Page:The Complete Peerage Ed 1 Vol 5.djvu/241

MAR. 239 " comitnUl causa," at Oxford, 10 .Time 1802 ; En Holy Orders and sometime Curate nf Teastone Wafer, co. Hereford ; sue. to the peerage [S.] (tho' not to the family estates) on the deatli of his maternal uncle, 19 June 1800, when he assumed the name of h'rskine, after that of Gooderc ; but inasmuch as, owing (in a great measure) to the strange judgment of the House of Lords, 25 Feb. 1875 (whereby an Earldom of Mar [S.J, hitherto unheard of, was supposed to have been er. in 1505, with a rem. to heirs male of the body), "doubts" might "exist whether the ancient honour, dignity and title of peerage of Karl of Mar, which descended to Isabella, Countess of Mar. nag, or v:us notj*) previously to 1S65 by any lawful means surrendered or merged in the Crown," tho' (as it was also recited) " until the decision " of 1875, the same " was commonly reputed to be still subsisting, and to have been enjoyed and possessed by John, Lord Krskine, his heirs and successors "(b) an act was passed, 6 Aug. 1885 (which practicallyC 1 ) overruled the finding of 1875), wdiereby, in case of the former contingency, "the said J. F. E. GoODEvk-EbskinE and all other persons, who would be entitled after him to succeed to the honours, dignities ami titles of peerage anciently belonging to or enjoyed and held with the territorial Earldom of Mar, which descended to Isabella, Countess of Star, as afsd., in case the honours, dignities and titles had never been by an lawful means forfeited or surrendered, or in case (being so forfeited or surrendered) they had been expressly and effectually restored to the said John, Lord Erskine, and his lawful heirs general, by the hereinbefore recited charter [1505], of Mary, Queen of Scots, SHALL HE AND THEY ARE HEHKRY RESTORED TO THE SAID ANCIENT HONOURS, DIGNITIES and titles or PEERAGE, as fully and effectually to all intents and purposed as if the same had without any impediment descended to the said John, Lord Krskine, or had been duly and effectualy restored to the said John and his lawful heirs general by the said charter or by other means effectual in law."() The said Earldom was, accord- ingly, ordered to he called at the election of Scotch Rep. Heers [in its old place] next after that of Sutherland. C 1 ) He in. 12 Sep. 1800, at St. Maughans. Llan- gattock-Yibon-Avel, co. Monmouth, Alice Mary Sinclair, 1st da. of John Hamilton, of Hilston Park, co. Monmouth, by Anne, da. of Pryce Jones, of Cyfrouydd, co. Montgomery. (") The Royal warrant, 15 Oct. 18S5, granting to the sisters of the Earl of Mar, the precedence that would have been due to them if their mother had lived to succeed her brother (who died in 1S0G) as [tuojart] Countess of Mar, indicates that the then advisers at the Crown did not consider the mediicval Earldom (the only one w hich could thus have passed to a female heir of line) to have been surrendered or forfeited. ( h ) Earldom of Mar restitution Act, 18S5. ( c ) "The relation of the Act [of 1885] and the judgment of 1875, to each other suggests some curious considerations. While the preamble of the act assumes that the judgment of 1S75. must be upheld, as giving Lord Kellie an Earldom [of Mar] of 1566, it also unequivocally affirms that the rationo decidendi of the Lords, who pro- nounced it, were wrong. It a(h'rm». in opposition to Lord Reuesdale, that t/ic old i'arldom hud liccn inherited by Countess Isabel, ami had therefore not been extinguished in l:i77 ; and it affirms, in opposition to Lord Chelmsford, that the regulating charttr was (not that of 12 Aug. 1101, which diverted the succession to Alexander Stewart's heirs), but that of{> Dee t.'iO.',, which brought in Isabel's heirs. * * * The continued existence of the old dignity is left an open question. On the alternative of the doubts being well founded [i.e., doubts as to whether it had not been at some date forfeited or surrendered] the effect of the act is to restore the representative of the Earl- dom of Mar to the lights of which the proceedings of 1.875, had (tee'-nically) deprived him. If again the doubts are not well founded, — and this is the view of most Scotch lawyers and probably that of the noble Earl, who benefits by the Act — what the Act has done is to place the right of that Earl, which was previously good in law, wholly beyond challenge." [" P as in note " b," p. 21S.] See also note " a " next above. ('•) As to •' the Earldom of Mar " evolved by the decision of 1875 [which declares it to be " now vested in Walter Henry, Karl of Mar and Kellie "J. this act decrees that it shall lie called in the place of "an Earldom created in 1505." Thus the Earldom of Mar on the Union Roll [S.] is the mediaeval dignity and the one w hich is enjoyed by the heir general, while the Earldom brought into existence in 1S75 as a creation of 1505 and then assigned to the Karl of Kellie is as Lord Crawford observes ["A," as in note " b," p. 218], "a phantom which has no backbone of its own and exists only through the force of illegal strain."