Table, No. I. 
 
 /. 7 Avn Hovan from the Creation of the Titles to the present Time . 
 
 PEDIGREE — shewing the Descent of the Earldoms of Stirling an > j 
 
 Andrew Alexander, 
 of Menstrie, 
 
 ninth in descent from Alexander M‘Donald, 
 second son of Donald, King of the Isles. 
 
 1. Alexander Alexander, 
 of Menstrie, ob. 1594. 
 
 2. John Alexander. 
 (See Table, No . II.) 
 
 1. Sir William Alexander, 
 of Menstrie, Knight, 
 
 Master of Requests to King James VI. ; born 1580 ; 
 knighted 1614. 
 
 12th July, 1625, Hereditary Lieutenant, &c., of Nova 
 Scotia ; also Premier Baronet , with 
 precedency from 21st May, 1625. 
 4th Sept. 1630, Lord Alexander, of Tullibodie, and 
 Created/ Viscount of Stirling, 
 
 14th June, 1633, Viscount of Canada , and Earl of 
 Stirling. 
 
 30th July, 1637, Earl of Dovan. 
 
 7th Dec. 1639, Charter of Novo-Damus. 
 
 Privy Councillor and Secretary of State, 1626; Keeper of the 
 Signet, November, 1627 ; a Lord of Session, 28th July, 1631 .— Died 
 at° London in February, 1640, and buried at Stirling, 12th April 
 following. 
 
 Janet, 
 
 daughter and heir of 
 Sir William Erskine, Knight, 
 Bishop of Glasgow, and 
 cousin-german of 
 John, 6th Earl of Mar, 
 Regent of Scotland. 
 
 2. Andrew Alexander. 
 
 Margaret Alexander, 
 married Mr. James Gordon, 
 Keeper of the Signet. 
 
 1. William, 
 Viscount Canada, 
 died at London 
 (vita patris) 
 in March, 1638, 
 and was buried 
 at Stirling. 
 
 == Margaret, 
 Daughter of 
 William, 
 
 Marquis of Douglas, 
 died 1st Jan. 1660. 
 
 2. Sir Anthony, 
 
 Master of the King’s Works in 
 Scotland, married a daughter of 
 Sir Henry Wardlaw, of Pit- 
 reavie, Bart. — Died at London, 
 August, 1637, and was buried 
 at Stirling. — Left no issue. 
 
 i 
 
 William, 
 
 2nd Earl of Stirling, 
 died about May, 1640, 
 aged eight years. 
 
 1. Catharine, = Walter, 
 
 Lord Torpichen. 
 
 2. Jane. 
 
 3. Margaret, = Sir Robert Sinclair, 
 
 of Loftgfbrmacus. 
 
 L Henry, 
 
 Earl of Stirling, 
 m arried Elizabeth, 
 widow of John Hobby, Esq. ; 
 
 d ,e d, without issue, 
 at bvvel] Green, county of 
 Surrey, 4th December, 1739, 
 and was buried at Binfield. 
 
 1. «f°hn, 
 
 7 th Earl of Stirling 
 
 3. Henry, 
 3rd Earl of Stirling, 
 succeeded his 
 nephew, 
 
 William, 2nd Earl, 
 ob. ante 
 
 16th August, 1644. 
 
 Mary, 
 
 daughter and 
 co-heir of 
 Sir Peter Vanlore, 
 of Tylehurst, 
 co. of Berks, 
 Bart. 
 
 — r 
 4. John, 
 Settled in the 
 North of Ireland, 
 ob. 1666. 
 
 Agnes, 
 
 daughter and heir 
 of Robert Graham, 
 of Gartmore, Esq. 
 representative, in the 
 second branch, of the 
 Earls of Menteith, 
 and lineally descended 
 from King Robert Bruce. 
 
 5. Charles, 
 married 
 Ann Drury. 
 
 6. Ludovick, 
 died in infancy. 
 
 7. James, 
 married 
 Grisel Hay. 
 
 1 I I 
 
 1. Jane 
 
 '1st. Hugh, Viscount Montgomery, 
 of the Ardes. 
 
 -General Munroe. 
 
 Cist. Hugh, 1 
 
 , =2 o 
 
 f 2nd. Major-! 
 
 2. Mary, = Sir William Murray, Baronet. 
 
 3. Elizabeth, 
 died unmarried. 
 
 Henry, — Judith, 
 
 4th Earl of Stirling, 
 ob. 1690. 
 
 daughter of 
 Robert Lee, 
 of Binfield, 
 county of Berks. 
 
 Jane, 
 ob. ante 
 1739. 
 
 John, 
 died April, 
 1712. 
 
 Mary, 
 
 daughter of 
 Hans Hamilton, Esq., 
 died June 1st, 1724, 
 aged 63 years. 
 
 — ;~i 
 
 J anet, 
 only 
 
 daughter 
 
 ! 
 
 Charles, 
 
 died 
 
 without issue. 
 
 Margaret, 
 ob. s. p. 
 
 2 . William. 
 
 3 . Robert. 
 
 4. Peter. 
 
 Omnes ob. s. p. 
 ante 1730. 
 
 1 . Mary, =. . . . Phillips, Esq. 
 
 of Binfield, Berks. 
 
 Issue extinct. 
 
 2 . Judith, =Sir Wm. Trumbull, Kt. 
 
 ob. 1716. 
 
 (See Table, No. Ill*) 
 
 3 . Jane, ob. s. p. 
 
 John, 
 
 6th Earl of Stirling, 
 succeeded his cousin, 
 Henry, 5th Earl, 
 4th December, 1739 ; 
 
 born at Antrim, 
 30th September, 1686, 
 died at Dublin, 
 
 1st November, 1743. 
 
 Hannah, 
 
 daughter of the Rev. John 
 Higgs, of Chad wich, county 
 of Worcester, great-grand- 
 daughter of Dr. Griffith 
 Higgs, Dean of Lichfield, 
 Temp. Car. I. 
 ob. 1768. 
 
 1 . Mary, 
 died unmarried. 
 
 2 . Elizabeth, =John Mee Skinner, Esq. 
 
 
 7 1* 1 V ndth r 
 
 born at Dublin, 20 January, 173 5-6; 
 died unmarried, & n December, 1765. 
 
 2. Benjamin, 
 
 8th Earl of Stirling, 
 born at Dublin, 11th March, 1736-7; 
 died unmarried, 18th April, 1768. 
 
 1 . Mary, 
 
 Countess of Stirling, 
 born at Dublin, 1st October, 1733 ; 
 died unmarried, at the Larches, 
 April 28th, 1794. 
 
 2 . Hannah, 
 Countess of Stirling, 
 succeeded her sister, 1794 ; 
 born at Dublin, 8th January, 1740-1; 
 died at her house, in the College Green, 
 Worcester, 12tli September, 1814. 
 
 William Huniphrys, 
 of the Larches, cou n ty 
 of yVarwick, Esq., 
 died at Ver< un, in France, 
 1 st May, 1807. 
 
 ALEXANDER, 
 
 9tli and present 
 
 EARL of STIRLING and DOVAN. 
 

 AN 
 
 ANALYTICAL STATEMENT 
 
 OF 
 
 the case 
 
 OF 
 
 ALEXANDER, 
 
 EARL OF STIRLING AND DOVAN, 
 
 &c. &c. 
 
 CONTAINING AN EXPLANATION OF 
 
 HIS OFFICIAL DIGNITIES, 
 
 AND 
 
 peculiar territorial rights and PRIVILEGES in 
 
 THE BRITISH COLONIES OF 
 
 nova SCOTIA AND CANADA, 
 
 8tc. Sc c. 
 
 and also shewing 
 
 the DESCENT OF THE STIRLING PEERAGE HONOURS, 
 
 SUPPORTED BY LEGAL EVIDENCE, AND THE LAW AND USAGE OF 
 SCOTLAND, APPERTAINING THERETO: 
 
 WITH A VARIETY OF 
 
 INCIDENTAL NOTES AND OBSERVATIONS. 
 
 By SIR THOMAS C. BANKS, Bart. N. S. 
 
 FIAT JUSTITIA, RUAT CCELUM." 
 
 LONDON : 
 
 JAMES COCHRANE AND CO. 
 
 11, WATERLOO PLACE, PALL MALL. 
 
 1832 . 
 
" — ' 
 
DEDICATION. 
 
 TO 
 
 l&ins'a ill o st &yt$i\$nt JWajfstib 
 
 Sire, 
 
 In dedicating this Pamphlet 
 to Your Majesty, I am not so vain as 
 to imagine there is any particular merit 
 in its performance, to recommend it to 
 your Royal notice; but I feel a confi- 
 dence, that, should it ever be read by 
 Your Majesty, you will find in it a 
 detail of the most interesting nature, as 
 well affecting the Individual to whom 
 it relates, as affecting also the honour 
 of the Crown, in the administration of 
 the laws of the Kingdom with impar- 
 tial justice. 
 
 a 
 
IV 
 
 When the Noble Individual in question 
 applied to be admitted to your presence, 
 to pay his homage of respect and con- 
 gratulation upon your happy accession 
 to the Throne, he could not apply in 
 any other character, than in the one he 
 had acquired by right of inheritance, 
 by the exercise of his Peerage rights, 
 and by the qualification of having 
 already taken the Oath of Allegiance 
 to Your Majesty, as one of the Nobility 
 of your Realm. He had obtained a 
 public acknowledgment of status, and 
 was admitted to be an Earl de facto, 
 while the right of being an Earl de 
 jure, was not and could not be disputed 
 by any claim, preferred from any other 
 person. 
 
 In this respect. Your Majesty had 
 not to inquire into further particulars, 
 than to be assured that the Earl of 
 Stirling actually held the status he 
 represented ; your reception of him by 
 
V 
 
 that title, could not have confirmed it 
 to him against another person, who 
 might be capable of proving a better 
 right at any future day ; nor has your 
 denial to receive him, the power ol 
 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 
 
 a 2 
 
J 
 
 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 Yl. 
 
 Henry VII. was never King de jure, 
 but he was King de facto. I will not 
 put the question as to William III. ; 
 but I 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 jus 
 snccessionis 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 Majesty, 
 
 i 
 
vii 
 
 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 
 proper and equal administration of it to 
 all alike. 
 
UH1 
 
 viii 
 
 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, the Magna Charta of 
 King J ohn has ever been estimated the 
 principal. In it is an article which 
 says, that “ none shall he 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 volo, sic 
 jubeo, of liis 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 
 
 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, T 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. 
 
X 
 
 has 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, 
 
 London, 
 February, 1832. 
 
 T. C. BANKS. 
 
ADVERTISEMENT. 
 
 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 
 Alexander (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 
 
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 
 precept for seisin and infeftment directed 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 
 lol lowed by his said ancestor, in the Patents given 
 by him to the several Baronets who had their 
 
xiii 
 
 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. 
 
 » A proper deed, in the Scotch form, has been accordingly 
 executed to me, under the Great Seal of Nova Scotia. 
 
u 
 
 
 
 
 r 
 
 
CONTENTS. 
 
 Preliminary Address . 
 
 CHAPTER I. 
 On the American Property . 
 
 Page. 
 
 . xix 
 
 . I 
 
 CHAPTER II. 
 
 Dissertation on the Laws of Scotland, with regard to 
 Retours, or Services of Heirship 
 
 CHAPTER III. 
 
 Of Peerage Succession in Scotland, and of the effect of 
 being permitted to vote at Holyrood House 
 
 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 
 
 CHAPTER V. 
 
 On the pretensions of the Dowager Marchioness of Down- 
 shire, to the Stirling Titles and Estates 
 
 CHAPTER VI. 
 
 The Earldom of Dovan • 
 
u 
 
 xvi 
 
 CONTENTS. 
 
 APPENDIX. 
 
 Page. 
 
 No. I. — Copy of the Retour 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-Damus, 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 78 
 
 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 .81 
 
 No. IV. — Copy of the Claim of the Service of Alexander, 
 
 Earl of Stirling, as nearest and lawful heir in 
 special of William, First Earl of Stirling, with 
 the Verdict annexed 84 
 
 Copy of the Verdict 90 
 
 Copy of the Act of Court of the Special Service 
 of Alexander, Earl of Stirling, &c. 
 
 91 
 
CONTENTS. 
 
 XVII 
 
 99 
 
 Page. 
 
 No. V. Copy of the Minutes of Election of James, 
 Viscount of Strathallan, as one of the sixteen 
 Peers of Scotland, in the room of the deceased 
 Alexander, Earl of Balcarres . • .95 
 
 No. VI.— Copy of the Minutes of Election of the sixteen 
 Peers of Scotland, 2nd September, 1830 
 
 No. VII.— Copy of the Protest against the Officiating 
 Clerks at the Peers’ Election, 3rd June, 1831, 
 by the Duke of Buccleuch and the Earl of 
 Lauderdale, with the Earl of Stirling s Answer 
 thereto 
 
 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 
 
 106 
 
 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, a. 
 
 Lord Stirling 111 
 
 Xo. 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 
 
 Binfield, County of Berks . • • • 
 
 The proof of the extinction of the male issue of 
 Henry, Third Earl of Stirling, &c. &c. . • 
 
xvili 
 
 CONTENTS. 
 
 Page. 
 
 No. XIII.— Copy of Mr. Hovenden’s Deposition, and 
 Mr. Conyers’s Declaration, relative to the 
 Charter of Novo-Damus>f the 7th December, 
 
 No. XIV.— Copy of Letter from Mr. Alexander (alias 
 Lord Stirling) to Mr. Trumbull, 9th November, 
 1759 
 
 120 
 
 No. XV— Copy of Letter from Mr. Trumbull, in answer 
 to Mr. Alexander, of November 9th. Dated 
 East Hampstead Park, 13th December, 1759, ]22 
 
 Letter from William Philips Lee, Esq. to the 
 same Mr. Alexander, alias Earl of Stirling. 
 Dated York, January 12th, 1760 . . J23 
 
PRELIMINARY ADDRESS. 
 
 In submitting the contents of the following 
 pages to public notice, it may be asked, what the 
 public has to do with the affairs 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 detiact 
 b 
 
 Cl 
 
XX 
 
 from his indubitable evidence in support thereof, 
 and to asperse his character personally, with the 
 most illiberal, invidious, and contumelious reflec- 
 tions. 
 
 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, 
 whereof the newspapers, at the time, gave a very 
 imperfect account, and thereby caused a very 
 erroneous opinion to be formed of what passed on 
 
XXI 
 
 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 
 a sum of money lent, by him, to the Earl of 
 Stirling, for which his Lordship’s promissory 
 note had been given to him, as an obligatory 
 security ; and a bill of exchange, drawn by a 
 friend of the Admiral, upon, and accepted by, the 
 Earl of Stirling. 
 
 This was the nature of the transaction between 
 Sir Henry and the Earl. But it so afterwards 
 occurred, that the Earl of Stirling con- 
 sidered it necessary to discontinue the services 
 of the individual referred to, which circum- 
 stance having been communicated to the Adini- 
 ral, he was much annoyed, as subsequent events 
 have abundantly proved, and wrote a letter to 
 the Earl, to ascertain the cause, and to re- 
 quire payment of the money owing to him. He 
 was replied to, in a manner which was at once 
 candid, explanatory, and to an unimpassioned 
 person, ought to have been satisfactory; but it 
 would seem that the motive of the Earl, inducing 
 
 b 2 
 
 
XXII 
 
 
 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. — 
 He gave instructions to his Attorney, to arrest 
 the Earl as a commoner, by his family name — 
 though he knew that the Earl, being entitled 
 to his privilege of Peerage, was not liable to 
 personal caption — though he had recognized him 
 as Earl of Stirling, 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 
 or molest his fellow-man : I wish I could in the 
 present instance illustrate that high reputation, by 
 
XXlll 
 
 the example of this renowned Knight 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 
 misrepresentations; 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 Earl 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 
 a complaint to the House of Peers. At the general 
 election in September, 1830, they were present in 
 
 
xxiv 
 
 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 what 
 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. f 
 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 right 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 
 afford 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 Appendix, p. 110. 
 
XXVI 
 
 
 be seen that it was not truth, but the perver- 
 sion 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 friend of 
 Sir Henry Digby has asserted, that he had been 
 informed 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 his friend must have 
 told a similar falsity, for some particular reason.* 
 Indeed, it would seem that the existence of the 
 Charter was matter of notoriety in the Downshire 
 
 * It is worthy of remark, that this person has stated that he 
 knows where the Charter of Novo-Damus is to be obtained, if he 
 thought fit to declare the custody it is in supposing this to be 
 true, it is somewhat strange be should not satisfy his friend the 
 Admiral, and his Janus-like Solicitors, of the error they are under, 
 in asserting that the Charter never existed. 
 
XXV11 
 
 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 
 

 xxviii 
 
 a Jury shall have decided against his honor ial 
 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 
 
XXIX 
 
 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. 
 
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 
 Lyndhwrst : but his refusal has shewn that the 
 
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 
 
xxxn 
 
 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 proper 
 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 
 
xxxiii 
 
 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 Kmg, 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 
 
 • It. 4.34. 
 
XXXIV 
 
 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 impar- 
 tiality should prevail, and not be warped 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 of 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 
 
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 
 
XXXVI 
 
 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 sufficient 
 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 Scotch Peers, without going 
 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 the 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. 
 
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 
 
 c 2 
 
xxxviii 
 
 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 
 
XXXI X 
 
 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 
 usage 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. 
 
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 
 
 • Memorials of the British and French Commissioners, relative 
 to their North American Territories, for 1756, 4to edition, pages 
 206, 207, and 208. 
 
 
xli 
 
 “ 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, ‘ Prcesertim si vel ipsa regna 
 “ * cultoribus prius vacua vel ab injidelibus quos ad 
 “ ‘ Christianam converti jidem ad Dei gloriam 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 
 “ would nevertheless have been void, the French 
 “ having settled within it, upon the lands granted 
 “ to the Sieur de Monts, in 1603, by the Letters 
 
 
xlii 
 
 Of 
 
 “ 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 ete que sur nos 
 “ ‘ hrisees s’etant emparcs depuis dix a douze ans des 
 “ ‘ lieux les plus signales, meme enlevoient deux 
 “ ‘ habitations , savoir celle du Port Royal, ou etoit 
 “ ‘ Poitrincourt, ou ils 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 Janies made his grant. 
 
V 
 
 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 
 “preserve 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 . 
 
 
xliv 
 
 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 
 validity of 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 
 to 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 
 
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 ecclesitz ” — 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, 
 
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. 
 
 * 
 
 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 Affidavits 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 Bland, of Ely Place, Holborn, I am much 
 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 
 they had undertaken. 
 
 
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 brought, 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. 
 
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 
 “ Sandy s, 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 
 ^0 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 living, and deprive 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 shall they be convicted.” 
 
