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Th v !i I \\\ li ■ ^ '1 ' 'i'" I l:i Tablr, No. I. PEDIURKE — shewiny the Dencenl of the KxKi.unMH l('r Alpiaiiler, (it Ml nslric, nil. \M. fSre i I. Sii Willi.iii, Mo\iUiilrr, " ul Mrii>liii'. knii;lil, MuliT 1)1 l{i'i|iii sN III Kiiu ,hiiiir> \ i. , liuni l.'>X0 ; kmulili'il nil I. -V2tll ,llll\. llii'i. Ilrrnhtiiril l.irulmtlllt. kv., iif Nm;i Si'iiljii ; iilMi/'Mmiir //«iiin»/, . villi IMiriilriin In. Ill '.Msl Miiy, Idi'). 4111 Srpl. I(>:li>. I.iinl Ml J mull r. lit TlllliliiHllk. :illil I iMiiunl iif Stirlinir. I4tli .liiiii', Ul:l.'), Imi-.i/h/ nf Vanatia, anil h'lill -ij Sttiiimr. .Kllh ,)iil\. I():)7, h'lii/ r/ Dnvmi, "III liii'. Ki;)!*, ClKirlrr III Nkinr. h lli>lii>|> III lilas;;iiM, riiiiKiii-;:i'rniaii ii .lutin.titii Karl nl \ Ki-gfi.' jtScollan rne^Ttii I. VVilliam, = Mnrgarot, Viiriiunt Cnnaitn. 4i<-il at hunilon Ifilft pair. ) in Vlarch, IMH, au>l wan biirii-il at Stirling. i^ l)aiii;litcr ul William, Marijiiis nf l)iiU|;laM. (tii'il I SI Jan. ItiOO. "2. Sir Antlinny, Miisi.M of iht- Kind's \\ orkit in Si.ll mil, niarricilaila ''{liter nf S r ll.iiry Waiillaw, nf l>it- rt UH-, Hart.— liiiil al l.niiilnn, A iH'Kt, 1«;J7, anil «a» liiirii'd «i Stirling.— Left no issue. U. Henry, = Mary, .Iril Karl nfMiriin);, suiieeilnl Ills iiepheu, William, -Jiiii Karl oil. ante Itith.'tUKn.sl, Wit I ilaii;;liter ami lo-lieir of Sir I'elcr Vanlnrc. of Tyleliur.st, eo. of llerks, liart. ■». .lolin, = .Sellleil ill till' N'ljitli 111 Irelaiiil, nh. MUili. William, Znil KarlufStirlinK. dirii about .May. lU'tli. ag«U ei^ht years. 1. <'atharine,~ Vi illei. l-'ird Turpichi n. 2. Jane. 3. Margaret, =SirUoberl Sinrlair, ufLon^forniaeiu r " .. Henry, - ' Jitilitli, Jane, Karl nf .Stirliii)!. ilailKliter nf oil. aiiti ob. loyt). llolierl l,ee, of Hinlielil, 1739. cuuiity of ill -rks. Agnes . and vtSH bnrieil ul ilinlielil. 2. X^il'liam. 1. i -T -I Mary, =. . . . Phillips. Esq. J 3. Robert. nf liiiilielil. IScrk!'. Issue I'Xtiin". Olh Karl nf .'« sueeeriliil lii< 4. Peter. Onines ob. s. r. ante 17,10. 2. Juilitli, =Sir Win. Tniiiibull, oil. I7lfi (Sec Tahlt. .\o HI Kt. lli'iiry. ;')lli 'Itli llrieinbe burn al \i JKMh.Seplemli -^'"^ 3. Jaae, ob. $. l>. (iieil al III 1st Nuvenibe I. John, 7th Earl orstirlinf;, born at Dublin, 20th January. H.-LI-fi, ilieil unmarried, 39th December, I7(i.'>. 2. Uenjamin, Stii Karini StirliiiR, bnin at Dublin, lltli March, I7;in-7; died unmarried, ISIIi .April, 17(i«. i. Mary, Ciiiintcs' nf Stirlinir. burn at Diihliii. 1st i litobi r. IT.1.1; died unniiirri.'il. at ihr I, an Ins, Apiil 'isiji. 1701. Ill) died W ALKXANDt:U Olh and present £ARI. OF STIKLlNtJ am Tablr, No. I. v Stirijnc ano \hi\\s, from the Creiilion of the Titles to tho /inseiil Time. AviDnKW Al.CXANIIF.R, ol Mciislrii', h ill ilr^c ml rriiiii Mixumlcr M'l)i>ii:,lil. 'iiiiil>>ii ur lliiiiiilil, kiii^ (if tilt' litis. r\|pxaider, (ill. \M. i. Jiiliii .Mi'xuiiilpr. (Sft laltle, V„. II., 0: , i.rSM;, iiik/, villi ly, ll.i.'>. udit- . aail Ijitl i irr ui ilir ;il.-ltic.| rith \pril JlllKl, ■liiiishtiT uiiil lii'ir III' Sir Williuiii |-:r>kiiir, kiiij;lii. l!i>hM|i ol (;iaM;;i>» I i'iiiiMii-;:rriiiHii id .lutiii.lilii Karl III Mmi. Ki'gfi.' jlScollttinl. 2. Amlrew Aiemnddr. Miir^itrt't Ali'xaiiiirr, niarrii'il Mr. Jaiiii'i (iiirilon. ki't'iKM Uaooet. lllte 19. 1 Iidin, - '- .Marv, .laiii't, Cliaries, it April. (l.iii);lili r of diid 171-.!. Hans llainilliin, K.S(|., duu)>;bti r. Hilliuut issue ilied .liiitr Isl, 1724, aueJ <;;t >eari. >^^-^ Margarei, ub. a. p. ips.Esq. . ISirlisi. liiii", ruiiibull, Kt. I7lfi I. Jolin, (!lh Karl iil Slirliiia, ■iiieoiTiliil Ins i^iiiisi' , llriirv. ;'illi i:atl. ■Ith lleicinlier, 17;)!» ; born al .Antrim, .lOlli.Seplemliir, KiSO, (iieit al lliililiii, liit Nuveniber. 17J3. Hannah, daughter ol Ibe Kev.Ji'hii Hi;;^s,of Cliaduieli.rouiit* of \Voreestcr, (jreal-Rraint- daUKlitrr of Dr. Crillitb liil^K'S, Dei-nof Liehtield, 'I't'Dip. Car. I. ob. I7(i8. I. Mary, died iinniarrii'il. 2. Elizalielli,=''"hii Mtc Skinntr, Ksfj. 1. Mary, ntcs' "I'Stirlinir. Idiii. 1st IIiIoIm r. IT.1.1; arri'il, at ihr I, an lies, irit ■;Sl|i. i;!)|. 2. Hannah, f'oiintp.ss of.Slirline, siirrrt'dril lirr si.ster, t7!*4; lio.n al Diildin, H(li .laiii.aiy, I7IU-I: died al tier liiiiise, in ihe i'nlli'in' (irtMii, MOreester, 12th .'vho might be capable of proving a better right at any future day ; nor has your denial to receive him, the power of taking away his title, supported as it is by law. On what ground Your Majesty was advised to act, and why you did not exercise your own judgment on the occasion, I shall not assume to ask ; but I must observe, that, according to all precedent, either a Sovereign or a Nobleman de facto has always been considered in a state, the one to com- mand obedience, and the other to enjoy his privileges. Richard, Duke of York, the father of King Edward IV., was entitled de jure to be King of England ; but Henry VI. was reigning King de facto, and in him was vested the legal exercise of the Royal prerogative, and thereby the h a 2 VI attainders of the supporters of the House of York were temporarily valid and effectual; as were the laws made by the Parliaments of Henry VI. Henry VII. was never King de jure, but he was King de facto, I will not put the question as to William III.; but 1 will maintain, that the people, from whom all power flows, gave to both of those Monarchs the only title by which they could hold the Royal dignity, for neither had in him the jm successionis sanguine hereditario. Is not Louis Philip, King of the French, a King de facto, rather than de jure? unless, from the approbation of the nation, or a partial part of it, de- clared in his behalf, he may be con- sidered to derive the latter title; but even then, acquiescence is no more than sufferance, for it cannot convey the right of successional blood. Yet he has been acknowledged by Your ]>Tajesty, I VI 1 and Your Majesty's Ministers. Now, the Earl of Stirling is unquestionably Earl de facto, and in conformity to the law by which title is established in Scotland, he has been found Earl de jure — as the Services of Heirship re- toured into the Court of Chancery, and recorded in the public Office of Registry at Edinburgh, will afford ample evi- dence. Most Gracious Sire, I humbly pre- sume to remark, that though the Royal prerogative is invested with immense power, yet the law has provided that it ought never to be exerted to the suspension of justice. Bracton, an emi- nent Judge, in his Treatise upon the Law, (L. 2. c. 16.) writes, viz. " The " King hath a superior, namely God, " and the law by which he is made King;" and that law consequently enjoins the proj)er and equal administration of it to all alike. ii ! VIM Your Majesty, on your late auspi- cious coronation, took the usual oath of your predecessors, to preserve, keep, and administer the laws of the King- dom inviolate. Of those laws, lae Magna Charta of King John has ever been estimated the principal. In it is an article which says, that " none shall be deprived of his *' freehold, otherwise than by law;' but has this been observed with regard to the case of the Earl OF Stirling? His title is a part of his freehold. Still, it appears, a Judge of the first station has thought proper, without an inves- tigation of a question of right being before him, to pronounce a sic nolo, sic jubeo, of his own ; and thus, as it were, took upon him to make a decision, when he had a mere ministerial practice of his Court alone to follow. I cannot but regret that certain cere- monious forms are interposed to pre- IX of vent a personal access to the presence of the King by the subject; so that the latter cannot approach the former, ex- cepting through a Minister, who, from wilfulness, prejudice, and a variety of self-reasons, may think fit to answer for his Master, without having notified the application, or received any com- mands thereon. I could illustrate this mode of acting by a recent instance, were it necessary, on the part of your Secretary of State for the Colonial Department; but on the present occasion, I shall, out of respect to Your Majesty, refrain from explaining more with reference to the conduct of this Right Honourable Offi- cer of State. The contents of the following pages must speak for themselves; and when perused, I shall hope they will satisfy Your Majesty and the Public, that the Noble Individual whom they concern. 'I 'f^ 1 1; !ias been treated harshly, illiberally, and most unjustly. With the highest consideration of Your Majesty's desire to promote the welfare of your Kingdom, and to de- serve the veneration of those who live under you, I, as one of that number, have the honour to subscribe myself. May it please Your Majesty, Your Majesty's most obedient. Humble Servant, T. C. BANKS. London, February, 1832. ADVERTISEMENT. \i Having, in the title-page, announced my name in the character of a Baronet of Nova Scotia, it may not be improper for me to state on what grounds I have assumed that honour. By the Charter which His Majesty King Charles I., in 1625, made to Sir William Al.exai DER (afterwards Earl of Stirling) of the Dominium of Nova Scotia, there was power given to him to make resignations of lands, for the qualification of honours to be conferred by him, and power for him to create titles, and dignities, and honours, connected with Nova Scotia ; and accordingly the Order of Baronets of Nova Scotia was instituted, and limited never to 'a\i\ m ii iiiti 'tetJ XII exceed the number of one hundred and fifty ; and in the said Charter was contained a special clause on the part of the Crown, that it would, whenever required, confirm all such resignations and creations made by the Earl of Stirling, according to the terms agreed upon between him and the respective disponees. The Earl of Stirling having, on the 2nd of July last, been cognosced nearest and lawful heir in special to the said Sir William Alexander, his Great-great-great- Grandfather, in the manner the law prescribes, and having had His Majesty's precopt for seisin and infeftment direc'^ed in his favour upon such cognition, which was executed on the 8th of the same month, (as fully detailed in the subsequent pages,) is now in the legal pos- session, and entitled to the exercise, of all those powers and privileges which were conceded to his ancestor by the Charter aforesaid. I shall merely add, that having accepted the Patent of Baronet of Nova Scotia from the Earl OF Stirling, sealed with the Great Seal of Nova Scotia, and in conformity to the form used and followed by his said ancestor, in the Patents given by him to the several Baronets who had their VI XIll creations from him,* I consider the same to be perfectly as legal and as efficacious, as if it had been conferred upon me by the Crown itself; and I have no doubt the Crown, in its liberal view of justice, will concur in the propriety of confirming the same, or of regarding it as quite valid without such confirmation. I) * \ proper deed, in the Scotch form, has been accordingly executed to me, under the Great Seal of Nova Scotia. li "W M m mm I; i I CONTENTS. i 4 Page. Preliminary Address xix CHAPTER I. On the American Property ...... 1 CHAPTER II. Dissertation on the Laws of Scotland, with regard to Retours, or Services of Heirship . . . .17 CHAPTER III. Of Peerage Succession in Scotland, and of the effect of being permitted to vote at Holyrood House . . 24 CHAPTER IV. On the Erroneous Statements by the Counsel of the Plaintiff, on a late occasion in the Court of Common Pleas ; and in answer thereto 34 CHAPTER V. On the pretensions of the Dowager Marchioness of Down- shire, to the Stirling Titles and Estates . • .49 CHAPTER VI. The Earldom of Do van ^'1 I 111 !•:< Iv. 68 atrJ XVI CONTENTS. i Page. No. I. — Copy of the lleiour of Service of the Earl of Stirling as heir to his Mother, heiress of the Stirling honours, under the destination of the Charter of Novo-Daraus, 7th December, 1639, dated 7th February, 1826, as certified from the Record, by the proper officer of the Court of Chancery at Edinburgh . . . .77 No. II.— Copy of the Retour of General Service of the Earl of Stirling as nearest and lawful heir in general of his Great-great-great-Grandfather, William, First Earl of Stirling, dated 11th October, 1830 73 No. III.— Copy of the Claim for Alexander, Earl of Stirling, to be served heir of tailzie and pro- vision to his Great-great-great-Grandfather, "William, First Earl of Stirling . . . 80 Copy of the General Retour of the Service of the Earl of Stirling as heir of tailzie and pro- vision of his ancestor, William, the First Earl of Stirling, in the Earldom of Dovan, dated May 30, 1831 gi No. IV.— Copy of the Claim of the Service of Alexander, Earl of Stirling, as nearest and laveful heir in special of William, First Earl of Stirling, with the Verdit annexed 84 Copy of the Verdict 90 Copy of the Act of Court of the Special Service of Alexander, Earl of Stirling, &c. . »l r APPENDIX. I CONTIiNTS. XVII Page. 77 78 80 81 84 90 91 No. V. Copy of the Minutes of Election of Jatnts. Viscount of Strathallan, as one of the sixteen Peers of Scotland, in the room of the deceased Alexander, Earl of Balcarres ... 96 No. VI.— Copy of the Minutes of Election of the sixteen Peers of Scotland, 2nd September, 1830 No. VTl.— Copy of the Protest against the Officiating Clerks at tho Peers' Election, 3rd June, 1831, by the Dnke of Buccleuch and the Earl of Lauderdale, with the Earl of Stirling's Answer thereto . 99 1U3 106 No. VIII.— Copy Extract of the Return to an Order of the Right Honourable the Lords Spiritual and Temporal in Parliament assembled, of the 23rd of August, 1831, requiring " that there be laid " before this House a Copy of the Union Roll •• of the Peerage of Scotland, and a List of all " those Peers who have voted at all General " Elections since the year 1800, distinguishing *' each Election ;"— ordered to be printed 5th September, 1831 No. IX.— Copy of the Judgment of the Court of Common Pleas, on Motion to set aside the Writ, and cancel the Bail-Bond, in Digby, Knight, v. Lord Stirling 2H No, X. — Copy of the Resolutions of the House of Lords relative to the Claim of William Alexander to the Title of Earl of Stirling, 10th March, 1762, 113 No. XI. — Copy Extract of the Judgment of the Court of Session, 25th January, 1831 . . . .114 No. XII.— Copy of Epitaphs in the Parish Church of B? jeld, Oounty of Berks .... 116 The proof of the extinction of the male issue of Henry, Third Earl of Stirling, &c. &c. . . ib. « i| ^ iBS'J XVIIl t(JN I'lN IS. I'.UM Nil. XIII. — Copy <»* IVIi. Hovfiulrirs Dopositioii, uiul Mr. Conyers's Decimation, relativo to the Charter of Novo-Duiims.of the 7th December, HWJ IIH No. XIV. — Copy of Letter from Mr. Alexander (alias Lord Stirling) to Mr. Trumbull, 9th November, 175U 1-20 No. XV. — Copy of Letter from Mr. Trumbull, in answer lo Mr. Alexander, of November 9th. Dated East Hampstead Park, 13th December, 1759, 122 Letter from William Philips Lee, Esq. to the same Mr. Alexander, alias Earl of Stirling. Dated York, January 12th, 1700 . . 123 i i f 4 •I I I'auc IIH 120 PRi^LlMINARY ADDRESS. 123 I:v submitting tlie contents of the following pages to public notice, it may be asked, what the public has to do with the attairs of private indi- viduals? It is true, it has little (if any thing) to do with such concerns, though sometimes there are occasions when an appeal to the public is a matter of absolute necessity. This is the situation of the Noble Person, whose case is now under detail; and concerning whom, it must be remarked, that, ever since he took the place and seat of his family among his co-Peers, at Holyrood House, on the 2nd of June, 1825, the endeavours of malevolence have been most active to misrepresent his right of succession, to detract from his indubitable evidence in support thereof, and to asperse his character personally, with the most illiberal, invidious, and contumelious reflec- tions. h II i. ■'S XX t Convinced of the propriety of the grounds on which the Earl of Stirling resumed the rank of his ancestors — confident in the ample, genuine, and legal proofs, of which he is possessed, to shew and maintain his descent — and confirmed in my own opinion by the similar sentiment of several Barristers of high professional practice and know- ledge, who have been consulted and advised with, I have been induced to the compilation of this pamphlet; of which I shall only observe, that it comprises a true, and unvarnished statement, which I trust will prove explanatory and satisfac- tory to the unprejudiced and discriminating part of the public, and will expose and confound the wicked and calumnious. In addition to the reasons before-mentioned for this publication, there is one arising from a late proceeding in the Court of Common Pleas, ^ hereof the newspapers, at the time, gave a very imperfect account, and thereby caused a very erroneous opinion to be formed of what passed on that particular occasion, and of what was really expressed by the learned Judges before whom the point in question was agitated. The case was founded on an action brought by an English Admiral, Sir Henry Digby, to recover ^ 3unds on the rank genuine, , to shew d in my f several d know- ed with, of this that it itement, satisfac- ng part Lind the )ned for I a late Pleas, 3 a very a very ssed on 1 really om the ight by recover XXI a sum of money lent, by him, to the Earl ok SxrHUNG, for which his Lordship's promissory note had boen g,ven to him, as an obligatory ^ecunty; and for a bill of exchange, which had been drawn by an intimate frimd of the Admiral upon the Earl ok Stirlino, and accepted by the Earl, for the special accommodation of t/Us mttmate friend, who gave to the Ear,, ok STrRL.NG an undertaking in writing, to nay it when due. This was the nature of the transaction between S.r Henry and the Earl. But it so afterwards occurred, that this intimate friend of the Aimiral who had been for some time employed by the Earl m a confidential agency, so conducted himself in the business entrusted to him, that the Earl thought It necessary to discontinue his services-a matter which so disappointed him in the object he had probably contemplated, of having a more important trust at a future period, that, having made a com- munication to the Admiral of what had taken place, the gene-ous seaman took fire ^tlm intimate friend havins; been discharged, and thereupon wrote a letter to the Earl, to inquire into the cause, and to require payment of the money Owing to him. He was replied to, in a manner which was at once b 2 ) '< ' 'I V ■11 S XXII candid, explanatory, and, to an unimpassioned person, ought to have been satisfactory; but it would seem thai the motive of the Earl, inducing this letter, was but ill appreciated — as the answer testified. It may suffice to say, that the result was a violent determination, on the part of the Admiral, to pursue the Earl, with all the little pettifogging malice, which the nature of the Common Law will allow, to torment, harass, and vex the feelings of an honourable mind. — Ht gave instructions to his Attorney, to arrest the Earl as a commoner, by his family rame — though he knew that the Earl, being entitled to his privilege of Peerage, was not liable to personal caption — though he had recognised him as Earl of Stiuling, while on terms of friendly intercourse — though the securities he held, were under the signature of Stirling only — and though he knew that an action in a similar way, had been before overruled by a decision of Lord Chief Justice Tenterden. The character of an English sailor has usually been considered (and I hope this solitary instance of deviation, will not depreciate it) as open, liberal, hateful of law and litigation, and fraught with no mercenary conduct, or inclination either to oppress XXiU or molest his fellow-man : I wish I could in the present instance illustrate that high reputation, by the example of this renowned Xnight of the red ribband; my judgment leads me to a very contrary opinion ; and I do not think the lowest Jack in the navy would approve the behaviour of his Admiral, in the vindictive manner here noticed. In the subsequent pages, there will be found a more detailed account of the result of the Admiral's attempt to hold the Earl to bail ; and all, therefore, that will now be observed, will be to remark upon the instructions, which, it must be presumed, he gave to his Attorney, for his Counsel to make mis- representations ; for it cannot be believed that Mr. Serjeant Wilde would, without instructions, have thought of, or brought forward, the topics he so pertinaciously insisted upon in Court. Among the points most vehemently commented upon, one was, that the Earl of Lauderdale, and the Duke of Buccleuch, had complained to the House of Peers, of the Eaul of Stirling having voted in the election of Representative Peers ;^ a statement as untrue, as it was unnecessarily made, for the wilful purpose of misleading the Court ; for neither the Earl nor the Duke ever made such ■<\ complaint to the House of Peers. At the general I' fl \f^ n^ i\ m m XXIV election in September, 1830, they were present in the election chamber, and heard the Earl of Rosebery state, ** that he should not oppose the *' Earl of Stirling*s vote, as he had voted, and '♦ his vote had been received, at a former election ; ** and that the Resolutions he had moved in 1822, *• did not apply against him.'' On this occasion, the said Noblemen must have been convinced that the Earl of Stirling's vote was legally tendered, and legally accepted ; for they expressed no objection to it, although much discussion took place with regard to the vote of the Lord DufFus, which was rejected and disallowed. However, at the late general election in June last (1831), these noble personages did, after the election was over, present to the officiating Clerks of Session, a written paper, complaining of the Clerks having, on a former election, received the Earl of Stirling's vote, he not having gone before the House of Lords, in conformity to their Resolutions. But with wl:at propriety these worthy Noblemen could complain against the Clerks, for having done that which they themselves had, in the Clerks' presence, only a few months before, suffered to pass without opposition, by their silent acquiescence in the Earl of Rosebery's explanation, must be left to -> XXV their ideas of consistency,* and the ingenuity of Serjeant Wilde to reconcile. I should neverthe- less observe, that at the last election there was a great competition of candidates; and a vote might be estimated, in a political point of view, as of much importance. Suffice it to say, the Earl's vote was admitted, and counted, and his name returned among the Peers personally present.t Still, the averment of the learned Serjeant was a great perversion of fact. — Another point urged by the Serjeant was, that the Earl claimed his title under a Patent which limited it to the female line ; and that, if it did so limit it, the Dowager Mar- chioness of Downshire was the right heir — but he argued that no such Patent existed. Here the Chief Justice remarked, with great propriety, that " the Court had no right to try a light of title to the " Peerage of Scotland'' In this respect, it must * It must be in the mind of every one to know, that there is no Act of Parliament to regulate consistency. Of the ability of the Earl of Lauderdale to explain what it means, his political life may aflbrd a specimen ; as also the value he once set upon his Nobility, may be gathered from the Memoirs of his conduct in the early part of the French Revolution. It may be queried, how far his Lord- ship may feel obliged to Mr. Serjeant Wilde, for having brought him forward as a scare-crow on this occasion, t Vide A ppendix, p. 1 10. !' iiJ 1 XXVI r I % be seen that it was not truth, but the perversion of truth, by which the Serjeant had been instructed to adopt his observations to the Court, to impose upon its judgment. This perversion of fact was the more wilful, because the intimate friend of Sir Henry Digby has asserted, that he had been in- formed by the Solicitor of the Marchioness, that there were, among the Downshire MSS., a great many letters addressed to her mother, as Countess OF Stirling — a circumstance, which must shew that the Charter respecting the title, was known to the family, and that it was also known not to let in the course of female succession, under which she could pretend any right. Either the Solicitor to the Marchioness must have told the intimate friend of Sir Henry a falsity, for some purpose of deception, or that sworn friend must have told a similar falsity, for some particular reason.* In- deed, it would seem that the existence of the Charter was matter of notoriety in the Downshire • It is worthy of remark, that this sworn friend has slated that ho knows where the Charter of Novo-Damus is to be obtained, if he thought fit to declare the custody it is in : — supposing this person to be really telling the truth, it is somewhat strange he should not satisfy his friend the Admiral, and his Janus-like Solicitors, of the error they are under, in asserting tiiat the Charter never existed. i In- the that d, if rson not the XXVll family, and only denied, when it was found there was no inheritable right derivable under it ; and then, according to the fable of the dog in the manger, as the family could not gain any thing itself, it did not like another to enjoy the benefit. Another point urged by the Serjeant, was, that the King had refused to receive the Earl at Court. But supposing the King had received him at Court, what would it have amounted to ? His Majesty, by his reception, could no more have confirmed his Peerage right, if he had no legal title to it, than by his rejection, he could deprive him of his rank, contrary to law. I will only say , that His Majesty would have exercised a degree of courtesy, not unworthy royal dignity, had he received the Earl ; for, as the Earl had previously taken the oath of allegiance to His Majesty as a Peer, and had been allowed to exercise the privi- leges of his order, he had acquired a public status which was only questionable by a competitor. I shall not assume to inquire, on what ground the Earl of Newburgh shall have been received at Court, in his Peerage character, without having gone before the House of Lords for allowance of dignity — nor why a nautical Baronet shall have partaken of a similar honour, when the verdict of -!' ■1, 'II t? i-M. ■y "» f XXVUl .f (I a Jury shall have decided against his honorial descent. These little discrepancies of royal grace may probably be easily reconciled, where influence and connexion have weight, and a sympathetic regard for service induces favour ; but yet these acknowledgments of the Court cannot operate confirmation of right, where it is not founded on a legal basis. Again, the forensic orator endeavoured to lay stress upon the circumstance, that the Earl's name having been introduced in a bill in Chancery, and he being described therein as a Peer of Scotland, the present Lord Chancellor refused to recognise him in that character; — yet the learned gentleman admitted that the same Peerage character had been allowed to him by the late Lord Chancellor Lyndhurst, who had certified him under the Great Seal, as a Peer of Scotland, who, as such, had taken the usual oaths before him, to become qua- lified to vote by signed lists at the then ensuing general election for the Representative Peers of that kingdom; and he also admitted, that the Chief Justice, the Lord Tenterden, had, upon a very recent application, likewise allowed him to be entitled to the privilege of Peerage ; but, not- withstanding these admissions, he contended that 4 ,t fi i XXIX ing of the the refusal of the King, and of the Lord Chan- cellor, to recognise the Earl in that capacity, were much stronger facts against the legality of his title, than the sanction given by the two noble and learned Judges, were in favour of it. On a logical comparison of the weight of legal opinion, most certainly the preponderance is on the side of the Judges ; there are two Lords of high legal know- ledge against one — unless the names of my Lord Brougham and Vaux are to be deemed equivalent to those of my Lords Lyndhurst and Tenterden, and the name of the King unceremoniously super- added, as a make- weight to turn the scale. For the exertions of Serjeant Wilde to serve his client, every credit is to be attributed to him, by those who paid him for his ingenuity, or for his close adherence to his instructions; yet it must be convincing to every one, that the whole of the Serjeant's reasoning was irrelevant to the point before the Court — for the Bench had not to try a question of Peerage right — it had only to decide how far the privilege of Peerage attached to a person who had obtained the actual status of a Peer, unchallenged by any counter-claimant, and who had been put upon the records of Parliament, as a Peer of Scotland, and whose right thereto had never been overruled. h % Hi! !i.