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JOHN, TWENTIETH EARL OF MAR—DECREET OF RANKING OF THE
PEERS—JOHN, TWENTY-FIRST EARL.
EARL JOHN having obtained great and exceptional powers,
as indicated in the preceding section, in 1593 he commenced proceedings in
the Court of Session against William Forbes of Corse, the representative
of his great-grandfather, Patrick Forbes, a younger son of the second Lord
Forbes to whom the lands of Corse and Kincraigie were granted, by charter
of feu-farm to be held of the Crown, by James III., in 1482. Mar called
for this charter to be reduced and annulled, and the right to the lands
declared to belong to him. He qualified his claim as lawful heir to the
Countess Isabel in the lands of Strathdee and Braemar, in which the lands
in question lay. The court sat on the 28th of January, 1593, and Mr. John
Preston of Fentonbarns; Mr. Thomas Craig, the well-known feudal lawyer;
and Mr. John Nicholson appeared as counsel for the Earl of Mar; and Mr.
John Russel, and Sir John Skene of Currihill, a
distinguished lawyer, and afterwards a judge of the
Court of Session, appeared for Forbes. The matter was entered into, and
the court disallowed Forbes’s defences, and admitted the Earl’s reasons.
Mar, however, refrained from further prosecution of the case at that time.
But he revived the process in 1620. William Forbes of
Corse was then dead, and the suit was renewed against Patrick Forbes, his
son and heir, the highly esteemed and amiable Bishop of Aberdeen. The case
was ably presented and debated on both sides. The final judgment in Mar’s
favour was given on the 23rd of June, 162 1.
This decision was founded upon the ground that neither James Ill., nor his
predecessors and successors had any right of property in the Earldom of
Mar subsequently to the charter of Robert III., dated the 21st of January,
1405, which confirmed Isabel’s charter of the 9th of December, 1404.
The Earl of Mar next directed his attention to the
recovery of Kildrummy, originally the chief seat of the Earldom.
Proceedings against Lord Elphinstone and his son, the Master of
Elphinstone, whose ancestors (as I have shown before) had been in
possession of Kildrummy for 110 years, were commenced by summons issued in
1621. It was a great and
complicated case, and it caused much alarm in the north-east of Scotland
and in other quarters of the kingdom. All those directly interested in
opposition to the Earl of Mar’s claim, joined with the Elphinstones in
this case. The process continued for four years, and the Earl of Mar was
represented by Mr. Thomas Hope, Mr. Andrew Ayton, and Mr. Thomas Nicolson;
while Lord Elphinstone’s counsel was Mr. Lewis Stewart, a very able
lawyer; and Mr. James Oliphant, advocate-Depute, with His Majesty’s
special warrant for His Majesty’s interest in the matter.
The King’s interest was alleged on
five points, namely— any right that he might pretend to the lands of
Kildrummy as part of the Earldom of Mar and Lordship of Garioch; in his
character as apparent heir to Alexander Stewart, Earl of Mar, or his son
Thomas; as heir of blood to any of the Kings, his predecessors; as
pretending right as heir of provision to Alexander, Earl of Mar; and,
lastly, as having right thereto by bastary, last heir, or otherwise. The
counsel for the parties in the case were heard at length, and point after
point was ably argued and debated on both sides. The final decision was
delivered on the 1st of July, 1626, by which the lands and estates of
Kildrummy were declared to belong to John, Earl of Mar by heritable right
from Sir Robert Erskine, the legitimate heir of Isabel, Countess of Mar
and Garioch.
After this decision, Lord
Elphinstone and the Master of Elphinstone agreed to an arrangement whereby
John, Earl of Mar, undertook to pay to them 48,000 merks, on receipt of
which the Elphinstones should ratify the terms of reduction, and renounced
all right to the castle and lands of Kildrummy.
There were, however, many other
estates and rights of superiority which had been alienated from the
Earldom of Mar and Lordship of Garioch by preceding Kings of Scotland, and
also by crown vassals. The Earl, therefore, pushed on proceedings for the
recovery of these possessions and rights. As he had succeeded so far, he
resolved to widen the scope of his claims. He now procured five general
retours by which he was served nearest and lawful heir, on the 22nd of
July, 1628, to Donald, Grateny, Donald, and Thomas, Earls of Mar of the
old Celtic line. Having thus established his status on the widest basis,
he was fully prepared for legal action.
Accordingly, the process which
ensued embraced prosecutions against upwards of 150 proprietors in
possession of lands or superiorities within the Earldom of Mar and the
Lordship of the Garioch, and amongst these may be mentioned-the Earls of
Crawford, Kinghorn, and Earl Marischal; Lord Forbes, the Master of Forbes;
Lord Deskford, and Lord Wemyss; Irvine of Drum, Burnett of Leys, Leslie of
Balquhain; Scrymgeour of Dudhope, the heriditary constable of Dundee; many
Gordons, Forbeses, Leslies, Leiths, and many other persons of note, some
of whom were resident in France, Germany, Holland, Poland, Denmark,
Sweden, and Ireland. These persons were called upon to produce their
charters of possession either from the Erskines up to Robert, Lord Erskine
and Earl of Mar; or from Isabel, Countess of Mar: or Margaret, Countess of
Mar; or Thomas, Earl of Mar; or Donald, Earl of Mar; or Gratney, Earl of
Mar; or Donald, Earl of Mar. All these were to be reduced, so far as the
lands specified were parts and dependencies of the Earldom of Mar.