 I will only add, that though insult and injustice 
 may for a long time prevail, yet the righteous 
 cause will eventually succeed, and the wicked 
 doers be abashed and confounded. 
 
 An old adage says, 
 
 “ Vengeance divine to punish sin, comes slow ; 
 
 4t Though slow its pace, the surer is its blow/' 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 - 
 
CHAPTER 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. 
 
 n 
 
2 
 
 Sir William Alexander, of Menstrie, Knight, and 
 afterwards Earl of Stirling, was (as is well known) a 
 person of the first-rate talents and abilities, and of a spe- 
 culative and enterprising disposition, according materially 
 with the spirit of the times. In the execution of Ins pur- 
 suits, he expended large sums of money in founding and 
 establishing a Colony in North America; and from his 
 consummate knowledge, industry, and zeal in public 
 affairs, became a great personal favourite of King ames 
 the First, and his son and successor, Charles the First, in 
 whose reigns he was made a Privy Councillor, Secretary 
 
 of State for Scotland, See. Sec. 
 
 The first Palatinate Grant of the Territory thenceforth 
 denominated Nova Scotia, in that part of North America 
 which then went under the general name of Acadia, was 
 made by King James the First, by Charter, under the 
 Great Seal of Scotland, dated at Windsor, the 10th 
 Sept. 1621 :* the preamble, among other things, thus 
 recites, viz. “ Propter fidele et gratum dilecti nostri con- 
 « giliarii Domini Willelmi Alexandri equitis ser- 
 “ vitium nobis pnestitum et prsestandum qui proprns 
 “ impensis ex nostratibus primus externam kanc colomam 
 “ ducendam conatus sit diversasque terras infra-designatis 
 « limitibus circumscriptas incolendas expetivent. Nos 
 “ igitur ex regali nostra, &c. &c. Dedimus concessimus 
 “ et disposuimus tenoreque praesentis cartae nostra; Damus 
 « concedimus et disponimus praefato DominoWillelmo 
 « Alexander hseredibus suis vel assignatis quibuscun- 
 “ que haereditarie fOmnes et singulas terras continentes 
 
 • Reg. Mag. Sig. B. 50. N. 36. 
 
 + This comprises New Brunswick and Nova Scotia, with Cape 
 Breton, Prince Edward’s and other Islands. Maps of the Coun- 
 tries comprised in the Charters to the Stirling family, copies o 
 the Charters, and all information respecting the matters contained 
 in these pages, may be seen and had at the Nova Scotia Heredi- 
 tary Lieutenancy Office, No. 53, Parliament-street. 
 
3 
 
 “ ao insulas situat et jacen in America intra caput seu 
 “ promontorium communiter Cap de Sable appellat jacen 
 “ prope latitudinem quadraginta trium graduum aut eo 
 “ circa ab equinoctiali linea versus septentrionem a quo 
 “ promontorio versus littus maris tenden ad occidentem 
 “ ad stationem navium Sanctae Mariae vulgo Sanctmareis 
 44 bay et deinceps versus septentrionem per directam 
 “ lineam introitum sive ostium magnae illius stationis 
 “ navium trajicien quae excurrit in terrae orientalem plagam 
 “ inter regiones Suriquorum ac Steclieminorum vulgo 
 “ Suriquois et Stecliemines ad fluvium vulgo nomine 
 “ Sanctae Crucis appellat et ad scaturiginem remotissimam 
 “ sive fontem ex occidentali parte ejusdem qui se primum 
 44 praedicto fluvio immiscit, unde per imaginariam directam 
 “ lineam quae pergere per terrain 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 
 “ fluvium stationem navium portum aut littus communiter 
 “ nomine de Gatliepe 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 magn^ 
 “ stationis navium et terras de Newfundland cum insulis 
 u ad easdem terras pertinentibus a sinistra et deinceps 
 “ ad caput sive promontorium de Cap Britton praedict 
 “ jacen prope latitudinem quadraginta quinque graduum 
 “ aut eo circa et a dicto promontorio de Cap Britton versus 
 44 meridiem et occidentem ad predict Cap Sable ubi ince- 
 ^ pit perambulatio includen et comprehenden intra dictas 
 44 maris oras littorales ac earum circumferentias 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- 
 ls 2 
 
 
4 
 
 
 “ lium et praecinctuum earundem et ad euronoto (ubi jacet 
 « Cap Britton) et ex australi parte ejusdem (ubi est Cap 
 “ de Sable) omnia maria ac insulas versus meridiem intra 
 “ quadraginta leucas dictarum orarum littoralium earun- 
 “ dem magnam insulam vulgariter appellat He de Sable 
 “ vel Sablon includen jacen versus Carban vulgo south- 
 “ south-eist circa triginta leucas a dicto Cap Britton 
 “ in mari et existen in latitudine quadraginta quatuor 
 “ graduum aut eo circa. Quaequiden terrae praedict omni 
 “ tempore affuturo nomine Nov^e Scoti^e in America 
 « gaudebunt quas etiam praefatusDowiNUS Willelmus 
 “ in partes et portiones sicut ei visum fuerit dividet 
 “ eisdemque nomina pro bene placito imponet. 
 
 The extent and importance of the Territory thus granted 
 is plainly manifest. Sir William had possession theieof, 
 and proceeded pertinaciously in the Colonization of the 
 Country ; but King James dying about four years after, 
 his son 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, 1625,* 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 
 Alexander, for himself and successors, was consti- 
 tuted the premier Baronet. 
 
 * Reg. Mag. Sig. B. 51. N. 23. 
 
5 
 
 This Charter, called a Charter of Novo-Damus, after 
 recapitulating the Boundaries, &c. & c., contained in the 
 former Charter, and its divers clauses, thus continues, 
 viz. : “ Insuper nos cum avisamento praescripto pro bono 
 “ fideli et gratuito servitio nobis per dictum Dominum 
 “ Willielmum Alexander praestito et impenso et 
 “ respectu habito magnarum et multarum expensarum 
 “ et sumptuum conferend et impendend in plantatione diet 
 “ bondarum dominii et regionis Novae Scotiae et earund 
 “ sub nostra obedientia reductione aliisque gravibus 
 “ et causis onerosis De Novo dedimus concessimus 
 “ et disposuimus tenoreque praesentis cartae nostrae 
 “ Damus concedimus et disponimus praefato Domino 
 “ Willielmo Alexander suisque heredibus et 
 “ assignatis haereditarie Omnes et singulas praedictas 
 “ terras dominium et regionem Novae Scotiae una 
 “ cum omnibus et singulis castellis turribus fortaliciis 
 “ manerierum locis domibus aediiiciis exstructis et ex- 
 “ struendis hortis pomariis plantatis et plantandis toftis 
 “ croftis pratis pascuis silvis virgultis molendinis mul- 
 “ turis terris molendinariis piscationibus tarn rubrorum 
 “ quam aliorum piscium salmonum piscium tarn magnorum 
 “ quam minutorum tarn in aquis salsis quam dulcibus 
 “ una cum omnibus et singulis decimis garbalibus earun- 
 “ dem inclusis tarn magnis 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 singulis praeciosis lapi- 
 dibus gemmis cristallo alumine corallio et aliis cum 
 “ omnibus et singulis mineralibus venis et lapicidiis earund 
 “ tarn metallorum et mineralium regalium et regiorum 
 “ auri et argenti infra dictas bondas et dominium Novae 
 “ Scotiae quam aliorum mineralium ferri chalybis stanni 
 “ plumbi cupri aeris orichalci aliorumque mineralium 
 quorumeunque cum omnibus et singulis partibus peudi- 
 
6 
 
 “ culis pertinentiis privilegiis libertatibus et lmmumtatibus 
 “ omnium et singularum praedictarum terrarum dominii et 
 « regionis Nova; Scotiae cum plena potestate et privilegio 
 “ dicto Domino Willielmo Alexander haeredibus 
 « su is et assignatis tentandi et investigandi fodiendi et 
 “ scrutandi fundum pro eisdem et extrahendi eadem 
 purgandi repurgandi et purificandi eadem, uten 1 con 
 “ vertendi ac suis propriis usibus applicandi. 
 
 The Hereditary High Offices are thus mentioned m the 
 said Charter, viz. : “ Praeterea fecimus constituimus et 
 “ ordinavimus tenoreque praesentis cartae nostra; facimus 
 “constituimus et ordinamus dictum Dominum Wil- 
 “ LIELMUM Alexander suosque haeredes et assignatos 
 “ nostros nostroruriive haeredum et successorum Locum 
 “ Tf.NENTES generales ad repraesentandum nostram rega- 
 « lem personam tam per mare quam terram totius et integrie 
 “ dicta; regionis et dominii Novae Scotiae tam durante 
 « gpatio quo ibi remanebit quam in itinere ipsius vel 
 “ eorum ad dictam regionem vel ab eadem et post ipso- 
 « rum reditum continuo sine intervallo temporis aut loci 
 “ excludendo omnes alios vel per mare vel per terram ab 
 “ usurpatione liujus contrarii vel ab acclamatione alicujus 
 “juris beneficii autlioritatis et interesse infra dictas 
 “ bondas et dominium Novae Scotiae vel alicujus judica- 
 “ tune aut jurisdictionis eatenus virtute alicujus praece- 
 “ dentis aut subsequentis juris aut tituli cujuscunque. 
 
 “ Nos etiam cum avisamento pra;dicto fecimus consti- 
 “ tuimus et ordinavimus tenoreque praesentis cartae nostrie 
 “ facimus constituimus et ordinamus dictum Dominum 
 “ WillielmUM Alexander suosque haeredes etassig- 
 “ natos liaereditarie nostros Justiciarios Generales 
 “ in omnibus causis criminalibus infra dictam regionem e 
 “ dominium Nova; Scotiae Magnum Admirallum et 
 “ Dominum Regalitatis et Admiralitatis infra 
 “ dictam regionem Haereditarios etiam SeneSCALLOS 
 “ ejusd omniumque et singularum regalitatum hujusmo 1 
 
7 
 
 “ cum potestate sibi suisque haeredibus et assignatis utendi 
 “ exercendi et gaudendi omnibus et singulis praefatis 
 “ jurisdictionibus judicaturis et officiis cum omnibus et 
 “ singulis privilegiis praerogativis immunitatibus et casual- 
 “ itatibus earund similiter et adeo libere quam aliquis 
 “ alius justiciarius vel justiciarii generales senescalli admi- 
 “ ralli yicecomites aut dornini regalitatis habuerunt vel 
 “ habere possunt aut possidere et gaudere iisdem juris- 
 “ dictionibus judicaturis officiis dignitatibus et praero- 
 “ gativis in aliquibus nostris regnis bondis et dominiis 
 “ nostris quibuscunque.” 
 
 Other clauses of a very interesting nature are contained 
 in the Charter, as for the Settlers 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 praedicto, damus concedimus et commit- 
 i( timus potestatem dicto Domino Willi elmo Alex- 
 “ ander suisque haeredibus et assignatis habendi et 
 “ legitime stabiliendi et cudere causandi monetam cur- 
 
 rentem in diet regione et dominio Novae Scotiae et inter 
 “ inhabitantes ejusd pro faciliori commercii et pactionum 
 “ commodo tails metalli formed et modi sicuti ipsi 
 “ designabunt aut constituent et ad huno eifectum damus 
 “ concedimus et committimus iis eorumve haeredibus et 
 “ assignatis dictae 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 SirWilliam 
 Alexander, haredibus suis 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 
 
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 praeterea non obstante praedicta unione 
 “ licitum erit praedicto Domino Willielmo Alex- 
 “ ander suisque haeredibus et assignatis dare concedere 
 “ et disponere aliquas partes vel portiones diet terrarum 
 “ regionis et dominii Novae Scotiae iis haereditarie spectan 
 “ad et in favorem quarumeunque 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 placito 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 quae 
 “ 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 Willielmum 
 “ 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 
 “ quarumeunque personarum (modo nostri sint subditi et 
 “ sub nostra obedientia vivant) et desuper infeofamenta 
 “ expedient tenend in libera alba firma de nobis haere- 
 
9 
 
 <f dibus et suecessoribus nostris modo supra mentionat 
 “ libere sine ulla compositione. ,, 
 
 There is also a clause 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 Si R 
 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. 
 
 “ Whereas, upon good consideration, and for the 
 “ better advancement of the Plantatioun of New Scotland, 
 
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 quali tie: 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 by past hath been 
 u at greate charges for the discoverie thereof, hath now 
 “ in end settled a colonie there, where his sone, Sir 
 4C William, is now resident; And Wee being most 
 “ willing to afford all possible meanes of encouragement 
 (t 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 
 ct heires-male, to weare and carie about their neckis, in 
 “ all time cuming, ane orange tannie silke ribban, 
 t( whereon shall being pendant in a scutcheon argent a 
 “ Saltoire azur thereon, ane inscutcheon of the Armes of 
 “ Scotland, with ane imperiall Crowne above the scut- 
 “ cheon, and encircled with this motto. Fax mentis 
 “ HONESTiE GLORIA; which cognoissance Our said pre- 
 “ sent Lieutenant shall delyver now to them from Ws, 
 “ that they may be the better knowen and distinguished 
 “ from other persounis. And that none pretend igno- 
 (< ranee of the respect due unto them, Our pleasure 
 “ therefore is, that by open proclamatioun at the 
 ** marcat croces of Edinburgh, and all other head brughs 
 
11 
 
 44 of Our Kingdome, and such other plaoes as you shall 
 44 tliinke necessar, you cause intimate Our Roy all plea- 
 44 sure and intentioun herein to all Our subjects; And if 
 44 any persoun out of neglect or contempt shall presume 
 44 to tak place or precedence of the said Barronets, their 
 44 wyffes or children, which is due unto them by their 
 44 patents, or to weare their cognoissance, Wee will 
 44 that, upon notice thereof given to you, you cause punislie 
 44 such offenderis, by fyning or imprisoning them, as you 
 44 shall thinke fitting, that otheris may be terrified from 
 44 attempting the like: And Wee ordaine that from 
 
 44 time to time, as occasioun of granting and renewing 
 44 their patents, or their heires succeiding to the said 
 44 dignity, shall offer, that the said power to them to carie 
 44 the said ribban and cognoissance shalbe therein par- 
 44 ticularlie granted and insert : And Wee likewise 
 
 44 ordaine these presents to be insert and registrat in 
 44 the books of Our Counsell and Exchequer, and that 
 44 you cause registrat the same in the books ol the Lyon 
 44 King at Armes and Heraulds, there to remain adfutu- 
 < 4 ram rei memoriarn , and that all parties having interesse 
 44 may have authentik copies and extracts thereof; and 
 44 for your so doing, these Our letters shalbe unto you 
 44 and euerie one of you, from time to time, your sufficient 
 44 warrant and discharge in that behalffe. Given at Our 
 44 Court of Whythall, the 17. of November 1629. 
 
 44 To Our right trustie and right welbeloued 
 44 Cousin and Counsellour, to Our right wel- 
 44 beloued Cousins and Counsellouris, to Our 
 44 right trustie and welbeloued Counsellouris, 
 
 44 and trustie and welbeloued Counsellouris, 
 
 44 the Viscount of Dupleine, Our Chancellour 
 44 of Scotland, the Earle of Monteith, the Pre- 
 44 sident, and to the remanent Earls, Lords, 
 
 44 and otheris of Our Privie Counsell of Our 
 44 said Kingdome.” 
 
r 
 
 
 12 
 
 % 
 
 That Sir William had due and legal seisin of the 
 premises, with all the High Offices, rights, prerogatives, 
 pre-eminencies, &c. &c., is to be ascertained from the 
 entry thereof in the Register of Seisins, now remaining on 
 record in the public Register Office at Edinburgh. And 
 that he exercised his right of resignation of lands, 
 and creation of Knights Baronets, is evidenced from 
 the following copy of several of those Honours granted 
 by him : — 
 
 Copy of the Patent by which William, First Earl of 
 Stirling, created Sir John Browne, of the Neale, 
 in the County of Mayo, a Baronet of Nova Scotia, 
 on the Y7th of June, 163G. 
 
 “ We, William, Earl and Viscount of Stir- 
 “ LING, &c., Proprietor of* the Country of New Scot- 
 “ land, and Canada, and His Majesty’s Lieutenant within 
 “ the same : Forasmuch as by the Feoffment granted to 
 “ me, by our late Sovereign, King Charles First, I have 
 “ full power to dispose of any part thereof to such as do 
 “ undertake to plant there ; and understanding the will- 
 “ ingness of John Browne, Esq., eldest Son to Josias 
 “ Browne, of the Neale, in Ireland, for the advancement 
 “ of the said Plantation, we have granted unto the said 
 “ John Browne, and to the heirs male lawfully descended 
 “ of his body, that part of the said Country of New Scot- 
 “ land, bounded as follows, viz. Beginning twelve miles 
 “ from the northernmost part of the Island Anticosti, 
 “ within the Gulph of Canada, extending westward along 
 “ the north side of the Island, six miles ; and from thence 
 “ northward, keeping always three miles in breadth ; to 
 “ have the Salmon and other Fishings, as well in salt as 
 “ in fresh water ; and I do hereby incorporate the said 
 “ proportion of land into a Free Barony and Regality, to 
 “ be called in all times the Barony and Regality of Neale, 
 “ to hold the same by the yearly payment of one penny, 
 “ usual money of Scotland. And whereas I have full 
 
13 
 
 fl power and authority granted to me by His Majesty, to 
 “ confer Titles of Honour within the said Country of New 
 “ Scotland, upon all persons concurring to the advantage 
 “ of the said plantation thereof; I do confer upon the 
 “ said John Browne, and his heirs male lawfully descended 
 “ or to be descended of his body, the hereditary dignity 
 “ and style of Baronet of New Scotland, with all and 
 “ sundry prerogatives, privileges, precedencies, conditions, 
 “ and others whatsoever, that any Baronet of Scotland, 
 “ or New Scotland, hath had at any time granted to them. 
 “ And we give and grant unto the said Sir John Browne, 
 “ licence to wear and carry an orange tawny Ribbon, 
 “ the badge of a Baronet of New Scotland, bearing the 
 “ Arms of New Scotland in gold, enamelled, with the 
 “ Crown Royal above, and this circumscription— Fax 
 4i mentis honestce gloria . Sealed with the Great Seal of 
 “ New Scotland, 21st June, 1636.” 
 
 King Charles, by another Charter, dated at Whythall, 
 the 2nd February, 1628,* 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, <( heredibus suis et assignatis hereditarie,” 
 with the same powers, rights, privileges, pre-eminencies, 
 prerogatives, & c. &,c. &c., as were given to him by his 
 Charters for Nova Scotia, which, having been already so 
 amply set forth, are not necessary to be again recapitu- 
 lated. It may therefore suffice to say, that all these 
 Charters were confirmed by the King and States in open 
 Parliament at Edinburgh, the 28th June, 1633, as the 
 following Copy from the Acts of the said Parliament will 
 shew : — 
 
 * Reg. Mag. Sig. B. 52. N. 110. — This and the two former 
 Charters in the original Latin, with English Translations, are 
 printed and sold by Ridgway, 1G9, Piccadilly ; by Bigg, 53, 
 Parliament-street; and M‘Clery, St. Jamcs\s-street. 
 
