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Historic Earls and Earldoms of Scotland
Chapter 1 - Earldom and Earls of Mar
Section VIII


EFFECTS OF MAR’S RISING—ESTATES OF THE FORFEITED EARL— HIS DEATH—THE TITLE OF EARL OF MAR RESTORED TO HIS GRANDSON, JOHN FRANCIS.

Naturally the Episcopal Clergy in Scotland had always leaned to the side of the exiled line of Kings. When the temporary restoration came, they could scarcely resist the temptation, and some of them openly sided with the Pretender, and expressed their sentiments by praying for his success. The Government proceeded to prosecute them. Those who occupied chapels were summoned in groups before the magistrates and tried under the Toleration Act: their chapels were shut, and a number of them imprisoned until they complied with the provisions of the Act. Any of the old Episcopal ministers who still occupied parish churches were summoned before the Presbyteries, and if found guilty of praying for James VIII., or otherwise favouring him or his cause, they were deposed. In the Presbytery of Alford five ministers were deposed from parishes churches—Mr. Jaffery, minister of Alford; Mr. Livingstone, of Keig; Mr. Alexander, of Kildrummy; Mr. Robertson, of Strathdon; and Mr. Law, of Kearn. The four first named were incumbents at the Revolution of 1688, and had command in their charges. In the Synod of Aberdeen about 30 ministers were deposed.

In Aberdeen the Jacobite Town Council, during its short reign, made niney-four new burgesses. Amongst those were William Meston, Professor of Philosophy in Marischal College; Lord Drummond, a son of the Duke of Perth; and Gordon of Glenbucket. But, under an Act of the Privy Council, on the 10th of April, 1716, a new town council was elected, and, on the 12th the magistrates and council despatched a loyal address to His Most Gracious Majesty George I. The same day the new council rescinded all the new acts of the late Jacobite council. Thus, in Aberdeen, the rising of 1715 was renounced.

After the suppression of the rising, clear evidence came to light that many persons were forced to join it. On the 15th March, 1716, a justice of peace court was held at the Kirkton of Alford by Sir William Forbes of Craigievar, Arthur Forbes of Breda, and Archibald Forbes of Putachie, having met under a warrant from the Duke of Argyle, for disarming the country, David Lumsden of Cushnie appeared before the court and asked that witnesses should be examined to prove—that Henry Lumsden and Robert Reid, vassals of the Earl of Mar in the Lordship and Regality of Kildrummy; also Alexander Gordon, Jerom Dunbar, Robert Grant, James Rae, William Mare, William Davidson, Robert Henderson, Thomas Cook, William Gray, Francis Ferguson, John Finnie, and Thomas Forbes: all of whom were tenants of the said David Lumsden, who is also a vassal of the Earl of Mar within the Lordship and Regality of Kildrummy; that these men were all taken prisoners at the battle of Preston, in November, 1715; that they were forced to join the rising by the threats of those acting under Mar. The court deemed the request reasonable and called witnesses.

William Tough, a married man, over 70 years of age, was called and sworn. He deponed "that he knew all the persons named in the above list; and that they resided in the Lordship and Regality of Kildrummy; and that they were compelled to go out in the unhappy Rebellion much against their inclination. And that they did, to be free of the same, flee from their houses for several days; and that by my Lord Mar’s order, parties were sent, who did set fire to their houses and corn yards. And that after they had absconded for several days, they were taken prisoners and conveyed to Braemar, where my Lord Mar then was. That he lives in the neighbourhood and knows all to be true, being an eye-witness of the same. And this is the truth as he shall answer to God."

Other six men who were living in the neighbourhood appeared before the court; and on being sworn and interrogated as to what they knew of the above-named persons, and whether they were forced to join in the Rebellion, all the six witnesses gave clear evidence corroborating the testimony of the first witness—William Tough. There also appeared several other witnesses who lived in the neighbourhood of the above-named persons, "now prisoners, who were taken at Preston." The witnesses declared that these prisoners "were all pressed and forced into the Rebellion." The justices concluded that force had caused these unhappy prisoners to be in the Rebellion.

After the suppression of the rising, troops were sent into Braemar and other parts of the Highlands, and measures were adopted for securing the peace of’ the country. An Act was passed for disarming the Celtic inhabitants, embracing the countries to the north of the Forth and the Highland districts of the West This Act, however, failed to attain its object. As it merely imposed penalties, rising to transportation, against those found guilty of appearing in arms, and no means were provided for enforcing disarmament, the Act was inoperative. In 1725, another disarming Act was passed, which ordered each clan to be summoned to appear at a specified place, and there deliver up their arms. The execution of this Act was entrusted to General Wade, who imagined that he had performed the task effectively; and he also informed his Majesty the King that the Highlanders had now become simple peasants, with their staffs in their hands. He also stated that if the system of roads and fortresses proposed by him were made, any future rising in the Highlands would be impossible; but subsequent events proved that the general’s sanguine anticipations were utterly futile.