It is no wonder that there was a
great stirring up of rights and claims, much anxious searchings in the
massive iron chests, with their complicated locks and secret drawers which
were the repositories of the charters in the old Scottish castles and
towers. Some of those involved in the process had possessed their lands
for centuries, and many for several generations. A considerable number
succeeded in proving their right to the property in question, or to the
superiority and property both; but in the majority of cases the
superiority was found to belong to the Earl of Mar. In a few cases the
Earl withdrew his claim. The interest of these cases consisted in the
application of the laws of feudal tenure.
Earl John held the office of Lord
Treasurer of Scotland from 1615 to 1630. He died on the 17th of December,
1635, at the age of seventy-seven. Three months after his death, the final
decision in the above processes of reductions was given. He was succeeded
by his son John, twenty-first Earl of Mar, and eighth Lord Erskine. The
Earl married Christian Hay, a daughter of Francis, Earl of Erroll, and had
issue. The fortune and influence of the family had reached the zenith in
his time.
It was this Earl who commenced a
series of protests for higher precedence in the roll of Peers. This was a
point very highly valued by the nobles of Scotland, as is manifest in the
records of Parliament. At the opening of almost every session for upward
of a century a number of Earls and Lords protested regarding the
precedency of their names and titles on the rolls of Parliament. Bitter
contentions arose between many of the Scottish Peers touching their
precedency; and in 1587, Parliament issued an Order, intended to allay
these feelings, which had no effect. James VI. issued a Royal Commission
under the Privy Seal in 1605, for examining and settling the disputed
questions of precedency among the peers. Among the names of the
commissioners for "Ranking the Nobility" were the following:—John Graham,
Earl of Montrose, who held the office of Lord High Chancellor from the
15th of January, 1599 to 1604; Francis Hay, Earl of Erroll; George,
Earl Marischal; Alexander Seton, president of the Court of Session in
1593—created Lord Fyvie on the 4th of March, 1598, and Earl of Dunfermline
on the 4th of March, 1606, and appointed Lord High Chancellor in 1604;
Lord Elphinstone, Sir Thomas Hamilton of Monkland, a Lord of Session in
1592, and subsequently Lord President—created Earl of Haddington in 1619,
he was an able lawyer and a notable antiquary; Sir David Lindsay, the Lord
Lyon King of Arms; Sir John Skene, a Lord of Session, and Keeper of the
Public Records, and a few others.
These commissioners were empowered
to call before them the whole of the Peers of the kingdom, and in
accordance with the documents and evidence laid before them to determine
every man’s rank and place. Accordingly the commissioners summoned the
Peers by name to appear and adduce whatever evidence they could, in the
form of writs and documents and oral evidence, touching their claims of
precedency, "to be seen and considered by the commissioners, and to hear
and see their ranks and places of priority and precedency appointed and
set down to them according to the antiquity of their productions, and that
which should be verified in their presence." The ranking thus to be
settled was to stand in force in each instance "until a decreet before the
ordinary judge be recovered and obtained." Most of the Peers appeared
before the commissioners personally or by counsel, and after the evidence
was produced "at diverse meetings, and very carefully sighted, examined,
and considered by the Commissioners," they issued their decreet on the 5th
of March, 1606. But the ranking of the decreet was in no case final, being
open to reductions before the Court of Session by aggrieved parties.
Naturally the decreet was not satisfactory to all the nobility of
Scotland. As a matter of fact it was a somewhat hasty attempt to settle a
series of rather difficult historic questions associated with personal
titles, family interests, and hereditary rights. Nevertheless the Decreet
of Ranking and the Schedule of Evidence, upon which the precedency were
based, are important historical documents; and with the corrections made
upon it by the decisions of the Court of Session, and the additions made
to it by the creation of new peers between 1606 and 1707, it forms what
has been called the Union Roll of the Scottish Peerage.
According to the ranking of 1606,
the Earl of Angus was placed first. Argyle second, not on the ground
of the date of the Earldom, which was 1457, but because he held the
hereditary office of Master of the Household and Justiciary-General. The
Earl of Crawford was ranked third on the roll. The Earl of Erroll, the
hereditary Lord High Constable of Scotland, was placed fourth. His office
in Parliament as constable was to keep order and guard outside the walls
of the House. Earl Marischal was ranked fifth; his office as Marischal was
next in grade to the High Constable. The Earl of Sutherland stood sixth on
the roll; his ancestor having been created Earl in 1347. The Earl appeared
before the commissioners, and produced a charter of David II. to William,
Earl of Sutherland, and Margaret his wife, the "King’s sister." John, Earl
of Mar, adduced evidence before the commissioners commencing with the
charter of Isabel, Countess of Mar and Garioch, of 9th December, 1404, and
concluded with an extract of the retours of 1589; he was placed seventh on
the roll.
But his son John, Earl of Mar, was
not satisfied with his place on the roll. In 1639 he protested in
Parliament for higher precedency than that assigned to him by the Decree
of Ranking in 1606. His protest was to this effect— "That his sitting in
this Parliament do no ways prejudge him of that place and precedency in
Parliament and other public and private meetings due to him by his rights
and infeftments; but that it shall be lawful to him to claim the same by
virtue of his right according to law," that is, before the Court of
Session. The succeeding Earls repeated the protests for higher precedency
in 1661, 1681, 1689, 1696, 1698, 1702, 1704, and 1705.
The Earl of Mar adhered to the Royal
cause in the Civil Wars of the seventeenth century. In consequence of
this, the family suffered serious loss, as the debts contracted in the
cause of Charles I. and Charles II. necessitated the sale of many of their
estates. Earl John died in 1654 and was succeeded by his son John,
Twenty-second Earl of Mar and ninth Lord Erskine. |
