previous creation, more especially as there was no resignation of the honours. That the charter 1621, moreover, proceeded upon a mistake as to the former limitation of the lands, contained no resignation of the honours, and pointedly referred to the original creation as to the enjoyment of them.

That the charter 1593 must be the rule of succession to the honours, and that the claimant's right as heir-general by virtue thereof was strengthened by the charter 1621, which referred to the previous infeftment. In regard to the long silence in claiming the dignity, the claimant stated that the family difficulties made it inconvenient previously to assume the title, and that it was therefore allowed to remain dormant, as there was no prescription in peerage matters.

Upon hearing counsel for the claimant, and the Lord Advocate for the Crown, it was, 15th April, 1785, "Resolved, That it is the opinion of this Committee, that although the original creation of the title, honour, dignity, and Peerage of Spynie has not been shown, yet it sufficiently appears from the act of ratification 1592, the charter 1593, and the charter 1621, that the descent was limited to the heirs-male of Alexander Lord Spynie, consequently that the claimant has no right to the said peerage."

Which report was agreed to by the House.

APPENDIX.

I.

NOTES OF LORD MANSFIELD'S SPEECH.

[The following somewhat imperfect notes of the speech of Lord Mansfield are preserved in the charter-chest of the present representative of the noble family of Spynie, together with the important observations of Lord Hailes on the judgment.]

15th April 1785.

The claimant founded on charter 1590 by petition and case—now admitted that this charter has nothing to do with Peerage. No other instrument of original creation appears. Act 1592 refers to a peerage existing-charter 1593 does the same-charter 1621 does the same-none of them original.

Honour created by belting, without writing or mention of descent. Lord Spynie sat in Parliament before Act of Ratification.

His Lordship referred to the act 1592, c. 121, respecting belting. Wherever limitation of a Peerage does not appear, established rule now fixed and settled, that presumption is in favour of heirs-male of the body. So decided in case of Cassillis, and anxiously adhered to ever since. In Sutherland case the contrary rule of descent proved.

Principle here is descent to heirs-male, but does not rest here. Instruments produced taken to heirs-male.-Act 1592, and charters 1593 and 1621.

Highly improbable title should in this manner go to a daughter. Niece disinherit her uncle.

Several grants appear to father and son. All to males.*

The Crown gave in evidence a charter to the first Lord of the lands of Burnsyde, dated in February 1606, in which the destination was, Heredibus suis masculis et assignatis quibuscunque." Three charters to the second Lord, all dated after the charter 1621, in which the lands were limited to the heirs-male of the body. The first (March 1623) was of the lands of Carrestoun, the second (April 1624) of the Dominical lands of Leyis, and the third (January 1631) of the lands

No pretence for a new creation.

By 1621 no variation intended either to lands or honours. Then only one son.

New lands to be added, and then general words extending to the honour new lands. Expressly to the heirs-male.

II.

REMARKS BY LORD HAILES ON THE DECISION.

The difficulty arising from the charter 1621 is certainly very great, and it might warrant the judgment.

Still the case is not clear. Alexander Lindsay could not have been made a Peer of Parliament by belting, or investing with a belt and sword, between 1590 and 1592. That ceremony was performed in Parliament, if I mistake not, and was a public notification of the King's pleasure in making a Peer, the same in effect and different in form from letters patent. I say he could not have been belted between 1590 and 1592, for there was no Parliament either in the year 1590 or 1591. The illustration from the case of Douglas Lord Belhaven is nothing to the purpose; he was belted not about that time, but forty years after, in the first Parliament of Charles the First. As I take it, the grant 1590, and act of Parliament 1592, and what followed upon it, was all that Alexander Lindsay had by way of patent. The destination is singular enough, but that may be accounted for in this way: The King meant to favour the children of the Countess of Angus, male or female, but he would not give the temporal Lordship to any other female descendants of Alexander Lindsay. The silence of Lord Spynie's niece is nothing to the purpose; it would have been silly in her to have assumed a title which in those days did not so much as secure the person of a Peer when there was no estate to take along with it. The title of Somerville was laid aside in the last and during part of this century for the very same

reason.

and Barony of Fineven. It is to these grants, probably, that Lord Mansfield alludes. What he means by saying that the charter 1590 had nothing to do with the Peerage is not very intelligible.