14 
 
 “ Nova Scotia. 
 
 “ 1st of Charles the First in Scotland. 
 
 No. 28. — “ Ratification in favour of the Viscount of 
 “Sterling, of the Infeftments and Signature , 
 “ granted to him , of Dominions of New Scotland 
 “ and Canada in America , and Privileges therein 
 <( contained \ and of the Dignity and Order of Knight 
 “ Baronets ; and Act of Convention of Estates 
 “ made thereanent . 
 
 “ Our Sovereign Lord and Estates of this present 
 “ Parliament, ratifie and approve all Letters, Patents, 
 “ and Infeftments granted by King James the Sixth, of 
 “ blessed memory, or by our said Sovereign Lord, to 
 “ William Viscount of Sterling, and to his heires 
 “ and assigneis of the Territories and Dominions of New 
 “ Scotland and Canada in America, and especially the 
 “ Patent Charter and Infeftment granted by His Majestie’s 
 “ umwhile dearest Father of worthie memorie, of New 
 “ Scotland, of the tenth day of September, the year of 
 “ God 1621. Item, another Charter of the same, granted 
 ** by His Majestie, under the Great Seale, of the date 
 “ the twelfth day of July, 1625 yeares. Item, another 
 “ Charter and Infeftment, granted by His Majestie of the 
 “ Country and Dominion of New Scotland, under the 
 “ Great Seale, of the date the third day of May, 1627 
 “ yeares. Item, another Charter and Infeftment, granted 
 “ by His Majesty, under the Great Seale, of the River 
 “ and Gulph of Canada, bounds and privileges thereof, 
 “ mentioned in the said Patent, of the date the second 
 “ day of February, 1628 yeares. Item, a Signature passed 
 “ under His Majesty's hand, of the said Country and 
 “ Dominion, which is to be with all diligence exped through 
 “ the Seale, of the date, at Whitehall, the twentie fourth 
 “ day of April, 1633 yeares ; with all liberties, privileges, 
 “ honours, jurisdictions, and dignities, respective therein 
 
15 
 
 « mentioned. Together also, with all execution, precepts, 
 
 “ instruments of seasings and seasings following, or that 
 “ shall happen to follow thereupon. And also ratifies and 
 « approves the Act of General Convention of Estates at 
 “ Holy-rude House, the sixth day of July in the Year of 
 “ God, 1630, whereby the said Estates have ratified and 
 “ proved the dignities and Order of Knight Barronet, with 
 “ all the Acts of Secret Council, and proclamations fol- 
 “ lowing thereupon, made for the maintaining of the said 
 “ dignittie, place, and precedencie thereof. 
 
 << A n( i His Majestie 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. Acte No. 28, made in the Parliament held by King 
 “ Charles the First (in person) 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 
 Alexander, First Earl of 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 versed in the Laws of Scotland,) retoured 
 into the Court of Chancery in Scotland ; and in virtue 
 
J 
 
 16 
 
 thereof, by a Precept from His Majesty, directed forth of 
 his said Chancery to the Sheriff of Edinburgh, having 
 been infeft in the whole Country of Nova Scotia, the 
 Lordship of Canada, with all their parts and pertinents, 
 the Offices of His Majesty’s Hereditary Lieutenant of 
 Nova Scotia, Canada, (New Brunswick and the adjacent 
 islands included,) &c. by seisin taken at the Castle of 
 Edinburgh, on the 8th of July, L831, 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. 
 
CHAPTER II. 
 
 DISSERTATION ON THE LAWS OF SCOTLAND 
 WITH REGARD TO RETOURS, OR SERVICES 
 OF HEIRSHIP. 
 
 SERVICE OF 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.l. 
 
 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 
 within 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. 
 
 * Ersk. Inst. B. III. Tit. 8. § 59 et. seq.— The 6th edition, folio, 
 1812, is referred to throughout these pages. 
 
 C 
 
u 
 
 The Jury consists of fifteen persons, who are sworn 
 in by the Judge to act faithfully. 
 
 The Inquest being set, the apparent heir produces to 
 them his claim as heir, and they may proceed not only on 
 the evidence offered by the Claimant, but on the proper 
 knowledge of any two of themselves; for they are con- 
 sidered both as Judges and witnesses. 
 
 The principal point of inquiry, 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. § 61, et seq. 
 
 The service being a sentence, must be restricted to the 
 claim offered 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 passes sentence: 
 this, indeed, the law presumes to be done in services, 
 and in fact is never omitted. — lb. § 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 
 
19 
 
 heritable subject belonging to the deceased, which requires 
 no seisin, and to every personal right which had not 
 been perfected by seisin, in favor of the ancestor; — 
 lb . § 63. — Or, in other words, which perhaps give a 
 more clear explanation of the effect 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, seeing'all personal 
 rights are, ex sua naturd, transmissible inter vivos by the 
 owner to the grantee, by simple assignation without seisin; 
 they must also be effectually transmitted from the deceased 
 to his heir, by a service, which is the legal method of con- 
 veyance from the dead to the living. 
 
 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, 1826, heir to his deceased 
 Mother, Hannah, Countess of Stirling, as 
 heiress to her brother, Benjamin, Eighth Earl of 
 Stirling, de jure, who was the last heir male of 
 the body of William, First Earl of Stirling^ 
 2 ndly. On the 11th October, 1830, nearest and lawful 
 heir in general of his Great-great-great-Grand- 
 father, William, First Earl of Stirling. 
 
 3 rdly, On the 30th May, 1831, nearest and lawful heir 
 of tailzie and provision, to his ancestor, William, 
 First Earl of Stirling. 
 
 * No services are traversible, but are taken as true, until, by 
 regular process of reduction, at the suit of a better claimant, they 
 are falsi 6 ed. 
 
 f These Retours will be found in the Appendix, Nos. I. II. & 111. 
 
 c 2 
 
u 
 
 20 
 
 With regard to this last service, and in explanation 
 thereof, it may be observed, that a tailzied fee is a general 
 term, comprehending all destinations in which the legal 
 course of succession is altered, or cut off, 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. The person 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 
 
 of 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 o-eneral service, the claim on which is adapted to the 
 particular circumstances of the case. Accordingly, a 
 service of this description was obtained by Lord 
 Stirling, in order to take up the title of Earl of 
 Do VAN, 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 SERVICE. 
 
 A general service cannot include under it a special one, 
 because it has no 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. But 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 aw) l 
 special to a particular estate, includes a general service, 
 as heir of line, to the same ancestor, and of consequence 
 carries all personal rights descendible to the heirs of line. 
 
21 
 
 Where, therefore, the heads necessary to be proved in a 
 general service have been already fixed and proved in the 
 special, there can be no occasion for having them again 
 tried by another Inquest. 
 
 The special service is calculated for 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 Sheriff of the County 
 within whose territory the lands lie, to which the heir is 
 to be served ; but where the lands lie in different 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 djn or beyond the Sheriffdom of Edinburgh, or 
 “ in several Sheriffdoms.” 
 
 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 commission issued, and the ser- 
 vice proceeds in the usual form — the Jury of fifteen 
 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 lands are 
 
22 
 
 holden, and on what tenure ; the old and new extent, and 
 value of the lands, and in whose hands the fee is at the 
 time of the service, and has been since the death of the 
 ancestor, — lb. § 67. 
 
 These heads being proved, the Jury serve the heir, 
 and the Clerk to the Service, along with the verdict, 
 must deliver into Chancery the original claim of service, 
 minutes of the proceedings, and depositions of the wit- 
 nesses ; without which the retour cannot be issued ; and 
 an extract from them, as in the case of the general ser- 
 vice, is said to be the Retour of the heir’s service. 
 
 This service, as has been observed, confers no right 
 until the title is completed by seisin. Where the lands 
 claimed are holden of the Crown, the heir applies to the 
 Chancery, and upon production of his retour, a precept is 
 issued of course, directed to the Sheriff of the County,* 
 requiring him to infef the heir. On this precept, the 
 heir is accordingly infeft, and his title to the estate of 
 his ancestors thereby completed. 
 
 Seisin must be taken on the ground of the lands con- 
 tained in the precept : “ But this rule, may, in cases of 
 “ necessity, be dispensed with, by proper authority, as it 
 “ was in the seisin of Nova Scotia and Canada, in favour 
 “ of Viscount Stirling, which, by the King’s spe- 
 « cial appointment, was taken at the gate of the Castle of 
 44 Edinburgh, and afterwards ratified by Parliament, 
 44 1633, c. 28 ”—Ersk. Inst. B. II. Tit. Ill . § 36. 
 
 Of this service is the retour of the 2nd July, 1831,^ 
 by which Lord Stirling was served nearest and law- 
 ful heir in special of the before-mentioned William, 
 
 * By the Charter under which Lord Stirling takes the Ameri- 
 can property, it is made part of the County of Edinburgh, for the 
 purposes of seisin, which is directed to be taken at the Castle of 
 Edinburgh, as the most conspicuous place therein. 
 
 1 Appendix, No. IV. 
 
23 
 
 First Earl of Stirling, to take up the fee that was 
 vested in him of the lands comprised in the aforesaid 
 Charters, and upon which retour, on the 8th of the same 
 month, he received, in terms of the same Charters, from 
 the said Sheriff of Edinburgh, upon a precept sued out 
 of Chancery, actual livery of seisin of and in the same 
 lands, thereby completing his title thereto. 
 
 The right of some subjects ( i . e. inheritances), is 
 established in the heir without a service ; of which are 
 titles of honour, and offices of the highest dignity, which 
 do not require service, for they descend, jure sanguinis , 
 to the heir limited in the grant ; but of this in the next 
 Chapter. 
 
u 
 
 CHAPTER III. 
 
 OF PEERAGE SUCCESSION IN SCOTLAND, AND 
 OF THE EFFECT OF BEING PERMITTED TO 
 VOTE AT HOLYROOD HOUSE. 
 
 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 was 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, cognizable 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 while the service of heirship 
 
 is necessary to the taking up of heritable property, it 
 
25 
 
 is not absolutely so to take up a Peerage honour, although 
 the heir in succession may, for the purpose ol 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, chiefly 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 Sherifls 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 hare- 
 ditatis, 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- 
 fication, that the authority and grounds upon which he 
 has taken them upon himself, are liable to be called in 
 question, 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 must apply 
 by petition to the Sovereign, for his writ of summons to 
 Parliament ; whereupon his application is referred to the 
 House of Lords— or it may be to the Attorney-General, 
 
26 
 
 to Commissioners, or to the Lord Chancellor; — and from 
 a presumed analogy in this respect, it has been inconsider- 
 ately 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 English practice, the usage in the cases of 
 the Peers of Scotland, and for making it incumbent on 
 them, to act the degenerate part of declining, in favour of 
 a Foreign Tribunal, the natural jurisdiction of the Court 
 of Session, in deciding upon disputed claims to the 
 Peerage, which “ were held after, as well as before the 
 Union, to fall within its ordinary department.” ( Wall , 
 Lib . 5, § 6 . ) 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 luce , it is turned into 
 a Scottish Court of Judicature, administering Scottish 
 law. (Ersk. Inst . B. Ill . Tit . 8.J 
 
 The Court of Session, which (as before noticed) is the 
 Supreme Court in Scotland, for the determination of all 
 questions of civil and patrimonial right, is the principal 
 of those Courts possessing an original jurisdiction in 
 questions of the civil rights of the Peerage of Scotland ; 
 and it is an article of the Treaty of Union, that that Court 
 “do remain, in all time coming, within Scotland, with the 
 same authority and privileges as before the Union.”* 
 
 Now, there have not been found, before that Treaty, 
 
 * Act 1707, cap. 7, art. 10. 
 
27 
 
 instances of a claim of Peerage having at any time been 
 brought before a Committee of Parliament, as there are 
 since that period (but on very special causes and occa- 
 sions) before a Committee of the House of Lords : but 
 the appropriate judicatory was the Court of Session; and 
 there are examples of its exercising the jurisdiction as- 
 cribed to it in 1633, and down to a period long after the 
 Union.* 
 
 Thus much has been said in proof of the jurisdiction of 
 the Court of Session on Peerage claims in Scotland ; but the 
 orders made by the House of Lords in 1822, rendering it 
 imperative on a Peer of Scotland to subject his pretensions 
 to its examination, will be particularly noticed hereafter. 
 
 It remains now to be observed, of the Elections of 
 Representative Peers under the Act of Union, and the 
 effect of being admitted to vote thereat. 
 
 By the Treaty of Union, a Peer of Scotland has 
 the right of voting at all meetings for the election of 
 the sixteen Peers, to represent the whole body in the 
 Parliament of Great Britain. The Act of the Parliament 
 of Scotland 1707, cap. 8, statutes, enacts and ordains, 
 that the said sixteen Peers, who shall have right to sit in 
 the House of Peers in the Parliament of Great Britain, 
 on the part of Scotland, by virtue of this Treaty, shall be 
 named by the said Peers of Scotland, whom they represent, 
 their heirs or successors to their dignities and honours, out 
 of their own number, and that by open election and plurality 
 of voices of the Peers present, and of the proxies for 
 such as shall be absent ; the said proxies being Peers, 
 and producing a mandate in writing, duly signed before 
 witnesses, and both the constituent and proxy being 
 qualified 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 whom they 
 
 * Vide Lovat Case. 
 
28 
 
 judge fittest, validly 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 Privy Council , to 
 “ issue out a proclamation in Her 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 6 Annse, 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 Clerks 
 
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 
 the head burghs of the different Counties in Scotland, 
 twenty-five days at least before the time appointed for 
 election. The Palace of Ilolyrood House is the 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 officiating Clerks, and 
 the evidence that absent Peers who have sent lists 01 
 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 
 to a Peerage, but that the honour devolves jure sanguinis ; 
 consequently, a fortiori, where a service shall have been 
 expeded, the Peer is more evidently warranted to take 
 
 * Act 6 Annae 23, sect. 9. 
 
30 
 
 his seat among his co-peers, provided his title is not 
 questionable by attainder. This right, it has been shewn, 
 may be objected to by a competition 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 
 enjoyment of his Peerage honours, as much and as per- 
 fectly as an English 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 right.* There was a negative power 
 which ought to have been adopted against him ; but the 
 neglect of it, on the well-known maxim that “ silence 
 gives consent ,” must be deemed an approbation of right, 
 conceded by those who on the occasion were judges com- 
 petent to oppose, or receive him. 
 
 If any Peer be protested against by another or others, 
 he or they protesting must make out their 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 protest or objection, (even though 
 in error,) it is not competent to any but a bond lide 
 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 
 
 * Vide Clifford, Willoughby of Parham, and other case.-. 
 
31 
 
 retoured, by special service, heir to his ancestor. Lord 
 Stirling became entitled to his ancestor’s territorial 
 estate, to which his title has been completed by seisin, 
 taken as before mentioned ; but that a dignity or title of 
 honour, being a personal right 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 2nd of June, 1825, in obedience to the Royal 
 proclamation, dated at Carlton House, the 20th April, 
 1825, the Peers of Scotland did assemble at Holyrood 
 House in Edinburgh, to choose a representative Peer in 
 the room of the Earl of Balcarres, deceased ; and on the 
 great roll of Peers taken at the Union being called over, 
 when the name of the Earl of Stirling was called, 
 the present Earl “ claimed to vote as Earl of 
 “ Stirling, as being heir male of the body of Hannah, 
 “ Countess 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, 
 44 under the Great Seal of Scotland, dated 7th December, 
 44 1639, granted by His Majesty King Charles First, in 
 “ favour of William, Earl of Stirling, entitled to 
 44 the honours and dignity of Earl of Stirling ; and 
 “ his vote was received by the clerks.”* And, curiously 
 enough, the Earl happened to be the premier Peer 
 present, and consequently was the first to sign the 
 minutes of the proceedings. 
 
 On the 2nd September, 1830, the Peers of Scotland 
 met, in pursuance of the Royal proclamation, to, choose 
 sixteen representative Peers ; but the Earl of 
 Stirling, being unable to attend personally at Edin- 
 burgh to give his vote, applied to Lord Lyndhurst, the 
 
 * Vide Appendix, No. V. 
 
32 
 
 then Lord Chancellor of England, to take the oaths re- 
 quired by law to enable him to vote by signed list. Lord 
 Lyndhurst administered the oaths, but declined giving 
 the usual certificate thereof under the Great Seal, until 
 he had seen the Earl’s counsel, who would satisfy him of 
 the Earl’s right. This the Lord Chancellor did, and 
 being perfectly satisfied, affixed the Great Seal to the 
 certificate, and apologized for any inconvenience the 
 delay might have occasioned. 
 
 At this election, on the name of the Earl op 
 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 right 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 pui- 
 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. 
 
 * The minutes of the proceedings at this election being very long, 
 the formal part, .and that which relates to Lord Stirling indivi- 
 dually, will be found in the Appendix, No. VI. 
 
33 
 
 
 This protest, if it did not originate 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, 
 they must have made out their case. They knew well 
 that 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 an order of the 23rd August, 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 of Stir- 
 ling's name appears as having voted in 1830 and 1831, 
 as before mentioned. 
 
 * Extracts from this Return will be found in the Appendix, 
 No. VIII. 
 
 D 
 
J 
 
 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. 
 
 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 bill of exchange, drawn by a 
 particular and very intimate friend 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 Bland, 17, Ely Place. 
 
35 
 
 Earl of Stirling immediately waited upon Messrs. 
 Potts and Son, and explained to them the public status 
 of the Earl, the acts of Peerage exercised by their 
 client, in proof of his privilege from arrest; and laid 
 before them such official and documentary particulars as 
 they deemed sufficient for the like purpose. During the 
 deliberation of Messrs. Potts and Son, another party 
 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 ; whereupon* 
 after hearing counsel for the plaintiff, and an affidavit by 
 the Earl read. Lord Tenterden ordered the bail-bond to 
 be cancelled. 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 the writ should 
 not be 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 the Earl of 
 
 d 2 
 
36 
 
 Stirling, but that if Mr. Alexander 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 22nd November, Mr. Serjeant 
 Wilde shewed cause against the rule, and on Mr. Ser- 
 jeant Spankie, counsel for Lord 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 a 
 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 untrue 
 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, 
 
 1 stly, 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. 
 
 2 ndly, That Lord Stirling’s claim to sue as Earl 
 of Stirling had been rejected by the Lord Chan- 
 cellor; and the highest authority in the realm had 
 refused to receive him. 
 
 Appendix, No IX. 
 