Although the Earl of Mar saved his life by sailing from Montrose to France with James VIII., all his estates and titles were forfeited to the Crown. After a time, however, the clemency of the Crown and the Government was extended to the members and friends of the family of Mar, not immediately descended from the attainted Earl. They were permitted to repurchase the forfeited estates at a price much below their market value, and to settle them under trust for the benefit of the lineal heirs of the house. The purchasers and trustees were Lord Grange, the forfeited Earl’s younger brother, and David Erskine of Dun—a Lord of the Court of Session; and on the 26th of July, 1725, this transaction was confirmed by a charter from the Crown, upon which infeftment followed. Lord Grange and Lord Dun having before, on the 23rd of March, 1723, executed "a back bond," specifying the conditions under which they agreed to hold the property—expressing in a deposition and entail "that the benefit of the purchase should be for the behoove of Thomas Lord Erskine, only son of the forfeited Earl." The two trustees, Lord Grange and Lord Dun, proceeded to sell the estates of the Earldom, and to pay the debts and incumbrances upon them; and having completed their work in 1739, they then executed a disposition and entail of the residue of the Earldom of Mar, on the following lines of succession :—" (1) Thomas, Lord Erskine, and his heirs male; whom failing to the heirs whatsoever descending of Thomas, Lord Erskine; (2) the preceding heirs having failed, on Lady Frances Erskine, Thomas’ sister, and her heirs male, whom failing, to the heirs whatsoever descending of her, whom all failing, then on James Erskine—Lord Grange." The lands of the Earldom in Aberdeenshire were all sold.

John, the forfeited Earl, lived for the most part in France, and attended the Court of James VIII., the Pretender, at St Germains, near Paris. It appears that he had incurred the suspicion and displeasure of James, and finally had to leave the Court. He died at Aix-la-Chapelle in May, 1732.

He left an only son, Thomas, Lord Erskine, mentioned above, and a daughter, Lady Frances Erskine. Lord Erskine died in 1766, leaving no issue. Lady Frances then became heir of the Earls of Mar. She married her cousin, James Erskine, a son of Lord Erskine—the forfeited Earl’s younger brother. Lady Erskine died in 1776, and left a son by her husband, John Francis Erskine: and to him, when an old man, in 1824, the title of Earl of Mar was restored by an Act of Parliament. He was a grandson of the forfeited Earl, and twenty-seventh Earl of Mar. He died in 1825, and was succeeded by his son, John Thomas, twenty-eighth Earl of Mar. He died in 1828, and was succeeded by his son, John Thomas Miller, twenty-ninth Earl of Mar. He also claimed the title of Earl of Kellie, which was adjudged to him in 1835. Thenceforth he bore the title of the Earl of Mar and Kellie. The Earl died in 1866, leaving no issue, and was succeeded by his nephew, a son of his sister, John Francis Erskine Goodeve, thirtieth Earl of Mar. He succeeded as heir-general to his uncle, according to the law of Scotland, which had prevailed at least for five or six centuries. He did not obtain any of the lands of the Earldom of Mar; the remaining lands of the Earldom are in the possession of Lord Kellie. He voted repeatedly as Earl of Mar at Holyrood; while the Earl of Kellie, his cousin, always addressed him as Earl of Mar. But, in 1866, the Earl of Kellie commenced to lodge cases in the House of Lords, claiming to be the Earl of Mar. It was long, however, ere he was ready to proceed with these cases. The Earl of Mar at once presented a petition as Earl of Mar, asserted his right to the title, and protested against the claim of the Earl of Kellie. In January, 1872, the Earl of Kellie died; but his son and successor continued to prosecute a claim to the title of Earl of Mar. At last, in 1874, the Earl of Kellie’s claim was referred to the Committee of Privileges, that is a committee of a certain number of the Peers, who usually consider and give an opinion on petitions and claims relating to peerages, which is subsequently reported to the House of Lords. The opinion of the committee in this case, was recorded on the 25th of February, 1875, and was as follows:-