-.i ilHi lil XXX With these observations, I shall conclude my comments on the case before the Court of Common Pleas ; but, inasmuch as Mr. Serjeant Wilde, on that occasion, so particularly laid stress on the conduct of the Lord Chancellor, it may be proper briefly to remark thereon. The application to the Chancellor was for a letter missive to the Earl OF Stirling — the usual and only form of prac- tice, on bills filed against a Peer ; this, the Lord Chancellor refused to allow — taking upon himself to say the Earl was no Peer ; and thus also pre- suming to pronounce a judgment, where no cause was before him requiring it. On the argument by Serjeant Wilde of the effect of the Chancellor's declaration, Mr. Justice Alderson asked, (appar- ently much surprised,) under what statute the Lord Chancellor had exercised that refusal? to which the Serjeant replied, he was not aware of any statute. Now, every impartial and unpre- judiced person must consider that it was the duty of the Chancellor to have granted the letter missive applied for ; it did not commit him to any appro- bation of the Earl's title, any more than the cer- tificate under the Great Seal on the occasion before-mentioned, committed his predecessor. Lord Lyndhurst: but his refusal has shewn that the a 'I ' i M XXXI two Chancellors entertained very different notions of official consistency — while the learned Serjeant chose to determine the better knowledge, by applying it to the one in power, rather than to the one out; and in doing so, he warily suppressed the important fact, that the Earl of Stirling having instituted a suit to recover property before the Court of Session in Scotland, to which the Crown was made a party, exception was taken to his title, and the Counsel for the Crown heard thereon ; but the Judges, thirteen in number, were of opinion he was entitled to come before them in his Peerage character, and accordingly sustained instance (i. e. suit) in his Lordship's favour, 9th February, 1831. An old adage says, that ** in a ** multitude of counsellors there is safety ;" but it appears here, that there is not so much safety or wisdom in the decisions of thirteen Judges in Scotland, and of two in England, viz. the Chief Justice, and the ex-Chancellor, as in one, the blazing star in the legal and political firmament of the day ! I do not wish to denounce the hasty proceeding of my Lord Brougham, as unbecoming the tem- perate justice of a Judge; but I cannot help observing, that his conduct in this instance appears to be a sad deviation from his sentiments, as I u V 111*' 1 i.S 1' ^?jii i " I. XXXII 1 i delivered in his speech on the state of the law, in the House of Commons, 7th February, 1828 — in which he complained that a process for trial of right should be left to the arbitrary caprice of an Attorney-General, when, as a mere ministerial act of office, the fiat ought to be given as a matter of course. Yet his Lordship, on the occasion before himself, thought fit not only to refuse the usual process applied for, but to express gratuitously his opinion respecting the title of the party, of the particulars of whose case he was totally ignorant. The result was, that the Earl of Stirling, not being able to appear before the Court in his joroper character, to have the merits of the bill filed against him entered into, was obliged to pay, and did pay, £500, to settle the subject in dispute. I am informed, by persons who know him, that my Lord Brougham is a most worthy man — inca- pable of doing wrong to any one — willing always to compensate an injury, or retrace an error, when inopportunely or prematurely committed — and in every way truly deserving the high and distin- guished popularity he has attained; as such, I make no further remarks on this exalted personage ; nor shall I say more on the case which has occasioned the preceding narrative — though it is I 5 II XXXlll lat lys den in m- as IS ''■. plainly evident, that Sir Henry Digby has been less desirous to get paid his demand, than willing to fight the battle of others, as their cat's-paw. I now come to the title of the Earl of Stirling. — This devolved upon him through a regular course of descent. Wallace, an eminent writer upon the Scotch Peerage, says,* ** Honours ** are not enjoyed by any person to whom they *• devolve, under the will, or right of inheritance of '* his ancestor ; but are derived to every possessor " of them solely from the favour of the King, as " if each successive individual possible to come ** into being, and inherit them, had been distinctly " foreseen, particularly named, and originally ** called in the Royal Charter which granted them: '* in consequence, a Peer requires not a service, a " conveyance, or the using of any form, to acquire ** a dignity that is cast on him by descent; but, " on the death of his ancestor, is fully invested ** with it merely by existence, and may assume it ** at pleasure." Acting upon this principle, the Lord Aston, whose name does not stand even upon the Roll of Scotch Peers, has taken the title, and, though he • R. 434. k ' \fu liltfl I I If A'^ w M H Ml ■ill It XXXIV i: ' :i ii \i ' :i has never exercised any Peerage right, and cannot do so, until his name shall have been admitted upon the Roll, he has still been allowed to keep his title, and to be denominated as Lord Aston, in the Commission of the Peace, as an acting Magistrate for the County of Worcester. Does the learned Lord upon the Woolsack approve of this anomaly ? Would he refuse a letter missive to him, while he recognized him as a Peer, in the civil functions committed to him under the Great Seal to perform? Does not the Noble Lord suppose that in the dispensation of justice, consistency and impur- tiality should prevail, and not be v arped by prejudice of person, or of opinion ? The Earl of Newburgh has assumed the title, but has never gone before the House of Lords for allowance of dignity. He has been received at Court as Earl of Newburgh; and yet it may be considered, exclusively oi' other circumstances, that an Act of Parliament, as in the case of Stafford, would be requisite to cure the attainder of his ancestor, and render the honour legally descendable to him. Alexander, Eleventh Earl of Cassilis, became entitled to the dignity upon the death of his II I I b d ti h n o XXXV distant cousin, David, the Tenth Earl, in 1802; but he assumed the title without going before the House of Lords to prove his right. Thomas, Eighth Earl of Dundonald, on the death of his very distant cousin, William, the Seventh Earl, 1750, took the title, which has descended in his line ever since ; but he never applied to the House of Lords for its approbation. Anthony, Eighth Lord Falconer, on the death of his collateral cousin, George, Tenth Earl Marischal, in 1778, became Fifth Earl of Kintore, took the title, but never applied to the Lords for confirmation. John, Fourth Earl of Breadalbane, succeeded, in 1782, his most distant kinsman, John, the Third Earl, as heir male, not of the body of the First Earl, but as heir male of Colin Campbell, next brother to John, father of the First Earl. Lewis Alexander, Fifth Earl of Seafield, on the death of James, Fourth Earl, in 1811, took the title, without going before the House of Lords. John William, Seventh Earl of Stair, succeeded his cousin John, the Sixth Earl, in 1821, but did not apply to the House of Lords for allowance of dignity. John, Sixth Viscount Arbuthnot, succeeded his c ' ^i Hi II I 1 XXXVl f ' cousin, John, the Fifth Viscount, in 1756, without application to the House of Lords. Eric, Seventh Lord Reay, on the death of his dis- tant cousin, Hugh, the Sixth Lord, in 1 797, assumed the title, and did not apply for confirmation. James, Earl of Verulam, on the death of his mother's cousin, Anna Maria, Baroness Forrester, in 1808, took that title, but has not gone to the House of Lords for confirmation of it, although it embraces an interesting descent.* Other titles might be enumerated, — but it is submitted, that these already recited are sufPcient to shew, that in the right of succession to their honours, the noble persons before named did not deem it a point imperative upon them, to go to the House of Lords for the confirmation of their dig- nities ; they were not questioned, nor challenged by any other parties ; and therefore they became entitled to" them merely by descent. The House ♦ This account of successions of Scotcli Peers, without goinj? before the House of Lords, is taken from " Debrett's Peerage," edited, I believe, by Mr. Townsend, a Member of the College of Arms; and from tiie Peerage by Mr. Lodge, the literary Norroy King of Arms, who has omitted the name of the Earl of Stirling, but left his Arms remaining; — the motive is not neces- sary to be inquired into. of roy UF xxxvu of Lords could not, in a legal point of view, make an enactment to alter the course of trial of descent : the laws and customs of Scotland were confirmed by the Articles of Union ; and in this light, the learned Chief Justice of the Court of Common Pleas, on the occasion before-mentioned, was pleased to observe, that the Resolutions of the House of Lords, in 1822, respecting the Peers of Scotland, appeared to him to be a violation of the said Articles of Union. Upon the Union taking place, the Peers of Scotland ceased to be a Parliamentary and legis- lative body ; but their character and privileges of Peerage were preserved to them co-equal with the Peers of England, thenceforth denominated Great Britain ; they were to enjoy all the same rights, excepting the right of sitting and voting in the House of Lords, otherwise than by representatives, chosen by, and from among themselves. Thus the electors and the elected were equally Peers of the united realm. Another proof of Peerage must thence be taken, from the act of voting upon those occasions, when, by virtue of His Majesty's proclamation, they shall be called to assemble in their Parliament Chambers at Holyrood House, for the purpose aforesaid: — the return made by c2 I ii I. , n 1 U It'll m til ^^ I, ; I. ■i ..,.« if VTu\ XXXVlll t M fi Si the Lord Clerk Register, or his deputies, in obedience to His Majesty's command, of the Minutes of Election, with the names of the Peers voting, and of the Peers elected, becomes from that period the record, that those persons who thus voted were received and considered as lawful and efficient Peers of Scotland. In this instance, the Royal proclamation may be assimilated to the writ of summons addressed to the Peers of England, for their Parliamentary attendance. It is the only remnant of the Scotch Peerage Parliamentary meeting ; and it is to be observed, that without the proclamation, they cannot assemble in a Parliamentary character — which character must attach to the election pro- ceeding, that proceeding being virtually to be deemed equivalent to the admission of the whole body of the Peers of Scotland into the actual House of Lords of the United Kingdom of Great Britain, for the purpose of legislation. Having said so far with reference to the Earl OF Stirling having taken up his title, in con- formity to the law and usage of Scotland, and in conformity to the precedented practice of other Peers of the same kingdom, it may be expected something should be noticed as to the Earldom of il: XXXIX )ro- be lole tual kat iRL )n- in ler led of Do VAN, which he has assumed in addition to that of Stirling. On this head, a particular Chapter has been given in the subsequent pages, which consequently renders it unnecessary here to dilate upon the important points which it contains. It may be only competent to represent, that the Earl having been served heir to that title, under the terms in which it was created, has acted by the advice of his Counsel, and for the reasons set forth in the said Chapter, has made additament of it accordingly. It has been asserted, that the Earl of Stirling, claiming through an heir female, cannot be entitled to an honour limited to heirs male. This has been a great error; for, in the ug?iffe and important practice of the law of Scotland, it has been found and decided upon, that where an honour or a property is limited, " heredibus masculis et assignatis" the heirs male of the body first succeed, and when they have failed, or become extinct, then the heir female (comprised in the word " assignatis'') of the last heir male becomes entitled to the succession, even though there may be an heir female of an elder heir male at that time remaining. 1 1 i ft j II! i^>. , I i. 4ii h i' I ' I ' h xl In this respect, the Earl of Stirling stands heir to his family titles and estates, without a shadow of pretence, in preference to any would-be rival or competitor. The Palatinate property in Nova Scotia and Canada, has likewise formed a Chapter in the following pages; but as some objections have been suggested against the competency of the Charters, under which the same was granted, it may be rather expedient to make some obser- vations in answer thereto; — indeed, it is not a little curious to find, that those objections princi- pally stated, are the very objections urged by the French against the right claimed by the Crown of Great Britain to the territory in question, and which are so very satisfactorily answered in the reply of the British Commissioners, to the frivolous and futile subterfuges of the French Government. The whole may be thus briefly described in their own words: — As to the first exception* taken by the French Commissioners to the Patent of Sir William Alexander, " that the lands contained within it I • Memorials of the British and Inncli CommissiontTs, relative to their North American Territories, tor ITAti, 4to edition, pages 306, 207, and 208. xii being at the time of the grant in the possession of the French, the Patent became void in itself, upon that condition in it, which, as they allege, makes it necessary that no lands to be possessed in consequence of that grant should be occupied by inhabitants who cultivated them — ^which objection seems to be founded in a mistake of the words of the Patent, in which King James, after having expressed his sense of the public utility arising from the establishment of Colonies, adds these words, ' Prasertim si vel ipsa regna * cultoribus prius vacua vel ab inftddibus quos ad * Christianam convertijidem adDeigloriam interest * plurimum insessa fuerunt.' These are the words upon which the French Commissioners found their objections, though nothing can be more clear in construction, than that they are only expressive of a circumstance, which, where it happens, makes settlements in foreign countries additionally beneficial to mankind, and imply no condition at all." They afterwards allege, ** that if no such condition had been contained in the grant, it v/ould nevertheless have been void, the French having settled within it, upon the lands granted to the Sieur de Monts, in 1603, by the Letters I' ,i ' I ■'I I" •! 1!| \X. . i It xlii <( << ** Patent of Henry the Fourth (of France)— that " no English settlements were ever made in consequence of the grant— that the Nova Scotia granted by King James, is merely ideal, and '* had no existence till the Treaty of Utrecht." These objections are thus easily answered: — " As to the grant being void, as comprising lands " then settled by the Sieur de Monts, if it was a " point worth contending for, it could be easily ** proved, that what they call the settlements of ** the Sieur de Monts, was nothing more than a " cursory usurpation in opposition to the rights of the *' Crown of Great Britain; as it is evident from " Champlain, Part 2, page 266 — in which he says, '* * Les Anglois qui n 'y avoient tte que sur nos " ' brisees setant emparts dcpuis dix a douze ans des " * lieui' les plus signales, meme enlevoient deujc ** * habitations, savoir celle dii Port Royal, ou Hoit *" Poitrincourt, ou iis sont habitues de present' — *' that the English did make settlements in con- " sequence of this grant; for the Memorial from ** which this passage is taken, was presented at " London in 1631, in which he says, that the ** English had made settlements in Port Royal, " ten years before the date of that Memorial — ** which will place them in the year 1621, the very *• year in which King James made his grant. ry xliii *• It is also remarkable, that there remain at " this very day, the ruins of a Fort built at that ** time, at the entrance into the Basin, which *' pi^eserve the name of * the Scotch Fort.' '* It is a little difficult to know, in what sense " the French Commissioners would be understood, •* when they say, that Nova Scotia had no existence " antecedent to the Treaty of Utrecht. If they ** mean only, that France did not call that country ** by the name of Nova Scotia, it is true ; but " Nova Scotia, descriptive of that country, had *' its existence before that Treaty, not only in the " Letters Patent of King James the First, but in "all the English Maps from 1625 to 1700, " and in Laet's History,* and in the beginning " of the Negociation preceding the Treaty of " Utrecht ; nor, indeed, is it possible to suppose " France not to have had an idea of the country '* called Nova Scotia, after it had been so frequently '* mentioned in the best Maps and Histories of " America, — as Purchas's Pilgrim, Laet, and *' Champlain." From these facts and arguments of the British Commissioners, in refutation of the French ob- • p. 18. 1.'' ill % ^ ■I I: 'J V xliv t jections, it is evident that Nova Scotia was claimed, and the right thereto sustained, on the foundation of the Colony, and the occupation of the country by Sir William Alexander, in virtue of his grants thereof, from King James, and King Charles the First. It was demanded, and acquired back, in full plenitude of territory and boundary, as contained in the grants to Sir William Alexander; and in the late question between the American and British Governments, submitted by them to be determined by the King of Holland, the Charter of Sir William Alexander was the one on which the British Government assumed to maintain its boundary line. Here it may be remarked, that it is not a little curious to see with what ingenuity and pertinacity the British Commissioners urged and supported the validityof Sir William Alexander's Charters, and now to see with what subtlety those very objections of the French, so perfectly negatived, are taken up, and made use of, against the claim ij the country, made by the legal heir and repre- sentative of the same Sir William Alexander; a subterfuge as unworthy as it is unjust, and the more especially so, when this Colony and Canada I \] ,Mi Ida I xlv are the only remaining ones possessed by Great Britain out of all her American Territories, and which were founded and added to her dominion by the sacrifice of the private estate of the noble founder. It has been endeavoured to set up prescription also, in opposition to the right of the Earl of Stirling. On this topic, two very important maxims of English law are directly opposed to it — viz. the rules " Nullum tempus occurrit Regi" and ** Nullum tempus occurrit ecclesice'' — that is to say, no adverse possession, of however long standing, can be a bar to a prior right of the King or of the Church. In the present instance of claim against the Crown, it would be rather bearing too much upon the exercise of excessive prerogative, to take away property, from some by virtue of a nullum tempus exception, and yet refuse to restore it to others, by not allowing the same exception in favor of those, whose claims are derived from the Crown itself. But this, like every other negation frivolously started to subvert and overthrow the right of the Earl of Stirling, is nullified by the very words of the Charters themselves, which, by a special clause, suspend prescription altogether. : I UlK 'I If ; I t 't\ ■ i: !. i 'l I M I ' r!. i !| ?,: If xlvi and seem to have been used for that purpose, so that the law of Scotland was excluded, and the law of England could not apply. Most probably, the patience of the reader may be rather drawing to an end by this long Address ; but it is hoped the subject of it will have explained the peculiar interest in the subsequent Chapters, which, on the behalf of the Earl of Stirling, it has been thought expedient to be laid before the Public. ti It was here intended to have closed this Address, but the indefatigable and zealous Solicitors* for the Earl of Stirling, having just submitted to me two extracts from the Affida of the Plaintiff and his Attorney, sworn in the cause mentioned in the early part of this pamphlet, they appear too curious to be passed over without observation. * I think it incumbent on me to remark, that to these Gentlemen, Messrs. Webber and Eland, of Ely Place, Holborn, I am mueh indebted for some important communications and assistance in this Pamphlet ; and it is but due to their professional character to say, that their assiduity and attention to the cause and interest of their client reflects the greatest credit upon them, only to be equalled by the talent and ability they have shewn in conducting the business ihey had undertaken. ten, luuh this jsay, peir less I I xlvii Sir Henry Digby, the Plaintiff, swears " that " the writ was executed upon the Defendant with " the intention on the part of the Deponent, of " disputing the right of the Defendant to the " Peerage." Now, if this pugnacious Knight errant of the fair Dowager was solely desirous of entering the list of contention, and placing himself in the front of the battle, for another person, he might have done so in a more courteous and gentlemanly manner, for he might have proceeded otherwise than by bailable process; but no, the Knight swears further, viz. *' that the debt for " which the action is broug^ht, will be wholly lost " to the Deponent if he is prevented disputing " this right." This is another notable assertion, for the Knight has first stated that he lost the money at the instance of his sworn friend, believing the De- fendant to be a Peer ; an assertion, which, if true, shews that he considered that the Defendant having that rank, would be able to repay him at a future day ; yet he has afterwards sworn, that if the Defendant is allowed to be a Peer, this debt will be wholly lost ! ! ! Surely the gallant Admiral would cut a better figure on the quarter- deck, than in the witness's box. 1 1' il: !' u \ i , I I .1 Ml ■' Ik " If I It mm !• xlviii Mr. Potts, Attorney for the Knight, swears that in a conversation with a Mr. Handley, who had been for many years Solicitor for the Downshire family, that personage informed him the Mar- chioness of Downshire had said, " that from her *' infancy she had always been informed by her " guardians, the Lord Robert Bertie, and Lord " Sandys, and other near connexions, that she ** would have been entitled to the Earldom if it " had been limited to heirs general." Assuming that Mr. Potts swears truly, and Mr. Handley informed him in the same way, (and God forbid either of these parties should be supposed not to declare what is true,) the decla- ration of the Marchioness shews demonstrably, that her family entertained a knowledge of the Earldom being limited to the heir female in remainder, after the failure of the issue male of the Patentee. The constant observation made respecting the title, argues the lamentation of the family that the heirs male were not at that time extinct; for otherwise why talk about an honour that would never come to a female, if it had been limited to descend in the male line only? why fill a child's brain about a matter which never existed ? The lamentation, and the frequent xlix mention of the subject, evince the knowledge had of the Charter of Novo-Damus, and the sole regret that they could not extinguish the male line then hving, anddeprive it of its inheritance — thence the bitterness and persecution the present Earl has undergone, after he made prominently known his right of succession : " From their own lips sliall the, be convieted." I Will only add, that though insult and injustice may for a ^ng time prevail, yet the righteous cause will eventually succeed, and the wicked doers be abashed and confounded. An old adage says, " Vcngeatiee divine to punisl, sin, eonies slow • " Tliough slow its paee, the surer is its blow." Ill; 111 I.' If:»,| k'4 I V ;'; i 14 1.' M Mi u ^" ri ti i y ^ I ' 1 t. -1 ;i ( 1 j 'J ■' i; ',. ■■I 1 :i-j 1 1 'I I, ^i !; ;i i'^" 11 ill fiii,: 1 * i^i| ^ PROSPECTl "Nova Scotia, N'eiv Brunswick, and Cam Lieutenancy/ Office of the Lord Prop Grants, and Locutions of Lands, ^-c, < vient Street. J, AVylil, Ggograplier to the KUagr, 5, CliariDj LOSPECTUS. :v Brunsivkk, and Canada, I h reditu, j Iffice of the Lord Proprietor jur So.it. ocutions of Lands, Sfc, Sfc. .-'3, Purlia- grapher to the KUig', 5, ClmriDg Crois, TiiiiiiniTiiiiii["M]ia^^^^^ llniiill \ /.iir/l,ii<,l In -I' h\l,l ihiiniiii (tnv.\ iiiiiiiiiiir-iiiiiiiiiiiiiiviiiiiiiiiiiiiviiiiiiiiiiiir-^^^ ifftauil in J" \\\U,(hannii <>3:1''3b64 •4-7{»l 7's>;vv A am 18 -7"" 1.638 aH.Oioo k It 'I I CfTAPTER I ON THE AMERICAN PROPERTY. The private property of the First Earl of Stirling, in Scotland, was very considerable and valuable; but as the great possessions which were granted to him in America were publicly important, as composing a perfect Palatinate of Territory and Jurisdiction, the account of them pecu- liarly requires the first notice. In which respect, it is to be observed, that the present Earl of Stirling, having become heir to this extensive Inheritance granted to his Great-Great-Great-Grandfather, the First Earl OF Stirling, by Kings James the First and Charles the First, considers, that while he is desirous of furthering those objects, in the zealous promotion of which by his Ancestors, the Charters themselves originated, it may be proper for him to lay this Statement before the Public, for the correction of the erroneous opinions of those who call in question his just pretensions, and, by a concise explanation, shew the extent of the rights which have descended to him from his Ancestors, and of the course by which it has been proved beyond a doubt, that he alone is legally and properly, under the circumstances, entitled to assume and enjoy them. B I I/, '\ 'A M * ! lit « 'ii !i 1 urit! pi^ Sir William ALF.XANiiKU, ol" Monstrir, K.nij>lit, ami afterwards Earl of Stirmnj;, was (as is wvW known) a person of the first-rate talents and abilities, and of a spe- culative and enterprisin' materially with the spirit of the times. Fn the execution of his pur- suits, he expeiuled large sums of money in founding' and estahlisliiufj^ a Colony in North America; and from his consummate knowledge, industry, and zeal in public allairs, became a great personal favourite of King James the First, and his son and successor, Charles the First, in whose reigns he was made a Privy Councillor, Secretary t>f State for Scotland, &c. &c. The lirst Palatinate Grant of the Territory thenceforth denominated Nov a Scotia, in that part of North America which then went under the general name of Acadia, was made by King James the Fiist, by Charter, under the Great Seal of Scotland, dated at Windsor, the 10th Sept. 1021 :* the preamble, among- other things, thus recites, viz. " Propter fidele nt gratum dilecti nostri con- " siliarii Domini Willelmi Alkxandri equitis ser- " vitium nobis prtestitum et praestandum qui propriis " impensis ex nostratibus primus externam hanc coloniam " ducendam conatussit diversasque terras infra-designatis " limitibus circumscriptas incolendas expetiverit. Nos " igitur ex regali nostra, &c. &c. Dedimus concessimus " et disposuimus tenoreque prwsentis cartas nostras Damus " concedimus et disponimus praifato Domino Willelmo " Alexander ha^redibus suis vel assignatis quibuscun- " que ha3reditarie fOmnes et singulas terras continentes 1 1 * Ree seen and had at the Nova Scotia Heredi- tary Lieutenancy OITice, No. 53, Parliament-street. a. » llllll ac insulas situat ut jacen in America intra caput seu pnnuonlorium communiter Cap do Sable appellat jacen propo latitiidinein (puulra^inta trium graduiim aut eo < ircii ah efpiiiioctiali linea versus septentrionein a quo proniontorio versus littus maris tenden ad occidentem ud stationem luivium SunctiK Mariiu vul^o Sanctmareis baij et deiuceps versus septentrionem per directum lineam introitum sive oiitiiim magna; illius statiunis navium trajicien {jiiojexcurrit in terra) orientalem plagam inter regiones Suricpioruni ac Steclieminorum vulgo Suriquois et Stechetnines ad fluvium vulgo nomine Sancttc Crucis appellat et ad scaturigineni remotissimam sive fontora ex occidentali parte ejusdem qui se primum praBdicto iluvio immiscit, unde per imaginariam directum lineam quaB pergere per terram seu currere versus sep- tentrionem concipietur ad proximam navium stationem fluvium vel scaturiginem in magno fluvio de Canada sese exonerantem et ab eo pergendo versus orientem per maris oras littorales ejusdem lluvii de Canada ad (luvium stationem navium portum aut littus communiter nomine de Gathepe vel Gaspie notum et appellatum et deinceps versus euronotum ad insulas Bacalaos vel Cap Britton vocat reliquendo easdem insulas a dextra et voraginem dicti magni fluvii de Canada sive magnse stationis navium et terras de Newfundland cum insulis ad easdem terras pertinentibus a sinistra et deinceps ad caput sive promontorium de Cap Britton praedict jacen prope latitudinem quadragiuta quinque graduum aut eo circa et a dicto promontorio de Cap Britton versus meridiem et occidentem ad pia;dictCap Sable ubi ince- pit perambulatio includen et comprehenden intra dictas maris oras littorales ac earuni circumterentias a mari ad mari omnes terras continentes cum fluminibus torrenti- bus sinubus littoribus insulis aut maribus jacen prope aut intra sex leucas ad aliquam earundem partem ex occidentali boreali vel orientali partibus orarum littora- B 2 M ?i; f I M:' 'A f il:f if ■' '^u \- I ' ■! 'I ' " limn ot pra'cinctuum oaniiulem et atl euronoto (iibi jacot ■ " Cap BriltoD) et ex australi parte ejusdein (ubi est Cap f ^ " (le Sal)U') omnia iiiiiria ac insiilas >eisiis meridiem intra " (piiidraginla Iciuas dictarum orarum littoraliina earun- " dem ma;;nam insulam vulgariter appellat He de Salde i " vel 8al)lon incladcn jacen versus Carhaii vulj;o sontli- " south-eist cirta triginta leiicas a dicto Cap Britton ; - " in inari et e\isten in latitudine (piadraginta quatuor [radi aut Q' den te ^dict onmi " tempore all'iituro nomine No\.E ScoTi/E in America " gaudebinit (pias etiam prtvt'atus DoMiNUS WlLLELMUS " in partes et portioties sicut ei visum fuerit dividet ** eisdenujue noniina pro bene pUicito imponet." The extent and importance of the Territory thus granted is plainly manifest. Si R William had possession thereof, and proceeded pertinaciously in the Colonization of the Country; but King James dying about four years after, his sou and successor, King Charles the First, being sedulous to promote the success of this Scotch Colony, for the honour and advantage of his native kingdom, stre- nuously seconded the exertions of Sir William, who, at the instance of His Majesty, made a surrender of the aforesaid Charter into his royal hands, for the purpose of a New Grant with some more extensive powers ; and accordingly King- Charles the First, by another Charter, dated at Oatlands, the 12th July, IG'25,* was graciously pleased to re-confirm the said Charter, and to add thereto certain other privileges and prerogatives, with the right of creating the hereditary dignity of a Knight Baronet of Nova Scotia, which was an order of rank then for the first time instituted, and whereof he, SiR William Alkxandkr, for himself and successors, was consti- tuted the premier Baronet. * Keg.MaK. «){?