37 
 
 3 rdly. That Lord Stirling had no right to vote at 
 Peers’ elections, according to the order of the House 
 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 
 Dowager Marchioness of Downsliire had a better and 
 prior right of claim. 
 
 To this last assertion, a Chapter of ample contradiction, 
 and falsification, will be subsequently devoted. 
 
 In answer to the second statement of Mr. Serjeant 
 Wilde, it is to be observed, that Lord Stirling agreed 
 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, to 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, Mr. Justice Alderson very appropriately 
 asked, and with surprise, “ On what statute does the Chan- 
 cellor decide on the Peerage claims l ” The answer was, 
 of course, “None!” and the subject was very prudently 
 dropped. 
 
 The conduct of the learned Lord, so hastily and inju- 
 riously adopted, naturally draws to notice some of his 
 celebrated public speeches, when a Commoner ; and the 
 
38 
 
 following extract from one of those flourishing declama- 
 tions, made on the 7th February, 1828, “on the state of 
 the law of England ,” 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 Vaux, 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 equal — but he would shew that 
 “ they were not, but that in a variety of important 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 
 “ equality, 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 by the subject without the fiat 
 “ of the Crown ; and unless this were granted, all the other 
 “ steps taken by the party aggrieved, would only be so 
 “ much labour lost. 
 
 “ The granting or withholding of the fiat was in the 
 << breast of the Attorney- General ; and if he should refuse 
 “ it, the party had no remedy hut to impeach the Attorney - 
 
 /4rS, 
 
39 
 
 “ General, and take all the chance of that very uncertain 
 “ experiment. It might be said, that this was a matter 
 “ which seldom happened; but why should it be left to the 
 “ breast of any individual to refuse a writ of this kind l 
 “ The power he exercised, should in this case be merely 
 « ministerial ; and the obtaining the fiat for the writ, should 
 “ be as much matter of right, as the obtaining any of the 
 « other processes, sued 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, sic jubeo,” takes upon himself to give a 
 judgment, when he ought to have paused until there was 
 ti 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 Ilis 
 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 barrister, and a favourable 
 opinion actually given by him on Lord Stirling s 
 
40 
 
 rights ; rights depending moreover entirely on Scotch law, 
 and therefore particularly, 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 authority whatever. The only cir- 
 cumstance that can be alluded to, is, the Order of the 
 House of Lords of 1762 ; # 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 
 1762, failed therein, and was the immediate subject of 
 the said order, which prohibits the acceptance of the vote 
 at Ilolyrood House, of any one claiming the title through 
 the General. 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, butequally 
 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, but 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. 
 
PEDIGREE — referred to in Page 40, 
 
 William, 2nd Earl, 
 died in infancy, 
 a few months after hts 
 Grandfather, 
 
 1640. 
 
 Andrew Alexander, 
 of Menstrie. 
 -A- .... 
 
 Alexander Alexander. 
 
 William, Vi s co unt Canada, 
 died 1638. 
 
 Sir William Alexander, 
 1st Earl of Stirling, 
 died 1640. 
 
 I 
 
 Sir Anthony, 
 died, s. P. 1637. 
 
 Henry, 3rd Earl, 
 died 1644. 
 
 John, 7th Earl, 
 died unmarried, 
 1765. 
 
 Henry, 4th Earl, 
 died 1690. 
 
 Henry, 5th Earl, 
 died, s. P. 1739. 
 
 William, 
 
 Robert, 
 
 Peter, 
 
 O nines ob. s. p. 
 ante 1739. 
 
 John, died 1666. 
 
 i 
 
 John, died 1712. 
 
 John, 6th Earl, 
 died 1743. 
 
 Benjamin, 8th Earl, 
 died unmarried, 
 1768. 
 
 Mary, Countess of Stirling, 
 died unmarried, 
 
 1794. 
 
 Alexander, 9th Earl 
 
 John Alexander. 
 
 Alexander Alexander. 
 
 David Alexander, 
 second Son. 
 
 James Alexander, 
 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. 
 
 Hannah, Countess of Stirling, 
 married Wm.Humphrys, Esq. 
 of the Larches, 
 
 County of Warwick: 
 died 1814. 
 
 Note . — The black lines 
 
 , h , rrm ,d First Earl: ,1„ M <*< 
 
 dMion of General *.«*■ 
 
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 
 of 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. 
 
 €t 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 tbe sixteen Peers, to be chosen to 
 “ sit and vote in the House of Lords of the United 
 “ Kingdom of Great Britain and Ireland, as Represen- 
 “ tatives of the Peerage of Scotland, or at the election 
 
 n 
 
u 
 
 42 
 
 « of any one or more such Peers, 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 
 <c voting or claiming to vote, or having voted or claimed 
 u to vote, at any election of the Peers 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 majority 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 1 eer 
 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 Gouits 
 of original jurisdiction. Can one branch of the Legisla- 
 ture give authority to Resolutions, affecting civil lights 
 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 usages 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 time may be made for the due main- 
 “ tenance of the rank of the Peerage, and the purity 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 not be judicially noticed? 
 Because the law of Scotland and these Resolutions are 
 
 * Law Magazine, No. 10, Art. 6 . 
 
J 
 
 44 
 
 at variance ; and the former has 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 
 their 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, party 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 
 
45 
 
 the case in question. The 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, 1816, 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 have, 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 without 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 
 
 n 
 

 46 
 
 right to sue as Earl 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 competent 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 difference in 
 the conduct of the Judges 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 election in September, 1830, on the signed list 
 of the Earl of Stirling being tendered, the Earl 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 before-men- 
 tioned) of exercising the Peerage privileges, has consisted 
 in obeying the Royal proclamation to attend at Holyrood 
 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. 
 
V 
 
 CHAPTER V. 
 
 ON THE PRETENSIONS OF TIIE DOWAGER MAR- 
 CHIONESS OF DOWNSHIRE, TO THE STIRLING 
 TITLES AND ESTATES. 
 
 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 the 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 shewing 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 character, 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 the same, 
 viz. to Sir William Alexander, “ heredibus suis 
 “ et assignatis quibuscunque hereditarie.” 
 
 Now, the effect and meaning of this limitation have, 
 according to the Scotch 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 the 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, King 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 14tli June, 1633, 
 created him Earl of Stirling, and Viscount 
 Canada, & c. with limitation to him, “ suisque heredibus 
 “ masculis in perpetuum cognomen et anna de Alex- 
 “ ander gerentibus.” On comparing these limitations, 
 with those in the Charters of the 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 
 
 * Vide Polwerlh case, coram Dorn. Proc. 
 
 E 
 
 m 
 
•J 
 
 50 
 
 ensure their joint descent to the same line of heirs, made 
 resignation thereof (as was a practice then very common 
 in Scotland) into the King’s hands, for the special purpose 
 of a new grant to that effect; and Ilis Majesty King 
 Charles the First was pleased, by a Charter under the 
 Great Seal, styled a Charter of Novo-Damus, dated 7th 
 December, 1639, to confer them de novo “ antedicto 
 "Willif.lmo, Comiti DF. Stirling, et heredibus 
 “ masculis de corpore suo; quibus deficientibus, here- 
 “ dibus femellis natu maximis sine divisione ultime 
 “ talium heredum maseulorum et heredibus masculis de 
 “ corporibus diet, heredum femellarum respective pro- 
 “ creandis, cognomen et arma de Alexander geren- 
 “ tihus, 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,” See. Which limitation, 
 in point of legal meaning, is precisely the same as that 
 contained in the Charters of 1621, 1625, and 1628, as 
 before-mentioned, and comprised in the words “ heredibus 
 “ suis et assignatis quibuscunque hereditcirie." 
 
 Thus, the Earl of 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 thereon. 
 
 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 right 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 
 
51 
 
 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 under 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 descended to the same course of heirs, equally 
 with, or without that Charter. 
 
 It has been shewn what the limitation of the Stirling 
 honours was by the 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 matter 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, or heirs por- 
 tioned at common law,* i. 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 they devolved, and who thereupon became the 
 Third Earl. 
 
 This Henry, the Third Earl, (who was the eldest 
 surviving son of his father, the First Earl,) married a 
 
 * Vide Pedigree, Tab. I. in tjie Appendix. 
 
 E 2 
 
52 
 
 lady of considerable fortune in England, 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. : “ Harie, Earl of Stirling, son and 
 “ heir male of Tailzie and Provision , to umquhile WlL- 
 “ 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 Harie, 
 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 them; and the 
 Acts of Parliament do not further notice the subject. 
 
 This circumstance is the more noticeable, as the appli- 
 
 * Scotch Acts of Parliament, Vol. V. p. 403, et seq. 
 
53 
 
 cation of the creditors, in charging Earl IIarie, as 
 heir male of tailzie and provision (in the very terms of 
 the Charter of Novo-Damus) not only to his father, the 
 First Earl, but to his elder brother, the deceased 
 William, Viscount Canada, puts upon the journals 
 of Parliament the 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 
 Stirling 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 
 
 * Vide Appendix, No. XII. 
 
u 
 
 54 
 
 joined with his father in various pecuniary engagements, 
 for money borrowed to promote the colonization ot the 
 American settlements, was, upon his lather 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 16(56. 
 
 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 ot 
 an Earl, he chose the title of Mount- Alexander, in 
 remembrance of his descent from that distinguished 
 
 John Alexander, only son of the aforesaid Honourable 
 John, of Gartmore, was afterwards of Antrim, and was 
 married at Donaghedy church, in May, 1682, to Miss 
 Mary Hamilton, by whom he had two daughters, and one 
 son, who was born on the 30tli September, 1686, and 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 
 
 house. 
 
 ♦ Vide Montgomery MSS. 
 
55 
 
 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, Dublin, 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 infirmities, 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, (namely, 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. Hovenden, 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, 
 to 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 
 
J 
 
 56 
 
 Mr. Hovenden to read and examine it, but declined to 
 give it up, ’without the consent of the then Earl of Mount- 
 Alexander. Mr. Hovenden thereupon compared his 
 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- 
 y ers _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. XIII. 
 
57 
 
 had been taken possession of by the family into which the 
 sisters of his cousin, the deceased Eaul Henry, had 
 intermarried, he therefore chose rather to decline the 
 immediate and public assumption 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 Stirling. The time he 
 superlived the last Earl (only three years and eleven 
 months) was too short to enable him to prosecute with 
 effect those legal proceedings which were necessary to be 
 adopted, to obtain possession of his ancestral estates in 
 Scotland or America, or of the settled 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 No vo- 
 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 
 
 * Yide Pedigree, Tab. I. in the Appendix. 
 
58 
 
 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 unmarried in April, 
 1768, he was the last heir male of the body of his Great- 
 great-great- Grandfather, Sir William Alexander, 
 the First Earl. — Having 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. AVilliam 
 
 * He published a translation of Morgagni's work, on “the Causes 
 and Seals of Disease discovered by Anatomy." 
 
59 
 
 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 the 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 some circumstances , I should think 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 
 € f I send you a copy of my cousin Lee’s letter in relation 
 ii to your proposal in your letter of the 9tli 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 
 N “ our North American affairs, as well as a book of Sir 
 “ William Alexander’s correspondence, while he 
 
 * Vide Appendix, No. XIV. 
 t Vide Appendix, No. XV. 
 
u 
 
 60 
 
 “ was Secretary of State for Scotland. I think a proper 
 “ agreement should be 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 tailed ; 
 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 
 
G1 
 
 who were the right heirs to the First Earl 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 doubt- 
 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 
 Hf.nry, 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 of 
 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 Faint- 
 ing,* under the head Norgate, says, “ The warrant for 
 “ restoring the use of the old English March, which I 
 
 * Vol. II. p. 19. 
 
C7 
 
 62 
 
 « have set forth in the Catalogue of Noble Authors, was 
 “ illuminated by this person (Norgate); but the best 
 44 evidence of his abilities, is a curious Patent lately dis - 
 “ covered . The present Earl of Stirling (that is, 
 44 Mr. Alexander) received from a relation an old box of 
 “ neglected writings, among which he found the original 
 44 commission of Charles the First, appointing his Lord- 
 14 ship’s predecessor, Alexander, Earl of Stirling, 
 “ Commander-in-Chief in Nova Scotia, with a confirma- 
 ft tion of the grant of that Province, made by James the 
 “ First. In the initial letter are the portraits of the 
 “ 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 
 44 having painted in this manner, I cannot doubt but it is 
 “ the work of Norgate, allowed the best illuminator of 
 44 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 to 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-Hamus of 1639, in which alt 
 the previous grants were recited and reconfirmed; while 
 the account given to Walpole, that it was found in an 
 
63 
 
 old box of neglected writings , received from a relatio?i y 
 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 Willi am, 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, f 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. 
 
 } Ibid, et ut supra. 
 
 t Ibid. 
 
G4 
 
 Mr. Alexander afterwards retired to America, where 
 he was one of the Generals of Congress against the 
 British arms. He 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 Ins 
 brothers, who had died in his life-time without issue; 
 and was succeeded by John, the Sixth Eail, the giand 
 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 
 the 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 alleged descent, Appendix, Pedigree Tab. 11 
 
65 
 
 11ns Mr. Trumbull married the daughter 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 1633 to heirs male, it is quite certain 
 t ie 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 Henry, the Fifth Earl, to have 
 been the last heir male of the body, his eldest sister, 
 Maiy, 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 J uditli 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 
 
 * TI|C tllle of most noble was for a long time generally given to a 
 Marquess, or Marquis — but that of most honourable has latterlv 
 superseded the former-for what reason I know not, unless it must 
 be inferred that a party might be noble, yet not honourable; it 
 was, therefore, to preserve the latter to high nobility. 
 
 
 F 
 

 J 
 
 66 
 
 predicament Lady Downshire stands-* ~n S e,.ent4 
 is out of the question with regard to any right in her to 
 
 • 4 +Vic c 'p r iM .I no honours and estates, 
 
 the succession to the Stirling » 
 
 under the Charter of Novo-Damus of 163J. 
 
 To resume the history of the present Earl s descent . 
 
 On the death of the Rev. John Alexander, Seven . 
 
 Earl, de jure, in 1765, without issue his brother 
 
 Benjamin (the second son of their f ^ he, '> tl | j X ’ 
 
 succeeded him as heir, and was Eighth Eai , J 
 
 He died the 18th April, 1768, only two years and four 
 
 months after his elder brother. Being unmarried with 
 
 him terminated the whole of the male ^sue descended of 
 
 the body of William, the First Earl of Stirling , 
 
 and thereupon, his two sisters were his co-hms ; but as 
 
 under the Charter of Novo-Damus, the limitation of the 
 
 descent of the honours was, “ to the eldest heirs 
 
 « Without division, of the last of such heirs male, &c. 
 
 the right of succession to the Earldom, 8tc. c evo vet 
 
 entire upon Mary Alexander, the elder 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 general, the Marchioness of Downslnre would not 
 
 have come in, there being extant the issue ^ an eldei 
 
 branch namely, of the sisters of the Second Earl, wli 
 
 were the granddaughters of the First Earl, by his eldest 
 
 son William, Viscount Canada, who died in Ins 
 
 life-time, and which issue must be the first and the 
 
 nearest heirs whatsoever in the female line. 
 
 befor 0 .me»tio»ed Mary. Coohtess of St.r- 
 
 ling, de jure, died unmarried in April, 1794 ; when her 
 
 only and surviving sister, Hannah, the wi e o i iam 
 
 Humphrvs, of the Larches, in the County of Warwick 
 
 Esquire/ became her heir, also sole heir general, and 
 
 heir of tailzie and provision, to her brothers, John and 
 
 Benjamin, the two last heirs male in succession to the 
 
 title and dignity of Earl of Stirling. 
 
67 
 
 Hannah, Countess op Stirling, de jure, died 
 12th September, 1814, leaving Alexander, Viscount 
 Canada, her only son and heir, who then became, and 
 now is, the present Earl. 
 
 After the close of the election in July, 1831, (as has 
 been stated before,) an objection, in the nature of a protest, 
 was entered against the Clerks of Session, for having 
 received Lord Stirling’s vote— one of the grounds of 
 complaint being, “ If the Claim 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 preferable claim to the dignity.” 
 
 Now, the Earl has never alleged a Patent to heirs 
 general, but he has alleged a Charter to an heir of tailzie 
 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, in pre- 
 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 Stirling titles 
 
 is not heir general, while the issue of an elder branch is 
 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 quality of heirship 
 whereby to arrogate a preference before or over the 
 present Earl. 
 
 P 2 
 
CHAPTER VI. 
 
 THE EARLDOM OE DOVAN. 
 
 In procuring this title to be made co-eval, or ratliei 
 invested with the Earldom of STIRLING, and which was 
 denominated from the locality of the lands of Tullibodie, 
 upon the river Dovan, it would seem that 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 tit es 
 were merely personal, and not united to the estates, so 
 they might at a future day become separable, and in cirt 
 able by distinct persons. To effect this object, the Ear 
 made a resignation of his lands of Tullibodie, anc u 1 
 cultrie, into the King’s hand, in the manner usual, and 
 conformable to the law of Scotland, for the purpose of a 
 new infeftment of them— which the King granted to him, 
 accordingly, by his Royal Signature, dated at the Palace 
 of Oatlands, 30tli July, 1637 ; wherein, after reciting the 
 resignation, it is thus mentioned, viz. 
 
 « Prseterea, nos, pro causis et respectibus supra spe- 
 “ cificatis, ex nostra certa scientia, proprioque motu, 
 
G9 
 
 “ univimus, ereximus, creavimus, et incorporavimus, 
 “ necnon tenore praesentium, cum avisamento et consensu 
 “ predict, unimus, erigimus, creamus, et incorporamus 
 “ omnes et singulas terras, baronias, aliaque particulariter 
 “ et generaliter supramentionat.,” &c. &c. “ baroniarum 
 “ de Tullibodie et Tullicultrie, 01101,” &c. &c. “ in ununi 
 “ integrum et liberum dominium et comitatum, praeno- 
 " minato WlLLlELMO, CoMITI DE STIRLING, in vitali 
 “ redditu duran. omnibus suae vitae diebus, et Willielmo, 
 “ Domino Alexander, ejus filio, et heredibus suis mascu- 
 “ lis et assignatis praedict. Comitatum de Do van omni 
 “ tempore affuturo, nuncupat. et nuncupand. cum titulo , 
 “ stilo, et dignitate Comitis, 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 unum integrum 
 “ et liberum Comitatum , Comitatum de Do van, omni 
 “ tempore affuturo f 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 confirmed in Parliament, 
 and an entry of the confirmation made on the Records of 
 the Acts of Parliament of Scotland, in these words : * 
 
 “ Quinto Octo e * 1639 . 
 
 “ Ratifica°ne. 
 
 ci In favoris of the Erle of Stirling, of Tillibody and 
 “ Tillicultrie.” 
 
 * Vol. V. p. 273, folio edit. 1817. 
 
