alexander second Lord Spynie. the son and heir 
 of the patentee, substituting other lands for the fief in question, and which were to receive the appellation and 
 style of the Barony of Spynie — but under reservation at the same time of the peerage, which neither then nor at 
 any previous period had been resigned, and which was to stand and descend as before, — the new lands and the old 
 title falling to descend together according to the infeftment of Alexander first Lord Spynie and his creation as a 
 temporal peer, — that is, as explained in the charter 1621, to the "heredibus masculis" of the patentee. The 
 honour descended accordingly, in virtue of the original creation in 1590, but apart from the original fief, to the 
 patentee and his descendants, precisely as it has been proved that the Earldom of Glencairn continued to exist in 
 the Cunninghams, although it was discovered that the lands of Drummond and Duchray granted by James HI. 
 along with it had not been competently conveyed by the patent {S. Case, pp. 66 sqq., and supra, pp. xxxix. sqq.) ; 
 and that the Earldom of Bothwell continued in the Hepburns, although the barony from which their Earldom was 
 derived was alienated almost immediately after its elevation into an Earldom {S. Case, p. 75 ; supra, p. cxiv). 
 Much less therefore (to apply this additional parallelism to the present case) can the non-succession of Duke 
 David's heirs to the fiefs granted with the Dukedom of Montrose (whatever might be the cause of that non- 
 succession) be considered as implying a cessation of the honour. The rule reddendi singula singulis here applies, 
 as elsewhere shewn. 
 
 IX. " Heirs " in the Spynie patent explained by James VI. in 1621 aw heirs male, and also so interpreted by the 
 
 House of Lords in the Spynie claim in 1785. 
 
 The peerage or barony of Spynie, thus created in the person of Alexander first Lord Spynie by the patent 
 6th May 1590 — quite independently of the superfluous de novo grant in 1593, which at the same time recognised 
 and confirmed the original creation — descended, on the death of the grantee in 1607, to his son Alexander second 
 Lord Spynie, then a minor, who was not served heir to his father until the 8rd March 1621 ; and from him to his 
 surviving son George third Lord Spynie, who died without issue, — when the whole male descendants of Alexander 
 first Lord Spynie, the patentee in 1590, became extinct. The remnant of the property and the representation of 
 the family as heirs of line then devolved on the family of Fullarton, as descended from the marriage of Margaret 
 Lindsay, sister of the last Lord, to William Fullarton of Fullarton. 
 
 The Claimant comes now to a very important point in the Spynie case, as illustrating that of Montrose, con- 
 sisting of, t 
 
 i. Proof that the destination to " heirs " and " heirs of the body " in the Spynie patent 1590, in the Act 
 of Parliament 1592, and in the second charter 1593, implied to "heirs male," — as testified by 
 James VI., the very monarch who conferred the title. And, 
 
 * Vide supra, pp. 555 sqq. 
 
APPENDIX. 
 
 567 
 
 ii. Proof that Lord Mansfield and the House of Lords held in the claim to this very Spynie peerage 
 in 1785, that (independently of the theory of creation by belting and its supposed consequences) 
 the destination " heirs " fell to be interpreted, as heirs mai,e or heirs general, by the destination 
 of the lands or family estates at the time when the patent was granted : — 
 
 — Both these conclusions being precisely in accordance with and confirmatory of the Claimant's argument in the 
 present case. 
 
 Tn 1784, William Fullarton, Esq. of Glenquich, the lineal representative and heir of line of the first Lord 
 Spynie, claimed the Barony of Spynie under the preceding patent of 1590, the Act with advice of Parliament 1592, 
 and the second charter 1593 to " heirs " and " heirs of the body " of the said first Lord, the patentee,— within which 
 category Mr. Fullarton distinctly stood. He presented a printed Case in support of his claim. The Crown 
 responded by another printed Case or Memorial, containing charters referred to by the Crown to shew that the family 
 estates of the House of Spynie were devised to heirs male, — the object being, of course, precisely as in the present or 
 Montrose instance, to ascertain, fix, and explain the technically flexible import of "heirs of the body" and " heirs" 
 (there being no essential distinction here) in the patent 1590, the regrant with advice of Parliament 1592, and 
 Royal charter 1593, founded upon by the Claimant, — or, in other words, to prove regularly and ex necesiitate, 
 
 THAT " HEIRS " IN THE ABOVE MUST BE RENDERED, EXPLAINED, AND CONTROLLED BY THE LIMITATION IN 
 
 THE CHARTERS OP THE LANDS, viz. to denote heirs MALE, — this being precisely the same argument as that 
 maintained by the present or Montrose Claimant — although the presumption that such would be the case is 
 immeasurably stronger in the Montrose instance, from the professed object of the Crown in granting the Dukedom 
 being to secure the assistance of the Crawford family, the whole of whose estates were strictly entailed on heirs 
 male whomsoever : while this object was to be effected — not, as in the usual manner, by conferring (strictly 
 speaking) an additional honour — but by changing (" mutantes ") the Earldom — which descended with the 
 estates to heirs male — into a Dukedom — as stated in the patent 18th May 1488.* 
 
 * This Case or Memorial for the Crown in the Spynie claim 
 is here subjoined verbatim, both as shewing the line of argument 
 maintained by the Crown, and which was adopted by Lord 
 Mansfield, among other rationes, in his decision I8th April 1785, 
 and as proving that even the destinaticn of contemporary and entirely 
 extraneous baronies was referred to in the question. The notes are by 
 the present (or Montrose) Claimant. 
 
 "BEFOKE THE LORDS COMMITTEE OF PRIVILEGES IN 
 THE MATTER OF THE CLAIM OF WILLIAM FULLAR- 
 TON, ESQUIRE, TO THE TITLE AND DIGNITY OF LORD 
 SPYNIE. 
 
 " Charters referred to on the Part of the Crown, to shea that the 
 Family Estate was understood to be devised to Heirs Male. (') 
 
 " Carta Alexandri domini SPYNIE. C) [B. 44. No. 217.] 
 " Jacobus &c. Dedisse &c. predilccto nostro consanguiueo & consili- 
 ario Alexandro domino Spynie heredibus suis masculis etlassigTUitis 
 quibuscunque hereditarie totam et iategram villam et terras de Burne- 
 syde, (°) cum domibus edificiis hortis pomariis partibus pendiculis et 
 pertinen. earundem quibuscunque jacen. infra vicecomitatum nostrum 
 de Forfar necnon advocationem donationem & ejus patronatus omnium 
 et singularum ecclesiarum parochialium ac beneficiorum subscript, 
 viz. ecclesiarum de Auldeame &c. Quequidem villa terreque de 
 Burnesyde cum pertinen. suprascript. ac advocatio donatio & jus 
 patronatus omnium et singularum dictarm ecclesiarum rectoriarum 
 vicariarum aliorumque partioulariter suprascript. ad prefatum Alex- 
 andrum dominum Spynie perprius hereditarie pertinuerunt quas etiam 
 & que ipse Alexander dominus Spynie per sues procuratores &c. resig- 
 navit sursum dedit & extradonavit in favorem ipsius dicti Alexandri 
 domini Spynie & pro nostro novo infeofamento liereditario sibi suisq ; 
 heredibus masculis & assignatis prescriptis &c. 
 
 " Penultimo Februarij 1606. 
 " Carta Alexandri domini Spynie. C) [E. 50. No. 138.] 
 " Jacobus &c. Dedisse &c. Predilecto nostro consanguineo Alex- 
 andro domino de Spynie heredibus suis masculis ^ assignatis quibus- 
 cunque hereditarie totas & integras terras de Carrestoun vocat. 
 Fuirdtown cum turre fortalicio &c. (") quequidem omnes & singule 
 terre aliaq; prescript. &c. ad Magistrum WiUielmum Forbes de 
 Craigievar perprius hereditarie pertinuerunt per ipsum de nobis im- 
 mediate tent. Et quas prefatus Magister Willielmus Forbes per 
 suos legittimos procuratores &c. resignavit &c. in favorem proque 
 novo nostro infeofamento carund. per nos nostro sub magno sigillo 
 prefato Alexandro domino de Spynie heredibus suis masculis & assig- 
 natis antedict. &c. 
 
 ° Incontestably to infer and corroborate the male descent of the 
 Spynie dignity. 
 
 k First Lord Spynie, who died in 1607. The references in brackets 
 are to the volumes of the Great Seal Register, and are on the margin 
 in the original. 
 
 ' Thus only of the lands of Burnesyde, with no reference to the fief 
 or title of Spynie. 
 
 ■< The second Lord Spynie. 
 
 ' Not connected with the fief or title of Spynie, and what is still 
 more remarkable, only an acquired property or novum feodum in 
 1623. 
 
 " 19no Martii 1623. [B. 50. No. 274.] 
 " Carta Alexandri domini Spynie {') ^ suifilij terrarum de Ley is. 
 " Jacobus &c. Dedisse &c. Predilecto nostro consanguineo Alex- 
 andro domino Spynie in vital! redditu duran. omnibus sue vite diebus 
 & Alexandro magistro de Spynie ejus filio legittimo natu maximo & 
 heredibus MASOULis de corpore suo legittime procreand. quibus de- 
 Bcient. Georgio Lindsay ejus fratri gennano filio legittimo secundo 
 genito dicti Alexandri domini de Spynie & heredibus masculis de 
 corpore suo legittime procreand. quibus deficien. prefato Alexandro 
 domino de Spynie suisque legittimis propinquioribus heredibus MAS- 
 CULIS & assignatis quibuscunq. hereditarie omnes & singulas terras 
 nuncupat. terras dominicales de Leyis cum manerie hortis pomarijs 
 &c. quequid terre aliaq ; predict, cum pertinen. ad prefatum Alexan- 
 drum dominum de Spynie perprius heriditarie pertinuerunt per ipsum 
 de nobis immediate tent. Et quas ipse per suos legittimos procura- 
 tores &c. resignavit &c. 
 
 " 28vo Aprilis 1624. [B. 53. No. 105.] 
 " Carta Alexandri domini Spynie (e) terrarum ^ baronie de Finiven. 
 " Carolus &c. Dedisse &c. Predilecto nostro consanguineo Alexandro 
 domino Spynie & heredibus MASCULIS de corpore suo legitime pro- 
 creatis sen procreandis quibus deficicntibus predilecto nostro con- 
 sanguineo Georgio Comiti de Crawfurd & heredibus MASCULIS de 
 corpore sno legittime procreandis quibus deficientibus legittimis & 
 propinquioribus heredibus MASCULIS & assignatis dicti Alexandri 
 domini Spynie quibuscunque hereditarie totam & integram baroniam 
 de Fineven &c. 
 
 " 22'!'' Januarij 1631. [E. 37. No. 420.] 
 " Carta Jacobi Colvill de Eister Wemis. ('') 
 " Jacobus &c. Dedisse &c. nostro dilecto servitori Jacobo Colvill de 
 Eister Wemis & heredibus masculis de corpore suo legittime pro- 
 creatis seu procreandis quibus deficien. propinquioribus & legittimis 
 heredibus suis masculis quibuscunque cognomen & arma de Colvill 
 geren. Omnes & singulas terras dominia baronias molendina multuras 
 silvas piscationes parcas nemora maneries decimas garbales canas 
 custumas carbones carbonaria & alias subtus specificata cum omnibus 
 libertatibus jurisdictionibus & privilegiis earundem que ad monas- 
 terium de Culross & patrimonium ejusd. juste pertinuerunt. Et 
 quod in quorum possessione abbates & conventus prcefati monasterii 
 quovis tempore preterite fuerunt viz. totam & integram maneriem 
 de Culross ab antique vocat. The abbay of Culross cum turribus &c. 
 quasquidem omnes & singulas terras &c. ex cerfa scientia & motu 
 proprio annexavimus & in unam temporalem baroniam omni tempore 
 affuturo cum titulo ^ nomine baronie de Culross nuntyupandam dando 
 & cocedendo memorato Jacobo Colvill heredibus suis mascuhs assig- 
 natis pra3scriptis titulum honorem & statum liberi baronis ratione diet. 
 terrarum similiter & adeo Ubere sicuti aliquis alius bare infra regnum 
 nostrum habuit habet vel quovis tempore precedente habere poterit. 
 Et volumus quod ille honorabitur cum diotione he badge & armis li- 
 
 ' Still the second Lord Spynie. 
 
 e Still the second Lord Spynie. Adduced like the others to shew 
 the general preference of heirs male in the Lindsay family. 
 
 ** To illustrate a further argument — from the precedent of a barony 
 in a family distinct from but similar to that of Spynie being in like 
 manner limited to heirs mxile only. 
 
568 APPENDIX. 
 
 The claim to the Spynie Peerage was argued before and decided by Lord Mansfield against the Claimant, or heir 
 female, on the following rationes decidendi, as appears from the excerpts which have been transmitted of his Lord- 
 ship's Speech in the claim, on the 1 5th April 1785, as preserved in the Charter-chest of the Spynie Claimant:— 
 
 " 15 4pr« 1785. 
 
 " The Ci-aimant founded on Charter 1590 by petition and case— now admitted 
 " THAT THIS Charter has nothing to do wits peerage. No other instrument of original 
 
 " CREATION APPEARS. AcT 1592 REFERS TO A PeERAGE EXISTING — CHARTER 1593 DOES THE 
 
 "same — Charter 1621 does the same — none of them original. 
 
 " Honour created by Belting, witbovt writing or mention of descent. Lord Spynie 
 " SAT IN Parliament before Act of Eatification. 
 
 " His Lordship referred to the Act 1592, c. 121, respecting belting. "Whereter 
 
 " LIMITATION OP A PEERAGE DOES NOT APPEAR, ESTABLISHED RULE NOW FIXED AND SETTLED, 
 " THAT PRESUMPTION IS IN FAVOUR OF BEIRS-MALE OF TBE BODY. So DECIDED IN CASE OF CaS- 
 " SILLIS, AND ANXIOUSLY ADHERED TO EVER SINCE. In SUTHERLAND CASE, THE CONTRARY 
 
 " rule of descent proved. 
 
 " Principle here is descent to heirs male, but does not best here. Instruments 
 " produced taken to eeirs-male. act 1592, and charters 1593 and 1621. 
 
 " Highly improbable title should in this manner go to a daughter — niece dis- 
 " inherit her uncle. 
 
 " Several grants appear, to father and son — all to males. 
 
 " No pretence fob a new creation. 
 
 " By 1621 no variation intended either to lands or honours. Then only one 
 " son. New lands to be added, and then general words extending to the honours 
 " new lands. expressly to eeirs male." 
 
 On the early portion of these rationes the Claimant has but little to observe, and would simply refer to the 
 preceding narrative and proof. Lord Mansfield admits that the Peerage was "existing" in 1592, 1593, and 
 1621, but denies that the Charter 1590 was the instrument of creation, and attributes that creation to " Belting, 
 " without writ or MENTION OF DESCENT." Lord Marchmont, Lord Hardwicke, and Lord Mansfield himself laid 
 it down in the Cassillis claim in 1762, that the idea of creation by Belting alone was a fallacy, and that no peerage 
 could be created without a charter or patent ; and the Claimant has shewn above that the Charter 1590, 
 misapprehended by Lord Mansfield, was the Charter or Patent creative of the Spynie Peerage. Lord Lough- 
 borough fell into this same error in the Glencairn instance in 1797.* 
 
 The nature and effect of the Act of Parliament 1592, c. 121, referred to by Lord Mansfield, have been 
 also explained supra, p. xxxviii, n. *. 
 
 It may be observed that the rule that the presumption is in favour of heirs male of the body wherever the 
 limitation does not appear, alluded to by Lord Mansfield, is not very consistent with his doctrine of creation by 
 belting ; because the whole weight of the argument based on that doctrine, as advanced by counsel and repudiated 
 by the House in 1762, was this, that the primitive mode of creation, before' patents were introduced, after the 
 middle of the sixteenth century, was by belting, and that dignities conferred by belting descended solely to heirs 
 male of the body. If this were correct, the mere fact of a peerage having been created by belting would per se 
 evince the limitation; and the presumption of law on which the Cassillis decision went would be superfluous and 
 inapplicable. But the discrepancy in question is immaterial in the present case. 
 
 Lord Mansfield then adds, " Principle here is descent to heirs male — but does not rest here." He 
 proceeds to introduce a sounder argument, viz. that derived from reference to the family investitures — of which 
 he enumerates, first, the following, directly appertaining to the title and the estates of Spynie, — 
 
 " Instruments produced, taken to heirs male, Act 1592, and Charters 1593 and 1621." 
 
 Here then Lord Mansfield evidently construes the import of the limitation in the Act of Parlieunent 1592 
 (disregarding, as stated, the patent 1590) and in the charter 1593, viz. to "heirs" — as above shewn — as having 
 been to heirs male ; while the charter of 1621, also alluded to and founded upon, will be discovered to open a new 
 and additional illustration in the present Claimant's favour. 
 
 beri baroiiis prout congrai in posterum barro de Culross appellandus. Ac etiam erexisse & in unum integrum & liberum temporale dominium 
 
 Et quod dictus Jacobus Colvill de Eister Wemis heredes & successores 4' baroniam prefato domino Jacobo Colvill de Eister Weymis militi 
 
 3ui Barones de Culross Tocabuntur &c. suisq ; heredibus masoulis predictis dominium & baroniam de Culross 
 
 "20 Junii 1589 FD 46 No 211 ''™°' tempore affuturo nuncupand. ao dando et concedendo prefato 
 
 .„,',' • ^ • -J domino Jacobo suisq; heredibus MASOULIS pi-edictis iitulum or- 
 
 " Carta dovum Jacobi Colvill de Eister Weymis mihtis domini ^inem honorum dignitatem & statum unius liberi baronis & domini 
 
 de Culross. {) nostri parliamenti onmi tempore affuturo dominos de CwZross nuncu- 
 
 " Jacobus &c. Dedisse &c. predilecto nostro fideli & familiari serri- pandos &c. 
 
 tori Domino Jacobo Colvill de Eister Wemys militi suisq ; heredibus " 20mo. Jan. 1609." 
 MASCtJLIS de corpore suo legittime procreatis seu procreandis Quibus 
 
 deficientibus suis legittimis & propinquioribus heredibus MASODLis * The Lord Chancellor and Lord St. Leonards have, in 1853, 
 
 quibuscunque cognomen & Arma de Colvill gerentibus heriditarie. distinctly intimated their adherence to the ancient and sound 
 
 Totam et integram villam et terras de Culross cum domibus edificiis &c. doctrine of 1 762, and have repudiated the idea of a creation by- 
 belting, as may be seen supra, pp. 342, 363, 371. They dissent 
 
 therefore from Lord Mansfield's view as to the Spynie creation, ex- 
 ■ A regrant of the Colville or Culross barony, to the same effect, and pressed in 1785, and from Lord Loughborough's opinion in 1 797, 
 adduced for the same pui-pose. at least as understood and represented by the present Claimant. 
 
APPENDIX. ^^^ 
 
 No other grants of the barony of Spynie passed in favour of Alexander first Lord Spynie (who died in 
 1607) than the Royal charter or patent 1590 (the original and ruling constitution of the honour, though disregarded 
 by Lord Mansfield), the Act 1592, and the Royal charter 1593. Nor was the dignity ever resigned. 
 
 But in 1621 — not in the lifetime of the original grantee, but (as stated) in that of his son and successor, 
 Alexander second Lord Spynie — there passed a Royal charter, dated the 26th July in that year, of the lands of 
 Ballysack and others in Forfarshire, distinct from Spynie, with certain patronages and attendant rights of the 
 chapter and inferior clergy of the diocese of Moray, previously granted by the Spynie charter I7th April 1593 — 
 to the said " Alexandro Domino Spynie " (the second Lord) " et heredihus suis mascclis et assignatis quibus- 
 " cunque" proceeding upon his resignation. The lands of Ballysack and others were quite different from those in 
 the patent 1590, the Act 1592, and the Royal charter 1593, and were intended to be in substitution for and to 
 replace the latter, which had been renounced or resigned by Alexander first Lord Spynie, the father of the grantee 
 in 1621, on the restoration of Episcopacy, as is stated in the charter 1621 ; and they are accordingly erected into 
 and named the barony and lordship of Spynie, although situated in a different county and not in the slightest 
 manner connected with the original Spynie fief. The patronages, on the other hand, had been granted to 
 Alexander first Lord Spynie by the charter 17th April 1593, and formed an inferior part of the temporal barony 
 or fief of Spynie, as then erected ; and these were not restored to the church either by Alexander the first, or his 
 son the second Lord Spynie, but are incorporated into and united, along with Ballysack and the other estates, into 
 the new barony of Spynie by this charter of 1621. And the whole are limited " Alexandro Domino Spynie 
 " et heredibus suis masculis et assignatis," and ordained to descend along with the title or peerage according to 
 the limitation in the original Spynie infeftment and the creation of Alexander first Lord Spynie as a temporal 
 peer, — that is, according to the patent 1590 and the Royal charter 1593 — already proved to have been to 
 " heirs" and "heirs of the body" {not, literally, heirs male) of the first Lord Spynie. The following extracts 
 from the charter (recorded in the Great Seal Register) will sufficiently prove what is here stated, and illustrate 
 the Claimant's argument : — 
 
 " Jacobus," &c. — " Sciatis nos . . dedisse, concessisse," &c. . . " Alexandro Domino Spynie, S/C., 
 " heredibus suis masculis et assignatis quibuscunque, haereditarie . . terras et villam de Ballysak, 
 " . . terras de Braidfuttis Gardene," &c. &c., . . " necnon advoeationem, donationem, et jus pa- 
 " tronatus omnium et singularum eeclesiarum parochialium et beneficiorum . . de Aulderne et 
 " Nerne, . . Alves et Langbryde," &c. &c., . . " jacentium infra vicecomitatus nostras de Elgin, 
 " Forres, Nairne, Innernes," &c., — after which follows the statement of the resignation of the 
 preceding property by Alexander second Lord Spynie into the King's hands for this new infeft- 
 ment, to be granted to himself, his heirs male, &c., — and then, " Prceterea, quia nos, per nostrum 
 " infeofamentum nostra sub magno sigillo, de data apud Halyrudhous decimo septimo die mensis 
 " Aprilis anno Domini millesimo quingentesimo nonagesimo tertio " (the charter or regrant 
 17th April 1593), " dedimus . . quondam Alexandro Domino de Spynie, patri dicti . . Alexandri 
 " nunc Domini de Spynie, et quondam Jeannce Lyoun, Comitissce de Angus, sues sponsce, 
 " eorumque alteri diutius viventi, in conjunctd infeodatione, heredibus ipsorum masculis " (so 
 explained here, the literal words being simply to " heredibus ") " et assignatis inibi contentis, 
 " advoeationem, donationem, et jus patronatus," &c., . . " et ad hunc effectum dissolvimus et 
 " suppressimus praedicta beneficia ; Igitur nos . . de novo damus . . Alexandro Domino Spynie, 
 " heredibus suis masculis et assignatis antedictis, hereditarie, omnes et singulas praedictas terras 
 " et villam de Ballysak," &c. &c., . . " necnon prsedictam advoeationem, donationem, et jus pa- 
 " tronatus omnium et singularum eeclesiarum parochialium et beneficiorum supra et subscrip- 
 " torum," &c., . . " in favorem prcefati . . Alexandri Domini Spynie, heredum suorum mascu- 
 " lokum et assignatorum pradictorum, pro nunc et imperpetuum ; . . Similiterque nos . . de novo 
 " facimus . . Alexandrum Dominum Spynie, heredes sues masculos et assignatos antedictos, 
 " indubitatos hereditarios patronas omnium et singulorum dictorum beneficiorum," &c. — 
 " Prceterea, nos, considerantes quod nos ex nostris specialibus gratia gratid (sic) etfavore erga 
 " dictum quondam Alexandrum Dominum Spynie" (i. e. the first Lord Spynie), " patrem dicti 
 " . . Alexandri nunc Domini de Spynie, gesto, die mensis , anno Domini 
 
 " millesimo ," (blanks being here left in the original, according 
 
 to the singular and negligent custom elsewhere illustrated,) "fecimus et creavimus dictum quondam 
 " Alexandrum Dominum Spynie temporalem dominum, ac dedimus et disposuimus dido quondam 
 " Alexandro Domino Spynie tolas et integras temporales terras Episcopatus de Murray, quce in 
 " unum liberum dominittm et baroniam. Dominium de Spynie nuncupatum, unites fuerunt" 
 (evidently alluding here to the patent 1590, the Act 1592, and Royal charter 1593; for there 
 does not exist the faintest shadow or trace of any other later such conveyance), '•' et quod postea 
 " nos Episcopos ad suam integritatem restaurare determinati, dictus quondam Alexander Do- 
 " minus Spynie nostro mandato suum jus et titulum integrarum terrarum et eeclesiarum ad patri- 
 " monium dicti Episcopatus de Murray pertinentium voluntarie renunciavit et extradonavit " 
 — but not the dignity of Lord Spynie, which therefore could not be in any way touched or 
 affected ; " Ac nos volentes quod, sicuti titulus, honor, et dignitas dicti Dominii de 
 " Spynie ad dictum . . Alexandrum nunc Dominum Spynie pertinent ac cum ipso et 
 " succEssoRiBus suis REMANENT," (notwithstanding, as previously observed, the alienation of the 
 
570 APPENDIX. 
 
 ^efof Spynie,) " ita etiam una pars terrarum et status de present! ad dictum . . Alexandrum 
 " Dominum Spynie pertinentium nomine dicti Dominii de Spynie imperpetuum gaudebit, — 
 " Igitur nos . . ordinamus praedictam villam et terras de Ballysak, cum maneriei loco et forta- 
 " licio earundem, terras, maneriei locum, et fortalicium de Spynie nuncupandum ; Et similiter 
 " nos . . de novo . . facimus, unimus, annexamus, creamus, et incorporamus, omnes et singulas 
 " terras aliaque praescripta . . in unum integrum et liberum dominium et baroniam, nunc et omni 
 " tempore affuturo dominium et baroniam de Spynie nuncupandam ; . . Ac volumm et con- 
 " oedimus . . quod dictus . . Alexander Dominus de Spynie, suique antedicti " (clearly his 
 heirs male) " pradicto titulo et ordine dignitatis dicti Dominii de Spynie {fruentur ?" — 
 something being evidently wanting here in the original), " cum omnibus honoribus, dignitatibus, 
 " prerogativis, et preeminentiis, eisdem spectantibus, secundum tenorem ineeofamenti dicto 
 
 " quondam sue PATRI DESUPER CONPECTI, ET SECUNDUM DICTI QUONDAM SUI PATRIS CREA- 
 
 " TiONEM IN TEMPOEALEM DoMiNUM TEMPORE PRa:scRiPTO " — incontestably, from a preceding 
 reason, according to the tenor or import, of course literal and comprising the limitation, of the 
 constituting grant or infeftment of Spynie, and constitution of the honour and dignity, by the 
 patent 6th May 1590, the Act of James VI. with advice of Parliament 1592, and the Royal 
 charter (confirming the patent 6th May 1590, and carrying out the mandate of the Act 1592) in 
 1593, — this limitation being, in all the three, to "heirs" and " heirs of the body" of Alexander 
 first Lord Spynie, — while, independently of this, it is expressly affirmed, as above shewn, near the 
 beginning of the charter 1621, that the charter 1593 was to the " heredibus masculis" — the 
 heirs male — of the bodies of the patentee and his wife, the Countess of Angus. 
 
 Here then, 1. The very flexible term "heirs" (much more flexible even than is usually supposed) is 
 explained, as occurring in the Spynie limitation, by the best possible authority, viz. that of James VI. (the very 
 monarch who created the Barony of Spynie), in 1621, to have denoted heirs male validly and legally, quite in 
 support of the Claimant's argument, without any female descent. And, 2. Lord Mansfield avails himself of this 
 charter, in the person not of Alexander first Lord Spynie, but of his son, similarly to explain " heirs," simply, 
 as heirs male. 
 
 And it is in full accordance with what has been just stated, that Lord Mansfield adds to the above ratio, 
 hitherto commented upon, viz., 
 
 " Instruments produced taken to heirs male. Act 1592, and charters 1593 and 1621," 
 
 the following, equally supporting the Claimant's argument : — 
 
 " Highly improbable title should in this manner" (i. e., under a female construction) " go to 
 " A daughter — -niece disinherit her uncle," — that is, in Lord Mansfield's view, under the 
 limitation to " heirs of the body," a niece, daughter of the patentee, could not succeed to the 
 prejudice of the next heir male, her paternal uncle. 
 
 " Several grants appear to father and son, all to males," — thus incontestably founding also, 
 in support of the same male construction, upon the charters of the family estates, &c. to heirs 
 MALE, adduced by the Crown, as in their Case, printed supra, p. 567. 
 
 " No pretence for a new creation," — i. e. in favour of the second Lord Spynie in virtue of the 
 charter 1621, which, as has been shewn by the Claimant, does not proceed upon a resignation, 
 and hence could not alter the prior state of the dignity. 
 
 " Br 1621 " (the same charter obviously) " no variation intended either to lands or honours. 
 " Then only one son," — i. e. of the second Lord, — all which is quite correct, — the charter 
 1621 holding by the original descent and most strikingly explaining " heirs" by " heirs male," 
 affording ex terminis an irresistible argument. — And lastly, 
 
 " New lands to be added, and then general words extending to the honours new lands 
 " Expressly to heirs male," — a correct account of the import of the charter 1621. 
 
 This, therefore, the Claimant submits is an additional res judicata and authority (so far as the above 
 important point is concerned) by the House of Lords in favour of the Claimant's interpretation of " heirs," as being 
 flexible and controlled by previous and collateral destination of lands ; and with which Lord Rosslyn's decision in 
 the Glencairn claim in 1797 was strictly consonant and in accordance. The Claimant has elsewhere (in addition 
 to numerous other arguments) adduced Lord Loughborough's authority and the consequent resolution of the 
 House of Lords in the Glencairn claim in 1796-7, as proving that the House gave their sanction in that year to 
 the test and criterion contended for by the Claimant — to which test and criterion — the antecedent and collateral 
 destination of the Glencairn estates — his Lordship directly resorted, and actually made a limitation to " heredibus 
 " suis " equivalent to heirs male, deciding consequently against the heir female. The Claimant now submits these 
 two decisions as equally decisive and resjudicatce on the point in question, — while both, as he has otherwise and 
 elsewhere proved, were based on sound Scottish law and practice, especially in ancient and feudal times, as shewn 
 from the history and practice of his own and other Scottish families, the legal doctrine being moreover expressly 
 laid down and enforced by Erskine. 
 
APPENDIX. 571 
 
 To conclude : — 
 
 ]. 
 
 The preceding Spynie case — exhibiting a peerage lawfully granted by patent, standing in the face 
 of a hostile and denunciatory Act of Annexation, fully recognised as conferred by the patent, 
 never resigned or forfeited, and yet regranted by Act of Parliament and Royal charter — 
 furnishes a complete parallel so far to that of the Dukedom of Montrose, as created by James III., 
 while in lawful possession of his regal prerogative, by patent 18th May 1488, standing in the 
 face of the hostile (but incompetent and effete) Act Rescissory, fully and legally recognised as 
 conferred by the patent, never resigned or forfeited, and yet regranted by Act of the King, with 
 advice of Parliament and by Royal charter, 18th and 19th September 1489 — which regrant must 
 consequently and a fortiori have been (strictly speaking) supererogatory and superfluous : — While, 
 2. The destination to "heirs" in the patent 1590, the Act of Parliament 1592, and Royal charter 
 1593, is explained by the very monarch who granted those charters as to heirs male, which 
 could only be from the consideration that the property of the family was entailed on heirs male ; 
 and that signification was assigned to it by Lord Mansfield and the House of Lords in 1785 by 
 reference to the collateral investitures of the family estates to heirs male — precisely in accordance 
 with the Gleneairn decision in 1797, with Scottish legal doctrine, and with the practice, as has 
 been shewn, in the family of the Claimant, and elsewhere. 
 
