« PreviousContinue »
moothill or seat of judgment. Donald, sixth Earl of Lennox, in granting a charter to Maurice of the lands of Buchanan, allowed him the privilege of holding courts of life and limb within his territory, only on the condition, however, that everyone sentenced to death should be executed on the Earl's own gallows at Catter. In the return of owners of lands and heritages (Scotland) the area of such of the Montrose estates as are referred to above is set down :-Buchanan House, Drymen, 2,588 acres; Stirlingshire, 68,878 acres. It has been found that figures in this return are liable to correction.
In immediate connection with the descent of Montrose honours, it may be judged appropriate to mention a few details regarding a famous contest for the honour of a title borne by some of the most illustrious statesmen and soldiers who have figured in the stormy scenes of Scottish history. Rather less than thirty years since, and after a contest in which various members of the “lichtsome Lindsay" family were concerned, the House of Lords confirmed the Earldom of Crawford to James Lindsay, Earl of Balcarres, afterwards known as the Earl of Crawford and Balcarres. Following up this success, and liaving at the same time a certain relation to well-known incidents in the history of the Crawford family, the Earl, in February 1850, presented a petition to Her Majesty claiming the Dukedom of Montrose conferred upon his predecessor David, fifth Earl of Crawford, by James III. in 1488. This petition was as usual referred to the House of Lords, and a “Case" containing the evidence with arguments founded upon it in support of the claim came in due course to be laid on the table. The Earl, known throughout the subsequent proceedings generally as the Claimant (the Duke being the Petitioner in opposition) affirmed in the first instance-(1) That the patent of the Dukedom of Montrose, 18th May, 1488, still subsisted, and was valid and effectual in law; (2) That the limitation to “ heirs"-a term, he held, of confessed flexibility in Scottish law and practice, denoted and signified “heirs-male;" and (3) That he, the Claimant, was heirmale of the first grantee. The reader will observe that the title only was claimed. James, late Duke of Montrose, thereupon presented a counter petition, praying that he might be heard before the Committee of Privileges, through counsel or agents, that he might have liberty to submit a Case on his own behalf; and in order to permit himself and all other peers interested to make the necessary investigations, that all proceedings in the claim be stayed till the following session of Parliament. The claim, it was urged, if successful, though it did not challenge the honours and dignities enjoyed by the noble petitioner, would manifestly be a matter of inconvenience and injustice to him in different ways, and would at the same time alter the whole rights of precedency of that order of the peerage in Scotland to which the petitioner belonged. During the recess the claimant discovered what he called new evidence, proving the Dukedom of Montrose, which he claimed, to be entirely different in style, designation, and derivation from that held by the noble petitioner, and precluding him, it was urged, from being admitted as a party in the case. On this crucial point the claimant contended (1) That the Dukedom of Montrose conferred in 1488 was derived exclusively from the royal burgh of Montrose, created and incorporated by the patent into a Dukedom with free regality in favour of David, Earl of Crawford, and his heirs, who thereupon added to their escutcheon a single red rose, the arms of the burgh, to denote derivation of the honours. But he contended (2), That the Graham Earldom, Marquisate, and Dukedom were derived, not from the royal burgh of Montrose, but from the private estate of the family called “Auld" or Old Montrose, some miles from the burgh, with which it had no connection whatever, and was held by quite a different tenure. James IV., it was yet urged, by charter 3rd March, 1514, created and incorporated the “terras de Ald Montross," solely "in liberam baroniam et comitatum perpetuis futuris temporibus baroniam et comitatum de Montross nuncupandum.” This, urged the claimant, was the original written constitution of the title of Earl of Montrose, in the family of Graham, and it was exclusively founded upon at the ranking of the nobility in 1606, by John, Earl of Montrose, direct male descendant and representative of the grantee, in order to prove the antiquity of his earldom. Moreover, William, the original grantee, is expressly styled in two public deeds executed by the burgh of Montrose as “William, Earll of Ald Montross;" and lastly (3), That the grants and patents of the Marquisate and Dukedom of Montrose in the Grahams are mere repetitions or elevations of the original or comital fief (as it stood) into the higher titles or designations of Marquis and Duke of Montrose. The charter or patent the claimant held, obtained by Earl David from James III. in May, 1488, elevated the Earldom of Crawford into the hereditary Dukedom of Montrose, and conveyed other subjects to be held “in libera regalitate" under a general limitation to himself “et heredibus suis.” The King was then in arms against a rebellion of the barons headed by his eldest son, afterwards James IV., and the advance in honour was understood to be in acknowledgment of a force of eight thousand horse and foot brought by the Duke and his family in support of the Royal standard. No charter of the Dukedom was extant, but there was an entry in the Register of the Great Seal of a charter of the date referred to. In June following, the King was slain at Sauchieburn, or “The Field of Stirling," as it was sometimes called, and on the coronation of his successor a proclamation was issued annulling all recent grants made by the late King to his