70 
 
 J 
 
 On paying attention to the words of the Signature, by 
 which the two baronies are specially incorporated and 
 erected into the Earldom of Do VAN, 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 dignitate Comitis, secundum datum dicti Comitis 
 “ crealionis, sibi 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 
 of 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 before noticed,) dated 7th 
 December, 1639, obtained a regrant of them, with an 
 erection of the 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 
 
 
u 
 
 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 Dovan, 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 Dovan title, and the 
 lands, by a limitation, which is not susceptible of doubt 
 or challenge ? 
 
 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 Earl of Stirling, as heir male thereto, 
 and he 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 
 
73 
 
 took of right 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 present,) who died in 1768, unmarried; the now 
 Earl, as only son and heir of his mother, the sole surviving 
 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 30th 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. 
 
 \ 
 
 * Vide Polworth case, coram Dorn. Proc. 
 
1 
 
 APPENDIX. 
 
 
 
1 
 
 APPENDIX. 
 
 No. I. 
 
 Copy of the Retour 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-Damus, 1th 
 of December , 1639 ; dated 1th February , 1826 — as certified 
 from the record by the proper officer of the Court of Chan- 
 cery at Edinburgh . 
 
 Ha:c Inquisitio facta fuit in Curia Regalitatis Burgi vici Canoni- 
 corum Septimo die mensis February Anno Domini millesimo 
 octingentesimo et vigesimo sexto coram Honorabili viro Gulielmo 
 Bailey Armigcro uno Balivorum dicti Burgi per bos probos et 
 fideles patriae homines, viz. Thoraam Cristopherum Banks, Honor- 
 abilis Societatis Interioris Templi Londini Armigerum, Ephraim 
 Lockhart Armigerum Scribam Signeto Regio, Henricum Wharton, 
 Joannem Stewart Mein, Georgium Stewart Jack, et Joannem 
 Mason, Scribas in Edinburgho: Alexandrum Adam, Robertum 
 Renton White, Jacobum Smith, et Davidem Kirk, Mercatores 
 ibidem, Joannem Brett Fabrum Lignarium ibid. Gulielmum Muir, 
 Archibaldum Craig, Duncanum M‘Kenzie, et Allanum M‘GiU, 
 Mercatores in Vico Canonicorum. Qui Jurati, dicunt magno Sac- 
 ramento interveniente, Quod quondam Hanna Alexander, alias 
 Humphrys, Mater Alexandri Humphrys Alexander de Netherton 
 House, in Comitatu de Worcester, Comitis de Stirling, Vice Comitis 
 de Stirling et Canada, Domini Alexander de Tullibody, &c. &c. 
 latoris pnesentium, unici surviven filii dict\ quond. Hannae Alex- 
 ander alias Humphrys quae uxor fuit Gulielmi Humphrys dc Bir- 
 mingham, et lie de Larches, ambobus in comitatu de Warwick 
 
J 
 
 78 
 
 Armigeri, et ultima survivens haeres femella Benjaminis Alexander 
 ex Basingh all- street, Londini, ejus Fratris Germani, ultimi Hae- 
 redis Masculi b corpore Gulielmi Alexander de Menstrie Militis 
 Baronetti primi Comitis de Stirling, abavi ejus, succeden. titulis 
 lionoribus et dignitatibus limita 1 - dicto Gulielmo Comiti de Stirling 
 et Haeredibus Masculis ex ejus corpore, &c. per literas patentesseu 
 Cartam de Novodamus sub sigillo magno Scotiae de data Septimo 
 die Decembris Anno Millesimo sexcentesimo et trigesirao nono, 
 obiit ad fidem et pacem, S. D.N. Regis. Et quod die 1 * Alexander 
 Humplirys Alexander, Comes de Stirling, Vicecomes de Stirling 
 et Canada, Dominus Alexander de Tullibody, &c. See. lator prae- 
 sentium, est propinquior et legitimus Haeres Masculus ex corpore 
 die 1 * quond. Hannae Alexander alias Humplirys ejus matris, et 
 quod est legitimae aetatis. In cujus rei Testimonium Sigilla eorum 
 qui dictae Inquisitioni intererant sunt appensa, nec non cum 
 subsetiptione Clerici die 1 * Burgi sub inclusione Sigilli die 1 * Balivi 
 cum brevi Regio incluso loco die mense et anno praedictis, (sic 
 subscribitur,) John Mac Ritchie, Clerk. 
 
 Haec est vera copia principalis Retornatus super praemissis in 
 Cancellaria S. D. N. Regis remanen. Ex 1 - copiat. et colla 1 - per me 
 Thomam Miller substitutum Jacobi Dundas Deputati praehonora- 
 bilis Jacobi St. Clair Erskine, Comitis de Rosslyn, ejusd. Cancel- 
 lariac Directoris sub hac mea subscriptione. 
 
 THOMAS MILLER, Sub*- 
 
 No. II. 
 
 Copy of the Retour of General Service of the Earl of Stir- 
 ling as nearest and lawful Heir in general of his Great - 
 gr eat- gre at-Grandf other , William, the First Earl of 
 Stirling : — dated 11th October, 1830. 
 
 H;ec Inquisitio facta fuit in Curia Regalitatis Burgi vice Cano- 
 nicorum undecimo die mensis Octobris anno Domini millesimo 
 octingentesimo et trigesimo coram Honorabili viro Joanne Robert- 
 son Arn.igcro uno Balivorum dicti burgi per lios probos et fideles 
 patricC homines, viz. Alexandrum Monypenny, Jacobum Dalgleish, 
 
79 
 
 et Gulielmum Fraser, Armigeros Scribas Signeto Regio, Joannem 
 M'Cleish de Maryfield, Armigerum, Philippum Crow, Archibaldum 
 Douglas, Joannem Mason, et Robertum Oliphant, Scribas in 
 Edinburgo, Jacobum Simpson Scribam in Leith, Jacobum Gardner 
 Pharmacopolam in Edinburgo, Gualtenum Marshall Pictorem 
 ibidem, Robertum Latta Exactorem custumarum ibidem, Thomam 
 Workman Mercatorem in Vico Canonicorum, Joannem Suther- 
 land residentem ibidem, et Alexandrum Brodie Mercatorem in 
 Leith. Qui Jurati, dicunt magno Sacramento interveniente, Quod 
 quondam Guliklmus primus Comes de Stirling Atavus Alexan- 
 dri Comitis de Stirling, Vieecomitis de Stirling et Canada, 
 Domini Alexander de Tullibodie,&c. unici surviventis filij decessae 
 Hannae Alexander alias Humphrys quae uxor fuit Gulielmi 
 Humphrys de Birmingham et lie the Larches ambobus in Comitatu 
 de Warwick Armigeri et soror germana et ultima survivens haeres 
 femella demortui Benjamini Alexander ex Basinghall Street Lon- 
 dini abnepotis et ultimi haeredis masculi de corpore dicti quondam 
 Gulielmi Comitis de Stirling obiitad fidem etpacem S.D. N. Regis; 
 Et quod dictus Alexander Comes de Stirling lator praesentium 
 est propinquior et legitimus haeres in generali dicti quondamGuLi- 
 elmi Comitis de Stirling sui atavi ; Et quod est legitimae aetatis. 
 In cujus rei Testimonium Sigilla eorum qui dictae Inquisitioni 
 intererant sunt appensa nec non cum subscriptione Clerici dicti 
 burgi sub inclusione sigilli dicti Balivi cum brevi regio inclusoloeo 
 die mensis et anno praedictis, (sic subscribitur,) William Fraser, 
 Jun r * Clerk. 
 
 Haec est vera copia principalis Retornatus super praemissis in 
 Cancellaria S. D. N. Regis remanen. Ex l « copiat. et colla** per 
 me Joannem Dundas substitutum Jacobi Dundas deputati prae- 
 lionorabilis S 1 * Clair Erskine, Comitis dc Rosslyn, ejusdem Cancel- 
 lariae Directoris sub hac mea subscriptione. 
 
 JOHN DUNDAS, Sub*- 
 
u 
 
 80 
 
 No. III. 
 
 Copy of the Claim for Alexander, Earl of Stirling, 
 to he served Heir of Tailzie and Provision to his Great- 
 great-great-Grandfather, William, First Earl of 
 Stirling. 
 
 Honourable Persons, and Good Men of Inquest, I, Alexander, 
 Earl op Stirling, Viscount of Stirling and Canada, Lord Alex- 
 ander of Tullibodie, &c. only surviving son and heir male of the 
 body of the deceased Hannah Alexander, otherwise Humphrys, 
 who was Wife of William Humphrys of Birmingham and the 
 Larches, both in the County of Warwick, Esquire, and last sur- 
 viving heir female of the deceased Benjamin Alexander, of Basing- 
 hall Street, London, her brother german, last heir male of the 
 body of the deceased Sir William Alexander of Menstrie, 
 Miles, the First Earl of Stirling, his Great-great-great-Grand- 
 father, according to my Service duly retoured to His Majesty’s 
 Chancery, and heir whatsoever of the said Benjamin Alexander, 
 my Uncle, and Great-great-grcat-Grandson and heir served and 
 retonred to the said deceased William, Earl of Stirling, Say 
 unto Your Wisdoms, that the said deceased 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 charter 
 .of resignation, confirmation, de Novo-Damus, &c. under the 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 
 days of his life, and to the aforesaid William, Lord Alexander, 
 
81 
 
 his son, and to his own heirs male and assignees foresaid, all and 
 sundry mines and minerals also therein particularly described ; 
 and uniting, erecting, creating and incorporating all and sundry 
 the lands, baronies, and others therein mentioned, with the mines 
 and minerals foresaid, into one entire and free Lordship and Earl- 
 dom, in all time to come, called and to be called by the before- 
 named William, Earl of Stirling, in life-rent, during all the 
 days of his life, and William, Lord Alexander, his son, and his 
 own heirs male foresaid, the Earldom of Dovan, with the title, 
 style and dignity of Earl, according to the date of the creation of 
 the said Earl 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 of Stirling, in life-rent during 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 Thousand 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 
 of Stirling, my Great-great- great- Grandfather, under 
 the aforesaid precept, and to retour my service to His 
 Majesty’s Chancery under the most of your seals, as 
 use is. 
 
 According to justice, &c. 
 
 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 30 th, 1831. 
 
 Hjec Inquisitio facta fuit in Curia Regalitatis Burgi vici Cano- 
 nicorum trigesimo die mensis Maii Anno Domini millesimo octin- 
 gentesimo et trigesimo primo, coram Honorabili viro .loanne Christie 
 
 G 
 
82 
 
 U 
 
 r 
 
 Armigero uno Balivorum diet. Burgi per hos probos et fideles 
 patriae homines, viz 1 - Jacobum Graham deLeitchtown Armigerum, 
 Davidem Lindsay Waugh, Henricum Wharton, Carolum Stewart, 
 Jacobum Martin et Robertum Oliphant Scribas in Edinburgo, 
 Tliomam Miller et Joannem Dunlop Mercatores ibid. Gulielmum 
 Wallace residen ibid. Joannem Crerar Ribliopolaui ibidem, Joan- 
 nem Scott Sartorem ibidem, Joannem Grainger residen ibid. 
 Joannem Buchanan Typograplium ibid. Joannem Law Agricolam 
 apud Tranent, Jacobum Syme Opificem ibid. Qui jurali, dicunt 
 magno Sacramento interveniente, Quod quondam Dominus Guli- 
 elmus Alexander de Menstrie, Miles, primus Comes de Stirling, 
 atavus Alexandri Comitis de Stirling, Vice Comitis de Stirling 
 et Canada, Domini Alexander deTullibodie, &c. latoris praesentium 
 unici surviventis filii ethaeredis masculi ex corpore decessae Hannae 
 Alexander, alias Humphrys, quae uxor fuit Gulielrni Humphrys 
 de Birmingham et lie the Larches, ambobus in Comitatu de War- 
 wick, Armigeri, et ultima survivens haeres femella decessi Ben- 
 jaminis Alexander, ex Basinghall Street Londini, ejus fratris 
 germani, ultimi haeredis masculi de corpore diet, quond. Gulielrni 
 Comitis de Stirling abavi ejus secundum de servitium suum debite 
 ad Cancellariam S. D. N. Regis retornatum, ac haeredis cujus- 
 cunque diet. Benjaminis Alexander sui avunculi atque adnepotis 
 ethaeredis deservit. et retorn at. ad diet, quond. Gulielmum Comi- 
 tem de Stirling, obiit ad fidem et pacem S. D. N. Regis. Et quod 
 diet. Alexander, Comes de Stirling, &c. lator praesentium, est pro- 
 pinquior et legitimus haeres talliae et provisionis in gencrali diet, 
 quond. Gulielrni primi Comitis de Stirling sui atavi, virtute praeccpti 
 Cartse Resignation is, Confirmationis, de Novodamli concedendi et 
 disponendi pro ut S. D. N. Rex tunc regnan. cum avisamento et 
 consensu inibi mentionat. de novo dedit concessit et disposuit me- 
 morato Gulielmo Comiti de Stirling in vitali reditu duran. omnibus 
 suae vitae diebus, et Willielmo Domino Alexander, ejus filio legi- 
 timo natu maximo et haeredibus ejus masculis de corpore suo 
 legitime procreatis vel procreandis, quibus deficientibus haeredibus 
 masculis diet. Gulielrni Comitis de Stirling et assignatis quibus- 
 cunque. Totas et integras terras baronias aliaqne eo particulariter 
 descript, et dandi concedendi et disponendi, ac in feudifirma lo- 
 candi memorato Gulielmo Comiti de Stirling in vitali reditu duran. 
 omnibus suae vitae diebus, et praefato Willielmo Domino Alexander 
 ejus filio et haeredibus suis masculis et assignatis praedict. Omnes 
 et singulas mineras et mineralia etiam co particulariter descript. ; 
 
 
83 
 
 ct uniendi erigendi creandi et incorporandi Omnes et singulas 
 terras baronias aliaque eo niemorat. cum mineris et mineralibus 
 antedict. in ununi integrum et liberum dominium et comitatum 
 praenominato Gulielmo Comiti de Stirling in vitali reditu duran. 
 omnibus suae vita? diebus, et Willielmo Domino Alexander ejus 
 filio, et haeredibus suis masculis praedict. Comitatum de Dovan 
 omni tempore affuturo nuncupat. et nuncupand. cum titulo stilo 
 et dignitate Comitis, secundum datum dicti Comitis creationis sibi 
 desuper concessae quae est de data decimo quarto die mensis Junii, 
 Anno Domini millesimo sexcentesimo trigesimo tertio. Tenen. et 
 Haben. memoratis Gulieimo Comiti de Stirling in vitali reditu 
 duran. omnibus suae vitae diebus, et Willielmo Domino Alexander 
 suo filio ot haeredibus suis masculis et assignatis praedict. modo 
 inibi specificat. Quod Praeceptum est de data trigesimo die mensis 
 Julii Anno Domini millesimo sexcentesimo trigesimo septimo. 
 Et quod estlegitimae aetatis. In cujus rei Testimonium Sigilla eorum 
 qui diet. Inquisitioni intercrant sunt appensa nee non cum sub- 
 scriptione Clerici diet. Burgi sub inclusione sigilli diet. Balivi cum 
 brevi Kegio incluso loco die mensis et anno praedict. (sic subscri- 
 ber,) William Fraser, Jun r - Clerk. 
 
 Haec est vera copia principalis Retornatus super praemissis 
 in Cancellaria S. D. N, Regis remanen. extract, copiat. et 
 collat. per me Gulielmum Wilson substitutum Joannis 
 Dundas Dcputati praehonorabilis Jacobi St. Clair Erskine, 
 Comitis de Rosslyn, ejusdem Cancellariae Directoris, sub 
 hAc mca subscriptione. 
 
 (Signed) WILLIAM WILSON, Sub, 
 
 G 
 
 o 
 
J 
 
 84 
 
 No. IV. 
 
 Copy of the Claim of the Service of Alexander, Earl of 
 Stirling, as nearest and lawful Heir in special of 
 William, First Earl of Stirling;— with the Verdict 
 annexed . 
 
