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The Blackhalls of that Ilk and Barra
Chapter IX. — The Mar Action

IF the royal treasury was empty, it is not probable that the Mar money-chest was over-full. While his erudite and considerate Sovereign, therefore, was engaged in confiscating Blackhall and Barra in the Garioch, a proceeding which, after the Act passed in his favour by the Scottish Parliament in 1587, the Earl of Mar must have known to be poaching on his own preserves, the Earl himself had begun to be busy some 16 to 20 miles further to the south-west, iii the endeavour to accomplish a dream, which, if realised, promised to be not unprofitable. The honour restored to his family, barren but for such substance as still adhered to the title, and with which the Earl of Moray would have had to content himself, and with which the Regent Mar, his father, apparently had been contented, did not satisfy the Lord Treasurer of Scotland. In 1593, an action for reduction was commenced by him against William Forbes of Corse, whose initials, cut in granite, together with those of an earlier Elizabeth Strachan of Thornton, his wife, still stand out clearly over the entrance to Corse Castle, with the intervening date 1581.

One of the pleasures of a genealogical history such as this, is the occasional observation of interesting coincidences, and it is worthy of note that the lady of Corse and the lady of Blackhall, in whose time the actions for reduction which we are considering took place, were both members of the Thornton family, and both bore the same Christian name. Elizabeth Forbes was the paternal aunt of Elizabeth Blackhall. This by the way.

The Corse action was in some respects a test action, and led to the chief action for reduction taken by the Earl of Mar, namely, that against the Elphinstones of Kildrummie. The Corse action was dropped for a time, and resumed when Patrick, Bishop of Aberdeen, was laird of Corse, and was ultimately decided in the Earl’s favour, but apparently, as in most other cases, without any other result than the acknowledgment of a shadowy superiority dating from the dawn of time, but causing much annoyance and expense to reach that very small result. In order to spread his net as widely as possible, and to have the meshes as close as possible, his lordship appears to have had himself retoured heir to one Noachian ancestor after another, that no fish, however small, might escape, for little fish are sweet. (Earldom of Mar, by the Earl of Crawford.)

The attack in all these actions appears to have been based upon the charter of Isabel, Countess of Mar, and her husband, Alexander Stewart, dated December 9th, 1404, and its confirmation by Robert III., on 21st January, 1404-5 (Earl of Crawford, op. cit., Vol. I., p. 395), by which, in the case of failure of legitimate progeny to this couple, reversion was to the heirs of Countess Isabel. The defence, on the other hand, was based on what Lord Crawford calls the “ extorted, renounced and unconfirmed charter, by which the Earldom was settled on Isabel and Alexander Stewart and their issue, and failing such issue, on Alexander’s heirs, excluding those of Isabel” (Op. cit. Vol. I., p. 399). Neither side seem to have touched upon a point which appears to be quite as important as either of these, and which has been mentioned elsewhere (p. 3), namely, that the legality of Earl Alexander’s actions, judged even by Robert III.’s charter, was quite as great after his wife’s death in 1419 as before it, and that the sanction of new conditions by James I., in 1426, was quite as legal as that conferred by Robert III.’s action in 1404. To ignore these points appears to be to base argument on notions of intrinsic justice, of which feudal law, as incorporated in charters, took little cognisance. The truth of course is, that the Crown, in the persons of Queen Mary and James VI., renounced the rights legally resumed (as law then went) by their predecessors, and practically gave a new charter to the Erskines, neither more nor less legal than it had given to many of the Crown vassals, after the resumption by the Crown of the patronage in Mar and the Garioch. Regin voluntas suprema lex, was still law (except for the occasional intrusion of a boisterous baronage), although the shadow of a coming change was denoted by a little more forensic loquacity on the part of the lawyers, than the author nf the King’s Quhair would probably have found time to listen to. The restoration of the Erskines, and the free hand given them, may be fairly ascribed to their relationship to the Regent Moray in the first instance and to the friendship of James VI. for his old companion “Jock o’ Sclatis” in the next. It is unnecessary to add that in the majority of cases the evidence urged in opposition to the Earl’s claims and the documents produced with this object, were “reduced, retreated, rescinded, and annulled and discerned to be null and void from the beginning and henceforth.” As I have stated, however, the general outcome of his many actions must have proved much less remunerative than the prosecutor had hoped. In documents drawn up subsequently to the proceedings it appears in some instances to have been forgotten, at least for a time, that any such actions had been considered, or any such judgments given.

It is not surprising, under the circumstances, either that a good deal of feeling was excited in the minds of those whose interests were thus assailed, or that sympathy was shown, rather with the defendants than with the prosecutor in these actions. This must surely have been so in the case of the Blackhalls, who were in the first instance dispoiled, as we have seen, as vassals of the Crown who had been guilty of some antediluvian feudal irregularity (although the evidence of this is certainly not now forthcoming), and then found themselves, when impoverished and very partially recovered from their previous misfortune, between the upper millstone of the King’s asserted rights and the nether millstone of the Mar pretentions. It may be incidentally mentioned, moreover, that the charter of confirmation given to the Blackhalls of that Ilk in 1620, was, in the legal phraseology of the document, with the “advice and consent” (cum avisamcnto et consensu) of “the well-beloved cousin and councillor of the King, John, Earl of Mar.”