 It need only be added, finally and generally, that the greater antiquity of the Montrose case, -in 1488, 
 renders the argument from the parallel Spynie case in 1590 and afterwards an a, fortiori one throughout, in the 
 Claimant's favour. 
 
 While on the subject of reference to the descent of lands and collateral evidence for the interpretation of the limitation 
 " heirs" in patents, the Claimant may add the following remarks. 
 
 In the first place, it will be observed, on reference to the Case for the Crown in the Spynie claim, as printed supra, 
 p. 567, that the Crown adduced contemporary patents of the Barony of Colville, absolutely exti'aneous and foreign to the 
 Spynie family, evidently with the view of shewing that the tendency of the period was in favour of male heirs, and that a. 
 destiriation literally to " heirs" must be so interpreted. Even recently a similar argument has been maintained, in the claim 
 of George Drummond, Duke de Melfort, to the Earldom of Perth, and which, although of course a mere ex parte statement, 
 may be here quoted, as embodying some interesting particulars, bearing upon the Claimant's argument: — 
 
 " The letters patent creating the Earldom of Perth have not " (it is stated) " been discovered, although every search 
 " has been made for them ; and it is most probable they were lost at the period of the Revolution. They were not enrolled. 
 " Under these circumstances their purport and effect must be proved by the general usage of Scotland in regard to the creation 
 '' and limitation of peerages at the time those letters patent passed the Great Seal, by the descent of the dignity which they 
 " created, and from other facts relating to them. 
 
 " There is no doubt that the usual destination of peerages granted in the reigns of James VI. and Charles I. was to the 
 " heirs male general of the grantee, whether such destination was expressed by the words heirs male, or heirs male whoin- 
 " soever. Of thirty-six dignities created by James VI., four were limited to the heirs male of the bodies of the grantees ; 
 " four to the heirs male of the bodies of the grantees, whom failing, to their heirs male whomsoever; two to the heirs 
 " whomsoever of the grantees ; and the remaining twenty-six to the heirs male of the grantees. Of sixty-seven dignities 
 " created by Charles I., thirteen were limited to the heirs male of the bodies of the grantees, four to the heirs male of the 
 " bodies of the grantees, whom failing, to their heirs male whomsoever, two to the heirs whomsoever of the grantees, two 
 " with peculiar limitations, and the remaining forty-six to the heirs male of the grantees. It is evident from this enumeration 
 " that the ordinary and usual destination of Scotch peerages created in the reigns of James VI. and Charles I. was to the 
 " heirs male general of the grantees, andthe presumption in the absence of the patent would therefore be, that the Earldom 
 " of Perth was limited to the heirs male of the first Earl . . . 
 
 " King James, by a letter under his seal and signed with his ovTa hand, dated at Westminster on the llth of February 
 " 1605, after reciting that in consequence of the services rendered to him and his progenitors by Ale.\ander Lord Home, 
 " James Lord Drummond, and Alexander Lord Fyvie, he had determined to raise them to the higher degree of Earls, com- 
 " manded the noblemen named in the said letter, and gave them full power and authority, to perform and do everything 
 " necessary and proper in order to create, and according to the law and usage of Scotland to create, the said Alexander Lord 
 " Home Earl of Home and Lord Jedburgh and Dunglass, James Lord Drummond Earl of Perth, and Alexander Lord Fyvie 
 " Earl of Dunfermline. 
 
 " As this letter formed the only authority on which the Earldoms of Home, Perth, and Dunfermline were created, as well 
 " as the sole direction as to the manner of that creation " — that is, the warrant for the inauguration or usual " act of creation," 
 independently of the patent — " it cannot be doubted that the patents passed in obedience to the Royal will expressed by it 
 " limited the succession to the honours which they created to the same line of heirs, and that the contents of one of those 
 " patents afford the strongest evidence of the purport and effect of the two other patents. 
 
 " The patent creating the Earldom of Dunfermline is the only one of the three patents which was enrolled "—that is, 
 in the Great Seal Register. " It bears date the 4th March 1605, and grants to Lord Fyvie and his heirs male the title, 
 " honour, and dignity of Earl of Dunfermline. 
 
 " This patent, it is submitted, establishes that the Earldoms of Home and Perth were in like manner granted to Lords 
 " Home and Drummond and their respective heirs male; and the succession to both those Earldoms has been in accordance 
 " with that destination." — Case, &c., pp. 7, 8. 
 
 Here then, the Claimant would observe, proof is attempted to be drawn of a male limitation in the Perth instance from 
 that of the foreign and distinct Earldom of Dunfermline, precisely as in the Spynie^^Case for the Crown the male limitation of 
 the Barony of Colville is adduced inter alia to corroborate the male Spynie limitation. Hence this practice in argument has 
 been by no means uncommon, and a fortiori recourse may be had to the male limitations of the relative Crawford estates to 
 corroborate the male purport of the Montrose destination in the patent 18th May 1488. 
 
 4 D 
 
572 APPENDIX. 
 
 The preceding Perth argument is undoubtedly (as stated) a mere ex parte one, and yet the Claimant has cited it, 
 1. Because it further evinces the leaning to male succession in peerages, — 2. Because it quadrates so exactly with the drift of 
 the illustration of the Barony of Colville in the excerpts by the Crown in the Spynie paper, — and 3. Because it additionally 
 refutes the notion of Scottish peerages having been created by ' belting ' alone, without a patent, or in other words, by the 
 inauguration, or "act of creation," simply, of which ceremony 'belting' (as proved, S. Case, pp. 66 sqq.) was a mere 
 component part, — as maintained, in defiance of all previous authority, in 1797, — the patent of the Earldom of Dunfermline, 
 recorded in the Great Seal Register, proving that independently of the " act of creation " (above clearly contemplated) patents 
 were duly passed in conformity with the usual practice — as in the instances of the Marquisate of Douglas, Earldom of Wigton, 
 &e. cited in the Claimant's S. Case, pp. 7, 8. It moreover equally appears from the Confirmation of the Earldom of Home, 
 22nd May 1636, printed in extenso at p. 538 supra, that that dignity had been duly constituted by James VI. by a regular 
 " diploma " or patent, in favour of the original grantee. 
 
 It may thus be clear that at all times the leaning has been in favour of heirs male. And Lord Redesdale, in his speech 
 in the L'IsIe claim in 1826 (as by a Report in the family charter-chest), expresses himself to the effect that " in early times " 
 a peerage limited " heredihus suis" did not go thereby to heirs female, but only imported a male grant or succession. With 
 which compare Lord Mansfield's statement, s^tfra, p. 557. 
 
POSTSCRIPT. 
 
 After the greater part of this volume had been printed, a Eeport of the Montrose claim appeared in the 
 ' Reports of Cases argued and determined in the House of Lords, on Appeals from the Courts of Scotland, &c.,' 
 edited by John F. Macqueen, Esq., barrister-at-law, appointed by the House to the office of reporting its 
 decisions.* 
 
 The Learned Gentleman gives the Speeches of the Lord Chancellor and of Lord St. Leonards in extenso, 
 adding that " the elaborate Opinions of the Law Lords state so fully the chief points, that it has been found 
 " impossible to insert the arguments of counsel, which went over ten days," — and which therefore fall to be 
 gathered exclusively from those Opinions. 
 
 The Claimant can well imagine the expenditure of time, the embarrassment, and difficulty, that would 
 have been attendant upon an attempt to analyse and exhibit those arguments. On the other hand, the course 
 adopted by the Learned Editor affords the reader less than the usual opportunity of checking and estimating the 
 weight and bearing of the dicta of the Noble and Learned Lords reported, and thus places the case of the Claimant 
 at disadvantage, — while this disadvantage is augmented by the Eeport being prefaced, in usual form, by a 
 Summary of the points held to be established by the claim — a Summary to which the personal standing of the 
 Learned Editor, and his official position, as acting under the direct commission of the House of Lords, must give 
 great weight and authority. 
 
 Under these circumstances, the Claimant conceives that his simplest remedy will be to subjoin the 
 Summary in question, verbatim, with brief comments and references, under each head, to the pages of the present 
 volume where the various points touched upon have been discussed, and where the Claimant's views and protests 
 are stated. This Summary is as follows : — 
 
 Summary, &c. 
 
 " Held. — That the Rescissory Act of the Scotch Parliament, 17th October 1488, destroyed the Dukedom 
 " of Montrose, created by James III., and that the Dukedom of Montrose, created by James IV., was only for the 
 " life of the grantee. Remarks on Life Peerages." 
 
 Observation. 
 
 On the non-competency of the decision upon the grant by James IV. (the grant de novo of the Dukedom), as 
 proceeding on a matter not brought before the Committee of Privileges by the Petition of the Claimant to 
 Her Majesty and Her Majesty's reference thereof to the House of Lords, vide the Address, supra, 
 pp. XXVII, and n. *- No "remarks on Life Peerages" appear in the Speeches of the Lord Chancellor 
 and Lord St. Leonards, but a question on the subject was asked by Lord Lyndhurst and answered by the 
 Crown, for which, and the Claimant's observations on the subject, vide the Analysis, supra, p. cv. 
 
 " When a Peerage is rescinded by Parliament, it cannot be restored by the Crown. To effect restoration 
 " another Act of Parliament will be necessary." 
 
 Observation. 
 
 That this is the rule af present is not disputed — but the Crown argued, and the Lord Chancellor and Lord St. 
 Leonards have laid it down in this case, that the Crown could not restore against attainder and forfeiture in 
 1488 and 1637. This is quite erroneous ; in proof of which the Claimant would refer to the Analysis, supi-a, 
 pp. Ixxxviii, Ixxxix, and the Speeches, pp. 336, and n. ** ; 365, and n. * 
 
 " The construction of an old Act of Parliament may be cleared by Contemporanea Expositio, shewing the 
 " conduct and understanding of parties at the time of its passing, and subsequently ; and for this purpose the 
 " annals or histories of the period, and j^tiquarian researches, may be referred to." 
 
 Observation. 
 
 There is nothing new in such appeal to contemporanea expositio, or in reference to history and antiquity — and the 
 Claimant has founded upon both in the course of his argument. But the contemporanea expositio must be 
 fully given, and interpreted by relevant law (as argued supra, pp. 326, n. %, 349, n. *, and elsewhere) ; and 
 historical and antiquarian evidence must be duly tested and its authenticity vindicated, — and it ought not to be 
 received and argued upon without due examination and scrutiny, as in the case, e. g., of the Narrative of the 
 herald Young in 1503, on which such stress has been laid against the Claimant, and respecting which vide 
 supra, p. xxxvii. Historical evidence, far more important and susceptible of probation, was rejected, when 
 in the Claimant's favour, in the Crawford claim. 
 
 * Printed in the work in question, vol. i, pp. 401 sqq.— Mr. this matter, however, the Claimant will only remark that, as he 
 
 Macqueen has also briefly reported the arguments of the Duke was not called upon by the Committee to reply to the statements 
 
 of Montrose, and the proceedings of the Committee of Privileges, of the Noble Duke, those statements must not be viewed as 
 
 on the preliminary question of the right of the Noble Duke to uncontrovertible and demonstrated. He would refer here to 
 
 oppose in the recent claim, 14th April 1851 (pp. 57 sqq.). On the Address, p. viii, and n. *. 
 
574 POSTSCRIPT. 
 
 " Mere lapse of time is no bar to a peerage claim, although whether it may not be fit to prescribe some 
 
 limitation, queerer 
 
 Observation. 
 
 On this point see the remarks in the Address to Her Majesty, supra, pp. xni, xiv. 
 " Semble. — That Scotch Peerages were originally territorial ; i. e., incident to, or accompanied by, tenure." 
 
 Observation. 
 
 This may be readily admitted. Compare the dicta of Lord Mansfield in the Cassillis claim supra, pp. 556 sjj. 
 
 " Peerages were often, for greater solemnity, created by the Crown in full Parliament; but the Parliament 
 " had no share in the act done. Thus, the creations by Hie. II. in his last Parliament continued valid and effectual, 
 " although the Parliament itself, and all its proceedings, were subsequently annulled." 
 
 Observation. 
 
 This is evidently gathered from the Speeches of the Lord Chancellor and Lord St. Leonards, who assume that the 
 inauguration of the Dukedom of Norfolk and other dignities created by Richard II., as recorded in the Rolls 
 of Parliament, was the creation of the dignities, whereas those dignities were created independently by 
 charters or patents — which charters or patents, being granted with assent of the two Houses of Parliament, 
 had the force and character of statutes, as by the ruling Cornwall judgment in 1605. This latter fact is 
 entirely passed over by both the Noble and Learned Lords who addressed the House on the Montrose claim. 
 See the Analysis, supra, pp. xviii, xix ; also pp. 328, 329, 362, and relative notes. 
 
 " The Opinion of Lord Chancellor Loughborough in the Glencairn Peerage case explained and confirmed." 
 
 Observation. 
 
 " Explained," as the Claimant has shewn, by misrepresenting its words and language — " confirmed," by insisting 
 on its force as a precedent, binding the House, irrespectively of its accuracy or merits — no effort being made 
 to impugn the Claimant's exposure of its errors, except through the misrepresentation alluded to. See the 
 Speeches and the notes thereupon, supra, pp. 342 and n. |{ ; 343, and n. * ; 364, and n. J ; 371, and notes * 
 and J. 
 
 " Remarks on the jurisdiction of the Court of Session in Scotch Peerage questions — Lord St. Leonards of 
 " opinion that it is absorbed by the References from the Crown." 
 
 Observation. 
 
 On this point the Claimant would refer to Lord St. Leonards' Speech, supra, pp. 367 sqq., with the relative notes ; 
 to the Address, pp. xxiv, xxx ; and to the ' Narrative and Inquiry,' entering fully into the subject, which he 
 has appended to the Address, pp. wi sqq. 
 
 " How the House of Lords has come to acquire jurisdiction in Scotch peerage questions." 
 
 Observation. 
 
 On this delusion, that the House possesses jurisdiction in matters of Peerage (originally entertained by Lord 
 St. Leonards, but subsequently, or at least partially, retracted in his Speech on moving the Resolution), the 
 Claimant would refer to the Noble and Learned Lord's Speech, supra, p. 367, with the relative notes, and to 
 the Address, pp. iv, v. 
 
 " Method of putting documents in evidence before the Committee for Privileges." 
 
 Observation. 
 
 On this point the Claimant is not aware that any new rule was adopted in the Montrose claim. 
 
 " Opinions of the Lord Chancellor and of Lord St. Leonards ; the latter stating the entire concurrence of 
 " Lord Brougham, and the partial concurrence of Lord Lyndhurst, who had heard only a part of the argument." 
 
 Observation. 
 
 On the extent of the actual concurrence of Lord Brougham and Losd Lyndhurst, vide supra pp 372 and n S • 
 p.373,andn.* "^ ' '^' 
 
 In closing these Remarks, the Claimant has only to refer, for his own Summary of " the more direct 
 " effects of the recent decision on the principles and practice of Peerage Law," to the Address, supra, pp. xviii sqq., 
 and to his conclusion from that Summary, as there expressed — to wit, that the Resolution 5th August 1 853, " in 
 " its principles, and in its application of those principles, has a direct tendency to revolutionise the whole system 
 " of Peerage Law, and indeed to innovate on other departments of law hitherto sacred from such innovation." 
 
GENERAL INDEX. 
 
 8S" The present Index has no pretensions to be considered a complete one, including every subject or person touched upon or mentioned in the 
 preceding pages. Reference may be made to the ' Advertisement and Introduction,' pp. [vii] sqq., for an enumeration of the friends 
 to whom the Claimant has been indebted for assistance, in various ways, in the prosecution of his claim ; and to the ' Contents,' 
 pp. [xi.] sqq., for fuller analyses of the Speeches, and a more minute particularisafion of the Evidence adduced in the case. 
 
 General propositions and principles maintained by the Claimant, and referred to as such in this Index, must be understood as almost always 
 contested by the Crown, in the course of the discussion, and repudiated by the Committee. The references include the statements on 
 both sides. 
 
 The pagings in small Roman numerals within parentheses, [iv], [v], &c. indicate the ' Advertisement and Introduction' prefixed to this volume, 
 —those in Roman capitals, the 'Address' to Her Majesty, — those in small Roman numerals, the ' Analysis of the Argument,' — and those 
 in Arabic numerals, the Speeches of Counsel and of the Committee, and the Appendix of Evidence.* 
 
 ' A non habente potestatem,' the inefficacy of grants as pro- 
 ceeding, inferred by Lord St. Leonards, see James ///.,— by 
 the Claimant, see Vrumnumd and Duchray. 
 
 ' A verbis legis non recedendum est,' the maxim, p. xx, u. ||. 
 
 Aberdeen, hereditary Sheriffdom of, resigned by John 6th Earl 
 of Crawford, 1510, p. 380 :— And see p. vii, n. J. 
 
 Acceptance of a regrant of a dignity cannot abrogate the original 
 grant, if not annulled or alienated, pp. ex, 179, 359 and n. **. 
 ■ — See Acquiescence. 
 
 ' Accumulando jura juribus,* a principle constantly acted upon 
 in Scotland, and also in England, pp. xviil, xliv, Ix, cxxvii, 
 538, 555. 
 
 Acquiescence by a party in an Act of Parliament cannot give it 
 validity if inherently deficient in that validity, pp. xciv, cix, 
 cxxvii, 167, 179, 228, 321, 359 and n. **. 
 
 Action of Declarator, an, before the Court of Session the usual 
 and proper mode of causing an undue or improvident grant, 
 through application of the statute affecting it, pp. xxi, Ixxiv, 
 69, 117 sqq., 154, 226, 227. 
 
 Acts and Statutes of Parliament — 
 
 1. If expressed in general terms only, must be legally 
 brought home, by trial and conviction, in order to take 
 effect on any person or thing, pp. xx sqq., 9, 117 sqq., 
 154, 226, 227; 314, u. *. 
 
 2. If expressed in general terms only, without individual 
 specification, cannot affect Dignities, pp. XXIII, LXXIii, 
 LXXV, xvii, XXV, 16, 17, 186, 296; 314, n. t; 330 and 
 n. § ; 362, n. t ; 392. 
 
 3. May not only, in Scotland, be virtually repealed by 
 desuetude and contrary use, but, even although enrolled 
 among the Acts of Parliament, may be still-born and null 
 and void ab initio, if never acted upon, pp. xxxin, xiii, 
 cxxiv, cxxv, 8, 82, 117 sqq., 230 ; 326, n. ||.— See Desuetude. 
 
 4. Could be rescinded by the Scottish Sovereigns in the six- 
 teenth century, pp. 336, u. """ ; 365, n. |. 
 
 Acts and Statutes of Parliament, Principles of Interpretation 
 applicable to, (and especially to the Act Rescissory of 1488,) 
 presumed by the Claimant : — They must be interpreted 
 
 1. In accordance with the recognised principles of construc- 
 tion applicable to such Acts in judicial proceedings, pp. 
 xiv, XX, 8, 9, 11, 267, 268, 273. 
 
 2. In accordance with natural justice, if possible, pp. xxi 
 and n. ■• ; xiv, xx, 8, 268, 272, 309. 
 
 3. According to the words actually used, jja their plain and 
 obvious meaning, without excision or interpolation of 
 words — and not according to the hypothetical intention of 
 the framers of the Acts, pp. xx, xxi and relative notes, 
 XLV, xci, xcii, xciii, XCIV, xiv, XX, xxiii, 9, 11, 153, 261, 
 262, 263, 264, 269, 270, 273, 309; 321, n. f ; 347, n. *; 
 349, n. t- — See * Quod voluerunt,' &c. 
 
 4. In accordance with the Scottish maxim that a law, how- 
 ever general, must not be extended to any case to which 
 the reason inductive of the law is in no degree applicable, 
 pp. XXI, n. t ; xiv, XX, 272, 273 ; 314, u. §. 
 
 5. Most strictly and rigorously when penal, especially in 
 honours, pp. xxi, xxii, xxiii, xciil, xiv, xx, ex, cxiv, cxxx, 
 11, 259, 260, 263, 268 ; 326, n. f ; 327, n. § ; 344, n. ■*.— 
 See Penal Statutes. 
 
 6. Largely and liberally when of a remedial character, and 
 a fortiori in honours, pp. XXIIi and n. ^ ; xiv, xx, cxxx, 262 ; 
 327, notes 4 and ('). — See Remedial Statutes. 
 
 7. According to the rule ' In dubiis benigniora semper 
 ' sequenda sunt,' pp. XXI, n. f; xxii and n. § ; XXXI, xoiv, 
 xiv, XX, XXX, cxiv, cxvii, 161 ; 316, n. * ; 320, n. ^. — See 
 * In dubiis,* &c. 
 
 Acts and Statutes of Parliament should be so interpreted as 
 that no innocent person be, by a literal construction, punished 
 or endamaged, pp. xx ; xiv, n. f ; xxii, n. % ; 347, n. *■. — See 
 Cohe. 
 
 Acts and Statutes of Parliament did not (in Scotland) re- 
 quire the King's name to figure in them, the King giving his 
 assent at once to the whole enactments of the Session, p. 226. 
 But see p. xii. 
 
 Acts and Statutes of Parliament, many, in England, do go in 
 
 the form of the King's Charter, p. 395. 
 Acts of Parliament, Scottish, cited and referred to, — 
 
 Acts of James I., James 11., James III., James IV., and 
 James V., constituting the Lords of Session and Court of 
 Session supreme in all civil actions, without appeal to 
 King or Parliament, pp. Lii, Liii, — and see p. Ivi. — See 
 Court of Session. 
 
 Act of James IV., 17th October 1488, regarding the plunder 
 taken after the battle of Stirling, p. ix, u. * ; — And see 
 pp. 229 ; 344, n. §. 
 
 Act of James IV., entitled ' The Proposition of the Debate 
 ' of the i'ield of Stirling,' 17th October 1488, p. 383:— 
 And see pp. x, 110, 492. 
 
 Act of James IV., which has been styled (for convenience) 
 the Act Rescissory, 17th October 1488 (contended to have 
 annulled the Dukedom of Montrose), pp. xxx, viii, 381 : 
 — Circumstances under which it passed, according to the 
 Claimant and the Crown and Committee, respectively, 
 pp. viii, 6, 109, 182, 223, 224, 313, 346 :— Pinkerton's 
 opinion of the Act and of those who enacted it, pp. xxxvin, 
 n. »; 491 :— Question of its validity, pp.* sqq., 8, 109 
 sqq., 127 sqq., 182 sqq., 224, 225 ; 326 and notes § sqq. : — 
 Its effect, supposing it to be valid (the question being, 
 whether it could, or could not, at once, per se, without 
 special application and without trial and conviction, de- 
 stroy the Dukedom of Montrose), pp. xxi, u. J ; xxxi sqq., 
 xiii sqq., 6 sqq., 109 sqq., 181 sqq., 223 sqq., 258 sqq., 313 
 sqq., and relative notes ; 345 sqq., and relative notes ; 
 381 sqq. : — Recapitulation of the Claimant's argument on 
 the question of the, pp. cxxx sqq.: — Reasons whereupon 
 the Claimant prays Her Majesty that it may be reversed, 
 pp. xxxvii sqq., l:— Such reversal will not shake the 
 Resolution of the House of Lords in the Glencairn claim 
 in 1797, nor affect the rights of third parties, &c., p. xliv. 
 
 Act of James IV., with adviceof Parliament, 18th September 
 1489, changing de novo the title of Earl, as borne by David 
 Earl of Crawford and by the previous Earls of Crawford, 
 into that of Duke — contended by the Claimant to have been 
 an hereditary, though superfluous, by the Crown to have 
 been a life-rent grant, p. 531. — See Montrose, Dukedom of. 
 
 Act of James IV., 15th February 1489-90, which has been 
 styled the Supplemental Act, ordering the charters of 
 James HI., struck at by the Act Rescissory, to be brought 
 in and destroyed, which was not done ; and which, in re- 
 citing and enforcing the Act Rescissory, omits dignities, 
 pp. cxxi, cxxii, 381 : — And see pp. xxxiii, xxxiv, xiii. 
 
 " * The quotations from the Speeches of the Counsel for the Crown and of the Law Lords inserted in the Analysis of the Argument (supra, pp. i 
 sqq.) are not referred to in this Index. The pleadings of the Claimant, on the contrary, are referred to, inasmuch as they include the substance 
 of the Claimant's Cases, laid before the Committee of Privileges, and which were continually referred to by the Claimant's Counsel and by the 
 Committee in the course of the discussioji. The former can however be readily found by turning to the latter, at the pages indicated in this 
 Index. 
 
 4 E 
 
576 
 
 GENERAL INDEX. 
 
 cxxi sqq., 129, 137, 218, 219, 227, 314 ; 315 and n. * ; 359 
 and notes J and t ; 434, 436, 439, 440, 442, 492. 
 
 Act of James IV., 20th February 1491-2, contended virtually 
 to disown the Act Rescissory, p. 386 :— And see pp. a, 
 cx.xvi, 111. 
 
 Act of James IV., 26th June 1493, which, in rescinding 
 ex tunc the grants struck at by the Act Rescissory, omits 
 dignities, pp. cxxiii, 382:— And see pp. xxxiii, xxxiv, 
 xiii, cxiv, cxxiii, 129, 204, 259, 260, 277 ; 360 and ii. t ; 
 509, 544. 
 
 Act of James IV., 13th March 1503-4, which has been styled 
 the Act Revocatory, contended to have annulled the Act 
 Rescissory, p. 387 :— And see pp. xxxiii, xxxvi, cxxvi 
 sqq., 85 sqq., 135 sqq., 219, 308, 309 ; 327 and notes * and 
 sqq. ; 360 and u. f ; 361 and notes * and (") ; 373 and 
 n. * ; 434, 442. 
 
 Act of James VI., 1584, relating to the sealing and registra- 
 tion of charters, p. v. 
 
 Acts of James VI., 1584 and 1587, relating to the eriminal 
 jurisdiction of Parliament, with discussion as regards the 
 latter Act, p. Liv, n. *. 
 
 Act of James VI., 1587, against quarrelling for precedency 
 in Parliament, pp. lv, u. fttt i 221, 224. 
 
 Act of Annexation, 1587, prohibiting alienation of Church 
 lands, in the face of which, subsequently to its enactment, 
 the temporalities of the bishopric of Moray were erected 
 into the Barony of Spynie ; which stood, notwithstanding 
 — affording an a fortiori precedent in favour of the present 
 Claimant, pp. xxxviii, u. * ; cxlv sqq., 561 sqq. 
 
 Act of James VI., 1592, mentioning persons who had 
 *' ressavit the honoris . . of Lordis of Parliament be the 
 " solempne forme of belting, and utheris ceremonies . • 
 " observit in sic oaisses," cited p. 212 ; explained p. xxxviii, 
 n.*. 
 
 Act of James VI., 1621, respecting sealing of writs, p. v. 
 
 Act Piesoissory of Charles II., 1661, annulling the usurping 
 
 Parliament of 1649, without reservation, p. 484 : — And 
 
 see pp. 1,58, 149, 150, 153, 255, 302; 337 and n. ft ! 370 
 
 and n. J. 
 Act of Charles II., 1672, authorising charters to be registered 
 
 before appension of the Great Seal, pp. v, 379. 
 Act of Charles II., 1681, attempting to resume from the 
 
 Court of Session the judicial cognisance of the Crown — 
 
 repealed after the Revolution, p. LIV, n. J. 
 Act of "William and Mary, 1689, styled the 'Claim of Right,' 
 
 pp. Lvn sqq., 214, 221, 255. 
 Act of Union, 1707 : — See Union, treaty of. 
 Acts of Parliament, English, cited and referred to, — 
 
 Act Rescissory of Henry IV., 1399, p. 391 : — And see pp. 
 
 XXXIV, XV sqq.. 13 sqq., 19 sqq., 31 sqq., 296 ; 328 sqq., 
 
 and relative notes. — See Norfolk, Dukedom of. 
 Act 17th Edward IV., 1477-8, specially annulling the creation 
 
 of the Dukedom of Bedford, p. xxv. 
 
 Acts of Parliament, Irish; cited and referred to, — 
 
 Act 28th Henry Vni., 1 536-7, styled the ' Act of Absentees,' 
 pp. xxv, xxvi. 
 
 Acts of Parliament of Great Britain, cited and referred to, — 
 Acts of Queen Anne, George II., George III., &c., modifying 
 the constitution of Scottish tribunals, subsequently to the 
 Union, p. LX, n. f. 
 Act 4th George II., 1730-1, styled the ' Alien Act,' pp. XLV, 
 
 xci, xcii. 
 Act 10th George IV., 1829, prohibiting Roman Catholic pro- 
 cessions, p. xcm. 
 
 Address to Her Most Gracious Majesty, pp. i sqq. 
 
 Advertisement and Introduction, pp. [i] sqq. 
 
 Advocate, the Lord, Speech of, in opposition to the present 
 
 claim, pp. 223 sqq. 
 Airth, Earldom of, the patent of the, not registered, but ad- 
 mitted in the recent claim, p. 405 and n. \. 
 , ' , claim to the, argument of Lord Advocate 
 
 Rutherford on the, p. oxxxviii. 
 Alderson, Baron, dictum of, on the grammatical infei'pretation 
 
 of statutes, p. xoin, notes * and (°). 
 ' AUegit,' force of the qualifying adjunct, p. xl. 
 ' AUooare ' and ' allocatio,' technical meaning of, pp. Ixxiii ; 320 
 
 and n. X ; 512, n. "". 
 Almond, Lord, his appeal to Parliament from the Court of Session, 
 
 1674, pp. xlviii, 147, 254, 495 sqq. 
 Altamira, the Counts of, usually styled so although also Dukes 
 
 of Montemar, pp. xoiv, 101. 
 Altrie, Barony of, patent of the, p. 536:— And see pp. ovi, 98, 
 
 178, 297 ; 356 and notes * and §. 
 America, United States of, non-supremacy of the legislature of 
 
 the, p. 151. 
 Analysis of the Argument, &o. in the present claim, pp. i sqq. : 
 
 — Principles on which it has been prepared, p. [iv]. 
 Angus, the Earl of, temp. Mary Queen of Scots, his jealousy of 
 
 the title of Duke, pp. cxviii, 100. 
 
 Angus, Earldom of, claims to the, by James VI. and Douglas of 
 Glenbervie, before the Court of Session, in 1588, pp. Liv, 
 ^. t ; IV. 
 
 Annandale, Earldom of, claim to and case of the, in 1844, 
 principles of law established or illustrated by the, viz., 
 
 1. That patents fall to be interpreted and corrected (if 
 necessary) by the warrants, or signatures, on which they 
 proceed, p. 176. 
 
 2. That all relative documents in pari materia are presumed 
 to be before the Crown, and to be consulted and referred 
 to, when it confers a grant of honour, p. cxli. 
 
 3. That the term 'heirs* includes collaterals, pp. cxxxviii ; 
 342, n. *. 
 
 Antecedent and primary facts and principles govern and control 
 subsequent and secondary facts and principles, by priority of 
 obligation, pp. XXVI and n. || ; Lxxxvii, n.*; ci, cii, ciii; 317, 
 u. * ; 319, n. % ; 355, li. t ; 365, u. * ; 369, n. t ; 544. 
 
 Appeal, alleged right of, from the Court of Session to Parliament, 
 denied by the Claimant. — See Court of Session. 
 
 , no Act of the British Parliament has substituted an, to 
 
 the House of Lords, for the condition under which protesta- 
 tions for reraeid of law to Parliament were allowed by the 
 Claim of Right in 1689, or annulled the ancient and inherent 
 jurisdiction of the Court of Session in honours — and conse- 
 quently the independence of 'the Court of Session in civil 
 causes (including honours) remains legally inviolate, as it stood 
 at the time of the Union, p. LX. 
 