■ «■ •'>l. N. 23. - s 5 This Charter, calltMl a Charter of Novo-Dainus, alter recapitiihitinp;- tlie Uoiiiuhiriev, ike. ike, contained in the former Charter, and its divers chiuses, thus continues, viz. : " Insurer nos cum avisamento pra'scripto pro bono " (ideli et gratuito servitio nobis per dictum DoMINUM *' Willi KLMUM Ali:xanui<;r prastito et impenso et " respectu hahito ma^narum et multarum ex|)ensarum " et sumptuum conferend et impendend in phmtatione diet " hondarum dominii et re«>ionis Nova* Scoti>e et earund " suh nostra ohedientia reductione aliis(pie <;ravihus " et causis onerosis De Novo dedimus concessimus " et disposuimus tenoreque priesentis cartae nostra; " Damus concedimus et disponimus praei'ato DcMiNo " Williklmo Alkxander suisque heredibus et " assij^natis hoereditarie Onines et singulas praidictas " terras dominium et regionem Novae Scotia? una " cum omnibus et singr.'.is castellis turribus fortaliciis " manerierum locis domibus aediticiis exstructis et ex- " struendis hortis pomariis plantatis et plantandis toftis " croftis pratis pascuis silvis virgultis molendinis mul- " turis terris molendinariis piscationibus tam rubrorum " (puim aliorum piscium sahnonum piscium tam magnorum " (|uam minutorum tam in aquis salsis quam dulcibus " una cum omnibus et singulis decimis garbalibus earun- " dem inclusis tam niagnis quam minutis cum advocatione " donatione beneficiorum ecclesiarum et capellaniarum et " juribus patronatuum earund annexis connexis depen- " dentiis tenentibus tenandriis et libere tenentium servitiis " earund. Una cum omnibus et singuHs prieciosis lapi- " dibus gemmis cristallo alumine corallio et aliis cum " omnibus et singulis mineralibus venis et lapicidiis earund " tam metallorum et mineralium regalium et regiorum *' auri et argenti infra dictas bondas et dominium Nova? *' Scotia? quam aliorum mineralium ferri chalybis stanni " plumbi cupri aeris orichalci aliorumque mineralium " (juorumcunque cum omnibus et singulis partibus pendi- . i iH i|;^- I Ilia' M m c, , t il i .1'' . 1 P ' Vi i 6 ^1 culis pertinentiis privilegiis libertatibus et immunitatibus omnium et singulariim praedictarum terrarum dominii et regionis Novte Scoti* cum plena potestate et privilegio dicto Domino Williklmo Ali.xanuer lu^iredibus suis et assignatis tentandi et investigandi fodiendi et scrutandi fundum pro eisdem et extrahendi eadem purgandi repurgandi et purificandi eadeni utendi con- vertendi ac suis propriis usibus applicandi." The Hereditary High Oflices are thus mentione«l in the said Charter, viz. : " Prreterea fecimus constituimus et ordinavimus tenoreque praesentis carta; nostras facimus constituimus et ordinamus dictum Dominum Wil- LiELMUM Alexander suosque haeredes et assignatos nostros nostrorumve haeredum et successorum Locum Tenentes generales ad repraesentandum nostram rega- lem personam tarn per mare quam terram totius et integral dictae regionis et dominii Nova? Scotiae tam durante spatio quo ibi remanebit quam in itinere ipsius vel eorum ad dictam regionem vel ab eadem et post ipso- rum reditum continue sine intervallo temporis aut loci excludendo omnes alios vel per mare vel per terram ab usurpatione hujus contrarii vel ab acclamatione alicujus juris beneficii authoritatis et interesse infra dictas bondas et dominium Nova? Scoticc vel alicujus judica- turae aut jurisdictionis eatenus virtute alicujus praec^- dentis aut subsequentis juris aut tituli cujuscunque. '* Nos etiam cum avisamento praedicto fecimus consti- tuimus et ordinavimus tenoreque praesentis cartas ncstrje facimus constituimus et ordinamus dictum Dominum WiLLiELMUM Alexander suosque haeredes et assig- natos haereditarie nostros JusTiciARios Generales in omnibus causis criminalibus infra dictam regionem et dominium Novae Scotiae Magnum Admirallum et Dominum Regalitatis et Admiralitatis infra dictam regionem Htereditarios etiam Senescallos ejusd oniniumqae et singularum regalitatum hujusmocli fi " cum potestate sibi suisque haeredibus el assignatis utendi " exercendi et gaudendi omnibus et singulis praefatis " jurisdictionibus judicaturis et officiis cum omnibus et, " singulis privilegiis praM'ogativis immunitatibus et casual- " itatibus earund similiter et adeo libere quam aliijuis " alius justiciarius vel justiciarii generales scnescalli admi- " ralli vicecomites aut domini regalitatis habuerunt vel " habere possunt aut possidere et gaudere iisdem juris- " dictionibus judicaturis olliciis dignitalibus et prrero- •* gativis in ali(iuibus nostris regnis boudis et dominiis " nostris quibuscunque." Other clauses of a very interesting nature are contained in the Charter, as for the Settkn's and their Successors to enjoy the same privileges in Scotland as native-born citi- zens, the Laws of the Colony to be as nearly similar as possible to those of Scotland, and a power to coin money for the use of the Colony, in the following terms, viz. : — " Insuper nos pro nobis et successoribus nostris cum " avisamento priedicto, damns concedimus et commit- " timus potestatem dicto DoMiNO Willielmo Alex- ** ANDER suiscjue hseredibus et assignatis habendi et ** legitime stabiliendi et cudere causandi raonetam cur- ** rentem in diet regione et dominio Novae Scotite et inter " inhabitantes ejusil pro faciliori commercii et pactionum " commodo talis melalli formte et modi sicuti ipsi ** designabunt aut constituent et ad hunc effectum damns " concedimus et committimus iis eorumve haeredibus et " assignatis dictie regionis Locum tenentibus privilegia *' monetam cudendi," &c. There is a clause which dispenses with Non-Entry, and another clause specially uniting and incorporating the Province of Nova Scotia with the Kingdom of Scotland, for the purpose of giving seisin thereof to Sir William Alexander, Imredibus mis et assignatis, at the Castle of Edinburgh, as the most eminent and principal place of the Kingdom of Scotland; this is followed by the clause I I >. I r.r ■ u 111 ' •lf,f'' IP.! i: f I 8 granting power for resignation of Lands, and for dis- poning of them to such person or persons as SiR Wil- liam might think fit to apportion them, either for indivi- dual engagements to aid in the colonization of the Country, or as a qualification for obtaining the dignity and degree of a Knight Baronet of Nova Scotia. The following are the words : — " Et prasterea non obstante praedicta unione licitum erit praidicto Domino Willielmo Alex- ander suisque haeredibus et assignatis dare concedere et disponere aliquas partes vel portiones diet terrarum regionis et dominii Nova? Scotias iis hsereditarie spectan ad et in favorem quarumcunque personarum eorum haeredum et assignatorum haereditarie cum decimis et decimis garbalibus earund inclusis (modo nostri sint subditi) tenend de dicto Domino Willielmo Alex- ander vel de nobis et nostris successoribus vel in alba firma feudifirma vel warda et relevio pro eorum bene j)lacito et intitulare et denominare easdem partes et portiones quibuscunque stilis titulis et designa- tionibus iis visum fuerit aut in libito et optione dicti Domini Willielmi suorumque praedictorum quaj quidem infeofamenta et dispositiones per nos nos- trosve successores libere sine aliqua compositione propterea solvend approbabuntur et confirmabuntur. Insuper nos nostrique successores quascunque resig- nationes per dictum DoMiNUM AVillielmum Alexander suosque haeredes et assignatos fiendas de totis et integris praefatis terris et dominio Novae Scotiae vel alicujus earund partis in manibus nostris nostro- rumque successorum et commissionariorum praedict cum decimis et decimis garbalibus earund inclusis aliisque generaliter et specialiter supra mentionat reci- piemus ad et in favorem cujuscunque personae aut quarumcunque personarum (modo nostri sint subditi et sub nostra obedientia vivant) et desuper infeofamenta expedient toneiid in libera alba firma de nobis ha?re- f1 quae DOS- ione tur. sig- UM de tiae ro- ict sis ci- eiut et nta re- 9 '• dibus et successoribus nostris modo supra mentionat " libere sine uUa compositione." There is also a dause to create dignities and titles of honour generally, without restriction to the degree; but this rather refers to personal honours to be enjoyed within the province, than to any others to which land is required to be attached, and the privileges to extend out of the country. With respect to the Order of Knights Baronets of Nova Scotia, it originated under an understood and presettled arrangement between King Charles and Sir William Alexander, for the express encouragement of persons of honour, family, and fortune, to engage in and assist to promote the colonization of this vast country, and thereby give effect and energy to the commercial intercourse between those parts and the kingdom of Scotland; the Order was therefore founded and established by Letters Patent under the Great Seal of Scotland, declaring and confirming the rank and privileges to be inherited and enjoyed by the Knights of the Order, which, after having been established a short time, had the peculiar distinction annexed to it, of allowing the Members to wear a jewel, as an external emblem of their honorial degree. The Royal Warrant conferring this privilege is worthy of consideration, as demonstrating the occupation of the Country, and the exercise of the government of it by Sir William Alexander, in the person of his son and heir-apparent. Sir William Alexander, then actually residing there. The following is a Copy of the Warrant : " Charles R. " Right trustie and right welbeloued Cousin and Coun- " sellour, right trustie and welbeloued Cousins and " Counsellouris, and right trustie and welbeloued " Counsellouris, Wee greete you well. " AVhereas, upon good consideration, and for the *' better advancement of the Plantatioun of New Scotland, i II sin' 1' ;i; M il ■ 1 * I ji ■1 J 1 if il > ( ^tn hi . I 10 which may much import the good of Our service, and the honour and benefite of that Our auncient King- dome, Our Royall Father did intend, and Wee have since erected, the Order and Title of Barronet in Our said auncient Kingdome, which Wee have since established, and conferred the same upon diverse gentlemen of good qualitie: And seeing Our trustie and welbeloued Counsellour, Sir William Alex- ander, Knight, Our Principall Secretarie of that our auncient Kingdome of Scotland, and Our Lieutenant of New Scotland, who these many years hypast hath been at greate charges for the discoverie thereof, hath now in end settled a colonic there, where his sone. Sir William, is now resident; And Wee being most willing to aflbrd all possible meanes of encouragement that convenientlie Wee can to the Barronets of that Our auncient Kingdome, for the furtherance of so good a worke, and to the effect they may be honoured and have place in all respects according to their patents from Ws, Wee have been pleased to authorize and allow, as by the presents, for Ws and Our succes- souris Wee authorize and allow the said Lieutenant and Barronets, and euerie one of them, and their heires-male, to weare and carie about their neckis, in ail time cuming, ane orange tannic silke ribban, whereon shall iieing pendant in a scutcheon argent a Saltoire azur thereon, ane inscutcheon of the Armes of Scotlantl, with ane imperiall Crowne above the scut- cheon, and encircled with this motto. Fax mentis iioNKST^E GLORIA; which cognoissance Our said pre- sent Lieutenant shall delvver now to them from Ws, that they may be the better knowen and distinguished from other persounis. And that none pretend igno- rance of the respect due unto them, Our pleasure THEREFORE IS, that by open proclamatioun at the marrtit croccvs of Edinburgh, and all other head brughs >■ ^1. 1 [ l< <( t( (< (< << (( <( • I ." King- Charles, by another Charter, dated at Whythall, the 2nd February, 1C28,* granted to Sir William Alexander, by the description or denomination of Hereditary Lieutenant of our Country and Dominion of Nova Scotia, another great district of land in Canada, to hold to him, " heredihus suis et assi};} yeares ; >vith all liberties, privileges, ' honours, jurisdictions, and dignities, respective therein ^1 " mentioned. Together also, with all execution, precepts, *' instruments of seasinj^s and seasings following', or that " shall liappen to follow thereupon. And also ratifies and " approves the Act of (ieneral Convention of Estates at " Holy-rude House, the sixth day of July in the Year of " God, l()J30, whereby the said Estates have ratified and " proved the dignities and Order of Knight 13arronet, with " all the Acts of Secret Council, and i)ro(;lamations fol- " lowing thereupon, made fur the niaintainin;^' of the said " dignittie, place, and precedencie thereof. " And His Majestic and Estates aforesaid will, statute, " and ordaine, that the said Letters, Patents, and Infeft- " ment, and the said dignitie, title, and order of Barro- " nets, and all Letters, Patents, and Infeftment of Lands " and dignities granted therewith to any person what- " soever, shall stand and continue in force, with all " liberties, privileges, and precedencies thereof, according " to the tenor of the same, and in als ample manner as if " the bodies of the said Letters Patent, Infeftments, and " Signature above-mentioned, were herein particularly " ingrost and exprest, and ordaine intimation to be made " thereof by open Proclamation to all His Majestie's " Leges, at the Market Crosse of Edinburgh, and other " places needful, that none pretend ignorance thereof." " P, Acie No. 28, 7nade in the Parliament held hy King *' Charles the First (in jjerson) at Edinburgh, the " twentie eight day of June, Anno Domini One " Thousand Six Hundred and thirtie three." The present Earl of Stirling having had his spe- cial service of nearest and lawful heir in special to his Great-Great-Great-Grandfather, the said Sir William Aliiixander, First Earl or Stirling, duly found before a Jury composed chiefly of Members of the Fa- culty of Advocates and Writers to the Signet, (Gentlemen learned and well v€?rsed in the Law^s of Scotland,) retoured into the Court of Chancery in Scotland ; and in virtue : *( ii i . ii (- I ! m i|!^ i kW I 10 t1 thereof, hy a Precept from His Majesty, (lircctetl forth of his said Chancery to the Slierilf of Edinburgh, having been infeft in the whoh^ C'oimtry of Nova Scotia, the Lordship of Canada, with all their parts and pertinents, the OUices of His Majesty's Hereditary Lieutenant of Nova Scotia, Canada, (Now Brunswick and the adjacent islands in(duded,) &,c. hy seisin taken at the Castle of Edinburgh, on the 8th of July, 1831, in terms of the Original Grants to Sir William Alexander, is, under the said infeftment, in the legal occupation and possession of all the High Offices and of all the Lands not disponed by his Ancestors ; and intitled to those passed away, under the usurpation of right pretended by any other person or persons to his prejudice. i t t t e r u 1 tl a r; II i Li *'l CHAPTER II. DISSERTATION ON THE LAWS OF SCOTLAND WITH REGARD TO RETOURS, OR SERVICES OF HEIRSHIP. SERVICE OP AN HEIR. As different competitors frequently claim to be heirs to the deceased, it ought to be proved judicially who has the best right to that character ; and therefore he who is truly heir, before he can have an active title to the estate, which was in his ancestor, must be served and retoured heir by an Inquest :-these services proceed upon a brief, which has the special name of the Brief of Inquest,"^ as far back as the reign of Rob. III. c. 1. GENERAL SERVICE. This service proceeds on a brieve issuing from Chancery directed to any Judge ordinary, which must be proclaimed and published at the head-borough of the Jurisdiction withui which the heir is to be served ; and after the expi- ration of fifteen days from such publication, the service may proceed before the Judge. • E.,sk Inst. IJ. III. Ti,. 8. § 59 ef seq.-The5.h edition, folio, »«i2, IS referred to throughout these pages. I .1 1' lij y j.i I ' H 18 The Jury consists of fifteen persons, who arc sworn in by tlio JuHfre to act fuitlifnily. The Inquest hv'uv^ set, the uppment heir produces to them his claim us heir, and they may proceed not only on the evidence oll'ered by the Claimant, hut on the proper knowledge of any two of themselves ; for they are con- sidered both as Judges and witnesses. The principal point of in(iuiry, is, whether the Claimant be the next and lawful heir of the deceased. If it appear to the Inquest that the claim is proved, or verified, they serve the Claimant, i. e. they declare him heir to the deceased, by a sentence or service, signed by the Chancellor of the Jury, and attested by the Judge. The Clerk to the Service then prepares a retour (return) of the original claim of service, minutes of the proceed- ings, and depositions of the witnesses, with the verdict of the Inquest, to the Chancery, (1 and 2, Geo. IV. c. 38,) which, after being thus returned and recorded in the Chancery books, is called the retour — no service being considered complete until it be so retoured ; after which, the heir served may get from the Chancery an official extract, as a voucher of his service. — Ersk. Inst. B. III. Tit. VIII. § (>1, et seq. The service being a sentence, must be restricted to the claim oflered to the Inquest, and the evidence brought by the heir in support of it ; and though the retour is con- sidered as a decree proceeding on the verdict of an Inquest, there is no necessity that every decree should express the evidence on which it is founded ; it is enough if it be laid before the Judge, before he i)asses sentence: this, indeed, the law presumes to be done in services, and in fact is never omitted. — 10. § 74. A general service is competent only to the heir-at-law, and has no relation to any special subject; for it is not intended to carry any proper feudal right of lands, but merely to establish a title in him, who serves, to every . i' I'J heritable subject belonsring- to tbe deucused, wliich recjuires no seisin, and to every personal rij;ht wbidi hud not been perfected by seisin, in favor of the ancestor;— lb. § (J?). — Or, in other words, which perhaps give a more clear explanation of the ellect and purport of this service, a general service carries to the heir the complete right of all the heritable subjects, on which the ancestor had not taken seisin, though he has not established a right to them in his own person by seisin. For, seeingall personal rights are, ex sua natnt'6, transmissible inter vivos by the owner to the grantee, by simple assignation without seisin; they must also be ellectiudly transmitted from the deceased to his heir, by a service, which is the legal method of con- vevance from the dead to the livinii'. The general service is completed as soon as it is retoured, and all the right which a general service can give, is from that moment vested in the person served.* Of this description of service Lord Stirling has been retoured, 1st, On the 7th February, IS'26, heir to his deceased Mother, Hannah, Countess of Stirling, as heiress to her brother, Bknjamin, Eighth Earl of Stirling, de jure, who was the last heir male of the body of AViLLfAM, First Earl of STlRLiNc.f 2ndlij, On the 11th October, 1830, nearest and lawful heir in general of his Great-great-great-Grand- father, William, First Earl of Stirling. Srdly, On the 30th iMay, 1831, nearest and lawful heir of tailzie and provision, to his ancestor, WILLIA^f, First Earl of Stirling. * No services are travrrsiblo, l)at arc taken as true, until, by regular process (if icdMi'tiou, al Ihe snil of a belter (Maimant, tliey are falsified. t These Ketourswill ))efuiiucliii the Ajipcndix, NOs. I. 11. &^ ill. c 2 << I I I I ill ">A ,'» 1 ■ , V .1^' i! <' 20 '■ \ With regard to tliis last sorvice, and in explunatioi) thereof, it may he ohserved, that a tailzied fee is a general term, comprehending all destinations in which the legal c jurse oi" succession is altered, or cut oil", and one or other of the heirs-at-law excluded, or postponed; and the nomi- nation of a particular series of successors in a certain order (to use the word in a limited sense) is called a destination. '1 he pers >n to whom the estate is first given in a destination, is called the Institute, and all following-, the heirs or substitutes ; and those who succeed in virtue of clauses of substitution, are all in a proper sense heirs oi provision. — Ibid. § 21, 43. It has been shewn, that a general service carries every personal right to heritage, that was vested in the ancestor ; but if a party be desirous of being served heir of pro- vision under a particular deed, that is also accomplished by a general service, the claim on which is adapted to the particular circumstances of the case. Accordingly, a service of this description was obtained by L( rd Stirling, in order to take up the title of Earl of DovAN, under a precept containing- special provisions, (hereafter more particularly mentioned,) which was granted as an additament of honor to the Earldom of Stirling-, both to be enjoyed by the same line of heirs. & ! SPECIAL SERVICB. A general service cannot include under it a special one, because it has lio relation to any special subject, unless where an heir of provision is served in general ; and even then, it carries only that class of rights, upon which seisin has not proceeded. Ikit a special service neces- sarily implies in it, a general one of the same kind and character ; thus, a service as heir of line (or at law) in special to a particular estate, includes a general service, as heir of line, to the same ancestor, and oi consequence carries all i)ersonal rights descendible to the heirs of line. Ci i: t 21 Where, therefore, the iiead.s necessary to be proved in a general service have been aheady fixed and proved in the special, there can be no occasion lor having them again tried by another Inquest. The special service is calculated lor perfecting the heir's title to special subjects, in which the ancestor died vested and seised ; but it carries no right to the heir served, until his title be completed by seisin taken on the retour as after-mentioned. The special service proceeds also on a brieve, issued from the Chancery, directed to the Sherilf of the County within whose territory the lands lie, to which the heir is to 1)6 served ; but where the lands lie in dillerent Coun- ties, the special service, which used to be conducted before the Macers of the Court of Session, now proceeds, under the statute of 1 and 2 Geo. IV. cap. 38. § 11, (1821,) *' before the Sheriff-depute of Edinburgh, or his " substitute, as Sheriff in that part specially constituted, " whether such service may relate to lands and heritages *' situated (J,n or beyond the Sheriffdom of Edinburgh, or " in several Sherill'doms." The authority to conduct a service before the Sheriff of Edinburgh, under this statute, is obtained in the man- ner by which a commission to the Macers was obtained under the former practice, viz. by a bill presented in the Bill Chamber, stating the circumstances, and praying for a warrant on the Keeper of the Chancery, to issue a commission to the Sheriff of Edinburgh. The bill is passed of course, and the connnission issued, and the ser- vice proceeds in the usual form — the Jury of tifteen being appointed, the claim made, and the evidence offered. The evidence and proof required, is more ample in this, than in the general service ; the principal points to be proved, are — That the ancestor is dead, and the precise time of his death, and that he died seised of the lands specified in the claim ; of whom the lauds arc \- I I' 1 w ti' I ! <(, ! \ w H St I ^ 22 i hdMtn, and «n what Icimre ; the okl and new extent, and value of the huids, and in whose hands the fee is at the time of the service, iuul has been since the death of the an«;esti)r. — 1/>. § (57. These h< vds heiny proved, the Jury serve the heir, and the ('lerk to Jiie Service, along with the verdict, must deliver into Chiuicery the original claim of service, minutes of the proceedings, and depositions of the wit- nesses ; without which the retour cannot be is?".ed ; and an extract from them, as in the case of the general ser- vice, is said t(. be the Relour of the heir's service. 'I'his servic(s as has l>een observed, confers no right until the title is completed by seisin. Where the lands claiuied lue holden of the Crown, the heir applies to the C'haivcory, and upon production of his retour, a precept is issued of course, directed to the Sherilf of t'le County,* ie([uiriug him to infef the heir. On this precept, the heir is accordingly infeft, and his title to the estate of his ancestors thereby comj)leted. St'isin must l)e taken on the ground of the lands con- taiutul in the precept : " But this nde, may, in cases of ** necessity, be dispensed with, by proper authority, as it " was in the seisin of Nova Scotia and Canada, in favour " oi' V iscDiNi Stirling, which, by the King's spe- " cial appointment, was taken at the gate of the Castle of " Kilinburgli, and afterwards ratilied l)y Parliament, - K;:);^. c. •Jh."-/:rAy(. Inst. B. II. Tit. III. § 3(>. Of this service is the retour of the 2nd Julv, 1831, f by which Lord Si'IRI-ing was served nearest and law- ful heir in special of the before-mentioned William, * r>\ ilif ChaitiT umlt r whiili [,oiu> Stirling takes the Amcri- I'.ui (>nipi'M\, It is niiulo puit of ihc County of I'llinbiiru;!!, for the |iur| o>;h, as tin- most coiisiiieuous |ilaie therein. ' A p[uiuli\ No I \ i ' 23 First Earl OF STiBUNC, to take up the fee that was -ted ,„ ,„■„ of the lands oo.nprised i„ the aforesa d Cha ers, a..d upon which retour, on ,he 8th of the same month he received, in terms of the sau.e Charters/from he sa,.| Shenfl' of Edinhurgh, upon a precept sued out of Chancery actual livery of seisin of and in the same la.ld.s, thereby completing- his title thereto. The nght of some subjects (;. .. inheritances), is esahhshed ,n the heir without a service; of whici; are titles of honour, and offices of the highest dignity, which ^ the he,r hmited m the grant; but of this in the „ex i 1-1' 'I! CHAPTER IIL OF PEERAGE SUCCESSION IN SCOTLAND, AND OF THE EFFECT OF BEING PERMITTED TO VOTE AT HOLYROOD HOUSE. f I Before the Union, by the law of Scotland, a Peerage dignity, being an hereditament, depended upon the course of inheritance to which it lay open — whether to heirs general, and of line, or to heirs special, of tailzie and pro- vision ; but in whatsoever way the inheritance w as to pass, there was a process provided, to establish the fact, by a service of heirship, in the terms of the limitation contained in the charter of creation ; which service, when carried through and retoured to Chancery, invested the party served with the inheritance, who thereupon becomes legally entitled thereto, unless the service was reduced, and set aside, at the suit of a competitor ; for it was not traversible (as has been explained in the preceding Chapter).- -Thus the Peerage, like any other inheritance, was a civil right, rogni/able by the Courts below; and the Court of Session, the highest of these Courts, always entertained and decided upon all cases of controversial claim. It is to be observed, that v/hWf the service of heirship is necessary to the tnkiii^ up of heritable property, it f 25 is not absolutely so to take up a Peerage honour, although the heir in succession may, for the purpose of shewing his propinquity, expede a service, to put upon record the evidence of his descent. The ancient Parliament of Scotland consisted of the higher Clergy, and the Barons — the latter title including not only the Nobility, but every man who held territorial property, as the immediate vassal of the Sovereign. It was not until the end of the fourteenth century (1372), that members from the royal burghs obtained places in the assembly. At that time, the duty of attendance in Parliament was felt to be burdensome; and the Acts 1427, c. 102, and 1587, c. 113, and several other old statutes, introduced a system of representation, chielly as a relief to the lesser Barons. The Peers were not summoned singly by the Sovereign's writs, as in England, but edictally, by precepts issued to the Sheriffs of the several shires ; and at last. Parliaments came to be called only by pro- clamation. (Wight, Lib' 1, c. 2, § 2.) Accordingly, a Peer of Scotland acquires the dignity, which was enjoyed by his predecessor, without any form of investiture, or the necessity of any other aditio htere- dilatis, than possession. The Peerage rank and dignity are cast upon him by descent, and he becomes fully possessed of them in con- sequence merely of his relationship, and survivance, and may assume the honours at his pleasure, with this quali- lication, that the authority and grounds upon which he has taken them upon himself, are liable to be called in (juestion, on an allegation, competently proponed, of a nearer interest, and better title, in another party. In the case of claim of an English Peerage, of whatso- ever degree, and howsoever created, the party nmst apply by petition to the Sovereign, for his writ of summons to Parliament; whereupon his application is referred to tlu' House of Lords — or it mav be to the Attorney-Genera!, 11 H I ,'li . .'r ;; ■ i '. • - I k k I 26 ;i6, V to Coriinissiouers, or to the Lord Chancellor ; — and from a presumed analogy in this respect, it has beeninconaider- att.'ly supposed, that the jurisdiction of that House extends to the claims of Peers of Scotland, to enable them to assume their honours; and ground has been taken there- from, for endeavouring to create a precedent for assimi- lating to this Knglish practice, the usage in the cases of the Peers of Scotland, and for making it incumbent on tliem, lo act the degenerate part of declining, in favour of a Foreign Tribunal, the natural jurisdiction of the Court of Session, in deciding u})on disputed claims to the Peeriige, which " were iield after, as well as before the Union, to fall within its ordinary department." ( Wall, Lib. 5, § Q.) It is optional, indeed, in any Peer of Scot- land, accordingly as he may be influenced by motives of particular interest, to present an application for acknow- ledgment of his honours to the Sovereign, who thereupon may be graciously pleased to refer the application to his great council, the Peers of the realm in Parliament, to deliberate and advise. The House of Lords, as to all matters of a purely Scottish description, " never judges in civil questions, but upon appeal ;" and then, quoad htre witnesses, and both the constituent and proxy being »[ualiiied according to law ; declaring also, that such Peers as are absent, being qualified as aforesaid, may send to all such meetings, lists of the Peers whoni they \'t' .) ' tf ? ' ! 