IV.

EARLDOM OF GLENCAIRN-1797.

[For the strange misrepresentations, irrelevant doctrine, and lax procedure of Lord Loughborough (afterwards Earl of Rosslyn) in this case, vide "Riddell's Inquiry into the Law and Practice in Scottish Peerages, before, and after the Union," pages 819 to 833. Edinburgh, 1842.]

JAMES the THIRD, by charter under the Great Seal of Scotland, dated at Edinburgh, 28th of May 1488, created Alexander, therein designed Alexander Earl of Glencairn and Lord Kilmaurs, an Earl. The words used are, "facimus et creamus eundem nostrum consanguineum Comitem in exaltationem sui honoris, perpetuis futuris temporibus Comitem de Glencairn et Dominum de Kilmawris nuncupand." In support of this honour, his Majesty, by the same deed granted the thirty pound land of Drummond, and ten pound land of Duchray, in the Earldom of Lennox and County of Stirling, to be held by his Lordship, and his heirs, of the King, and his heirs and successors for ever.

Prior to his elevation to the Earldom, Lord Glencairn had the title of Lord Kilmaurs, the consequence of which was, that after his death, at the battle of Sauchie-burn, in June 1488, his son Robert was enabled to retain the barony, although the Earldom was as a new dignity granted since the 2d of February preceding the creation, annulled after the Accession of King James IV., by proclamation issued at Scone, and thereafter (6th October 1488) ratified by Parliament.

Cuthbert, the son of Robert, and grandson of Alexander, had the title of Glencairn recognised by the Crown as existing

in his person, and the honour descended in a direct male-line from father to son, till it came to William the ninth (or, if Robert, Earl Cuthbert's father, be excluded, the eighth) Earl of Glencairn.

This Lord having great political influence, obtained letters patent, dated at the Palace of Oatlands, (21st day of July 1639,) which referred to and confirmed the grant in favour of Earl Alexander, and the enjoyment of the honour by his descendants. "Volumus et concedimus, et pro nobis et successoribus nostris decernimus et declaramus, quod hæc presens nostra generalis ratificatio est, et erit, tam valida, efficax et sufficieus, ac si prædictæ literæ patentes de verbo in verbum presentibus insererentur, quocirca, nos dispensavimus tenoreque presentium dispensamus, nunc et in perpetuum. Preterea volumus, et concedimus, ac pro nobis et successoribus nostris, decernimus et declaramus, quod præfatæ literæ patentes factæ et concessæ per dictum quondam Jacobum Tertium, Scotorum Regem, dicto quondam Alexandro Comiti de Glencairn, et hæc presens nostra ratificatio earundem, sunt et erunt, validum, perfectum et sufficiens jus et titulus, unde præfatus Willielmus nunc Comes de Glencairne, heredes sui et successores, omni tempore futuro, libere, quiete, et pacifice, prefatis honore et dignitate Comitis secundum validitatem predictarum literarum patentium fruentur et gaudebunt."

Earl William was succeeded by his eldest son Alexander, who died 26th May 1670, leaving by his wife, a daughter of Sir William Stewart of Kirkhill, one child, Lady Margaret, who married John, sixth Earl of Lauderdale, and died in 1740.

The dignity was, however, assumed by John, second son of Earl William, who sat in Parliament, and was uniformly recognised as Earl of Glencairn. He died on the 14th December 1703, and was succeeded by his only son, William the twelfth Earl, who, departing this life upon the 14th March 1734, was succeeded by his son, William the thirteenth Earl. His sons, James the fourteenth, and John the fifteenth Earls, successively became heirs to the title and estates, and upon the demise of the latter, 24th September