 Honorable Persons, and Good Men of Inquest, I, Alexander, 
 Earl of Stirling and Dovan, Viscount of Stirling and Canada, 
 Lord Alexander of Tutlibouie, &c. Great-grcat-great-Grandson of 
 the deceased Sir William Alexander, of Menstrie, the FirstEARL 
 of Stirling, Say unto your Wisdoms, ‘That the said William, 
 Earl of Stirling, died last vest and seised, at the faith and peace 
 of our sovereign Lord the King then reigning, in the fee of all and 
 sundry the lands, continents and islands, 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 westwardly 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 which runs out into the eastern district 
 of the land, between the Countries of the Suriquois and Steche- 
 mines, 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 Gathep6, or Gaspe; 
 and thereafter towards the south-east to the islands called 
 Bacaloes, or Cape Breton, 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 
 
85 
 
 their circumference from sea to sea, all the lands, continents, 
 with rivers, brooks, bays, shores, islands, or seas, lying near or 
 within six leagues of any part thereof, on the west, north, or east 
 sides of the coasts and precincts of the same ; and from the south- 
 east (where lies Cape Breton), and the south (where is Cap de 
 Sable), all the seas and islands southward within forty leagues of 
 the said coasts thereof, including the great island commonly called 
 Isle de Sable, or Sablon, lying towards the south-south-east thirty 
 leagues from Cape Breton foresaid, in the sea, and being in the 
 latitude of forty-four degrees, or thereby ; — which lands foresaid 
 were in all time coming to enjoy the name of Nova Scotia, in 
 America; which also were vested in the said William, Earl of 
 Stirling, according to a Charter of Novo-Damus under the Great 
 Seal of Scotland, of date the 12th day of July, in the year 1625, 
 made, given, and granted by His Majesty Charles, King of Great 
 Britain, France, and Ireland, in favour of the said William, Earl 
 of Stirling, (then and therein throughout named Sir William 
 Alexander,) his heirs and assignees heritably; — and by which 
 Charter it is declared, that the said William, Earl 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 refining 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, which 
 afterwards shall be dug or gained from the land, 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 thereby 
 they may more easily bear the great expences 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 fishes, as of other, 
 hunting, fowling, commodities and hereditaments whatsoever; to- 
 gether with full power, privilege and jurisdiction of free regality and 
 chancery for ever, and with the gift and right of patronage of churches, 
 chapels, and benefices, with tenants, tenandries, and services of 
 
86 
 
 free tenants thereof; together with the offices of Justiciary ami 
 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, 
 infeftments, 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- 
 ditary 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, forms 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 aforesaid William, Earl of 
 
87 
 
 Stirling, and his forcsaids, of conferring favours, privileges, offices 
 and honours, on the deserving, with fall power to them, or any of 
 them, who should happen to make agreements or contracts for the 
 said lands with him, Willi am, Earl of Stirling, and his foresaids, 
 under his or their subscription, and the seal mentioned in the 
 said Charter, of disposing and gratuitously overgiving any portion 
 or portions of the said lands, ports, naval stations, rivers, or any 
 part of the premises, of erecting also inventions of all sorts, arts, 
 faculties or sciences, or of exercising the same, in whole or in part, 
 as shall appear for their good, of giving, also, granting and be- 
 stowing such offices, titles, rights, and powers, as shall appear 
 necessary, according to the qualities, conditions, and merits oi the 
 persons ; with power to the said William, Earl of Stirling, and 
 his heirs and assignees, of.jLrecting, 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 ail 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 thereof 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, advocate 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 conservators of 
 privileges of the said country, advocates, procurators and solici- 
 tors, and other necessary members thereof; and further, ot giving, 
 granting and disposing any parts or portions ot the said lands, 
 country, and lordship of Nova Scotia, heritably belonging to them, 
 to and in favour of whatsoever persons, their heirs and assignees, 
 heritably, with the teinds and teind sheaves included, (only, that 
 
J 
 
 88 
 
 they be the subjects of His Majesty,) to be holden of the said 
 William, Earl of Stirling, or of His Majesty and his successors, 
 whether in blench farm, feu farm, or ward and relief, at their good 
 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 William, Earl of 
 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 Scotia, or of any part thereof, in 
 the hands of His Majesty and his successors and commissioners, 
 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 expede 
 infeftments to be holden in free blench farm of His Majesty, his 
 heirs and successors, in manner above-mentioned, freely, without 
 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 
 
89 
 
 Nova Scotia, with all the boundaries and seas thereof, were united, 
 annexed, and incorporated into one entire and free lordship and 
 barony, to be called in all time coming by the foresaid name of 
 Nova Scotia; and by which Charter it is ordained that one seisin, 
 to be taken by the said William, Earl of Stirling, and his fore- 
 saids, at the Castle of Edinburgh, in all time coming shall stand 
 and be sufficient for all and whole the country, with all the parts, 
 pendicles, privileges, casualties, liberties and immunities thereof 
 above-mentioned, without any other special or particular seisin to 
 be taken by himselt and his foresaids at any other part, as in the 
 said Charter, comprehending divers other conditions, provisions, 
 limitations, and restrictions, with many and great privileges, im- 
 munities, dignities, and honours, is more fully contained ; and in 
 which lands foresaid, the said William, Earl of Stirling, was 
 duly inlett, in virtue of the precept or seisin inserted in the end of 
 the aforesaid Charter, according to instrument of seisin following 
 thereon, of date the 29th day of September, in the year 1625, and 
 recorded in the general register of seisins, &c. kept at Edinburgh, 
 the 1st day of October, and year aforesaid And that I am nearest 
 and lawful heir of the said deceased William, Earl of Stirling, 
 my Great-great-great-Grandfather, in all and sundry the lands and 
 others foresaid ; and that I am of lawful age; and that the said 
 country and lordship of Nova Seotia is holden of our sovereign 
 lord the King and his successors, in free heritage, free lordship, 
 free barony and regality for ever, for the payment yearly to our 
 sovereign lord, and his heirs and successors, of one penny Scots 
 money, upon the ground of the said lands and province of Nova 
 Scotia, at the feast of the Nativity of Christ, in name of blench 
 farm, if asked only ; and that the said lands and others are now 
 worth the yearly blench farm duty above-mentioned; and were 
 worth as much in time of peace, dispensing with non-entry when- 
 soever it shall happen ; provided, however, that the said William, 
 Earl of Stirling, and his heirs and assignees, within the space of 
 seven years after the decease of their predecessors, or entry to the 
 possession of the said lands and others foresaid, by themselves or 
 their lawful procurators having power to this effect, did homage to 
 our sovereign lord and his successors, and enter to the said lands, 
 lordship, and barony, and others foresaid, and are received by 
 them according to the laws and statutes of the said kingdom of 
 Scotland; and that the foresaid William, Earl of Stirling, died 
 the twelfth day of February, in the year 1640, and the said lands 
 and others have been from that time in the hands of our sovereign 
 
90 
 
 lord and his royal predecessors, as lawful superiors thereof by 
 reason of non-entry, and of the right of an heir foresaid not having 
 hitherto been prosecuted. 
 
 Herefore I beseech your Wisdoms to serve and cognosce 
 me nearest and lawful heir in special of the said 
 deceased William, Earl of Stirling, my Great- 
 great-great-Grandfather, in the lands and others fore- 
 said, and to retour my said service to His Majesty’s 
 Chancery, under the most of your seals, as use is. 
 
 According to Justice, and your Wisdoms’ answer. 
 
 PAT. ROBERTSON, Chancellor. 
 
 T. C. RANKS, 
 
 For the Claimant, per Mandate, 
 
 Copy of the Verdict. 
 
 At Edinburgh, and within the New Session House there, in the 
 Court -Room of the First Division of the Court of Session, the 
 second day of July, in the year 1831. The whole persons of inquest 
 before-mentioned, being all solemnly sworn, and admitted to pass 
 upon the service of the brieve issued forth of His Majesty’s Chan- 
 cery, for inquiry into the foresaid claim ; and having all seen and 
 considered the claim before-written, with the writs produced in Court 
 for instructing thereof ; and no person objecting, although legally 
 cited, thrice called, and lawful time of day waited,— they all in 
 one voice, and without variance, find the claim before written 
 sufficiently instructed and proven, and serve the said Alexander, 
 Earl of Stirling and Dovan, &c., the claimant, nearest and 
 lawful heir in special of the said deceased William, Earl of 
 Stirling, his Great -great-great-Grandfather, according to the fore- 
 said claim ; and ordain the service and the brieve to be retoured 
 to His Majesty’s Chancery. In testimony whereof, these presents 
 and the claim, are in their presence, and by their direction and con- 
 sent, signed by Patrick Robertson, Esq., Advocate, whom they had 
 elected their Chancellor. 
 
 PAT. ROBERTSON, Chancellor. 
 
 The Sheriff interponcs his authority to the premises. 
 
 G. TAIT. 
 
 r, 
 
91 
 
 Copy oj the Act of Court of the Special Service of Alexander, 
 Earl of Stirling, fyc. 
 
 COURT of the Service of the Brieve issued forth of His 
 Majesty's Chancery, at the instance of Alexander, Earl 
 of Stirling and Dovan, Viscount of Stirling and Canada, 
 Lord Alexander of Tullibodie, &c. for serving him nearest 
 and lawful heir of the deceased Sir William Alexander, 
 of Menstrie, the First Earl of Stirling, his Great-great- 
 great-Grandfather, in all and sundry lands and others, in 
 the fee of which the said William, Earl of Stirling, 
 died last vest and seised, at the faith and peace of our 
 sovereign lord the King then reigning — holden within the 
 Parliament or New Session House of Edinburgh, in man- 
 ner after specified. 
 
 At Edinburgh, the second day of July, in the year 1831, and 
 within the Parliament or New Session House there, in the Court 
 Room of the First Division of the Court of Session, in presence of 
 George Tait, Esquire, Advocate, Sheriff-substitute of the Sheriff- 
 dom of Edinburgh, as Sheriff of the Sheriffdom of Edinburgh, 
 specially constituted to the effect after-mentioned — Compeared 
 Thomas Christopher Banks, Esquire, residing at No. 19, Duke- 
 street, Edinburgh, as procurator and mandatory for and in 
 name of the said Alexander, Earl of Stirling, &c. according 
 to mandate dated the 28th day of June last past; and thereby 
 specially empowered to purchase a brieve forth of Chancery, and 
 to obtain the said Alexander, Earl of Stirling, &c. served 
 nearest and lawful heir of the said deceased William, Earl of 
 Stirling, his Great-great-great-Grandfather, in the lands and 
 others after-mentioned, and to procure such service retoured to 
 Chancery ; and produced His Majesty's commission, by deliver- 
 ance of the Lords of Council and Session, passed under the Quar- 
 ter Seal, otherwise called the Testimonial of the Seal, appointed by 
 the Treaty of Union to be made use of within Scotland in place of 
 the Great Seal thereof, making, constituting and appointing the 
 Sheriff-deputc of the said Sheriffdom of Edinburgh, or his substi- 
 tute, Sheriff of the Sheriffdom of Edinburgh, for serving the brieve 
 to be issued forth of His Majesty's Chancery for cognoscing the 
 said Alexander, Earl of Stirling, &c. nearest and lawful heir 
 of the said deceased William, Earl of Stirling, his Great-great- 
 great-Grandfather, in all and sundry lands and others, in which the 
 
92 
 
 said William, Earl of Stirling, died last vest and seised, as of 
 fee, at the faith and peace of our sovereign lord the King then 
 reigning; and which commission contains a dispensation, with the 
 place and time of vacance, and is dated the 10th, and sealed the 
 15th days of June last past and the said Thomas Christopher 
 Banks, procurator and mandatory foresaid, having desired the said 
 Sheriff-substitute of the Sheriffdom of Edinburgh to proceed to the 
 execution of the office of Sheriff thereby committed to him, the said 
 Sheriff made choice of Ephraim Lockhart, writer to His Majesty's 
 Signet and notary public, to be Clerk for the Service of the said 
 Alexander, Earl of Stirling, &c., as heir foresaid, and of 
 George Lindsay Rae, gown-keeper to the society of writers to the 
 said Signet, to be the officer for the Court of the said Service ; and 
 who, being both solemnly sworn, made oath de Jideli administration# ; 
 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 to pass 
 upon the inquest of the said brieve, as being most proper and least 
 suspected, and who best know the verity of the matter ; they are 
 to say, 
 
 Patrick Robertson, and 
 
 James Welsh, Esquires, Advocates ; 
 
 David Johnson, Esquire, Doctor of Medicine in Edinburgh ; 
 
 John Renton ; 
 
 James Balfour ; 
 
 James Macdonall ; 
 
 John Dickie ; 
 
 Henry Inglis, Junior, and 
 
 James Souter, Esquires, Writers to His Majesty's Signet; 
 
 John Stirling, Esquire, Accouutant in Edinburgh ; 
 
 John Adams ; 
 
 John Phillips, and 
 
 Thomas Ranken, Solicitors of the Supreme Courts ol Scotland; 
 
 William Wallace Sibbald, Esquire, residing in 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, 
 
93 
 
 Sheriff of the Sheriffdom of Edinburgh, specially constituted as 
 aforesaid, at the instance of the said Alexander, Earl of 
 Stirling, &c., for cognoscing him nearest and lawful heir of 
 the said deceased William, Earl of Stirling, his Great-great- 
 great-Grandfather, in all and sundry lands and others, in which 
 the said William, Earl of Stirling, died last vest and seised, 
 as of fee, at the faith and peace of our said sovereign lord ; 
 together with an execution of the said brieve under the hands of 
 William Swanston, officer of the Sheriff of the Sheriffdom of Edin- 
 burgh, and of James Calder and Donald M‘Leod, both residenters 
 in Edinburgh, as witnesses, bearing the said William Swanston to 
 have passed to the market-cross of the burgh of Edinburgh, head- 
 borough of the said Sheriffdom of Edinburgh, upon the 15tli day of 
 June last past, being a market-day within the said burgh of Edin- 
 burgh, and in open market time, and to have duly and openly pro- 
 claimed and executed the brieve, in due form of law; — and which 
 brieve, with the execution thereof, being audibly and publicly read, 
 the said Judge found that the said brieve was duly and lawfully 
 executed : — thereafter the said Thomas Christopher Banks, pro- 
 curator and mandatory foresaid, exhibited and produced a claim 
 for the said Alexander, Earl of Stirling, &c., praying that he 
 should be served and cognosced nearest and lawful heir of the said 
 deceased William, Earl of Stirling, his Great-great-great- 
 Grandfather, in all and sundry the lands, continents and islands, 
 situate and lying in America, and others therein particularly 
 described ; and for verifying the several heads of the said claim, 
 the above-named Thomas Christopher Banks, procurator and man- 
 datory foresaid, produced the writs after-mentioned, viz. Imo, 
 Book the 51st of the Register of the Great Seal, containing the 
 record of a Charter of Novo-Damus under the said Great Seal, of 
 date the 12th day of July, in the year 1625, made, given and 
 granted by His Majesty Charles the First, 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 William, 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 Retour of the service expede before the bailies of the 
 borough of Cannongate, of the said Alexander, Earl of Stir- 
 ling, as heir of the said deceased William, Earl of Stirling, 
 
94 
 
 his Great-great-great-Grandfather, which Retour is dated the 1 1th 
 day of October, in the year 1830, and duly retoured to Chancery ; 
 and for instructing the old and new extent of the lands and others 
 contained in the said claim, and in which the said W illiam, Earl 
 of Stirling, died last infeft, there was produced a Charter under 
 the Great Seal, of date the 10th day of September, in the year 
 1621, made, given and granted by His Majesty James the Sixth in 
 favour of the said William, Earl of Stirling, (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 Sheriff-substitute 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 being waited, the said procurator and 
 mandatory protested contra omnes non comparentcs , 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 Sheriff-substitute 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, caused 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 comparentcs , 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 
 mouth of their Chancellor, found the foresaid claim sufficiently 
 instructed and proven ; and therefore served and cognosced the 
 said Alexander, Earl of Stirling, &c., nearest and lawful heir 
 
95 
 
 in special of the said deceased William, Earl of Stirling, his 
 Great-great-great-Grandfather, in all and sundry the lands and 
 others contained in the said claim, in which the said William, 
 Earl of Stirling, died last vest and seised ; and that conform to 
 the said claim, and the verdict of the said Inquest subjoined 
 thereto, and signed by their said Chancellor in all points ; and 
 ordained the said service, under the hand of the Clerk of Court, 
 with the said brieve, to be retoured to Ilis Majesty’s Chancery, 
 and to which verdict and service the said Sheriff-substitute of the 
 Sheriff of Edinburgh, as Judge foresaid, adhibited his authority, 
 and ordained the same to be retoured in manner foresaid : — 
 Whereupon, and upon all and sundry the premises, the said pro- 
 curator and mandatory asked Acts of Court, and asked and took 
 instruments in the hands of the Clerk of Court aforesaid; and the 
 Sheriff interponed his authority to the premises. 
 
 (Signed) G. TAIT. 
 
 EPH. LOCKHART, N. P. and C. D. 
 
 No. y. 
 
 Copy of the Minutes of Election * of James , Viscount of 
 Strathallan , as one of the Sixteen Peers of Scotland , in 
 the room of the deceased Alexander , Earl of Balcarres. 
 
 At the Palace of Holyrood House, in Edinburgh, the 2nd day 
 of June, 1825, in obedience to His Majesty’s royal proclamation, 
 of date, at Carlton House, the 20th day of April last, commanding 
 all the Peers of Scotland to assemble and meet, at this place, this 
 day, between the hours of twelve and two in the afternoon, to 
 nominate and choose a Peer of Scotland, to sit and vote in the 
 House of Peers of this present Parliament of the United Kingdom 
 of Great Britain and Ireland, in the room of Alexander, Earl of 
 Balcarres, deceased ; the Peers of Scotland did assemble between 
 the hours of twelve and two in the afternoon, and the meeting was 
 opened with prayer. 
 
 Register of Elections of Peers, Vol. II. fol. 228, 
 
u 
 
 96 
 
 The said proclamation, and certificate of publication thereof at 
 the market-cross of Edinburgh, the 6th day of May last, were 
 read ; after which the Lord Register’s commission, nominating 
 Sir Walter Scott, Baronet, and Colin Mackenzie, Esquire, two of 
 the principal Clerks of Session, and in case of their absence, any 
 other two of the said principal Clerks of Session, to he Clerks 
 of the Meeting, dated the 21st, and registered in the books of 
 Session the 24th day of May last, was produced. The long or 
 great roll of the Peers of Scotland was called over, except those 
 that stand attainted of high treason. Upon the title of Earl of 
 Marr being called, Lord Nairne protested in the same terms as at 
 the election of Lord Napier, on the 8th of July, 1824, respecting 
 the place of the Earl of Marr on the roll. 
 
 Upon the title of Earl of Stirling being called, Alexander 
 Humphrys Alexander claimed to vote as Earl of Stirling, as 
 being heir male of the body of Hannah, Countess of Stirling, 
 who was lineally descended from William, First Earl of Stir- 
 ling, and who died on the 20th day of September, 1814, and 
 thereby, under the destination of a royal charter or letters patent 
 of Novo-Damus, under the Great Seal of Scotland, dated 7th 
 December, 1639, granted by His Majesty King Charles the 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. 
 
 The Peers who auswered to their titles, were the 
 Earls of Stirling, 
 
 of Leven, 
 
 of Glasgow, 
 
 Viscount of Stralhallan, 
 
 Lords Forbes, 
 
 Ellibank, 
 
 • Rollo, 
 
 Nairne. 
 
 The oaths and declarations required by law were administered 
 to, and subscribed by, the Peers present. 
 
 There was produced a proxy by the Earl of Marr to Lord 
 
 Nairne. 
 
 There were produced signed lists by the Peers following, 
 directed to the Lord Clerk Register, or Clerks officiating at the 
 meeting ; and with these lists, the documents and instructions of 
 the Peers subscribing, being qualified as by law directed. 
 
97 
 
 Signed lists by the 
 
 Duke of Athol, 
 
 Earls of Moray, 
 
 of Kellie, 
 
 of Elgin, 
 
 of Aboyne, 
 
 of Dunmore, 
 
 of Rosebery, 
 
 Viscounts of Kenmure, 
 
 of Arbuthnott, 
 
 Lords Gray, 
 
 Cathcart. 
 
 There was made out a list of the Peers present, of the proxy, and 
 signed lists; and the votes of the Peers present being called for, 
 they all voted for James, Viscount of Strathallan. Lord Nairne, 
 as proxy for the Earl of Marr, voted for James, Viscount of Strath- 
 allan. And the signed lists, having been examined, were all found 
 to name James, Viscount of Strathallan. Thereafter, the Clerks 
 officiating having collected the votes of the Peers present, and of 
 the proxy, and votes given in the lists, they made the certificate or 
 return of the election, which they signed and sealed in the pre- 
 sence of the Peers electors, in favour of James, Viscount of Strath- 
 allan, to sit and vote as one of the sixteen Peers of Scotland in the 
 present Parliament of the United Kingdom of Great Britain and 
 Ireland, in the room of Alexander, Earl of Balcarres, deceased; 
 and of the said return the Clerks officiating signed two duplicates 
 on parchment, one to be immediately transmitted to the Clerk of 
 the Crown, directed to him at his office, Chancery-lane, London ; 
 and the other to guard against any accident happening to the 
 first, and in the mean time to be placed among the records in His 
 Majesty's General Register House, to manifest this election. 
 
 The meeting then dissolved with prayer. 
 
 (Signed) WALTER SCOTT. 
 