adherents. In October of the same year (1488) Parliament passed an Act known as the Act Rescissory, annulling all alienations of lands and creations of new dignities granted since the preceding February by the late King, which might be prejudicial to the young King, because, in the judgment of Parliament, such alienations, gifts, and privileges were granted in aid of perverse counsels, and contrary to the good of the realm as causing the slaughter of the King's father. The Earl of Crawford was removed from certain high offices, yet allowed to retain his estates, and ultimately, as the petitioner admitted, was so far restored to royal favour as to obtain a renewed grant of the honour of the Dukedom of Montrose—for life only—“pro toto tempore vitæ suæ”—with the burgh of Montrose, its rents and customs, and the lordship and castle of Kinclevin. The original charter was not extant, but the Act of Parliament and Register of the Great Seal were held to prove its terms with sufficient accuracy. The late Duke of Montrose, therefore, as petitioner against the claim, undertook in his first case to establish two fundamental propositions: That the charter of 1488 did not subsist, or was not valid in law; and that even if it could be held as subsisting, the claimant was not the heir under the limitations of the patent. In seeking to establish the first point, the petitioner contended-(1), That there was reason for doubting whether the charter of May, 1488, was ever completed; (2), that if ever effectual it was annulled by the Act Rescissory; (3), that David, Earl of Crawford, was not recognised as Duke of Montrose until after a new grant in Parliament and relative patent of Dukedom; (4), that the Act Rescissory was not inoperative, as the claimant held, and in particular that it cut down the charter of the Dukedom of Montrose of 1488; (5), that the same Act was effectual in annulling the Earldom of Glencairn, an honour granted in similar circumstances; (6), that the Act was effectual against other grants; (7), that a statute alleged to have revoked the Act was not intended to affect it; (8), that the new patent for life was the only valid creation; and (9), that the other proofs of the Dukedom being a grant for life only are corroborated by the fact that the Duke's son and subsequent heirs never assumed the title nor asserted any claim to it, or the possessions which accompanied the honour. The Duke's son, John, it was said, was a prosperous person, and married to a daughter of Home, the Chamberlain, among the most influential Scotsmen of his age. He was employed in many offices of trust, and on good terms with James IV., whose side he had taken in the struggle against his father. To this the claimant answered that Earl John was all his life in a situation encouraging the Government to tyrannise over and oppress him. Independently of prodigality and recklessness, he had murdered his elder brother, Alexander, Master of Crawford, whereby the succession opened up to him, and the legal consequences of the crime hung suspended over his head till his death on the Field of Flodden. David Edzell, ninth Earl of Crawford, restored the honour and estates to the son of the “Wicked Master;" but from his time the family retrograded till their fortunes were shipwrecked in the person of David, the twelfth or “ Prodigal Earl," confined in Edinburgh Castle so long as to obtain for him the title of the “Comes Incarceratus." Succeeding Earls again were soldiers of fortune in Spain, Flanders, and Germany. The question of "heirs” heredibus suis, gave rise to a lengthy and intricate argument on the law of Scotland touching the descent of dignities, but which it would be difficult to make interesting to ordinary readers. The claimant contended that the words carried the honours to him-a collateral heir-male, descended from the uncle of the patentee; while the petitioner held on the other hand that for anything submitted heirs of the body of the patentee might still exist, and in particular that the practice of describing "heirs" only as “heirs-male," and not as “heirs general," by which the succession opened up to females, was confined almost exclusively to the family of Crawford, So far as concerned the confusion likely to arise from the use of similar titles, though even this was not without precedent, the claimant expressed his intention, in the event of the claim being admitted, to continue the title of “Crawford," borne by his predecessors for 700 years, and thereby avoiding even the appearance of infringing “ upon a title consecrated by history to the gallant race represented by the noble petitioner.” This was put aside by the latter, who also insisted upon the connection of his family not only with the lands of Old Montrose, but with the Burgh of Montrose. The case came before the Committee of Privileges, 14th April, 1851, on which day the Duke of Montrose was permitted to appear in opposition. Mr. Rolt, Mr. Hope Scott, and Mr. Cosmo Innes appeared for His Grace as petitioner; Sir Fitzroy Kelly, Mr. Bethell, and Mr. Wortley, with Mr. Riddell, appeared for the Earl of Crawford and Balcarres as claimant. The Attorney-General and Solicitor-General watched the case for the Crown. Arguments on the merits were heard between 18th and 23rd July, 1853. Documentary evidence-consisting of charters, precepts, sasines, and accountswas also submitted during the month, the documents being for the most part spoken to by Mr. G. Melville, writer, Edinburgh, and Mr. W. Fraser, Register House. Sir Fitzroy Kelly was heard two days at the close in reply for the claimant. On 5th August, with Lord Redesdale, as usual, in the chair, the committee came to the resolution, “ that the charter bearing date 18th May, 1488, by which James III. of Scotland granted the Dukedom of Montrose to David, Earl of Crawford, et heredibus suis, was annulled and made void by the Act of