'f ':^r' * \U\v Ldvnt CiM'. I; li ', 28 \ I *'■ ;i jiulgo fittest, viilidly signed by the said absent Peers, which shall be reckoned in the same manner as if the parties had been present, and personally giving in the said lists ; and in case of the death, or legal incapacity, of any of the said sixteen Peers, that the aforesaid Peers of Scotland shall nominate another of their own number in place of the said Peer or Peers, in manner before and after mentioned : — •' And further statutes, enacts, and ordains, that until " the Parliament of Great Britain shall make further " provision therein, the said (parliamentary) writ (issued " out under the Great Seal of the United Kingdom, " directed to the Privy Council of Scotland) shall contain " a warrant and command to the said Privj/ Council, to " issue out a proclauuition in Iler Majesty's name, " requiring the Peers of Scotland for the time, to meet " and assemble, at such time and place within Scotland, " as Her Majesty and Royal successors shall think fit, to " make election of the said sixteen Peers ; and requiring " the Lord Clerk Register, or two of the Clerks of Ses- " sion, to attend all such meetings, and to administer the " oaths that are or shall be required, and to ask the votes ; " and having made up the lists in presence of the Meet- " ing, to return the names of the sixteen Peers chosen " (certified under the subscription of the said Lord Clerk " Register, or Clerks of Session, attending) to the Clerk " of the Privy Council of Scotland, to the end that the " names of the sixteen Peers, being so returned to the " Privy Council, may be returned to the Court from " whence the writ did issue." The Act () Annsp, cap. 23, in the first session of the first British Parliament, sect. 1, enacts, that proclamation shall be issued under the Great Seal of Great Britain ; and sect. 7 enacts, that the certificate of the names of the sixteen Peers elected, signed and attested, shall, by the Lord Clerk Register, or two of the principal Clerk< \ 'iU of 29 of the Session, be returned into Her Majesty's High Court of Chancery of Great Britain. The proclamation must be made at Edinburgh, and at tlie iiead burghs of the dillerent Counties in Scotland, twenty-five days at least before the time appointed for election. The Palace of Holyrood House is tlie place of election. After prayers, the proclamation is read, and the roll of Peers is called over. The oaths are adminis- tered to the Peers present by the olliciating Clerks, and the evidence that absent Peers who have sent lists or proxies, have taken the oaths, is examined; after which, the votes are collected from the Peers present, and from the signed lists, and the names of the sixteen Peers who have the majority, are declared. These meetings of the Peers of Scotland, for the purposes of these elections, form no Courts possessing original jurisdiction in Peerage ques- tions, so be it the Peers assembled do " not propose to treat of any other matter or thing than the election of their Representatives ;" * and only in such a sense as that, any of them may object to, and enter a protest against, votes of the other Peers, which shall be the subject of a petition to the House of Lords, complaining of the return. And the House of Lords, in its judicial capacity, being the highest Court of Judicature in the United Kingdom, a Peer of Scotland, upon appeal taken to that House by an adverse party, stating objections to his title on the grounds of a counter claim, or the like, is bound to obey its orders. It has been stated, that the service of heirship is not absolutely necessary to establish a right to the succession tea Peerage, but that the honour devoUesjure sanguitiis; consequently, a fortiori, where a service shall have been expeded, the Peer is more evidently warranted to take li ■ m m' k ;l >i - li * ActG Ani)n'23, scrt. 9. ' 1 ■ ■.:ir 1 I -.i ij 30 his sent tinion<; his co-peers, provided his title is not cjuestionable l>y aftainder. This right, it has been shewn, may l)e objected to by a competitioi) as to the course of descent; it can also be questioned by the protest of any Lord ; and in both instances, the matter was formerly decided as any other question of civil right, before the Court of Session. If, however, the Peer be not protested against, but has his place and precedence allowed him, the oaths adminis- tered, and his vote received unanimously by the Lords present, he is to all intents and purposes invested in the enjovment of his l*eera<;e honours, as much and as per- fectly as an liii^lish Peer, who shall have taken his seat in the House of Lords under a writ of summons, without counter claim of any other Peer objecting- thereto, or pre- tending better ri^^ht.* There; was a negative power which ought to have been adopted against him ; but the neglect of it, on the well-known ma>viui that "silence, skives consent," nmst be deemed an approl)ation of right, conceded by those who on the occasion were judges com- petent to oppose, or receive him. If any Peer be protested against l)y another or others, he or they protesting nmst make out Iheir case, it being in no instance imperative on the party, against whom the protest is entered, to prove his case. And if the vote, place, and precedence of any Peer be once allowed and recognized, without i)rotest or objection, (even though in error,) it is not competent to any but a bona fide claimant of the title, on a future occasion, to call in question his right, by protest or otherwise. It is only now left on this head to shew, what Lord Stirling has done in the way of voting- at Peers' elec- tions. It must be borne in mind, that having been 1** it * Vide Cliirurtl, Wi!l()ii;;li!ij oiParlium, aiid ollitr ras*.- ' ! I ;n M. Ill (ID ec- kcoii retoured, l)y special scrvico, heir to his iincestor, Loun Stiri-ing hocaiiie entitled to his ancestor's territorial estate, to which his title has been completed by seisin, taken as hel'ore mentioned ; hut that a dignity or title of honour, heing a personal riyht devolving on the heir without a service, the voting at Peers' elections need not necessarily be preceded by a service, though perhaps without it, the vote is more open to objection. On the i2nd of June, 18i25, in obedience to the Royal proclamation, dated at Carlton House, the !20th April, 1825, the Peers of Scotland did assemble at Ilolyrood House in Edinburgh, to choose a representalive Peer in the room of the Earl of IJalcarres, deceased ; and on the great roll of Peers taken at Ihc Union being called over, when the name of the Earl of Stir lino was called, the present Earl " claimed to vote as Earl of " Stirling, as being heir male of the body of Hannah, *« CoUNTKSS OF Stirling, and who died on the 12th " September, 1814; and thereby, under the destination " of a Royal Charter, or Letters Patent of Novo-Damus, " under the Great Seal of Scotland, dated 7lh December, " 1039, granted by His Majesty King Charles First, in " favour of William, Earl of Stirling, entitled to " the honours and dignity of Earl of Stirling ; and " his vote was received by the clerks."* And, curiously 'Enough, the Earl happened to bo the premier Peer present, and consetjuently was the lirst to sign the minutes of the proceedings. On the 2nd September, 18o0, the Peers of Scotland met, in pursuance of the Royal proclamation, to choose six-teen representative Peers ; but the Earl of Stirling, being unable to attend personally at Edin- burgh to give his vote, applied to Lord Lyndhurst, the ;| I 'J * Vide Ap|)(.'inlix, No. V. ■i. ■ I 1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 La 121 |2^ ■^ Ui 12.2 V] W /: '^^Y ^J^ %, M '/ Photographic Sdences Corporation 33 WRST MAIN STRUT WIBSTH.N.Y. 14S80 (716) 872-4S03 o^ t. ' r;. I 32 then Lurd Chancellor uf England, to take the oaths re- quired by law to enable hiin to vote by signed list. Lord Lyndhurst administered the oaths, but declined giving the usual certificate thereof under the Great Seal, until he hud seen the Earl's counsel, who would satisfy him of the Earl's right. This the Lord Chancellor did, and being perfectly satisfied, aflixed the Great Seal to the certificate, und apologised for any inconvenience the delay might have occasioned. At this election, on the name of the Earl of Stirling being called, the Earl of Rosebery (the mover of the Resolutions of 1822, 'after-mentioned) thought proper to make some offensive observations, expressive of his individual opinion of the propriety of Peers claiming dormant Peerages, proving their Mght in the House of Lords ; but as the Earl of Rosebery 's opinion on this matter, is no more founded on justice and fact, than his Resolutions before alluded to are upon law, we may dismiss it, with a reference to the Appendix, where Lord Stirling's answer to it will also be found.* Lord Stirling's vote was received and counted. There was a general election of representative Peers for Scotland also held on the 3rd June, 1831, in pur- suance of the usual Royal proclamation, at which Lord Stirling attended personally, and voted, his vote being received and counted. A protest (or rather desultory observations in the nature of a protest) was, however, entered against the Clerks of Session for receiving it, by the Duke of Buccleuch and Lord Lauderdale ; but it was never proceeded upon, and consequently rather strengthens than prejudices Lord Stirling's case. * Tlio miiMilesof the proceedings at (III J election beins vor\ \ou^, tlie tormal pttrt, and IIkU wliicli relates to Loiu) Stikling indivi- dually, will be found in the Appendix, No. VI. 31} ' .^1 ]< This protest, if it did not origin.ite in political motives, to countervail the influence it might have in operating a majority in favour of, or against, some of the contending candidates, may be considered (for reasons not necessary here to be set forth) founded on personal and private causes, to which it was meant to give an insinuating effect. Had the protesters proceeded upon their protest, Ihey must have made out their case. They knew well tiiat it was incompetent to them to protest against the Earl of Stirling personally. The protest and the answer are in the Appendix. It was particularly stated by Serjeant Wilde, on a late occasion in the Court of Common Pleas, that Lord Stirling's vote was received under protest; the above explanation will shew that to be untrue. The vote was received, and full efficacy given thereto. It may be well to mention that the House of Lords, by ac order of the 23rd A i gust, 1831, required a return to be made to them of " a Copy of the Union Roll " of the Peerage of Scotland, and a List of all those " Peers who have voted at all General Elections since " the year 1800;" — in which return, printed by order of the House, 5th September, 1831,* the Earl op Stir- ling's name appears as having voted in 1830 and 1831, as before mentioned. n 'fc ib» li ! 1 ;«■ ' i. 'r I f it? ,i * Extracts froni this Return will l>o found in the Appendix, No. VIII. u m u 111 ^i : "lll'il'ni; I CHAPTER IV. ON THE ERRONEOUS STATEMENTS BY THE COUNSEL OF THE PLAINTIFF, ON A LATE OCCASION, IN THE COURT OF COMMON PLEAS; — AND IN ANSWER THERETO. 1 i Before entering on the subject to which it is intended to devote this Chapter, it must be observed, that Vice- Admiral Sir Henry Digby, K. C. B., in the month of July last, directed his attorneys, Messrs. Potts and Son, to take steps to arrest the Earl of Stirling, as, and by the name of, " Alexander Humphrys Alexander," upon a promissory note given by the Earl, under the name and style of Earl of Stirling, to the Admiral, for money lent; and upon a b''I ^exchange, drawn by a particular and very intimate fii,..^d of the Admiral, upon, and accepted by, the Earl of Stirling, for the special accommodation of this friend, and, by an acknowledgment in writing (known to the Admiral), undertaken to be provided for by the said friend, when due, accordingly. The intention of the parties was discovered by an accidental search at the Filacer's office, where the prae- cipe of the writ was found. The attorneys* of the ♦ Messrs. Webber and Ulawd, 17, Ely IMcice. X, ,ll I ) . ]\ M< the Earl (>F Stirling immediately wailed upon Messrs. Potts and Son, and explained to tlieni the public status f'f the Earl, the acts of Peeraj't! exercised by their client, in proof of his privilege from arrest ; and laid before them such ollicial and documentary particulars as they deemed sulHcient for the lik*^' purpose. During the deliberation of Messrs. Potts and Son, another parly issued a bailable writ against the Earl, and a bail-bond being given, a summons was taken out before Lord Tenterden, to shew cause why it should not be cancelled, the defendant being; a Peer, and privileged ; wbereup^m, after bearing counsel for Ihe plaintill, and an aflidavit by the Earl read. Lord Tenterden ordered the bail-bond to be can?;elled. A copy of this order, and a formal notice of the principal public acts of Peerage exercised by Lord Stirling, were served upon Messrs. Potts and Son, but all to no purpose, as their instructions were peremptory. These respective communications having proved ineffectual, it became incumbent to prevent the mischief and annoyance so malevolently determined upon ; and to save actual arrest, a bail-bond was executed to the Sheriff, to insure Lord Stirling's appearance at the return of the writ ; and notice of an intended application to the Court, for a rule to shew cause why tlie writ should not bfe set aside, and the bail-bond cancelled, was served on the plaintiff's attorneys, and on the first day of last Michaelmas term, the rule Nisi was obtained. Previously to the motion for making the rule absolute, a warrant of attorney was offered to the plaintiff by Lord Stirling, it being distinctly stated by his attorneys to Messrs. Potts and Son, that the debt itself was not dis- puted, and that it was not the wish of his Lordship to put the Admiral to any unnecessary expense. This offer, liberal as it was, after the insulting proceeding com- menced, was met by the objection, that no warrant of attorney could be accepted, signed by Ihe Earl oi' I) '2 llr I f *: if \ m ■ hi I'k 3G Stirling, but that if Mr. Aluxandkr would give such a security, the proposal would be considered. Thus was there no alternative left to the Earl of Stirling, but an application to the Court to support his privilege; and accordingly, on a motion to make the rule before- mentioned absolute, on the SSud November, Mr. Serjeant Wilde shewed cause against the rule, and on Mr. Ser- jeant Spankie, counsel lor Loud Stirling, rising to reply, the Court being satisfied, gave judgment in favor of his Lordship's privilege, and ordered the bail-bond to be cancelled, but did not set aside the writ, leaving Lord Stirling, if he pleased, to bring the question of his right to the Peerage, de jure, before the Court, by u plea in abatement; which judgment, transcribed from short-hand notes taken in Court, will be found in the Appendix.* On this occasion, Mr. Serjeant Wilde indulged in state- ments (founded, no doubt, on his instructions) as untruo in point of fact, as they were irrelevant in point of law; and no opportunity having been given to Lord Stir- ling's counsel to contradict them in open Court, the language and assertions of the Serjeant, by the report of them in the public journals, have been eminently calculated to produce an equally erroneous impression on the public mind. The principal of these unfounded assertions, were, \stlij. That the Earl of Stirling's vote had been protested against, at the last election of Representative Peers. — This has been explained and answered in the preceding Chapter. 2ndly, That Lord Stirling's claim to sue as Earl 01 Stirling had be^n rejected by the Lord Chan- cellor; and the highest authority in the realm had refused to receive him. * Appendix, No IX. i 37 3*Y//y, That, Loiio Stirling had no right to vote at Peers' elections, accordintr lo tl,e order of the Ifoiisa of Lords, until his claim had been admitted and allowed by that House. And, Lastly, That he claimed the Earldom of Stirling in the female line, under the limitations in a Charter which had no existence ; and if it had, then, that the Dowag:er Marchioness of Downshire had a better and prior right of claim. To this last assertion, a Charier of ample contradiction, and falsification, will be subsequently devoted. In answer fo the second statement of Mr. Serjeant Wilde, it is to be observed, that Lord Stirling a^-reed with a Mr. Maitland for the rental of a house, with the purchase of certain fixtures, &c. contained therein, but in consequence of a dispute arising upon the agreement, Mr. Maitland commenced a suit in Chancery to enforce its specific performance, and prayed the Chancellor to issue the usual letter missive, being the proper notice of such proceeding in that Court against a Peer. This Lor Brougham refused— but on what ground is a natural ques- tion to ask. There was no claim to Peerage set up by Lord Stirling before him, calling for his decision; the Duke of Grafton might as well direct the sealer of writs in Middle Temple Lane, ';> refuse to affix his Grace's seal, to a writ issued against my Lord Brougham and Vaux. When the statement of this fact was made by Serjeant Wilde in Court, INfr. Justice vMderson very appropriately asked, and with surprise, " On what statute does the Chan- cellor decide on the Peerage claims '. " The answer was, of course, "None!" and the subject was very prudently drop|)ed. The conduct of the learned Lord, so hastily and inju- riously adopted, naturally draws to notice some of his celebrated public sneeches, when a Commoner ; and the I ■ i di' .: i m i \\ h 38 Ml' i>r folluwing extract from one of tlM»so flourisliin^ declama- tions, made on i\\v 7th February, 1H:2H, " on the state of the law of Eiuiland" will be read, no doubt, with great interest, as shewing the wonderful variance in the speech of Mr. Henry Brougham, a barrister, and the practice of the Lord Brougham and V aux, the first law-adviser of the Crown. Among other things, he observed, viz. " He " would shew, that it was not true, as was asserted by " some of our writers on the laws of the country, that the " Crown and the subject came into court on equal terms. " The law said they were ecjual — but he would shew that *' they were not, but that in a variety of imoortant cases, ** the subject came into Court under serious disadvantages. *• Blackstone said, that the King could no more seize " the estate of a subject, than the subject that of the King; ** or if the authority of the King were used in taking the " property of a subject, the subject had his remedy by " writ or petition of right, or by monstrans de droit ; for, " said Blackstone, the decent presumption of law was, " that as the Crown could do no wrong, it would, on " hearing the case stated fully, give its direction according " to justice. He (Mr. Brougham) wished the learned " commentator had not left it to be shewn, that all the " alleged equality was a mere matter of fiction. " Now, what he would shew was, that all the alleged " eqimlity, and protection supposed to be derived from the " petition of right, existed only in the books in which " they were mentioned, but undoubtedly not in the prac- " tice of the Courts of law ; for this very writ, or petition " of right, could not he used bt^ the subject without the fat " of the Crown ; and unless this were granted, all the other •* steps taken by the |)arly aggrieved, would only be so " much labour lost. " The granting or withholding of the fiat was in the " breast of the A ttoriiey- General ; and if he should refuse " if, (he party had no remedy hut to impeach the Attorney- :it) " General, and take all the cliaiico of that very uncertain *' experimesit. If might be said, that this was a matter *' which seldom happened; but why should it he left to the " breast of any individual to refuse a writ of this kind? ** The power he exercised, should in this case be merely " ministerial; and the obtaining the tiat for the writ, should " be as much matter of right, as the obtaining any of the " other processes, sutJ out of our law courts," &c. The ingenious, and all-accusing counsellor, condemns the allowance of the petition of right to be left in the breast of the Attorney-General, and claims the fiat as a ministerial act of office, due in course to the individual requesting it. But the exalted Chancellor assumes the arbitrary discretion he denounces in the Attorney-General, and by a super-controuling power, grounded only on his own " Sic volo, sicjubeo,'^ takes upon himself to give a judgment, when he ought to have paused until there was a case for judgment absolutely before him. The motives of the Chancellor, on this extraordinary proceeding, shall pass sub silentio ; but on what ground he could assume the authority exercised by him, is well worthy of inquiry. In the month of January, 1831, the Earl of Stirling addressed a Memorial to His Majesty, praying to be admitted to his Royal presence, in his character of Earl of Stirling; which Memorial was referred to Lord Brougham for his opinion and advice : Lord Brougham reported, that the Earl had had a judgment pronounced against him by the highest autho- rity, and had to his title no pretension of right whatever. It is supposed, that the refusal of the letter missive, and the Report on the reference of the Memorial, just men- tioned, originated in the same erroneous views of Lord Stirling's case — errors which appear the more extra- ordinary, when it is considered, that the case was laid before Mr. Brougham, when a banister, and a favourable opinion actually given by him on Lord Stirling's ) H^ ' j|lL I' 'I if I I' n ^ I) I'u .■ i I I .!■ .r, I J I t ^s II If !i »j'l I i 40 rights ; riglits depending moreover entirely on Scotch law, and therefore particiihirly, it might be fairly inferred, if not attractive, at any rate well understood by Lord Brougham. There has been no judgment pronounced by the highest authority against Lord Stirling; indeed, no judgment by any autliority whatever. The only cir- cumstance that can be alluded to, is, the Order of the House of Lords of 17G2 ;* this will be more fully noticed in the next Chapter ; for the present purpose, it need only be said that General Alexander, who took part with the Americans in the war for their independence, claimed the title of Earl of Stirling in 1760, and on attempting to prove his case in the House of Lords in 17G2, failed therein, and was the immediate subject of the said order, which prohibits the acceptance of the vote at Holyrood House, of any one claiming the title through the Generai. The short pedigree on the next page, will shew the relative situations of the present Earl, and the General — the former being a lineal descendant of the first Earl, and the latter claiming as a collateral, upon evidence got up by fraud and falsehood, for the occasion, through the instrumentality of one equally destitute of just pre- tensions to the Stirling honours and estates, but equally capable of resorting to base and dishonourable means, for the attainment of his object. But of this Gentleman more anon ; for at present sufficient has been said to shew that the refusal of the letter missive, by the Lord Chan- cellor, was an act of injustice — an act sanctioned neither by law nor precedent, bat having its origin in an off-hand, careless impetuosity, little becoming any judicial char- acter, and much less the first law-officer of the Crown. • In the Appendix, No. X. John Alexander. «m Alexander Alexander. David A exander, second Son. Jame!) A exander, second Son, Surveyor-General of New Jersey, died 1756. William Alexander, the Claimant, a General in the American Army, died at Albany, 1783, s. p. M. n I "1 , Countess of Stirling, Wni. Humphrys, Esq. of the Larches, junty of Warwick : died 1814. I i i exander, 9th Earl. •tAL Alexander's descent. *!i' •*l i ft 1^ PKDIGREE-re/Vrrerf^om r Alexander Alexander. Andrew Alexander, of Menstrie. r- William, Viscount Canada, died 163». William, 2nd Eail, died in infancy, a few months after his Grandfather, 1040. Sir William Alexander, Ist Earl of Stirling, died 1G40. I T Sir Anthony, died, 8. P. 1637. Henry, 3rd Earl, died 1644. Henry, 4th Earl, died 1690. Henry, 5th Earl, died, s. p. 1739. WiTliaro, Robert, Peter, Omnes ob. s. p. ante 1739. John, 7th Earl, died unmarried, 1766. ■T- Benjamin, 8th Earl, died unmarried, 1768. Mary, Countess o died unmarri 1794. NoTE.-r/^e black line, trace the proved ffesceftdanis of the First Earl: the dotted line shew, the pri ■"mmt^m l^h:— re/erred to in Pagt M. [£R, Karl, 44. Earl, )0. WiTliain, Robert, Peter, Omnes ob. s. p. ante 1739. John, I'ied 1066. John, died 1712. John, 6th Earl, died 1743. Mary, Countess of Stirling, died unmarried, 1794. Hannah, Countess of Stirling married Wu.. Huraphrys, Esq.' of the Larches, County of Warwick : died 1814. John Alexander. Alexander Aleiander. David Alexander, second Son. James A exander, second Son, Surveyor-General of New Jersey, died 1756. William Alexander, the Claimant, a General in the American Army, died at Albany, 1783, s. p. M. Alexander, 9th Earl. dotted Hm shews the pretended deduction of General Alexander's descent. tr ir '[■■ I 'I 41 It now may be relevant to state the right of the Earl OF Stirling, to vote at the Peers' elections, without going before the House of Lords for allowance of dignity, under the Resolutions of 1822. It must be borne in mind, and cannot be too often repeated, that the laws of Scotland have provided services of heirship, as the only means by which an heir can connect himself with his ancestor; and that by these legal forms. Lord Stirling has proved himself, by the verdicts of four Juries, to be heir of succession to all he has claimed, and consequently entitled to the honours he has assumed. These laws have also provided, that while the special service is the principal act to found the right of heirship, so seisin following the service, is the acces- sory act to complete the title to the lands claimed ; and thus, by having gone through all these forms, the Earl OP Stirling has become invested with, and sustained in, the right to possess all that he has shewn to be claimable, under the several and respective services before-mentioned. For explanation of the Resolutions of the House of Lords, by which, as it is erroneously stated, the Earl of Stirling is affected, it may be proper to say, that they were moved by the Earl of Rosebery, and stand thus, on the Journals of the House of Lords — viz. " Die Veneris, 3rd Maii, 1822. " Moved to Resolve — That no person, upon the decease of any Peer or Peeress of Scotland, other than the son, grandson, or other lineal descendant, or the brother of such Peer, or the son, grandson, or other lineal descendant of such Peeress, shall be admitted to vote at the election of the sixteen Peers, to be chosen ti sit and vote in the House ot Lords of the United Kingdom of Great Britain and Ireland, as Represen- tatives of the Peerage of Scotland, or at the election ! f ' ill , H V, 11: I \ ■WW M %-\ I'i ! n 42 ** of any one or more such Peei», to supply any vacancy ** or vacancies by death or otherwise, until, on claim " made in behalf of such person, his right of voting " at such election or elections, shall have been admitted ** by the House of Lords." *' Moved to Resolve — That the right of every person " voting or claiming to vote, or having voted or claimed " to vote, at any election of the Ameers of Scotland, shall *' be subject and liable to every objection to which the ** same would have been subject and liable, had the fore- *' going Resolutions not been agreed to." Now, how do these Resolutions accord with the law of Scotland, as before set forth? They are directly at variance with its provisions, and can only be taken as a sample of the individual opinions and wishes, of the noble Lords forming the n^njority in favour of their adoption. They are Resolutions (affecting Scottish inheritances) of one branch of the Legislature, which possesses in its own con- stitution no power or authority by the law of the land, to make orders, which should render it imperative on a Peer of Scotland, to subject his pretensions to its examination, unless they have been specially referred to it by the Sovereign, or come before it upon appeal from the Courts of original jurisdiction. Can one branch of the Legisla- ture give authority to Resolutions, affecting civil rights which are secured by a solemn Act of the whole Legisla- ture, without the consent of the other two branches, so as to have the force of a disfranchising law ? If it cannot — and who will assert that it can?