 , the practice of, from the Court of Session to the House 
 
 of Lords, as at present exercised, is unwarranted by any legal 
 
 authority, the result of usurpation, and rests solely upon custom 
 
 and usage, p. Lxrv. 
 Appendix of evidence in the present claim, pp. 371 sqq.: — 
 
 Principles adopted in preparing it, p. [v]. 
 Application of a general Act indispensable in order to render it 
 
 effective against individuals, pp. xx, 9, 117 sqq., 154, 226, 227 ; 
 
 314, n. ■*. 
 Arbuthnot, Sir Robert, of that ilk, letter to, from James IV., 
 
 1489, p. ciii, u. f. 
 Argyle, Colin Earl of, confirmation of a charter to, by James VI., 
 
 1580, p. 400 : — And see p. xxx. 
 , William Bishop of, grant to, by Queen Mary, 1550, 
 
 p. 417:— And see pp. xliii, 35. 
 Aristocracy, jealousy of the Scottish, against the title of Duke, 
 
 pp. cxvi, cxviii, 100, 103, 203. 
 Arran, Earldom of, charter of the, by James IV., 1503, p. 413: 
 
 — And see pp. xxxvii, 243 ; 332 and n. t- 
 , , inauguration of the, p. 412 : — And see pp. 
 
 xxxvii, 60, 163, 493. 
 
 -, process for recovery of the, before the Court 
 
 of Session, 1 586, pp. LV, Ivii. 
 
 , confirmation of the, on the principle acciimu- 
 
 landi jura juribus, 1621, p. xliv. 
 ' As accords of the law,' force of the phrase, pp. lv, n. % ; LXii, 
 
 n.^ 
 Attainder, Forfeiture, and Deprivature, by Act of Parliament, 
 
 always expressed in the quequidem clauses of subsequent grants 
 
 of the forfeited property, pp. cix; cxxiv und n. f ; cxxv, 176. 
 
 , &c. could in Scotland be reversed or superseded by 
 
 Royal remission, or even by the simple (intentional) recogni- 
 tion and will of the Sovereign, pp. lxxxvii, Ixxxviii, Ixxxix, 
 76, 78, 125, 194 ; 336 and n. ** ; 365 and n. *. 
 
 can only now be reversed by Act of Parliament, p. 194. 
 
 , frequent recent instances of reversal of Acts of, pp. XL, 
 
 XLI, XLIII, XLIV. 
 
 , general admission that the present or Montrose case is 
 
 not II case of, pp. XXXIX and n. t ; vii, 233, 313, — and broad 
 contrast established between the position of the Claimant and 
 that of the representatives of attainted peers, p. xxxix. 
 
 -, Acts of Restoration against, — per modam graticB, pp. 
 
 XLVi, XLvn ; per modumjustitia:, p. XLVii. 
 Attorney General, Speech of the, pp. 181 sqq. 
 
 B. 
 
 BALCARRES, the Earls of, become 'Lords Lindsay' {par excel- 
 lence') in 1744, on the death of the last Baron of Edzell, as 
 next heirs male of the House of Crawford, — succeed under the 
 regrant 1642 (after long exclusion) as Earls of Crawford, as by 
 Resolution of the House of Lords in 1848, &c., p. cxviii. 
 
 Balfour, Sir James, Lord President, his description of Confirma- 
 tions, p. xxvii, n. §, — his doctrine on restoration by Royal re- 
 mission against forfeiture, p. Ixxxix. 
 
 of Burleigh, Barony of, the patent of the, in 1607, con- 
 veyed an hereditary dignity, although without a limitation, 
 p. Lxxxiv, — was not registered, p. 405. 
 
 Balmerinooh, Barony of, was restored by James VI., without aid 
 from Parliament, against Attainder, pp. Ixxxix ; 336, n. ** 
 
GENERAL INDEX. 
 
 577 
 
 Banbury, Earldom of, judgment with reference to it by Lord 
 Chief Justice Holt, in 1694, to the effect that the House of 
 Lords could give no opinion on a question of peerage which 
 had not been put before them by reference from the Crown, 
 p. XXVII, n. * :— And see p. txix. 
 
 ~~^ > , dictum of Lord Erskine in the case of the, 
 
 in 1811, to the effect that sitting in Parliament ennobles the 
 blood for ever, p. lxxv. 
 
 1 , lay peers voted on the Kesolution upon 
 
 the claim to the, in 1813, p. a, n. J. 
 
 Bankton, Lord, testimony of, that the Court of Session was su- 
 preme, without appeal, previously to 1689, pp. Liii ; Ivi, n. §. 
 
 , -^ , his dictum, that later titles of honour, founded on 
 
 earlier rights of barony or Lordship which have always gone to 
 heirs male, are descendible likewise to heirs male, pp. xc ; 
 Cxl, II. f . 
 
 Baronies, old English, recent claims to, unopposed on the ground 
 of non-user and dormancy, pp. xiv, n. f ; cxvii, n. f. 
 
 Bayley, Sir John, Bart., counsel for the Claimant, pp. x, 524. 
 
 Beaumont, Barony of, claim to the, pp. xiv ; cxvii, n. f. 
 
 Bedford, Dukedom of, specially annulled by Act of Parliament, 
 17th Edward IV., p. xxv. 
 
 Belting — ^^waa merely one of the ceremonies of inauguration at- 
 tendant on the creation of a peerage by patent or charter, — 
 this affirmed by Lords Marchmont, Mansfield, and Hardwicke 
 in the Cassillis claim in 1762— denied by Lord Mansfield in 
 1785 and by Lord Loughborough in 1797, who both then sup- 
 posed that ' belting ' created a dignity — but recognised and 
 reaffirmed by Lord Chancellor Cranworth and Lord St. 
 Leonards in the Montrose claim, in 1853, pp. xv, xxxvii, Ixiv ; 
 Ixvii and n. f ; 61, 62, 90, 164, 168, 212 ; 334 and n. X ■■ 342 
 and n. ||; 364, n. t ; 491 and n. § ; 493, 548, 552, 555, 556, 
 557, 559, 561, 562, 566, 568, 572. 
 
 . , a title of honour was not taken previously to the cere- 
 mony of, pp. vi, XXXV, 160 ; 321, n. ^. 
 
 Benignant, or favourable, interpretation prescribed in charters, 
 works of mercy, restoratory statutes, &c., pp. xxill, u. ^ ; 
 cxxvii, 11. * ; 327, n. ("). — See Coke. 
 
 interpretation prescribed in doubtful cases, — see 'In 
 
 ' diihiis,' &c. 
 
 ' Benignior interpretatio est in favorem reipublicse,' cited, p. 440. 
 
 Berners, Barony of, claim to the, pp. xrv ; cxvii, n. f. 
 
 Bethel], Sir Richard, — see Solicitor General. 
 
 Black, David Dakers, Esq., of Kergord, his evidence, pp. xxxii. 
 282, 405, 406. 
 
 Blackstone, Sir William, deprecates the idea of the ' omnipotence' 
 of Parliament, p. xvui. 
 
 — , his statement that such of the civil laws of Scotland, 
 
 existing at the time of the Union, as have not been altered by 
 Parliament, are still in force, p. Lxxi. 
 
 -, his classification of the nobility and what pertains to 
 
 them as inter civiles and civilia, pp. Liv ; 367, n. ("). 
 
 Borthuik, Barony of, capitals and Italics used in the ' Minutes of 
 ' Evidence ' in the claim to the, p. [vi]. 
 
 Botecourt, Barony of, claim to the, p. cxvii, u. f. 
 
 Bothwell, Earldom of, creation of the, in 1488, pp. 5.'i2, n. + ; 
 557, — not affected by alienation of the principal fief of Both- 
 well, granted with the dignity, in 1492, pp. cxiv; 347, n. X\ 
 566. 
 
 , John Lord, forfeited in 1488, pp. vii, xli. — See 
 
 Ramsay. 
 
 Brandon, Dukedom of, conferred upon the Dukes of Hamilton in 
 1711, remarkable case of the, in that year and in 1782, pp. 
 xsvm, II. t ; LXVin, lxxii sqq. 
 
 Braye, Barony of, capitals and Italics used in the ' Minutes of 
 ' Evidence ' in the claim to the, p. [vi]. 
 
 Breadalbane, Earldom of, patent of the, in 1682, not (originally) 
 registered, p. 405, — registration of the, in 1745, by warrant of 
 the Court of Session, p. lxix, n. % 
 
 Brechin, burgh of, charter to the, by James HI. in 1488, which 
 stood and stands at the present day, in face of the Act Rescis- 
 sory pp 404 sqq.:— And see pp. xxxii, cxxii, 80, 81, 132, 219, 
 240, 282 ; 326, n. % ; 347, n. t ; 349, n. + ; 359, n. %. 
 
 Brougham, Lord, his judgment, 15th April 1851, on the preli- 
 minary question of the Duke of Montrose's right to oppose in 
 the present claim, p. 373'»,— his subsequent observation, p. 
 374*,_references to that judgment and subsequent observa- 
 tion during the course of the present claim, pp. 1, 2, 180, 256 ; 
 or, printed all together in approximation, p. XVI, n. |1 :— See 
 also pp. VII, viii, and xvi. 
 
 , , his opinion on the present claim, as stated by 
 
 Lord St. Leonards, p. 372, and n. § :— And see p. cxxxviii.— 
 That opinion does not formally include the subject of the 
 Montrose Eegrant, as introduced into the Kesolution, pp, cxli, 
 cxxxvii ; although he undoubtedly expressed a similar opinion 
 during an early stage of the discussion, p. 99.— Lord Brougham 
 was (doubtless unavoidably) absent during the greater part of 
 the Claimant's Reply, p. 372, n. ("). 
 
 , , his Speech in approval of the reversal of the 
 
 Perth attainder, 1853, p. XLI, n. *. 
 
 Brougham, Lord, his judgment in the case of Lang v. Lang, to 
 the effect that deeds of entail are to be construed strictly, like 
 penal statutes, in favour of freedom, and against fetters and 
 penalties, adopted and followed by the Lord Chancellor and 
 Lord St. Leonards in a recent case, pp. xciv, xov. 
 
 Brougham, Lord, dicta of, viz. 
 
 1. That the rules governing dignities in England and Soot- 
 land have great resemblance, and were probably origi- 
 nally the same; and that consequently ancient Scottish 
 precedents are admissible and in point in claims to ancient 
 English dignities, (and of course ancient English pre- 
 cedents in Scottish, &c.), p. xv, n. "". 
 
 2. That the House of Lords is a Scottish court, and is guided 
 by Scottish law, in a Scottish case, p. 340, n. ("). 
 
 3. That the decisions (opinions) of the House of Lords of 
 England and Ireland (respectively) in peerage claims, pro- 
 nounced before the Union, are binding on the British 
 House of Lords now — inducing a legitimate and a fortiori 
 inference with respect to the Scottish Court of Session, 
 pp. XV, n. * ; Ixii ; Ixv, n. § ; 340, u. (») ; 371, n. ». 
 
 4. That a dignity or title of honour cannot be taken away 
 (where there is no deficiency or corruption of blood) ex- 
 cept by express words in an Act of Parliament, pp. xxv, 
 xxvi ; 314, ii. { : — And, 
 
 5. That not only the words of Acts of Parliament but the 
 decisions upon them are to be taken account of in their 
 construction, p. 372, n. (»). 
 
 Bruce, of Stenhouse, charter to, by James II., 1451, confirmed in 
 
 14S9, p. 399 : — And see p. xxix. 
 Buchan, the Earl of, attainted in 1488, p. vii. 
 , John, Earl of, James IV. described as ' heir ' to, being 
 
 in reality heir male, and heirs general being alive, p. cxsxix. 
 -, Earldom of, case of the, (as discussed in the Cassillis 
 
 claim,) pp. 553, 557. 
 
 c. 
 
 CAITHNESS, Earldom of, the right to, discussed by the Court 
 of Session in 1681, pp. Lv; Ivii, n. % — and again, under dif- 
 ferent circumstances, in 1790, p. Lxix, n. ^. 
 
 , Earls of, their relative rights of precedency, as 
 
 affected by the Decreet of Ranking in 1606, the subject of 
 litigation subsequently till 1648, pp. 418 sqq. ; — And see 
 Glencairn. 
 
 Camoys, Barony of, claim to the, pp. xiv ; cxvii, n. f . 
 
 , , capitals and Italics employed in the ' Minutes 
 
 ' of Evidence ' in the claim to the, p. [vi.] 
 
 Campbell, Lord, his judgment on the preliminary question of the 
 Duke of Montrose's right to oppose in the present claim, p. 
 373*. — And see also p. vii. 
 
 , , his character of Lord Chief Justice Crewe, p. 
 
 XIV, u. t, — of Lord Loughborough, p. 364, n. %. 
 
 , , his observations on the reversal of the Perth at- 
 tainder, p. XLI, u. *. 
 
 Capital and Italic Letters, use of, in ' Minutes of Evidence ' in 
 peerage claims, vindicated by practice hitherto, and on prin- 
 ciples of common sense ; but ruled not to be admissible in the 
 present claim, p. [v], n. +. 
 
 Carmichael, Margaret, Duchess of Montrose, grant to, by David 
 Duke of Montrose, 20th October 1488, and Confirmation 
 thereof by James IV. of the same date, pp. 514 sqq. : — And see 
 pp. bxviii sqq., 73, 74, 123, 124, 191, 204, 232; 322 and 
 notes + sqq. ; 352 and n. f ; 353 and notes * sqq. 
 
 Carnegie, James, Esq., W. S., professional assistance rendered by, 
 p. [vii]. 
 
 ' Carte conficiende,' ordered to he executed by warrants of re- 
 grants of honours de novo, the limitation and mode of tenure in 
 such are always heritable ; and in such ' carte conficiende,' 
 proceeding on reserved powers in the warrants, the substitu- 
 tions are more copious and full than in the usual patents of 
 honours, standing alone, without such further adjunct, p. evil. 
 
 Cassillis, Earldom of, the patent not registered, p. 405, n. %. 
 
 , , claims to the, and Barony or Lordship of 
 
 Kennedy, in 1762, — Cases of the Claimants, and Report of the 
 Speeches of Lord Marchmont, Lord Mansfield, and Lord Hard- 
 wicke, pp. 544 sqq., — Resolution in the, p. 560. 
 
 Cassillis, Earldom of, principles established and recognised by 
 the decision on the claims to the, in 1762, viz., 
 
 1. That a peerage (Earldom or Dukedom) cannot be created 
 by ' belting ' simply — there must be a charter or patent, 
 pp. 555, 556, 557, 560 : — And see pp. Ixiv, 62, 168. 
 
 2. Th'at the warrant from the Sovereign is the criterion by 
 which patents of honours fall to be drawn up, controlled, 
 and construed, p. 559. 
 
 3. That the Sovereign cannot grant by novodamus a dignity 
 which has not been resigned, pp. 558, 560 : — And see 
 pp. cii, 168, 169. 
 
 4. That the legal presumption governing the descent of 
 peerages where the patents are lost is against the heirs 
 general and in favour of heirs male, pp. 556 sqq., 560 : — 
 And see pp. Ixiii, cxxxviii. 
 
 4 E 2 
 
578 
 
 GENERAL INDEX. 
 
 5. That if the landed estate, as held at the time of creation, 
 was limited to heirs male, the title cannot be supposed to 
 descend in a different channel from the landed estate, 
 p. 557 : — And see pp. Lxxxiii, Lxxxv, xc. 
 
 6. That it is not to be believed that a higher title (such as 
 the Earldom of Casaillis) could ever be intended to go to 
 heirs female if the lower (and older) title (such as that 
 of ' Lord Kennedy ') goes to heirs male, p. 559 : — And 
 see pp. ixxxv and n. * ; xc, cxl. — And, 
 
 7. That the Court of Session was competent in cases of 
 honours in 1706, — while the decision of the Court in the 
 Lovat claim, in 1730, was founded upon and supported, 
 p. 558. 
 
 Cassillis, Earldom of, the Resolution in the claim to the, in 1762, 
 generally, penned (by the testimony of Lord Loughborough) 
 to mark the presumption of law against the heir general and 
 in favour of the heir male, p. 491.' 
 
 • , Earls of, their relative rights to precedency as affected 
 
 by the Decreet of Ranking in 1606, and subsequent litigations, 
 pp. 418 sqq. : — And see Glencairn. 
 
 , , pedigree of the, p. 548, n. «. 
 
 Caution, in deciding causes in the last resort, preeminently 
 essential, p. xii. — And conf. Cruise, as quoted p. xxvin, n. * 
 
 Chairman of the Committee of Privileges, — see Eedesdale. 
 
 Chamberlain, Lord Great, of England, claims to the office of, 
 temp. Charles I., pp. v, u. f ; xiv, n. f. 
 
 Chancellor, the Lord High, — see Cranworth, Truro. 
 
 Chandos, Barony of, lay peers vote on the claim to the, in 1803, 
 p. X, n. X- 
 
 ' Change * of an Earldom into a Dukedom (as in the Montrose 
 case) contended to imply ex necessitate a continuance of the 
 Dukedom in the same line of succession as the Earldom, 
 p. cxl. 
 
 Charles I., letter of, to the Court of Session, on the claim to the 
 Earldom of Home, 1633, p. 538, u. *. 
 
 , vindication of, with respect to the Ratification of the 
 
 Earldom of Glencairn, 1637, pp. 336, n. ** ; 365, n. *. 
 
 Charles II., succession of, as heir male, to (he honours and 
 estates of the Dukedom of Lennox, with relative documents, 
 1672, pp. Lxxxn sqq. 
 
 , correspondence of, with the Court of Session, on the 
 
 subject of appeals to Parliament, 1674 ; with Lord Stair's 
 statement of the circumstances out of which that correspond- 
 ence arose, pp. 495 sqq. : — And see pp. xlix, 57, 149, 214, 
 255. 
 
 , letter of, to the Court of Session, in 1679, vindicating 
 
 their supreme authority in all matters of law, including digni- 
 ties, p. 148 ; — And see pp. LV, Ivii, 148. 
 
 Charters, Royal, the production of the clerks of Chancery out of 
 the Royal presence and control, are bound to be in conformity 
 with their warrants, which proceed from the King himself, — 
 they must carry out all that the warrants ordain and con- 
 template, and nothing inconsistent with them ; and if they 
 vary from the warrants, they fall (by the rule and usage of 
 the House of Lords in peerages, and otherwise) to be corrected 
 by them, pp. XCI, Ixx; Ixxi, n. * ; Ixxxiv, n. f ; civ, 173, 176 ; 
 325, n. § ; 352, o. * ; 353, n. || ; 356, n. § ; 551 and notes * and 
 t ; 553 and n. | ; 558, 559 : — For the effect of the recent 
 Resolution upon this principle see p. XX, — See Dignities, crea- 
 tion of; Patents; Warrants. 
 
 , Royal, expressed 'by authority of Parliament,' have, 
 
 by English law, the character, force, and authority of Acts of 
 Parliament, pp. 393 sqq. : — And see pp. xxxiv, xxxvi, xviii, 
 xix, 30, 31, 297 ; 329 and n. * ; 356, n. § ; 362 and n. J.— See 
 Cornwall. 
 
 , Royal, general importance of, pp. 555, 558, 559. 
 
 , illustrations of the mode in which the different clauses 
 
 succeed one another in, pp. 533, n. *; 539, n. *. — And see 
 
 Dispositive clause, Tenendas clause. Testing clause. 
 , generally, the description of persons and places in, 
 
 regulated by the warrants, pp. Ixxi. n. *" ; 325, n. §. — See 
 
 Stuart, Andrew. 
 , generally, do not become a real right till completed by 
 
 seisin, p. LXxxiii, u. *. — See Stair. 
 , statements in Royal, granted in times of turbulence 
 
 and political struggle, are not always implicitly to be depended 
 
 upon, p. cix, n. +. 
 
 -, see Confirmations. 
 
 Civil actions, all, in Scotland, including claims to dignities, were 
 under the final and exclusive jurisdiction of the Court of 
 Session, pp. LlV sqq., Ivi, 299 sqq. ; 366, n. || ; 458 sqq. 
 
 jurisdiction, peerages even in England are classed under 
 
 and governed by the, pp. MV ; 367, u. ("). 
 
 Claim of Right, the, 1689, — see Acts of Parliament, Scottish. 
 
 Clifford, Barony of De, claim to the, pp. xiv, u. t ; cxvii, n. f. 
 
 Clifton, Barony of, its creation and descent, claim to, &o., pp. 
 
 Lxxxi sqq. 
 Cockburn, Sir Alexander, — see Attorney General. 
 
 Coke, Sir Edward, his Report of the Cornwall or Prince's Case, 
 pp. 393 sqq. ; — And see Cornwall, 
 
 Coke, Sir Edward, dicta of, viz., 
 
 1. That Acts of Parliament are to be so construed that no 
 innocent person be, by a literal construction, punished or 
 endamaged, pp. XX ; xiv, n. f ; xxii, n. J ; 347, n. "". 
 
 2. That Acts for the purpose of restitution should be con- 
 strued most benignly, pp. xxin, n. ^ ; cxxvii, u. *■ ; 
 327, n. (-). 
 
 3. That the words " et cetera " are important, and how so, 
 p. 355 and n. %. 
 
 Collace of Balnamoon, grant to, by James III., 1488, maintained 
 to have stood, unaffected by the Act Rescissory, p. 401 : — And 
 see pp. xxvi, xxxiii, xxxiv, Ixix, cxxii, 81, 130, 131, 239 ; 326, 
 n. I ; 347, n. f ; 359, n. t ; 508. 
 
 Colville of Culross, Barony of, claim to the, in 1723, pp. LXVI; 
 368, ii. tt, — after long dormancy, p. cxvii, n. t, — the registra- 
 tion of the patent of the, received by the House of Lords, 
 pp. vi, 258. 
 
 ' Comitatus,' ordinary technical meaning of, pp. xxxviii, n. f ; 
 558 and n. I, — the mere erection of estates into a, or into a 
 ' Ducatus,' without more, did not carry a dignity, p.LXXviil 
 and n. §. 
 
 Committee of Privileges, narrative of the proceedings of the, in 
 the present claim, pp. VII sqq. 
 
 , the lay peers who compose a, equally 
 
 entitled with the Law Lords to take part in its proceedings, 
 p. X and n. %• 
 
 Confirmations of Scottish Charters, two kinds of, viz. 1. Ordinary 
 Confirmations, in the case of valid charters, for the purpose of 
 registration ; 2. Confirmations for the purpose of salving flaws 
 in the charters confirmed, the result of revocatory or prohi- 
 bitory Acts of Parliament, pp. xxvii sqq. ; 402, u. *. 
 
 , Specimens of ordinary, pp. 398 sqq. : — And see 
 
 pp. xxviii, xxix, 38, 132 ; 322 and n. ||. 
 
 , Specimens of, to salve flaws, pp. 399 sqq. : — And 
 
 see pp. XXX ; 402, u. '*'. 
 
 ■ of Scottish peerages, accumulando jura juribus, 
 
 pp. xliv; cii, n. J; 538 and n. * ; 555,— of English, pp. xviii, 
 398, — the Regrant of the Dukedom of Montrose maintained to 
 be of this class, pp. cii and n. % ; cix, 167 sqq. ; and the Rati- 
 fication of the Earldom of Glencairn, pp. xliv, 38 ; 336, u. ** ■ 
 365, n. *. 
 
 -, see Ratifications. 
 
 ' Contemporanea expositio,' held to be peculiarly admissible in 
 the present claim {Lord Chancellor), pp. xxvi, 315, 316 ; but 
 strictly speaking unnecessary (^Claimant and Crown), pp. xxvi, 
 104, 105, 239, 258, 274, — while submitted to be triumphantly 
 in the Claimant's favour, pp. Ixix ; 317, n. |1 ; 326, n. \ ; 
 361, u. t. 
 
 -the Claimant's proposition, that if. 
 
 as held by the Crown, all the grants of James III., without 
 exception, were destroyed by the mere passing of the Act 
 Rescissory, then, if any of those grants survived notwithstand- 
 ing that Act, all must have survived, including the Dukedom 
 — as advanced and discussed before the Committee, pp. Ixix, 
 72 sqq., 81, 82, 130 and 131 sqq., 187 sqq., 231 sqq., 273 sqq. ; 
 — General conclusions of the Committee upon this point of the 
 argument, pp. Ixix, 317, 326, 357, 361. 
 
 • , the, generally, in the present claim, 
 
 not completely cited, but for the greater part overlooked and 
 ignored, by the Committee of Privileges, pp. Ixix; 317, n. |1; 
 326, n.J; 329, u. §; 343,n. f; 346, n. ** ; 347, n. t ; 361, n. 
 t; 573. 
 
 Context,' the, of the grant of the Dukedom of Montrose, in 
 1488, proves that the dignity was intended to descend to the 
 heirs male, p. cxl. 
 
 , , of the grant of the Dukedom of Lennox in 1581, 
 
 and that of the grant of the Dukedom of Montrose (the Re- 
 grant) in 1489, compared, — with important inferences in proof 
 of the hereditary and male construction of the latter, pp. 
 LXXXV sqq. 
 
 Cornwall, Dukedom of, case of the, or ' Prince's Case,' — the 
 patent of the Dukedom decided in 1605 to have the character, 
 force, and authority of an Act of Parliament, pp. 393 sqq. : — 
 And see pp. xxxiv, xxxvi, xviii, xix, 30, 31, 297 ; 329, n. "■ ; 
 362 and n. J. 
 
 , , case of the, how dealt with in the pre- 
 sent case, as founded on by the Claimant, pp. xxxiv, xxxvi, 
 329, 362. 
 
 Court of Session, the, as established in 1532, held by the Claim- 
 ant to have been supreme in all civil causes, including dignities, 
 without appeal to King or Parliament, in 1648, when it decided 
 that the patent of the Earldom of Glencairn, conferred by 
 James III. in pari casu with that of the Dukedom of Montrose, 
 was not annulled by the Act Rescissory, — with relative discus- 
 sions, pp. xliii, xlvii sqq., Ivi sqq., 32, 57, 58, 140, 147 sqq., 
 214 sqq., 220 sqq., 254, 255, 299 sqq., 458 sqq. ' 
 
 Court of Session, I'fa.riis.tive and Inquiry, illustrating the origin 
 and extent of the jurisdiction of the, in civil causes, including 
 dignities, previously to the Revolution of 1688 and the Union ; 
 the rights of the Court and of the Subject as affected by the 
 Treaty of Union ; and the origin, growth, and character of the 
 intervention of the House of Lords (whether ,as an Appellate 
 court or as acting on reference from the Crown) in Scottish 
 
GENERAL INDEX. 
 
 579 
 
 cases,— the conclusion being, that the Court was supreme, 
 without appeal to King or Parliament, previously to the Union, 
 and that the rights of the Court, and of the Subject to resort 
 to it, were reserved to the Court and the Subject, respectively, 
 by the Treaty, and are still in force, pp. Lii sqq.— See Ses- 
 sion, Lords of. 
 
 Court of Session, testimony to the supremacy of the, in honours, 
 previously to the Union, 
 
 1. By the Kings of Scotland, pp. Lni; LV, n. ** ; xlix, Ivi, 
 Ivii, 147, 148, 149 ; 365, u. * ; 495 sqq. ; 538, ... ♦. 
 
 2. By the Privy Council, pp. LV, xlvii, Ivii, 147 ; 335, notes 
 t and§; 369, n.f; 418 sqq. 
 
 3. By Parliament, pp. LUi, Lvui, xlix ; Ivi, u. §,— and com- 
 pare Glencairn, charters, &c., No. 26. 
 
 4. By Lord Stair, pp. lui, xlviii, 58, 150 ; 365, n. § ; 195. 
 
 5. By Lord Bankton, pp. Liii, Ivi. 
 
 6. By Ersldne, p. 254. 
 
 7. By Lord Mansfield, pp. LVIII ; 365, u. § ; 558. 
 
 8. By Lord Loughborough (a fortiori), p. 491, and n. f- 
 
 9. By Wallace, pp. LXVIII, LXX ; 368, n. ||. 
 
 Court of Session, testimony to ditto from uniform practice, pp. 
 LV ; Ivii and n. If ; Iviii. 
 
 , testimony to ditto by the Court of Session it- 
 self, in the Glencairn case in 1648, p. 442 and n. f. 
 
 , testimony (inferentially, and a fortiori) of Lord 
 
 Brougham, to the fact that a decision of the, pronounced pre- 
 viously to the Union, is binding on the House of Lords now, 
 pp. 340, n. («) ; 371, n. * :— And see pp. Mi ; Ixv, u. §. 
 
 , Remonstrance, by the Earl of Glencairn, against 
 
 the appeal to (the rebellious) Parliament from the decision of 
 the, in 1648, pp. 458 sqq. : — And see p. LVI, n. *. 
 
 , History of the conflict between the, and the 
 
 advocates, in 1674, pp. Lin sqq., xlviii, 214, 254, 495 sqq. 
 
 -, the supreme jurisdiction of the, in 1648, the 
 
 sole important point in the Glencairn and Montrose case — any 
 conceivable change in the constitution or authority of the 
 Court subsequently to 1648 being wholly irrelevant to the 
 matter, pp. LVI, Lxxi, xlix, 303. 
 
 , Opinions of the Committee of Privileges on the 
 
 above proposition of the Claimant, that the, was supreme in 
 honours in 1648, &c., pp. 335 ; 336 (and see n. ^), sqq. ; 340 
 (and see n. *) ; 365 sqq., and relative notes ; 369, n. f. 
 
 -, Effect of the view taken by the House of Lords 
 
 on the above point, viz., that the judgments of the, previously 
 to the Union, are no longer binding on the House, p. xxiv. 
 
 -, the question whether or not the, possesses the 
 
 right of deciding a peerage claim at present, discussed, pp. 
 LIX sqq., Iviii, 300, 302 : 368, n. JJ ; 369, n. *. 
 
 acknowledgment of Lord St. Leonards, that 
 
 there is nothing in the Act of Union to disturb the right and 
 powers of the, if that Court really had the exclusive jurisdic- 
 tion in honours, p. 368, — and see p. xxx, n. ♦. 
 
 , Report of the, to the House of Lords, in 1740, 
 
 respecting the state of the Scottish Peerage, pp. LXVII, n. f ; 
 LXX and n. * ; 366, n. * ; 547, n. *. 
 
 -, Enumeration of Acts of the British Parliament, 
 
 modifying the constitution of the, subsequently to the Union, 
 
 p. LX, n. t. 
 , the ' Nobile officium ' appertaining to the, p. 
 
 367, n. (•>). 
 Courts, all the legal, in Scotland were courts of registration, p. v. 
 
 u. («). 
 Craig, Sir Thomas, doctrines of, 
 
 1. That recognition by the King, " sciens," or intentionally, 
 works rehabilitation on a forfeited person, p. Ixxxviii, 
 n. ti — impugned by the Crown, pp. 154, 194: — See also 
 pp. 548, 549. 
 
 2. That by the feudal law the succession went to males, ex- 
 cluding females, pp. 548, 556. 
 
 Cramond, Barony of, patent of the, p. 537 : — And see pp. cvi, 
 297 ; 356 and n. §. 
 
 Cranworth, Lord, his concurrence in the decision upon the pre- 
 liminary question of the Duke of Montrose's right to oppose, 
 pp. VII, 374*. 
 
 , , the Lord Chancellor, his observations during 
 
 the present claim, pp. 3 and sqq., passim, — his Speech in mov- 
 ing the Resolution of the Committee of Privileges, pp. 311 
 sqq. 
 
 , holds, contrary to Lord St. Leonards, that the 
 
 reign of James IH. lasted till his death, p. 313 and n. f . 
 -, , admits the injustice attendant upon the legis- 
 lation which produced the Act Rescissory, pp. 313, 316, — and 
 se%p. XXXVIII, n. *,— his mode of interpreting the Act Rescis- 
 sory, pp. XXI, n. J ; XXXI ; 314 and n. §. 
 
 -, asserts the " omnipotence " of Parliament as 
 
 sufficient to destroy dignities in the aggregate, without specifi- 
 cation, and even although the King be not present at such 
 annulment, pp. 312; 313 and u. * ; 314 and n. f ; 326 and n. 
 ^. — And see Parliament. 
 , , opinions of, canvassed, pp. xviil sqq. 
 
