The second letter appearing afterwards to be very material to meet objections made by the Lord Advocate to the incompleteness of the extinctions in the Garnock line, Mr. Melville was again brought, and being examined, and cross-examined at great length, he answered to this effect; that from having repeatedly examined the letter last admitted, and the signature to it, as well as the signature to the power of attorney previously admitted, he had such knowledge and distinct impression in his mind of the handwriting, that he should be able to say whether or not any other letter shown to him was written by the same person, and that, without immediate comparison of the signatures or letters. This letter being then shown to him, he said "he believed, in fact he had no doubt, it was written by the same person who wrote the letter signed Margaret Crawford.""

The Committee, after hearing the question of the admissibility of this letter argued at great

*

A person accustomed to ancient manu

scripts, saying

ful examination of certain signa

length, by the counsel for the claimant and for *558 that by a carethe Crown,1 decided that it was admissible as a declaration, like the former, of the state of the family,

and, in that view of it, coming from the proper custody.

tures, he had in distinct knowledge of the

his mind such a

diate reference

shown to him

The evidence adduced under the sixth and last handwriting as to be able to say head went to show the descent of the claimant from without immeDavid Lindsay, of Edzell, ninth Earl of Crawford and to them, whethLord Lindsay, through his second son John Lindsay, of er any letter Balcarras, whose lineal male descendant, James 5th was or was not written by the Earl of Balcarras, and grandfather of the claimant, be- same person: Held, a compecame, in 1744, the nearest heir male of the Lindsay, of tent witness. Crawford and Lindsay of Edzell lines, on the death, without issue. in that year of David Lindsay, the then male heir of both lines.

Lord Lindsay, the claimant's eldest son, examined as a witness, said he had given much attention to genealogies and pedigrees, especially those of his own family. He produced a MS. book on

1 The arguments were in substance the same as those reported on a similar point in The Fitzwalter Peerage Case, 10 Clark & Finnelly, pp. 196 and 197; and the cases and authorities there mentioned were referred to; and the authority of the decision in that case itself, against the reception of such evidence, was urged by the counsel for the Crown, who also cited Doe v. Suckermore, 5 Adolphus & Ellis, 703. The claimant's counsel cited The Bishop of Meath v. The Marquess of Winchester, 4 Clark & Finnelly, 445, for receiving the letter as a declaration of the state of the family by a member of it.

VOL. II.

26

[ 401 ]

the subject, written partly by his great-grandfather, fifth Earl of Balcarras, ante litem motam,- for the use of the family, and not to prove a claim to dignities or property, and continued by his daughter, Lady Anne Barnard, who bequeathed it to the claimant. Witness had become perfectly acquainted with the handwriting of the 5th Earl, by perusal of leases and other documents signed by him and duly witnessed, and acted upon as genuine, besides *559 letters to Lady Barnard, which bore internal evidence of

having been written by him. The witness being declared competent, read, by direction of counsel, several passages from that part of the book, written by the said Earl, one of which was that "Lindsay Earl of Balcarras was heir male of the Lindsays of Edzell, extinct in 1744, who were heirs male of Lindsay Earl of Crawford."

son of facts

Statements in LORD BROUGHAM. This is certainly a very curious writing by a deceased per- book; but how is it to be admissible evidence? It is within his proved to be in the handwriting of the Earl by whom knowledge relating to the it purports to have been written, but it is still a private state of his fam- document, kept in retentis, not exhibited in the family

ily, without a

view to a suit to all beholders, and it therefore fails to have those or claim of peer

age, are admis- characteristics which make such exhibited documents sible in proof of

pedigree.

evidence.

Sir F. Kelly. It is offered as evidence on this principle, that it is a statement by a deceased member of a family in a matter of pedigree of that family.

LORD CAMPBELL. There is no doubt about the correctness of the principle.

LORD BROUGHAM. An entry of a fact within the party's own knowledge is evidence.

LORD LYNDHURST. Any declaration made by him ante litem, and without suspicion of motive, is evidence.

THE LORD ADVOCATE. - This stands on the same ground on which Mrs. Margaret Crawford's letters were received.

Sir F. Kelly.-The Earl, who made these entries, died in 1768, and, therefore, could not have made them with any view to a claim to a dignity, which was then, and until 1808, in another family; he was born about 1690, and therefore, besides being, as it appears

by the book, a great genealogist, he may be presumed to be *560 acquainted from 1705 with the state of his near relations, and those of whom he writes lived, as appears, aliunde, be

tween 1705 and 1744. These entries are, therefore, admissible as declarations of facts which were within his own knowledge. On that ground the Committee held them to be admissible.

1847. July 5.

Mr. Stuart-Wortley, in proceeding to sum up the evidence, first reminded the Committee that the Earl of Balcarras claimed the Earldom of Crawford, as lineal heir male of the body of David, the third Earl, who was the only son of Alexander, the only son of Sir David, the first Earl. He also made out his claim as collateral heir male, or "heir male whomsoever," of Ludovick, the 16th Earl, who, upon his resignation of the Earldom in 1642, obtained from the Crown a new charter, limiting that dignity, first, to the heirs male of his own body, remainder to John Earl of Lindsay, of the Byres, - a remote branch of the Lindsays, and the heirs of his body," whom failing, to the heirs male whomsoever" of the said Ludovick. The heirs male of the Byres branch having become extinct on the death of George, 22d Earl of Crawford, in 1808, the Earldom descended under the ultimate remainder to the nearest collateral heirs male of Ludovick, in which position it is clearly shown by the evidence that the claimant stands.