— the Resolutions of the House of Lords, above set forth, must be a nullity, without the requisite constitutional sanction, to give it efficacy, and the force of law ; and deficient in authority neces- sary for commanding obedience to the new regulations, which it purports to introduce, and altogether unavailable to effect any change that can legitimately touch the rights of the Peers of Scotland, as they were secured 43 by the laws, customs, and usa*:fes of that Kingdom, established at and before the Union, and as they still remain, unaltered by the Parliament of Great Britain. It has been contended,* in answer to these arguments, that by the Act of Union, " all Peers of Scotland, and " their successors to their honours and dignities, shall, *' from and after the Union, be Peers of Great Britain ;" and that the question is, therefore, whether, on their becoming Peers of Great Britain, and partaking of the privileges of Peers of Great Britain, they are not ** bound by, and subject to, such rules and regidations, " which from time to liUie may be made for the due main- " tenance of the rank of the Peerage, and the jfurity of *• their order.'' This is, indeed, a forced construction of the Act of Union. That Act was final; that is, on the subject before us, there was no reservation, or any allu- sion to any " rules and regulations," to be subsequently imposed. The law and practice of Retour prevailed before the Union, and at that period were confirmed ; whereas, the Resolutions in question, clearly point out a proceeding in supercession of services. *' Rules and regulations," for the maintenance of the " purity of the order," may be very necessary ; but one branch of the Legislature cannot constitutionally have the power of making such, in abrogation of statutory enactments. It is curious, and may be cited as a high authority, that the Lord Chief Justice Tindal, on the late occasion in the Court of Common Pleas, in giving judgment, said, that the Court could not judicially notice these Resolutions, or engraft them on the Act of Union, upon the provisions of which they seemed to him to entrench. And why, we ask, could they nut be judicially noticed? Because the law of Scotland and these Resolutions are i>k I-: Ai^ '/ 1 I , \ ' .' 't ,1* It '! * Law Majiazinr, No, 10, Art. (i. w 44 at variiince ; and the former lias precedence, having been confirmed by the three powers, whose sanction is required by the Constitution to enact laws, while the latter are in fact founded merely on the caprice of one of those powers. Some individuals claiming Scotch Peerages, studying tlieir own convenience, may, it is true, apply at once to the House of Lords for recognition and confirma- tion ; but that is no ground for an order, rendering it im- perative on all to do so. If, from the continued reso- lution of the Earl of Stirling, not to admit of any authority being vested in the House of Lords to inter- fere in this respect, weakness in his case, or fear as to the result, be presumed, this pamphlet will, it is confidently believed, remove such an impression from the mind of every unprejudiced person. To go to the House of Lords for confirmation of title, now, would be a dereliction of duty on the part of Lord Stirling, and a throwing of doubt upon his own Peerage character, by himself, who has done so much to establish it. Besides, of what is a Committee of Privileges composed — before whom Lord Stirling would, in that case, lay his rights for confirmation and allowance \ It is composed of Lords, (the Chancellor among the number,) not impanelled like a Jury, and sworn to decide upon evidence ; but who give their voice, neither upon oath as Commoners, nor upon their honour as Lords — who are not bound to be present during the whole, or any part, of the time of the investi- gation of the case, and may only attend on the very last day, when the Resolution of the Committee is to be declared— on which occasion, according to influence, interest, part^ connexion, or private friendship, or accord- ing to spleen, party feeling, jealousy, or personal pique, they may resolve for or against the claim, never having, even on one day before, heard the arguments of counsel, and their learned expositions of the merits and demerits of ^ I 4.1 the case in question. Tlie following extracts from different Reports made by " the Lords' Committee appointed to " inquire into all matters touching the dignity of a Peer " of the realm," are worthy of insertion : — In their Report of the 13th June, 181(5, is the fol- lowing: — •* In pursuing this investigation, the Committee '• have found contradictory assertions of law; and when " facts have been asserted, as evidence of law, they have ♦' found such assertions of facts to have been, in some " cases, false, in other cases, founded on mistake, and •• frequently made without reference to any sufficient " authority; the Committee ha^e, therefore, been induced " to apprehend that the whole subject has long been in- •' volved in great obscurity, and that probably in some " cases, the House has proceeded without proper infor- " mation — that the Crown, in the exercise of its preroga- " tive, has not always been fully instructed— and that even " the whole Parliament has given the sanction of legis- " lative authority, where it may be doubted, if rightly " informed, that sanction would have been given." And in the Report of 29th June, 1821, is the fol- lowing : — " Some of the proceedings have evidently been " had without proper information—some, perhaps, in- " fluenced by personal, or party motives — and many " adopted vithout that attention to former proceedings, " which was necessary to ensure consistency." Independently of these general considerations upon the Resolutions of 1822, they cannot apply to Lord Stir- ling, on any particular grounds. They only relate to persons claiming collaterally; whereas. Lord Stirling is the son of a Peeress, and grandson of a Peer, and therefore takes his title, as in a course of lineal descent, prior to the Resolutions of 1822. Besides which, in a preliminary proceeding in the Court of Session in Scot- land, instituted for the recovery of extensive property, his «:| i4 m i .' V "i'l 40 i if t !. right to sue as Call of Stirling was opposed by the officers of state, on behalf of the Crown, who argued that he had not proved his title before any compete it authority, and that by the Resolutions in question, he ought to go to the House of Lords. The thirteen Judges of that Court, however, without considering the invalidity of the Resolutions on general grounds, decided that they did not apply in the present case, and sustained instance (suit) in the name of the Earl of Stirling.* The difl'erence in the conduct of the J udges of the Court of Session, as above, and of the Court of Common Pleas, on the late occasion, is worthy of notice. The former did not, on general grounds, object to the Resolutions of 1822 ; whereas, the Lord Chief Justice Tindal, on behalf of the latter, as before observed, said, that they appeared to him to en- trench upon the Act of Union. At the ei.^ction in September, 1830, on the signed list of the Earl of Stirling being tendered, the jz-arl of Rosebery. as mover of the Resolutions in question, made some extraordinary observations, (before alluded to,) which will be found in the Appendix, as well as the answer to them, entered by Lord Stirling's agent. But what did these observations amount to ? Nothing but the in- dividual opinion of the utterer, on his own idea of the propriety of claimants previously proving their right in the House of Lords. It is noticeable, that Lord Rosebery did not protest against Lord Stirling's vote; indeed, he knew he could not, consistently, it having been received (as he observed) on a former occasion, and he acknow- ledged his Resolutions did not apply thereto. In conclusion, it may be stated, that since the Union, the right in all the Peers of Scotland (devolving, or Appendix, No. XI. 47 ascertainable, as the case may be, in manner belbrtvmen- tioned) of exercising the Peerage privileges, has consisted in obeying the Royal proclamation to attend at llolyrood House, on the day of election of the sixteen Represen- tative Peers, at a general election, or on a vacancy occurring by the decease or disability of any of the six- teen — the Royal proclamation on this occasion being greatly similar to the writ of summons of an English Nobleman to Parliament. If he take his seat by virtue of it, (of either, we may say,) though in error, his title is acquired. '"' !«t 4 M i! ( u J; 1 m ^■,' '4 H ]^i m f ^'1 '» >\ ■ CHAPTER V. % : Jii ON THE PIIETENSIONS OF TilE DOWAGER MAR- CHIONESS OF DOWNSHIRE, TO THE STHtLING TITLES AND JISTATES. L i 1 This Chapter is devoted to the consideration of the pretensions of the Dowager Marchioness of Downshire, to the Stirling titles and estates, from a necessity of exposing to t'iC public, the falsity of the representations, made by her, or her agents, of her being the heir female, in priority to the present Earl, and of shewir^- the utter destitution of any right of inheritance in that character vested in her, either under the Charter of Novo-Damus, so insidiously attempted to be questioned, or under any other charf'cter, or in any way of law whatever. This explanation has become the more imperative, as those representations were repeated in the most un- warrantable manner, in the case previously mentioned before the Court of Common Pleas. In a preceding Chapter, a recital has been given of the Charters granted to Sir William Alexander, of date 1621, 1625, and 1628, which shew that the limi- 49 taiion of the property granted by each, was tlie same, viz. to Sir William Alexander, " heredibus suis '• et assignatis quibuscunque hereditarie." Now, the eft'ect and meaning of this limitation have, according to the Scotcli law of descent, always been held to carry the enjoyment of the subject limited, in the first instance, to the heirs male of the body of tiie original grantee, whom failing, to the heirs female of the last heir male, in a similar course of succession.^ By a Patent under the Great Seal, dated 4th Sep- tember, 1630, 'ving Charles the First conferred on Sir William Alexander the titles of Baron Alexander, of Tullibodie, and Viscount of Stir- ling, to hold to him " suisque heredibus masculis," &c.; and afterwards, by another Patent under the Great Seal, dated at the Palace of Dalkeith, the 14th June, 1633, created him Earl of Stirling, and Viscount Canada, &c. with limitation to him, "suisque heredibus " masculis in perpetnum cognomen et arma de Alex- " ANDER gerentibus." On comparing these limitations, with those in the Charters of tlie lands, it will be seen that the American property, was granted to a more general and extended series of heirs, than the titles, which were confined to heirs male alone. This diversity, at first, probably attracted little or no observation; but afterwards, when the First Earl, from the death of his eldest, and two other sons before him, and the precarious state of health of those still surviving, perceived that at no distant period, the honours and estates might become separated, and the former pass into even the most distant collateral male branch of his family, not emanating from himself, this subject seems to have excited his attention ; and he accordingly, to "Bi-. Jii di A H-li i (,^' n M ■:' 1 1 * Vide Polworlh case, coram Dom. Proc. E "tii: I ill ••'(' I ,' 50 ensure their joint descent to the same line of heirs, made resignation thereof (as was a practice tlien very common in Scotland) into the King's hands, for the special purpose of a new grant to that effect; and His Majesty King Charles the First was pleased, by a Charter under the Great Seal, styled a Charter of Novo- Damus, dated 7th December, 1G39, to confer them de novo " antedicto "WlLLiELMO, CuMlTi DE STIRLING, et heredibus " masculis de corpore suo; quibus deficientibus, here- " dibus femellis natu maximis sine divisione ultimo " talium heredum masculorum et heredibus masculis de " corporibus diet, heredum femeilarum respective pro- " creandis, cognomen et arma de Alexander geren- " tibus, quibus omnibus deficientibus, propinquioribus ** legitimis heredibus quibuscunque dicti Willielmi •* CoMiTis DE Stirling, cum precedentia, a decimo " quarto die mensis Junii, anno Domini millesimo ** sexcentesimo trigesimo tertio," &c. Which limitation, in point of legal meaning, is precisely the same as that contained in the Charters of 1G21, 1625, and 1628, as before-mentioned, and comprised in the words •' heredibus ** suis et assignatis quibuscunque hereditarieJ" Thus, the Earl op Stirling's right to the American property is the same, either under those Charters specially granting it, or under this Novo-Damus, or regrant thereof; and his title thereto, under the destination in question, has been ascertained by the retours before described, and completed by the seisin taken th^ireon. The value of the Novo-Damus. therefore, with reference to the estates, is comparatively of no consequence. Its importance is to be considered only as to relimiting, or rather extending, the line of succession to the Peerage honours; but even the r.ght to these may, on other grounds peculiar to the Scotch lawS, be sustained, as the contents of the next Chapter will more explicitly manifest ; — but as the originality of the Novo-Damus has I- $\ been questioned, it is somewhat material to be shewn, in answer to those who assert that no Charter of this kind ever existed, that such assertion is a fabrication, in- vented for sinister purposes, to serve the object of a particular individual. In tracing the descent uniler this Charter, it must be distinctly observed, that it is only as it may apply to the Stirling honours— as the American and Scotch lands would have descendea to the same course of heirs, equally witli, or without that Charter. It has been shewn what the limitation of the Stirling honours was by ihe Patent of 1633, and what by the regrant of 1639, which is denied ; — but an inspection of the Pedigree will manifest under which limitation the heirs of the First Earl took the title ; and if it is found that the succession was allowed, through the persons of several heirs, to be guided by the latter, it must prove incontestably that such a Charter was mattar of notoriety in the family. The First Earl died in February, 1640, and was suc- ceeded by his infant grandson, only son of his deceased eldest son, William, Viscount Canada, which said William, the second Earl, survived his grandfather scarcely six months, when he died under eight years of age, leaving his three sisters his co-heirs, o^' heirs por- tioners at common law,* »*. e. such heirs who would have been entitled to have divided his estates, had they not been limited by a tailzie, or entail, which cut them off, and gave the right of inheritance to their uncle, Henry, on whom thev devolved, and who thereupon became the Third Earl. ' This Henry, the Third Earl, (who was the eldest surviving son of hie father, the First Earl,) married a n H !• •» I: 'i ' Vide Pedigree, Tab. I. in the Appendix. E 2 i'. f^-^'f r>2 lady of considerable fortune in £ngland, and settled there ; whereupon, some of his father's creditors in Scotland, by reason of his having been a cautioner for him in various securities given to them, not considering themselves to be able to make legal proceedings against him, as residing out of the Kingdom, without consent of Parliament, presented a petition for leave so to do ; and it is worthy of remark, that in the petition, they described him thus, viz. : " Harik, Earl of Stirling, son and •* heir male of Tailzie and Provision, to umquhile WiL- " LiAM, Earl of Stirling, his Father and Brother, " and heir male of Tailzie and Provision to the said ** William, Lord Alexander," &c.* This clearly points out that the creditors were aware of the Charter of Novo-Damus, and of its limitations, connecting the estates with the title ; for there is not any record of any entail of the whole of the Stirling estates to warrant such a description, excepting the Charter of Novo- Damus. Hence there is a well-founded ground, to as- sume that the entail, or tailzie, contained in the Charter, could be the only destination referred to. For had this Charter not been upon the roll at that period, the creditors could not have acquired this information, to have set forth, so as in any way to have described the said Harir, Earl of Stirling, in the character of heir male of tailzie and provision. Against the petition to Parliament just mentioned, other creditors remonstrated, and the Parliament appointed a Committee to take into consideration the circumstances. This Committee met, adjourned, and met again ; but no resolution appears to have been made by tliem; and the Acts of Parliament do not further notice the subject. This circumstance is the more noticeable, as the appli- • Scotch Acts ol" Paiiiament, Vol. V. p. 403, et scq. ll iM'! r,3 ration of the creditors, in charging Earl Harir, as heir male of tailzie ami provision (in the very terms of the Charter of Novo-Damus) not (mly to his father, the First Earl, but to his eider brother, the deceased William, V'scount Canada, puts upon the journals of Parliament ihe fact of the notoriety of the Charter ; for otherwise the Earl might have rebutted the charge;-by asserting that though he was Earl, he was not heir in the character set forth, to the estates; but that his nieces were the heirs at law in point of blood, as well of their brother, as of their father, William, Viscount Canada, and of their grandfather, William, the First Earl ; and that there had never been any tailzie of the Stir LI NO estates. He, however, allowed the creditors to make apprisings of the Scotch estates, without inter- posing any demurrer ; but, as heir male of tailzie and provision, he held possession of such part of the American property, as was not then in the usurped occupation of the French, and of which property he died seised in 1644, being succeeded therein by his only son, Henry, the Fourth Earl; which Henry, the Fourth Earl, died in 1690, having had four sons, whereof William, Robert, and Peter, the three youngest, died without issue, before 1730, and the eldest, Henry, became the Fifth Earl. He resided in England, where he died in 1730, without issue, and was interred in the chancel of Binfield church, in Berkshire.* By this Nobleman's death, the whole of the male line of the eldest sons of William, the First Earl of Stirling, became extinct, and the course of succession vested in the Reverend John Alexander, grandson and heir male of John, the fourth son of William, First Earl of Stirling ; which said John, having been If; • , * Vide Appendix, No. XII. Vf' I > , 54 joined with his father in various pecuniary engagements, for money borrowed to promote the colonization of the American settlements, was, upon his father's decease, obliged, from the prosecutions of his creditors, to leave Scotland ; whereupon, taking with him his only son and heir, John, (whom he had by Agnes, daughter and heiress of Robert Graham, Esq. of Gartmore,) he went into Ireland, where his mother, the Countess Dowager OF Stirling, was then residing, as also his sister Jane, who had married the second Viscount Montgomery, of Ardes.* He afterwards died in Ireland, in 1G(3G. From the Montgomery MSS. it appears that the same Honourable John Alexander, and his two elder brothers, Sir Anthony Alexander, and William, Lord Alexander, were present at the grand funeral of the First Viscount Montgomery, at Newton Ardes. This intimacy, with the near connexion of the parties, naturally led to the subsequent domiciliation of this branch of the family in Ireland. Indeed, the respect entertained by the Third Viscount Montgomery (son of Lady Jane Alexander) for his mother's family, was so great, that when he was afterwards advanced to the dignity of an Earl, he chose the title of Mount-Alexander, in remembr"*'.ce of his descent from that distinguished house. John Alexander, only son of the aforesaid Honourable John, of Gartmore, was afterwards of Antrim, and was married at Donaghedy church, in May, J 682, to Miss Mary Hamilton, by whom he had two daughters, and one son, who was born on the 30th September, 1686, imd a few days afterwards, was baptized by the name of John, by the Rev. Mr. Livingston. This last-named John Alexander, the present Earl's^ • Vide Montgomery MSS. ^ ► oo grandfather, at the period of succeeding his cousin in 1739, and becoming Sixth Earl of Stirling, was Minister of the Scots Presbyterian Congregation in Plunkett-street, Dulilin, where he was particularly dis- tinguished for his high literary attainments, and profound learning. He was married in England, at the parish church of Hartlebury, in the County of Worcester, by licence, on the 8th day of August, 1732, to Hannah, daughter of the Rev. John Higgs (who was grandson of Dr. Griffith Higgs, Dean of Lichfield in the time of Charles the First) : by her he had many children, whereof only two sons and two daughters lived to years of maturity. Here it may be relevant to remark, that the Rev. John Alexander (just mentioned) being in his life-time heir presumptive to the Stirling honours, provided his second cousin, Henry, the then Earl, should die without issue, (which, by reason of his age and inBrmi ies, was to be expected,) employed, in the early part of the year 1723, his friend and agent, Mr. William Gordon, an eminent genealogist, who resided in Scotland, and was represen- tative of Mr. James Gordon, Keeper of the King's Signet in that Kingdom, who had married the first Earl of Stirling's niece, (name'.y, the only daughter of his brother, Andrew Alexander,) to furnish him with certain information and particulars regarding his family, and their great estates ; and in consequence of the com- munications made by Mr. Gordon, he afterwards employed Mr. Hoveuden, a person of eminence, knowledge, and fortune-, in the Kingdom of Ireland, to make application to Mr. Conyers, of Catherlough, in the County of Carlow, tc give up to him, the Rev. John Alexander, the original Charter of Novo-Damus of 1639, then in his custody, and which had been deposited by the Countess of Mount- Alex- ander, in his (Mr. Conyers') father's hands, in trouble- some times, for safe keeping. Mr. Conyers permitted I 'Hi ' R ^ h '/ f. »■ ■IP I " i r.. ii-* 1 1 r)(> Mr. Hovenden to read and examine it, bnt declined to give it up, without the consent of the then Earl of Mount- Alexander. Mr. Hovenden thereupon compared hi» excerpt of the limitations, with the original, and Mr. Conyers, in his own handwriting, certified the same to be correct.* The connexion between the Mount-Alexander and Stirling families has been explained; and the whole proceedings of Mr. Gordon, Mr. Hovenden, and Mr. Con- yeis — that is, the genealogical statement of Mr. Gordon ; the extracts from the Charter in question, certified by Mr. Conyers to Mr. Hovenden, with the deposition of the latter, of his examination of the extract with the original ; and Mr. Conyers's account, how the same Charter came into his possession — properly and legally authenticated, are now in the hands of the present Earl, and must fully satisfy even the most incredulous, of the truth of the grant of the Charter of Novo-Damus of 1639, and of its existence in 1723, though the fact is so indus- triously attempted to be denied by those who have a sinister purpose to answer at the present day. After the death of Henry, the Fifth Earl, in 1739, and the succession to the family honours by the Reverend J. Alexander, this Charter was given up to him, with the consent of his cousin, the then Earl of Mount- Alexander. But as he found on his succession, that the estates in Scotland, which had been apprised by the creditors of the Third Earl, as before mentioned, were not so promptly attainable as to enable him to support his high dignity, and that the property acquired in England, by the marriage of his great-uncle, Henry, the Third Earl, with the heiress of Sir Peter Vanlore, and which he considered he ought also to have inherited under a deed of settlement, • Vide Appendix, No. Xlll. 57 had been taken possession of by the family into which the sisters of his cousin, the deceased Earl Hen'^.y, had intermarried, he therefore chose rather to decline tlie immediate and public as-imption of his rank— although in Scotland, as also among his friends and intimate acquaint- ance elsewhere, there are proofs that he was well known and reputed as Sixth Earl of Stirlj ng. The time he superlived the last Earl (only three years and eleven months) was too short to enable him to prosecute with effect those leg.i proceedings which were necessary to be adopted, to obtain possession of his ancestral estates in Scotland or America, or of *he --ttled ones in England. Nevertheless, he collected every proof, with the evi- dence of Royal Charters, wills, and other documents, adequate to establish the clearness of his right, when he might think fit to assert it. But illness and death prema- turely deprived his family of their protector, and cast all his affairs into confusion. He died at Dublin, 1st Nov. 1743, and was there interred, leaving his widow and four children surviving him,* the eldest son being under eight years of age. On her husband's death, his widow (having only a limited income) retired, along with her children, into England, to reside there among her own relations. On this occasion, she brought with her the original Charter of Novo- Damus before-mentioned, and a variety of other valuable documents relative to the family honours and estates, which afterwards were stolen, or in some extraordinary manner abstracted from her custody, as supposed by some servant or agent of Mr. William Trumbull, who, from the circumstances hereafter detailed, there is the greater reason to believe, was strictly the principal contriver of the scheme, and who, with Mr. Lee, had a certain interest therein, provided the issue of the Honourable John 11 «■■ ' if j I. Ml rti i; Vide Pedigree, Tab. I. in the Appendix. 7 ;f -rCf 58 \h \\ li Alexander could have been got rid of, and Mr. Alexander had never come forward. John, the eldest son and heir of the Reverend John Alexander, the Sixth Earl, de jure, like his father, was a learned aud distinguished Presbyterian clergyman, but died suddenly, unmarried, the 29th of December, 1765, being then only in the 30th year of his age. He was the Seventh Earl, de jure, though he did not assume the title, on the same grounds as his father had tem- porarily declined it. He was succeeded by his only brother, Benjamin, a person of eminent acquirements, who was rising into great public estimation as a physi- cian,* but died before he took up the title, which he had intended to do; he only survived his elder brother, John, about three years, and deceasing unmairied in April, 1768, he was the last heir male of the body of his Great- great-great- Grandfather, Sir William Alexander, the First Earl. — Ha\ing thus traced the descent of the Stirling honours into the family of the present Earl, it becomes here requisite to expose to public notice, the history of those persons, who, prompted by motives of ambition, or avarice, came forward to take advantage of the dormancy of assumption of the Earldom, by the family truly entitled to it, and by a bold measure endeavoured to acquire the said title, together with such parts of the property as appeared to them capable of being obtained, considering that influence and connexion might overcome right and justice. To carry this plan into effect, one William Alexander, a gentleman born in America, and at that time Surveyor- General of the Crown in New Jersey, came over to England, and entered into an agreement with Mr. William • He publislicd a translation orMorgafyiii's work, on "Ihe Causes and Seals of Disease iliscovered by Anatomy." ►..A . 4 I o9 I Trumbull and Mr. Phillips Lee (the former of whom will hereafter be more particularly mentioned), the nephews of Henry, the Fifth Earl of Stirling, by his sisters, Judith and Mary, to mutually assist each other, and divide the estates. In furtherance of their collusive design, Mr. Alexander addressed a letter to Mr. Trumbull, dated New Portugal- street, November 9th, 1759, from which the following is an extract,* viz. :~" Whether the right to the claims •• which the heirs of tlie first Earl of Stirling have •* in America descend to his heirs-at-law, which would be •• yourself and Mr. Lee, or whether they descend to his " heir male, which I contend to be, I cannot tell ; but, " from «oiitc circumstances, 1 should tliink it doubtful. " However, I think it would be better for us all to act " jointly in any application that is to be made for the ** recovery of those rights ; and I am willing to come " into an agreement with you and Mr. Lee about the *• matter. I will agree that whatever may be recovered " shall be divided, one-half between you and Mr. Lee, " the other half to myself. I shall be glad you will com- *' municate this proposal to Mr. Lee, and to have your " and his answer as soon as convenient." To this letter Mr. Trumbull returned an answer, dated East Hampstead Park, 13th December, 1759, viz.f " I «end you a copy of my cousin Lee's letter in relation ** to your proposal in your letter of the 9th of November " last ; and as he is very willing, so am I, to come into the " agreement you proposed. I have therefore now sent •* you up all the writings and papers I have relating to " our North American aliairs, as well as a book of SiR " William Alexander's correspondence, while he ir '.M fi> j :¥ ' I' * Vide Appendix, No. XIV. i VWe Ap|>endix, No. XV. 