Page:The Complete Peerage Ed 1 Vol 5.djvu/224

 222 MAR. and sue. to the peerage dignity, on the death before 22 Nov. 1395(») of her mother the Countess Margaret, having previously, on the death (1888) of her brother, Earl Douglas, abovenamed, sue. to the unintailed estates of the house of Douglas. She m. firstly, Sir Malcolm Diu'.mmond. of Drnmniond (br. of Aunabella, the Queen Consort [S. ], who in her right is styled ( 1 3PS), Lord of Mar, ( b ) and who d. s.p. before27 May 1403.( c ) She in. secondly, Sir Alexander Stkwakt, who had besieged her castle of Kildrummie, and forced her to make a charter, 12 Aug. 1104, settling the Earldom, failing the heirs of her body, on him and his heirs. This charter (which was extorted by violence, and which would iu any ease have been invalid till it had the Koyal sanction), he surrendered five weeks later, 10 Sep. 1 404,< l1 ) when (at her age of, probably, 40 or upwards) she chose him in free marriage, and on 9 Dee. HO I (when the marriage took place) by a new charter in which she styles herself " Isiihel dt Douglas, Cuvtitissu de Mar ct dc Gariiach " settled the Earldom of Mar, the castle of Kildnimmie, the forest of Jedburgh, the Lordship of Garviaehor Gariuch,thc Barony of Strathelveeh in Banff- shire, the Barony of Criehmond iu Buchan, &e. to the Raid Alexauder, who become thenceforth EAKL OF MAR [S.], with rem. to the heirs to be begottcti between them, whom failing, with rem. to her right heirs " c x ulraijiie partc."{ e ) The charter of 9 Dec. 1104, was confirmed by Koyal charter, 21 Jan. 1404/5.( f ) The Countess d. s.p. previous to 10 Feb. 1407/8. ( s ) An obligation of King Robert III. [S.], not to accept any resignation, which " Isabel, Countess of Mar and Oarlock " may make of those Earldoms, iu prejudice of the Erskine family, the heirs thereof, is dat. 22 Nov. 1395. This important document was produced at the decreet of ranking iu 1606, and is printed in Lord Hailes's Sutherland Case. ( b ) See p. 221, note •' d." ( c ) It is probable (and such is Mr. Tytler's opinion) that Alex. .Stewart, who »i. Hs widow, was the virtual author of his death. ( d ) The charter of 12 Aug. 1404 (notwithstanding its resignation) was registered more than 70 years later, ! ! by the special command of King James III. [S.], 26 April 1476, for the purpose of supporting the Crown in its claim to dispose of this important Earldom. The instrument, 19 Sep. 1404, of the renunciation of the August charier (a charter extorted but a few weeks previously) "altho' not produced from the Mar chest in 1875, was there in 176 1, when the article "Mar " in Douglas's peerage was written, where it is described at length. It was produced and founded on in the processes instituted before the Court of Session by the Treasurer-Earl of Mar where, we have minute description of the instrument ; and in one of these processes u special interlocutor was pronounced affirming its authenticity. It is hardly necessary to say if no sasine had passed on the charter of 12 Aug., it was so completely extimjuished by the renunciation [made a few weeks later} that no sasine could a/tericards have been taken ou it, and it could not [consequently, 72 years alter such extinction] have been validated by the Royal confirmation, [See "A "(vol. i, p. 206) as in note " b," on p. 218.] ( c ) The doctrine of materna matcrnis, by which, according to English law, " a subject derived from a mother does not go to the children's paternal heirs (supposing the children to have succeeded and died without issue) but to the heirs of the mother does not prevail in Scotland ; hence " if the Earldom had still been descendible to heirs at law there might in 1435 have been an opening for the Douglas representa- tive," but the Supreme Civil Court decided, iu 1624, that as the charter of 1404 contained lauds that had descended to the Countess from the families both of her father (Douglas) and her mother (Mar), the words (which by accident or otherwise are omitted in the royal confirmation, 21 Jan. 1404/5), should he interpreted as "paterna palernis, materna maternis." [See Kiddell's " Jtaimrks" (1833), pp. 45-55. It is certain, however, that Janet, wife of Sir Thomas Erskiiie, the great gniadaughter (thro' her mother's mother) of Karl Gratuey, was looked upon as the heir presumptive to the Countess Isabel, as early as 22 Nov. 1393, when King Robert 111. |S.] declared, under the great seal, that he would not accept any resignation of the Countess Isabel to their prejudice. This promise, indeed, he retracted, 24 May 1397, so far as any such resignation made, or to be made, in favour of George Douglas, afterwards Earl of Angus, but finally (practically) substantiated, when confirming (21 Jan. 1404/5,) the settlement made by the Countess Isabel, dated 9 Dec. 1404. ( f ) It is either from this date or from 1395 that the Earldom of Mar takes its precedence on the Union Roll, these being the oldest vouchers produced by the then Earl of Mar at the decreet of ranking iu 1606. The charters of 12 Aug. 1404, aud 9 Dec. 1404, and the Koyal confirmation of the latter, 21 Jan. 1404/5, are printed in " A," (vol. i, p. 207), as iu note " b " ou p. 218.