 Cranworth, Lord, his opinion on the necessity of literal inter- 
 pretation of Acts of Parliament, as expressed in his decision on 
 the Shedden Appeal case, pp. XLiv sqq., xcii ; and likewise on 
 the necessity of a strict interpretation of penal statutes, 
 favourably for those supposed to be struck at by them, as in 
 another recent matter, pp. xciii, xciv, — contrasted with his 
 mode of interpreting the Act Rescissory in the present claim, 
 pp. XLIV sqq., XCIV. 
 
 , , his Speech for the most part an echo of the 
 
 Attorney-General's, p. xxvi, n. *. 
 
 , , his observations on the Perth and Melfort 
 
 attainders canvassed, pp. xlviii sqq. 
 
 Crawford, Earldom of, its creation, and early succession of the, 
 p. 5. 
 
 , David, 5th Earl of, his character, his power, and the 
 
 change of the Earldom of Crawford into the Dukedom of 
 Montrose in his favour, with limitation to himself " et here- 
 " dibus suis," in 1488, pp. xxxix, XLiii, iii, v, &c., pp. 5 sqq., 
 and passim. — See Acts of Parliament, Scottish, and Montrose. 
 
 , David 5th Earl of, styled occasionally ' Earl of Craw- 
 
 ' ford ' between the Act Rescissory and the Regrant — according 
 to the Crown in consequence of the effect of the Act — but, 
 according to the Claimant, behind the back of the Crown, the 
 King himself having recognised him as Duke in the most 
 solemn manner, and the Duke retaining the estates granted 
 with the dignity, pp. xo sqq., 101 sqq , 133, 134, 187 sqq., 189, 
 193, 195 sqq., 200, 201, 203, 204, 211, 223, 228, 231, 232, 233, 
 234, 237, 294:— And also styled so after the Regrant, when 
 undoubtedly Duke, pp. xciii, 294, 518, 519.— See Exchequer, 
 Molls of the; and Montrose. 
 
 , , grant to, of the Dukedom of Mont- 
 rose, de novo, 1489, p. 531. — See Montrose. 
 
 , , charter to, of the Sheriffdom of 
 
 Forfarshire, in 1'166, to him " et heredibus suis," and paral- 
 lelism of this grant, as regards the limitation, with that of the 
 Dukedom, p. 524. — Vide infra, and see Forfarshire, and 
 Montrose. 
 
 , Alexander, Master of, eldest son of the Duke, p. 544; 
 
 — And see pp. 103, 237. 
 
 ■ — , John 6th Earl of, the Duke's second son, his character, 
 
 and reasonings on the fact that he did not assume the Duke- 
 dom, pp. cxv, cxvi, cxvii, 103, 201, 237, 238, 279, 317, 319, 
 345; 357 and n. f. 
 
 , , Criminal Letters against, for fratri- 
 cide, p. 544 ; — And see p. cxvii. 
 
 1 , has grants of novafeoda, to him " et 
 
 "heredibus suis," which descended nevertheless to heirs male, 
 passing over heirs general, pp. XLiii, cxlii. 
 
 , Alexander, 7th Earl of, rcE^sons why he did not assume 
 
 the Dukedom, pp. cxvi, cxvii, 202, 237, 544. 
 
 -, David, 8th Earl of, fact and supposed cause of his non- 
 
 assumption of the Dukedom, pp. cxvi, cxvii, 237, 544. 
 , Alexander ' the Wicked Master' of, pp. cxvii, 103. 
 
 , Earls of, immediately subsequent to Duke David, 
 
 their non-assumption of the Dukedom accounted for on gene- 
 ral grounds, pp. cxvi, cxvii, cxviii, cxix, 103 ; 357, n. f . 
 
 , , the investitures of the, were exclusively to 
 
 heirs male, in absolute exclusion of females, before, in, and 
 after 1488, pp. XLn ; Lxxxvii and n. f ; cxl ; 494, u. »* ■ 
 495, n. ('). 
 
 , the Earls of, the collateral heirs male of Duke David, 
 
 carry on a litigation for several generations, for the recovery 
 of the Sheriffdom of Forfarshire, under the character of the 
 Duke's ' heirs ' under the charter 1466, pp. Ixxxiv, cxlii, 288, 
 290; 351, n. 1; 524 and n. *. 
 
 , Earls of, succession of the Byres line of the, through 
 
 the resignation of Ludovic the 16th Earl, in 1642, pp. LXVII, 
 n. (°) ; cxvii. 
 
 -, George 21st Earl of, succeeds to the Crawford estates 
 
 as 'heir ' (i. e. collateral heir male) of his predecessor John 
 the 20th Earl (who died in 1749), to the exclusion of nearer 
 heirs general, by decision of the Court of Session, pp. XLiu, 
 cxlii. 
 
 -, James 24th Earl of, and 7th Earl of Balcarres, his 
 
 claim to the Dukedom of Montrose, &o. &c., pp. vi sqq., and 
 passim. 
 
 is heir male of David Duke of 
 
 Montrose by decision of the House of Lords in 1848, pp. 
 Lxxxvn, cxl. 
 
 , Earldom of, attempted claim to the, by David Lindsay 
 
 of Edzell, before Parliament, 1685, pp. LV, n. f fff j Ivii, 
 
 n. 1. 
 , Earldom of, and Earldom of Sutherland, litigations 
 
 respecting their relative precedency, pp. Lix, 220 : 365, notes 
 
 § and C) ; 557, 558, 
 , Earls of; pedigree of the— faces the Title. 
 
 Crawford, George, his ' Officers of State ' quoted, pp. 244, 253. 
 
 Crewe, Sir Randolph, Lord Chief Justice, Speech of, on the Ox- 
 ford claim, p. XIV, n. t,— his character by Lord Campbell, 
 ibid. 
 
 Criminal Letters against John 6th Earl of Crawford and others, 
 1512, p. 544. 
 
580 
 
 GENERAL INDEX. 
 
 Crown, Officers of the, their duty in watching peerage claims — to 
 investigate, "with the view of ascertaining truth, whether it tell 
 in favour of the Claimant or against him, according to the pre- 
 sent Claimant, pp. xvi, 285 ; 345, n. ^ — to oppose, in the 
 interest of the Crown as identified with the defeat of such 
 claims, in the opinion of the Crown and of the Committee of 
 Privileges in the present case, pp. xvi; 345 and n. ^.— See 
 Dignities. 
 
 , , conduct of the, in the present case, 
 
 remarked upon, pp. xvi sqq. 
 
 , admission of the, that the (asserted) an- 
 
 nulment of the Montrose Dukedom was the result of a success- 
 ful rebellion, and unjust, pp. XXSVIII, 182, 183, 222, 223, 224. 
 
 Cruise, observations of, in his Treatise * on Dignities,' on Reso- 
 lutions of the House of Lords, pp. V, n. f ; xxviii, n. t, — on 
 the Purbeck and Grey de Ruthyn cases, p. LXVII, n. f, — his 
 narrative of the proceedings in the House of Lords regarding 
 the Dukedom of Dover, p. Lxxiii, and of the claim to the 
 Dukedom of Brandon, p. Lxxiv, — his statement of the rule that 
 a summons to Parliament and sitting in Parliament creates the 
 hereditary dignity of Baron, p. LXXXIV, n. §. 
 
 Cuninghame, Sir Walter Montgomery, Bart., of Corsehill, as heir 
 male of the Earls of Glencairn, opposes Sir Adam i'ergusson's 
 claim to the Earldom, as heir female, in 1797, pp. xxxv, 490. 
 
 , Sir Thomas Montgomery, Bart., the present heir 
 
 male of the House of Glencairn, p. xxxv. 
 
 Cunninghams of Corsehill, their descent, pp. xxxv ; 342, n. J. 
 
 , of Polmaise, father and son, grant to the, by 
 
 James III., 1488, which stands unaffected by the Act Eescissory 
 — with relative proofs, pp. 402, 403 : — And see pp. xxx sqq., 
 131, 219, 240 sqq. ; 326, n. J ; 347, n. t ; 349, n. f ; 380. 
 
 Customs, revenues from the, always received by the Crown 
 Officers first, and paid by them to the hereditary Crown pen- 
 sioners, p. 317, 11. §. 
 
 - — ■ of Montrose, see Estates, Exchequer, Montrose. 
 
 D. 
 
 DARNLET, Lord, styled so long after his creation as Duke of 
 Albany, pp. xcv, 101. 
 
 , Earl of, the present, heir of line of the House of 
 
 Lennox, pp. LXXX sqq. 
 
 ' De non apparentibus,' &c., the rule constantly in view hitherto 
 in peerage claims, disregarded by the Lord Chancellor and 
 Lord St. Leonards in the question of the supposititious Glen- 
 cairn patent in 1503, p. 333, n. ft ; 342, n. f ; 371. 
 
 Decision, a competent, removes out of the v.'ay all argument and 
 all principle, so as to make it impossible to apply them, pp. 
 LVI ; Ixv, n. J. 
 
 Decreet of Ranking of the Scottish nobles, by Royal Commission, 
 under James VI., 1606, and which refers parties unjustly 
 ranked to the Court of Session for redress, pp. 418 sqq.: — And 
 see pp. LV, xliii sqq., xlvii, Ivii, 36 sqq., 137 sqq., 147 ; 335, 
 n. X ; and indeed passim. 
 
 Decreets of the Court of Session, in absence and in foro contra- 
 dictorio, contrast between — the latter final, p. xlviii, n, *. 
 
 , their form and structure, and 
 
 how printed in the Appendix to this volume, p. [vi]. 
 
 Defoe, ' History of the Union' by, extracts from the, p. LXi, 
 11. *. 
 
 Desuetude, Scottish Acts of Parliament are abrogated by, pp. 
 XXXIII, xiii, cxxiv, cxxv, 8, 82, 117 sqq., 230 ; 326, n. || ; 460. 
 
 Devon, Earldom of, in the Courtenays, circumstances attending 
 the grant and dormancy of the, and the successful claim in 
 1830, pp. XIV, n. -j- ; xv, n. * ; cxvii, cxviii, cxix, 102, 103, 
 104, 180 ; 345 and n. %. 
 
 , , the registration of the patent of the, re- 
 ceived as sufficient by the House of Lords, pp. vi, 258. 
 
 Devon, Earldom of, principles established and illustrated by the 
 claim to the, viz., 
 
 1. That non-claim and dormancy, even although not accounted 
 for, is no bar, pp. cxvii, cxix, 102, 104, 180 ; 345 and n. J; 
 357, u. t- 
 
 2. That the fact of identity of name, and of the actual dig- 
 nity claimed having been bestowed on other families, is 
 no bar, pp. 103, 104 ; 335, u. f. — And, 
 
 3. That the term ' heirs ' in a patent includes collaterals, 
 pp. cxxxviii ; 342, n. *. 
 
 Devon, Earldom of, — Objection of Lord St. Leonards that the 
 Devon and Montrose cases are not parallel as regards dor- 
 mancy, p. 345, — and see n. |. 
 Dignities, general principle, that the King's direct concurrence 
 and sanction, clearly and distinctly expressed, is absolutely re- 
 quisite, by peerage law, in the peculiar and privileged subject 
 of, pp. XX, xii, Ixx, &c. ; 326 and n. 1[ ; &c.,— and see Dignities, 
 creation of; Sovereifjn; Warrants. 
 Dignities, creation of, 
 
 1 . Is honourable and profitable to monarchs, pp. xil ; xiii 
 and n. * ; xxi, 388, 389, 531 ; and to the commonwealth, 
 — and the whole public are interested in their mainte- 
 nance and conservation, pp. xiv, cxix, 179. 
 
 2. Is the act of the Sovereign alone, and not of Parliament, 
 pp. XVIII sqq., xvii ; 392 : — For contrary views see pp. 
 XIX, n. * i cxi, 173, 174, 175, 196, 291, 318. 
 
 3. Cannot take place (in the case at least of Earldoms and 
 higher dignities) without a charter or patent — belting, or 
 inauguration, being a mere formality consequent or de- 
 pendent upon the patent, pp. 555, 556, 557, 559 : — See 
 Belting. 
 
 4. All documents in pari materia, must be presumed to be 
 before the Sovereign and to be duly weighed and consi- 
 dered in drawing up patents of the, p. oxli. 
 
 5. Patents of the, must be under the sign manual, and not 
 the mere ' caschet ' or warrant of Exchequer, in order to 
 be effectual, pp. Ixxxviii, n. t ; 551, 558, — and must be 
 drawn up in strict conformity to the Royal warrants or 
 signatures on which they proceed, everything depending 
 on the personal intervention and will of the Sovereign ; 
 and if they vary from the warrants, they fall (by the rule 
 and usage of the House of Lords and otherwise) to be cor- 
 rected by them, pp. xci, Ixx, 173, 176. — And see Charters, 
 and Warrants. 
 
 6. The general words, " to be bruikit, joisit," &c. in patents 
 of the, or the corresponding words in Latin, do not con- 
 stitute a limitation, — and explanation of those words, 
 p. LXXX and n. f. 
 
 7. A limitation is not always necessary or essential to the 
 hereditary constitution of a dignity, pp. LXXX sqq. — See 
 Lennox, dukedom of; and Limitation. 
 
 8. The mere erection of lands into a ' Comitatus ' or ' Duca- 
 ' tus,' without more, did not carry a dignity, p. Lxxvm and 
 n. §. 
 
 Dignities, annulment or alienation of, is only to be effected, con- 
 stitutionally, 
 
 1. By Attainder, pp. vii, 9, 12, 13, 104, 179.— Or 
 
 2. By an Act of Parliament specially naming and individu- 
 alising the dignity, pp. Lxxv, 16, 17, 104, 179 ; for gene- 
 ral words, or a mere reference or pointing to it, without 
 specification, will not suffice, pp. xxin, xvii, xix, xxv, 
 xxvi, 8, 17, 296; 314, n. J; 330, n. f ; 362, n. %; 392,— 
 and such Act must proceed upon the personal sanction and 
 with the direct concurrence of the Sovereign, pp. xi, xii ; 
 326 and n. % — and compare generally pp. LXXIII, Lxxv. 
 — Or, 
 
 3. By resignation, pp. 104, 179, 551, 558, 566. — If a resig- 
 nation in favorem took place, the King could regrant, 
 either to the same person or to others, p. 552 ; but not 
 otherwise, — a dignity cannot be regranted by the Sove- 
 reign by novodamns without a resignation, pp. 558, 560, 
 565, — and see pp. cii and n. f ■, 168, 169. Under any 
 circumstances, whatever may have been the intention of 
 the resigner, it is unavailing unless clearly and articu- 
 lately expressed; and if, in the resignation of family 
 dignities for new investiture, one of them be accidentally 
 omitted, that one is held to descend according to the ori- 
 ginal investiture, unaffected by the resignation, p. vii, n. 
 I, — and see Queensberri/, Spynie. 
 
 Dignities, annulment or alienation of, e contra, can not be affected, 
 directly or indirectly, 
 
 1. By a general Act of Parliament, which does not specify 
 the particular dignity intended to be rescinded, — tit 
 supra. 
 
 2. By a regrant which does not proceed on resignation, — iit 
 supra. 
 
 3. By non-assumption or dormancy, pp. xiv and n. f ; xvi, 
 xxxv, xxxvi, cxv; cxvii and n. f ; 102, 103, 180, 181, 
 274, 345 ; 357, u. f ; 411, 434, 439. 
 
 4. By acquiescence, real or supposed, in the unjust depriva- 
 tion of a dignity, pp. xciv, cix, cxxiii, 167, 179, 228, ,321 ; 
 359 andn. **. 
 
 5. By the creation of other dignities with the same title, 
 and taken from the same locality, pp. cxvii, cxx, 103, 104 : 
 335, II. f. 
 
 6. By the alienation of lands granted at the same time with 
 the dignity, and presumably intended to descend along 
 with it, pp. xiii; cxiii, ii. |{ ; cxiv, 159; 347, n. |; 358, 
 n. II ; 411, 566. 
 
 7. By the acceptance, or use, of inferior titles, or titles 
 limited for a shorter period, p. 175; nor by description 
 by a lower title, the person so described being at the time 
 entitled to the higher— i. e. through misnomer, pp. xciv, 
 cxviii, 294 ; 326, n. t ; 335, n. *.— And sec Glencairn, 
 Norfolk. 
 
 Dignities, annulment or alienation of, is not to be presumed (the 
 supposed effect of a deprivatory statute being alleged aminst 
 them), if other dignities created in pari casu have surwed, 
 unaffected by such statute, pp. xvii, 17 ; 329, n. §; 362, n. * ; 
 392,— -And see Norfolk. 
 
 Dignities, the descent of, 
 
 1. Was regulated originally in Scotland by the feudal law, 
 which preferred males, (Cassillis case,) pp, 547 sqq., 
 566. 
 
GENERAL INDEX. 
 
 581 
 
 2. Was^ governed by the same rules originally in England 
 and Scotland, and precedents &om the history of either 
 country are thus in point, p. xv, n. *. 
 
 3. Is to be ascertained and regulated, in the case of Scottish 
 dignities, by Scottish law, pp. LXXI; 340, n. ("). 
 
 4. The presumption with regard to, generally, is always in 
 favour of heirs male, p. 491.— And see p. cxxxviii, n. %■ 
 
 5. Is by "the strongest presumption" to heirs male (as 
 having been originally feudal) if the limitation of the 
 original patent be not discoverable, pp. 491, 556 sqq., 
 
 6. Cannot be presumed to be in a different channel from 
 the estate of the family, and if the latter was limited at 
 the time of creation to heirs male, the title must go to 
 heirs male, p. 557 : — And see pp. Lxxxrn, Lxxxv, XO. 
 
 7. Is ascertainable (as an element of consideration) from 
 the investitures of the estate, when the limitation is un- 
 known, pp. cxxxviii sqq., and relative notes; 494, 566 sqq., 
 — and even from reference to the way most frequent, and 
 to the destination of contemporary and entirely extraneous 
 grants of dignities, pp. 557 ; 567, n. * ; 571. 
 
 8. Is presumable to heirs male if the descent of the lower 
 dignities is to heirs male ; for it cannot be supposed to 
 be intended that the titles should separate and go in dif- 
 ferent channels, p. 559 : — And see pp. Lxxx;v and n. * ; 
 XC; cxl, II. -f. 
 
 9. Is presumable in favour of heirs male from the practice 
 of resignation, in order to introduce heirs female, pp. 548, 
 557, 560. 
 
 10. Must be in the old channel in cases where the inferior 
 and older family honour is merely changed and elevated 
 into a higher, pp. xc, cxl. 
 
 Dignities, claims to, 
 
 1. Were reckoned among civil causes in Scotland, pp. Liv 
 sqq., Iviii, — discussed by the Privy Council occasionally 
 in an interim manner, but by the Court of Session finally, 
 as the ultimate tribunal, without appeal to King or Par- 
 liament, up to the Union, and indeed subsequently thereto, 
 pp. LIV sqq., Ivi sqq.; Iviii, u. J; 366, n. || ; 558,— -the 
 right of the subject to prefer such claims to the Court of 
 Session, and of the Court of Session to adjudge upon such 
 claims, being reserved and secured to the Court and the 
 Subject by the Treaty of Union, pp. Lix sqq. — See Court 
 of Session. 
 
 2. Are now, both Scottish and English, in usual course, ac- 
 cording to the English custom, preferred to the Sovereign, 
 by petition ; and are generally referred by Him to the 
 House of Lords for their Opinion and Advice — the Sove- 
 reign being entitled however to refer such petitions to 
 any tribunal He may deem fit — to refer the case a second 
 time to the same or another tribunal, if dissatisfied with 
 the Opinion reported to Him — and ultimately to do that, 
 by personal and independent decision, which shall be just 
 in the matter, pp. iv; v andn. +; xxvni, n. f ; 300.— In 
 important cases the House of Lords frequently demand 
 and obfain the assistance and advice of the Judges, pp. v, 
 n. t ; Lxxin, Lxxv. — See House of Lor^s. — For assertion 
 of an inherent right of jurisdiction over dignities in the 
 llouse of Lords, see St. Leonards. 
 
 3. The establishment of, not injurious to the Crown or 
 Commonwealth ; but, e contra, every patent of nobility is 
 supposed to be granted for the general benefit, and the 
 whole public is interested in its maintenance and support, 
 pp. XIII, oxix, 169, 179 ; 372, n. f, — the time spent on the 
 investigation of such claims is therefore not to be grudged 
 or cavilled at, pp. xiv, xv, — and it is for this cause that 
 dignities have been considered hitherto exempt from pre- 
 scription, p. 179. 
 
 4. Lord St. Leonards' proposition to put a limitation upon, 
 protested against, and the contrary proposition submitted, 
 that it is as much the interest of the Crown and the Peer- 
 age that rightful claims should be established as that un- 
 grounded claims should be rejected, pp. xiv, xv. 
 
 5. Contradictors in, are not to be admitted unless possessed 
 of peculiar means of information, or interest, warranting 
 their admission, p. 373*. Inconvenience through iden- 
 tity of title, and loss of precedency, are no ground for 
 opposition, pp. vn, 103, 104. 
 
 6. Should, like other matters of right, be judged and ascer- 
 tained by reference to law as existing at the time when 
 the rights under discussion originated, not by law as sub- 
 sequently changed or modified, p. xxvi, n. ||. — And see 
 Priority of obligation, and Stair. 
 
 Dignities, the laws and principles applicable to, generally, how 
 affected and reversed by the proceedings and dicta of the Noble 
 and Learned Lords who have reported against the present 
 claim — (if, that is to say, the Resolution be upheld and acted 
 upon by Her Majesty) : — It must (on that understanding) be 
 held henceforward, 
 
 1 . That persons opposing claims to peerages, even although 
 their right to oppose may be disallowed by a Committee 
 of Privileges, may expect to be allowed to appear by their 
 counsel, and may assist the Crown, at the bar of the 
 House ; and the Officers for the Crown, with the implied 
 
 sanction of the Committee, will adopt and plead their 
 cause, p, XVII. 
 
 2. That a dignity may henceforward be restricted or an- 
 nulled by the simple Omnipotence, or arbitrary tyranny, 
 of Parliament, irrespectively of any crime on the part of 
 the holder of the dignity, and apart from the presence or 
 sanction of the King, which is perfectly immaterial, pp. 
 XVIII, XIX ; XX and n. *. 
 
 3. That an Act of Tarliament striking at, or pointing to, 
 dignities in general terms, but of which the words are 
 inadequate of themselves to give effect to the assumed 
 intention of the legislature, may have effect given to it by 
 importing or exscinding words, so as to make it apply, 
 pp. XX sqq., — and, generally, that statutes, however con- 
 fessedly unjust, impious, or disloyal, are to be inter- 
 preted and enforced according to the presumed intention 
 of the Parliament that passes them, and not according to 
 the grammatical meaning of the words actually used ; and 
 that words may be either virtually expunged from such 
 statutes or positively imported into them, in order to give 
 that presumed intention effect— against justice and mercy, 
 in penal statutes, and in the matter of honours, p. xxi. 
 
 4. That the rule 'in dubiis benigniora semper scquenda 
 ' sunt ' is to be disregarded henceforward in honours, p. 
 xxn. 
 
 5. That penal statutes are to be construed as broadly, and 
 remedial statutes as narrowly, as possible, henceforward, 
 in regard to dignities supposed to be affected by them, p. 
 
 XXII. 
 
 6. That dignities may henceforward be abolished in the 
 aggregate by general words in an Act of Parhament, with- 
 out individual specification, and without application, trial, 
 or conviction, pp. XXIII, 313 ; 314 and n. *. 
 
 7. That the decisions of the Court of Session, the Supreme 
 Civil Court of Scotland, in Scottish peerage claims pre- 
 viously to the Union are no longer to be considered bind- 
 ing on the House of Lords, p. xxiv. 
 
 8. That, if a discrepancy appears between the language of a 
 patent of peerage and the Royal warrant whereupon that 
 patent proceeds, the warrant shall be corrected by the 
 patent, and not the patent by the warrant, as formerly, 
 p. xxrv. 
 
 9. That non-claim and acquiescence in deprivation of -a 
 dignity are to be counted henceforward as considerations 
 adverse to a Claimant, pp. 343 ; 345 and relative notes ; 
 357, i.. t ; 359, u. **. 
 
 10. That the establishment of a right to peerage is (appa- 
 rently) to be deprecated, p. xii; and that prescription 
 should be introduced in peerages, pp. xiv, 345. 
 
 11. That antecedent and ascertained facts and documents 
 may be interpreted by posterior expectation and hypo- 
 thesis, — see Expectation. 
 
 12. That, generally, truth is to be ascertained by reference 
 to law as existing — not at the period when the facts which 
 form the subject of inquiry occurred, but at the moment 
 when the inquiry takes place, p. XXVI and n. ||. 
 
 Dignities, for life only, grants of, very rare in Scotland ; only 
 one before 1489, p. cv, u. §. 
 
 , patents of, adduced to shew that words expressing a 
 
 grant for life frequently precede a limitation to heirs in the 
 dispositive clause, pp. 536 sqq. 
 
 , Confirmations of patents of, in recognition of existr 
 
 ing rights, pp. xliv ; 538 and n. *. 
 
 Dingwall, Barony of, claim to, discussed by the House of Lords 
 illegally, without reference from the Crown, in 1711, p. Lxvi 
 and n. *. 
 
 Dispositive clause, the, in Scottish charters frequently grants a 
 subject for the life of the grantee only, or to the grantee, 
 simply, without more — the limitation to heirs being found 
 solely in the tenendas clause, pp. cvi, 98, 99 ; 356, n. § ; it 
 being, in fact, only a modern practice, in deviation from the 
 ancient form, to insert the limitation in the Dispositive clause, 
 p. cvi, n. J. 
 
 Don, Lady Harriet, sister of the late Earl of Glencairn, defends 
 the possession of the last line of the Earls of Glencairn in 
 1796-7, p. 491. 
 
 Doncaster, Earldom of, restoration of the, against forfeiture, in 
 1742-3, p. xxxrx, n. *. 
 
 Dormancy of the Dukedom of Montrose, how accounted for, pp. 
 
 cxvi sqq., 103 ; 357, u. f- 
 . of a dignity no bar to a claim, pp. xiv and n. f ; xvi, 
 
 xxxv,xxxvi, cxv ; cxvii and n. f ; 102, 103, 180, 181, 274, 
 
 345. 
 Dormer v. Philips, judgment in the case of, in 1854, illustrating 
 
 the flexibility of the term ' heirs,' even in England, p. 
 
 cxxxviii, n. f- 
 Doubt, benefit of, the Claimant entitled to the, on all points ad- 
 mitting of hesitation, p. xiv ; — And see ' In dubiis,' &c. 
 Douglas, James, ofPlttendriech, charter to, by James III., 1490, 
 
 p. 507 : — And see pp. xxxiii, 240. 
 
582 
 
 GENERAL INDEX. 
 
 Dover, Dukedom of, conferred in 1708 upon the Dukes of 
 Queensberry, remarkable case of the, in 1711 and afterwards, 
 pp. XXViii, n. f ; LXVIII, LXXII sqq., — disallowed notwithstand- 
 ing sittings in Parliament, pp. Lxxii, LXXV. 
 
 Drummond, House of, pp. XLVin sqq. ; jl., u. *. — See Melfort, 
 and Perth. 
 
 , Lord, restoration of, against forfeiture, by the Re- 
 gent Albany, in 1524, p. LV, n. fttt- 
 
 ■ and Duchray, lands of, granted by the patent creating 
 
 the Earldom of Glenoairn, pp. xxxix, 407 ; but not enjoyed — 
 according to the Crown and the Committee of Privileges, 
 through the effect of the Act Rescissory — but, according to 
 the Claimant, through the original proprietors not having been 
 dispossessed by forfeiture at the time when the grant was made, 
 which thus proceeded a nan habente potestatem, pp. 332, 407 
 sqq., 410, 439, 492. 
 
 ' Ducatus,* — see * Comitatus,' 
 
 Duffus, Barony of, claim to the, before the House of Lords, in 
 1734, pp. LXVI ; 368, n. %%. 
 
 Duke, the title of, only borne by members of the Royal family in 
 Scotland previously to the creation of the Dukedom of Montrose, 
 and only granted under peculiar and special circumstances for 
 two centuries afterwards, pp. cxvi, cxviii, 42, 203. 
 
 Dukedoms in France, different classes of, p. XLii, n. *. — The 
 French Dukes only ranked from the date of the registration of 
 their patents, p. v, u. f. 
 
 Dunbar, Earl of, Act of forfeiture of the, 1434, pp. xii, 128 : — 
 And see p. LIV, n. (•). 
 
 , James, charter to by James III., 1488, asserted to have 
 
 been annulled by the Act Rescissory, p. 509 : — And see pp. 
 xxxiii, 240, 277,. 
 
 Dundas, John, of that Ilk, charter to, confirmed by James III., 
 1481, p. 398 : — And see p. xxviii. 
 
 Duplin, Barony of, patent of the, to Sir George Hay, 1627, p. 
 178. 
 
 E. 
 
 EDWARD II., parallel by the Crown between the deposition of, 
 &e. and that of James III., p. 182. 
 
 Edward IV., view taken by the first Parliament of, with refer- 
 ence to the enactments of the preceding reigns, p. 1 83. 
 
 Eglinton, Earldom of, the patent of the, not on record, p. 405, — 
 the original alleged (by implication) to have been burnt, with 
 all the family writs, by the Master of Glencairn before 23rd 
 January 1528, pp. 453, 478. 
 
 , Earls of, contest for precedency between the, and the 
 
 Earls of Glencairn, — the question turning on the points, whe- 
 ther the Glencairn patent 1 488 had or had not been annulled 
 by the Act Rescissory, and whether a new patent had' or had 
 not been granted to the Earls of Glencairn in or about 1 503 — 
 both of which points were decided in the negative, in favour 
 of Glencairn, by the Court of Session, the Supreme and ulti- 
 mate tribunal, in 1648. — See Glencairn. 
 
 ■ Memorandum ' for the Earl of, in contemplation of his 
 
 appeal to Parliament in 1649 (proving that the Decreet 1648 
 went fundamentally on the patent 1488 as unaffected by the 
 Act Rescissory), p. 461. — And see Glencairn. 
 
 Act of Parliament in favour of Alexander Earl of. 
 
 deleting the ' Supplication' of Glencairn, 1649, p. 461. — And 
 see Glencairn. 
 
 Decreet by Parliament (then in rebellion), 9th March 
 
 1649, at the instance of Alexander Earl of, annulling the De- 
 creet of the Court of Session 1648, pp. 464 sqq. — And see Glen- 
 cairn. 
 
 -, Observations on the earliest evidence (in 1500, 1502, 
 
 and 1503) adduced by Alexander Earl of, in his defence against 
 Glencairn in 1648, p. 439, n. * :— And see pp. 304 ; 336, n. §. 
 
 -, Hugh 1st Earl of, his Sederunt, 25th March 1503, as 
 
 ' Earl of Montgomery,' pp. 443, 444, 454, 476, 477, 480, 483 : 
 — And see pp. lix, 156 ; 339, notes f and J ; 439, n. * ; 460 
 and n. * ; 494. 
 
 , Hugh 1st Earl of, proof that he bore and subscribed by 
 
 the alternate style of Earl of Montgomery' in 1516, p. 505 
 —And see Montgomery, Earl of. 
 
 -Further proof that all the early Earls of, were occasion- 
 
 ally styled Earls of Montgomery, pp. lix and n. ^ ; 249, 250, 
 304, 305; 339 and notes f and f. 
 
 -, Earldom of. Letter of the Privy Council to James VI., 
 
 on the succession to the, in 1613, pp. LV, Ivii, 147 ; 369, n. f . 
 -, the present Earl of, and of Wintoun, his courtesy and 
 
 assistance in the present claim, &c., pp. [viii], 39, 
 
 Egmont, House of, in Flanders, their style by their lower title, 
 
 p. xciv, n. -f. 
 Eldon, the Lord Chancellor, dicta and opinions of, viz., 
 
 1 . That great caution is requisite in the decision of causes 
 by a tribunal of the last resort, such as the House of 
 Lords, and without such caution the House would be the 
 worst tribunal in the land, p. xil. 
 