'Ht Ik GO •' was Secretary of Slate for Scotland. I think a proper " agreement should he drawn up for us all to sign, which " I desire the favour of you to do." To this letter is attached a list of the papers, &c. sent, viz.: — Eleven parchments, marked A. from 1 to 11. Eleven papers - - B. from 1 to 11. Twelve ditto - - C. from 1 to 12. Twenty-eight ditto - D. from 1 to 28. A parchment book - E. Here, then, is a brief statement of the contract between these persons, wherein it is very easy to see on what grounds they severally considered themselves to have some pretensions, though it was not possible for either to make out a distinct right. Mr. Alexander, on his part, had to rest on the Patent of 1633, by which the title of Earl of Stirling was limited, as before described, to the first Earl, " suisque " heredibus masculis in perpetuum, cognomen et arma," &c. —Now, in order to form any claim thereto under the said Patent, he was obliged to assume that all the male issue from the present Earl's Great-great-Grand- father, John, the fourth son of the First Earl, had failed ; and accordingly, that as no issue male of the body of the First Earl remained, he, Mr. Alexander, by pretence of a descent from some uncle of the First Earl, was then the heir male of the family. But at this time (1760) there had been no decision whether the limitation of a Peerage dignity, " heredibus masculis," carried the succession to any males other than the male descendants of the body of the person first ennobled; and as Mr. Alexander had only a remote collateral line from which to urge a claim, he found he must go to the House of Lords for allowance of dignity, where several other claims, on similar grounds, were depending. Mr. Alexander's letter to Mr. Trumbull, states the doubt which he entertained, as to [ V-; 01 who were the right heirs to the First Ea RL of Stirling ; that is, whether they in the female, or himself in the male line. This further doubt evidently arose from the con- struction which was to be put upon the limitation in the Charter of Novo-Damus of 1639, of which it would seem one of them had possession, and all of them the know- ledge. Under this limitation, Mr. Alexander was doul)t- ful, as he could not shew himself to be a descendant of the body of the First Earl, whether Mr. Trumbull or Mr. Lee would not stand in a preferable character to him- self, as being heir male of the body of the heir female to Henry, the Fifth Earl, who died in 1739;— while Mr. Trumbull and Mr. Lee were under similar doubts, that so long as any male of the family remained, the female suc- cession could not take place in favour of them or either of them. Hence the agreement in question between the parties. The notoriety of the terms of this Charter of Novo- Damus, would appear to have attached to them all ; and probably to Mr. Alexander, even before his proposal to Messrs. Trumbull and Lee, from his having seen its copy in the many grants made by James Farrett, agent to the First, Third, and Fourth Earls of Stirling, to divers settlers on Long Island, and other parts oi" America. That the original Charter, abstracted as beforemen- tioned, got into the possession of Mr. Alexander, seems manifest, from a very interesting circumstance which occurred after he had taken upon himself the title of Earl of Stirling, but before his application to the House of Lords : — Walpole, in his Anecdotes of Paint- ing,* under the head Norgate, says, " The warrant for " restoring the use of the old English March, which I * Vol. II. p. 19. 1} I ^ k \n. i|. . A I ^' I f 02 ' have set forth in the Catalogue of Noble Authors, was * illuminated by this person (Norgate) ; but the best * evidence of his abilities, is a curious Patent lately dis- ' covered. The present Earl of Stirling (that is, ' Mr. Alexander) received from a relation an old box of * neglected writings, among which he found the original * commission of Charles the First, appointing his Lord- ' ship's predecessor, Alkxandkr, Earl of Stirling, ' Commander-in-Chief in Nova Scotia, with a confirma- ' tion of the grant of that Province, made by James the * First. In the initial letter are the portraits of tJie * King sitting on the throne, delivering the Patent to the ' Earl ; and round the border, representations in minia- ' ture of the customs, huntings, fishings, and productions * of the country — all in the highest preservation, and so * admirably executed, that it was believed of the pencil * of Vandyke ; but as I know no instance of that master ' having painted in this manner, I cannot doubt but it is * the work of Norgate, allowed the best illuminator of * that age, and generally employed, says Fuller, to make ' the initial letters of Patents of Peers, and commissions ' of Ambassadors." Norgate was Windsor Herald, and Clerk of the Signet to King Charles the First, whom he attended in 1640. He was appointed Windsor Herald in 1633, and soon after, illuminator of Royal Patents. From the date of his appointment of illuminator of Royal Patents, it must be clear that the Charter mentioned by Walpole could not be before 1633, but must have been one after that time. The Charters of Nova Scotia granted to Sir William Alexander, were long prior co that period, and do not partake of any illuminated representations, as here described. The one alluded to, then, could only be the original Charter of Novo-Damus of 1639, in which all the previous grants were recited and reconfirmed; while the account given to Walpole, that it was found in an 'I '> '. old box of neglected v)ritings, received from a relation, corresponds with Mr. Trumbull's letter, already cited, of his having sent to Mr. Alexander (titular Earl of Stirling) the very identical box, with the writings or papers enumerated in that letter. Thus it may be assumed, that Mr. Alexander, by the means before noticed, became possessed of this Charter of Novo-Damus, and other important documents. In furtherance of his design to substitute himself as heir of the title, and reckoning upon the influence of the Earl of Bute, and the powerful connexion of the Trumbulls, Mr. Alexander presented a petition to the King in 1760,* setting forth the Patent of the 14th of June, 1633, by which William, the First Earl, was so created, with limitation to his heirs male general, without restriction, and representing that he was the heir male of succession, being descended from John Alexander, the uncle of William, the First Earl. This petition was referred to the Lords on the 2nd May, 1760 ; and a second petition, in the same words, was referred again to the Lords, the 14th April, 1761. f But Mr. Alexander was unable to prove the descent he had selected ; and his agents could not take upon themselves to adduce the satisfactory evidence required by the Lords' Committee for Privileges; and the House thereupon came to the Resolutions of the 10th March, 1762, % whereby their Lordships ordered that " the said William Alexander, or " any claiming under him, shall not be admitted to vote " by virtue of the said title, in the election of any Peer of " Scotland, to sit and vote in this House, pursuant to " the Articles of Union," &c. Thus was injustice defeated, and the rights of the present Earl's branch of the family protected. * Journ. Dom. Proc. I 11)1(1. c( ut 5npra. t Ibid. iir i: w Vi '■■A G4 n I I ; li Mr. Alexander afterwards retired to America, wliere he was one of tiie Generals of Congress against the British arms. lie died at Albany, in North America, in 1783, without leaving any male issue.* After what has been related, it can scarcely be asked if the present Earl is descended from the said Mr. Alexander. The refutation is clear : the Pedigree shews his descent from John, the fourth son of the First Earl, while Mr. Alexander only pretended to be derived from John, an uncle of the First Earl ; but whether he really came from the line he chose to date from, or where he came from, or who he was, ceases to be a point of any interest — as, by his death without issue male, every pre- sumption or pretension of the Peerage inheritance terminated with him. This minute history was necessary to be given, previ- ously to touching upon the unfounded priority of right assumed by the Dowager Marchioness of Downshire to the Stirling honours. As has been stated, Henry, the Fourth Earl, was succeeded by his eldest son, Henry, the Fifth Earl, who died in 1739, without issue, having survived all his brothers, who had died in his life-time without issue ; and was succeeded by John, the Sixth Earl, the grand- son of John, the fourth son of the First Earl. Henry, the Fifth Earl, had three sisters, whereof Mary married Phillips, Esquire, of Binfield ; Judith married Sir William Trumbull, Knight ; and Jane died unmarried. Mary had a son by Mr. Phillips, being tlie very Mr. Phillips Lee before mentioned ; and Lady Judith had a son by Sir William Trumbull, being the very Mr. William Trumbull, also before mentioned — which gentlemen were the two co-operators with Mr. Alexander. * See his allowed dcsoent, Appendix, Pedigree Tab. II. f 'f This Mr. Trumbull married the danfthter and co- heiress of Montague. Viscount Blundell. by whom he had a daughter. Mary, who married the Honourable Colonel Martin Sandys, and had issue the present Most Honourable* the Dowager Marchioness of Downshire. Let this Lady's pretensions be now examined :— First as to the Patent of 16J33 to heirs male, it is quite certain the Marchioness cannot be entitled under that descrip- tion—Secondly, as to the Charter of Novo-Damus. under which she would pretend a claim as heir female- the limitation is (as already cited) to] the heirs male of the body, whom failing, to the heir female of the last heir male, and the heirs male of the body of the last heir female, &c. Supposing Hjinry. the Fifth Earl, to have been the last heir male of the body, his eldest sister. Mary, would have been his heir female, and her son, Mr. Phillips Lee, the heir male of the body of the heir female. And supposing Lady Judith had been the eldest sister of the Fifth Earl— and consequently, under the former presumption, the heir female of the* last heir male— her son, Mr. Trumbull, would have been the heir male of the body of Lady Judith, the heir female. But, as both Mary and Judith, the sisters of the Fifth Earl— still pre- suming him last heir male— (either being allowed to be the heir female of their brother,) had sons who died without issue male, the succession, in that case, would have gone to the nearest heirs whatsoever of the First Earl ; but not to the female issue of those sons— in which i. i > * The title of most noble was for a long time fvonoraiiy j^iven to a Marquess, or Marquis— hut that of most honourable ha's latterly superseded the former— for what reason I know not, unless it must he inferred that a party might he noble, jet not honourable; it was, therefore, to preserve the latter to high nobility. P i 'I: . ' I 66 I f i: |ir(!(li<-amht of succession to the Earldom, &c. devolved entire upon Mary Alexander, the elder of the aforesaid two sisters. And here it may be observed, that if the limitation, after the failure of the heirs male, had been to heirs «eneral, the Marchioness of Downshire would not have come in, there being* extant the issue of an elder branch, namely, of the sisters of the Second Earl, who were the gninddaufifhters of the First Earl, by his eldest son, William, Viscount Canada, who died in his life-time, and which issue must be the first and the nearest heirs whatsoever in the female line. The before-mentioned Mary, Countess of Stif- ling, de jure, died immarried in April, 1794; when her oidy and survivinj; sister, Hannah, the wife of William llumphrys, of the Larches, in the County of Warwick, Es(|uire, became her heir, also sole heir general, and heir of tailzie and provision, to her brothers, John and Henjamin, the two last heirs male in succession to the title and dii;nitv i>f Earl of STIRLING. ■'V^-.- 1 \ 67 ilANNAM, CoiJNTMSS OF Stihi,IN<;. ,lr j,„v .lio.l I2tli SeptemluM-, 1814, \v■A^\w^ A lkx an dku. Visccint Canada, her onl^ son ami l.oir, who IIumi hrcainr, aii.I now IS, the present Earl. Alter the chise oC the eU'dion in Jiilv, 1831, (as has heen stated before,) an ohjeetion, in the nature ofa pn.lesf was entered a-ainst the CU^ks of Session, for having- received Lord Stir.jng's vote-one of the oto.mmIs of coniphiint bein-, •' If the Chiini is founded on an alleyed " Patent to heirs (jennat of the original Patentee, we '* know that under these circ uinstanees, there are others " who have a |)referahh! claim to the dif,niity." Now. the Earl has never alleged a Patent to heirs general, but he has alleged a Charter to an heir of lail/ie and provision, which, according to the law of Scotland, would, without the necessity/ of the words expressed in the Charter, have been entitled to the succession. i« />r«- ference to the party meant or insinuated by the protesters. For that party, namely, the aforesaid Dowager March- ioness, cannot be the heir male of the Stirmnc; titles^ is not heir general, while the issue of an elder brui.ch !« extant—is not heir male of the body of the heir female— and, lastly, is not heir of tailzie and provision.—and therefore has not in her person any (|uality of heirship whereby to arrogate a preference bef«.re or over the present Earl. I n. I- '■> 7/ M It CHAPTER VI. THE EARLDOM OF DOVAN, In procuring this title to bo made co-eval, or rather invested with the Earldom of STiRLiN^i, and which was denominated from the locality of the ! mds of Tullibodie, upon the river Dovan, it would seem taat the intention of the Earl of Stirling was to incorporate the principal of his Scotch estates into a territorial honour, descendable along with the Peerage dignity, which had been omitted to be done when the Stirling honours were first conferred; and, inasmuch as by that omission, the Stirling titles were merely personal, and not united to the estates, so they might at a future uay become separable, and inherit- able by distinct persons. To effect this object, the Earl made a resignation of his lands of Tullibodie, and Tulli- cultrie, into the King's hand, in the manner usual, and conformable to the law of Scotland, for the purpose of a new infeftraent of them — which the King granted to him, accordingly, by his Royal Signature, dated at the Palace of Oatlands, 30th July, 1637 ; wherein, after reciting the resignation, it is thus mentioned, viz. ** Praeterea, nos, pro causis et respectibus supra spe- *' cificatis, ex nostra certa scientia, proprioque motu, ,1 [ G9 r u I r r * univimus, ereximus, creavimus, rt incorporavimus, ' necnon tenore praesentirm, cum avisamento et consensu ' predict, unimus, erigimus, oreamus, et incorporamus ' omnes et singulas terras, baronias, aliaque particulariter * et generaliter supramentionat.," &c. &c. ** baroniarum ' de Tullibodie et Tullicultrle, cum," &c. &c. " in unum * integrum et liberum dominium et comitatum, praeno- * minato Willielmo, Comiti de Stirling, in vitali * redditu duran. omnibus sute vitae diebus, et Willielmo, * Domino Alexander, ejus filio, et heredibus suis mascu- * lis et assignatis praedict. Comitatum de Dovan omni * tempore affuturo, nuncupat. et nuncupand. cum titulo^ * stilo, et dignitate C0MITI8, secundum datam dicti * Comitis creationis sibi desuper concess. quae est de * data decimo quarto die mensis Junii, anno Domini * millesimo sexcentesimo trigesimo tertio. Tenen. et * Habend. omnes et singulas terras, baronias," &c. &c. * aliaque particulariter et generaliter suprascript. nunc * unitas, et annexatas et incorporatas in wmm integrum * et liberum Comitatvnit Comitatum de Dovan, omni * tempore affuturo, nuncupat. et nuncupand. memoratis * Willielmo, Comiti de Stirling, in vitali redditu * durand. omnibus suae vitae diebus, et Willielmo, Domino * Alexander, suo filio, haeredibus suis masculis et assig- * natis praedict. de nobis et successoribus nostris, in libera * Baronia, Dominio, et Comitatu, imperpetuum," &c. This Signature was afterwards conTirmed in Parliament, and an entry of the confirmation made on the Records of tlie Acts of Parliament of Scotland, in these words :* " Quinto Octo*- 1639. " Ratifica^ne. " In favoris of the Erle of Stirling, of Tillibody and " Tillicultrie." '■} * • Vol. V. [). 273, folio edit. 1S17, ^'l ft 70 IL On paying attention to the words of the Signature, hy which the two baronies are specially incorporated and erected into the Earldom of Dovan, they will be found to be of particular importance, forasmuch as the con- struction of them may be taken to imply, that the Earl- dom of Dovan is made one and the same with the Earldom of Stirling, and thereby meant to be descend- able thenceforth to the same course of heirs — for what else is to be interpreted by the expression, " Cum titulo, stilo, ** et digniiate Comitis, secundum datam dicti Comitis ** creationist sihi desuper concess"? It would be anoma- lous that two Earldoms should be granted to the same person, both of the same date, to be enjoyed with the same privileges, to be made to refer back, the one to a period four years antecedent to the other, and yet with a different line of succession ; — the meaning could only be, that the Dovan creation should refer back to that of Stirling, to the effect which it would have had in the first instance, supposing Sir William Alexander had then been created Earl of Stirling and Dovan, similarly as the Lord Chancellor has been ennobled by the title of Lord Brougham and Vaux, which nevertheless contains but one Peerage dignity. Indeed, this position of the case seems to have been considered by the Earl OP Stirling himself, as, notwithstanding the addita- ment of Dovan, he continued to use the title of Stirling, as the leading one of the family honours. It may be here observed, that William, Lord Alexander, the Earl of Stirling's eldest son, having died before him, the Earl reflecting, that as merely a portion, and not the whole of his estates, (of which those in America composed a most valuable part,) was, by the aforesaid incorporation, vested in the Peerage dignity ; and being desirous that the whole should be united into one common inheritance, he thereupon made a resignation of all his honours and estates into the King's hands, and, by a [ 71 Charter of Novo-Damus, (as belore noticed,) dated 7lli December, 1C39, obtained a re^rant of them, with an erection of tlie entirety, viz. titles and estates, into one sole and distinct Earldom, then, and thenceforth, to be styled and denominated the Earldom of Stirling, with a limitation to the same line of heirs in succession, as would have succeeded to the American property, under the previous Charters thereof, and to the same line of heirs in succession, who would have taken the Scotch lands, under their previous Charters of grant. Thus, excepting- the incorporation of all the property with the title, and that title being confined to the name of Stirling solely, the Charter of Novo-Damus is of little consequence. Ingenious cavillers, and parties hostile to allowing the justice of the present Earl's rights, have thought proper to raise a doubt upon this Charter having ever had exist- ence, because it has disappeared from the family Charter- chest, although there is very good proof how the abstrac- tion was made, and by whom. But the above statement shews truly, that its absence very little influences the present Earl's claims ; and the only reason why his Lordship is engaged in rearing it up from indubitable evidence, is his desire most completely to silence parties, who are ingenious only in perversion, and whose strictures are mere fabrications. Sink the contested Charter into chaos, still the Earl remains heir in special of tailzie and provision, to the totality of the estates, American and Scotch, and to the Earldom of Dovan, under the existing Charters, all on record, and confirmed by the Parliament of Scotland. When William, First Earl of Stirling and Dovan, died in 1640, he was succeeded by his grand- son, only son of his eldest son, William^ Lord Alexander, already named, who deceased in his life-time. The young Earl died within six months afterwards, not eight years • 1 i\' u r i I. 72 old; whereupon, he was succeeded by his uncle, Henry, (of whom mention has been often made before,) who became the Third Earl. If neither he, nor any one after him, used the title of Do van, it is a demonstration that the Charter of Novo-Damus was the actual Charter, by virtue of which, he inherited the Earldom, with the aggre- gated estates ; if that Charter had no existence, then, is not the present Earl let into the Do van title, and the lands, by a limitation, which is not susceptible of doubt or challenge i But, to pursue the subject of the DovAN title, it re- mains to be considered in what light it should be viewed — whether as a distinct, or as a consolidated Earldom. The limitation was first to the Earl of Stirling for life ; then to his son, William, Lord Alexander, and the heirs male of his body ; whom failing, then to the Earl the father, and his heirs male and assignees. William, Lord Alexander, having predeceased his father, leaving one only infant son, this son, at the death of his grandfather, succeeded as Earl of Stirling, by virtue of the Stirling Patents, and as Earl of Dovan, by virtue of the special limitation, before cited, of that Earldom, unless he succeeded under the Charter of Novo- Damus. On his death, his uncle, Henry, was entitled to be Third Eari< of Stirling, as heir male thereto, and b'' was entitled to be Third Earl of Dovan, as heir male special of tailzie and provision, under the re- mainder clause, which, failing the heirs male of the body of William, Lord Alexander, then gave the Earldom to the heirs male of the body and assignees of William, Earl of Stirling, the father. As Earl Henry thus became entitled to both honours, through their respective limitations, it may be a matter of notice for what reason he adopted the one, and dropped the other. But this is not so very difficult to be explained — for, by the Charter of Novo-Damus, he /3 took of riolit all the family honours and estates, which were erected into one territorial Earldom, with the style, title, and dignity of Peerage, and its concomitant privi- leges, to be enjoyed together. If they were not so united and incorporated, because the said Charter is impugned, and denied (on account of having disappeared), then it must be plain, that he used the Stirling title alone, insomuch as the Earldom of Dovan was, by the terms of its creation, to be deemed and taken as one and the same with that of Stirling, with the particular addition of having certain Scotch estates annexed thereto, as a sub- sidiary, to aid the sustentation of the Peerage rank, in its course of succession. The heirs male of the body of William, First Earl OF Stirling and Dovan, having become extinct in the person of Benjamin, the Eighth Earl, de jure, (uncle to the pre:,ent,) who died in 1768, unmarried ; the now Earl, as only son and heir of his mother, the sole survivino- sister, and heir of the said Earl Benjamin, has become the heir of succession, whether it be taken under the charter of Novo-Damus, or the Dovan creation ; and therefore, for the better elucidation and confirmation of his right, obtained a brieve of service, and having pre- sented to the Jury the most comprehensive, and con- vincing mass of evidence, he was served heir of tailzie and provision to the last Earl, on the 80th of May, 1831; which service, on the finding of the Jury, was duly re- toured into his Majesty's Court of Chancery in Scotland, and the nature of his right established in conformity to the Scotch law of descent, warranted by usage, practice, and unvaried precedent.* There is not a Scotch Nobleman, whose honours and title stand on a surer basis, or have been taken up (except in a few instances, where conveniency was consulted) in a different manner. I U.:, '1^ '■' IV * Vide Pol worth case, coram Dom. Proc. i!. :f ■ m , V- i APPENDIX. '!■ it' • v '1 1'UJLaii.i^Mlli I'liji ^ta^JraSviilBii. k u APPENDIX. No. I. Copy of the Retour of Service of the Earl of Stirling as Heir to hi$ Mother, Heiress of the Stirling Honours, under the destination of the Charter of Novo-Damus, 1th of December, 1639; dated Ith February, 1826— as certified from the record by the proper officer of the Court of Chan- cery at Edinburgh. HiEC Inquisitio facta fuit in Curia Regalitatis Burgi vici Canoni- corum Scpiimo die mensis Februarij Anno Domini millesimo octingentesimo et vigesimo sexto coram Honorabili viro Gulielmo Bailey Armigero uno Balivorum dicti Burgi per h^s probos ct fideles patriae homines, viz. Thomam Cristopherum Fanks, Honor- abilis Societatis Interioris Tempii Londini Armigerum, Ephraim Lockliart Armigerum Scribam Signeto Regio, Henricum Wharton, Joannem Stewart Mein, Georgium Stewart Jack, et Joanncm Mason, Scribas in Edinburglio: Alexandrum Adam, Robertum Renton White, Jacobum Smith, et Davidem Kirk, Mercatorcs ibidem. Joannem Brett Fabrum Lignariun ibid. Gulielmum Muir, ArchibaHum Craig, Duncanum M'Ken/Je, et Allanum M'G.ll, Mercatores in Vico Canonicoruni. Qui Jurati, dicunt magno feac- ramento inter veniente, Qtod quondam Hanna Alexander alias SLohrvs, Mater Alexandri Humphrys Alexander de Netherton House, in Comitatu de Worcester, Comitis ^e Stirlirjg Vice Comit.s de Sti ling et Canada, Domini Alexander de Tulhbody, &c &c. iatoris pr^sentium, unici surviven Hlii diet', quond. Hann. A lex- ander alias Humphrys qua. uxor fuit Gulielm. Humphrys de Bir- Bingham, et lie de Larches, ambobus in com.tatu de Warwick Si If' .1 1 ,|l:: "t: 78 Armi<;Rri, ct ultima survivcnsliaercsfcmcllaBenjaminis Alexander ex Uasiiighall- street, Londini, ejus Fratris Gertnani, ultimi Has redis Masculi (^ corpore Gulielmi Alexander dc Monstrie MilUi.s Sctiui'iCtti primi Comitis de Stirling, abavi ejus, sucecden. titnlis honoribus et dignitatibus limitat- dicto Guliclmo Comiti de Stirling et Haeredibus Masculis ex ejus corpore, &c. per literas patentesseu Cartam de Novodamua sub sigillo niagno Scutise de data Septimo die Decembris Anno Millesimo sexcentesimo et trigcsimo nono, obiit ad fidem et pacem, S. D. N. Regis. £t quod dic^* Alexander Humphrys Alexander, Comes de Stirling, Vicecomes de Stirling et Canada, Dominus Alexander de Tullibody, &c. &c. later prae- sontium, est propinquior ct legitimus Haeres Masculus ex corpore die'- quond. Hannae Alexander alias Humphrys ejus matris, ct quod est legitimae aetatis. In cujus rei Testimonium Sigilla eorum qui dictae Inquisitioni intererant sunt appensa, nee non cum subsoriptione Clerici dic^- Burgi sub inclusione Sigilli diet* Balivi cum brevi Regio incluso loco die mense et anno prsedictis, (sic subscribitur,) John Mac Ritchie, Clerk. Haec est vera copia principalis Retornatus super praemissis in Cancellaria S. D. N. Regis remanen. Ex** copiat. et colla'* per me Thomam Miller substitutum Jacobi Dundas Deputati praelionora- bilis Jacobi St. Clair Erskine, Comitis de Rosslyn, ejusd. Cancel- larisR Directoris sub hac mea subscriptione. THOMAS MILLER, Subt- il ; r ' 3 No. II. It if ' Copy of the Retour of General Service of the Earl of Stir- ling as nearest and lawful Heir in general of his Great- great-great-Grandfather, William, the First Earl of Stirling '.—dated l\th October, 1830. Umc Inquisitio facta fuit in Curia Regalitatis Burgi vice Caiio- nicorum undecimo die mensis Octobris anno Domini millesimo octingentesimo et trigcsimo coram Honorabili viro Joanne Robert- son Armigero uno Balivorum dicti burgi per hos probos et fidelcs patriae homines, viz. Alexandrum Monypenny, JacobumDalglci»li, L I 79 ct Gtiliclmum Frascr, Armigcros Scribas Signeto Regio, Joannem M'Cltisli dc MaryfieUI, Armigerum, Philippiim Crow, Archibaldutn Douglas, Joanncni Mason, et Kobertum Oliphant, Scribas in Fidinburgo, Jacobum Simpson Scribam inLeith, Jacobum Gardner Pharraacupolivm in Edinburgo, Gualtcnum Marsball Pictorem ibidem, Roberlum Latta Exactorem custiimarum ibidem, Thomam Workman Mercatorem in Vico Canonicorum, Joannem Suther- land residcntcm ibidem, et Alexandrum Brodie Mercatorem in Leith. Qui Jurati, dicunt magno Sacramento interveniente. Quod quondam Gulirlmus primus Comes de Stirling Atuvus Albxan- DRi CoMiTis DE STIRLING, Vicecomitis de Stirling et Canada, Domini Alexander deTulIibodie,&c. unici surviventis filij decessap HANNi£ Albxander alias HtMPHRVs qu8B uxo>' fuit Giilielmi Humphrys de Birmingham et lie the Larches ambobus in Comitatu de Warwick Armigeri et soror germana et ultima survivens haeros femella demortui Benjamini Alexander cx Basinghall Street Lon- dini abnepotis et ultimi haeredis masculi de corpore dicti quondam Gulielmi Comitis de Stirling obiit ad fidem et pacem S. D. N. Regis ; Et quod dlctus Alexander Comes de Stirling lator praesentium est propinquior et legitimus haeres in generali dicti quondam Guli- elmi Comitis de Stirling sui atavi ; Et quod est legitimae aetatis. In ciijus rei Testimonium Sigilla eornm qui dictas Inquisitioni intcrerant sunt appensa nee non cum subscriptione Clcrici dicti liurgi sub inclusione sigilli dicti Balivi cum brevi regio inclusoloco die mensis et anno praedictis, (sic subscribitur,) William Eraser, Jant' Clerk. Haec est vera copia principalis Retornatus super praemissis in Cancellaria S. D. N. Regis remanen. Ex»- copiat. et colla** per me Joannem Dundas substitutum Jacobi Dundas deputati prae- honorabilis St- Clair Erskine, Comitis de Rosslyn, ejusdem Cancel- lariae Dircctoris sub hac mea subscriptione. I i' •:?! I JOHN DUNDAS, Suit- <1 I r il! iii ■it so No. in. Co/;^ of the Claim for Alexander, Earl of Stirling, to be served Heir of Tailzie and Provision to his Great- great-greut-Grandf other, William, First Earl of Stirling. Honourable Persons, and Good M(!n of Inquest, I, Alexander, Earl op Stiulino, Viscount of Stirling and Canada, Lord Alex- ander of Tullibodic, &c. only surviving son and lieir male of the body of the deceased Hannah Alfxandkr, otherwise Humphrys, who was Wife of William Hiimphrys of Birmingham and the Larches, both in the County of Warwick, Esquire, and last sur- viving heir female of the deceased Benjamin Alexander, of Ba.sing- hall Street, London, her brother german, last heir male of the body of the deceased Sir William Almxander of Menstrio, Miles, the First Earl of Stirling, his Great-grcat-great-Grand- father, according to my Service duly retourcd to His Majesty's Chancery, and heir whatsoever of the .said Benjamin Alexander, my Uncle, and Great-great-great-Gra' 'son and heir served and retotired to the said deceased Will Earl of Stirling, Say unto Your Wisidoms, that the said «^^^v.HScd William, Earl of Stirling, died at the faith and peace of our sovereign Lord the King; and that I am nearest and lawful heir of tailzie and pro- vision of the said deceased William, Earl of Stirling, my Great-great-great-Grandfather, in virtue of the precept of a charier of resignation, confirmation, de Novo-Damus, &c. under Ihe Great Seal of Scotland, of new giving, granting and disponing, as His Majesty then reigning, with advice and consent therein mentioned, of new gave, granted and disponed, to the before-mentioned William, Earl of Stirling, in life-rent, during all the days of his life, and to William, Lord Alexander, his lawful eldest son, and his heirs male lawfully procreate, or to be procreate of his body, whom failing, to the heirs male and assignees whomsoever of the said William, Earl of Stirling, all and whole the lands, baronies and others, therein particularly described, and giving, granting and disponing, and in feu farm letting to the before-men- tioned William, Earl of Stirling, in life -rent, during all the da}S of his life, and to the aforesaid William, Lord Alexander, ^! I 81 lii» son, and to his own hoiis malo and assijjnccs foresaid, all and snndry mines and minerals also tlicriin particniarly tiescrihed ; and uniting, ereclin^j, ereatinj; and incorporalins all and sundry the lands, baronies, :>nd others therein mentioned, with the mines and minerals foresaid, into one entire and free Lordship and Earl- dom, in all time to come, ealled and to he calhd by the before- named William, Earl or Stirmnu, in life-rent, during all the days of his life, and William, Lord Alexander, liis son, and his own heirs male foresaid, the Earluom of Dovan, with the title, style and dignity of Earl, aceordinif to the date of the creation of the said llarl granted to him thereupon, which is of date the fourteenth day of the month of June, Anno Domini One Thousand six hundred and thirty-three, to have and to hold by the before- mentioned William, Earl or Stirling, in life-rent durin<^ all the days of his life, and William, Lord Alexander, his son, and his own heirs male and assignees foresaid, in manner therein specified ; which precept is dated the 30th day of the month of July, Anno Domini One '^'housand six hundred and thirty-seven : And that I am of lawful age. Herefore I beseech Your Wisdoms to serve and cognosce me nearest and lawful heir of tailzie and provision in general of the said deceased William, the First Earl orSciRLiNcmj Great-great-grcat-Grandfather.under the aforesaid jjreeept, and to retour ray service to His Majesty's Chancery under the most of your seals, as use is. According to justice, &e. Copy of the General Retour of the Service of the Earl of Stirling, as Heir of Tailzie and Provision of his An- cestor, William, the First Earl of Stirling, in the Earldom of Dovan:— dated May 'Mth, 1831. k H H/EC Inquisitio facta fait in Curia Regaiitatis Burgi vici Cano- nicorum trigesimo die mensis Maii Anno Domini millesimo octin- gentesimo et trigesimo primo, coram Honorabiliviro Joanne Christie G '>?