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


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, 1621. 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.

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