 2. That English impressions are to be jealously guarded 
 against in deciding Scottish causes, and vice versa, p. 
 LXXi, n. I. 
 
 3. That all argument and principle is removed out of the 
 way by a competent decision, so as to make it impossible 
 to apply them, pp. LVi ; Ixv, n. §. 
 
 4. That a notary public, by the law of nations, has credit 
 every where, p. 520, n. *. 
 
 Enrolment, the mere, of a Scottish Act of Parliament, striking 
 generally at honours, sufficient to give it force and authority 
 to destroy honours, even although the King was not present at 
 its enactment — asserted by the Lord Chancellor, p. 326 — dis- 
 sented from, n. || ; and see p. xx and n. *. 
 
 Entail, deeds of, — see Irritant clauses. 
 
 Epithets, qualificatory, applied to persons whose titles were for- 
 feited or questioned, p. xl and n. {|. 
 
 Equitable construction of statutes, the limits of, p. xx, n. ||. 
 
 Erskine, Sir Robert, charter to, of the Sheriffdom of Stirling by 
 James IV., 1 506, pp. xxxi, 404.— See Cunninghams of Polmaise. 
 
 , Lord Chancellor, his dictum, that sitting in Parliament 
 
 ennobles the blood for ever, p. LXXV. 
 
 -, John, author of the ' Institute,' his narrative and defini- 
 
 tion of the authority of the Court of Session .and the right of 
 appeal to Parliament, p. 254,— and see p. Liv, n. ♦. 
 
 contrast drawn by, between decrees in absence 
 
 and decrees injbro contradictorio, p. xlviii, n. '*'. 
 
 -, — — , an interlocutor in proesentid, under what circum- 
 
 stances it becomes res judicata, as stated by, p. Ix, n. *. 
 Erskinft, John, dicta of, viz. 
 
 1. That laws and statutes ought to be interpreted by the 
 obvious meaning of the words, and in no case so as to 
 infer injustice or absurdity, pp. xx and n. f ; xxi, u. * ; 
 xiv, 262. 
 
 2. That penal statutes are to be construed strictly, pp. xiv, 
 263. 
 
 3. That a law must not be extended to any case to which 
 the reason inductive of the law is not applicable, pp. XXI, 
 n. X ; xiv, xxiv, 273. 
 
 4. That privileges which draw no prejudice are to be inter- 
 preted largely and favourably, pp. Lxxxin and a. || ; xiv, 
 262. 
 
 5. That, by the ancient Scottish forms, the limitation ap- 
 peared only in the tenendas clause of charters, pp. cvi, n, J ; 
 540, 11. *. 
 
 6. That Ratifications in Parliament carry no new right, and 
 barely confirm what was formerly granted, pp. xxvii, n. §. 
 
 7. That the term ' heirs ' is flexible, and varies in meaning 
 according to circumstances, p. cxxxviii and n. f. — And, 
 
 8. That where there has been an antecedent destination, the 
 term ' heirs ' implies, not the heirs at law, but the heirs of 
 the former investiture, p. cxli. 
 
 Estates, the, granted with the Dukedom of Montrose, were of but 
 small value, pp. XLin, cxiv and n. -f : — Were enjftyed, notwith- 
 standing the Act Rescissory, during the interval between the 
 Act and the ifegrant, pp. 509 sqq., — and see pp. Ixxi sqq., 
 Ixxvii, cxv, 78 sqq., 205 sqq., 223, 280, 281, 317, 319 sqq., and 
 relative notes : — Were regranted, according to the Crown and 
 the Committee, for life only, and resumed after the Duke's 
 death, pp. 541 sqq., — and see pp. cxli sqq.j 79, 80, 119, 120, 
 121, 129, 204, 205 sqq., 238, 239, 280, 281, 316; 317, and rela- 
 tive notes; 320 and n. *■* ; 321 and notes "■ and f ; 358 and 
 notes t, §, II, and^, — but, according to the Claimant, through 
 the operation of the Act 1493 or the exercise of oppression, pp. 
 cxiv, 275 sqq. ; 320, n. """, — the effort of the opposition being 
 to connect the fate of the estates and dignity so as to infer the 
 extinction of the latter, p. 319, n. §, — whereas the alienation 
 of the estates could not impair the grant of the dignity, pp. 
 cxiii, n. || ; cxiv, &c. (see Dignities, annulment of) :• — The con- 
 clusion of the Lord Chancellor being, that, while the Duke was 
 allowed to retain the estates by a compromise, the only im- 
 portant point is, that the Duke's heirs never had » farthing 
 from them, p. 320 and relative notes. 
 
 , granted simul et semel with a dignity, were very fre- 
 quently not erected into a ' Comitatus * or * Baronia ' corre- 
 sponding to the dignity, p. c, n. JJ. 
 
 -, granted with a dignity, and presumably intended to 
 
 descend along with it, might be alienated without any impeach- 
 ment on the existence or descent of the dignity — and so in the 
 case of the Dukedom of Montrose, pp. xlii ; cxiii, n. |{ ; cxiv, 
 159. — See Dignities, annulment of. 
 
 , descent of the family, an element of consideration in 
 
 ascertaining the descent of the Barony of Spynie in 1785, p. 
 568, and of the Earldom of Glencairn in 1797, p. 494, — and 
 see p. cxxxviii, n. J. 
 
 ' Et cetera,' importance of the words, p. 355 and n. ^. 
 Evidence, oral and documentary, adduced by the Claimant and 
 
 Crown in this case, pp. 371*", sqq.: — And see pp, [xxxvii] 
 
 sqq. 
 , remarks on the mode of printing the, in this Report, 
 
 pp. [v] sqq. and note ; 394, n. * ; 403 ; 405, n. f ; 408, n. * ; 
 
 410, 411 ; 432, n. § ; 541, n. * ; 544. 
 
GENERAL INDEX. 
 
 583 
 
 Evidence, the, in thia claim was not printed when the decision 
 was pronounced — this productive of serious detriment, and a 
 very dangerous precedent, pp. xi and n. *; xii, 298: 312, 
 n. * ; 356, n. §. 
 
 ' Ex gratia ' and ' ex toUerantia,' legal force of the adjuncts, pp. 
 Ixxv, ixxvii. 
 
 Exchequer, the Officers of the, kept estates of the Crown on their 
 books after they had been granted away in perpetuity, as 
 in the iustance of Kinclevin, pp. 317, u. § ; 354, n. f. 
 
 > , their testimony not impartial when 
 
 against the subject, p. cxiii. 
 
 ; . Rolls of, evidence afforded by the, in the present 
 
 claim : — They prove, 
 
 1. That David Duke of Montrose enjoyed the estates 
 granted with the Dukedom, with assent and recognition 
 of the Crown, being moreover styled Duke, during the 
 interval between the Act Rescissory and the Kegrant, 
 p. 509 :— And see pp. Ixxi sqq., cxv, 78 sqq., 205 sqq., 
 223, 280, 281, 317 ; 319 sqq., and relative notes. 
 
 2. That the Duke was styled ' Earl of Crawford ' during the 
 interval in question, pp. 526, 529 sqq. :— And see pp. xc 
 sqq., xcvi sqq., 101, 187 sqq., 223, 228, 231 sqq.; 322 and 
 n. ** ; 325 and n. § ; 326 and n. f ; 352 and n. * ; 333 
 and notes * and J ; 354 and n. * ; 357. 
 
 3. That the estates were resumed by the Crown on the 
 Duke's decease, and were never enjoyed by his successors, 
 pp. 541 sqq. :— And see pp. cxii sqq., 79, 80, 119, 120, 
 121, 129, 204, 205 sqq., 238, 239, 280, 281, 316 ; 317, and 
 relative notes ; 320 and n. ** ; 321 and notes * and f ; 
 358 and notes J, §, ||, and ^. 
 
 4. That the Duke was styled ' Earl of Crawford ' even before 
 the Act Rescissory, in virtue (as alleged) of the Proclama- 
 tion, although admitted not to have the force of law, p. 
 526:— And see pp. xcii, 181, 188, 189, 233.~And, 
 
 5. That the Duke was styled ' Earl of Crawford ' even after 
 the Regrant, when he was by general admission Duke of 
 Montrose, pp. 518, 519 : — And see pp. xcv, 200, 201, 294. 
 
 Mxchequer, Rolls of, Analysis of the accounts of the Customs 
 of Montrose in the, p. 512. 
 
 , , Inaccuracy of the clerks, whose accounts 
 
 are transcribed into the, in matters not specially appertaining 
 to their routine of duty, p. 513, u. f. 
 
 Excommunication, question suggested how far men in a state of, 
 were legally capable of enacting statutes of deprivation, such 
 as the Act Rescissory, in the fifteenth century, p. 322, n. *. 
 
 Exeter, the Bishop of, his observations on the construction of 
 penal statutes, p. xcni, n. ("). 
 
 Expectation, presumption, and hypothesis, argument from, not 
 safe or appropriate in inquiries like the present, where no- 
 thing but strict evidence, proceeding from earlier ascertained 
 facts to later, and interpreted by the strictest rule in favour of 
 the Claimant, is admissible by peerage law, pp. 317, n. * ; 
 319 and n. I ; 320 and n. **. 
 
 r. 
 
 FERGirSSON, Sir Adam, Bart, heir of line of the House of 
 Glencairn, p. xxxv, n. * : — For his claim to the Earldom of 
 Glencairn, see Glencairn. 
 
 Feudal law, views of, as regulating the descent of dignities (Cas- 
 sillis claim), pp. 548 sqq., 556. 
 
 Fiefs, — see Estates. 
 
 Fitzwalter, Barony of, claim to the, p. cxvii, u. t. 
 
 Forbes, Duncan, of Culloden, Lord Advocate, and afterwards 
 Lord President, his argument in the Oxenfurd claim, before the 
 Court of Session, vindicating the jurisdiction of the Court in 
 honours, in 1733, p. LXix,— argued the Lovat case in 1730, p. 
 558. 
 
 Forfarshire, hereditary Sheriffdom of, conferred upon David 
 Earl of Crawford (afterwards Duke of Montrose) and his 
 'heirs' ("heredibus suis") by James IV., in 1466 ; resigned, 
 under compulsion, to Lord Gray at the instance of James IV., 
 who recognises the Duke as Duke on the occasion, &C. &c.. 
 Charters and Documents regarding the, adduced by the Claim- 
 ant and the Crown, pp. 519 sqq,— and see pp. Ixxx sqq., 124 
 sqq., 191 sqq., 231 sqq., 283; 323 sqq., and relative notes; 
 347, 350 sqq. See also p. XXV, and n. f- 
 
 . J , Litigation for the recovery 
 
 of the, by the Earls of Crawford as ' heirs ' of David Duke of 
 Montrose against the Lords Gray, intervening heirs general 
 being alive, pp. Ixxxiv, cxlii, 288, 290; 351, n. t ; 524 and 
 n. ■•. 
 
 Forfeiture,— see Attainder. 
 
 France and Spain, peers of, were accustomed to take inferior 
 but more ancient titles in preference to higher but compara- 
 tively modern ones, pp. xcii, xciv, cxviii, 101, 203 ; 335, n. ■*. 
 
 Franciscan Order in Scotland, indenture between the, and David 
 Duke of Montrose, p. 525:— And see pp. Ixxxviii, 126, 127, 
 189, 233 ; 321 and n. t ; 322 and n. *. 
 
 Fraser, William, Esq., pp. x, u. f; 405, n. *,— his evidence, 
 pp. 40a, 408, and passim. 
 
 Fullarton, ■William, Esq., claim of, to the Barony of Spynie, in 
 1785, pp. 567 sqq. 
 
 G. 
 
 GENERAL words in an Act Rescissory not sufficient to annul a 
 
 dignity, pp. xxv, xxvi, 8, 17, 296; 314, n. J ; 392 :— And see 
 
 Dignities, annulment of. 
 may henceforward (by the Montrose decision) 
 
 destroy a peerage, pp. xxni, 313 ; 31 4 and n. *. — See Dignities, 
 
 the laws and principles, &c. 
 
 Gilmour, Sir John, afterwards Lord President, counsel in the 
 Glencairn and Eglinton process, 1637-48, pp. xlv, 439 sqq. 
 
 Glencairn, Earldom of, created in 1488 by James III. in pari 
 casu with the Dukedom of Montrose, and struck at in general 
 terms by the Act Rescissory, October 1488 — not assumed by 
 the heirs of the patentee till 1503, in which year it was con- 
 tended in 1648, and is contended now, to have been regranted 
 by a new patent— but held in 1648 by the final decision of the 
 Court of Session (acting by inherent right and also on refer- 
 ence from the Crown) to have been then assumed in virtue of 
 the original patent 1488, as unaffected by the Act Rescissory : 
 — Maintained by the Claimant to be a precedent strictly in 
 point, and decisive (as by the concluding Norfolk ratio) in 
 favour of the present claim, pp. vin, ix ; xxiv and n. t ; xxxi, 
 XXXII, XXXIV, XL, LII, LVI, LXXI, xxxiv sqq., Ivi, Ixv sqq., Ixix, 
 17, 32 sqq., 68, 137 sqq., 209 sqq., 219, 225, 242 sqq., 298 sqq., 
 331 sqq., 362 sqq. ; 371, n. *. 
 
 Glencairn, Earldom of. Charters and documents adduced by the 
 Claimant and by the Crown in reference to the, and to the 
 great process for precedency between the Earls of Glencairn 
 and Eglinton in the seventeenth century, — 
 
 1. The original and only patent of the Earldom, 28th May 
 1488, pp. 407, and xxxvi, n. § : — And see pp. xxxii, xxxiv, 
 xxxv; xxxvi, n. §; xliv sqq., Ixi, Ixiii, 33 sqq., 137 sqq., 
 209 sqq., 299 sqq., 331 ; 334, n. J ; 342 and notes * and § ; 
 362 ; 363 and n. || ; 364, n. J ; 412, n. * ; 413, 414, 446 
 (Obs.), 460, 461, 462; 491 and n. J.— And see Decreets 
 &o. infra. 
 
 2. Evidence (for the Crown) that the estates granted by the 
 patent were not enjoyed under it, pp. 407 sqq. : — And see 
 pp. xl sqq., 159, 160, 215 sqq., 243 ; 332 and n. § ; 566.— 
 This fact fully before the Court of Session in 1648, p. 
 341, n. *,— and founded upon and proved also by the 
 present Claimant, pp. 409, 410. 
 
 3. Evidence (for the Crown) that the style of the heirs of 
 the patentee was *Lord Kilmaurs' simply till 1503, 
 p. 410, and notes * and f : — And see pp. xxxvi ; Ixi 
 and n. *; Ixiv, 137, 163, 209, 219, 242, 331; 332 and 
 notes ; 333, n. t \ 363 and n. f ; 492 ; 526, n. *, — and 
 see Seal, the, of Lord Kilmaurs. — This fact sufficiently 
 established before the Court of Session in 1648, p. 341, 
 n, "■ ; and founded upon by the present Claimant, p. 411. 
 
 4. Narrative (for the Crown) of the inauguration of the 
 Earldoms of Arran, Montrose, and Glencairn, in 1503, 
 construed by the Crown and the Committee to imply a 
 new Glencairn patent in that year, p. 412 : — And see 
 xxxvii sqq., Ixii, 61, 62, 90, 158, 163, 211 sqq., 243, 254, 
 332 ; 333 and n. * ; 342 and n. f ; 363, 493.— The infer- 
 ence now, and in 1797, founded upon this Narrative, was 
 fully before the Court of Session in 1648, and was then per- 
 emptorily and finally scouted and condemned, p. 341, n. ■*. 
 — For Lord Redesdale's impression upon the subject, see 
 p. 213. 
 
 5. Evidence (for the Crown) that Cuthhert Earl of Glen- 
 cairn flourished as such in 1505, p. 413 . — And see pp. 
 xxxv, 34, 137, 211 ; 333 and notes ; 363, 493. 
 
 6. Evidence (for the Crown) that the Earldom of Montrose 
 was created in 1503, p. 413 : — And see pp. 243 ; 333 and 
 a. X; 364. 
 
 7. Evidence (for the Crown) that the Earldom of Arran was 
 created in 1503, p. 413 :— And see pp. 243, 332, 364. 
 
 8. The Glencairn patent 1488 recognised and acted upon by 
 the Crown in 1515-6, p. 414: — And see pp. XXXIi, xxxv, 
 xxxix sqq., 34, 137, 216, 243, 256. 
 
 9. Evidence of recognition by the Supreme Civil Court in 
 1516-7, pp. 415 sqq. : — And see pp. xxxn, XXXV, xl sqq., 
 Ixiv, 34, 35, 159, 160, 216, 217 ; 332 and n. §. 
 
 10. Evidence of recognition by the Crown in 1550, p. 417 : — 
 And see pp. xliii, 35. 
 
 11. Decreet of Ranking, under the authority of James VI., 
 1606, by which Eglinton was ranked before Glencairn 
 through non-appearance of the latter and non- production 
 of the patent 1488 ; and by which Glencairn was referred, 
 as an aggrieved party, to the Court of Session for recti- 
 fication of any prejudice through error, pp. 418 sqq. :^ 
 And see pp. xliii sqq., xlvii, Iviii, 36, 137, 244, 304 ; 335 
 and n. % ; 336, u. || ; 368, n. t. 
 
 12. Production of the patent 1488 before the Privy Council, 
 in 1609, pp. 36, 420, n. *. 
 
 4F 
 
584 
 
 GENERAL INDEX. 
 
 13. Decreet of the Court of Session, 1610, replacing Glencairn 
 above Eglinton in virtue of the patent 1488, pp. 420 sqq. : 
 — And see pp. xliii sqq., Iviii, 36, 137, 244, 304; 335 and 
 notes § and || ; 336, n. J. 
 
 14. Decreet of the Court of Session, 1617, rescinding the De- 
 creet 1610 on purely technical grounds, not affecting the 
 merits of the decision, pp. 423 sqq. : — And see pp. xliii 
 sqq., Iviii, 38, 137, 244, 304; 336 and n. f. 
 
 1 5. Eetour of James 7th Earl of Glencairn to Alexander Earl of 
 Glencairn, the patentee in 1488, p. 425 ; — And see p. xliv. 
 
 16. Ratification of the patent 1488 by Charles I., in 1637, p. 
 425 : — And see pp. xliv ; Ix and n. || ; Ixv, 37, 63, 165, 
 244, 253, 254; 336 and n. ** ; 365 and n. *. 
 
 17. Summons, Glencairn against Eglinton, in 1637 (the ini- 
 tiatory step in the process for precedency, &c.), pp. 426 
 sqq. ; — And see pp. xliv sqq., 39 sqq., 245 sqq. ; 337 and 
 n.t. 
 
 18. Deliverance of Parliament, 1641, declining to interfere, 
 as not competent, p. 431 : — And see pp. xlix, 1, 150. 
 
 19. ' Minutes of Process,' in the precedency question, 1642- 
 
 1648, pp. 432 sqq. : — And see pp. IX and n. * ; liv and n. 
 * ; 40 sqq., 138 sqq., 251 sqq. ; 339, notes § and (°). 
 
 20. Decreet of the Court of Session, 1648, rescinding the 
 Decreet 1617, restoring the Decreet 1610 to efficacy, and 
 declaring the precedency to pertain to Glencairn in virtue 
 of the patent 1488, pp. 446 sqq. : — And see pp. xxxn, 
 XXXIV, XXXV, Lii, LVi, Lxxi, xlv sqq., li, lii, Iv sqq., Ixii, 
 Ixv, 40 sqq., 54, 57, 63, 64, 67, 138 sqq., 154, 158, 166, 
 214, 243 sqq., 299 sqq., 304 sqq.; 337 sqq., and relative 
 notes ; 339, n. § ; 341, n. * ; 365 sqq., and relative notes ; 
 369, n. t ; 370, n. * ; 490 ; 494 and n. *.— Substance of the 
 question between Glencairn and Eglinton shortly stated, 
 pp. lix ; 439, n. *. 
 
 21. Supplication to Parliament (then in rebellion) by Glen- 
 cairn, protesting against their (apprehended) interference, 
 in 1649, pp. 458 sqq. •.—And see p. LVI, u. *. 
 
 22. ' Memorandum ' for Eglinton, 1649, p. 461 : — And see pp. 
 154, 155; 338, n. (»). 
 
 23. Decreet of Parliament (then in rebellion) in 1649, annul- 
 ling the Glencairn patent 1488, pp. 462 sqq. : — And see 
 pp. XXXII, xlv sqq., \x, 56 sqq., 145 sqq., 214 sqq., 253, 
 306. 
 
 24. Decreet of Parliament (then in rebellion, and having no 
 jurisdiction in honours), in 1649, annulling the Decreet of 
 the Court of Session 1648, as depending on the Glencairn 
 patent 1488, pp. 464 sqq.: — And see pp. XXXII, xlv sqq., 
 Ix, 56 sqq., 145 sqq., 214 sqq., 253, 306 ; 337 and n. ^ ; 
 370 and n. f. 
 
 25. Act of Parliament, 1661, annulling the Parliament of 
 
 1649, pp. 484, 485:— And see pp. xxxni, 1, 58, 149, 153, 
 214, 306 ; 337 and n. XX ; 340 and n. * ; 370 and n. J. 
 
 26. Evidence, from the records of Parliament, that the Earls 
 of Glencairn enjoyed precedency ever afterwards over the 
 Earls of Eglinton, in right of the Decreet 1648, founded 
 on the patent 1488, pp. 486 sqq. : — And see pp. xlv, 1, 59, 
 306 ; 370, n. §. 
 
 27. Correspondence between Charles II. and the Court of 
 Session, 1674, respecting Appeals, &c.,pp. 495 sqq. : — And 
 see pp. Lin sqq., xlviii, Iv ; Ivi, n. J ; 254. 
 
 28. Charter, by James IV., 1507-8, of the lands of Hilton to 
 Cuthbert Earl of Glencairn, p. 502: — And see pp. xxxviii 
 and n. f ; 243. 
 
 29. Charter by James IV., 1511, to Cuthbert Earl of Glen- 
 cairn, erecting the lands of the Earldom of Glencairn into 
 a free ' Comitatus ' and ' Baronia,' in favour of Earl Cuth- 
 bert " et heredibus suls," p. 503, — and see p. xxxviii and 
 n. \. — For Lord Loughborough's construction of the 
 limitation as equivalent to heirs male, see pp. 494 and 
 cxxxviii, n. J. 
 
 30. Proof that Hugh first Earl of Eglinton bore and sub- 
 scribed by the alternate title of ' Earl of Montgomery,' 
 p. 505, — and see p. lix. — And for proof that all the early 
 Earls of Glencairn were occasionally similarly styled, see 
 pp. lix and n. % ; 249, 250, 304, 305 ; 339 and notes f 
 and X- 
 
 Glencairn, Earldom of, — Proof that, of the instruments produced 
 in 1853, those which were not before the Court of Session in 
 1648 could not have had the slightest adverse bearing on the 
 decision then ^iven in favour of the Glencairn patent 1488, 
 p. 341, n. *. 
 
 Glencairn, Earldom of, — Summary, shewing that all the legal 
 proceedings in the case of the Glencairn and Eglinton pre- 
 cedency were uniform and consistent, and tended to the same 
 result, without the slightest fluctuation or uncertainty, the 
 only disturbing influences being the illegal proceedings in 
 1649, subsequently annulled in 1661, p. 370, n. §. 
 
 Glencairn, Earldom of, claim to the, by Sir Adam Fergusson, the 
 heir general, in 1796-7, — Lord Loughborough's Speech, moving 
 the Kesolution upon the, pp. 490 sqq., — the Eesolution, p. Ixv : 
 — And see pp. XXI, n. §; iii and n. J ; Ixii sqq., 60 sqq., 155 
 sqq., 215, 228, 248 sqq., 255, 307; 342 and n. || ; 343 and 
 n. * ; 363 and notes X and ^; 371 and n. J. — Reversal of the 
 Act Rescissory would not in any way affect the decision in 
 1797, p. XLIV. 
 
 Glencairn, Earldom of, — Legal effect of the decision in the 
 present claim upon the Decreet 1648, to wit, that the judg- 
 ments of the Court of Session previously to the Union are no 
 longer binding on the House of Lords, p. xxrv. 
 
 , John 11th Earl of, succeeds his elder brother Alex- 
 ander, the 10th Earl, under the limitation of the patent 
 1488, "heredibus suis," to the exclusion of his niece, the heir 
 of line, (the ancestress of Sir Adam Fergusson, the claimant in 
 1796-7), pp. XLIII, XXXV; Ixii and u. *■ ; Ixiv, Ixviii; cxxxix, 
 n. *; cxl, n. (») ; 342, n. § ; 363, n. f ; 371 and n. f; 491 
 and n. * ; 494 and n. **. 
 
 , Earls of, pedigree of the, p. xxxv, u. *. 
 
 -, the estates of the House of, were descendible to heirs 
 
 male under the ruling entail in 1399 and 1488, pp. XLii, XLni, 
 cxl, n. C"). 
 
 Gordon, of Lochinvar, charter to, by James HI., 1488, which 
 stood unaffected by the Act Rescissory, p. 402 : — And see 
 pp. xxvii, Ixix, cxxii ; 326, u. X I 347, n. t I 349, n. f ; 
 359, n. X- 
 
 Gowrie, Earldom of, flexibility of the term 'heirs' illustrated by 
 its use in reference to the, p. cxxxix. 
 
 ' Graham, Lord,' the style of, applied to William Earl of Mon- 
 trose in 1505, p. 518 : — And see p. xcv. 
 
 Grandison, Barony of, illustrations from the pending claim to 
 the, in 1854, pp. xn, n. * ; XVIII, n. *. 
 
 Gray, Andrew Lord, the grantee of the Sheriffdom of Forfarshire 
 on its compulsory resignation by David Duke of Montrose, 
 pp. 519 sqq. — See Forfarshire. 
 
 , the Lords, litigation between the, and the Earls of Crawford, 
 
 for the Sheriffdom of Forfarshire, p. 524 and n. ■*.- See 
 Eorfarskire. 
 
 , the present Lord, contributes papers from his charter- 
 chest towards the elucidation of truth in this claim, pp. 75, 
 522. 
 
 Great Seal, — see Register and Seal. 
 
 Grey de Ruthyn, the Barony of, created by summons, without 
 sitting, p. Lxxxiv, n. §, — Resolution of the House of Lords 
 upon the, pp. v, n. f ; Lxvn, n. f,— and see p. Lxxxvi, u. *. 
 
 Gumey, John, Esq., Short-hand writer to the House of Lords, 
 his accuracy, &c., pp. [iii], xi ; 405, n. f ; 541, n. *. 
 
 Guthrie, David, of that Ilk, confirmation by James III. in favour 
 of, 1473, p. xxvii, n. §. 
 
 H. 
 
 HAIG, James D., Esq., Assistant Librarian of the Advocates' 
 
 Library, Edinburgh, evidence of, pp. 520, n. * ; 522. 
 Hailes, Lord, — see Bothwell, Earl of. 
 
 Hale, Sir Matthew, his ' Hist. Placitorum Coronae ' referred to, 
 
 p. XXII, n. §. 
 Hamilton, Marquisate of, inauguration of the, in 1599, p. xxxvii, 
 
 n. f, — confirmation of the, in 1606, p. xliv. 
 , James Duke of, created Duke of Brandon, pp. xxvin, 
 
 n. t ; Lxvrn, Lxxn sqq. — See Brandon. 
 
 Hardwicke, Earl of, the Lord Chancellor, his Speech on the 
 Cassillis claim, 1762, pp. 559, 560,— his dicta, viz., 
 
 1 . That no Dukedom or Earldom could be created by more 
 ' belting,' or without some writ limiting the descent, ihid., 
 and p. Ixiv. — See Belling. 
 
 2. That, where the patent is lost, there is the strongest 
 presumption in favour of the heir male, ibid. — See Dig- 
 nities, descent of. 
 
 3. That resignation is required in order to invalidate a pre- 
 existing legal right ; and that the Crown cannot grant by 
 novodamus a peerage which is not resigned, ibid., — and 
 see pp. cii, 169. — See Dignities, annulment of, 
 
 Hastings, Barony of, capitals and Italics used in the ' Minutes of 
 ' Evidence ' in the claim to the, p. [vi]. 
 
 Heirs, the rights of, as created by a patent of honour, cannot be 
 affected by an Act Rescissory without express mention of 
 them, independently of the grantee, in that Act, p. 392 : — And 
 see pp. xvii, ex. 
 
 have interest in rights granted to their predecessors, 
 
 though not mentioning heirs, i. e. in charters or writs duly 
 completed by seisin, p. Lxxxiu and notes -f and X- 
 
 Heirs, the term, is flexible in Scottish law, and denotes the ex- 
 isting heirs of a family under regulating investitures, according 
 as estates or honours stand to heirs male or heirs at law, having 
 had besides a marked bias formerly towards the male signifi- 
 cation, pp. XLII, XLIII ; cxxxviii and n. f ; 342, n. §, — illus- 
 trated by examples, pp. cxxxix sqq. — See also pp. Lxxvn and 
 n. *, and 550 sqq. 
 
 , , includes collaterals, pp. cxxxviii ; 342 and n. * ; 
 
 344 and n. f . 
 
 , , where there is an antecedent destination, im- 
 plies the heirs, not at law, but of the former investiture, pp. 
 cxli and n. * ; 514 and n. * ; 521 and n. * ; 523 and n. "* ; 550 
 and n. ♦. 
 
GENEEAL INDEX. 
 
 585 
 
 Heirs, the term, the meaning of, may be ascertained by refer- 
 ence to standing family investitures, pp. cxxxviii sqq. and re- 
 lative notes, 494, 566 sqq. ; and even by reference to " the way 
 "most frequent," and to the destination of contemporary and 
 entirely extraneous grants of dignities, pp. 557 ; 567, n. * ; 
 571. 
 
 , , in the grant of the Sheriffdom of Forfarshire, 
 
 1466, understood and admitted to imply heirs male, pp. cxlii ; 
 351, n. X ; 524 and n. *. 
 
 , , in the Glencaim patent 1488, actually conveyed 
 
 the dignity to heirs male in 1670, pp. XLiii, Ixviii ; cxxxix, 
 n. *; 371, n. f ; 491 and n. * ; 494, n. ♦*, — assertion of Lord 
 St. Leonards (in contradiction to the preceding fact) that it 
 would have conveyed it to Sir Adam Fergusson, the heir 
 general in 1796-7, if the patent could be substantiated, p. 3G3 
 and n. ^. 
 
 , , in the Pitfour and Newhall grants, nova feoda, 
 
 to John 6th Earl of Crawford, 1510 and 1512, conveyed the 
 estates to heirs male, pp. XLiii, cxlii. 
 
 -, viz. of John 20th Earl of Crawford, in a deed 
 
 of 1748, ruled by the Court of Session in 1791 to convey the 
 family property to his collateral heir male, George Viscount 
 Garnook, 21st Earl of Crawford, as 'heir' under the family 
 investitures — heirs general of Earl John being then alive, pp. 
 XLIII, cxlii. 
 
 • , , in a patent * changing ' an Earldom into a 
 
 Dukedom, must be presumed to imply the same heirs as those 
 succeeding to the (transmuted) Earldom, pp. civ, cxl. 
 
 Heirs male, the strongest presumption exists in favour of the, 
 pp. 491, 556 sqq. : — And see p. cxxxviii. 
 
 were sometimes implied by the simple limitation 
 
 'hseredes,' without any addition, pp. 557, 572. 
 
 -, the limitation of dignities to, the more frequent 
 
 course, pp. 557, 571. 
 
 , inference in favour of descent to, from the practice 
 
 of resigning in favour of the heir female, pp. 548, 557, 560. 
 
 -, a higher dignity of which the limitation is unknown 
 
 is presumed to go to, if the older and lower dignity is destined 
 to heirs male, p. 559 :— And see pp. XC ; cxl, n. f. 
 