■ .1 ■')' liH m *: I 82 Armigero uno Balivoriim diet. Rurgi per hos probos et iidcles patriae homines, viz'- Jaoobum Graham do Leitchtown Armigjerimi, Davidem Lindsay Waiiujli, Ilenricum Wharton, Carolum Sicwart, Jacobiim Martir. ct Robcrtum Olipbaiit Scribas in Edinbiir^o, Thomam 1^^'lleret Joannem Dunlop Mcrcatorcs ibid. Gulielmum Wallace residen ibid. Joannem Crerar Bibliopoiani ibidem, Joan- nem Scott Sartorem ibidem, Joannem G.ain^cr rcsidcn ibid. Joannem Biiclianan Typog:raplium ibid, .^janncm Law Agricolam apud Tranent, Jacobum Syme Opificcm ibid. Qui jurati, dicunt magno Sacramento interveniente, Quod quondam Dominus Guli- BLMUS Alexander dc Menstrie, Miles, primus Comi;s de Stiulino, atavus Alexandri Comitis de Stiuling, Vice Comitis de Stirling etCanaia, Domini Alexander deTullibodie, &c. latoris prajsentium unici surviventis filii et haeredis masculi ex corpore dcccssae Hanna; Alexander, alia<) Humphrys, qnte uxor fiiit Guiielmi Humphrys de Birmingham et lie the Larches, ambobus in Comilatu de War- ^v'ick, Armigeri, et ultima survivens haeres femella decessi Ben- jaminis Alexander, ex Basinghall Street Londini, ejus fratris germani, ultimi haeredis masculi de corpore diet, quond. Guiielmi Comitis de Stirling abavi ejus secundum de servitium suum debitc ad Cancellariam S. D. N. Begis retornatum, ac haeredis cujus- cunque diet. Benjaminis Alexander sui avunculi atque adncpotis et haeredis deservit. et retornat. ad diet, quond. Gulielmum Comi- t m de Stirling, obiit ad fidem et pacem S. D. N. Regis. Et quod dii-i. Alexander, Comes de Stirling, &c. lator pra^scntium, est pro- pinquior et legitimns haeres tall ins et provisionis in generali diet, quond. Guiielmi primi Comitis dc Stirling sui atavi, \irtute praeccpli Cartas Resignationis, Confirmatiunis, de Novodandi concedendi et disponendi pro ut S. D. N. Rex tunc regnan. cum avisamento et consensu inibi mcntionat. de novo dedit concessit et disposuit nie- morato Gulielrao Comiti de Stirling in vitali reditu duran. omnibus suae vitae diebus, et Willielmo Domino Alexander, ejus filio legi- timo natu maximo ct bacredibus ejus maseulis dc corpore suo legitime procrcatis vel procreandis, quibus deficientibus baeredibus masculis diet. Guiielmi Comitis de Stirling ot assignatis quibus- cunque. Totas et integras terras baronias aliaqne eo parlieulariter descript, et dandi concedendi et disponendi, ac in feudifirma lo- candi memorato Gulielmo Comili de Stirling in vitali reditu duran. omnibus suae vita; diebus, ct praefatoWillielmo Domino Alexander ejus filio et ha;rcdibus suis masculis ct assignatis praedict. Omncs et singulas mineras ct mineralia etiam eo particulariter descript. ,- i. HIi ot uniendi crigcnili creandi et incorporandi Omnes et singulas terras baronias aliaque eo memorat. cum inineris et mineralibus antedict. in unum integrum et liberum dominium et comitatum praenominato Guliclmu Comiti de Stirlint^ in vitali reditu dnran. omnibus suai vitae diebus, et Willielmo Domino Alexander ejus filio, et bceredibns suis niasculis privdict. Comitatum de Dovan omni tempore aiTuturo nuncupat. ct nnnctipand. cum titulo stilo et dignitate Comitis, secundum datum dicti Comitis crcationis sibi dcsupcr concessae qua? est de data decirao quarto die mcnsis Junii, Anno Domini niillesimo sexcentcsimo trigesimo tertio. Tenen. et Haben. memoratis Gulieimo Comiti de Stirling; in vitali reditu dnran. omnibus suae- vitae diebus, et VVillielmo Domino Alexander suo filio et hacrcdibus suis masculis et assignatis praedict. modo inibi specificat. Quod Praeceptum est de data trigesimo die mensis Julii Anuo Domini millesimo sexcentcsimo trigesimo septimo. Et quod est legitimaeaetatis. Incujus rei Testimonium Sigillaeorum qui diet. Inquisition! intcrcrant sunt appensa nee non cum sub- scriptione Clerici diet. Burgi sub inclusione sigilli diet. Balivi cum brevi Regio ineluso loco die mensis et anno praedict. (sic subscri- bitur,) William Fraser, Jun^- Clerk. Haec est vera copia principalis Retornatus super praemissis in Cancellaria S. D. N, Regis remanen. extract, copiat. ct collat. per me Gultelmum Wilson substitutum Joannis Dundas Deputati praebonorabilis Jacobi St. Clair Erskine, Comitis de Rosslyn, ejusdem Cancellariae Directoris, sub hSiC mea subscriptione. .V ^■1 (Signed) WILLIAM WILSON, Sub. ri |1 \t V 2 rr- «4 No. IV. Coj»y 0/ the Claim of the Sei-vice o/Alexandkr, Earl op Stirling, as nearest and lawful Heir in special of William, First Earl of Stirling; — with the Verdict annexed. HoNOKAKLE Persons, and Good Men of Inquest, I, Alexander, Eaul of Stikling and J)ovan, Viscount of Stirling and Canudu, Lord Alexander of Tullibodie, &e. Great-groat-great-Grandson of the deceased Sir William Alexander, of Menstrie, the TirstEARL OF Stirling, Say unto jour Wisdoms, That the said William, Earl of Stirling, died last vest and seised, at the faith and peace of our sovereign Lord the King Ihen reigning, in the fee of all and sundry the lands, continents and i3laQds, situate and lying in America, within the head or cape commonly called Cap de Sable, lying near the latitude of forty-three degrees or thereby from the equinoctial line, northward from which cape, towards the sea-coast, tending wcstwardly to the naval station of St. Mary's Bay, and thereafter northward by a direct line passing the entrance or mouth of that great naval station uliich runs out into the eastern district of the land, between the Countries of the Siiriijiiois and Steche- niines, to the river commonly called St. Croix, and to the furthest source or fountain thereof on the west, which first mixes itself with the aforesaid river; whence by an imaginary direct line conceived to proceed by land, or to run northward to the nearest naval sta- tion on the river, or the source discharging itself into the great river of Canada, and from it proceeding eastward by the coasts of the said river of Canada, to the river, naval station, port, or shore, commonly known and called by the name of Gathepe, or Gaspe ; and thereafter towards the soutii-east to the islands called Bacaloes, or Cape Ureton, leaving the said islands on the right, and the gulf of the said great river of Canada, or great naval sta- tion, and the lands of Newfoundland, with the islands belonging to the said lands, on the left; and thereafter to the head or cape of Cape Breton aforesaid, lying near the latitude of forty-five degrees or thereby : and from the said cape of Cape Breton, towards the south-west, to the aforesaid Cap de Sable, where the perambulation began; including and comprehending within the said coasts, and 1 t mmm 85 their circumference from soa to sen, all I'm lands, continonts, with rivers, b ks, hays, shoics, islands, or seas, lying near or within six leaj^-i- i of any part tliereol', on the west, north, or east sides of the coasts and precincts of the same ; and from the sonth- east (where lies Cape Breton), and the south (where is Cap de Sahle), all the seas and islands southward within forty lea>jjuf'S of the said coasts thereof, inclndinj; the p^reat island commonly ealhd Isle de Sable, or Sahlon, lying towards the south-south-east thirty leagues from Cape Breton foresaid, in the sea, and l)eino: in the latitude of forty-four degrees, or thereby ; — whieh lands foresaid were in all time coming to enjoy the name of Nova Scotia, in America; which also were vested in tin; said William, Earl, of Stikling, according to a Charter of Novo-Damns under the (Jreat Seal of Scotland, of date the 12lh day of July, in the year 1625, made, given, and granted by His JMajesty Charles, King of Great Britain, France, and Ireland, in favour of the said William, Fi'akl OF Stirling, (then and therein throughout namrd Sir William Alexandkr,) his heirs and assignees heritably; — and by whieh Charter it is declared, that the said William, Isarl of Stirling, should divide the foresaid lands into parts and portions as it should appear to him, and impose names on them at his good pleasure; together with all mines, as well royal, of gold and silver, as other mines of iron, lead, copper, tin, brass, and other minerals what- soever; with the power of digging and causing dig from the land, purifying and refiniiig the same, and converting and using them to his own proper use or other uses whatsoever, as it should appear to the said William, Earl of Stirling, his heirs or assignees, or those who in his place should happen to settle in the said lands; — reserving only to His said Majesty and his successors, the tenth part of the metal commonly called ore of gold and silver, whieh afterwards shall be dug or gained from the laiui, leaving to the said William, Earl of Stirling, and his foresaids, whatsoever His said Majesty and his successors might any way exact of the other metals of copper, steel, iron, tin, or other minerals, that tliereby they may more easily bear the great expenees in extracting the foresaid metals ; together with pearls and other precious stones whatsoever, quarries, woods, shrubs, mosses, moors, lakes, waters, fishings, as well in salt water as in fresh, of royal tishcs, as of other, hunting, fowling, commodities and hereditaments whatsoever; to- gether with full power, privilege and jurisdiction of tree regality and chancery for ever, and with the gift and right of patronage of churches^ chapels, and benefices, with tenants, tcnandries, and services of il^ jy ■ '/ i f:« %. lil 8G free tenants thereof; together with the offices of Justiciary and Admiralty respectively, within all the bounds respectively above* mentioned ; together also with the power of erecting towns, free boroughs, free ports, villages, and boroughs of barony, and of appointing markets and fairs within the bounds of the said lands, and of holding Courts of Justiciary and Admiralty within the limits of the said lands, rivers, ports, and seas ; together also with the power of imposing, levying and receiving all tolls, customs, an- chorages, and other dues of the said boroughs, markets, fairs, and free ports, and of possessing and enjoying the same as freely, in all respects, as any greater or lesser baron in the kingdom of Scot- land has enjoyed or could enjoy them, at any time past or to come ; with all other prerogatives, privileges, immunities, dignities, ca- sualties, profits and duties, belonging and pertaining to the said lands, seas, and bounds of the same, and which His said Majesty could give and grant, as freely, and in ample form, as himself or any of his noble progenitors did grant any charters, letters patent, infcftments, gifts, or patents, to any subject of whatsoever degree or quality, to any society or community conducting such colonies, into whatever foreign parts, or discovering foreign lands, in such free and ample form as are inserted in the said Charter ; making, constituting and appointing the said William, Earl of Stirling, his heirs or assignees, or their deputies, His said Majesty's Here- ditiiry Lieutenants-General, to represent his royal person, as well by sea as by land, in the countries, seas and boundaries foresaid, in resorting to the said lands, so long as he should remain there, and in returning from the same, for the governing, ruling, punish- ing and remitting all the subjects of His said Majesty who should happen to go to the said lands, or to inhabit the same, or who shall undertake business with them, or shall remain in the same places ; and for the establishing such laws, statutes, constitutions, directions, instructions, forms of government, and customs of ma- gistrates, within the said bounds, as should appear to the said William, Earl of Stirling, himself or his foresaids.and their heirs and assignees, of erecting, founding and setting up in the govern- ment of the said country and the inhabitants thereof, in all causes, as well criminal as civil, and altering and changing the said laws, rules, foims and customs, as often as himself or his foresaids should please, for the good and advantage of the said country, so as the said laws may, as far as they can be made, be agreeable to the laws of the said kingdom of Scotland ; and giving and granting free and plenary power to the at'orcsuid Williajh, Earl of t H7 SrinMNG, and his foresaids, of conferring favours, privileges, ofRces and lioiiours, on the deservinsr, with full power to them, or any of them, who shouhl happen to make ajifrecineiits or contracts for the said lands with him, William, Eaul of Stiuling, and his foresaids, under his or their subscription, and the seal mentioned in the said Charter, of disposing and <::ratHitously oversrivinj? any portion or portions of the said lauds, ports, naval stations, rivers, or any part of the premises, of erectinf? also inventions of all sorts, arts, faculties or sciences, or of excrcisin<;^ the same, in whole or in part, as shall appear for their ^ood, of i?iviri<;, also, grantinij and be- stowing such offices, titles, rights, and powers, as shall appear necessary, according to the qualities, conditions, and merits of the persons ; with power to the said William, Earl of Stirling, and his heirs and assignees, of erecting, founding and building com- mon schools, colleges, universities, sufficiently provided with able and sufficient masters, rectors, regents, professors of all sciences, learning, languages, and instructions, and of providing for the sufficient maintenance, salaries, and living for them, to this effect ; as also of erecting prelates, archbishops, bishops, rectors, and vicars of parishes, and parish churches, and of distributing and dividing all the aforesaid bounds of the said country into different and distinct shires, provinces, and parishes, for the better provision of the churches and ministry, division of the shires, and all other civil police ; and likewise of founding, erecting, and instituting a senate of justice, places and colleges of justice, senators of coun- cil and session, members tliereof for the administration of justice within the said country, and other places of justice and judicature; further, of erecting and designing both secret and privy councils and sessions, for the public good and advantage of the said country, and giving and granting titles, honours, aud dignities to the mem- bers thereof, and creating clerks and members thereof, and design- ing seals and registers, with their keepers ; and also of erecting and instituting officers of state, a chancellor, treasurer, comp- troller, collector, secretary, advocates or attorney-general, a clerk or clerk's register, and keepers of the rolls, a clerk of justiciary, a director or directors of chancery, a conservator or constsrvators of privileges of the said country, advocates, procurators and solici- tors^ and other necessary members thereof; and further, of giving, granting and disposing any partf or portions of the said lands, country, and lordship of Nova Scotia, heritably belonging to them, to and in favour of whatsoever persons, their hiirs and assignees, heritably, with tlie teinds and teind sheaves included, (only, that V I 88 ']'% they be the subjects of His Majesty,) to be holder) of the isaiii William, Earl of Stirling, or of His Majesty anil his successors, whether in blench farm, feu farm, or ward and relief, at tlieir ^ood pleasure; and to entitle and denominate the said parts or portions by whatsoever styles, titles, and designations, shall appear to them, or be in the choice and option of the said VVilmam, Eakl oi- Stirling, and his foresaids, which infeftments and dispositions shall be approved and confirmed by His Majesty or his successors, freely, without any composition to be paid therefor ; moreover, declaring that His Majesty and his successors shall receive what- soever resignations shall be made by the said William, Earl of Stirling, and his heirs and assignees, of all and whole the afore- said lands and lordship of Nova Scptia, or of any part thereof, in the hands of His Majesty and bis successors and commissioncrN, with the teinds and teind sheaves thereof included, and others generally and specially above-mentioned, to and in favour of what- soever person or persons, (only that they be His Majesty's subjects, and live under his obedience,) and thereupon they shall expcde infeftments to be holden in free blench farm of His Majesty, his heirs and successors, in manner above-mentioned, freely, witliout any composition : Moreover, giving, granting and committing to the said William, Earl of Stirling, and his heirs and assignees, the power of having, and lawfully establishing, and causing coin current money, in the said country and lordship of Nova Scotia, and among the inhabitants thereof, for the readier advantage of commerce and bargains, of such metal, form, and fashion, as they shall design or appoint ; further giving, granting, ratifying, and confirming to the said William, Earl of Stirling, and his heirs and assignees, all places, privileges, prerogatives, precedencies, whatsoever, given, granted, and reserved, or to be given, granted, and reserved, to the said William, Earl of Stirling, and his heirs and assignees, and his successors. Lieutenants of the said country and lordship of Nova Scotia, on behalf of the Knights Baronets, and remanent portioners and associates of the said plan- tation, so as the said William, Earl of Stirling, and his heirs male descending of his body, as Lieutenants foresaid, might and could take place, prerogative, pre-eminence, and precedency, as well before all squires, lairds, and gentlemen of the said kingdom of Scotland, as before all the foresaid knights baronets of the said kingdom, and all others before whom the said knights baronets can have place and precedency in virtue of the privilege of dignity granted to them ; — which whole and entire province and lands of so Nova Scoliii, with all the bonndnries and seas thorrof, were united, annexed, and incorporated into one entire and free lordshi|> and barony, to be called in all time eomin};; by tlie foresaid name of Nova Scotia; — and by which Charter it is ordained that one seisin, to be taken by the said William, Earl of Stikling, and his fore- saids, at the Castle of Edinburgh, in all time cominvitli the place and time of vacanee, and is datetl the lOlh, and scaled (he 15th days of June last past ; — and the said Tlioinas Christopher Banks, procurator ami niandafory foresaid, having desired the said Sheriff-substitute of the Sherilldoni of Edinburgh to proceed to the execution of the ofliee of Sherifl'therchy committed lo him, the said Sheriff made choice of Ephraini Lockhart, writer to His Majesty's Signet and notary public, to be Clerk for the Service of the said Alexander, Emil of Stirling, &c., as heir foresaid, and of George Lindsay Rae, gown-keeper to tlie society of writers to the said Signet, to be the ollieer for the Court of the said Service ; and who, being both solemnly sworn, made oath dejideli administrntione ; and thereafter the said Court was fenced in the name and authority of His Majesty ; and by order, and in name and authority, of the said Sheriff-substitute of the Sheriffdom of Edinburgh, as Judge appointed by the said commission;— and the Court being so fenced, compeared the several honourable and worthy persons after-named, who had been all lawfully summoned before lo pass upon th'! inquest of tiie said brieve, as being most proper and least suspected, and who best know the verity of the matter; Ihey are to say, Patrick Robertson, and James Welsh, I'-squires, Advocates ; David Johnson, Esquire, Doctor of Medicine in Edinburgh ; John Ronton ; James Balfour ; James Macdonall ; John Dickie ; Henry Inglis, Junior, and James Souter, Esquires, Writers lo His Majesty's Signet ; John Stirling, Esquire, Accountant in Edinburgh ; John Adams; John Phillips, and Thomas Rankcn, Solicitors of the Supreme Courts of Scotland; William Wallace Sibbald, Esquire, residing iu Edinburgh ; and Joseph Low, Writer there : — Whereupon the said Thomas Christopher Banks, procurator and mandatory foresaid, produced a brieve issued forth of His Majesty's Chancery, dated the 10th day of June last past, directed to the Sheriff-depute of the Sheriffdom of Edinburgh, or his substitute, ^Wj Sheriff of the ShorilTdoni of Edinburgh, sp«>cially constitiilcil as aforesaid, at the instance of the sai, made, given and granted by IJis Majesty Charles the I'irst, in favour of the said William, Earl OF Stirling, (then Sir William Alexander,) of the lands, barony and lordship of Nova Scotia, in America; 2do, Extract registered Instrument of seisin following upon the pre- cept in the said Charter in favour of the said W illiam. Earl of Stirling, of date the 29th day of September, in the said year 1625, recorded in the General Register of Seisins kept at Edin- burgh, the 1st day of October, and year foresaid ;— and lastly, General Relour of the service expcde before the bailies of the borough of Cannongate, of Ihe said Aifxander, Earl of Stir- ling, as heir of Ihe said deceased William, Earl of Stirling, I' t! I .r / 94 hisGreat-srnat-fjrcat-Grandrathcr, which Uetour is dated the 11th day of Oetoher, in the jc.ir 18:10, and duly rctonred to Chancery ; and for instructiiia: tlie ohl and new extent of the lands and othern contained in the said chtim, and in which the said Wiijjam, Eaui. OF Stirlin(s, died last infeft, there was produced a Charter under the Great Seal, of date the 10th day of Srptemher, in the year 1621, made, given and i^^ranted i)y His Majesty James the Sixtii in favour of the said ^Vll,l,lAM, Earl of Stiulino, (then Sir William Alexander,) of the lordship and barony of Nova Scotia, in America ; which Charter was written to the said seal the 29th day of the said month of September and year aforesaid, and sealed the same day : after production of which claim and writs before-mentioned, the said Sherifl-suhstitute of the Sheriffdom of Edinburgh, as Judge foresaid, caused the said George Lindsay Rae, officer of Court, call peremptorily and openly in judgment all parties having or pretending to have interest ; which being accordingly done, and none compearing to object against the service of the said brieve, and lawful time of day basing waited, the said procurator and mandatory protested contra o,ymes iion co-mparentes, that they should be silent for ever after ; and also desired that the said claim, and writs produced for verifying the said claim, might be referred and admitted to the knowledge of the Inquest before-named ; and the said Sherifl-substitutc of the Sheriffdom of Edinburgh, as Judge foresaid, finding the said desire to be just and reasonable, he ad- mitted thereof, and remitted the said matter to the knowledge of the Inquest ; and who being all solemnly sworn by the said Judge, they made faith de fidele administratione, and then elected the said Patrick Robertson, Esquire, Advocate, to be their Chancellor ; and thereupon the said claim was openly read, and compared with the foresaid writings produced for vouching and verifying thereof; — and thereafter the said Sheriff-substitute of the Sheriffdom of Edin- burgh, as Judge foresaid, auscd the said George Lindsay Rae, officer of Court, call again thrice peremptorily in judgment, at the most patent door of the said New Session House, all parties having or pretending to have interest; which being accordingly done, and none compearing to object, the said procurator and mandatory again protested contra omnes non comparentes, that they should be ever thereafter silent ; — and then they, the said worthy persons of Inquest, all in one voice, and without variance, by the moutli of their Chancellor, found the foresaid clafm sufficiently instructed and proven ; and therefore served and cognosced the said Alexandek, Earl oi Stirling, &c., nearest and lawful heir 9.> in spcciiil of the said dccrasod Wilm am, E\Ri. of Stiiu inc, liis Great-sreat-srcat-Uiandfialior, in all and sundry tlir lands and others contained in tho said claim, in uliicli llic said Win iam, Eaul of STiRLiN d in the legal course of determination. Secondly, Because to us it appears that if the claim of the per- son who voted at this election, under the title of Earl of Stirling, is founded on an alleged patent to heirs male, it was his duty to have proved before tendering his votes, that he did not claim as descended from or connected with the said William Alexander ; and that without satisfactory evidence to establish this fact, the Clerks of Session, under the resolution of the House of Lords, cannot be justified in receiving and giving efTicacy to his votes. Thirdly, liecause if the claim of the person who on this occasion has assumed the title of Earl of Stirling, is founded on an alleged patent to heirs general of the original patentee, we know that under these circumstances there are others who have a pre- ferable claim to that dignity. Besides, we have great reason to suspect the authenticity of the documents, such as they are, on which the claimant is said to rest his assumption of that title. (Signed) BUCCLELCH AND QUEENSBERRY. LAUDERDALE. Coyy oj the Eaul of Stirling's Answer to the above Protest. Alexander, Earl of Stiri-ing, answered to the Protest of the Duke of Buccleuch and Quecnsberry and the Earl of Lauderdale, Eirst, That the first reason of protest is without application, and wilfully perverted in its statement, for the purpose of misrepresen- tation — inasmuch as the Resolution of the House of Lords there cited, that William Alexander, assuming the title of Earl of Stir- ling, should not be admitted to vote by virtue of the said title until it was allowed by law, proceeded from the cause that he was at that very time claiming the same title by petition before the House, and as such, until the House had decided upon his petition, he could not be warranted in its assumption, or in exercising any of its privileges. The principle, therefore, acted upon with reference to the said William Alexander, is foreign to the case of the respon- dent, who has no claim depending for the judgment of the House 10/ of Lords. Further, tlie respondent is Unoiilly descended of a son of the I'irst Kaul of Stirlin(;, while the snid >\ illiam Alexander only elaimcd as an heir male by a dubious collateral deseeut. Secondly, That the alle<>:ation that the Clerks, under the said Ttesolution of the House of Lords, could not be justified in receiv- ing and giving efficacy to the respondent's vote, is contrary to the facts which were particularly stated when the respondent first claimed to vote, on which occasion the said Resolution was pub- licly read, and explained to have no reference to the responden.':. And the respondent having already done all that is required b;r' the law of Scotland, to prove his descent from the First E\kl OF SriKLiNO, is not bound to prove further the line of descent from any collateral presumptive heir to the said Earl, Thirdly, The noble protesters were much mistaken in supposing, in the third reason of protest, that the respondent claimed as heir general of the original patentee. He claimed in quite another character; and the unfair and unwarrantable inference there made with reference to the authenticity of the d(tcuments in support of that character, is irregular and irrelevant, as wvW as false, ground- less, and malicious ; and their selection of the respondent's case for an invidious attack, while there were several cases of Peerages within the late resolution of tlie House of Lords, as to which no objection was olfered to the votes given, was evidently vexatious, and compatible only with a disposition to go any length to answer particular private and political purposes. The interference of the noble protesters on the occasion in question, was inconsistent with their previous appntbation of the respondent's right of voting, both of them having been personally present at the general election that took place at Holy rood House on the 2iid day of September last past, as well as other Peers, who all, by their silence, then gave their unqualified sanction to the legal principle of the respon- dent's right in pursuance of his former admission to vote causa cognita. Separately, The respondent takes leave to submit, that the mere announcement of a protest for reasons to be afterwards assigned, as his Grace the Duke of Buccleuch stated at the time, was in itself null and inefficacious, as the reasons ought to have been set forth before the Parliamentary meeting had been dissolved, when His Majesty's commission was terminated, and all the privileges of the Peers, as to the business of the election, were virtually at an (Signed) STIRLING. Edinburgh, 4th June, 1831. I \\ 106 No. VIII. Copy of the Return to an Order of the Right Honourable the Lords Spiritual and Temporal in Parliament assembled, of the 23rrf of August, 1031, requiring " that there be laid " before this House a Copy of the Union Roll of the " Peerage of Scotland, and a List of all those Peers who " voted at all General Elections since the Year 1800, ** distinguishing each Election ;" — ordered to be printed bth September, 1831. It may be proper to premise, tliat on the 22nd of December, 1707, it was ordered by the House of Lords,* tliat tlie Lord Jtegister of Scotland " do forthwith h»y before this House an authentic List " of the Peerage of that part of Great Britain called Scotland, as " it stood the first day of May last ;" and a List, duly attested by the Lord Register, having been accordingly returned, was, on the 12th of Tobruary, 1708, t considered by the House in Committee, and thereafter reported to the House, read, and entered in the Roll of Peers. Again, by an order of the House of Lords, dated 12th of June, 1739,J the Lords of Session in Scotland were required " to make " up a Roll or List of the Peers of Scotland a* the time of the " Union, whose Peerages are still continuing; and do lay the " same before this House in the next Session of Parliament." In the Return made to this order, which was laid before the House on the 11th of AJarcli (hereafter, and ordered to be printed,^ there was given a Roil of tlie Peers of Scotland, as used in the Parliament of 1706, and also a list of Peers as modified by sub- sequent attainders, or by the restoration of dormant Peerages. Since the date of that return, further alterations on tlie Roll of the Peers of Scotland have been made, in obedience to the suc- cessive Orders of the House of Lords ; and as it now stands, and was used at the last General Election on the 3rd day of June, 1831, it is as follows: — >!