The attack upon the Blackhalls nevertheless appears to have been opened on the 14th of February, 1634. Among those included in the charge with old Alexander Blackhall of that Ilk, his grandson, John Blackhall, still a minor, and the mother of the latter Elizabeth (called Marjorie) Strachan, and designed a life renter, were a Robert Blackhall, son of the late William Blackhall, burgess of Aberdeen, John Garmuke in Daviot, Sir Alexander Strachan of Thornton, George Moresone, burgess of Aberdeen, and William Forsythe of Dyikis. All these, with the exception of the Blackhall family proper, were probably interested as bondholders. The mention of the name of George Morison in this connection has a certain interest, inasmuch as either then, or soon afterwards, he became possessed of Barra, which was granted, as we have learned, to the Setons on the forfeiture of the Blackhalls and Kings, and at this trial William Seton of Meldrum produced, among other writs, certain charters setting forth the manner in which the Setons gained possession of Barra. This fact seems to argue the solidarity of the interests of Blackhall and Barra. The counsel for the pursuer were led by Sir Thomas Hope of Craighall, the Lord Advocate, one of whose daughters married a son of the Earl of Mai'. The Blackhalls were represented by Robert Burnet, Advocate, a son of Alexander Burnet of Leys, and a man who had the courage of his opinions, as he proved shortly afterwards by sacrificing his career to his convictions. He refused to propitiate the Covenanting party, and retired into an exile from which he returned to take his seat on the bench as Lord Crimond, but only to die shortly afterwards. He was the father of the famous Bishop of Salisbury, the author of the well-known history of his own times (.Family of Burnett, New Spalding Club, p. 130, et st-q.J.

A long series of documents were produced by the defendants, some of which have already been quoted, and which went to prove that the Blackhalls certainly held their lands and offices in the first instance from the Earls of Mar, even before the period when Sir Robert Erskine became a claimant for the Earidom, and therefore a representative of that Earldom could not righteously dispossess them without assigning some other reason than his own desire for possession. But the judicial utterance which seems to have become a formula was the same in this as in most other cases: “The Lords of Couno" reduces, retreites, rescindis, cassis and annullis the foirsaidis haill writts and evidentis particularlie above mentioned, produced for the part of the said defenders, and decerns the same to be null and void from the beginning and hcnceforth, and finds that the saids lands are proper parts of the Earldom of Mar, remained in the person of the said urnquhile Dame Issobeli Dowglas, and consequently that the undoubted heritable right thereof pertained to the said urnquhile John, late Earl of Mar, who was heir served and retourrd to the .said urnquhile Dame Issobeli Dowglas, Countess of Mar, and consequently now pertain to the said John, now Earl of Mar (styled in the said summonds John, Lord Erskine) as having right thereto from his said urnquhile father.” And it is quite unnecessary to point out that no such conclusion flowed from even these premises ; for it was proved that the defendants were given these lands in the first instance by the Mar family. If therefore the lands were not held of the King, they must have been held of the Earls of Mar. But if the Earls of Mar had given them in that case to the Blackhalls, they could not belong to John, Earl of Mar, as the representative of his ancestors, the original donors. This, however, is not law, but merely logic.

It is a little interesting that Sir Alexander Strachan should be included in this charge, and that Thornton should be specifically claimed by the Earl of Mar. There was certainly a Thornton in Bourtie, belonged to a cadet of the Strachans, but there is no evidence that it ever belonged to Sir Alexander Strachan of Thornton, whose estate, as I have said, lay in the Mearns and outside the old Mar Earldom. Curiously enough, Dr. Davidson also (Inverurie, p. 103) appears to confuse these places. The document recording this trial declares further that the Earl of Mar “ passed from certain of the defenders therein named and insisted only against, inter alios, John Blackhall of that Ilk (and) Marjorie Strachan, his mother, for reduction of their richts ami infeftments of the lands after specified, viz., the lands of Thorneton, Blackhall, Office of Forrestrie of Garioch, and crownarschippe thereof,” etc. It is curious that the lands of Thornton should be claimed in this connection. We know that Elizabeth Strachan had a charter of Petgarvy, which formed a portion of the Thornton estate, and it may be that this interest of hers was claimed as a forfeit for her defence of this action. In any case the effect of this action seems at this time to have been to secure the right of the Earl of Mar, rather than his actual possession, and the reason assigned is the minority of John Blackhall and the life interest of his mother. We shall see, when we come to consider the career of the latter, that in the retour in 1643, the very existence of this litigation is not referred to, and a legal comedy in tragedy on parchment asserts itself, for all the properties and offices therein mentioned are specifically stated to be held immediately of the Crown ! The appearance of the money-lending burgess on the scene was, however, of ominous significance for the Coroners and Foresters of the Garioch.

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