 , abstract of the Claimant's argument (in his Case) 
 
 to prove that the limitation " heredibns " in the Montrose 
 patent 1488 denotes, pp. cxxxviii sqq. : — And see pp. XLII, 
 XLHi ; 342, n. §. — The question was reserved, and not allowed 
 to be discussed before the Committee, pp. 105, 106. 
 
 -, argument of the Claimant, that the Montrose Ke- 
 
 grant 1489 is descendible to, pp. LXXXVIII sqq. 
 Herries, Barony of, reversal of attainder affecting the, pp. xxxix, 
 
 n. ♦ ; XLIV, LI. 
 Holt, Lord Chief Justice, dicta of, viz. 
 
 1. That the authority of Parliament is circumscribed by 
 law, p. xvni, n. §. 
 
 2. That the House of Lords is not competent to give an 
 opinion upon a question of peerage which has not been 
 brought before it by petition to and reference from the 
 Crown, p. xxvn, n. *. 
 
 3. That it is not necessary to prove Notarial Instruments, 
 p. 520, n. *. 
 
 Home, Barony of, creation of the, in 1473, p. 552, n. t- 
 
 , the first and the second Lords, described as commoners, 
 
 pp. Ixxxi and n. t ; xcv, 518, 521, 522. 
 
 , Earldom of, claim to the, before the Court of Session, in 
 
 1633, pp. LV; Ivii, u. fi 538, n. *. 
 
 ^ , patent by Charles II., 1636, confirming the, 
 
 p. 538 :— And see pp. cvi, 178, 298 ; 355, n. * ; 356, notes * 
 and §. 
 
 Hope, Sir Thomas, Lord Advocate, counsel in the Glencaim and 
 Eglinton process 1637-48, pp. xlv, n. * ; 432 sqq.,— his testi- 
 mony that the sealing of charters preceded their registration, 
 p. V and n. %• 
 
 Hope, James K., Esq.,— see Scott. 
 
 House of Lords, the Kesolutions of the, on claims to (English) 
 peerages, are not judgments in any sense of the word, but 
 merely opinions tendered, for the purpose of information, at 
 the request of the Sovereign, who is not bound by them, and 
 who (even although no res naviter veniens ad nolitiam have 
 occurred) may refer a case back to the House, or elsewhere, 
 and may ultimately act according to his discretion,— nor are 
 such Kesolutions final and conclusive upon the House itself, 
 which has been known, on subsequent reference, to determine 
 in direct contradiction to their former Kesolutions, pp. IV ; V 
 and n. t ; xxvra, u. t ; Lxxiv, lxxv. 
 
 , , the, is not competent to pronounce an opinion 
 
 upon a question of peerage which has not been brought before 
 it by petition to and reference from the Crown, p. xxvii, n. *. 
 
 .. General Resolutions of the, on matters of 
 
 dignity, are ultra vires of the House, and have not the effect 
 of laws, pp. V, n. t ; i-xvii, n. f- 
 
 .J the jurisdiction and power of the, in claims to 
 
 dignities (Scottish and English), as asserted by Lord St. 
 Leonards and Lord Brougham, contested by the Claimant, 
 pp. V ; XIX and n. % ; Iviii, 215 sqq., 220, 299, 300. 
 
 House of Lords, Inquiry into the origin, growth, and character 
 of the intervention of the (whether as an Appellate Court or 
 as acting on reference from the Crown), in Scottish cases, 
 pp. Lli sqq. 
 
 , the, is in theory a Scottish court, judging in 
 
 questions of appeal, and advising the Crown on matters of 
 reference, by Scottish law, in Scottish cases, pp. Lxxi and n. J ; 
 340 and notes § and ("). 
 
 -, duty of the, in deciding Scottish cases, to guard 
 
 against the influence of English impressions, p. lxxi, n. J. 
 
 -, large discretion claimed for the, in admitting 
 
 contradictors in claims to peerages, p. 373* :— And see pp. 
 vii, vni. 
 
 -, Order of the, in 1709, superseding (ex propria 
 
 motu and illegally) an enactment protective of the rights and 
 independence of the Court of Session, pp. LXiv sqq. 
 
 -, Kesolution of the, in 1711, that the Crown 
 
 cannot, after the Union, confer peerages of Great Britain on 
 peers of Scotland, — with subsequent proceedings, and ultimate 
 virtual reversal of this Kesolution, pp. xxix, Lxvni, Lxxii sqq. 
 -, remarkable attempted aggression of the, on the 
 
 prerogative of the Crown, in 1719, p. Lxvi, n. f. 
 
 -, gradual encroachments of the, on the authority 
 
 of the Crown in England and of the Court of Session in Scot- 
 land in peerages, after the Union, pp. Lxvi sqq., and relative 
 notes. 
 
 -, the, is the English or Irish House of Lords 
 
 according as the peerage claim it is discussing (under refer- 
 ence from the Crown) is a claim to an English or Irish honour ; 
 and the decisions of the Irish House of Lords before the 
 Union are as binding upon the House of Lords as at present 
 constituted, as the decisions of the English House of Lords, 
 equally before the Union,— with a fortiori inferences (by the 
 Claimant) in support of the binding authority of the decisions 
 of the Court of Session pronounced before the Union between 
 Scotland and England upon the House of Lords at present, 
 pp. XV, n. * ; Ixii ; Ixv, n. § ; 340, n. (») ; 371, n. *. 
 -, — see Peers of Scotland. 
 
 Hunter and Marshall v. Nisbett, case of, in 1839, illustrating the 
 
 flexibility of the term 'heirs,' p. cxxxviii, u. f- 
 Huntingdon, Earldom of, claim to the, p. XIV, n. f. 
 Huntley, Earl of, temp. Mary Queen of Scots, his jealousy of the 
 
 title of Duke, p. cxviii. 
 , Marquisate of, inauguration of the, in 1599, p. 557, — 
 
 did not take place in Parliament (which was unnecessary), 
 
 p. 563, — confirmation of the, in 1606, p. xliv. 
 , , the term ' heirs ' used in reference to 
 
 the, to express heirs male, p. cxxxix. 
 
 I. 
 
 IDENTITY of title, inconvenience from, no ground for opposi- 
 tion in peerage claims, pp. Vii, 103, 104, 393"'. 
 
 Illegality and injustice excused in the decision of the present 
 claim by means of the doctrine of interpretation by intention, 
 p. XXI and relative notes. 
 
 Importation of words into an Act of Parliament, or excision of 
 words therefrom, in construing the Act, in order to give it a 
 penal application which it would not otherwise possess, is in- 
 admissible and to be reprobated, pp. xxi and n. X i xxxi ; 314, 
 n. §; 349, n.t. 
 
 Inauguration, or investiture, of Scottish Earldoms, described by 
 Selden, p. 412, n. "', — the patent carried in the procession on 
 the inauguration of the Marquisate of Huntley, in 1599, p. 557, 
 — inauguration did not necessarily take place in Parliament, p. 
 563, n. *'. — See Belting. 
 
 ' In dubiis benigniora semper sequenda sunt,' the maxim, cited 
 or insisted upon, pp. XXI and n. -f ; xxii, xxxi ; xiv and n. X ; 
 XXX, xxxiii, ex, cxvii, 161, 316 ; 320, n. ^ ; 349, n. f ; 436, 
 439. 
 
 Innes, of that Ilk, charter to, by James III., 1488, contended to 
 have been cut down by the Act Rescissory, p. 507 : — And see 
 pp. xxxiii, 240, 278, 440, 441, 455. 
 
 , the historian, cited, p. 112. 
 
 , Cosmo, Esq., Advocate, &o., author of the ' Cases ' for the 
 
 Duke of Montrose ; retained by and acting for the Crown, 
 &c., pp. X and n. f ; xvi, u. f ; 405 sqq. 
 
 Innocent VIII., Bull of Pope, 1491, proving the excommunication, 
 subsequent contrition, and final absolution of the faction who 
 rebelled against and slew King James III. and passed the Act 
 Rescissory, p. 384: — And see pp. x, cxxvi, 85, 113. 
 
 Intention, the principle of interpreting statutes by, against their 
 literal meaning, adopted by the Crown and the House of Lords 
 in the present case, pp. 184, 227, 314, 349, — protested against, 
 pp. XXI and n. X \ xxiii, 314 ; 349, n. f,— subsequently repu- 
 diated in practice by the Lord Chancellor and Lord St. 
 Leonards, and the contrast remarked upon between the Mont- 
 rose decision in 1853 and this later decision in 1854, pp. XLiv, 
 XLV, XOI, XOII, XCIV. 
 
 , if not expressed by apt and sufficient words, in an 
 Act of Parliament, is impotent, pp. xx, n. X i xxiii. 
 
 4 F 2 
 
586 
 
 GENERAL INDEX. 
 
 Interlocutors of the Court of Session, in prasentid, under what 
 
 circumstances final, p. Ix, n. *. 
 Interpretation of Acts of Parliament, principles of, presumed by 
 
 the Claimant, pp. xiv, xx. 
 
 Investiture, — see Belling and Inauguration, 
 
 Investitures of lands, reference to, for the interpretation of the 
 term * heirs,' pp. cxxxviii sqq., and relative notes, 494, 566 sqq. 
 
 Irritant clauses in deeds of entail, — if there are two modes of 
 reading such, that which does not give effect to the intended 
 fetters is to be preferred, p. xciv, n. *. 
 
 Isles, Barony of the, creation of the, by writ, 1476, p. 557, — 
 flexibility of the term ' heirs ' illustrated by its use in reference 
 to the, p. cxxxix. 
 
 Italics and Capitals, practice and expediency of the use of, in 
 printing the ' Minutes of Evidence ' in peerage claims, — pro- 
 hibited to the Claimant in the present case, against' former 
 precedent, p. [v], n. f . 
 
 J. 
 
 JAMES III., circumstances of the rebellion against, in 1488, as 
 stated by the Crown and the Committee of Privileges, p. 
 xxxvm, n. *, — as stated and characterised by the Claimant, 
 pp. XXXVII sqq., 8 sqq., 109 sqq., and passim, — as stated and 
 characterised by the Whig historian, Pinkerton, p. xxxvill, 
 li. *. 
 
 -, articles under the hand of, empowering certain of 
 
 his lords to treat with the rebels headed by James Prince of 
 Scotland, p. 383 ; — And see pp. x, 492. 
 
 -, assertion of Lord St. Leonards that the reign of. 
 
 ended on the 2nd Febr. 1487-8, and not on the day of his 
 death, the 11th June 1488 ; and that consequently the King's 
 grants during the interval between those dates (including the 
 grant of the Montrose Dukedom) were not treated or allowed 
 to continue as real grants by his successor, pp. 344, 348, 359, — 
 disproved and commented upon, with proof that James III. 
 was recognised all along as lawful King till the day of his 
 death, pp. xxxiand n. § ; xxxii, xxxiv, iv, 162, 163 ; 313, 
 n. t ; 344, n. || ; 348, n. J ; 359, n. || ; and see pp. 383 ; 516 
 and n. f, — the error probably borrowed by Lord St. Leonards 
 from Lord Loughborough, pp. 492, 493, — fallen into for a 
 moment by one of the Claimant's counsel, but rectified and 
 corrected by himself on the ensuing day, with distinct exposi- 
 tion of the actual truth, &c., pp. 114 sqq., 162, 163, — and see 
 p. XXXI, n. §. 
 , grant by, to David Earl of Crawford, of the Duke- 
 dom of Montrose, 18th May 1488, see Montrose. 
 
 , instances of grants of, during the interval (ut supra), 
 
 confinned in regular course, as genuine instruments, by 
 James IV., subsequently to the Act Rescissory, pp. 398 sqq. ; 
 or which stood without confirmation, pp. 402 sqq., — and which 
 are still preserved uncancelled, so far as they can be traced, in 
 the possession of the representatives of the grantees, notwith- 
 standing the Supplemental Act, 1489-90, pp. cxxii. — See Col- 
 lace, Gordon, Somt/r ; Brechin, Cunningham, Glencairn, 
 
 , instances of grants of, &c., ut supra, held by the 
 
 Crown to have been resumed and regranted by James IV., pp. 
 
 507 sqq. — See Dunbar, Innes, Lindsay, Turrwull. 
 James IV.. proof that he was only Prince of Scotland at the 
 
 time of his father's death in June 1488, pp. iv, 162, 163, — and 
 
 see James III. 
 
 -, circumstances of the rebellion of, pp. 5, 6, — and see 
 
 James III, 
 
 , Remission by, to David Duke of Montrose, of his 
 
 whole displeasure against him on account of the loyalty of the 
 Duke to James III., before 29th October 1488, pp. btxx, 519. 
 
 , Contract of, with David Duke of Montrose, in the 
 
 matter of the Sheriffdom of Forfarshire, pp. Ixxxii, xciii, ■ 
 and his recognition of the Duke as Duke in that transaction, 
 pp. 519 sqq. : — See Forfarshire, Recognition, Remission. 
 
 -, grant by, to David Earl of Crawford, of the Duke- 
 
 dom of Montrose de novo, 1489, pp. 531 sqq. : — See Montrose. 
 , testimony by, to the effect that the creation of dig- 
 
 nities is not prejudicial, but honourable and beneficial to the 
 Crown, p. xm, n. *, 
 
 , remorse and repentance of, for his conduct towards 
 
 his father, pp. cxxvi sqq., 85 sqq., 135, 308 ; 348, n. f ; 386, 
 387, 436. 
 
 I tyranny of, pp. cxiv ; 346, n. ""* ; 348, n. f. 
 ■ raises actions of recognition against his vassals, p. 
 
 xxxviii, n, f . 
 described, and taking, as ' heir ' simply, being in 
 
 reality heir male, to the Earldom of Buchan, intervening heirs 
 
 general being alive, p. cxxxix. 
 James V., tyranny of, against the great feudal families, p. cxvii : 
 
 — And sec p. 87, n. *. 
 James I., James II., James III., James IV., and James V., Acts 
 
 by, constituting the ' Lords ' and ' Court ' of Session, pp. lti, 
 
 Lm. 
 
 James VI. (of Great Britain I.), testimony of, to the competency 
 of the Court of Session in dignities, p. Ivi :— And see Court 
 of Session. 
 
 describes himself as ' heir,' being in reality heir male, 
 
 of the House of Lennox, an intermediate heir female being 
 alive, p. cxxxix. 
 
 James VII. (of Great Britain II.), creation by, after his abdica- 
 tion, of various pseudo-Scottish and English dignities, enume- 
 rated, p. XLI, n. ("•). 
 
 Judges, cases in which the, have been summoned to assist the 
 House of Lords in advising the Crown in (English) peerage 
 cases, pp. V, u. f ; Lxxm, Lxxiv, lxxv. 
 
 K. 
 
 KAMES, Lord, denial by, in his ' Law Tracts,' of the right of 
 the Court of Session to determine claims to dignities previ- 
 ously to the Union, p. 220, — referred to and discussed, pp. 
 XIX, n. I; LXX, n. %; 365 and n. *, — value of his opinions, p. 
 301, — his character, by Lord Stowell, p. 366, u, "'. 
 
 Kellie, Earldom of, the registration of the patent of the, received 
 in evidence, pp. vi, 257. 
 
 Kelly, Sir FitzRoy, pp. x sqq., — Speeches of, pp. 1 sqq., and 
 passim. 
 
 Kennedy, Barony of, the ascertained descent of the, to heirs 
 male, ruled to imply the descent of the Earldom of Cassillis, of 
 which the limitation was unknown, to heirs male likewise, p. 
 559. — See Cassillis. 
 
 , Sir Thomas, Case of, claiming the titles of Earl of 
 
 Cassillis, &c., pp. 545 sqq. 
 
 , Janet, charter to, by James III., 1501, p. 509 ; — And 
 
 see p. xxxiu. 
 ' Kilmaurs, Lord,' the seal of, in 1496, bearing that designation, 
 (p. 410,) held by the Lord Chancellor to fix his proper style, 
 and prove that he was not then Earl of Glencairn, pp. 211, 
 332, — inference of the Claimant therefrom, as to the proper style 
 of David Duke of Montrose, pp. Ixxxvi; 323, u. J; 332, n. f. 
 I the style of, applied to Cuthbert Earl of Glen- 
 
 cairn, in 1517, p. .518. — See Glencairn. 
 Kincardine, Earldom of, claim to, before the Court of Session, 
 
 1706-7, pp. Lxn sqq. 
 Kinclevin, the Lordship of, granted to David Duke of Montrose 
 
 by the patent 1488; enjoyed during the interval between the 
 
 Act Rescissory and the Regrant ; and resumed by the Crown 
 
 after the Duke's death, either through the operation of the 
 
 Act 1493 or through oppression, pp. 509 sqq., 541 sqq., — and 
 
 see pp. Ixxi sqq., &c. — See Estates. 
 — , , was granted by James IV. to the 
 
 Wardropers, in 1512, pp. 540, 544: — And see pp. cxiii, cxiv, 
 
 208, 239. 
 Kindersley, Vice-Chancellor, judgment of, in the case of Dormer 
 
 V. Philips, 1854, p. cxxxviii, u. -f. 
 
 Kirkaldy of Grange, the restoration of, by Parliament, against 
 forfeiture, 1564, insufficient to reinstate him in his property 
 without a process before the Court of Session, p. LIV, n. *. 
 
 Kirkcudbright, Barony of, the registration of the patent of the, 
 received in evidence, pp. vi, 257. 
 
 Knights, the creation of, an invariable ceremony at the inaugu- 
 ration of dignities, pp. Lxxvm, xxxviii, 412, 562. 
 
 L. 
 
 LAPSE of time no bar to claims of dignities, pp. xiv and n. f ; 
 
 xvi, XXXV, xxxvi, cxv ; cxvii and n. f ; 102, 103, 180, 181, 
 
 274. 
 Lauderdale, Margaret Countess of, heir of line of the Glencairn 
 
 family, passed over in the succession by the heir male, in 
 
 1670, under the limitation " heredibus suis" in the patent 
 
 1488, pp. XLin, XXXV ; Ixii and n. "■ ; Ixiv, Ixviii ; cxxxix, n. * ; 
 
 cxl, n. (»); 342, n. §; 363, u. f ; 371 and n. t; 491 and n. ■* ; 
 
 494 and n. **. 
 Law, James, Esq., professional assistance rendered by, p. [vii]. 
 
 Laws are not to be wrested or tortured, to the distressing of so- 
 ciety, pp. xiv, 263. 
 
 — — are to rule as they stood at the given time when the rights 
 under discussion were acquired or afiected, not as they have 
 been altered since, pp. XXVI, n. || ; Lvni; Ixxxviii, n. "*; oi, oii. 
 ■ — See Priority of obligation, and Stair. 
 
 Lennox, John Earl of, styled ' Lord Damley ' in 1489, at a time 
 when he was in full and acknowledged possession of his Earl- 
 dom, pp. 515 sqq. : — And see pp. Ixxviii; Ixxix and n. §; xcv, 
 124, 203, 294 ; 322, n. **; 353, n. %. 
 
 , charters of creation (or regrant) of the Earldom of, in 
 
 1572 and afterwards, p. Lxxvi, n. *■. 
 , the Earldom of, although granted to " heredibus " (by 
 
 the patent 1572), passes over the heir female to go to the heir 
 
 male, pp. lxxvi, n. '*; cxxxix. 
 
GENERAL INDEX. 
 
 587 
 
 Lennox, Dukedom of, grant, of the, by James VI. to Esme Earl 
 of Lennox, in 1581, p. 531, n. *. 
 
 , , case of the, as created in 1581, without 
 
 any express limitation ; but which descended nevertheless in 
 the family of the grantee, — the grant being precisely parallel 
 In language (so far) with the Montrose regrant 1489; which 
 Montrose regrant is consequently likewise an hereditary grant, 
 and descendible to the Claimant (who, however, has not as yet 
 claimed under it), pp. Lxxvi sqq. : — And see pp. xxix and 
 n. t; cviii, n. f; 316, n. 1[; 353, n. ^. 
 
 , Dukes of, account of the, pp. Lxxvni sqq. 
 
 , pedigree of the House of, p. Lxxx, n. J. 
 
 , Dukedom of, as regranted by Charles 11. to the ancestor 
 
 of the present family of Lennox and Richmond, p. Lxxxrr. 
 
 Life, grants to individuals for, succeeded by limitations to heirs, 
 pp. 536 sqq. : — And see Altrie, Cramond, Home, Napier. 
 
 Limitation, the true and original import of a, viz. a restriction 
 on what otherwise would be the fulness of the grant, p. 
 
 LXXXUI. 
 
 , a, was understood, if not expressed, in ancient investi- 
 tures of lands, and in grants of honours, p. Lxxxni, — and such 
 too is the understanding in the case of summonses to Parlia- 
 ment (in England), followed by sittings, p. Lxxxiv and n. §. 
 
 -, the absence of a, in a patent, no impeachment against 
 
 the grant being hereditary, pp. lxxx, lxxxiii; cviii, u. t. 
 
 , the, in very early charters, appears only in the tenendas 
 
 clause, pp. cvi, n. J ; 540, 
 
 -, the, was inferred from reference to the descent of Ihe 
 
 family fiefs in the Spynie and Gleucaim claims in 1785 and 
 1797 (the Spynie and Glencairn patents being in either case 
 ignored), p. cxxxviii and n. J; 494 and n. ** ; 566 sqq. 
 
 , the, if not discoverable, is presumed to have been to 
 
 heirs male, pp. 491, 556 sqq., 560. 
 Lindsay, Sir David, charter to, by Kobert HI., 1390, pp. 539 
 
 sqq. ; — And see pp. cvi and n. |1 ; evil and n. •(• ; 292 sqq., 295 ; 
 
 356 and notes % and §. 
 , . — , Lord of Crawford, created Earl of Crawford, 
 
 in 1398, p. 5. 
 
 Alexander, Master of Crawford, charter to, by James 
 
 in., 1488, alleged to have been annulled by the Act Rescissory, 
 p. 507 : — And see pp. xxxii, xxxiii, 239, 277 sqq. 
 , David, of Edzell, succeeds as 9th Earl of Crawford, p. 
 
 Lovat, Barony of, claim to the, decided by the Court of Session 
 in 1730, to the efi'eot that the presumption of law is in favour 
 of the heir male when the patent is lost ; and on which deci- 
 sion Simon Lord Lovat was tried as a peer and attainted in 
 1745, pp. Lxvni and n. || ; LXX, n. * ; Iviii, 302 ; 366, n. * ; 
 368, n. XX ; 491, 548, .549, 553, 556, 558. 
 
 ^ Act for reversal of the Attainder affect- 
 ing the, in 1854^ p. xxxix, n. *,— proceeds on recognition of 
 the judgment of the Court of Session in 1730, p. Lxviii, n. ||. 
 
 Loyalty, the, of David Duke of Montrose, in what manner it 
 bears upon the questions involved in the present claim, pp. 
 347, n. * ; 348, n. t- 
 
 Lyndhurst, Lord, extent of the concurrence of, in the Resolution 
 in the present claim, as stated by Lord St. Leonards, pp. cxii, 
 cxxxvij, 372 ; 373 and n. *. 
 
 , , opinions of, as to the competency of Parliament 
 
 ("as distinguished from the Sovereign) to grant a dignity and to 
 alter the limitation of a dignity, pp. 174, 175,— and see pp. 
 xrx, notes * and (") ; cxi. 
 
 cxvii. 
 
 , Sir David, of the Mount, Lord Lyon King-at-arms, 
 
 heraldic MS. of, preserved in the Advocates' Library, pp. 
 Ixxxi, n. * ; 522. 
 
 Lindsays, Barons of Edzell, the, become Lords Lindsay on the 
 death of the last Lord Spynie, as next heirs male of the House 
 of Crawford, p. cxviii. 
 
 Lingard, Dr., his ascription of the non-claim to the Norfolk 
 Dukedom to fear of Henry IV., pp. cxviii, u. f ; 329, n. § ; 
 332, u. X- 
 
 ' Litera ' and a ' carta,' distinction drawn between a, by the Lord 
 Advocate, p. 235 : — And see p. xcix, n. J. 
 
 Literal words, interpretation of statutes by their, rejected in the 
 case of the Act Rescissory, but enforced by the same judges in 
 the Shedden appeal case in 1854, pp. XLiv sqq., xoi, xcn; and 
 in a subsequent case in 1855, pp. XCIII, XCIV. 
 
 Lord Advocate, Speech of the,— see Advocate, Lord. 
 
 Lothian, Earldom of, claim to the, before the Court of Session, 
 1631, pp. LV, Ivii. 
 
 and Roxburghe precedency, question of the, before the 
 
 Court of Session, 1679, pp. LV, Ivii,— letter of Charles II. to 
 the Court of Session on the subject of the, pp. LV, Ivii, 148. 
 
 Loughborough, Lord, Speech of, in moving the Resolution on the 
 Glencairn claim in 1797, pp. 490 sqq. :— Discussed, pp. xxxvii, 
 Ixiiisqq. ; cxxxviii, n. { ; 60 sqq., 82, 83, 155 sqq., 165, 228, 
 243, 255, 307 ; 342 and n. || ; 343 and- n. * ; 362 ; 363 and n. 
 §; 364 and n. t; 371 and n. t :— The Claimant's conclusion 
 being, that not one paragraph in Lord Loughborough's Speech, 
 bearing on the subject of the Glencairn patent and the Act 
 Rescissory, will bear the test either of historical examination, 
 legal inqui'ry, or examination of the documents to which he 
 refers, pp. Ixv, 165. 
 
 , fallacy of, that belting could create a 
 
 dignity, p. 493 :— Refuted, pp. xxxvii, Ixiv, &c.— See Belting. 
 assertion of the Lord Chancellor and Lord 
 
 St. Leonards that he founded on a lost patent in 1503, and re- 
 futation thereof, pp. 342 and n. |1 ; 364 and n, J ; 493, n. f. 
 
 -, infers from the Glencairn investitures the 
 
 male succession of the Earldom, p. 494 -.—And see p. cxxxviii, 
 
 n. t- 
 
 , was counsel for Lord Ruglen in the Cas- 
 
 sillis claim in 1762, pp. 493, n. (") ; 553. 
 
 , dictum of, that Scottish peerage claims are 
 
 to be investigated by Scottish law, p. 340, n. ("). 
 , recognises the Lovat decision by the Court 
 
 of Session, in 1730, as valid, p. 491 :-And seep. 368, n. ("). 
 , character of, by Lord Campbell, p. 364, 
 
 U.X. 
 
 , , Speech of, approving the reversal of the Perth 
 
 attainders, 1853, p. XLi, n. *. 
 , , Speech of, on the Act prohibiting Roman 
 
 Catholic processions, p. xoiii, n. ♦. 
 Lyon, John, charter to, by James IV., 1488, p. 507 : — And see 
 
 pp. xxxii, xxxiii, 239, 277 sqq. 
 
 M. 
 
 MACAULAY, his account of the attainder of Lord Stafford, 
 
 &o., p. XL, n. ("). 
 MacBrek, Andrew, notary to James IV., his character, history, 
 
 and importance of his testimony, pp. Ixxxi, lxxxiii, 75 ; 321 and 
 
 n. II ; 324 and notes j- and §. 
 MacDonald of Glengarry, restoration of, in 1690, by William 
 
 III., against attainder and forfeiture, pp. Ixxxix ; 336, ii. '''*. 
 MacKenzie, Sir George, Lord Advocate, statement by, concern- 
 ing creation by investiture, and comment thereupon by Lords 
 
 Marchmont and Mansfield, p. 557, — and see p. 552, ji. f . 
 MacQueen, John F., Esq., observations on his Report of the 
 
 Montrose claim, pp. 573, 574. 
 Maidment, James, Esq., Advocate, his * Reports of Claims,' &c., 
 
 pp. 545 sqq., 561 sqq. 
 ' Malcolmi, Leges,' doctrine of the, on Royal remission against 
 
 forfeiture, p. Ixxxix. 
 Mansfield, Earl of. Speech of the, on the Cassilhs claim, 1762, 
 
 pp. 556 sqq. 
 , ~, notes of the Speech of the, on the Spynie 
 
 claim, 1785, pp. 568 sqq. 
 Mansfield, Earl of, dicta of the, viz. 
 
 1. That belting, per se, without a patent, is insufficient to 
 create a dignity, p. 557 ; and see pp. Ixiv, 62, 168 ; 242, 
 n. II, — but Lord M. lapses from that opinion in the Spynie 
 claim (according to the notes of his Speech), pp. 566, 568. 
 
 2. That the King cannot regrant a dignity unless it has 
 been previously resigned, pp. 558, 559 : — And see pp. 
 cii and n. -f ; 168. 
 
 3. That it is natural and presumable that family estates and 
 dignities should descend together, pp. lxxxiii, lxxxv, 
 xc, 556. 
 
 4. That the investitures of estates are to be referred to and 
 consulted for the limitation of a dignity, that limitation 
 being unknown, pp. 566 sqq., — and see p. cxxxviii, n. J. 
 
 5. That a higher dignity, of which the limitation is unknown, 
 is presumed to go to heirs male if the older and lower 
 dignity is destined to heirs male, p. 559 : — And see pp. 
 LXXXV and n. * ; xc, cxl. 
 
 6. That, generally, the presumption of law follows the nature 
 of the fee — fees were held by military tenure, i. e. by 
 males — the presumption is therefore in favour of heirs 
 male, p. 557. 
 
 7. That the Court of Session was supreme in honours in 
 1706, p. 558,— and see p. 365, n. § :— That the House of 
 Lords are the only judges in dignities since the Union, 
 p. 365, n. §, — while, at the same time, he recognises the 
 Lovat decision by the Court of Session in 1730 as valid, 
 p. 558.— And see p. 368, n. Xt- 
 
 8. That Scottish law rules in Scottish peerage claims, pp. 
 340, n. (") ; 559 : — And see p. LXXX. 
 
 March, Earldom of, (otherwise Dunbar,) Act of forfeiture of the, 
 
 1434, pp. xii, 128. 
 Marchmont, Earl of, Speech of the, on the Cassillis claim, 1762, 
 
 pp. 555, 556. 
 Marchmont, Earl of, dicta of the, viz., 
 
 1 . That a peerage cannot be created by belting, or without 
 a patent, pp. 555, 558, — and see p. 168. 
 
 2. That Scottish law rules in Scottish peerage claims, p. 555, 
 — and see pp. Lxxi; 340, u. (°). 
 
 Marr, Earldom of, claim to the, in 1457, not before Parliament, 
 pp. XL, n. » ; LV, n. fttt \ Ivii, n. % 
 
588 
 
 GENERAL INDEX. 
 
 Marr, Earldom of, case of the, as restored, ;)er modumjustitice, 
 by Eoyal confirmation, in 1565, p. XL, u.. *,— proves that lapse 
 of time is no bar, p. cxvii. 
 
 , , reversal of the attainder of the, as forfeited 
 
 in 1715, p. xxxix, n. *, — Act of Restoration of the, p. XLVi. 
 
 Mary, Queen of Scots, restores the Earldom of Marr to the 
 House of Erskine, per modum justitice, in 1565, p. XL, n. *, — 
 remits in favour of the Earl of Crawford in 1566 an engage- 
 ment iniquitously extorted from him by her father, James V., 
 p. 87, 11. *. 
 
 Mawar, John, charter by James IV. to, 1490, p. 507 : — And see 
 xxxiii, xxxiv, 240, 278. 
 
 Melfort, Earls of, attainders affecting the, pp. XLViii sqq. — See 
 Vrummond, Perth. 
 
 , Dukedom of, in France, legal character of the, p. XLi, 
 
 n. C). 
 
 Melville, George, Esq., evidence of, pp. 380 and n. * ; 402, n. * ; 
 405, 522, 533, 534 :— And see p. [vii]. 
 
 Methven, Barony of, illustration of the use of the word ' heir ' 
 in connection with the, p. cxxxix. 
 
 Misnomer cannot affect a title lawfully constituted and not law- 
 fully rescinded or alienated, pp. 294; 335, n. *. 
 
 Modern views applied to the Montrose case, illustrated and com- 
 mented upon, p. 559, n. **. 
 