■,» ♦ Journals, vol. xviii. p. 399. J Journals, vol. xxv. p. 416. t Journals, vol. xviii. p. 458. § Joinnals, vol. xxv. p. 477. 101 ROLL OF THE PEERS OF SCOTLAND. H. R. H. the Prince of Wales, Earli. — Gallowaj. Duke of Rothsay. Lauderdale. Dukes.— Hamilton. XX Senfwth. Baccleuch. Kinnoul. Lennox. Lowdoun. Gordon. Dumfries. Queensberry. Stirling. Argyle. Elgin. Douglas. Athole. Traquaire. Montrose. Ancrura. Roxburgh. Wemyss. Marquises.— Queensberry. Dalhousie. Tweeddale. Airlie. Lothian. Findlater. Annandale. Carnwath. Earls. — Craufurd. X X Callender. Enroll. Leven. X X Marioohall. Dysert. Sutherland. Mar. Selkirk. Menteith. Northesk. Rothes. Kincardine. Morton. Balcarras. Buchan. Forfar. Glencairn. Aboyne. Eglinton. New burgh. Cassillis. X Kilninniock. Caithness. Dundonald. Moray. Dunbartoun. X X Nitlisdale. Kintore. Brcadalbane Aberdeen. A 9 w r %/ A ^A ^J ^iJ mmw Home. Dunmore. X A JT VI 11*. Melvill. Wigtoun. Orkney. Strathmore. Ruglen. Abtrcorn. March. Kellie. Marchmont. Haddintoun. Seafield. I OH s ' r. »i MJil fi fS! i:iirls.— Hyndford. Lords.— Sommerville. X Ooiiiiirty. Torphichen. Stair. Spynie. Kuseberrie. Lindores. (ilaay^ow. X PalnieriiKioh. Portmmc. Blantyre. Rute. Cardross. Hoptoun. Colvill of Culross. Oeluruiiic. Cranstuun. Solway. X X Bur^thljo. Iliiy. Jedburgh. Viscounls. — Falkland. Madertie. Dunbar. X X DHigwa!!. Ptoimont. Kenmuir. Napier. Arhutbnot. Cameron. X X Kins'.toHn. Cramond. Oxford. lleay. Irvine. Forrester. X X Kilfiy^h. X Piteligo. Dumblain. Kirkcudbright. Prestoiin. Eraser. Newhaven. Bargany. Strathallan. Banfl". Tiviot. Elibank. Duplin. Halkertonn. Garnock. Bellhaven. Primerose. Aborcroinbie. Lords.— Forbes. Duffus. Saitoun. Rollo. Gray. Colvill. Ochiltree. Buthven. Cathcart. Botherfurd. Sinclair. Bellendcn. Mordingtoun. Newark, Sempill. Nairn. Elphingstoun. Eymouth. Oliphant. Kynnaird. X LovR^. Glassfurd. Bortbwick. 140 Ross. I ,1 100 GENERAL ELECTION, 2nd Srptkmbrr, 1830. The Peers jtrcscnt who voted, were — Duke of Bucclcuch andQucciis- Viscounts. — Arbnthnott. berry. Earls. — Home. Strathmore. Lauderdale. Leven and Melville. Selkirk. Northcsk. Kintore. Roseberrio. Hopetoun. Stratliallan. Lords. — I'orbes. Sultoun. CIray. Sinelair. Elpbinstone. Cdlvilleof CulrusR. C'ranstoun. Napier. Kinnaird. The Peers who voted by Proxy, were — Earls, — Morton. Dukes. — Argyll. Atholl. Marquis. — ^Tweeddale. The Peers who voted by Dukes. — Hamilton . Lennox. Gordon. Montrose. Marquises.— Queensbcrry. Lothian. Earls.— Erroll. Mar. Cassillis. Caithness. Moray. Kinnoull. Dumfries & Eute. Stirling. Elgin & Kincardine Wemyss & March. Airlie. Balcarres. A boy no. Breadalbanc. Lords. — Belhaven. Nairne. signed Lists, were — Earls. — Aberdeen. Dunmorc. Stair. Glasgow. Viscounts. — Falkland. Stormont. Kenmnir. Dumltianc. liOrds. — Cathcart. Sempill. Somerville. Torphichen. Blantyre. Reay. Forrester. Rollo. Ruthven. G4 >!' I i ; , ( r ill no GENERAL ELECTION, .3rd June, 183!. Earls. The Peons present Duke ofBnccleuch and Queens- berry. Marquises.— Qucensberry. Tweeddale. Lothian. -ErroU. Morton. Buchan. Home. Strathmore. Haddington. Lauderdale. Stirling. Airlje. Leven & Melville. Selkirk. who voted, were — Earls. — Kintore. Hopetoun. Viscounts. — Falkland. Arhuthnott. Strathailan. Lords. — Forbes. Saltoun. Elphinstonc. Torphichen. Colvilleof Culross. N apier. Belhaven. Rollo. Ruthven. Kinnaird. The Peers who voted by Proxy, were — Dukes. — Lennox. Argyll. Montrose. Earls. — Ca^sillis. Breadalbane. Aberdeen. Dunmore. Earls. — Roscbery. Glasgow. Portmore. Lords. — Gray. Cranstonn. Reay. Nairne. The Peers who voted by signed Lists, were — Dukes. — Hamilton. Gordon. Earls. — Caithness. Moray. KinnouU. Dumfries & Bute. Elgin & Kincardine. Werayss & March. Balcarres. Aboyne. Earl.— Stair. Viscounts. — Stormont. Kenmure. Dumblane. Lords. — Somerville. Forrester. Kireadbright. 61 Ill The preceding Keluin, extracted from the Records in His Majesty's Cenerul Register House at Edinburgh, is attested by me, Clerk to His Majesty's Councils, Registers, and Rolls. W. DLNDAS, CI. Regn- Arniston, 31st August, 1831. No. IX. C'opi/ of the Judgment of the Court of Common Pleas, on Motion to set aside the IVrit, and Cancel the Bail- Bond, in DiGBY, Knight, v. Lord Stirling.* Chiif Justice Tinilal. — The course wlii(!li the Court mean to lake in this case, is one which, under all the circiunstances, appears to be that which the defendant has a right to claim at their hands, v/ithout pledging the Court to any opinion whatever on the validity of his title : — it appears to us to he (|uite sufiicieut, that the defend- ant should he discharged on common hail, if he is in the eye of the world appearing and acting as a Peer of Scotland, and is allowed to perform that only act of state which aPeer of Scotland, since the Act of Union, is entitled to perform. By the Twenty-third Arti(^leof the Act of Union it is declared, that the Peers of Scotland, from and after the Union, and their successors to their honours and dignities, "shall have rank and precedence ne\t and immediately after the *' Peers of the like orders and degrees in England, at the time of the " Union ;" then it goes on to mention some other privileges — " and " shall have and enjoy all privileges of Peers as fully as the Peers '' of England do now, or as they or any other Peers of Great Britain ** may hereafter enjoy the same — except the right and privilege of " sitting in the House of Lords, and the privileges depending " thereon, and particularly the right of sitting upon the trial of " Peers." All other privileges, therefore they have ; and on look- ing at the Act that was passed immediately before this, the mode of electing Peers— the sixteen Peers— is regulated by another statute, which forms one of the ( omponent parts of the Act of Union ; and by that other statute it is enacted and declared, that a warrant and command of His Majesty shall be issued by the This cwv. is rrported in liingiiaiii, VII. 55. >7 ■ m III i\i\ [ 112 advice of tlie Privy Council, requiring the Peers of Scotland for the. time to meet and assfnihle at a certain place named in the warrant. What we have to see, is, whether this defemiant did, at the timr; when any command or warrant of that nature has been issued, " meet and assemble" as a Peer of Scotland. It appears he has done so on three occasions — first in the year 1825, again in the year 1830, and last in the year 1831. On the two former occasions, no objection vhatcver was taken to his vote ; on the last occasion, a protest was made against it ; still, however, notwithstanding tiiat protest, he voted, and his vote was allowed to remain on the record. It seems to me the circumstance of the protest does not at all add to the invalidity of the title ; but the voting in defiance of the protest, rather has a tendency the other way. However, upon the general (jnestion we propose to give no opinion whatever ; but simply mean to say, that as he does perform this act which, by the Act of Union, Peers of Scotland, and Peers of Scotland oniy, are allowed to perform, wc think, on motion to this Court, we must say Miat his person is to be held privileged from arrest. The objection that has been made to it has been, that any person mighl appear when a meeting look place, calling himself a Peer of Scotland, and would be allowed to vote. We cannot suppose that is meant in that unlimited manmr, because we all know the Peers are a limited body; the Peers of Scotland, and probably the greater part of their persons, would be known to the ofiieers on that occasion. But it has been said that no person has a right to vote there for the first time, unless he comes clothed with an authority from the Chancellor, in obedience to an order of the House of Lords. Sitting here judicially, I do not know that we can take notice of such an order, if it at all breaks in upon, or appears to break in on the words of the Act of Union. If that order has been violated, there is an easy mode of bringing the party who has been guilty of such a violation to an account for it before the I louse of Lords them- selves; but sitting judicially here, we cannot ingraft i( as an article on the Act of Union. AMthout professing, indeed declaring we give no opinion whatever either for the title or against the title, we do not set aside the writ ; the defendant may, if he thinks proper, plead in abatement to that writ ; but we do set aside the arrest of the pirson of the defendant ; and we think, under all the circum- stances of doubt in which this arrest took place, that that order of the Court ought to be made without costs. Judges Caselee, Bosanquet, and Alderson, concurred. Ride absolute accordingly. . . 113 No. X. Copy of the Resolutions of the House of Fiords relative to the Claim of William / lexandbr to the Title of Earl of Stirling, lOth March, 17C2. Journals of the House of Lords, Vol. XXX. p. 186. Die Merc. lOo Mart" A. D. 17S2, 2nd Geo. III. The Lord Wi!" >ughby of Parham reported from the Lords' Com- mittees for Privileges, to whom it was referred to consider of tiie petition of William Alexander, claiming the title of Earl of Stir- ling, with His Majesty's reference thereof to this House — " That the Committee have met to consider the matter to them ** referred; but the agent for the said claimant alleging that he was •' not prepared with evidence to make out the said claim, and " desiring further time, their Lordships have put otT the further " proceeding upon the said claim till the next Session of Parliam«nt, " and have come to the following Resolutions, viz. •' Resolved — That it is the opinion of this Committee, that the " said William Alexander ought, to all intents and purposes, to be " considered as having no right to the said title by him assumed, " until he shall have made out his said claim, and procured the " same to be allowed in the legal course of determination ; and that " in the mean time, until the same shall be so allowed, the said " William Alexander, or any person claiming under him, shall not " be admitted to vote by virtue of the said title at the election of " any Peer of Scotland to sit and vote in this House pursuant to the " Articles of Union. " Resolved — That it is the opinion of tliis Committee, that the " said William Alexander be ordered not to presume to take upon " himself the said title, honour, and dignity, until his claim shall " have been allowed in due course of law ; and that notice of these " Resolutions and Orders be given to the Lord Clerk Register of <' Scotland." Which Report was read by the Clerk ; And the said Ficsolutions being read a second time, were severally agreed to by the House, and ordered accordingly. I I /, u ill I' it 'I- m :H I « 114 No. XI. Copi/ Extract of the Judgment of the Court of Session^ 2bth Januari/, 1831. Court of Session. January 26tb, 1831. Summons of Reduction, &c. &c. Alexander, Earl of Stirling, Pursuer; W. C. C. Graham, and Otliers, Defenders. " Under this style and title, he (the pursuer) cannot be permitted " to insist in the present action." Defences by His Majesty's Advocate, for His Majesty's interest, dated December 1st, J 830. Signed "John Hope." Lord Justice Clerk. — The pursuer has brought a new action, and called the officers of state; and he comes to Mr. Cunningham Graham, and claims a particular barony of his estate, which had been usurped by him or his predecessors ; and he has secured attention to that by putting a patrimonial interest at stake. He has again taken his title of Earl of Stirling. The service to the First Earl has been carried through since the summons was executed ; and it is stated positively, that at an election in 1825, the pursuer voted without protest ; and in the next place, that he proceeded, in 1830, before the Lord High Chancellor in England, to take the oaths, and was received and qualified as a Peer, and c artainly has got the usual certificate ; and at the last general election,* his vote was received without protest. The observations that any noble Lords choose to state in their deliberations, and the notices taken of them by the Clerks, your Lordships will never admit to have the same validity with a protest. If your Lordships were satisfied that that step was allowed to be taken contrary to the Resolution of the House of Lords, then the point would be brought back to the state in which I conceived it to stand when the former summons was • In June, 1831. 115 before us. But a statement being merely made in a minute, and no protest entered, we have pretty real evidence that my Lord Kosebery, wlio moved the Resolution, was convinced and well knew it did not apply to a case in this situation, 1 have not a doubt that his Lordship was quite satisdcd that it did not apply to dor- mant Peeraf^es, and that they were not the claims which should have been excluded. I will act upon this Resolution still, which prevents a Peer from goin^ down to Holyrood House to give his vote, if I an? satisfied that he has no right to that dignity which he Mas assumed. But it is admitted, that its application is in existing Peerages, and not in dormant ones ; ar J; therefore this case is brought back to the former practice in regard to those titles of Noblemen standing upon the Union Roll — according to which, I apprehend, we would have no ground whatsoever for refusing to the Claimants the entertaining of actions describing themselves by the names of any individual Peers, and who took the oaths, and voted, and were actually enrolled by the Clerks acting as the representatives of the Lord Clerk Register. " Edinburgh, February 9th, 1831.— The Lords having heard " Counsel on the first preliminary defence against this action, " sustain instance in the name of Alexander, Earl of Stirling, " and appoint the case to be again put to the Summar Roll, that " parties may be heard quoad ultra.* (Signed) D. BOYLE, J. P. D." * This case is reported in Shaw and Dun's Report!, Vol. 9, p. 3. I 2 IIG No. XII. Cop}/ of Epitaphs in the Parish Church of Binfield, County of Berks. K ■i. Pi ! Mr m " Hfre lies the Rt- Hone- The Lady Tuditli, Countess Stciline, " Daughter of Robert [-ee, of this Parish, Esqfc. was married " to the Riglit Honorable Henry, Earle of Sterline ; and " Grandson of William, Earle of Sterline, Privy Counsellor " of England and Scotland, Sole Secretary of State for the " Kingdom of Scotland.— She had Issue six Sons and four " Daughters, of which four Sons and three daugiiters are now " living, and died in childbed.— She departed this life De- " cember 15, 1681, aged 38." " Here lieth the Body of the Right Honorable Henry Alexander, " Lord Alexander, Viscount Canada, and Earl of Sterline, of " the Kingdom of Scotland.— He married Elizabeth Hobby, " Widow of John Hobby, Esquire, of Rishani Abbey, in this " County, and died without i^siie on the 4th day of December, " 1739, aged 75 yesrs." Ill' The Proof of the Extinction of the male issue of Henry, J^ird Earl of Stirling, <^c. ifc. William Trumbull, Esquire, of East Hampstead Park, in the County of Berks, aged about fifty years, who, being solemnly sworn and interrogate, depones as follows :— He is only son of the late Sir William Trumbull, by the Lady Judith Alexander, Daughter of Henry, Earl of Stirling, who died in or about the year 1690 ; and further depones and .says, that he has been informed, and verily believes, that his Grandfather, the said Henry, Earl of Stirling, was buried at the parish church of Binfield, in the said County of Berks, and left is.sue four sons, viz, Henry, William, • 117 Robert and Peter ; and also three daughters, viz. Alary, Jane, and Judith, the Mother of this deponent: And further depones and says, that ho hath been informed that his said Uncle Henky suc- ceeded bis said Grandfather in his estate and title of Earl op Stirling, and died in or about the year 1739, and was buried in the aforesaid parish church of Binfield, leavinj? no male issue: And further depones and says, that his said Uncle Henry was, as he verily believes, the last person who enjoyed the dignity of Earl of Stirling; And that his three other Uncles, the said William, Robert and Peter, died in the life-time of the said Henky, bis Uncle, leaving no male issue ; And further depones and says, that he verily believes his Creat-Grandfathcr, Henry, Earl of Stirling, had no other Son besides the said Henry, his Grand- father; for that he, this deponent, has often heard his Mother talk of the family, but never heard her mention any such other Son, which he verily believes she would have done if there bad been any such other Son : — And this is the truth, as he shall answer to God. (Signed) W. TRUMBULL. This Deposition was taken under a Commission from the Right Honorable Walter, Lord Torpichen, Sheriff-depute of the Sheriffdom of Edinburgh, dated 23rd June, 1758— directed to Alexander Wedderburn, Esquire, Counsellor at Law; M''- Henry Dagg, Attorney at Law, and several other persons ; and was sworn at London, on Thursday, the lath of July, 1758. ih 118 No. XIII. Cojiy of Mr. Hovenden's Deposition, and Mr. Cont/ers's Declaration, relative to the Charter of Novn-Damus of the 1th December, 1639. Henry Hovenden, of Ballynakill, in the Queen's County, Gent., aged sixty-six years or thereabouts, came this day before me, and made oath that he is immediately acquainted with the Rev. Minister John Alexander, grandson and only male representative of John Alexander of Gartmore, the fourth son of William, First Earl of Stirling, in Scotland, which said John Alexander was formerly of Antrim, but is now dwelling in Warwickshire, in Great Britain; and this deponent further deposeth, that having lately received information from the said Rev. John Alexander, that the original Charter of the Earldom and estates of the aforesaid William, Earl OF Stirling, was in the possession of Thomas Conyers, of Cather- lough in the County of Carlow, Gent., he, this deponent, in pursu- ance thereof, and by the said Rev. John Alexander's particular desire, did go to the house of the said Thomas Conyers, on the 10th of this instant July, and, after some discourse, was permitted to see the aforesaid original charter, whereupon this deponent did most minutely examine the contents; and deponent further deposeth, that the said Charter, written in Latin, is dated 7fi I /. J 20 \.\ •i i- \\ ■f V: No. XIV. Coipy of httter from Mr. Alexander (alias Lord Stirling^ to Mr. Trumbull, [)th November, 1750. Deak Siu, As you was pleased to desire lliat 1 wou'd give you in writing the proposal 1 made 3011 a lew dajs aj^o, rela1in}^° to the rights the heirs of the First lv\iu. oi- SriuLi\(. may have in North America, that you might communicate it to Mr. Lee, I shall now state the matter to you for that i>uri)Ose. — Tiic rights of which the rirst Earl died possessed in America, I coiueive, were three sepa- rate tracts of land, an immense country, to which, within these hundred years, several people have laid claim, as having right, under one Claude De la Tour, a Frenchman, to whom, it is said, the Earl conveyed all his right in 1C29. But I have found suffi- cient evidence that the country was regained from the French in 1631 ; that a new gratit of it passed to the £:>rl in 1()33; and that the Earl died possessed of it in 1040 ; — since which, I believe, nothing has been done by his descendants to invalidate thrir title — Henry, the ancestor of your branch ol il.u family, being averse to having any thing to do with his father's affairs, which were much involved by the expences he had run into for settling this new colony. The second tract was Long Island, a country now inhabited by several thousands of families : here the Earl had his Deputy-Gover- nor many years ; and when he died, it was a thriving colony. After his death, his Governor held possession many years for the family ; but Henry, for the reason before-mentioned, neglected it, and, about the year 1662, conveyed his right to the Duke of York, on consideration of his paying the Earl £300. per annum ; the con- sideration, / am told, was never any part of it paid. Whether Henry had any right to make such conveyances seems doubtful, as he never was served heir to his father, which is a form in Scotland absolutely necessary to invest him with the rights of his father. However, the Crown has, ever since James the Second's time, been possessed of this island; and have enjoyed the quit-rents of it. ii=t ui^' Aw iP i i •21 i The otiu-i lifK't, of wliicli (he F.;iil was possrsufd, i« tlir Country ol St. Croix, or Ssif^iiJ-'liook, adjoiniiii? to Nu\;i Si'otia, on the west of it. Alter Kaiu. Hiniiy hatl niiidr llie a;;r»t'ineiit with tlie Duke of V'ork for TiOii); Island, the Duke tjlitainid a <;rant from the Crown, of the I'rovinee of New "^'ork, and in it was to include Long la'idnd, as a conlirniation of hi/i rii;ht t ) if. It seems the Earl lent the Duke his orij^lnul >;rant of Lonn Island, to enable him tu ttKihf use of the same unrds for desctrihitif;: it ; and that in the same instrument that '-ontained the Earl's riifht to Loni; Island, was also contairied his ri;;ht to the Cctuntry of .St. Croix ; and that the Duke, in his new <;rant from the Crown, inserted not only the deseri|)lion of Lon<;- Island, but of tin- Country of St. Croix also ; thus, whether desi<;nedly or not, the Duke obtained a pretence of a right to this tiiird Iraet, wliicli has sinec iciuaini il in the hands of the Crown, but is not possessetl by any of its subjects — which is a circumstance nuieh in our favour, as the restoring of it to us will be atteinled with the less inconvenience to the Cruwn, than if it had been settled. This, from the best intelligence I have been able to collect, in the situation of the claims the h(>irs of the First Eakl of Stihling have in America: whether the right to those claims descend to his heirs at law, which would be yourself and Mr. Lee — or whether they descend to his heirs male, which I am found to be— I cannot tell ; hut from circumstAinces hefurc-mentioned, I should lltbik it doubt- ful whether IJenry had any legal rigiit to make the a'j,reenient with the Duke of York, or whether he could have any lii;al right to any part of his father's possessions, as he would not su(l< r his ser^ i; e of heir male, nor be subject to any of his debis, whicii occasioned his estates in Scotland to be divided between his «ii ilitios ; and the oidy thing that secured his American estate from the like se(|ues- tration, was its remoteness, and the little value of laols iti that country at that time. However, i iliink it will be best for us all to act jointly, in any application that is to be made for the recovery of those rights ; and I am willing to come into an agrecmont with you and INIr. Leo about the matter. I will agree that whatever may be recovered, shall be divided, one half between you and Mr. Lee, and the other half to myself; and, as I shall have some leisure time this winter, 1 will take all the trouble and expence of searching the matter to the bottom, and of prosecuting it, so far as we shall jointly think it prudent. I shall be glad you would comrounieatethis proposal to Mv. Lee, and to have your and his answer as soon as conivenient; for IMAGE EVALUATION TEST TARGET (MT-3) 1.0 iai2_8 150 "^ IM I.! ■ 2.2 u us i ml 20 ^ 11^ IJ4 *" '/] oj^ y: 7 Photographic Sciences Corporation 23 WIST MAIN STRUT WIBSTER.N.Y. 14S«0 (716)S72-4S03 '^^ •^ \ ^^ \\ ^v ^*^ \ i^ 1 \ w rf"'// 122 American matters, which formerly were but little regarded by the Ministry, are now become an object of their attention ; they will now be glad to have the titles of their American Colonies well settled. Besides, I shall sei out for America next spring, and perhaps we shall never again have an opportunity of acting jointly in this matter. These circumiitances seem to make this the proper time for doing something in it. — When you write Mr. Lee, be pleased to make my most respectful compti. to him. Had I been in Yorkshire this summer, I should certainly have had the honour of ivaiting on him, and am not without hopes of having that plea- sure before I leave England. I am, very truly, Sir, Your much obliged humble Servant, New Portugal Street, (Signed) STIRLING. Nov. 9th, 1759. To vVilliam Trumbull, Esq'- m No. XV. Copy of Letter from Mr. Trumbull, in answer to Mr. Alexander, of Not^' 9th. — Dated East Hampstead Park, ** I HAVB returned you Lord Stirling's letter, to whom, when ** you write, I desire you would present my respects. As to his " Lordship's proposal, if you approve of it, I shall readily come into " it, and am willing to sign any agreement necessary to the carry- " ing it into execution. " York, 28th Nov'- 1760." Mt Lord, Above is a copy of my cousin Lee's letter in relation to your Lordship's proposal in your letter of the 9th Nov'- last ; and as he is very willing, so am I, to come into the agreement you proposed. I have therefore now sent you up all the writings and papers I ;. .■*v,W-^ 123 Imve relating to our North American affairs, a. well a, a book of ®;'r?"';V!f *"'**'■'' «°"««P"°dence. while he was Secretary of State for Scotland. I think a proper agreement should be drawn up^ for us all to s.gn-which I desire the favour of your Lordship I am Your Lordship's most obsdient humble Servant, East Hampstead Park, (gigged) W. TRUMBULL. 13th Decr 1769. ^^ Eleven parchments, marked A, from fall. Eleven papers, ditto B, from 1 a 11. Twelve ditto, ditto C, from 1 a 12. Twenty-eight ditto, ditto D, from la 28. A parchment book, ditto E. Utter from William Philips Lee, Esq. to the Earl op ^TiRLiVG— Dated York, January 12th, 1760. My Lord, Upon rt reiving the honour of your Lordship's letter, I writ to Mr. Tru^nbuli, mentioning some trifling alteration in the copy of the agreement you was so obliging as to send me. My cousin has since been in London, but was not so happy as to meet with your Lordship; he will soon, I hope, be more successful, when I doubt not but a very few words will entirely settle the affair. The honour of your Lordship's correspondence wMI be at all times extremely acceptable to, My Lord, Your most obedient humble Servant, (Signed) WM. PHILIPS LEE. 1 1 \ I I - fr-«t7^ _ Tablk, No. II. PEDlGREEr^shewinff the alleged Descent o/Gkneral William Alexander. John Alexander, of Gogar, Uncle to William, Ist Earl of Stirling (Vide Table I.) Alexander Alexander, in Milnab, born in 1603. David Alexander, in Ward of Muthiel. James Alexander, ob. 1756, formerly Surveyor- General of New Jersey. Mary, daughter of John Sprott, of Wigton. William Alexander, who claimed the Earldom in 1760; but his claim was rejected by the House of Lords, March 10th, 1762. He married Sarah, daughter of Philip Livingstone, Esquire, and died at Albany, in New York, 12th January, 1783, without issue male. ■ 1, 1' j • \ '■ I 1 1 1 i<^ ■ M PEDIGREE—shew \^T^, ^Vr'["''^''' = ^''^«''^»h. uiclovv of SthEarlofMirhng, John Hobby, Esq died at eldcstsonofSirJohn Ewell Green, Surrey, H„bby, Bart., of 4th December, 173U, Bisbam, Berks. s. p. I Robert Lee, ob. s. p. Charles Philhps, OD. S. p. M daiig and ] r* William Sandys, ob. s. p. Table, No. PEDlGREK—shewing the Descent of the Dowa Hrnry Ai.kxander, 4th Earl of Stirling, ob. 1690. 1. Hinry Alexan(lpr,= Elizabeth, wulow of 5th Earl of Stirling, John Hobby, Ksc). died at eUlestson ofSjr John Ewell Green, Surrey, Hobby, IJart., of 4th December, 1731*, Bishani, Berks. s. P. 2. William. 3. Kobtrt. 4. Peter. Omnes ob. s. i». ante 1730. Mary,= 1 Robert Lee, ob. s. P. Charles Phillips, ob. s. P. William Phillips Lee, of BinHeld, Esquire, died at York, 12th March, 1778, aet. 71, s. p. r- Mary, == Honourable Martin Sandy daughter and heir. ob. 1768. William Sandys, ob. S. p. Edward Sandys, ob. s. p. Mary, of dau now Do of Table, No. III. escent of the Dowager Marchioness of Downshirb. Irnry Alexander, =JiiDiTn, daughter of 4th Earl of Stirling, ob. 1690 Robert Lee, of Binfield, Esquire. in. I. s. p. 0. Mary,= . . Phillips, of Binfield, County of Berks, Esquire. Judithj-jSir William Trumbull, j Knight, Secretary to King William III. ob. 1716. Jane, ob. s. p. Eim Phillips Lee, infield. Esquire, led at York, arch, 1778, aet. 71, s. p. William Trumbull, =Chetwynd, daughter and ob. 24th April, 1760. co-heir of Montague, Viscount of Bluniell. -J ourable Martin Sandys, ob. 1768. Mary, Baroness Sandys, of Ombersley, daughter and heir, now Dowager Marchioness of Downshire. X .,