Paper on the Mar peerage

LORD REDESDALE.— My Lords, the ancient earldom of
Mar was probably held by tenure of the comitatus. The
earldom we have to decide on is the peerage independant of
the comitatus, and it is important and necessary in considering
this case to treat the peerage and comitatus separately.
The inquiry may be said to commence with Gratney Earl
of Mar, who died before 1300. From his son Donald the
peerage and comitatus descended in direct succession to
Thomas the last heir male. From Gratney's daughter Helen
the Erskines claim to be his heirs on the extinction of the
female representative of Donald in Isabella, niece to Thomas,
in 1407. There is no record of the creation of this ancient
earldom, and I presume therefore that the committee will
accept Lord Mansfield's dictim in the Sutherland case as the
ruling principle in this claim. On that occasion he said " I
"take it to be settled, and well settled, that when no instru-
"ment of creation or limitation of honours appears, the
' ' presumption of law is in favour of the heir male, always
" open to be contradicted by the heir female upon evidence
"shown to the contrary. The presumption in favour of heirs
"male has its foundation in law and in truth." Is this
presumption of law contradicted by the female in this as it
was successfully in the Sutherland claim ? In that case it was
shown that the peerage descended to Elizabeth the wife of
Adam Gordon, on the death of her brother without issue in
1514, as heir of the body of William who was Earl of Suther-
land in 1275 ; that it was assumed by her husband, and from
her had descended to the heirs male, who were heirs of her
body, to the death of the last earl in 1766 without any
objection on the part of the male line of the said William.
Thus a continuous and undisputed succession to the heir
female was shown from 1514 to 1766, a period of 252 years,
while there was a male line to contend for the earldom in
existence had the descent been limited to males,
In the case before us it appears to me that the opposing
petitioner asks the committee to adopt the reverse of Lord
Mansfield's dictum, and to hold that the presumption of law
is in favour of the heir female. The force of the evidence
before us is against his claim, unless we allow it to be con-
stantly overruled by such a presumption.
On the death of Thomas Earl of Mar, the last heir male,
William Earl of Douglas, the husband of his only sister
Margaret, was called Earl of Douglas and Mar. He may
have assumed the latter title for one or other of three reasons ;
as being in possession of the comitatus ; in right of his wife's