 Moncrieff, the Right Hon. James, — see Advocate, Lord. 
 
 ' Montgomery, Earl of,' a style borne by all the early Earls of 
 Eglinton, pp. lix and u. %; 156, 249, 250; 339 and notes f 
 and t ; 443, 444; 460 and n. *, 494, 505.— See Glencaim. 
 
 , Lord (the lower and older title), style of, applied 
 
 to Hugh 1st Earl of Eglinton in 1517, p. 518.— See Eglinton. 
 
 Montrose, Dukedom of, circumstances attending the creation of 
 the, in favour of David fifth Earl of Crawford, pp. m, xxxix, 
 i sqq., viii sqq., 6 sqq., &c. &o. &c. — See James III. 
 
 , , patent, by James III., changing the Earl- 
 dom of Crawford into the, with limitation to the grantee 
 " et heredibus suis," 1488, p. 375 and passim, — evidence of 
 the Duke's inauguration upon the patent, pp. vi, 234. 
 
 ., , alleged statutory annulment of the, see 
 
 Acts and Statutes of Parliament, Scottish, Act Rescissory. 
 
 , ', arguments of Counsel for the Claimant 
 
 and the Crown, pro and con, and Speeches of the Noble and 
 Learned Lords who advised the Committee of Privileges, on 
 the question whether the patent 1488 be valid at the present 
 day or not, — see Kelly ; Solicitor General ; Attorney General ; 
 Advocate, Lord; Cranworth; St. Leonards, — ani passim. 
 
 , , Acts and Statutes of Parliament alleged 
 
 to neutralise or repeal the influence of the Act Rescissory upon 
 the, if effective,— see Acts, &c. &c.. Acts 1489-90, 1491-2, 
 1493, 1503-4. 
 
 Evidence adduced by the Claimant to 
 
 prove (being contemporanea expositio, which is held to be pecu- 
 liarly admissible in the present claim, although in truth super- 
 fluous) that all the other grants of James III. in pari casu with 
 the, stood and were effective notwithstanding the Act Rescis- 
 sory, — with counter evidence for the Crown, who deny the 
 fact, and assert that the Act Rescissory cut down all the grants 
 in question : — See, for the Claimant, Brechin, Collace, Cun- 
 ningham, Gordon, Glencaim, Somyr, — for the Crown, Dunbar, 
 Innes, Lindsay, Tumbull. 
 
 Evidence adduced by the Claimant to 
 
 prove (being contemporanea expositio) that David Duke of 
 Montrose retained and held the dignity of the, and the estates, 
 granted by the patent 1488, during the interval between the 
 Act Rescissory and the Kegrant, and that this was with the full 
 and marked knowledge and recognition of the King, which took 
 place moreover under circumstances which would have rehabi- 
 litated him even had he been formally attainted, and a fortiori 
 would neutralise any supposed effect of the mere Act Rescissory ; 
 and that whenever the Duke is styled ' Earl of Crawford ' 
 during the interval in question it was behind the back of the 
 Crovni, and that the resumption of the estates after the Duke's 
 death was either in consequence of the Act 1493 (which would 
 be sufiicient to account for it) or of oppression : — With counter 
 evidence for the Crown, who hold that the Duke merely held 
 the estates by force or by a compromise during the interval in 
 question, and that they were resumed by the Crown after his 
 death ; and that the King's views as to the Duke's status or 
 dignity are to be inferred, not from the warrants of instru- 
 ments, in which the King styles him Duke, and which the 
 Claimant contends are by peerage law the governing instru- 
 ments, but from the instruments executed out of the King's 
 presence and the Duke's, in obedience to those warrants, by 
 the clerks of Chancery, and which style him * Earl of Crawford.' 
 — See, for the Claimant, Carmichael, Crauford, Estates, Ex- 
 chequer, Forfarshire, Franciscan Order, James 1 V., Kinclcvin, 
 Montrose, customs of ; and also Charters, Contemporanea Ex- 
 positio, Dignities, Warrants, — and for the Crown, Carmichael, 
 Contemporanea Expositio, Crawford, Estates, Exchequer. 
 
 Regrant of the, by James IV., with 
 
 advice of Parliament, 18th September 1489, specifying no an- 
 nulment of the original Dukedom, nor any resignation thereof, 
 hut simply and absolutely ' changing ' the title of Earl, as held 
 hy the Earls of Crawford from ancient times, into that of 
 Duke, and granting it de novo, so transmuted, to the holder 
 
 pro tempore of the Earldom, David Earl of Crawford — there 
 being no restriction of the dignity, — With a memorandum, 
 inserted in the Great Seal Register (and fac-simile thereof), of 
 a Litera stated to have been executed in obedience to the pre- 
 ceding, on the 19th September 1489, in which Memorandum 
 David Earl of Crawford is stated to have been created Duke of 
 Montrose for life,— pp. 531 sqq. :— Contended by the Claimant 
 to be a mere confirmation of the dignity, accumulando jura 
 juribus, and under any circumstances to be impotent to affect 
 the original Dukedom, which had neither been cut down by 
 the Act Rescissory nor resigned, — but held by the Crown and 
 the Committee to prove that the Act Rescissory had been 
 effective in cutting down the original patent : — Discussed and 
 commented upon, pp. xxix, xxi sqq., xcvi sqq., 91 sqq., 166 
 sqq., 195 sqq., 233 sqq., 270, 271, 290 sqq.; 318 and n. *; 
 350, 353 sqq., and relative notes : — The Claimant merely ad- 
 duces the Regrant in proof of the Duke's loyalty, and that the 
 grant of the Dukedom could not be prejudicial to James IV., 
 p. 348, n. t. 
 
 Montrose, Dukedom of. Summary of the Claimant's entire argu- 
 ment on the claim to the, under the patent 1488, pp. cxliii sqq. 
 
 , , Resolution of the Committee of Privi- 
 leges on the present claim to the, under the patent 1488, p. 
 373,— and see pp. xxvu sqq., and House of Lords, Resolutions 
 of the. 
 
 , David Duke of, character of,— see Crawford. 
 
 , , Remission to, by James IV., before 
 
 29th October 1488, of all displeasure, &c. — see Bemission. 
 
 , , Seal of, as Duke, engraved ; and further 
 
 inference as to his rightful style from the Lord Chancellor's 
 observations on the seal of ' Lord Kilmaurs,' p. 521, — and see 
 pp. xxxvi, Ixxxvi, 211 ; 323, u. X ; 332, n. t ; 522. 
 
 , , a charter of, executed six days after the 
 
 Proclamation at Scone (which is asserted to have cut down the 
 grants of James III., although admittedly not legally sufficient 
 to do soj, is recognised and enforced by the Supreme Civil 
 Court in 1490, pp. ix ; Ixxviii, u. f ; 530, n. •*. 
 
 -, Dukedom of, dormancy of the, since the Duke's death. 
 
 accounted for, pp. cxvi sqq., 103; 357, n. f. 
 
 , , Claim to the, as created by the patent 
 
 1488, by James 24th Earl of Crawford : — General character of 
 the, as justifying the present Appeal to Her Majesty, p. ni, — 
 Narrative of the claim up to the present moment, pp. IV sqq., 
 — Effects of the procedure and decision arrived at upon the 
 mode of hearing and determining peerage claims in future 
 times, pp. XII sqq. (and see Dignities, laivs and principles ap- 
 plicable to, ha.), — History of the Resolution of the Committee 
 of Privileges, and comments upon it, p. xxvn, — The Resolution 
 not a judgment, nor conclusive, — see House of Lords, Resolu- 
 tions of the, &c. 
 
 , , Rights and contingent claim of the Earl 
 
 of Crawford to the, as created by the Regrant 1489, (but not 
 yet advanced,) p. xxix,- illustrated by parallelism with the 
 case of the Dukedom of Lennox, as created in 1581, pp. 
 LXXVI sqq. : — These rights and claim cannot be prejudiced by 
 the clause referential to the Regrant in the Resolution of 1853, 
 which it was ultra vires of the House of Lords to pronounce, 
 which proceeded upon misconception and misdirection on the 
 part of those who advised it, and which is not final, &c., pp. 
 XXVII sqq., xci, — and see Holt, House of Lords. 
 
 , , the property granted with the, so small 
 
 as to suggest the inference that it could not have been intended 
 that the Earldom and Dukedom should separate and go in dif- 
 ferent channels of succession, &c., pp. XLiii; cxiv, and n. f. 
 
 , , question of the Claimant's right of suc- 
 cession to the, under the limitation " heredibus suis " in the 
 original patent. Summary of the argument upon the, (not yet 
 discussed,) pp. XLii, XLiii, cxxxviii sqq. 
 
 -, Margaret Duchess of, — see Carmichael. 
 
 , Customs of the Burgh of, analysis of the accounts of the, 
 
 in the Exchequer Rolls, p. 512, — and see Exchequer, Rolls of the- 
 
 — — , Earldom of, in the Grahams, as created in 1503, and 
 
 derived from the private estate of Old Montrose, pp. vi, vii, 
 xxxvii, cxx, 103, 219, 243 ; 333 and notes % and \, 335 and 
 a. t; 412, 413. 
 
 , Dukedom of, created in 1707, pp. vi; 335, ii. f. 
 
 , William, 1st Earl of, styled ' Lord Graham' while in 
 
 lawful possession ol' his Earldom, p. 518 : — And see p. xcv. 
 
 , James Earl of (the great Marquis), a party in the 
 
 Glencairn and Eglinton process in 1637-48, p. xliv: — And see 
 
 Glencaim. 
 , Marquisate of, the grant of the patent of the, by 
 
 Charles I., and the desire of crushing it, the inducement of the 
 
 rebellious parliament in 1649 (immediately after the death of 
 
 Charles I.) to rescind the Glencairn patent 1488, pp. 338, n. 
 
 (°); 462, 463. 
 , James 1st Marquis of, restored by Royal Remission 
 
 against his father's attainder and forfeiture, 1660, p. Ixxxix. 
 , James present Duke of, pp. VI sqq., vin, ix, X, xi, 
 
 XII, 3, 345, 346. 
 , , preliminary question as to 
 
 the right of, to oppose in the present claim, decision upon it, 
 
 in 1851, p. 373"", — and see pp. VI sqq. 
 
GENERAL INDEX. 
 
 589 
 
 Morton, Earldom of, intervention by the Court of Session in de- 
 fence of the, in 1542, pp. Lv ; Ivii, n. f . 
 
 ■ > ) Act of James VI., in relation to the titles of 
 
 the, 1592, p. Ivi. 
 
 Mowbray, grant of the surname of, by James V., with advice of 
 Parliament, 1527, p. LXixm. 
 
 Murray, of Cockpool, charter to, by James IV., 1507, p. 399 :— 
 And see p. xxx. 
 
 " Mutantes," force of the word, in the Montrose patent, pp. 
 XLin, civ, cviii, cxl, cxli ; and in the Regrant, pp. xxix. 
 
 N. 
 
 NAPIER, Barony of, patent of the, to the grantee for life and 
 to his heirs after him, p. 537 :— And see pp. cvi, 178, 298 : 
 356andn. §. iff , > < 
 
 > , the House of Lords overlook a flaw in the 
 
 family investitures affecting the, in 1790, p. 352, n. *. 
 
 1 Mark, Esq., Advocate, his ' History of the Partition 
 
 ' of the Lennox' cited, p. Ixxix, n. §. 
 
 Newhall, the lands of, a novum feodum, granted by James IV. to 
 John Earl of Crawford " et heredibus suis," in 1512, pass 
 over his sisters after his death to vest in the heirs male col- 
 lateral, pp. XLHI, oxlii. 
 
 Nicolson, Sir Thomas, counsel in the Glencairn and Eglinton 
 case, pp. xlv, n. * ; 432 sqq. 
 
 , Thomas, the younger. Lord Advocate, ditto, p. xlv, 
 
 n. * ; 437 sqq. 
 
 Nisbet, Sir John, afterwards Lord Dirleton, Lord Advocate, 
 ditto, pp. xlv, 11. * ; 437 sqq. 
 
 Nithisdale, Earldom of, and Barony of Herries, reversal of at- 
 tainders affecting the, pp. xxxix, n. *; XLiv, Li. 
 
 " Nobile ofBcium," the, of the Court of Session, p. 367, n. (}•). 
 
 Non-assumption of dignities, and non-claim, no bar against sub- 
 sequent claims, pp. xrv and n. f ; xvi ; cxvii and n. -f ; 102, 
 103, 180, 181, 274, 434, 439,— views of the Lord Chancellor 
 and of Lord St. Leonards upon this point, pp. 343 and n. J ; 
 345 and relative notes; 357 and n. f . 
 
 ' Non-obstante ' clause, — see Confirmationg. 
 
 Norfolk, Dukedom of. Case of the, as created by Richard II. in 
 1397 — struck at by an Act Rescissory of Henry IV. in 1399 — 
 not assumed — but finally decided, in 1425, not to have been 
 affected by the Act, on the following rationes and general 
 principles, viz., 
 
 1. That dignities are created by the Sovereign alone, and 
 not by Parliament; 
 
 2. That a dignity lawfully created by the Sovereign cannot 
 be defeated by the general enactments of an Act of Par- 
 liament, that is, without special mention and special revo- 
 cation, either in the case of the grantee or his heirs ; 
 
 3. That when other honours, or grants, struck at by such a 
 general Act have survived unaffected by it, any particular 
 honour in pari casu (as regards its apparent liability to 
 the effect of the Act) must be held also to survive imaf- 
 fected by the Act, — 
 
 the whole case being thus a precedent exactly in point, pp. 
 388 sqq. : — Discussed, pp. xxxrv, xxxvi, xvsqq., 13 sqq., 182, 
 185 sqq., 296 sqq.; 314, n. J; 328, 329, 330; 331, n. *; 362, 
 574. 
 Norfolk, Dukedom of, Charters and documents adduced by the 
 Claimant in reference to the, and the circumstances affecting 
 it,— 
 
 1. The Norfolk patent, 1397, p. 388:— And see pp. xv, 13, 
 30, 185, 296; 328, n. *; 329, u.*; 362 and n. J. 
 
 2. The narrative of the inauguration, 1399, from the Rolls 
 of Parliament, p. 389:— And see pp. xv, 18 sqq., 26, 328, 
 329; 362 and n. f; 574- 
 
 3. The Act Rescissory of Henry IV., 1399, p. 391:— And see 
 pp. XV, 13, 20, 31, 185 ; 296 and n. f ; 328 j 362, n. J- 
 
 4. The Petition of the Claimant and judgment in the Nor- 
 folk claim, 1425, pp. 391 sqq. : — And see pp. xvi sqq,, 
 13 sqq., 29 sqq., 185, 296, 329 sqq., and relative notes. 
 
 5. Extracts from Sir Edward Coke's Report of the Prince's, 
 or Cornwall, case, in 1605, &c., pp. 393 :— And see pp. xv, 
 xviii, xix, 15, 16, 22, 23, 26, 30, 31, 296, 297 ; 329, 
 n.*. 
 
 6. Confirmation of the Norfolk patent by Henry VI., 1444, 
 p. 398: — And see pp. xviii, xliv. 
 
 Norfolk, Dukes of, the Mowbrays, pp. xv, xviii. 
 
 Notarial Instruments, faith attributable to, by precept and 
 example, p. 520, n. *. 
 
 ' Novodamus,' a property not resigned will not pass by ; the 
 Crown cannot grant by novodamux a dignity which is not re- 
 signed, pp. 558, 560,— and see Dignities, annulment of. 
 
 ' Nulla sasina, nulla terra,' the maxim, pp. Lxxxni, u. *; Ixxiv, 
 562. 
 
 0. 
 
 OGILVIE V. the Earl of Airlie, recent appeal case of, judgment 
 of the Lord Chancellor and Lord St. Leonards in the, 1855, p. 
 xciv and n. *. 
 
 Ogilvy, WilUam, charter to, by James IV., 1509, p. 400 :— And 
 see p. xxx. 
 
 ' Olim,' force of the qualifying adjunct, pp. xl, Ixxxv. 
 
 Oliphant, Barony of, claim to the, before the Court of Session, in 
 1633,— Report of the claim by Lord Durie, the judgment pro- 
 ceeding on the principles, 
 
 1. That use is sufficient to transmit titles to the heirs female, 
 where the last defunct had no male children, and where 
 there is no writ extant to exclude the female ; 
 
 2. That the resignation of a dignity into the hands of the 
 King denudes the possessor and his descendants until 
 the King declares his pleasure and confers the dignity, — 
 
 p. 549, n. *; and see pp. lv, lxii, lxix; Ivii, n. ^; 365, n. § ; 
 
 549, 553; 558 and n. *, — founded on in the Kincardine case, 
 
 in 1706, p. LXII. 
 Omnipotence of ParUament, asserted by the Lord Chancellor, 
 
 — see Parliament. 
 Opposition in peerage claims, inconvenience from identity of 
 
 name, and loss of precedency, no legal grounds for, pp. vii, 
 
 103, 104. 
 Orkney, Earldom of, annexation of the, to the Crown by Act of 
 
 Parliament 1471, not a peerage claim, p. LV, n. tttt- 
 Oxenfurd, or Oxfurd, Viscounty of, claim to the, before the 
 
 Court of Session, in 1733, pp. Lxvni sqq. — See Forbes. 
 
 Oxford, Earldom of, reference of the claim to the, by Charles I., 
 to theipouse of Lords, and their certificate, or Report, there- 
 upon (after consultation with the Judges), in 1626, p. V, n. f. 
 
 , , Lord Chief Justice Crewe's Speech in mov- 
 ing the Resolution upon the claim to the, in 1626, p. xrv, 
 n. t. 
 
 PARLIAMENT, the Scottish, had no jurisdiction in dignities, 
 pp. Liv sqq. : — And see Court of Session. — For the exceptional 
 case of a claim attempted, but futilely, before Parliament, in 
 1685, see pp. LV, n. ttTtj 1™, n. ^. 
 
 , , there was no appeal to, in civil 
 
 causes (including dignities), from the Court of Session, pp. Ln 
 sqq.: — And see Court of Session, House of Lords. 
 
 of the United Kingdom, its constitutional character. 
 
 the creature of the Union, p. Lxi, and n. *, — is impotent to 
 obliterate one jot or tittle of the law established by the para- 
 mount authority of that Treaty, pp. Lx, lxi, — its constitution, 
 according to Lord Brougham, p. 340, n. (*). 
 
 -, " Omnipotence" of, held by the Lord Chancellor as 
 
 sufficient to destroy a peerage, or take a person's property, or 
 do anything else ; in other words, to do any injustice lawfully, 
 pp. 312 ; 313 and n. *; 314 and n. f ; 326 and n. %— and see 
 pp. xvni sqq. :— "Whereas Parliament (the Claimant contends), 
 as an assembly which exists only cognately and concurrently 
 with constitutional government, is bound by the existing and 
 unrepealed laws of the land, as well as by the higher condi- 
 tions under which, only, power is delegated to man, p. xvni, — 
 and Lord Holt expressly states that the authority of Parliament 
 is circumscribed by law, p. xviii, n. §. 
 
 -, power of, as distinguished from the Sovereign, to 
 
 alter the descent of a peerage, or to confer a peerage, affirmed 
 by Lord Lyndhurst, pp. 174, 175,— to aid or enable a King to 
 grant a dignity, affirmed by Lord St. Leonards, pp. 173, 291, 
 — and see pp. xix, n. * ; cxi. 
 
 could not pass an Act like the Act Rescissory, 
 
 affecting dignities, without the personal presence and direct 
 concurrence of the King (held by the Lord Chancellor to be 
 immaterial), p. 326, n. ^. 
 
 -, sitting in, by a lower title, being entitled to a higher. 
 
 does not derogate from the latter, p. 326, n. f, — and see 
 Dignities, annulment of. 
 
 -, the Scottish, of 1488, deficient in due formality and 
 
 sanction, pp. xi, 127. 
 
 , the Scottish, of 1649, annulled as rebellious after 
 
 the Restoration, p. 484. — See Glencairn. 
 
 Patent, a, essential to the creation of a dignity, of an Earldom or 
 Dukedom, pp. 555 sqq. :— And see Belting; and Dignities, 
 creation of. 
 
 , — , of dignity, all documents in pari materia must be pre- 
 sumed to be before the Sovereign, and to be duly weighed and 
 considered, in drawing up, p. cxli. 
 
 -, of dignity must be under the sign manual, and not 
 
 the mere caschet, or warrant of Exchequer, in order to be ef- 
 fectual, p. Ixxxviii, n. f; 551, 558, &c.:— See Charters. 
 
 , — , , must be drawn up in strict conformity to 
 
 the Royal Warrant or Signature on which it proceeds, every- 
 thing in honours depending on the personal intervention and 
 
590 
 
 GENERAL INDEX. 
 
 will of the Sovereign ; and if it varies from the Warrant, it 
 falls by Peerage Law to be corrected by the Warrant, pp. Ixx, 
 172, 173, 176; 325, n.§: — And see Charters; Dignities, crea- 
 tion of; Warrants. 
 
 Patent, a, of dignity, the date of a, not that of the appending of 
 the Great Seal, but that of the Warrant or Signature by the 
 Sovereign, on which it proceeds, pp. vi, 379. 
 
 , — , , the sealing of, took place before registra- 
 tion, by ancient practice, p. v and n. X i 379. 
 
 Patents of dignities, the registrations of, received in evidence, 
 the originals being lost, see Colville, Devon, Kellie, Kirkcud- 
 bright, Polwarth, Rutherford, Winchester. 
 
 were frequently not registered, p. 405, — 
 
 and see Airth, Balfour of Burleigh, Breadalbane, £glinton, 
 Glencairn, Hollo. 
 
 , Scottish, retained something feudal and territorial in 
 
 their features, more than in England, even after honours had 
 ceased to be territorial, p. cxxxviii. 
 
 Peers of Scotland, other than the sixteen representative peers, 
 the right of the Sovereign to bestow peerages of Great Bri- 
 tain upon the, entitling them to sit in Parliament, opposed and 
 denied by the House of Lords from 1711 to 1782, in which 
 latter year their Resolution to that effect inl711 was rescinded 
 by a counter Kesolution, pp. LXXII sqq. 
 
 Penal and deprivatory statutes must be strictly construed, in 
 favour of those supposed to be struck at by them, pp. xxii, 
 xxni, XXXI; vii, n. J ; xiv, xx sqq., cxxvii, cxxviii, cxxx, 8 
 sqq., 259, 262, 263 ; 314, n. § ; 327, n. § ; 344, n. * ; 346, 
 n. f : —Departure from this rule in the Montrose decision, p. 
 XXIII : — The rule since affirmed, and extended to civil depriva- 
 tory instruments by the Lord Chancellor and Lord St. 
 Leonards (in accordance with a previous decision of Lord 
 Brougham), pp. xciii, XCIV. * 
 
 Perigord, the Counts of, argument from their usage of inferior 
 but older in preference to higher but more modern titles, p. 
 203 : — And see p. xciv. 
 
 Perth and Melfort, Earldoms of, conversation regarding the at- 
 tainders and forfeitures affecting the, p. 195, — exposition of 
 facts attending upon the said attainders and forfeitures, pp. 
 XLVIU sqq.,- — the Perth case furnishes additional and special 
 arguments in the Claimant's favour, p. L,— Act of Parliament 
 reversing the said attainders, pp. SXXIX, n, * ; XLiv, L, — 
 Speeches in the House of Lords on the occasion of the said Act 
 of Reversal, p. XLi, u, * ; and inference therefrom, to the im- 
 possibility that a proposal on the part of Her Majesty to reverse 
 the Act Rescissory of 1488 in favour of the Claimant should be 
 viewed otherwise in the House than as an Act of justice as 
 well as grace, p. XLI, n. *. — See Melfort. 
 
 , , Capitals and Italics used in the 
 
 * Minutes of Evidence ' in the recent claim to the, p. [vi.] 
 
 , Earldom of, argument of the claimant to the, in proof of 
 
 the destination of the original patent, p. 571. 
 
 Pinkerton, the (Whig) historian, his testimony to the character 
 
 of the rebellion of 1488, p. xxxvin, n. *. 
 Pitfour, the lands of, a novum feodum, granted by James IV. to 
 
 John Earl of Crawford "et heredibus suis," in 1510, pass over 
 
 his sisters after his death to vest in the heirs male collateral, 
 
 pp. XLin, cxlii. 
 Pointing to a dignity in an Act of Parliament, insufficient to 
 
 destroy it, p. 314, n. J, — and see Dignities, annulment of. 
 
 Polwarth, Barony of, the registration of the patent of the, re- 
 ceived in evidence, pp. vi, 257. 
 
 Precedency, loss of, no ground for opposition in peerage claims, 
 pp. VII, 103, 104. 
 
 , questions of, were tried before the Court of Session, 
 
 not Parliament, in Scotland, pp. Liv sqq. — See Court of Session. 
 
 Precedents, admissibility of ancient Scottish, in claims to ancient 
 English peerages, and vice versa, p. xv, n. *. 
 
 , observations on, generally, and on the peculiar view 
 
 taken of them against the Claimant in the present case, pp. 
 XXV, n. § ; 301, 302 ; 331 and n. * ; 362, n. * ; 372 and n. *. 
 
 ' Prince's Case,' the, — see Cornwall. 
 
 Priority of obligation — i. e. the duty of proceeding from earlier 
 ascertained facts to later, &c. insisted upon, pp. xxvi and n. 1| ; 
 Lxxxvii, n. * ; Ixxxviii, n. * ; ci, cii; 317, n. *, &c. — And see 
 Stair. 
 
 Privy Council, the intervention of the, in peerages, of a merely 
 interim character, and they always referred the decision to 
 the Court of Session, pp. LV, Ivi sqq., 36, 147, 301, 302.— And 
 flee Court of Session, testimony to the, &c. 
 
 Proclamation at Scone, the, after the battle of Stirling, June 
 1488, the only two allusions to it, pp. ix, n. * ; 381, — nothing 
 is known of it, and it could have no legal effect in destroying 
 the grants of James III., including the Dukedom, which how- 
 ever it is held to have done, although not by the Lord 
 Chancellor and Lord St. Leonards, pp. viii ; ix and n. * ; 
 xxxiii, xciv, 121, 122, 161,229, 231, 233, 239, 278, 279; 313 
 and n. t ; 344 and n. § ; 346, 438, 492, — and see pp. xxi, n. § ; 
 XXII, u. "■. 
 
 , the Lords of Council and Session in 1490 
 
 enforce a charter of David Duke of Montrose, as Duke, 
 granted six days after the, pp. ix ; 530, u. *. 
 
 Protestation for remeid of law to Parliament, the right of, as 
 established in 1689, its character, the conditions (protective 
 of the Court of Session) under which it was granted, &c. &c., 
 pp. LVi sqq.— And see Court of Session. 
 
 Purbeck, Viscounty of, Kesolution of the House of Lords on the 
 claim to the, pp. V, n. f ; LXVil, n. f . 
 
 Q. 
 
 QUALIFICATION, words of, invariably added where the title 
 was doubtful or disputed, pp. xl and n. § ; xli and n. f ; 
 Ixxxv. 
 
 Queen, Address to Her Most Gracious Majesty the, pp. i sqq. 
 
 Queensberry, Marquisate of, case of the, in 1812, illustrating 
 the supreme importance attached to resignation, the dignity 
 having been ruled to descend to the heir under the original 
 investiture in consequence of its not having been specifically 
 resigned along with the Dukedom and the other family digni- 
 ties, p. vii, n. X- 
 
 — , James Duke of, created Duke of Dover in 1708, 
 
 pp. xxvin, n. t ; Lxvm, Lxxn sqq. — See Dover. 
 
 ' Quequidem ' clause, the, in charters, its nature, and value of its 
 testimony, as reciting resignations, forfeitures, &c. which 
 were always recited in it when they had occurred, pp. vii, 
 11. X ; cix; cxxiv and n. f ; cxxv, 95, 172, 176. 
 
 * Quod voluerunt non fecerunt,' application of the principle, pp. 
 XX and n. t; xxiii ; 349, n. f . — See Intention. 
 
 ' Quondam,' force of the qualifying adjunct, pp. xl, Ixxxv. 
 
 E. 
 
 RAMSAY, Sir John, formerly Lord Bothwell (attainted in 1488), 
 charter to, by James IV., 1497, p. 508 ; and see pp. xxxiii, 
 240, — charter to, by ditto, 1498, p. xxvii, n. §. 
 
 — ■ — — of Balmain, charter to, by James V., 1534, p. 508, — 
 
 and see pp. xxxiii, 240. 
 Ranking, Decreet of, of the Nobility, by Royal Commission, 
 
 1606, p. 418 : — And see Decreet of Hanking, 
 
 Ratifications in Parliament carry no new right, see Erskine, — 
 
 passed of course, and were matters of mere form, p. 551. — See 
 
 Confirmations. 
 Recognition, Royal, had (when with the King's full knowledge) 
 
 the effect of rehabilitating against forfeiture, in Scotland, pp. 
 
 lxxxvii sqq., 76, 78, 125, 194 ; 365, n. *. 
 
 ' Reddendo singula singulis,' illustrations of the principle, pp. 
 
 cxv; 332, n. § ; 347, n. J ; 566. 
 Redesdale, the late Lord, dictum of, that in early times a peerage 
 
 limited " heredibus suis " did not go thereby to heirs female, 
 
 but only imported a male succession, p. 572. 
 
 , Lord, Chairman of the Committees, impressions of, 
 
 as expressed during the discussion of the Montrose claim, 
 (collected together,) p. cxxxvi, —on the grant to the Cunning- 
 hams of Polmaise, pp. 240 sqq., — on the inauguration upon the 
 Glencairn patent, pp. xxxix, 213, 214, — on the decision by the 
 Court of Session in the precedency question in 1648, pp. Ixii, 
 214 ; 337, n. ||, — on the circumstances attending the Montrose 
 Regrant, p. 174, — on the mode of insertion of the memo- 
 randum of the Litera in the Great Seal Register, pp. civ, n. f ; 
 98, — on the dormancy in the case of the Earldom of Devon, 
 pp. cxix, 104. 
 
 ' Reference,' technical meaning of the term in Scottish law, p. 1, 
 n. ■*. 
 
 References, erroneous, in writs, to be corrected by recurrence 
 to the original and actual documents referred to, pp. Ixxxiv, 
 285 ; 352, n. *. 
 
 Register of the Great Seal, its character, modes of inserting 
 charters in the, &c., pp. v, vi, 377 sqq., — and see Registration. 
 
 , facsimile of two pages of the, one 
 
 of them containing the memorandum of the Montrose Litera, 
 19th Sept. 1489, contended by the Claimant to have been 
 an ex post facto and careless (if not fraudulent) interpolation, 
 — faces p. 531 : — And see pp. civ, u. f ; cv and n. *■ ; 97, 98, 
 105, 197, 235. 
 
 Registration of charters and patents, evidence regarding the form 
 and manner of, and evidence on the question whether the 
 abridgment of charters indicates their being merely life-rent 
 grants or not, pp. 379, 397, 405, 533 sqq.: — And see pp. vi, 
 xcix, civ sqq., 98 sqq., 235, 290 sqq. 
 
 of patents not essential to their validity in Scotland, 
 
 pp. V, n. t ; 405 : — And see Airth, Balfour of Burleigh, 
 Breadalbane, Eglinton, Glencairn, Rollo. 
 
 I effect of non-, on patents of Dukedoms in France, 
 
 p. V, n. f. 
 
 Registrations of patents are received in Peerage claims, the 
 originals being lost, as by precedents cited, pp. vi, 258, 311, 
 n. t : — And see Colville, Devon, Kellie, Kirkcudbright, Pol- 
 warth, Rutherford, Winchester. 
 
GENERAL INDEX. 
 
 591 
 
 technical meaning of the terms, 
 
 Eehabilitaticn through simple recognition, or special remission 
 by the Sovereign, — see Recognition and Remission. 
 
 - can only be by the King, of his certain knowledge, 
 p. Ixxxvlii, II. f. 
 
