Tracts, legal and historical

195
lord and superior. 1 But the Regiam, in opposition
to this, generally inculcates, without any exception,
that " Dominus Rex habebit custodiam terrarum et
teiiementQXXLm Jutuorum naturalium, capiendo exitus
sine vasto et distinctione — Et de quocunque feudo
fuerit terra ilia, post mortem eorunclem redeat terra
rectis hseredibus." 2
Erskine is very unhappy in the instance, in his
Institutes, of John Lord Fleming and Margaret
Stewart, by which he seeks to instruct his assertion,
" that legitimation per siibsequens matrimonium,
was rejected by the ancient law of Scotland," 3 thus at
once bastardizing the entire royal line of the Stewarts.
In support of the conclusion, neither he nor Father
Hay, to whom he appeals, adduce any thing conclu-
sive. The above parties, aware of an incestuous
impediment to their marriage, had sent to Rome for
a dispensation, and the authority to which Erskine
refers — a charter in 1508, of the Baronies of Than-
kerton and Biggar in their favour — specially legiti-
mates the offspring (whom it styles Bastards) that
might chance to be born before its arrival, and cele-
bration of their marriage in facie Ecclesie* — This
1 Rolls of Parliament, Vol. i. p. 47.
2 Lib. II. ch. 46.
3 Appendix, No. II See also Book i. tit. i. § 35.
4 " Insuper si contingat aliquos filios et proles masculos — inter
ipsos Johannem et Margaretam procreari, antequam legitima dis-
pensatio matrimonii inter eosdem ad istas partes a curia Ilomana