Of the ancient Barony of Lindsay there was no patent extant, but ancient instruments had been put in evidence, showing that David, the third Earl, bore that title, in addition to the title of Earl of Crawford; that Alexander, his son, and David, his grandson, the fourth and fifth Earls, bore it; that David, the ninth Earl, — of * the Edzell branch, and immediate ancestor of *561 the claimant, bore it, and that the title was ascribed to succeeding Earls in Acts and Rolls of Parliament, and instruments under the hand of the Crown, down to Ludovick the sixteenth Earl. But the claimant's right to the Barony depended exclusively on his descent, as heir male of the body of David, the third Earl, whereas the Earldom may be claimed by him in that character or as next collateral heir male of Ludovick, the sixteenth Earl, under the ultimate remainder in the patent of 1642.

The creation of the Earldom in 1398 was proved, by unquestionable evidence, although there was no patent found, nor any other instrument showing the limitations. In that case the rule of the House was, where nothing appeared to mark the course of

descent, to presume that the limitations were to the heirs male of the body of the original grantee, or, if in the course of the descent, a certain mode of enjoyment of the Peerage was established, even by a single instance, as in The Sutherland Peerage, then the presumption of law was, that such enjoyment was according to the limitations in the patent. But the course of descent of both these Peerages was minutely traced, and it was shown by the clearest evidence that heirs female - heirs of line and heirs general of the deceased possessor and of the first grantee were passed over on many occasions, proving that these are male honours, and must ever descend to heirs male only, and so far *562 fortifying the presumption which, without any evidence of the descent, this House would entertain.

*

The creation of the Earldom in 1398, at Perth, has been proved by the compotum, which is a form of account, and discharge of a public officer. The recognition of David Earl of Crawford in the same year is proved by the instrument of safe conduct given to him by Richard II. of England, to journey to London with a large retinue, to meet Lord Wells in a tournament on London Bridge, — in which the chroniclers of the time relate that the illustrious Earl vanquished his far-famed rival.

The creation of the Earldom, and the existence of the Barony also, in David, the third Earl, having been proved, it was not necessary to trace the descent of them step by step; it was sufficient to call attention to those successions which were marked by the exclusion of heirs female, and to events which disturbed the regular course of descent, and to show how that disturbance is accounted for, and how it strengthens the claimant's case.

The third Earl left two sons, Alexander, who succeeded him, and Walter, who became the head of the Edzell line, and was the ancestor of the claimant. Alexander was succeeded by his son David, fifth Earl, who was, in 1488, created Duke of Montrose, with descent to his heirs male,3 but that creation was revoked by

1 Per Lord Mansfield, in The Spynie Peerage (Maidment's Report); and Lord Eldon in The Annandale Peerage, cited in Sir H. Nicolas's Report of The Devon Peerage, pp. 56, 57.

* Vide ante, note, p. 536.

The noble claimant, after the decision in his favour in the present case, petitioned the Queen to be declared entitled to the Dukedom also, and his petition has been by her Majesty referred to the House, but there has yet been no sitting of the Committee on it.

*

the Crown, and the Dukedom was limited to him for his life only. It was proved that this fifth Earl's eldest son * 563 had two sons and two daughters, and that his eldest son predeceased him, without leaving issue, and that he was succeeded by his second son, John, who perished in battle at Flodden, without issue, leaving his two sisters heirs at law of him and of the fifth Earl, and of all the preceding Earls. The honours, however, did not go to them, but passed to their uncle, Sir Alexander Lindsay of Ochtermonsie. That instance of exclusion of females would be sufficient to establish the course of descent of these honours to male heirs only, as the single instance of the succession of an heir female to the Earldom of Sutherland (in 1514) was held in 1772 to define that dignity as descendible to female, as well as male, heirs. The evidence in this case shows several other instances of the exclusion of females; but at a date, prior to them, a very remarkable disturbance occurred in the descent of these honours: David, the eighth Earl (eldest son of the last-named Alexander, seventh Earl), was not succeeded by his son Alexander, "Master of Crawford." The word "Master" in Scotland means heir apparent; — but this Alexander, having obtained an unhappy reputation, was called the "Wicked Master," from his having, with other wicked associates, committed great outrages, and used violence to his father, which, by the law of Scotland, is constructive parricide. The record of the indictment and proceeding on it for that offence has been put in evidence, and it appears by it that the accused "came under the pleasure of the Crown," which means, that they pleaded guilty. The words of the record, after stating the offence charged, are "pro quibus criminibus dictæ persona in voluntate Supremi Domini nostri Regis, tunc personaliter presentis, devenerunt." The legal consequence to the "Wicked Master," of this confession of guilt, - equal to * conviction, *564

with judgment following on it, was that he forfeited, as well for the heirs of his body as for himself, all right to the succession to his father.1 That he was guilty of constructive parricide, and thereby forfeited and lost all right to the honours and estates," is acknowledged by his son, who was restored to them, and is recorded in a solemn instrument executed by him, and which is in evidence. It further appears that the father, eighth Earl, determined to convey his estates, subject to his life-rent, to 1 Craig Jus. Feudale, Lib. III. dieg. 6, § 3.