 Kemedial statutes are to be interpreted largely, er favourably, 
 and a fortiori in honours, pp. rxiii and n. f ; xiv, xx; cxxvii, 
 n. * ; cxxx, 262 ; 327, notes § and (■;,— this rule practically 
 reversed by the recent Montrose decision, p. xxiv. 
 
 Remission, Royal, restoratory effect of, without aid from Parlia- 
 ment, against attainder and forfeiture, by Scottish law, pp. 
 Ixxxviii, Ixxxix, 194; 336, n. **. 
 
 , , to David Duke of Montrose, by James IV. 
 
 after his accession to the throne, of his whole displeasure 
 (" omnimodam displicientiam ") consequent on the Duke's 
 loyalty to his father, p. 521: — And see pp. Ixxix, Ixxxviii, 
 Ixxxix; 316 and n. § ; 323 and n. *, &c.— See Montrose. 
 
 ' Remit,' and ' remittance, 
 p. 1, n. *. 
 
 'Report on the Dignity of a Peer,' quoted, p, 194:— And see 
 p. Ixxxviii, n. *. 
 
 , causes which have originated the present, of the Mon- 
 trose claim, pp. [iii], in. 
 
 ' Kes noviter veniens ad notitiam,' force of the plea, pp. xxix, 
 xci. 
 
 Resignation, feudal importance and absolute indispensability of 
 a, in order to void previously existing rights ; and the necessity 
 of the clearest and minutest expression and specification of the 
 intention of the resigner, pp. vii, notes X "■ud sqq. ; cii, cix, 
 &c. : — And see Dignities, annulment of; Queensherry ; 
 Spynie. 
 
 always specified in the quequidem clause of subse- 
 quent charters, and even in abridged memoranda of such 
 charters ; and where no resignation appears on the instrument, 
 none can be presumed, pp. vii, n. J ; 380 : — And see pp. 95, 
 172, 565. 
 
 ■ and regrant, enumeration of the instruments neces- 
 
 sary for effecting a, pp. 192, 232, 284, 285,— their relative 
 importance as testifying to the will and cognisance of the 
 Sovereign, pp. Ixxxiii, Ixxxv, 284, 285. 
 
 prerequisite before an honour can pass by nouo- 
 
 damus, pp. 558, 560, — and see Dignities, annulment of. 
 
 ■ of dignities, the privilege of, for new investiture. 
 
 varying Resolutions of the House of Lords in England respect- 
 ing, p. Lxvu, n. f . 
 
 , the privilege of, in Scotland, defined 
 
 by the Court of Session in their Report 1740, p. LXVU, n. f, — 
 reserved to the subject by the Treaty of Union, p. Lxm, — but 
 overruled and denied by the House of Lords in the case of the 
 Earldom of Stair, in 1748, pp. LXVI and n. || ; Lxvn and n. f . 
 
 Resignations of dignities, the prevalence of, in favour of heirs 
 female argued to imply (abstractly) that the legal right lay 
 with the heir male, and that this right could only be altered 
 by a resignation and new grant to the heirs female (Cassillis 
 claim), pp. 548, 557, 560. 
 
 ■ , no separate Register for, in Scotland, p. 380. 
 
 Resolution, the, in the Montrose claim, as originally proposed, 
 p. 343, — as finally passed, with the addition of the clause 
 referential to "the Regrant, p. 373: — And see pp. xxvii, 
 cxxxvii : 372, n. §. 
 
 , , 1 , character and effect of 
 
 the, pp. xxvn sqq., xxxi. 
 
 Resolutions of the House of Lords in peerage claims, their effect 
 and character — not judicial decisions, nor final and conclusive 
 in any case, &c. &c., pp- iv, v, &c. — See House of Lords. 
 
 Restitution, Acts of Parliament for the purpose of, to be con- 
 strued most benignly, pp. xxni, u. ^ ; cxxvii, n. * ; 327, 
 n. C). 
 
 Restorations of dignities, unjustly forfeited, per mxidum justitice, 
 pp. XL, n. *. 
 
 Reversal of attainder of forfeited peerages, mode of, pp. xxxTiii 
 sqq., and relative notes. 
 
 Richard II., parallel between the rebellion against, and the cir- 
 cumstances that followed, and those attendant on the latter 
 days of James HI.,- — see Norfolk. 
 
 , testimony of, that the creation of peerages is 
 
 honourable and profitable to the Crown, pp. xiii, n. * ; 388. 
 
 Riddell, John, Esq., Advocate, the father of the Montrose claim, 
 pp. [vii]; vn, n. *■; X; and passim :~\lis character as a 
 peerage lawyer and genealogical antiquary, by Mr. Lockhart, 
 in the Quarterly Review, p. x. 
 
 , ' , , his ' Peerage and Consistorial Law,' cited, 
 
 pp. Liv sqq. and passim, — citation of, by the Attorney 
 General, pp. 217, 218 ; remarked upon, p. Ixvi, n. •*. 
 
 Robertson, David, Esq., his ' Reports of Cases on Appeal,' &c. 
 cited, p. LXiii : — See also pp. Ixiii, n. * ; 60, 81, 83. 
 
 , George Brown, Esq., Assistant Deputy Keeper of the 
 
 Records, Edinburgh, evidence of, pp. 377 sqq. :— And see 
 p. 105. 
 
 RoUo, Barony of, registration of the patent of the, by warrant of 
 the Court of Session, 1764, p. LXix, n. f . 
 
 Kolt, John, Esq., Q.C., Counsel for the Duke of Montrose, his 
 intervention in the preliminary question of the Duke's right 
 to oppose, pp. 373* ; 374*, — in the recent discussion, pp. x, 3 
 sqq., 180, 256,— and for his observations collected together, 
 see p. XVI, n. ||. 
 
 Roos, Barony of De, created by summons to Parliament, p. 
 LXXXIV, u. §. 
 
 Ross, Dukedom of, creation of the, by James III., 1487-8, p. 
 cviii. 
 
 , Sir John, of Montgrenan, attainted in 1488, p. vii, — 
 
 charter to, by James IV., in 1489, a simple recognition by the 
 Sovereign which fully rehabilitated him, pp. xxvii, n. § ; 
 Ixxxviii. 
 
 Rosslyn, Earl of, — see Loughborough. 
 
 Rothes, Earldom of, claims to the, remitted to the Court of 
 Session, in 1682, pp. LV, Ivii; 369, u. f. 
 
 Roxburghe, Earldom of, the patent of the, 1648, tested by refer- 
 ence to the warrant in the claim before the House of Lords, 
 1812, pp. 176, 177. 
 
 , , case of the, in 1822, admission of a 
 
 notarial instrument in the, p. 520, n. "'. 
 
 Ruglen, William Earl of, Case of, claiming the Earldom of 
 Cassillis, &c., as heir general, pp. 551 sqq. 
 
 Rutherford, Barony of, registration of the patent of the, received 
 in evidence, pp. vi, 257. 
 
 , James, charter to, by James III., 1482, in fee — 
 
 abridged in the Great Seal Register, pp. 534, 541. 
 
 s. 
 
 ST. LEONARDS, Lord, Speech of, in moving the Resolution in 
 the present claim, pp. 344 sqq. 
 
 ' , , erroneous assertion of, that the reign of 
 
 James HI. ended on the 2nd February 1487-8, and not on the 
 day of his death, the 11th June 1488 ; and that consequently 
 the King's grants diiring the interval between those dates (in- 
 cluding the grant of the Montrose Dukedom) were not treated 
 or allowed to continue as real grants after his death, pp. 344, 
 348, 359, — disproved and commented upon, with proof that 
 James III. was recognised all along as lawful king till the day 
 of his death, pp. xxxi and n. § ; xxxii; xxxrv, iv, 162, 163 ; 
 313, n. t; 344, n. |1; 348, n. | ; 359, n. ||,— and see pp. 383 ; 
 516 and n. t- — See also James III. 
 
 , , opinion of, on the moral justice of the 
 
 Act Rescissory, p. 87, — contrasted with that of the Officers for 
 the Crown, the Lord Chancellor, and Lord Brougham, p. 
 xxxvin, 11. *, — his mode of interpreting the Act Rescissory, 
 so as to make it apply, pp. xxi, u. J ; xxxi. 
 
 , , opinion of, on the power of Parliament 
 
 to enable a King to grant a dignity, pp. 173, 291 : — ^And see 
 pp. XVIII ; XIX and n. "" ; cxi. 
 
 -, , opinion of, on the extreme simplicity of 
 
 106 ; 344 and n. *. 
 
 the present case, pp. 
 
 , , opinions of, on the power and ju'risdic- 
 
 tion of the House of Lords in peerages, as derived from the 
 Scottish Parliament before the Union, pp. 300 sqq. ; 368 and 
 n. ^ ; 574, — and for analysis of his Lordship's reasoning, p. 
 369, n. f . — See Court of Session, and Dignities, claims to. 
 
 , , suggests, as expedient, the introduction 
 
 of prescription against claims to ancient peerages, p. 345, — 
 protested against, pp. xiv and n. f ; xv. 
 
 , , observations of, on the necessity of 
 
 literal interpretation of Acts of Parliament, as expressed in the 
 Shedden Appeal case, contrasted with his mode of interpreting 
 the Act Rescissory in the present claim, pp. XLiv sqq., xcii ; 
 and as expressed in a recent debate, p. xciii. 
 
 , , his misconception and misrepresenta- 
 tion of the Act Revocatory 1503-4 as merely a clause or 
 chapter of a statute, p. 361 and n. '*. 
 
 , , his Speech (for the most part) an echo 
 
 of that of the Lord Advocate, p. xxvi, n. * ; but extending 
 into assertions and propositions untenable in point of legal 
 fact and truth, ibid., n. f . 
 
 Scotland, the civil laws of, are ordained by the Treaty of Union 
 to be still observed, unless altered by the Parliament of the 
 United Kingdom ; and do now subsist and continue in force ex- 
 cept where in such manner altered, p. Lxxi and n. f . 
 
 , the laws of, rule the House of Lords in Scottish cases, 
 
 pp. LXXI and n. J ; 340, n. *. 
 
 , the heirs to the Crown of, between 1373 and 1542, 
 
 being male heirs, are always styled ' heirs ' simply in contem- 
 porary charters, p. cxxxix. 
 
 Scott, James R. Hope, Esq., Q.C., counsel for the Duke of 
 Montrose, pp. x, and afterwards. 
 
 Seal, the Great, was appended to charters before registration, till 
 the contrary practice was ordained by statute in 1672, p. 379. 
 — See Registration. 
 
 4 G 
 
592 
 
 GENERAL INDEX. 
 
 Seal, the, of Lord Kilmaurs, in 1496, (p. 410,) held by the Lord 
 Chancellor to indicate and fix his proper rank and title, pp. 
 211, 332,— inference of the Claimant therefrom as to the pro- 
 per rank and title of David Duke of Montrose, pp. xxxiii ; 
 xxxvi, n. t; Ixxxvi ; 323, n. t; 332, n. f. 
 
 Secret Council, — see Privy Council. 
 
 ' Secundum formam carte,' force of the words, as implying a li- 
 mitation, pp. civ, evil. 
 
 Seisin, see Nulla sasina, &c., and Stair. 
 
 Selden, John, his description of the inauguration of Earldoms in 
 Scotland, p. 412, n. * ; and see pp. xxxvii, n. f; 364, n. f, — 
 cited with reference to the absorption of dignities into the 
 Crown, p. Lxxxvi, n. *, — also quoted, p. xiii, n. *. 
 
 Sempill, Barony of, case of the, in 1685, illustrating the flexibi- 
 lity of the term ' heirs,' p. cxxxix. 
 
 Session, the Lords of, forming the Supreme Civil Court, before 
 1532, have been improperly described as a Committee of Par- 
 liament, being appointed, not by Parliament but by the King, 
 pp. lix, n. *; 366, n. f. 
 
 , Court of, — see Court of Session. 
 
 Shedden v. Patrick, Appeal case of, extracts from the Speeches 
 of the Lord Chancellor and of Lord St. Leonards upon the, 
 pp. xci, xcii, — comments on the view thus taken, as contrasted 
 with the Montrose decision, pp. XLiv sqq. 
 
 Signatures, — see Charters, Patents, Warrants. 
 
 Sinclair, Barony of, declaration by Parliament of Sir Henry Sin- 
 clair's right to succeed to his father's, p. LV, ii. tttt- 
 
 — , Alexander, Esq., his essay on ' Heirs male ' cited, p. 538, 
 
 u. *. 
 
 Sittings in Parliament, upon summons thereto, varying Resolu- 
 tions of the House of Lords on the effect of, in England, p. 
 Lxxv. — See Banbury, Witloughby of Parham. 
 
 not imperative or important (in the Eng- 
 lish view) in Scotland, or in Scottish claims to dignities, pp. 
 Lxra ; lix, n. * ; 339, n. ■*. 
 
 Skene, Sir John, his doctrine on Royal remission against for- 
 feiture, p. Ixxxix. 
 
 Solicitor-General, p. x.,— Speech of the, pp. 109 sqq. 
 
 ' Solutio' and ' solvere,' technical import of the words, pp. 
 Ixxiii, n. *; 320, n. J; 512, n. *. 
 
 Somerville, Barony of, claim to the, before the House of Lords, 
 in 1723, pp. Lxvi; 368, n. JJ, — its long dormancy, p. cxvii, 
 n. t. 
 
 Somyr of Balyordie, charter by James IH. to, in 1488, which 
 survived and stood, notwithstanding the Act Rescissory, p. 
 402 : — And see pp. xxxiii, xxxiv, Ixix, cxxii, 131, 239; 326, 
 n. t; 347, n. f ; 349, n. f; 359, n. J ; 508. 
 
 Sovereign, the, is the sole fount of honour — the King creates a 
 peerage, not Parliament, pp. xvm sqq., xvii, 392. — See 
 Dignities, creation of. 
 
 , everything in dignities depends on the personal inter- 
 vention and sanction of the, as expressed in the warrants, pp. 
 Ixx; Ixxxviii, n. t; 172, 173, 176; 325, u. §; 551, 558. 
 
 , the grants of the, which infer no consequential preju- 
 dice to others, are by Scottish law to be interpreted as largely 
 and liberally as possible, pp. Lxxxni and n. |1 ; xiv, 262. 
 
 , the grant of a peerage by the, to a loyal subject (as 
 
 that of the Dukedom of Montrose to David Earl of Crawford) 
 cannot be held to be ' prejudicial ' to his successor ; and 
 therefore must be interpreted according to the preceding prin- 
 ciple, pp. xxi, xxii, 271. 
 
 , the, must always, by feudal and Scottish law, exactly 
 
 know who his vassal is, and what is done in his regard, pp. 
 IV, Ixxxviii; 324, n. ||. 
 
 ,the recognition of the, rehabilitates (by ancient Scot- 
 tish law) a forfeited person, pp. Ixxxvii sqq., 76, 78, 125, 194, 
 .336; 36.5, n. *. 
 
 , the, in Scotland, could rescind Acts of Parliament in 
 
 the 16th century, pp. 326, n. ** ; 365, n. *. 
 
 , the, cannot regrant a dignity without a previous resig- 
 nation, pp. 552, 558, 560, — and see Dignities, annulment of. 
 
 , if the status of, is attained by a subject holding a dig- 
 nity, that dignity is absorbed into the Crown, and the King is 
 at liberty to dispose of it, like any other honour, by independ- 
 ent grant to whomsoever he may choose, p. lxxxvi and n. *. 
 
 , reference from the, to the House of Lords, the sole 
 
 way in which the House can consider or take cognisance of 
 dignities, p. 300, — and see Dignities, claims to. 
 
 , the, may refer the consideration of peerage claims to 
 
 any tribunal ; may refer a case back again for further consi- 
 deration ; or may refer it to other authorities; or may act in- 
 dependently of any opinion or advice rendered, pp. iv ; V and 
 n. t ) xxvin, n. f ; 300. — See Dignities, annulment of, and 
 House of Lords. 
 
 -, the, cannot, as matter of Scottish law, without consent 
 
 Speeches of Counsel, pp. 1 sqq. — See Advocate, Lord; Attorney 
 General ; Kelly ; Solicitor General, — also Innes, Molt, Scott. 
 
 • , mode of printing the, in this Report, p. 
 
 [iv]. 
 
 of the»Lord Chancellor and Lord St. Leonards, pp. 311 
 
 sqq. 
 
 of Parliament, delegate jurisdiction to any Courts different 
 from those which have been used and established, p. Liv, n. J. 
 
 Spain,— see France. 
 
 Special mention of dignities in Acts of Parliament imperatively 
 requisite in'order to affect them, pp. xxm, xvii, xxv, xxvi, 8, 
 16, 17, 296; 314, n. t ; 330, n. f ; 362, n. J; 392. 
 
 Spynie, Barony of, created in 1590, case of the, furnishing a re- 
 markable parallel to that of the Dukedom of Montrose, illus- 
 trating the Claimant's argument throughout, both as regards 
 the nullity of the Act Rescissory and the limitation of the 
 Montrose patent, pp. 561 sqq. — See also pp. xxxviii, n. * ; 
 cxxxviii and n. I ; cxlv, 159; 363, n. §; 491 and n. §. 
 
 , George Lord, becomes ' Lord Lindsay ' on the death of 
 
 Ludovic 16th Earl of Crawford, as next male heir of the 
 House of Crawford, Earl Ludovic not having resigned that 
 dignity, p. cxviii. 
 
 Stafford, Barony of, attainder affecting the, and reversal thereof 
 by Act of Parliament ^er modum justitice in 1824, a precedent 
 suitable in relation to the Dukedom of Montrose as held to 
 have been affected by the Act Rescissory, pp. XL and n. * ; 
 
 XLIII, XLIV. 
 
 Stair, Earldom of, claim to the, before the House of Lords, and 
 disallowance of the privilege of resigning dignities for new 
 investiture, most arbitrary under the circumstances, in 1748, 
 and expressly stated to have proceeded on English principles, 
 pp. LXVI and n. || ; LXVII, n. f. 
 
 , Viscount, his statement that the Lords of Session (before 
 
 1532) were not a Committee of Parliament, p. 366, u. (•>). 
 
 , — ■, evidence of, as to the final authority of the Court 
 
 of Session, pp. LIII, xlviii, 58, 150; 365, n. § ; 495. 
 
 , , statement by, of the circumstances out of which 
 
 the contest between the Court of Session and the Advocates 
 on the subject of Appeals arose in 1674, pp. Liii, xlviii, 58, 
 150, 495. 
 
 , , his definition of the circumstances under which 
 
 protestation for remeid of law was, and was not, competent 
 under the Claim of Right 1689, pp. Lvii sqq. 
 
 , , his account of the ' nobile officium ' of the Court 
 
 of Session, p. 367, n. (''). 
 
 , , his evidence that the Parliament of 1649 and 
 
 the Decreet 9th March 1649 (rescinding the Decreet of the 
 Court of Session in favour of Glencairn, 18th January 1648), 
 were rescinded in 1661, pp. xlviii, 58, 150, 495. 
 
 , ■, statement of, that whatever is recorded among 
 
 the Acts of Parliament bears the consent of the King and 
 Three Estates, p. 226, — explained, as regards dignities, in so 
 far as it is objected by the Crown in the present case, p. xii. 
 
 , , referred to, on the subject of benign interpre- 
 tation in dubious and penal cases, p. xxii, u. §. 
 
 Slair, Viscount, dicta of, viz. 
 
 1. That rights are to be judged and ascertained by reference 
 to law as existing at the time when the rights under dis- 
 cussion were acquired or affected, and not as subsequently 
 altered, pp. xxvi, n. || ; LVIII; Ixxxviii, n. * ; ci, cii. 
 
 2. That if heirs are not expressed in feudal investitures, they 
 are understood, p. Lxxxin and notes f and %. 
 
 3. That charters do not become a real right till completed 
 by seisin, p. Lxxxm, u. ■". 
 
 Stewart, Sir Lewis, counsel in the Glencairn and Eglinton pro- 
 cess in 1637-48, pp. xlv, 432 sqq., — probably the author of 
 Glencairn's Supplication tq Parliament, 1649, p. LVi, u. *. 
 
 , Sir James, Lord Advocate under Queen Anne, dicta of, 
 
 viz., 
 
 1 . That the King, granting a remission after forfeiture, re- 
 stores the person forfeited entirely, pp. Ixxxix; 336, 
 n. **. 
 
 2. That it is too much that protestations for remeid of law 
 (since 1689) should bring civil causes to be reviewed in 
 Parliament, p. LXiv. 
 
 3. That the adjudging of a ' Ducatus ' or ' Earldom ' ( i. e. 
 of lands erected into such) will not make a man Duke or 
 Earl, p. Lxxvin, n. §. 
 
 , see Stuart. 
 
 Stirling, the Sheriffdom of, see Cunninghams of Polmaise and 
 Erskine. 
 
 , the Chapel Royal of, endowment of, by James IV., pp. 
 
 cxxvi sqq., 85 sqq. — See James IV., remorse of. 
 
 Stowell, Lord, his character of Lord Kames, p. 366, u. *. 
 
 Strathallan, Viscounty of, reversal of the attainder affecting the, 
 pp. XXXIX, n. * ; XLVii. 
 
 Stratheam, Earldom of, limitation in the grant of the, in 1371, 
 to " heredibus suis," construed as to heirs male, and the 
 dignity returned to the King accordingly, p. 557. 
 
 , , created for life in 1427, the only in- 
 stance of a life peerage in Scotland before 1488, p. cv, n. §. 
 
 , , case of the, before the Court of Session, 
 
 in 1632-3, pp. LV; lvii, u. ^, — dormancy of the, no bar, p. 
 cxvii, n. -f. 
 
 Strict interpretation, — see Penal Statutes. 
 Stuart, House of, next male representation of the, p. lxxxvi, 
 u. f. 
 
GENERAL INDEX. 
 
 593 
 
 Stuart, Andrew, opinion of, that the Parliament of 1488 was 
 not attended by the partisans of the late King, p. xoiii, n. §. 
 
 J , his statement that the descriptions in Crown 
 
 charters of persons and places are regulated by the descrip- 
 tions in the Warrants of these charters, pp. Ixxi, n. * : 325, 
 n. §. 
 
 Summary of the Claimant's entire argument (from the Case and 
 
 Supplemental Case), pp. cxliii aqq. 
 Summons to, and sitting in, Parliament, constitute (in England) 
 
 a peerage descendible to heirs, p. Lxxxiv, n. §, — varying and 
 
 contradictory Resolutions of the House of Lords on this subject, 
 
 p. LXXV. 
 
 Superior, the, and especially the Sovereign, is presumed always 
 exactly to know who his vassal is, and what is done in his 
 regard, pp. Ixxxviii ; 324, n. || . 
 
 Supreme Civil Court, the, — see Court of Session. 
 
 Survival, the, of grants in pari casu, struck at by a hostile sta- 
 tute, affords proof that the' statute has not taken effect on the 
 particular grant under consideration, pp. xvii, 17 ; 329, n. § ; 
 362, II. * ; 392. 
 
 Sutherland, Earldom of, claim to the, in 1771, p. 491. 
 
 and Errol precedency, question of the, discussed be- 
 fore the Court of Session, 1661 and 1671, pp. LV ; Ivii, ii. ^. 
 and Crawford precedency, question of the, discussed 
 
 before the Court of Session, in 1706, pp. Lix and n. ^ ; 220 ; 
 365, n. § ; 557, 558, — grounds of the precedency enjoyed by 
 the Earldom of Crawford by the Decreet of Banking 1606, by 
 the decision of the Court of Session 1706, by the ranking in 
 the Union Roll, and ever since, p. 365, n. (°), — procedure for 
 renewing the question, initiated by William Earl of Sutherland, 
 before the Court of Session, but not followed up, in 1746, p. 
 LIX, n. % 
 
 ' TACITUS consensus,' argument by Eglinton, in 1648, that it 
 had taken away the effect of the Act Rescissory to a certain 
 extent as regarded Glencairn, pp. 252, 441. 
 
 Talbot, Lord, is addressed so after his creation as Earl of Shrews- 
 bury, in Shakspeare, p. 102. 
 
 Tarras, Walter Earl of, restored against attainder by Royal remis- 
 sion, in 1687, pp. Ixxxix ; 336, n. **. 
 
 ' Tenendas' clause, the, in early charters, frequently (and in 
 ancient times exclusively) contained the limitation, pp. cvi, 
 11. X ; 356, II. § ; 540. 
 
 ^ the, represented only by an " etc." in the 
 
 curtailed and interpolated memorandum of the Montrose 
 Litera, pp. xcix, c, civ sqq., 178, 198, 236 ; 356, n. § ; 532 ; 
 533 and n. * ; 540, 541. 
 
 Testing clause, mode of referring to witnesses in the, pp. v, vi, 
 377 sqq. 
 
 Time, lapse of, no bar to a peerage claim, p. 102, — and see 
 Dignities, annulment of, and Dormancy. 
 
 , , as objected in the present claim, how answered, 
 
 see Dormancy. 
 
 ' occupied in the present claim complained of, p. 311. 
 
 Title, the bestowal of the same, on other families during dor- 
 mancy of a dignity claimed, constitutes no bar, pp. cxx, 103, 
 104. — See Dignities, annnlment of. 
 Titles of dignity were not generally assumed till after inaugura- 
 tion on the patents, pp. vi, xxxv, 160 ; 321, ii. ^. 
 
 were frequently not assumed, in the case of minors, till 
 
 full majority, p. Lxxix, u. %. 
 
 -, inferior but older, were not unfrequently applied, in 
 
 Scotland, in lieu of higher but younger, pp. Ixxvii, xcii, xoiv, 
 
 xcv, 101, 102, 203. 515 sqq.— See France. 
 Torphichen, the Barony of, descended to collateral heirs under 
 
 the simple limitation to * heirs,' p. cxxxviii. 
 Trial and conviction are essential to make a penal Act, expressed 
 
 in general terms, apply to the individual, pp. xx, 9, 117 sqq., 
 
 226, 227; 314, n. *. 
 Truro, Lord, Lord Chancellor in 1851, concurs in the judgment 
 
 of Lord Brougham and Lord Campbell on the preliminary 
 
 question of the right of the Duke of Montrose to oppose in 
 
 this claim, p. 373* : — And see pp. Vli, vin. 
 TurnbuU, Sir Thomas, charter to, by James III., 1488, asserted 
 
 to have been annulled by the Act Rescissory, pp. 378, 508 : — 
 
 See also pp. xxxiii, 240, 277, 440, 441, 455, 540. 
 
 U. 
 
 UNION, Treaty of, between England and Scotland, 1707, 
 Articles in, xvin, xrx, of the, p. iix, — reserves to the subject 
 his right to pursue his claim to all civil rights without excep- 
 tion, and including dignities, by Declarator before the Court 
 of Session ; and to the Court of Session its entire authority 
 and privileges as established by the laws of Scotland, and ex- 
 isting at the time of the Treaty, — which respective right, 
 authority, and privileges— no statutory enactment having been 
 made by the Parliament of the United Kingdom neutralising 
 or abrogating them — are hence inherent in the Court of Ses- 
 sion and in the Subject at the present day, pp. lix sqq. 
 
 Union, Treaty of, discussions on the eflfectof the, upon the juris- 
 diction of the Court of Session and the intervention of the 
 House of Lords in peerages, pp. 214, 215, 220, 221, 300, 302, 
 365 sqq. and relative notes. 
 
 V. 
 
 VASSAL, — see Superior, 
 
 Vaux of Harrowden, Barony of, long dormancy of the, p. cxvii, u. f . 
 
 ' Verba sumenda sunt cum effectu,' the maxim, pp. xx, u. § ; 327, 
 
 n.t. 
 Veres, the De, Earls of Oxford, p. XIV, u. f. 
 
 W. 
 
 WALLACE, George, Esq., his testimony on the authority of the 
 Court of Session in Dignities cited, pp. Lxx ; 368, n. XX- 
 
 Wardroper, Andrew and Lawrence, charter to, by James IV., of 
 the lands of Kinclevin, 1512, pp. 540, 544: — And see pp. ciii, 
 cxiv, 208, 239. 
 
 Warrant, a, duly proceeding from the Sovereign, indispensable to 
 give validity to a grant of honour as proceeding from the 
 Crown, pp. Ixxxviii, u. f ; 551, 559. — See Dignities, crea- 
 tion of. 
 
 Warrants and Signatures, the, by the Sovereign, govern and 
 control the interpretation of the patents or charters executed 
 out of the Royal presence by the clerks of Chancery ; and if 
 the patents vary from the warrants, they fall (by the rule of 
 the House of Lords in peerages and otherwise) to be corrected 
 by the warrants, pp. XCI, lxx ; Ixxi, u. * ; lxxxiv, n. f ; civ, 
 173, 176; 325, n. § ; 352, n. * ; 353, n. || ; 356, n. § ; 551 and 
 notes * and f ; 553 and n. J ; 558, 559. — For the effect of the 
 recent Resolution upon this principle, see p. xx. 
 
 Waterford, Earldom of, created in 1446, claim to the, admitted 
 in 1832, on the motion of Lord Chancellor Brougham, involving 
 recognition and affirmation of the principles, 
 
 1. That dormancy is no bar to a peerage claim, p. xv, u. f . 
 
 2. That a dignity or title of honour cannot be taken away 
 (where there is no deficiency or corruption of blood) ex- 
 cept by express words in an Act of Parliament, pp. xxv ; 
 314, n. X- 
 
 3. That the decisions of the Irish House of Lords in peer- 
 age claims, previously to the Union, are binding upon the 
 House of Lords, as at present constituted, subsequently 
 to the Union (from which the present Claimant infers that 
 the decisions of the Scottish tribunal which was alone 
 competent in peerage claims previously to the Union of 
 Scotland and England, to wit, the Court of Session, are 
 a fortiori binding on the House of Lords as at present 
 constituted, subsequently to the Union with Scotland), 
 pp. Ixii; 340, n. {•>■) ; 363, n. J. 
 
 4. That Acts of Parliament are to be construed not merely 
 by the words of the Acts, but by the decisions on them, 
 which may be said to have been all but imported into the 
 words of the Acts, p. 372, n. ("). 
 
 Wentworth, the Barony of, created by summons, p. lxxxiv, n. §. 
 
 Westmoreland, the Earldom of, created in 1397, stands, notwith- 
 standing the Act Rescissory of 1399, pp. xvi, 13 ; 329, n. § ; 
 331, n. * ; 362, notes * and J. 
 
 Wharton, Barony of, Capitals and Italics employed in the ' Mi- 
 ' nutes of Evidence ' upon the claim to the, p. [vi]. 
 
 Willoughby de Broke, Barony of, created by summons, p. 
 LXXXIV, n. §. 
 
 Willoughby de Parham, Barony of, created by summons, p. 
 
 LXXV. 
 
 Winchester, Marquisate of, the registration of the patent of the, 
 
 received in evidence, pp. vi, 257. 
 Witnesses, mode of referring to, in the testing clauses of charters, 
 
 pp. V, vi, 377 sqq. 
 , individuals sometimes such, to their own charters, 
 
 pp. v, vi; 378 and n. *. 
 Worcester, the Earldom of, created in 1397, stands, unaffected 
 
 by the Act Rescissory of 1399, pp. xvi, 13 ; 329, u. § ; 331, 
 
 Ii. * ; 362, notes * and t- 
 Wortley, the Hon. and Right Hon. James Stuart, Q.C., Recorder 
 
 of London, &c., counsel for the Claimant, p. x, — observations, 
 
 examination of witnesses by, &c., pp. 65, 241, 242, 377 sqq., 
 
 &c. 
 
 Y. 
 
 YORKE, Charles, his ' Considerations on the Law of Forfei- 
 ' tore ' quoted, p. 367, u. (•). 
 
 Toung, the herald, his narrative of the inauguration of the three 
 Scottish Earls in 1503, p. 413 :— And see pp. xxxvii, 90, 163, 
 211, 254 ; 333 and n. * ; 342 and n. f ; 363, 364. 
 
 Z. 
 ZOUCHE, De la. Barony of, p. cxvii, u. J. 
 
 FINIS. 
 
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