Paper on the Mar peerage

The Act restoring John Francis Erskine and all entitled
after him to the honours, dignities, and titles of Earl of Mar,
recites that he is the grandson and lineal representative of
John Earl of Mar. He was the grandson of John Earl of Mar,
through his mother Lady Frances Erskine. Upon this fact
the counsel for the opposing petitioner argued that it was
intended by the Act to restore the dignity to the person
entitled as the lineal representative of the attainted earl, and
as the person restored was only lineally descended from John
Earl of Mar through a female it amounted to a parliamentary
recognition that the dignity before the attainder was descen-
dible to females.
Theie is not, in my opinion, a shadow of foundation for
this argument. The intention of the Act was to restore John
Francis Erskine to the dignity. He was undoubtedly the
nearest in blood in succession to the attainted earl, and he
had a preferable claim to every other person to be restored.
The recital in the Act that he is the grandson and lineal
representative of the attainted earl is an accurate description
of his title, without reference to the course of descent by
which it was deprived. There was not the slightest occasion
to make any inquiry as to the succession to the restored title,
and probably none was made. It was enough to restore the
dignity to whatever person was best entitled to it, and when
restored it would, as a necessary consequence, be subject to
the course of descent which was incident to it before the
attainder. My Lords, upon a review of all the circumstances
of the case, I have arrived at the conclusion that the deter-
mination of it must depend solely on the effect of the creation
of the dignity of Queen Mary, and on that alone. That
whether the original dignity was territorial or not, or was
or was not descendible to females, is wholly immaterial,
inasmuch as it had in some way or other come to an end more
than a century before Queen Mary's time. That the creation
of the dignity by her was an entirely new creation, and there
being no charter or instrument of creation in existence, and
nothing to show what was to be the course of descent of this
dignity, the prima facie presumption of law is that it is descen-
dible to heirs male, which presumption has not in this case
been rebutted by auy evidence to the contrary.
I am therefore of opinion that the dignity of Earl of Mar
created by Queen Mary is descendible to the heirs male of the
person ennobled, and that the Earl of Kellie, having proved
his descent as such heir male, has established his right to the
dignity.