 COLIN MACKENZIE. 
 
 Extracted from the Records in His Majesty's General Register 
 House, upon this and the six preceding pages of stamped paper, 
 by me, one of the keepers of these records, having commission for 
 that effect from the Lord Clerk Register. 
 
 WILLIAM ROBERTSON. 
 
 H 
 
u 
 
 98 
 
 The election is thus certified by the Clerks of Session to the 
 Court of Chancery, viz. 
 
 “ At Holyrood House, in Edinburgh, the second day of June, 
 one thousand eight hundred and twenty-five years, in obedience to 
 His Majesty's Royal proclamation, of the date at Carlton-liouse, 
 the twentieth day of April last, commanding all the Peers of 
 Scotland to assemble and meet at this place this day, between the 
 hours of twelve and two in the afternoon, to nominate and choose 
 a Peer of Scotland, to sit and vote in the House of Peers of this 
 present Parliament of the United Kingdom of Great Britain and 
 Ireland, in the room of Alexander, Earl of Balcarres, deceased, 
 We, Sir Walter Scott, Baronet, and Colin Mackenzie, Esq., two 
 of the principal Clerks of Session, by virtue of a commission 
 granted to us, the said Sir Walter Scott, and Colin Mackenzie, or, 
 in case of absence, any other two of the said principal Clerks of 
 Session, by the Right Honourable William Dundas, Lord Clerk 
 Register of Scotland, dated the twenty-first, and registered in the 
 Books of Session the twenty-fourth day of May last, appointing us 
 to officiate in his name at the said meeting of the Peers, do hereby 
 certify and attest, that after the oaths and declarations required by 
 law to be taken by the Peers present, were administered to them ; 
 and their votes, with those of the proxies and signed lists of the 
 absent Peers, collected and examined, James, Viscount of Strath- 
 allan, was elected and chosen to sit and vote in the House of 
 Peers of this present Parliament of the United Kingdom of Great 
 Britain and Ireland, in the room of the said Alexander, Earl of 
 Balcarres, deceased. In witness whereof, we have signed and 
 sealed these presents with our hands, in presence of the Peers 
 electors, place and time above-mentioned. 
 
 “ WALTER SCOTT. (L.S.) 
 
 “ COLIN MACKENZIE. (L.S.)” 
 
99 
 
 No. VI. 
 
 Copy of the Minutes of Election of the Sixteen Peers of 
 Scotland , 2nd September , 1830. 
 
 At the Palace of Holyrood House, in Edinburgh, the second 
 day of September, one thousand eight hundred and thirty years : — 
 In obedience to His Majesty’s Royal proclamation of the date at 
 Westminster, the twenty-fourth day of July last, commanding all 
 the Peers of Scotland to assemble and meet at this place this day, 
 between the hours of twelve and two in the afternoon, to nominate 
 and choose the Sixteen Peers of Scotland to sit and vote in the 
 House of Peers in the ensuing Parliament of the United Kingdom 
 of Great Britain and Ireland,— the Peers of Scotland did assemble 
 between the hours of twelve and two in the afternoon, and the 
 meeting was opened with prayer. — The proclamation, and certifi- 
 cate of publication thereof at the Market-cross of Edinburgh, upon 
 the twenty-ninth day of July last, was read. After which, the 
 Lord Clerk Register’s commission, nominating Thomas Thomson 
 and Adam Holland, Esquires, two of the principal Clerks of Session, 
 and in case of absence, any other two of the said principal Clerks 
 of Session, to be Clerks of the meeting, dated the nineteenth, and 
 registered in the books of Session the twentieth days of August 
 last, was produced. 
 
 The long or great roll of the Peers of Scotland was called over, 
 except those who stand attainted of high treason. The peers who 
 answered to their titles were 
 
 [Here follow the names of the Peers present.] 
 
 On the name of the Earl of Stirling being called, the Earl of 
 Rosebery stated, “ He should not oppose the reception of the list 
 “ signed by the gentleman who had assumed the title of Earl 
 “ of Stirling, particularly as his vote had been admitted on a 
 “ former occasion. But at the same time, he was desirous of 
 “ expressing an opinion, that it would be far more consistent with 
 “ regularity and propriety, were those individuals who conceived 
 “ they were entitled to dormant Peerages, to make good their 
 “ claims to them before the House of Lords, previous to taking 
 “ the titles, and exercising the privileges attached to them.”-— To 
 
 H 2 
 
100 
 
 which it was answered by the Clerks, that his Lordship's statement 
 should be entered in the Minutes. 
 
 The oaths required by law were administered to, and sub- 
 scribed by, the Peers present.— There were produced proxies for 
 the Peers after-named, with the documents and instructions of 
 their having qualified as by law directed, viz. by the 
 [Here follow the names.] 
 
 There were produced signed lists sent by the Peers following, 
 together with the documents and instructions of the Peers sub- 
 scribing being qualified as by law directed, viz. by the 
 [Here follow the names, and among them] 
 
 14 . Earl of Stirling. 
 
 There was made out a roll of the Peers present, and ot the 
 proxies and signed lists ; and the votes of the Peers present being 
 called for, 
 
 [Here follow the names.] 
 
 And the signed lists, having been examined, were found to name 
 as follows, viz. 
 
 [Here follow the names, and among them] 
 
 The signed list of the Earl of Stirling named 
 The Marquesses of Qucensberry, 
 
 Tweeddale ; 
 
 Earls of Erroll, 
 
 — Morton, 
 
 Home, 
 
 Elgin, 
 
 ■ Northesk ; 
 
 Viscounts of Arbuthnott, 
 
 * Strathallan ; 
 
 Lords Forbes, 
 
 Saltoun, 
 
 Gray, 
 
 Sinclair, 
 
 Colville, 
 
 Napier, 
 
 Belhaven, 
 
 &.c. &c. &c. 
 
 Thereafter, the Clerks officiating having collected the votes of 
 the Peers present, and of the proxies and signed lists, they made 
 the certificate or return of the election in favour of the 
 
101 
 
 Marquesses of Queensberry, 
 
 Tweeddale ; 
 
 Earls of Erroll, 
 
 Morton, 
 
 Home, 
 
 Elgin, 
 
 Northesk ; 
 
 Viscounts of Arbuthnott, 
 
 Strathallan ; 
 
 Lords Forbes, 
 
 Saltoun, 
 
 — Gray, 
 
 Sinclair, 
 
 Colville, 
 
 Napier, 
 
 Belhaven ; 
 
 To sit and vote as the sixteen Peers of Scotland in the ensuing 
 Parliament of the United Kingdom of Great Britain and Ireland ; 
 and of the foresaid return, the Clerks officiating, in presence of the 
 Peers electors, signed and sealed two duplicates on parchment, 
 one duplicate to be immediately transmitted to the Clerk of the 
 Crown, directed to him at his office, Chancery-lane, London, and 
 the other duplicate in order to guard against any accident happen- 
 ing to the first, being in the mean time lodged with the Lord Clerk 
 Register’s deputies for keeping the Records, to be by them placed 
 among the Records in His Majesty’s General Register House, 
 to manifest this election; and then the meeting dissolved with 
 prayer. 
 
 (Signed) THOS. THOMSON, 
 
 AD. ROLLAND. 
 
 After the preceding Minutes had been drawn up, the Agent for 
 Alexander, Earl of Stirling, tendered a written statement, 
 entitled a Protest, and intended as an answer to the observations 
 of the Earl of Rosebery, above recorded. That statement is now 
 put up with the other papers relative to this election, and is doc- 
 queted as relative hereto. 
 
 (Signed) THOS. THOMSON, 
 
 AD. ROLLAND. 
 
102 
 
 Extracted from the Records, in His Majesty's General Register 
 House, upon this and the fifty-nine preceding pages of stamped 
 paper, by me, one of the Keepers of these Records, having com- 
 mission for that effect from the Lord Clerk Register. 
 
 GEO. ROBERTSON. 
 
 Protest for the Earl of Stirling. 
 
 I, Ephraim Lockhart, Writer to His Majesty's Signet, specially 
 authorised by Alexander, Earl of Stirling, to do all and every 
 matter and thing necessary and pertaining in and to the asserting 
 and maintaining of his right of voting at the then ensuing election 
 meeting, for choosing the Peers to represent the whole Peers of 
 Scotland in Parliament, considering that the said Alexander, 
 Earl of Stirling, is a Peer of Scotland, and as such has, by a 
 signed list, named sixteen Peers of Scotland to sit and vote in the 
 House of Peers of the ensuing Parliament of the United Kingdom 
 of Great Britain and Ireland, upon the calling of the great roll, 
 and the production of which signed list, the Earl of Rosebery 
 stated, he should not oppose the reception of the list signed by the 
 gentleman who had assumed the title of Earl of Stirling, parti- 
 culaily as his vote had been admitted on a former occasion ; but at 
 the same time, he was desirous of expressing an opinion that it would 
 be far more consistent with regularity and propriety, were those 
 individuals who conceived they were entitled to dormant Peerages, 
 to make good their claims to them before the House of Lords, pre- 
 vious to taking the titles, and exercising the privileges attached 
 to them ; and considering that the said statement, while it admitted 
 the right of the said Alexander, Earl of Stirling, to have his 
 signed list received, and give his vote thereby, contained matter 
 irregularly expressive of the opinion of an individual Peer, and, 
 although received by the deputies of the Lord Clerk Register offi- 
 ciating at the election meeting, was nevertheless invidious towards 
 the person to whose case it referred, as well as derogatory to the 
 dignity of the Peers of Scotland generally, in assuming to dictate 
 to them that they ought to submit the jus sanguinis for their hono- 
 rial successions to previous determination before a tribunal which 
 is invested with no original right of jurisdiction either by the law 
 or by the constitution Wherefore, I, the said Ephraim Lockhart, 
 specially authorised as aforesaid, do hereby protest against the 
 
103 
 
 opinion of the said Earl of Rosebery, expressed in the said state- 
 ment, and maintain that the said Alexander, Earl of Stirling, 
 ought not to make good his claim of Peerage before the House of 
 Lords, which to do, would be to confess a doubt of his own cha- 
 racter, do what in him lay to surrender the rights of the Peers of 
 Scotland, and concede a jurisdiction, which, in any ease of Scottish 
 Peerage, is not recognised by the Act of Union, or made impera- 
 tive by any other statute of the Legislature : — Whereupon I, spe- 
 cially authorised as aforesaid, take instruments in the hands of 
 Mr. George Robertson, Deputy Keeper of the Records of Scotland, 
 at Holyrood House, this second day of September, one thousand 
 eight hundred and thirty years. 
 
 (Signed) EPH. LOCKHART. 
 
 A true copy of the original Protest tendered by me to the 
 Deputies of the Lord Clerk Register, written on these three 
 pages. 
 
 EPH. LOCKHART. 
 
 No. VII. 
 
 Copy of the Protest against the officiating Clerks at the Peers' 
 Election , 3rd June , 1831, by the Duke of Buccleuch and 
 the Earl of Lauderdale ; with the Earl of Stirling’s 
 Answer thereto . 
 
 COPY of the Protest against the officiating Clerks receiving 
 and giving efficacy to the Votes of a person claiming to 
 be Earl of Stirling, at this Election. 
 
 First, Because, when we reflect that the House of Lords, in 
 the case of a former claimant to the title of Earl of Stirling, 
 “ resolved, that it is the opinion of this House 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 ad- 
 “ mitted to vote by virtue of the said title at the election of any 
 
104 
 
 J 
 
 “ Peer of Scotland to sit and vote in this House pursuant to the 
 “ Articles of Union/' 
 
 It appears to us evident that the same principle applies to the 
 case of the present claimant of that Earldom, and ought to have 
 guided the Clerks officiating under a commission from the Lord 
 Register, in rejecting his votes, until the same be allowed 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 efficacy to his votes. 
 
 Thirdly, Because 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) BUCCLEUCH and QUEENSBERRY. 
 LAUDERDALE. 
 
 Copy of the Earl of Stirling’s Answer to the above 
 
 Protest . 
 
 Alexander, Earl of Stirling, answered to the Protest of the 
 Duke of Buccleuch and Queensberry and the Earl of Lauderdale, 
 First, 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 
 
lOp 
 
 of Lords. Further, the respondent is lineally descended of a son 
 of the First Earl of Stirling, while the said William Alexander 
 only claimed as an heir male by a dubious collateral descent. 
 
 Secondly, That the allegation that the Clerks, under the said 
 Resolution 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 respondent. 
 And the respondent having already done all that is required by 
 the law of Scotland, to prove his descent from the First Earl 
 of Stirling, 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 documents in support of 
 that character, is irregular and irrelevant, as well 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 the House of Lords, as to which no 
 objection was offered 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 approbation of the respondent’s right of voting, both 
 of them having been personally present at the general election 
 that took place at Holyrood House on the 2nd 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, w ere virtually at an 
 end. 
 
 (Signed) STIRLING. 
 
 Edinburgh, 4th June, 1831. 
 
106 
 
 No. VIII. 
 
 Copy 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 
 u voted at all General Elections since the Year 1800, 
 “ distinguishing each Election — ordered to be printed 6th 
 September , 183L. 
 
 It may be proper to premise, that on the 22nd of December, 
 1707, it was ordered by the House of Lords,* that the Lord Register 
 of Scotland “ do forthwith lay 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 February, 1708,f 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, t the Lords of Session in Scotland were required “ to make 
 “ up a Roll or List of the Peers of Scotland at the time of the 
 u 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 lltli of March thereafter, and ordered to be printed, § 
 there was given a Roll of the 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 the Roll of 
 the Peers of Scotland have been made, iu 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. 
 X Journals, vol. xxv. p. 416. 
 
 
 
 t Journals, vol. xviii. p. 458. 
 § Journals, vol. xxv. p. 4 77. 
 
107 
 
 ROLL OF THE PEERS OF SCOTLAND. 
 
 H. R. H. the Prince of Wales, 
 Duke of Rothsay. 
 Dukes. — Hamilton. 
 
 Buccleuch. 
 
 Lennox. 
 
 Gordon. 
 
 Queensberry. 
 
 Argyle. 
 
 Douglas. 
 
 Athole. 
 
 Montrose. 
 
 Roxburgh. 
 
 Marquises. — Queensberry. 
 
 Tweeddale. 
 
 Lothian. 
 
 Annandale. 
 
 Earls. — Craufurd. 
 
 Erroll. 
 
 X X Miirisoh ft H . 
 
 Sutherland. 
 
 Mar. 
 
 Menteith. 
 
 Rothes. 
 
 Morton. 
 
 Buchan. 
 
 Glencairn. 
 
 Eglinton. 
 
 Cassillis. 
 
 Caithness. 
 
 Moray. 
 
 X X N i th s dale . 
 
 X X Winterer* . 
 
 X X L ii ritv b go w « 
 Home. 
 
 X X P e r t h. 
 
 Wigtoun. 
 
 Strathmore. 
 
 Abercorn. 
 
 Kellie. 
 
 Haddintoun. 
 
 Earls. — Galloway. 
 
 Lauderdale. 
 X X S ett forth. 
 Kinnoul. 
 Lowdoun. 
 Dumfries. 
 Stirling. 
 Elgin. 
 
 X X Sfretbesk. 
 Traquaire. 
 Ancrum. 
 Wemyss. 
 Dalhousie. 
 Airlie. 
 
 Find later. 
 Carnwath. 
 
 X X C allender . 
 Leven. 
 Dysert. 
 
 X X Fanmure. 
 Selkirk. 
 Northesk. 
 Kincardine. 
 Balcarras. 
 Forfar. 
 Ahoyne. 
 Newburgh. 
 
 X Kilmarnock . 
 Dundonald. 
 Dunbartoun. 
 Kintore. 
 Brcadalbane. 
 Aberdeen. 
 Dunmore. 
 Melvill. 
 Orkney. 
 Ruglen. 
 March. 
 Marchmont. 
 Seafield. 
 
108 
 
 Earls. — Hyndford. 
 
 X Cromart y. 
 Stair. 
 Roseberrie. 
 Glasgow. 
 Portmore. 
 Bute. 
 Hoptoun. 
 Deloraine. 
 Solway. 
 
 Hay. 
 
 Viscounts. — Falkland. 
 
 Dunbar. 
 
 Stormont. 
 
 Kenmuir. 
 
 Arbuthnot. 
 
 X X Kingstonn . 
 Oxford. 
 Irvine. 
 
 X X Ki lsylh. 
 Dumblain. 
 Prestoun. 
 Newhaven. 
 Strathallan. 
 Tiviot. 
 Duplin. 
 Garnoek. 
 Primerose. 
 Lords. — Forbes. 
 
 Saltoun. 
 
 Gray. 
 
 Ochiltree. 
 
 Cathcart. 
 
 Sinclair. 
 
 IVIordingtoun. 
 
 Sempill. 
 
 Elphingstoun. 
 
 Oliphant. 
 
 X Lo ^r s - t . 
 Borthwick. 
 Ross. 
 
 J 
 
 Lords.— 
 
 X 
 
 X X 
 
 X X 
 X 
 
 X 
 
 Sommerville. 
 
 Torphichen. 
 
 Spynie. 
 
 Lindores. 
 
 Palmerlr.oob . 
 
 Blantyre. 
 
 Cardross. 
 
 Colvill of Culross. 
 
 Craustoun. 
 
 Burgh'.io . 
 
 Jedburgh. 
 
 Madertie. 
 
 D i ngwall. 
 
 ■ ^ r>ii w 
 v^VupttT't 
 
 Napier. 
 
 Cameron. 
 
 Cramond. 
 
 Reay. 
 
 Forrester. 
 
 Pf'gj - fgo. 
 
 Kirkcudbright. 
 
 Fraser. 
 
 Bargany. 
 
 Banff. 
 
 Elibank. 
 
 Halkertoun. 
 
 Bellhaven. 
 
 Abercrombie. 
 
 Duffus. 
 
 Rollo. 
 
 Colvill. 
 
 Ruthven. 
 
 Rotherfurd. 
 
 Bellenden. 
 
 Newark, 
 
 Nairn. 
 
 Eymouth. 
 
 Kynnaird. 
 
 Glassfurd. 
 
 140 
 
109 
 
 GENERAL ELECTION, 2nd September, 1830. 
 
 The Peers present 
 Duke of Buccleuch andQueens- 
 berry. 
 
 Earls. — Home. 
 
 Strathmore. 
 
 Lauderdale. 
 
 Leven and Melville. 
 Selkirk. 
 
 North esk. 
 
 Kintore. 
 
 Roseberrie. 
 
 Hopetoun. 
 
 The Peers who vot 
 
 Dukes. — Argyll. 
 
 Atholl. 
 
 Marquis. — Tweeddale. 
 
 ho voted, were — 
 
 Viscounts. — Arbuthnott. 
 
 Strathallan. 
 
 Lords. — Forbes. 
 
 Saltoun. 
 