"Resolved, that it is the opinion of this Committee that the claimant, Walter Henry, Earl of Kellie, Viscount Fenton, Lord Erskine, and Lord Dirleton, in the Peerage of Scotland, has made out his claim, &c., to the honour and dignity of Earl of Mar in the Peerage of Scotland, created in 1565 that report thereof be made to the House." This opinion was reported to the House, and on the 26th of the same month, it was sent to the Lord Clerk Register in Edinburgh. After this, the Earl of Mar attended at an election of Representative Peers at Holyrood, and offered his vote as a Scottish Peer; but the Lord Clerk Register refused it. This caused a stir among a number of Scottish Peers, which was not surprising in the circumstances created by the opinion of the Committee of Privileges, and the rather hasty decision of the House of Lords on one of the oldest Earldoms in the island.

An interesting series of debates touching the subject of the Earldom of Mar and who should have the right to the title of Earl of Mar, came off in the House of Lords. One on the 9th of July, 1879, on the motion of the Duke of Buccleuch to the effect—"That this House should order that at all future meetings of the Peers of Scotland, under a Royal Proclamation, for the election of Peers to represent the Peers of Scotland in Parliament, the Lord Clerk Register, officiating, do call the title of Mar in the Roll of Peers of Scotland, in the order of precedence to which it has been declared by the resolution of this House on the 26th of February, 1875, to be entitled, according to the date of the creation of that Earldom."

The Duke spoke briefly in support of his motion. His main point being that according to the judgment of the House of Lords, the Earl of Kellie had proved his claim to "Earldom of Mar, created by Queen Mary in 1565," therefore his precedence should be in accord with the date of the creation of the Earldom. The Marquis of Huntly addressed the House at some length and to the points in question; and moved the previous question to the Duke’s resolution. After speeches by the Earls of Redesdale, Mansfield, and Selborne, and the Lord Chancellor, the Duke withdrew his resolution.

On the 11th of July, 1879, the Marquis of Huntly raised a debate on several questions touching the Earldom of Mar. One of his questions was this: "Can the Lord Clerk Register call that new Earldom of Mar which was created in 1565 in any place upon the roll at all, when the resolution of the Committee of your Lordships’ House says that the order of precedence must never be altered?" Several Peers delivered speeches, but nothing definite was done.

Another long debate took place on the 14th of June, 1880, on resolutions moved by the Earl of Galloway. He delivered an able and well-reasoned speech, and concluded by moving the following resolutions:—"That, whereas the Select Committee appointed to consider the matter of the petition of the Earl of Mar and Kellie, presented on the 5th of June, 1877, (the prayer in which petition was that the title of Earl of Mar should be brought down to the date 1565 from its existing place on the Union Roll) and the precedents applicable thereto, reported to the House on the 27th of July, 1877, that they had not been able to discover any precedent of orders made by the House for altering the order of precedence of the Peers of Scotland on the Union Roll; and that they were not disposed to recommend that any order should be made on the petition of the Earl of Mar and Kellie. In order to give due effect to the recommendation contained in this report, it is incumbent upon this House to rescind the order of the 26th February 1875," &c. The House by a majority of eight adopted the resolution that the order of the 26th of February, 1875, should be rescinded. But the House did not rescind this order. Accordingly, on the 21st of the same month, the Marquis of Huntly put a question to the Lord Chancellor whether any intimation of this resolution had been made to the Lord Clerk Register. The Lord Chancellor replied thus:-

"I believe no intimation has been made, and that none properly can be made, to the Lord Clerk Register with regard to this resolution. Before the House can rescind that Order, there must be a motion and a vote to do so. There has been no such vote passed; and if any noble lord should propose one, I must assume that he would come prepared to recommend to the House the adoption of what he may consider a more proper form of Order to be substituted for that which has been made. The Order that was made was consequential on a judicial act of the House, founded on a report of the Committee of Privileges; and if that be rescinded, beyond all question some other must be made. I hope that any one who moves such an Order will consider whether it shall be in a form which will not put on the Union Roll of Scotland two Earldoms of Mar, or in the form which, leaving only one Earldom of Mar, will change its precedence, and whether there are not objections of the gravest character to either of these courses."

Thus the finding of the Committee of Privileges of 1875 raised grave doubts whether the ancient dignity of Earl of Mar had not been surrendered to the Crown. To remove these doubts an Act of Parliament was passed in 1885, in which the old title of Earl of Mar was confirmed to John Francis Erskine Goodeve, dating from 1404; while, according to these decisions, Walter John Francis Erskine bears the title of Earl of Mar created in 1565. Thus, at present, there are two men with the title of Earl of Mar.


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