 Gray. 
 
 Sinclair. 
 Elphinstone. 
 Colville of Culross. 
 Cranstoun. 
 Napier. 
 
 Kinnaird. 
 
 by Proxy, were — 
 
 Earls. — Morton. 
 
 Breadalbane. 
 Lords. — Belhaven. 
 
 Nairne. 
 
 The Peers who voted by signed Lists, were — 
 Dukes. — Hamilton. 
 
 Lennox. 
 
 Gordon. 
 
 Montrose. 
 
 Marquises.— Queensberry. 
 Lothian. 
 
 Earls. — Erroll. 
 
 Mar. 
 
 Cassillis. 
 
 Caithness. 
 
 Moray. 
 
 Kinnoull. 
 
 Dumfries & Bute. 
 Stirling. 
 
 Elgin & Kincardine 
 Wemyss & March. 
 Airlie. 
 
 Balcarrcs. 
 
 Aboyne. 
 
 Earls. — Aberdeen. 
 Dunmore. 
 Stair. 
 Glasgow. 
 Viscounts. — Falkland. 
 
 Stormont. 
 Kenmuir. 
 Dumblane. 
 Lords. — Cathcart. 
 Sempill. 
 Somerville. 
 Torphichen. 
 Blantyre. 
 Reay. 
 Forrester. 
 Rollo. 
 Ruthven. 
 
 64 
 
110 
 
 GENERAL ELECTION, 3rd June, 1831 . 
 
 The Peers present who voted, were — 
 
 Duke of Buccleucli and Queens- 
 berry. 
 
 Marquises. — Qucensberry. 
 
 Tweeddale. 
 
 Lothian. 
 
 Earls. — Erroll. 
 
 Morton. 
 
 Buchan. 
 
 Home. 
 
 Strathmore. 
 
 Haddington. 
 
 Lauderdale. 
 
 Stirling. 
 
 Airlie. 
 
 Leven & Melville. 
 Selkirk. 
 
 Earls. — Kintore. 
 
 Hopetoun. 
 Viscounts. — Falkland. 
 
 Arbuthnott. 
 
 Strathallan. 
 
 Lords. — Forbes. 
 
 Saltoun. 
 Elphinstone. 
 Torphichen. 
 Colville of Culross. 
 Napier. 
 
 Belhaven. 
 
 Rollo. 
 
 Ruthven. 
 
 Kinnaird. 
 
 The Peers who vo 
 Dukes. — Lennox. 
 
 Argyll. 
 
 Montrose. 
 
 Earls. — Cassillis. 
 
 Breadalbane. 
 
 Aberdeen. 
 
 Dunmore. 
 
 The Peers who voted 
 Dukes. — Hamilton. 
 
 Gordon. 
 
 Earls. — Caithness. 
 
 Moray. 
 
 Kinnoull. 
 
 Dumfries & Bute. 
 Elgin & Kincardine. 
 Wemyss& March. 
 Balcarres. 
 
 Aboync. 
 
 by Proxy, were — 
 
 Earls. — Rosebery. 
 Glasgow. 
 Portmore. 
 
 Lords. — Gray. 
 
 Cranstoun. 
 
 Reay. 
 
 Nairne. 
 
 signed Lists, were — 
 
 Earl. — Stair. 
 
 Viscounts. — Stormont. 
 
 Kenmure. 
 Dumblane. 
 Lords. — Somerville. 
 Forrester. 
 Kircudbright. 
 
 61 
 
Ill 
 
 The preceding Return, extracted from the Records in His 
 Majesty's General Register House at Edinburgh, is attested by 
 me, Clerk to His Majesty's Councils, Registers, and Roils. 
 
 W. DUNDAS, Cl. Reg”- 
 
 Arniston, 31st August, 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.* 
 
 Chief Justice Tindal. — The course which the Court mean to take 
 in this case, is one which, under all the circumstances, appears to 
 be that which the defendant has a right to claim at their hands, 
 without pledging the Court to any opinion whatever on the validity 
 of his title : — it appears to us to be quite sufficient, that the defend- 
 ant should be discharged on common bail, 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 
 ofUnion, is entitled to perform. By the Twenty-third Articleof 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 next 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 
 4t 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 component 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 
 
 * Thi* case is reported in Bingham, VII. 55. 
 
u 
 
 
 112 
 
 advice of the Privy Council, requiring the Peers of Scotland for the 
 time to meet and assemble at a certain place named in the warrant. 
 What we have to see, is, whether this defendant did, at the time 
 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 whatever was taken to his vote ; on the last occasion, a 
 protest was made against it; still, however, notwithstanding that 
 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 ail 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 question 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 only, are allowed to perform, we think, on motion to 
 this Court, we must say that his person is to be held privileged from 
 arrest. The objection that has been made to it has been, that any 
 person might appear when a meeting took place, calling himself a 
 Peer of Scotland, and would be allowed to vote. W e cannot suppose 
 that is meant in that unlimited manner, because we all know the 
 Peers are a limited body; the Peers of Scotland, and probably the 
 greater part of their persons, would be know T n to the officers 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 House of Lords them- 
 selves; but sitting judicially here, we cannot ingraft it as an article 
 on the Act of Union. Without 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 person 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 Gaselee, Bosanquet, and Alderson, concurred. 
 
 Rule absolute accordingly. 
 
113 
 
 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, 10 th March , 1762. 
 
 Journals of the House of Lords, Yol. XXX. p. 186. 
 
 Die Merc. 10<> Mart" A.D. 1762, 2nd Geo. III. 
 
 The Lord Willoughby of Parham reported from the Lords’ Com- 
 mittees for Privileges, to whom it was referred to consider of the 
 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 off the further 
 “ proceeding upon the said claim till the next Session of Parliament, 
 “ 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 this 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 w as read by the Clerk ; 
 
 And the said Resolutions being read a second time, were severally 
 agreed to by the House, and ordered accordingly. 
 
r 
 
 u 
 
 114 
 
 No. XI. 
 
 Copy Extract of the Judgment of the Court of Session, 
 25 th January , 1831. 
 
 Court of Session. 
 
 January 25th, 1831. 
 
 Summons of Reduction, &c. &c. 
 
 Alexander, Earl of Stirling, Pursuer; 
 
 W. C. C. Graham, and Others, 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, 1830. 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 bis 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 certainly 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 
 Rosebery, who moved the Resolution, was convinced and well 
 knew it did not apply to a case in this situation, I have not a doubt 
 that his Lordship was quite satisfied that it did not apply to dor- 
 mant Peerages, and that they were not the claims which should 
 have been excluded. I will act upon this Resolution still, which 
 prevents a Peer from going down to Holyrood House to give his 
 vote, if I am satisfied that he has no right to that dignity which he 
 has assumed. But it is admitted, that its application is in existing 
 Peerages, and not in dormant ones ; and 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, 
 44 and appoint the case to be again put to the Summar Roll, that 
 44 parties may be heard quoad ultra,* 
 
 (Signed) 44 D. BOYLE, J.P.D.” 
 
 * This case is reported in Shaw and Dun’s Report*, Vol. 9, p.3. 
 
 i 2 
 
Copy of Epitaphs in the Parish Church of Binjield f County of 
 
 Berks . 
 
 “ Hf.re lies the R l * Hon e - The Lady Judith, Countess Sterline, 
 
 “ Daughter of Robert Lee, of this Parish, Esq' e - was married 
 “ to the Right Honorable Henry, Earle of Sterline ; and 
 44 Grandson of William, Earle of Sterline, Privy Counsellor 
 “ of England and Scotland, Sole Secretary of State for the 
 44 Kingdom of Scotland.— She had Issue six Sons and four 
 “ Daughters, of which four Sons and three daughters are now 
 “ living, and died in childbed.— She departed this life De- 
 “ cember 15, .1681, aged 38.” 
 
 4t Here lietb the Body of the Right Honorable Henry Alexander, v 
 “ Lord Alexander, Viscount Cahadai/and Earl of Sterline, of 
 “ the Kingdom of Scotland.— lie married' Elizabeth Hobby, 
 
 “ Widow of John Hobby, Esquire, of Bisham Abbey, in this 
 “ County f and died without issue on the 4th day of December, 
 
 44 1739, aged 75 years." 
 
 The Proof of the Extinction of the male issue of Henry, 
 Third Earl of Stirling, fyc. fyc. 
 
 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 Biijfield, in the said 
 County of Berks, and left issue four sons, viz, Henry, William, 
 
Robert and Peter ; and also three daughters, viz. Marj, Jane, and 
 Judith, the Mother of this deponent: And further depones and 
 says, that he hath been informed that his said Uncle Henry suc- 
 ceeded his said Grandfather in his estate and title of Earl of 
 Stirling, and died in or about the year 1739, and was buried in 
 the aforesaid parish church of Binfield, leaving 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 Henry, 
 his Uncle, leaving no male issue; And further depones and says, 
 that be verily believes his Great-Grandfather, 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 had 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 23 rd June, 1758— directed 
 to Alexander Wedderburn, Esquire, Counsellor at Law; 
 M r - Henry Dagg, Attorney at Law, and several, other 
 persons ; and was sworn at London, on Thursday, the 
 13 th of July, 1758. , 
 
No. XIII. 
 
 Copy oj Mr. Ilovenden's Deposition , and Mr. Conyers's 
 Declaration , relative to the Charter of Novo-Damus of the 
 1th December , 1639. 
 
 Henry Hoyenden, 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 7th December, 1639, 
 and contains a Novo-Damus of the titles and dignities of Earl of 
 Stirling, Viscount of Stirling and Canada, &c. &c. and of 
 the lands of the Earldom, consisting as therein described, of the 
 Earl's whole estate in Scotland, and the extensive possessions 
 granted to his Lordship in New England, and other parts of America. 
 And this deponent saith, the following clause (copied from a paper 
 produced) is a faithful translation of the original in the Charter, 
 which limits the descent of the Earl's estates and titles “to him and 
 “ the heirs male of his bodye, which failing, to the eldest heirs 
 “ female, without division, of the last of such heirs male hereafter 
 “ succeeding to the titles, honours, and dignities aforesaid, and to 
 u the heirs male to be procreated of the bodys of such heirs female 
 
119 
 
 “ respectively, bearing the surname and armes of the family of 
 “ Alexander, which they shall be holden and obliged to assume ; 
 “ which all failing, to the nearest legitimate heirs whatsoever of the 
 “ said William, Earl of Stirling, with precedency from the 14th 
 “ June, 1633.” 
 
 Jurat coram me, 16 die July, 1723. 
 
 Hen. IIovenden. J. POCKLINGTON. 
 
 I, Thomas Merefield, public notary, dwelling in the city ofDublin, 
 in the kingdom of Ireland, do hereby attest and certify, to all whom 
 it may concern, that I was personally present, and saw the within- 
 named Henry Hovenden subscribe and swear to the within affidavit, 
 before the Hon. John Pocklington, Esq. one of the Barons of His 
 Majesty's Court of Exchequer in Ireland. 
 
 Witness my Hand and Seal of Office, this 16th day of July, 1723. 
 (L. S.) THOMAS MEREFIELD, Not. Pub. 
 
 I willingly bear testimony to the truth of this statement, made in 
 the within affidavit. Lord Stirling's Charter was trusted to my 
 late Father in troublesome times, by ye deceased Mary, Countesse 
 of Mount-Alexander. I cannot therefore give it up to the Rev. 
 Mr. Alexander, without the present Earl's consent. 
 
 Carlow, 20th July, 1723. 
 
 THOMAS CONYERS. 
 
320 
 
 No. XIV. 
 
 Copy of Letter from Mr . Alexander ( alias Lord Stirling^ 
 to Mr . Trumbull, 9 th November, 1.759. 
 
 Dear Sir, 
 
 As you was pleased to desire lhat I would give you 
 in writing the proposal I made you a few days ago, relating to the 
 rights the heirs of the First Earl of Stirling may have in North 
 America, that you might communicate it to Mr. Lee, I shall now 
 state the matter to you for that purpose. — The rights of which the 
 First Earl died possessed in America, I conceive, 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 1G29. But I have found suffi- 
 cient evidence that the country Was regained -from the French in 
 1631 ; that a new grant of it passed to the Earl in *1633; and that 
 the Earl died possessed of it in 1640 ;-^since which, I believe, 
 nothing has been done by his descendants to invalidate their title— 
 Henry, the ancestor of your branch of the 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, I 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. 
 
121 
 
 The other tract, of which the Earl was possessed, is the Country 
 of St. Croix, or Sagadahook, adjoining to Nova Scotia, on the west 
 of it. After Earl Henry had made the agreement with the Duke 
 of York for Long Island,, the Duke obtained, a grant from the 
 Crown, of the Province of New York, and in it was to include 
 Long Island, as a confirmation of his right to it. It seems the Earl 
 lent the Duke his original grant of Long Island, to enable hirn to 
 make use of the same words for describing it ; and that in the same 
 instrument that contained the Earl's right to Long Island, was 
 also contained his right to the Country of St. Croix ; and that the 
 Duke, in his new grant from the Crown, inserted not only the 
 description of Long Island, but of the Country of St. Croix also ; 
 thus, whether designedly or not, the Duke obtained a pretence of 
 a right to this third tract, which has since remained in the hands of 
 the Crown, but is not possessed by any of its subjects — which is a 
 circumstance much in our favour, as the restoring of it to us will 
 be attended with the less inconvenience to the Crown, than if it had 
 been settled. 
 
 This, from the best intelligence I have been able to collect, is 
 the situation of the claims the heirs of the First Earl of Stirling 
 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 ; but from circumstances before-mentioned , I should think it doubt - 
 ful whether Henry had any legal right to make the agreement with 
 the Duke of York, or whether he could have any legal right to any 
 part of his father's possessions, as he would not suffer his service of 
 heir male, nor be subject to any of his debts, which occasioned his 
 estates in Scotland to be divided between his creditors; and the 
 only thing that secured his American estate from the like seques- 
 tration, was its remoteness, and the little value of lands in that 
 country at that time. However, I think 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 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, and the other half to myself; 
 and, as 1 shall have some leisure time this winter, I 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 communicate this proposal to Mr. Lee, 
 and to h^ve your and his answer as soon as convenient ; for 
 
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 set out for America next spring, and 
 perhaps we shall never again have an opportunity of acting jointly 
 in this matter. These circumstances seem to make this the proper 
 time for doing something in it.— When you write Mr. Lee, be 
 pleased to make my most respectful compts. to him. Had I been 
 in orkshire this summer, I should certainly have had the honour 
 of waiting 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 William Trumbull, Esq r * 
 
 No. XV. 
 
 Copy of Letter from Mr. Trumbull, in answer to Mr. Alexander , 
 of Nov rt 9th. — Dated East Hampstead Park . 
 
 “ I have returned you Lord Stirling’s letter, to whom, when 
 44 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'. 1759.” 
 
 My 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 
 
123 
 
 have, relating to our North American affairs, as well as a book of 
 Sir W illiam Alexander's correspondence, while he was Secretary 
 of State for Scotland. I think a proper agreement should be drawn 
 up, for us all to sign — which I desire the favour of your Lordship 
 to do. 
 
 I am 
 
 Your Lordship's most obedient humble Servant, 
 East Hampstead Park, (Signed) W. TRUMBULL. 
 
 13th Deer 1759. 
 
 Eleven parchments, 
 
 marked 
 
 A, 
 
 from 1 
 
 all. 
 
 Eleven papers, 
 
 ditto 
 
 B, 
 
 from 1 
 
 a 11. 
 
 Twelve ditto, 
 
 ditto 
 
 c. 
 
 from 1 
 
 a 12. 
 
 Twenty-eight ditto, 
 
 ditto 
 
 D, 
 
 from 1 
 
 a 28. 
 
 A parchment book, 
 
 ditto 
 
 E. 
 
 
 
 Letter from William Philips Lee, Esq . to the Earl of 
 Stirling — Dated York, January 12 th, 1760. 
 
 My Lord, 
 
 Upon receiving the honour of your Lordship’s letter, I writ to 
 Mr. Trumbull, 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 will be at all times extremely 
 acceptable to, 
 
 My Lord, 
 
 Your most obedient humble Servant, 
 
 (Signed) WM. PHILIPS LEE. 
 

 
 
 
 
 
 
 
 
 *< : ; •• •. .. 
 
 •: . 
 
 
 
Table, No. II. 
 
 PEDIGREE — shewing the alleged Descent of General 
 William Alexander. 
 
 John Alexander, 
 of Gogar, 
 
 Uncle to William, 1st Earl of Stirling. 
 (Vide Table I.) 
 
 Alexander Alexander, 
 in Milnab, 
 born in 1602. 
 
 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. 
 
r 
 
 
 
 
 
 
 
 t * 
 
 
 
 
 
 
 ' *•' ; 
 
 
 
 
 * . 
 
 •- f; • !J» < 
 
Table, No. III. 
 
 PEDIGREE — shewing the Descent of the Dowager Marchioness of Downshire. 
 
 1. Henry Alexander, =Elizabeth, widow of 
 5th Earl of Stirling, John Hobby, Esq. 
 died at 
 
 Ewell Green, Surrey, 
 
 4th December, 1739, 
 s. P. 
 
 eldestson of Sir John 
 Hobby, Bart., of 
 Bisham, Berks. 
 
 Robert Lee, 
 ob. s. p. 
 
 Charles Phillips, 
 ob. s. p. 
 
 Henry Alexander,=Judith, daughter of 
 
 4th Earl of Stirling, 
 ob. 1690. 
 
 Robert Lee, of Binfield, 
 Esquire. 
 
 rn 
 
 2. William. 
 
 3. Robert. 
 
 4. Peter. 
 Omnes ob. s. P. 
 
 ante 1730. 
 
 Mary,= 
 
 William Phillips Lee, 
 of Binfield, Esquire, 
 died at Y ork, 
 
 12th March, 1778, aet. 71, 
 s. P. 
 
 . . Phillips, of 
 Binfield, 
 
 County of Berks, 
 Esquire. 
 
 Judith, = Sir William Trumbull, Jane, 
 
 Knight, Secretary to ob. S. P. 
 
 King William III. 
 ob. 1716. 
 
 William Trumbull, =Chetwynd, daughter and 
 
 L A 1 r\£ 1VT nntnO*llP. 
 
 ob. 24th April, 1760. 
 
 Mary,==Honourable Martin Sandy s, 
 
 co-heir of Montague, 
 Viscount of Blundell, 
 
 daughter 
 and heir. 
 
 ob. 1768. 
 
 William Sandys, 
 ob. s. p. 
 
 Edward Sandys, 
 ob. s. P. 
 
 Mary, Baroness Sandys, 
 of Ombersley, 
 daughter and heir, 
 now Dowager Marchioness 
 of Downshire. 
 
 HOWLETT AND BRIMMER, PRINTERS, 10, FRITH STREET, SOHO. 
 
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